Federal Register Vol. 80, No.163,

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.

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.

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.

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.

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

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.

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

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

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

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

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.

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.

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

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

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.

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

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.

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:

• 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

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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

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.

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).

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.

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.

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).

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).

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.

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.

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

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.

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

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.

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.”).

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.

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.

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.

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.

The following table of contents describes the format for the SUPPLEMENTARY INFORMATION section:

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Section 108(f) of the RSIA required the Secretary to—

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.

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.

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.