Federal Register Vol. 80, No.31,

Electronic Access and Filing

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Section 150 of title 23, U.S.C., identifies the national transportation goals and requires the Secretary by rule to establish performance measures in specified Federal-aid highway program areas. On January 5, 2015, FHWA published in the Federal Register an NPRM proposing to establish measures for State Departments of Transportation (State DOTs) to use to carry out the National Highway Performance Program (NHPP) and to assess the condition of the following: pavements on the National Highway System (NHS) (excluding the Interstate System), bridges on the NHS, and pavements on the Interstate System. The NHPP is a core Federal-aid highway program that provides support for the condition and performance of the NHS and the construction of new facilities on the NHS, and ensures that investments of Federal-aid funds in highway construction are directed to support progress toward the achievement of performance targets established in a State's asset management plan for the NHS. The NPRM proposed regulations for the new performance aspects of the NHPP, which address: measures, targets, and reporting.

The original comment period for the NPRM closes on April 6, 2015. The AASHTO and the Oregon DOT have expressed concern that this closing date does not provide sufficient time to review and provide comprehensive comments on the proposal. The FHWA recognizes that others interested in commenting may have similar concerns and agrees that the comment period should be extended. To allow time for this organization and others to submit comprehensive comments, the closing date is changed from April 6, 2015, to May 8, 2015.

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

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

On December 29, 2014, CARB submitted an amended rule, SCAQMD Rule 1325: Federal PM 2.5 New Source Review Program to EPA for approval as a revision to the SCAQMD portion of the California SIP.

On January 30, 2015, CARB's December 29, 2014 submittal of Rule 1325 was deemed to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. The submittal includes evidence of public notice and adoption of the regulation. Our technical support document (TSD) provides additional background information on our evaluation of Rule 1325.

SCAQMD Rule 1325 addresses Nonattainment New Source Review (NNSR) permit requirements for major sources of PM2.5. The NNSR requirements under part D of the CAA apply to “major stationary sources” and “major modifications” as those terms are defined in 40 CFR part 51.165(a)(1)(iv) and (v). The purpose of this proposed rulemaking is to present our evaluation under the CAA and EPA's regulations. We provide our reasoning in general terms below but provide a more detailed analysis in our TSD, which is available in the docket for this proposed rulemaking.

Part D of title I of the Act contains the requirements for areas designated “nonattainment” for any of the national ambient air quality standards (NAAQS). Part D requires pre-construction permit programs for certain new or modified stationary sources located in nonattainment areas. 42 U.S.C. 7502(c)(5).

On July 18, 1997, EPA established 24-hour and annual NAAQS for PM2.5 (62 FR 38652). On January 5, 2005 (70 FR 944), EPA designated portions of the South Coast Air Basin as nonattainment for the 1997 24-hour and annual PM2.5 standards (40 CFR 81.305). On December 9, 2014, EPA proposed to find that the South Coast Air Basin had attained the 1997 24-hour and annual PM2.5 NAAQS (79 FR 72999).

EPA has revised the NAAQS for PM2.5 on two occasions since the 1997 promulgation. On October 17, 2006, the 24-hour PM2.5 primary standard was strengthened (71 FR 61144) and on January 15, 2013, the annual primary standard for PM2.5 was strengthened (78 FR 3086). On November 13, 2009, EPA designated the South Coast Air Basin as nonattainment for the 2006 24-hour PM2.5 standard (74 FR 58688). On February 13, 2013, SCAQMD submitted a plan to provide for attainment of the 2006 24-hour PM2.5 standard in the South Coast Air Basin.

Following promulgation of the PM2.5 standards, EPA issued two guidance documents pertaining to the regulation of PM2.5 emissions. The first document issued in 1997 (Seitz Memo) stated that sources were allowed to use implementation of a PM10 permit program as a surrogate for meeting PM2.5 PSD requirements until certain technical difficulties were resolved, primarily the lack of necessary tools to calculate the emissions of PM2.5 and related precursors, the lack of adequate modeling techniques to project ambient impacts, and the lack of PM2.5 monitoring sites.1 The second document (Page Memo) was issued in 2005 on the same date that the 1997 PM2.5 designations became effective and provided guidance on the implementation of the NNSR provisions in PM2.5 nonattainment areas for an interim period between the effective date of the designations (April 5, 2005) and the promulgation date of final NNSR regulations.2 As reflected in the Page Memo, States were allowed to use their existing PM10 NNSR program as a surrogate to address the requirements of a NNSR program for PM2.5. Therefore, districts such as the SCAQMD, which have a SIP approved NNSR program for PM10, were not required to submit a NNSR rule for emissions of PM2.5 at that time.

On May 16, 2008, EPA published its final rule pertaining to PM2.5 implementation requirements entitled “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5)” (the 2008 NSR PM2.5 Rule),3 which promulgated NSR requirements for implementation of PM2.5 in both nonattainment areas (NNSR) and attainment/unclassifiable areas (PSD). With respect to NNSR, this 2008 final rule established the major source threshold, significant emissions rate, offset ratios for PM2.5, interpollutant offset trading requirements, and applicability of NNSR to PM2.5 precursors. Promulgation of the 2008 PM2.5 NNSR Rule ended application of the PM10 surrogacy policy under the Page Memo for NNSR permitting. Because it takes time for a local permitting agency to revise its rules to include all of the new NNSR program requirements, EPA's regulations provide in 40 CFR 52.24(k) that the Emission Offset Interpretative Ruling, contained in 40 CFR part 51, Appendix S shall govern applications for permits to construct and operate during the period between the date of designation as nonattainment and the date a NNSR permitting program meeting the requirements of part D of the CAA is approved into the SIP.4 The 2008 NSR PM2.5 Rule therefore codified revisions to Appendix S for states that lacked a NNSR program covering PM2.5. Therefore, new and modified major sources of PM2.5 emissions locating in SCAQMD are subject to the provisions of Appendix S until our final approval of Rule 1325, which SCAQMD adopted to implement the requirements of EPA's 2008 PM2.5 NSR implementation rule. Once approved into the SIP, Rule 1325 will replace the current Appendix S PM2.5 New Source Review requirements.

On January 4, 2013, the U.S. Court of Appeals for the District of Columbia Circuit, in Natural Resources Defense Council v. EPA, 5 issued a decision that remanded the EPA's 2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The court found that EPA erred in implementing the PM2.5 NAAQS in these rules solely pursuant to the general implementation provisions of subpart 1 of part D of title I of the CAA, rather than pursuant to the additional implementation provisions specific to particulate matter nonattainment areas in subpart 4. The court ordered the EPA to “repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” 706 F.3d 428, 437. On June 2, 2014, EPA finalized a rule that provides a response, in part, to the NRDC v. EPA remand.6 The rule initially classifies all nonattainment areas as moderate and sets a deadline of December 31, 2014, for states to submit “remaining required SIP submissions for [nonattainment] areas, pursuant to and considering the application of subpart 4”. Under subpart 4, the only additional requirement for a NNSR program is to ensure all control requirements applicable to PM2.5 major sources also apply to PM2.5 precursors, except where the Administrator determines that such sources do not contribute significantly to PM2.5 levels which exceed the standard in the area. (CAA section 189(e))

The SCAQMD's current NNSR program for emissions of pollutants other than PM2.5 regulates new and modified stationary sources of emissions through a series of rules in its Regulation XIII. The rules contained in Regulation XIII prescribe pre-construction review requirements for new and modified facilities, to ensure that the facility operations do not interfere with progress towards attaining ambient air quality standards. With the adoption of Rule 1325, SCAQMD provides a rule intended to specifically regulate PM2.5 emissions in accordance with requirements of 40 CFR 51.165 and the CAA.

EPA reviewed Rule 1325: Federal PM2.5 New Source Review Program for compliance with: (1) The CAA requirements for SIPs in general as set forth in CAA section 110(a)(2); (2) the requirements related to SIP revisions in CAA sections 110(l) 7 and 193; (3) the requirements for stationary source preconstruction permitting programs in CAA section 173(a) through (c) of subpart 1 and section 189 of subpart 4; (4) requirements related to the review and modification of major sources in 40 CFR part 51.165.

With respect to procedural requirements, CAA sections 110(a)(2) and 110(l) 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 V. These requirements include publication of notices, by prominent advertisement in the relevant geographic area, a public hearing or notice of an opportunity for a public hearing on the proposed revisions, and a public comment period of at least 30 days.

Based on our review of the public process documentation included in the December 29, 2014 submittal, we find that SCAQMD has provided sufficient evidence of public notice and opportunity for comment and a public hearing prior to adoption and submittal of these rules to EPA.

For Section 193 of the Act, which was added by the Clean Air Act Amendments of 1990, that provision includes a savings clause providing in pertinent part: “No control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before November 15, 1990, in any area which is a nonattainment area for any air pollutant may be modified after November 15, 1990, in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant.” Since PM2.5 is a new NAAQS, there are no existing PM2.5 control requirements that would be subject to the provisions of Section 193 of the CAA. Therefore, for the purposes of our analysis of Rule 1325, we find that Section 193 of the CAA does not apply to this action.

Rule 1325 includes revisions to SCAQMD's NNSR program consistent with CAA sections 173 and 189, and 40 CFR 51.165. Specifically, Rule 1325 includes the PM2.5 emission rates that define major source and major modification thresholds, regulation of direct PM2.5 and certain PM2.5 precursors (SO2 and NOX), and the emissions offset requirements.

CAA subpart 4 includes section 189(e), which requires the control of major stationary sources of PM10 precursors (and hence under the court decision, PM2.5 precursors) “except where the Administrator determines that such sources do not contribute significantly to PM10 levels which exceed the standard in the area.” Rule 1325(b)(8) provides a definition of Precursors that only includes SO2 and NOX and excludes VOC and ammonia emissions as precursors to PM2.5. The SCAQMD regulates VOC emissions pursuant to Regulation XIII, requiring federal Lowest Achievable Emission Rate (LAER) controls and offsets at emission thresholds significantly lower than required for a PM2.5 precursor. Therefore we are proposing to find that Regulation XIII already satisfies the section 189(e) requirement for VOC and it is not necessary to include VOC as a precursor in Rule 1325. The SCAQMD requires LAER but not offsets for ammonia emissions in Regulations XIII. However, as allowed by CAA section 189(e), the SCAQMD has provided additional information in its staff report and other documents in our docket demonstrating major stationary sources of ammonia emissions do not contribute significantly to PM2.5 levels that exceed the standard in the South Coast Air Basin. Please refer to our TSD for a detailed discussion of this issue.

With respect to substantive requirements found in CAA sections 173 and 189, and 40 CFR 51.165, we have evaluated SCAQMD Rule 1325 in accordance with the CAA and regulatory requirements that apply to NNSR permit programs under part D of title I of the Act. We find that Rule 1325 satisfies the applicable requirements for a NNSR permit program and would strengthen the applicable SIP. We are therefore proposing a full approval of the submitted rule. Our TSD, which can be found in the docket for this rule, contains a more detailed evaluation and discussion of the approval criteria.

Pursuant to section 110(k)(3) of the CAA and for the reasons provided above, EPA is proposing to approve SCAQMD Rule 1325. For the reasons stated above and explained further in our TSD, we find that SCAQMD Rule 1325 satisfies the applicable CAA and regulatory requirements for a NNSR permit program under CAA section 110(a)(2)(C) and part D of title I of the Act. Rule 1325 strengthens the SIP by adding PM2.5 permit major source requirements.

We will accept comments from the public on this proposed approval for the next 30 days.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference SCAQMD Rule 1325—Federal PM2.5 New Source Review Program which is discussed in section I.A. of this preamble. The EPA has made, and will continue to make, this document generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely 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 (Public Law 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 interfere with Executive Order 12898 (59 FR 7629 (Feb. 16, 1994)) because EPA lacks the discretionary authority to address environmental justice in this rulemaking.

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

Table of Contents I. Background II. EPA's Requirements A. Criteria for Redesignation to Attainment B. Requirements of a Maintenance Plan III. Summary of Proposed Actions IV. Effects of Recent Court Decisions on Proposed Actions A. Effect of Court Decisions Regarding EPA's CSAPR B. Effect of the D.C. Circuit Court Decision Regarding PM2.5 Implementation under Subpart 4 of Part D of Title I of the CAA V. EPA's Analysis of Pennsylvania's Submittal A. Redesignation Request B. Maintenance Plan C. Motor Vehicle Emissions Budgets VI. Proposed Actions VII. Statutory and Executive Order Reviews I. Background

The first air quality standards for PM2.5 were established on July 16, 1997 (62 FR 38652, July 18, 1997). EPA promulgated an annual standard at a level of 15 micrograms per cubic meter (μg/m3), based on a three-year average of annual mean PM2.5 concentrations (the 1997 annual PM2.5 NAAQS). In the same rulemaking action, EPA promulgated a 24-hour standard of 65 μg/m3, based on a three-year average of the 98th percentile of 24-hour concentrations.

On January 5, 2005 (70 FR 944, 1014), EPA published air quality area designations for the 1997 PM2.5 NAAQS. In that rulemaking action, EPA designated the Philadelphia Area as nonattainment for the 1997 annual PM2.5 NAAQS. The Philadelphia Area is comprised of New Castle County in Delaware (the Delaware portion of the Area); Burlington, Camden, and Gloucester Counties in New Jersey (the New Jersey portion of the Area); and Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties in Pennsylvania (the Pennsylvania portion of the Area). See 40 CFR 81.308 (Delaware), 40 CFR 81.331 (New Jersey), and 40 CFR 81.339 (Pennsylvania).

On October 17, 2006 (71 FR 61144), EPA retained the annual average standard at 15 μg/m3, but revised the 24-hour standard to 35 μg/m3, based again on the three-year average of the 98th percentile of 24-hour concentrations (the 2006 24-hour PM2.5 NAAQS). On November 13, 2009 (74 FR 58688), EPA published designations for the 2006 24-hour PM2.5 NAAQS, which became effective on December 14, 2009. In that rulemaking action, EPA designated the Philadelphia Area as nonattainment for the 2006 24-hour PM2.5 NAAQS. See 77 FR 58775 and also see 40 CFR 81.308 (Delaware), 40 CFR 81.331 (New Jersey), and 40 CFR 81.339 (Pennsylvania). Today's proposed rulemaking actions address the redesignations to attainment for the 1997 annual and 2006 24-hour PM2.5 NAAQS for the Pennsylvania portion of the Philadelphia Area.

On May 16, 2012 (77 FR 28782) and January 7, 2013 (78 FR 882), EPA made determinations that the entire Philadelphia Area had attained the 1997 annual and 2006 24-hour PM2.5 NAAQS, respectively. Pursuant to 40 CFR 51.1004(c) and based on these determinations, the requirements for the Philadelphia Area to submit an attainment demonstration and associated reasonably available control measures (RACM), a reasonable further progress (RFP) plan, contingency measures, and other planning SIPs related to the attainment of either the 1997 annual or 2006 24-hour PM2.5 NAAQS were, and continue to be, suspended until such time as: The Area is redesignated to attainment for each standard, at which time the requirements no longer apply; or EPA determines that the Area has again violated any of the standards, at which time such plans are required to be submitted. In the May 16, 2012 action, EPA also determined, in accordance with CAA section 179(c), that the Philadelphia Area attained the 1997 annual PM2.5 NAAQS by its attainment date of April 5, 2010.

On September 5, 2014, the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP), formally submitted a request to redesignate the Pennsylvania portion of the Area from nonattainment to attainment for the 1997 annual and 2006 24-hour PM2.5 NAAQS. Concurrently, PADEP submitted a combined maintenance plan for the Area as a SIP revision to ensure continued attainment throughout the Area over the next 10 years. The maintenance plan includes the 2017 and 2025 PM2.5 and NOX MVEBs for the Area for the 1997 annual and the 2006 24-hour PM2.5 NAAQS which EPA is proposing to approve for transportation conformity purposes. On September 5, 2014, PADEP also submitted a 2007 comprehensive emissions inventory for the 2006 24-hour PM2.5 NAAQS for PM2.5, nitrogen oxides (NOX), sulfur dioxide (SO2), volatile organic compounds (VOCs), and ammonia (NH3). EPA is proposing to approve as a SIP revision the maintenance plan for the 1997 annual and the 2006 24-hour PM2.5 NAAQS. EPA is also proposing to approve as a SIP revision the 2007 emissions inventory for the 2006 24-hour PM2.5 NAAQS to meet the emissions inventory requirement of section 172(c)(3) of the CAA.

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing that: (1) EPA determines that the area has attained the applicable NAAQS; (2) EPA has fully approved the applicable implementation plan for the area under section 110(k); (3) EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) EPA has fully approved a maintenance plan for the area as meeting the requirements of section 175A of the CAA; and (5) the state containing such area has met all requirements applicable to the area under section 110 and part D.

EPA has provided guidance on redesignation in the “State Implementation Plans; General Preamble for the Implementation of Title I of the Clear Air Act Amendments of 1990,” (57 FR 13498, April 16, 1992) (the General Preamble) and has provided further guidance on processing redesignation requests in the following documents: (1) “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereafter the 1992 Calcagni Memorandum); (2) “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (CAA) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; and (3) “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994.

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary to assure prompt correction of any future PM2.5 violations.

The 1992 Calcagni Memorandum provides additional guidance on the content of a maintenance plan. The Memorandum states that a maintenance plan should address the following provisions: (1) An attainment emissions inventory; (2) a maintenance demonstration showing maintenance for 10 years; (3) a commitment to maintain the existing monitoring network; (4) verification of continued attainment; and (5) a contingency plan to prevent or correct future violations of the NAAQS.

EPA is proposing to take several rulemaking actions related to the redesignation of the Pennsylvania portion of the Philadelphia Area to attainment for the 1997 annual and the 2006 24-hour PM2.5 NAAQS. EPA is proposing to find that the Pennsylvania portion of the Area meets the requirements for redesignation of the 1997 annual and the 2006 24-hour PM2.5 NAAQS under section 107(d)(3)(E) of the CAA. EPA is thus proposing to approve Pennsylvania's request to change the legal designation of the Pennsylvania portion of the Area from nonattainment to attainment for both the 1997 annual and 2006 24-hour PM2.5 NAAQS. This rulemaking action does not impact the legal designation of the New Jersey and Delaware portions of the Philadelphia Area. On September 4, 2013 (78 FR 54396) and August 5, 2014 (79 FR 45350), EPA took separate rulemaking actions to redesignate to attainment the New Jersey portion of the Area and the Delaware portion of the Area, respectively, for both the 1997 annual and 2006 24-hour PM2.5 NAAQS.

EPA is also proposing to approve the associated maintenance plan for the Pennsylvania portion of the Area as a revision to the Pennsylvania SIP for the 1997 annual and 2006 24-hour PM2.5 NAAQS, including the MVEBs for the Pennsylvania portion of the Area for both the 1997 annual and the 2006 24-hour PM2.5 NAAQS. The approval of the maintenance plan is one of the CAA criteria for redesignation of the Pennsylvania portion of the Area to attainment for both NAAQS. Pennsylvania's combined maintenance plan is designed to ensure continued attainment of the 1997 annual and 2006 24-hour PM2.5 NAAQS, respectively, in the Pennsylvania portion of the Area for 10 years after redesignation.

EPA previously determined that the Philadelphia Area attained both the 1997 annual and 2006 24-hour PM2.5 NAAQS (see 77 FR 28782 and 78 FR 882), and EPA is proposing to find that the Area continues to attain both NAAQS. Furthermore, under section 172(c)(3) of the CAA, EPA is proposing to approve the 2007 comprehensive emissions inventory submitted by PADEP for the Pennsylvania portion of the Area as a revision to the Pennsylvania's SIP for the 2006 24-hour PM2.5 NAAQS. EPA's analysis of the proposed actions is provided in Section V. of today's proposed rulemaking action.

The D.C. Circuit Court and the Supreme Court have issued a number of decisions and orders regarding the status of EPA's regional trading programs for transported air pollution, the Clean Air Interstate Rule (CAIR) and CSAPR, that impact this proposed redesignation action. In 2008, the D.C. Circuit Court initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit Court's remand, EPA promulgated CSAPR, to address interstate transport of emissions and resulting secondary air pollutants and to replace CAIR.1 CSAPR requires substantial reductions of SO2 and NOX emissions from electric generating units (EGUs) in 28 states in the Eastern United States. Implementation of CSAPR was scheduled to begin on January 1, 2012, when CSAPR's cap-and-trade programs would have superseded the CAIR cap-and-trade programs. Numerous parties filed petitions for review of CSAPR, and on December 30, 2011, the D.C. Circuit Court issued an order staying CSAPR pending resolution of the petitions and directing EPA to continue to administer CAIR. EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Dec. 30, 2011), Order at 2. On August 21, 2012, the D.C. Circuit Court issued its ruling, vacating and remanding CSAPR to EPA and once again ordering continued implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit Court subsequently denied EPA's petition for rehearing en banc. EME Homer City Generation, L.P. v. EPA, No. 11-1302, 2013 WL 656247 (D.C. Cir. Jan. 24, 2013), at *1. EPA and other parties then petitioned the Supreme Court for a writ of certiorari, and the Supreme Court granted the petitions on June 24, 2013. EPA v. EME Homer City Generation, L.P., 133 S. Ct. 2857 (2013).

On April 29, 2014, the Supreme Court vacated and reversed the D.C. Circuit Court's decision regarding CSAPR, and remanded that decision to the D.C. Circuit Court to resolve remaining issues in accordance with its ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). EPA moved to have the stay of CSAPR lifted by the D.C. Circuit Court in light of the Supreme Court decision. EME Homer City Generation, L.P. v. EPA, Case No. 11-1302, Document No. 1499505 (D.C. Cir. filed June 26, 2014). In its motion, EPA asked the D.C. Circuit Court to toll CSAPR's compliance deadlines by three years, so that the Phase 1 emissions budgets apply in 2015 and 2016 (instead of 2012 and 2013), and the Phase 2 emissions budgets apply in 2017 and beyond (instead of 2014 and beyond). On October 23, 2014, the D.C. Circuit Court granted EPA's motion and lifted the stay of CSAPR which was imposed on December 30, 2011. EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23, 2014), Order at 3. On December 3, 2014, EPA issued an interim final rule to clarify how EPA will implement CSAPR consistent with the D.C. Circuit Court's order granting EPA's motion requesting lifting the stay and tolling the rule's deadlines. See 79 FR 71663 (December 3, 2014) (interim final rulemaking). Consistent with that rule, EPA began implementing CSAPR on January 1, 2015.

Because CAIR was promulgated in 2005 and incentivized sources and states to begin achieving early emission reductions, the air quality data examined by EPA in issuing a final determination of attainment for the Pennsylvania portion of the Area in 2012 (May 16, 2012, 77 FR 28782) and the air quality data from the Area since 2005 necessarily reflect reductions in emissions from upwind sources as a result of CAIR, and Pennsylvania included CAIR as one of the measures that helped to bring the Area into attainment. However, modeling conducted by EPA during the CSAPR rulemaking process, which used a baseline emissions scenario that “backed out” the effects of CAIR, see 76 FR 48223, projected that the counties in the Philadelphia Area would have design values below the 1997 annual and the 2006 24-hour PM2.5 NAAQS for 2012 and 2014 without taking into account emission reductions from CAIR or CSAPR. See Appendix B of EPA's “Air Quality Modeling Final Rule Technical Support Document,” (Pages B-37, B-51, B-57, B-58, B-66, B-80, B-86), which is available in the docket for this proposed rulemaking action. In addition, the 2010-2012 quality-assured, quality-controlled, and certified monitoring data for the Philadelphia Area confirms that the PM2.5 annual design value for the Area remained well below the 1997 annual and 2006 24-hour PM2.5 NAAQS in 2012.

The status of CSAPR is not relevant to this redesignation. CSAPR was promulgated in June 2011, and the rule was stayed by the D.C. Circuit Court just six months later, before the trading programs it created were scheduled to go into effect. As stated previously, EPA began implementing CSAPR on January 1, 2015, subsequent to the emission reductions documented in the Commonwealth's September 2014 request for redesignation. Therefore, the Philadelphia Area's attainment of the 1997 annual PM2.5 NAAQS or the 2006 24-hour PM2.5 NAAQS cannot have been a result of any emission reductions associated with CSAPR. In summary, neither the status of CAIR nor the current status of CSAPR affects any of the criteria for proposed approval of this redesignation request for the Pennsylvania portion of the Area.

On January 4, 2013, in NRDC v. EPA, the D.C. Circuit Court remanded to EPA the “Final Clean Air Fine Particle Implementation Rule” (72 FR 20586, April 25, 2007) and the “Implementation of the New Source Review (NSR) Program for PM2.5” final rule (73 FR 28321, May 16, 2008) (collectively, 1997 PM2.5 Implementation Rule). 706 F.3d 428 (D.C. Cir. 2013). The D.C. Circuit Court found that EPA erred in implementing the 1997 annual PM2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of part D of Title I of the CAA (subpart 1), rather than the particulate-matter-specific provisions of subpart 4 of part D of Title I (subpart 4). Prior to the January 4, 2013 decision, the states had worked towards meeting the air quality goals of the 1997 and 2006 PM2.5 NAAQS in accordance with EPA regulations and guidance derived from subpart 1 of part D of Title I of the CAA. In response to the D.C. Circuit Court's remand, EPA took this history into account by setting a new deadline for any remaining submissions that may be required for moderate nonattainment areas as a result of the D.C. Circuit Court's decision regarding the applicability of subpart 4 of part D of Title I of the CAA.

On June 2, 2014 (79 FR 31566), EPA issued a final rule, “Identification of Nonattainment Classification and Deadlines for Submission of SIP Provisions for the 1997 and 2006 PM2.5 NAAQS” (the PM2.5 Subpart 4 Classification and Deadline Rule), which identifies the classification under subpart 4 for areas currently designated nonattainment for the 1997 annual and/or 2006 24-hour PM2.5 NAAQS. The rule set a deadline for states to submit attainment plans and meet other subpart 4 requirements. The rule specified December 31, 2014 as the deadline for states to submit any additional attainment-related SIP elements that may be needed to meet the applicable requirements of subpart 4 for areas currently designated nonattainment for the 1997 PM2.5 and/or 2006 PM2.5 NAAQS and to submit SIPs addressing the nonattainment new source review (NSR) requirements in subpart 4.

As explained in detail in the following section, since Pennsylvania submitted its request to redesignate the Pennsylvania portion of the Philadelphia Area on September 5, 2014, any additional attainment-related SIP elements that may be needed for the Pennsylvania portion of the Area to meet the applicable requirements of subpart 4 were not due at the time Pennsylvania submitted its request to redesignate the Pennsylvania portion of the Area for the 1997 annual and 2006 24-hour PM2.5 NAAQS.

In this proposed rulemaking action, EPA addresses the effect of the D.C. Circuit Court's January 4, 2013 ruling and the June 2, 2014 PM2.5 Subpart 4 Classification and Deadline Rule on the redesignation requests for the Area. EPA is proposing to determine that the D.C. Circuit Court's January 4, 2013 decision does not prevent EPA from redesignating the Area to attainment for the 1997 annual and the 2006 24-hour PM2.5 NAAQS. Even in light of the D.C. Circuit Court's decision, redesignation for this Area is appropriate under the CAA and EPA's longstanding interpretations of the CAA's provisions regarding redesignation. EPA first explains its longstanding interpretation that requirements that are imposed, or that become due, after a complete redesignation request is submitted for an area that is attaining the standard, are not applicable for purposes of evaluating a redesignation request. Second, EPA then shows that, even if EPA applies the subpart 4 requirements to the redesignation requests of the Area and disregards the provisions of its 1997 PM2.5 Implementation Rule recently remanded by the D.C. Circuit Court, Pennsylvania's request for redesignation of the Area still qualifies for approval. EPA's discussion takes into account the effect of the D.C. Circuit Court's ruling and the June 2, 2014 PM2.5 Subpart 4 Classification and Deadline Rule on the maintenance plans of the Area, which EPA views as approvable when subpart 4 requirements are considered.

With respect to the 1997 PM2.5 Implementation Rule, the D.C. Circuit Court's January 4, 2013 ruling rejected EPA's reasons for implementing the PM2.5 NAAQS solely in accordance with the provisions of subpart 1, and remanded that matter to EPA, so that it could address implementation of the PM2.5 NAAQS under subpart 4 of Part D of the CAA, in addition to subpart 1. For the purposes of evaluating Pennsylvania's September 2014 redesignation request for the Area, to the extent that implementation under subpart 4 would impose additional requirements for areas designated nonattainment, EPA believes that those requirements are not “applicable” for the purposes of section 107(d)(3)(E) of the CAA, and thus EPA is not required to consider subpart 4 requirements with respect to the redesignation of the areas. Under its longstanding interpretation of the CAA, EPA has interpreted section 107(d)(3)(E) to mean, as a threshold matter, that the part D provisions which are “applicable” and which must be approved in order for EPA to redesignate an area include only those which came due prior to a state's submittal of a complete redesignation request. See 1992 Calcagni Memorandum. See also “SIP Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) NAAQS on or after November 15, 1992,” Memorandum from Michael Shapiro, Acting Assistant Administrator, Air and Radiation, September 17, 1993 (Shapiro memorandum); Final Redesignation of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 1995); Final Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-27, May 12, 2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking applying this interpretation and expressly rejecting Sierra Club's view that the meaning of “applicable” under the statute is “whatever should have been in the plan at the time of attainment rather than whatever actually was in the plan and already implemented or due at the time of attainment”).2 In this case, at the time that Pennsylvania submitted its redesignation request for the 1997 annual and the 2006 24-hour PM2.5 NAAQS, the requirements under subpart 4 were not due.

EPA's view that, for purposes of evaluating the redesignation of the Pennsylvania portion of the Area, the subpart 4 requirements were not due at the time Pennsylvania submitted the redesignation request is in keeping with the EPA's interpretation of subpart 2 requirements for subpart 1 ozone areas redesignated subsequent to the D.C. Circuit Court's decision in South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). In South Coast, the D.C. Circuit Court found that EPA was not permitted to implement the 1997 8-hour ozone standard solely under subpart 1, and held that EPA was required under the statute to implement the standard under the ozone-specific requirements of subpart 2 as well. Subsequent to the South Coast decision, in evaluating and acting upon redesignation requests for the 1997 8-hour ozone standard that were submitted to EPA for areas under subpart 1, EPA applied its longstanding interpretation of the CAA that “applicable requirements,” for purposes of evaluating a redesignation, are those that had been due at the time the redesignation request was submitted. See, e.g., Proposed Redesignation of Manitowoc County and Door County Nonattainment Areas (75 FR 22047, 22050, April 27, 2010). In those rulemaking actions, EPA, therefore did not consider subpart 2 requirements to be “applicable” for the purposes of evaluating whether the area should be redesignated under section 107(d)(3)(E) of the CAA.

EPA's interpretation derives from the provisions of section 107(d)(3) of the CAA. Section 107(d)(3)(E)(v) states that, for an area to be redesignated, a state must meet “all requirements `applicable' to the area under section 110 and part D.” Section 107(d)(3)(E)(ii) provides that EPA must have fully approved the “applicable” SIP for the area seeking redesignation. These two sections read together support EPA's interpretation of “applicable” as only those requirements that came due prior to submission of a complete redesignation request.

First, holding states to an ongoing obligation to adopt new CAA requirements that arose after the state submitted its redesignation request, in order to be redesignated, would make it problematic or impossible for EPA to act on redesignation requests in accordance with the 18-month deadline Congress set for EPA action in section 107(d)(3)(D). If “applicable requirements” were interpreted to be a continuing flow of requirements with no reasonable limitation, states, after submitting a redesignation request, would be forced continuously to make additional SIP submissions that in turn would require EPA to undertake further notice-and-comment rulemaking actions to act on those submissions. This would create a regime of unceasing rulemaking that would delay action on the redesignation request beyond the 18-month timeframe provided by the CAA for this purpose.

Second, a fundamental premise for redesignating a nonattainment area to attainment is that the area has attained the relevant NAAQS due to emission reductions from existing controls. Thus, an area for which a redesignation request has been submitted would have already attained the NAAQS as a result of satisfying statutory requirements that came due prior to the submission of the request. Absent a showing that unadopted and unimplemented requirements are necessary for future maintenance, it is reasonable to view the requirements applicable for purposes of evaluating the redesignation request as including only those SIP requirements that have already come due. These are the requirements that led to attainment of the NAAQS. To require, for redesignation approval, that a state also satisfy additional SIP requirements coming due after the state submits its complete redesignation request, and while EPA is reviewing it, would compel the state to do more than is necessary to attain the NAAQS, without a showing that the additional requirements are necessary for maintenance.

In the context of this redesignation, the timing and nature of the D.C. Circuit Court's January 4, 2013 decision in NRDC v. EPA, and EPA's June 2, 2014 PM2.5 Subpart 4 Classification and Deadline Rule compound the consequences of imposing requirements that come due after the redesignation request is submitted. Pennsylvania submitted its redesignation request for the 1997 annual and 2006 24-hour PM2.5 NAAQS on September 5, 2014 for the Pennsylvania portion of the Area, which is prior to the deadline by which the Area is required to meet the attainment plan and other requirements pursuant to subpart 4.

To require Pennsylvania's fully-completed and pending redesignation request for the 1997 annual and 2006 24-hour PM2.5 NAAQS to comply now with requirements of subpart 4 that the D.C. Circuit Court announced only in January 2013 and for which the December 31, 2014 deadline to comply occurred subsequent to EPA's receipt of Pennsylvania's September 5, 2014 redesignation request, would be to give retroactive effect to such requirements and provide Pennsylvania a unique and earlier deadline for compliance solely on the basis of submitting its redesignation requests for the Area. The D.C. Circuit Court recognized the inequity of this type of retroactive impact in Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002),3 where it upheld the D.C. Circuit Court's ruling refusing to make retroactive EPA's determination that the areas did not meet their attainment deadlines. In that case, petitioners urged the D.C. Circuit Court to make EPA's nonattainment determination effective as of the date that the statute required, rather than the later date on which EPA actually made the determination. The D.C. Circuit Court rejected this view, stating that applying it “would likely impose large costs on States, which would face fines and suits for not implementing air pollution prevention plans . . . even though they were not on notice at the time.” Id. at 68. Similarly, it would be unreasonable to penalize Pennsylvania by rejecting its September 2014 redesignation request for an area that EPA previously determined was attaining the 1997 annual and 2006 24-hour PM2.5 NAAQS and that met all applicable requirements known to be in effect at the time of the request. For EPA now to reject the redesignation request solely because Pennsylvania did not expressly address subpart 4 requirements which came due after receipt of such request and for which it had little to no notice, would inflict the same unfairness condemned by the D.C. Circuit Court in Sierra Club v. Whitman.

Throughout this document, “we,” “us,” and “our” means the EPA.

Section 109 of the Clean Air Act (CAA or Act) requires the EPA to establish a NAAQS for pollutants that “may reasonably be anticipated to endanger public health and welfare” and to develop a primary and secondary standard for each NAAQS. The primary standard is designed to protect human health with an adequate margin of safety and the secondary standard is designed to protect public welfare and the environment. The EPA has set NAAQS for six common air pollutants, also referred to as criteria pollutants: carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. These standards present state and local governments with the minimum air quality levels they must meet to comply with the Act. Also, these standards provide information to residents of the United States about the air quality in their communities.

Ozone is a gas composed of three oxygen atoms. It is not usually emitted directly into the air, but at ground level is created by a chemical reaction between volatile organic compounds (VOCs) and oxides of nitrogen (NOX) in the presence of sunlight.1 On July 18, 1997, the EPA promulgated an 8-hour ozone standard of 0.08 parts per million (ppm).2 See 62 FR 38856 and 40 CFR 50.10.

Consistent with the EPA regulations in section 2.3 of 40 CFR part 50, Appendix I: “The primary and secondary ozone ambient air quality standards are met at an ambient air quality monitoring site when the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. The number of significant figures in the level of the standard dictates the rounding convention for comparing the computed 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration with the level of the standard. The third decimal place of the computed value is rounded, with values equal to or greater than 5 rounding up. Thus, a computed 3-year average ozone concentration of 0.085 ppm is the smallest value that is greater than 0.08 ppm.” 3 In addition, the ambient air quality monitoring data for the 3-year period must meet a data completeness requirement, which is met when the average percentage of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of part 50.

The Act requires states to develop air pollution regulations and control strategies to ensure that for each area designated nonattainment for a NAAQS, state air quality will meet the NAAQS established by the EPA. Each state must submit these regulations and control strategies to the EPA for approval and incorporation into the Federally-enforceable SIP. Each Federally-approved SIP protects air quality primarily by addressing air pollution at its point of origin. The SIPs may contain state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

For ozone nonattainment areas, requirements for SIPs are contained in Part D, subparts 1 and 2 of the Act. Under subpart 2, the applicable control requirements become increasingly more stringent according to an area's classification. The five classifications are Marginal, Moderate, Serious, Severe or Extreme, with Marginal areas subject to the least stringent requirements and Extreme areas subject to the most.

The EPA published two sets of regulations governing how the provisions of the CAA would apply for purposes of implementing the 1997 ozone standard. On April 30, 2004 (69 FR 23951), EPA promulgated the Phase 1 Rule, which addressed, among other matters, classifications for areas designated nonattainment for the 1997 ozone standard.

The EPA published a second rule, the Phase 2 Rule on November 29, 2005 (70 FR 71612), and made several revisions to that rule on June 8, 2007 (72 FR 31727). The Phase 2 rule addresses SIP obligations for the 1997 ozone standard, including the SIP elements associated with reasonably available control technology (RACT), reasonably available control measures (RACM), reasonable further progress (RFP), modeling and attainment demonstrations, new source review, vehicle inspection and maintenance (I/M) programs, and contingency measures for failure to meet RFP and the attainment date.

On April 30, 2004, the EPA designated nine counties as the DFW nonattainment area for the 1997 ozone standard (i.e., Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant counties) and this 9-county area was classified under subpart 2 of the Act, as “Moderate” (69 FR 23858).4 For areas subject to subpart 2 of the Act, the maximum period to achieve attainment runs from the effective date of designations and classifications for the 1997 ozone standard and corresponds to the same length of time provided in Table 1 of Section 181(a) of the Act: Marginal—3 years; Moderate—6 years; Serious—9 years; Severe—15 years; and Extreme—20 years. 40 CFR 51.903.

The DFW nonattainment area was classified as Moderate based on a design value at the time of designation (DV) of 0.10 ppm, with an attainment date of June 15, 2010 (69 FR 23858). The DV of an area characterizes the severity of the air quality and is represented by the highest DV measured at any ozone monitor in the area. The calculation for the DV is the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration measured at a monitor. In response to the designation, the State of Texas submitted an attainment plan designed to meet the 1997 ozone standard and we conditionally approved this plan on January 14, 2009 (74 FR 1903).5

Section 181(b)(2) of the Act prescribes the process for making a determination of whether an ozone nonattainment area met the standard by its attainment date. Section 181(b)(2)(A) of the Act requires that the EPA determine, based on the area's ozone design value (as of the attainment date), whether or not the area attained the ozone standard by that date. For Marginal, Moderate, and Serious areas, if the EPA finds that the nonattainment area has failed to attain the ozone standard by the applicable attainment date, the area must be reclassified by operation of law to the higher of (1) the next higher classification for the area, or (2) the classification applicable to the area's design value as determined at the time of the required Federal Register notice. Section 181(b)(2)(B) requires the EPA to publish in the Federal Register a notice identifying any area that has failed to attain by its attainment date and, if applicable, the resulting reclassification. The DFW area failed to attain the 1997 ozone standard by its Moderate attainment date of June 15, 2010, and was consequently reclassified as a Serious ozone nonattainment area with an attainment date of no later than June 15, 2013 (75 FR 79302, December 20, 2010).

The EPA is proposing to determine the DFW area did not attain the 1997 ozone standard by its attainment deadline of June 15, 2013 based on quality-assured, quality-controlled ambient air monitoring data for the years 2010-2012 that show the area was violating the 1997 ozone standard. These data from sites in the DFW area have been certified by the TCEQ and are presented in Table 1. As noted earlier in this action, the highest DV at any regulatory monitor in the area is considered the DV for the area (40 CFR 58.1). The Keller monitoring site recorded the highest 2010-2012 design value—0.087 ppm—which is also the design value for the area. Thus, pursuant to section 181(b)(2) of the Act, the EPA is proposing to determine that the DFW nonattainment area did not attain the 1997 ozone standard by the June 15, 2013, deadline for Serious nonattainment areas.

Under section 181(a)(5) of the Act and 40 CFR 51.907, an area can qualify for up to 2 one-year extensions of its attainment date if it meets the conditions set forth in 40 CFR 51.907. For the 1997 ozone standard, if an area's fourth highest daily maximum 8-hour average value in the attainment year is 0.084 ppm or less (40 CFR 51.907), the area is eligible for the first one-year extension to the attainment date. The attainment year is the year immediately preceding the attainment date (40 CFR 51.900(g)), thus the DFW area's attainment year is 2012. In 2012, the area's fourth-highest daily maximum 8-hour was 0.092 ppm at the Arlington monitor site. Therefore, the DFW area does not qualify for a 1-year extension of its Serious area attainment deadline.

Section 181(b)(2)(A) of the Act provides that, should the EPA find that an area fails to attain by the applicable date, the area shall be reclassified by operation of law to the higher of: The next higher classification for the area; or the classification applicable to the area's ozone design value at the time of the reclassification. The classification that would be applicable to the DFW area's ozone DV at the time of today's notice is “Marginal” because the area's calculated DV, based on quality-assured ozone monitoring data from 2011-2013, is 0.087 ppm.8 By contrast, the next higher classification for the DFW area is “Severe.” Because “Severe” is a higher nonattainment classification than “Marginal” under the statutory scheme in the Act, upon the effective date of the final rulemaking determining that the DFW has failed to attain the 1997 ozone standard by the applicable attainment date of June 15, 2013, the DFW area will be reclassified by operation of law as “Severe.”

Upon reclassification, stationary air pollution sources in the DFW ozone nonattainment area will be subject to Severe ozone nonattainment area New Source Review (NSR) and Title V permit requirements. The source applicability threshold for major sources and major source modification emissions is lowered to those that emit or have the potential to emit at least 25 tons per year (tpy) of VOC and NOX. For new and modified major stationary sources subject to review under Texas Administrative Code Title 30, Chapter 116, Section 116.150 (30 TAC 116.150) in the EPA approved SIP, VOC and NOX emissions increases from the proposed construction of new or modified major stationary sources must be offset by emissions reductions meeting a minimum offset ratio of 1.30 to 1. See 30 TAC 116 and 40 CFR 52.2270(c).

Effective one year after the reclassification of the DFW area as a Severe ozone nonattainment area, the requirement at section 211(k)(10)(D) of the Act would expand the prohibition of the sale of conventional gasoline and require the use of reformulated gasoline in Ellis, Johnson, Kaufman, Parker, and Rockwall counties. Currently, the prohibition applying to the sale of conventional gasoline in the DFW area is limited to Collin, Dallas, Denton and Tarrant counties (see 57 FR 46316, October 8, 1992).

Pursuant to section 181(b)(2) of the Act, the EPA is proposing to determine that the DFW area did not attain the 1997 ozone standard by the attainment deadline for Serious ozone nonattainment areas. If the EPA takes final action on this determination as proposed, the DFW area will be reclassified by operation of law from Serious to Severe nonattainment. Severe areas are required to attain the standard “as expeditiously as practicable” but no later than 15 years after designation, or June 15, 2019.9 The “as expeditiously as practicable” attainment date will be determined as part of the action on the required SIP submittal demonstrating attainment of the 1997 ozone standard. The EPA is proposing a schedule by which Texas will submit the SIP revisions necessary pursuant to reclassification to Severe nonattainment of the 1997 ozone standard.

When an area is reclassified, the EPA has the authority under section 182(i) of the Act to adjust the Act's submittal deadlines for any new SIP revisions that are required as a result of the reclassification. Pursuant to 40 CFR 51.908(d), for each nonattainment area, the State must provide for implementation of all control measures needed for attainment as expeditiously as practicable but no later than the beginning of the attainment year ozone season. The attainment year ozone season is the ozone season immediately preceding a nonattainment area's attainment date. For an area with an attainment date of June 15, 2019, which is the date that would apply for the DFW area if bumped up to Severe, the attainment year ozone season is 2018 (40 CFR 51.900(g)). The ozone season is the ozone monitoring season as defined in 40 CFR part 58, Appendix D, section 4.1, Table D-3 (71 FR 61236, October 17, 2006). For the DFW area, March 1st is the beginning of the ozone monitoring season. We propose that Texas submit the required SIP revisions, including the attainment demonstration, RFP plan, and other applicable Severe area requirements to the EPA as expeditiously as practicable, but not later than one year after the effective date of the final rulemaking for this reclassification. In addition, all applicable controls shall be implemented as expeditiously as practicable but no later than March 1, 2018, which is the beginning of the attainment year ozone season.

Pursuant to section 182(d) of the Act and 40 CFR 51 subpart X, the revised SIP for the DFW area must include all the CAA requirements for Serious ozone nonattainment area plans such as: (1) Enhanced ambient monitoring (CAA 182(c)(1)); (2) an enhanced vehicle I/M program (CAA 182(c)(3)); and (3) a clean fuel vehicle program or an approved substitute (CAA 182(c)(4)).10 The revised SIP for the DFW area must also meet the Severe area requirements specified in CAA section 182(d), including: (1) An attainment demonstration (CAA section 182(c)(2)(A) and (d); 40 CFR 51.908); (2) provisions for RACT and RACM (CAA sections 172(c)(1); 182(b)(2) and (d); 40 CFR 51.912); (3) RFP reductions for each three-year period until the attainment date (CAA section 182(c)(2)(B) and (d); 40 CFR 51.910); (4) contingency measures to be implemented in the event of failure to meet RFP or attain the standard (CAA 172(c)(9) and 182(c)(9)); (5) transportation control measures to offset emissions from growth in vehicle miles traveled or VMT (CAA 182(d)(1)(A)); (6) increased offsets for major sources (CAA section 182(d)(2) and 40 CFR 51.165); and (7) fees on major sources if the area fails to attain the standard (CAA 182(d)(3) and 185).

Because the DFW area is presently classified as Serious under the 1997 ozone standard, the state has adopted and EPA has approved into the SIP provisions that meet several of these requirements. A list of the requirements already in place and those yet to be adopted by the State for the DFW area is provided in Table 2.

In 2008, the EPA promulgated a more protective 8-hour ozone standard of 0.075 ppm (73 FR 16436) and EPA published a rule designating areas for that standard on May 21, 2012 (77 FR 30088). On June 6, 2013, the EPA published its proposed rule to implement the 2008 ozone standard (78 FR 34178). The rule also proposed revocation of the 1997 ozone standard for all purposes, and that upon revocation of that standard, the EPA would not be obligated to reclassify areas to a higher classification under the 1997 ozone NAAQS based upon a determination that the areas failed to attain such NAAQS by the areas' corresponding attainment date (78 FR 34178, 34236; proposed 40 CFR 51.1105(d)(2)(ii)). We anticipate final action on the proposed implementation rule this spring. If EPA has not yet taken final action to reclassify the DFW area for the 1997 ozone standard before a final rulemaking revoking the 1997 ozone NAAQS for all purposes is effective, and that rulemaking is finalized as proposed with respect to EPA's obligation concerning reclassification of areas for the revoked standard, then EPA will not finalize this proposed reclassification for DFW. However, the DFW area will still be subject to appropriate “anti-backsliding” requirements for the 1997 ozone NAAQS as established in any final rule EPA may promulgate in connection with any revocation of the 1997 standard. Anti-backsliding provides protection against degradation of air quality (e.g., the DFW area does not “backslide”) and ensures the area continues to make progress toward attainment of the new, more stringent NAAQS. Anti-backsliding also ensures there is consistency with the ozone NAAQS implementation framework outlined in subpart 2 of Part D of the CAA (78 FR 34178, 34211).

Pursuant to section 181(b)(2) of the Act, the EPA is proposing to determine, based on certified, quality-assured monitoring data for 2010-2012 that the DFW area did not attain the 1997 ozone standard by the applicable June 15, 2013 attainment deadline. If the EPA finalizes this determination, upon the effective date of the final determination the DFW 9-county nonattainment area will be reclassified by operation of law as a Severe ozone nonattainment area under the 1997 ozone standard. Pursuant to section 182(i) of the Act, the EPA is also proposing the schedule for submittal of the SIP revisions required for Severe areas once the DFW area is reclassified. The EPA is proposing that Texas submit to the EPA the required SIP revisions for the Severe attainment demonstration, RFP and for all other Severe area measures required under sections 172, 182(c), 182(d) and 185 of the Act no later than one year after the effective date of the final rulemaking for this reclassification.

Under section 181(b)(2) of the CAA, a determination of nonattainment is a factual determination based upon air quality considerations and the resulting reclassification must occur by operation of law. A determination of nonattainment and the resulting reclassification of a nonattainment area by operation of law under section 181(b)(2) does not in and of itself create any new requirements, but rather applies the requirements contained in the Clean Air Act. For these reasons, this proposed action:

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

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

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

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

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

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

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

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

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

I. Background

GSA is proposing to amend the GSAR to update the text and clauses regarding Subpart 523.3-Hazardous Materials Identification and Material Safety Data.

GSA published a proposed rule in the Federal Register at 74 FR 11889 on March 20, 2009 to update the text and clauses regarding Hazardous Materials Identification and Material Safety Data. No comments were received in response to the proposed rule. This case is issued as a second proposed rule due to the length of time since the original proposed rule was published in 2009 and updates to the regulations referenced in the General Services Administration Manual (GSAM) Subpart 523.3.

This proposed rule changes the title of GSAR part 523 to “Environment, Energy and Water Efficiency, Renewable Energy Technologies, Occupational Safety, and Drug-Free Workplace”, to correspond to the title in Federal Acquisition Regulation (FAR) part 23. The title for GSAR Subpart 523.3 is changed to “Hazardous Material Identification and Material Safety Data” to be consistent with the corresponding FAR subpart.

In addition, this rule adds a new hazardous materials GSAR clause 552.223-73. GSAR clause 552.223-73, Preservation, Packaging, Packing, Marking and Labeling of Hazardous Materials (HAZMAT) for Shipments is added to require compliance by contractors regarding preservation, packaging, packing, marking and labeling of hazardous materials. This clause is also added to the provision and clause matrix.

In addition, the GSAR clause 552.212-72, Contract Terms and Conditions Required to Implement Statutes or Executive Orders Applicable to GSA Acquisition of Commercial Items, is updated to include the new hazardous material clause 552.223-73.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

GSA does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because there are no substantive changes. Therefore, an Initial Regulatory Flexibility Analysis (IRFA) has not been performed. GSA invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

GSA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (GSAR Case 2006-G506), in correspondence.

The proposed rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, GSA proposes to amend 48 CFR parts 523 and 552 as set forth below:

In January 2011, NMFS implemented a trawl rationalization program, a type of catch share program, for the Pacific coast groundfish fishery's trawl fleet. The program was adopted through Amendment 20 to the FMP and consists of three sectors: An IFQ program for the shorebased trawl fleet (including vessels targeting whiting and non-whiting with midwater trawl gear); and cooperative (coop) programs for the at-sea mothership (MS) and catcher/processor (C/P) trawl fleets (whiting only).

Since implementation, the Pacific Fishery Management Council (Council) and NMFS have been working to implement additional regulatory changes to further improve the trawl rationalization program and respond to industry requests. Changing the midwater trawl fishery season date would further increase consistency in the season start date along the coast and between the shorebased and at-sea midwater trawl fleets. This rule would revise the Shorebased IFQ Program regulations to change the primary season opening date for the midwater trawl fishery (whiting and non-whiting) to May 15 north of 40°30′ N. lat. to the U.S./Canada border. This would move the season a month earlier off Washington and Oregon and a month and half later off northern California (north of 40°30′ N. lat.).

The Council discussed the season date change at its March and April 2012 meetings, with final Council recommendations to NMFS during the September 2012 Council meeting. In addition, NMFS received further clarification on these issues from the Council at its November 2014 meeting.

While this action would affect the season start date for shorebased midwater trawl fisheries that target whiting or other groundfish (“non-whiting”), historically the season start dates were for midwater fisheries targeting whiting. However, since 2011 and the start of the trawl rationalization program, the Pacific whiting start date applies to the use of all midwater trawl gear regardless of the target species. In 1991, foreign fishing in U.S. waters ended and whiting became a fully domestic fishery with both at-sea and shorebased vessels. The season started on January 1 but fishing did not start until late spring when the fish were more available. In 1992, the season start date was set at April 15. In 1996, the at-sea sectors (mothership and catcher/processor) and the shorebased sector north of 42° N. lat. (northern fishery off Washington and Oregon) all started on May 15, the shorebased sector between 42° and 40°30′ N. lat. (central fishery off northern California) started on March 1, and the shorebased sector south of 40°30′ N. lat. (southern fishery off central and southern California) continued to start on April 15. Since 1997, the whiting seasons have started as follows: May 15 for the at-sea sectors, June 15 for the northern shorebased sector, April 1 for the central shorebased sector, and April 15 for the southern shorebased sector.

The 1997 delay in the season start date for the northern shorebased fishery to June 15 allowed shorebased vessels to deliver whiting to at-sea motherships for a full month or until the at-sea allocation was met and then to switch their delivery strategy to shorebased facilities until the shorebased allocation was met for the year. The delay for the northern shorebased fishery from May 15 to June 15 also allowed shorebased vessels to complete their May-June DTS (Dover sole, thornyhead, sablefish complex) cumulative limits before the start of the whiting fishery (it was not permissible to land more than 60 percent of the DTS limit in a particular month). The shift from a May 15 to a June 15 opening (and from March 1 to April 1 for the central area) was expected to allow the whiting to grow to a larger size prior to harvest. These date changes also affected bycatch of other species caught with midwater trawl gear. Bycatch rates of rockfish were expected to increase with the later northern start date because more of the whiting stock biomass would be in northern areas, where rockfish such as yellowtail and widow are more available to midwater gear. Bycatch of salmon was expected to be difficult to predict, but presumed to be lower in the summer months for the shorebased fishery and higher later in the year for the at-sea fishery.

The 1997 season date change also included an allocation decision to limit the California fisheries to taking a total of 5 percent of the shorebased allocation prior to the start of the northern fishery to prevent further expansion in that area. In addition to modifying the season dates and establishing a California early season allocation, the 1997 action also established a framework in the regulations for modifying the season opening dates on an annual basis (50 CFR 660.131(b)(2)). This action to change the northern and central shorebased season start dates for midwater fisheries (whiting and non-whiting) to May 15 would not change the framework regulation at § 660.131(b)(2) nor would it change the California early season allocation, other than to limit it to the southern shorebased fishery.

Prior to 2001, a shorebased midwater trawl fishery existed, primarily targeting widow, yellowtail, and chilipepper rockfishes. In 2001 and 2002, catches in the non-whiting midwater fishery were drastically reduced by management measures to protect widow and other overfished rockfish. Widow rockfish was declared overfished in 2001, reducing the amount that could be harvested to bycatch. In addition, large coastwide closed areas, called rockfish conservation areas, were implemented in 2002 to reduce the catch of several overfished rockfish species. These changes eliminated the shorebased non-whiting midwater trawl fishery. Since implementation of the trawl rationalization program in 2011 and the declaration of widow rockfish as rebuilt, there are increasing opportunities for non-whiting midwater trawl fisheries. With implementation of the trawl rationalization program, the regulatory distinctions between the shorebased whiting and the non-whiting fishery were blurred. The season start date for the whiting fishery was interpreted to apply to all midwater fishing (whiting and non-whiting). The season date change in this action would also affect the non-whiting midwater trawl fishery.

Changing the season opening date for the midwater trawl fishery (whiting and non-whiting) to May 15 north of 40°30′ N. lat. to the U.S./Canada border would move the season a month earlier off Washington and Oregon, and a month and half later off northern California (north of 40°30′ N. lat.). This action would not change the areas open to groundfish fishing or the total amount of groundfish available for harvest, but it would shift when those fish can be caught. A single coastwide opening north of 40°30′ N. lat. would simplify the regulations. This change would align the northern and central shorebased fisheries with the at-sea fisheries, increase flexibility for the northern shorebased fishery, and equalize opportunity among most of the midwater sectors (except the southern shorebased fishery which would remain at April 15). With implementation of the trawl rationalization program in 2011, it is no longer necessary to stagger seasons in the whiting fishery to increase access to groundfish. While moving the season start date for the central shorebased fishery would result in a shortened season for the central area, no impact to this fishery is expected because there has not been harvest in northern California since implementation of the trawl rationalization program.

In addition to the expected impacts on groundfish, NMFS must also consider the impacts on salmon. Salmon, predominately Chinook, are caught as bycatch in groundfish midwater trawl fisheries. Some of the Chinook caught with midwater trawl gear are listed as endangered or threatened under the Endangered Species Act (ESA). NMFS considered the effects of ongoing implementation of the groundfish FMP on listed salmonid species in a biological opinion issued on December 15, 1999. That opinion noted that steelhead, sockeye, and cutthroat trout are rarely, if ever, encountered in the groundfish fishery. Coho and chum are caught in relatively low numbers in the whiting fishery with average catch per year coastwide on the order of tens to a few hundred fish and in the bottom trawl fishery on the order of tens of fish per year. The 1999 opinion focused on bycatch of Chinook salmon, which comprises the largest portion of salmonid bycatch in the whiting fishery.

The 1999 opinion determined that the fishery was not likely to jeopardize any of the ESA-listed Chinook and provided an incidental take statement estimating that total Chinook bycatch (listed and unlisted fish) for the whiting fishery (MS, C/P, shorebased, and tribal combined), would likely be 11,000 Chinook per year or 0.05 fish per metric ton (mt) of whiting catch. The 1999 opinion indicated consultation must be reinitiated if Chinook bycatch rates exceed these amounts. For the bottom trawl fishery, the 1999 biological opinion estimated that 6,000 to 9,000 Chinook salmon would be taken annually. The biological opinion concluded that if the bottom trawl fishery changes substantially in magnitude or character or if bycatch exceeds 9,000 Chinook, consultation must be reinitiated.

In 2013, NMFS reinitiated section 7 consultation on the FMP to address the effects on salmonids caused by the re-emerging use of midwater trawl gear to target non-whiting groundfish species such as yellowtail and widow rockfish. The request was made due to the evolution of the trawl fishery under the trawl rationalization framework and improving conditions for species such as widow rockfish that were expected to change the characteristics of the fishery. In addition, West Coast Groundfish Observer Program data reports showed new estimates of Chinook and coho salmon bycatch in the nearshore fixed gear fisheries (open access and limited entry fisheries), limited entry sablefish fishery, and open access California Halibut fishery. In October 2014, the whiting fishery exceeded the 11,000 Chinook and 0.05 Chinook salmon/mt whiting reinitiation triggers stated in the 1999 biological opinion. Given this, NMFS determined that the reinitiation should address the effects on listed salmonids of all fishing under the FMP.

In the interim, NMFS will be monitoring the take of salmon inseason and expects industry to take measures to reduce salmon bycatch, if needed. All midwater trawl fisheries have 100 percent monitoring and are required to track the catch of prohibited and protected species, such as salmon.

NMFS and the Council estimated the bycatch of Chinook in 2015 based on the amount of target species (whiting, widow, and yellowtail rockfish) available to harvest. While the allowable harvest amounts for these target species will not be determined until the spring, they are expected to increase in 2015 and 2016. However, catch of salmon in groundfish trawl fisheries is highly variable from year to year, including in years when the season was as early as April 15 and as late as June 15. For salmon listed under the ESA, NMFS expects the bycatch of Chinook to remain within the amounts considered in the 1999 biological opinion for all groundfish trawl fisheries combined (20,000 Chinook) even if harvest limits for target groundfish species increases. For more information, see the draft environmental assessment at the Web site provided or the ESA information listed in the Classification section of this preamble.

Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Pacific Coast Groundfish FMP, other provisions of the MSA, and other applicable law, subject to further consideration after public comment.

The Council prepared an environmental assessment (EA) for this action. The draft EA is available on the Council's Web site at http://www.pcouncil.org/ or on NMFS' Web site at http://www.nwr.noaa.gov/Groundfish-Halibut/Groundfish-Fishery-Management/Trawl-Program/index.cfm.

Pursuant to the procedures established to implement section 6 of Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.

An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. A Regulatory Impact Review (RIR) was also prepared on the action and is included as part of the IRFA. A copy of the IRFA is available from NMFS (see ADDRESSES) and a summary of the IRFA, per the requirements of 5 U.S.C. 604(a) follows:

As described above, this action would revise the Shorebased IFQ Program regulations to change the primary season opening date for the whiting and non-whiting midwater trawl fisheries to May 15 north of 40°30′ N. lat. to the U.S./Canada border. This would move the season a month earlier off Washington and Oregon, and a month and half later off northern California (north of 40°30′ N. lat.), increasing consistency in the season start date along the coast and between the shorebased and at-sea midwater trawl fleets.

This action would affect shorebased midwater trawlers in the trawl rationalization program and the processors that receive their product. During the 2011 to 2014 period, 30 midwater trawl vessels delivered to 10 shoreside processing plants in this fishery. Some vessels share common ownership, other vessels are owned by processing companies, and some companies own multiple processing plants. After accounting for these relationships, there are 26 entities that have participated in the fishery, 22 of which are small entities, based on NMFS' review of available information.

The alternatives considered changing the season start date for the northern fishery, off Washington and Oregon from 42° N. lat. to the U.S./Canada border, from June 15 to May 15 and for the central fishery, off northern California from 40′30 N. lat. to 42° N. lat., from April 1 to May 15. The April 15 start data for the southern fishery, south of 40°30′ N. lat., would remain unchanged.

Under the Action Alternative (May 15 season start from 40°30′ N. lat. to the U.S./Canada border), the same amount of whiting and non-whiting groundfish species will be available for harvest using midwater trawl gear as under the No Action Alternative (April 1 between 40°30′ N. lat. to 42° N. lat., June 15 from 42° N. lat. to the U.S./Canada border). The proposed season opening date change will give fishers in the northern fishery greater flexibility in maximizing net operating profits and social benefits from fixed amounts of fish (for which quota share is required to cover impacts), thus a positive change in impact to the harvest sector is projected under the Action Alternative compared to the No Action Alternative. No change in impact is expected in the central fishery in the near term under the Action Alternative because the fishery in that area has been inactive with the Shorebased IFQ Program in place.

The main impact to the harvest sector from the Action Alternative, (as compared to the No Action Alternative) in the northern fishery will be to increase the flexibility that individual vessel operators have in using their IFQ with midwater gear by adding one month to the duration of their season. This additional time in the northern fishery should allow vessels and processors more opportunity to adjust their operations to changing market conditions and to changes in other fisheries. Increasing the time available to fish in the northern fishery may lead to increased harvests. During 2014, the total IFQ fishery (fixed gear, midwater, and bottom trawl) left 1.6 million lbs of chilipepper rockfish (70% of the total IFQ quota), 46 million lbs of Pacific whiting (17%), 750,000 lbs of widow rockfish (37%), and 3.9 million lbs of yellowtail rockfish (60%) unharvested. Increasing the time available to fish in the northern fishery may allow fishermen and processors to adjust their operations to increase participation in other fisheries such as the crab, shrimp, or mothership fishery for whiting. One of the reasons for the staggered opening (May 15 for at-sea and June 15 for shorebased) was to reduce the conflict between the catcher vessels fishing for motherships and those in the shorebased fishery. Both fisheries were managed through season closures, which resulted in a race for fish (as “derby” fisheries). The trawl rationalization program, however, reserves for each quota holder a specific amount of fish, eliminating the race for fish and reducing the potential for conflicting opportunities. With the trawl rationalization program in place, a common opening date for these fisheries would not force quota holders to choose between them (i.e. participation in one fishery would not preclude participation in the other). The mothership is now managed by a single coop that plans participation preseason. Increasing the season length may allow the co-op to consider allowing alternative vessels to participate in the coop.

With an increase in the fishing season, the number of shorebased processors and vessels participating in the fishery are not expected to change. The midwater fishery is predominantly a Pacific whiting fishery where major investments in equipment would be needed by a processor to enter the fishery. Vessels participation is also not expected to change. Given that large portions of the IFQ allocations are unharvested, improvements in the basic markets for midwater trawl species will determine participation. Changing the season length will provide increased opportunities to take advantage of these improvements.

In summary, an extended shorebased season will increase the choices available for the northern fishery (off Oregon and Washington), providing an opportunity to improve business decisions and potential profits from the fishery. For the central fishery, there would be a contraction in flexibility to harvest from April 1 to May 15. Reducing the season in the central fishery may have a chilling effect on the potential growth in the fishery. However, data for 2011 through 2014 shows no midwater trawl gear harvest is occurring in this area under the IFQ program.

NMFS believes this rule, if finalized in this form, would not have a significant difference in impacts when comparing small versus large businesses in terms of disproportionality and profitability, given available information. Through this rulemaking process, we are specifically requesting comments on this conclusion.

There are no Federal reporting and recordkeeping requirements associated with this action. There are no relevant Federal rules that may duplicate, overlap, or conflict with this action.

NMFS issued Biological Opinions under the Endangered Species Act (ESA) on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the Groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP is not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.

NMFS issued a Supplemental Biological Opinion on March 11, 2006, concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the FMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.

NMFS has reinitiated section 7 consultation on the Pacific Coast Groundfish FMP with respect to its effects on listed salmonids. In the event the consultation identifies either reasonable and prudent alternatives to address jeopardy concerns, or reasonable and prudent measures to minimize incidental take, NMFS would coordinate with the Council to put additional alternatives or measures into place, as required. After reviewing the available information, NMFS has concluded that, consistent with sections 7(a)(2) and 7(d) of the ESA, this action will not jeopardize any listed species, would not adversely modify any designated critical habitat, and will not result in any irreversible or irretrievable commitment of resources that would have the effect of foreclosing the formulation or implementation of any reasonable and prudent alternative measures.

On December 7, 2012, NMFS completed a biological opinion concluding that the groundfish fishery is not likely to jeopardize non-salmonid marine species, including listed eulachon, the southern distinct population segment (DPS) of green sturgeon, humpback whales, the eastern DPS of Steller sea lions, and leatherback sea turtles. The opinion also concluded that the fishery is not likely to adversely modify critical habitat for green sturgeon and leatherback sea turtles. An analysis included in the same document as the opinion concludes that the fishery is not likely to adversely affect green sea turtles, olive ridley sea turtles, loggerhead sea turtles, sei whales, North Pacific right whales, blue whales, fin whales, sperm whales, Southern Resident killer whales, Guadalupe fur seals, or the critical habitat for Steller sea lions. Since that biological opinion, the eastern DPS of Steller sea lions was delisted on November 4, 2013 (78 FR 66140); however, this delisting did not change the designation of the codified critical habitat for the eastern DPS of Steller sea lions. On January 21, 2013, NMFS informally consulted on the fishery's effects on eulachon to consider whether the 2012 opinion should be reconsidered for eulachon in light of new information from the 2011 fishery and the proposed chafing gear modifications. NMFS determined that information about bycatch of eulachon in 2011 and chafing gear regulations did not change the effects that were analyzed in the December 7, 2012 biological opinion, or provide any other basis to reinitiate consultation.

On November 21, 2012, the U.S. Fish and Wildlife Service (FWS) issued a biological opinion concluding that the groundfish fishery will not jeopardize the continued existence of the short-tailed albatross. The FWS also concurred that the fishery is not likely to adversely affect the marbled murrelet, California least tern, southern sea otter, bull trout, nor bull trout critical habitat.

West Coast pot fisheries for sablefish are considered Category II fisheries under the Marine Mammal Protection Act (MMPA), indicating occasional interactions. All other West Coast groundfish fisheries, including the trawl fishery, are considered Category III fisheries under the MMPA, indicating a remote likelihood of or no known serious injuries or mortalities to marine mammals. MMPA section 101(a)(5)(E) requires that NMFS authorize the taking of ESA-listed marine mammals incidental to U.S. commercial fisheries if it makes the requisite findings, including a finding that the incidental mortality and serious injury from commercial fisheries will have a negligible impact on the affected species or stock. As noted above, NMFS concluded in its biological opinion for the 2012 groundfish fisheries that these fisheries were not likely to jeopardize Steller sea lions or humpback whales. The eastern distinct population segment of Steller sea lions was delisted under the ESA on November 4, 2013 (78 FR 66140). On September 4, 2013, based on its negligible impact determination dated August 28, 2013, NMFS issued a permit for a period of three years to authorize the incidental taking of humpback whales by the sablefish pot fishery (78 FR 54553). This proposed rule was developed after meaningful collaboration, through the Council process, with the tribal representative on the Council. The proposed regulations have no direct effect on the tribes; these proposed regulations were deemed by the Council as “necessary or appropriate” to implement the FMP as amended.

For the reasons stated in the preamble, 50 CFR part 660 is proposed to be amended as follows: