Federal Register Vol. 80, No.163,

Federal Register Volume 80, Issue 163 (August 24, 2015)

Page Range51113-51422
FR Document

80_FR_163
Current View
Page and SubjectPDF
80 FR 51197 - Government in the Sunshine Act Meeting Change NoticePDF
80 FR 51330 - Sunshine Act Meeting NoticePDF
80 FR 51347 - Notice of Intent To Rule on Request To Release Airport Property at the Gillespie County Airport in Fredericksburg, TexasPDF
80 FR 51347 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Certification: Airmen Other Than Flight Crewmembers, Subpart C, Aircraft Dispatchers and App. A Aircraft Dispatcher CoursesPDF
80 FR 51293 - Missouri; Major Disaster and Related DeterminationsPDF
80 FR 51345 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Recording of Aircraft Conveyances and Security DocumentsPDF
80 FR 51172 - North Carolina: Final Authorization of State Hazardous Waste Management Program RevisionsPDF
80 FR 51141 - North Carolina: Final Authorization of State Hazardous Waste Management Program RevisionsPDF
80 FR 51346 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Certification of Airmen for the Operation of Light-Sport AircraftPDF
80 FR 51295 - Nebraska; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
80 FR 51170 - Approval and Promulgation of State Plans for Designated Facilities; New YorkPDF
80 FR 51253 - Proposed Issuance of the NPDES General Permit for Offshore Seafood Processors in Federal Waters off the Washington and Oregon Coast (Permit Number WAG520000)PDF
80 FR 51255 - Board of Scientific Counselors (BOSC); Homeland Security Subcommittee Public and Closed Meeting-August 2015PDF
80 FR 51113 - Organization; Mergers, Consolidations, and Charter Amendments of Banks or AssociationsPDF
80 FR 51295 - West Virginia; Amendment No. 3 to Notice of a Major Disaster DeclarationPDF
80 FR 51292 - Kentucky; Major Disaster and Related DeterminationsPDF
80 FR 51295 - Kansas; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
80 FR 51296 - Colorado; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
80 FR 51294 - West Virginia; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
80 FR 51293 - Technical Mapping Advisory CouncilPDF
80 FR 51198 - Foreign-Trade Zone 50-Long Beach, California; Application for Expansion of Subzone 50H; Tesoro Refining and Marketing Company, LLCPDF
80 FR 51300 - Notice of Availability of Record of Decision for the White River Field Office Oil and Gas Development Resource Management Plan Amendment, ColoradoPDF
80 FR 51198 - Certain Cold-Rolled Steel Flat Products From Brazil, the People's Republic of China, India, Japan, the Republic of Korea, the Netherlands, the Russian Federation, and the United Kingdom: Initiation of Less-Than-Fair-Value InvestigationsPDF
80 FR 51206 - Certain Cold-Rolled Steel Flat Products From Brazil, India, the People's Republic of China, the Republic of Korea, and the Russian Federation: Initiation of Countervailing Duty InvestigationsPDF
80 FR 51291 - Information Collection Request to Office of Management and BudgetPDF
80 FR 51323 - In the Matter of Dr. Bradley D. BastowPDF
80 FR 51326 - In the Matter of Entergy Louisiana, LLC; Waterford Steam Electric Station, Unit 3PDF
80 FR 51329 - In the Matter of Entergy Gulf States Louisiana, LLC; River Bend Station, Unit 1PDF
80 FR 51290 - Information Collection Request to Office of Management and BudgetPDF
80 FR 51312 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection: Office of Justice Programs Solicitation TemplatePDF
80 FR 51125 - Security Zone; Martha's Vineyard, MassachusettsPDF
80 FR 51309 - Supercalendered Paper From Canada; Scheduling of the Final Phase of a Countervailing Duty InvestigationPDF
80 FR 51310 - Preserved Mushrooms from Chile, China, India, and Indonesia; DeterminationPDF
80 FR 51144 - Fisheries of the Northeastern United States; Small-Mesh Multispecies Fishery; Adjustment to the Northern Red Hake Inseason Possession LimitPDF
80 FR 51304 - Notice of Final Action: Crude Helium Sale and Auction for Fiscal Year 2016 DeliveryPDF
80 FR 51251 - Combined Notice of FilingsPDF
80 FR 51258 - Notice of Agreements FiledPDF
80 FR 51248 - Notice of Public Hearing and Business Meeting; September 15-16, 2015PDF
80 FR 51252 - Commission Information Collection Activities (FERC-912); Comment Request; ExtensionPDF
80 FR 51251 - Longreach Energy, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
80 FR 51314 - Notice of Proposed Exemption Involving Deutsche Bank AG (Deutsche Bank or the Applicant); Located in Frankfurt, GermanyPDF
80 FR 51331 - Agency Forms Submitted for OMB Review, Request for CommentsPDF
80 FR 51280 - Agency Information Collection Request. 60-Day Public Comment RequestPDF
80 FR 51297 - Endangered and Threatened Wildlife and Plants; Recovery Plans for the Pallid Manzanita and the Baker's LarkspurPDF
80 FR 51196 - Notice of Intent To Request an Early Revision and Extension of a Currently Approved Information CollectionPDF
80 FR 51258 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
80 FR 51349 - Elizabeth Betsy Pope d/b/a Eastgate Laboratory Testing; Public Interest Exclusion OrderPDF
80 FR 51250 - Environmental Management Site-Specific Advisory Board, NevadaPDF
80 FR 51250 - Application to Export Electric Energy; Vitol Inc.PDF
80 FR 51308 - Notice To Extend the Public Comment Period for the Bay Delta Conservation Plan/California WaterFix, Sacramento, CA; Partially Recirculated Draft Environmental Impact Report/Supplemental Draft Environmental Impact StatementPDF
80 FR 51302 - Notice of Public Meeting, Dakotas Resource Advisory Council MeetingPDF
80 FR 51306 - Meeting of the California Desert District Advisory CouncilPDF
80 FR 51277 - Use of Rare Pediatric Disease Priority Review Voucher; Approval of a Drug ProductPDF
80 FR 51280 - Surrogate Endpoints for Clinical Trials in Kidney Transplantation; Notice of Public Workshop; CorrectionPDF
80 FR 51234 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
80 FR 51233 - Pacific Fishery Management Council; Public MeetingsPDF
80 FR 51351 - Additional Designations, Foreign Narcotics Kingpin Designation ActPDF
80 FR 51211 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Kodiak Ferry Terminal and Dock Improvements ProjectPDF
80 FR 51297 - Rental Assistance Demonstration (RAD)-Alternative Requirements or Waivers: Waiving the Minimum Rent and Security Deposit Requirements for the Housing Authority of Baltimore City's Specified RAD ProjectsPDF
80 FR 51173 - Commercial Diving Operations-Reopening of Comment PeriodPDF
80 FR 51328 - Information Collection: NRC Form 790 Classification RecordPDF
80 FR 51296 - 60-Day Notice of Proposed Information Collection: Builder's Certification of Plans, Specifications and SitePDF
80 FR 51249 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; NPEFS 2015-2017: Common Core of Data (CCD) National Public Education Financial SurveyPDF
80 FR 51278 - Science Board to the Food and Drug Administration; Notice of MeetingPDF
80 FR 51300 - Renewal of Agency Information Collection for Bureau of Indian Education Collection Activities; Request for CommentsPDF
80 FR 51289 - National Institute of Dental & Craniofacial Research; Notice of Closed MeetingPDF
80 FR 51289 - Office of the Director, Office of Science Policy, Office of Biotechnology Activities; Notice of MeetingPDF
80 FR 51248 - Defense Acquisition University Board of Visitors; Notice of Federal Advisory Committee MeetingPDF
80 FR 51272 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
80 FR 51273 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
80 FR 51274 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
80 FR 51247 - Notice of Availability for a Finding of No Significant Impact for the Environmental Assessment Addressing the Upgrade and Storage of Beryllium at the DLA Strategic Materials Depot in Hammond, INPDF
80 FR 51263 - Pinger, Inc.; Analysis of Proposed Consent Order To Aid Public CommentPDF
80 FR 51264 - One Industries Corp.; Analysis of Proposed Consent Order To Aid Public CommentPDF
80 FR 51266 - IOActive, Inc.; Analysis of Proposed Consent Order To Aid Public CommentPDF
80 FR 51267 - Just Bagels Manufacturing, Inc.; Analysis of Proposed Consent Order To Aid Public CommentPDF
80 FR 51260 - Jubilant Clinsys, Inc.; Analysis of Proposed Consent Order To Aid Public CommentPDF
80 FR 51269 - NAICS Association, LLC; Analysis of Proposed Consent Order To Aid Public CommentPDF
80 FR 51261 - Contract Logix, LLC; Analysis of Proposed Consent Order to Aid Public CommentPDF
80 FR 51270 - Forensics Consulting Solutions, LLC; Analysis of Proposed Consent Order to Aid Public CommentPDF
80 FR 51258 - SteriMed Medical Waste Solutions; Analysis of Proposed Consent Order To Aid Public CommentPDF
80 FR 51257 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
80 FR 51308 - Certain Windscreen Wipers and Components Thereof Institution of InvestigationPDF
80 FR 51276 - Notice of Intent To Award a Single Source Non-Competing Continuation Cooperative Agreement for two Alzheimer's Disease Supportive Services Program (ADSSP) ProjectsPDF
80 FR 51332 - Self-Regulatory Organizations; BATS Y-Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.22 To Describe the Market Data Product BYX Book ViewerPDF
80 FR 51334 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Proposed Rule Change, as Modified by Amendment No. 1, Amending Certain of Its Disciplinary Rules To Facilitate the Reintegration of Certain Regulatory Functions From Financial Industry Regulatory Authority, Inc.PDF
80 FR 51342 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Arca Equities Schedule of Fees and Charges for Exchange Services To Modify the Credits the Exchange Provides for Routing Certain Orders to the New York Stock Exchange LLCPDF
80 FR 51340 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of BATS Exchange, Inc.PDF
80 FR 51343 - Self-Regulatory Organizations; Chicago Mercantile Exchange Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Expand the Listing Schedule for the Urea (Granular) FOB US Gulf Coast Swaps (Clearing Only) ContractPDF
80 FR 51299 - Endangered Species; Receipt of Applications for PermitPDF
80 FR 51275 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
80 FR 51254 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Transportation Conformity Determinations for Federally Funded and Approved Transportation Plans, Programs and Projects (Renewal)PDF
80 FR 51307 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
80 FR 51281 - Notice To Propose the Redesignation of the Service Delivery Area for the Wampanoag Tribe of Gay Head (Aquinnah)PDF
80 FR 51277 - Receipt of Notice That a Patent Infringement Complaint Was Filed Against a Biosimilar ApplicantPDF
80 FR 51322 - Proposed Extension of Existing Collection; Comment RequestPDF
80 FR 51193 - Pacific Island Pelagic Fisheries; 2015 U.S. Territorial Longline Bigeye Tuna Catch LimitsPDF
80 FR 51321 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Labor Exchange Reporting SystemPDF
80 FR 51152 - Air Plan Approval; IL; MN; Determinations of Attainment of the 2008 Lead Standard for Chicago and EaganPDF
80 FR 51127 - Air Plan Approval; IL; MN; Determinations of Attainment of the 2008 Lead Standard for Chicago and EaganPDF
80 FR 51131 - Approval and Promulgation of Air Quality Implementation Plans; State of Missouri; Cross-State Air Pollution RulePDF
80 FR 51151 - Approval and Promulgation of Air Quality Implementation Plans; State of Missouri; Cross-State Air Pollution RulePDF
80 FR 51136 - Air Plan Approval; Michigan and Wisconsin; 2006 PM2.5PDF
80 FR 51156 - Air Plan Approval; Michigan and Wisconsin; 2006 PM2.5PDF
80 FR 51313 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Supplemental Information on Water Quality ConsiderationsPDF
80 FR 51310 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Office of Human Resources and Professional Development Student and Supervisor Training Validation SurveysPDF
80 FR 51312 - Agency Information Collection Activities; Proposed eCollection eComments Requested; List of Responsible PersonsPDF
80 FR 51311 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Strategic Planning Environmental Assessment OutreachPDF
80 FR 51350 - Agency Information Collection Activities: Information Collection Renewal; Submission for OMB Review; Customer Complaint FormPDF
80 FR 51278 - Agency Information Collection Activities; Proposed Collection; Comment Request; Dietary Supplement Labeling Requirements and Recommendations Under the Dietary Supplement and Nonprescription Drug Consumer Protection ActPDF
80 FR 51146 - Nicotine Exposure Warnings and Child-Resistant Packaging for Liquid Nicotine, Nicotine-Containing E-Liquid(s), and Other Tobacco Products; Request for Comments; Extension of Comment PeriodPDF
80 FR 51197 - Agenda and Notice of Public Meeting of the Montana Advisory CommitteePDF
80 FR 51121 - Establishment of Class D and Class E Airspace; Aurora, ORPDF
80 FR 51235 - Endangered and Threatened Wildlife and Plants; Notice of 12-Month Finding on a Petition To List the Orange Clownfish as Threatened or Endangered Under the Endangered Species ActPDF
80 FR 51288 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed MeetingPDF
80 FR 51288 - Center for Scientific Review; Notice of Closed MeetingsPDF
80 FR 51153 - Approval and Promulgation of Implementation Plans; California; San Joaquin Valley Unified Air Pollution Control District; Employer Based Trip Reduction ProgramsPDF
80 FR 51147 - Revision to the California State Implementation Plan; San Joaquin Valley; Demonstration of Creditable Emission Reductions from Economic Incentive ProgramsPDF
80 FR 51157 - Approval and Promulgation of Implementation Plans; Florida; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality StandardPDF
80 FR 51167 - Air Plan Approval; North Carolina; Conflict of Interest Infrastructure RequirementsPDF
80 FR 51152 - Approval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to South Dakota Administrative Code; CorrectionPDF
80 FR 51256 - Environmental Impact Statements; Notice of AvailabilityPDF
80 FR 51123 - Adoption of Updated EDGAR Filer ManualPDF
80 FR 51301 - Notice of Intent To Amend the Resource Management Plan for the Headwaters Forest Reserve, California, and Prepare an Associated Environmental AssessmentPDF
80 FR 51303 - Notice of Availability of the Record of Decision for the Grand Junction Field Office Approved Resource Management Plan/Final Environmental Impact Statement, ColoradoPDF
80 FR 51174 - Comment Sought on Scoping Document Under Section 106 of the National Historic Preservation ActPDF
80 FR 51180 - Hours of Service Recordkeeping; Automated RecordkeepingPDF
80 FR 51348 - Office of Hazardous Materials Safety; Hazardous Materials: Notice of Application for Special PermitsPDF
80 FR 51347 - Office of Hazardous Materials Safety; Hazardous Materials: Delayed ApplicationsPDF
80 FR 51355 - Pesticides; Certification of Pesticide ApplicatorsPDF

Issue

80 163 Monday, August 24, 2015 Contents Agriculture Agriculture Department See

National Agricultural Statistics Service

Broadcasting Broadcasting Board of Governors NOTICES Meetings; Sunshine Act, 51197 2015-21056 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51272-51275 2015-20811 2015-20812 2015-20813 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51275-51276 2015-20787 Civil Rights Civil Rights Commission NOTICES Meetings: Montana Advisory Committee, 51197-51198 2015-20758 Coast Guard Coast Guard RULES Security Zones: Martha's Vineyard, MA, 51125-51127 2015-20865 PROPOSED RULES Commercial Diving Operations: Reopening of Comment Period, 51173-51174 2015-20825 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51290-51292 2015-20877 2015-20867 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Community Living Administration Community Living Administration NOTICES Single Source Non-Competing Continuation Cooperative Agreements: Alzheimer's Disease Supportive Services Program Projects, 51276-51277 2015-20796 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Customer Complaint Form, 51350-51351 2015-20762 Defense Department Defense Department NOTICES Environmental Assessments; Availability, etc.: Upgrade and Storage of Beryllium at the Defense Logistics Agency Strategic Materials Depot in Hammond, IN, 51247-51248 2015-20810 Meetings: Defense Acquisition University Board of Visitors, 51248 2015-20814 Delaware Delaware River Basin Commission NOTICES Meetings: Public Hearings, 51248-51249 2015-20856 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Public Education Financial Survey 2015-2017—Common Core of Data National Public Education Financial Survey, 51249-51250 2015-20821 Employee Benefits Employee Benefits Security Administration NOTICES Proposed Exemptions: Deutsche Bank AG, 51314-51321 2015-20852 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Applications to Export Electric Energy: Vitol, Inc., 51250-51251 2015-20840 Meetings: Environmental Management Site-Specific Advisory Board, Nevada, 51250 2015-20841
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: IL; MN; Determinations of Attainment of the 2008 Lead Standard for Chicago and Eagan, 51127-51131 2015-20775 Michigan and Wisconsin; 2006 PM2.5 NAAQS PSD and Visibility Infrastructure SIP Requirements, 51136-51141 2015-20771 Missouri; Cross-State Air Pollution, 51131-51136 2015-20774 Authorization of State Hazardous Waste Management Program Revisions: North Carolina, 51141-51144 2015-20907 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; San Joaquin Valley Unified Air Pollution Control District; Employer Based Trip Reduction Programs, 51153-51156 2015-20750 California; San Joaquin Valley; Demonstration of Creditable Emission Reductions from Economic Incentive Programs, 51147-51151 2015-20749 Florida; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 51157-51167 2015-20748 IL; MN; Determinations of Attainment of the 2008 Lead Standard for Chicago and Eagan, 51152-51153 2015-20776 Michigan and Wisconsin; 2006 PM2.5 NAAQS PSD and Visibility Infrastructure SIP Requirements, 51156-51157 2015-20769 Missouri; Cross-State Air Pollution, 51151-51152 2015-20773 North Carolina; Conflict of Interest Infrastructure Requirements, 51167-51170 2015-20747 South Dakota; Revisions to South Dakota Administrative Code; Correction, 51152 2015-20740 Approval and Promulgation of State Plans for Designated Facilities: New York, 51170-51172 2015-20904 Authorization of State Hazardous Waste Management Program Revisions: North Carolina, 51172 2015-20908 Pesticides: Certification of Pesticide Applicators, 51356-51422 2015-19988 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Transportation Conformity Determinations for Federally Funded and Approved Transportation Plans, Programs and Projects, 51254-51255 2015-20786 Environmental Impact Statements; Availability, etc.; Weekly Receipts, 51256-51257 2015-20728 Meetings: Board of Scientific Counselors Homeland Security Subcommittee, 51255-51256 2015-20901 Proposed Issuance of the NPDES General Permit for Offshore Seafood Processors in Federal Waters off the Washington and Oregon Coast, 51253-51254 2015-20902 Farm Credit Farm Credit Administration RULES Organization: Mergers, Consolidations, and Charter Amendments of Banks or Associations, 51113-51121 2015-20896 Federal Aviation Federal Aviation Administration RULES Establishment of Class D and Class E Airspace: Aurora, OR, 51121-51123 2015-20757 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certification—Airmen Other than Flight Crewmembers, Subpart C, Aircraft Dispatchers and App. A Aircraft Dispatcher Courses, 51347 2015-20915 Certification of Airmen for the Operation of Light-Sport Aircraft, 51346 2015-20906 Recording of Aircraft Conveyances and Security Documents, 51345-51346 2015-20909 Release of Airport Property: Gillespie County Airport, Fredericksburg, TX, 51347 2015-20916 Federal Communications Federal Communications Commission PROPOSED RULES Scoping Document under Section 106 of the National Historic Preservation Act, 51174-51180 2015-20698 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51257-51258 2015-20799 Federal Emergency Federal Emergency Management Agency NOTICES Major Disaster Declarations: Colorado; Amendment No. 1, 51296 2015-20886 Kansas; Amendment No. 1, 51295 2015-20887 Kentucky, 51292-51293 2015-20889 Missouri, 51293 2015-20910 Nebraska; Amendment No. 1, 51295 2015-20905 West Virginia; Amendment No. 1, 51294 2015-20885 West Virginia; Amendment No. 3, 51295 2015-20891 Meetings: Technical Mapping Advisory Council, 51293-51294 2015-20884 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51252-51253 2015-20855 Combined Filings, 51251 2015-20860 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Longreach Energy, LLC, 51251-51252 2015-20854 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 51258 2015-20859 Federal Railroad Federal Railroad Administration PROPOSED RULES Hours of Service Recordkeeping: Automated Recordkeeping, 51180-51192 2015-20663 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 51258 2015-20843 Federal Trade Federal Trade Commission NOTICES Proposed Consent Orders: Contract Logix, LLC, 51261-51263 2015-20803 Forensics Consulting Solutions, LLC, 51270-51272 2015-20802 IOActive, Inc., 51266-51267 2015-20807 Jubilant Clinsys, Inc., 51260-51261 2015-20805 Just Bagels Manufacturing, Inc., 51267-51269 2015-20806 NAICS Association, LLC, 51269-51270 2015-20804 One Industries Corp., 51264-51266 2015-20808 Pinger, Inc., 51263-51264 2015-20809 SteriMed Medical Waste Solutions, 51258-51260 2015-20800 Fish Fish and Wildlife Service NOTICES Endangered and Threatened Wildlife and Plants: Recovery Plans for the Pallid Manzanita and the Baker's Larkspur, 51297-51298 2015-20846 Endangered Species; Permit Applications, 51299-51300 2015-20788 Food and Drug Food and Drug Administration PROPOSED RULES Nicotine Exposure Warnings and Child-Resistant Packaging for Liquid Nicotine, Nicotine-Containing E-Liquid(s), and Other Tobacco Products, 51146-51147 2015-20759 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Dietary Supplement Labeling Requirements and Recommendations under the Dietary Supplement and Nonprescription Drug Consumer Protection Act, 51278-51280 2015-20760 Meetings: Science Board to the Food and Drug Administration, 51278 2015-20820 Surrogate Endpoints for Clinical Trials in Kidney Transplantation; Public Workshop; Correction, 51280 2015-20832 Patent Infringements: Complaint Against a Biosimilar Applicant, 51277-51278 2015-20780 Priority Review Vouchers: Rare Pediatric Disease; Drug Product Approval, 51277 2015-20833 Foreign Assets Foreign Assets Control Office NOTICES Foreign Narcotics Kingpin Designation Act; Additional Designations, 51351-51353 2015-20829 Foreign Trade Foreign-Trade Zones Board NOTICES Subzone Expansion Applications: Tesoro Refining and Marketing Company, LLC, Foreign-Trade Zone 50, Long Beach, CA, 51198 2015-20883 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Community Living Administration

See

Food and Drug Administration

See

Indian Health Service

See

National Institutes of Health

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51280-51281 2015-20848
Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Builder's Certification of Plans, Specifications and Site, 51296 2015-20823 Rental Assistance Demonstration: Minimum Rent and Security Deposit Requirements for the Housing Authority of Baltimore City's Specified Rental Assistance Demonstration Projects; Waiver, 51297 2015-20826 Indian Affairs Indian Affairs Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51300 2015-20817 Indian Health Indian Health Service NOTICES Redesignation of Service Delivery Area: Wampanoag Tribe of Gay Head (Aquinnah), Dukes County, MA, 51281-51288 2015-20781 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

See

National Park Service

See

Reclamation Bureau

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Cold-Rolled Steel Flat Products from Brazil, India, the People's Republic of China, the Republic of Korea, and the Russian Federation, 51206-51211 2015-20879 Certain Cold-Rolled Steel Flat Products from Brazil, the People's Republic of China, India, Japan, the Republic of Korea, the Netherlands, the Russian Federation, and the United Kingdom, 51198-51205 2015-20881 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Supercalendered Paper from Canada, 51309-51310 2015-20864 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Windscreen Wipers and Components Thereof, 51308-51309 2015-20797 Preserved Mushrooms from Chile, China, India, and Indonesia, 51310 2015-20863 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: List of Responsible Persons, 51312-51313 2015-20764 Office of Human Resources and Professional Development Student and Supervisor Training Validation Surveys, 51310-51311 2015-20765 Office of Justice Programs Solicitation Template, 51312 2015-20866 Strategic Planning Environmental Assessment Outreach, 51311-51312 2015-20763 Supplemental Information on Water Quality Considerations, 51313 2015-20766 Labor Department Labor Department See

Employee Benefits Security Administration

See

Workers Compensation Programs Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Labor Exchange Reporting System, 51321-51322 2015-20777
Land Land Management Bureau NOTICES Crude Helium Sale and Auction for Fiscal Year 2016 Delivery, 51304-51306 2015-20861 Environmental Assessments; Availability, etc.: Resource Management Plan for the Headwaters Forest Reserve, CA, 51301-51302 2015-20711 Meetings: California Desert District Advisory Council, 51306-51307 2015-20836 Dakotas Resource Advisory Council, 51302-51303 2015-20838 Records of Decision: Grand Junction Field Office Approved Resource Management Plan, Colorado, 51303-51304 2015-20706 White River Field Office Oil and Gas Development Resource Management Plan Amendment, Colorado, 51300-51301 2015-20882 National Agricultural National Agricultural Statistics Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51196-51197 2015-20845 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 51288 2015-20752 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 51288-51289 2015-20753 National Institute of Dental and Craniofacial Research, 51289 2015-20816 Office of the Director, Office of Science Policy, Office of Biotechnology Activities, 51289 2015-20815 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Small-Mesh Multispecies Fishery; Adjustment to the Northern Red Hake Inseason Possession Limit, 51144-51145 2015-20862 PROPOSED RULES Pacific Island Pelagic Fisheries: 2015 U.S. Territorial Longline Bigeye Tuna Catch Limits, 51193-51195 2015-20778 NOTICES Endangered and Threatened Wildlife and Plants; Orange Clownfish; 12-Month Finding on Petition to List as Threatened or Endangered, 51235-51247 2015-20754 Meetings: Mid-Atlantic Fishery Management Council, 51234-51235 2015-20831 Pacific Fishery Management Council, 51233-51234 2015-20830 Takes of Marine Mammals Incidental to Specified Activities: Kodiak Ferry Terminal and Dock Improvements Project, 51211-51233 2015-20828 National Park National Park Service NOTICES National Register of Historic Places: Notification of Pending Nominations and Related Actions, 51307 2015-20783 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Classification Record, 51328-51329 2015-20824 Confirmatory Orders: Dr. Bradley D. Bastow, 51323-51326 2015-20874 License Transfers: Entergy Gulf States Louisiana, LLC; River Bend Station, Unit 1, 51329-51330 2015-20868 Entergy Louisiana, LLC; Waterford Steam Electric Station, Unit 3, 51326-51328 2015-20869 Meetings; Sunshine Act, 51330-51331 2015-21055 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Special Permit Applications, 51348-51349 2015-20482 Special Permit Applications: Delayed Applications, 51347-51348 2015-20480 Railroad Retirement Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51331-51332 2015-20851 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Bay Delta Conservation Plan/California WaterFix, Sacramento, CA, 51308 2015-20839 Securities Securities and Exchange Commission RULES Adoption of Updated EDGAR Filer Manual, 51123-51125 2015-20720 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 51340-51342 2015-20790 BATS Y-Exchange, Inc., 51332-51334 2015-20793 Chicago Mercantile Exchange Inc., 51343-51345 2015-20789 New York Stock Exchange, LLC, 51334-51340 2015-20792 NYSE Arca, Inc., 51342-51343 2015-20791 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

See

Pipeline and Hazardous Materials Safety Administration

NOTICES Public Interest Exclusion Orders: Elizabeth Betsy Pope d/b/a Eastgate Laboratory Testing, 51349-51350 2015-20842
Treasury Treasury Department See

Comptroller of the Currency

See

Foreign Assets Control Office

Workers' Workers Compensation Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 51322-51323 2015-20779 Separate Parts In This Issue Part II Environmental Protection Agency, 51356-51422 2015-19988 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

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80 163 Monday, August 24, 2015 Rules and Regulations FARM CREDIT ADMINISTRATION 12 CFR Part 611 RIN 3052-AC72 Organization; Mergers, Consolidations, and Charter Amendments of Banks or Associations AGENCY:

Farm Credit Administration.

ACTION:

Final rule.

SUMMARY:

The Farm Credit Administration (FCA, Agency, we, or our) amends existing regulations related to mergers and consolidations of Farm Credit System (FCS or System) banks and associations to clarify the merger review and approval process and incorporate existing practices in the regulations. The final rule identifies when the FCA statutory 60-day review period begins, requires that only independent parties validate ballots and tabulate stockholder votes on mergers or consolidations, requires institutions to hold informational meetings on proposed mergers when circumstances warrant, explains the reconsideration petition process, and identifies the voting record date list. The final rule updates cross-references in the existing regulations, incorporates cross-references to stockholder voting rules contained elsewhere in part 611, and clarifies and updates terminology.

DATES:

This regulation shall become effective no earlier than 30 days after publication in the Federal Register during which either or both Houses of Congress are in session. The FCA will publish a notice of the effective date in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

Shirley Hixson, Policy Analyst, Office of Regulatory Policy, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4318, TTY (703) 883-4056, or Laura McFarland, Senior Counsel, Office of General Counsel, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4020, TTY (703) 883-4056.

SUPPLEMENTARY INFORMATION: I. Objectives

The objectives of the final rule are to:

• Clarify the FCA's review and approval process related to proposed plans of merger in order to facilitate an efficient and timely response;

• Enhance the efficiency and effectiveness of the reconsideration petition process for stockholders and provide clarity to System banks and associations on providing a stockholder list in the reconsideration process;

• Improve security and confidentiality in the voting process on mergers through the use of independent third-party tabulators; and

• Enhance existing regulations by updating terminology and making other grammatical changes.

II. Background

The Farm Credit Act of 1971, as amended (Act),1 identifies the FCA as the safety and soundness regulator of the Farm Credit System and authorizes the FCA to issue regulations to implement the provisions of the Act.2 The Act also gives the FCA several other authorities, including, but not limited to, approving System institution mergers.3 FCA regulations in subparts F and G of part 611 address the procedures and stockholder disclosure requirements for Farm Credit banks and associations proposed plans of merger or consolidation (collectively, merger(s)), and charter amendments. We issued a proposed rule to amend our merger and charter amendment regulations on January 20, 2015 (80 FR 2614). The comment period for the proposed rule closed on April 20, 2015.

1 Public Law 92-181, 85 Stat. 583.

2 12 U.S.C. 2252.

3 12 U.S.C. 2289a through 2279g.

III. Comments and Our Responses

We received 3 comment letters on the proposed rule, one each from: The Independent Community Bankers of America (ICBA), the Farm Credit Council (FCC) on behalf of its membership, and AgriBank, FCB. All commenters expressed general support for the rule but offered specific comments on mergers and territorial adjustments. No comments were made on the definitions or charter amendment rules.

All provisions of the rule are finalized as proposed, except as discussed in our response to comments below.

A. General Comments Received 1. FCA Role in Mergers

AgriBank made a general comment on the role of FCA in determining the structure of System institutions, stating that FCA should limit itself to a safety and soundness review of mergers and leave all other considerations to the judgment of shareholders. We decline the commenter's suggestion that we limit our role in mergers to that of a safety and soundness reviewer. The Act requires the FCA to approve all System mergers and our merger approval authority comes with responsibilities beyond a safety and soundness review. Beyond approving the merger itself, we must also ensure that disclosure documents provided to stockholders comply with our regulations, voting procedures comply with the Act, and reconsideration petitions are properly addressed. We also have responsibility under the Act to issue and amend the charters of System institutions, which are often affected in mergers.4

4 12 U.S.C. 2002(a) and 2252.

2. Merger Rules Versus Termination Rules

The ICBA made a general remark that it would like our merger and consolidation regulations to mirror those existing for institutions seeking termination from the System. The ICBA gave specific examples of where our merger rules could be changed to resemble our termination rules. The ICBA explained that it believes mergers are similar to terminations as a merger results in one or more institutions terminating its existence.

It is not appropriate to change our merger rules to have them substantially resemble our termination rules. Mergers and terminations are different events that require different rules. Institutions that seek to leave the System are relinquishing their Government-sponsored enterprise (GSE) status to enter the private banking sector. Upon termination from the System, these institutions are no longer subject to FCA regulation and oversight. Further, that institution's business model may also change from a cooperative structure, meaning its members may no longer be member-borrowers in their institution. Conversely, System institutions seeking to merge are changing from two or more FCS institutions to one institution, which are still subject to FCA regulation and oversight. By merging, these institutions do not surrender their GSE status or cooperative business model.

3. Limiting Mergers

The ICBA requested a moratorium on future mergers within the System, arguing that allowing more mergers will only increase the size of institutions and reduce their effectiveness as “locally oriented lenders serving farmers and ranchers.” In the alternative, the ICBA asked that we limit the number of mergers that may occur within a close timeframe. The ICBA explained that multiple mergers occurring at the same time could have “dramatic impact on the makeup and structure” of the System, particularly in regards to expanded territories.

We decline the request to place a moratorium on mergers within the System. Each institution decides, independent of FCA, whether to pursue a merger. Voting shareholders in these institutions then must approve the merger through a vote. If the majority of the votes on the merger from voting shareholders in any of the merging institutions are against the merger, the merger may not proceed. Therefore, the voting shareholders of the System decide whether larger institutions reduce the System's effectiveness. Notwithstanding this, we do consider the impact a merger may have on the overall safety and soundness of the System during our review.

The ICBA also remarked that multiple mergers, and large ones at that, lead to potential conflicts among the merging institutions' management as the managers often obtain financial gain or further personal agendas from the mergers rather than give priority consideration to the stockholders' best interest. As discussed previously, voting shareholders of the merging institutions decide whether the merger is in their best interest. To ensure the stockholders are fully informed before casting their votes, FCA is required by section 7.11 of the Act to review the disclosures made to voting stockholders by the management of the merging institutions. As part of our review of disclosure information, we ensure specific disclosures are made regarding changes in staffing and compensation benefits resulting from the planned merger.

Finally, the ICBA asked FCA to consider the impact to Other Financial Institutions (OFIs) during a merger and whether a merger will disadvantage the OFIs. We agree with the ICBA's point that continuing service to authorized borrowers, including OFIs, must be considered as part of a merger of Farm Credit banks. A merger plan that could disadvantage any borrowers authorized to receive funding from a Farm Credit bank would be scrutinized and questioned through FCA's merger review process.

4. Public Involvement in Mergers

The ICBA asked that we require institutions to post merger documents in the public, non-private, section of the merging institutions' Web sites, similar to what our termination rules require. We have not made this change. In a termination action, an institution is leaving the System, changing regulators, and giving up its GSE status to become a commercial bank, savings association, or similar type of financial lender. It is because a termination action has a direct impact on both the shareholders of the terminating institution and the general public that we require public disclosures in termination actions. A merger of System institutions does not have a direct impact on the general public, so detailed public disclosures are considered unnecessary. However, we do require in § 611.1122(e) that merging institutions provide extensive disclosure of merger documents to their stockholders.

5. Regulatory Flexibility Act

The FCC questioned our Regulatory Flexibility Act (RFA) 5 certification. In the proposed rule, we certified that the rule would not have a significant economic impact on a large number of small entities. Our certification considered each Farm Credit bank together with “its affiliated associations.” The FCC objected to our combining associations with Farm Credit banks, stating that because each institution has to comply with the regulatory requirements each should be considered individually for purposes of identifying economic impact.

5 5 U.S.C. 601 et seq.

The RFA definition of a small entity incorporates the Small Business Administration (SBA) definition of a “small business concern,” including its size standards. A small business concern is one independently owned and operated, and not dominant in its field of operation. For purposes of the RFA, the interrelated ownership, supervisory control, and contractual relationship between associations and their funding banks are the basis for FCA's conclusion to treat them as a single entity. Therefore, System institutions do not satisfy the RFA definition of “small entities.”

B. Comments on Merger and Consolidation Procedures [Subparts F and G] 1. FCA Authorities in Mergers [§§ 611.1000(c) and 611.1120(c)]

The FCC agreed with the technical updates to recognize changes in System institution formations and the use of the term “FCA” instead of “Chairman.” However, the FCC asked that the rule at § 611.1120(c), which discusses the authority of FCA to amend association and service corporation charters, more closely resemble the related provision for Farm Credit banks in § 611.1000(c). Specifically, the FCC asked that § 611.1120(c) include the phrase “in accordance with the provisions of the Act.”

In updating the provision in § 611.1120(c) on FCA-initiated charter amendments for associations, we relied upon section 5.17(a)(2) of the Act, which provides that FCA may “where necessary or appropriate to carry out the policy and objectives of this Act” amend the charters of all System institutions. As the FCC noted, the language in § 611.1000(c) regarding FCA-initiated charter amendments for Farm Credit banks contains the phrase “in accordance with the Act” but this same phrase is missing from § 611.1120(c). As explained in the 1988 rulemaking (53 FR 50381, Dec. 15, 1988), the phrase “in accordance with the Act” was added to § 611.1000(c)—even though considered at the time unnecessary—to respond to comments requesting the rule retain specific language that had been deleted from the statute by the Agricultural Credit Technical Corrections Act of 1988 (Pub. L. 100-399). As more than 25 years has passed since that language was removed from the Act, we do not believe it necessary to keep it in our rules any longer. However, the lack of this language in our rules does not mean the FCA is not required to exercise its functions and powers in a manner that is consistent with the Act. That is an implicit requirement in every provision governing FCA actions. For these reasons, and to avoid potential confusion, we are removing the language from § 611.1000(c) and replacing it with the language used in § 611.1120(c).

2. Board of Director Actions in Mergers [§ 611.1122(a)]

The ICBA asked that we require an institution's board of directors to hold three votes on every merger, similar to our termination rules. As previously stated, we decline to change our merger rules in a manner that would have them substantially resemble our termination rule. Terminations and mergers are different events that require different rules. Our termination rules require a board of directors to vote on a commencement resolution to terminate (§ 611.1210), a plan of termination resolution (§ 611.1220), and a resolution reaffirming support for the termination (§ 611.1235). Our merger rule at § 611.1122(a)(3)(i) currently provides for the boards of directors of the merging institutions to vote on a merger resolution. After the boards approve the merger resolution, the associations jointly submit a request to the funding bank(s). Once the plan of merger is reviewed and approved by the funding bank(s), the request is submitted to the FCA for review. When the proposed merger is between two or more Farm Credit banks, the banks' boards approve the resolution and the request is submitted to the FCA.

3. Merger Analysis and Studies [§ 611.1122(c)]

The ICBA asked that we require independent analysis and other studies on proposed mergers. The ICBA explained that as this is a requirement in our termination rules, an infrequent event, its importance is greater in the more frequent mergers and consolidations. We appreciate the suggestion and note that we had proposed a similar requirement in this rulemaking at § 611.1122(c). The rule as final provides that at any time during the review process the FCA may require merging institutions to submit any supplemental information we deem appropriate. This allows us to request additional documents, studies, analyses, or opinions that would provide information specific to the unique complexities of each proposed merger.

4. Informational Meetings [§ 611.1122(d)]

The FCC agreed that informational meetings identified in § 611.1122(d) may be useful, but expressed concern that FCA may use its authority in this area to make informational meetings mandatory in all cases. The FCC instead urged that FCA make the decision on a case-by-case basis and then only after considering all views on the necessity for any such meetings. We agree and did not intend for the proposed rule provision to automatically lead to the standardization of informational meetings. We have clarified the rule at § 611.1122(d) to explain that this authority will be exercised when considered appropriate for the merger under review.

AgriBank supported the § 611.1122(d) provision regarding FCA requiring informational meetings, but asked that each institution be left to determine how those meetings are conducted. Specifically, the bank commented that whether an informational meeting was held in-person or electronically should be left to the judgment of the institution. We do not believe that a regulation change is necessary. However in those instances when we require an informational meeting, we will work with the merging institutions to identify the most appropriate meeting format for the subject merger.

The ICBA also supported informational meetings, asking that they be timed to occur at least 60 days before the merger vote. The FCA declines to adopt the suggested 60-day timeframe. Merger requests include planned effective dates and those dates vary. As such, the effective date of a planned merger will likely influence the date of any required informational meeting, since those meetings would occur before both the merger vote and the effective date. As a result, setting a regulatory timeframe in which to hold informational meetings could create unnecessary compliance problems.

5. Stockholder Votes [§ 611.1122(d)(2) and (d)(3)]

The ICBA agreed with the requirement in § 611.1122(d)(2) that merger votes only be validated and tabulated by an independent third party. However, the ICBA asked that we copy our termination rule by expanding the quorum requirement in § 611.1122(d)(3) to specify that merger votes require at least 30 percent of voting stockholders be present (in person or by proxy) in order to hold a merger vote. Our merger rule at § 611.1122(d)(3) requires that a quorum be present before a merger vote is taken and each institution's bylaws determine what constitutes the quorum. We did not propose changes to the quorum requirements for merger votes as part of this rulemaking and believe such a consideration needs to be specifically open for comment before changing our regulations in this area. Thus, while we appreciate the ICBA's suggestion, we decline to make the suggested change to § 611.1122(d)(3) in this final rulemaking, but may consider it in future rulemakings.

6. Territorial Adjustments [§ 611.1124]

AgriBank commented on the existing provisions regarding territorial adjustments, specifically discussing those provisions in the existing rule dealing with how loans in a territory are transferred. The bank commented that it might not be necessary or desirable in every transfer of territory to include all loans and asked FCA to change the rule to permit either result. We did not propose changes to the loan transfer requirements for territorial adjustments as part of this rulemaking and believe the subject to have great impact on our territorial transfer regulations, capital requirements, and other safety and soundness concerns. We further believe the transfer of loans and the associated impact to shareholders merits specific solicitation of comment before considering a change in our current rules. Thus, we decline to make the suggested change to § 611.1124 in this final rulemaking, but may consider it in future rulemakings.

7. Stockholder Reconsiderations [§ 611.1126]

Commenters generally agreed with the reconsideration procedures identified in the rule. The ICBA expressed specific agreement with the requirement in § 611.1126(b) that shareholders pursuing the reconsideration of a merger vote be provided the voting record date list rather than the more expansive list of voting and nonvoting stockholders. The FCC generally supported the requirements of § 611.1126, but asked that institutions be given copies of reconsideration petitions. We do not believe it is appropriate to provide System institutions with copies of reconsideration petitions. We clarified in new § 611.1126(d) that institutions have no expectation of receiving a copy of the petition. As explained in the proposed rule, we do not believe Congress intended the institutions to have this information since the Act does not require that the petition be filed with the merging institutions. We also continue to believe that providing the names of stockholders signing a petition to their respective institutions may allow the institutions to infer how those stockholders voted on the proposed plan of merger, a result that would be contrary to the statutory right to confidential voting.6

6See 12 U.S.C. 2208.

The FCC also commented that it expected the FCA to “take appropriate steps to ensure the authenticity of” reconsideration petitions. The Act requires reconsideration petitions to be filed with the FCA. The FCA must determine if a filed petition satisfies statutory requirements, including determining if the petition was signed by the appropriate number of authorized stockholders. Since the primary concern of a petition is that it be signed by only those eligible to vote in the merger action, our accuracy in validating this aspect will be substantially dependent on the record date lists maintained by the merging institutions.

IV. Regulatory Flexibility Act

Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), FCA hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Each of the banks in the Farm Credit System, considered together with its affiliated associations, has assets and annual income in excess of the amounts that would qualify them as small entities. Therefore, Farm Credit System institutions are not “small entities” as defined in the Regulatory Flexibility Act.

List of Subjects in 12 CFR Part 611

Agriculture, Banks, banking, Rural areas.

For the reasons stated in the preamble, part 611 of chapter VI, title 12 of the Code of Federal Regulations is amended as follows:

PART 611—ORGANIZATION 1. The authority citation for part 611 continues to read as follows: Authority:

Secs. 1.2, 1.3, 1.4, 1.5, 1.12, 1.13, 2.0, 2.1, 2.2, 2.10, 2.11, 2.12, 3.0, 3.1, 3.2, 3.3, 3.7, 3.8, 3.9, 3.21, 4.3A, 4.12, 4.12A, 4.15, 4.20, 4.21, 4.25, 4.26, 4.27, 4.28A, 5.9, 5.17, 5.25, 7.0-7.13, 8.5(e) of the Farm Credit Act (12 U.S.C. 2002, 2011, 2012, 2013, 2020, 2021, 2071, 2072, 2073, 2091, 2092, 2093, 2121, 2122, 2123, 2124, 2128, 2129, 2130, 2142, 2154a, 2183, 2184, 2203, 2208, 2209, 2211, 2212, 2213, 2214, 2243, 2252, 2261, 2279a-2279f-1, 2279aa-5(e)); secs. 411 and 412 of Pub. L. 100-233, 101 Stat. 1568, 1638; sec. 414 of Pub. L. 100-399, 102 Stat. 989, 1004.

2. Section 611.100 is amended by: a. Redesignating paragraphs (b) through (g) as paragraphs (c) through (h); and b. Adding new paragraphs (b), (i) and (j) to read as follows:
§ 611.100 Definitions.

(b) FCA means the Farm Credit Administration.

(i) Voting record date or record date means the official date set by a Farm Credit institution whereby a stockholder must own voting stock in that institution in order to cast a vote.

(j) Voting record date list or record date list means the list of names, addresses, and classes of stock held by stockholders in the Farm Credit institution who are eligible to vote as of a specific voting record date.

3. Section 611.1000 is revised to read as follows:
§ 611.1000 General authority.

(a) An amendment to a Farm Credit bank charter may relate to any provision that is properly the subject of a charter, including, but not limited to, the name of the bank, the location of its offices, or the territory served.

(b) The FCA may make changes in the charter of a Farm Credit bank as may be requested by that bank and approved by the FCA pursuant to § 611.1010 of this part.

(c) The FCA may, on its own initiative, make changes in the charter of a Farm Credit bank, and any chartered service corporation thereof, where the FCA determines that the change is necessary to accomplish the purposes of the Act.

4. Section 611.1010 is revised to read as follows:
§ 611.1010 Farm Credit bank charter amendment procedures.

(a) A Farm Credit bank may recommend a charter amendment to accomplish any of the following actions:

(1) A merger or consolidation with any other Farm Credit bank or banks operating under title I or III of the Act;

(2) A transfer of territory with any other Farm Credit bank operating under the same title of the Act;

(3) A change to its name or location;

(4) Any other change that is properly the subject of a Farm Credit bank charter;

(b) Upon approval of an appropriate resolution by the Farm Credit bank board, the certified resolution, together with supporting documentation, must be submitted to the FCA for preliminary or final approval, as the case may be.

(c) The FCA will review the material submitted and either approve or disapprove the request. The FCA may require submission of any supplemental information and analysis it deems appropriate. If the request is for merger, consolidation, or transfer of territory, the approval of the FCA will be preliminary only, with final approval subject to a vote of the Farm Credit bank's stockholders.

(d) Following receipt of the FCA's written preliminary approval, the proposal must be submitted for approval to the voting stockholders of the Farm Credit bank. A proposal will be considered approved if agreed to by a majority of the voting stockholders of each Farm Credit bank voting, in person or by proxy, at a duly authorized stockholder meeting with each stockholder-association entitled to cast a number of votes equal to the number of the association's voting shareholders, unless another voting scheme has been approved by the FCA.

(e) Upon approval by the stockholders of the Farm Credit bank, the request for final approval and issuance of the appropriate charter or amendments to charter for the Farm Credit banks involved must be submitted to the FCA.

5. Section 611.1020 is revised to read as follows:
§ 611.1020 Requirements for mergers or consolidations of Farm Credit banks.

(a) As authorized under sections 7.0 and 7.12 of the Act, a Farm Credit bank may merge or consolidate with one or more Farm Credit banks operating under the same or different titles of the Act.

(b) The plan to merge or consolidate two or more Farm Credit banks is subject to the requirements of §§ 611.1122, 611.1123, and 611.1126 of this part, unless otherwise instructed by the FCA. In interpreting those sections, the phrase “Farm Credit bank(s)” will be read for the word “association(s)” and references to “funding bank” are to be ignored.

§ 611.1040 [Amended]
6. Section 611.1040 is amended by removing the word “shall” and adding in its place, the word “must” each place it appears. 7. Section 611.1120 is amended by: a. Removing the words “Farm Credit Administration” and adding in their place, the acronym “FCA” each place they appear in paragraph (b); and b. Revising paragraph (c).

The revision reads as follows:

§ 611.1120 General authority.

(c) The FCA may, on its own initiative, make changes in the charter of an agricultural credit association, Federal land bank association, or a production credit association, and any chartered service corporation thereof, where the FCA determines that the change is necessary to accomplish the purposes of the Act.

8. Section 611.1121 is revised to read as follows:
§ 611.1121 Association charter amendment procedures.

(a) An association that proposes to amend its charter must submit a request to its funding bank containing the following information:

(1) A statement of the provision(s) of the charter that the association proposes to amend and the proposed amendment(s);

(2) A statement of the reasons for the proposed amendment(s), the impact of the amendment(s) on the association and its stockholders, and the requested effective date of the amendment(s);

(3) A certified copy of the resolution of the board of directors of the association approving the amendment(s);

(4) Any additional information or documents that the association wishes to submit in support of the request or that may be requested by the funding bank.

(b) Upon receipt of a proposed amendment from an association, the funding bank must review the materials submitted and provide the association with its analysis of the proposal within a reasonable period of time. Concurrently, the funding bank must communicate its recommendation on the proposal to the FCA, including the reasons for the recommendation, and any analysis the bank believes appropriate. Following review by the bank, the association must transmit the proposed amendment with attachments to the FCA.

(c) Upon receipt of an association's request for a charter amendment, the FCA will review the materials submitted and either approve or disapprove the request. The FCA may require submission of any supplemental information and analysis it deems appropriate.

(d) The FCA will notify the association of its approval or disapproval of the amendment request, including a copy of the amended charter with the approval notification, and provide a copy of such communication to the funding bank.

9. Section 611.1122 is revised to read as follows:
§ 611.1122 Requirements for association mergers or consolidations.

(a) Where two or more associations plan to merge or consolidate, or where the funding bank board has adopted a reorganization plan for the associations in the district, the associations involved must jointly submit a request to the funding bank containing the following:

(1) In the case of a merger, a copy of the charter of the continuing association reflecting any proposed amendments. In the case of consolidation, a copy of the proposed charter of the new association;

(2) A statement of the reasons for the proposed merger or consolidation, the impact of the proposed transaction on the associations and their stockholders, and the planned effective date of the merger or consolidation;

(3)(i) A certified copy of the resolution of the board of directors of each association recommending approval of the merger or consolidation; or

(ii) In the case of a district reorganization plan, a certified copy of the resolution of the board of directors of each association recommending either approval or disapproval of the proposal.

(4) A copy of the agreement of merger or consolidation;

(5) Two signed copies of the continuing or proposed Articles of Association;

(6) All of the information specified in paragraph (e) of this section;

(7) Any additional information or documents each association wishes to submit in support of the request; and

(8) All additional information and documentation that the funding bank or the FCA requests.

(b) Upon receipt of a request for approval of an association merger or consolidation, the funding bank must review the materials submitted to determine whether they comply with the requirements of these regulations and must communicate with the associations concerning any deficiency. When the bank approves the request to merge or consolidate it must notify the associations. The bank must also notify the FCA of its approval together with the reasons for its approval and any supporting analysis. The associations must jointly submit the proposal together with required documentation to the FCA for preliminary approval.

(c) Upon receipt of a complete association merger or consolidation request, the FCA will review the request and either deny or give its written preliminary approval to the request within 60 days. The FCA will notify the requesting associations when the 60-day preliminary approval review period begins. The FCA may require submission of any supplemental information and analysis it deems appropriate for its consideration of the merger or consolidation request.

(1) When a request is denied, written notice stating the reasons for the denial will be transmitted to the associations and a copy provided to the funding bank(s).

(2) When a request is preliminarily approved, written notice of the preliminary approval will be given to the associations and a copy provided to the funding bank(s). Preliminary approval by the FCA does not constitute approval of the merger or consolidation. Approval of a merger or consolidation is only issued pursuant to this subpart. In connection with granting preliminary approval, the FCA may impose conditions in writing.

(d) Upon receipt of preliminary approval by the FCA of a merger or consolidation request, each constituent association must call a meeting of its voting stockholders. The FCA may also require, when considered appropriate to the merger or consolidation request under review, the associations to hold informational meetings before a stockholder vote. The stockholder meeting to vote on a merger or consolidation must:

(1) Be called on written notice to each stockholder entitled to vote on the transaction as of the record date and be held in accordance with the terms of each association's bylaws.

(2) Follow the voting procedures of § 611.340, except associations may not use tellers committees to validate ballots and tabulate votes on the merger or consolidation.

(3) Require the affirmative vote of a majority of the voting stockholders of each association present and voting, either in person or by written proxy, at a meeting at which a quorum is present to constitute stockholder approval of a merger or consolidation proposal.

(e) Notice of the stockholder meeting to consider and act upon a proposed merger or consolidation must be accompanied by the information required under this paragraph. The notice and accompanying information must not be sent to stockholders until preliminary approval of the merger or consolidation has been given by the FCA.

(1) A statement either on the first page of the materials or on the notice of the stockholders' meeting, in capital letters and bold face type, that:

THE FARM CREDIT ADMINISTRATION HAS NEITHER APPROVED NOR PASSED UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION ACCOMPANYING THE NOTICE OF MEETING OR PRESENTED AT THE MEETING AND NO REPRESENTATION TO THE CONTRARY SHALL BE MADE OR RELIED UPON.

(2) A description of the material provisions of the agreement of merger or consolidation and the effect of the proposed merger or consolidation on the associations, their stockholders, the new or continuing board of directors, and the territory to be served. In addition, a copy of the agreement must be furnished with the notice to stockholders.

(3) A summary of the provisions of the charter and bylaws of the continuing or new association that differ materially from the existing charter or bylaw provisions of the constituent associations.

(4) A brief statement by the boards of directors of the constituent associations setting forth the basis for the boards' recommendation on the merger or consolidation.

(5) A description of any agreement or arrangement between a constituent association and any of its officers relating to employment or termination of employment and arising from the merger or consolidation.

(6) A presentation of the following financial data:

(i) A balance sheet and income statement for each constituent association for each of the 2 preceding fiscal years.

(ii) A balance sheet for each constituent association as of a date within 90 days of the date the request for preliminary approval is forwarded to the FCA presented on a comparative basis with the corresponding period of the prior fiscal year.

(iii) An income statement for the interim period between the end of the last fiscal year and the date of the required balance sheet presented on a comparative basis with the corresponding period of the preceding fiscal year. The balance sheet and income statement format must be that contained in the association's annual report to stockholders; must contain any significant changes in accounting policies that differ from those in the latest association annual report to stockholders; and must contain appropriate footnote disclosures, including data relating to high-risk assets and other property owned, and allowance for loan losses, including net chargeoffs as required in paragraph (e)(10) of this section.

(7) The financial statements (balance sheet and income statement) must be in sufficient detail to show separately all significant categories of interest-earning assets and interest-bearing liabilities and the income or expense accrued thereon.

(8) Attached to the financial statements for each constituent association, either:

(i) A statement signed by the chief executive officer and each member of the board of directors of the association that the various financial statements are unaudited, but have been prepared in all material respects in accordance with generally accepted accounting principles (except as otherwise disclosed therein) and are, to the best of the knowledge of the board, a fair and accurate presentation of the financial condition of the association; or

(ii) A signed opinion by an independent certified public accountant that the various financial statements have been examined in accordance with generally accepted auditing standards and, accordingly, included such tests of the accounting records and such other auditing procedures as were considered necessary in the circumstances, and, as of the date of the statements, present fairly the financial position of the association in conformity with generally accepted accounting principles applied on a consistent basis, except as otherwise noted thereon.

(9) A presentation for each constituent association regarding its policy on accounting for loan performance, together with the number and dollar amount of loans in all performance categories, including those categorized as high-risk assets.

(10) Information of each constituent association concerning the amount of loans charged off in each of the 2 fiscal years preceding the date of the balance sheet, the current year-to-date net chargeoff amount, and the balance in the allowance for loan losses account and a statement regarding whether, in the opinion of management, the allowance for loan losses is adequate to absorb the risk currently existing in the loan portfolio. This information may be appropriately included in the footnotes to the financial statements.

(11) A management discussion and analysis of the financial condition and results of operation for the past 2 fiscal years for each constituent institution. This requirement can be satisfied by including the materials contained in the management discussion and analysis of each institution's most recent annual report.

(12) A discussion of any material changes in financial condition of each constituent institution from the end of the last fiscal year to the date of the interim balance sheet provided.

(13) A discussion of any material changes in the results of operations of each constituent institution with respect to the most recent fiscal-year-to-date period for which an income statement is provided.

(14) A discussion of any change in the tax status of the new institution from those of the constituent institutions as a result of merger or consolidation. A statement on any adverse tax consequences to the stockholders of the institution as a result of the change in tax status.

(15) A statement on the proposed institution's relationship with an independent public accountant, including any change that may occur as a result of the merger or consolidation.

(16) A pro forma balance sheet of the continuing or consolidated association presented as if the merger or consolidation had occurred as of the date on the balance sheets required in paragraph (e)(6) of this section, as recommended to the stockholders. A pro forma summary of earnings for the continuing or consolidated association presented as if the merger or consolidation had been effective at the beginning of the interim period between the end of the last fiscal year and the date of the balance sheets.

(17) A description of the type and dollar amount of any financial assistance that has been provided during the past year or will be provided by the funding bank or other party to assist the constituent or the continuing or new association(s), the conditions on which financial assistance has been or will be extended, the terms of repayment or retirement, if any, and the impact of the assistance on the subject association(s) or the stockholders.

(18) A presentation for each constituent association of interest rate comparisons for the last 2 fiscal years preceding the date of the balance sheet, together with a statement of the continuing or new association's proposed interest rate and fee programs, interest collection policies, capitalization rates, dividends or patronage refunds, and other factors that would affect a borrower's cost of doing business with the continuing or new association. Where agreement has not been reached on such matters, current related information must be presented for each constituent association.

(19) A description for each constituent association of any event subsequent to the date of the financial statements, but prior to the merger or consolidation vote, that would have a material impact on the financial condition of the constituent or continuing or new association(s).

(20) A statement of any other material fact or circumstance that a stockholder would need in order to make an informed decision on the merger or consolidation proposal, or that is necessary to make the required disclosures not misleading.

(21) Where proxies are to be solicited, a form of written proxy, together with instructions on the purpose and authority for its use, and the proper method for signature by the stockholder.

(f) Where a proposed merger or consolidation will involve more than three associations, the FCA may require the supplementation, or allow the condensation or omission of any information required under paragraph (e) of this section in furtherance of meaningful disclosure to stockholders. Any waiver sought under this paragraph must be obtained before preparation of the financial statements and accompanying schedules required under paragraph (e) of this section.

(g) The effective date of a merger or consolidation may not be less than 35 days after the date of mailing of the notification to stockholders of the results of the stockholder vote, or 15 days after the date of submission to the FCA of all required documents for the FCA's consideration of final approval, whichever occurs later.

(1) The constituent institutions must agree on a second effective date to be used in the event the merger or consolidation is approved on reconsideration. The second effective date may not be less than 60 days after stockholder notification of the results of the first vote, or 15 days after the date of the reconsideration vote, whichever occurs later.

(2) If no reconsideration petition is filed with the FCA, upon final approval by the FCA, the merger or consolidation will be effective on the date specified in the merger agreement or at such later date as may be required by the FCA.

(h) Each constituent association must notify its stockholders not later than 30 days after the stockholder vote of the final results of the vote. Upon approval of a proposed merger or consolidation by the stockholders of the constituent associations, each association must submit to the FCA a certified copy of the stockholders' resolution on which the stockholders cast their votes and a certification of the stockholder vote from the independent third party(s) used to tally the vote. After the time for submitting reconsideration petitions has expired, and if no petition is filed, the FCA will make a final approval decision on the merger or consolidation, imposing conditions as appropriate. The FCA will send written notice of the final FCA approval decision to the associations and provide a copy to the affiliated funding bank(s).

(i) No Farm Credit institution, or any director, officer, employee, agent, or other person participating in the conduct of the affairs thereof, may make any untrue or misleading statement of a material fact, or fail to disclose any material fact necessary under the circumstances to make statements made not misleading, to a stockholder of any association in connection with an association merger or consolidation.

(1) No Farm Credit institution or any director, officer, employee, agent, or other person participating in the conduct of the affairs of a Farm Credit institution may make an oral or written representation to any person that a preliminary or final approval by the FCA of a merger or consolidation constitutes, directly or indirectly, either a recommendation on the merits of the transaction or an assurance concerning the adequacy or accuracy of any information provided to any association's stockholders in connection therewith.

(2) When a Farm Credit institution, or any of its employees, officers, directors, agents, or other person participating in the conduct of the affairs thereof, make disclosures or representations in connection with an association merger or consolidation that, in the judgment of the FCA, are incomplete, inaccurate, or misleading, whether or not such disclosure or representation is made in disclosure statements required by this subpart, such institution must make such additional or corrective disclosure as directed by the FCA and as is necessary to provide stockholders and the general public with full and fair disclosure.

10. Section 611.1123 is amended by: a. Revising the section heading and paragraph (a) introductory text; b. Removing the word “shall” and adding in its place, the word “must” in the last sentence of paragraph (a)(3); c. Removing the word “shall” and adding in its place, the word “may” in paragraph (a)(4); d. Removing the words “supervising bank” and “Farm Credit Administration” and adding in their place the words “funding bank” and the acronym “FCA”, respectively, in paragraph (a)(5); e. Removing the words “Farm Credit Administration” and adding in their place the acronym “FCA” in paragraph (a)(7) introductory text; f. Removing the word “institution” and adding in its place the words “or consolidated association” in paragraph (a)(7)(iv); g. Removing the words “new institution” and “shall” and adding in their place the words “continuing or consolidated association” and “must”, respectively, in paragraph (a)(9); h. Removing the words “proposed institution” and adding in its place the words “continuing or consolidated association” in paragraph (a)(10); i. Revising paragraph (b); and j. Removing paragraph (c).

The revisions read as follows:

§ 611.1123 Association merger or consolidation agreements.

(a) Associations operating under the same title of the Act may merge or consolidate voluntarily, but only pursuant to a written agreement. The agreement must set forth all of the terms of the transaction, including, but not limited to, the following:

(b) As an attachment to the agreement, the constituent associations must set forth those provisions of the charter and bylaws of the continuing or consolidated association which differ from the existing charter or bylaw provisions of the constituent associations.

11. Section 611.1124 is revised to read as follows:
§ 611.1124 Territorial adjustments.

This section applies to any request submitted to the FCA to modify association charters for the purpose of transferring territory from one association to another.

(a) Territorial adjustments, except as specified in paragraph (m) of this section, require approval of a majority of the voting stockholders of each association present and voting or voting by written proxy at a duly authorized meeting at which a quorum is present.

(b) When two or more associations agree to transfer territory, each association must submit a proposal to the funding bank containing the following:

(1) A statement of the reasons for the proposed transfer and the impact the transfer will have on its stockholders and holders of participation certificates;

(2) A certified copy of the resolution of the board of directors of each association approving the proposed territory transfer;

(3) A copy of the agreement to transfer territory that contains the following information:

(i) A description of the territory to be transferred;

(ii) Transferor association's plan to transfer loans and the types of loans to be transferred;

(iii) Transferor association's plan to retire and transferee association's plan to issue equities held by holders of stock, participation certificates, and allocated equities, if any, and a statement by each association that the book value of its equities is at least equal to par;

(iv) An inventory of the assets to be sold by the transferor association and purchased by the transferee association;

(v) An inventory of the liabilities to be assumed from the transferor association by the transferee association;

(vi) A statement that the holders of stock and participation certificates whose loans are subject to transfer have 60 days from the effective date of the territory transfer to inform the transferor association of their decision to remain with the transferor association for normal servicing until the current loan is paid;

(vii) A statement that the transfer is conditioned upon the approval of the stockholders of each constituent association; and

(viii) The effective date of the proposed territory transfer.

(4) A copy of the stockholder disclosure statement provided for in paragraph (f) of this section; and

(5) Any additional relevant information or documents that the association wishes to submit in support of its request or that may be required by the FCA.

(c) Upon receipt of documents supporting a proposed territory transfer, the funding bank must review the materials submitted and provide the associations with its analysis of the proposal within a reasonable period of time. The funding bank must concurrently advise the FCA of its recommendation regarding the proposed territory transfer. Following review by the bank, the associations must transmit the proposal to the FCA together with all required documents.

(d) Upon receipt of an association's request to transfer territory, the FCA will review the request and either deny or grant preliminary approval to the request. The FCA may require submission of any supplemental information and analysis it deems appropriate for its consideration of the request to transfer territory.

(1) When a request is denied, written notice stating the reasons for the denial will be transmitted to the associations, and a copy provided to the funding bank.

(2) When a request is preliminarily approved, written notice of the preliminary approval will be transmitted to the associations, and a copy provided to the funding bank. Preliminary approval by the FCA does not constitute approval of the territory transfer. Final approval is granted only in accordance with paragraph (h) of this section. In connection with granting preliminary approval, the FCA may impose conditions in writing.

(e) Upon receipt of preliminary approval by the FCA, each constituent association must, by written notice, and in accordance with its bylaws, call a meeting of its voting stockholders. The affirmative vote of a majority of the voting stockholders of each association present and voting or voting by written proxy at a meeting at which a quorum is present is required for stockholder approval of a territory transfer.

(f) Notice of the meeting to consider and act upon a proposed territory transfer must be accompanied by the following information covering each constituent association:

(1) A statement either on the first page of the materials or on the notice of the stockholders' meeting, in capital letters and bold face type, that:

THE FARM CREDIT ADMINISTRATION HAS NEITHER APPROVED NOR PASSED UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION ACCOMPANYING THE NOTICE OF MEETING OR PRESENTED AT THE MEETING AND NO REPRESENTATION TO THE CONTRARY SHALL BE MADE OR RELIED UPON.

(2) A copy of the Agreement to Transfer Territory and a summary of the major provisions of the Agreement;

(3) The reason the territory transfer is proposed;

(4) A map of the association's territory as it would look after the transfer;

(5) A summary of the differences, if any, between the transferor and transferee associations' interest rates, interest rate policies, collection policies, service fees, bylaws, and any other items of interest that would impact a borrower's lending relationship with the institution;

(6) A statement that all loans of the transferor association that finance operations located in the transferred territory will be transferred to the transferee association except as otherwise provided for in this section or in accordance with agreements between the associations as provided for in § 614.4070;

(7) Where proxies are to be solicited, a form of written proxy, together with instructions on the purpose and authority for its use, and the proper method for signature by the stockholders; and

(8) A statement that the associations' bylaws, financial statements for the previous 3 years, and any financial information prepared by the associations concerning the proposed transfer of territory are available on request to the stockholders of any association involved in the transaction.

(g) No Farm Credit institution, or director, officer, employee, agent, or other person participating in the conduct of the affairs thereof, may make any untrue or misleading statement of a material fact, or fail to disclose any material fact necessary under the circumstances to make statements made not misleading, to a stockholder of any Farm Credit institution in connection with a territory transfer.

(h) Upon approval of a proposed territory transfer by the stockholders of the constituent associations, a certified copy of the stockholders' resolution for each constituent association and one executed Agreement to Transfer Territory must be forwarded to the FCA. The territory transfer will be effective when thereafter finally approved and on the date as specified by the FCA. Notice of final approval will be transmitted to the associations and a copy provided to the bank.

(i) No director, officer, employee, agent, or other person participating in the conduct of the affairs of a Farm Credit institution may make an oral or written representation to any person that a preliminary or final approval by the FCA of a territory transfer constitutes, directly or indirectly, a recommendation on the merits of the transaction or an assurance concerning the adequacy or accuracy of any information provided to any association's stockholders in connection therewith.

(j) When a Farm Credit institution, or any of its employees, officers, directors, agents, or other persons participating in the conduct of the affairs thereof, make disclosures or representations that, in the judgment of the FCA, are incomplete, inaccurate, or misleading in connection with a territory transfer, whether or not such disclosure or representation is made in disclosure statements required by this subpart, such institution must make such additional or corrective disclosure as directed by the FCA and as is necessary to provide stockholders and the general public with full and fair disclosure.

(k) The notice and accompanying information required under paragraph (f) of this section may not be sent to stockholders until preliminary approval of the territory transfer has been granted by the FCA.

(l) Where a territory transfer is proposed simultaneously with a merger or consolidation, both transactions may be voted on by stockholders at the same meeting. Only stockholders of a transferee or transferor association may vote on a territory transfer.

(m) Each borrower whose real estate or operations is located in a territory that will be transferred must be provided with a written Notice of Territory Transfer immediately after the FCA has granted final approval of the territory transfer. The Notice must inform the borrower of the transfer of the borrower's loan to the transferee association and the exchange of related equities for equities of like kinds and amounts in the transferee association. If a like kind of equity is not available in the transferee association, similar equities must be offered that will not adversely affect the interest of the owner. The Notice must give the borrower 60 days from the effective date of the territory transfer to notify the transferor association in writing if the borrower decides to stay with the transferor association for normal servicing until the current loan is paid. Any application by the borrower for renewal or for additional credit must be made to the transferee association, except as otherwise provided for by an agreement between associations in accordance with § 614.4070.

(n) This section does not apply to territory transfers initiated by order of the FCA or to territory transfers due to the liquidation of the transferor association.

(o) Where a proposed action involves the transfer of a portion of an association's territory to an association operating in a different district, such proposal must comply with the provisions of this section and section 5.17(a) of the Act.

§ 611.1125 [Amended]
12. Section 611.1125 is amended by: a. Removing the words “Farm Credit Administration” and adding in their place the acronym “FCA” in paragraph (a); b. Removing the word “shall” and adding in its place, the word “must” in paragraph (b) introductory text. c. Removing the words “district bank” and adding in their place, the word “funding bank” in paragraphs (b) introductory text and (b)(1) through (4) wherever they appear; and d. Removing the words “district bank” and adding in their place, the word “funding bank” in paragraph (c) wherever they appear. 13. Add a new § 611.1126 to subpart G to read as follows:
§ 611.1126 Reconsiderations of mergers and consolidations.

(a) Voting stockholders have the right to reconsider their approval of a merger or consolidation, provided that a petition is filed with the FCA. The petition must be signed by 15 percent of the stockholders (who were eligible to vote on the merger or consolidation proposal) of one or more of the constituent associations. The reconsideration petition must be filed with the FCA within 35 days after the date when the association mailed the notification of the final results of the stockholder vote pursuant to § 611.1122(h).

(b) Voting stockholders that intend to file a reconsideration petition have a right to obtain from the association of which they are a voting stockholder the voting record date list used by that association for the merger or consolidation vote. The association must provide the voting record date list as soon as possible, but not later than 7 days after receipt of the request. The list must be provided pursuant to the provisions of § 618.8310(b) of this chapter.

(c) A reconsideration petition must be addressed to the Secretary of the FCA Board and filed with the FCA on or before the deadline described in paragraph (a) of this section. Reconsideration petitions must identify a contact person and provide contact information for that person.

(1) Filing of a reconsideration petition may only be accomplished through in-person delivery during normal business hours to any FCA employee in official duty status or by sending the petition by mail, facsimile, electronic transmission, carrier delivery, or other similar means to an FCA office.

(2) The FCA will use the postmark, ship date, electronic stamp, or similar evidence as the date of filing the reconsideration petition.

(d) The FCA will notify the named contact on the reconsideration petition whether the petition was filed on time. On the timely receipt of a reconsideration petition, the FCA will review the petition to determine whether it complies with the requirements of section 7.9 of the Act. Following a determination that the petition was timely filed and complies with applicable requirements, the FCA will give notice to the associations involved in the merger or consolidation for which the reconsideration petition was filed. The associations are not entitled to either a copy of the petition or the names of the petitioners.

(e) Following FCA notification that a reconsideration petition has been properly filed, a special stockholders meeting must be called by the association(s) to reconsider the merger or consolidation vote. The reconsideration vote must be conducted according to the merger and consolidation voting requirements of § 611.1122(d). If a majority of the stockholders voting, in person or by proxy, at a duly authorized stockholders' meeting from any one of the constituent associations vote against the merger or consolidation under the reconsideration vote, the merger or consolidation will not take place. In the event that the merger or consolidation is approved on reconsideration, the constituent associations must use the second effective date developed under § 611.1122(g)(1).

Dated: August 19, 2015. Dale L. Aultman, Secretary, Farm Credit Administration Board.
[FR Doc. 2015-20896 Filed 8-21-15; 8:45 am] BILLING CODE 6705-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2014-1070; Airspace Docket No. 14-ANM-9] Establishment of Class D and Class E Airspace; Aurora, OR AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action establishes Class D airspace, Class E surface area airspace, and Class E airspace extending upward from 700 feet above the surface at Aurora State Airport, Aurora, OR, to accommodate standard instrument approach procedures for the new air traffic control tower. This action enhances the safety and management of Instrument Flight Rules (IFR) operations at the airport.

DATES:

Effective 0901 UTC, October 15, 2015. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

ADDRESSES:

FAA Order 7400.9Y, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at http://www.faa.gov/airtraffic/publications/. The Order is also available for inspection at the National Archives and Records Administration (NARA). For further information, you can contact the Airspace Policy and ATC Regulations Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 29591; telephone: 202-267-8783. For information on the availability of this material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

FOR FURTHER INFORMATION CONTACT:

Steve Haga, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4563.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Aurora, OR.

History

On March 13, 2015, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class D airspace, Class E surface area airspace, and Class E airspace extending upward from 700 feet above the surface at Aurora State Airport, Aurora, OR, (80 FR 13288). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. Fourteen comments were received on the proposal. One comment was received from Zachary McTee supporting the proposal. Two commenters requested a larger shelf area for operations at Lenhart Airpark. After a working group meeting to review the comments received, the FAA agreed with the two commenters and is increasing the shelf area at Lenhart Airpark however, the FAA is unable to increase the shelf to the dimensions requested due to airspace required to protect instrument flight procedures into Aurora State Airport. The FAA also determined that the shelf altitude should be confined to that airspace below 1,200 feet versus the 1,300 feet indicated in the proposal. This allows the users at Lenhart Airport, and also McGee Airport, 1,000 feet of airspace to conduct their operations. One comment was received from Randy Prakken requesting a larger cutout for Workman Airpark, and ten comments were received from owners and operators at Dietz Airpark, expressing concern over having the Class D airspace area interfere with aircraft operations west of their respective airports. To mitigate the concerns for Dietz and Workman Airparks, the FAA has reduced the radius of Class D airspace from 5 miles to 4.2 miles from the northeast to the southeast.

Class D and Class E airspace designations are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.9Y, dated August 6, 2014, and effective September 15, 2014, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

Availability and Summary of Documents for Incorporation by Reference

This document amends FAA Order 7400.9Y, airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014. FAA Order 7400.9Y is publicly available as listed in the ADDRESSES section of this final rule. FAA Order 7400.9Y lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The Rule

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class D airspace, Class E surface area airspace, and Class E airspace extending upward from 700 feet above the surface at Aurora State Airport, Aurora, OR. Construction of a new air traffic control tower made this action necessary for the safety and management of standard instrument approach procedures for IFR operations at the airport. Class D airspace extends upward from the surface to and including 2,700 feet within a 4.2-mile radius of Aurora State Airport, extending to 5 miles from the southeast to the northeast, excluding segments below 1,200 feet beyond 3.3 miles southeast and west of the airport. Class E surface area airspace extends upward from the surface within a 4.2-mile radius of Aurora State Airport extending to 5 miles from the southeast to the northeast, excluding segments beyond 3.3 miles southeast and west of the airport. Class E airspace extending upward from 700 feet above the surface is established to within a 7-mile radius of Aurora State Airport, with segments extending from the 7-mile radius to 20 miles northeast and 10.9 miles northwest of the airport.

Regulatory Notices and Analyses

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, is non-controversial and unlikely to result in adverse or negative comments. 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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Environmental Review

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1E, “Environmental Impacts: Policies and Procedures,” paragraph 311a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment

Lists of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for Part 71 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

§ 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Y, Airspace Designations and Reporting Points, dated August 6, 2014, and effective September 15, 2014, is amended as follows: Paragraph 5000 Class D Airspace ANM OR D Aurora, OR [New] Aurora, Aurora State Airport, OR (Lat. 45°14′50″ N., long. 122°46′12″ W.)

That airspace extending upward from the surface to and including 2,700 feet within a 4.2-mile radius of Aurora State Airport from the 64° bearing from the airport clockwise to the 142° bearing, extending to a 5-mile radius from the 142° bearing clockwise to the 64° bearing from the airport, excluding that airspace below 1,200 feet beyond 3.3 miles from the airport from the 142° bearing clockwise to the 174° bearing, and that airspace below 1,200 feet beyond 3.3 miles from the airport from the 250° bearing clockwise to the 266° bearing from the airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.

Paragraph 6002 Class E Airspace Designated as Surface Areas ANM OR E2 Aurora, OR [New] Aurora, Aurora State Airport, OR (Lat. 45°14′50″ N., long. 122°46′12″ W.)

That airspace extending upward from the surface within a 4.2-mile radius of Aurora State Airport from the 64° bearing from the airport clockwise to the 142° bearing, extending to a 5-mile radius from the 142° bearing clockwise to the 64° bearing from the airport, excluding that airspace below 1,200 feet beyond 3.3 miles from the airport from the 142° bearing clockwise to the 174° bearing, and that airspace below 1,200 feet beyond 3.3 miles from the airport from the 250° bearing clockwise to the 266° bearing from the airport.

Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth ANM OR E5 Aurora, OR [New] Aurora, Aurora State Airport, OR (Lat. 45°14′50″ N., long. 122°46′12″ W.)

That airspace extending upward from 700 feet above the surface within a 7-mile radius of Aurora State Airport, and that airspace 1.6 miles either side of the 007° bearing from airport extending from the 7-mile radius to 20 miles northeast of the airport, and that airspace 1.2 miles either side of the 306° bearing from airport extending from the 7-mile radius to 10.9 miles northwest of the airport.

Issued in Seattle, Washington, on August 17, 2015. Christopher Ramirez, Manager, Operations Support Group, Western Service Center.
[FR Doc. 2015-20757 Filed 8-21-15; 8:45 am] BILLING CODE 4910-13-P
SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 232 [Release Nos. 33-9874; 34-75586; 39-2505; IC-31735] Adoption of Updated EDGAR Filer Manual AGENCY:

Securities and Exchange Commission.

ACTION:

Final rule.

SUMMARY:

The Securities and Exchange Commission (the Commission) is adopting revisions to the Electronic Data Gathering, Analysis, and Retrieval System (EDGAR) Filer Manual and related rules to reflect updates to the EDGAR system. The updates are being made primarily to add new NRSRO submission form types for Nationally Recognized Statistical Rating Organization filers; add new applicant types for filers to select when completing the process to apply for EDGAR access (New) on the EDGAR Filer Management Web site; make a documentation only change to Chapter 3, “Index to Forms,” of the “EDGAR Filer Manual, Volume II: EDGAR Filing,” to update submission form types SF-1 and SF-3; and make documentation only changes to “EDGAR Filer Manual, Volume I: General Information” for compliance with Section 508 of the U.S. Rehabilitation Act. The EDGAR system is scheduled to be upgraded to support this functionality on August 3, 2015. The Filer Manual is also being revised to address software changes made previously in EDGAR. On June 18, 2015, the Regulation A submission form types DOS, DOS/A, 1-A, 1-A/A, 1-A POS, 1-K, 1-K/A, 1-Z, and 1-Z/A in the EDGAR system were modified to display OMB information. On June 29, 2015, the Regulation A submission form types DOS, DOS/A, 1-A, 1-A/A and 1-A POS in the EDGAR system were updated to allow filers to optionally enter values in the “Name of Class (if any),” “CUSIP (if any)” and “Name of Trading Center or Quotation Medium (if any)” field if a value of zero was provided in the “Units Outstanding” field for the Common Equity, Preferred Equity, and Debt Securities; and Item 6(e) was updated to Item 6(d) on “Item 6: Unregistered Securities Issued or Sold Within One Year” for Regulation A submission form types DOS, DOS/A, 1-A, 1-A/A, and 1-A POS. Additionally, Item 6(d) was updated to optionally allow a response if “None” is selected on “Item 6: Unregistered Securities Issues or Sold Within One Year.”

DATES:

Effective August 24, 2015. The incorporation by reference of the EDGAR Filer Manual is approved by the Director of the Federal Register as of August 24, 2015

FOR FURTHER INFORMATION CONTACT:

In the Division of Trading and Markets, for questions concerning Form NRSRO, contact Kathy Bateman at (202) 551-4345, in the Division of Corporation Finance, for questions concerning Regulation A submission form types, contact Heather Mackintosh at (202) 551-8111, and in the Office of Information Technology, contact Tammy Borkowski at (202) 551-7208.

SUPPLEMENTARY INFORMATION:

We are adopting an updated EDGAR Filer Manual, Volume I and Volume II. The Filer Manual describes the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system.1 It also describes the requirements for filing using EDGARLink Online and the Online Forms/XML Web site.

1 We originally adopted the Filer Manual on April 1, 1993, with an effective date of April 26, 1993. Release No. 33-6986 (April 1, 1993) [58 FR 18638]. We implemented the most recent update to the Filer Manual on June 15, 2015. See Release No. 33-9849 (June 29, 2015) [80 FR 36913].

The revisions to the Filer Manual reflect changes within Volume I entitled EDGAR Filer Manual, Volume I: “General Information,” Version 22 (August 2015), and Volume II entitled EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 33 (August 2015). The updated manual will be incorporated by reference into the Code of Federal Regulations.

The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format.2 Filers may consult the Filer Manual in conjunction with our rules governing mandated electronic filing when preparing documents for electronic submission.3

2See Rule 301 of Regulation S-T (17 CFR 232.301).

3See Release No. 33-9849 in which we implemented EDGAR Release 15.2. For additional history of Filer Manual rules, please see the cites therein.

The EDGAR system will be upgraded to Release 15.2.2 on August 3, 2015 and will introduce the following changes:

Form NRSRO filers must now use the following new submission form types available on EDGARLink Online to electronically submit their filings via EDGAR:

• NRSRO-UPD—Update of Registration • NRSRO-CE—Annual Certification • NRSRO-CE/A—Amendment to Annual Certification • NRSRO-FR—Annual Financial Reports (Rule 17g-3) • NRSRO-FR/A—Amendment to Annual Financial Reports (Rule 17g-3) • NRSRO-WCLS—Withdrawal from Credit Rating Class • NRSRO-WREG—Withdrawal from Registration

These submission form types can be accessed by selecting the `EDGARLink Online Form Submission' link on the EDGAR Filing Web site. Additionally, filers may construct XML submissions for these submission form types by following the “EDGARLink Online XML Technical Specification” document available on the SEC's Public Web site (http://www.sec.gov/info/edgar.shtml).

Filers will now be able to select the following new Applicant Types, when completing the process to apply for EDGAR access (New) on the EDGAR Filer Management Web site:

• Nationally Recognized Statistical Rating Organization • Security-Based Swap Data Repository • Security-Based Swap Dealer and Major Security-Based Swap Participant • Security-Based Swap Execution Facility

A documentation only change was made to Chapter 3, “Index to Forms,” of the “EDGAR Filer Manual, Volume II: EDGAR Filing,” to update submission form types SF-1 and SF-3 in Table 3-1, “Securities Act Submission Types Accepted by EDGAR.”

Documentation only changes were made to “EDGAR Filer Manual, Volume I: General Information” for compliance with Section 508 of the U.S. Rehabilitation Act.

The Filer Manual is also being revised to address software changes made previously in EDGAR. On June 18, 2015, EDGAR Release 15.2.0.1 introduced the following changes:

Regulation A submission form types DOS, DOS/A, 1-A, 1-A/A, 1-A POS, 1-K, 1-K/A 1-Z, and 1-Z/A were modified to display updated OMB Information. The Regulation A screens in Chapter 9 of “EDGAR Filer Manual Volume II: EDGAR Filing” were updated with OMB Information.

On June 29, 2015, EDGAR Release 15.2.e.3 introduced the following changes:

Regulation A submission form types DOS, DOS/A, 1-A, 1-A/A, and 1-A POS were updated to allow filers to optionally enter values in the following fields if a value of zero was provided in the “Units Outstanding” field for the three types of securities: Common Equity, Preferred Equity, and Debt Securities:

• Name of Class (if any) • CUSIP (if any) • Name of Trading Center or Quotation Medium (if any)

Item 6(e) was updated to Item 6(d) on “Item 6: Unregistered Securities Issued or Sold Within One Year” for Regulation A submission form types DOS, DOS/A, 1-A, 1-A/A, and 1-A POS. Additionally, Item 6(d) was updated to optionally allow a response if “None” is selected on “Item 6: Unregistered Securities Issued or Sold Within One Year.”

Along with the adoption of the Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

The updated EDGAR Filer Manual will be available for Web site viewing and printing; the address for the Filer Manual is http://www.sec.gov/info/edgar.shtml. You may also obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m.

Since the Filer Manual and the corresponding rule changes relate solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (APA).4 It follows that the requirements of the Regulatory Flexibility Act 5 do not apply.

4 5 U.S.C. 553(b).

5 5 U.S.C. 601—612.

The effective date for the updated Filer Manual and the rule amendments is August 24, 2015. In accordance with the APA,6 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The EDGAR system upgrade to Release 15.2.2 is scheduled to become available on August 3, 2015. The Commission believes that establishing an effective date less than 30 days after publication of these rules is necessary to coordinate the effectiveness of the updated Filer Manual with the system upgrade.

6 5 U.S.C. 553(d)(3).

Statutory Basis

We are adopting the amendments to Regulation S-T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933,7 Sections 3, 12, 13, 14, 15, 23, and 35A of the Securities Exchange Act of 1934,8 Section 319 of the Trust Indenture Act of 1939,9 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940.10

7 15 U.S.C. 77f, 77g, 77h, 77j, and 77s(a).

8 15 U.S.C. 78c, 78l, 78m, 78n, 78o, 78w, and 78ll.

9 15 U.S.C. 77sss.

10 15 U.S.C. 80a-8, 80a-29, 80a-30, and 80a-37.

List of Subjects in 17 CFR Part 232

Incorporation by reference, Reporting and recordkeeping requirements, Securities.

Text of the Amendment

In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:

PART 232—REGULATION S-T—GENERAL RULES AND REGULATIONS FOR ELECTRONIC FILINGS 1. The authority citation for Part 232 continues to read in part as follows: Authority:

15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3, 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 80a-8, 80a-29, 80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350, unless otherwise noted.

2. Section 232.301 is revised to read as follows:
§ 232.301 EDGAR Filer Manual.

Filers must prepare electronic filings in the manner prescribed by the EDGAR Filer Manual, promulgated by the Commission, which sets out the technical formatting requirements for electronic submissions. The requirements for becoming an EDGAR Filer and updating company data are set forth in the updated EDGAR Filer Manual, Volume I: “General Information,” Version 22 (August 2015). The requirements for filing on EDGAR are set forth in the updated EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 33 (August 2015). Additional provisions applicable to Form N-SAR filers are set forth in the EDGAR Filer Manual, Volume III: “N-SAR Supplement,” Version 4 (October 2014). All of these provisions have been incorporated by reference into the Code of Federal Regulations, which action was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You must comply with these requirements in order for documents to be timely received and accepted. The EDGAR Filer Manual is available for Web site viewing and printing; the address for the Filer Manual is http://www.sec.gov/info/edgar.shtml. You can obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. You can also inspect the document at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

By the Commission.

Dated: August 3, 2015. Brent J. Fields, Secretary.
[FR Doc. 2015-20720 Filed 8-21-15; 8:45 am] BILLING CODE 8011-01-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [USCG-2015-0731] RIN 1625-AA87 Security Zone; Martha's Vineyard, Massachusetts AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing two 1000-yard temporary security zones in support of U.S. Secret Service (USSS) security operations in the navigable waters of the U.S. in portions of the coastal areas of Martha's Vineyard, Massachusetts. These security zones are needed to support USSS security operations and will be effective as directed by the USSS within 1000 yards of the navigable waters of the U.S. in portions of the coastal areas of Martha's Vineyard, Massachusetts. Vessel and people are prohibited from entering this security zone unless specifically authorized by the Captain of the Port (COTP) or the COTP's designated on-scene representative.

DATES:

This rule is effective without actual notice from 6:30 a.m. on August 24, 2015 until 5 p.m. on August 24, 2015. For the purposes of enforcement, actual notice will be used from 8 a.m. on August 7, 2015, until this rule is effective without actual notice.

ADDRESSES:

Documents indicated in this preamble as being available in the docket are part of docket USCG-2015-0731 and are available online by going to http://www.regulations.gov, inserting USCG-2015-0731 in the “Keyword” box, and then clicking “Search.” They are also available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary rule, call or email Mr. Edward G. LeBlanc at Sector Southeastern New England; telephone (401) 435-2351, email [email protected] If you have questions on viewing the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: Table of Acronyms APA Administrative Procedure Act CFR Code of Federal Register DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking U.S.C. United States Code USCG United States Coast Guard USSS United States Secret Service A. Regulatory 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 of the sensitive security issues related to USSS security operations. Providing a public notice and comment period is contrary to national security concerns and the public interest.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Any delay encountered in this temporary rule's effective date would be contrary to the public interest given the immediate need to support USSS security operations in portions of the coastal areas of Martha's Vineyard, Massachusetts, from August 7, 2015 through August 24, 2015.

B. Basis and Purpose

The legal basis for this rule is 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish security zones.

The USSS will conduct security operations on property that borders U.S. navigable waters within the Captain of the Port, Southeastern New England zone. The USSS has requested that the Coast Guard provide 1000-yard waterside security zones from portions of the coastal areas of Martha's Vineyard, Massachusetts. These security zones are necessary to provide security by preventing vessels and persons from approaching the area(s) of USSS security operations without prior authorization from the COTP.

C. Discussion of Rule

For the reasons discussed above, the Captain of the Port, Sector Southeastern New England, is establishing a temporary security zone. The temporary security zone will be enforced from 8:00 a.m. on Friday, August 7, 2015 through 5:00 p.m. on Monday, August 24, 2015.

This action is intended to temporarily prohibit vessels or people from approaching within 1000 yards of USSS security operations in portions of the coastal areas of Martha's Vineyard, Massachusetts.

The Captain of the Port, Southeastern New England, anticipates negligible negative impact on vessel traffic from these temporary security zones, as they will be in effect for only eighteen days, and will only be enforced during USSS security operations in portions of the coastal areas of Martha's Vineyard, Massachusetts. It has been determined that the necessary security enhancements provided by this rule greatly outweigh any potential negative impacts.

D. Regulatory Analyses

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.

1. Regulatory Planning and Review

This rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

The Coast Guard expects the economic impact of this rule to be so minimal that a full regulatory evaluation under the regulatory policies and procedures of DHS is unnecessary. The effect of this rule will not be significant as the duration of the security zones is for only eighteen days, and will only be in effect during USSS security operations from portions of the coastal areas of Martha's Vineyard, Massachusetts.

2. Impact on Small Entities

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this rule would have a significant economic impact on a substantial number of small entities. 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 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 may affect the following entities, some of which may be small entities: The owners and operators of vessels intending to transit in the vicinity of Martha's Vineyard, Massachusetts from 8:00 a.m. on Friday, August 7, 2015 until 5:00 p.m. on Monday, August 24, 2015. These temporary security zones will not have a significant impact on a substantial number of small entities for all of the reasons discussed in the “Regulatory Planning and Review” section above.

3. Assistance for Small Entities

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they could better evaluate its effects on them and participate in the rulemaking process. If you think your small business or organization would be affected by this rule and you have any questions concerning its provisions or options for compliance, please call Mr. Edward G. LeBlanc at (401) 435-2351.

4. Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

6. Protest Activities

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.

7. Unfunded Mandates Reform Act

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

8. Taking of Private Property

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.

9. Civil Justice Reform

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.

10. Protection of Children From Environmental Health Risks

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.

11. Indian Tribal Governments

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.

12. Energy Effects

We have analyzed this rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.

13. Technical Standards

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

14. Environment

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 concluded this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded, under figure 2-1, paragraph (34)(g) of the Instruction. This rule fits the category selected from paragraph (34)(g), as it establishes temporary security zones for a limited period of time. An environmental analysis checklist and a categorical exclusion determination will be 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.

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation (water), Reports and record keeping requirements, Security measures, and Waterways.

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

PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and Department of Homeland Security Delegation No. 0170.1.

2. Add § 165.T01-0731 to read as follows:
§ 165.T01-0731 Security Zone; Martha's Vineyard, Massachusetts.

(a) Location. The following areas are security zones: All navigable waters, from surface to bottom, within 1000 yards of U.S. Secret Service security operations in the navigable waters of the U.S. in the coastal areas of Martha's Vineyard, Massachusetts.

(b) Notification. Coast Guard Sector Southeastern New England will give actual notice to mariners for the purpose of enforcement of these temporary security zones.

(c) Effective and Enforcement Period. This section will be enforced from 8:00 a.m. on Friday, August 7, 2015 until 5:00 p.m. on Monday, August 24, 2015.

(d) Regulations. (1) The general regulations contained in 33 CFR 165.33 apply.

(2) In accordance with the general regulations in § 165.33 of this part, entry into or movement within these zones is prohibited unless authorized by the Captain of the Port or his designated representatives.

(3) The “designated representative” is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative may be on a Coast Guard vessel, or onboard a federal, state, or local agency vessel that is authorized to act in support of the Coast Guard.

(4) Upon being hailed by a U.S. Coast Guard vessel or his designated representative, by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed.

(5) Vessel operators desiring to enter or operate within these security zones shall contact the Captain of the Port or his designated representative via VHF channel 16 to obtain permission to do so.

Dated: August 4, 2015. J.T. Kondratowicz, Captain, U.S. Coast Guard, Captain of the Port, Southeastern New England.
[FR Doc. 2015-20865 Filed 8-21-15; 8:45 am] BILLING CODE 9110-04-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2015-0408; EPA-R05-OAR-2015-0409; FRL-9932-63-Region 5] Air Plan Approval; IL; MN; Determinations of Attainment of the 2008 Lead Standard for Chicago and Eagan AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is making determinations under the Clean Air Act (CAA) that the Chicago, Illinois and Eagan, Minnesota nonattainment areas (hereafter also referred to, respectively, as the “Chicago area,” “Eagan area,” or “areas”) have attained the 2008 lead (Pb) national ambient air quality standard (NAAQS or standard). These determinations of attainment are based upon complete, quality-assured, and certified ambient air monitoring data for the 2012-2014 design period showing that the areas have achieved attainment of the 2008 Pb NAAQS. Additionally, as a result of these determinations, EPA is suspending the requirements for the areas to submit attainment demonstrations, and associated reasonably available control measures (RACM), reasonable further progress (RFP) plans, contingency measures for failure to meet RFP, and attainment deadlines, for as long as the areas continue to attain the 2008 Pb NAAQS. This action does not constitute a redesignation of the areas to attainment of the 2008 Pb NAAQS; the areas remain designated nonattainment until such time as EPA determines that the areas meet the CAA requirements for redesignation to attainment and takes action to redesignate the areas.

DATES:

This direct final rule will be effective October 23, 2015, unless EPA receives adverse comments by September 23, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0408 (Chicago area) or EPA-R05-OAR-2015-0409 (Eagan area), by one of the following methods:

1. www.regulations.gov: Follow the on-line instructions for submitting comments.

2. Email: [email protected]

3. Fax: (312) 408-2279.

4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

Instructions: Direct your comments to Docket ID No. EPA-R05-OAR-2015-0408 (Chicago area) or EPA-R05-OAR-2015-0409 (Eagan area). EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Eric Svingen, Environmental Engineer, at (312) 353-4489 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4489, [email protected]

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

I. What action is EPA taking? II. What is the background for this action? III. Application of EPA's Clean Data Policy to the 2008 Pb NAAQS IV. Do the Chicago and Eagan areas meet the 2008 Pb NAAQS? V. What is the effect of this action? VI. Statutory and Executive Order Reviews I. What action is EPA taking?

EPA is taking final action to determine that the Chicago area and Eagan area have attained the 2008 Pb NAAQS. This is based upon complete, quality-assured, and certified ambient air monitoring data for the 2012-2014 monitoring period showing that the areas have achieved attainment of the 2008 Pb NAAQS.

Further, with these determinations of attainment, the requirements for the areas to submit attainment demonstrations, and associated RACM, RFP plans, and contingency measures for failure to meet RFP and attainment deadlines, are suspended for as long as the area continues to attain the 2008 Pb NAAQS. As discussed below, this action is consistent with EPA's regulations and with its longstanding interpretation of subpart 1 of part D of the CAA.

If either the Chicago area or the Eagan area violates the 2008 Pb NAAQS after this action, the basis for the suspension of these attainment planning requirements would no longer exist for that area, and the area would thereafter have to address applicable requirements.

II. What is the background for this action?

On November 12, 2008 (73 FR 66964), EPA established a 2008 primary and secondary Pb NAAQS at 0.15 micrograms per cubic meter (μg/m3) based on a maximum arithmetic three-month mean concentration for a three-year period. See 40 CFR Section 50.16. This is the “2008 Pb NAAQS.” On November 22, 2010 (75 FR 71033), EPA published its initial air quality designations for the 2008 Pb NAAQS based upon air quality monitoring data for calendar years 2007-2009. The Eagan area was designated nonattainment for the 2008 Pb NAAQS as part of this initial round. On November 22, 2011 (76 FR 72097), EPA published a second and final round of designations for the 2008 Pb NAAQS based upon air quality monitoring data for calendar years 2008-2010. The Chicago area was designated nonattainment for the 2008 Pb NAAQS as part of this second round.

The Illinois Environmental Protection Agency (Illinois EPA) and Minnesota Pollution Control Agency (MPCA) have submitted to EPA complete, quality-assured, and certified monitoring data covering the period from 2012 to 2014. For the reasons set forth in this document, EPA finds that the areas have reached attainment of the 2008 Pb NAAQS for this time period.

III. Application of EPA's Clean Data Policy to the 2008 Pb NAAQS

Following enactment of the CAA Amendments of 1990, EPA promulgated its interpretation of the requirements for implementing the NAAQS in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 (General Preamble) 57 FR 13498, 13564 (April 16, 1992). In 1995, based on the interpretation of CAA sections 171 and 172, and section 182 in the General Preamble, EPA set forth what has become known as its “Clean Data Policy” for the 1-hour ozone NAAQS. See Memorandum from John S. Seitz, Director, EPA Office of Air Quality Planning and Standards, “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” (May 10, 1995). In 2004, EPA indicated its intention to extend the Clean Data Policy to the fine particulates (PM2.5) NAAQS. See Memorandum from Steve Page, Director, EPA Office of Air Quality Planning and Standards, “Clean Data Policy for the Fine Particle National Ambient Air Quality Standards” (December 14, 2004).

Since 1995, EPA has applied its interpretation under the Clean Data Policy in many rulemakings, suspending certain attainment-related planning requirements for individual areas, based on a determination of attainment. For a full discussion on EPA's application of this policy, see section III of the Bristol, Tennessee Determination of Attainment for the 2008 Pb Standards (77 FR 35652, 35653, June 14, 2012).

IV. Do the Chicago and Eagan areas meet the 2008 Pb NAAQS? A. Criteria

Today's rulemaking assesses whether the Chicago and Eagan areas have attained the 2008 Pb NAAQS, based on the most recent three years of quality-assured data. The Chicago area is comprised of the portions of Cook County that are bounded by Damen Ave. on the west, Roosevelt Rd. on the north, the Dan Ryan Expressway on the east, and the Stevenson Expressway on the south. These boundaries surround the H. Kramer & Co. (H. Kramer) facility, which according to Illinois EPA analysis was found to be the source responsible for elevated lead levels in the Chicago nonattainment area.1 The Eagan area is comprised of the portions of Dakota County that are bounded by Lone Oak Rd. (County Rd. 26) to the north, County Rd. 63 to the east, Wescott Rd. to the south, and Lexington Ave. (County Rd. 43) to the west. These boundaries surround the Gopher Resource facility, which according to National Emissions Inventory data was found to account for 66.7% of all lead emissions in Dakota County.2

1See the technical support document “Region 5 Final Ionia County, Chicago, Illinois Lead Technical Support Document (TSD)” [sic] attached to EPA's air quality designations published November 22, 2011 (76 FR 72097).

2See the technical support document “Region 5—Final Eagan, Minnesota Technical Support Document For 1st Round of Lead Designations” attached to EPA's air quality designations published November 22, 2010 (75 FR 71033).

Under EPA regulations at 40 CFR 50.16, the 2008 primary and secondary Pb standards are met when the maximum arithmetic three-month mean concentration for a three-year period, as determined in accordance with 40 CFR part 50, appendix R, is less than or equal to 0.15 µg/m3 at all relevant monitoring sites in the subject area. EPA refers to this maximum rolling three-month average over a three-year period as the “design value.”

40 CFR part 58, appendix A outlines the quality assurance requirements necessary for providing “sufficient information to assess the quality of the monitoring data.” 40 CFR part 58, appendix D provides network design criteria requirements which describe “specific requirements for the number and location of . . . [monitoring] sites for specific pollutants. . . .” Within this appendix, Section 4.5 states that “[a]t a minimum, there must be one source-oriented SLAMS (State and Local Air Monitoring Station) site located to measure the maximum Pb concentration in ambient air resulting from each non-airport Pb source which emits 0.50 or more tons per year. . . . ”

EPA has reviewed the ambient air monitoring data for the Chicago and Eagan areas in accordance with the provisions of 40 CFR part 50, appendix R, and 40 CFR part 58, appendix A and appendix D. All data considered are complete, quality-assured, certified, and recorded in EPA's Air Quality System (AQS) database. This review addresses air quality data collected in the 2012-2014 period which are the most recent quality-assured data available.

B. Chicago Area Air Quality

The Cook County Department of Environmental Control in conjunction with Illinois EPA operates the 17-031-0110 monitoring site, which is a Federal reference method (FRM) source-oriented SLAMS monitor in the Chicago area. This monitoring site is located at 1241 19th St. in Chicago, Illinois.

In 2013, the United States and the State of Illinois entered into a consent decree with H. Kramer. The consent decree required H. Kramer to, among other things, replace the existing pollution control equipment serving two rotary furnaces at its facility located at 1345 West 21st St. in Chicago with new pollution control technology before September 1, 2013, and to conduct monitoring and stack testing of the new equipment. The consent decree also required H. Kramer to reduce rotary furnace production of two lead alloys until H. Kramer began operation of the new pollution control equipment. H. Kramer has installed and is operating the new pollution control equipment. After the H. Kramer facility implemented the controls required by the consent decree, the Pb values have been well below the standard.

Table 1 shows the 2012-2014 three-month rolling averages for the 17-031-0110 monitoring site, in units of µg/m3.

Location AQS site ID 3-month period 2012 2013 2014 1241 19th St., Chicago, IL 17-031-0110 #1 Nov-Jan 3 0.03 0.04 0.01 Dec-Feb 0.02 0.03 0.01 Jan-Mar 0.02 0.02 0.02 Feb-Apr 0.02 0.02 0.02 Mar-May 0.03 0.02 0.02 Apr-Jun 0.02 0.02 0.02 May-July 0.02 0.02 0.02 Jun-Aug 0.03 0.02 0.02 July-Sept 0.04 0.03 0.02 Aug-Oct 0.05 0.03 0.02 Sept-Nov 0.04 0.03 0.04 Oct-Dec 0.04 0.02 0.03

The data shown in Table 1 are complete, quality-assured, and certified and show 0.05 µg/m3 as the highest three-month rolling average.4

3 When calculating a three-month rolling average, the first two data points, November through January for 2012 and December through February of 2012, would additionally use data from November and December of 2011.

4 A co-located monitor with AQS site ID 17-031-0110 #9 has been operating since April 2013. Because this monitor has not produced three complete years of data, EPA is not considering its data in this action. Nevertheless, the co-located monitor has not shown any exceedances of the standard.

With the combination of emissions limits, controls for fugitive emissions, and implementation of additional testing and monitoring requirements, the design value at the monitor is now about a third of the standard.

EPA's review of these data indicates that the Chicago area has attained and continues to attain the 2008 Pb NAAQS, with a design value of 0.05 µg/m3 for the period of 2012-2014.

C. Eagan Area Air Quality

MPCA operates the 27-037-0465 monitoring site, which is a FRM source-oriented SLAMS monitor in the Eagan area. This monitoring site is located at 149 & Yankee Doodle Rd. in Eagan, Minnesota. After the Gopher Resource facility implemented emissions limits, controlled fugitive emissions, and implemented general operating and maintenance requirements, the Pb values have been below the standard.

Table 2 shows the 2012-2014 three-month rolling averages for the 27-037-0465 monitoring site, in units of µg/m3.

Location AQS site ID 3-month period 2012 2013 2014 149 & Yankee Doodle Rd., Eagan, MN 27-037-0465 #1 Nov-Jan 5 0.07 0.09 0.08 Dec-Feb 0.09 0.08 0.12 Jan-Mar 0.10 0.09 0.11 Feb-Apr 0.09 0.08 0.08 Mar-May 0.06 0.07 0.04 Apr-Jun 0.05 0.05 0.03 May-July 0.08 0.09 0.03 Jun-Aug 0.09 0.10 0.03 July-Sept 0.11 0.11 0.04 Aug-Oct 0.08 0.07 0.06 Sept-Nov 0.10 0.08 0.08 Oct-Dec 0.07 0.09 0.06

Table 3 shows the 2012-2014 three-month rolling averages for the co-located 27-037-0465 monitoring site, in units of µg/m3.

5 The 2012 data set includes data from November and December of 2011.

Location AQS site ID 3-month period 2012 2013 2014 149 & Yankee Doodle Rd., Eagan, MN 27-037-0465 #2 Nov-Jan 6 0.07 0.09 0.08 Dec-Feb 0.08 0.08 0.12 Jan-Mar 0.10 0.10 0.11 Feb-Apr 0.07 0.09 0.08 Mar-May 0.05 0.08 0.04 Apr-Jun 0.05 0.06 0.03 May-July 0.10 0.12 0.04 Jun-Aug 0.11 0.12 0.03 July-Sept 0.13 0.12 0.05 Aug-Oct 0.10 0.07 0.07 Sept-Nov 0.11 0.08 0.08 Oct-Dec 0.08 0.09 0.06

The data shown in Tables 2 and 3 are complete, quality-assured, and certified and show 0.13 µg/m3 as the highest three-month rolling average.

6 The 2012 data set includes data from November and December of 2011.

With the combination of emissions limits, controls for fugitive emissions, and implementation of general operating and maintenance requirements, the design value at the monitor is now about thirteen-fifteenths of the standard.

EPA's review of these data indicates that the Eagan area has attained and continues to attain the 2008 Pb NAAQS, with a design value of 0.13 µg/m3 for the period of 2012-2014.

V. What is the effect of this action?

Based on complete, quality-assured, and certified data for 2012-2014, EPA is determining that the Chicago and Eagan areas have attained the 2008 Pb NAAQS. The requirements for Illinois EPA and MPCA to submit attainment demonstrations, and associated RACM, RFP plans, contingency measures, and any other planning SIPs related to attainment of the 2008 Pb NAAQS for the Chicago and Eagan areas, are suspended for as long as the areas continue to attain the 2008 Pb NAAQS. This rulemaking is consistent and in keeping with EPA's long-held interpretation of CAA requirements, as well as with EPA's regulations for similar determinations for ozone (see 40 CFR Section 51.918) and PM2.5 (see 40 CFR Section 51.1004(c)).

This action does not constitute a redesignation of the areas to attainment of the 2008 Pb NAAQS under section 107(d)(3) of the CAA. This action does not involve approving maintenance plans for the areas as required under section 175A of the CAA, nor does it find that the areas have met all other requirements for redesignation. The Chicago and Eagan areas remain designated nonattainment for the 2008 Pb NAAQS until such time as EPA determines that the areas meet the CAA requirements for redesignation to attainment and takes action to redesignate the areas.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective October 23, 2015 without further notice unless we receive relevant adverse written comments by September 23, 2015. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective October 23, 2015.

VI. Statutory and Executive Order Reviews.

This action makes attainment determinations for the Chicago and Eagan areas for the 2008 lead NAAQS based on air quality data and results in the suspension of certain Federal requirements and does not impose any additional requirements. 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 CAA; and

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

In addition, the attainment determinations are 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 23, 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. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Reporting and recordkeeping requirements.

Dated: August 10, 2015. Susan Hedman, Regional Administrator, Region 5.

40 CFR part 52 is amended as follows:

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

42 U.S.C. 7401 et seq.

2. Add § 52.746 to subpart O to read as follows:
§ 52.746 Control strategy: Lead (Pb).

(a) Based upon EPA's review of the air quality data for the 3-year period 2012 to 2014, EPA determined that the Chicago, Illinois lead nonattainment area attained the 2008 Lead National Ambient Air Quality Standard (NAAQS). This clean data determination suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as this area continues to meet the 2008 lead NAAQS.

(b) [Reserved]

3. Add § 52.1238 to subpart Y to read as follows:
§ 52.1238 Control strategy: Lead (Pb).

(a) Based upon EPA's review of the air quality data for the 3-year period 2012 to 2014, EPA determined that the Eagan, Minnesota lead nonattainment area attained the 2008 Lead National Ambient Air Quality Standard (NAAQS). This clean data determination suspends the requirements for this area to submit an attainment demonstration, associated reasonably available control measures, a reasonable further progress plan, contingency measures, and other planning SIPs related to attainment of the standard for as long as this area continues to meet the 2008 lead NAAQS.

(b) [Reserved]

[FR Doc. 2015-20775 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0556; FRL-9932-95-Region 7] Approval and Promulgation of Air Quality Implementation Plans; State of Missouri; Cross-State Air Pollution Rule AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State Implementation Plan (SIP) submitted by the State of Missouri in a letter dated March 30, 2015. This SIP revision provides Missouri's state-determined allowance allocations for existing electric generating units (EGUs) in the state for the 2016 control periods and replaces certain allowance allocations for the 2016 control periods established by EPA under the Cross-State Air Pollution Rule (CSAPR). The CSAPR addresses the “good neighbor” provision of the Clean Air Act (CAA or Act) that requires states to reduce the transport of pollution that significantly affects downwind air quality. In this final action EPA is approving Missouri's SIP revision, incorporating the state-determined allocations for the 2016 control periods into the SIP, and amending the regulatory text of the CSAPR Federal Implementation Plan (FIP) to reflect this approval and inclusion of the state-determined allocations. EPA is taking direct final action to approve Missouri's SIP revision because it meets the requirements of the CAA and the CSAPR requirements to replace EPA's allowance allocations for the 2016 control periods. This action is being taken pursuant to the CAA and its implementing regulations. EPA's allocations of CSAPR trading program allowances for Missouri 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. The CSAPR FIPs for Missouri remain in place until such time as the State decides to replace the FIPs with a SIP revision.

DATES:

This direct final rule will be effective October 5, 2015, without further notice, unless EPA receives adverse comment by September 23, 2015. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0556, by one of the following methods:

1. www.regulations.gov. Follow the on-line instructions for submitting comments.

2. Email: [email protected]

3. Mail or Hand Delivery: Lachala Kemp, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219.

Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-2015-0556. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. The Regional Office's official hours of business are Monday through Friday, 8:00 to 4:30 excluding legal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

FOR FURTHER INFORMATION CONTACT:

Lachala Kemp, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7214 or by email at [email protected]

SUPPLEMENTARY INFORMATION:

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

I. What is being addressed in this document? II. 2016 CSAPR SIPs III. What is EPA's analysis of Missouri's submission? IV. Final Action I. What is being addressed in this document?

EPA is taking direct final action to approve revisions to the SIP submitted by the State of Missouri in a letter dated March 30, 2015, that modifies the allocations of annual and ozone season 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 (D.C. 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.

1 Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals; August 8, 2011 (76 FR 48208).

2 The CSAPR is implemented in two Phases (I and II) with Phase I referring to 2015 and 2016 control periods, and Phase II consisting of 2017 and beyond control periods.

3 Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; May 12, 2005 (70 FR 25162).

4North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on reh'g, 550 F.3d 1176 (D.C. Cir. 2008).

5 The CSAPR obligations related to ozone-season NOX emissions for five states, including Missouri, were established in a separate rule referred to here as the Supplemental Rule. Federal Implementation Plans for Iowa, Michigan, Missouri, Oklahoma, and Wisconsin and Determination for Kansas Regarding Interstate Transport of Ozone; December 27, 2011 (76 FR 80760).

6 National Ambient Air Quality Standards for Particulate Matter; July 18, 1997 (62 FR 36852).

7 National Ambient Air Quality Standards for Particulate Matter; October 17, 2006 (71 FR 61144).

8 National Ambient Air Quality Standards for Ozone; July 18, 1997 (62 FR 38856).

Missouri is subject to the FIPs that implement the CSAPR and require certain EGUs to participate in the EPA-administered federal SO2 annual, NOX annual, and NOX ozone season cap-and trade programs.9 Missouri's March 30, 2015, SIP revision allocates allowances under the CSAPR to existing EGUs in the State for the 2016 control periods only. Missouri's SIP revision includes state-determined allocations for the CSAPR NOX annual and NOX ozone season trading programs, 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.

9 On July 28, 2015, the DC Circuit, issued an opinion upholding CSAPR, but remanding without vacatur certain state emissions budgets to EPA for reconsideration. EME Homer City Generation, L.P. v. EPA, No. 11-1302, slip op. CSAPR implementation at this time remains unaffected by the court decision, and EPA will address the remanded emissions budgets in a separate rulemaking. Moreover, Missouri's emissions budgets were not among those remanded to EPA for reconsideration.

Through this action, EPA is approving Missouri's March 30, 2015 SIP revision, incorporating the allocations into the SIP, and amending the CSAPR FIP's regulatory text for Missouri at 40 CFR 52.1326 to reflect this approval and inclusion of the state-determined allowance allocations for the 2016 control periods. EPA's allocations of CSAPR trading program allowances for Missouri 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 Missouri in this action. The CSAPR FIPs for Missouri 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 Missouri's 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.

II. 2016 CSAPR SIPs

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

10 States can also submit SIP revisions to replace EPA-determined, existing-unit allocations with state-determined allocations for control periods after 2016 via a separate process described at 40 CFR 52.38(a)(4), (a)(5), (b)(4), and (b)(5) and 52.39(e), (f), (h), and (i).

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 NOX 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.

11 For the five states (Iowa, Michigan, Missouri, Oklahoma, and Wisconsin) covered in the Supplemental Rule in the case of ozone season NOX, March 6, 2012, was originally the date by which notifications of intentions to submit state allocations were due to the Administrator, but that date was later delayed to March 6, 2015. See 76 FR 80760 and 79 FR 71671.

Twelve states, including Missouri, 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:

12 The docket for today's action contains Missouri's October 17, 2011 letter notifying EPA of its intention to submit a SIP revision with respect to allocations of both annual and ozone-season NOX allowances.

13 Rulemaking To Amend Dates in Federal Implementation Plans Addressing Interstate Transport of Ozone and Fine Particulate Matter; December 3, 2014 (79 FR 71663).

• 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). Missouri's March 30, 2015 SIP submission addresses the aforementioned requirements allowing a state to allocate 2016 CSAPR allowances for the annual and ozone season NOX trading programs. EPA's analysis of Missouri's SIP submission is explained below in section III.

III. What is EPA's analysis of Missouri's SIP submission?

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

A. Notification from a State to EPA must be received 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 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 17, 2011, Missouri notified EPA via a letter of the State's intent to submit complete SIP revisions for allocating TR NOX Annual and TR NOX Ozone Season 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

14 The abbreviation “TR” in certain legal terms used in the CSAPR trading programs, including the legal terms for the trading program allowances, stands for “Transport Rule,” an earlier name for the CSAPR.

15 The October 17, 2011, letter submitted to EPA by Missouri also indicates that the State intended to submit a SIP revision for allocating TR SO2 Group 1 allowances. After that letter was submitted the State decided not to submit a SIP revision for the TR SO2 Group 1 allocations for the 2016 control period.

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 Missouri and found it to be complete. This submittal addressed the allocations of both NOX annual allowances and NOX ozone season allowances (even though Missouri's submittal deadline with respect to NOX ozone season allowances was October 1, 2015, rather than April 1, 2015). 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 Missouri's SIP revision, the State submitted a list of units to be allocated TR NOX Annual and TR NOX Ozone Season allowances for the 2016 control periods. 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 Missouri as part of the SIP revision is located in the State of Missouri 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 and new unit set-aside for Missouri for the 2016 control periods as 52,400 tons and 3,144 tons, respectively, and established the NOX ozone season budget and new unit set-aside for Missouri for the 2016 control periods as 22,788 tons and 1,367 tons, respectively. Missouri's SIP revision, for approval in this action, does not affect these budgets, which are total amounts of allowances available for allocation for the 2016 control periods under the EPA-administered cap-and-trade programs under the CSAPR FIPs. In short, the abbreviated SIP revision only affects allocations of allowances under the established state budgets.

The Missouri 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 new unit set-aside (52,400 tons—3,144 tons = 49,256 tons).16 The Missouri SIP revision allocates 49,251 TR NOX Annual allowances to existing units in the State. EPA will place the five unallocated allowances from the Missouri CSAPR 2016 budget for existing units into the TR NOX Annual new unit set-aside for the 2016 control period.

16 The CSAPR does not establish Indian country new unit set-asides of TR NOX Annual allowances for Missouri.

The Missouri SIP revision allocating TR NOX Ozone Season allowances for the 2016 control period does not establish allocations exceeding the amount of the budget under § 97.510(a) minus the new unit set-aside (22,788 tons—1,367 tons = 21,421 tons).17 The Missouri SIP revision allocates 21,418 TR NOX Ozone Season allowances to existing units in the State. EPA will place the three unallocated allowances from the Missouri CSAPR 2016 budget into the TR NOX Ozone Season new unit set-aside for the 2016 control period.

17 The CSAPR does not establish Indian country new unit set-asides of TR NOX Ozone Season allowances for Missouri.

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 Missouri 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 Missouri 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, Missouri's 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 Missouri's March 30, 2015, SIP revision, incorporating the allocations into the SIP, and amending the CSAPR FIPs' regulatory text for Missouri at 40 CFR 52.1326 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 Missouri in this action. EPA is taking final action to approve Missouri's March 30, 2015 SIP revision because it is in accordance with the CAA and its implementing regulations.

IV. Final Action

EPA is taking final action to approve Missouri's March 30, 2015, CSAPR SIP revisions that provide Missouri's 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, Missouri's SIP revision allocates allowances to existing EGUs in the State under the CSAPR's NOX annual and NOX ozone season trading programs. Missouri's SIP revision meets the applicable requirements in 40 CFR 52.38 for NOX annual and NOX ozone season allowance allocations for the 2016 control periods. EPA is approving Missouri's 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 October 5, 2015 without further notice unless the Agency receives adverse comments by September 23, 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 October 5, 2015 and no further action will be taken on the proposed rule.

Statutory and Executive Order Reviews

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 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 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).

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 23, 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).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.

Dated: August 12, 2015. Mark Hague, Acting Regional Administrator, Region 7.

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

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

42 U.S.C. 7401 et seq.

Subpart AA—Missouri
2. In § 52.1320, the table in paragraph (e) is amended by adding entry (66) at the end of the table to read as follows:

(e) * * *

EPA-Approved Missouri Nonregulatory Provisions Name of nonregulatory SIP provision Applicable geographic area or nonattainment area State submittal date EPA approval date Explanation *         *         *         *         *         *         * (66) Cross State Air Pollution Rule—State-Determined Allowance Allocations for the 2016 control periods Statewide 3/30/15 8/24/15 and [Insert Federal Register citation] 3. Section 52.1326 is amended by adding paragraphs (a)(3) and (b)(3) to read as follows:
§ 52.1326 Interstate pollutant transport provisions; What are the FIP requirements for decreases in emissions of nitrogen oxides?

(a) * * *

(3) Pursuant to § 52.38(a)(3), Missouri's state-determined TR NOX Annual allowance allocations established in the March 30, 2015, SIP revision replace the unit-level TR NOX Annual allowance allocation provisions of the TR NOX Annual Trading Program at 40 CFR 97.411(a) for the State for the 2016 control period with a list of TR NOX Annual units that commenced operation prior to January 1, 2010, in the State and the state-determined amount of TR NOX Annual allowances allocated to each unit on such list for the 2016 control period, as approved by EPA on August 24, 2015, [Insert Federal Register citation].

(b) * * *

(3) Pursuant to § 52.38(b)(3), Missouri's state-determined TR NOX Ozone Season allowance allocations established in the March 30, 2015, SIP revision replace the unit-level TR NOX Ozone Season allowance allocation provisions of the TR NOX Ozone Season Trading Program at 40 CFR 97.511(a) for the State for the 2016 control period with a list of TR NOX Ozone Season units that commenced operation prior to January 1, 2010, in the State and the state-determined amount of TR NOX Ozone Season allowances allocated to each unit on such list for the 2016 control period, as approved by EPA on August 24, 2015, [Insert Federal Register citation].

[FR Doc. 2015-20774 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2009-0805; FRL-9932-65-Region 5] Air Plan Approval; Michigan and Wisconsin; 2006 PM2.5 NAAQS PSD and Visibility Infrastructure SIP Requirements AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Direct final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving elements of state implementation plan (SIP) submissions from Michigan regarding Prevention of Significant Deterioration (PSD) and Wisconsin regarding visibility infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2006 fine particulate matter (PM2.5) National Ambient Air Quality Standards (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

DATES:

This direct final rule will be effective October 23, 2015, unless EPA receives adverse comments by September 23, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-OAR-2009-0805 by one of the following methods:

1. www.regulations.gov: Follow the on-line instructions for submitting comments.

2. Email: [email protected]

3. Fax: (312) 408-2279.

4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

Instructions: Direct your comments to Docket ID. EPA-R05-OAR-2009-0805. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Sarah Arra, Environmental Scientist, at (312) 886-9401 before visiting the Region 5 office.

FOR FURTHER INFORMATION CONTACT:

Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected]

SUPPLEMENTARY INFORMATION:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

I. What is the background of these SIP submissions? II. What is EPA's review of these SIP submissions? III. What action is EPA taking? IV. Statutory and Executive Order Reviews I. What is the background of these SIP submissions?

This rulemaking addresses submissions from the Michigan Department of Environmental Quality (MDEQ) and the Wisconsin Department of Natural Resources (WDNR). The states submitted their infrastructure SIPs for the 2006 PM2.5 NAAQS on the following dates: Michigan—August 15, 2011, supplemented on July 9, 2012; Wisconsin—January 24, 2011, supplemented on March 28, 2011 and June 29, 2012.

The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make 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),” and these SIP submissions are to 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. This specific rulemaking is only taking action on the PSD elements of the Michigan submittal and the visibility element of the Wisconsin submittal. The majority of the other infrastructure elements were addressed in a proposed rulemaking published August 2, 2012, (77 FR 45992). Final action was taken on those elements on October 29, 2012, (77 FR 65478).1 The infrastructure elements for PSD are found in CAA 110(a)(2)(C), 110(a)(2)(D), and 110(a)(2)(J) and will be discussed in detail below. The infrastructure elements for visibility are also in CAA section 110(a)(2)(D). For further discussion on the background of infrastructure submittals, see 77 FR 45992.

1 For Michigan, action was taken on sections 110(a)(2)(A) through (H), and (J) through (M), except for the prevention of significant deterioration requirements in sections 110(a)(2)(C), (D)(i)(II), and (J), the visibility portion of 110(a)(2)(D)(i)(II), and the state board requirements in (E)(ii). For Wisconsin, action was taken on sections 110(a)(2)(A) through (H), and (J) through (M), except the prevention of significant deterioration requirements in sections 110(a)(2)(C), (D)(i)(II), and (J), the visibility portion of (D)(i)(II), and the state board requirements in (E)(ii).

II. What is EPA's review of these SIP submissions? A. Michigan—PSD

PSD infrasture elements are addressed in different sections of the CAA: Sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), and 110(a)(2)(J).

1. Section 110(a)(2)(C)—Program for Enforcement of Control Measures; PSD

States are required to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources to meet new source review (NSR) requirements under PSD and nonattainment new source review (NNSR) programs. Part C of the CAA (sections 160-169B) addresses PSD, while part D of the CAA (sections 171-193) addresses NNSR requirements.

The evaluation of each state's submission addressing the infrastructure SIP requirements of section 110(a)(2)(C) covers: (i) Enforcement of SIP measures; (ii) PSD provisions that explicitly identify oxides of nitrogen (NOX) as a precursor to ozone in the PSD program; (iii) identification of precursors to PM2.5 and the identification of PM2.5 and PM102 condensables in the PSD program; (iv) PM2.5 increments in the PSD program; and, (v) Greenhouse Gas(GHG) permitting and the “Tailoring Rule.” 3

2 PM10 refers to particles with diameters between 2.5 and 10 microns, oftentimes referred to as “coarse” particles.

3 EPA highlights this statutory requirement in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards” and has issued additional guidance documents, the most recent on September 13, 2013, “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2)” (2013 memo).

(i) Enforcement of SIP Measures

The enforcement of SIP measures provision was approved in the October 29, 2012 rulemaking (77 FR 65478) for the 2006 PM2.5.

(ii): PSD Provisions That Explicitly Identify NOX as a Precursor to Ozone in the PSD Program

EPA's “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule) was published on November 29, 2005 (see 70 FR 71612). Among other requirements, the Phase 2 Rule obligated states to revise their PSD programs to explicitly identify NOX as a precursor to ozone (70 FR 71612 at 71679, 71699-71700). This requirement was codified in 40 CFR 51.166.

The Phase 2 Rule required that states submit SIP revisions incorporating the requirements of the rule, including those identifying NOX as a precursor to ozone, by June 15, 2007 (see 70 FR 71612 at 71683, November 29, 2005).

EPA approved revisions to Michigan's PSD SIP reflecting these requirements on April 4, 2014 (see 79 FR 18802), and therefore finds that Michigan has met the set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2006 PM2.5 NAAQS.

(iii): Identification of Precursors to PM2.5 and the Identification of PM2.5 and PM10 Condensables in the PSD Program

On May 16, 2008 (see 73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (2008 NSR Rule). The 2008 NSR Rule finalized several new requirements for SIPs to address sources that emit direct PM2.5 and other pollutants that contribute to secondary PM2.5 formation. One of these requirements is for NSR permits to address pollutants responsible for the secondary formation of PM2.5, otherwise known as precursors. In the 2008 rule, EPA identified precursors to PM2.5 for the PSD program to be sulfur dioxide (SO2) and NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The 2008 NSR Rule also specifies that volatile organic compounds (VOCs) are not considered to be precursors to PM2.5 in the PSD program unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that emissions of VOCs in an area are significant contributors to that area's ambient PM2.5 concentrations.

The explicit references to SO2, NOX, and VOCs as they pertain to secondary PM2.5 formation are codified at 40 CFR 51.166(b)(49)(i)(b) and 40 CFR 52.21(b)(50)(i)(b). As part of identifying pollutants that are precursors to PM2.5, the 2008 NSR Rule also required states to revise the definition of “significant” as it relates to a net emissions increase or the potential of a source to emit pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 40 CFR 52.21(b)(23)(i) define “significant” for PM2.5 to mean the following emissions rates: 10 tons per year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 tpy of NOX (unless the state demonstrates to the Administrator's satisfaction or EPA demonstrates that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The deadline for states to submit SIP revisions to their PSD programs incorporating these changes was May 16, 2011 (see 73 FR 28321 at 28341).4

4 EPA notes that on January 4, 2013, the U.S. Court of Appeals for the D.C. Circuit, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), held that EPA should have issued the 2008 NSR Rule in accordance with the CAA's requirements for PM10 nonattainment areas (Title I, Part D, subpart 4), and not the general requirements for nonattainment areas under subpart 1. As the subpart 4 provisions apply only to nonattainment areas, EPA does not consider the portions of the 2008 rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, EPA does not anticipate the need to revise any PSD requirements promulgated by the 2008 NSR Rule in order to comply with the court's decision. Accordingly, EPA's approval of Michigan's infrastructure SIP as to elements (C),(D)(i)(II), or (J) with respect to the PSD requirements promulgated by the 2008 implementation rule does not conflict with the court's opinion.

The court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 implementation rule also does not affect EPA's action on the present infrastructure action. EPA interprets the CAA to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subparts 2 through 5 under part D, extending as far as 10 years following designations for some elements.

The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM2.5 and PM10 emission limits in NSR permits. Instead, EPA determined that states had to account for PM2.5 and PM10 condensables for applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits beginning on or after January 1, 2011. This requirement is codified in 40 CFR 51.166(b)(49)(i)(a) and 40 CFR 52.21(b)(50)(i)(a). Revisions to states' PSD programs incorporating the inclusion of condensables were required be submitted to EPA by May 16, 2011 (see 73 FR 28321 at 28341).

EPA approved revisions to Michigan's PSD SIP reflecting these requirements on April 4, 2014 (see 79 FR 18802), and therefore proposes that Michigan has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2006 PM2.5 NAAQS.

(iv): PM2.5 increments in the PSD program

On October 20, 2010, EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 NSR Rule). This rule established several components for making PSD permitting determinations for PM2.5, including a system of “increments” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c), and are included in the table below.

Table 1—PM2.5 Increments Established by the 2010 NSR Rule in Micrograms Per Cubic Meter Annual
  • arithmetic
  • mean
  • 24-hour max
    Class I 1 2 Class II 4 9 Class III 8 18

    The 2010 NSR Rule also established a new “major source baseline date” for PM2.5 as October 20, 2010, and a new trigger date for PM2.5 as October 20, 2011. These revisions are codified in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 40 CFR 52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 NSR Rule revised the definition of “baseline area” to include a level of significance of 0.3 micrograms per cubic meter, annual average, for PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) and 40 CFR 52.21(b)(15)(i).

    On April 4, 2014 (79 FR 18802), EPA finalized approval of the applicable infrastructure SIP PSD revisions; therefore, we are proposing that Michigan has met this set of infrastructure SIP requirements of section 110(a)(2)(C) with respect to the 2006 PM2.5 NAAQS.

    (v): GHG permitting and the “Tailoring Rule”

    With respect to CAA Sections 110(a)(2)(C) and (J), EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS that demonstrates that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of section 110(a)(2)(D)(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program correctly addressing all regulated NSR pollutants. Michigan has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including GHGs.

    On June 23, 2014, the United States Supreme Court issued a decision addressing the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427. The Supreme Court said that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also said that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs, contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

    In order to act consistently with its understanding of the Court's decision pending further judicial action to effectuate the decision, the EPA is not continuing to apply EPA regulations that would require that SIPs include permitting requirements that the Supreme Court found impermissible. Specifically, EPA is not applying the requirement that a state's SIP-approved PSD program require that sources obtain PSD permits when GHGs are the only pollutant (i) that the source emits or has the potential to emit above the major source thresholds, or (ii) for which there is a significant emissions increase and a significant net emissions increase from a modification (e.g. 40 CFR 51.166(b)(48)(v)).

    EPA anticipates a need to revise Federal PSD rules and for many states to revise their existing SIP-approved PSD programs in light of the Supreme Court opinion. The timing and content of subsequent EPA actions with respect to the EPA regulations and state PSD program approvals are expected to be informed by additional legal process before the United States Court of Appeals for the District of Columbia Circuit. At this juncture, EPA is not expecting states to have revised their PSD programs for purposes of infrastructure SIP submissions and is only evaluating such submissions to ensure that the state's program correctly addresses GHGs consistent with the Supreme Court's decision.

    At present, EPA is proposing that Michigan's SIP is sufficient to satisfy sections 110(a)(2)(C), (D)(i)(II), and (J) with respect to GHGs because the PSD permitting program previously approved by EPA into the SIP continues to require that PSD permits (otherwise required based on emissions of pollutants other than GHGs) contain limitations on GHG emissions based on the application of BACT. Although the approved Michigan PSD permitting program may currently contain provisions that are no longer necessary in light of the Supreme Court decision, this does not render the infrastructure SIP submission inadequate to satisfy Section 110(a)(2)(C), (D)(i)(II), and (J). The SIP contains the necessary PSD requirements at this time, and the application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of sources of GHGs that EPA does not consider necessary at this time in light of the Supreme Court decision.

    For the purposes of the 2006 PM2.5 NAAQS infrastructure SIPs, EPA reiterates that NSR Reform regulations are not within the scope of these actions. Therefore, we are not taking action on existing NSR Reform regulations for Michigan. EPA approved Michigan's minor NSR program on May 6, 1980 (see 45 FR 29790); and since that date, MDEQ and EPA have relied on the existing minor NSR program to ensure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS.

    Certain sub-elements in this section overlap with elements of section 110(a)(2)(D)(i), section 110(a)(2)(E) and section 110(a)(2)(J). These links will be discussed in the appropriate areas below.

    2. Section 110(a)(2)(D)(i)(II)—Interstate transport

    Section 110(a)(2)(D)(i)(II) requires that SIPs include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality or to protect visibility in another state.

    EPA notes that Michigan's satisfaction of the applicable infrastructure SIP PSD requirements for the 2006 PM2.5 NAAQS have been detailed in the section addressing section 110(a)(2)(C). EPA further notes that the proposed actions in that section related to PSD are consistent with the proposed actions related to PSD for section 110(a)(2)(D)(i)(II), and they are reiterated below.

    EPA has previously approved revisions to Michigan's SIP that meet certain requirements obligated by the Phase 2 Rule and the 2008 NSR Rule. These revisions included provisions that: Explicitly identify NOX as a precursor to ozone, explicitly identify SO2 and NOX as precursors to PM2.5, and regulate condensable PM2.5 and PM10 in applicability determinations and establishing emissions limits. EPA has also previously approved revisions to Michigan's SIP that incorporate the PM2.5 increments and the associated implementation regulations including the major source baseline date, trigger date, and level of significance for PM2.5 per the 2010 NSR Rule. EPA is proposing that Michigan's SIP contains provisions that adequately address the 2006 PM2.5 NAAQS.

    States also have an obligation to ensure that sources located in nonattainment areas do not interfere with a neighboring state's PSD program. One way that this requirement can be satisfied is through an NNSR program consistent with the CAA that addresses any pollutants for which there is a designated nonattainment area within the state.

    Michigan's EPA-approved NNSR regulations found in Part 2 of the SIP, specifically in Michigan Administrative Code sections R 336.1220 and R 336.1221, are consistent with 40 CFR 51.165, or 40 CFR part 51, appendix S. Therefore, EPA proposes that Michigan has met all of the applicable PSD requirements for the 2006 PM2.5 NAAQS for transport prong 3 related to section 110(a)(2)(D)(i)(II).

    3. Section 110(a)(2)(J)—Consultation With Government Officials; Public Notifications; PSD; Visibility Protection

    States must meet applicable requirements of section 110(a)(2)(C) related to PSD. MDEQ's PSD program in the context of infrastructure SIPs has already been discussed in the paragraphs addressing section 110(a)(2)(C) and 110(a)(2)(D)(i)(II), and EPA notes that the proposed actions for those sections are consistent with the proposed actions for this portion of section 110(a)(2)(J). Therefore, EPA proposes that Michigan has met all of the infrastructure SIP requirements for PSD associated with section 110(a)(2)(J) for the 2006 PM2.5 NAAQS.

    B. Wisconsin—Section 110(a)(2)(D)(i)(II)—Interstate Transport

    With regard to the applicable requirements for visibility protection of section 110(a)(2)(D)(i)(II), states are subject to visibility and regional haze program requirements under part C of the CAA (which includes sections 169A and 169B, addressing visibility protection). The 2013 Memo states that these requirements can be satisfied by an approved SIP addressing reasonably attributable visibility impairment, if required, or an approved SIP addressing regional haze.

    On August 7, 2012, EPA published its final approval of Wisconsin's regional haze plan (see 77 FR 46952). Therefore, EPA is proposing that Wisconsin has met the visibility protection requirements of section 110(a)(2)(D)(i)(II) for the 2006 PM2.5 NAAQS.

    III. What action is EPA taking?

    EPA is approving the PSD related infrastructure requirements for Michigan's 2006 PM2.5 NAAQS submittals found in CAA sections 110(a)(2)(C), (D)(i)(II), and (J). EPA is also approving the visibility related infrastructure requirements for Wisconsin's 2006 PM2.5 NAAQS submittals found in CAA section 110 (a)(2)(D)(i)(II).

    We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective October 23, 2015 without further notice unless we receive relevant adverse written comments by September 23, 2015. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective October 23, 2015.

    IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this 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).

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the 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 23, 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. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

    Dated: August 10, 2015. Susan Hedman, Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

    PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    2. In § 52.1170, the table in paragraph (e) is amended by revising the entry for “Section 110(a)(2) Infrastructure Requirements for the 2006 24-Hour PM2.5 NAAQS” to read as follows:
    § 52.1170 Identification of plan.

    (e) * * *

    EPA-Approved Michigan Nonregulatory and Quasi-Regulatory Provisions Name of nonregulatory SIP provision Applicable geographic or nonattainment area State submittal date EPA approval date Comments *         *         *         *         *         *         * Section 110(a)(2) Infrastructure Requirements for the 2006 24-Hour PM2.5 NAAQS Statewide 8/15/2011,
  • 7/9/2012
  • 8/24/2015, [Insert page number where the document begins] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). We are not taking action on the visibility protection requirements of (D)(i)(II) and the state board requirements of (E)(ii). We will address these requirements in a separate action.
    *         *         *         *         *         *         *
    3. Section 52.2591 is amended by revising paragraph (c) to read as follows:
    § 52.2591 Section 110(a)(2) Infrastructure Requirements.

    (c) Approval and Disapproval — In a January 24, 2011, submittal, supplemented on March 28, 2011, and June 29, 2012, Wisconsin certified that the State has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2006 24-hour PM2.5 NAAQS. EPA is approving Wisconsin's submission addressing the infrastructure SIP requirements of section 110(a)(2)(A), (B), (C) with respect to enforcement and the GHG permitting threshold PSD requirement, (D)(i)(II) with respect to the GHG permitting threshold PSD requirement and visibility protection, (D)(ii), (E) except for state board requirements, (F) through (H), (J) except for narrow prevention of significant deterioration requirements, and (K) through (M). We are not finalizing action on (D)(i)(I), the state board requirements of (E)(ii), and the PSD requirement of NOX as a precursor to ozone in (C), (D)(i)(II), and (J). We will address these requirements in a separate action. We are disapproving narrow portions of Wisconsin's infrastructure SIP submission addressing the relevant prevention of significant deterioration requirements of the 2008 NSR Rule (identifying PM2.5 precursors and the regulation of PM2.5 and PM10 condensables in permits) with respect to section 110(a)(2)(C), (D)(i)(II), and (J).

    [FR Doc. 2015-20771 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA-R04-RCRA-2015-0294; FRL-9932-93-Region 4] North Carolina: Final Authorization of State Hazardous Waste Management Program Revisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    North Carolina has applied to the United States Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for final authorization, and is authorizing the State's changes through this direct final rule. In the “Proposed Rules” section of today's Federal Register, EPA is also publishing a separate document that serves as the proposal to authorize these changes. EPA believes this action is not controversial and does not expect comments that oppose it. Unless EPA receives written comments that oppose this authorization during the comment period, the decision to authorize North Carolina's changes to its hazardous waste program will take effect. If EPA receives comments that oppose this action, EPA will publish a document in the Federal Register withdrawing today's direct final rule before it takes effect, and the separate document published in today's “Proposed Rules” section of this Federal Register will serve as the proposal to authorize the changes.

    DATES:

    This final authorization will become effective on October 23, 2015 unless EPA receives adverse written comment by September 23, 2015. If EPA receives such comment, EPA will publish a timely withdrawal of this direct final rule in the Federal Register and inform the public that this authorization will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-RCRA-2015-0294, by one of the following methods:

    Federal eRulemaking Portal: www.regulations.gov. Follow the on-line instructions for submitting comments.

    Email: [email protected]

    Fax: (404) 562-9964 (prior to faxing, please notify the EPA contact listed below).

    Mail: Send written comments to Gwendolyn Gleaton, RCRA Programs and Materials Management Section, Materials and Waste Management Branch, Resource Conservation and Restoration Division, U.S. Environmental Protection Agency, Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960.

    Hand Delivery or Courier: Deliver your comments to Gwendolyn Gleaton, RCRA Programs and Materials Management Section, Materials and Waste Management Branch, Resource Conservation and Restoration Division, U.S. Environmental Protection Agency, Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

    Instructions: EPA must receive your comments by September 23, 2015. Direct your comments to Docket ID No. EPA-R04-RCRA-2015-0294. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI), or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made publicly available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. (For additional information about EPA's public docket, visit the EPA Docket Center homepage at www.epa.gov/epahome/dockets.htm).

    Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov, or in hard copy.

    You may view and copy North Carolina's application and associated publicly available materials from 8:00 a.m. to 4:00 p.m. at the following locations: EPA, Region 4, Resource Conservation and Restoration Division, Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960; telephone number: (404) 562-8500; and the North Carolina Department of Environment and Natural Resources, 217 West Jones Street, Raleigh, North Carolina 27603; telephone number: (919) 707-8219. Interested persons wanting to examine these documents should make an appointment with the office at least a week in advance.

    FOR FURTHER INFORMATION CONTACT:

    Gwendolyn Gleaton, RCRA Programs and Materials Management Section, Materials and Waste Management Branch, Resource Conservation and Restoration Division, U.S. Environmental Protection Agency, Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960; telephone number: (404) 562-8500; fax number: (404) 562-9964; email address: g[email protected]

    SUPPLEMENTARY INFORMATION: A. Why are revisions to state programs necessary?

    States which have received final authorization from 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 EPA to authorize the 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 EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.

    New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized States at the same time that they take effect in unauthorized States. Thus, EPA will implement those requirements and prohibitions in North Carolina, including the issuance of new permits implementing those requirements, until the State is granted authorization to do so.

    B. What decisions has EPA made in this rule?

    On March 9, 2014, North Carolina submitted a final complete program revision application seeking authorization of changes to its hazardous waste program that correspond to certain Federal rules promulgated between July 1, 2008 and June 30, 2014 (also known as RCRA Clusters XIX through XXIII). EPA concludes that North Carolina's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA grants North Carolina final authorization to operate its hazardous waste program with the changes described in the authorization application, and as outlined below in Section G of this document.

    North Carolina has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of HSWA, as discussed above.

    C. What is the effect of this authorization decision?

    The effect of this decision is that the changes described in North Carolina's authorization application will become part of the authorized State hazardous waste program, and will therefore be federally enforceable. North Carolina will continue to have primary enforcement authority and responsibility for its State hazardous waste program. EPA retains its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:

    • Conduct inspections, and require monitoring, tests, analyses, or reports;

    • Enforce RCRA requirements, including authorized State program requirements, and suspend or revoke permits; and

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

    This action does not impose additional requirements on the regulated community because the regulations for which North Carolina is being authorized by today's action are already effective and enforceable requirements under State law, and are not changed by today's action.

    D. Why wasn't there a proposed rule before today's rule?

    Along with this direct final rule, EPA is publishing a separate document in the “Proposed Rules” section of today's Federal Register that serves as the proposal to authorize these State program changes. EPA did not publish a proposed rule before today because EPA views this as a routine program change and does not expect comments that oppose this approval. EPA is providing an opportunity for public comment now, as described in Section E of this document.

    E. What happens if EPA receives comments that oppose this action?

    If EPA receives comments that oppose this authorization, EPA will withdraw today's direct final rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposed rule mentioned in the previous section, after considering all comments received during the comment period, and will address all such comments in a later final rule. You may not have another opportunity to comment on these State program changes. If you want to comment on this authorization, you must do so at this time.

    If EPA receives comments that oppose only the authorization of a particular change to the State hazardous waste program, EPA will withdraw that part of today's direct final rule, but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

    F. What has North Carolina previously been authorized for?

    North Carolina initially received final authorization on December 14, 1984, effective December 31, 1984 (49 FR 48694), to implement a hazardous waste management program. EPA granted authorization for changes to North Carolina's program on the following dates: March 25, 1986, effective April 8, 1986 (51 FR 10211); August 5, 1988, effective October 4, 1988 (53 FR 1988); February 9, 1989, effective April 10, 1989 (54 FR 6290); September 22, 1989, effective November 21, 1989 (54 FR 38993); January 18, 1991, effective March 19, 1991 (56 FR 1929); April 10, 1991, effective June 9, 1991 (56 FR 14474); July 19, 1991, effective September 17, 1991 (56 FR 33206); April 27, 1992, effective June 26, 1992 (57 FR 15254); December 12, 1992, effective February 16, 1993 (57 FR 59825); January 27, 1994, effective March 28, 1994 (59 FR 3792); April 4, 1994, effective June 3, 1994 (59 FR 15633); June 23, 1994, effective August 22, 1994 (59 FR 32378); November 10, 1994, effective January 9, 1995 (59 FR 56000); September 27, 1995, effective November 27, 1995 (60 FR 49800); April 25, 1996, effective June 24, 1996 (61 FR 18284); October 23, 1998, effective December 22, 1998 (63 FR 56834); August 25, 1999, effective October 25, 1999 (64 FR 46298); February 28, 2002, effective April 29, 2002 (67 FR 9219); December 14, 2004, effective February 14, 2005 (69 FR 74444); March 23, 2005, effective May 23, 2005 (70 FR 14556); February 7, 2011, effective April 8, 2011 (76 FR 6561); and June 14, 2013, effective August 13, 2013 (78 FR 35766).

    G. What changes is EPA authorizing with this action?

    On March 9, 2014, North Carolina submitted a final complete program revision application seeking authorization of its changes in accordance with 40 CFR 271.21. EPA now makes an immediate final decision, subject to receipt of written comments that oppose this action, that North Carolina's hazardous waste program revisions are equivalent to, consistent with, and no less stringent than the Federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. Therefore, EPA grants North Carolina final authorization for the following program changes:

    Description of Federal requirement Federal Register
  • date and page
  • Analogous state authority 1
    220—Academic Laboratories Generator Standards 73 FR 72912, 12/01/2008 15A NCAC 13A .0106(a); and 15A NCAC 13A .0107(a) & (i). 223—Hazardous Waste Technical Corrections and Clarifications 75 FR 12989, 03/18/2010
  • 75 FR 31716, 06/04/2010
  • 15A NCAC 13A .0102(b); 15A NCAC 13A .0106(a), (c), (d) & (f); 15A NCAC 13A .0107(a)-(d) & (f); 15A NCAC 13A .0108(a); 15A NCAC 13A .0109(e), (f), (o) & (s); 15A NCAC 13A .0110(d), (e) & (n); 15A NCAC 13A .0111(a)-(d); 15A NCAC 13A .0112(c); and 15A NCAC 13A .0113(a).
    225—Removal of Saccharin and Its Salts from the Lists of Hazardous Wastes 75 FR 78918, 12/17/2010 15A NCAC 13A .0106(d) & (f); and 15A NCAC 13A .0112(c) & (e). 226—Academic Laboratories Generator Standards Technical Corrections 75 FR 79304, 12/20/2010 15A NCAC 13A .0107(i). 227—Revision of the Land Disposal Treatment Standards for Carbamate Wastes 76 FR 34147, 06/13/2011 15A NCAC 13A .0112(c). 228—Hazardous Waste Technical Corrections and Clarifications Rule 77 FR 22229, 04/13/2012 15A NCAC 13A .0106(d); and 15A NCAC 13A .0111(a). 229—Conditional Exclusions for Solvent Contaminated Wipes 78 FR 46448, 07/31/2013 15A NCAC 13A .0102(b); and 15A NCAC 13A .0106(a). 1 The North Carolina provisions are from the North Carolina Hazardous Waste Management Rules, 15A NCAC 13A, effective as of May 17, 2011.
    H. Where are the revised State rules different from the Federal rules?

    There are no State requirements in this program revision considered to be more stringent or broader in scope than the Federal requirements.

    I. Who handles permits after the authorization takes effect?

    North Carolina will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which EPA issued prior to the effective date of this authorization until they expire or are terminated. EPA will not issue any more permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which North Carolina is not authorized.

    J. How does today's action affect Indian Country (18 U.S.C. 1151) in North Carolina?

    North Carolina is not authorized to carry out its hazardous waste program in Indian Country within the State, which includes the Eastern Band of Cherokee Indians. EPA will continue to implement and administer the RCRA program in these lands.

    K. What is codification and is EPA codifying North Carolina's hazardous waste program as authorized in this rule?

    Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State rules in 40 CFR part 272. EPA is not codifying the authorization of North Carolina's changes at this time. However, EPA reserves the amendment of 40 CFR part 272, subpart II, for the authorization of North Carolina's program changes at a later date.

    L. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action 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 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

    Under RCRA section 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

    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 document 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 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 action will be effective October 23, 2015, unless objections to this authorization are received.

    List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.

    Authority:

    This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

    Dated: June 26, 2015. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2015-20907 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 120109034-2171-01] RIN 0648-XE120 Fisheries of the Northeastern United States; Small-Mesh Multispecies Fishery; Adjustment to the Northern Red Hake Inseason Possession Limit AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; inseason adjustment.

    SUMMARY:

    We announce the reduction of the commercial possession limit for northern red hake for the remainder of the 2015 fishing year. This action is required to prevent the northern red hake total allowable landing limit from being exceeded. This announcement informs the public that the northern red hake possession limit is reduced.

    DATES:

    Effective August 24, 2015, through April 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Reid Lichwell, Fishery Management Specialist, 978-675-9112.

    SUPPLEMENTARY INFORMATION:

    The small-mesh multispecies fishery is managed primarily through a series of exemptions from the Northeast Multispecies Fisheries Management Plan. Regulations governing the red hake fishery are found at 50 CFR part 648. The regulations describing the process to adjust inseason commercial possession limits of northern red hake are described in § 648.86(d)(4) and (5). These regulations require the Regional Administrator to reduce the northern red hake possession limit from 3,000 lb (1,361 kg) to 1,500 lb (680 kg) when landings have been projected to reach or exceed 45 percent of the total allowable landings (TAL). The northern red hake possession limit is required to be further reduced to 400 lb (181 kg) if landings are projected to reach or exceed 62.5 percent of the TAL, unless such a reduction would be expected to prevent the TAL from being reached. The final rule implementing the small-mesh multispecies specifications for 2015-2017, which published in the Federal Register on May 28, 2015 (80 FR 30379), set these inseason adjustment thresholds. These measures were imposed because the annual catch limits (ACL) for northern red hake were exceeded for the 2012 and 2013 fishing years, and northern red hake was experiencing overfishing. We implemented this possession limit reduction trigger to reduce the risk of continued overfishing on the stock and to better constrain catch to the ACL.

    On August 12, 2015, the northern red hake commercial possession limit was reduced from 3,000 lb (1,361 kg) to 1,500 lb (680 kg) because the overall commercial landings reached 45 percent of the TAL. Based on commercial landings data reported through July 30, 2015, the northern red hake fishery is projected to reach 65.2 percent of the TAL on August 22, 2015. Based on this projection, reducing the commercial northern red hake possession limit from 1,500 lb (680 kg) to 400 lb (181 kg) is required to prevent the TAL from being exceeded. Upon the effective date of this action, no person may possess on board or land more than 400 lb (181 kg) of northern red hake per trip for the remainder of the fishing year (i.e., through April 30, 2016).

    Classification

    This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: August 19, 2015. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-20862 Filed 8-19-15; 4:15 pm] BILLING CODE 3510-22-P
    80 163 Monday, August 24, 2015 Proposed Rules DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 1100, 1140, and 1143 [Docket No. FDA-2015-N-1514] RIN 0910-AH24 Nicotine Exposure Warnings and Child-Resistant Packaging for Liquid Nicotine, Nicotine-Containing E-Liquid(s), and Other Tobacco Products; Request for Comments; Extension of Comment Period AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Advance notice of proposed rulemaking; extension of comment period.

    SUMMARY:

    The Food and Drug Administration (FDA) is extending the comment period for the advance notice of proposed rulemaking (ANPRM) entitled “Nicotine Exposure Warnings and Child-Resistant Packaging for Liquid Nicotine, Nicotine-Containing E-Liquid(s), and Other Tobacco Products” that appeared in the Federal Register of July 1, 2015. In the ANPRM, FDA requested comments, data, research results, or other information, that may inform regulatory actions that FDA might take with respect to nicotine exposure warnings and child-resistant packaging for liquid nicotine and nicotine-containing e-liquid(s) that are made or derived from tobacco and intended for human consumption, and potentially for other tobacco products including, but not limited to, novel tobacco products such as dissolvables, lotions, gels, and drinks. The Agency is taking this action in response to requests for an extension to allow interested persons additional time to submit comments.

    DATES:

    FDA is extending the comment period on the ANPRM published July 1, 2015 (80 FR 37555). Submit either electronic or written comments by September 30, 2015.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Electronic Submissions

    Submit electronic comments in the following way:

    • Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Written Submissions

    Submit written submissions in the following ways:

    • Mail/Hand delivery/Courier (for paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    Instructions: All submissions received must include the Docket No. FDA-2015-N-1514 for this rulemaking. All comments received may be posted without change to http://www.regulations.gov, including any personal information provided. For additional information on submitting comments, see the “Requests for Comments and Information” heading of the SUPPLEMENTARY INFORMATION section of this document.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Bryant M. Godfrey or Courtney S. Smith, Center for Tobacco Products, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993, 1-877-CTP-1373, [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    In the Federal Register of July 1, 2015 (80 FR 37555), FDA published an ANPRM with a 60-day comment period to request comments, data, research results, or other information, that may inform regulatory actions that FDA might take with respect to nicotine exposure warnings and child-resistant packaging for liquid nicotine and nicotine-containing e-liquid(s) that are made or derived from tobacco and intended for human consumption, and potentially for other tobacco products including, but not limited to, novel tobacco products such as dissolvables, lotions, gels, and drinks.

    The Agency has received several comments requesting an extension of the comment period for the ANPRM. These comments convey concern that the current 60-day comment period does not allow sufficient time to develop meaningful or thoughtful responses to questions raised in the ANPRM.

    FDA has considered the requests and is extending the comment period for the ANPRM for 30 days, until September 30, 2015. The Agency believes that a 30-day extension allows adequate time for interested persons to submit comments without significantly delaying any potential regulatory action on these important issues.

    II. Requests for Comments and Information A. General Information About Submitting Comments

    Interested persons may submit either electronic comments regarding this document to http://www.regulations.gov or written comments to the Division of Dockets Management (see ADDRESSES). It is only necessary to send one set of comments. Identify comments with the docket number found in brackets in the heading of this document.

    B. Public Availability of Comments

    Received comments 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. As a matter of Agency practice, FDA generally does not post comments submitted by individuals in their individual capacity on http://www.regulations.gov. This is determined by information indicating that the submission is written by an individual, for example, the comment is identified with the category “Individual Consumer” under the field entitled “Category (Required)”, on the “Your Information” page on http://www.regulations.gov; for this ANPRM, however, FDA will not be following this general practice. Instead, FDA will post on http://www.regulations.gov comments to this docket that have been submitted by individuals in their individual capacity. If you wish to submit any information under a claim of confidentiality, please refer to 21 CFR 10.20.

    C. Information Identifying the Person Submitting the Comment

    Please note that your name, contact information, and other information identifying you will be posted on http://www.regulations.gov if you include that information in the body of your comments. For electronic comments submitted to http://www.regulations.gov, FDA will post the body of your comment on http://www.regulations.gov along with your State/province and country (if provided), the name of your representative (if any), and the category identifying you (e.g., individual, consumer, academic, industry). For written submissions submitted to the Division of Dockets Management, FDA will post the body of your comments on http://www.regulations.gov, but you can put your name and/or contact information on a separate cover sheet and not in the body of your comments.

    Dated: August 18, 2015. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2015-20759 Filed 8-21-15; 8:45 am] BILLING CODE 4164-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0489; FRL-9932-74-Region 9] Revision to the California State Implementation Plan; San Joaquin Valley; Demonstration of Creditable Emission Reductions from Economic Incentive Programs AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a demonstration of creditable emission reductions submitted by California for approval into the San Joaquin Valley (SJV) portion of the California State Implementation Plan (SIP). This SIP submittal demonstrates that certain state mobile source incentive funding programs have achieved specified amounts of reductions in emissions of nitrogen oxides (NOX) and fine particulate matter (PM2.5) in the SJV area by 2014. The effect of this action would be to approve these amounts of emission reductions for credit toward an emission reduction commitment in the California SIP. We are taking comments on this proposal and plan to follow with a final action.

    DATES:

    Written comments must be received on or before September 23, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R09-OAR-2015-0489, by one of the following methods:

    1. http://www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Mail or deliver: Andrew Steckel (AIR-4), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, CA 94105-3901. Deliveries are only accepted during the Regional Office's normal hours of operation.

    Instructions: All comments will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information that you consider CBI or otherwise protected should be clearly identified as such and should not be submitted through http://www.regulations.gov or email. http://www.regulations.gov is an anonymous access system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send email directly to EPA, your email address will be automatically captured and included as part of the public comment. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

    Docket: Generally, documents in the docket for this action are available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed at www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available in either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    Idalia Perez, EPA Region IX, [email protected], (415) 972-3248.

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we”, “us” and “our” refer to EPA.

    Table of Contents I. Background II. The State's Submittal III. EPA's Evaluation of the State's Submittal A. SIP Procedural Requirements B. EPA Policy on Economic Incentives C. Sections 110(l) and 193 of the Act IV. Proposed Action and Public Comment V. Statutory and Executive Order Reviews I. Background

    On July 18, 1997, EPA established new national ambient air quality standards (NAAQS) for particles less than or equal to 2.5 micrometers (µm) in diameter (PM2.5), including an annual standard of 15.0 micrograms per cubic meter (µg/m3) based on a 3-year average of annual mean PM2.5 concentrations, and a 24-hour (daily) standard of 65 µg/m3 based on a 3-year average of 98th percentile 24-hour PM2.5 concentrations.1 EPA established these standards after considering substantial evidence from numerous health studies demonstrating that serious health effects are associated with exposures to PM2.5 concentrations above these levels.

    1 62 FR 36852 (July 18, 1997) and 40 CFR 50.7. Effective December 18, 2006, EPA strengthened the 24-hour PM2.5 NAAQS by lowering the level to 35 µg/m3. 71 FR 61144 (October 17, 2006) and 40 CFR 50.13. Effective March 18, 2013, EPA strengthened the annual PM2.5 NAAQS by lowering the level to 12 µg/m3. 78 FR 3086 (January 15, 2013) and 40 CFR 50.18. In this preamble, all references to the PM2.5 NAAQS, unless otherwise specified, are to the 1997 24-hour standard (65 µg/m3) and annual standard (15.0 µg/m3) as codified in 40 CFR 50.7.

    Following promulgation of a new or revised NAAQS, EPA is required under Clean Air Act (CAA) section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. On January 5, 2005, EPA published initial air quality designations for the 1997 annual and 24-hour PM2.5 NAAQS, using air quality monitoring data for the three-year periods of 2001-2003 and 2002-2004.2 These designations became effective April 5, 2005.3 EPA designated the San Joaquin Valley (SJV) area 4 as nonattainment for both the 1997 annual PM2.5 standard (15.0 µg/m3) and the 1997 24-hour PM2.5 standard (65 µg/m3).5

    2 70 FR 944 (January 5, 2005).

    3Id.

    4 The SJV area encompasses over 23,000 square miles and includes all or part of eight counties in California's central valley: San Joaquin, Stanislaus, Merced, Madera, Fresno, Tulare, Kings, and Kern. For a precise description of the geographic boundaries of the San Joaquin Valley nonattainment area, see 40 CFR 81.305.

    5 40 CFR 81.305.

    Between 2007 and 2011, California made six SIP submittals to address nonattainment area planning requirements for the 1997 PM2.5 NAAQS in the SJV.6 We refer to these submittals collectively as the “2008 PM2.5 Plan.” On November 9, 2011, EPA approved all elements of the 2008 PM2.5 Plan except for the contingency measures, which EPA disapproved.7 As part of this action, EPA approved, inter alia, commitments by the California Air Resources Board (CARB) and the SJVUAPCD to achieve specific amounts of NOX and PM2.5 emission reductions by 2014.8 In July 2013, the State submitted a revised PM2.5 contingency measure plan for the SJV, which EPA fully approved in May 2014.9

    6 76 FR 69896 at n. 2 (November 9, 2011).

    7Id. at 69924.

    8 76 FR 69896, 69926 (codified at 40 CFR 52.220(c)(356)(ii)(B)(2) and 52.220(c)(392)(ii)(A)(2)).

    9 79 FR 29327 (May 22, 2014).

    On May 20, 2015, the Ninth Circuit Court of Appeals issued its decision in a challenge to EPA's November 9, 2011 action on the 2008 PM2.5 Plan.10 In Committee for a Better Arvin et. al v. EPA (Case Nos. 11-73924 and 12-71332) (CBA), the court held that EPA violated the CAA by approving the 2008 PM2.5 Plan even though the plan did not include certain state-adopted mobile source emission standards on which the plan relied to achieve its emission reduction goals.11 The CBA court remanded EPA's action on the 2008 PM2.5 Plan for further proceedings consistent with the decision but did not vacate EPA's action.12 Thus, absent an EPA rulemaking to withdraw or revise the Agency's November 2011 approval of the emission reduction commitments in the 2008 PM2.5 Plan, these commitments remain enforceable components of the California SIP.13

    10Committee for a Better Arvin et al v. EPA, Case Nos. 11-73924 and 12-71332, 2015 U.S. App. LEXIS 8295 (9th Cir. 2015).

    11Id.

    12Id.

    13See n. 8, supra.

    II. The State's Submittal

    CARB adopted the “Report on Reductions Achieved from Incentive-based Emission Reduction Measures in the San Joaquin Valley” (Emission Reduction Report) on October 24, 2014 and submitted it to EPA as a revision to the California SIP on November 17, 2014. On May 17, 2015, the Emission Reduction Report submittal became complete by operation of law under CAA section 110(k)(1)(B).

    The purpose of the Emission Reduction Report is to demonstrate that certain mobile source incentive funding programs implemented in the SJV area have achieved specified amounts of NOX and PM2.5 emission reductions by January 1, 2014 and to thereby satisfy a portion of the 2014 emission reduction commitments approved into the SIP as part of EPA's November 2011 action on the 2008 PM2.5 Plan.14 Specifically, the Emission Reduction Report documents the State's bases for concluding that a total of 2,286 incentive projects implemented in the SJV pursuant to the Carl Moyer Memorial Air Quality Standards Attainment Program (Carl Moyer Program) and the Proposition 1B: Goods Movement Emission Reduction Program (Prop 1B Program) have achieved a total of 7.8 tons per day (tpd) of NOX emission reductions and 0.2 tpd of PM2.5 emission reductions in the SJV, which may be credited toward the State's 2014 emission reduction commitment.15

    14 Emission Reduction Report at 1-2.

    15 Emission Reduction Report at 24, Table 3 (“Total 2014 Incentive-Based Emission Reductions”), Appendix H.1 (“SIP Creditable Incentive Projects in the San Joaquin Valley (Moyer Program)”) and Appendix H.2 (“SIP Creditable Incentive Projects in the San Joaquin Valley (Prop 1B)”).

    The SIP submittal for the Emission Reduction Report includes eight appendices containing documentation to support the State's conclusions. First, Appendix A through Appendix E contain relevant excerpts from the Carl Moyer Program and Prop 1B Program guidelines 16 that apply to specifically identified types of incentive projects. Table 1 identifies the selected project types and relevant portions of the incentive program guidelines that govern their implementation.

    16 Under both the Carl Moyer Program and the Prop 1B Program, CARB adopts or approves program “guidelines” that specify, among other things, terms and conditions that must apply to each grant of incentive funds to an applicant. See California Health & Safety Code sections 44275 et seq. (establishing Carl Moyer Program) and 39625 et seq. (establishing Prop 1B Program).

    Table 1 Project type Applicable guideline
  • (relevant portions)
  • Carl Moyer Program: Off-road equipment repower, replacement, and retrofit projects The Carl Moyer Program Guidelines, Approved Revision 2005, part I, “Program Overview and Administrative Requirements,” and part II, chapter 5, “Compression-Ignition Off-Road Equipment”. The Carl Moyer Program Guidelines, Approved Revision 2008, part I, chapter 5, “Off-Road Compression-Ignition Equipment,” and Part III, “Program Administration”. The Carl Moyer Program Guidelines, Approved Revisions 2011, part I, chapter 3, “Program Administration,” and chapter 7, “Off-Road Compression-Ignition Equipment”. Carl Moyer Program: Portable and stationary agricultural source repower projects The Carl Moyer Program Guidelines, Approved Revision 2005, part I, “Program Overview and Administrative Requirements,” and part II, chapter 10, “Agricultural Sources”. The Carl Moyer Program Guidelines, Approved Revision 2008, part I, chapter 10, “Agricultural Sources,” and Part III, “Program Administration”. The Carl Moyer Program Guidelines, Approved Revisions 2011, part I, chapter 3, “Program Administration,” and chapter 10, “Portable and Stationary Agricultural Sources”. Prop 1B Program: On-road vehicle replacement projects Proposition 1B: Goods Movement Emission Reduction Program, Final Guidelines for Implementation, 2008, Section II, “ARB Program Administration,” Section III, “Local Agency Project,” Section IV, “General Equipment Project Requirements,” and appendix A, “Trucks Serving Ports and Intermodal Rail Yards”. Proposition 1B: Goods Movement Emission Reduction Program, Final Guidelines for Implementation, 2008, Section II, “ARB Program Administration,” Section III, “Local Agency Project,” Section IV, “General Equipment Project Requirements,” and appendix B, “Other Heavy Duty Diesel Trucks”. Proposition 1B: Goods Movement Emission Reduction Program, Final Guidelines for Implementation, 2010, Section II, “ARB Program Administration,” Section III, “Local Agency Project Proposal,” Section IV, “Local Agency Project Implementation,” Section V, “State Agency Project Implementation,” Section VI, “General Equipment Project Requirements,” and appendix A, “Heavy Duty Diesel Trucks”. Source: Emission Reduction Report at 5, 10, 14, and 17.

    Second, Appendix F and Appendix G contain CARB's demonstrations that the identified portions of the Carl Moyer Program and Prop 1B Program guidelines adequately address EPA's recommended “integrity elements” by ensuring that the resulting emission reductions are quantifiable, surplus, enforceable, and permanent.17 We refer to these analyses as the State's “integrity demonstrations” for these components of the Carl Moyer Program and Prop 1B Program.

    17 Under longstanding EPA guidance, emission reductions achieved through economic incentives and other nontraditional emission reduction measures must be quantifiable, surplus, enforceable, and permanent in order to qualify for SIP emission reduction credit under the CAA. See, e.g., “Guidance on Incorporating Voluntary Mobile Source Emission Reduction Programs in State Implementation Plans (SIPs),” October 24, 1997 (“1997 VMEP”) at 6-7; “Improving Air Quality with Economic Incentive Programs,” U.S. EPA, Office of Air and Radiation, January 2001 (EPA-452/R-01-001) (“2001 EIP Guidance”) at section 4.1; “Incorporating Emerging and Voluntary Measures in a State Implementation Plan,” September 2004 (“2004 Emerging and Voluntary Measures Guidance”) at 3-4; and “Diesel Retrofits: Quantifying and Using Their Emission Benefits in SIPs and Conformity,” February 2014 (“2014 Diesel Retrofits Guidance”) at 27-29.

    Third, Appendix H lists each of the 832 Carl Moyer Program projects and 1,454 Prop 1B Program projects funded pursuant to the identified program guidelines that the State has relied upon in the Emission Reduction Report. For each of these projects, Appendix H identifies the “equipment project ID,” contract term (project life), post-inspection date, adoption year of the applicable incentive program guideline, and NOX and/or PM2.5 emission reductions achieved in 2014, in pounds per year (lbs/yr).

    The Carl Moyer Program is a California grant program established in 1998 that provides funding to encourage the voluntary purchase of cleaner-than-required engines, equipment, and other emission reduction technologies.18 In its first 12 years, the Carl Moyer Program provided over $680 million in state and local funds to reduce air pollution from equipment statewide, e.g., by replacing older trucks with newer, cleaner trucks, retrofitting controls on existing engines, and encouraging the early retirement of older, more polluting vehicles.19

    18See generally CARB, “The Carl Moyer Program Guidelines, Approved Revisions 2011,” Release Date: February 8, 2013, at Chapter 1 (available electronically at http://www.arb.ca.gov/msprog/moyer/moyer.htm).

    19Id.

    The Prop 1B Program is a California grant program established in 2007, as a result of State bond funding approved by voters, which provides $1 billion in funding to CARB to reduce air pollution emissions and health risks from freight movement along California's priority trade corridors. Under the enabling legislation (California Senate Bill 88 and Assembly Bill 201 (2007)), CARB awards grants to fund projects proposed by local agencies that are involved in freight movement or air quality improvements associated with goods movement activities. Upon receipt of such grants, the local agencies are then responsible for providing financial incentives to owners of equipment used in freight movement to upgrade to cleaner technologies, consistent with program guidelines adopted by CARB.20

    20See generally “Strategic Growth Plan Bond Accountability, Goods Movement Emission Reduction Program,” Approved February 27, 2008 (available at http://www.arb.ca.gov/bonds/gmbond/docs/gm_accountability_with_links_2-27-08.pdf).

    III. EPA's Evaluation of the State's Submittal A. SIP Procedural Requirements

    Sections 110(a)(2) and 110(l) of the Act require that revisions to a SIP be adopted by the State after reasonable notice and public hearing. EPA has promulgated specific procedural requirements for SIP revisions in 40 CFR part 51, subpart F. These requirements include publication of notices, by prominent advertisement in the relevant geographic area, of a public hearing on the proposed revisions, a public comment period of at least 30 days, and an opportunity for a public hearing.

    CARB's November 17, 2014 SIP submittal includes public process documentation for the Emission Reduction Report, including documentation of a duly noticed public hearing held by the State on October 24, 2014. On October 24, 2014, CARB adopted the Emission Reduction Report as a revision to the California SIP and submitted it to EPA on November 17, 2014 for action pursuant to CAA section 110(k) of the Act. We find that the process followed by CARB in adopting the Emission Reduction Report complies with the procedural requirements for SIP revisions under CAA section 110 and EPA's implementing regulations.

    B. EPA Policy on Economic Incentives

    The CAA explicitly provides for the use of economic incentives as one tool for states to use to achieve attainment of the NAAQS.21 Economic incentive programs (EIPs) use market-based strategies to encourage the reduction of emissions from stationary, area, and/or mobile sources in an efficient manner. EPA has promulgated regulations for statutory EIPs required under section 182(g) of the Act and has issued guidance for discretionary EIPs.22 In light of the increasing incremental cost associated with further stationary and mobile source emission reductions and the difficulty of identifying such additional sources of emissions reductions in many areas, EPA encourages innovative approaches to reducing emissions through EIPs and other nontraditional measures and programs, including “voluntary” and “emerging” measures.23

    21See, e.g., CAA section 110(a)(2)(A) (requiring that each SIP “include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of [the Act]”); see also sections 172(c)(6), 183(e)(4).

    22See 59 FR 16690 (April 7, 1994) (codified at 40 CFR part 51, subpart U) and 2001 EIP Guidance.

    23See generally 1997 VMEP; 2004 Emerging and Voluntary Measures Guidance; 2014 Diesel Retrofits Guidance; and “Guidance on Incorporating Bundled Measures in a State Implementation Plan,” August 16, 2005 (“2005 Bundled Measures Guidance”).

    We provide below a summary of our evaluation of the Emission Reduction Report and related incentive program guidelines. Our Technical Support Document (TSD) contains a more detailed evaluation of the SIP submittal.

    1. Programmatic “integrity elements”

    Where a State relies upon a discretionary EIP or other nontraditional emission reduction measure in a SIP submittal, EPA evaluates the programmatic elements of the measure to determine whether the resulting emission reductions are quantifiable, surplus, enforceable and permanent. 24 These four fundamental “integrity elements,” which apply to all discretionary EIPs and other innovative measures relied on for SIP purposes, are designed to ensure that such measures satisfy the applicable requirements of the Act.25 EPA has generally defined the four fundamental integrity elements for discretionary EIPs and other innovative emission reduction programs as follows:

    24See, e.g., 2001 EIP Guidance at section 4.1.

    25See, e.g., 2001 EIP Guidance at section 4.1; 1997 VMEP at 6-7; 2004 Emerging and Voluntary Measures Guidance at 3-4; and 2014 Diesel Retrofits Guidance at 27-29.

    Quantifiable: emission reductions are quantifiable if they can be measured in a manner that is reliable and replicable by different users;

    Surplus: Emission reductions are surplus if they are not otherwise required by or assumed in a SIP-related program (e.g., an attainment or reasonable further progress plan or a transportation conformity demonstration), any other adopted State air quality program, a consent decree, or a federal rule designed to reduce emission of a criteria pollutant or its precursors (e.g., a new source performance standard or federal mobile source requirement); additionally, emission reductions are ”surplus” only for the remaining useful life of the vehicle, engine, or equipment being replaced.

    Enforceable: emission reductions and other required actions are enforceable if they are independently verifiable; program violations are defined; those liable can be identified; the State and EPA may apply penalties and secure appropriate corrective action where applicable; citizens have access to all emissions-related information obtained from participating sources; citizens may file suit against a responsible entity for violations; and the required reductions/actions are practicably enforceable consistent with EPA guidance on practical enforceability.

    Permanent: emission reductions are permanent if the State and EPA can ensure that the reductions occur for as long as they are relied upon in the SIP. The time period that the emission reductions are used in the SIP can be no longer than the remaining useful life of the retrofitted or replaced engine, vehicle, or equipment.26

    26See 2001 EIP Guidance at Section 4.1; 1997 VMEP at 6-7; 2004 Emerging and Voluntary Measures Guidance at 3-4; and 2014 Diesel Retrofits Guidance at 27-29.

    The Emission Reduction Report documents CARB's bases for concluding that the portions of the incentive program guidelines identified in Table 1 adequately address each of these integrity elements. First, with respect to quantification, the Emission Reduction Report references and describes the formulas that the guidelines require applicants to use to determine annual emissions (i.e., baseline emissions, based on existing equipment or new equipment certified by CARB to current emission standards) and annual emission reductions (i.e., the difference between baseline emissions and reduced emissions from new/upgraded equipment).27 These requirements ensure that program participants will calculate emission reductions reliably, using widely available methods and assumptions, and in a manner that can be replicated by different users.

    27 Emission Reduction Report at 7-8, 11-12, 15, 19-20, Appendix F, and Appendix G.

    Second, with respect to additionality (i.e., ensuring that reductions are “surplus” or non-duplicative to existing requirements), the Emission Reduction Report references and describes the provisions in the guidelines that prohibit the use of program funds for emission reductions that are required by any federal, state or local regulation or other legal mandate and requirements to ensure that equipment or engines being replaced are still in usable form and would not have been replaced by normal fleet turnover.28 These provisions ensure that projects funded under these guidelines will achieve emission reductions that are not otherwise required by or assumed in a SIP-related program and that are surplus to federal, state, and local requirements.

    28 Emission Reduction Report at 9, 12, 15-16, 20, Appendix F, and Appendix G.

    Third, with respect to enforceability, the Emission Reduction Report references and describes the funding criteria in the guidelines that are designed to ensure that emission reductions will be independently verifiable and practicably enforceable by CARB and the District, including detailed requirements for project applications, contracts, pre- and post-project inspections, and recordkeeping and reporting by both the grantees and the implementing local agencies.29 These requirements ensure that emission reductions can be independently verified, that the public has access to emissions-related information, and that required actions are practicably enforceable consistent with EPA guidance on practical enforceability.

    29 Emission Reduction Report at 6-7, 10-11, 15, 17-19, Appendix F, and Appendix G.

    Finally, with respect to permanence, the Emission Reduction Report references and describes requirements in the guidelines for program applicants to demonstrate that both the baseline (old) and replacement (new/upgraded) equipment are used similarly in the nonattainment area and to document the destruction of the baseline (old) equipment, as well as requirements to identify in each contract the timeframe during which the State/District attribute emission reductions to the project.30 These requirements ensure that emission reduction calculations are based on reasonable assumptions concerning equipment/vehicle activity; that baseline (old) equipment and vehicles do not continue in operation; and that EPA and the public can determine whether emission reductions attributed to a project adequately cover the period for which those reductions are relied upon in a SIP.

    30 Emission Reduction Report at 9-10, 13-14, 16, 21-22, Appendix F, and Appendix G.

    Based on these evaluations, we find that the portions of the Carl Moyer Program and Prop 1B Program guidelines identified in Table 1 establish emission reduction quantification protocols, grant conditions, recordkeeping and reporting obligations, and other requirements that adequately address EPA's recommended integrity elements for economic incentive programs.

    2. Enforceable Commitment

    Where a State relies on a discretionary EIP or other voluntary measure to satisfy an attainment planning requirement under the CAA (e.g., to demonstrate that specific amounts of emission reductions will occur by a future milestone date), the State must take responsibility for assuring that SIP emission reduction requirements are met through an enforceable commitment, which becomes federally enforceable upon approval into the SIP.31 The purpose of the Emission Reduction Report, however, is to demonstrate that a portion of the emission reductions required under a previously-approved SIP commitment have in fact been achieved, not to satisfy a future emission reduction requirement. Accordingly, it is not necessary to require the State to submit additional commitments for this purpose.

    31See, e.g., 1997 VMEP at 4-7; 2004 Emerging and Voluntary Measures Guidance at 8-12; and 2005 Bundled Measures Guidance at 7-12.

    C. Sections 110(l) and 193 of the Act

    Section 110(l) of the CAA prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and RFP or any other applicable CAA requirement. The Emission Reduction Report documents CARB's bases for concluding that specific incentive projects implemented by January 1, 2014, in accordance with the identified portions of the Carl Moyer Program and Prop 1B Program guidelines, have achieved a total of 7.8 tpd of NOX emission reductions and 0.2 tpd of PM2.5 emission reductions in the SJV area which may be credited toward the State's 2014 emission reduction commitment in the 2008 PM2.5 Plan. These calculations of emission reductions are based on actions taken by grantees before January 1, 2014 which reduced emissions of NOX and PM2.5 in the SJV (e.g., through replacement of older, higher-polluting vehicles operating in the SJV area with newer, cleaner vehicles). The Emission Reduction Report does not establish or revise any emission limitation, control measure, or other requirement in the applicable SIP. We propose to determine that our approval of the Emission Reduction Report would comply with CAA section 110(l) because the proposed SIP revision would not interfere with the on-going process for ensuring that requirements for attainment of the NAAQS and other CAA provisions are met.

    Section 193 of the Act does not apply to this proposed action because the Emission Reduction Report does not modify any SIP-approved control requirement in effect before November 15, 1990.

    IV. Proposed Action and Public Comment

    Under section 110(k)(3) of the Act, EPA is proposing to fully approve the submitted Emission Reduction Report and, based on CARB's documentation therein of actions taken by grantees in accordance with the identified incentive program guidelines, to approve 7.8 tpd of NOX emission reductions and 0.2 tpd of PM2.5 emission reductions for credit toward the State's 2014 emission reduction commitment in the 2008 PM2.5 Plan.

    We will accept comments from the public on this proposed action until the date noted in the DATES section above.

    V. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

    • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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).

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: August 6, 2015. Jared Blumenfeld, Regional Administrator, Region IX.
    [FR Doc. 2015-20749 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0556; FRL-9932-94-Region 7] Approval and Promulgation of Air Quality Implementation Plans; State of Missouri; Cross-State Air Pollution Rule AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) submitted by the State of Missouri in a letter dated March 30, 2015. This SIP revision provides Missouri's state-determined allowance allocations for existing electric generating units (EGUs) in the state for the 2016 control period and replaces certain allowance allocations for the 2016 control periods established by EPA under the Cross-State Air Pollution Rule (CSAPR). The CSAPR addresses the “good neighbor” provision of the Clean Air Act (CAA or Act) that requires states to reduce the transport of pollution that significantly affects downwind air quality. In this action EPA is proposing to approve Missouri's SIP revision, incorporating the state-determined allocations for the 2016 control periods into the SIP, and amending the regulatory text of the CSAPR Federal Implementation Plan (FIP) to reflect this approval and inclusion of the state-determined allocations. EPA is proposing to take direct final action to approve Missouri's SIP revision because it meets the requirements of the CAA and the CSAPR requirements to replace EPA's allowance allocations for the 2016 control periods. This action is being proposed pursuant to the CAA and its implementing regulations. EPA's allocations of CSAPR trading program allowances for Missouri 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. The CSAPR FIPs for Missouri remain in place until such time as the State decides to replace the FIPs with a SIP revision.

    DATES:

    Comments on this proposed action must be received in writing by September 23, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0556, by mail to Lachala Kemp, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this Federal Register.

    FOR FURTHER INFORMATION CONTACT:

    Lachala Kemp, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7214 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    In the final rules section of this Federal Register, EPA is approving the state's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial revision amendment and anticipates no relevant adverse comments to this action. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the rules section of this Federal Register.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides.

    Dated: August 12, 2015. Mark Hague, Acting Regional Administrator, Region 7.
    [FR Doc. 2015-20773 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2014-0916; FRL-9932-89-Region 8] Approval and Promulgation of Air Quality Implementation Plans; South Dakota; Revisions to South Dakota Administrative Code; Correction AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule; correction.

    SUMMARY:

    This document contains a correction to the proposed rulemaking, which was published on July 14, 2015. The proposal contained an error that is identified and corrected in this action.

    DATES:

    This document is effective August 24, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Adam Clark, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-7104, [email protected]

    SUPPLEMENTARY INFORMATION:

    Background

    In a proposed rule published July 14, 2015 (80 FR 40952), EPA proposed to approve updates to Administrative Rules of South Dakota (ARSD) into the South Dakota State Implementation Plan (SIP). Among the updates EPA proposed to approve was Article 74:36:05, “Operating Permits for Part 70 Sources” which details South Dakota's Clean Air Act Title V program. Clean Air Act Title V requirements are not subject to Section 110 of the Clean Air Act and are thus not required to be incorporated into SIPs. Therefore, EPA is issuing this correction document to remove the proposed approval of ARSD 74:36:05 from our July 14, 2015 action. EPA is instead proposing not to take action on South Dakota's updates to this provision.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by Reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: August 10, 2015. Debra H. Thomas, Acting Regional Administrator, Region 8.
    [FR Doc. 2015-20740 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2015-0408; EPA-R05-OAR-2015-0409; FRL-9932-62-Region 5] Air Plan Approval; IL; MN; Determinations of Attainment of the 2008 Lead Standard for Chicago and Eagan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to make determinations under the Clean Air Act (CAA) that the Chicago, Illinois and Eagan, Minnesota nonattainment areas (hereafter also referred to, respectively, as the “Chicago area,” “Eagan area,” or “areas”) have attained the 2008 lead (Pb) national ambient air quality standard (NAAQS or standard). These determinations of attainment are based upon complete, quality-assured, and certified ambient air monitoring data for the 2012-2014 design period showing that the areas have achieved attainment of the 2008 Pb NAAQS. Additionally, as a result of these determinations, EPA proposes to suspend the requirements for the areas to submit attainment demonstrations, and associated reasonably available control measures (RACM), reasonable further progress (RFP) plans, contingency measures for failure to meet RFP, and attainment deadlines, for as long as the areas continue to attain the 2008 Pb NAAQS. In this action EPA is not proposing a redesignation of the areas to attainment of the 2008 Pb NAAQS; the areas remain designated nonattainment until such time as EPA determines that the areas meet the CAA requirements for redesignation to attainment and takes action to redesignate the areas.

    DATES:

    Comments must be received on or before September 23, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2015-0408 (Chicago area) or EPA-R05-OAR-2015-0409 (Eagan area), by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Fax: (312) 408-2279.

    4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

    5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    Please see the direct final rule which is located in the Rules section of this Federal Register for detailed instructions on how to submit comments.

    FOR FURTHER INFORMATION CONTACT:

    Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4489, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Final Rules section of this Federal Register, EPA is making an attainment determination as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register.

    Dated: August 10, 2015. Susan Hedman, Regional Administrator, Region 5.
    [FR Doc. 2015-20776 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2014-0715; FRL-9932-73-Region 9] Approval and Promulgation of Implementation Plans; California; San Joaquin Valley Unified Air Pollution Control District; Employer Based Trip Reduction Programs AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a regulation submitted for incorporation into the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD or District) portion of the California State Implementation Plan (SIP). The regulation, Rule 9410 (Employer Based Trip Reduction), establishes requirements for employers in the San Joaquin Valley to implement programs encouraging employees to use ridesharing and alternative transportation methods to reduce air pollution. The effect of this action would be to make the requirements of Rule 9410 federally enforceable as part of the California SIP.

    DATES:

    Written comments must be received on or before September 23, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket No. EPA-R09-OAR-2014-0715, by one of the following methods:

    1. Federal Rulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

    2. Email: Jeffrey Buss at [email protected]

    3. Mail: Jeffrey Buss, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne, San Francisco, California 94105.

    4. Hand or Courier Delivery: Jeffrey Buss, Air Planning Section (AIR-2), U.S. Environmental Protection Agency, Region IX, 75 Hawthorne, San Francisco, California 94105. Such deliveries are only accepted during the Regional Office's normal hours of operation. Special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID No. EPA-R09-OAR-2014-0715. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Do not submit information through www.regulations.gov or email that you consider to be CBI or otherwise protected from disclosure. The www.regulations.gov Web site is an anonymous access system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: Generally, documents in the docket for this action are available electronically at www.regulations.gov and in hard copy at the U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, California 94105. While all documents in the docket are listed at www.regulations.gov, some information may be publicly available for viewing only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly available at either location (e.g., CBI). To inspect the docket materials in person, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

    FOR FURTHER INFORMATION CONTACT:

    Jeffrey Buss, Office of Air Planning, U.S. Environmental Protection Agency, Region 9, (415) 947-4152, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, the terms “we”, “us”, and “our” refer to EPA.

    Table of Contents I. Background II. The State Submittal III. Evaluation of the State Submittal IV. Proposed Action and Request for Public Comment V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. Background

    The San Joaquin Valley (SJV) 1 is currently designated as nonattainment for several of the national ambient air quality standards (NAAQS) promulgated by EPA under the Clean Air Act (CAA) for ozone and fine particulate matter (PM2.5). Specifically, the SJV area is designated and classified as extreme nonattainment for the 1-hour, 1997 8-hour, and 2008 8-hour ozone NAAQS; designated and classified as serious nonattainment for the 1997 PM2.5 NAAQS; and designated and classified as moderate nonattainment for the 2006 and 2012 PM2.5 NAAQS. See 40 CFR 81.305.

    1 The SJV area encompasses over 23,000 square miles and includes all or part of eight counties in California's central valley: San Joaquin, Stanislaus, Merced, Madera, Fresno, Tulare, Kings, and Kern.

    Section 172(c)(1) of the Act requires that all nonattainment areas implement, as expeditiously as practicable, reasonably available control measures (RACM) including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACT). Additionally, Section 189(a)(1)(C) of the Act requires that moderate PM2.5 nonattainment areas implement RACM (including RACT) and section 189(b)(1)(B) requires that serious PM2.5 nonattainment areas implement best available control measures (BACM), including best available control technology (BACT). The SJV area is subject to all of these control requirements as a result of its designations and classifications for the ozone and PM2.5 NAAQS. For an ozone nonattainment area classified as severe or above, section 182(d)(1)(B) also provides that a state may, in its discretion, submit a SIP revision requiring employers to implement programs to reduce work-related vehicle trips and miles travelled by employees.

    Despite numerous air pollution control measures and programs that the SJVUAPCD has implemented over the years to reduce air pollution, the SJV continues to experience some of the worst air quality in the nation. See, e.g., 80 FR 1482 (January 12, 2015) (discussing recent PM2.5 air quality trends in SJV). As a result, the District has increasingly relied upon nontraditional emission reduction strategies to reduce air pollution in the SJV. See, e.g., 79 FR 28650 (May 19, 2014) (proposed action on SJV Rule 9610 concerning incentive programs) and 80 FR 19020 (April 9, 2015) (final action on SJV Rule 9610). EPA supports state efforts to implement nontraditional and innovative strategies for reducing air pollutant emissions, including commuter programs to reduce the frequency that employees drive alone to work. See, e.g., U.S. EPA, Transportation and Climate Division, Office of Transportation and Air Quality, “Commuter Programs: Quantifying and Using Their Emission Benefits in SIPs and Conformity” (February 2014).

    II. The State Submittal

    Table 1 lists the rule addressed by this proposal with the dates that it was adopted by the local air agency and submitted by CARB.

    Table 1—Submitted Rule Local agency Rule No. Rule title Adopted Submitted SJVUAPCD 9410 Employer Based Trip Reduction 12/17/09 05/17/10

    On November 17, 2010, the submittal for Rule 9410 was deemed by operation of law under CAA section 110(k)(1)(B) to meet the completeness criteria in 40 CFR part 51 Appendix V. There are no previous versions of Rule 9410 in the SIP.

    The Rule 9410 SIP submittal includes Rule 9410 (as adopted December 17, 2009), the District's “Final Staff Report: Rule 9410 (Employer Based Trip Reduction)” dated December 17, 2009 (Final Staff Report), public process documentation, and technical support materials. CARB and the District submitted this rule to satisfy a SIP-approved regulatory commitment in the PM2.5 plan for the SJV. See 76 FR 69896 at 69926 (November 9, 2011) (PM2.5 control measure commitments, codified at 40 CFR 52.220(c)(392)(A)(2)).

    The California Health and Safety Code specifically authorizes the District to adopt rules and regulations to reduce vehicle trips and requirements for certain businesses employing at least 100 people to establish rideshare programs. See Final Staff Report at 9 (citing California H&SC sections 40601(d) and 40612). Consistent with these authorities, Rule 9410 requires certain employers with at least 100 “eligible employees” 2 at a work site to establish programs to reduce employee commute-related vehicle travel, referred to in the rule as “employer trip reduction implementation plans” or “ETRIPs.” 3 According to the District, approximately 36% of employees in the SJV are employed at worksites with 100 or more employees. See Final Staff Report at B-6. Employers subject to the rule must, among other things, register with the SJVUAPCD, submit an ETRIP for each worksite to the District, and submit annual compliance reports to the District. See Rule 9410, sections 6.1, 6.3, and 6.5.

    2 “Eligible employees” do not include emergency health and safety employees, farm workers, field construction workers, on-call employees, part-time employees, seasonal employees, and volunteers, among others. See Rule 9410, sections 3.19 and 3.31.

    3 Rule 9410 defines ETRIP as a “group of measures implemented by an employer, designed to provide transportation information, assistance, and/or incentives to employees” and intended to “reduce mobile source emissions by reducing the number of vehicle miles traveled to the worksite.” Rule 9410, section 3.28.

    III. Evaluation of the State Submittal A. SIP Procedural Requirements

    CAA sections 110(a)(1) and (2) and 110(l) require a state to provide reasonable public notice and opportunity for public hearing prior to the adoption and submittal of a SIP or SIP revision. To meet this requirement, every SIP submittal should include evidence that adequate public notice was given and an opportunity to request a public hearing was provided consistent with EPA's implementing regulations in 40 CFR 51.102.

    Both the District and CARB have satisfied applicable statutory and regulatory requirements for reasonable public notice and hearing prior to adoption and submittal of this SIP revision. The District conducted public workshops, provided public comment periods, and held public hearings prior to the adoption of Rule 9410 on December 17, 2009. See SJVUAPCD Governing Board Resolution No. 09-12-19 (December 17, 2009). CARB provided the required public notice and opportunity for public comment prior to its public hearing on the plan. See CARB Executive Order S-10-001 (May 17, 2010).

    The SIP submittal includes proof of publication for notices of the District and CARB public hearings, as evidence that all hearings were properly noticed. We therefore find that the submittal meets the procedural requirements of CAA sections 110(a) and 110(l).

    B. Enforceability Requirements

    Section 110(a)(2)(A) of the Act requires that each SIP “include enforceable emission limitations and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of [the Act].” EPA generally considers a requirement to be enforceable if it contains a clear statement as to applicability; specifies the standard that must be met; states compliance timeframes sufficient to meet the standard; specifies sufficient methods to determine compliance, including appropriate monitoring, record keeping and reporting provisions; and recognizes relevant enforcement consequences. See “Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency,” September 23, 1987 (“1987 Potter Memo”) and “Guidance on Enforceability Requirements for Limiting Potential to Emit through SIP and Section 112 Rules and General Permits,” January 25, 1995 (“1995 PTE Policy”) at 5, 6.

    Rule 9410 adequately addresses these recommendations for enforceability. First, section 2.1 of the rule clearly states that the requirements of the rule “apply to each employer in the [SJV] Air Basin with at least 100 Eligible Employees at a worksite for at least 16 consecutive weeks during the employer's previous fiscal year” that is located: (1) Within an incorporated city with a population of at least 10,000; (2) within an incorporated city with a population of less than 10,000, and more than 50 percent of their employees work at least 2,040 hours per year; or (3) within the unincorporated area of a county, and more than 50 percent of their employees work at least 2,040 hours per year (section 2.1).

    Second, sections 5.0 and 6.0 of the rule specify the requirements that must be met by employers subject to the rule—e.g., the requirements to implement an ETRIP for each worksite with 100 or more “eligible employees” (section 5.1); to include in each ETRIP measures from several dozen listed strategies by specified implementation deadlines (section 5.2); to submit to the District no later than July 1, 2010 or within 180 days after becoming subject to the rule a complete “employer registration form” containing specific types of information about the employer's business (section 6.1); and to verify and report commuter activity to the District on an annual basis (sections 6.4 and 6.5).

    Third, sections 6.0 and 8.0 of the rule specify appropriate compliance timeframes, including deadlines for employer registration (section 6.1), submittal of the ETRIPs and related updates (section 6.3), and submittal of annual reports regarding commuter activity (section 6.5).

    Finally, section 6.0 of the rule specifies sufficient methods to determine compliance, including requirements for employers to annually collect information on the modes of transportation used for each eligible employee's commutes to and from work for each day of the “commute verification period” 4 (section 6.4.1); requirements for employers to “keep records of steps taken to implement measures . . . included in the ETRIP on file for at least five years” and to make such records available to the District and EPA upon request (section 6.3.5); and requirements for employers to submit annual reports to the District containing detailed information about the results of their commute verifications, implemented ETRIP measures, and any updates to an ETRIP (section 6.5).

    4 Section 3.11 of the rule generally defines “commute verification period” as “[a] period of at least one week, selected by the employer to represent a typical work week,” or in certain cases a two-week pay period, that does not contain a federal, state, or local holiday.

    All of these requirements are enforceable against covered employers under state law (see Final Staff Report at A-13, citing California H&SC sections 42402-42403) and, upon approval into the California SIP, would also be enforceable under sections 113 and 304 of the CAA.

    C. Section 110(l) of the Act

    Section 110(l) of the CAA prohibits EPA from approving any SIP revision that would interfere with any applicable requirement concerning attainment and RFP or any other applicable CAA requirement. The requirements and procedures in Rule 9410 are designed to reduce mobile source emissions in the SJV by requiring certain businesses to implement programs that encourage employees to reduce their vehicle trips and miles traveled to and from worksites. Rule 9410 does not revise any requirement in the applicable SIP. We propose to determine that our approval of Rule 9410 would comply with CAA section 110(l) because the proposed SIP revision would not interfere with the on-going process for ensuring that requirements for attainment of the NAAQS and other CAA provisions are met.

    D. Estimated Emission Reductions

    SJVUAPCD estimates that the ETRIP program reduced NOX, VOC and PM2.5 emissions by 0.6, 0.6 and 0.05 tons per day (tpd), respectively, in 2014 and will further reduce emissions of these pollutants by 0.3, 0.4 and 0.06 tpd, respectively, in 2023. See Final Staff Report at Appendix B, Table B-4. We find these emission reduction estimates technically sound and generally consistent with the planning assumptions in the District's 2008 PM2.5 Plan. See generally id. at Appendix B and 2008 PM2.5 Plan, Appendix B, tables B-1, B-2, and B-4.

    We note that Rule 9610 requires each employer subject to the rule to submit, beginning March 31, 2015, an annual compliance report identifying the measures the employer implemented and the results of the annual commute verification surveys distributed to employees. See Rule 9410, section 6.5. We recommend that the District periodically reassess the effectiveness of the ETRIP program and update its estimates of the associated emissions reductions based on these submitted reports and using the most recent EPA-approved version of the EMFAC model.5

    5 EMFAC is the motor vehicle emissions factor model that EPA has approved for use in California SIPs (78 FR 14533, March 6, 2013).

    IV. Proposed Action and Request for Public Comment

    Under section 110(k)(3) of the CAA, EPA is proposing to fully approve the submitted rule as a revision to the California SIP. We will accept comments from the public on this proposal for the next 30 days.

    V. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the SJVUAPCD rule described in Table 1 of this notice. The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, 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 Clean Air Act. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

    • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive 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).

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Oxides of nitrogen, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: August 6, 2015. Jared Blumenfeld, Regional Administrator, Region IX.
    [FR Doc. 2015-20750 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-R05-OAR-2009-0805; FRL-9932-64-Region 5] Air Plan Approval; Michigan and Wisconsin; 2006 PM2.5 NAAQS PSD and Visibility Infrastructure SIP Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve elements of state implementation plan (SIP) submissions from Michigan regarding Prevention of Significant Deterioration and Wisconsin regarding visibility infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2006 fine particulate matter National Ambient Air Quality Standards. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

    DATES:

    Comments must be received on or before September 23, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2009-0805 by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Fax: (312) 408-2279.

    4. Mail: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604.

    5. Hand Delivery: Douglas Aburano, Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    Please see the direct final rule which is located in the Rules section of this Federal Register for detailed instructions on how to submit comments.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Final Rules section of this Federal Register, EPA is approving the States' SIP submittals as a direct final rule without prior proposal because the Agency views these as noncontroversial submittals and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register.

    Dated: August 10, 2015. Susan Hedman, Regional Administrator, Region 5.
    [FR Doc. 2015-20769 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0423; FRL-9932-86-Region 4] Approval and Promulgation of Implementation Plans; Florida; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve the State Implementation Plan (SIP) submissions, submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP), on June 3, 2013, and supplemented on January 8, 2014, for inclusion into the Florida SIP. This proposal pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure SIP submission.” FDEP certified that the Florida SIP contains provisions that ensure the 2010 1-hour SO2 NAAQS is implemented, enforced, and maintained in Florida. EPA is proposing to determine that Florida's infrastructure SIP submissions, provided to EPA on June 3, 2013, and supplemented on January 8, 2014, satisfy the required infrastructure elements for the 2010 1-hour SO2 NAAQS.

    DATES:

    Written comments must be received on or before September 23, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No EPA-R04-OAR-2014-0423, by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Fax: (404) 562-9019.

    4. Mail: “EPA-R04-OAR-2014-0423,” Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960.

    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    Instructions: Direct your comments to Docket ID No. EPA-R04-OAR-2014-0423. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Michele Notarianni, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Ms. Notarianni can be reached via electronic mail at [email protected] or the telephone number (404) 562-9031.

    Table of Contents I. Background and Overview II. What elements are required under sections 110(a)(1) and (2)? III. What is EPA's approach to the review of infrastructure SIP submissions? IV. What is EPA's analysis of how Florida addressed the elements of sections 110(a)(1) and (2) “infrastructure” provisions? V. Proposed Action VI. Statutory and Executive Order Reviews I. Background and Overview

    On June 22, 2010 (75 FR 35520), EPA promulgated a revised primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour SO2 NAAQS to EPA no later than June 22, 2013.1

    1 In these infrastructure SIP submissions states generally certify evidence of compliance with sections 110(a)(1) and (2) of the CAA through a combination of state regulations and statutes, some of which have been incorporated into the federally-approved SIP. In addition, certain federally-approved, non-SIP regulations may also be appropriate for demonstrating compliance with sections 110(a)(1) and (2). Florida's existing SIP consists largely of Florida Administrative Code (F.A.C.) rules adopted by FDEP and approved by EPA through the SIP revision process. However, there are some F.A.C. state regulations that are not part of the Florida federally-approved SIP. Throughout this rulemaking, unless otherwise indicated, the term “F.A.C.”, “Rule”, or “Chapter” indicate that the cited regulation has been approved into Florida's federally-approved SIP. The term “Florida Statutes” indicates cited Florida state statutes, which are not a part of the SIP unless otherwise indicated.

    Today's action is proposing to approve Florida's infrastructure SIP submissions for the applicable requirements of the 2010 1-hour SO2 NAAQS. With respect to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2), EPA is not proposing any action at this time regarding these requirements. For the Florida submissions proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that Florida's already approved SIP meets certain CAA requirements.

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

    Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 2010 1-hour SO2 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with earlier versions of the SO2 NAAQS.

    More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements are summarized below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2).” 2

    2 Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the time the nonattainment area plan requirements are due pursuant to section 172. These requirements are: (1) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA; and (2) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. Today's proposed rulemaking does not address infrastructure elements related to section 110(a)(2)(I) or the nonattainment planning requirements of 110(a)(2)(C).

    • 110(a)(2)(A): Emission Limits and Other Control Measures • 110(a)(2)(B): Ambient Air Quality Monitoring/Data System • 110(a)(2)(C): Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources 3

    3 This rulemaking only addresses requirements for this element as they relate to attainment areas.

    • 110(a)(2)(D)(i)(I) and (II): Interstate Pollution Transport • 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution • 110(a)(2)(E): Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies • 110(a)(2)(F): Stationary Source Monitoring and Reporting • 110(a)(2)(G): Emergency Powers • 110(a)(2)(H): SIP Revisions • 110(a)(2)(I): Plan Revisions for Nonattainment Areas 4

    4 As mentioned above, this element is not relevant to today's proposed rulemaking.

    • 110(a)(2)(J): Consultation with Government Officials, Public Notification, and Prevention of Significant Deterioration (PSD) and Visibility Protection • 110(a)(2)(K): Air Quality Modeling and Submission of Modeling Data • 110(a)(2)(L): Permitting fees • 110(a)(2)(M): Consultation and Participation by Affected Local Entities III. What is EPA's approach to the review of infrastructure SIP submissions?

    EPA is acting upon the SIP submissions from Florida that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO2 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make 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),” and these SIP submissions are to 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.

    EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review (NNSR) permit program submissions to address the permit requirements of CAA, title I, part D.

    Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.5 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

    5 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

    The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.6 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.7 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

    6 See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOx SIP Call; Final Rule,” 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

    7 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

    Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.8 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.9

    8 See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” (78 FR 4337) (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

    9 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007, submittal.

    Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.10

    10 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

    EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

    Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

    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.11 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).12 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.13 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets sections 110(a)(1) and 110(a)(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.

    11 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

    12 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

    13 EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

    As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's implementation plan appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program (e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

    As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and new source review (NSR) pollutants, including greenhouse gases (GHG). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 fine particulate matter (PM2.5) NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

    For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor NSR program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program (i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

    With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (“NSR Reform”). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.14 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

    14 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

    EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

    For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

    Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.15 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.16 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.17

    15 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

    16 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under CAA section 110(k)(6) to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062 (November 16, 2004) (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

    17 See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (Jan. 26, 2011) (final disapproval of such provisions).

    IV. What is EPA's analysis of how Florida addressed the elements of the sections 110(a)(1) and (2) “infrastructure” provisions?

    The Florida infrastructure submissions address the provisions of sections 110(a)(1) and (2) as described below.

    1. 110(a)(2)(A) Emission Limits and Other Control Measures: Section 110(a)(2)(A) requires that each implementation plan include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements. Several regulations within Florida's SIP are relevant to air quality control regulations. The regulations described below include enforceable emission limitations and other control measures. Chapters 62-204, Air Pollution Control—General Provisions; 62-210, Stationary Sources—General Requirements; 62-212, Stationary Sources -Preconstruction Review; 62-296, Stationary Sources—Emissions Standards; and 62-297, Stationary Sources -Emissions Monitoring collectively establish enforceable emissions limitations and other control measures, means or techniques for activities that contribute to SO2 concentrations in the ambient air, and provide authority for FDEP to establish such limits and measures as well as schedules for compliance through SIP-approved permits to meet the applicable requirements of the CAA.

    Additionally, the following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this infrastructure element. Section 403.061(9), Florida Statutes, authorizes FDEP to “[a]dopt a comprehensive program for the prevention, control, and abatement of pollution of the air . . . of the state,” and section 403.8055, Florida Statutes, authorizes FDEP to “[a]dopt rules substantively identical to regulations adopted in the Federal Register by the United States Environmental Protection Agency pursuant to federal law. . .”

    EPA has made the preliminary determination that the provisions contained in these State regulations and sections of the Florida Statutes, and Florida's practices are adequate to protect the 2010 1-hour SO2 NAAQS in the State.

    In this action, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during start up, shut down, and malfunction (SSM) operations at a facility. EPA believes that a number of states have SSM provisions which are contrary to the CAA and existing EPA guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown” (September 20, 1999), and the Agency is addressing such state regulations in a separate action.18

    18 On May 22, 2015, the EPA Administrator signed a final action entitled, “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction.” The prepublication version of this rule is available at http://www.epa.gov/airquality/urbanair/sipstatus/emissions.html.

    Additionally, in this action, EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. EPA believes that a number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109 (November 24, 1987)), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

    2. 110(a)(2)(B) Ambient Air Quality Monitoring/Data System: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator. SIP-approved rules at Chapters 62-204, 62-210, and 62-212 of the F.A.C. require the use of Federal Reference Method or equivalent monitors and also provide authority for FDEP to establish monitoring requirements through SIP-approved permits. Additionally, the following three sections of the Florida Statutes provide FDEP the authority to take specific actions in support of this infrastructure element. Section 403.061(11), Florida Statutes, authorizes FDEP to “[e]stablish ambient air quality . . . standards for the state as a whole or for any part thereof.” Annually, states develop and submit to EPA for approval statewide ambient monitoring network plans consistent with the requirements of 40 CFR parts 50, 53, and 58. The annual network plan involves an evaluation of any proposed changes to the monitoring network, includes the annual ambient monitoring network design plan, and includes a certified evaluation of the agency's ambient monitors and auxiliary support equipment.19 On July 1, 2013, Florida submitted its plan for 2013 to EPA. On November 22, 2013, EPA approved Florida's monitoring network plan. Florida's approved monitoring network plan can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-0423. EPA has made the preliminary determination that Florida's SIP and practices are adequate for the ambient air quality monitoring and data system related to the 2010 1-hour SO2 NAAQS.

    19 On occasion, proposed changes to the monitoring network are evaluated outside of the network plan approval process in accordance with 40 CFR part 58.

    3. 110(a)(2)(C) Programs for Enforcement of Control Measures and for Construction or Modification of Stationary Sources: This element consists of three sub-elements: enforcement, state-wide regulation of new and modified minor sources and minor modifications of major sources, and preconstruction permitting of major sources and major modifications in areas designated attainment or unclassifiable for the subject NAAQS as required by CAA title I part C (i.e., the major source PSD program). FDEP's 2010 1-hour SO2 NAAQS infrastructure SIP submissions cited a number of SIP provisions to address these requirements. EPA's rationale for its proposed action regarding each sub-element is described below. Specifically, FDEP cited Chapters 62-204, 62-210, and 62-212, F.A.C. Collectively, these provisions of Florida's SIP regulate the construction of any new major stationary source or any modification at an existing major stationary source in an area designated as nonattainment, attainment or unclassifiable. These regulations enable FDEP to regulate sources contributing to the 2010 1-hour SO2 NAAQS.

    Additionally, the following two sections of the Florida Statutes provide FDEP the authority to take specific actions in support of this infrastructure element. Section 403.061(6), Florida Statutes, requires FDEP to “[e]xercise general supervision of the administration and enforcement of the laws, rules, and regulations pertaining to air and water pollution.” Section 403.121, Florida Statutes, authorizes FDEP to seek judicial and administrative remedies, including civil penalties, injunctive relief, and criminal prosecution for violations of any FDEP rule or permit.

    Enforcement: Section 403.061(6), Florida Statutes, requires FDEP to “[e]xercise general supervision of the administration and enforcement of the laws, rules, and regulations pertaining to air and water pollution.” Section 403.121, Florida Statutes, authorizes FDEP to seek judicial and administrative remedies, including civil penalties, injunctive relief, and criminal prosecution for violations of any FDEP rule or permit. These provisions provide FDEP with authority for enforcement of SO2 emission limits and control measures.

    PSD Permitting for Major Sources: EPA interprets the PSD sub-element to require that a state's infrastructure SIP submission for a particular NAAQS demonstrate that the state has a complete PSD permitting program in place covering the structural PSD requirements for all regulated NSR pollutants. A state's PSD permitting program is complete for this sub-element (and prong 3 of D(i) and J related to PSD) if EPA has already approved or is simultaneously approving the state's SIP with respect to all structural PSD requirements that are due under the EPA regulations or the CAA on or before the date of the EPA's proposed action on the infrastructure SIP submission. For the 2010 1-hour SO2 NAAQS, Florida's authority to regulate new and modified sources to assist in the protection of air quality in attainment or unclassifiable areas is established in Florida Administrative Code Chapters 62-210, Stationary Sources—General Requirements, Section 200—Definitions, and 62-212, Stationary Sources—Preconstruction Review, Section 400—Prevention of Significant Deterioration, of the Florida SIP. Florida's infrastructure SIP submissions demonstrate that new major sources and major modifications in areas of the State designated attainment or unclassifiable for the specified NAAQS are subject to a federally-approved PSD permitting program meeting all the current structural requirements of part C of title I of the CAA to satisfy the infrastructure SIP PSD elements.20

    20 More information concerning how the Florida infrastructure SIP submission currently meets applicable requirements for the PSD elements (110(a)(2)(C); (D)(i)(I), prong 3; and (J)) can be found in EPA's November 13, 2014 proposed rulemaking and March 18, 2015 final approval notices for these elements for the 2008 ozone NAAQS, 2008 lead NAAQS, and 2010 NO2 NAAQS infrastructure SIP submissions. See 79 FR 67398 and 80 FR 14019 respectively. For more information on the structural PSD program requirements that are relevant to EPA's review of infrastructure SIPs in connection with the current PSD-related infrastructure SIP requirements, see the technical support document in the docket for today's rulemaking.

    Regulation of minor sources and modifications: Section 110(a)(2)(C) also requires the SIP to include provisions that govern the minor source program that regulates emissions of the 2010 1-hour SO2 NAAQS. Florida's SIP-approved rules, 62-210.300, F.A.C., and 62-212.300, F.A.C., collectively govern the preconstruction permitting of modifications and construction of minor stationary sources, and minor modifications of major stationary sources.

    EPA has made the preliminary determination that Florida's SIP and practices are adequate for program enforcement of control measures, regulation of minor sources and modifications, and preconstruction permitting of major sources and major modifications related to the 2010 1-hour SO2 NAAQS.

    4. 110(a)(2)(D)(i)(I) and (II) Interstate Pollution Transport: Section 110(a)(2)(D)(i) has two components: 110(a)(2)(D)(i)(I) and 110(a)(2)(D)(i)(II). Each of these components has two subparts resulting in four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (“prong 1”), and interfering with maintenance of the NAAQS in another state (“prong 2”). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (“prong 3”), or to protect visibility in another state (“prong 4”).

    110(a)(2)(D)(i)(I)—prongs 1 and 2: EPA is not proposing any action in this rulemaking related to the interstate transport provisions pertaining to the contribution to nonattainment or interference with maintenance in other states of section 110(a)(2)(D)(i)(I) (prongs 1 and 2) because Florida's 2010 1-hour SO2 NAAQS infrastructure submissions did not address prongs 1 and 2.

    110(a)(2)(D)(i)(II)—prong 3: With regard to section 110(a)(2)(D)(i)(II), the PSD element, referred to as prong 3, may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to: A PSD program meeting all the current structural requirements of part C of title I of the CAA, or (if the state contains a nonattainment area for the relevant pollutant), a NNSR program that implements NAAQS for the relevant pollutant. As discussed in more detail above under section 110(a)(2)(C), Florida's SIP contains provisions for the State's PSD program that reflects the required structural PSD requirements to satisfy prong 3 of section 110(a)(2)(D)(i)(II). Florida addresses prong 3 through F.A.C. 62-204, 62-210, and 62-212 for the PSD and NNSR programs. EPA has made the preliminary determination that Florida's SIP and practices are adequate for interstate transport for PSD permitting of major sources and major modifications related to the 2010 1-hour SO2 NAAQS for section 110(a)(2)(D)(i)(II) (prong 3).

    110(a)(2)(D)(i)(II)—prong 4: Section 110(a)(2)(D)(i)(II) requires that the SIP contain adequate provisions to protect visibility in other states. EPA approved Florida's regional haze SIP.21 Florida's supplemental submission on January 8, 2014, relied on EPA's approval of the State's regional haze SIP submission and incorporation of all relevant portions of Florida's visibility program into the State's implementation plan to address the prong 4 requirements of section 110(a)(2)(D)(i) for the 2010 1-hour SO2 NAAQS. Federal regulations require that a state's regional haze SIP contain a long-term strategy to address regional haze visibility impairment in each Class I area within the state and each Class I area outside the state that may be affected by emissions from the state.22 A state participating in a regional planning process, such as Florida, must include all measures needed to achieve its apportionment of emissions reduction obligations agreed upon through that process.23 EPA's approval of Florida's regional haze SIP therefore ensures that emissions from Florida are not interfering with measures to protect visibility in other states, satisfying the requirements of prong 4 of section 110(a)(2)(D)(i)(II) for the 2010 1-hour SO2 NAAQS.24 Thus, EPA has made the preliminary determination that Florida's infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS meet the requirements of prong 4 of section 110(a)(2)(D)(i)(II).

    21See 77 FR 71111 (November 29, 2012); 78 FR 53250 (August 29, 2013).

    22See 40 CFR 51.308(d).

    23See, e.g., 40 CFR 51.308(d)(3)(ii). Florida participated in the Visibility Improvement State and Tribal Association of the Southeast regional planning organization, a collaborative effort of state governments, tribal governments, and various Federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Southeastern United States. Member state and tribal governments included: Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, West Virginia, and the Eastern Band of the Cherokee Indians.

    24See EPA's September 13, 2013, guidance document entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2)” at pp. 32-35, available at: http://www.epa.gov/air/urbanair/sipstatus/infrastructure.html; see also memorandum from William T. Harnett, Director, Air Quality Policy Division, Office of Air Quality Planning and Standards, to Regional Air Division Directors, entitled “Guidance on SIP Elements Required Under Sections 110(1)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS) (September 25, 2009) at pp. 5-6, available at: http://www.epa.gov/ttn/caaa/t1/memoranda/20090925_harnett_pm25_sip_110a12.pdf.

    5. 110(a)(2)(D)(ii): Interstate Pollution Abatement and International Air Pollution: Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement. Chapters 62-204, 62-210, and 62-212 of the F.A.C. require any new major source or major modification to undergo PSD or NNSR permitting and thereby provide notification to other potentially affected Federal, state, and local government agencies. Additionally, Florida does not have any pending obligation under sections 115 and 126 of the CAA relating to international or interstate pollution abatement. EPA has made the preliminary determination that Florida's SIP and practices are adequate for ensuring compliance with the applicable requirements relating to interstate and international pollution abatement for the 2010 1-hour SO2 NAAQS.

    6. 110(a)(2)(E) Adequate Resources and Authority, Conflict of Interest, and Oversight of Local Governments and Regional Agencies: Section 110(a)(2)(E) requires that each implementation plan provide (i) necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out its implementation plan, (ii) that the state comply with the requirements respecting state boards pursuant to section 128 of the Act, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any plan provision, the state has responsibility for ensuring adequate implementation of such plan provisions. EPA is proposing to approve Florida's infrastructure SIP submission as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii), and (iii).

    In support of EPA's proposal to approve sub-elements 110(a)(2)(E)(i) and (iii), FDEP's infrastructure submissions demonstrate that it is responsible for promulgating rules and regulations for the NAAQS, emissions standards and general policies, a system of permits, fee schedules for the review of plans, and other planning needs. Section 403.061(2), Florida Statutes, authorizes FDEP to “[h]ire only such employees as may be necessary to effectuate the responsibilities of the department.” Section 403.061(4), Florida Statutes, authorizes FDEP to “[s]ecure necessary scientific, technical, research, administrative, and operational services by interagency agreement, by contract, or otherwise.” Section 403.182, Florida Statutes, authorizes FDEP to approve local pollution control programs. Section 320.03(6), Florida Statutes, authorizes FDEP to establish an Air Pollution Control Trust Fund and use a $1 fee on every motor vehicle license registration sold in the State for air pollution control purposes. As evidence of the adequacy of FDEP's resources with respect to sub-elements (i) and (iii), EPA submitted a letter to FDEP on February 28, 2014, outlining 105 grant commitments and current status of these commitments for fiscal year 2013. The letter EPA submitted to FDEP can be accessed at www.regulations.gov using Docket ID No. EPA-R04-OAR-2014-0423. Annually, states update these grant commitments based on current SIP requirements, air quality planning, and applicable requirements related to the NAAQS. There were no outstanding issues in relation to the SIP for fiscal year 2013, therefore, FDEP's grants were finalized and closed out. In addition, the requirements of 110(a)(2)(E)(i) and (iii) are met when EPA performs a completeness determination for each SIP submittal. This determination ensures that each submittal provides evidence that adequate personnel, funding, and legal authority under state law has been used to carry out the state's implementation plan and related issues. FDEP's authority is included in all prehearings and final SIP submittal packages for approval by EPA. FDEP is responsible for submitting all revisions to the Florida SIP to EPA for approval. EPA has made the preliminary determination that Florida has adequate resources for implementation of the 2010 1-hour SO2 NAAQS.

    Section 110(a)(2)(E)(ii) requires that the state comply with section 128 of the CAA. Section 128 requires that the SIP provide: (1) The majority of members of the state board or body which approves permits or enforcement orders represent the public interest and do not derive any significant portion of their income from persons subject to permitting or enforcement orders under the CAA; and (2) any potential conflicts of interest by such board or body, or the head of an executive agency with similar powers be adequately disclosed. For purposes of section 128(a)(1), Florida has no boards or bodies with authority over air pollution permits or enforcement actions. Such matters are instead handled by an appointed Secretary. As such, a “board or body” is not responsible for approving permits or enforcement orders in Florida, and the requirements of section 128(a)(1) are not applicable. Florida is only subject to the requirements of 128(a)(2) and submitted the applicable statutes for incorporation into Florida SIP. On July 30, 2012, EPA approved Florida statutes into the SIP to comply with section 128 respecting state boards. See 77 FR 44485. EPA has made the preliminary determination that the State has adequately addressed the requirements of section 128(a)(2), and accordingly has met the requirements of section 110(a)(2)(E)(ii) with respect to infrastructure SIP requirements.

    Therefore, EPA is proposing to approve Florida's infrastructure SIP submissions as meeting the requirements of sub-elements 110(a)(2)(E)(i), (ii) and (iii).

    7. 110(a)(2)(F) Stationary Source Monitoring and Reporting: Section 110(a)(2)(F) requires SIPs to meet applicable requirements addressing (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to this section, which reports shall be available at reasonable times for public inspection. FDEP's infrastructure SIP submissions describe the establishment of requirements for compliance testing by emissions sampling and analysis, and for emissions and operation monitoring to ensure the quality of data in the State. The Florida infrastructure SIP submissions also describe how the major source and minor source emission inventory programs collect emission data throughout the State and ensure the quality of such data. Florida meets these requirements through Chapters 62-204, 62-210, 62-212, 62-296, and 62-297, F.A.C., which require emissions monitoring and reporting for activities that contribute to SO2 concentrations in the air, including requirements for the installation, calibration, maintenance, and operation of equipment for continuously monitoring or recording emissions, or provide authority for FDEP to establish such emissions monitoring and reporting requirements through SIP-approved permits and require reporting of SO2 emissions.

    The following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this infrastructure element. Section 403.061(13) authorizes FDEP to “[r]equire persons engaged in operations which may result in pollution to file reports which may contain . . . any other such information as the department shall prescribe . . .”. Section 403.8055 authorizes FDEP to “[a]dopt rules substantively identical to regulations adopted in the Federal Register by the United States Environmental Protection Agency pursuant to federal law. . . .”

    Section 90.401, Florida Statutes, defines relevant evidence as evidence tending to prove or disprove a material fact. Section 90.402, Florida Statutes, states that all relevant evidence is admissible except as provided by law. EPA is unaware of any provision preventing the use of credible evidence in the Florida SIP.25

    25 “Credible Evidence” makes allowances for owners and/or operators to utilize “any credible evidence or information relevant” to demonstrate compliance with applicable requirements if the appropriate performance or compliance test had been performed, for the purpose of submitting compliance certification and can be used to establish whether or not an owner or operator has violated or is in violation of any rule or standard.

    Additionally, Florida is required to submit emissions data to EPA for purposes of the National Emissions Inventory (NEI). The NEI is EPA's central repository for air emissions data. EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). The AERR shortened the time states had to report emissions data from 17 to 12 months, giving states one calendar year to submit emissions data. All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and the precursors that form them—NOX, SO2, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. Many states also voluntarily report emissions of hazardous air pollutants. Florida made its latest update to the NEI on December 17, 2014. EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html. EPA has made the preliminary determination that Florida's SIP and practices are adequate for the stationary source monitoring systems related to the 2010 1-hour SO2 NAAQS.

    8. 110(a)(2)(G) Emergency Powers: This section requires that states demonstrate authority comparable with section 303 of the CAA and adequate contingency plans to implement such authority. Florida's infrastructure SIP submissions identify air pollution emergency episodes and preplanned abatement strategies as outlined in the Florida Statutes Sections 403.131 and 120.569(2)(n). These sections of the Florida Statutes were submitted for inclusion in the SIP to address the requirements of section 110(a)(2)(G) of the CAA and have been approved by EPA into Florida's SIP. Section 403.131 authorizes FDEP to: Seek injunctive relief to enforce compliance with this chapter or any rule, regulation or permit certification, or order; to enjoin any violation specified in Section 403.061(1); and to seek injunctive relief to prevent irreparable injury to the air, waters, and property, including animal, plant, and aquatic life, of the State and to protect human health, safety, and welfare caused or threatened by any violation. Section 120.569(2)(n), Florida Statutes, authorizes FDEP to issue emergency orders to address immediate dangers to the public health, safety, or welfare. EPA has made the preliminary determination that Florida's SIP, State laws, and practices are adequate to satisfy the infrastructure SIP obligations for emergency powers related to the 2010 1-hour SO2 NAAQS. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submissions with respect to section 110(a)(2)(G).

    9. 110(a)(2)(H) SIP Revisions: Section 110(a)(2)(H), in summary, requires each SIP to provide for revisions of such plan (i) as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii) whenever the Administrator finds that the plan is substantially inadequate to attain the NAAQS or to otherwise comply with any additional applicable requirements. As previously discussed, FDEP is responsible for adopting air quality rules and revising SIPs as needed to attain or maintain the NAAQS. Florida has the ability and authority to respond to calls for SIP revisions, and has provided a number of SIP revisions over the years for implementation of the NAAQS. Florida has two nonattainment areas for the 2010 1-hour SO2 NAAQS for which the State must submit a SIP demonstrating future attainment and maintenance for these areas by April 4, 2015. See 78 FR 47191 (August 5, 2013). One of the nonattainment areas encompasses a portion of Nassau County and the other area encompasses a portion of Hillsborough County. The State submitted the required SIPs for the Nassau County and Hillsborough County SO2 nonattainment areas on April 3, 2015.

    The following sections of the Florida Statutes provide FDEP the authority to conduct certain actions in support of this element. Section 403.061(35) gives FDEP the broad authority to implement the CAA. Section 403.061(9) authorizes FDEP to “[a]dopt a comprehensive program for the prevention, control, and abatement of pollution of the air . . . of the state, and from time to time review and modify such programs as necessary.” EPA has made the preliminary determination that Florida adequately demonstrates a commitment to provide future SIP revisions related to the 2010 1-hour SO2 NAAQS when necessary. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submissions with respect to section 110(a)(2)(H).

    10. 110(a)(2)(J) Consultation with government officials, public notification, and PSD and visibility protection: EPA is proposing to approve Florida's infrastructure SIP for the 2010 1-hour SO2 NAAQS with respect to the general requirement in section 110(a)(2)(J) to include a program in the SIP that complies with the applicable consultation requirements of section 121, the public notification requirements of section 127, PSD and visibility protection. EPA's rationale for each sub-element is described below.

    Consultation with government officials (121 consultation): Florida's SIP-approved Chapters 62-204, 62-210, and 62-212, as well as its Regional Haze Implementation Plan (which allows for continued consultation with appropriate state, local, and tribal air pollution control agencies as well as the corresponding Federal Land Managers), provide for consultation with government officials whose jurisdictions might be affected by SIP development activities. Specifically, Florida adopted state-wide consultation procedures for the implementation of transportation conformity which includes the development of mobile inventories for SIP development. These consultation procedures were developed in coordination with the transportation partners in the State and are consistent with the approaches used for development of mobile inventories for SIPs. Required partners covered by Florida's consultation procedures include Federal, state and local transportation and air quality agency officials. Also, Section 403.061(21), Florida Statutes, authorizes FDEP to “[a]dvise, consult, cooperate, and enter into agreements with other agencies of the state, the Federal Government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the department”. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate consultation with government officials related to the 2010 1-hour SO2 NAAQS when necessary.

    Public notification (127 public notification): FDEP has public notice mechanisms in place to notify the public of instances or areas exceeding the NAAQS along with associated health effects through the Air Quality Index reporting system in required areas. Section 403.061(20), Florida Statutes, authorizes FDEP to “[c]ollect and disseminate information . . . relating to pollution” and Florida implements an Air Quality Index reporting system to notify the public in impacted areas. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submissions with respect to section 110(a)(2)(J) public notification.

    PSD: With regard to the PSD element of section 110(a)(2)(J), this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a PSD program meeting all the current structural requirements of part C of title I of the CAA. As discussed in more detail above under the section discussing 110(a)(2)(C), Florida's SIP contains provisions for the State's PSD program that reflect the relevant SIP revisions pertaining to the required structural PSD requirements to satisfy the requirement of the PSD element of section 110(a)(2)(J). EPA has made the preliminary determination that Florida's SIP and practices are adequate for interstate transport for PSD permitting of major sources and major modifications related to the 2010 1-hour SO2 NAAQS for the PSD element of section 110(a)(2)(J).

    Visibility protection: EPA's 2013 Guidance notes that it does not treat the visibility protection aspects of section 110(a)(2)(J) as applicable for purposes of the infrastructure SIP approval process. FDEP referenced its regional haze program as germane to the visibility component of section 110(a)(2)(J). EPA recognizes that states are subject to visibility protection and regional haze program requirements under part C of the Act (which includes sections 169A and 169B). However, there are no newly applicable visibility protection obligations after the promulgation of a new or revised NAAQS. Thus, EPA has determined that states do not need to address the visibility component of 110(a)(2)(J) in infrastructure SIP submittals so FDEP does not need to rely on its regional haze program to fulfill its obligations under section 110(a)(2)(J). As such, EPA has made the preliminary determination that it does not need to address the visibility protection element of section 110(a)(2)(J) in Florida's infrastructure SIP submissions related to the 2010 1-hour SO2 NAAQS.

    11. 110(a)(2)(K) Air Quality Modeling and Submission of Modeling Data: Section 110(a)(2)(K) of the CAA requires that SIPs provide for performing air quality modeling so that effects on air quality of emissions from NAAQS pollutants can be predicted and submission of such data to the EPA can be made. SIP-approved sections of Chapter 62-204, 62-210, and 62-212, F.A.C., require use of EPA-approved modeling of pollutant-emitting sources that contribute to SO2 concentrations in the ambient air. Also, the following sections of the Florida Statutes provide FDEP the authority to conduct actions in support of this element. Section 403.061(13), Florida Statutes, authorizes FDEP to “[r]equire persons engaged in operations which may result in pollution to file reports which may contain information relating to locations, size of outlet, height of outlet, rate and period of emission, and composition and concentration of effluent and such other information as the department shall prescribe to be filed . . .” Section 403.061(18), Florida Statutes, authorizes FDEP to “[e]ncourage and conduct studies, investigations, and research relating to pollution and its causes, effects, prevention, abatement, and control.” These regulations and State statutes also demonstrate that Florida has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of the 2010 1-hour SO2 NAAQS. Additionally, Florida supports a regional effort to coordinate the development of emissions inventories and conduct regional modeling for several NAAQS, including the 2010 1-hour SO2 NAAQS, for the Southeastern states. Florida notes in its SIP submissions that the FDEP has the technical capability to conduct or review all air quality modeling associated with the NSR program and all SIP-related modeling, except photochemical grid modeling which is performed for FDEP under contract. All such modeling is conducted in accordance with the provisions of 40 CFR part 51, Appendix W, “Guideline on Air Quality Models.” Taken as a whole, Florida's air quality regulations and practices demonstrate that FDEP has the authority to provide relevant data for the purpose of predicting the effect on ambient air quality of any emissions of any pollutant for which a NAAQS had been promulgated, and to provide such information to the EPA Administrator upon request. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate the State's ability to provide for air quality modeling, along with analysis of the associated data, related to the 2010 1-hour SO2 NAAQS. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submissions with respect to section 110(a)(2)(K).

    12. 110(a)(2)(L) Permitting Fees: This section requires the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under the CAA, a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V. Section 403.087(6)(a), Florida Statutes, directs FDEP to “require a processing fee in an amount sufficient, to the greatest extent possible, to cover the costs of reviewing and acting upon any application for a permit . . .”. Florida's Air Pollution Control Trust Fund is the depository for all funds for the operation of the Division of Air Resource Management. Within the fund is an account that contains all fees under the title V program. EPA has made the preliminary determination that Florida's State rules and practices adequately provide for permitting fees related to the 2010 1-hour SO2 NAAQS, when necessary. Accordingly, EPA is proposing to approve Florida's infrastructure SIP submissions with respect to section 110(a)(2)(L).

    13. 110(a)(2)(M) Consultation and Participation by Affected Local Entities: Florida coordinates with local governments affected by the SIP. Florida's SIP also includes a description of the public participation process for SIP development. Florida has consulted with local entities for the development of transportation conformity and has worked with the Federal Land Managers as a requirement of the regional haze rule. Section 403.061(21), Florida Statutes, authorizes FDEP to “[a]dvise, consult, cooperate and enter into agreements with other agencies of the state, the Federal Government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the department.” Section 403.061(21), Florida Statutes, is one way that the State meets the requirements of this element as described further below. More specifically, Florida adopted state-wide consultation procedures for the implementation of transportation conformity which includes the development of mobile inventories for SIP development and the requirements that link transportation planning and air quality planning in nonattainment and maintenance areas. Required partners covered by Florida's consultation procedures include Federal, state and local transportation and air quality agency officials. The state and local transportation agency officials are most directly impacted by transportation conformity requirements and are required to provide public involvement for their activities including the analysis demonstrating how they meet transportation conformity requirements. Also, FDEP has agreements with eight county air pollution control agencies (Duval, Orange, Hillsborough, Pinellas, Sarasota, Palm Beach, Broward, and Miami-Dade) that delineate the responsibilities of each county in carrying out Florida's air program, including the Florida SIP. EPA has made the preliminary determination that Florida's SIP and practices adequately demonstrate consultation with affected local entities related to the 2010 1-hour SO2 NAAQS when necessary.

    V. Proposed Action

    EPA is proposing to approve Florida's infrastructure submissions submitted on June 3, 2013, and supplemented on January 8, 2014, for the 2010 1-hour SO2 NAAQS for the above described infrastructure SIP requirements. EPA is proposing to approve Florida's infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS because the submissions are consistent with section 110 of the CAA.

    VI. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: August 12, 2015. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2015-20748 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0440; FRL-9932-88-Region 4] Air Plan Approval; North Carolina; Conflict of Interest Infrastructure Requirements AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve revisions to the North Carolina State Implementation Plan (SIP), submitted by the North Carolina Department of Environment and Natural Resources, Division of Air Quality (DAQ), on February 5, 2013, and supplemented on July 27, 2015. The submissions pertain to conflict of interest requirements of the Clean Air Act (CAA or Act) and were submitted to satisfy the infrastructure SIP sub-element related to the State board for the 2010 Nitrogen Dioxide (NO2) National Ambient Air Quality Standards (NAAQS), 2010 Sulfur Dioxide (SO2) NAAQS, 2008 8-hour Ozone NAAQS and 2008 Lead NAAQS. The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, commonly referred to as an “infrastructure” SIP, which includes conflict of interest requirements. EPA is proposing to approve the portions of North Carolina's 2010 NO2 infrastructure SIP, 2010 SO2 infrastructure SIP, 2008 8-hour ozone infrastructure SIP, and 2008 Lead infrastructure SIP as meeting these State board requirements. EPA is also proposing to convert conditional approvals related to the State board for the 1997 8-hour ozone NAAQS, and the 1997 Annual Fine Particulate Matter (PM2.5) and 2006 24-hour PM2.5 NAAQS to full approval under the CAA. EPA notes that all other applicable North Carolina infrastructure SIP elements for the above listed NAAQS have been or will be addressed in separate rulemakings.

    DATES:

    Written comments must be received on or before September 23, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-OAR-2015-0440, by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Fax: 404-562-9019.

    4. Mail: “EPA-R04-OAR-2015-0440” Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960.

    5. Hand Delivery or Courier: Lynorae Benjamin, Chief, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    Instructions: Direct your comments to Docket ID No. “EPA-R04-OAR-2015-0440”. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information may not be publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Sean Lakeman, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. The telephone number is (404) 562-9043. Mr. Lakeman can be reached via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS. Sections 110(a)(1) and (2) require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the NAAQS.

    More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. EPA is proposing to approve: (1) North Carolina's February 5, 2013, and July 27, 2015, submissions as satisfying the requirements of 128 of the CAA; and (2) the infrastructure SIP sub-element for section 110(a)(2)(E)(ii) related to the State board for the 2010 NO2 NAAQS, 2010 SO2 NAAQS, 2008 8-hour Ozone NAAQS and 2008 Lead NAAQS.1

    1 Sub-element 110(a)(2)(E)(ii) was previously submitted by North Carolina DAQ to EPA to satisfy the state board requirements for the referenced NAAQS. EPA is proposing through today's rulemaking that the February 5, 2013, and July 27, 2015, final submissions in conjunction with the previously submissions for the 2010 NO2 NAAQS (August 23, 2013), 2010 SO2 NAAQS (March 18, 2014), 2008 8-hour Ozone NAAQS (November 2, 2012), and 2008 Lead NAAQS (July 20, 2012) satisfy the state board requirements for this sub-element.

    Additionally, North Carolina's February 5, 2013, and July 27, 2015, submissions satisfy EPA's multiple conditional approvals of sub-element 110(a)(2)(E)(ii) published on February 6, 2012 (77 FR 5703), and October 16, 2012 (77 FR 63234), for the 1997 8-hour ozone NAAQS, and 1997 annual and 2006 24-hour PM2.5 NAAQS, respectively.2 As a result of today's proposed action related to the State's submissions meeting section 128 of the CAA, EPA is proposing to convert the aforementioned conditional approvals to full approvals regarding North Carolina's infrastructure requirements for section 110(a)(2)(E)(ii) for the 1997 8-hour ozone NAAQS, and 1997 annual and 2006 24-hour PM2.5 NAAQS.

    2 Sub-element 110(a)(2)(E)(ii) was previously submitted by North Carolina DAQ to EPA to satisfy the state board requirements for the referenced NAAQS. EPA is proposing through today's rulemaking that the February 5, 2013, and July 27, 2015, final submissions in conjunction with the previous conditional approvals for the 1997 8-hour ozone NAAQS and 1997 annual and 2006 24-hour PM2.5 NAAQS satisfy the state board requirements for this sub-element.

    II. Requirements of Section 110(a)(2)(E)(ii)—Adequate Resources

    Sub-element 110(a)(2)(E)(ii) provides that each State “comply with the requirements respecting State boards under section [128 of the CAA] . . . .” Section 128 provides that each SIP shall contain requirements that: (1) Any board or body which approves permits or enforcement orders under the CAA shall have at least a majority of members who represent the public interest and do not derive a significant portion of their income from persons subject to permits or enforcement orders under the Act (hereafter “section 128(a)(1) requirements”); and, (2) any potential conflicts of interest by members of such board or body or the head of an executive agency with similar powers be adequately disclosed (hereafter “section 128(a)(2) requirements.”).

    III. Requirements of Section 128

    Section 128 of the CAA requires that each state's SIP contain provisions to address conflicts of interest for state boards or bodies that oversee CAA permits and enforcement orders and disclosure of conflict of interest requirements. Specifically, CAA section 128(a)(1) necessitates that each SIP require that at least a majority of any board or body which approves permits or enforcement orders represent the public interest and meet income restrictions. Subsection 128(a)(2) requires that the members of any board or body, or the head of an executive agency with similar power to approve permits or enforcement orders under the CAA, shall also be subject to conflict of interest disclosure requirements. Furthermore, section 128 affords the Administrator of EPA the authority to incorporate conflict of interest provisions that go beyond those required by the CAA into the SIP when such provisions are submitted by a state as part of its implementation plan.

    IV. What is EPA's analysis of how North Carolina addressed the section 110(a)(2)(E)(ii) infrastructure requirement?

    For purposes of section 128(a)(1), as of October 1, 2012, North Carolina has no boards or bodies with authority over air pollution permits or enforcement actions. The authority to approve CAA permits or enforcement orders are instead delegated to the Secretary of the Department of Environment and Natural Resources (DENR) and his/her delegatee. As such, a “board or body” is not responsible for approving permits or enforcement orders in North Carolina, and the requirements of section 128(a)(1) are not applicable.

    For purposes of section 128(a)(2), EPA is proposing to approve North Carolina's revisions submitted by DAQ, on February 5, 2013, and amended on July 27, 2015. Section 128(a)(2) requires that any potential conflicts of interest by members of a board or body that approves permits or enforcement orders under the CAA, or head of executive agency with similar powers, be adequately disclosed. Subsection 128(a)(2) applies to all states, regardless of whether the state has a multi-member board or body that approves permits or enforcement orders under the CAA. In instances where the head of an executive agency delegates his or her power to approve permits or enforcement orders, or where the statutory authority to approve permits or enforcement orders is nominally vested in another state official, the requirement to adequately disclose potential conflicts of interest still applies. As noted above, the Secretary of DENR and his/her delegatees have the authority to issue CAA permits and enforcement orders in North Carolina and are subject to conflict of interest disclosure procedures. Under these procedures, such individuals are required to file a certification disclosing sources of income and relationships that constitute a potential conflict of interest each year, which are subject to public inspection. If circumstances change such that the certification is no longer complete or accurate, they are required to promptly file a new certification. In addition, disclosure of potential conflicts of interest are required for each final decision, which may merit recusal from the particular matter. If recusal is determined not to be necessary, the disclosure of potential conflict of interest is made part of the public record. North Carolina's revision would incorporate these conflict of interest disclosure procedures and a certification form into its SIP to address section 128(a)(2) requirements.

    On October 1, 2012, North Carolina's enacted state law that involved changes to how contested DENR cases are handled. Previously these matters where heard on appeal by an Administrative Law Judge (ALJ) in the State's Office of Administrative Hearings (Administrative Procedures Act-type review). The ALJ would render a decision that would then go before the State's Environmental Management Commission (EMC) for a final agency decision. Under the new state law, the EMC's role is eliminated and instead the ALJ decision constitutes the final agency action which could then be appealed by either party to state superior court. The Director of the Office of Administrative Hearings appoints an ALJ to preside over contested matters such as appeals of CAA permits and enforcement orders. The Office of Administrative Hearings is an executive agency with quasi-judicial functions.

    In 1978, following the adoption of the section 128 provisions, EPA published a guidance to the states providing suggested definitions that the Agency viewed as representing the “minimum level of stringency necessary to meet the requirements of section 128.” The guidance defined “Board or body” as including instrumentalities “authorized to approve permits or enforcement orders under the CAA, in the first instance or on appeal.” Because section 128(a)(2) applies to boards or bodies, or the heads of executive agencies with similar powers, EPA interprets the inclusion of appeals within the definition of board or bodies in the 1978 guidance as likewise applying to appeals of matters handled initially by the head of an executive agency. Further, as stated above, if the statutory scheme vests final approval authority for CAA permits and orders with a state official other than the head of an executive agency, EPA interprets section 128(a)(2) as applying to that state official as well because they are functionally equivalent.

    North Carolina's July 27, 2015, supplement addresses the section 128(a)(2) conflict of interest disclosure requirements for ALJs through Chapter 7A section 754 of the North Carolina General Statues, which contains provisions related to the Office of Administrative Hearings addressing these requirements for the ALJ. Specifically, North Carolina is requesting that the following paragraph of 7A-754 stating “The Chief Administrative Law Judge and the administrative law judges shall comply with the Model Code of Judicial Conduct for State Administrative Law Judges, as adopted by the National Conference of Administrative Law Judges, Judicial Division, American Bar Association, (revised August 1998), as amended from time to time, except that the provisions of this section shall control as to the private practice of law in lieu of Canon 4G, and G.S. 126-13 shall control as to political activity in lieu of Canon 5.” be adopted into the SIP. The Model Code of Judicial Conduct for State Administrative Law Judges, as adopted by the National Conference of Administrative Law Judges, Judicial Division, American Bar Association, (revised August 1998), requires ALJs to act impartially, which broadly includes financial considerations, relationships, and other associations. ALJs are prohibited from participating in any matter in which the ALJs impartiality might reasonably be questioned or the ALJ must disclose the potential conflict of interest on the record in the proceeding. In the case of such disclosures, the parties to the matter must agree that the disclosed conflict of interest is immaterial before the ALJ may continue to participate in the matter. EPA has determined that the provision of Chapter 7A section 754 of the North Carolina General Statutes submitted for incorporation in the SIP provides for adequate disclosure of potential conflicts of interest for any ALJ that will make final decisions on CAA permits and enforcement orders. Therefore, EPA is proposing to approve the North Carolina SIP revision related to section 128(a)(2). EPA is also proposing to approve the portions of North Carolina's 2010 NO2 infrastructure SIP (submitted on August 23, 2013), 2010 SO2 infrastructure SIP (submitted on March 18, 2014), 2008 8-hour ozone infrastructure SIP (submitted on November 2, 2012), and 2008 Lead infrastructure SIP (submitted on July 20, 2012) related to 110(a)(2)(E)(ii).

    Additionally, as mentioned above, EPA conditionally approved North Carolina's infrastructure submissions for the 1997 8-hour ozone NAAQS, 1997 annual PM2.5 NAAQS and the 2006 24-hour PM2.5 NAAQS as they related to 110(a)(2)(E)(ii) because provisions related to CAA 128 were not included in North Carolina's SIP. As a result of EPA's proposed approval of North Carolina's February 5, 2013, and July 27, 2015, submittals, EPA is also proposing to convert EPA's previous conditional approval of North Carolina's infrastructure submissions for the 1997 8-hour ozone NAAQS, 1997 annual PM2.5 NAAQS and the 2006 24-hour PM2.5 NAAQS as they relate to 110(a)(2)(E)(ii) to full approval.

    V. Proposed Action

    As described above, EPA is proposing to approve North Carolina's February 5, 2013, and July 27, 2015, submissions concerning conflict of interest requirements related to CAA section 128(a)(2). Specifically, today, EPA is proposing to approve North Carolina's 110(a)(2)(E)(ii) submission as it relates to the Secretary of the DENR and his/her delegatee that approve permit or enforcement orders described at section 110(a)(2) of the CAA. EPA is also proposing to approve North Carolina's July 27, 2015, 110(a)(2)(E)(ii) submission as it relates to appealed matters decided by ALJs. Additionally, EPA is proposing to approve the portions of North Carolina's 2010 NO2 infrastructure SIP, 2010 SO2 infrastructure SIP, 2008 8-hour ozone infrastructure SIP, and 2008 Lead infrastructure SIP related to 110(a)(2)(E)(ii). EPA is also proposing to convert previous conditional approvals for North Carolina's infrastructure submissions for the 1997 8-hour ozone NAAQS, 1997 annual and 2006 24-hour PM2.5 NAAQS addressing CAA section 110(a)(2)(E)(ii) requirements to approval.

    VI. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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 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).

    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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: August 12, 2015. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2015-20747 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R02-OAR-2015-0509, FRL-9933-01-Region 2] Approval and Promulgation of State Plans for Designated Facilities; New York AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to withdraw its approval of a provision of the New York State plan that implements and enforces the Emission Guidelines for existing sewage sludge incineration units. This action would withdraw the EPA's approval of a provision of the State sewage sludge incineration plan allowing for affirmative defenses of Clean Air Act violations in the case of malfunctions. No other provision in the State plan would be affected by this action.

    DATES:

    Comments must be received on or before September 23, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R02-OAR-2015-0509 by one of the following methods:

    www.regulations.gov. Follow the on-line instructions for submitting comments.

    Email: [email protected]

    Mail: EPA-R02-OAR-2015-0509, Richard Ruvo, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866.

    Hand Delivery: Richard Ruvo, Chief, Air Programs Branch, Environmental Protection Agency, Region 2 Office, 290 Broadway, 25th Floor, New York, New York 10007-1866. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:00 p.m. excluding federal holidays.

    Instructions: Direct your comments to Docket ID No. EPA-R02-OAR-2015-0509. The EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about the EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available at www.regulations.gov or at the Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866. The EPA requests, if at all possible, that you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the docket. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:00 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Anthony (Ted) Gardella ([email protected]), Environmental Protection Agency, Region 2 Office, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866, (212) 637-3892.

    SUPPLEMENTARY INFORMATION:

    The following table of contents describes the format for the SUPPLEMENTARY INFORMATION section:

    I. What action is the EPA proposing today? II. Which provision of the State sewage sludge incineration (SSI) plan is EPA withdrawing approval of? III. Why is the EPA taking this action? IV. Who is affected by the State SSI plan and the amendment to the State SSI plan? V. What is the background for New York State's request to amend the State SSI plan? VI. What approval criteria did we use to evaluate New York State's January 2015 request to amend the State SSI plan? VII. What is the EPA's conclusion? VIII. Statutory and Executive Order Reviews I. What action is the EPA proposing today?

    The EPA is proposing to withdraw its prior approval of an affirmative defense provision in New York State's SSI plan, based on a request submitted on January 27, 2015, by New York State. New York State submitted the State SSI plan for EPA approval on July 1, 2013 to fulfill the requirements of section 111(d) and 129 of the Clean Air Act (CAA). The EPA approved the proposed State SSI plan on June 11, 2014 (79 FR 33456). The State SSI plan adopts and implements the emission guidelines (EG) set forth at Title 40 part 60 subpart MMMM of the Code of Federal Regulations (CFR) and is applicable to existing SSI units and establishes air emission limits and other requirements. Existing SSI units are units constructed on or before October 14, 2010.

    II. Which provision of the State SSI plan is EPA withdrawing approval of?

    New York State is requesting that the EPA withdraw its approval of a provision in the State SSI plan that allows for an affirmative defense by an owner/operator of an SSI unit for violations of air emissions or other requirements of the State's plan in the event of malfunction(s) of an SSI unit. The EPA's proposed withdrawal of its prior approval, once finalized and effective, will result in the removal of the affirmative defense provisions from the federally-enforceable State SSI plan while maintaining the federal enforceability of the remainder of the State SSI plan for covered SSI units located in New York State.

    III. Why is the EPA taking this action?

    The EPA has determined that New York State's request that EPA withdraw approval of the affirmative defense provision in the State SSI plan meets all applicable requirements and therefore the EPA is proposing to withdraw its approval of that provision.

    IV. Who is affected by the State SSI plan and the amendment to the State SSI plan?

    The State SSI plan regulates all the units designated by the EG for existing SSI units and which are located at a wastewater treatment facility designed to treat domestic sewage sludge. If the owner or operator of a covered SSI unit made changes after September 21, 2011, that meet the definition of modification (see 40 CFR 60.5250), the SSI unit would become subject to 40 CFR part 60 subpart LLLL (New Source Performance Standards for New Sewage Sludge Incineration Units), and the State SSI plan would no longer apply to that unit.

    V. What is the background for New York State's request to amend the State SSI plan?

    In an April 18, 2014 opinion, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit Court) vacated an affirmative defense in one of the EPA's Section 112 regulations. NRDC v. EPA, 749 F.3d 1055 (D.C. Cir., 2014) (vacating affirmative defense provisions in Section 112 rule establishing emission standards for Portland cement kilns). The court found that the EPA lacked authority to establish an affirmative defense for private civil suits and held that under the CAA, the authority to determine civil penalty amounts in such cases lies exclusively with the courts, not the EPA. The vacated affirmative defense provision in the EPA's Portland cement MACT rule is identical to the affirmative defense provision in the EPA's SSI EG, promulgated on March 21, 2011, under sections 111(d) and 129 of the CAA, at § 60.5181 (“How do I establish an affirmative defense for exceedance of an emission limit or standard during a malfunction?”). New York's State SSI plan adopted by reference all the applicable requirements of the EPA's SSI EG, including the affirmative defense provisions at § 60.5181, into its State plan at Part 200 of Title 6 of the New York Code of Rules and Regulations (6NYCRR) of the State of New York, entitled “General Provisions.”

    Because of the April 2014 D.C. Court vacatur referred to above, New York State submitted its January 27, 2015 letter requesting that EPA withdraw its approval of the affirmative defense provision as part of the State SSI plan submitted to the EPA for approval on July 1, 2013.1 Consequently, the EPA is proposing to withdraw its prior approval of that particular provision of the State SSI plan as discussed herein.

    1 EPA has proposed a Federal SSI plan which would apply to SSI units that are not covered by an approved and effective state plan. The proposed federal plan does not include an affirmative defense to violations that result from malfunctions. 80 FR 23402, 23407 (Apr. 27, 2015).

    VI. What approval criteria did we use to evaluate New York State's January 2015 request to amend the State SSI plan?

    The EPA reviewed New York State's request against the applicable requirements of section 129(b)(2) of the CAA. To ensure consistency, the EPA reviewed New York State's request against the proposed Federal SSI plan, discussed in footnote 1 of this notice, which does not include an affirmative defense to violations that result from malfunctions.

    VII. What is the EPA's conclusion?

    The EPA has determined that New York State's SSI plan will continue to meet all the applicable approval criteria if EPA withdraws its approval of the affirmative defense provision. First, the removal of the affirmative defense provision is consistent with the D.C. Circuit's decision in NRDC v. EPA, as described above. Second, a state plan must be at least as protective as the emissions guidelines promulgated by the EPA, and the removal of the affirmative defense provision from the approved state plan does not render the plan less protective, as it removes a potential defense to a violation resulting from a malfunction. Therefore, the EPA is proposing to withdraw its approval of that provision of the plan, which the EPA approved on June 11, 2014 (79 FR 33456) as part of New York's sections 111(d) and 129 State SSI plan for existing sewage sludge incineration units.

    VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a 111(d)/129 plan submission that complies with the provisions of the Act and applicable Federal regulations. 40 CFR 62.04. Thus, in reviewing 111(d)/129 plan 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 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 111(d)/129 plan 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 Nation Land, 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).

    List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, Air pollution control, Aluminum, Fertilizers, Fluoride, Intergovernmental relations, Paper and paper products industry, Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, Sulfur acid plants, Waste treatment and disposal.

    Dated: August 13, 2015. Judith A. Enck, Regional Administrator, Region 2.
    [FR Doc. 2015-20904 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA-R04-RCRA-2015-0294; FRL-9932-92-Region 4] North Carolina: Final Authorization of State Hazardous Waste Management Program Revisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    North Carolina has applied to the Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). These changes correspond to certain Federal rules promulgated between July 1, 2008 and June 30, 2014 (also known as RCRA Clusters XIX through XXIII). With this proposed rule, EPA is proposing to grant final authorization to North Carolina for these changes.

    DATES:

    Send your written comments by September 23, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R04-RCRA-2015-0294, by one of the following methods:

    Federal eRulemaking Portal: www.regulations.gov. Follow the on-line instructions for submitting comments.

    Email: [email protected].

    Fax: (404) 562-9964 (prior to faxing, please notify the EPA contact listed below).

    Mail: Send written comments to Gwendolyn Gleaton, RCRA Programs and Materials Management Section, Materials and Waste Management Branch, Resource Conservation and Restoration Division, U.S. Environmental Protection Agency, Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960.

    Hand Delivery or Courier: Deliver your comments to Gwendolyn Gleaton, RCRA Programs and Materials Management Section, Materials and Waste Management Branch, Resource Conservation and Restoration Division, U.S. Environmental Protection Agency, Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Regional Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

    Please see the direct final rule in the “Rules and Regulations” section of today's Federal Register for detailed instructions on how to submit comments.

    FOR FURTHER INFORMATION CONTACT:

    Gwendolyn Gleaton, RCRA Programs and Materials Management Section, Materials and Waste Management Branch, Resource Conservation and Restoration Division, U.S. Environmental Protection Agency, Atlanta Federal Center, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960; telephone number: (404) 562-8500; fax number: (404) 562-9964; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Along with this proposed rule, EPA is publishing a direct final rule in the “Rules and Regulations” section of today's Federal Register pursuant to which EPA is authorizing these changes. EPA did not issue a proposed rule before today because EPA believes this action is not controversial and does not expect comments that oppose it. EPA has explained the reasons for this authorization in the direct final rule. Unless EPA receives written comments that oppose this authorization during the comment period, the direct final rule in today's Federal Register will become effective on the date it establishes, and EPA will not take further action on this proposal. If EPA receives comments that oppose this action, EPA will withdraw the direct final rule and it will not take effect. EPA will then respond to public comments in a later final rule based on this proposed rule. You may not have another opportunity to comment on these State program changes. If you want to comment on this action, you must do so at this time. For additional information, please see the direct final rule published in the “Rules and Regulations” section of today's Federal Register.

    Dated: June 26, 2015. Heather McTeer Toney, Regional Administrator, Region 4.
    [FR Doc. 2015-20908 Filed 8-21-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 46 CFR Parts 8 and 197 [Docket No. USCG-1998-3786] RIN 1625-AA21 Commercial Diving Operations—Reopening of Comment Period AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking; reopening of comment period.

    SUMMARY:

    The Coast Guard is reopening for 60 days the comment period for the notice of proposed rulemaking entitled “Commercial Diving Operations,” published on February 19, 2015. Reopening the comment period will allow time for the public to review and submit comments on changes to the applicability of this proposed rule, and on the draft regulatory analysis documentation that was not available in the docket during the original comment period. This notice of proposed rulemaking also provides corrected contact information for those persons interested in the proposed regulatory incorporation of certain material by reference, and the reopened comment period facilitates public comment on the proposed incorporation. Finally, although we are making no changes to the collection of information proposed in the February notice of proposed rulemaking, during the reopened comment period the public may continue to submit additional comments on that proposed collection. Specific instructions for commenting on the proposed collection are printed in the ADDRESSES section that follows.

    DATES:

    The comment period for the notice of proposed rulemaking published on February 19, 2015 (80 FR 9152), is reopened. Comments and related material must be submitted to the docket by October 23, 2015. Comments sent to the Office of Management and Budget (OMB) on collection of information must reach OMB on or before October 23, 2015.

    ADDRESSES:

    Submit comments using one of the listed methods, and see SUPPLEMENTARY INFORMATION for more information on public comments.

    Online—http://www.regulations.gov following Web site instructions.

    Fax—202-493-2251.

    Mail—Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

    Hand deliver—mail address, 9 a.m. to 5 p.m., Monday through Friday, except Federal holidays (telephone 202-366-9329).

    Collection of information. You must submit comments on the collection of information discussed in the notice of proposed rulemaking at 80 FR 9173 both to the Coast Guard's docket and to the Office of Information and Regulatory Affairs (OIRA) in the White House Office of Management and Budget. OIRA submissions can be made using one of the listed methods.

    Email (preferred)—[email protected] (include the docket number and “Attention: Desk Officer for Coast Guard, DHS” in the subject line of the email).

    Fax—202-395-6566.

    Mail—Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, ATTN: Desk Officer, U.S. Coast Guard.

    Viewing material proposed for incorporation by reference. To make arrangements to view this material, please call or email Mr. Ken Smith (see FOR FURTHER INFORMATION CONTACT).

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice of proposed rulemaking, call or email Mr. Ken Smith, Project Manager, U.S. Coast Guard, Headquarters, Vessel and Facility Operating Standards Division, Commandant (CG-OES-2); telephone 202-372-1413, email [email protected] If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.

    SUPPLEMENTARY INFORMATION: A. Public Participation and Comments

    We encourage you to submit comments (or related material) on this notice of proposed rulemaking (NPRM). We will consider all submissions and may adjust our final action based on your comments. Comments should be marked with docket number USCG-1998-3786, and should provide a reason for each suggestion or recommendation. You may provide personal contact information so that we can contact you if we have questions regarding your comments, but please note that all comments will be posted to the online docket without change and any personal information you include will be searchable online (see the Federal Register Privacy Act notice regarding our public dockets, 73 FR 3316, Jan. 17, 2008).

    Mailed or hand-delivered comments should be in an unbound 81/2 × 11 inch format suitable for reproduction. The Docket Management Facility will acknowledge receipt of mailed comments if you enclose a stamped, self-addressed postcard or envelope with your submission.

    Documents mentioned in this NPRM and all public comments are available in our online docket at http://www.regulations.gov and can be viewed by following the instructions on that Web site. You can also view the docket online at the Docket Management Facility (see the address under ADDRESSES) between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    B. Regulatory History and Information

    On February 19, 2015, we published an NPRM entitled “Commercial Diving Operations” (80 FR 9152) that proposed amendments to our regulations for commercial diving conducted from deepwater ports or deepwater port safety zones, or in connection with Outer Continental Shelf (OCS) activities, or from vessels that are required to have a Coast Guard certificate of inspection. The NPRM would revise and update current regulations to improve safety and to reflect current industry best practices. The NPRM would also allow the Coast Guard to approve independent third-party organizations to assist in ensuring compliance with commercial diving regulations. All comments on the NPRM, including comments on the proposed collection of information, were due by May 20, 2015. In the course of reviewing comments on the NPRM, we became aware of several errors on our part.

    First, on page 9175 of the NPRM, our proposed regulatory text for 46 CFR 197.200 contained two unintended changes in the applicability of subpart B. We do not intend, despite the proposed language for § 197.200(a)(3), to extend applicability to commercial diving operations involving any vessel operating on the navigable waters of the United States. Nor do we intend, despite the proposed language for § 197.200(a)(5), to remove from applicability those U.S. vessels engaged in an OCS activity as defined in 33 CFR part 140, or connected to a deepwater port as defined in 33 CFR part 150. In a final rule, in § 197.200, we would remove paragraph (a)(3), remove the words “foreign flagged” from paragraph (a)(5), and renumber paragraphs in accordance with this change. As we stated in Table 2 on page 9156 of the NPRM, our intentions for § 197.200 are only to add paragraph (d) concerning foreign vessels, and to improve the clarity of our existing provisions, without making any other changes to the substance of the applicability provisions of subpart B.

    Second, we provided incorrect telephone and email contact information for those wishing to view material proposed for incorporation by reference on pages 9158 and 9159 of the NPRM. To make arrangements to view that material, please contact Mr. Ken Smith (see FOR FURTHER INFORMATION CONTACT).

    Third, throughout the NPRM comment period that ended May 20, 2015, the Preliminary Regulatory Analysis and Interim Regulatory Flexibility Analysis document for the NPRM was unavailable in the rulemaking docket. We corrected that omission in June 2015, and that document is currently available at http://www.regulations.gov as docket number USCG-1998-3786-0195.

    This notice is issued under authority of 5 U.S.C. 552(a).

    Dated: August 18, 2015. J.G. Lantz, Director of Commercial Regulations and Standards, U.S. Coast Guard.
    [FR Doc. 2015-20825 Filed 8-21-15; 8:45 am] BILLING CODE 9110-04-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [WT Docket No. 15-180; DA 15-865] Comment Sought on Scoping Document Under Section 106 of the National Historic Preservation Act AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Federal Communications Commission's Wireless Telecommunications Bureau (Bureau) releases a Scoping Document and seeks public comment on a proposed Program Alternative to improve and facilitate the review process for deployments of small wireless communications facilities, including Distributed Antenna Systems (DAS) and small cell facilities, under section 106 of the National Historic Preservation Act.

    DATES:

    Comments are due September 28, 2015.

    ADDRESSES:

    You may submit comments, identified by DA No. 15-865; WT Docket No. 15-180, by any of the following methods:

    Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's Electronic Comment Filing System (ECFS): http://fjallfoss.fcc.gov/ecfs2/.

    Paper Filers: Parties who choose to file by paper should file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers should submit two additional copies for each additional docket or rulemaking number.

    Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    ○ All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

    U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    Stephen DelSordo, Wireless Telecommunications Bureau, 202-418-1986, email [email protected]; Paul D'Ari, Wireless Telecommunications Bureau, (202) 418-1550, email [email protected]; Mania Baghdadi, Wireless Telecommunications Bureau, (202) 418-2133, email [email protected]; or Brenda Boykin, Wireless Telecommunications Bureau, (202) 418-2062, email [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Bureau's Public Notice, DA No. 15-865; WT Docket No 15-180, released July 28, 2015. The full text of this document is available for inspection and copying during business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Also, it may be purchased from the Commission's duplicating contractor at Portals II, 445 12th Street SW., Room CY-B402, Washington, DC 20554; the contractor's Web site, http://www.bcpiweb.com; or by calling (800) 378-3160, facsimile (202) 488-5563, or email [email protected] Copies of the Public Notice also may be obtained via ECFS by entering the docket number WT Docket 15-180; DA No. 15-865. Additionally, the complete item is available on the Federal Communications Commission's Web site at http://www.fcc.gov.

    By this Public Notice, the Bureau releases a scoping document (the section 106 Scoping Document) and invites input on a new program alternative to improve and facilitate the review process for deployments of small wireless communications facilities, including Distributed Antenna Systems (DAS) and small cell facilities, under section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108. In particular, the attached section 106 Scoping Document describes options and seeks public input on potentially amending the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (Collocation Agreement), 47 CFR part 1, App. B, to address the historic preservation review of deployments of small wireless communications facilities under section 106. Copies of the section 106 Scoping Document are also being sent to State Historic Preservation Officers (SHPOs), Tribal and Native Hawaiian cultural preservation officials (including Tribal Historic Preservation Officers (THPOs)), and other stakeholders. By this Public Notice, the Bureau also initiates and invites government-to-government consultation with Federally-recognized Tribal Nations.

    As described more fully in the section 106 Scoping Document, new and additional infrastructure deployments are necessary to meet the increasing demand for advanced wireless services and greater wireless bandwidth. Many wireless providers are deploying new infrastructure technologies, particularly DAS and small cells, in order to increase coverage and capacity in indoor and outdoor environments. Because DAS networks and small cell facilities use radio spectrum licensed by the Commission, the installation of these facilities on utility poles, buildings, and other existing structures is acknowledged as a Commission undertaking under section 106 of the NHPA. The Commission's rules require applicants to follow the regulations of the Advisory Council on Historic Preservation (ACHP), as modified by two Nationwide Programmatic Agreements (NPAs) executed by the Commission with the ACHP and the National Conference of State Historic Preservation Officers (NCSHPO) (47 CFR part 1, Apps. B and C), in order to determine whether undertakings will affect historic properties. Such historic preservation reviews serve important local and national interests, and the NPAs tailor the Commission's processes to maximize efficiency by eliminating unnecessary procedures and establishing exclusions for proposed facilities that do not have the potential to adversely affect historic properties.

    In the Infrastructure Report and Order, 80 FR 1238, Jan. 8, 2015, the Commission recognized that DAS networks and small cell facilities use components that are a fraction of the size of traditional cell tower deployments and can often be installed on utility poles, buildings, and other existing structures with no potential to cause effects on historic properties. The Infrastructure Report and Order established targeted exceptions from historic preservation review requirements under Section 106 in such cases. The Commission stressed that there is room for additional improvement to its process in this area, but added that any more comprehensive measures would require additional consideration and consultation and are more appropriately addressed and developed through the program alternative process.

    The Commission made a commitment to work with ACHP and other stakeholders to develop a program alternative to appropriately promote additional efficiencies in the historic preservation review of DAS and small-cell deployments. An amendment to the Collocation Agreement would be considered a program alternative that falls under the process outlined in the ACHP regulations.

    This Public Notice and the accompanying section 106 Scoping Document formally initiate the process of amending the Collocation Agreement to more comprehensively define and limit section 106 review for small wireless communications facility deployments that are unlikely to have adverse effects on historic properties. Pursuant to the Commission's commitment in the Infrastructure Report and Order, the attached section 106 Scoping Document seeks specific comment on a number of options for such an amendment that would further tailor the section 106 process to the specific circumstances posed by the deployment of small wireless communications facilities. The Bureau notes that any amendment to the Collocation Agreement would affect only the Commission's review process under section 106 of the NHPA, and would not limit State and local governments' authority to enforce their own historic preservation requirements consistent with Section 332(c)(7) of the Communications Act, 47 U.S.C. 332(c)(7)), and section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. 1455(a).

    The Collocation Agreement provides that most collocations of antennas on existing buildings and structures are excluded from section 106 review, with a few defined exceptions to address potentially problematic situations. The Commission's goal is to amend the Collocation Agreement by adopting provisions specific to the review of small wireless communications facility deployments that meet specified criteria. The exclusions and other provisions adopted pursuant to an amendment to the Collocation Agreement would supplement the two targeted exclusions from section 106 review that the Commission adopted in the Infrastructure Report and Order for DAS and small cell deployments, as well as the exclusions set forth in the Collocation Agreement. In developing an amendment to the Collocation Agreement, the Commission is required to arrange for public participation appropriate to the subject matter and the scope of the category of covered undertakings in accordance with the standards set forth in the ACHP's rules. This Public Notice and the accompanying section 106 Scoping Document fulfill this requirement.

    Comments are due on or before September 28, 2015. The Commission is not requesting Reply Comments.

    This proceeding will be treated as exempt under the Commission's ex parte rules. The Commission finds that treating this proceeding as exempt is in the public interest because: (1) The ACHP's program alternative procedures require the Commission to gather facts, views, and information from multiple parties through consultation, including government-to-government consultation with Tribal Nations; (2) requiring ex parte filings for each conversation in the development of the program alternative would be cumbersome, would potentially inhibit the consultation process, and would likely delay its development; and (3) once developed, the Commission will submit the proposed amendment to the Collocation Agreement to the ACHP and will publish notice of the availability of the proposed program alternative in the Federal Register as required by ACHP regulations, thus giving all stakeholders an opportunity to comment on the record at the decisional stage.

    Availability of Documents: Comments will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS. http://fjallfoss.fcc.gov/ecfs2/Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.

    Accessibility information: To request information in accessible formats (computer diskettes large print, audio recording, and Braille), send an email to [email protected] or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document can also be downloaded in Word and Portable Document Format (PDF) at www.fcc.gov.

    Program Alternative for Small Wireless Comunications Facility Deployments Potential Amendments to the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas Section 106 Scoping Document July 28, 2015

    The Federal Communications Commission (FCC or Commission) invites the participation of State Historic Preservation Officers (SHPOs), Federally-recognized Tribal Nations, the historic preservation community, and other stakeholders in developing a proposed program alternative pursuant to Section 800.14(b) of the rules of the Advisory Council on Historic Preservation (ACHP), 36 CFR part 800, to improve and facilitate the review process under Section 106 of the National Historic Preservation Act (NHPA), 54 U.S.C. 306108, for deployments of Distributed Antenna System (DAS) networks and small cell facilities that constitute FCC undertakings. The Commission's process for developing this program alternative includes government-to-government consultation with Federally-recognized Tribal Nations in accordance with section 800.14(b)(2) and (f) of the ACHP rules and in accordance with the trust relationship the Commission shares with sovereign Tribal Nations, as outlined in the FCC's Statement of Policy on Establishing a Government-to-Government Relationship with Indian Tribes, 65 FR 41668, July 6, 2000.

    To develop this program alternative, the FCC proposes to negotiate an amendment to the 2001 Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (Collocation Agreement), 47 CFR part 1, App. B. The Collocation Agreement provides that most collocations of antennas on existing structures are excluded from historic preservation review, with a few defined exceptions to address potentially problematic situations. The FCC proposes to amend the Collocation Agreement to better account for the limited potential of small wireless communications facility collocations that meet specified criteria, including DAS and small cell deployments, to affect historic properties. The FCC is considering revisions that would augment the two targeted exclusions from Section 106 review that the Commission adopted in the Infrastructure Report and Order, 80 FR 1238, Jan. 8, 2015, as well as the exclusions set forth in the Collocation Agreement.

    The FCC specifically seeks comment on the following potential additional exclusions for small wireless communications facility collocations:

    • An exclusion for small facility deployments on structures more than 45 years of age where the deployments meet specified volume limits, involve no new ground disturbance, and are not on historic properties or in or near a historic district.

    • An exclusion for small facility deployments located on historic properties or in or near a historic district if they: Meet specified size or volume limits; cause no new ground disturbance; meet visibility restrictions; comply in their installation with the Secretary of the Interior's standards and guidelines for historic preservation (Secretary of the Interior's Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and Restructuring Historic Buildings, available at http://www.nps.gov/tps/standards/four-treatments/standguide/index.htm); and comply with all conditions on any existing deployment, located within the same vicinity on the same property, that were imposed pursuant to any regulatory or Section 106 review in order to directly mitigate or prevent the facility's effects.

    • Additional exclusions for small facility deployments on historic properties or in or near a historic district, regardless of visibility limitations, in certain limited circumstances such as: Deployments of small facilities on utility poles, light posts, and traffic lights; deployments of small facilities in certain locations, such as utility or communications rights-of-way; and replacements or modifications of existing small facilities where the replacements meet specified volume/size limits.

    The FCC also invites ideas regarding any other potential measures to improve the Section 106 process for small wireless communications facilities.

    The purpose of this section 106 Scoping Document is to inform and engage all stakeholders in this important process, and also to initiate formal consultation on the development of the proposed program alternative with Federally-recognized Tribal Nations. This document provides a statement of purpose, an overview of DAS and small cell infrastructure, an explanation of compliance with section 106 for DAS and small cell infrastructure, a discussion of ideas for the proposed program alternative, and a description of next steps.

    I. Purpose

    The FCC seeks to develop alternative review processes under section 106 of the NHPA that are appropriate for new wireless technologies that use smaller antennas and compact radio equipment. These facilities, including those used in DAS and small cell systems, are a fraction of the size of traditional cell tower deployments and can be installed on utility poles, buildings, and other existing structures. Further tailoring the Section 106 review process for small wireless communications facilities would foster efficient deployment of infrastructure and equipment that could deliver greater spectrum capacity in more locations and fill in coverage gaps, while also taking into account historic preservation requirements and respecting the vital roles of State, local and Tribal governments.

    The Commission's environmental rules, including its historic preservation rules, generally addressed the deployment of traditional “macrocells” on towers, buildings and non-tower structures. For decades, the Commission's rules have excluded most collocations of antennas from regulatory review, recognizing the benefits to the environment and historic properties that accrue from using existing support structures rather than building new structures. The current trend towards small wireless facility deployments has compelled the Commission to update and expand these exclusions to address and account for the smaller infrastructure associated with new technology. Among other things, eliminating the review of deployments with minimal potential to affect historic properties will allow the valuable and scarce administrative resources supporting Section 106 reviews to be focused on more problematic undertakings, thereby serving the preservation values these review processes were intended to protect.

    In the Infrastructure Report and Order, the Commission eliminated unnecessary reviews of proposed deployments of small wireless communications facilities by adopting two targeted exclusions from section 106 review for certain small facility collocations on utility structures and on buildings and other non-tower structures, provided that they meet certain specified criteria. The Infrastructure Report and Order also noted that Commission staff was working with the ACHP and other stakeholders to develop a program alternative to promote additional efficiencies in the section 106 review of DAS and small-cell deployments. The Commission stated that it expected that the process for developing a program alternative would conclude between 18 and 24 months after the release of the Infrastructure Report and Order.

    In accordance with the commitment made in the Infrastructure Report and Order to develop a program alternative for small facilities, this section 106 Scoping Document seeks comment on potential options to further update the Commission's historic preservation process under section 106 by amending the Collocation Agreement to account for the specific characteristics of DAS and small cell facilities. The Commission has observed that in most cases, the deployment of small wireless communications facilities such as DAS and small cells has minimal effects, if any, on historic properties and can deliver more broadband service to more communities, while reducing the need for new construction that is potentially more intrusive. The goal of this Scoping Document is to identify additional exclusions and/or alternative processes that would facilitate greater efficiencies and therefore expedite section 106 reviews and reduce burdens on all parties to the section 106 process, while ensuring that deployments with significant potential to affect historic properties will continue to receive appropriate scrutiny.

    II. DAS and Small Cell Infrastructure

    Small cells are low-powered wireless base stations that function like cells in a mobile wireless network. They typically cover targeted indoor or localized outdoor areas ranging in size from homes and offices to stadiums, shopping malls, hospitals, and metropolitan outdoor spaces. Wireless service providers often use small cells to provide connectivity to their subscribers in areas that present capacity and coverage challenges to traditional wide-area macrocell networks, such as coverage gaps created by buildings, tower siting difficulties, and challenging terrain. These cells cover significantly less area than traditional macrocells, so networks that incorporate small-cell technology can make greater reuse of scarce wireless frequencies. This greatly increases spectral efficiency and data capacity within the network footprint.

    DAS networks distribute RF signals from transceivers at a central hub to a specific service area where the signals are needed because of poor coverage or inadequate capacity. The network typically consists of a number of remote communications nodes deployed throughout the desired coverage area (each with at least one antenna for transmission and reception), a high capacity signal transport medium that connects each node to a central communications hub site, and radio transceivers at the hub site to process or control the communications signals transmitted and received through the antennas. DAS deployments offer robust and broad coverage without the visual and physical impacts of multiple macrocells. In contrast to small cells, which usually are operator-managed and support only a single wireless service provider, DAS networks often can accommodate multiple providers using different frequencies and/or wireless air interfaces.

    Small wireless technologies have a number of advantages over traditional macrocells. The facilities deployed at each node are much smaller than macrocell antennas and associated equipment and do not require the same elevation, so they can be placed on light stanchions, utility poles, building walls, rooftops and other small structures either privately owned or in the public rights-of-way. As a result, providers can deploy these technologies in areas where traditional towers are not feasible or in areas where wireless traffic demands would require an unrealistic number of macrocells. DAS and small cells can also be deployed in indoor environments to improve interior wireless services. The facilities are smaller and less visible than macrocells, so providers can more easily deploy them with stealth measures such as concealment enclosures. One of the challenges of these technologies, though, is that providers must often deploy a substantial number of nodes to achieve the seamless coverage of a single macrocell.

    DAS and small-cell deployments are a comparatively cost-effective way of addressing ever increasing demand for wireless broadband services, and, accordingly, providers are rapidly increasing their use of these technologies. There are estimates that more than 37 million small cells will be deployed by 2017 and that 16 million DAS nodes will be deployed by 2018. One study projects that aggregate small-cell capacity will overtake macrocell capacity by 2016-2017.

    III. Compliance With Section 106 for DAS and Small Cell Infrastructure

    The FCC is committed to protecting historic properties under the NHPA, including properties that have religious and cultural significance to Tribal Nations and Native Hawaiian Organizations (NHOs). The FCC's rules require that applicants follow the ACHP's Section 106 regulations, as modified by two Nationwide Programmatic Agreements executed by the Commission with the ACHP and the National Conference of State Historic Preservation Officers (NCSHPO), to ascertain whether proposed facilities may affect historic properties. (47 CFR 1.1307(a)(4); 47 CFR part 1, Apps B and C.) Among other things, the FCC maintains an electronic system, the Tower Construction Notification System (TCNS), to ensure that Federally-recognized Tribal Nations and NHOs receive timely notice of projects proposed in their geographic areas of concern and to ensure their opportunity to participate in the review. The FCC also maintains a companion system, E106, which may be used to transmit the required documentation to the SHPOs and other interested parties.

    The Collocation Agreement excludes from section 106 review most collocations on towers that either have completed section 106 review or were built before March 16, 2001, as well as on buildings and other non-tower structures, unless: (1) The non-tower structure is over 45 years old; (2) the non-tower structure is inside the boundary of a historic district or is within 250 feet of the boundary of a historic district and the antenna is visible from ground level within the historic district; (3) the non-tower structure is a designated National Historic Landmark or is listed on or eligible for listing on the National Register; or (4) the proposed collocation is the subject of a pending complaint alleging an adverse effect on historic properties. (Collocation Agreement sections III, IV, V.)

    The Infrastructure Report and Order adopted revisions to the section 106 review process for DAS and other small facilities. These revisions include two new targeted exclusions from section 106 review when small facilities are being deployed—one for collocations on utility structures and another for collocations on other non-tower structures. These exclusions apply to collocations that were not previously excluded from review under the Collocation Agreement because the underlying structures are more than 45 years old.

    Utility Structures. Small facilities on utility structures over 45 years old are excluded from section 106 review where they meet both of the following conditions:

    Size Limitation. Covered antenna enclosures may be no more than three cubic feet in volume per enclosure, or exposed antennas must fit within imaginary enclosures of no more than three cubic feet in volume per imaginary enclosure, up to an aggregate maximum of six cubic feet; and all other equipment enclosures (or imaginary enclosures) associated with the collocation on any single structure must be limited cumulatively to seventeen cubic feet in volume (certain enumerated equipment does not count towards this limit).

    No New Ground Disturbance. Deployment may not involve new ground disturbance.

    Buildings and Non-Tower Structures. Small facilities on buildings or other non-tower structures over 45 years old are excluded from section 106 review provided that:

    Pre-existing Antenna. There is an existing antenna on the building or structure.

    Proximity, Visibility, Size. The new antenna meets requirements of proximity to existing antenna(s), depending on the visibility and size of the new deployment.

    No New Ground Disturbance. Deployment may not involve new ground disturbance.

    Zoning and Historic Preservation Conditions. The new deployment complies with all zoning conditions and historic preservation conditions applicable to existing antennas in the same vicinity on the structure that would directly mitigate or prevent effects, such as camouflage, concealment, or painting requirements.

    Both Categories—Utility Structures and other Non-tower Structures. With respect to both of these categories—utility structures and other non-tower structures—the exclusion extends only to small facility deployments that are not: (1) Inside the boundary of a historic district or within 250 feet of the boundary of a historic district; (2) located on a structure that is a designated National Historic Landmark or is listed on or eligible for listing on the National Register of Historic Places (National Register); or (3) the subject of a pending complaint alleging an adverse effect on historic properties. Section VIII of the Collocation Agreement provides the signatories with an opportunity to propose amendments to the agreement, to be executed upon the written concurrence of all parties. In the Infrastructure Report and Order, the Commission stated that additional exclusions for DAS networks and other small facilities may well be appropriate in light of their minimal potential to cause effects on historic properties. The FCC finds it appropriate to consider excluding additional categories of DAS and small cell deployments from Section 106 review within the framework of an amendment to the Collocation Agreement. The amendment would require the concurrence of the original signatories to the Collocation Agreement, including ACHP, NCSHPO, and the FCC, and it would fall within the FCC's general obligation to consult with Federally-recognized Tribal Nations under the Section 106 process.

    IV. Potential Amendments to the Collocation Agreement

    The FCC has identified several areas in which an amendment to the Collocation Agreement might further tailor the section 106 process for DAS and small cell deployments by excluding deployments that meet criteria designed to ensure that there is minimal potential for adverse effects on historic properties. Any new exclusions from the section 106 process for small wireless communications facilities adopted pursuant to an amendment to the Collocation Agreement would be in addition to the two exclusions that the Commission adopted in the Infrastructure Report and Order, as well as the exclusions that are included in the Collocation Agreement. Like the existing exclusions in the Collocation Agreement as well as those adopted in the Infrastructure Report and Order, the FCC anticipates that these would be complete exclusions from routine Section 106 processing, including any notification to SHPOs, Tribal Nations, and NHOs. Further, any amendment to the Collocation Agreement would affect only the Commission's review process under Section 106 of the NHPA, and would not limit State and local governments' authority to enforce their own historic preservation requirements consistent with Section 332(c)(7) of the Communications Act, 47 U.S.C. 332(c)(7), and section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. 1455(a).

    Three approaches are set forth below for the potential expansion of exclusions from the section 106 process for small facility collocations. These approaches, which are not mutually exclusive, are offered to facilitate a productive dialogue with stakeholders on issues and options at a pre-decisional point. The FCC invites stakeholders' views on these and any other possible alternatives to improve the section 106 process for small facility deployments.

    Small Deployments Not on Historic Properties or in or near Historic Districts. The first option would be to amend the Collocation Agreement to exclude from section 106 review small wireless communications facility deployments on any building or structure (such as bridges, water towers, silos, etc.) where review is required only because the building or structure is over 45 years old, provided that the antenna and associated equipment meet specified volume limitations and the deployment involves no new ground disturbance. This exclusion would not be available for deployments on historic properties or in or near historic districts. Accordingly, the exclusion would not apply if the deployment is (1) on a structure designated as a National Historic Landmark or listed on or eligible for listing on the National Register; (2) located in a historic district or within 250 feet of a historic district; or (3) subject to a complaint filed against the deployment alleging a potential for adverse effects on historic properties. The Commission considered this proposal in the Infrastructure Report and Order but declined to adopt it, stating that it would be addressed in the program alternative process.

    The FCC seeks input on the criteria that should apply under this option. The collocation exclusion for small wireless facilities on utility structures adopted in the Infrastructure Report and Order includes a volumetric limit of no more than three cubic feet for each antenna enclosure and six cubic feet for all antennas on the structure, as well as a requirement that all other wireless equipment associated with the structure not exceed 17 cubic feet (47 CFR 1.1307(a)(4)(ii)(A)(1) & (2)). The FCC proposes the same volumetric limits for this proposed exclusion and seeks input on this proposal. The FCC also seeks input on what equipment should be subject to the volumetric limits. The collocation exclusion for small wireless facilities on utility structures adopted in the Infrastructure Report and Order provides that the 17-cubic-foot limit applies to “all other wireless equipment associated with the structure” but does not apply to vertical cable runs for the connection of power and other services, ancillary equipment installed by other entities that is outside of the applicant's ownership or control, and comparable equipment from pre-existing deployments on the structure (47 CFR 1.1307(a)(4)(ii)(A)(2)(i)-(iii)). Should the exclusion contemplated under this option include a similar provision? The collocation exclusions adopted in the Infrastructure Report and Order provide that a deployment causes no new ground disturbance when the depth and width of previous disturbance exceeds the proposed construction depth and width by at least two feet (47 CFR 1.1307(a)(4)(ii), Note to paragraph (a)(4)(ii)). The FCC seeks input on whether the same measure of ground disturbance should be used if this proposed exclusion is adopted.

    Both of the collocation exclusions adopted in the Infrastructure Report and Order do not apply if the deployment is inside a historic district or within 250 feet of the boundary of a historic district; located on a building or structure that is a National Historic Landmark or listed on or eligible for listing on the National Register; or the subject of a pending complaint alleging adverse effect on historic properties. The FCC seeks input on whether to limit this exclusion in the same manner.

    Minimally Visible Small Deployments on Historic Properties and in or near Historic Districts. The FCC seeks input as to whether the Collocation Agreement should be amended to exclude from section 106 review small wireless communications facility collocations on historic properties or in or near historic districts, subject to visibility limits and reasonable safeguards on the method of installation. The FCC expects that such an exclusion, if adopted, would include restrictions to minimize the potential for adverse effects on historic properties, including size or volume limits on antennas and associated equipment, a requirement that there be no new ground disturbance, and restrictions on the visibility of collocations from public streets or spaces. The FCC solicits input on whether such an exclusion should also include a requirement that the installation of facilities complies with the Secretary of the Interior's Standards, as well as a requirement that these facilities comply with any conditions applicable to any pre-existing antennas in the vicinity of the new collocation that were imposed to directly mitigate or prevent the facility's effects.

    The exclusion for collocation of small wireless facilities on utility structures adopted in the Infrastructure Report and Order includes a volumetric limit of no more than three cubic feet for each antenna enclosure and six cubic feet for all antennas on the structure, as well as a requirement that all other wireless equipment associated with the structure not exceed 17 cubic feet (47 CFR 1.1307(a)(4)(ii)(A)(1) & (2)). The FCC believes the same volumetric limits may be appropriate for any exclusion applicable on historic properties or in or near historic districts and invites input on these limits. The FCC similarly seeks input on whether the wireless equipment to be included for purposes of meeting the 17-cubic-foot limit should be consistent with the list of equipment specified in the Infrastructure Report and Order for utility structures.

    The FCC solicits input on the visibility restrictions that should be adopted for any exclusion for small facility deployments on historic properties or in or near historic districts. In addition, the FCC believes that any exclusion for deployments on historic properties or in or near historic districts should apply only if the deployment involves no new ground disturbance as defined in the collocation exclusions adopted in the Infrastructure Report and Order (47 CFR 1.1307(a)(4)(ii), Note to paragraph (a)(4)(ii)). The FCC suggests that the Secretary of the Interior's Standards apply to any installation of facilities on historic properties under this exclusion. The FCC solicits input on whether there are any other guidelines that should apply. Should this exclusion include a requirement that any installation of equipment on historic properties not harm original historic materials or their replacements-in-kind? Should it prohibit any anchoring of antennas or associated equipment on the historic materials of the property or their replacements-in-kind? The FCC solicits input as to whether it should consider any other provisions to minimize the potential for adverse effects on historic properties for the purpose of this proposed exclusion.

    Additional Deployments on Historic Properties or in or near Historic Districts. The FCC solicits input on whether to amend the Collocation Agreement to exclude from Section 106 review the deployment of small facilities even where they are visible and on historic properties or in or near historic districts, in limited circumstances and subject to specified criteria. To minimize the potential for adverse effects on historic properties, the FCC anticipates that any such exclusion would be limited to deployments on certain structures (such as utility poles, non-historic light posts, and traffic lights), deployments in certain locations (such as utility or communications rights-of-way), or replacement facilities that meet size limits.

    The FCC seeks input on whether small facilities collocated on certain structures, including utility poles, light posts, street lamps, and traffic lights, located in or near historic districts should be excluded from section 106 review. Should such exclusion be limited to utility poles as defined in the Infrastructure Report and Order? That order defines utility pole as a pole that is in active use by a “utility” as defined in section 224 of the Communications Act, but not including light poles, lamp posts, and other structures whose primary purpose is to provide public lighting. The FCC seeks input as to whether light posts and street lamps located in historic districts should also be excluded from section 106 review under certain conditions. The FCC recognizes that an exclusion for light posts and street lamps in historic districts may be of concern in cases where they are integral to the character of the historic district or are themselves considered historic properties or eligible to be historic properties. Are there conditions under which deployments on light posts or street lamps might appropriately be excluded even when located in or near historic districts? If so, can these be clearly enough defined so that project proponents can objectively and accurately determine their applicability? What about traffic lights? What considerations affect the potential to exclude collocations on traffic lights in or near historic districts?

    The FCC solicits input as to whether historic districts contain certain locations within which small facility deployments should always be excluded, such as utility or communications rights-of-way. The FCC seeks input as to how rights-of-way should be defined. Should the Commission incorporate the NPA requirements that: (1) The right-of-way must be designated by a federal, State, local, or Tribal government for communications towers, above-ground utility transmission or distribution lines, or any associated structures and equipment; (2) the right-of-way is in active use for such designated purposes; and (3) the facility will not constitute a substantial increase in size over existing support structures that are located in the right-of-way within the vicinity of the proposed construction? Should the FCC require that the collocation be within the boundaries of the right-of-way, or should the FCC include collocations that are within a stated distance of a right-of-way? For example, Section III.E of the NPA provides an exclusion from Section 106 review for construction of a facility in or within 50 feet of a communications or utility right-of-way.

    The FCC solicits input as to whether replacements of facilities in historic districts should be excluded from section 106 review, and if so, how the FCC should define replacement facilities. Would this be limited to replacement “in kind” or would it be sufficient to require that such replacement facilities not constitute a substantial increase in size, as set forth in the Collocation Agreement? Under these criteria, a deployment would result in a substantial increase in size if it would: (1) Exceed the height of existing support structures that are located in the right-of-way within the vicinity of the proposed construction by more than 10% or twenty feet, whichever is greater; (2) involve the installation of more than four new equipment cabinets or more than one new equipment shelter; (3) add an appurtenance to the body of the structure that would protrude from the edge of the structure more than twenty feet, or more than the width of the structure at the level of the appurtenance, whichever is greater (except that the deployment may exceed this size limit if necessary to shelter the antenna from inclement weather or to connect the antenna to the tower via cable); or (4) involve excavation outside the current site, defined as the area that is within the boundaries of the leased or owned property surrounding the deployment or that is in proximity to the structure and within the boundaries of the utility easement on which the facility is to be deployed, whichever is more restrictive. The FCC invites input on whether these criteria (or some of them) should apply to the potential exclusion of replacement facilities for small deployments. The FCC also seeks input on any other criteria that should apply to this exclusion.

    V. Next Steps and Contact Information

    The FCC staff will follow-up with information regarding meetings, webinars, or other structured opportunities for dialogue on the proposed Program Alternative. Following the public comment period and consideration of the comments, as well as other input in the coming months, the FCC will release the text of a proposed amendment to the Collocation Agreement and seek comment on the proposal. In addition, throughout this process, FCC staff will engage in ongoing consultation with Federally-recognized Tribal Nations under the Section 106 process. The final step in the process of adopting an amendment will be the concurrence of the original signatories to the Collocation Agreement—ACHP, NCSHPO, and the FCC staff. In the meantime, the FCC welcomes ideas from all interested parties and is happy to meet or talk with you. Please contact the following FCC officials:

    • Jeffrey Steinberg, Deputy Chief of the Competition and Infrastructure Policy Division, at [email protected] or 202-418-0896;

    • Paul D'Ari, Special Counsel, Competition and Infrastructure Policy Division, at [email protected] or 202-418-1550;

    • Steve DelSordo, Federal Preservation Officer, at [email protected] or 202-418-1986;

    • Mania Baghdadi, Competition and Infrastructure Policy Division, at [email protected] or 202-418-2133;

    • Brenda Boykin, Competition and Infrastructure Policy Division, at [email protected] or 202-418-2062;

    • Geoffrey Blackwell, Chief of the FCC's Office of Native Affairs and Policy, at [email protected] or 202-418-3629;

    • Irene Flannery, Deputy Chief of the FCC's Office of Native Affairs and Policy, at [email protected] or 202-418-1307.

    Federal Communications Commission. Brian Regan, Chief of Staff, Wireless Telecommunications Bureau.
    [FR Doc. 2015-20698 Filed 8-21-15; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION Federal Railroad Administration 49 CFR Part 228 [Docket No. FRA-2012-0101, Notice No. 1] RIN 2130-AC41 Hours of Service Recordkeeping; Automated Recordkeeping AGENCY:

    Federal Railroad Administration (FRA), Department of Transportation (DOT).

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This rulemaking is part of FRA's broader initiative to reduce the paperwork burden of its regulations. To support compliance with the Federal hours of service laws, Federal regulations have long required railroads to create and retain records regarding the hours of service of their employees who are covered by those laws (covered service employees). In general, the current regulations require covered service employees whose hours are recorded to sign the record by hand (the traditional, manual system) or “certify” the record using a complex computerized system (an electronic system). FRA proposes to amend these regulations to provide a third, simplified method of compliance, for certain entities. FRA proposes to allow railroads with less than 400,000 employee hours per year, and contractors and subcontractors providing covered service employees to such railroads to use an automated system, in which employees apply their electronic signatures to the automated records, which are stored in a railroad computer system. The proposed rule would not require the use of electronic or automated recordkeeping, would be better tailored to small operations, and is expected, if adopted, to decrease the burden hours spent on hours of service recordkeeping.

    DATES:

    Comments: Written comments must be received by October 23, 2015. Comments received after that date will be considered to the extent possible without incurring additional delay or expense.

    Public hearing: FRA anticipates being able to resolve this rulemaking without a public hearing. However, if FRA receives a specific request for a public hearing prior to September 23, 2015, one will be scheduled, and FRA will publish a supplemental notice in the Federal Register to inform interested parties of the date, time, and specific location of any such hearing.

    ADDRESSES:

    Comments, which should be identified by Docket No. FRA-2012-0101, Notice No. 1, may be submitted by any one of the following methods:

    Fax: 1-202-493-2251;

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590;

    Hand Delivery: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or

    Electronically through the Federal eRulemaking Portal, http://www.regulations.gov. Follow the online instructions for submitting comments.

    Instructions: All submissions must include the agency name, docket name, and docket number or Regulatory Identification Number (RIN) for this rulemaking. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act section of this document.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Colleen A. Brennan, Trial Attorney, Office of Chief Counsel, FRA, 1200 New Jersey Avenue SE., RCC-12, Mail Stop 10, Washington, DC 20590 (telephone 202-493-6028 or 202-493-6052); or Zachary Zagata, Operating Practices Specialist, Operating Practices Division, Office of Safety Assurance and Compliance, FRA, 1200 New Jersey Avenue SE., RRS-11, Mail Stop 25, Washington, DC 20590 (telephone 202-493-6476).

    SUPPLEMENTARY INFORMATION:

    Commonly Used Abbreviations CFR Code of Federal Regulations FRA Federal Railroad Administration HS hours of service (when the term is used as an adjective, except as part of the name of a specific Act of Congress or the title of a document, and not when the term is used as a noun; for example, “HS records” but not “the HS Act”) Table of Contents for Supplementary Information I. Executive Summary II. Statutory and Regulatory History III. Rationale for this Proposed Rule IV. Section-by-Section Analysis V. Regulatory Impact and Notices A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures B. Regulatory Flexibility Act and Executive Order 13272; Initial Regulatory Flexibility Analysis C. Federalism D. International Trade Impact Assessment E. Paperwork Reduction Act F. Environmental Assessment G. Unfunded Mandates Reform Act of 1995 H. Energy Impact I. Privacy Act Statement I. Executive Summary

    Federal laws governing railroad employees' hours of service date back to 1907. FRA has long administered both the statutory hours of service (HS) requirements and the agency's HS recordkeeping and reporting regulations (49 CFR part 228, subpart B), which promote compliance with the HS laws. Currently, the HS statutory requirements cover three groups of employees; employees performing the functions of a “train employee,” “signal employee,” or “dispatching service employee,” as defined at 49 U.S.C. 21101. These terms are also defined in the HS recordkeeping and reporting regulations at 49 CFR 228.5 and FRA interpretations.

    The HS statutory requirements have been amended several times over the years, most recently in 2008. Section 108(f) of the Rail Safety Improvement Act of 2008 (RSIA) required FRA to amend its then-current HS recordkeeping regulations at 49 CFR part 228 (part 228) to support compliance with the new statutory requirements and to authorize electronic recordkeeping and reporting as a means of compliance with the regulations. 74 FR 25330, May 27, 2009.

    In general, the FRA 2009 recordkeeping amendments require that electronic HS records of information required by revised subpart B of part 228 be certified either (1) by the employee whose time was being recorded, or (2) by the reporting crewmember of a train crew or signal gang whose time was being recorded, instead of being signed by hand, and that the records be electronically stamped with the name of the certifying employee and the date and time of certification. See 49 CFR 228.9(b). The 2009 recordkeeping amendments also added new subpart D to part 228, which established comprehensive requirements for electronic recordkeeping systems.

    Some smaller railroads have informed FRA that the current requirements of 49 CFR part 228, subpart D for electronic recordkeeping systems make using such systems infeasible for their operations, which are less complex and variable than larger railroads' operations. FRA considered those concerns and proposes in this NPRM to allow smaller railroads (specifically railroads with less than 400,000 employee hours per year), and their contractors and subcontractors who provide covered service employees to those railroads, to use an alternative “automated recordkeeping system” to create and maintain their covered-service employees' required HS records.

    FRA is aware that some railroads currently use an automated system, in which covered service employees access a blank HS record on a railroad computer, enter required data on the form, and then print and sign the record, which is still considered a manual or paper record. This proposed rule would allow railroads with less than 400,000 employee hours annually (defined for purposes of this proposed rule as an “eligible smaller railroad”), and contractors and subcontractors that provide covered service employees to the railroads, to have employees electronically sign the automated records of their hours of duty and then store the records in the railroad's computer system. This system would eliminate the requirement to print and sign the record.

    The proposed rule would not require an eligible smaller railroad's automated system to conform to some of the existing requirements for electronic recordkeeping systems under 49 CFR part 228, subpart D that may not be relevant to the operations of these smaller railroads. Because of the less complex and less varied nature of the operations of smaller railroads with less than 400,000 employee hours annually, FRA is comfortable with allowing those railroads to use a system that lacks the programming and analysis that are required of an electronic recordkeeping system under 49 CFR part 228, subpart D. For example, the proposed rule would not require an eligible smaller railroad's automated system to calculate and fill in total time on duty based on the information entered by the employee because it would require programming to enable the system to identify how various periods of time are treated and perform the calculation. As further described below, this proposed rule would significantly reduce costs and paperwork burdens for eligible smaller railroads that develop an automated system, because, like electronic records, automated records require substantially less time to complete than manual records. In addition, the records would be stored in the automated system, which would relieve eligible smaller railroads of the burden of storing and maintaining paper records.

    The proposed rule would define “automated recordkeeping system” as one that conforms to the requirements of proposed new §§ 228.201(b) and 228.206. The proposal would define “electronic recordkeeping system” as one that conforms to the requirements of proposed § 228.201(a), and current §§ 228.203-228.205. The proposed rule would provide general requirements for automated records in proposed new § 228.9(c). It would require employees to electronically sign automated records, and would provide requirements for retention of, and FRA access to, automated records in the automated recordkeeping system.

    The proposed rule would also provide general requirements for automated recordkeeping systems, in proposed new § 228.201(b). It would require that the automated recordkeeping system conform to the requirements of proposed new § 228.206, (which provides more detailed requirements for automated recordkeeping systems and automated records), and that the records created and maintained in the automated recordkeeping system conform to the requirements of proposed revised § 228.11. New § 228.201 of the proposed rule would also require eligible smaller railroads, and their contractors and subcontractors using the automated system, to train their employees on the use of the automated system to create their required HS records. The rule also would require sufficient information technology security to ensure the integrity of the system and to prevent unauthorized access to the system or individual records and that FRA may prohibit or revoke the authority to use an automated system that does not meet the requirements.

    New § 228.206 of the proposed rule would provide the requirements for automated recordkeeping systems and automated records. The requirements of this proposed section are similar to some of the requirements for electronic recordkeeping systems found in current §§ 228.203 and 228.205. However, the proposed requirements of § 228.206 are tailored to the nature and lesser complexity of the operations of the eligible smaller railroads that would be subject to this proposed rule. Therefore, the proposed rule would not require an automated system to include some of the program components and other features that would not be appropriate or necessary for the operations of eligible smaller railroads, but would require other elements for the automated systems that are not used in an electronic recordkeeping system.

    Paragraph (a) of this section would require that automated records be electronically signed and would provide requirements for establishing and using an electronic signature. Paragraph (b) of this section would provide system security requirements for access to the automated recordkeeping system, data entry on individual records, pre-population of some data on an employee's record subject to certain conditions, procedures for amendment of records and protection against alteration or deletion of a record once the employee who created it has signed the record. Paragraph (c) of this section would require an automated recordkeeping system to be able to identify who entered data on a record and which person entered which data items if more than one person entered data on a single record. Paragraph (d) would establish the required search criteria for an automated recordkeeping system, establishing specific data fields and other criteria which must be searchable. Finally, paragraph (e) of this section would establish requirements for access to the system and its records by FRA and participating State inspectors. Railroads would be required to provide access as soon as possible and not later than 24 hours after a request for access. Each data field that an employee enters would have to be visible, and data fields would have to be searchable as paragraph (d) provides and yield access to all records meeting the specified search criteria.

    Finally, the proposed rule would modify the training requirements at § 228.207 to require that railroads using an automated recordkeeping system train their employees and supervisors on the use of that system as part of initial and refresher training (just as would be required for manual or electronic recordkeeping).

    As stated above, this amended rule would apply to all railroads subject to the HS recordkeeping regulations with less than 400,000 employee hours annually under FRA accident/incident reporting regulations at 49 CFR 225.21(d), and their contractors and subcontractors that provide such railroads with covered service employees. Adopting an automated system would be voluntary.

    By providing an alternative set of requirements specifically tailored to the circumstances of smaller operations, FRA expects a greater number of railroads to create and maintain HS records using an automated recordkeeping system rather than to continue using manual records. These changes would produce a total reduction of over 194,000 burden hours. The costs of implementing an automated recordkeeping system should be substantially less than an electronic recordkeeping system and are relatively small compared to the benefits gained by eliminating a paper recordkeeping system.

    FRA has estimated the cost savings expected from this proposed rule. Our analysis calculates an estimated $81.8 million in net savings over a 10-year period through the adoption of the proposed automated recordkeeping. The present value of this savings is $51.5 million (discounted at 7 percent), and $66.7 million (discounted at 3 percent).

    The table below presents the estimated benefits (from cost savings) associated with the proposed rule over a 10-year period.

    Table 1—10-Year Estimated Benefits of Proposed Rule Costs to prepare and operate automated recordkeeping (investment required to realize cost savings) $3,139,347 Benefits: Reduced recordkeeping labor costs 54,638,880 Net Benefits 51,499,533 Dollars are discounted at a present value rate of 7%.

    FRA estimates that there will be a relatively small investment associated with implementing automated systems necessary to realize the significant benefits (cost burden reduction). Railroads are already producing hours of service duty records manually on paper records to comply with 49 CFR 228.11 and adopting an automated recordkeeping system is voluntary.

    II. Statutory and Regulatory History

    Federal laws governing railroad employees' hours of service date back to 1907 1 and are presently codified at 49 U.S.C. 21101-21109,2 21303, and 21304.3 FRA, under 49 U.S.C. 103(g), 49 CFR 1.89, and internal delegations, has long administered the statutory HS requirements and the agency's HS recordkeeping and reporting regulations (49 CFR part 228, subpart B), which promote compliance with the HS laws. Currently, the HS statutory requirements cover three groups of employees; train employees, signal employees, or dispatching service employees, as those terms are defined at Sec. 21101. The HS recordkeeping and reporting regulations at 49 CFR 228.5 include the statutory definitions of these terms and FRA interpretations discuss them. See FRA's “Requirements of the Hours of Service Act; Statement of Agency Policy and Interpretation” at 49 CFR part 228, appendix A, most of which was issued in the 1970s, and subsequent FRA interpretations of the HS laws published in the Federal Register.

    1 See the Hours of Service Act (Public Law 59-274, 34 Stat. 1415 (1907)). Effective July 5, 1994, Public Law 103-272, 108 Stat. 745 (1994), repealed the Hours of Service Act as amended, then codified at 45 U.S.C. 61-64b, and also revised and reenacted its provisions, without substantive change, as positive law at 49 U.S.C. 21101-21108, 21303, and 21304. The Hours of Service Act was administered by the Interstate Commerce Commission until these duties were transferred to FRA in 1966.

    2 These sections may also be cited as 49 U.S.C. Chapter 211. Hereinafter, references to a “Sec.” are to a section of title 49 of the U.S. Code unless otherwise specified.

    3 For a table comparing and contrasting the current Federal HS requirements with respect to freight train employees, passenger train employees, signal employees, and dispatching service employees, please see Appendix A to the Second Interim Interpretations. 78 FR 58830, 58850-58854, Sept. 24, 2013.

    Congress has amended the HS statutory requirements several times over the years, most recently in the Rail Safety Improvement Act of 2008 (RSIA).4 The RSIA substantially amended the requirements of Sec. 21103, applicable to a train employee,” 5 and the requirements of Sec. 21104, applicable to a signal employee.” 6 The RSIA also added new provisions at Secs. 21102(c) and 21109 that together made train employees providing rail passenger transportation subject to HS regulations, not Sec. 21103, if the Secretary timely issued regulations. Subsequently, FRA, as the Secretary's delegate, timely issued those regulations, codified at 49 CFR part 228, subpart F (Passenger Train Employee HS Regulations), which became effective on October 15, 2011.

    4 Public Law 110-432, Div. A, 122 Stat. 4848.

    5See Sec. 21101(5).

    6See Sec. 21101(4). The RSIA also amended the definition of “signal employee” effective October 16, 2008. Before the RSIA, the term meant “an individual employed by a railroad carrier who is engaged in installing, repairing, or maintaining signal systems.” Emphasis added.

    Section 108(f) of the RSIA required the Secretary to—

    prescribe a regulation revising the requirements for recordkeeping and reporting for Hours of Service of Railroad Employees contained in part 228 of title 49, Code of Federal Regulations . . . to adjust record keeping and reporting requirements to support compliance with chapter 211 of title 49, United States Code, as amended by [the RSIA]; . . . to authorize electronic record keeping, and reporting of excess service, consistent with appropriate considerations for user interface; and . . . to require training of affected employees and supervisors, including training of employees in the entry of hours of service data. 49 U.S.C. 21101 (notes). FRA, as the Secretary's delegate, issued those regulations, codified at 49 CFR part 228, including subpart D (Electronic Recordkeeping), which became effective on July 16, 2009. 74 FR 25330, May 27, 2009 (2009 Recordkeeping Amendments).

    FRA issued its first HS recordkeeping regulation, codified at 49 CFR part 228, subparts A and B, in 1972. See 37 FR 12234, Jun. 21, 1972.7 Because the regulation did not contemplate electronic recordkeeping, that regulation required that HS records be signed manually.8 Therefore, prior to the effective date of the 2009 Recordkeeping Amendments, railroads that wished to create and maintain their required HS records electronically rather than manually needed FRA's waiver of the requirement for a handwritten signature. See FRA procedural regulations at 49 CFR part 211. At the time that the 2009 recordkeeping amendments went into effect, several Class I railroads were creating and maintaining their required HS records using an electronic recordkeeping system that had been approved by FRA pursuant to a waiver.9

    7 24 Stat. 383, as amended, 24 Stat. 386, as amended, 80 Stat. 937, 34 Stat. 1415, as amended and 49 CFR 1.89 (d).

    8 In particular, the regulation required the handwritten signature be that of the employee whose time was being recorded.

    9 The preamble of the 2009 Recordkeeping Amendments contains a detailed discussion of the history of electronic recordkeeping and the development of waiver-approved electronic recordkeeping systems. See 74 FR 25330, 25330-25334.

    In general, the 2009 Recordkeeping Amendments required that either the employee whose time was being recorded, or the reporting crewmember of a train crew or signal gang whose time was being recorded, certify their electronic HS records, instead of signing them by hand, and that the recordkeeping system electronically stamp the records with the name of the certifying employee and the date and time of certification. See 49 CFR 228.9(b). These amendments also established comprehensive requirements for electronic recordkeeping systems. A brief summary of the most significant requirements follows.

    • First, electronic recordkeeping systems must generate records that provide sufficient data fields for an employee to report a wide variety and number of activities that could arise during a duty tour. See 49 CFR 228.201.

    • Second, the systems must have security features to control access to HS records and to identify any individual who entered information on a record. See 49 CFR 228.203(a)(1)(i), (a)(2)-(a)(7) and (b).

    • Third, systems must include complex program logic that allows the system to identify how periods of time spent in any activity that is entered on a record are treated under the HS laws (and also now under the substantive HS regulations for passenger train employees).

    • Fourth, program logic must allow the system to calculate total time on duty from the data the employee entered, flag employee-input errors so the employee can correct them before certifying the record, and require the employee to enter an explanation when the data entered shows a violation of the HS laws or regulations. See 49 CFR 228.203(c).

    • Fifth, electronic recordkeeping systems must provide a method known as a “quick tie-up” for employees to enter limited HS information when they have met or exceeded the maximum hours allowed for the duty tour, and railroads must have procedures for employees to do a quick tie-up by telephone or facsimile (fax) if computer access is not available. See 49 CFR 228.5 and 228.203(a)(1)(ii).

    • Finally, an electronic recordkeeping system must provide search capability so that records may be searched by date or date range and by employee name or identification number, train or job assignment, origin or release location, territory, and by records showing excess service. The results of any such search must yield all records matching specified criteria. See 49 CFR 228.203(d).

    III. Rationale for This Proposed Rule

    In this NPRM, FRA proposes to allow railroads with less than 400,000 employee hours per year, and their contractors and subcontractors who provide those railroads with covered service employees (collectively referred to for the purpose of this proposed rule as “eligible smaller railroads”), to use an “automated recordkeeping system” to create and maintain their covered-service employees' HS records.10 (See detailed discussion under section V.A. below, regarding eligible smaller railroads. FRA is aware that some railroads currently use an automated system, in which covered service employees access a blank HS record on a railroad computer, enter required data on the form, and then print and sign the record, which is still considered a manual or paper record. As further described below, this proposed rule would allow employees of eligible smaller railroads to electronically sign the automated record and store it in a railroad computer system, eliminating the requirement to print and sign the record. The proposed rule would not require an automated system to comply with some of the existing requirements for electronic recordkeeping systems under 49 CFR part 228, subpart D that may not be relevant to the operations of these eligible smaller railroads. Electronic or automated records require substantially less time to complete than manual records. However, some eligible smaller railroads have told FRA the existing requirements of 49 CFR part 228, subpart D for electronic recordkeeping systems make using such systems infeasible for their operations, which are less complex and variable than other railroads' operations. By providing an alternative set of requirements specifically tailored to the circumstances of smaller operations, FRA expects a greater number of railroads to create and maintain HS records using an automated recordkeeping system, rather than continuing to use manual records. These changes will produce a total reduction of over 194,000 burden hours. In addition, as discussed in more detail in Section V.A. of this document, FRA expects the cost of implementing an automated recordkeeping system to be substantially less than an electronic recordkeeping system.

    10 Given the size and nature of their operations, FRA's understanding is that it is not common for eligible smaller railroads to have contractors or subcontractors that provide employees to perform covered service for the railroad. However, if an eligible smaller railroad has a contractor or subcontractor whose employees perform covered service for the railroad, the proposed rule would apply to such contractors and subcontractors for the HS records of their employees performing covered service on a railroad subject to this proposed regulation.

    FRA also expects that many of the companies that would be subject to this proposed regulation could choose to comply with its requirements using existing equipment and software that many of them already use for other purposes. For example, many eligible smaller railroads will find that their existing equipment and software can be used to generate a form that would allow employees to enter the information relevant to their duty tour that is required by § 228.11 and save the record in a directory structure that would allow either the railroad or FRA to retrieve it using the search criteria provided in this proposed regulation. FRA believes it is appropriate to allow the eligible smaller railroads to use a system that lacks the programming and analysis that are required of an electronic recordkeeping system because of the less complex and less varied nature of the operations of eligible smaller railroads. For example, the proposed rule would not require an automated system to calculate and fill in total time on duty based on the information the employee entered because that would require costly programming to enable the system to identify how various periods of time are treated and to perform the calculation. Instead, the employee would enter that information just as if it were a paper record. Similarly, the proposed rule would not require an automated system to include costly programming that would prompt the employee to enter an explanation of a duty tour over 12 hours or that would flag possible input errors or missing data (for example, showing an on-duty location that differs from the released location of the previous duty tour).

    Currently, the proposed rule would apply to 723 Class III railroads and 15 commuter railroads, and their contractors and subcontractors. FRA considered extending the scope of this proposed regulation to all Class III railroads and all commuter railroads. However, because of the number of employees, volume of HS records, and complexity of operations on some commuter railroads, we believe an electronic recordkeeping system that complies with subpart D of part 228 is the appropriate alternative to the use of manual records for these railroads. Likewise, the definition of “Class III railroad” includes all terminal and switching operations,11 regardless of their operating revenues. Some of these operations have extensive operations and a number of employees and HS records more appropriately served by an electronic recordkeeping system. A larger and more complex operation would benefit from an electronic recordkeeping system's program logic capability to help ensure accurate recordkeeping. In addition, the greater search capabilities of an electronic recordkeeping system would enable a railroad with larger and more complex operations to better identify relevant records, whether for the railroad's own review, or in response to requests from FRA.

    11See 49 CFR 1201.1-1(d).

    FRA is aware that at least one commuter railroad is currently using an electronic recordkeeping system and that several other commuter railroads are developing electronic recordkeeping systems. FRA understands that these railroads are willing to share some information with other commuter railroads to help them develop their systems. This may provide an opportunity for more commuter railroads to eliminate paper records and adopt electronic recordkeeping systems.

    For these reasons, FRA concluded that the proposed rule should only apply to railroads with less than 400,000 employee hours per year. FRA requests comment on this aspect of the proposed rule.

    IV. Section-by-Section Analysis Subpart A—General Section 228.5 Definitions

    FRA proposes to add definitions of “automated recordkeeping system,” “electronic recordkeeping system” “electronic signature,” “eligible smaller railroad” and “railroad that has less than 400,000 employee hours annually.”

    The proposed definitions of the terms “automated recordkeeping system” and “electronic recordkeeping system” would differentiate between the automated systems that are the subject of this rulemaking, which would be required to conform to the requirements of proposed new §§ 228.201(b) and 228.206, from the electronic recordkeeping systems that must meet the requirements of §§ 228.201(a) and 228.203-228.205.

    The proposed definition of “electronic signature” is consistent with the Electronic Signatures in Global and National Commerce Act.12 It would allow railroads to use two different types of electronic signatures for their employees to sign their HS records: either (1) a unique digital signature, created based on the employee's identification number and password, or other means used to uniquely identify the employee in the automated recordkeeping system; or (2) a unique digitized version of the employee's handwritten signature that would be applied to the HS record.13 The definition would also provide that the electronic signature must be created as § 228.19(g) provides (existing regulatory requirements for creating an electronic signature for railroads' use on their reports of excess service) or proposed § 228.206(a) (proposed new requirements for creating electronic signatures for use on employees' HS records in an automated recordkeeping system).

    12 Public Law 106-229, 114 Stat. 472 (2000). See, e.g., 15 U.S.C. 7006.

    13 If a railroad creates an electronic signature that is a unique digital signature for each of its employees, the employee's HS record will be signed with the employee's printed name or other identifying information, when the employee signs the record using his or her electronic signature. If the railroad instead creates a digitized version of the employee's handwritten signature, the record will be signed with the employee's handwritten signature when the employee signs the record using his or her electronic signature.

    For the purpose of this proposed rule, an “eligible smaller railroad” would be, as a general rule, a railroad with less than 400,000 employee hours annually. Such railroads would be eligible to use an automated recordkeeping system under this proposed rule. A “railroad that has less than 400,000 employee hours annually” would be defined as a railroad that has reported to FRA that it had less than 400,000 employee hours during the preceding three consecutive calendar years on Form FRA 6180.56—Annual Railroad Reports of Manhours by State, as required by 49 CFR 225.21(d). The exception to the general rule would be railroads that have not been operating for three prior consecutive calendar years, but expect to have less than 400,000 employee hours annually during the current year.

    Section 228.9 Records; General

    Proposed new § 228.9(c) would establish requirements for automated records that parallel the requirements of paragraph (a) for manual records and paragraph (b) for electronic records. Proposed paragraph (c) would require that automated records be electronically signed and stamped with the certifying employee's electronic signature that meets the requirements of § 228.206(a), and the date and time that the employee electronically signed the record. Like paragraphs (a) and (b), paragraph (c) would contain requirements for retaining and accessing the records. However, unlike paragraph (b), paragraph (c) would not require using an employee identification (ID) and password to access automated records. While some railroads subject to this proposed rule might choose to provide an ID and password for the purpose of accessing the system, this process might be more complex than necessary for smaller operations, which may choose, for example, to have a railroad official directly provide access.14 Finally, paragraph (c) would require that automated records be capable of being reproduced on printers available at the location where records are accessed, meaning that railroads must have printers available at any location where they provide access to records. This requirement also applies to electronic recordkeeping systems in current § 228.9(b).

    14 It is important to note that access should be available upon request, and railroads and managers risk civil and criminal liability if they control access to the recordkeeping system in a manner that prevents an employee from accurately reporting his or her hours of service.

    Section 228.11 Hours of Duty Records

    Currently § 228.11(a) requires each railroad, or a contractor or a subcontractor that provides covered service employees to a railroad, to keep a record, either manually or electronically, concerning the hours of duty of each employee. Because HS records created and maintained using an automated recordkeeping system would also be required to comply with the requirements of § 228.11 (see section-by-section analysis of § 228.201(b) below), FRA proposes to delete the words “manually or electronically” from the requirement.

    Section 228.201 Electronic Recordkeeping and Automated Recordkeeping; General

    The proposed rule would designate the current requirements of this section for electronic recordkeeping systems as paragraph (a) and proposed new paragraph (b) would add similar requirements for automated recordkeeping systems, in part by cross-referencing those requirements of paragraph (a) that would also be applicable to automated recordkeeping systems. The proposed rule would also make minor non-substantive changes to paragraphs (a)(3), (a)(4), and (a)(5) to correct typographical errors, deleting the “and” after paragraph (a)(3), replacing the periods at the end of paragraphs (a)(4) and (a)(5) with semicolons, and adding “and” after the semicolon at the end of paragraph (a)(5). Proposed new § 228.201(b)(1) would provide that an automated recordkeeping system must comply with the requirements of proposed § 228.206. Proposed new § 228.201(b)(2) would require eligible smaller railroads using automated recordkeeping systems to comply with the requirements of paragraphs (a)(2) and (a)(4)-(a)(6), requirements also applicable to electronic records and recordkeeping systems. Specifically, the proposed rule would require the records created and stored in the automated recordkeeping system to comply with the requirements of § 228.11, as required by paragraph (a)(2). Further, the rule would require eligible smaller railroads that use an automated system to train employees on how to use the automated system to create their HS records, as required by paragraph (a)(4). The railroads would also have to have sufficient information technology security to ensure the integrity of the system and to prevent unauthorized access to the system or individual records, as required by paragraph (a)(5). Finally, under paragraph (a)(6), the proposed rule would provide that FRA may prohibit or revoke the authority to use an automated system that does not meet the requirements. The main difference between the proposed requirements of § 228.201(b)(2) for automated records and recordkeeping systems and the corresponding existing requirements for electronic records and recordkeeping systems is that automated systems would not be required to have monitoring indicators in the system to help the railroad monitor the accuracy of the records. However, railroads using an automated system would certainly be responsible for the accuracy of their required HS records, regardless of whether the record is manual, automated, or electronic.

    Finally, under proposed § 228.201(b)(3), if a railroad, or a contractor or subcontractor to a railroad with an automated recordkeeping system reports to FRA under § 225.21(d) of this chapter on its Annual Railroad Report of Manhours by State that it has more than 400,000 employee hours in three consecutive calendar years, that railroad, or contractor or subcontractor to a railroad may not use an automated recordkeeping system unless FRA grants a waiver under 49 CFR 211.41. As described above, FRA believes larger railroads are better served by the use of an electronic recordkeeping system. In most cases, a railroad with such growth for three consecutive calendar years will have had sufficient time to transition to an electronic recordkeeping system.

    Section 228.206 Requirements for Automated Records and Recordkeeping Systems on Eligible Smaller Railroads

    This proposed new section would establish the requirements for an automated recordkeeping system. These proposed requirements are similar to some of the requirements for electronic recordkeeping systems found in current §§ 228.203 and 228.205. However, as discussed in Section III above, the proposed requirements of § 228.206 are tailored to the nature and lesser complexity of the operations of railroads with less than 400,000 employee hours annually. Therefore, as discussed above, the proposed rule would not require an automated system to include some of the program components and other features that apply to electronic recordkeeping systems that are not appropriate or necessary for the operations of these railroads. However, this proposed new section would require other elements for the automated systems that are not used in an electronic recordkeeping system.

    Paragraph (a) would require an employee creating the automated record sign the record to use an electronic signature. This paragraph also would explain the requirements for establishing and using an electronic signature. These requirements are taken from paragraph (g) of § 228.19, which explains the requirements for railroads to establish and use electronic signatures for the purpose of filing reports of excess service. These proposed requirements do not apply to creating HS records using an electronic recordkeeping system and would be unique to automated recordkeeping systems.

    Paragraph (b) would provide the standards that automated recordkeeping systems must meet for system security. The paragraph would require railroads to protect access to the automated recordkeeping system by the use of a user name and password or comparable method. The exact method used may vary depending on the number of employees and other ways that access to a railroad's system may already be protected.

    Paragraph (b)(1) would restrict data entry to the employee, train crew, or signal gang whose time is being reported. However, an exception to this requirement would allow a railroad to pre-populate some of the known factual data on its employees' HS record. An employee's name or identification number, or the on-duty time for an employee who works a regular schedule, are examples of the kind of data that could be pre-populated. However, the paragraph would require that the employee be able to make changes to any pre-populated data on his or her record.

    Proposed paragraph (b) also would provide that the system may not allow two individuals to have the same electronic signature and that the system must be structured so that a record cannot be deleted or altered once it is electronically signed. The proposed paragraph would also require that any amendment to a record must (1) either be stored electronically apart from the record it amends or electronically attached as information without altering the record and (2) identify the person making the amendment. Finally, proposed paragraph (b) would require the automated recordkeeping system to be capable of maintaining records as submitted without corruption or loss of data, and ensure supervisors and crew management officials can access, but not delete or alter, a record after the employee electronically signs the record. The proposed rule does not establish a specific interval for railroads to back up the data contained in their automated recordkeeping system, but FRA expects there would be sufficient backup to prevent loss of data in compliance with this paragraph. FRA requests comment on the need for specific requirements related to data backup and what interval and method would be most appropriate.

    Paragraph (c) would provide that the automated recordkeeping system be able to identify each individual who entered data on a record and which data items each individual entered if more than one person entered data on a given record.

    Paragraph (d) would establish the search capabilities an automated recordkeeping system must have. This includes the specific data fields and other criteria the system must be able to use to search for and retrieve responsive records.

    Paragraph (e) would explain the requirements for access to automated recordkeeping systems. Eligible smaller railroads must grant FRA inspectors, and participating State inspectors, access to the system using railroad computer terminals. The railroads would have to provide access as soon as possible, but not later than 24 hours after a request for access. And, each data field an employee entered must be visible. Finally, data fields must be searchable as described in paragraph (d) and yield access to all records matching the specified search criteria.

    Section 228.207 Training

    This proposed rule would slightly revise the training requirements of part 228. The proposed rule would revise paragraph (b) of this section, which sets forth the components of initial training, to add the requirement for training on how to enter HS data into an automated system. The paragraph currently requires training on electronic recordkeeping systems or the appropriate paper records used by the railroad, contractor, or subcontractor for whom the employee performs covered service. We propose to revise this paragraph by adding a requirement for eligible smaller railroads that develop an automated recordkeeping system in compliance with the requirements of this proposed rule to give their employees training on how to prepare HS records in that system.

    Likewise, the proposed rule would revise paragraph (c) of this section to specifically require eligible smaller railroads with automated systems to provide refresher training emphasizing any changes in HS substantive requirements, HS recordkeeping requirements, or a railroad's HS recordkeeping system since the employee was last provided training. The paragraph currently refers to changes in “the carrier's electronic or other recordkeeping system.” FRA expects that any railroad implementing an automated recordkeeping system to replace previous paper records would need to provide training on the use of that system to its employees, even if those employees had previously received training required by this section for paper records.

    V. Regulatory Impact and Notices A. Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures

    This proposed rule has been evaluated in accordance with existing policies and procedures under Executive Order 12866, Executive Order 13563, and DOT policies and procedures. 44 FR 11034, Feb. 26, 1979. FRA has prepared and placed in the docket a Regulatory Impact Analysis addressing the economic impacts of this proposed rule. In this NPRM, FRA proposes to allow railroads with less than 400,000 employee hours annually, and their contractors and subcontractors, to use an automated recordkeeping system. An automated recordkeeping system would provide a simpler way to create and maintain hours of duty records as 49 CFR part 228, subpart B requires than complying with some of the existing requirements for electronic recordkeeping systems under 49 CFR part 228, subpart D that may not be relevant to the operations of these eligible smaller railroads. Electronic and automated records require substantially less time to complete than manual records. However, some eligible smaller railroads have told FRA the requirements of 49 CFR part 228, subpart D make using such systems infeasible for their operations, which are less complex and variable than larger railroads. As part of its regulatory evaluation, FRA has explained the benefits of automated records and recordkeeping systems under this proposed rule and provided monetized estimates of the benefits' value. The proposed rule would substantially reduce the costs of current paper recordkeeping systems by allowing eligible smaller railroads to replace it with an automated system to create and maintain hours of duty records. The proposed rule accomplishes this by providing an alternative set of requirements for an automated system specifically tailored to the circumstances of smaller operations. FRA believes the majority of eligible smaller railroads will take advantage of the opportunity for cost savings and incur a small burden to realize what would be a net cost savings.

    As discussed below, FRA estimates these changes will produce a total estimated reduction of just over 194,000 burden hours annually. Based on railroads' annual 6180.56 reports to FRA for 2013, this amended rule will apply to a total of approximately 738 railroads with less than 400,000 employee hours annually. These 738 railroads include 723 probable Class III freight railroads, 15 “smaller commuter railroads,” and their contractors and subcontractors. FRA estimates that 578 of these entities will adopt an automated recordkeeping system; 80 percent of the 723 Class III railroads will adopt an automated recordkeeping system and all 15 of the smaller commuter railroads, and the 2 small passenger railroads will do so.

    The economic analysis 15 provides a quantitative evaluation of the costs and benefits of the proposed rule. The benefits equal the reduced time an employee spends entering hours of duty in an automated system compared to the time they currently spend to manually produce a paper record of hours on duty. FRA calculated a reduction of 8 minutes per record achieved over a 5-year period.

    15 The Regulatory Impact Analysis for Docket No. FRA-2012-101, Notice No. 1, is placed in the regulatory docket for this NPRM.

    FRA has estimated the cost savings expected from this proposed rule. In particular, over a 10-year period, $81.9 million in net savings could accrue through the adoption of the proposed automated recordkeeping. The present value of this savings is $51.5 million (discounted at 7 percent) and $66.7 million (discounted at 3 percent). FRA concludes that the eligible smaller railroads would benefit significantly from adoption of the proposed rule.

    Railroads are already producing HS records manually on paper records to comply with 49 CFR 228.11, and adopting an automated recordkeeping system is voluntary. FRA estimates that there would be a relatively small investment for entities that elect to take advantage of the far larger cost saving benefits that would be achieved. The investment costs associated with this proposed rule are primarily for setting up and transferring the reporting to an automated recordkeeping system. FRA estimates that if each of these railroads were to expend $5,294 discounted at 7 percent over a 10-year period to set up and operate an automated recordkeeping system for HS records, the railroads would reduce their paperwork burden by $92,140 discounted at 7 percent over that same period.

    Therefore, this proposed rule would have a positive effect on these railroads, saving each railroad approximately a net $86,846 in costs at discounted 7 percent over the 10-year analysis. The table below presents the estimated benefits (from cost savings) associated with the proposed rule, over the 10-year analysis.

    Table 1—10-Year Estimated Benefits of Proposed Rule Costs to prepare and operate automated recordkeeping (investment required to realize cost savings) $3,139,347 Benefits: Reduced recordkeeping labor costs 54,638,880 Net Benefits 51,499,533 Dollars are discounted at a present value rate of 7%. B. Regulatory Flexibility Act and Executive Order 13272; Initial Regulatory Flexibility Analysis

    Both the Regulatory Flexibility Act (RFA), Public Law 96-354, as amended, and codified as amended at 5 U.S.C. 601-612, and Executive Order 13272—Proper Consideration of Small Entities in Agency Rulemaking, 67 FR 53461, Aug. 16, 2002, require agency review of proposed and final rules to assess their impact on “small entities” for purposes of the RFA. An agency must prepare a regulatory flexibility analysis unless it determines and certifies that a proposed rule is not expected to have a significant impact on a substantial number of small entities. Pursuant to the RFA, 5 U.S.C. 605(b), the Acting Administrator of FRA certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities. Although this proposed rule could affect many small railroads, they may voluntarily adopt the requirements. Moreover, the effect on those railroads that do voluntarily adopt the requirements will be primarily beneficial and not significant because it will reduce their labor burden for hours of service recordkeeping and reporting.

    The term “small entity” is defined in 5 U.S.C. 601 (Section 601). Section 601(6) defines “small entity” as having the same meaning as “the terms `small business', `small organization' and `small governmental jurisdiction' defined in paragraphs (3), (4), and (5) of this section.” In turn, Section 601(3) defines a “small business” as generally having the same meaning as “small business concern” under Section 3 of the Small Business Act, and includes any a small business concern that is independently owned and operated, and is not dominant in its field of operation. Next, Sec. 601(4) defines “small organization” as generally meaning any not-for-profit enterprises that is independently owned and operated, and not dominant in its field of operations. Additionally, Sec. 601(5) defines “small governmental jurisdiction” in general to include governments of cities, counties, towns, townships, villages, school districts, or special districts with populations less than 50,000.

    The U.S. Small Business Administration (SBA) stipulates “size standards” for small entities. It provides that the largest a for-profit railroad business firm may be to be classified as a “small entity” is 1,500 employees for “Line-Haul Operating” railroads and 500 employees for “Short-Line Operating” railroads. See “Size Eligibility Provisions and Standards,” 13 CFR part 121, subpart A.

    Under exceptions in Section 601, Federal agencies may adopt their own size standards for small entities in consultation with SBA, and in conjunction with public comment. Under that authority, FRA published a “Final Policy Statement Concerning Small Entities Subject to the Railroad Safety Laws” (Policy) which formally establishes that small entities include among others, the following: (1) Railroads that Surface Transportation Board (STB) regulations classify as Class III; and (2) commuter railroads “that serve populations of 50,000 or less.” 16 See 68 FR 24891, May 9, 2003, codified at appendix C to 49 CFR part 209. Currently, to be a small entity under the Policy, the eligible railroads also must have $20 million or less in annual operating revenue, adjusted annually for inflation. The $20 million limit (adjusted annually for inflation) is based on the STB's threshold for a Class III railroad, which is adjusted by applying the railroad revenue deflator adjustment. For further information on the calculation of the specific dollar limit, see 49 CFR part 1201. FRA is using this definition of “small entity” for this proposed rule.

    16 “In the Interim Policy Statement [62 FR 43024, Aug. 11, 1997], FRA defined `small entity,' for the purpose of communication and enforcement policies, the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., and the Equal Access for Justice Act 5 U.S.C. 501 et seq., to include only railroads which are classified as Class III. FRA further clarified the definition to include, in addition to Class III railroads, hazardous materials shippers that meet the income level established for Class III railroads (those with annual operating revenues of $20 million per year or less, as set forth in 49 CFR 1201.1-1); railroad contractors that meet the income level established for Class III railroads; and those commuter railroads or small governmental jurisdictions that serve populations of 50,000 or less.” 68 FR 24892 (May 9, 2003). “The Final Policy Statement issued today is substantially the same as the Interim Policy Statement.” 68 FR 24894.

    FRA is proposing to amend its hours of service recordkeeping regulations, to provide simplified recordkeeping requirements to allow railroads with less than 400,000 employee hours annually, and their contractors and subcontractors, to utilize an automated system to create and maintain hours of duty records as required by 49 CFR 228.11. As stated above, FRA has reports that indicate there are 723 Class III railroads with less than 400,000 employee hours annually that would be eligible to use the simplified automated recordkeeping system this proposed rule provides. However, if they are affected, it is voluntary because the proposed rule would not require any railroad to develop and use an automated recordkeeping system. As stated above, there are also 15 smaller commuter railroads, each of which is run by a State, County, or Municipal Agency that could be affected by the proposed rule if they voluntarily decide to develop and use an automated recordkeeping system, but all serve populations of 50,000 or more and are not designated as small businesses.17 There are also 2 small passenger railroads.

    17 Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), ”small governmental jurisdictions” are governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000.

    For the purposes of this analysis the 578 railroads FRA estimates to be potentially affected by this proposed rule are assumed to be small railroads. However, as discussed above, the impact on these small railroads would not be significant. This proposed rule would not affect any other small entities other than these small railroads. As stated above in Section V.A., although FRA estimates that if each of these railroads were to expend $5,294, this proposed rule would have a positive effect on these railroads, saving each railroad approximately $86,846 in costs at discounted 7 percent over the 10-year analysis. Since this amount is relatively small and beneficial, FRA concludes that this proposed rule would not have a significant impact on these railroads.

    C. Federalism

    Executive Order 13132, “Federalism” (64 FR 43255, Aug. 10, 1999), requires FRA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” The executive order defines “policies that have federalism implications” to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” Under Executive Order 13132, the agency may not issue a regulation with federalism implications that imposes substantial direct compliance costs and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local government officials early in the process of developing the regulation. Where a regulation has federalism implications and preempts State law, the agency seeks to consult with State and local officials in the process of developing the regulation.

    FRA analyzed this NPRM consistent with the principles and criteria contained in Executive Order 13132. FRA has determined the proposed rule would not have substantial direct effects on States, on the relationship between the national government and States, or on the distribution of power and responsibilities among the various levels of government. In addition, FRA has determined this proposed rule would not impose substantial direct compliance costs on State and local governments. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

    This proposed rule would amend FRA's regulations on the HS reporting and recordkeeping requirements to allow a railroad with less than 400,000 employee hours annually, and a contractor or subcontractor providing covered service employees to such a railroad to create and maintain HS records for its covered service employees using an automated recordkeeping system. FRA is not aware of any State with regulations similar to this proposed rule. However, FRA notes that this part could have preemptive effect by the operation of law under Section 20106 of the former Federal Railroad Safety Act of 1970, that Congress repealed, reenacted without substantive change, codified at 49 U.S.C. 20106, and later amended (Section 20106). Section 20106 provides that States may not adopt or continue in effect any law, regulation, or order related to railroad safety or security that covers the subject matter of a regulation prescribed or order issued by the Secretary of Transportation (with respect to railroad safety matters), unless the State law, regulation, or order (1) qualifies under the “essentially local safety or security hazard” exception to Section 20106, (2) is not incompatible with a law, regulation, or order of the U.S. Government, and (3) does not unreasonably burden interstate commerce.

    In sum, FRA has analyzed this proposed rule consistent with the principles and criteria contained in Executive Order 13132. As explained above, FRA has determined that this proposed rule has no federalism implications other than possible preemption of State laws under 49 U.S.C. 20106 and 21109 (providing regulatory authority for hours of service). Accordingly, FRA has determined it is not required to prepare a federalism summary impact statement for this proposed rule.

    D. International Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from engaging in any standards or related activities that create unnecessary obstacles to the foreign commerce of the United States. Legitimate domestic objectives, such as safety, are not considered unnecessary obstacles. The statute also requires consideration of international standards, and, where appropriate, that they be the basis for U.S. standards. This rulemaking is purely domestic in nature and is not expected to affect trade opportunities for U.S. firms doing business overseas or for foreign firms doing business in the United States.

    E. Paperwork Reduction Act

    FRA is submitting the information collection requirements in this proposed rule to the Office of Management and Budget (OMB) for approval under the Paperwork Reduction Act of 19995, 44 U.S.C. 3501 et seq. The sections that contain the new information collection requirements are duly designated, and the estimated time to fulfill each requirement is as follows:

    CFR Section—49 CFR Respondent universe Total annual responses Average time per
  • response
  • Total annual
  • burden hours
  • 228.11—Hours of Duty Records 768 railroads/signal contractors 27,511,875 records 2 min./5 min./8 min 2,733,439 228.17—Dispatchers Record of Train Movements 150 Dispatch Offices 200,750 records 3 hours 602,250 228.19—Monthly Reports of Excess Service 300 railroads 2,670 reports 2 hours 5,340 228.103—Construction of Employee Sleeping Quarters—Petitions to allow construction near work areas 50 railroads 1 petition 16 hours 16 228.201—Electronic Recordkeeping System and Automated System (Revised Requirement)—RR Automated Systems 563 railroads 563 automated systems 24 hours 13,512 228.206—Requirements for Automated Records and for Automated Recordkeeping Systems on Class III Railroads (New Requirements)—Certification of Employee's Electronic Signature 100,500 employees 19,365 signed certifications 5 minutes 1,614 —Additional Certification/Testimony provided by Employee upon FRA Request 100,500 employees 75 signed certifications 5 minutes 6 —Class III Procedure for Providing FRA/State inspector with System Access Upon Request 563 railroads 563 procedures 90 minutes 845 228.207—Training in Use of Electronic System—Initial Training 563 railroads 5,879 trained employees 2 hours 11,758 —Refresher Training (Revised Requirement) 768 railroads/contractors 47,000 trained employees 1 hour 47,000 49 U.S.C. 21102—The Federal Hours of Service Laws—Petitions for Exemption from Laws 10 railroads 1 petition 10 hours 10 228.407—Analysis of Work Schedules—RR Analysis of one cycle of work schedules of employees engaged in commuter or intercity passenger transportation 168 Railroads 2 analyses 20 hours 40 —RR Report to FRA Administrator of Each Work Schedule that Exceeds Fatigue Threshold 168 railroads 1 report 2 hours 2 —RR Fatigue Mitigation Plan—Submission and FRA Approval 168 railroads 1 plan 4 hours 4 —Work Schedules, Proposed Mitigation Plans/Tools, Determinations of Operational Necessity—found Deficient by FRA and Needing Correction 168 railroads 1 corrected document 2 hours 2 —Follow-up Analyses submitted to FRA for Approval 168 railroads 5 analyses 4 hours 20 —Deficiencies found by FRA in Revised Work Schedules and Accompanying Fatigue Mitigation Tools and Determinations of Operational Necessity Needing Correction 168 railroads 1 corrected document 2 hours 2 —Updated Fatigue Mitigation Plans 168 railroads 8 plans 4 hours 32 —RR Consultation with Directly Affected Employees on: (i) RR Work Schedules at Risk for Fatigue Level Possibly Compromising Safety; (ii) Railroad's Selection of Fatigue Mitigation Tools; and (iii) All RR Submissions Required by this Section Seeking FRA Approval 168 railroads 5 consultations 2 hours 10 —Filed Employee Statements with FRA Explaining Any Issues Related to paragraph (f)(1) of this Section Where Consensus was Not Reached RR Employee Organizations 2 filed statements 2 hours 4 228.411—RR Training Programs on Fatigue and Related Topics (e.g., Rest, Alertness, Changes in Rest Cycles, etc.) 168 railroads 14 training programs 5 hours 70 —Refresher Training for New Employees 168 railroads 150 initially tr. employees 1 hour 150 —RR Every 3-Years Refresher Training for Existing Employees 168 railroads 3,400 trained employees 1 hour 3,400 —RR Record of Employees Trained in Compliance with this Section 168 railroads 3,550 records 5 minutes 296 —Written Declaration to FRA by Tourist, Scenic, Historic, or Excursion Railroad Seeking Exclusion from this Section's Requirements because its Employees are Assigned Schedules wholly within the Hours of 4 a.m. to 8 p.m. on the Same Calendar Day that Comply the Provisions of § 228.405 140 railroads 2 written declarations 1 hour 2 Appendix D—Guidance on Fatigue Management Plan—RR Reviewed and Updated Fatigue Management Plans 168 railroads 2 updated plans 10 hours 20

    All estimates include the time for reviewing instructions; searching existing data sources; gathering or maintaining the needed data; and reviewing the information. Under 44 U.S.C. 3506(c)(2)(B), FRA solicits comments concerning: (1) Whether these information collection requirements are necessary for the proper performance of the functions of FRA, including whether the information has practical utility; (2) the accuracy of FRA's estimates of the burden of the information collection requirements; (3) the quality, utility, and clarity of the information to be collected; and (4) whether the burden of collection of information on those who are to respond, including through the use of automated collection techniques or other forms of information technology, may be minimized. Organizations and individuals desiring to submit comments on the collection of information requirements should direct them to Mr. Robert Brogan or Ms. Kimberly Toone, Federal Railroad Administration, 1200 New Jersey Avenue SE., 3rd Floor, Washington, DC 20590. Comments may also be submitted via email to Mr. Brogan or Ms. Toone at the following address: [email protected]; [email protected]

    For information or a copy of the paperwork package submitted to OMB, contact Mr. Robert Brogan, Information Clearance Officer, at 202-493-6292, or Ms. Kimberly Toone at 202-493-6132. (These phone numbers are not toll-free).

    OMB must make a decision concerning the collection of information requirements contained in this proposed rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, to ensure OMB has sufficient time to fully consider a comment to OMB, OMB should receive it within 30 days of publication. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

    FRA is not authorized to impose a penalty on persons for violating information collection requirements that do not display a current OMB control number, if required. FRA intends to obtain current OMB control numbers for any new information collection requirements resulting from this rulemaking action prior to the effective date of the final rule, and will announce the OMB control number, when assigned, by separate notice in the Federal Register.

    F. Environmental Assessment

    FRA has evaluated this proposed rule consistent with its “Procedures for Considering Environmental Impacts” (FRA's Procedures) (64 FR 28545, May 26, 1999) as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.), other environmental statutes, Executive Orders, and related regulatory requirements. FRA has determined this proposed rule is not a major FRA action requiring the preparation of an environmental impact statement or environmental assessment because it is categorically excluded from detailed environmental review under section 4(c)(20) of FRA's Procedures. See 64 FR 28547, May 26, 1999. Section 4(c)(20) states:

    [c]ertain classes of FRA actions have been determined to be categorically excluded from the requirements of these Procedures as they do not individually or cumulatively have a significant effect on the human environment. * * * The following classes of FRA actions are categorically excluded: * * * (20) Promulgation of railroad safety rules and policy statements that do not result in significantly increased emissions of air or water pollutants or noise or increased traffic congestion in any mode of transportation. FRA has further concluded no extraordinary circumstances exist with respect to this proposed regulation that might trigger the need for a more detailed environmental review under sections 4(c) and (e) of FRA's Procedures. As a result, FRA finds that this proposed rule is not a major Federal action significantly affecting the quality of the human environment. G. Unfunded Mandates Reform Act of 1995

    Under section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), each Federal agency “shall, unless otherwise prohibited by law, assess the effects of Federal regulatory actions on State, local, and tribal governments, and the private sector (other than to the extent that such regulations incorporate requirements specifically set forth in law).” Section 202 of the Act (2 U.S.C. 1532) further requires that:

    before promulgating any general notice of proposed rulemaking that is likely to result in the promulgation of any rule that includes any Federal mandate that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year, and before promulgating any final rule for which a general notice of proposed rulemaking was published, the agency shall prepare a written statement. . . . The written statement, if required, would detail the effect on State, local, and tribal governments and the private sector.

    For the year 2013, FRA adjusted the monetary amount of $100,000,000 to $151,000,000 for inflation. This proposed rule would not result in the expenditure of more than $151,000,000 by the public sector in any one year, and thus preparation of such a statement is not required.

    H. Energy Impact

    Executive Order 13211 requires Federal agencies to prepare a Statement of Energy Effects for any “significant energy action.” 66 FR 28355, May 22, 2001. Under the Executive Order, “significant energy action” means any action by an agency (normally published in the Federal Register) that promulgates, or is expected to lead to the promulgation of, a final rule or regulation (including a notice of inquiry, advance NPRM, and NPRM) that (1)(i) is a significant regulatory action under Executive Order 12866 or any successor order and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. FRA has evaluated this NPRM consistent with Executive Order 13211. FRA has determined this NPRM will not have a significant adverse effect on the supply, distribution, or use of energy and, thus, is not a “significant energy action” under the Executive Order 13211.

    I. Privacy Act Statement

    Consistent with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy. Anyone can search the electronic form of any written communications and comments received into any of FRA's dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). See http://www.regulations.gov/#!privacyNotice for the privacy notice of regulations.gov or interested parties may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477).

    List of Subjects in 49 CFR Part 228

    Administrative practice and procedures, Buildings and facilities, Hazardous materials transportation, Noise control, Penalties, Railroad employees, Railroad safety, Reporting and recordkeeping requirements.

    The Proposed Rule

    For the reasons discussed in the preamble, FRA proposes to amend part 228 of chapter II, subtitle B of title 49, Code of Federal Regulations as follows:

    PART 228—PASSENGER TRAIN EMPLOYEE HOURS OF SERVICE; RECORDKEEPING AND REPORTING; SLEEPING QUARTERS 1. The authority for part 228 is revised to read as follows: Authority:

    49 U.S.C. 20103, 20107, 21101-21109; Sec. 108, Div. A, Public Law 110-432, 122 Stat. 4860-4866, 4893-4894; 49 U.S.C. 21301, 21303, 21304, 21311; 28 U.S.C. 2461, note; 49 U.S.C. 103; and 49 CFR 1.89.

    2. The heading of part 228 is revised to read as set forth above. 3. In § 228.5, add definitions of “Automated recordkeeping system”, “Electronic recordkeeping system”, “Electronic signature”, “Eligible smaller railroad”, andRailroad that has less than 400,000 employee hours per year” in alphabetical order to read as follows:
    § 228.5 Definitions.

    Automated recordkeeping system means a recordkeeping system that—

    (1) An eligible smaller railroad, or a contractor or subcontractor to such a railroad, may use instead of a manual recordkeeping system or electronic recordkeeping system to create and maintain any records subpart B requires; and

    (2) Conforms to the requirements of § 228.206.

    Electronic recordkeeping system means a recordkeeping system that—

    (1) A railroad may use instead of a manual recordkeeping system or automated recordkeeping system to create and maintain any records required by subpart B; and

    (2) Conforms to the requirements of §§ 228.201-228.205.

    Electronic signature means an electronic sound, symbol, or process that—

    (1) Is attached to, or logically associated with, a contract or other record;

    (2) Is executed or adopted by a person with the intent to sign the record, to create either an individual's unique digital signature, or unique digitized handwritten signature; and

    (3) Complies with the requirements of § 228.19(g) or § 228.206(a).

    Eligible smaller railroad means a railroad with less than 400,000 employee hours per year that may create and maintain its hours of service records required by subpart B of this part by using an automated recordkeeping system.

    Railroad that has less than 400,000 employee hours per year means either: (1) A railroad that reported to FRA that it had less than 400,000 employee hours during the preceding three consecutive calendar years under § 225.21(d) of this chapter on Form FRA 6180.56, Annual Railroad Reports of Manhours by State; or (2) a railroad operating less than 3 consecutive calendar years that reported to FRA that it had less than 400,000 employee hours during the current calendar year under § 225.21(d) of this chapter on Form FRA 6180.56, Annual Railroad Reports of Manhours by State.

    4. In § 228.9, revise its heading, add headings to paragraphs (a) and (b), and add paragraph (c) to read as follows:
    § 228.9 Manual, electronic, and automated records; general.

    (a) Manual records. * * *

    (b) Electronic records. * * *

    (c) Automated records. Each automated record maintained under this part shall be—

    (1) Signed electronically by the employee whose time on duty is being recorded or, in the case of a member of a train crew or a signal employee gang, digitally signed by the reporting employee who is a member of the train crew or signal gang whose time is being recorded as provided by § 228.206(a);

    (2) Stamped electronically with the certifying employee's electronic signature and the date and time the employee electronically signed the record;

    (3) Retained for 2 years in a secured file that prevents alteration after electronic signature;

    (4) Accessible by the Administrator through a computer terminal of the railroad; and

    (5) Reproducible using printers at the location where records are accessed.

    5. In § 228.11, revise the first sentence of paragraph (a) to read as follows:
    § 228.11 Hours of duty records.

    (a) In general. Each railroad, or a contractor or a subcontractor of a railroad, shall keep a record of the hours of duty of each employee. * * *

    6. Revise the heading of subpart D to read as follows: Subpart D—Electronic Recordkeeping System and Automated Recordkeeping System 7. In § 228.201, revise the section heading, designate the introductory text as paragraph (a) introductory text, redesignate paragraphs (1) through (6) as paragraphs (a)(1) through (6), revise the paragraphs newly designated as (a)(1), (a)(3), (a)(4), and (a)(5), and add paragraph (b) to read as follows:
    § 228.201 Electronic recordkeeping system and automated recordkeeping system; general.

    (a) Electronic recordkeeping system. For purposes of compliance with the recordkeeping requirements of subpart B, a railroad, or a contractor or a subcontractor to a railroad, may create and maintain any of the records required by subpart B through electronic transmission, storage, and retrieval, if all of the following conditions are met:

    (1) The system used to generate the electronic record meets all requirements of this paragraph (a) and all requirements of §§ 228.203 and 228.205;

    (3) The railroad, or contractor or subcontractor to the railroad, monitors its electronic database of employee hours of duty records through a sufficient number of monitoring indicators to ensure a high degree of accuracy of these records;

    (4) The railroad, or contractor or subcontractor to the railroad, trains its affected employees on the proper use of the electronic recordkeeping system to enter the information necessary to create their hours of service record, as required by § 228.207;

    (5) The railroad, or contractor or subcontractor to the railroad, maintains an information technology security program adequate to ensure the integrity of the system, including the prevention of unauthorized access to the program logic or individual records; and

    (b) Automated recordkeeping system. For purposes of compliance with the recordkeeping requirements of subpart B, an eligible smaller railroad, or a contractor or a subcontractor that provides covered service employees to such a railroad, may create and maintain any of the records required by subpart B using an automated recordkeeping system if all of the following conditions are met:

    (1) The automated recordkeeping system meets all requirements of this paragraph (b) and all requirements of § 228.206; and

    (2) The eligible smaller railroad or its contractor or subcontractor complies with all of the requirements of paragraph (a)(2) and paragraphs (a)(4) through (6) of this section for its automated records and automated recordkeeping system.

    (3) The railroad, or a contractor or subcontractor to the railroad that has developed an automated recordkeeping system continues to have less than 400,000 employee hours. If a railroad, or a contractor or subcontractor to the railroad, that has developed an automated recordkeeping system reports to FRA that the railroad has 400,000 or more than 400,000 employee hours in three consecutive calendar years under § 225.21(d) of this chapter on its Annual Railroad Report of Manhours by State, then that railroad, or contractor or subcontractor to the railroad, is no longer eligible to use an automated recordkeeping system to record data subpart B of this part requires, unless the entity requests, and FRA grants, a waiver under § 211.41 of this chapter.

    8. Add § 228.206 to read as follows:
    § 228.206 Requirements for automated records and for automated recordkeeping systems on eligible smaller railroads, and their contractors or subcontractors that provide covered service employees to such railroads.

    (a) Use of electronic signature. Each employee creating a record required by subpart B of this part must sign the record using an electronic signature that meets the following requirements:

    (1) The record contains the printed name of the signer and the date and actual time the signature was executed, and the meaning (such as authorship, review, or approval) associated with the signature;

    (2) Each electronic signature is unique to one individual and shall not be used by, or assigned to, anyone else.

    (3) Before an eligible smaller railroad, or a contractor or subcontractor to the railroad, establishes, assigns, certifies, or otherwise sanctions an individual's electronic signature, or any element of such electronic signature, the organization shall verify the identity of the individual.

    (4) A person using an electronic signature shall, prior to or at the time of each such use, certify to FRA that the person's electronic signature in the system, used on or after [THE EFFECTIVE DATE OF THE FINAL RULE] is the legally binding equivalent of the person's traditional handwritten signature.

    (5) Each employee shall sign the initial certification of his or her electronic signature with a traditional handwritten signature. Each railroad using an automated system must maintain certification of each electronic signature at its headquarters or the headquarters of any contractor or subcontractor providing employees who perform covered service to such a railroad. Railroads, contractors, and subcontractors must also make the certification available to FRA upon request.

    (6) A person using an electronic signature in such a system shall, upon FRA request, provide additional certification or testimony on whether or not a specific electronic signature is the legally binding equivalent of his or her handwritten signature.

    (b) System security. Railroads using an automated recordkeeping system must protect the integrity of the system by the use of an employee identification number and password, or a comparable method, to establish appropriate levels of program access meeting all of the following standards:

    (1) Data input is restricted to the employee or train crew or signal gang whose time is being recorded, except that an eligible smaller railroad, or a contractor or subcontractor to such a railroad, may pre-populate fields of the hours of service record provided that—

    (i) The eligible smaller railroad, or its contractor or subcontractor, pre-populates fields of the hours of service record with information the railroad, or its contractor or subcontractor knows is factually accurate for a specific employee.

    (ii) The recordkeeping system may allow employees to copy data from one field of a record into another field, where applicable.

    (iii) The eligible smaller railroad, or its contractor or subcontractor does not use estimated, historical, or arbitrary information to pre-populate any field of an hours of service record.

    (iv) An eligible smaller railroad, or a contractor or a subcontractor to such a railroad, is not in violation of paragraph (b)(1) of this section if it makes a good faith judgment as to the factual accuracy of the data for a specific employee but nevertheless errs in pre-populating a data field.

    (v) The employee may make any necessary changes to the data by typing into the field without having to access another screen or obtain clearance from railroad, or contractor or subcontractor to the railroad.

    (2) No two individuals have the same electronic signature.

    (3) No individual can delete or alter a record after the employee who created the record electronically signs the record.

    (4) Any amendment to a record is either:

    (i) Electronically stored apart from the record that it amends; or

    (ii) Electronically attached to the record as information without changing the original record.

    (5) Each amendment to a record uniquely identifies the individual making the amendment.

    (6) The automated system maintains the records as originally submitted without corruption or loss of data.

    (7) Supervisors and crew management officials can access, but cannot delete or alter, the records of any employee after the employee electronically signs the record.

    (c) Identification of the individual entering data. If a given record contains data entered by more than one individual, the record must identify each individual who entered specific information within the record and the data the individual entered.

    (d) Search capabilities. The automated recordkeeping system must store records using the following criteria so all records matching the selected criteria are retrieved from the same location:

    (1) Date (month and year);

    (2) Employee name or identification number; and

    (3) Electronically signed records containing one or more instances of excess service, including duty tours in excess of 12 hours.

    (e) Access to records. An eligible smaller railroad, or contractor or subcontractor providing covered service employees to such a railroad, must provide access to its hours of service records under subpart B that are created and maintained in its automated recordkeeping system to FRA inspectors and State inspectors participating under 49 CFR part 212, subject to the following requirements:

    (1) Access to records created and maintained in the automated recordkeeping system must be obtained as required by § 228.9(c)(4);

    (2) An eligible smaller railroad must establish and comply with procedures for providing an FRA inspector or participating State inspector with access to the system upon request. Railroads must provide access to the system as soon as possible but not later than 24 hours after a request for access;

    (3) Each data field entered by an employee on the input screen must be visible to the FRA inspector or participating State inspector;

    (4) The data fields must be searchable as described in paragraph (d) of this section and must yield access to all records matching the criteria specified in a search.

    9. In § 228.207, revise paragraphs (b)(1)(iii)(B) and (c)(1)(i) to read as follows:

    § 228.207 Training.

    (b) * * *

    (1) * * *

    (iii) * * *

    (B) The entry of hours of service data, into the electronic system or automated system or on the appropriate paper records used by the railroad or contractor or subcontractor to a railroad for which the employee performs covered service; and

    (c) * * *

    (1) * * *

    (i) Emphasize any relevant changes to the hours of service laws, the recording and reporting requirements in subparts B and D of this part, or the electronic, automated, or manual recordkeeping system of the railroad or contractor or subcontractor to a railroad for which the employee performs covered service since the employee last received training; and

    Issued in Washington, DC, on August 6, 2015. Sarah Feinberg, Acting Administrator.
    [FR Doc. 2015-20663 Filed 8-21-15; 8:45 am] BILLING CODE 4910-06-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 665 [Docket No. 150615523-5705-01] RIN 0648-XD998 Pacific Island Pelagic Fisheries; 2015 U.S. Territorial Longline Bigeye Tuna Catch Limits AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.

    ACTION:

    Proposed specifications; request for comments.

    SUMMARY:

    NMFS proposes a 2015 limit of 2,000 metric tons (mt) of longline-caught bigeye tuna for each U.S. Pacific territory (American Samoa, Guam, and the Northern Mariana Islands). NMFS would allow each territory to allocate up to 1,000 mt each year to U.S. longline fishing vessels in a specified fishing agreement that meets established criteria. As an accountability measure, NMFS would monitor, attribute, and restrict (if necessary) catches of longline-caught bigeye tuna, including catches made under a specified fishing agreement. The proposed catch limits and accountability measures support the long-term sustainability of fishery resources of the U.S. Pacific Islands.

    DATES:

    NMFS must receive comments by September 8, 2015.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2015-0077, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to http://www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0077, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Send written comments to Michael D. Tosatto, Regional Administrator, NMFS Pacific Islands Region (PIR), 1845 Wasp Blvd., Bldg. 176, Honolulu, HI 96818.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible.

    NMFS prepared an environmental analysis that describes the potential impacts on the human environment that would result from the proposed catch limits and accountability measures. NMFS provided additional background information in the 2014 proposed and final specifications (79 FR 1354, January 8, 2014; 79 FR 64097, October 28, 2014). The environmental analysis is available at www.regulations.gov. The information contained in the environmental analysis is not repeated here.

    FOR FURTHER INFORMATION CONTACT:

    Jarad Makaiau, NMFS PIRO Sustainable Fisheries, 808-725-5176.

    SUPPLEMENTARY INFORMATION:

    NMFS proposes to specify a catch limit of 2,000 mt of longline-caught bigeye tuna for each U.S. participating Pacific territory in 2015. NMFS would also authorize each U.S. Pacific territory to allocate up to 1,000 mt of its 2,000 mt bigeye tuna limit to U.S. longline fishing vessels that are permitted to fish under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (FEP). Those vessels must be identified in a specified fishing agreement with the applicable territory. The Western Pacific Fishery Management Council recommended these specifications.

    NMFS will monitor catches of longline-caught bigeye tuna by the longline fisheries of each U.S Pacific territory, including catches made by U.S. longline vessels operating under specified fishing agreements. The criteria a specified fishing agreement must meet, and the process for attributing longline-caught bigeye tuna, will follow the procedures in 50 CFR 665.819 (Territorial catch and fishing effort limits). When NMFS projects a territorial catch or allocation limit will be reached, NMFS would, as an accountability measure, prohibit the catch and retention of longline-caught bigeye tuna by vessels in the applicable territory (if the territorial catch limit is projected to be reached), and/or vessels in a specified fishing agreement (if the allocation limit is projected to be reached). The proposed catch and allocation limits and accountability measures are identical to those that NMFS specified in 2014 (79 FR 64097, October 28, 2014). NMFS notes that there is a pending case in litigation—Conservation Council for Hawai'i, et al., v. NMFS (D. Hawaii)—that challenges the framework process for allocations from the territories to U.S. longline fishing vessels.

    NMFS will consider public comments on the proposed action and will announce the final specifications in the Federal Register. NMFS must receive any comments by the date provided in the DATES heading. NMFS may not consider any comments not postmarked or otherwise transmitted by that date. Regardless of the final specifications, all other management measures will continue to apply in the longline fishery.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator for Fisheries has determined that this proposed specification is consistent with the applicable FEPs, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

    Certification of Finding of No Significant Impact on Substantial Number of Small Entities

    The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that these proposed specifications, if adopted, would not have a significant economic impact on a substantial number of small entities. A description of the proposed action, why it is being considered, and the legal basis for it are contained in the preamble to this proposed specification.

    The proposed action would specify a 2015 limit of 2,000 metric tons (mt) (4,409,240 lb) of longline-caught bigeye tuna for each U.S. Pacific territory (American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI). Without this catch limit, these U.S. territories would not be subject to a limit because they, as Participating Territories to the Western and Central Pacific Fisheries Commission (WCPFC), do not have a bigeye tuna limit under international measures adopted by the WCPFC. NMFS would also allow each territory to allocate up to 1,000 mt (2,204,620 lb) of its 2,000 mt bigeye tuna limit each year to U.S. longline fishing vessels in a specified fishing agreement that meets established criteria set forth in 50 CFR 665.819. As an accountability measure, NMFS would monitor, attribute, and restrict (if necessary) catches of longline-caught bigeye tuna by vessels in the applicable U.S. territory (if the territorial catch limit is projected to be reached), or by vessels operating under the applicable specified fishing agreement (if the allocation limit is projected to be reached). The proposed catch limits and accountability measures supports fisheries development in the U.S. Pacific territories and the long-term sustainability of fishery resources of the U.S. Pacific Islands.

    This proposed action would directly apply to longline vessels federally permitted under the Fishery Ecosystem Plan for Pelagic Fisheries of the Western Pacific (Pelagic FEP), specifically Hawaii longline limited entry, American Samoa longline limited entry, and Western Pacific general longline permit holders. As of July 2015, 140 vessels possessed Hawaii longline limited entry permits (out of 164 total permits), 46 possessed American Samoa longline limited entry permits (out of 60 total permits), and no vessels held Western Pacific general longline permits.

    According to landings information provided in the environmental assessment prepared in support of this action and logbook information, Hawaii-based longline vessels landed approximately 25,791,000 lb of pelagic fish valued at $93,963,000 in 2012 and 27,053,000 lb of pelagic fish valued at $88,552,000 in 2013. With 129 vessels making either a deep- or shallow-set trip in 2012, and 135 vessels in 2013, the ex-vessel value of pelagic fish caught by Hawaii-based longline fisheries averaged about $728,000 and $656,000 per vessel in 2012 and 2013 respectively. In 2013, 22 American Samoa longline vessels turned in logbooks reporting the landing of 162,444 pelagic fish (approximately 6 million lb) valued at $6,772,386. Albacore made up the largest proportion of pelagic landings at 4,525,453 lb and bigeye tuna comprised of 187,954 lb. With 22 active longline vessels, the ex-vessel value of pelagic fish caught by the American Samoa longline fishery averaged about $307,836 per vessel in 2013. With regard to Guam and CNMI, no longline fishing has occurred since 2011.

    Based on available information, NMFS has determined that all vessels federally permitted under Pelagic FEP are small entities under the SBA definition of a small entity, i.e., they are engaged in the business of fish harvesting (NAICS Code: 114111), are independently owned or operated, are not dominant in their field of operation, and have annual gross receipts not in excess of $20.5 million. Even though this proposed action would apply to a substantial number of vessels, the implementation of this action would not result in significant adverse economic impact to individual vessels. The proposed action would potentially benefit Hawaii-based longline fishery participants by allowing them to fish under specified fishing agreements with a territory, which could extend fishing effort for bigeye tuna in the Western Pacific Ocean and provide more bigeye tuna for markets in Hawaii.

    Amendment 7 to the Pelagic FEP established a process by which NMFS could specify catch and/or effort limits for pelagic fisheries in American Samoa, Guam and CNMI, regardless of whether the WCPFC adopts a limit for those entities or not. Amendment 7 also allows NMFS to authorize the government of each territory to allocate a portion of their catch and/or effort limits through territorial fishing agreements. Specifically, bigeye tuna landed by vessels included in a fishing agreement are attributed to the U.S. territory to which the agreement applies, and not counted towards the U.S. bigeye tuna limit established by NMFS under a separate authority in 50 CFR part 300, subpart O.

    In 2014, through this process, the CNMI government entered into an agreement with Hawaii-based longline vessels that authorized vessels identified in the agreement to use up to 1,000 mt of the CNMI's 2,000 mt quota. In that year, NMFS projected that the 2014 U.S. bigeye tuna limit of 3,763 mt established in 50 CFR part 300, subpart O, and applicable to U.S. longline vessels would be reached in mid-November. In accordance with Federal regulations at 50 CFR 665.819, within seven days of the date that NMFS projected the fishery would reach the U.S. bigeye tuna limit, NMFS began attributing to CNMI the bigeye tuna catches made by longline vessels identified in the fishing agreement with CNMI.

    In accordance with Federal regulations at 50 CFR part 300, subpart O, vessels that possess both an American Samoa and Hawaii longline permit are not subject to the U.S bigeye tuna limit. Therefore, these vessels are allowed to retain bigeye tuna and land fish in Hawaii after the date NMFS projects the fishery would reach that limit. Further, catches of bigeye tuna made by such vessels are attributed to American Samoa, provided the fish was not caught in the U.S. EEZ around Hawaii. In 2014, all dual American Samoa/Hawaii longline permitted vessels were included in the fishing agreement with CNMI. Therefore, NMFS attributed bigeye catches by those vessels to the CNMI.

    The 2015 U.S. bigeye tuna catch limit established in 50 CFR 300, Subpart O is 3,502 mt, which is about 7% lower than the 2014 limit. With the lower limit for 2015, combined with apparent higher catch rates in 2015, NMFS forecasted that the fishery reached the limit on August 5, 2015 (80 FR 44883, July 28, 2015), far earlier than in previous years. Through this action, Hawaii-based longline vessels could potentially enter into one or more fishing agreements with participating territories. This would enhance the ability of these vessels to extend fishing effort in the Western and Central Pacific Ocean and provide more bigeye tuna for markets in Hawaii. Providing opportunity to land bigeye tuna in Hawaii in the last quarter of the year when market demand is high will result in positive economic benefits for fishery participants and net benefits to the nation. Allowing participating territories to enter into specified fishing agreements under this action, provides benefits to the territories by providing funds for territorial fisheries development projects. In terms of the impacts of reducing the limits of bigeye tuna catch by longline vessels based in the territories from an unlimited amount to 2,000 mt, this is not likely to adversely affect vessels based in the territories.

    Historical catch of bigeye tuna by the American Samoa longline fleet has been less than 2,000 mt, even including the catch of vessels based in American Samoa, catch by dual permitted vessels that land their catch in Hawaii, and catch attributed to American Samoa from U.S. vessels under specified fishing agreements (which occurred in 2011 and 2012). With regard to Guam and CNMI, no longline fishing has occurred since 2011.

    Under the proposed action, longline fisheries managed under the Pelagic FEP are not expected to expand substantially nor change the manner in which they are currently conducted, (i.e., area fished, number of vessels longline fishing, number of trips taken per year, number of hooks set per vessel during a trip, depth of hooks, or deployment techniques in setting longline gear), due to existing operational constraints in the fleet, the limited entry permit programs, and protected species mitigation requirements. The proposed rule does not duplicate, overlap, or conflict with other Federal rules and is not expected to have significant impact on small organizations or government jurisdictions. Furthermore, there would be little, if any, disproportionate adverse economic impacts from the proposed rule based on gear type, or relative vessel size. The proposed rule also will not place a substantial number of small entities, or any segment of small entities, at a significant competitive disadvantage to large entities.

    For the reasons above, NMFS does not expect the proposed action to have a significant economic impact on a substantial number of small entities. As such, an initial regulatory flexibility analysis is not required and none has been prepared.

    This action is exempt from review under the procedures of E.O. 12866 because this action contains no implementing regulations.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: August 18, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2015-20778 Filed 8-21-15; 8:45 am] BILLING CODE 3510-22-P
    80 163 Monday, August 24, 2015 Notices DEPARTMENT OF AGRICULTURE National Agricultural Statistics Service Notice of Intent To Request an Early Revision and Extension of a Currently Approved Information Collection AGENCY:

    National Agricultural Statistics Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 this notice announces the intention of the National Agricultural Statistics Service (NASS) to request revision and extension of a currently approved information collection, the Bee and Honey Survey. Revision to burden hours will be needed due to a change in the size of the target population, sample design, and the expansion of the questionnaire to accommodate changes to the scope of the survey to include some economic questions.

    DATES:

    Comments on this notice must be received by October 23, 2015 to be assured of consideration.

    ADDRESSES:

    You may submit comments, identified by docket number 0535-0153, by any of the following methods:

    Email: [email protected] Include docket number above in the subject line of the message.

    Fax: (202) 720-6396.

    Mail: Mail any paper, disk, or CD-ROM submissions to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2024.

    Hand Delivery/Courier: Hand deliver to: David Hancock, NASS Clearance Officer, U.S. Department of Agriculture, Room 5336 South Building, 1400 Independence Avenue SW., Washington, DC 20250-2024.

    FOR FURTHER INFORMATION CONTACT:

    R. Renee Picanso, Associate Administrator, National Agricultural Statistics Service, U.S. Department of Agriculture, (202) 720-4333. Copies of this information collection and related instructions can be obtained without charge from David Hancock, NASS-OMB Clearance Officer, at (202) 690-2388 or at [email protected]

    SUPPLEMENTARY INFORMATION:

    Title: Bee and Honey Survey.

    OMB Control Number: 0535-0153.

    Expiration Date of Approval: June 30, 2016.

    Type of Request: Intent to revise and extend a currently approved information collection for a period of three years.

    Abstract: The primary objective of the National Agricultural Statistics Service (NASS) is to prepare and issue state and national estimates of crop and livestock production, livestock products, prices, and disposition; as well as economic statistics, environmental statistics related to agriculture, and also to conduct the Census of Agriculture.This request for renewal of the Bee and Honey Survey (0535-0153) will expand the historic collection to collect additional data to respond to the increased demand for data relating to honey bees.

    As pollinators, honey bees are vital to the agricultural industry for producing food for the world's population. Ad hoc surveys showed a dramatic rise in the number of disappearances of honey bee colonies in North America in late 2006; disappearances ranged from 10-15 percent annual colony loss in some areas to greater than 30 percent in other areas. Often called Colony Collapse Disorder (CCD), the condition occurs when worker bees from a beehive or a European honey bee colony abruptly disappear, with minimal mortality evident near the hive and an intact queen and food supply readily available. The cost for maintaining and replenishing of honey bee colonies is exacerbated in a climate of higher than expected losses. Further data is needed to accurately describe the costs associated with pest/disease control, wintering fees, and replacement worker and queen bees. The USDA and the Environmental Protection Agency (EPA), in consultation with other relevant Federal partners, are scaling up efforts to address the decline of honey bee health with a goal of ensuring the recovery of this critical subset of pollinators. NASS supports the Pollinator Research Action Plan, published May 19, 2015, which emphasizes the importance of coordinated action to identify the extent and causal factors in honey bee mortality.

    NASS will collect Colony Loss data under the OMB approval number 0535-0255. Under the expanded Bee and Honey Survey (0535-0153), NASS will collect information on the number of colonies, honey production, stocks, prices, and basic economic data from beekeepers in all 50 States. Findings from the expanded Bee and Honey Survey can be paired with results from the Colony Loss program to more wholly describe the economics of beekeeping.

    The survey will use two questionnaire versions. Operations with five or more colonies will receive the expanded bee and honey questionnaire and operations with less than five colonies will receive a shorter version of the questionnaire. Collecting data from operations with less than five colonies will help better compare their experiences to larger operations. These surveys will provide data needed by the U.S. Department of Agriculture and other government agencies to administer programs. State universities and agriculture departments also use the enhanced data from this survey.

    Authority: These data will be collected under the authority of 7 U.S.C. 2204(a). Individually identifiable data collected under this authority are governed by Section 1770 of the Food Security Act of 1985 as amended, 7 U.S.C. 2276, which requires USDA to afford strict confidentiality to non-aggregated data provided by respondents. This Notice is submitted in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501, et seq.), and Office of Management and Budget regulations at 5 CFR part 1320.

    NASS also complies with OMB Implementation Guidance, “Implementation Guidance for Title V of the E-Government Act, Confidential Information Protection and Statistical Efficiency Act of 2002 (CIPSEA),” Federal Register, Vol. 72, No. 115, June 15, 2007, p. 33362.

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average 20 minutes per response for operations with five or more colonies. Operations with less than five colonies will receive the shorter questionnaire which is estimated to average 10 minutes per response. Publicity materials and instruction sheets will account for 5 minutes of additional burden per respondent. Respondents who refuse to complete a survey will be allotted 2 minutes of burden per attempt to collect the data.

    Respondents: Farmers.

    Estimated Number of Respondents: 31,500.

    Estimated Total Annual Burden on Respondents: With an estimated response rate of approximately 80%, we estimate the total burden to be approximately 9,000 hours.

    Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, through the use of appropriate automated, electronic, mechanical, technological or other forms of information technology collection methods.

    All responses to this notice will become a matter of public record and be summarized in the request for OMB approval.

    Signed at Washington, DC, August 13, 2015. R. Renee Picanso, <E T="03">Associate Administrator.</E>
    [FR Doc. 2015-20845 Filed 8-21-15; 8:45 am] BILLING CODE 3410-20-P
    BROADCASTING BOARD OF GOVERNORS Government in the Sunshine Act Meeting Change Notice DATE AND TIME:

    Monday, August 24, 2015, 11:15 a.m. EDT.

    PLACE:

    Cohen Building, Room 3321, 330 Independence Ave. SW., Washington, DC 20237.

    SUBJECT:

    Notice of Closed Meeting of the Broadcasting Board of Governors.

    SUMMARY:

    The Broadcasting Board of Governors (Board) previously announced a special session, originally scheduled for August 19, 2015, to discuss and approve a budget submission for Fiscal Year 2017. The meeting date had to be changed, and the Board will now meet in a special session, to be conducted telephonically, at the date and time listed above.

    According to Office of Management and Budget (OMB) Circular A-11, section 22.1, all agency budgetary materials and data are considered confidential prior to the President submitting a budget to Congress. In accordance with section 22.5 of Circular A-11, the BBG has determined that its meeting should be closed to public observation pursuant to 5 U.S.C. 552b(c)(9)(B). In accordance with the Government in the Sunshine Act and BBG policies, the meeting will be recorded and a transcript of the proceedings, subject to the redaction of information protected by 5 U.S.C. 552b(c)(9)(B), will be made available to the public. The publicly-releasable transcript will be available for download at www.bbg.gov within 21 days of the date of the meeting.

    Information regarding member votes to close the meeting and expected attendees can also be found on the Agency's public Web site.

    FOR FURTHER INFORMATION CONTACT:

    Persons interested in obtaining more information should contact Oanh Tran at (202) 203-4545.

    Oanh Tran, Director of Board Operations.
    [FR Doc. 2015-21056 Filed 8-20-15; 4:15 pm] BILLING CODE 8610-01-P
    COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the Montana Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the Montana Advisory Committee to the Commission will convene at 1:00 p.m. (MDT) on Thursday, September 10, 2015, via teleconference. The purpose of the planning meeting is for the Advisory Committee to finalize its selection of a civil rights issue for further study.

    Members of the public may listen to the discussion by dialing the following Conference Call Toll-Free Number: 1-888-437-9445; Conference ID: 2651219. Please be advised that before being placed into the conference call, the operator will ask callers to provide their names, their organizational affiliations (if any), and an email address (if available) prior to placing callers into the conference room. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free phone number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service (FRS) at 1-800-977-8339 and provide the FRS operator with the Conference Call Toll-Free Number: 1-888-437-9445, Conference ID: 2651219. Members of the public are invited to submit written comments; the comments must be received in the regional office by Monday, October 12, 2015. Written comments may be mailed to the Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13-201, Denver, CO 80294, faxed to (303) 866-1050, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Rocky Mountain Regional Office at (303) 866-1040.

    Records and documents discussed during the meeting will be available for public viewing as they become available at http://www.facadatabase.gov/committee/meetings.aspx?cid=259 and clicking on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Rocky Mountain Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site, www.usccr.gov, or to contact the Rocky Mountain Regional Office at the above phone number, email or street address.

    AGENDA:

    Welcome and Introductions Norma Bixby, Chair Civil Rights Discussion and Select Issues for Further Study Montana State Advisory Committee Administrative Matters Malee V. Craft, Designated Federal Official (DFO) DATES:

    Thursday, September 10, 2015, at 1:00 p.m. (MDT)

    ADDRESSES:

    To be held via teleconference:

    Conference Call Toll-Free Number: 1-888-437-9445, Conference ID: 2651219.

    TDD: Dial Federal Relay Service 1-800-977-8339 and give the operator the above conference call number and conference ID.

    FOR FURTHER INFORMATION CONTACT:

    Malee V. Craft, DFO, [email protected], 303-866-1040

    Dated: August 18, 2015. David Mussatt, Chief, Regional Programs Unit.
    [FR Doc. 2015-20758 Filed 8-21-15; 8:45 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-55-2015] Foreign-Trade Zone 50—Long Beach, California; Application for Expansion of Subzone 50H; Tesoro Refining and Marketing Company, LLC

    An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the Port of Long Beach, California, grantee of FTZ 50, requesting the expansion of Subzone 50H located at the facilities of Tesoro Refining and Marketing Company, LLC, in Long Beach, California. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on August 18, 2015.

    The grantee proposes to expand Subzone 50H to include an additional 5.02 acres. The additional acreage is located at 1600 Pier C Street in Long Beach. No changes to the subzone's existing production authority have been requested at this time.

    In accordance with the FTZ Board's regulations, Christopher Kemp of the FTZ Staff is designated examiner to review the application and make recommendations to the FTZ Board.

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is October 5, 2015. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to October 19, 2015.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Christopher Kemp at [email protected] or (202) 482-0862.

    Dated: August 18, 2015. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2015-20883 Filed 8-21-15; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [A-351-843, A-570-029, A-533-865, A-588-873, A-580-881, A-421-812, A-821-822, A-412-824] Certain Cold-Rolled Steel Flat Products From Brazil, the People's Republic of China, India, Japan, the Republic of Korea, the Netherlands, the Russian Federation, and the United Kingdom: Initiation of Less-Than-Fair-Value Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    ACTION:

    Notice.

    DATES:

    Effective date: August 24, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Hermes Pinilla at (202) 482-3477 (Brazil); Scott Hoefke at (202) 482-2947 (the People's Republic of China (PRC)); Patrick O'Connor at (202) 482-0989 (India and Japan); Steve Bezirganian at (202) 482-1131 (the Republic of Korea (Korea)); Yang Jin Chun at (202) 482-5760 (the Netherlands); Eve Wang at (202) 482-6231 (the Russian Federation (Russia)); or Thomas Schauer at (202) 482-0410 (the United Kingdom), AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    The Petitions

    On July 28, 2015, the Department of Commerce (the Department) received antidumping duty (AD) petitions concerning imports of certain cold-rolled steel flat products (cold-rolled steel) from Brazil, the PRC, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom, filed in proper form on behalf of AK Steel Corporation, ArcelorMittal USA LLC, Nucor Corporation, Steel Dynamics, Inc., and United States Steel Corporation (Petitioners).1 The AD petitions were accompanied by five countervailing duty (CVD) petitions.2 Petitioners are domestic producers of cold-rolled steel.3

    1See Petitions for the Imposition of Antidumping Duties on imports of Certain Cold-Rolled Steel Flat Products from Brazil, China, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom, dated July 28, 2015 (the Petitions).

    2See the Petitions for the Imposition of Countervailing Duties on Imports of Certain Cold-Rolled Steel Flat Products from Brazil, China, India, Korea, and Russia, dated July 28, 2015.

    3See Volume I of the Petitions, at 2.

    On July 31, 2015, the Department requested additional information and clarification of certain areas of the Petitions.4 Petitioners filed responses to these requests on August 4, 2015.5

    4See Letter from the Department to Petitioners entitled “Re: Petitions for the Imposition of Antidumping and Countervailing Duties on Imports of Certain Cold-Rolled Steel Flat Products from Brazil, the People's Republic of China, India, the Republic of Korea, and Russia and Antidumping Duties on Imports from Japan, Netherlands, and the United Kingdom: Supplemental Questions” dated July 31, 2015 (General Issues Supplemental Questionnaire); and Letters from the Department to Petitioners entitled “Re: Petition for the Imposition of Antidumping Duties on Imports of Certain Cold-Rolled Steel Flat Products from {country}: Supplemental Questions” on each of the country-specific records, dated July 31, 2015.

    5See “Response to the Department's July 31, 2015 Questionnaire Regarding Volume I of the Petition for the Imposition of Antidumping and Countervailing Duties,” dated August 4, 2015 (General Issues Supplement); see also the responses to the Department's July 31, 2015 questionnaires regarding the remaining antidumping Volumes of the Petition for the Antidumping and Countervailing Duties, each dated August 4, 2015.

    In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), Petitioners allege that imports of cold-rolled steel from Brazil, the PRC, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom are being, or are likely to be, sold in the United States at less-than-fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 732(b)(1) of the Act, the Petitions are accompanied by information reasonably available to Petitioners supporting their allegations.

    The Department finds that Petitioners filed these Petitions on behalf of the domestic industry because Petitioners are interested parties as defined in section 771(9)(C) of the Act. The Department also finds that Petitioners demonstrated sufficient industry support with respect to the initiation of the AD investigations that Petitioners are requesting.6

    6See the “Determination of Industry Support for the Petitions” section below.

    Periods of Investigation

    Because the Petitions were filed on July 28, 2015, the period of investigation (POI) is, pursuant to 19 CFR 351.204(b)(1), as follows: July 1, 2014, through June 30, 2015, for Brazil, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom, and January 1, 2015, through June 30, 2015, for the PRC.

    Scope of the Investigations

    The product covered by these investigations is cold-rolled steel from Brazil, the PRC, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom. For a full description of the scope of these investigations, see the “Scope of the Investigations,” in Appendix I of this notice.

    Comments on Scope of the Investigations

    During our review of the Petitions, the Department discussed with Petitioners the proposed scope to ensure that the scope language in the Petitions would be an accurate reflection of the products for which the domestic industry is seeking relief.7

    7See Memorandum from Vicki Flynn to The File, dated August 7, 2015. See also Letter from Petitioners entitled “Revised Scope, Amendment to Petitions,” dated August 10, 2015.

    As discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope). The Department will consider all comments received from parties and, if necessary, will consult with parties prior to the issuance of the preliminary determination. If scope comments include factual information (see 19 CFR 351.102(b)(21)), all such factual information should be limited to public information. In order to facilitate preparation of its questionnaires, the Department requests all interested parties to submit such comments by 5:00 p.m. Eastern Time (ET) on Tuesday, September 8, 2015, which is the first business day after 20 calendar days from the signature date of this notice.8 Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on Friday, September 18, 2015, which is 10 calendar days after the deadline for initial comments.

    8See 19 CFR 351.303(b).

    The Department requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact the Department and request permission to submit the additional information. All such comments must be filed on the records of each of the concurrent AD and CVD investigations.

    Filing Requirements

    All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).9 An electronically filed document must be received successfully in its entirety by the time and date when it is due. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    9See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011); see also Enforcement and Compliance; Change of Electronic Filing System Name, 79 FR 69046 (November 20, 2014) for details of the Department's electronic filing requirements, which went into effect on August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Comments on Product Characteristics for AD Questionnaires

    The Department will be giving interested parties an opportunity to provide comments on the appropriate physical characteristics of cold-rolled steel to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant factors and costs of production accurately as well as to develop appropriate product-comparison criteria.

    Subsequent to the publication of this notice, the Department will be releasing a proposed list of physical characteristics and product-comparison criteria, and interested parties will have the opportunity to provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe cold-rolled steel, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.

    All comments and submissions to the Department must be filed electronically using ACCESS, as explained above, on the records of the Brazil, the PRC, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom less-than-fair-value investigations.

    Determination of Industry Support for the Petitions

    Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,10 they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.11

    10See section 771(10) of the Act.

    11See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the Petitions).

    With regard to the domestic like product, Petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that cold-rolled steel constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.12

    12 For a discussion of the domestic like product analysis in this case, see Antidumping Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from Brazil (Brazil AD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Certain Cold-Rolled Steel Flat Products from Brazil, the People's Republic of China, India, Japan, the Republic of Korea, the Netherlands, the Russian Federation, and the United Kingdom (Attachment II); Antidumping Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from the People's Republic of China (PRC AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from India (India AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from Japan (Japan AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from the Republic of Korea (Korea AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from the Netherlands (Netherlands AD Initiation Checklist), at Attachment II; Antidumping Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from the Russian Federation (Russia AD Initiation Checklist); and Antidumping Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from the United Kingdom (United Kingdom AD Initiation Checklist). These checklists are dated concurrently with this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether Petitioners have standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in Appendix I of this notice. Petitioners provided their production of the domestic like product in 2014, as well as total production of the domestic like product for the entire domestic industry.13 To establish industry support, Petitioners compared their own production to total production of the domestic like product for the entire domestic industry.14

    13See Volume I of the Petitions, at 2-4 and Exhibits I-3 and I-4; General Issues Supplement, at 3. Petitioners also provided an alternate industry support calculation based on American Iron and Steel Institute shipment data. See Volume I of the Petitions, at 2-3 and Exhibit I-3; see also General Issues Supplement, at 2-4 and Exhibits I-Supp-10 through I-Supp-13. Petitioners demonstrate requisite industry support for the initiation of these investigations regardless of which calculation is used.

    14See Volume I of the Petitions, at 2-4 and Exhibits I-3 and I-4; General Issues Supplement, at 3. For further discussion, see Brazil AD Initiation Checklist, PRC AD Initiation Checklist, India AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, Netherlands AD Initiation Checklist, Russia AD Initiation Checklist, and United Kingdom AD Initiation Checklist, at Attachment II.

    Our review of the data provided in the Petitions, General Issues Supplement, and other information readily available to the Department indicates that Petitioners have established industry support.15 First, the Petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling).16 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(i) of the Act for the Petitions because the domestic producers (or workers) who support the Petitions account for at least 25 percent of the total production of the domestic like product.17 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petitions account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petitions.18 Accordingly, the Department determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.

    15See Brazil AD Initiation Checklist, PRC AD Initiation Checklist, India AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, Netherlands AD Initiation Checklist, Russia AD Initiation Checklist, and United Kingdom AD Initiation Checklist, at Attachment II.

    16See section 732(c)(4)(D) of the Act; see also Brazil AD Initiation Checklist, PRC AD Initiation Checklist, India AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, Netherlands AD Initiation Checklist, Russia AD Initiation Checklist, and United Kingdom AD Initiation Checklist, at Attachment II.

    17See Brazil AD Initiation Checklist, PRC AD Initiation Checklist, India AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, Netherlands AD Initiation Checklist, Russia AD Initiation Checklist, and United Kingdom AD Initiation Checklist, at Attachment II.

    18Id.

    The Department finds that Petitioners filed the Petitions on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the AD investigations that they are requesting the Department initiate.19

    19Id.

    Allegations and Evidence of Material Injury and Causation

    Petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, with regard to Brazil, the PRC, India, Japan, Korea, Russia, and the United Kingdom, Petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.20

    20See Volume I of the Petitions, at 28-29 and Exhibit I-12.

    With regard to the Netherlands, while the allegedly dumped imports from the Netherlands do not exceed the statutory requirements for negligibility, Petitioners allege and provide supporting evidence that (1) there is a reasonable indication that data obtained in the ITC's investigation will establish that imports exceed the negligibility threshold,21 and (2) there is the potential that imports from the Netherlands will imminently exceed the negligibility threshold and, therefore, are not negligible for purposes of a threat determination.22 Petitioners' arguments regarding the limitations of publicly available import data and the collection of scope-specific import data in the ITC's investigation are consistent with the SAA. Furthermore, Petitioners' arguments regarding the potential for imports from the Netherlands to imminently exceed the negligibility threshold are consistent with the statutory criteria for “negligibility in threat analysis” under section 771(24)(A)(iv) of the Act, which provides that imports shall not be treated as negligible if there is a potential that subject imports from a country will imminently exceed the statutory requirements for negligibility.

    21See Statement of Administrative Action (SAA), H.R. Doc. No. 103-316, Vol. 1, (1994) (SAA), at 857; see also General Issues Supplement, at 5-7 and Exhibit I-Supp-14.

    22See section 771(24)(A)(iv) of the Act; see also Volume I of the Petitions, at Exhibit I-8; and General Issues Supplement, at 7-9 and Exhibits I-Supp-14 and I-Supp-15.

    Petitioners contend that the industry's injured condition is illustrated by reduced market share; reduced shipments, production, and capacity utilization; underselling and price suppression or depression; declining employment variables; lost sales and revenues; and declining financial performance.23 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.24

    23See Volume I of the Petitions, at 14-16, 23-45, and Exhibits I-3, I-4, I-6, I-8 and I-10 through I-15; see also General Issues Supplement, at Exhibits I-Supp-1, I-Supp-14, and I-Supp-15.

    24See Brazil AD Initiation Checklist, PRC AD Initiation Checklist, India AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, Netherlands AD Initiation Checklist, Russia AD Initiation Checklist, and United Kingdom AD Initiation Checklist, at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Certain Cold-Rolled Steel Flat Products from Brazil, the People's Republic of China, India, Japan, the Republic of Korea, the Netherlands, Russia, and the United Kingdom.

    Allegations of Sales at Less-Than-Fair Value

    The following is a description of the allegations of sales at less-than-fair value upon which the Department based its decision to initiate investigations of imports of cold-rolled steel flat products from Brazil, the PRC, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the country-specific initiation checklists.

    Export Price

    For Brazil, the PRC, India, Korea, the Netherlands, and the United Kingdom, Petitioners based export price (EP) U.S. prices on price quotes/offers for sales of cold-rolled steel flat products produced in, and exported from, the subject country.25 For the Netherlands and the United Kingdom, Petitioners also based EP U.S. prices on average unit values (AUVs) of U.S. imports from those countries.26 Petitioners also used AUV data as the basis for U.S. price for Japan.27 Where applicable, Petitioners made deductions from U.S. price for movement expenses consistent with the delivery terms.28 Where applicable, Petitioners also deducted from U.S. price trading company/distributor/reseller mark-ups estimated using Petitioners' knowledge of the U.S. industry.29

    25See Brazil AD Initiation Checklist, PRC AD Initiation Checklist, India AD Initiation Checklist, Korea AD Initiation Checklist, Netherlands AD Initiation Checklist, and United Kingdom AD Initiation Checklist.

    26See Netherlands AD Initiation Checklist and United Kingdom AD Initiation Checklist.

    27See Japan AD Initiation Checklist.

    28See Brazil AD Initiation Checklist, PRC AD Initiation Checklist, India AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, Netherlands AD Initiation Checklist, and United Kingdom AD Initiation Checklist.

    29Id.

    Constructed Export Price

    For Russia, Petitioners based constructed export price (CEP) on a price quote/offer for sale of cold-rolled steel flat products produced in, and exported from, Russia.30 Petitioners made deductions from U.S. price for movement expenses consistent with the delivery terms, and deducted from U.S. price trading company/distributor/reseller mark-ups estimated using publicly reported expenses in the most recently available annual report of a distributor of steel.31

    30See Russia AD Initiation Checklist.

    31Id.

    Normal Value

    For Brazil, India, Korea, and Russia, Petitioners provided home market price information obtained through market research for cold-rolled steel produced in and offered for sale in each of these countries.32 For all four of these countries, Petitioners provided an affidavit or declaration from a market researcher for the price information.33 For India, Petitioners made a distributor mark-up adjustment to the price.34 For Korea, home market imputed credit expenses were deducted from the price, and U.S. imputed credit expenses were added to the price.35 Petitioners made no other adjustments to the offer prices to calculate NV, as no others were warranted by the terms associated with the offers.36

    32See Brazil AD Initiation Checklist, India AD Initiation Checklist, Korea AD Initiation Checklist, and Russia AD Initiation Checklist.

    33Id.; see also Memorandum to the File, “Telephone Call to Foreign Market Researcher Regarding Antidumping Petition,” on each of the country-specific records, dated August 4, 2015 (Russia), August 5, 2015 (Korea), August 10, 2015 (Brazil), and August 10, 2015 (India).

    34See India AD Initiation Checklist.

    35See Korea AD Initiation Checklist.

    36See India AD Initiation Checklist, Korea AD Initiation Checklist, and Russia AD Initiation Checklist. Note that home market price was not used as the basis for NV for Brazil, but for calculation of net price for comparison to COP, movement expenses were deducted for Brazil. See Brazil AD Initiation Checklist.

    For Brazil, Korea, and Russia, Petitioners provided information that sales of cold-rolled steel in the respective home markets were made at prices below the cost of production (COP), and for the United Kingdom, the Netherlands, and Japan, Petitioners did not provide home market price information because, as noted below, they were unable to obtain home market or third country prices. For all six of these countries, Petitioners calculated NV based on constructed value (CV).37 For further discussion of COP and NV based on CV, see below.38

    37See Brazil AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, Netherlands AD Initiation Checklist, Russia AD Initiation Checklist, and United Kingdom AD Initiation Checklist.

    38 In accordance with section 505(a) of the Trade Preferences Extension Act of 2015, amending section 773(b)(2) of the Act, for all of the investigations other than that for the PRC, the Department will request information necessary to calculate the CV and COP to determine whether there are reasonable grounds to believe or suspect that sales of the foreign like product have been made at prices that represent less than the COP of the product. The Department will no longer require a COP allegation to conduct this analysis.

    With respect to the PRC, Petitioners stated that the Department has found the PRC to be a non-market economy (NME) country in every previous less-than-fair-value investigation.39 In accordance with section 771(18)(C)(i) of the Act, the presumption of NME status remains in effect until revoked by the Department. The presumption of NME status for the PRC has not been revoked by the Department and, therefore, remains in effect for purposes of the initiation of this investigation. Accordingly, the NV of the product is appropriately based on factors of production (FOPs) valued in a surrogate market economy country, in accordance with section 773(c) of the Act. In the course of this investigation, all parties, and the public, will have the opportunity to provide relevant information related to the issues of the PRC's NME status and the granting of separate rates to individual exporters.

    39See Volume II of the Petitions, at 1-2.

    Petitioners claim that South Africa is an appropriate surrogate country because it is a market economy that is at a level of economic development comparable to that of the PRC, it is a significant producer of the merchandise under consideration, and the data for valuing FOPs, factory overhead, selling, general and administrative (SG&A) expenses and profit are both available and reliable.40

    40Id. at 2.

    Based on the information provided by Petitioners, we believe it is appropriate to use South Africa as a surrogate country for initiation purposes. Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs within 30 days before the scheduled date of the preliminary determination.

    Factors of Production

    Petitioners based the FOPs for materials, labor, and energy on a petitioning U.S. producer's consumption rates for producing cold-rolled steel as they did not have access to the consumption rates of PRC producers of the subject merchandise.41 Petitioners note that the selected U.S. producer was chosen because, like the Chinese producer of the U.S. price offers, the U.S. producer is a large, integrated producer of subject merchandise.42 Petitioners valued the estimated factors of production using surrogate values from South Africa.43

    41See Volume II of the Petitions, at Exhibit II-14 (page 1).

    42Id.

    43Id., at Exhibit II-14.

    Valuation of Raw Materials

    Petitioners valued the FOPs for raw materials (e.g., coke, iron ore, aluminum, ferromanganese) using reasonably available, public import data for South Africa from the Global Trade Atlas (GTA) for the period of investigation.44 Petitioners excluded all import values from countries previously determined by the Department to maintain broadly available, non-industry-specific export subsidies and from countries previously determined by the Department to be NME countries. In addition, in accordance with the Department's practice, the average import value excludes imports that were labeled as originating from an unidentified country. The Department determines that the surrogate values used by Petitioners are reasonably available and, thus, are acceptable for purposes of initiation.

    44See Volume II of the Petitions, at Exhibit II-14(D).

    Valuation of Labor

    Petitioners valued labor using South African labor data published by the International Labor Organization (ILO).45 Specifically, Petitioners relied on industry-specific wage rate data from Chapter 5A of the ILO's “Labor Cost in Manufacturing” publication as South African wage information was not available in Chapter 6A of the ILO's “Yearbook of Labor Statistics” publication.46 As the South African wage data are monthly data from 2012 in South African Rand, Petitioners converted the wage rates to hourly, adjusted for inflation and then converted to U.S. Dollars using the average exchange rate during the POI.47 Petitioners then applied that resulting labor rate to the labor hours expended by the U.S. producer of cold-rolled-resistant steel.48

    45Id., at Exhibit II-14 (page 5 and Exhibit II-14(E)).

    46Id.

    47Id.

    48Id., at Exhibit II-14(I).

    Valuation of Energy

    Petitioners used public information, as compiled by Eskom (a South African electricity producer), to value electricity.49 This 2014-2015 Eskom price information was converted to U.S. Dollars and from kilowatt hours to thousand kilowatt hours in order to be compared to the U.S producer factor usage rates.50 The cost of natural gas in South Africa was calculated from the average unit value of imports of liquid natural gas for the period, as reported by GTA.51 Using universal conversion factors, Petitioners converted that cost to the U.S. producer-reported factor unit of million British thermal units to ensure the proper comparison.52

    49Id., at Exhibit II-14(F).

    50Id., at Exhibit II-14 (page 7 and Exhibit II-14(F)).

    51Id., at Exhibit II-14(G).

    52Id., at Exhibit II-14 (page 7).

    Valuation of Factory Overhead, Selling, General and Administrative Expenses, and Profit

    Petitioners calculated surrogate financial ratios (i.e., manufacturing overhead, SG&A expenses, and profit) using the 2013 audited financial statement of EVRAZ Highveld Steel and Vanadium, a South African producer of comparable merchandise (i.e., flat-rolled steel).53

    53Id., at Exhibit II-14 (page 8 and Exhibit II-14(H)).

    Normal Value Based on Constructed Value

    Pursuant to section 773(b)(3) of the Act, COP consists of the cost of manufacturing (COM); SG&A expenses; financial expenses; and packing expenses. Petitioners calculated COM based on Petitioners' experience adjusted for known differences between their industry in the United States and the industries of the respective country (i.e., Brazil, Japan, Korea, the Netherlands, Russia, and the United Kingdom), during the proposed POI.54 Using publicly-available data to account for price differences, Petitioners multiplied their usage quantities by the submitted value of the inputs used to manufacture cold-rolled steel in each country.55 For Brazil, Japan, Korea, the Netherlands, Russia, and the United Kingdom, labor rates were derived from publicly available sources multiplied by the product-specific usage rates.56 For Brazil, Japan, Korea, the Netherlands, Russia, and the United Kingdom, to determine factory overhead, SG&A, and financial expense rates, Petitioners relied on financial statements of producers of comparable merchandise operating in the respective foreign country, although for Brazil and Japan, we made adjustments to Petitioners' calculations of these rates.57

    54See Brazil AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, Netherlands AD Initiation Checklist, Russia AD Initiation Checklist, and United Kingdom AD Initiation Checklist.

    55Id.

    56Id.

    57Id.

    For Brazil, Korea, and Russia, because certain home market prices fell below COP, pursuant to sections 773(a)(4), 773(b), and 773(e) of the Act, as noted above, Petitioners calculated NVs based on constructed value (CV) for those countries.58 For the Japan, the Netherlands, and the United Kingdom, Petitioners indicated they were unable to obtain home market or third country prices; accordingly, Petitioners based NV only on CV for those countries.59 Pursuant to section 773(e) of the Act, CV consists of the COM, SG&A, financial expenses, packing expenses, and profit. Petitioners calculated CV using the same average COM, SG&A, and financial expenses, to calculate COP.60 Petitioners relied on the financial statements of the same producers that they used for calculating manufacturing overhead, SG&A, and financial expenses to calculate the profit rate, though for Brazil and Japan, in addition to the same adjustments to Petitioners' calculations of factory overhead, SG&A, and financial expense rates as we made for the calculation of COP, we made an adjustment to the Petitioners' calculated profit rates.61

    58See Brazil AD Initiation Checklist, Korea Initiation Checklist, and Russia Initiation Checklist.

    59See Japan AD Initiation Checklist, Netherlands AD Initiation Checklist, and United Kingdom AD Initiation Checklist.

    60See Brazil AD Initiation Checklist, Japan AD Initiation Checklist, Korea AD Initiation Checklist, Netherlands AD Initiation Checklist, Russia AD Initiation Checklist, and United Kingdom AD Initiation Checklist.

    61Id.

    Fair Value Comparisons

    Based on the data provided by Petitioners, there is reason to believe that imports of cold-rolled steel from Brazil, the PRC, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom are being, or are likely to be, sold in the United States at less-than-fair value. Based on comparisons of EP or CEP to NV in accordance with sections 772 and 773 of the Act, the estimated dumping margin(s) for cold-rolled steel for each country are as follows: (1) Brazil ranges from 30.28 to 35.43 percent; 62 (2) India is 43.12 percent; 63 (3) Japan is 71.35 percent; 64 (4) Korea ranges from 75.42 to 177.50 percent; 65 (5) the Netherlands ranges from 39.43 to 121.53 percent; 66 (6) Russia ranges from 69.12 to 227.52 percent; 67 and (7) the United Kingdom ranges from 32.59 to 69.30 percent.68

    62See Brazil AD Initiation Checklist.

    63See India AD Initiation Checklist.

    64See Japan AD Initiation Checklist.

    65See Korea AD Initiation Checklist.

    66See Netherlands AD Initiation Checklist.

    67See Russia AD Initiation Checklist.

    68See United Kingdom AD Initiation Checklist.

    Based on comparisons of EP to NV, in accordance with section 773(c) of the Act, the estimated dumping margin for cold-rolled steel from the PRC is 265.79 percent.69

    69See PRC AD Initiation Checklist.

    Initiation of Less-Than-Fair-Value Investigations

    Based upon the examination of the AD Petitions on cold-rolled steel from Brazil, the PRC, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom, we find that the Petitions meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of cold-rolled steel from Brazil, the PRC, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom are being, or are likely to be, sold in the United States at less-than-fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.

    On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.70 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, the Department published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.71 The amendments to sections 771(15), 773, 776, and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to these AD investigations.72

    70See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    71See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015) (Applicability Notice).

    72Id. at 46794-95. The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    Respondent Selection

    Petitioners named eight companies from Brazil,73 43 companies from India,74 13 companies from Japan,75 nine companies from Korea,76 four companies from the Netherlands,77 11 companies from Russia,78 and nine companies from the United Kingdom,79 as producers/exporters of cold-rolled steel. Following standard practice in AD investigations involving market economy countries, the Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports under the appropriate HTSUS numbers listed with the scope in Appendix I, below. We intend to release the CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO within five business days of publication of this Federal Register notice. Interested parties wishing to comment regarding respondent selection must do so within seven business days of the publication of this notice. Comments must be filed electronically using ACCESS. An electronically-filed document must be received successfully in its entirety by the Department's electronic records system, ACCESS, by 5:00 p.m. ET by the date noted above. We intend to make our decision regarding respondent selection within 20 days of publication of this notice.

    73See the Volume I of the Petitions, at Exhibit I-7.

    74Id.

    75Id.

    76Id.

    77See the Volume I of the Petitions, at Exhibit I-7. See also the Volume XI of the Petitions, at 1.

    78See the Volume I of the Petitions, at Exhibit I-7.

    79See the Volume I of the Petitions, at Exhibit I-7. See also the Volume XIV of the Petitions, at 1.

    With respect to the PRC, Petitioners named 224 companies as producers/exporters of cold-rolled steel.80 In accordance with our standard practice for respondent selection in cases involving NME countries, we intend to issue quantity-and-value (Q&V) questionnaires to each potential respondent and base respondent selection on the responses received. In addition, the Department will post the Q&V questionnaire along with filing instructions on the Enforcement and Compliance Web site at http://www.trade.gov/enforcement/news.asp.

    80Id.

    Exporters/producers of cold-rolled steel from the PRC that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain a copy from the Enforcement and Compliance Web site. The Q&V response must be submitted by all PRC exporters/producers no later than August 31, 2015, which is two weeks from the signature date of this notice. All Q&V responses must be filed electronically via ACCESS.

    Separate Rates

    In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.81 The specific requirements for submitting a separate-rate application in the PRC investigation are outlined in detail in the application itself, which is available on the Department's Web site at http://enforcement.trade.gov/nme/nme-sep-rate.html. The separate-rate application will be due 30 days after publication of this initiation notice.82 Exporters and producers who submit a separate-rate application and have been selected as mandatory respondents will be eligible for consideration for separate-rate status only if they respond to all parts of the Department's AD questionnaire as mandatory respondents. The Department requires that respondents from the PRC submit a response to both the Q&V questionnaire and the separate-rate application by their respective deadlines in order to receive consideration for separate-rate status.

    81See Policy Bulletin 05.1: Separate-Rates Practice and Application of Combination Rates in Antidumping Investigation involving Non-Market Economy Countries (April 5, 2005), available at http://enforcement.trade.gov/policy/bull05-1.pdf (Policy Bulletin 05.1).

    82 Although in past investigations this deadline was 60 days, consistent with 19 CFR 351.301(a), which states that “the Secretary may request any person to submit factual information at any time during a proceeding,” this deadline is now 30 days.

    Use of Combination Rates

    The Department will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:

    {w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME Investigation will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question and produced by a firm that supplied the exporter during the period of investigation.83

    83See Policy Bulletin 05.1 at 6 (emphasis added).

    Distribution of Copies of the Petitions

    In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the governments of Brazil, the PRC, India, Japan, Korea, the Netherlands, Russia, and the United Kingdom via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).

    ITC Notification

    We have notified the ITC of our initiation, as required by section 732(d) of the Act.

    Preliminary Determinations by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of cold-rolled steel from Brazil, the PRC, India, Japan, Korea, the Netherlands, Russia and/or the United Kingdom are materially injuring or threatening material injury to a U.S. industry.84 A negative ITC determination for any country will result in the investigation being terminated with respect to that country; 85 otherwise, these investigations will proceed according to statutory and regulatory time limits.

    84See section 733(a) of the Act.

    85Id.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted 86 and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct.87 Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Please review the regulations prior to submitting factual information in these investigations.

    86See 19 CFR 351.301(b).

    87See 19 CFR 351.301(b)(2).

    Extensions of Time Limits

    Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in these investigations.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.88 Parties are hereby reminded that revised certification requirements are in effect for company/government officials, as well as their representatives. Investigations initiated on the basis of petitions filed on or after August 16, 2013, and other segments of any AD or CVD proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule.89 The Department intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.

    88See section 782(b) of the Act.

    89See Certification of Factual Information to Import Administration during Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in these investigations should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed in 19 CFR 351.103(d)).

    This notice is issued and published pursuant to section 777(i) of the Act.

    Dated: August 17, 2015. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigations

    The products covered by these investigations are certain cold-rolled (cold-reduced), flat-rolled steel products, whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of form of coil (e.g., in successively superimposed layers, spirally oscillating, etc.). The products covered also include products not in coils (e.g., in straight lengths) of a thickness less than 4.75 mm and a width that is 12.7 mm or greater and that measures at least 10 times the thickness. The products covered also include products not in coils (e.g., in straight lengths) of a thickness of 4.75 mm or more and a width exceeding 150 mm and measuring at least twice the thickness. The products described above may be rectangular, square, circular, or other shape and include products of either rectangular or non-rectangular cross-section where such cross-section is achieved subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges). For purposes of the width and thickness requirements referenced above:

    (1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above, and

    (2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

    Steel products included in the scope of these investigations are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

    • 2.50 percent of manganese, or • 3.30 percent of silicon, or • 1.50 percent of copper, or • 1.50 percent of aluminum, or • 1.25 percent of chromium, or • 0.30 percent of cobalt, or • 0.40 percent of lead, or • 2.00 percent of nickel, or • 0.30 percent of tungsten (also called wolfram), or • 0.80 percent of molybdenum, or • 0.10 percent of niobium (also called columbium), or • 0.30 percent of vanadium, or • 0.30 percent of zirconium

    Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.

    For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. Motor lamination steels contain micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.

    Subject merchandise includes cold-rolled steel that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigations if performed in the country of manufacture of the cold-rolled steel.

    All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of these investigations unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of these investigations:

    • Ball bearing steels; 90

    90 Ball bearing steels are defined as steels which contain, in addition to iron, each of the following elements by weight in the amount specified: (i) Not less than 0.95 nor more than 1.13 percent of carbon; (ii) not less than 0.22 nor more than 0.48 percent of manganese; (iii) none, or not more than 0.03 percent of sulfur; (iv) none, or not more than 0.03 percent of phosphorus; (v) not less than 0.18 nor more than 0.37 percent of silicon; (vi) not less than 1.25 nor more than 1.65 percent of chromium; (vii) none, or not more than 0.28 percent of nickel; (viii) none, or not more than 0.38 percent of copper; and (ix) none, or not more than 0.09 percent of molybdenum.

    • Tool steels; 91

    91 Tool steels are defined as steels which contain the following combinations of elements in the quantity by weight respectively indicated: (i) More than 1.2 percent carbon and more than 10.5 percent chromium; or (ii) not less than 0.3 percent carbon and 1.25 percent or more but less than 10.5 percent chromium; or (iii) not less than 0.85 percent carbon and 1 percent to 1.8 percent, inclusive, manganese; or (iv) 0.9 percent to 1.2 percent, inclusive, chromium and 0.9 percent to 1.4 percent, inclusive, molybdenum; or (v) not less than 0.5 percent carbon and not less than 3.5 percent molybdenum; or (vi) not less than 0.5 percent carbon and not less than 5.5 percent tungsten.

    • Silico-manganese steel; 92

    92 Silico-manganese steel is defined as steels containing by weight: (i) Not more than 0.7 percent of carbon; (ii) 0.5 percent or more but not more than 1.9 percent of manganese, and (iii) 0.6 percent or more but not more than 2.3 percent of silicon.

    • Grain-oriented electrical steels (GOES) as defined in the final determination of the U.S. Department of Commerce in Grain-Oriented Electrical Steel From Germany, Japan, and Poland. 93

    93Grain-Oriented Electrical Steel From Germany, Japan, and Poland: Final Determinations of Sales at Less Than Fair Value and Certain Final Affirmative Determination of Critical Circumstances, 79 FR 42,501, 42,503 (Dep't of Commerce, July 22, 2014). This determination defines grain-oriented electrical steel as “a flat-rolled alloy steel product containing by weight at least 0.6 percent but not more than 6 percent of silicon, not more than 0.08 percent of carbon, not more than 1.0 percent of aluminum, and no other element in an amount that would give the steel the characteristics of another alloy steel, in coils or in straight lengths.”

    • Non-Oriented Electrical Steels (NOES), as defined in the antidumping orders issued by the U.S. Department of Commerce in Non-Oriented Electrical Steel From the People's Republic of China, Germany, Japan, the Republic of Korea, Sweden, and Taiwan. 94

    94Non-Oriented Electrical Steel From the People's Republic of China, Germany, Japan, the Republic of Korea, Sweden, and Taiwan: Antidumping Duty Orders, 79 FR 71,741, 71,741-42 (Dep't of Commerce, Dec. 3, 2014). The orders define NOES as “cold-rolled, flat-rolled, alloy steel products, whether or not in coils, regardless of width, having an actual thickness of 0.20 mm or more, in which the core loss is substantially equal in any direction of magnetization in the plane of the material. The term `substantially equal' means that the cross grain direction of core loss is no more than 1.5 times the straight grain direction (i.e., the rolling direction) of core loss. NOES has a magnetic permeability that does not exceed 1.65 Tesla when tested at a field of 800 A/m (equivalent to 10 Oersteds) along (i.e., parallel to) the rolling direction of the sheet (i.e., B800 value). NOES contains by weight more than 1.00 percent of silicon but less than 3.5 percent of silicon, not more than 0.08 percent of carbon, and not more than 1.5 percent of aluminum. NOES has a surface oxide coating, to which an insulation coating may be applied.”

    The products subject to these investigations are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7209.15.0000, 7209.16.0030, 7209.16.0060, 7209.16.0070, 7209.16.0091, 7209.17.0030, 7209.17.0060, 7209.17.0070, 7209.17.0091, 7209.18.1530, 7209.18.1560, 7209.18.2510, 7209.18.2520, 7209.18.2580, 7209.18.6020, 7209.18.6090, 7209.25.0000, 7209.26.0000, 7209.27.0000, 7209.28.0000, 7209.90.0000, 7210.70.3000, 7211.23.1500, 7211.23.2000, 7211.23.3000, 7211.23.4500, 7211.23.6030, 7211.23.6060, 7211.23.6075, 7211.23.6085, 7211.29.2030, 7211.29.2090, 7211.29.4500, 7211.29.6030, 7211.29.6080, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7225.50.6000, 7225.50.8015, 7225.50.8085, 7225.99.0090, 7226.92.5000, 7226.92.7050, and 7226.92.8050. The products subject to the investigations may also enter under the following HTSUS numbers: 7210.90.9000, 7212.50.0000, 7215.10.0010, 7215.10.0080, 7215.50.0016, 7215.50.0018, 7215.50.0020, 7215.50.0061, 7215.50.0063, 7215.50.0065, 7215.50.0090, 7215.90.5000, 7217.10.1000, 7217.10.2000, 7217.10.3000, 7217.10.7000, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090, 7225.19.0000, 7226.19.1000, 7226.19.9000, 7226.99.0180, 7228.50.5015, 7228.50.5040, 7228.50.5070, 7228.60.8000, and 7229.90.1000.

    The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigations is dispositive.

    [FR Doc. 2015-20881 Filed 8-21-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-351-844, C-533-866, C-570-030, C-580-882, C-821-823] Certain Cold-Rolled Steel Flat Products From Brazil, India, the People's Republic of China, the Republic of Korea, and the Russian Federation: Initiation of Countervailing Duty Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective date: August 24, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Sergio Balbontin at (202) 482-6478 (Brazil); Howard Smith at (202) 482-5193 (India); Yasmin Nair at (202) 482-3813 (the People's Republic of China and the Republic of Korea); and Kristen Johnson at (202) 482-4793 (the Russian Federation), AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    The Petitions

    On July 28, 2015, the Department of Commerce (Department) received countervailing duty (CVD) petitions concerning imports of certain cold-rolled steel flat products (cold-rolled steel) from Brazil, India, the People's Republic of China (the PRC), the Republic of Korea (Korea), and the Russian Federation (Russia), filed in proper form on behalf of AK Steel Corporation, ArcelorMittal USA EEC, Nucor Corporation, Steel Dynamics, Inc., and United States Steel Corporation (collectively, Petitioners). The CVD petitions were accompanied by antidumping duty (AD) petitions also concerning imports of cold-rolled steel from all of the above countries, in addition to Japan, the Netherlands, and the United Kingdom.1 Petitioners are domestic producers of cold-rolled steel.2

    1See “Petitions for the Imposition of Antidumping and Countervailing Duties: Certain Cold-Rolled Steel Flat Products from Brazil, the People's Republic of China, India, Japan, the Republic of Korea, Netherlands, Russia, and the United Kingdom,” dated July 28, 2015 (Petitions).

    2See Volume I of the Petitions, at 2, and Exhibits I-3 and I-4.

    On July 31, 2015, the Department requested information and clarification for certain areas of the Petitions.3 Petitioners filed responses to these requests on August 4, 2015.4 On August 6, 2015, the Department sought additional information with regard to the India CVD Petition and the Russia CVD Petition.5 Petitioners filed their Russia CVD response on August 7, 2015, and their India CVD response on August 10, 2015.6

    3See Letter from the Department to Petitioners entitled “Petitions for the Imposition of Antidumping and Countervailing Duties on Imports of Certain Cold-Rolled Steel Flat Products from Brazil, the People's Republic of China, India, the Republic of Korea, and Russia and Antidumping Duties on Imports from Japan, Netherlands, and the United Kingdom: Supplemental Questions,” dated July 31, 2015 (General Issues Questionnaire); Letter from the Department to Petitioners entitled “Petition for the Imposition of Countervailing Duties on Imports of Certain Cold-Rolled Steel Flat Products from Brazil: Supplemental Questions,” dated July 31, 2015 (Brazil Questionnaire); Letter from the Department to Petitioners entitled “Petition for the Imposition of Countervailing Duties on Imports of Certain Cold-Rolled Steel Flat Products from India: Supplemental Questions,” dated July 31, 2015 (India Questionnaire); Letter from the Department to Petitioners entitled “Petition for the Imposition of Countervailing Duties on Imports of Certain Cold-Rolled Steel Flat Products from the People's Republic of China: Supplemental Questions,” dated July 31, 2015 (PRC Questionnaire); Letter from the Department to Petitioners entitled “Petition for the Imposition of Countervailing Duties on Imports of Certain Cold-Rolled Steel Flat Products from the Republic of Korea: Supplemental Questions,” dated July 31, 2015 (Korea Questionnaire); Letter from the Department to Petitioners entitled “Petition for the Imposition of Countervailing Duties on Imports of Certain Cold-Rolled Steel Flat Products from Russia: Supplemental Questions,” dated July 31, 2015 (Russia Questionnaire).

    4See Letter from Petitioners entitled “Certain Cold-Rolled Steel Flat Products from Brazil, the People's Republic of China, India, Japan, the Republic of Korea, Netherlands, Russia, and the United Kingdom: Response to the Department's July 31, 2015 Questionnaire Regarding Volume I of the Petitions for the Imposition of Antidumping and Countervailing Duties,” dated August 4, 2015 (General Issues Supplement); Letter from Petitioners entitled “Certain Cold-Rolled Steel Flat Products from Brazil: Response to the Department's July 31, 2015 Questionnaire Regarding Volume V of the Petition for the Imposition of Countervailing Duties,” dated August 4, 2015 (Brazil Supplement); Letter from Petitioners entitled “Certain Cold-Rolled Steel Flat Products from India: Response to the Department's July 31, 2015 Questionnaire Regarding Volume VII of the Petition for the Imposition of Countervailing Duties,” dated August 4, 2015 (India Supplement); Letter from Petitioners entitled “Certain Cold-Rolled Steel Flat Products from the People's Republic of China: Response to the Department's July 31, 2015 Questionnaire Regarding Volume III of the Petition for the Imposition of Countervailing Duties,” dated August 4, 2015 (PRC Supplement); Letter from Petitioners entitled “Certain Cold-Rolled Steel Flat Products from the Republic of Korea: Response to the Department's July 31, 2015 Questionnaire Regarding Volume X of the Petition for the Imposition of Countervailing Duties,” dated August 4, 2015 (Korea Supplement); and Letter from Petitioners entitled “Certain Cold-Rolled Steel Flat Products from Russia: Response to the Department's July 31, 2015 Questionnaire Regarding Volume XIII of the Petition for the Imposition of Countervailing Duties,” dated August 4, 2015 (Russia Supplement).

    5See Letter from the Department to Petitioners entitled “Petition for the Imposition of Countervailing Duties on Imports of Certain Cold-Rolled Steel Flat Products from Russia: Supplemental Question,” dated August 6, 2015 (Russia Second Questionnaire); and Letter from the Department to Petitioners entitled “Petition for the Imposition of Countervailing Duties on Imports of Certain Cold-Rolled Steel Flat Products from India: Supplemental Question,” dated August 6, 2015 (India Second Questionnaire).

    6See Letter from Petitioners entitled “Certain Cold-Rolled Steel Flat Products from Russia: Response to the Department's August 6, 2015 Questionnaire Regarding Volume XIII of the Petition for the Imposition of Countervailing Duties,” dated August 7, 2015 (Russia Second Supplement); and Letter from Petitioners entitled “Certain Cold-Rolled Steel Flat Products from India: Response to the Department's August 6, 2015 Questionnaire Regarding Volume VII of the Petition for the Imposition of Countervailing Duties,” dated August 10, 2015 (India Second Supplement);

    In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), Petitioners allege that the Governments of Brazil (GOB), India (GOI), the PRC (GOC), Korea (GOK), and Russia (GOR) are providing countervailable subsidies (within the meaning of sections 701 and 771(5) of the Act) to imports of cold-rolled steel from Brazil, India, the PRC, Korea, and Russia, respectively, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 702(b)(1) of the Act, the Petitions are accompanied by information reasonably available to Petitioners supporting their allegations.

    The Department finds that Petitioners filed the Petitions on behalf of the domestic industry because Petitioners are interested parties as defined in section 771(9)(C) of the Act. The Department also finds that Petitioners demonstrated sufficient industry support with respect to the initiation of the CVD investigations that Petitioners are requesting.7

    7See the “Determination of Industry Support for the Petitions” section below.

    Period of Investigations

    The period of investigations is January 1, 2014, through December 31, 2014.8

    8 19 CFR 351.204(b)(2).

    Scope of the Investigations

    The product covered by these investigations is cold-rolled steel from Brazil, India, the PRC, Korea, and Russia. For a full description of the scope of these investigations, see the “Scope of the Investigations” in Appendix I of this notice.

    Comments on Scope of the Investigations

    During our review of the Petitions, the Department discussed with Petitioners the proposed scope to ensure that the scope language in the Petitions would be an accurate reflection of the products for which the domestic industry is seeking relief.9

    9See Memorandum from Vicki Flynn to The File, dated August 7, 2015. See also Letter from Petitioners entitled “Revised Scope, Amendment to Petitions,” dated August 10, 2015.

    As discussed in the preamble to the Department's regulations,10 we are setting aside a period for interested parties to raise issues regarding product coverage (scope). The Department will consider all comments received from parties and, if necessary, will consult with parties prior to the issuance of the preliminary determinations. If scope comments include factual information (see 19 CFR 351.102(b)(21)), all such factual information should be limited to public information. In order to facilitate preparation of its questionnaires, the Department requests all interested parties to submit such comments by 5:00 p.m. Eastern Time (ET) on Tuesday, September 8, 2015, which is the first business day after 20 calendar days from the signature date of this notice.11 Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on Friday, September 18, 2015, which is 10 calendar days after the initial comments deadline.

    10See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    11See 19 CFR 351.303(b).

    The Department requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact the Department and request permission to submit the additional information. All such comments must be filed on the records of each of the concurrent AD and CVD investigations.

    Filing Requirements

    All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). An electronically-filed document must be received successfully in its entirety by the time and date it is due. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    Consultations

    Pursuant to section 702(b)(4)(A)(i) of the Act, the Department notified representatives of the GOB, GOI, GOK, GOC, and GOR of the receipt of the Petitions. Also, in accordance with section 702(b)(4)(A)(ii) of the Act, the Department provided representatives of the GOB, GOI, GOK, GOC, and GOR the opportunity for consultations with respect to the Petitions. On August 11, 2015, consultations were held with the GOR, and on August 14, 2015 consultations were held with the GOB and GOK.12 All invitation letters and memoranda regarding these consultations are on file electronically via ACCESS.

    12 Consultations were not held with the GOI and GOC, as none were requested by those governments prior to initiation of these investigations.

    Determination of Industry Support for the Petitions

    Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,13 they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.14

    13See section 771(10) of the Act.

    14See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the Petitions).

    With regard to the domestic like product, Petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that cold-rolled steel constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.15

    15 For a discussion of the domestic like product analysis in this case, see Countervailing Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from Brazil (Brazil CVD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Certain Cold-Rolled Steel Flat Products from Brazil, the People's Republic of China, India, Japan, the Republic of Korea, the Netherlands, the Russian Federation, and the United Kingdom (Attachment II); Countervailing Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from the People's Republic of China (PRC CVD Initiation Checklist), at Attachment II; Countervailing Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from India (India CVD Initiation Checklist), at Attachment II; Countervailing Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from the Republic of Korea (Korea CVD Initiation Checklist), at Attachment II; and Countervailing Duty Investigation Initiation Checklist: Certain Cold-Rolled Steel Flat Products from the Russian Federation (Russia CVD Initiation Checklist). These checklists are dated concurrently with this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether Petitioners have standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in Appendix I of this notice. Petitioners provided their production of the domestic like product in 2014, as well as total production of the domestic like product for the entire domestic industry.16 To establish industry support, Petitioners compared their own production to total production of the domestic like product for the entire domestic industry.17

    16See Volume I of the Petitions, at 2-4 and Exhibits I-3 and I-4; General Issues Supplement, at 3. Petitioners also provided an alternate industry support calculation based on American Iron and Steel Institute shipment data. See Volume I of the Petitions, at 2-3 and Exhibit I-3; see also General Issues Supplement, at 2-4 and Exhibits I-Supp-10 through I-Supp-13. Petitioners demonstrate requisite industry support for the initiation of these investigations regardless of which calculation is used.

    17See Volume I of the Petitions, at 2-4 and Exhibits I-3 and I-4; General Issues Supplement, at 3. For further discussion, see Brazil CVD Initiation Checklist, PRC CVD Initiation Checklist, India CVD Initiation Checklist, Korea CVD Initiation Checklist, and Russia CVD Initiation Checklist, at Attachment II.

    Our review of the data provided in the Petitions, General Issues Supplement, and other information readily available to the Department indicates that Petitioners have established industry support.18 First, the Petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling).19 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(i) of the Act for the Petitions because the domestic producers (or workers) who support the Petitions account for at least 25 percent of the total production of the domestic like product.20 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(ii) of the Act for the Petitions because the domestic producers (or workers) who support the Petitions account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petitions.21 Accordingly, the Department determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 702(b)(1) of the Act.

    18See Brazil CVD Initiation Checklist, PRC CVD Initiation Checklist, India CVD Initiation Checklist, Korea CVD Initiation Checklist, and Russia CVD Initiation Checklist, at Attachment II.

    19See section 702(c)(4)(D) of the Act; see also Brazil CVD Initiation Checklist, PRC CVD Initiation Checklist, India CVD Initiation Checklist, Korea CVD Initiation Checklist, and Russia CVD Initiation Checklist, at Attachment II.

    20See Brazil CVD Initiation Checklist, PRC CVD Initiation Checklist, India CVD Initiation Checklist, Korea CVD Initiation Checklist, and Russia CVD Initiation Checklist, at Attachment II.

    21Id.

    The Department finds that Petitioners filed the Petitions on behalf of the domestic industry because they are interested parties as defined in section 771(9)(C) of the Act and they have demonstrated sufficient industry support with respect to the CVD investigations that they are requesting the Department initiate.22

    22Id.

    Injury Test

    Because Brazil, India, the PRC, Korea, and Russia are “Subsidies Agreement Countries” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to these investigations. Accordingly, the ITC must determine whether imports of the subject merchandise from Brazil, India, the PRC, India, Korea, and Russia materially injure, or threaten material injury to, a U.S. industry.

    Allegations and Evidence of Material Injury and Causation

    Petitioners allege that imports of the subject merchandise are benefitting from countervailable subsidies and that such imports are causing, or threaten to cause, material injury to the U.S. industry producing the domestic like product. In addition, with regard to Brazil, the PRC, Korea, and Russia, Petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.23

    23See Volume I of the Petitions, at 28-29 and Exhibit I-12.

    In CVD petitions, section 771(24)(A) of the Act provides that imports of subject merchandise must exceed the negligibility threshold of three percent, except that imports of subject merchandise from developing countries in CVD investigations must exceed the negligibility threshold of four percent, pursuant to section 771(24)(B) of the Act. Brazil has been designated as a developing country, and India has been designated as a least developed country.24

    24See section 771(36)(A)-(B) of the Act.

    While the allegedly subsidized imports from India do not meet the statutory negligibility threshold of four percent, Petitioners allege and provide supporting evidence that (1) there is a reasonable indication that data obtained in the ITC's investigation will establish that imports exceed the negligibility threshold,25 and (2) there is the potential that imports from India will imminently exceed the negligibility threshold and, therefore, are not negligible for purposes of a threat determination.26 Petitioners' arguments regarding the limitations of publicly available import data and the collection of scope-specific import data in the ITC's investigation are consistent with the SAA. Furthermore, Petitioners' arguments regarding the potential for imports to imminently exceed the negligibility threshold are consistent with the statutory criteria for “negligibility in threat analysis” under section 771(24)(A)(iv) of the Act, which provides that imports shall not be treated as negligible if there is a potential that subject imports from a country will imminently exceed the statutory requirements for negligibility.

    25See Statement of Administrative Action (SAA), H.R. Doc. No. 103-316, Vol. 1, (1994) (SAA), at 857; see also General Issues Supplement, at 5-7 and Exhibit I-Supp-14.

    26See section 771(24)(A)(iv) of the Act; see also Volume I of the Petitions, at Exhibit I-8; and General Issues Supplement, at 7-9 and Exhibits I-Supp-14 and I-Supp-15.

    Petitioners contend that the industry's injured condition is illustrated by reduced market share; reduced shipments, production, and capacity utilization; underselling and price suppression or depression; declining employment variables; lost sales and revenues; and declining financial performance.27 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.28

    27See Volume I of the Petitions, at 14-16, 23-45, and Exhibits I-3, I-4, I-6, I-8 and I-10 through I-15; see also General Issues Supplement, at Exhibits I-Supp-1, I-Supp-14, and I-Supp-15.

    28See Brazil CVD Initiation Checklist, PRC CVD Initiation Checklist, India CVD Initiation Checklist, Korea CVD Initiation Checklist, and Russia CVD Initiation Checklist, at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Certain Cold-Rolled Steel Flat Products from Brazil, the People's Republic of China, India, Japan, the Republic of Korea, the Netherlands, Russia, and the United Kingdom.

    Initiation of Countervailing Duty Investigations

    Section 702(b)(1) of the Act requires the Department to initiate a CVD investigation whenever an interested party files a CVD petition on behalf of an industry that: (1) Alleges the elements necessary for an imposition of a duty under section 701(a) of the Act; and (2) is accompanied by information reasonably available to Petitioners supporting the allegations.

    Petitioners allege that producers/exporters of cold-rolled steel in Brazil, India, the PRC, Korea, and Russia benefited from countervailable subsidies bestowed by the governments of these countries, respectively. The Department examined the Petitions and finds that they comply with the requirements of section 702(b)(1) of the Act. Therefore, in accordance with section 702(b)(1) of the Act, we are initiating CVD investigations to determine whether manufacturers, producers, or exporters of cold-rolled steel from Brazil, India, the PRC, Korea, and Russia receive countervailable subsidies from the governments of these countries, respectively.

    On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.29 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, the Department published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.30 The amendments to sections 776 and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to these CVD investigations.31

    29See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    30See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015) (Applicability Notice). The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    31Id. at 46794-95.

    Brazil

    Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 32 of the 35 alleged programs. For a full discussion of the basis for our decision to initiate or not initiate on each program, see the Brazil CVD Initiation Checklist.

    India

    Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 53 of the 56 alleged programs. For a full discussion of the basis for our decision to initiate or not initiate on each program, see the India CVD Initiation Checklist.

    The PRC

    Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 44 of the 45 alleged programs. For a full discussion of the basis for our decision to initiate or not initiate on each program, see the PRC CVD Initiation Checklist.

    Korea

    Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation 39 of the 41 alleged programs.32 For a full discussion of the basis for our decision to initiate or not initiate on each program, see the Korea CVD Initiation Checklist.

    32 The Department decided to partially initiate on Dongbu's Debt Restructuring program. See the Korea CVD Initiation Checklist for a more detailed explanation.

    Russia

    Based on our review of the petition, we find that there is sufficient information to initiate a CVD investigation on 10 of the 14 alleged programs.33 For a full discussion of the basis for our decision to initiate or not initiate on each program, see the Russia CVD Initiation Checklist.

    33 The Department decided to partially initiate on the Provision of Mining Rights for Less Than Adequate Remuneration program. See the Russia CVD Initiation Checklist for a more detailed explanation.

    A public version of the initiation checklist for each investigation is available on ACCESS.

    In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 65 days after the date of this initiation.

    Respondent Selection

    Petitioners named eight companies as producers/exporters of cold-rolled steel from Brazil, 43 from India, 224 from the PRC, nine from Korea, and 11 from Russia.34 Following standard practice in CVD investigations, the Department will, where appropriate, select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports of cold-rolled steel during the periods of investigation under the following Harmonized Tariff Schedule of the United States (HTSUS) numbers: 7209.15.0000, 7209.16.0030, 7209.16.0060, 7209.16.0070, 7209.16.0091, 7209.17.0030, 7209.17.0060, 7209.17.0070, 7209.17.0091, 7209.18.1530, 7209.18.1560, 7209.18.2510, 7209.18.2520, 7209.18.2580, 7209.18.6020, 7209.18.6090, 7209.25.0000, 7209.26.0000, 7209.27.0000, 7209.28.0000, 7209.90.0000, 7210.70.3000, 7211.23.1500, 7211.23.2000, 7211.23.3000, 7211.23.4500, 7211.23.6030, 7211.23.6060, 7211.23.6075, 7211.23.6085, 7211.29.2030, 7211.29.2090, 7211.29.4500, 7211.29.6030, 7211.29.6080, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7225.50.6000, 7225.50.8015, 7225.50.8085, 7225.99.0090, 7226.92.5000, 7226.92.7050, and 7226.92.8050.

    34See Volume I of the Petitions, at Exhibit I-7.

    We intend to release CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO within five business days of publication of this Federal Register notice. The Department invites comments regarding respondent selection within seven business days of publication of this Federal Register notice.

    Comments must be filed electronically using ACCESS. An electronically-filed document must be received successfully in its entirety by ACCESS, by 5:00 p.m. ET by the date noted above. We intend to make our decision regarding respondent selection within 20 days of publication of this notice. Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on the Department's Web site at http://enforcement.trade.gov/apo.

    Distribution of Copies of the Petitions

    In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the GOB, GOI, GOC, GOK, and GOR via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each known exporter (as named in the Petitions), consistent with 19 CFR 351.203(c)(2).

    ITC Notification

    We notified the ITC of our initiation, as required by section 702(d) of the Act.

    Preliminary Determinations by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of cold-rolled steel from Brazil, India, the PRC, Korea, and Russia are materially injuring, or threatening material injury to, a U.S. industry.35 A negative ITC determination for any country will result in the investigation being terminated with respect to that country;36 otherwise, these investigations will proceed according to statutory and regulatory time limits.

    35See section 703(a) of the Act.

    36Id.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). The regulation requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Parties should review the regulations prior to submitting factual information in these investigations.

    Extension of Time Limits Regulation

    Parties may request an extension of time limits before the expiration of a time limit established under part 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under part 351 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm prior to submitting factual information in these investigations.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.37 Parties are hereby reminded that revised certification requirements are in effect for company/government officials, as well as their representatives. Investigations initiated on the basis of petitions filed on or after August 16, 2013, and other segments of any AD or CVD proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule. 38 The Department intends to reject factual submissions if the submitting party does not comply with the applicable revised certification requirements.

    37See section 782(b) of the Act.

    38See Certification of Factual Information To Import Administration During Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in these investigations should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed at 19 CFR 351.103(d)).

    This notice is issued and published pursuant to sections 702 and 777(i) of the Act.

    Dated: August 17, 2015. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I—Scope of the Investigations

    The products covered by these investigations are certain cold-rolled (cold-reduced), flat-rolled steel products, whether or not annealed, painted, varnished, or coated with plastics or other non-metallic substances. The products covered do not include those that are clad, plated, or coated with metal. The products covered include coils that have a width or other lateral measurement (“width”) of 12.7 mm or greater, regardless of form of coil (e.g., in successively superimposed layers, spirally oscillating, etc.). The products covered also include products not in coils (e.g., in straight lengths) of a thickness less than 4.75 mm and a width that is 12.7 mm or greater and that measures at least 10 times the thickness. The products covered also include products not in coils (e.g., in straight lengths) of a thickness of 4.75 mm or more and a width exceeding 150 mm and measuring at least twice the thickness. The products described above may be rectangular, square, circular, or other shape and include products of either rectangular or non-rectangular cross-section where such cross-section is achieved subsequent to the rolling process, i.e., products which have been “worked after rolling” (e.g., products which have been beveled or rounded at the edges). For purposes of the width and thickness requirements referenced above:

    (1) Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set forth above, and

    (2) where the width and thickness vary for a specific product (e.g., the thickness of certain products with non-rectangular cross-section, the width of certain products with non-rectangular shape, etc.), the measurement at its greatest width or thickness applies.

    Steel products included in the scope of these investigations are products in which: (1) Iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by weight, respectively indicated:

    • 2.50 percent of manganese, or

    • 3.30 percent of silicon, or

    • 1.50 percent of copper, or

    • 1.50 percent of aluminum, or

    • 1.25 percent of chromium, or

    • 0.30 percent of cobalt, or

    • 0.40 percent of lead, or

    • 2.00 percent of nickel, or

    • 0.30 percent of tungsten (also called wolfram), or

    • 0.80 percent of molybdenum, or

    • 0.10 percent of niobium (also called columbium), or

    • 0.30 percent of vanadium, or

    • 0.30 percent of zirconium

    Unless specifically excluded, products are included in this scope regardless of levels of boron and titanium.

    For example, specifically included in this scope are vacuum degassed, fully stabilized (commonly referred to as interstitial-free (IF)) steels, high strength low alloy (HSLA) steels, motor lamination steels, Advanced High Strength Steels (AHSS), and Ultra High Strength Steels (UHSS). IF steels are recognized as low carbon steels with micro-alloying levels of elements such as titanium and/or niobium added to stabilize carbon and nitrogen elements. HSLA steels are recognized as steels with micro-alloying levels of elements such as chromium, copper, niobium, titanium, vanadium, and molybdenum. Motor lamination steels contain micro-alloying levels of elements such as silicon and aluminum. AHSS and UHSS are considered high tensile strength and high elongation steels, although AHSS and UHSS are covered whether or not they are high tensile strength or high elongation steels.

    Subject merchandise includes cold-rolled steel that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the investigations if performed in the country of manufacture of the cold-rolled steel.

    All products that meet the written physical description, and in which the chemistry quantities do not exceed any one of the noted element levels listed above, are within the scope of these investigations unless specifically excluded. The following products are outside of and/or specifically excluded from the scope of these investigations:

    • Ball bearing steels; 1

    1 Ball bearing steels are defined as steels which contain, in addition to iron, each of the following elements by weight in the amount specified: (i) Not less than 0.95 nor more than 1.13 percent of carbon; (ii) not less than 0.22 nor more than 0.48 percent of manganese; (iii) none, or not more than 0.03 percent of sulfur; (iv) none, or not more than 0.03 percent of phosphorus; (v) not less than 0.18 nor more than 0.37 percent of silicon; (vi) not less than 1.25 nor more than 1.65 percent of chromium; (vii) none, or not more than 0.28 percent of nickel; (viii) none, or not more than 0.38 percent of copper; and (ix) none, or not more than 0.09 percent of molybdenum.

    • Tool steels; 2

    2 Tool steels are defined as steels which contain the following combinations of elements in the quantity by weight respectively indicated: (i) More than 1.2 percent carbon and more than 10.5 percent chromium; or (ii) not less than 0.3 percent carbon and 1.25 percent or more but less than 10.5 percent chromium; or (iii) not less than 0.85 percent carbon and 1 percent to 1.8 percent, inclusive, manganese; or (iv) 0.9 percent to 1.2 percent, inclusive, chromium and 0.9 percent to 1.4 percent, inclusive, molybdenum; or (v) not less than 0.5 percent carbon and not less than 3.5 percent molybdenum; or (vi) not less than 0.5 percent carbon and not less than 5.5 percent tungsten.

    • Silico-manganese steel; 3

    3 Silico-manganese steel is defined as steels containing by weight: (i) Not more than 0.7 percent of carbon; (ii) 0.5 percent or more but not more than 1.9 percent of manganese, and (iii) 0.6 percent or more but not more than 2.3 percent of silicon.

    • Grain-oriented electrical steels (GOES) as defined in the final determination of the U.S. Department of Commerce in Grain-Oriented Electrical Steel From Germany, Japan, and Poland. 4

    4Grain-Oriented Electrical Steel From Germany, Japan, and Poland: Final Determinations of Sales at Less Than Fair Value and Certain Final Affirmative Determination of Critical Circumstances, 79 FR 42,501, 42,503 (Dep't of Commerce, July 22, 2014). This determination defines grain-oriented electrical steel as “a flat-rolled alloy steel product containing by weight at least 0.6 percent but not more than 6 percent of silicon, not more than 0.08 percent of carbon, not more than 1.0 percent of aluminum, and no other element in an amount that would give the steel the characteristics of another alloy steel, in coils or in straight lengths.”

    • Non-Oriented Electrical Steels (NOES), as defined in the antidumping orders issued by the U.S. Department of Commerce in Non-Oriented Electrical Steel From the People's Republic of China, Germany, Japan, the Republic of Korea, Sweden, and Taiwan. 5

    5Non-Oriented Electrical Steel From the People's Republic of China, Germany, Japan, the Republic of Korea, Sweden, and Taiwan: Antidumping Duty Orders, 79 FR 71741, 71741-42 (Dep't of Commerce, Dec. 3, 2014). The orders define NOES as “cold-rolled, flat-rolled, alloy steel products, whether or not in coils, regardless of width, having an actual thickness of 0.20 mm or more, in which the core loss is substantially equal in any direction of magnetization in the plane of the material. The term `substantially equal' means that the cross grain direction of core loss is no more than 1.5 times the straight grain direction (i.e., the rolling direction) of core loss. NOES has a magnetic permeability that does not exceed 1.65 Tesla when tested at a field of 800 A/m (equivalent to 10 Oersteds) along (i.e., parallel to) the rolling direction of the sheet (i.e., B800 value). NOES contains by weight more than 1.00 percent of silicon but less than 3.5 percent of silicon, not more than 0.08 percent of carbon, and not more than 1.5 percent of aluminum. NOES has a surface oxide coating, to which an insulation coating may be applied.”

    The products subject to these investigations are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7209.15.0000, 7209.16.0030, 7209.16.0060, 7209.16.0070, 7209.16.0091, 7209.17.0030, 7209.17.0060, 7209.17.0070, 7209.17.0091, 7209.18.1530, 7209.18.1560, 7209.18.2510, 7209.18.2520, 7209.18.2580, 7209.18.6020, 7209.18.6090, 7209.25.0000, 7209.26.0000, 7209.27.0000, 7209.28.0000, 7209.90.0000, 7210.70.3000, 7211.23.1500, 7211.23.2000, 7211.23.3000, 7211.23.4500, 7211.23.6030, 7211.23.6060, 7211.23.6075, 7211.23.6085, 7211.29.2030, 7211.29.2090, 7211.29.4500, 7211.29.6030, 7211.29.6080, 7211.90.0000, 7212.40.1000, 7212.40.5000, 7225.50.6000, 7225.50.8015, 7225.50.8085, 7225.99.0090, 7226.92.5000, 7226.92.7050, and 7226.92.8050. The products subject to the investigations may also enter under the following HTSUS numbers: 7210.90.9000, 7212.50.0000, 7215.10.0010, 7215.10.0080, 7215.50.0016, 7215.50.0018, 7215.50.0020, 7215.50.0061, 7215.50.0063, 7215.50.0065, 7215.50.0090, 7215.90.5000, 7217.10.1000, 7217.10.2000, 7217.10.3000, 7217.10.7000, 7217.90.1000, 7217.90.5030, 7217.90.5060, 7217.90.5090, 7225.19.0000, 7226.19.1000, 7226.19.9000, 7226.99.0180, 7228.50.5015, 7228.50.5040, 7228.50.5070, 7228.60.8000, and 7229.90.1000.

    The HTSUS subheadings above are provided for convenience and U.S. Customs purposes only. The written description of the scope of the investigations is dispositive.

    [FR Doc. 2015-20879 Filed 8-21-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE069 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Kodiak Ferry Terminal and Dock Improvements Project AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS has received a request from the Alaska Department of Transportation and Public Facilities (DOT&PF) for authorization to take marine mammals incidental to reconstructing the existing ferry terminal at Pier 1 in Kodiak, Alaska, referred to as the Kodiak Ferry Terminal and Dock Improvements project (State Project Number 68938). The DOT&PF requests that the incidental harassment authorization (IHA) be valid for 1 year, from September 30, 2015 through September 29, 2016. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an authorization to the DOT&PF incidentally take, by harassment, small numbers of marine mammals for its reconstruction of the ferry terminal at Pier 1 in Kodiak, AK.

    DATES:

    Comments and information must be received no later than September 23, 2015.

    ADDRESSES:

    Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted to the Internet at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    Availability

    An electronic copy of the DOT&PFs application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above.

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

    Summary of Request

    On March 27, 2015, NMFS received an application from the DOT&PF for the taking of marine mammal incidental to reconstructing the existing ferry terminal at Pier 1 in Kodiak, Alaska, referred to as the Kodiak Ferry Terminal and Dock Improvements project (State Project Number 68938). On June 18, 2015 NMFS received a revised application. NMFS determined that the application was adequate and complete on June 25, 2015. DOT&PF proposes to conduct in-water work that may incidentally harass marine mammals (i.e., pile driving and removal). This IHA would be valid from September 30, 2015 through September 29, 2016.

    Proposed activities included as part of the Kodiak Ferry Terminal and Dock Improvements project (Pier 1 project) with potential to affect marine mammals include vibratory and impact pile-driving operations and use of a down-hole drill/hammer to install piles in bedrock.

    Species with the expected potential to be present during the project timeframe include killer whale (Orcinus orca), Steller sea lion (Eumatopius jubatus), harbor porpoise (Phocoena phocoena), and harbor seal (Phoca vitulina richardii).

    Description of the Specified Activity Overview

    DOT&PF is seeking an IHA for work that includes removal of the old timber dock and piles and installation of the new dock, including mooring and fender systems. The existing decking, piles, and other dock materials will be removed. Temporary steel H-piles will be installed to support temporary false work structures (i.e., templates). The new dock will be supported by steel piles, and dock fenders will include steel piles and timber piles. Note that these estimates are the number of days when each activity may occur at some point during the day, and that the number of days is not additive.

    Dates and Duration

    Pile installation and extraction associated with the Pier 1 project will begin no sooner than September 30, 2015 and will be completed no later than September 29, 2016 (1 year following IHA issuance). To minimize impacts to pink salmon (Oncorhynchus gorbuscha) fry and coho salmon (O. kisutch) smolt, all in-water pile extraction and installation is planned to be completed by April 30, 2016. If work cannot be completed by April 30, the Alaska Department of Fish & Game (ADF&G) recommended that the DOT&PF refrain from impact pile installation without a bubble curtain from May 1 through June 30 within the 12-hour period beginning daily at the start of civil dawn (Marie 2015). ADF&G stated that this is the daily time period when the majority of juvenile salmon are moving through the project area, and a 12-hour quiet period may protect migrating juvenile salmon from excessive noise (Frost 2015). Impact pile installation would be acceptable without a bubble curtain from May 1 through June 30 in the evenings, beginning at 12 hours past civil dawn (Marie 2015). At this time, DOT&PF does not propose using bubble curtains. However, it is possible that in-water work may extend past April 30 in compliance with the mitigation for salmon as recommended by ADF&G.

    Removal of existing timber piles, installation of temporary piles and new permanent piles, and removal of temporary piles are expected to occur over approximately 120 working days over a period of 4 to 6 months. This IHA requests authorization for up to 1 year of construction activities in case unforeseen construction delays occur. Pile extraction, pile driving, and drilling will occur intermittently over the work period, for anything from minutes to hours at a time (Table 1-1 in the application). The proposed Pier 1 project will require an estimated 120 days total of pile extraction and installation, including 80 days of vibratory extraction and installation, 60 days of down-hole drilling, and 22 days of impact hammering. Note that these days are not additive. Timing will vary based on the weather, delays, substrate type (the rock is layered and is of varying hardness across the site, so some holes will be drilled quickly and others may take longer), and other factors. A production rate of two permanent piles per day, on days when pile installation occurs, is considered typical for a project of this type.

    A 25 percent contingency has been added to the estimate of pile extraction and driving time to account for unknown substrate conditions (See Table 1-1 in the application). Therefore, the project may require approximately 614 hours of pile extraction or driving. The days for pile driving and extraction will not always be successive, but will be staggered over a 4- to 6-month period, depending on weather, construction and mechanical delays, marine mammal shutdowns, and other potential delays and logistical constraints. The number of hours of pile driving within any single day will vary.

    Specified Geographic Region

    The Kodiak Ferry Terminal and Dock at Pier 1 is located in the City of Kodiak, Alaska, at 57°47′12.78″ N, 152°24′09.73″ W, on the northeastern corner of Kodiak Island, in the Gulf of Alaska (See Figure 1-1 in the Application). Pier 1 is an active ferry terminal and multi-use dock located in Near Island Channel, which separates downtown Kodiak from Near Island (Figure 1-2). The channel is approximately 200 meters (656 feet) wide in the project area. Pier 1 is situated between a marine fuel service floating dock to the northeast (Petro Marine Services) and a pile-supported dock owned by a shore-based seafood processor to the southwest. Pier 1 is separated from the seafood processing plant dock by only about 15 meters (50 feet; Figure 1-3).

    Detailed Description of Activities

    The proposed action for this IHA request includes removal of the old timber dock and piles and installation of the new dock, including mooring and fender systems. The existing decking, piles, and other dock materials will be removed. Temporary steel H-piles will be installed to support temporary false work structures (i.e., templates). The new dock will be supported by steel piles, and dock fenders will include steel piles and timber piles. The proposed Pier 1 project will require an estimated 120 days total of pile extraction and installation, including 80 days of vibratory extraction and installation, 60 days of down-hole drilling, and 22 days of impact hammering. Note that these estimates are the number of days when each activity may occur at some point during the day, and that the number of days is not additive. The total hours of pile installation for each activity is estimated in more detail later in this section.

    The existing dock consists of approximately 156 vertical, 13-inch-diameter creosote-treated timber piles, 40 timber battered piles, and 14 16-inch-diameter steel fender piles. All piles, decking, and other existing dock materials will be removed. The exact method for pile extraction will be determined by the contractor. It is anticipated that when possible, existing piles will be extracted by directly lifting them with a crane. A vibratory hammer will be used only if necessary to extract piles that cannot be directly lifted. Removal of each old pile is estimated to require 5 minutes of vibratory hammer use. Under the worst-case scenario, if all old piles were removed by using the vibratory hammer, it would require a total time of about 17.5 hours (See Table 1-1 in the application). If the piles break below the waterline, the pile stubs will be removed with a clamshell bucket.

    The exact means and method for pile installation will be determined by the contractor; however, a few options are available within a general framework. Temporary steel pipe or H-piles will be installed as part of a template to ensure proper placement and alignment during driving of the permanent steel piles. Temporary piles will be driven with a vibratory hammer 10-30 feet through the overburden sediment layer but are not expected to penetrate into the bedrock. A vibratory hammer will be used to remove the temporary piles, which will then be reinstalled at a new location. Individual temporary piles will be driven and removed an estimated 88 times. It is estimated that it will take 10 minutes of vibratory pile driving per temporary pile for installation and 5 minutes each for extraction, for a total of 15 minutes of vibratory pile driving per temporary pile. For 88 temporary piles, this is an estimated 22 hours of total time using active vibratory equipment.

    The new terminal and dock will be supported by approximately 88 round, 24-inch-diameter steel piles. The 24-inch steel piles will be driven 10-30 feet through the sediment layer and 15 feet into the bedrock. Dock fenders will be supported atop 10 round, 18-inch-diameter steel piles. In addition, eight round, 16-inch timber piles, which are somewhat variable in size from about 16 inches at the butt (top) to about 12 inches at the tip (bottom), will be installed as fender piles along the north side of the dock. Both the steel and timber fender piles will be driven with a vibratory hammer approximately 22 feet embedment, or to refusal.

    The sequence for installing the permanent 24-inch piles begins with insertion through overlying sediment with a vibratory hammer for about 10 minutes per pile. A hole will then be drilled in the underlying bedrock by using a down-hole drill/hammer. A down-hole hammer is a drill bit that drills through the sediment and a pulse mechanism that functions at the bottom of the hole, using a pulsing bit to break up the harder materials or rock to allow removal of the fragments and insertion of the pile. The head extends so that the drilling takes place below the pile. Drill cuttings are expelled from the top of the pile as dust or mud. It is estimated that drilling piles through the layered bedrock will take about 5 hours per pile. Then, about five blows of an impact hammer will be used to confirm that piles are set into bedrock (proofed), for a maximum time expected of 1 minute of impact hammering per pile. When the impact hammer is employed for proofing, a pile cap or cushion will be placed between the impact hammer and the pile.

    All permanent 18-inch steel piles and timber piles will be driven into the marine sediment by using a vibratory hammer. It is anticipated to take about 10 minutes of vibratory driving to install each permanent 18-inch steel and timber pile.

    Table 1-1 in the application illustrates that the project will require an estimated 60 hours of vibratory hammer time, 440 hours of down-hole drilling time, and 2 hours of impact hammer time. DOT&PF has conservatively added a contingency of 25% to the total hours required resulting in 75 hours of vibratory hammer time, 550 hours of down-hole drilling time, and 3 hours of impact hammer time.

    Description of Marine Mammals in the Area of the Specified Activity

    Marine waters near Kodiak Island support many species of marine mammals, including pinnipeds and cetaceans; however, the number of species regularly occurring near the project area is limited. Steller sea lions are the most common marine mammals in the project area and are part of the western Distinct Population Segment (wDPS) that is listed as Endangered under the Endangered Species Act (ESA). Harbor seals (Phoca vitulina), harbor porpoises (Phocoena phocoena), and killer whales (Orcinus orca) may also occur in the project area, but far less frequently and in lower abundance than Steller sea lions. Humpback whales (Megaptera novaeangliae), fin whales (Balaenoptera physalus), and gray whales (Eschrichtius robustus) occur in the nearshore waters around Kodiak Island), but are not expected to be found near the project area because of the narrow channel and boat traffic. Dall's porpoise (Phocoenoides dalli) generally inhabit more offshore habitats than the Near Island channel. The relatively large numbers of Steller sea lions in the area may serve as an additional deterrent for some marine mammals. This IHA application is limited to the species shown in Table 1 and will assess potential impacts to Steller sea lions, harbor seals, harbor porpoises, and killer whales.

    In the species accounts provided here, we offer a brief introduction to the species and relevant stock as well as available information regarding population trends and threats, and describe any information regarding local occurrence.

    Table 1—Marine Mammal Species Potentially Present in the Project Area Species Stock(s)
  • abundance
  • estimate 1
  • ESA * Status MMPA ** Status Frequency of
  • occurrence
  • Killer Whale (Orcinus orca) Eastern N. Pacific, Alaska Resident Stock 2,347 Non-depleted Occasional. Killer Whale (Orcinus orca) Eastern N. Pacific, Gulf of Alaska, Aleutian Islands, and Bering Seat Transient Stock 587 Non-depleted Occasional. Harbor Porpoise (Phocoena phocoena) Gulf of Alaska Stock 31,046 Non-depleted and Strategic Occasional. Steller Sea Lion (Eumetopias jubatus) wDPS Stock 52,200 Endangered Depleted and Strategic Common. Harbor Seal (Phoca vitulina richardii) South Kodiak Stock 11,117 Non-depleted Occasional. 1 NOAA/NMFS 2014 marine mammal stock assessment reports at http://www.nmfs.noaa.gov/pr/sars/species.htm. * ESA = Endangered Species Act. ** MMPA = Marine Mammal Protection Act.
    Cetaceans Killer Whale

    Killer whales have been observed in all oceans and seas of the world, but the highest densities occur in colder and more productive waters found at high latitudes (NOAA 2015). Killer whales are found throughout the North Pacific, and occur along the entire Alaska coast, in British Columbia and Washington inland waterways, and along the outer coasts of Washington, Oregon, and California (NOAA 2015).

    Based on data regarding association patterns, acoustics, movements, and genetic differences, eight killer whale stocks are now recognized within the Pacific U.S. Exclusive Economic Zone, seven of which occur in Alaska: (1) The Alaska Resident stock; (2) the Northern Resident stock; (3) the Southern Resident stock; (4) the Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock; (5) the AT1 Transient stock; (6) the West Coast transient stock, occurring from California through southeastern Alaska; and (7) the Offshore stock. Only the Alaska Resident stock and the Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock are considered in this application because other stocks occur outside the geographic area under consideration.

    The Alaska Resident stock occurs from southeastern Alaska to the Aleutian Islands and Bering Sea. Although the Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock occupies a range that includes all of the U.S. Exclusive Economic Zone in Alaska, few individuals have been seen in southeastern Alaska. The transient stock occurs primarily from Prince William Sound through the Aleutian Islands and Bering Sea.

    The Alaska Resident stock of killer whales is currently estimated at 2,347 individuals, and the estimate of the Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stock is 587 individuals (Allen and Angliss 2013). The Gulf of Alaska component of the transient stock is estimated to include 136 of the 587 individuals. The abundance estimate for the Alaska Resident stock is likely underestimated because researchers continue to encounter new whales in the Gulf of Alaska and western Alaskan waters. At present, reliable data on trends in population abundance for both stocks are unavailable.

    Transient killer whales are seen periodically in waters of Kodiak Harbor, with photo-documentation since at least 1993 (Kodiak Seafood and Marine Science Center 2015). One pod known to visit Kodiak Harbor includes an adult female and adult male that have distinctive dorsal fins that make repeated recognition possible. This, as well as their easy visibility from shore, has led to their “popularity” in Kodiak, where their presence is often announced on public radio. They have been repeatedly observed and photographed attacking Steller sea lions.

    The Kodiak killer whales appear to specialize in preying on Steller sea lions commonly found near Kodiak's processing plants, fishing vessels, and docks. This pod kills and consumes at least four to six Steller sea lions per year from the Kodiak harbor area, primarily from February through May (Kodiak Seafood and Marine Science Center 2015, Wynne 2015b). Further information on the biology and local distribution of these species can be found in the DOT&PF application available online at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm and the NMFS Marine Mammal Stock Assessment Reports, which may be found at: http://www.nmfs.noaa.gov/pr/species/.

    Harbor Porpoise

    The harbor porpoise inhabits temporal, subarctic, and arctic waters. In the eastern North Pacific, harbor porpoises range from Point Barrow, Alaska, to Point Conception, California. Harbor porpoise primarily frequent coastal waters and occur most frequently in waters less than 100 m deep (Hobbs and Waite 2010). They may occasionally be found in deeper offshore waters.

    In Alaska, harbor porpoises are currently divided into three stocks, based primarily on geography. These are the Bering Sea stock, the Southeast Alaska stock, and the Gulf of Alaska stock. (Allen and Angliss 2014). Only the Gulf of Alaska stock is considered in this application because the other stocks are not found in the geographic area under consideration.

    Harbor porpoises are neither designated as depleted under the MMPA nor listed as threatened or endangered under the ESA. Because the most recent abundance estimate is 14 years old and information on incidental harbor porpoise mortality in commercial fisheries is not well understood, the Gulf of Alaska stock of harbor porpoise is classified as strategic. Population trends and status of this stock relative to optimum sustainable population size are currently unknown. The Gulf of Alaska stock is currently estimated at 31,046 individuals (Allen and Angliss 2013). No reliable information is available to determine trends in abundance.

    According to the online database, Ocean Biogeographic Information System, Spatial Ecological Analysis of Megavertebrate Populations (Halpin 2009 at OBIS-SEAMAP 2015), West Coast populations have more restricted movements and do not migrate as much as East Coast populations. Most harbor porpoise groups are small, generally consisting of less than five or six individuals, though for feeding or migration they may aggregate into large, loose groups of 50 to several hundred animals.

    Harbor porpoises commonly frequent Kodiak's nearshore waters, but are rarely if ever noted in the Kodiak channel (K. Wynne, pers. comm.). Harbor porpoises are expected to be encountered rarely in the project area, although no data exist to quantify harbor porpoise attendance.

    Pinnipeds Steller Sea Lion

    The Steller sea lion is a pinniped and the largest of the eared seals. Steller sea lion populations that primarily occur west of 144° W (Cape Suckling, Alaska) comprise the western Distinct Population Segment (wDPS). Only the wDPS is considered in this application because the eastern DPS (eDPS) occurs outside the geographic area under consideration. Steller sea lions were listed as threatened range-wide under the ESA on November 26, 1990 (55 FR 49204). Steller sea lions were subsequently partitioned into the western and eastern DPSs in 1997 (Allen and Angliss 2010), with the wDPS being listed as endangered under the ESA and the eDPS remaining classified as threatened (62 FR 24345) until it was delisted in November 2013.

    On August 27, 1993, NMFS published a final rule designating critical habitat for the Steller sea lion as a 20 nautical mile buffer around all major haul-outs and rookeries, as well as associated terrestrial, air and aquatic zones, and three large offshore foraging areas (50 CFR 226.202)

    The range of the Steller sea lion includes the North Pacific Ocean rim from California to northern Japan. Steller sea lions forage in nearshore and pelagic waters where they are opportunistic predators. They feed primarily on a wide variety of fishes and cephalopods. Steller sea lions use terrestrial haulout sites to rest and take refuge. They also gather on well-defined, traditionally used rookeries to pup and breed. These habitats are typically gravel, rocky, or sand beaches; ledges; or rocky reefs (Allen and Angliss, 2013).

    Steller sea lions have a worldwide population estimated at 120,000 to 140,000 animals, with approximately 93,000 in Alaska. The most recent comprehensive estimate (pups and non-pups) for abundance of the wDPS in Alaska is 52,209 sea lions, based on aerial surveys of non-pups conducted in June and July 2008-2011 and aerial and ground-based pup counts conducted in June and July 2009-2011 (Allen and Angliss 2014).

    The wDPS of Steller sea lions declined approximately 75 percent from 1976 to 1990. Factors that may have contributed to this decline include (1) incidental take in fisheries, (2) legal and illegal shooting, (3) predation, (4) contaminants, (5) disease, and (6) climate change. Non-pup Steller sea lion counts at trend sites in the wDPS increased 11 percent during 2000-2004. These counts were the first region-wide increases for the wDPS since standardized surveys began in the 1970s, and were due to increased or stable counts in all regions except the western Aleutian Islands. During 2004-2008, western Alaska non-pup counts increased only 3 percent; eastern Gulf of Alaska (Prince William Sound area) counts were higher; counts from the Kenai Peninsula through Kiska Island, including Kodiak Island, were stable; and western Aleutian counts continued to decline (Allen and Angliss 2010).

    Steller sea lions are the most obvious and abundant marine mammals in the project area. The major natural Steller sea lion haulouts closest to the project area are located on Long Island and Cape Chiniak, which are approximately 4.6 nautical miles (8.5 kilometers) and 13.8 nautical miles (25.6 kilometers) away from the project site, respectively. Annual counts averaged 33 animals on Long Island from 2008 through 2010, and 119 animals at Cape Chiniak during the same time period (Table 4-1). The closest rookery is located on Marmot Island, approximately 30 nautical miles (55.5 kilometers) from the project site, which had average annual counts of 656 animals from 2008 through 2010 (as cited in NMFS 2013).

    Many individual sea lions have become habituated to human activity in the Kodiak harbor area and utilize a man-made haulout float called Dog Bay float located in St. Herman Harbor, about 1,300 meters (4,300 feet) from the project site (See Figure 1-2; Figure 3-1 in the application). This is not a federally recognized haulout and is not considered part of sea lion critical habitat. Critical habitat is associated with breeding and haulout areas in Alaska, California, and Oregon (NMFS 1993). Steller sea lion critical habitat is defined by a 20-nautical-mile (37-km) radius (straight line distance) encircling a major haulout or rookery. The project area occurs within critical habitat for two major haulouts, Long Island and Cape Chiniak, described above. A section from an old floating breakwater, the float was relocated to Dog Bay in the year 2000 and intended to serve as a dedicated sea lion haulout. It serves its purpose of reducing sea lion-human conflicts in Kodiak's docks and harbors by providing an undisturbed haulout location and reducing the numbers of sea lions that haul out on vessel moorage floats.

    Counts of sea lions hauled out on the Dog Bay float provide an index of the number of Steller sea lions in the harbor area. Because this float is not considered an official haulout by NMFS, few standardized surveys to count sea lions have been conducted (Wynne 2015a). Surveys from 2004 through 2006 indicated peak winter (October-April) counts ranging from 27 to 33 animals (Wynn et al. 2011). Counts from February 2015 during a site visit by HDR biologists ranged from approximately 28 to 45 sea lions on the float. More than 100 sea lions were counted on the Dog Bay float at times in spring 2015, although the mean number was much smaller (Wynne 2015b).

    Abundant and predictable sources of food for sea lions in the Kodiak area include fishing gear, fishing boats and tenders, and the many seafood processing facilities that accept transfers of fish from offloading vessels. Sea lions have become accustomed to depredating fishing gear and raiding fishing vessels during fishing and offloading and they follow potential sources of food around the harbors and docks, waiting for opportunities to feed. When vessels are offloading fish at the docks of processing facilities, the sea lions rear out of the water to look over the gunnels for fish on the deck; if the vessel is a stern trawler, they charge up the stern ramp or codend to gain access to the deck (Speckman 2015; Ward 2015; Wynne 2015a). Sea lions have killed dogs and have dragged humans into the water (Wynne 2015a).

    The number of sea lions in the immediate project area varies depending on the season and presence of commercial fishing vessels unloading their catch at the seafood processing plant dock immediately adjacent to Pier 1. During the February 2015 site visit by HDR biologists, from zero up to about 25 sea lions were seen at one time in the Pier 1 project area. About 22 of those sea lions were subadults that were clearly foraging on schooling fishes in the area and were not interacting with the fishing vessels offloading at the seafood processing plant at the time. The stern trawler offloading at the processing plant dock during this period was attended by three mature bull sea lions, which constantly swam back and forth behind the stern watching for an opportunity to gain access.

    At least four other seafood processing facilities are present in Kodiak and operate concurrently with the one located next to Pier 1. All are visited by sea lions looking for food, and all are successfully raided by sea lions with regularity (Wynne 2015a). Sea lions also follow and raid fishing vessels. The seafood processing facility adjacent to the Pier 1 project site is therefore not the only source of food for Kodiak sea lions that inhabit the harbor area. Furthermore, sea lions in a more “natural” situation do not generally eat every day, but tend to forage every 1-2 days and return to haulouts to rest between foraging trips (Merrick and Loughlin 1997; Rehburg et al. 2009). The foraging habits of sea lions using the Dog Bay float and Kodiak harbor area are not documented, but it is reasonable to assume that, given the abundance of readily available food, not every sea lion in the area visits the seafood processing plant adjacent to Pier 1 every day. Based on numbers at the Dog Bay float and sea lion behavior, it is estimated that about 40 unique individual sea lions likely pass by the project site each day (Speckman 2015; Ward 2015; Wynne 2015a). Sea lions in the Kodiak harbor area are habituated to fishing vessels and are skilled at gaining access to fish. It is likely that some of the same animals follow local vessels to the nearby fishing grounds and back to town. It is also likely that hearing-impaired or deaf sea lions are among the sea lions that attend the seafood processing facility adjacent to the Pier 1 construction site. It is not known how a hearing-impaired or deaf sea lion would respond to typical mitigation efforts at a construction site such as ramping up of pile-driving equipment. It is also unknown whether a hearing-impaired or deaf sea lion would avoid pile-driving activity, or whether such an animal might approach closely, even within the Level A harassment zone, without responding to or being impacted by the noise level.

    Harbor Seal

    Harbor seals range from Baja California north along the west coasts of Washington, Oregon, California, British Columbia, and Southeast Alaska; west through the Gulf of Alaska, Prince William Sound, and the Aleutian Islands; and north in the Bering Sea to Cape Newenham and the Pribilof Islands. Distribution of the South Kodiak stock extends from East Cape (northeast coast of Kodiak Island) south to South Cape (Chirikof Island), including Tugidak Island, and up the southwest coast of Kodiak Island to Middle Cape.

    In 2010, harbor seals in Alaska were partitioned into 12 separate stocks based largely on genetic structure (Allen and Angliss 2010). Only the South Kodiak stock is considered in this application because other stocks occur outside the geographic area under consideration.

    The current statewide abundance estimate for Alaskan harbor seals is 152,602, based on aerial survey data collected during 1998-2007. The abundance estimate for the South Kodiak stock is 11,117 (Allen and Angliss 2010). Harbor seals have declined dramatically in some parts of their range over the past few decades, while in other parts their numbers have increased or remained stable over similar time periods.

    A significant portion of the harbor seal population within the South Kodiak stock is located at and around Tugidak Island off the southwest of Kodiak Island. Sharp declines in the number of seals present on Tugidak were observed between 1976 and 1998. Although the number of seals on Tugidak Island has stabilized and shows some evidence of increase since the decline, the population in 2000 remained reduced by 80 percent compared to the levels in the 1970s (Jemison et al. 2006). The current population trend for this stock is unknown.

    Harbor seals haul out on rocks, reefs, beaches, and drifting glacial ice (Allen and Angliss 2014). They are non-migratory; their local movements are associated with tides, weather, season, food availability, and reproduction, as well as sex and age class (Allen and Angliss 2014; Boveng et al. 2012; Lowry et al. 2001; Swain et al. 1996).

    Although the number of harbor seals on eastern Kodiak haulouts has been increasing steadily since the early 1990s (Kodiak Seafood and Marine Science Center 2015), sightings are rare in the project area. Several harbor seals tagged at Uganik Bay (Northwest Kodiak Island) dispersed as far north as Anchorage and as far south as Chignik, but none were found near Kodiak (Kodiak Seafood and Marine Science Center 2015). Harbor seals are expected to be encountered occasionally in the project area, although no data exist to quantify harbor seal attendance.

    Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that stressors, (e.g. pile driving,) and potential mitigation activities, associated with the reconstruction of the Pier 1 Kodiak Ferry Terminal and Dock may impact marine mammals and their habitat. The Estimated Take by Incidental Harassment section later in this document will include an analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the Estimated Take by Incidental Harassment section, and the Proposed Mitigation section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks. In the following discussion, we provide general background information on sound and marine mammal hearing before considering potential effects to marine mammals from sound produced by pile extraction, vibratory pile driving, impact pile driving and down-hole drilling.

    Description of Sound Sources

    Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds and attenuate (decrease) more rapidly in shallower water. Amplitude is the height of the sound pressure wave or the `loudness' of a sound and is typically measured using the decibel (dB) scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), sound is referenced in the context of underwater sound pressure to 1 microPascal (μPa). One pascal is the pressure resulting from a force of one newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 μPa). The received level is the sound level at the listener's position. Note that all underwater sound levels in this document are referenced to a pressure of 1 μPa and all airborne sound levels in this document are referenced to a pressure of 20 μPa.

    Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.

    When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in all directions away from the source (similar to ripples on the surface of a pond), except in cases where the source is directional. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.

    Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson et al., 1995), and the sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (e.g., waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic sound (e.g., vessels, dredging, aircraft, construction). A number of sources contribute to ambient sound, including the following (Richardson et al., 1995):

    • Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient noise for frequencies between 200 Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf noise becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions.

    • Precipitation: Sound from rain and hail impacting the water surface can become an important component of total noise at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times.

    • Biological: Marine mammals can contribute significantly to ambient noise levels, as can some fish and shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz.

    • Anthropogenic: Sources of ambient noise related to human activity include transportation (surface vessels and aircraft), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Shipping noise typically dominates the total ambient noise for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly (Richardson et al., 1995). Sound from identifiable anthropogenic sources other than the activity of interest (e.g., a passing vessel) is sometimes termed background sound, as opposed to ambient sound. Representative levels of anthropogenic sound are displayed in Table 2.

    The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson et al., 1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals.

    Table 2—Representative Sound Levels of Anthropogenic Sources Sound source Frequency range
  • (Hz)
  • Underwater sound level Reference
    Small vessels 250-1,000 151 dB rms at 1 m Richardson et al., 1995. Tug docking gravel barge 200-1,000 149 dB rms at 100 m Blackwell and Greene, 2002. Vibratory driving of 72-in steel pipe pile 10-1,500 180 dB rms at 10 m Reyff, 2007. Impact driving of 36-in steel pipe pile 10-1,500 195 dB rms at 10 m Laughlin, 2007. Impact driving of 66-in cast-in-steel-shell (CISS) pile 10-1,500 195 dB rms at 10 m Reviewed in Hastings and Popper, 2005.

    The Pier 1 project area is frequented by fishing vessels and tenders; ferries, barges, tugboats; and other commercial and recreational vessels that use the channel to access harbors and city docks, fuel docks, processing plants where fish catches are offloaded, and other commercial facilities. At the seafood processing plant, to the southwest of Pier 1, fish are offloaded by vacuum hose straight into the processing plant from the vessels' holds, and vessels raft up three and four deep to the dock during peak fishing seasons. On the northeast side of Pier 1 is the Petro Marine fuel dock, which services a range of vessel sizes, including larger vessels that can be accommodated by docking at Pier 1. Two boat harbors exist in Near Island Channel, which house a number of commercial and recreational marine vessels. The channel is also a primary route for local vessel traffic to access waters outside the Gulf of Alaska.

    High levels of vessel traffic are known to elevate background levels of noise in the marine environment. For example, continuous sounds for tugs pulling barges have been reported to range from 145 to 166 dB re 1 μPa rms at 1 meter from the source (Miles et al. 1987; Richardson et al. 1995; Simmonds et al. 2004. Ambient underwater noise levels in the Pier 1 project area are both variable and relatively high, and are expected to mask some sounds of drilling, pile installation, and pile extraction.

    In-water construction activities associated with the project include vibratory pile driving and removal, down-hole drilling, and impact pile driving. There are two general categories of sound types: Impulse and non-pulse (defined in the following). Vibratory pile driving is considered to be continuous or non-pulsed while impact pile driving is considered to be an impulse or pulsed sound type. The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see Southall et al., (2007) for an in-depth discussion of these concepts. Note that information related to impact hammers is included here for comparison. Pulsed sound sources (e.g., explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI, 1986; Harris, 1998; NIOSH, 1998; ISO, 2003; ANSI, 2005) and occur either as isolated events or repeated in some succession. Pulsed sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features.

    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (e.g., rapid rise time). Examples of non-pulsed sounds include those produced by vessels, aircraft, machinery operations such as drilling or dredging, vibratory pile driving, and active sonar systems (such as those used by the U.S. Navy). The duration of such sounds, as received at a distance, can be greatly extended in a highly reverberant environment.

    The likely or possible impacts of the proposed pile driving program at Pier 1 on marine mammals could involve both non-acoustic and acoustic stressors. Potential non-acoustic stressors could result from the physical presence of the equipment and personnel. Any impacts to marine mammals are expected to primarily be acoustic in nature. Acoustic stressors could include effects of heavy equipment operation, pile installation and pile removal at Pier 1.

    Marine Mammal Hearing

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall et al. (2007) designate “functional hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The functional groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their functional range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range):

    • Low frequency cetaceans (13 species of mysticetes): functional hearing is estimated to occur between approximately 7 Hz and 30 kHz;

    • Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    • High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): functional hearing is estimated to occur between approximately 200 Hz and 180 kHz;

    • Phocid pinnipeds in Water: functional hearing is estimated to occur between approximately 75 Hz and 75 kHz; and

    • Otariid pinnipeds in Water: functional hearing is estimated to occur between approximately 100 Hz and 40 kHz.

    As mentioned previously in this document, nine marine mammal species (seven cetacean and two pinniped) may occur in the project area. Of the two species likely to occur in the proposed project area, one is classified as a mid-frequency cetacean (i.e., killer whale), and one is classified as a high-frequency cetaceans (i.e., harbor porpoise) (Southall et al., 2007). Additionally, harbor seals are classified as members of the phocid pinnipeds in water functional hearing group while Steller sea lions and California sea lions are grouped under the Otariid pinnipeds in water functional hearing group. A species' functional hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals.

    Acoustic Impacts

    Potential Effects of Pile Driving Sound—The effects of sounds from pile driving might result in one or more of the following: Temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). The effects of pile driving on marine mammals are dependent on several factors, including the size, type, and depth of the animal; the depth, intensity, and duration of the pile driving sound; the depth of the water column; the substrate of the habitat; the standoff distance between the pile and the animal; and the sound propagation properties of the environment. Impacts to marine mammals from pile driving activities are expected to result primarily from acoustic pathways. As such, the degree of effect is intrinsically related to the received level and duration of the sound exposure, which are in turn influenced by the distance between the animal and the source. The further away from the source, the less intense the exposure should be. The substrate and depth of the habitat affect the sound propagation properties of the environment. Shallow environments are typically more structurally complex, which leads to rapid sound attenuation. In addition, substrates that are soft (e.g., sand) would absorb or attenuate the sound more readily than hard substrates (e.g., rock) which may reflect the acoustic wave. Soft porous substrates would also likely require less time to drive the pile, and possibly less forceful equipment, which would ultimately decrease the intensity of the acoustic source.

    In the absence of mitigation, impacts to marine species would be expected to result from physiological and behavioral responses to both the type and strength of the acoustic signature (Viada et al., 2008). The type and severity of behavioral impacts are more difficult to define due to limited studies addressing the behavioral effects of impulse sounds on marine mammals. Potential effects from impulse sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton et al., 1973).

    Hearing Impairment and Other Physical Effects—Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002, 2005). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall et al., 2007). Marine mammals depend on acoustic cues for vital biological functions, (e.g., orientation, communication, finding prey, avoiding predators); thus, TTS may result in reduced fitness in survival and reproduction. However, this depends on the frequency and duration of TTS, as well as the biological context in which it occurs. TTS of limited duration, occurring in a frequency range that does not coincide with that used for recognition of important acoustic cues, would have little to no effect on an animal's fitness. Repeated sound exposure that leads to TTS could cause PTS. PTS constitutes injury, but TTS does not (Southall et al., 2007). The following subsections discuss in somewhat more detail the possibilities of TTS, PTS, and non-auditory physical effects.

    Temporary Threshold Shift—TTS is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be stronger in order to be heard. In terrestrial mammals, TTS can last from minutes or hours to days (in cases of strong TTS). For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals, and none of the published data concern TTS elicited by exposure to multiple pulses of sound. Available data on TTS in marine mammals are summarized in Southall et al. (2007).

    Given the available data, the received level of a single pulse (with no frequency weighting) might need to be approximately 186 dB re 1 μPa2-s (i.e., 186 dB sound exposure level [SEL] or approximately 221-226 dB p-p [peak]) in order to produce brief, mild TTS. Exposure to several strong pulses that each have received levels near 190 dB rms (175-180 dB SEL) might result in cumulative exposure of approximately 186 dB SEL and thus slight TTS in a small odontocete, assuming the TTS threshold is (to a first approximation) a function of the total received pulse energy.

    The above TTS information for odontocetes is derived from studies on the bottlenose dolphin (Tursiops truncatus) and beluga whale (Delphinapterus leucas). There is no published TTS information for other species of cetaceans. However, preliminary evidence from a harbor porpoise exposed to pulsed sound suggests that its TTS threshold may have been lower (Lucke et al., 2009). As summarized above, data that are now available imply that TTS is unlikely to occur unless odontocetes are exposed to pile driving pulses stronger than 180 dB re 1 μPa rms.

    Permanent Threshold Shift—When PTS occurs, there is physical damage to the sound receptors in the ear. In severe cases, there can be total or partial deafness, while in other cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter, 1985). There is no specific evidence that exposure to pulses of sound can cause PTS in any marine mammal. However, given the possibility that mammals close to a sound source can incur TTS, it is possible that some individuals might incur PTS. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage, but repeated or (in some cases) single exposures to a level well above that causing TTS onset might elicit PTS.

    PTS is considered auditory injury (Southall et al., 2007). Irreparable damage to the inner or outer cochlear hair cells may cause PTS, however, other mechanisms are also involved, such as exceeding the elastic limits of certain tissues and membranes in the middle and inner ears and resultant changes in the chemical composition of the inner ear fluids (Southall et al., 2007).

    Relationships between TTS and PTS thresholds have not been studied in marine mammals but are assumed to be similar to those in humans and other terrestrial mammals, based on anatomical similarities. PTS might occur at a received sound level at least several decibels above that inducing mild TTS if the animal were exposed to strong sound pulses with rapid rise time. Based on data from terrestrial mammals, a precautionary assumption is that the PTS threshold for impulse sounds (such as pile driving pulses as received close to the source) is at least 6 dB higher than the TTS threshold on a peak-pressure basis and probably greater than 6 dB (Southall et al., 2007). On an SEL basis, Southall et al. (2007) estimated that received levels would need to exceed the TTS threshold by at least 15 dB for there to be risk of PTS. Thus, for cetaceans, Southall et al. (2007) estimate that the PTS threshold might be an M-weighted SEL (for the sequence of received pulses) of approximately 198 dB re 1 μPa2-s (15 dB higher than the TTS threshold for an impulse). Given the higher level of sound necessary to cause PTS as compared with TTS, it is considerably less likely that PTS could occur.

    Measured source levels from impact pile driving can be as high as 214 dB rms. Although no marine mammals have been shown to experience TTS or PTS as a result of being exposed to pile driving activities, captive bottlenose dolphins and beluga whales exhibited changes in behavior when exposed to strong pulsed sounds (Finneran et al., 2000, 2002, 2005). The animals tolerated high received levels of sound before exhibiting aversive behaviors. Experiments on a beluga whale showed that exposure to a single watergun impulse at a received level of 207 kPa (30 psi) p-p, which is equivalent to 228 dB p-p, resulted in a 7 and 6 dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds returned to within 2 dB of the pre-exposure level within four minutes of the exposure (Finneran et al., 2002). Although the source level of pile driving from one hammer strike is expected to be much lower than the single watergun impulse cited here, animals being exposed for a prolonged period to repeated hammer strikes could receive more sound exposure in terms of SEL than from the single watergun impulse (estimated at 188 dB re 1 μPa2-s) in the aforementioned experiment (Finneran et al., 2002). However, in order for marine mammals to experience TTS or PTS, the animals have to be close enough to be exposed to high intensity sound levels for a prolonged period of time. Based on the best scientific information available, these SPLs are far below the thresholds that could cause TTS or the onset of PTS.

    Non-auditory Physiological Effects—Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to strong underwater sound include stress, neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007). Studies examining such effects are limited. In general, little is known about the potential for pile driving to cause auditory impairment or other physical effects in marine mammals. Available data suggest that such effects, if they occur at all, would presumably be limited to short distances from the sound source and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall et al., 2007) or any meaningful quantitative predictions of the numbers (if any) of marine mammals that might be affected in those ways. Marine mammals that show behavioral avoidance of pile driving, including some odontocetes and some pinnipeds, are especially unlikely to incur auditory impairment or non-auditory physical effects.

    Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Behavioral responses to sound are highly variable and context-specific and reactions, if any, depend on species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day, and many other factors (Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007).

    Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. Behavioral state may affect the type of response as well. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 2003).

    Controlled experiments with captive marine mammals showed pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud pulsed sound sources (typically seismic guns or acoustic harassment devices, but also including pile driving) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; Thorson and Reyff, 2006; see also Gordon et al., 2004; Wartzok et al., 2003; Nowacek et al., 2007). Responses to continuous sound, such as vibratory pile installation, have not been documented as well as responses to pulsed sounds.

    With both types of pile driving, it is likely that the onset of pile driving could result in temporary, short term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson et al., 1995): changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haul-outs or rookeries). Pinnipeds may increase their haul-out time, possibly to avoid in-water disturbance (Thorson and Reyff, 2006).

    The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include:

    • Changes in diving/surfacing patterns;

    • Habitat abandonment due to loss of desirable acoustic environment; and

    • Cessation of feeding or social interaction.

    The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall et al., 2007).

    Auditory Masking—Natural and artificial sounds can disrupt behavior by masking, or interfering with, a marine mammal's ability to hear other sounds. Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher levels. Chronic exposure to excessive, though not high-intensity, sound could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions. Masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs only during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.

    Masking occurs at specific frequency bands so understanding the frequencies that the animals utilize is important in determining any potential behavioral impacts. Because sound generated from in-water vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds made by porpoises. However, lower frequency man-made sounds are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey sound. It may also affect communication signals when they occur near the sound band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009).

    Masking has the potential to impact species at the population or community levels as well as at individual levels. Masking affects both senders and receivers of the signals and can potentially in certain circumstances have long-term chronic effects on marine mammal species and populations. Recent research suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, and that most of these increases are from distant shipping (Hildebrand, 2009). All anthropogenic sound sources, such as those from vessel traffic, pile driving, and dredging activities, contribute to the elevated ambient sound levels, thus intensifying masking.

    Vibratory pile driving may potentially mask acoustic signals important to marine mammal species. However, the short-term duration and limited affected area would result in insignificant impacts from masking.

    Acoustic Effects, Airborne—Marine mammals that occur in the project area could be exposed to airborne sounds associated with pile driving that have the potential to cause harassment, depending on their distance from pile driving activities. Airborne pile driving sound would have less impact on cetaceans than pinnipeds because sound from atmospheric sources does not transmit well underwater (Richardson et al., 1995); thus, airborne sound would only be an issue for pinnipeds either hauled-out or looking with heads above water in the project area. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon their habitat and move further from the source. Studies by Blackwell et al. (2004) and Moulton et al. (2005) indicate a tolerance or lack of response to unweighted airborne sounds as high as 112 dB peak and 96 dB rms. However, all estimates for distances that airborne sound could travel and exceed the harassment threshold for in-air disturbance fall far short of the 1,300 meters to the nearest known pinniped haulout, the Dog Bay float. Therefore, airborne noise is not considered further in this application, and no incidental take for airborne noise is requested.

    Vessel Interaction

    Besides being susceptible to vessel strikes, cetacean and pinniped responses to vessels may result in behavioral changes, including greater variability in the dive, surfacing, and respiration patterns; changes in vocalizations; and changes in swimming speed or direction (NRC 2003). There will be a temporary and localized increase in vessel traffic during construction.

    Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory and impact pile driving and removal in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.

    Potential Pile Driving Effects on Prey—Construction activities would produce continuous (i.e., vibratory pile driving, down-hole drilling) sounds and pulsed (i.e. impact driving) sounds. Essential Fish Habitat (EFH) has been designated within the project area for the Alaska stocks of Pacific salmon, walleye pollock, Pacific cod, yellowfin sole (Limanda aspera), arrowtooth flounder (Atheresthes stomias), rock sole (Lepidopsetta spp.), flathead sole (Hippoglossoides elassodon), sculpin (Cottidae), skate (Rajidae), and squid (Teuthoidea). On 30 April 2013, informal EFH consultation was initiated, and NMFS determined that the project would not adversely affect EFH and did not offer any EFH conservation recommendations or require further consultation (FHWA 2013).

    Fish react to sounds that are especially strong and/or intermittent low-frequency sounds. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. Hastings and Popper (2005) identified several studies that suggest fish may relocate to avoid certain areas of sound energy. Additional studies have documented effects of pile driving on fish, although several are based on studies in support of large, multiyear bridge construction projects (e.g., Scholik and Yan, 2001, 2002; Popper and Hastings, 2009). Sound pulses at received levels of 160 dB may cause subtle changes in fish behavior. SPLs of 180 dB may cause noticeable changes in behavior (Pearson et al., 1992; Skalski et al., 1992). SPLs of sufficient strength have been known to cause injury to fish and fish mortality.

    The most likely impact to fish from pile driving activities at the project area would be temporary behavioral avoidance of the area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the short timeframe for the project.

    Effects to Foraging Habitat—Pile installation may temporarily increase turbidity resulting from suspended sediments. Any increases would be temporary, localized, and minimal. DOT&PF must comply with state water quality standards during these operations by limiting the extent of turbidity to the immediate project area. In general, turbidity associated with pile installation is localized to about a 25-foot radius around the pile (Everitt et al. 1980). Cetaceans are not expected to be close enough to the project pile driving areas to experience effects of turbidity, and any pinnipeds will be transiting the area and could avoid localized areas of turbidity. Therefore, the impact from increased turbidity levels is expected to be discountable to marine mammals. Furthermore, pile driving and removal at the project site will not obstruct movements or migration of marine mammals.

    Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses.

    For the proposed project, DOT&PF worked with NMFS and proposed the following mitigation measures to minimize the potential impacts to marine mammals in the project vicinity. The primary purposes of these mitigation measures are to minimize sound levels from the activities, and to monitor marine mammals within designated zones of influence corresponding to NMFS' current Level A and B harassment thresholds which are depicted in Table 3 found later in the Estimated Take by Incidental Harassment section.

    DOT&PF committed to the use of both impact and vibratory hammers for pile installation and will implement a soft-start procedure.

    Mitigation &Monitoring Protocols—Monitoring would be conducted before, during, and after pile driving and removal activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven. Observations made outside the shutdown zone will not result in shutdown; that pile segment would be completed without cessation, unless the animal approaches or enters the shutdown zone, at which point all pile driving activities would be halted. Monitoring will take place from 30 minutes prior to initiation through 20 minutes post-completion of pile driving activities. Pile driving activities include the time to remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes. Please see Appendix A of the application for details on the marine mammal monitoring plan developed by the DOT&PF's with NMFS' cooperation.

    The following additional measures apply to visual monitoring:

    (1) Monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. These vantage points include Jett A or the barge. Qualified observers are trained biologists, with the following minimum qualifications:

    (a) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;

    (b) Advanced education in biological science or related field (undergraduate degree or higher required);

    (c) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);

    (d) Experience or training in the field identification of marine mammals, including the identification of behaviors;

    (e) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

    (f) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and

    (g) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.

    (2) Prior to the start of pile driving activity, the shutdown zone will be monitored for 30 minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals; animals will be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior will be monitored and documented. The shutdown zone may only be declared clear, and pile driving started, when the entire shutdown zone is visible (i.e., when not obscured by dark, rain, fog, etc.). In addition, if such conditions should arise during impact pile driving that is already underway, the activity would be halted.

    If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or 20 minutes have passed without re-detection of the animal. Monitoring will be conducted throughout the time required to drive a pile.

    Ramp Up or Soft Start—The use of a soft start procedure is believed to provide additional protection to marine mammals by warning or providing a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers. The project will utilize soft start techniques for all vibratory and impact pile driving. We require the DOT&PF to initiate sound from vibratory hammers for fifteen seconds at reduced energy followed by a 1-minute waiting period, with the procedure repeated two additional times. For impact driving, we require an initial set of three strikes from the impact hammer at reduced energy, followed by a 1-minute waiting period, then two subsequent three strike sets. Soft start will be required at the beginning of each day's pile driving work and at any time following a cessation of pile driving of 20 minutes or longer.

    If a marine mammal is present within the Level A harassment zone, ramping up will be delayed until the animal(s) leaves the Level A harassment zone. Activity will begin only after the Wildlife Observer has determined, through sighting, that the animal(s) has moved outside the Level A harassment zone.

    If a Steller sea lion, harbor seal, harbor porpoise, or killer whale is present in the Level B harassment zone, ramping up will begin and a Level B take will be documented. Ramping up will occur when these species are in the Level B harassment zone whether they entered the Level B zone from the Level A zone, or from outside the project area.

    If any marine mammal other than Steller sea lions, harbor seals, harbor porpoises, or killer whales is present in the Level B harassment zone, ramping up will be delayed until the animal(s) leaves the zone. Ramping up will begin only after the Wildlife Observer has determined, through sighting, that the animal(s) has moved outside the harassment zone.

    Pile Caps—Pile caps will be used during all impact pile-driving activities.

    In addition to the measures described later in this section, the DOT&PF would employ the following standard mitigation measures:

    (a) Conduct briefings between construction supervisors and crews, marine mammal monitoring team, and DOT&PF staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    (b) For in-water heavy machinery work other than pile driving (using, e.g., standard barges, tug boats, barge-mounted excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions.

    Monitoring and Shutdown for Pile Driving

    The following measures would apply to DOT&PF's mitigation through shutdown and disturbance zones:

    Shutdown Zone—For all pile driving activities, the DOT&PF's will establish a shutdown zone. Shutdown zones are intended to contain the area in which SPLs equal or exceed the 180/190 dB rms acoustic injury criteria, with the purpose being to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing injury of marine mammals. A conservative 4-meter shutdown zone will be in effect for Steller sea lions and harbor seals. The estimated shutdown zone for Level A injury to harbor porpoises and killer whales would be 15 meters. DOT&PF, however, would implement a minimum shutdown zone of 10 m radius for all marine mammals around all vibratory pile driving and removal activities. These precautionary measures are intended to further reduce the unlikely possibility of injury from direct physical interaction with construction operations.

    Disturbance Zone—Disturbance zones are the areas in which sound pressure levels (SPLs) equal or exceed 120 dB rms (for continuous sound) for pile driving installation and removal. Disturbance zones provide utility for monitoring conducted for mitigation purposes (i.e., shutdown zone monitoring) by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring of disturbance zones enables observers to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone and thus prepare for potential shutdowns of activity. However, the primary purpose of disturbance zone monitoring is for documenting incidents of Level B harassment; disturbance zone monitoring is discussed in greater detail later (see “Proposed Monitoring and Reporting”). Nominal radial distances for disturbance zones are shown in Table 4 later in this notice. During impact driving, the Level B harassment zone shall extend to 225 meters for Steller sea lions, harbor seals, harbor porpoises, and killer whales. This 225 meter distance will serve as a shutdown zone for all other marine mammals (humpback whale, Dall's porpoise, gray whale, fin whale, or any other) to avoid Level B take. Level B take of humpback whales, Dall's porpoises, gray whales, and fin whales is not requested and will be avoided by shutting down before individuals of these species enter the Level B zone.

    During vibratory pile installation and removal, the Level B harassment zone shall extend to 1,150 meters for Steller sea lions, harbor seals, harbor porpoises, and killer whales. This 1,150-meter distance will serve as a shutdown zone for all other marine mammals (humpback whale, Dall's porpoise, gray whale, fin whale, or any other) to avoid Level B take.

    In order to document observed incidents of harassment, monitors record all marine mammal observations, regardless of location. The observer's location, as well as the location of the pile being driven, is known from a GPS. The location of the animal is estimated as a distance from the observer, which is then compared to the location from the pile and the estimated zone of influence (ZOI) for relevant activities (i.e., pile installation and removal). This information may then be used to extrapolate observed takes to reach an approximate understanding of actual total takes.

    Time Restrictions—Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted. To minimize impacts to pink salmon (Oncorhynchus gorbuscha) fry and coho salmon (O. kisutch) smolt, all in-water pile extraction and installation is planned to be completed by 30 April 2016. If work cannot be completed by 30 April, the DOT&PF refrain from impact pile installation without a bubble curtain from May 1, through June 30 within the 12-hour period beginning daily at the start of civil dawn (Marie 2015). ADF&G stated that this is the daily time period when the majority of juvenile salmon are moving through the project area, and a 12-hour quiet period may protect migrating juvenile salmon from excessive noise (Frost 2015). Impact pile installation would be acceptable without a bubble curtain from May 1 through June 30 in the evenings, beginning at 12 hours past civil dawn (Marie 2015).

    Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of affecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals.

    • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned.

    • The practicability of the measure for applicant implementation.

    Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

    1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

    2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).

    5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

    6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations (ITAs) must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.

    Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

    1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below,

    2. An increase in our understanding of how many marine mammals are likely to be exposed to levels of pile driving that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS.

    3. An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

    Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;

    4. An increased knowledge of the affected species; and

    5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

    The DOT&PF submitted a marine mammal monitoring plan as part of the IHA application for this project, which can be found at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period.

    Visual Marine Mammal Observation

    The DOT&PF will collect sighting data and behavioral responses to construction for marine mammal species observed in the region of activity during the period of activity. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. The DOT&PF will monitor the shutdown zone and disturbance zone before, during, and after pile driving. The Marine Mammal Observers (MMOs) and DOT&PF authorities will meet to determine the most appropriate observation platform(s) for monitoring during pile installation and extraction.

    Based on our requirements, the Marine Mammal Monitoring Plan would implement the following procedures for pile driving:

    • Individuals meeting the minimum qualifications identified in the applicant's monitoring plan (Appendix A of the application) would monitor Level A and Level B harassment zones during pile driving and extraction activities.

    • The area within the Level B harassment threshold for impact driving will be monitored by appropriately stationed MMOs. Any marine mammal documented within the Level B harassment zone during impact driving would constitute a Level B take (harassment), and will be recorded and reported as such.

    • During Impact and vibratory pile driving, a shutdown zone will be established to include all areas where the underwater SPLs are anticipated to equal or exceed the Level A (injury) criteria for marine mammals (180 dB isopleth for cetaceans; 190 dB isopleth for pinnipeds). Pile installation will not commence or will be suspended temporarily if any marine mammals are observed within or approaching the area.

    • The individuals will scan the waters within each monitoring zone activity using binoculars (Vector 10X42 or equivalent), spotting scopes (Swarovski 20-60 zoom or equivalent), and visual observation.

    • Use a hand-held or boat-mounted GPS device or rangefinder to verify the required monitoring distance from the project site.

    • If waters exceed a sea-state which restricts the observers' ability to make observations within the marine mammal shutdown zone (e.g. excessive wind or fog), pile installation will cease. Pile driving will not be initiated until the entire shutdown zone is visible.

    • Conduct pile driving and extraction activities only during daylight hours from sunrise to sunset when it is possible to visually monitor marine mammals.

    • The waters will be scanned 30 minutes prior to commencing pile driving at the beginning of each day, and prior to commencing pile driving after any stoppage of 20 minutes or greater. If marine mammals enter or are observed within the designated marine mammal shutdown zone during or 20 minutes prior to pile driving, the monitors will notify the on-site construction manager to not begin until the animal has moved outside the designated radius.

    • The waters will continue to be scanned for at least 20 minutes after pile driving has completed each day, and after each stoppage of 20 minutes or greater.

    Data Collection

    We require that observers use approved data forms. Among other pieces of information, the DOT&PF will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, the DOT&PF will attempt to distinguish between the number of individual animals taken and the number of incidents of take. We require that, at a minimum, the following information be collected on the sighting forms:

    • Date and time that monitored activity begins or ends;

    • Construction activities occurring during each observation period;

    • Weather parameters (e.g., percent cover, visibility);

    • Water conditions (e.g., sea state, tide state);

    • Species, numbers, and, if possible, sex and age class of marine mammals;

    • Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

    • Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

    • Locations of all marine mammal observations; and

    • Other human activity in the area.

    Proposed Reporting Measures

    The DOT&PF would provide NMFS with a draft monitoring report within 90 days of the conclusion of the proposed construction work. This report will detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.

    In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury (Level A harassment), serious injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), the DOT&PF would immediately cease the specified activities and immediately report the incident to Jolie Harrison ([email protected]), Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and Aleria Jensen ([email protected]), Alaska Stranding Coordinator. The report would include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • Name and type of vessel involved;

    • Vessel's speed during and leading up to the incident;

    • Description of the incident;

    • Status of all sound source use in the 24 hours preceding the incident;

    • Water depth;

    • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    • Description of all marine mammal observations in the 24 hours preceding the incident;

    • Species identification or description of the animal(s) involved;

    • Fate of the animal(s); and

    • Photographs or video footage of the animal(s) (if equipment is available).

    Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with the DOT&PF to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The DOT&PF would not be able to resume their activities until notified by NMFS via letter, email, or telephone.

    In the event that the DOT&PF discovers an injured or dead marine mammal, and the lead MMO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), the DOT&PF would immediately report the incident to Jolie Harrison ([email protected]), Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and Aleria Jensen ([email protected]), Alaska Stranding Coordinator.

    The report would include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with the DOT&PF to determine whether modifications in the activities are appropriate.

    In the event that the DOT&PF discovers an injured or dead marine mammal, and the lead MMO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the DOT&PF would report the incident to Jolie Harrison ([email protected]), Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS West Coast Stranding Hotline and/or by email to Aleria Jensen ([email protected]), Alaska Stranding Coordinator, within 24 hours of the discovery. The DOT&PF would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”

    All anticipated takes would be by Level A and Level B harassment resulting from vibratory pile driving and removal. Level A harassment has the potential to cause injury to a marine mammal or marine mammal stock while Level B harassment may result in temporary changes in behavior. Note that lethal takes are not expected due to the proposed mitigation and monitoring measures that are expected to minimize the possibility of such take.

    If a marine mammal responds to a stimulus by changing its behavior (e.g., through relatively minor changes in locomotion direction/speed or vocalization behavior), the response may or may not constitute taking at the individual level, and is unlikely to affect the stock or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on animals or on the stock or species could potentially be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound.

    Upland work can generate airborne sound and create visual disturbance that could potentially result in disturbance to marine mammals (specifically, pinnipeds) that are hauled out or at the water's surface with heads above the water. However, because there are no regular haul-outs in close proximity to Pier 1, NMFS believes that incidents of incidental take resulting from airborne sound or visual disturbance are unlikely.

    DOT&PF has requested authorization for the incidental taking of small numbers of killer whale, harbor porpoise, Steller sea lion, and harbor seal near the Pier 1 project area that may result from impact and vibratory pile driving, vibratory pile removal and down-hole drilling construction activities associated with the dock improvement project at Pier 1.

    In order to estimate the potential incidents of take that may occur incidental to the specified activity, we must first estimate the extent of the sound field that may be produced by the activity and then consider in combination with information about marine mammal density or abundance in the project area. We first provide information on applicable sound thresholds for determining effects to marine mammals before describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential incidences of take.

    Sound Thresholds

    We use the following generic sound exposure thresholds to determine when an activity that produces sound might result in impacts to a marine mammal such that a take by harassment might occur.

    Table 3—Underwater Injury and Disturbance Threshold Decibel Levels for Marine Mammals Criterion Criterion definition Threshold * Level A harassment PTS (injury) conservatively based on TTS.** 190 dB RMS for pinnipeds
  • 180 dB RMS for cetaceans.
  • Level B harassment Behavioral disruption for impulse noise (e.g., impact pile driving) 160 dB RMS. Level B harassment Behavioral disruption for non-pulse noise (e.g., vibratory pile driving, drilling) 120 dB RMS. * All decibel levels referenced to 1 micropascal (re: 1 μPa). Note all thresholds are based off root mean square (RMS) levels. ** PTS = Permanent Threshold Shift; TTS = Temporary Threshold Shift.
    Distance to Sound Thresholds

    The sound field in the project area is the existing ambient noise plus additional construction noise from the proposed project. The primary components of the project expected to affect marine mammals is the sound generated by impact pile driving, vibratory pile driving, vibratory pile removal and down-hole drilling. Direct pull and clamshell removal of old timber piles do not produce noise levels expected to impact marine mammals, although, depending on conditions, these may require vibratory hammer removal.

    After vibratory hammering has installed the pile through the overburden to the top of the bedrock layer, the vibratory hammer will be removed, and the down-hole drill will be inserted through the pile. The head extends below the pile and the drill rotates through soils and rock. The drilling/hammering takes place below the sediment layer and, as the drill advances, below the bedrock layer as well. Underwater noise levels are relatively low because the impact is taking place below the substrate rather than at the top of the piling, which limits transmission of noise through the water column. Additionally, there is a drive shoe welded on the bottom of the pile and the upper portion of the bit rests on the shoe, which aids in advancement of the pile as drilling progresses. When the proper depth is achieved, the drill is retracted and the pile is left in place. Down-hole drilling is considered a pulsed noise due to periodic impacts from the drill below ground level (PND Engineers 2013). Impact hammering typically generates the loudest noise associated with pile driving, but for the Pier 1 project, use will be limited to a few blows per permanent 24-inch pile.

    Several factors are expected to minimize the potential impacts of pile-driving and drilling noise associated with the project:

    • The soft sediment marine seafloor and shallow waters in the proposed project area.

    • Land forms across the channel that will block the noise from spreading .

    • The relatively high background noise level in the project area.

    Sound will dissipate relatively rapidly in the shallow waters over soft seafloors in the project area (NMFS 2013). St. Herman Harbor (Figure 1-2 in the application), where the Dog Bay float is located, is protected from the Pier 1 construction noise by land projections and islands, which will block and redirect sound. Near Island and Kodiak Island, on either side of Near Island Channel, prevent the sound from travelling underwater to the north, south, and southeast, restricting the noise to the channel.

    The project includes direct pulling and possibly vibratory removal of 13-inch timber and 16-inch steel piles; vibratory installation and removal of temporary steel pipe or H-piles; vibratory installation and down-hole drilling of permanent 24-inch steel pipe piles; and vibratory installation of 18-inch steel pipe piles and 16-inch timber piles (16 inches is the typical butt/top dimension, and these are typically around 12-inches in diameter at the pile tip/bottom). Each 24-inch pile will also be subject to a few blows from an impact hammer for proofing. No data are available for vibratory removal of piles, so it will be conservatively assumed that vibratory removal of piles will produce the same source level as vibratory installation.

    Vibratory extraction and installation of timber piles will be estimated to generate 152 dB rms at 16 meters as is shown in Table 6-3 of the application (Laughlin 2011). Vibratory extraction of 16-inch steel piles will be conservatively estimated to generate the same sound as installation of 24-inch piles (162 dB rms at 10 meters).

    Little information is available for sound generated during vibratory installation or removal of steel H-piles; however, ICF Jones & Stokes and Illingworth & Rodkin, Inc. (2009) reported that the typical noise level during vibratory hammering was 147 dB rms at 10 meters for 10-inch steel H-piles and 150 dB rms at 10 meters for 12-inch steel H-piles. Vibratory installation and removal of temporary steel pipe or H-piles will therefore be estimated to generate 150 dB rms at 10 meters (Table 6-3).

    Vibratory installation of a 24-inch steel pile generated 162 dB rms measured at 10 meters (Laughlin 2010a). Vibratory installation of 12-inch and 36-inch steel piles generated 150 and 170 dB rms at 10 meters, respectively (Maine Department of Transportation and Eastport Port Authority 2014), further supporting the intermediate estimate of 162 dB rms for driving 24-inch steel piles (Table 6-3).

    Vibratory installation of 18-inch steel piles will be conservatively estimated to generate the same sound as driving of 24-inch piles (162 dB rms at 10 meters). No data are available for the vibratory installation of 12-inch timber piles; therefore, vibratory installation of 12-inch timber piles will also be conservatively estimated to generate the same sound level as installation of 24-inch steel piles (Table 6-3).

    Dazey et al. (2012) measured sound levels generated by down-hole drilling and found the average calculated source SPL to be 133 dB rms. URS (2011) reported that down-hole drilling methods generate pulses with a maximum sound source level of 165 dB (re 1 μPa at 1 meter) at 200 Hz. The 160-dB isopleth (Level B harassment for pulsed noise sources) for a down-hole drill was estimated to be 3 meters during a project in Australia that included installation of piles (URS 2011). Down-hole drilling will therefore be estimated to generate 160 dB rms at 3 meters (Table 6-3).

    Impact driving of 24-inch steel piles is commonly assumed to generate 189 dB rms measured at 10 meters (WSDOT 2010). Laughlin (2006) reported that use of Micarta caps resulted in 7- to 8-dB reductions in sound level. A conservative reduction of 6 dB therefore yields an estimate of 183 dB rms at 10 meters if pile caps are used (Table 6-3).

    Underwater Sound Propagation Formula—Pile driving generates underwater noise that can potentially result in disturbance to marine mammals in the project area. Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:

    TL = B * log10 (R1/R2), where: TL = transmission loss in dB R1 = the distance of the modeled SPL from the driven pile, and R2 = the distance from the driven pile of the initial measurement.

    NMFS typically recommends a default practical spreading loss of 15 dB per tenfold increase in distance. However, for this analysis for the Pier 1 project area, a TL of 18Log(R/10) (i.e., 18-dB loss per tenfold increase in distance) was used for vibratory pile driving and a 17Log TL(R/10) function was used for impact driving (Illingworth & Rodkin 2014). TL values were based on measured attenuation rates in Hood Canal in the State of Washington (Illingworth & Rodkin 2013), where the marine environment is assumed to be similar to marine conditions in the Pier 1 project area. Illingworth & Rodkin (2013, 2014) have applied these same TL values to a test pile project proposed at the Port of Anchorage, and other researchers have measured similar attenuation rates for pile-driving projects (Caltrans 2012). Field measurements of TL can be as high as 22 to 29 dB per tenfold increase in distance in some locations (e.g., Knik Arm, Alaska; Blackwell 2005), and the use of these values is therefore considered a conservative application.

    Distances to the harassment isopleths vary by marine mammal type and pile extraction/driving tool. The Level B harassment isopleth during impact pile driving is 225 meters when pile caps are used; 1,136 meters during vibratory pile driving; and 3 meters during down-hole drilling (Table 6-6; Figure 6-1). The Level B harassment monitoring zone for vibratory pile driving will be rounded up to 1,150 meters for the Pier 1 project. Level A harassment of Steller sea lions would occur only within 4 meters if pile caps are used during impact hammering, or within 9 meters if pile caps are not used as is shown in Table 4.

    Table 4—Distances in Meters From Pier 1 Construction Activity to NMFS' Level A and Level B Harassment Thresholds (Isopleths) for Different Pile Installation and Extraction Methods and Pile Types, Assuming a 125-dB Background Noise Level Method, Pile Type Level A Pinnipeds Cetaceans Level B Pinnipeds and Cetaceans Vibratory Hammer Timber pile extraction <1 <1 506 Steel H-piles <1 <1 167 24-inch steel piles <1 1 1136 18-inch steel piles <1 1 1136 16-inch timber piles <1 1 1136 Down-hole Drill 24-inch steel piles <1 <1 3 Impact Hammer With caps 24-inch steel piles 4 15 225 Without caps 24-inch steel piles 9 34 508

    Note that the actual area insonified by pile driving activities is significantly constrained by local topography relative to the total threshold radius. The actual insonified area was determined using a straight line-of-sight projection from the anticipated pile driving locations. Distances to the underwater sound isopleths for Level B and Level A are illustrated respectively in Figure 6-1 and Figure 6-2 in the application.

    The method used for calculating potential exposures to impact and vibratory pile driving noise for each threshold was estimated using local marine mammal data sets, the Biological Opinion, best professional judgment from state and federal agencies, and data from IHA estimates on similar projects with similar actions. All estimates are conservative and include the following assumptions:

    • All pilings installed at each site would have an underwater noise disturbance equal to the piling that causes the greatest noise disturbance (i.e., the piling furthest from shore) installed with the method that has the largest ZOI. The largest underwater disturbance ZOI would be produced by vibratory driving steel and timber piles. The ZOIs for each threshold are not spherical and are truncated by land masses on either side of the channel which would dissipate sound pressure waves.

    • Exposures were based on estimated work days. Numbers of days were based on an average production rate of 80 days of vibratory driving, 22 days of impact driving and 60 days of down-hole drilling. Note that impact driving is likely to occur only on days when vibratory driving occurs.

    • In absence of site specific underwater acoustic propagation modeling, the practical spreading loss model was used to determine the ZOI.

    Steller Sea Lions

    Incidental take was estimated for Steller sea lions by assuming that, within any given day, about 40 unique individual Steller sea lions may be present at some time during that day within the Level B harassment zone during active pile extraction or installation. This estimate was derived from the following information, previously described in the FR in the section

    Description of Marine Mammals in the Area of the Specified Activity

    Pinniped population estimates are typically made when the animals are hauled out and available to be counted. Steller sea lions hauled out on the Dog Bay float are believed to represent the Kodiak Harbor population. Aerial surveys from 2004 through 2006 indicated peak winter (October-April) counts at the Dog Bay float ranging from 27 to 33 animals (Wynn et al. 2011). Counts in February 2015 during a site visit by HDR biologists ranged from approximately 28 to 45 Steller sea lions. More than 100 Steller sea lions were counted on the Dog Bay float at times in spring 2015, although the mean number was much smaller (Wynne 2015b). Together, this information may indicate a maximum population of about 120 Steller sea lions that uses the Kodiak harbor area.

    Steller sea lions found in more “natural” settings do not usually eat every day, but tend to forage every 1-2 days and return to haulouts to rest between foraging trips (Merrick and Loughlin 1997; Rehburg et al. 2009). This means that on any given day a maximum of about 60 Steller sea lions from the local population may be foraging. Note that there are at least four other seafood processing facilities in Kodiak that operate concurrently with the one located next to Pier 1, and all are visited by local Steller sea lions looking for food (Wynne 2015a). The seafood processing facility adjacent to the Pier 1 project site is not the only source of food for local Steller sea lions that inhabit the harbor area. The foraging habits of Steller sea lions using the Dog Bay float and Kodiak harbor area are not documented, but it is reasonable to assume that, given the abundance of readily available food, not every Steller sea lion in the area visits the seafood processing plant adjacent to Pier 1 every day. If about half of the foraging Steller sea lions visit the seafood processing plant adjacent to Pier 1, it is estimated that about 30 unique individual Steller sea lions likely pass through the Pier 1 project area each day and could be exposed to Level B harassment. To be conservative, exposure is estimated at 40 unique individual Steller sea lions per day.

    It is assumed that Steller sea lions may be present every day, and also that take will include multiple harassments of the same individual(s) both within and among days, which means that these estimates are likely an overestimate of the number of individuals.

    Expected durations of pile extraction and driving were estimated in Section 1.4 of the application. For each pile extraction or installation activity, the calculation for Steller sea lion exposures to underwater noise is therefore estimated as:

    Exposure estimate = (number of animals exposed > sound thresholds)/day * number of days of activity

    An estimated total of 3,200 Steller sea lions (40 sea lions/day * 80 days of pile installation or extraction) could be exposed to noise at the Level B harassment level during vibratory and impact pile driving (Table 5). The expected take from exposure to noise from down-hole drilling is expected to be very low because of the low noise levels produced by this type of pile installation, and the 3-meter distance to the Level B isopleth. Potential exposure at the Level B harassment level for down-hole drilling is estimated at 60 Steller sea lions, roughly one every one to two days.

    Table 5—Numbers of Potential Exposures of Steller Sea Lions to Level A and Level B Harassment Noise From Pile Driving Based on Predicted Underwater Noise Levels Resulting From Project Activities Vibratory
  • and impact
  • Level B Down-hole
  • drill
  • Level B Impact
  • hammer
  • Level A
    Number of Days 80 60 22 Number of Steller Sea Lion Exposures 3,200 60 30

    The attraction of sea lions to the seafood processing plant increases the possibility of individual Steller sea lions occasionally entering the Level A harassment zone before they are observed and before pile driving can be shut down. Even with marine mammal observers present at all times during pile installation, it is possible that sea lions could approach quickly and enter the Level A harassment zone, even as pile driving activity is being shut down. This likelihood is increased by the high level of sea lion activity in the area, with Steller sea lions following vessels and swimming around vessels at the neighboring dock. It is possible that a single sea lion could be taken each day that impact pile driving occurs. As such, NMFS proposes an additional 22 Level A takes plus a roughly 30 percent contingency of 8 additional takes, for a total of 30 takes for Level A harassment. Potential for Level A harassment of Steller sea lions is estimated to only occur during impact hammering due to the very small Level A harassment zones for all other construction activities.

    Harbor Seals

    Harbor seals are expected to be encountered in low numbers, if at all, within the project area. However, based on the known range of the South Kodiak stock, and occasional sightings during monitoring of projects at other locations on Kodiak Island, NMFS proposes 40 Level B takes (1 take every other day) of harbor seals by exposure to underwater noise over the duration of construction activities.

    Harbor Porpoises

    Harbor porpoises are expected to be encountered in low numbers, if at all, within the project area. However, based on the known range of the Gulf of Alaska stock and occasional sightings during monitoring of projects at other locations on Kodiak Island, NMFS proposes 40 Level B takes (1 take every other day) of harbor porpoises by exposure to underwater noise over the duration of construction activities.

    Killer Whales

    Resident killer whales are rarely sighted in the project area and, therefore, NMFS is not proposing the take of any resident killer whales. Transient killer whales are expected to be encountered in the project area occasionally, although no data exist to quantify killer whale attendance. Killer whales are expected to be in the Kodiak harbor area sporadically from January through April and to enter the project area in low numbers. Based on the known range and behavior of the Alaska Resident stock and the Gulf of Alaska, Aleutian Islands, and Bering Sea Transient stocks, it is reasonable to estimate that 6 individual whales may enter the project area twice a month from February through May. NMFS therefore proposes 48 Level B takes (6 killer whales/visit * 2 visits/month * 4 months) of killer whales by exposure to underwater noise over the duration of construction activities.

    Table 6—Summary of the Estimated Numbers of Marine Mammals Potentially Exposed to Level A and Level B Harassment Noise Levels Species Species Level
  • threshold
  • cetaceans
  • (180 dB)
  • Level injury threshold pinnipeds
  • (190 dB)
  • Level B
  • harassment
  • threshold
  • (160 dB)
  • Total
    Steller sea lion NA 30 3,260 3,290 Harbor seal NA 0 40 40 Harbor porpoise 0 NA 40 40 Killer whale 0 NA 48 48 Total 0 30 3,388 3,418 NA indicates Not Applicable.
    Analysis and Preliminary Determinations Negligible Impact

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, effects on habitat, and the status of the species.

    To avoid repetition, the discussion of our analyses applies to all the species listed in Table 6, given that the anticipated effects of this pile driving project on marine mammals are expected to be relatively similar in nature. There is no information about the size, status, or structure of any species or stock that would lead to a different analysis for this activity, else species-specific factors would be identified and analyzed.

    Pile extraction, pile driving, and down-hole drilling activities associated with the reconstruction of the Pier 1 Kodiak Ferry Terminal and Dock, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level A (injury) and Level B harassment (behavioral disturbance), from underwater sounds generated from pile driving. Potential takes could occur if individuals of these species are present in the insonified zone when pile driving is under way.

    The takes from Level B harassment will be due to potential behavioral disturbance and TTS. The takes from Level A harassment will be due to potential PTS. No mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for these outcomes is minimized through the construction method and the implementation of the planned mitigation measures. Specifically, the use of impact driving will be limited to an estimated maximum of 3 hours over the course of 80 days of construction, and will likely require less time. Each 24-inch pile will require about five blows of an impact hammer to confirm that piles are set into bedrock for a maximum time expected of 1 minute of impact hammering per pile (88 piles × 1 minute/per pile = 88 minutes). Vibratory driving will be necessary for an estimated maximum of 75 hours and down-hole drilling will require a maximum of 550 hours. Vibratory driving and down-hole drilling do not have significant potential to cause injury to marine mammals due to the relatively low source levels produced and the lack of potentially injurious source characteristics. The likelihood that marine mammal detection ability by trained observers is high under the environmental conditions described for the reconstruction of the Pier 1 Kodiak Ferry Terminal and Dock further enables the implementation of shutdowns to limit injury, serious injury, or mortality.

    The DOT&PF's proposed activities are localized and of short duration. The entire project area is limited to the Pier 1 area and its immediate surroundings. Actions covered under the Authorization would include extracting 196 13-inch timber piles, 14 16-inch steel piles, installing 88 temporary steel or H-piles, extracting those 88 piles, installing 88 24-inch steel piles, 10 18-inch steel piles and 8 16-inch timber piles.

    These localized and short-term noise exposures may cause auditory injury to a small number of Steller sea lions, as well as short-term behavioral modifications in killer whales, Steller sea lions, harbor porpoises, and harbor seals. Moreover, the proposed mitigation and monitoring measures are expected to reduce the likelihood of injury and behavior exposures. Additionally, no important feeding and/or reproductive areas for marine mammals are known to be near the proposed action area. Therefore, the take resulting from the proposed project is not reasonably expected to and is not reasonably likely to adversely affect the marine mammal species or stocks through effects on annual rates of recruitment or survival.

    The project also is not expected to have significant adverse effects on affected marine mammals' habitat, including Steller sea lion critical habitat. The project activities would not modify existing marine mammal habitat. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.

    Effects on individuals that are taken by Level A harassment may include permanent threshold shift. However, the possibility exists that some of the sea lions frequenting the Kodiak harbor area are already hearing-impaired or deaf (Wynne 2014). Fishermen have been known to protect their gear and catches by using “seal bombs” in an effort to disperse sea lions away from fishing gear. Sound levels produced by seal bombs are well above levels that are known to cause Temporary Threshold Shift (TTS, temporary loss of hearing) and Permanent Threshold Shift (PTS, partial or full loss of hearing) in marine mammals (Wynne 2014). The use of seal bombs requires appropriate permits from the Bureau of Alcohol, Tobacco, Firearms and Explosives. Seal bombs may be used as long as such use does not result in mortality or serious injury of a marine mammal; however, seal bombs should not be used on any ESA-listed species (Laws 2015). Although no studies have been published that document hearing-impaired sea lions in the area, this possibility is important to note as it pertains to mitigation measures that will be effective for this project.

    Sea lions in the Kodiak harbor area are habituated to fishing vessels and are skilled at gaining access to fish. It is likely that some of the same animals follow local vessels to the nearby fishing grounds and back to town. It is also likely that hearing-impaired or deaf sea lions are among the sea lions that attend the seafood processing facility adjacent to the Pier 1 construction site. It is not known how a hearing-impaired or deaf sea lion would respond to typical mitigation efforts at a construction site such as ramping up of pile-driving equipment. It is also unknown whether a hearing-impaired or deaf sea lion would avoid pile-driving activity, or whether such an animal might approach closely, even within the Level A harassment zone, without responding to or being impacted by the noise level. If it is observed that some sea lions found within the Level A harassment zone do not respond to mitigation efforts, these animals may have previously suffered injury in the form of PTS. Therefore, any additional auditory injury associated with the Pier 1 project would be unlikely.

    Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g., Thorson and Reyff, 2006; Lerma, 2014). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. In response to vibratory driving, pinnipeds (which may become somewhat habituated to human activity in industrial or urban waterways) have been observed to orient towards and sometimes move towards the sound. The pile extraction and driving activities analyzed here are similar to, or less impactful than, numerous construction activities conducted in other similar locations, which have taken place with no reported injuries or mortality to marine mammals, and no known long-term adverse consequences from behavioral harassment. Repeated exposures of individuals to levels of sound that may cause Level B harassment are unlikely to result in hearing impairment or to significantly disrupt foraging behavior. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in fitness for the affected individuals, and thus would not result in any adverse impact to the stock as a whole.

    In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of non-auditory injury, serious injury, or mortality may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior and; (3) the presumed efficacy of the proposed mitigation measures in reducing the effects of the specified activity to the level of least practicable impact. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. The specified activity is not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the DOT&PF's reconstruction of the Pier 1 Kodiak Ferry Terminal and Dock will have a negligible impact on the affected marine mammal species or stocks.

    Small Numbers Analysis

    Table 7 demonstrates the number of animals that could be exposed to received noise levels that could cause Level A and Level B behavioral harassment for the proposed work at the Pier 1 project site. The analyses provided above represents between <0.01%-8.1% of the populations of these stocks that could be affected by harassment. The numbers of animals authorized to be taken for all species would be considered small relative to the relevant stocks or populations even if each estimated taking occurred to a new individual—an extremely unlikely scenario. For pinnipeds, especially Steller sea lions, occurring in the vicinity of Pier 1 there will almost certainly be some overlap in individuals present day-to-day, and these takes are likely to occur only within some small portion of the overall regional stock.

    Table 7—Estimated Numbers and Percentage of Stock That May Be Exposed to Level A and B Harassment Species Proposed
  • authorized
  • takes
  • Stock(s)
  • abundance
  • estimate
  • Percentage of total stock
    Killer Whale (Orcinus orca); Eastern N. Pacific, Gulf of Alaska, Aleutian Islands, and Bering Seat Transient Stock 48 587 8.1% Harbor Porpoise (Phocoena phocoena); Gulf of Alaska Stock 40 31,046 <0.01% Steller Sea Lion (Eumetopias jubatus); wDPS Stock * 3,290 52,200 6.3 Harbor Seal (Phoca vitulina richardii); South Kodiak Stock 40 11,117 <0.01% * (Includes 3,260 Level B and 30 Level A takes).

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, which are expected to reduce the number of marine mammals potentially affected by the proposed action, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

    Impact on Availability of Affected Species for Taking for Subsistence Uses

    Alaska Natives have traditionally harvested subsistence resources in the Kodiak area for many hundreds of years, particularly Steller sea lions and harbor seals. No traditional subsistence hunting areas are within the project vicinity, however; the nearest haulouts for Steller sea lions and harbor seals are the Long Island and Cape Chiniak haul-outs and the Marmot Island rookery, many miles away. These locations are respectively 4, 12 and 30 nautical miles distant from the project area. Since all project activities will take place within the immediate vicinity of the Pier 1 site, the project will not have an adverse impact on the availability of marine mammals for subsistence use at locations farther away. No disturbance or displacement of sea lions or harbor seals from traditional hunting areas by activities associated with the Pier 1 project is expected. No changes to availability of subsistence resources will result from Pier 1 project activities.

    Endangered Species Act (ESA)

    There are two marine mammal species that are listed as endangered under the ESA with confirmed or possible occurrence in the study area: Humpback whale and Southern resident killer whale. For the purposes of this IHA, NMFS determined that take of Southern resident killer whales was highly unlikely given the rare occurrence of these animals in the project area. A similar conclusion was reached for humpback whales. On March 18, 2011, NMFS signed a Biological Opinion concluding that the proposed action is not likely to jeopardize the continued existence of humpback whales and may affect, but is not likely to adversely affect Southern resident killer whales.

    National Environmental Policy Act (NEPA)

    NMFS is also preparing an Environmental Assessment (EA) in accordance with the National Environmental Policy Act (NEPA) and will consider comments submitted in response to this notice as part of that process. The EA will be posted at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm once it is finalized.

    Proposed Incidental Harassment Authorization

    As a result of these preliminary determinations, we propose to issue an IHA to the DOT&PF for the Pier 1 Kodiak Ferry Terminal and Dock Improvements Project provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.

    1. This Incidental Harassment Authorization (IHA) is valid from September 30, 2015 through September 29, 2016.

    2. This Authorization is valid only for in-water construction work associated with the Pier 1 Kodiak Ferry Terminal and Dock Improvements Project.

    3. General Conditions:

    (a) A copy of this IHA must be in the possession of the DOT&PF, its designees, and work crew personnel operating under the authority of this IHA.

    (b) The species authorized for taking include killer whale (Orcinus orca), Steller sea lion (Eumatopius jubatus), harbor porpoise (Phocoena phocoena), and harbor seal (Phoca vitulina richardii).

    (c) The taking, by Level B harassment only, is limited to the species listed in condition 3(b).

    (d) The taking, by Level A harassment only, is limited Steller sea lions.

    (e) The taking by injury (Level A harassment), serious injury, or death of any of the species listed in condition 3(b) with the exception of Steller sea lions or any taking of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this IHA.

    (f) The DOT&PF shall conduct briefings between construction supervisors and crews, marine mammal monitoring team, and staff prior to the start of all in-water pile driving, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    4. Mitigation Measures

    The holder of this Authorization is required to implement the following mitigation measures:

    (a) Time Restriction: For all in-water pile driving activities, the DOT&PF shall operate only during daylight hours when visual monitoring of marine mammals can be conducted. To minimize impacts to pink salmon (Oncorhynchus gorbuscha) fry and coho salmon (O. kisutch) smolt, all in-water pile extraction and installation is planned to be completed by April 30, 2016. If work cannot be completed by April 30, the DOT&PF must refrain from impact pile installation without a bubble curtain from May 1 through June 30 within the 12-hour period beginning daily at the start of civil dawn. Impact pile installation would be acceptable without a bubble curtain from May 1 through June 30 in the evenings, beginning at 12 hours past civil dawn.

    (b) Establishment of Level B Harassment (ZOI)

    (i) Before the commencement of in-water pile driving activities, the DOT&PF shall establish Level B behavioral harassment ZOI where received underwater sound pressure levels (SPLs) are higher than 120 dB (rms) re 1 µPa for and non-pulse sources (vibratory hammer). The ZOI delineates where Level B harassment would occur. For vibratory driving, the level B harassment area extends out to 1,150. This 1,150-meter distance will serve as a shutdown zone for all other marine mammals not listed in 3(b). During impact driving, the Level B harassment zone shall extend to 225 meters for animals listed in 3(b). This 225-meter distance will serve as a shutdown zone for all other marine mammals not listed in 3(b).

    (c) Establishment of shutdown zone

    (i) For impact pile driving activities, the DOT&PF's will establish a shutdown zone. Shutdown zones are intended to contain the area in which SPLs equal or exceed the 180/190 dB rms acoustic injury criteria, with the purpose being to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing injury of marine mammals. A conservative 4-meter shutdown zone will be in effect for Steller sea lions and harbor seals. The shutdown zone for Level A injury to harbor porpoises and killer whales would be 15 meters.

    (d) The Level A and Level B harassment zones will be monitored throughout the time required to install or extract a pile. If a harbor seal, harbor porpoise, or killer whale is observed entering the Level B harassment zone, a Level B exposure will be recorded and behaviors documented. That pile segment will be completed without cessation, unless the animal approaches the Level A shutdown zone. Pile installation or extraction will be halted immediately before the animal enters the Level A zone.

    (e) Use of Ramp Up/Soft Start

    (i) The project will utilize soft start techniques for all vibratory and impact pile driving. We require the DOT&PF to initiate sound from vibratory hammers for fifteen seconds at reduced energy followed by a 1-minute waiting period, with the procedure repeated two additional times. For impact driving, we require an initial set of three strikes from the impact hammer at reduced energy, followed by a 1-minute waiting period, then two subsequent three strike sets.

    (ii) Soft start will be required at the beginning of each day's pile driving work and at any time following a cessation of pile driving of 20 minutes or longer.

    (iii) If a marine mammal is present within the shutdown zone, ramping up will be delayed until the animal(s) leaves the Level A harassment zone. Activity will begin only after the MMO has determined, through sighting, that the animal(s) has moved outside the Level A harassment zone.

    (iv) If a Steller sea lion, harbor seal, harbor porpoise, or killer whale is present in the Level B harassment zone, ramping up will begin and a Level B take will be documented. Ramping up will occur when these species are in the Level B harassment zone whether they entered the Level B zone from the Level A zone, or from outside the project area.

    (v) If any marine mammal other than Steller sea lions, harbor seals, harbor porpoises, or killer whales is present in the Level B harassment zone, ramping up will be delayed until the animal(s) leaves the zone. Ramping up will begin only after the Wildlife Observer has determined, through sighting, that the animal(s) has moved outside the harassment zone.

    (f) Pile Caps—

    (i) Pile caps will be used during all impact pile-driving activities.

    (g) Standard mitigation measures

    (i) Conduct briefings between construction supervisors and crews, marine mammal monitoring team, and DOT&PF staff prior to the start of all pile driving and extraction activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    (ii) For in-water heavy machinery work other than pile driving (e.g., standard barges, tug boats, barge-mounted excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 10 meters, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions.

    (h) The DOT&PF shall establish monitoring locations as described below.

    5. Monitoring and Reporting

    The holder of this Authorization is required to report all monitoring conducted under the IHA within 90 calendar days of the completion of the marine mammal monitoring

    (a) Visual Marine Mammal Monitoring and Observation

    (i) At least one individual meeting the minimum qualifications identified in Appendix A of the application by the DOT&PF will monitor the shutdown and Level B harassment zones during impact and vibratory pile driving.

    (ii) During pile driving and extraction the shutdown zone, as described in 4(b) will be monitored and maintained. Pile installation or extraction will not commence or will be suspended temporarily if any marine mammals are observed within or approaching the area of potential disturbance.

    (iii) The area within the Level B harassment threshold for pile driving and extraction will be monitored by observers stationed to provide adequate view of the harassment zone. Marine mammal presence within this Level B harassment zone, if any, will be monitored. Pile driving activity will not be stopped if marine mammals are found to be present. Any marine mammal documented within the Level B harassment zone during impact driving would constitute a Level B take (harassment), and will be recorded and reported as such.

    (iv) The individuals will scan the waters within each monitoring zone activity using binoculars (Vector 10X42 or equivalent), spotting scopes (Swarovski 20-60 zoom or equivalent), and visual observation.

    (v) If waters exceed a sea-state which restricts the observers' ability to make observations within the marine mammal buffer zone (the 100 meter radius) (e.g. excessive wind or fog), impact pile installation will cease until conditions allow the resumption of monitoring.

    (vi) The waters will be scanned 30 minutes prior to commencing pile driving at the beginning of each day, and prior to commencing pile driving after any stoppage of 20 minutes or greater. If marine mammals enter or are observed within the designated marine mammal shutdown zone during or 20 minutes prior to impact pile driving, the monitors will notify the on-site construction manager to not begin until the animal has moved outside the designated radius.

    (vii) The waters will continue to be scanned for at least 20 minutes after pile driving has completed each day,

    (b) Data Collection

    (i) Observers are required to use approved data forms. Among other pieces of information, DOT&PF the DOT&PF will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, the DOT&PF will attempt to distinguish between the number of individual animals taken and the number of incidents of take. At a minimum, the following information be collected on the sighting forms:

    1. Date and time that monitored activity begins or ends;

    2. Construction activities occurring during each observation period;

    3. Weather parameters (e.g., percent cover, visibility);

    4. Water conditions (e.g., sea state, tide state);

    5. Species, numbers, and, if possible, sex and age class of marine mammals;

    6. Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

    7. Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

    8. Locations of all marine mammal observations; and

    9. Other human activity in the area.

    (c) Reporting Measures

    (i) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA, such as an injury (Level A harassment to animals other than Steller sea lions), serious injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), the DOT&PF would immediately cease the specified activities and immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Regional Stranding Coordinators. The report would include the following information:

    1. Time, date, and location (latitude/longitude) of the incident;

    2. Name and type of vessel involved;

    3. Vessel's speed during and leading up to the incident;

    4. Description of the incident;

    5. Status of all sound source use in the 24 hours preceding the incident;

    6. Water depth;

    7. Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    8. Description of all marine mammal observations in the 24 hours preceding the incident;

    9. Species identification or description of the animal(s) involved;

    10. Fate of the animal(s); and

    11. Photographs or video footage of the animal(s) (if equipment is available).

    (ii) Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with the DOT&PF to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The DOT&PF would not be able to resume their activities until notified by NMFS via letter, email, or telephone.

    (iii) In the event that the DOT&PF discovers an injured or dead marine mammal, and the lead MMO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), the DOT&PF would immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinators. The report would include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with the DOT&PF to determine whether modifications in the activities are appropriate.

    (iv) In the event that the DOT&PF discovers an injured or dead marine mammal, and the lead MMO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the DOT&PF would report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinator, within 24 hours of the discovery. The DOT&PF would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network.

    6. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals.

    Request for Public Comments

    NMFS requests comment on our analysis, the draft authorization, and any other aspect of the Notice of Proposed IHA for the DOT&PF's Kodiak Ferry Terminal and Dock Improvements Project. Please include with your comments any supporting data or literature citations to help inform our final decision on DOT&PF's request for an MMPA authorization.

    Dated: August 18, 2015. Perry Gayaldo, Deputy Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2015-20828 Filed 8-21-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE127 Pacific Fishery Management Council; Public Meetings AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice of public meetings.

    SUMMARY:

    The Pacific Fishery Management Council (Pacific Council) and its advisory entities will hold an 8-day public meeting to consider actions affecting West Coast fisheries in the exclusive economic zone.

    DATES:

    Advisory entities to the Pacific Council will meet beginning at 8 a.m. Wednesday, September 9, 2015 through Wednesday, September 16, 2015 as listed in the Schedule of Ancillary Meetings. The Pacific Council general session will begin on Friday, September 11, 2015 at 8 a.m., reconvening each day through Wednesday, September 16, 2015. All meetings are open to the public, except a closed session will be held at 8 a.m. on Friday, September 11 to address litigation and personnel matters. The Pacific Council will meet as late as necessary each day to complete its scheduled business.

    ADDRESSES:

    Meetings of the Council and its advisory entities will be held at the Doubletree by Hilton Sacramento, 2001 Point West Way, Sacramento, CA 95815; telephone: (916) 929-8855. Instructions for attending the meeting via live stream broadcast are given under SUPPLEMENTARY INFORMATION, below.

    Council address: Pacific Fishery Management Council, 7700 NE. Ambassador Place, Suite 101, Portland, OR 97220.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Donald O. McIsaac, Executive Director, Pacific Fishery Management Council; telephone: (503) 820-2280 or (866) 806-7204 toll free. Access the Pacific Council Web site, http://www.pcouncil.org/council-operations/council-meetings/current-meeting/ for the current meeting location, proposed agenda, and meeting briefing materials.

    SUPPLEMENTARY INFORMATION: Live Stream Broadcast Friday, September 11, 2015 Through Wednesday, September 16, 2015

    The general session of the Pacific Fishery Management Council will be streamed live on the internet beginning at 9 a.m. Pacific Time (PT) on Friday, September 11, 2015 through Wednesday, September 16, 2015. The broadcast will end daily at 6 p.m. PT or when business for the day is complete. Only the audio portion, and portions of the presentations displayed on the screen at the Council meeting, will be broadcast. The audio portion is listen-only; you will be unable to speak to the Council via the broadcast. Join the meeting by visiting this link http://www.gotomeeting.com/online/webinar/join-webinar, enter the Webinar ID for this meeting, which is 141-257-515, and enter your email address as required. It is recommended that you use a computer headset as GoToMeeting allows you to listen to the meeting using your computer headset and speakers. If you do not have a headset and speakers, you may use your telephone for the audio portion of the meeting by dialing this toll number 1-702-489-0008 (not a toll free number); entering the phone audio access code 418-407-809; and then entering your Audio Pin which will be shown to you after joining the webinar. The webinar is broadcast in listen-only mode.

    Agenda Friday, September 11, 2015 Through Wednesday, September 16, 2015

    The following items are on the Pacific Council agenda, but not necessarily in this order. Agenda items noted as “(Final Action)” refer to actions requiring the Council to transmit a proposed fishery management plan, proposed plan amendment, or proposed regulations to the Secretary of Commerce, under Sections 304 or 305 of the Magnuson-Stevens Fishery Conservation and Management Act. Additional detail on agenda items, Council action, and meeting rooms, is described in Agenda Item A.5, Proposed Council Meeting Agenda, and will be in the advance September 2015 briefing materials and posted on the Council Web site http://www.pcouncil.org/council-operations/council-meetings/current-briefing-book/.

    A. Call to Order 1. Opening Remarks 2. Council Member Appointments 3. Roll Call 4. Executive Director's Report 5. Approve Agenda B. Open Comment Period 1. Comments on Non-Agenda Items C. Administrative Matters 1. Update on Council Coordination Committee Meeting 2. Legislative Matters 3. Approval of Council Meeting Record 4. Membership Appointments and Council Operating Procedures 5. Future Council Meeting Agenda and Workload Planning D. Ecosystem Management 1. Fishery Ecosystem Plan Initiative Scoping 2. Unmanaged Forage Fish Regulations (Final Action) E. Salmon Management 1. Salmon Methodology Review 2. Sacramento River Winter Chinook Update F. Habitat 1. Current Habitat Issue G. Highly Migratory Species Management 1. Update on International Issues 2. Swordfish Management and Monitoring Plan Hardcaps (Final Action) 3. Scoping of Amendment 4 to the Fishery Management Plan: Authorizing a Shallow-Set Longline Fishery Outside of the EEZ H. Groundfish Management 1. Mid-Water Recreational Fishing Regulations 2. Consideration of Gear Regulations for the Trawl Catch Shares Sector 3. Final Stock Assessments 4. Electronic Monitoring Regulations and Exempted Fishing Permit Update 5. Specifications Process for 2017-2018 Management (Final Action) 6. Salmon Endangered Species Act Reinitiation of Consultation Workshop Report 7. Blackgill-Slope Rockfish Intersector Allocation and Accumulation Limit Adjustments 8. Amendment To Modify Groundfish Essential Fish Habitat and To Adjust Rockfish Conservations Areas 9. Inseason Adjustments (Final Action) 10. Groundfish Management Science Improvements and Methodology Review Topics I. Pacific Halibut Management 1. 2016 Catch Sharing Plan and Annual Regulation Changes Advisory Body Agendas

    Advisory body agendas will include discussions of relevant issues that are on the Council agenda for this meeting, and may also include issues that may be relevant to future Council meetings. Proposed advisory body agendas for this meeting will be available on the Council Web site http://www.pcouncil.org/council-operations/council-meetings/current-briefing-book/ prior to their meeting date.

    Schedule of Ancillary Meetings Day 1, Wednesday, September 9, 2015 Scientific and Statistical Committee Ecosystem Subcommittee 8 a.m. Day 2, Thursday, September 10, 2015 Ecosystem Advisory Subpanel 8 a.m. Ecosystem Workgroup 8 a.m. Groundfish Management Team 8 a.m. Scientific and Statistical Committee 8 a.m. Habitat Committee  8:30 a.m. Legislative Committee 1 p.m. Budget Committee 2:30 p.m. Day 3, Friday, September 11, 2015 Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Highly Migratory Species Advisory Subpanel 8 a.m. Highly Migratory Species Management Team 8 a.m. Scientific and Statistical Committee 8 a.m. Enforcement Consultants 8 a.m. Chairman's Reception 6 p.m. Day 4, Saturday, September 13, 2015 Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Highly Migratory Species Advisory Subpanel 8 a.m. Highly Migratory Species Management Team 8 a.m. Enforcement Consultants Ad hoc Stock Assessment Briefing 7 p.m. Day 5, Sunday, September 13, 2015 Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Enforcement Consultants Ad hoc Day 6, Monday, September 14, 2015 Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Enforcement Consultants Ad hoc Day 7, Tuesday, September 15, 2015 Groundfish Advisory Subpanel 8 a.m. Groundfish Management Team 8 a.m. Enforcement Consultants Ad hoc

    Although non-emergency issues not contained in this agenda may come before this Council for discussion, those issues may not be the subject of formal Council action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take final action to address the emergency.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kristopher Kleinschmidt at least 5 days prior to the meeting date by telephone (503) 820-2280; at the Council office (see ADDRESSES); or by email at [email protected]

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: August 18, 2015. Emily H. Menashes, Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-20830 Filed 8-21-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE128 Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The Mid-Atlantic Fishery Management Council's (Council) Ecosystem and Ocean Planning Advisory Panel (AP) will hold a public meeting.

    DATES:

    The meeting will be held on Wednesday, Sept. 9, 2015, from 10 a.m. to 5 p.m. For agenda details, see SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    The meeting will be held at the Double Tree by Hilton Baltimore—BWI Airport, 890 Elkridge Landing Road, Linthicum, Maryland, 21090; telephone: (410) 859-8400.

    Council address: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 674-2331 or on their Web site at www.mafmc.org.

    FOR FURTHER INFORMATION CONTACT:

    Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.

    SUPPLEMENTARY INFORMATION:

    The MAFMC's Ecosystem and Ocean Planning Advisory Panel (AP) will meet to provide input to the Council on the development of written Council policy on non-fishing activities that impact fish habitat. The development of written policy on these activities will allow the Council to comment more quickly on proposed activities and projects, and enable the Council to work more effectively in addressing fish habitat and ecosystem issues in our region.

    Special Accommodations

    The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.

    Dated: August 19, 2015. Emily H. Menashes, Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-20831 Filed 8-21-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration [Docket No. 130718637-5699-02] RIN 0648-XC775 Endangered and Threatened Wildlife and Plants; Notice of 12-Month Finding on a Petition To List the Orange Clownfish as Threatened or Endangered Under the Endangered Species Act AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice of 12-month finding and availability of a status review report.

    SUMMARY:

    We, NMFS, announce a 12-month finding and listing determination on a petition to list the orange clownfish (Amphiprion percula) as threatened or endangered under the Endangered Species Act (ESA). We have completed a comprehensive status review under the ESA for the orange clownfish and we determined that, based on the best scientific and commercial data available, the orange clownfish does not warrant listing under the ESA. We conclude that the orange clownfish is not currently in danger of extinction throughout all or a significant portion of its range and is not likely to become so within the foreseeable future.

    DATES:

    The finding announced in this notice was made on August 24, 2015.

    ADDRESSES:

    You can obtain the petition, status review report, 12-month finding, and the list of references electronically on our NMFS Web site at: http://www.fpir.noaa.gov/PRD/prd_reef_fish.html.

    FOR FURTHER INFORMATION CONTACT:

    Krista Graham, NMFS, Pacific Islands Regional Office, (808) 725-5152; or Kimberly Maison, NMFS, Pacific Islands Regional Office, (808) 725-5143; or Chelsey Young, NMFS, Office of Protected Resources, (301) 427-8491.

    SUPPLEMENTARY INFORMATION: Background

    On September 14, 2012, we received a petition from the Center for Biological Diversity (Center for Biological Diversity, 2012) to list eight species of pomacentrid reef fish as threatened or endangered under the ESA and to designate critical habitat for these species concurrent with the listing. The species are the orange clownfish (Amphiprion percula) and seven other damselfishes: The yellowtail damselfish (Microspathodon chrysurus), Hawaiian dascyllus (Dascyllus albisella), blue-eyed damselfish (Plectroglyphidodon johnstonianus), black-axil chromis (Chromis atripectoralis), blue-green damselfish (Chromis viridis), reticulated damselfish (Dascyllus reticulatus), and blackbar devil or Dick's damselfish (Plectroglyphidodon dickii). Given the geographic ranges of these species, we divided our initial response to the petition between our Pacific Islands Regional Office (PIRO) and Southeast Regional Office (SERO). PIRO led the response for the seven Indo-Pacific species. On September 3, 2014, PIRO published a positive 90-day finding (79 FR 52276) for the orange clownfish announcing that the petition presented substantial scientific or commercial information indicating the petitioned action of listing the orange clownfish may be warranted and explained the basis for that finding. We also announced a negative 90-day finding for the six Indo-Pacific damselfishes: The Hawaiian dascyllus, blue-eyed damselfish, black-axil chromis, blue-green damselfish, reticulated damselfish, and blackbar devil or Dick's damselfish. SERO led the response to the petition to list the yellowtail damselfish and, on February 18, 2015, announced a negative 90-day finding for that species (80 FR 8619).

    In our positive 90-day finding for the orange clownfish, we also announced the initiation of a status review of the species, as required by section 4(b)(3)(A) of the ESA, and requested information to inform the agency's decision on whether the species warranted listing as endangered or threatened under the ESA.

    We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we first consider whether a group of organisms constitutes a “species” under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” On February 7, 1996, NMFS and the U.S. Fish and Wildlife Service (USFWS; together, the Services) adopted a policy describing what constitutes a distinct population segment (DPS) of a taxonomic species (the DPS Policy; 61 FR 4722). The DPS Policy identifies two elements that must be considered when identifying a DPS: (1) The discreteness of the population segment in relation to the remainder of the species (or subspecies) to which it belongs; and (2) the significance of the population segment to the remainder of the species (or subspecies) to which it belongs. As stated in the DPS Policy, Congress expressed its expectation that the Services would exercise authority with regard to DPSs sparingly and only when the biological evidence indicates such action is warranted. Based on the scientific information available, we determined that the orange clownfish (Amphiprion percula) is a “species” under the ESA. There is nothing in the scientific literature indicating that this species should be further divided into subspecies or DPSs.

    Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently at risk of extinction, but is likely to become so in the foreseeable future. In other words, the primary statutory difference between an endangered and threatened species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

    When we consider whether a species might qualify as threatened under the ESA, we must consider the meaning of the term “foreseeable future.” It is appropriate to interpret “foreseeable future” as the horizon over which predictions about the conservation status of the species can be reasonably relied upon. The foreseeable future considers the life history of the species, habitat characteristics, availability of data, particular threats, ability to predict threats, and the reliability to forecast the effects of these threats and future events on the status of the species under consideration. Because a species may be susceptible to a variety of threats for which different data are available, or which operate across different time scales, the foreseeable future is not necessarily reducible to a particular number of years. In determining an appropriate “foreseeable future” timeframe for the orange clownfish, we considered the generation length of the species and the estimated life span of the species. Generation length, which reflects turnover of breeding individuals and accounts for non-breeding older individuals, is greater than first age of breeding but lower than the oldest breeding individual (IUCN 2015) (i.e., the age at which half of total reproductive output is achieved by an individual). For the orange clownfish, we estimated this to range between 6 and 15 years. We concluded that two to three generation lengths of the species comports with the estimated lifespan of approximately 30 years for the orange clownfish (Buston and Garcia, 2007). Therefore, we conservatively define the foreseeable future for the orange clownfish as approximately 30 years from the present.

    On July 1, 2014, NMFS and USFWS published a policy to clarify the interpretation of the phrase “significant portion of its range” (SPR) in the ESA definitions of “threatened” and “endangered” (the SPR Policy; 79 FR 37578). Under this policy, the phrase “significant portion of its range” provides an independent basis for listing a species under the ESA. In other words, a species would qualify for listing if it is determined to be endangered or threatened throughout all of its range or if it is determined to be endangered or threatened throughout a significant portion of its range. The policy consists of the following four components:

    (1) If a species is found to be endangered or threatened in only an SPR, the entire species is listed as endangered or threatened, respectively, and the ESA's protections apply across the species' entire range.

    (2) A portion of the range of a species is “significant” if the species is not endangered or threatened throughout its range, and its contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction or likely to become so in the foreseeable future, throughout all of its range.

    (3) The range of a species is considered to be the general geographical area within which that species can be found at the time USFWS or NMFS makes any particular status determination. This range includes those areas used throughout all or part of the species' life cycle, even if they are not used regularly (e.g., seasonal habitats). Lost historical range is relevant to the analysis of the status of the species, but it cannot constitute an SPR.

    (4) If a species is not endangered or threatened throughout all of its range but is endangered or threatened within an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

    We considered this policy in evaluating whether to list the orange clownfish as endangered or threatened under the ESA.

    Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one of the following five threat factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any state or foreign nation to protect the species.

    In assessing extinction risk of this species, we considered the demographic viability factors developed by McElhany et al. (2000) and the risk matrix approach developed by Wainwright and Kope (1999) to organize and summarize extinction risk considerations. The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews (see http://www.nmfs.noaa.gov/pr/species for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four demographic viability factors: Abundance, growth rate/productivity, spatial structure/connectivity, and diversity. These viability factors reflect concepts that are well founded in conservation biology and that individually and collectively provide strong indicators of extinction risk.

    Scientific conclusions about the overall risk of extinction faced by the orange clownfish under present conditions and in the foreseeable future are based on our evaluation of the species' demographic risks and section 4(a)(1) threat factors. Our assessment of overall extinction risk considered the likelihood and contribution of each particular factor, synergies among contributing factors, and the cumulative effects of all demographic risks and threats to the species.

    NMFS PIRO staff conducted the status review for the orange clownfish. In order to complete the status review, we compiled information on the species' biology, demography, ecology, life history, threats, and conservation status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. We also considered information submitted by the public in response to our petition findings. A draft status review report was then submitted to three independent peer reviewers; comments and information received from peer reviewers were addressed and incorporated as appropriate before finalizing the draft report. The orange clownfish status review report is available on our Web site (see ADDRESSES section). Below we summarize information from this report and the status of the species.

    Status Review Species Description

    The orange clownfish, A. percula, is a member of the Family Pomacentridae. Two genera within the Family contain 28 species of clownfish (also known as anemonefish). The number of recognized clownfish species has evolved over time due to inconsistent recognition of natural hybrids and geographic color variants of previously described species as separate species in the literature (Allen, 1991; Fautin and Allen, 1992, 1997; Buston and Garcia, 2007; Ollerton et al., 2007; Allen et al., 2008; Thornhill, 2012; Litsios et al., 2014; and Tao et al., 2014). All clownfish have a mutualistic relationship with sea anemones and this relationship has facilitated the adaptive radiation and accelerated speciation of clownfish species (Litsios et al., 2012).

    Amphiprion percula is known by many common English names. These names include orange clownfish, clown anemonefish, percula clownfish, percula anemonefish, orange anemonefish, true percula clownfish, blackfinned clownfish, eastern clownfish, eastern clown anemonefish, and orange-clown anemonefish.

    The orange clownfish is bright orange with three thick white vertical bars. The anterior bar occurs just behind the eye, the middle bar bisects the fish and has a forward-projecting bulge, and the posterior bar occurs near the caudal fin. The white bars have a black border that varies in width. Although this describes the type specimen, some polymorphism, or occurrence of more than one form or morph, does occur with diverse geographic regional and local color forms, mostly in the form of variation in the width of the black margin along the white bars (Timm et al., 2008; Militz, 2015). While there is no difference in color pattern between sexes, dimorphic variation, or differentiation between males and females of the same species, is present in size as females are larger than males (Fautin and Allen, 1992, 1997; Florida Museum of Natural History, 2005). Maximum length for this species is approximately 80 millimeters (mm) (Fautin and Allen, 1992, 1997), but individuals up to 110 mm in length have been reported (Florida Museum of Natural History, 2005). Standard length is reported as 46 mm for females and 36 mm for males (Florida Museum of Natural History, 2005). However, size alone cannot be used to identify the sex of an individual because individuals in different groups will vary in maximum and minimum size. The total length of a fish has been correlated with the diameter of its host anemone (Fautin, 1992), with larger anemones hosting larger clownfish.

    The orange clownfish very closely resembles the false percula clownfish (A. ocellaris), and the two are considered sibling species. There are several morphological differences that may allow an observer, upon closer examination, to distinguish between the two species. While the orange clownfish has 9-10 dorsal spines, the false percula clownfish has 10-11 dorsal spines (Timm et al., 2008), and the anterior part of the orange clownfish's dorsal fin is shorter than that of the false percula clownfish. In addition, the orange clownfish has a thick black margin around its white bars whereas the false percula clownfish often has a thin or even non-existent black margin, though this is not always the case. The orange clownfish has been described as more brilliant in color, and its orange iris gives the appearance of very small eyes while the iris of false percula clownfish is grayish-orange, thus giving the appearance of slightly larger eyes (Florida Museum of Natural History, 2005). Ecologically, both species prefer the same primary host anemone species (Heteractis magnifica; Stichodactyla gigantean; S. mertensii) (Fautin and Allen, 1992, 1997), though the orange clownfish prefers shallower waters than those of false percula clownfish (Timm et al., 2008).

    The orange clownfish and the false percula clownfish have an allopatric distribution, meaning their distributions do not overlap. The orange clownfish is found in the Indo-Pacific region of northern Queensland (Australia) and Melanesia; the false percula is found in the Andaman and Nicobar Islands in the Andaman Sea (east of India), Indo-Malayan Archipelago, Philippines, northwestern Australia, and the coast of Southeast Asia northwards to the Ryukyu Islands in the East China Sea (Fautin and Allen, 1992, 1997; Timm et al., 2008). Genetically, the two species appear to have diverged between 1.9 and 5 million years ago (Nelson et al., 2000; Timm et al., 2008; Litsios et al., 2012).

    In the aquarium trade, the false percula clownfish is the most popular anemonefish and the orange clownfish is the second most popular (Animal-World, 2015). The two species are often mistaken for one another and misidentified in the aquarium trade. They are also often reported as a species complex (i.e., reported as A. ocellaris/percula) in trade documentation and scientific research due to the difficulty in visually distinguishing between the two species.

    Habitat

    The orange clownfish is described as a habitat specialist due to its symbiotic association primarily with three species of anemone: Heteractis crispa, H. magnifica, and Stichodactyla gigantea (Fautin and Allen, 1992, 1997; Elliott and Mariscal, 1997a; Ollerton et al., 2007), although the species has also been reported as associating with the anemones S. mertensii (Elliott and Mariscal, 2001) and S. haddoni (Planes et al., 2009). The distribution of these suitable host anemone species essentially dictates the distribution of the orange clownfish within its habitat (Elliott and Mariscal, 2001). Anemone habitat for the orange clownfish, and thus the range of the orange clownfish, is spread throughout northern Queensland (Australia), the northern coast of West Papua (Indonesia), northern Papua New Guinea (including New Britain), the Solomon Islands, and Vanuatu (Rosenberg and Cruz, 1988; Fautin and Allen, 1992, 1997; De Brauwer, 2014).

    Anemones and their symbiotic anemonefish inhabit coral reefs and nearby habitats such as lagoons and seagrass beds. Although Fautin and Allen (1992, 1997) estimate that as many anemone hosts and symbiotic fish live on sand flats or other substrate surrounding reefs as live on the reef itself, the symbiotic pairs are thought of as reef dwellers because most diving and observations occur on reefs. Both symbionts reside in shallow coastal waters primarily in depths of 1-12 meters (m) (though the anemones can be found in depths up to 50 m) and water temperatures ranging from 25-28 °C (77-82 °F) (Fautin and Allen, 1992, 1997; Randall et al. 1997).

    Although anemonefishes have been the subject of considerable scientific research, less is known about the population dynamics or biology of the anemones that serve as their hosts. There are over 1,000 anemone species but only 10 of them are known to be associated with anemonefish. Anemones are able to reproduce both sexually and asexually, but it is unknown which form of reproduction is more common. Anemones are likely slow growing and very long lived, living decades to several centuries (Fautin, 1991; Fautin and Allen, 1992, 1997). To be a viable host for anemonefish, an anemone must be of a sufficient size to provide shelter and protection from predators.

    Clownfishes, including the orange clownfish, are a unique group of fishes that can live unharmed among the stinging tentacles of anemones. A thick mucus layer cloaks the fish from detection and response by anemone tentacles (Rosenberg and Cruz, 1988; Elliott and Mariscal, 1997a, 1997b). The symbiosis between the orange clownfish and its host anemones serves as an effective anti-predation measure for both symbionts. Predators of both anemones and anemonefish are deterred by the anemone's stinging tentacles and by the presence of territorial clownfish. In return, anemonefish swim through, and create fresh water circulation for, the stationary anemone, allowing it to access more oxygenated water, speed up its metabolism, and grow faster (Szczebak et al., 2013). Anemonefish also fertilize host anemones with their ammonia-rich waste (Roopin and Chadwick, 2009; Cleveland et al., 2011), leading to increases in anemone growth and asexual reproduction (Holbrook and Schmitt, 2005).

    Typically only one species of anemonefish occupies a single anemone at any given time due to niche differentiation, although this is not always the case. The orange clownfish is a highly territorial species, likely due to intense competition for limited resources, with niche differentiation caused by the distribution, abundance, and recruitment patterns of competing species (Fautin and Allen, 1992, 1997; Elliott and Mariscal, 1997a, 2001; Randall et al., 1997). Once anemonefishes settle into a host, they are unlikely to migrate between anemones (Mariscal, 1970; Elliott et al., 1995).

    Diet, Feeding, and Growth

    Anemonefishes are omnivorous and feed on a variety of prey items consisting of planktonic algae and zooplankton, such as copepods and larval tunicates (Fautin and Allen, 1992, 1997). The orange clownfish also feeds on prey remnants left over from its host anemone's feeding activity as well as dead tentacles