Federal Register Vol. 80, No.42,

Federal Register Volume 80, Issue 42 (March 4, 2015)

Page Range11535-11856
FR Document

80_FR_42
Current View
Page and SubjectPDF
80 FR 11855 - Read Across America Day, 2015PDF
80 FR 11853 - National Consumer Protection Week, 2015PDF
80 FR 11851 - Women's History Month, 2015PDF
80 FR 11849 - National Colorectal Cancer Awareness Month, 2015PDF
80 FR 11847 - Irish-American Heritage Month, 2015PDF
80 FR 11845 - American Red Cross Month, 2015PDF
80 FR 11718 - In the Matter of Adex Media, Inc. et al.; Order of Suspension of TradingPDF
80 FR 11690 - Distribution of 2013 Cable Royalty FundsPDF
80 FR 11685 - Notice of Filing of Plats of Survey, New MexicoPDF
80 FR 11720 - 60-Day Notice of Proposed Information Collection: Affidavit of Relationship (AOR) for Minors Who are Nationals of El Salvador, Guatemala, and HondurasPDF
80 FR 11632 - Foreign-Trade Zone 21-Charleston, South Carolina Application for Reorganization/Expansion Under Alternative Site FrameworkPDF
80 FR 11599 - Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meeting and WebinarPDF
80 FR 11665 - Secretary of Energy Advisory Board; Notice of Open MeetingPDF
80 FR 11662 - Application To Export Electric Energy; Noble Americas Gas & Power CorporationPDF
80 FR 11664 - Application To Export Electric Energy; Vitol Inc.PDF
80 FR 11683 - Notice of Advisory Council on Historic Preservation Quarterly Business MeetingPDF
80 FR 11663 - Application To Export Electric Energy; Sempra Generation, LLCPDF
80 FR 11632 - Foreign-Trade Zone (FTZ) 127-West Columbia, South Carolina; Authorization of Production Activity; Komatsu America Corporation (Material Handling, Construction and Forestry Machinery); Newberry, South CarolinaPDF
80 FR 11550 - Final Priorities, Requirements, Definitions, and Selection Criteria-State Tribal Education Partnership ProgramPDF
80 FR 11723 - Open Meeting of the Taxpayer Advocacy Panel Tax Forms and Publications Project CommitteePDF
80 FR 11693 - Scope Expansion of the Post-Investigation Alternative Dispute Resolution ProgramPDF
80 FR 11668 - Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2013; CorrectionPDF
80 FR 11686 - Native American Graves Protection and Repatriation Review Committee: Notice of Nomination SolicitationPDF
80 FR 11685 - Final Environmental Impact Statement/Wilderness Management Plan, Lake Mead National Recreation Area, Nevada/Bureau of Land Management, Southern Nevada DistrictPDF
80 FR 11548 - Drawbridge Operation Regulation; Chevron Oil Company Canal, Fourchon, LAPDF
80 FR 11548 - Drawbridge Operation Regulation; Appomattox River, Hopewell, VAPDF
80 FR 11547 - Special Local Regulation; Southern California Annual Marine Events for the San Diego Captain of the Port ZonePDF
80 FR 11691 - Reviewing and Assessing the Financial Condition of Operating Power Reactor Licensees, Including Requests for Additional InformationPDF
80 FR 11692 - Guidance for Evaluation of Acute Chemical Exposures and Proposed Quantitative StandardsPDF
80 FR 11689 - Overview of Cuban Imports of Goods and Services and Effects of U.S. RestrictionsPDF
80 FR 11536 - Automatic Dependent Surveillance-Broadcast (ADS-B) Out Performance Requirements To Support Air Traffic Control (ATC) Service; Technical Amendment; CorrectionPDF
80 FR 11633 - Proposed Information Collection; Comment Request; Certification Requirements for Distributors of NOAA Electronic Navigational Charts/NOAA Hydrographic ProductsPDF
80 FR 11633 - Proposed Information Collection; Comment Request; Reporting of Sea Turtle Incidental Take in Virginia Chesapeake Bay Pound Net OperationsPDF
80 FR 11661 - Application To Export Electric Energy; Brookfield Energy Marketing LPPDF
80 FR 11684 - Johnson O'Malley ProgramPDF
80 FR 11668 - National Environmental Justice Advisory Council; Notification of Public Teleconference Meeting and Public CommentPDF
80 FR 11679 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; State Annual Long-Term Care Ombudsman Report and InstructionsPDF
80 FR 11676 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial ReviewPDF
80 FR 11677 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial ReviewPDF
80 FR 11675 - Board of Scientific Counselors, Office of Public Health Preparedness and Response, (BSC, OPHPR)PDF
80 FR 11677 - Advisory Board on Radiation and Worker Health (ABRWH or Advisory Board), National Institute for Occupational Safety and Health (NIOSH)PDF
80 FR 11595 - Department of the Treasury Acquisition Regulation; Technical AmendmentsPDF
80 FR 11598 - Importation, Interstate Movement, and Release Into the Environment of Certain Genetically Engineered OrganismsPDF
80 FR 11664 - Notice of Procedure Requiring Designation of U.S. Resident Agent for Applicants and Authorization Holders That Neither Reside in Nor Have a Place of Business or Other Corporate Presence in the United StatesPDF
80 FR 11680 - Notice of Intent To Award a Single Source Non-Competing Continuation Cooperative Agreement to Amputee CoalitionPDF
80 FR 11629 - Eldorado National Forest; California; Eldorado National Forest Over-Snow Vehicle (OSV) Use Designation Environmental Impact StatementPDF
80 FR 11675 - Agency Information Collection Activities; Proposed Collection; Public Comment RequestPDF
80 FR 11661 - Application To Export Electric Energy; Nalcor Energy Marketing CorporationPDF
80 FR 11631 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
80 FR 11687 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
80 FR 11688 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
80 FR 11674 - Commission To Eliminate Child Abuse and Neglect Fatalities; Announcement of MeetingPDF
80 FR 11717 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Order Granting Accelerated Approval of a Proposed Rule Change To Amend Exchange Rules Related To Order TicketsPDF
80 FR 11666 - Columbia Gas Transmission, LLC; Notice of ApplicationPDF
80 FR 11667 - Combined Notice of Filings #1PDF
80 FR 11667 - Increasing Market and Planning Efficiency Through Improved Software; Notice of Technical Conference: Increasing Real-Time and Day-Ahead Market Efficiency Through Improved SoftwarePDF
80 FR 11721 - Notice of Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B (Formerly Subpart Q) During the Week Ending December 6, 2014PDF
80 FR 11722 - Notice of Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B (Formerly Subpart Q) During the Week Ending December 13, 2014PDF
80 FR 11722 - Notice of Applications for Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits Filed Under Subpart B (Formerly Subpart Q) During the Week Ending December 20, 2014PDF
80 FR 11678 - Proposed Information Collection Activity; Comment RequestPDF
80 FR 11660 - Agency Information Collection Activities; Comment Request; 2015-16 National Teacher and Principal Survey (NTPS) Full-Scale Data CollectionPDF
80 FR 11600 - Information Returns; Winnings From Bingo, Keno, and Slot MachinesPDF
80 FR 11671 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
80 FR 11683 - Office of Cybersecurity and Communications, National Protection and Programs Directorate Notice of Meeting Regarding Information Sharing and Analysis OrganizationsPDF
80 FR 11674 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
80 FR 11706 - Self-Regulatory Organizations; Municipal Securities Rulemaking Board; Notice of Filing of Amendment No. 1 and Amendment No. 2 and Order Granting Accelerated Approval of a Proposed Rule Change Consisting of Proposed Amendments to MSRB Rules G-1, on Separately Identifiable Department or Division of a Bank; G-2, on Standards of Professional Qualification; G-3, on Professional Qualification Requirements; and D-13, on Municipal Advisory ActivitiesPDF
80 FR 11673 - Notice of Agreements FiledPDF
80 FR 11726 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to an Exploration Drilling Program in the Chukchi Sea, AlaskaPDF
80 FR 11634 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Shell Ice Overflight Surveys in the Beaufort and Chukchi Seas, AlaskaPDF
80 FR 11648 - Taking of Marine Mammals Incidental to Specified Activities; Anacortes Tie-Up Slips Dolphin and Wingwall ReplacementPDF
80 FR 11806 - Wireless E911 Location Accuracy RequirementsPDF
80 FR 11695 - Self-Regulatory Organizations; BATS Exchange, Inc.; Notice of Filing of a Proposed Rule Change To Amend Rules 11.9, 11.12, and 11.13 of BATS Exchange, Inc.; CorrectionPDF
80 FR 11713 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending the NYSE Arca Options Fee SchedulePDF
80 FR 11715 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.11, Routing to Away Trading Centers, To Delete References to the ROLF Routing Option, Which Routed Orders to LavaFlow ECNPDF
80 FR 11712 - Self-Regulatory Organizations; EDGA Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 11.11, Routing to Away Trading Centers, To Delete References to the ROLF Routing Option, Which Routed Orders to LavaFlow ECNPDF
80 FR 11695 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change Relating to Revisions to the Definitions of Non-Public Arbitrator and Public ArbitratorPDF
80 FR 11690 - Notice of Lodging of Proposed Consent Decree Under the Resource Conservation and Recovery ActPDF
80 FR 11689 - Notice of Lodging of Proposed Consent Decree Under the Resource Conservation and Recovery ActPDF
80 FR 11673 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
80 FR 11594 - Rural Call Completion Recordkeeping and Reporting RequirementsPDF
80 FR 11634 - Caribbean Fishery Management Council; Public MeetingPDF
80 FR 11682 - Center for Scientific Review; Amended Notice of MeetingPDF
80 FR 11682 - National Institute of Neurological Disorders and Stroke; Notice of MeetingPDF
80 FR 11679 - Proposed Information Collection Activity; Comment RequestPDF
80 FR 11669 - Notice of Intent To Suspend Certain Pesticide RegistrationsPDF
80 FR 11577 - Approval and Promulgation of Air Quality Implementation Plans, State Plans for Designated Facilities and Pollutants, and Operating Permits Program; State of MissouriPDF
80 FR 11610 - Approval and Promulgation of Air Quality Implementation Plans, State Plans for Designated Facilities and Pollutants, and Operating Permits Program; State of MissouriPDF
80 FR 11722 - Unblocking of Specially Designated Nationals and Blocked Persons Pursuant to the Foreign Narcotics Kingpin Designation ActPDF
80 FR 11589 - 9-Octadecenoic Acid (9ZPDF
80 FR 11680 - Endocrinologic and Metabolic Drugs Advisory Committee; Notice of MeetingPDF
80 FR 11681 - Pediatric Advisory Committee; Notice of MeetingPDF
80 FR 11580 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation Request and Associated Maintenance Plan for the Reading, Pennsylvania Nonattainment Area for the 1997 Annual Fine Particulate Matter Standard, and 2007 Base Year InventoryPDF
80 FR 11557 - Approval and Promulgation of Air Quality Implementation Plans; Virginia; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality StandardsPDF
80 FR 11659 - Credit Union Advisory Council MeetingPDF
80 FR 11619 - General Services Administration Acquisition Regulation (GSAR); Transactional Data ReportingPDF
80 FR 11778 - Family Advocacy Program (FAP)PDF
80 FR 11607 - Safety Zone; Rotary Club of Fort Lauderdale New River Raft Race, New River; Fort Lauderdale, FLPDF
80 FR 11611 - Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various CommoditiesPDF
80 FR 11583 - Metaldehyde; Pesticide TolerancesPDF
80 FR 11573 - Approval and Promulgation of Implementation Plans; Arkansas; Revisions for the Regulation and Permitting of Fine Particulate MatterPDF
80 FR 11537 - Air Carrier Contract Maintenance RequirementsPDF
80 FR 11614 - Permitting Remote Pickup Broadcast Auxiliary Stations To Utilize Modern Digital TechnologiesPDF
80 FR 11535 - Airworthiness Directives; Rolls-Royce plc Turbofan EnginesPDF

Issue

80 42 Wednesday, March 4, 2015 Contents Advisory Council on Historic Preservation See

Historic Preservation, Advisory Council

Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

See

Forest Service

Animal Animal and Plant Health Inspection Service PROPOSED RULES Importation, Interstate Movement, and Release Into the Environment of Certain Genetically Engineered Organisms, 11598-11599 2015-04463 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Meetings: Credit Union Advisory Council, 11659-11660 2015-04360 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Advisory Board on Radiation and Worker Health, National Institute for Occupational Safety and Health, 11677-11678 2015-04465 Board of Scientific Counselors, Office of Public Health Preparedness and Response, 11675-11676 2015-04466 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 11676-11677 2015-04411 2015-04468 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel; Corrections, 11676-11677 2015-04467 2015-04469 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Evaluation and System Design for the Next Generation of HPOG Career Pathways Programs, 11679 2015-04404 Low Income Home Energy Assistance Program Carryover and Re-allotment Report, 11678-11679 2015-04441 Coast Guard Coast Guard RULES Drawbridge Operations: Appomattox River, Hopewell, VA, 11548 2015-04482 Chevron Oil Company Canal, Fourchon, LA, 11548-11550 2015-04483 Special Local Regulations: Southern California Annual Marine Events for the San Diego Captain of the Port Zone, 11547-11548 2015-04481 PROPOSED RULES Safety Zones: Rotary Club of Fort Lauderdale New River Raft Race, New River, Fort Lauderdale, FL, 11607-11610 2015-04284 Commerce Commerce Department See

Economic Development Administration

See

Foreign-Trade Zones Board

See

National Oceanic and Atmospheric Administration

Community Living Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Annual Long-Term Care Ombudsman Report and Instructions, 11679-11680 2015-04470 Cooperative Agreements: Amputee Coalition, 11680 2015-04460 Copyright Royalty Board Copyright Royalty Board NOTICES Distribution of 2013 Cable Royalty Funds, 11690-11691 2015-04509 Defense Department Defense Department RULES Family Advocacy Program, 11778-11804 2015-04310 Economic Development Economic Development Administration NOTICES Trade Adjustment Assistance; Petitions, 11631 2015-04455 Education Department Education Department RULES Priorities, Requirements, Definitions, and Selection Criteria: State Tribal Education Partnership Program, 11550-11556 2015-04492 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2015-16 National Teacher and Principal Survey Full-Scale Data Collection, 11660-11661 2015-04439 Energy Department Energy Department See

Federal Energy Regulatory Commission

PROPOSED RULES Appliance Standards and Rulemaking Federal Advisory Committee Meeting and Webinar, 11599-11600 2015-04503 NOTICES Application to Export Electric Energy: Brookfield Energy Marketing, LP, 11661 2015-04473 Nalcor Energy Marketing Corp., 11661-11662 2015-04456 Noble Americas Gas and Power Corp., 11662 2015-04457 Applications to Export Electric Energy: Noble Americas Gas and Power Corp., 11662-11663 2015-04500 Sempra Generation, LLC, 11663-11664 2015-04497 Vitol Inc., 11664 2015-04499 Designation Procedures: U.S. Resident Agent for Applicants and Authorization Holders that Neither Reside in Nor have a Place of Business or Other Corporate Presence in the U.S., 11664-11665 2015-04461 Meetings: Secretary of Energy Advisory Board, 11665-11666 2015-04501
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arkansas; Revisions for the Regulation and Permitting of Fine Particulate Matter, 11573-11577 2015-04270 Missouri; Designated Facilities and Pollutants, and Operating Permits Program, 11577-11580 2015-04400 Pennsylvania; Redesignation Request and Associated Maintenance Plan for the Reading, Pennsylvania Nonattainment Area for the 1997 Annual Fine Particulate Matter Standard, and 2007 Base Year Inventory, 11580-11583 2015-04391 Virginia; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standards, 11557-11573 2015-04377 Pesticide Tolerances: Metaldehyde, 11583-11588 2015-04277 Tolerance Requirements: 9-Octadecenoic Acid (9Z)-, Sulfonated, Oxidized and its Potassium and Sodium Salts; Exemption, 11588-11593 2015-04396 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Missouri; Designated Facilities and Pollutants, and Operating Permits Program, 11610-11611 2015-04399 Pesticide Tolerances: Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities, 11611-11614 2015-04281 NOTICES Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2013; Correction, 11668 2015-04487 Meetings: National Environmental Justice Advisory Council; Teleconference, 11668-11669 2015-04471 Pesticide Registrations; Suspensions, 11669-11671 2015-04402 Executive Office of the President See

Presidential Documents

Federal Aviation Federal Aviation Administration RULES Air Carrier Contract Maintenance Requirements, 11537-11547 2015-04179 Airworthiness Directives: Rolls-Royce plc Turbofan Engines, 11535-11536 2015-04044 Automatic Dependent Surveillance-Broadcast Out Performance Requirements to Support Air Traffic Control Service; Technical Amendment; Corrections, 11536-11537 2015-04476 Federal Communications Federal Communications Commission RULES Rural Call Completion Recordkeeping and Reporting Requirements, 11593-11594 2015-04415 Wireless E911 Location Accuracy Requirements, 11806-11841 2015-04424 PROPOSED RULES Permitting Remote Pickup Broadcast Auxiliary Stations to Utilize Modern Digital Technologies, 11614-11619 2015-04155 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 11671-11673 2015-04416 2015-04436 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Columbia Gas Transmission, LLC, 11666 2015-04448 Combined Filings, 11667 2015-04447 Meetings: Increasing Market and Planning Efficiency through Improved Software; Increasing Real-Time and Day-Ahead Market Efficiency Through Improved Software, 11667-11668 2015-04446 Federal Maritime Federal Maritime Commission NOTICES Agreements Filed, 11673-11674 2015-04428 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 11674 2015-04434 Food and Drug Food and Drug Administration NOTICES Meetings: Endocrinologic and Metabolic Drugs Advisory Committee, 11680-11681 2015-04395 Pediatric Advisory Committee, 11681-11682 2015-04394 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 11722-11723 2015-04398 Foreign Trade Foreign-Trade Zones Board NOTICES Authorized Production Activities: Komatsu America Corp. (Material Handling, Construction and Forestry Machinery), Newberry, SC; Foreign-Trade Zone 127, West Columbia, SC, 11632 2015-04494 Reorganizations under Alternative Site Frameworks: Foreign-Trade Zone 21, Charleston, SC, 11632-11633 2015-04505 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Eldorado National Forest Over-Snow Vehicle Use Designation, Eldorado National Forest, CA, 11629-11631 2015-04459 General Services General Services Administration PROPOSED RULES Acquisition Regulations: Transactional Data Reporting, 11619-11628 2015-04349 NOTICES Meetings: Commission to Eliminate Child Abuse and Neglect Fatalities, 11674-11675 2015-04452 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Children and Families Administration

See

Community Living Administration

See

Food and Drug Administration

See

National Institutes of Health

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 11675 2015-04458
Historic Historic Preservation, Advisory Council NOTICES Meetings: Quarterly Business Meeting, 11683 2015-04498 Homeland Homeland Security Department See

Coast Guard

NOTICES Meetings: Information Sharing and Analysis Organizations, 11683-11684 2015-04435
Indian Affairs Indian Affairs Bureau NOTICES Meetings: Johnson O'Malley Program, 11684-11685 2015-04472 Interior Interior Department See

Indian Affairs Bureau

See

Land Management Bureau

See

National Park Service

Internal Revenue Internal Revenue Service PROPOSED RULES Winnings from Bingo, Keno, and Slot Machines, 11600-11607 2015-04437 NOTICES Meetings: Taxpayer Advocacy Panel Tax Forms and Publications Project Committee, 11723 2015-04491 International Trade Com International Trade Commission NOTICES Complaints: Certain Electronic Devices, Including Wireless Communication Devices, Computers, Tablet Computers, Digital Media Players and Cameras, 11688-11689 2015-04453 Certain Wireless Standard Compliant Electronic Devices, Including Communication Devices and Tablet Computers, 11687-11688 2015-04454 Public Hearings: Overview of Cuban Imports of Goods and Services and Effects of U.S. Restrictions, 11689 2015-04477 Justice Department Justice Department NOTICES Proposed Consent Decrees under the Resource Conservation and Recovery Act, 11689-11690 2015-04417 2015-04418 Land Land Management Bureau NOTICES Plats of Surveys: New Mexico, 11685 2015-04507 Library Library of Congress See

Copyright Royalty Board

National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 11682 2015-04408 National Institute of Neurological Disorders and Stroke, 11682-11683 2015-04407 National Oceanic National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certification Requirements for Distributors of NOAA Electronic Navigational Charts/NOAA Hydrographic Products, 11633-11634 2015-04475 Reporting of Sea Turtle Incidental Take in Virginia Chesapeake Bay Pound Net Operations, 11633 2015-04474 Meetings: Caribbean Fishery Management Council, 11634 2015-04414 Takes of Marine Mammals: Anacortes Tie-Up Slips Dolphin and Wingwall Replacement, 11648-11659 2015-04425 Taking Marine Mammals Incidental to an Exploration Drilling Program in the Chukchi Sea, Alaska, 11726-11775 2015-04427 Taking Marine Mammals Incidental to Shell Ice Overflight Surveys in the Beaufort and Chukchi Seas, Alaska, 11634-11648 2015-04426 National Park National Park Service NOTICES Environmental Impact Statements; Availability, etc.: Wilderness Management Plan, Lake Mead National Recreation Area, NV, 11685-11686 2015-04485 Requests for Nominations: Native American Graves Protection and Repatriation Review Committee, 11686-11687 2015-04486 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Guidance: Evaluation of Acute Chemical Exposures and Proposed Quantitative Standards, 11692-11693 2015-04478 Reviewing and Assessing the Financial Condition of Operating Power Reactor Licensees, Including Requests for Additional Information, 11691-11692 2015-04479 Scope Expansion of the Post-Investigation Alternative Dispute Resolution Program, 11693-11695 2015-04490 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: American Red Cross Month (Proc. 9235), 11843-11846 2015-04513 Irish-American Heritage Month (Proc. 9236), 11847-11848 2015-04514 National Colorectal Cancer Awareness Month (Proc. 9237), 11849-11850 2015-04515 National Consumer Protection Week (Proc. 9239), 11853-11854 2015-04517 Read Across America Day (Proc. 9240), 11855-11856 2015-04518 Women's History Month (Proc. 9238), 11851-11852 2015-04516 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: BATS Exchange, Inc., 11695 2015-04423 Chicago Board Options Exchange, Inc., 11717-11718 2015-04451 EDGA Exchange, Inc., 11712-11713 2015-04420 EDGX Exchange, Inc., 11715-11717 2015-04421 Financial Industry Regulatory Authority, Inc., 11695-11706 2015-04419 Municipal Securities Rulemaking Board, 11706-11712 2015-04431 NYSE Arca, Inc., 11713-11715 2015-04422 Trading Suspension Orders: Adex Media, Inc., et al., 11718-11720 2015-04510 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Affidavit of Relationship for Minors Who are Nationals of El Salvador, Guatemala and Honduras, 11720-11721 2015-04506 Transportation Department Transportation Department See

Federal Aviation Administration

NOTICES Certificates of Public Convenience and Necessity and Foreign Air Carrier Permits; Applications, 11721-11722 2015-04442 2015-04444 2015-04445
Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

RULES Acquisition Regulations: Technical Amendments, 11595-11597 2015-04464
Separate Parts In This Issue Part II Commerce Department, National Oceanic and Atmospheric Administration, 11726-11775 2015-04427 Part III Defense Department, 11778-11804 2015-04310 Part IV Federal Communications Commission, 11806-11841 2015-04424 Part V Presidential Documents, 11843-11856 2015-04513 2015-04514 2015-04515 2015-04517 2015-04518 2015-04516 Reader Aids

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80 42 Wednesday, March 4, 2015 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2014-0328; Directorate Identifier 2014-NE-07-AD; Amendment 39-18108; AD 2015-04-06] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce plc Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all Rolls-Royce plc (RR) RB211 Trent 875-17, 877-17, 884-17, 884B-17, 892-17, 892B-17, and 895-17 turbofan engines. This AD requires modification of the engine by installing upgraded software in the electronic engine control (EEC) or by removing any EEC that incorporates a software standard prior to B7.2 and installing an EEC eligible for installation. This AD was prompted by failure of the intermediate pressure (IP) turbine disk drive arm and subsequent overspeed and burst of the IP turbine disk on an RR RB211 Trent turbofan engine. We are issuing this AD to prevent overspeed of the IP turbine disk, resulting in failure of the turbine blades or the IP turbine disk and subsequent uncontained release of the turbine disk and/or blades, which could lead to damage to the engine and damage to the airplane.

DATES:

This AD becomes effective April 8, 2015.

ADDRESSES:

For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email: http://www.rolls-royce.com/contact/civil_team.jsp; Internet: https://www.aeromanager.com. You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2014-0328; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the mandatory continuing airworthiness information (MCAI), the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Wego Wang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7134; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to the specified products. The NPRM was published in the Federal Register on July 11, 2014 (79 FR 40018). The NPRM proposed to correct an unsafe condition for the specified products. The MCAI states:

A Trent engine experienced an engine internal fire, caused by combustion of carbon deposits inside the high/intermediate (HP/IP) oil vent tubes. The consequent chain of events resulted in the failure of the IP turbine disk drive arm. Similar engine architecture exists on Trent 800 series engines.

This condition, if not corrected, could lead to uncontained multiple turbine blade failures or an IP turbine disk burst, possibly resulting in damage to, and reduced control of, the aeroplane.

Prompted by these findings, an Intermediate Pressure Turbine Overspeed System (IPTOS) protection scheme has been developed for Trent 800 engines installed on Boeing 777 aeroplanes.

For the reasons described above, this AD requires introduction of the IPTOS protection function by installation of a new software standard (B7.2) in the engine electronic controller (EEC), which will protect against IP turbine overspeed when IP shaft failure is detected.

Since we issued the NPRM (79 FR 40018, July 11, 2014), we issued a supplemental NPRM (79 FR 70475, November 26, 2014) to amend the costs of compliance and to more clearly state certain compliance requirements. Since we issued the supplemental NPRM, we changed paragraph (e) of this AD for clarity.

Comments

We gave the public the opportunity to participate in developing this AD. We considered the comments received.

Request To Modify the Installation Prohibition Paragraph

American Airlines (AA) requested that we modify the Installation Prohibition paragraph (f) to allow installation of an EEC with a software standard earlier than B7.2, and coincident on-wing upgrade of the software standard to B7.2 or later, but prohibit operation of an engine that incorporates a software standard earlier than B7.2. AA states that the EEC original equipment manufacturer does not update the software as part of a component shop visit.

We agree. We modified the Installation Prohibition paragraph (f) to allow installation of an EEC with a software standard earlier than B7.2, but to prohibit operation of an engine with a software standard earlier than B7.2.

Conclusion

We reviewed the available data, including the comment received, and determined that air safety and the public interest require adopting this AD with the changes described previously. We determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

Costs of Compliance

We estimate that this AD affects about 140 engines installed on airplanes of U.S. registry. We also estimate that it would take about 2 hours per engine to comply with this AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $23,800.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

Adoption of the Amendment

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-04-06 Rolls-Royce plc Turbofan Engines: Amendment 39-18108; Docket No. FAA-2014-0328; Directorate Identifier 2014-NE-07-AD. (a) Effective Date

This AD becomes effective April 8, 2015.

(b) Affected ADs

None.

(c) Applicability

This AD applies to all Rolls-Royce plc (RR) RB211 Trent 875-17, 877-17, 884-17, 884B-17, 892-17, 892B-17, and 895-17 turbofan engines.

(d) Reason

This AD was prompted by failure of the intermediate pressure (IP) turbine disk drive arm and subsequent overspeed and burst of the IP turbine disk on an RR RB211 Trent turbofan engine. We are issuing this AD to prevent overspeed of the IP turbine disk, resulting in failure of the turbine blades or the IP turbine disk and subsequent uncontained release of the turbine disk and/or blades, which could lead to damage to the engine and damage to the airplane.

(e) Actions and Compliance

Twelve months after the effective date of this AD, do not operate any engine with an electronic engine control (EEC) software standard earlier than B7.2.

(f) Installation Prohibition

After removing any software standard earlier than B7.2 from an ECC on any engine, do not operate that engine with any software standard earlier than B7.2.

(g) Alternative Methods of Compliance (AMOCs)

The Manager, Engine Certification Office, FAA, may approve AMOCs to this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to: [email protected]

(h) Related Information

(1) For more information about this AD, contact Wego Wang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781-238-7134; fax: 781-238-7199; email: [email protected]

(2) Refer to MCAI European Aviation Safety Agency AD 2014-0051, dated March 6, 2014, for more information. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov/#!documentDetail;D=FAA-2014-0328-0003.

(3) RR Alert Service Bulletin No. RB.211-73-AH001, dated July 17, 2013, which is not incorporated by reference in this AD, can be obtained from Rolls-Royce plc, using the contact information in paragraph (h)(4) of this AD.

(4) For service information identified in this AD, contact Rolls-Royce plc, Corporate Communications, P.O. Box 31, Derby, England, DE24 8BJ; phone: 011-44-1332-242424; fax: 011-44-1332-249936; email: http://www.rolls-royce.com/contact/civil_team.jsp; or Internet: https://www.aeromanager.com.

(5) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

(i) Material Incorporated by Reference

None.

Issued in Burlington, Massachusetts, on February 19, 2015. Colleen M. D'Alessandro, Assistant Directorate Manager, Engine & Propeller Directorate, Aircraft Certification Service.
[FR Doc. 2015-04044 Filed 3-3-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 91 [Docket No. FAA-2007-29305; Amdt. No. 91-336A] RIN 2120-AI92 Automatic Dependent Surveillance-Broadcast (ADS-B) Out Performance Requirements To Support Air Traffic Control (ATC) Service; Technical Amendment; Correction AGENCY:

Federal Aviation Administration, DOT.

ACTION:

Final rule; correction of a technical amendment.

SUMMARY:

The FAA is correcting a final rule technical amendment published on February 9, 2015 (80 FR 6899). In that final rule, which became effective on the date of publication, the FAA corrected errors in regulatory provisions addressing Automatic Dependent Surveillance-Broadcast Out equipment and use. The FAA inadvertently listed an incorrect Amendment Number for that final rule. This document corrects that error.

DATES:

Effective: March 4, 2015.

FOR FURTHER INFORMATION CONTACT:

For technical questions concerning this action, contact Robert F. Nichols, Jr., Surveillance Services Group Manager, AJM-23, Air Traffic Organization, Federal Aviation Administration, 600 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-0629; email [email protected]

For legal questions concerning this action, contact Lorelei Peter, Office of the Chief Counsel, AGC-200, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3073; email [email protected]

SUPPLEMENTARY INFORMATION: Background

On February 9, 2015, the FAA published a final rule technical amendment entitled, “Automatic Dependent Surveillance-Broadcast (ADS-B) Out Performance Requirements To Support Air Traffic Control (ATC) Service; Technical Amendment.” In that final rule, which became effective February 9, 2015, the FAA amended 14 CFR part 91. The FAA inadvertently listed the incorrect Amendment Number for part 91 in the header information of the final rule as 91-334. The correct amendment number is 91-336.

Correction

In the final rule, FR Doc. 2015-02579, published on February 9, 2015, at 80 FR 6899 make the following correction:

1. On page 6899 in the heading of the final rule, revise “Amdt. No. 91-334” to read “91-336”.

Issued in Washington, DC, under the authority provided by 49 U.S.C. 106(f), on February 26, 2015. Brenda D. Courtney, Acting Director, Office of Rulemaking.
[FR Doc. 2015-04476 Filed 3-3-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Parts 121 and 135 [Docket No.: FAA-2011-1136; Amdt. Nos. 121-371 and 135-132] RIN 2120-AJ33 Air Carrier Contract Maintenance Requirements AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

The Federal Aviation Administration (FAA) amends the maintenance regulations for domestic, flag, and supplemental operations, and for commuter and on-demand operations for aircraft type certificated with a passenger seating configuration of 10 seats or more (excluding any pilot seat). The new rules require affected air carriers and operators to develop policies, procedures, methods, and instructions for performing contract maintenance that are acceptable to the FAA, and to include them in their maintenance manuals. The rules also require the air carriers and operators to provide a list to the FAA of all persons with whom they contract their maintenance. These changes are needed because contract maintenance has increased to over 70 percent of all air carrier maintenance, and numerous investigations have shown deficiencies in maintenance performed by contract maintenance providers. These rules will help ensure consistency between contract and in-house air carrier maintenance and enhance the oversight capabilities of both the air carriers and the FAA.

DATES:

Effective May 4, 2015 except for §§ 121.368 and 135.426 which contain information collection requirements that have not been approved by the Office of Management and Budget (OMB). The FAA will publish a document in the Federal Register announcing the effective date.

ADDRESSES:

For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

For technical questions concerning this action, contact Wende T. DiMuro, AFS-330, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-1685; email [email protected]

For legal questions concerning this action, contact Edmund Averman, AGC-200, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-3147, email [email protected]

SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 447, Section 44701(a)(2)(A) and (B) and (5). Under that section, the FAA is charged with prescribing regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft, aircraft engines, propellers, and appliances, and equipment and facilities for, and the timing of and manner of, the inspecting, servicing and overhauling the FAA finds necessary for safety and commerce. This regulation is within the scope of that authority.

In addition, Public Law 112-95 (February 14, 2012), the “FAA Modernization and Reform Act of 2012” (the Act), in section 319 (Maintenance providers), requires the FAA to issue regulations “requiring that covered work on an aircraft used to provide air transportation under part 121 . . ., be performed by persons in accordance with subsection (b).” Subsection (b), in addition to listing persons authorized under existing regulations, referenced additional terms and conditions in subsection (c) that would apply to persons who provide contract maintenance workers, services, or maintenance functions to a part 121 air carrier for covered work. The Act mandates that the contracting part 121 air carrier be directly in charge of covered work, as defined by the Act, being performed for the carrier under contract, and that the work be done under the supervision and control of the air carrier. These statutory requirements are addressed in this rule.

I. Overview of Final Rule

The FAA is amending Title 14, Code of Federal Regulations (14 CFR) §§ 121.368, 121.369, 135.426, and 135.427. These amendments apply to certificate holders who conduct domestic, flag, or supplemental operations under part 121, and to certificate holders who conduct commuter operations or on-demand operations with aircraft type certificated for a passenger seating configuration, excluding any pilot seat, of ten seats or more 1 under part 135, if the carriers contract any of their maintenance, preventive maintenance, or alteration work to an outside source.2 As required by the Act, this final rule addresses the performance of “covered work.” It codifies the statutory definition of the term, and includes requirements for the performance of that work, to include that the certificate holder must be directly in charge of it; the covered work must be carried out in accordance with the certificate holder's manual; and that work must be carried out under the supervision and control of the certificate holder.

1 For brevity throughout this preamble, we will refer to these aircraft as “10 or more seats” aircraft.

2 For brevity throughout this preamble, we will refer to all of these classes of certificate holders as “air carriers.”

While the Act addresses only contracted work on aircraft operated by part 121 certificate holders, the FAA is also applying the same requirements to part 135 certificate holders who operate the larger aircraft, those with 10 or more seats. As stated elsewhere in this preamble, this rulemaking began before passage of the Act in 2012, and the FAA had proposed amendments to both parts 121 and 135. After the Act's passage, the FAA accommodated the new requirements. In addition to including the requirements mandated by the Act, this final rule requires that each certificate holder who contracts for such work must first have developed policies, procedures, methods, and instructions for the accomplishment of that work, and that if they are followed, the work will be performed in accordance with the certificate holder's maintenance program and maintenance manual. Each certificate holder will be required to ensure that its system for the continuing analysis and surveillance of that work contains procedures for its oversight. All of these policies, procedures, methods, and instructions must be acceptable to the FAA and be included in the certificate holder's maintenance manual. In addition, each certificate holder who contracts any of its maintenance, preventive maintenance, or alteration work to an outside source will be required to provide to its local FAA Certificate Holding District Office a list that includes the name and address of each maintenance provider it uses, and a description of the type of maintenance the contractor would perform.

II. Background A. Statement of the Problem

Air carrier maintenance has evolved from mostly an “in-house” operation to an extended network of maintenance providers that fulfill contracts with air carriers to perform their aircraft maintenance. Under §§ 121.363 and 135.413 each air carrier remains primarily responsible for the airworthiness of its aircraft regardless of whether the maintenance is contracted to another person. Any person performing maintenance for an air carrier must follow the air carrier's maintenance manual. However, air carrier general maintenance manuals often are geared toward in-house maintenance. They fail to provide the necessary instructions to maintenance providers to enable them to follow the air carrier's maintenance programs. This is exacerbated when an air carrier's manual contains proprietary data or other confidential information that an air carrier may not want to share with a maintenance provider. Often, the maintenance provider may also work on a competitor's aircraft. Consequently, air carriers often are reluctant to share such information, and therefore, often do not.

In addition, the FAA has found that, although an air carrier is required to list its maintenance providers and a general description of the work to be done in its maintenance manual, these lists are not always kept up to date, are not always complete, and are not always in a format that is readily useful for FAA oversight and analysis purposes. The FAA needs this information to be complete and readily available in order to plan surveillance of air carrier maintenance programs and determine the extent to which maintenance providers are performing their work according to the air carrier's maintenance manual. Without accurate and complete information on the work being performed for air carriers, the FAA cannot adequately target its inspection resources for surveillance and make accurate risk assessments.

B. Summary of the NPRM

On November 13, 2012, the FAA published a Notice of Proposed Rulemaking (NPRM), Notice No. 12-07, entitled “Air Carrier Contract Maintenance Requirements,” 77 FR 67584. The NPRM proposed to amend the maintenance regulations for domestic, flag, and supplemental operations, and for commuter and on-demand operations for aircraft type certificated with a passenger seating configuration of 10 seats or more.

In addition to proposing requirements pertaining to covered work as required by the Act, the FAA proposed to require operators to develop policies, procedures, methods, and instructions for performing contract maintenance that are acceptable to the FAA and to include them in their maintenance manuals. The NPRM also proposed to require the operators to provide a list to the FAA of all persons with whom they contract their maintenance. These lists would include the physical addresses where the work would be carried out and a description of the type of work performed at each location. The FAA proposed these changes because contract maintenance has increased to over 70 percent of all air carrier maintenance, and numerous investigations found deficiencies in maintenance performed by contract maintenance providers. The proposed changes were intended to help ensure consistency between contract and in-house maintenance and to enhance the oversight capabilities of both the operators and the FAA. The NPRM comment period closed on February 11, 2013.

C. General Overview of Comments

The FAA received 43 comments. Twenty were from air carriers; nineteen were from Associations that represent air carriers and repair stations; and nine were from individuals involved in aviation. Several commenters disagreed with some of the proposals, and some suggested changes. These will be discussed more fully in the sections below.

The FAA received comments on the following general areas of the proposal:

• “Supervision and Control” and “Directly in Charge”;

• Covered work;

• Redundancy in many areas;

• Exclusion of part 135 air carriers;

• Part 135 and Overall estimated costs;

• Reporting requirement.

III. Discussion of Public Comments and Final Rule A. “Supervision and Control” and “Directly in Charge”

The FAA proposed definitions for “directly in charge” and “supervision and control” in new §§ 121.368(a)(3) and (4), and 135.426(a)(3) and (4), but is adopting only the former term. As proposed in the NPRM, this new rule defines directly in charge to mean: “having responsibility for covered work performed by a maintenance provider. A representative of the certificate holder directly in charge of covered work does not need to physically observe and direct each maintenance provider constantly, but must be available for consultation on matters requiring instruction or decision.” The proposal would have defined supervision and control to mean “that a representative of the certificate holder must be available to personally observe the covered work being done to the extent necessary to ensure it is being done properly; and when the representative was not physically present to observe the work, the representative would have had to be available for consultation on matters requiring instruction or decision.” The FAA is not adopting its proposed definition of “supervision and control” for reasons discussed below.

Several commenters—FEDEX, NetJets, Transportation Trades Department (TTD), Aeronautical Repair Station Association (ARSA), and others—objected to the proposed definitions of “directly in charge” and “supervision and control.” They found the definitions confusing and maintained they were not mandated by the Act. The commenters stated they are confused as to whether and how the representative was required to be “available.” The National Business Aviation Association (NBAA) was concerned that some part 135 operators would be required to send the operator's one and only maintenance person to be available on-site anytime an aircraft of the operator was being repaired or undergoing routine maintenance. Ameriflight stated that the term “available” is vague, and may be interpreted as widely as “in the immediate vicinity of,” “by telephone,” or “by internet,” etc. The Professional Aviation Safety Specialists (PASS) stated that the proposed definitions should be more stringent, and that air carriers should be physically present to observe the work being performed. PASS believed that the definitions proposed were contrary to the intent of the Act because, without modification, there would be no change from current practices. TTD expressed the same concerns.

Aviation Technical Services (ATS) stated that the term “to the extent necessary” is insufficient. It believed this term provides no standards for an air carrier, but establishes that the amount of supervision is at the air carrier's discretion until that supervision proves inadequate and a noncompliance occurs. This commenter suggested that this term should either be amended or deleted.

Upon review, the FAA agrees that the proposed definition of “supervision and control” lacks clarity. Accordingly, we are withdrawing this definition because it is not necessary in view of the “directly in charge” requirement, although the regulations will contain the phrase consistent with the Act's use of it. Nearly constant presence for personal observation of work by an air carrier would seem to be required by the proposed “supervision and control” definition, with unfettered discretion by the air carrier to determine the meaning of “to the extent necessary.” Moreover, the last clause in the definition is nearly identical to that in the proposed and adopted definition of “directly in charge.” The FAA acknowledges that physical presence at the maintenance site is unnecessary for two reasons. One, with the state of information technology today, a person can acquire sufficient data to make a reasonably accurate decision or provide adequate instruction without having to be on site. Two, to require the physical presence of an observer at all locations where contracted covered work is performed would be extremely cost prohibitive. As such, the commenters' concerns regarding confusion between the two definitions, and over the interpretation of “to the extent necessary,” are resolved.

On the other hand, the FAA does not believe that the definition of “directly in charge” is confusing. A similar and consistent definition is in §§ 121.378 and 135.435(b) since at least 1966, and in § 145.3 since 2001. That phrase has not caused confusion in all the years it has been in these regulations. Therefore, we believe the definition proposed in the NPRM is clear.

Finally, regarding possible meanings of the term “available,” the FAA notes that Ameriflight is correct that the term could be broadly interpreted. However, this term is not intended to be a limiting factor of the rule. Broad interpretation of “available” allows an air carrier the flexibility to use numerous information technology methods—such as high resolution photographs, text messaging, or the internet—to acquire the information necessary to make decisions and provide instructions. Therefore, this term is retained in the definition of “directly in charge.”

B. Covered Work

Until this rule, the FAA's maintenance regulations did not define “covered work.” With one change from what it proposed, the FAA now defines “covered work” exactly as set forth in the Act 3 in §§ 121.368(a)(2) and 135.426(a)(2). “Covered work” means any of the following: “(i) Essential maintenance that could result in a failure, malfunction, or defect endangering the safe operation of an aircraft if not performed properly or if improper parts or materials are used; (ii) Regularly scheduled maintenance; or (iii) A required inspection item on an aircraft.” While it was the FAA's intent to propose without change the definition in the Act, the term “parts or” was inadvertently omitted in front of the word “materials” in subparagraph (i). This omission is corrected in this final rule.

3 The FAA's proposed, and final, definition contains one other difference from that set forth in the Act. Sections 121.368(a)(2)(iii) and 135/426(a)(2)(iii) state: “A required inspection item on an aircraft,” whereas the Act's definition states “A required inspection item (as defined by the Administrator.” The FAA's definition, however, comports with that in the Act, because the agency has limited (e.g., in Operations Specifications paragraph D-091 and Advisory Circular AC 120-16F) a Required Inspection Item (RII) to encompass only “on-wing” maintenance or alterations. Accordingly, by including the phrase “on an aircraft” in the rule's definition, the Act's mandate of “as defined by the Administrator” is satisfied.

Several commenters requested clarity on two of the terms used in the definition of “covered work”: “essential maintenance” and “regularly scheduled maintenance.” With respect to essential maintenance, ARSA stated that when terms are not defined in the legislation, the agency must rely on current usage.

Regarding ARSA's comment, we note that paragraph (d) of Operations Specifications paragraph D-091. Requirements: Air Carrier Maintenance Providers, provides that “essential maintenance” is “on-wing” maintenance. Nothing in this rule, or in the Act's definition of “covered work” expands essential maintenance to include “off-wing” maintenance. Therefore, the agency is relying on current usage for this term. Paragraph d of Operations Specifications paragraph D-091 states:

Essential maintenance encompasses any Required Inspection Item on-wing accomplished after any maintenance or alteration. This maintenance, if done improperly or if improper parts or materials were used, would result in a failure effect that would endanger the continued safe flight and landing of the airplane. Essential maintenance is the accomplishment of the air carrier designated inspection item on wing. Essential maintenance does not encompass any off wing maintenance.

We also note that neither the Act nor the FAA's proposed rule attempted to define the term “essential maintenance.” When Congress defined “covered work” in section 319(d)(1) of the Act, one of the three items it included (in subparagraph (A)) was “essential maintenance.” The modifying text limits the scope to maintenance that “could result in a failure, malfunction, or defect endangering the safe operation of an aircraft if not performed properly. . . .” This limiter was excerpted from the FAA's definition found in operations specifications paragraph D-091 and in Advisory Circular AC 120-16F.

Airbus, Airlines for America (A4A), Aerospace Industries Association (AIA), United Parcel Service (UPS), and a private citizen expressed concern over whether “essential maintenance,” as defined in proposed §§ 121.368(a)(2)(i) and 135.426(a)(2)(i), includes on-wing maintenance but not off-wing maintenance. AIA stated that AC 120-16F defined “essential maintenance” as not encompassing any off-wing maintenance. A4A believes “essential maintenance” traditionally excludes off-wing maintenance, and that expanding the scope to include off-wing maintenance would significantly impact air carriers, and requested the FAA to clarify that “essential maintenance” applies only to on-wing maintenance. Southwest Airlines stated that the lack of “on an aircraft” in the definition for essential maintenance and regularly scheduled maintenance renders the definition over-broad. In addition, various commenters stated there is no justification for on-wing maintenance to be more stringent than off-wing maintenance.

The Act is silent as to whether the maintenance at issue was meant to be restricted to on-wing maintenance or whether off-wing maintenance was also contemplated. The Act's definition of “covered work,” especially in view of its inclusion in subparagraph (C) of: “A required inspection item (as defined by the Administrator),” makes clear that Congress did not intend to change the FAA's longstanding definition of “essential maintenance” to include all off-wing maintenance under the heading of covered work. The FAA's longstanding guidance and practice has been that required inspection items (RII) are safety of flight items on an aircraft that require a “second set of eyes,” that is, an additional inspection and sign off for the item. The provision that covered work includes RIIs “as defined by the Administrator” contemplates continued consistency in this area. Indeed, the NPRM proposed, and this final rule includes, in §§ 121.368(a)(2)(iii) and 135.426(a)(2)(iii): “A required inspection item on an aircraft.” Although this subparagraph is separate from and in addition to the inclusion of “essential maintenance” in the Act's subparagraph (A) of § 319(d)(1), the overall context is clear that essential maintenance is meant to continue to apply only to on-wing maintenance.

We agree with ARSA that that when terms are not defined in this legislation, the agency should rely on current usage. Accordingly, the term “essential maintenance,” as used both in the Act and in this final rule, is restricted to on-wing maintenance. We note, however, that covered work also includes “Regularly scheduled maintenance.” This term necessarily includes some “off-wing” maintenance. This would occur, for example, in cases in which a component (e.g., an engine, landing gear, etc.) is scheduled for removal and overhaul, or when other off-wing maintenance is scheduled at some regular interval. Covered work, for purposes of §§ 121.368(b), (c), and (d) and 135.426(b), (c), and (d), does not include other non-scheduled or non-routine off-wing maintenance.

Several commenters stated that the proposed regulations do not address non-scheduled maintenance. The FAA notes that covered work, both as proposed and in this final rule, includes both essential maintenance and required inspection items, both of which include non-scheduled maintenance. In addition, the other new requirements that address both covered work and all other contracted maintenance, such as the requirements for air carriers to develop policies, procedures, methods, and instructions for accomplishing all contracted maintenance, necessarily include both scheduled and non-scheduled work.

C. Exclusion of Part 135 Air Carriers

Part 135 contains nearly identical requirements to those in part 121 for maintenance performed on certificate holders' aircraft. For example, similar to the authorizations in part 121, part 135 permits persons other than the certificate holder to perform maintenance on aircraft operated under that part. (See, e.g., §§ 135.425 and 135.437.) Also similar to requirements in part 121, part 135 requires that a certificate holder's manual contain the maintenance program that must be followed when maintenance is performed on the certificate holder's aircraft. (See § 135.427(b).) Further, similar to the requirement in § 121.369(a), § 135.427(a) requires each certificate holder to put in its manual a list of persons with whom it has arranged for the performance of its maintenance.

Even though both parts 121 and 135 require that the certificate holders' maintenance manuals and programs be followed for both in-house and out-sourced maintenance, as we explained in the NPRM, both the FAA and the Office of Inspector General found that too often certificate holders' programs were not followed by contract maintenance providers. The FAA is adopting this final rule in an attempt to close this gap. The agency believes that by requiring certificate holders to develop policies, procedures, methods, and instructions for the accomplishment of contract maintenance in accordance with the certificate holders' programs, contract maintenance providers will be better equipped to more closely follow them. Moreover, by enhancing the existing requirement that certificate holders provide a list of their maintenance providers to the FAA, to now include each provider's physical address where the work is being performed and a description of the maintenance being done at each location, the FAA's ability to provide meaningful surveillance will be enhanced. The need for these enhancements applies equally to both part 121 and part 135 certificate holders.

D. Estimated Costs

Several commenters stated that the FAA erred in assuming the estimated costs of compliance would be less for part 135 operators than for part 121 operators. The FAA agrees, and to address this issue the FAA is using the same cost estimating methodology for both part 121 and part 135 air carriers. The cost estimates included in the regulatory evaluation for this final rule are based on entity size (large vs. small) rather than on whether a certificate holder operates under part 121 or part 135, because entity size is a more relevant parameter for cost estimation than the part under which an air carrier operates.

Several commenters believed the cost estimates for the proposal did not take into consideration added administrative costs, people resources, technology development, data systems, and publications infrastructure. The FAA does not agree. The agency believes that administrative costs, people resources, technology development, data systems, and publications infrastructures should already be in place to comply with current regulatory requirements. Therefore, these are not additional costs of the rule.

The agency estimated the costs associated with creating lists and any changes to the manual.

Several commenters stated that the FAA did not consider training costs.

The FAA agrees that additional costs would be incurred in training personnel on the changes to the contract maintenance requirements. These training costs have been captured in the “familiarization cost” section of the regulatory evaluation. The FAA believes the term “familiarization” is a more appropriate term than “training” to describe these costs, not only because there is a difference in the scope and extent of material covered in these two terms, but also because familiarization-type training is given to individuals who are already qualified; therefore, “familiarization” is a more appropriate descriptive term.

A few commenters stated that the FAA did not consider software and auditor costs.

This rule does not require development of new technology. Existing software (e.g., any word processing software) can be used to make the changes required by this final rule, so the cost for software is a sunk cost. Regarding auditor costs, the FAA did capture these costs in the NPRM, but for part 121 air carriers only, believing at the time that auditor costs for part 135 air carriers would be negligible. In view of the comments we received on this issue, in this final rule, the FAA captured these costs for both part 121 and 135 air carriers.

See the Regulatory Evaluation for more in-depth details.

E. Redundancy

Southwest Airlines stated that the regulations proposed appear to duplicate various existing regulations, and are therefore redundant. The company stated that proposed § 121.368(e) and (f) would seem to duplicate the regulatory requirements currently found in §§ 121.367 “Maintenance, preventive maintenance, and alterations programs,” and 121.373 “Continuing analysis and surveillance.” The company asserted that paragraph (h) of both proposed §§ 121.368 and 135.426 would seem to duplicate current requirements in §§ 121.369(a) and 135.427(a). And further, that §§ 121.368(g) and 121.369(b)(10) appear to duplicate existing requirements in §§ 121.133, 121.135, 121.361, 121.363, 121.365, 121.367, and 121.369.

The FAA notes that while the amendments proposed may seem to overlap some of the existing requirements in §§ 121.361, 121.363, and 121.365, those regulations address different aspects of maintenance, whereas §§ 121.368, 121.369(b)(10), 135.426 and 135.427(b)(10) establish additional conditions for the arrangement of maintenance and establish additional requirements for providing and keeping an updated list of contract maintenance providers, including the type of maintenance they are performing. For example, § 121.367 requires each operator to have an inspection program that covers all maintenance. Sections 121.369(b)(10) and 135.427(b)(10) require that the new policies, procedures, methods, and instructions for accomplishing contracted maintenance in accordance with the air carriers' programs be included in the air carriers' manuals. In addition, the new rules will require air carriers to provide the necessary maintenance instructions to maintenance providers in order for them to perform the air carriers' maintenance, whether or not their maintenance manuals contain proprietary data, or other confidential information that an air carrier may be reluctant to share.

Finally, while §§ 121.368 and 121.369 are similar in many respects, they are different in their intent. Section 121.369 addresses in-house maintenance performed by air carrier personnel, while § 121.368 addresses contract maintenance. Their similarity reflects the overall intent to standardize maintenance between in-house and contract maintenance, and to ensure overall consistency and safety.

Therefore, the FAA is not making any changes to these sections based on the commenters' concerns about duplication.

F. Reporting Requirement

Current §§ 121.369(a) and 135.427(a) require each air carrier to include in its manual a list of persons with whom it has arranged for the performance of maintenance, preventive maintenance, and alterations, including a general description of that work. As proposed, and as adopted in this final rule, §§ 121.368(h) and 135.426(h) will require each certificate holder who contracts for maintenance, preventive maintenance, or alterations to provide to the FAA a list that includes each contract maintenance provider's name and physical address of where the work will be carried out, and a description of the type of maintenance, preventive maintenance, or alteration that is to be performed at each location.

National Air Transportation Association (NATA) stated that the proposed additional requirements pertaining to the listing of maintenance providers would appear to create a new requirement that the FAA would have to approve the addition of a maintenance provider on the list before that provider could perform contract maintenance for the certificate holder. NATA argues that, if this is the case, it would create an undue burden for part 135 certificate holders, who operate on an ad-hoc basis to locations that are unpredictable and often change, so that they cannot account for those entities with whom they engage in unplanned maintenance.

The FAA believes the issue raised by NATA would not arise because § 135.426(h) does not require that a maintenance provider be on the list and be pre-approved by the FAA before an air carrier may contract with it to perform maintenance. Neither § 121.368(h) nor § 135.426(h) prohibit deletions or additions to the list—these rules simply require that the updated list be provided to the FAA by the last day of each calendar month. In the situation outlined by NATA, a part 135 operator would contract with maintenance providers to perform maintenance, including unplanned maintenance, as provided in § 135.413, then update its list and submit it to the FAA by the end of the calendar month.

IV. Regulatory Notices and Analyses A. Regulatory Evaluation Preamble Summary

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.

In conducting these analyses, FAA has determined that this final rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) will not have a significant economic impact on a substantial number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

Total Benefits and Costs of This Rule

This rule responds to a Congressional mandate and is expected to prevent 2 accidents. The benefit for the rule is estimated to be $142.8 million or $92.0 million present value at 7% over 10 years. The estimated cost for the rule is $20.4 million ($14.1 million, present value). More detailed benefit and cost information is presented below.

Who is potentially affected by this rule?

Certificate holders who conduct domestic, flag, or supplemental operations under part 121, and certificate holders who conduct commuter operations or on-demand operations with aircraft type certificated for a passenger seating configuration, excluding any pilot seat, of ten seats or more under part 135.

Assumptions

• All monetary values were expressed in constant 2014 dollars. We calculated the present value of the potential benefit stream by discounting the monetary values using a 7 percent interest rate from 2015 to 2024.

• The rule is expected to take effect in 2015.

• The value of a statistical life (VSL) is $9.2 million.

• VSL in future years were estimated to grow by 1.18 percent per year (the Congressional Budget Office estimated that there will be an expected 1.18 percent annual growth rate in median real wages over the next 30 years) before discounting to present value.

• The value of medical and legal costs associated with fatal injuries was estimated at about $171,000.

• The value of a minor injury was $27,600.

• The value of medical and legal costs associated with minor injuries was estimated at about $3,000.

• The FAA also estimates the cost of accident investigations. Accidents reported by the NTSB incur investigation costs from the NTSB, the FAA, and the private sector. The total accident investigation cost per accident is assumed to be $570,968.

• As per DOT guidance, we assume that real wages increase at 1.2 percent per year.

Changes From the NPRM to the Final Rule

For the benefits, we have made two significant changes to the final rule regulatory analysis:

• Since the NPRM published, the FAA has identified 2 accidents which could have been prevented by this rule. We estimate the benefit value for preventing similar future accidents will be about $92.0 million present value over 10 years.

• In this final rule, we note this rule is Congressionally mandated for part 121 air carriers.

For the cost section, we have made three significant changes to the final rule regulatory analysis, which have increased the costs from about $1.6 million to $14.1 million present value over 10 years:

• The cost estimates included in the regulatory evaluation for this final rule are based on entity size (large vs. small) rather than on whether a certificate holder operates under part 121 or part 135, because entity size is a more relevant parameter for cost estimation than whether the air carrier operates under part 121 or part 135.

• For this final rule, we used the commenters' estimates (when they were available) rather than our own, which generally raised the costs.

• We added familiarization costs.

Benefits of This Rule

A significant part of this rule is Congressionally mandated for part 121 air carriers.

The FAA identified two accidents that could have been prevented by this rule.

One of the accidents was operated by Air Midwest (part 121/135 operator) under part 121 service at the time. This accident resulted in 21 fatalities and 1 minor injury. The other accident was operated by Emery Worldwide Airlines, and resulted in 3 fatalities. The FAA believes that the benefits justify the costs for part 121 and part 135 operators. In addition to the casualties, 2 aircraft were destroyed. After factoring in the effectiveness of the rule to prevent these accidents, the FAA estimates the benefit value to be $142.8 million, or $92.0 million present value at 7% over 10 years.

Costs of This Rule

From 2015 to 2024, the cost to air carriers and the FAA would be approximately $20.4 million ($14.1 million, present value), as shown in table below.

ER04MR15.000 B. Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The FAA identified a total of 222 operators with less than 1,500 employees—these are classified as small entities.

The FAA believes that this final rule will not have a significant economic impact on a substantial number of small entities for the following reason:

The FAA estimates that their ratio of annualized costs to annual revenue is between 0.001% and 0.010%, which is not considered a significant economic impact. Therefore, as provided in section 605(b), the Administrator of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.

C. International Trade Impact Assessment

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it improves safety and as a legitimate domestic objective therefore will not create unnecessary obstacles to the foreign commerce of the United States.

D. Unfunded Mandates Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $151.0 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

E. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

This final rule will impose the following amended information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted these information collection amendments to OMB for its review. Notice of OMB approval for these information collections will be published in a future Federal Register document.

Summary: Each operator which seeks to obtain, or is in possession of, an air carrier operating certificate must comply with the requirements of 14 CFR part 121 in order to maintain data which is used to determine if the air carrier is operating in accordance with minimum safety standards. Original certification is completed in accordance with part 119.

Each operator which seeks to obtain, or is in possession of a commuter or on-demand operating certificate must comply with the requirements of 14 CFR part 135 in order to maintain data which is used to determine if the air carrier is operating in accordance with minimum safety standards. Original certification is completed in accordance with part 119.

Continuing certification is completed in accordance with part 121 and part 135. One form is used. The use of this form was taken into account in estimating the burden for this section.

Use: This information collection supports the Department of Transportation's strategic goal of safety. Specifically, the goal is to promote the public health and safety by working toward the elimination of transportation-related deaths, injuries, and destruction of property.

Title 49 U.S.C. 44702, empowers the Secretary of Transportation to issue air carrier operating certificates and to establish minimum safety standards for the operation of the air carrier to whom such certificates are issued. Under the authority of Title 49 CFR 44701, Federal Aviation Regulations part 121 and part 135 prescribe the terms, conditions, and limitations as are necessary to ensure safety in air transportation.

Respondents (including number of): There are 80 part 121 air carriers and 168 part 135 operators affected by this rule.

Frequency: The manual requirements will be submitted as part of the submission of maintenance manuals to the FAA for acceptance.

Annual Burden Estimate: This rule requires that the air carrier's manual has all the policies, procedures, methods, and instructions for the accomplishment of maintenance by another person to include the information necessary for certificate holders to ensure all maintenance is performed in accordance with its maintenance program. The rule also requires that the air carrier provide a list with the name and address of each maintenance provider used and the type of maintenance that is to be performed.

Private Sector Costs

This rule will require affected air carriers to develop policies, procedures, methods, and instructions for performing contract maintenance that are acceptable to the FAA and to include them in their maintenance manuals. The rule also requires the air carriers to provide a list to the FAA of all persons with whom they contract their maintenance.

To calculate the cost of revising and updating the manual and revising and updating the list, the following assumptions were used, paralleling those in the regulatory evaluation:

• 222 small air carriers.

• 26 large air carriers.

• Small air carriers: amount of time revising manual (manager): 16 hours.

• Small air carriers: amount of time revising manual (technical writer): 40 hours.

• Small air carriers: amount of time revising manual (editor): 2 hours.

• Small air carriers: amount of time maintaining manual (manager): 16 hours.

• Small air carriers: amount of time maintaining manual (technical writer): 40 hours.

• Small air carriers: amount of time maintaining manual (editor): 2 hours.

• Large air carriers: amount of time revising manual (manager): 60 hours.

• Large air carriers: amount of time revising manual (technical writer): 30 hours.

• Large air carriers: amount of time revising manual (editor): 30 hours.

• Large air carriers: amount of time maintaining manual (manager): 104 hours.

• Large air carriers: amount of time maintaining manual (technical writer): 156 hours.

• Large air carriers: amount of time maintaining manual (editor): 156 hours.

• Small air carriers: amount of time to provide the list (manager): 10 hours.

• Small air carriers: amount of time to provide the list (technical writer): 3 hours.

• Small air carriers: amount of time to provide the list (auditor): 10 hours.

• Small air carriers: amount of time to maintain and update the list (manager): 12 hours.

• Small air carriers: amount of time to maintain and update the list (technical writer): 12 hours.

• Small air carriers: amount of time to maintain and update the list (auditor): 12 hours.

• Large air carriers: amount of time to provide the list (manager): 40 hours.

• Large air carriers: amount of time to provide the list (technical writer): 20 hours.

• Large air carriers: amount of time to provide the list (auditor): 20 hours.

• Large air carriers: amount of time to maintain and update the list (manager): 104 hours.

• Large air carriers: amount of time to maintain and update the list (technical writer): 156 hours.

• Large air carriers: amount of time to maintain and update the list (auditor): 156 hours.

• For the wages, we assume that there will be a 1.2 percent projected annual increase in real wages.

First Year Costs for Small Air Carriers

Cost = 222 × ((16 hours × $66.08) + (40 hours × $40.02) + (2 hours × $35.76) + (10 hours × $66.08) + (3 hours × $40.02) + (10 hours × $41.28)) = $870,966.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Second Year Costs for Small Air Carriers

Cost = 222 × ((16 hours × $66.87) + (40 hours × $40.50) + (2 hours × $36.19) + (12 hours × $66.87) + (12 hours × $40.50) + (12 hours × $41.77)) = $1,010,576.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Third Year Costs for Small Air Carriers

Cost = 222 × ((16 hours x $67.68) + (40 hours × $40.99) + (2 hours × $36.62) + (12 hours × $67.68) + (12 hours × $40.99) + (12 hours × $42.27)) = $1,022,703.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Fourth Year Costs for Small Air Carriers

Cost = 222 × ((16 hours × $68.49) + (40 hours × $41.48) + (2 hours × $37.06) + (12 hours × $68.49) + (12 hours × $41.48) + (12 hours × $42.78)) = $1,034,976.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Fifth Year Costs for Small Air Carriers

Cost = 222 × ((16 hours × $69.31) + (40 hours × $41.98) + (2 hours × $37.51) + (12 hours × $69.31) + (12 hours × $41.98) + (12 hours × $43.29)) = $1,047,395.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Sixth Year Costs for Small Air Carriers

Cost = 222 × ((16 hours × $70.14) + (40 hours × $42.48) + (2 hours × $37.96) + (12 hours × $70.14) + (12 hours × $42.48) + (12 hours × $43.81)) = $1,059,964.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Seventh Year Costs for Small Air Carriers

Cost = 222 × ((16 hours × $70.98) + (40 hours × $42.99) + (2 hours × $38.41) + (12 hours × $70.98) + (12 hours × $42.99) + (12 hours × $44.34)) = $1,072,684.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Eight Year Costs for Small Air Carriers

Cost = 222 × ((16 hours × $71.84) + (40 hours × $43.51) + (2 hours × $38.87) + (12 hours × $71.84) + (12 hours × $43.51) + (12 hours × $44.87)) = $1,085,556.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Ninth Year Costs for Small Air Carriers

Cost = 222 × ((16 hours × $72.70) + (40 hours × $44.03) + (2 hours × $39.34) + (12 hours × $72.70) + (12 hours × $44.03) + (12 hours × $45.41)) = $1,098,583.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

Tenth Year Costs for Small Air Carriers

Cost = 222 × ((16 hours × $73.57) + (40 hours × $44.56) + (2 hours × $39.81) + (12 hours × $73.57) + (12 hours × $44.56) + (12 hours × $45.95)) = $1,111,766.

Time = 222 × (16 hours + 40 hours + 2 hours + 10 hours + 3 hours + 10 hours) = 17,982.

First Year Costs for Large Air carriers

Cost = 26 × ((60 hours × $66.08) + (30 hours × $40.02) + (30 hours × $35.76) + (40 hours × $66.08) + (20 hours × $40.02) + (20 hours × $41.28)) = $273,193.

Time = 26 × (60 hours + 30 hours + 30 hours + 40 hours + 20 hours + 20 hours) = 5,200.

Second Year Costs for Large Air carriers

Cost = 26 × ((104 hours × $66.87) + (156 hours × $40.50) + (156 hours × $36.19) + (104 hours × $66.87) + (156 hours × $40.50) + (156 hours × $41.77)) = $1,006,396.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Third Year Costs for Large Air carriers

Cost = 26 × ((104 hours × $67.68) + (156 hours × $40.99) + (156 hours × $36.62) + (104 hours × $67.68) + (156 hours × $40.99) + (156 hours × $42.27)) = $1,018,473.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Fourth Year Costs for Large Air Carriers

Cost = 26 × ((104 hours × $68.49) + (156 hours × $41.48) + (156 hours × $37.06) + (104 hours × $68.49) + (156 hours × $41.48) + (156 hours × $42.78)) = $1,030,695.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Fifth Year Costs for Large Air Carriers

Cost = 26 × ((104 hours × $69.31) + (156 hours × $41.98) + (156 hours × $37.51) + (104 hours × $69.31) + (156 hours × $41.98) + (156 hours × $43.29)) = $1,043,063.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Sixth Year Costs for Large Air Carriers

Cost = 26 × ((104 hours × $70.14) + (156 hours × $42.48) + (156 hours × $37.96) + (104 hours × $70.14) + (156 hours × $42.48) + (156 hours × $43.81)) = $1,055,580.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Seventh Year Costs for Large Air Carriers

Cost = 26 × ((104 hours × $70.98) + (156 hours × $42.99) + (156 hours × $38.41) + (104 hours × $70.98) + (156 hours × $42.99) + (156 hours × $44.34)) = $1,068,247.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Eight Year Costs for Large Air Carriers

Cost = 26 × ((104 hours × $71.84) + (156 hours × $43.51) + (156 hours × $38.87) + (104 hours × $71.84) + (156 hours × $43.51) + (156 hours × $44.87)) = $1,081,066.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Ninth Year Costs for Large Air Carriers

Cost = 26 × ((104 hours × $72.70) + (156 hours × $44.03) + (156 hours × $39.34) + (104 hours × $72.70) + (156 hours × $44.03) + (156 hours × $45.41)) = $1,094,038.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Tenth Year Costs for Large Air Carriers

Cost = 26 × ((104 hours × $73.57) + (156 hours × $44.56) + (156 hours × $39.81) + (104 hours × $73.57) + (156 hours × $44.56) + (156 hours × $45.95)) = $1,107,167.

Time = 26 × (104 hours + 156 hours + 156 hours + 104 hours + 156 hours + 156 hours) = 21,632.

Total over 10 years

Cost = ($870,966 + $1,010,576 + $1,022,703 + $1,034,976 + $1,047,395 + $1,059,964 + $1,072,684 + $1,085,556 + $1,098,583 + $1,111,766 + $273,193 + $1,006,396 + $1,018,473 + $1,030,695 + $1,043,063 + $1,055,580 + $1,068,247 + $1,081,066 + $1,094,038 + $1,107,167) = $20,193,086

Time = ((10 × 17,982 hours) + 5,200 hours + (9 × 21,632 hours)) = 379,708.

Average per Year

Cost = $20,193,086/10 = $2,019,309.

Time = 379,708/10 = 37,971 hours.

FAA Costs

The FAA has to ensure that the air carriers' manuals are revised and maintained.

To calculate the cost of ensuring that the manuals are revised and maintained, the following assumptions were used, paralleling those in the regulatory evaluation:

• 248 small and large air carriers.

• Amount of time to ensure that each manual is revised (FAA inspector): 1 hour.

• Amount of time to verify manual maintenance (FAA inspector): 1 hour.

• For the FAA inspector wage we assume that there will be a 1.2 percent projected annual increase.

First Year Costs for the FAA

Cost = 248 × (1 hour × $64.05) = $15,884.

Time = 248 × (1 hour) = 248.

Second Year Costs for the FAA

Cost = 248 × (0.25 hour × $64.82) = $4,019.

Time = 248 × (0.25 hour) = 62.

Third Year Costs for the FAA

Cost = 248 × (0.25 hour × $65.59) = $4,067

Time = 248 × (0.25 hour) = 62.

Fourth Year Costs for the FAA

Cost = 248 × (0.25 hour × $66.38) = $4,116.

Time = 248 × (0.25 hour) = 62.

Fifth Year Costs for the FAA

Cost = 248 × (0.25 hour × $67.18) = $4,165.

Time = 248 × (0.25 hour) = 62.

Sixth Year Costs for the FAA

Cost = 248 × (0.25 hour × $67.98) = $4,215.

Time = 248 × (0.25 hour) = 62.

Seventh Year Costs for the FAA

Cost = 248 × (0.25 hour × $68.80) = $4,266.

Time = 248 × (0.25 hour) = 62.

Eight Year Costs for the FAA

Cost = 248 × (0.25 hour × $69.63) = $4,317.

Time = 248 × (0.25 hour) = 62.

Ninth Year Costs for the FAA

Cost = 248 × (0.25 hour × $70.46) = $4,369.

Time = 248 × (0.25 hour) = 62.

Tenth Year Costs for the FAA

Cost = 248 × (0.25 hour x $71.31) = $4,421.

Time = 248 × (0.25 hour) = 62.

Total Over 10 Years

Cost = ($15,884 + $4,019 + $4,067 + $4,116 + $4,165 + $4,215 + $4,266 + $4,317 + $4,369 + $4,421) = $53,837.

Time = (248 hours + (9 × 62 hours)) = 806.

Average per Year

Cost = $53,837/10 = $5,384.

Time = 806/10 = 81 hours.

F. International Compatibility and Cooperation

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.

G. Environmental Analysis

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in Chapter 3, paragraph 312d, and involves no extraordinary circumstances.

H. Regulations Affecting Intrastate Aviation in Alaska

Section 1205 of the FAA Reauthorization Act of 1996 (110 Stat. 3213) requires the FAA, when modifying its regulations in a manner affecting intrastate aviation in Alaska, to consider the extent to which Alaska is not served by transportation modes other than aviation, and to establish appropriate regulatory distinctions. In the NPRM, the FAA requested comments on whether the proposed rule should apply differently to intrastate operations in Alaska. The agency did not receive any comments, and has determined, based on the administrative record of this rulemaking, that there is no need to make any regulatory distinctions applicable to intrastate aviation in Alaska.

V. Executive Order Determinations A. Executive Order 13132, Federalism

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.

B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

VI. How To Obtain Additional Information A. Rulemaking Documents

An electronic copy of a rulemaking document my be obtained by using the Internet—

1. Search the Federal eRulemaking Portal (http://www.regulations.gov);

2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/ or

3. Access the Government Publishing Office's Web page at http://www.thefederalregister.org/fdsys/.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

B. Comments Submitted to the Docket

Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

C. Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

List of Subjects 14 CFR Part 121

Aircraft, Aviation safety, Life-limited parts, Reporting and recordkeeping requirements.

14 CFR Part 135

Aircraft, Aviation safety, Life-limited parts, Reporting and recordkeeping requirements.

The Amendment

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

PART 121—OPERATING REQUIREMENTS: DOMESTIC, FLAG, AND SUPPLEMENTAL OPERATIONS 1. The authority citation for part 121continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40113, 40119, 41706, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44732; 46105; Pub. L. 111-216, 124 Stat. 2348 (49 U.S.C. 44701 note); Pub. L. 112-95, 126 Stat. 62 (49 U.S.C. 44732 note).

2. Add new § 121.368 as follows:
§ 121.368 Contract maintenance.

(a) A certificate holder may arrange with another person for the performance of maintenance, preventive maintenance, and alterations as authorized in § 121.379(a) only if the certificate holder has met all the requirements in this section. For purposes of this section—

(1) A maintenance provider is any person who performs maintenance, preventive maintenance, or an alteration for a certificate holder other than a person who is trained by and employed directly by that certificate holder.

(2) Covered work means any of the following:

(i) Essential maintenance that could result in a failure, malfunction, or defect endangering the safe operation of an aircraft if not performed properly or if improper parts or materials are used;

(ii) Regularly scheduled maintenance; or

(iii) A required inspection item on an aircraft.

(3) Directly in charge means having responsibility for covered work performed by a maintenance provider. A representative of the certificate holder directly in charge of covered work does not need to physically observe and direct each maintenance provider constantly, but must be available for consultation on matters requiring instruction or decision.

(b) Each certificate holder must be directly in charge of all covered work done for it by a maintenance provider.

(c) Each maintenance provider must perform all covered work in accordance with the certificate holder's maintenance manual.

(d) No maintenance provider may perform covered work unless that work is carried out under the supervision and control of the certificate holder.

(e) Each certificate holder who contracts for maintenance, preventive maintenance, or alterations must develop and implement policies, procedures, methods, and instructions for the accomplishment of all contracted maintenance, preventive maintenance, and alterations. These policies, procedures, methods, and instructions must provide for the maintenance, preventive maintenance, and alterations to be performed in accordance with the certificate holder's maintenance program and maintenance manual.

(f) Each certificate holder who contracts for maintenance, preventive maintenance, or alterations must ensure that its system for the continuing analysis and surveillance of the maintenance, preventive maintenance, and alterations carried out by the maintenance provider, as required by § 121.373(a), contains procedures for oversight of all contracted covered work.

(g) The policies, procedures, methods, and instructions required by paragraphs (e) and (f) of this section must be acceptable to the FAA and included in the certificate holder's maintenance manual as required by§ 121.369(b)(10).

(h) Each certificate holder who contracts for maintenance, preventive maintenance, or alterations must provide to its FAA Certificate Holding District Office, in a format acceptable to the FAA, a list that includes the name and physical (street) address, or addresses, where the work is carried out for each maintenance provider that performs work for the certificate holder, and a description of the type of maintenance, preventive maintenance, or alteration that is to be performed at each location. The list must be updated with any changes, including additions or deletions, and the updated list provided to the FAA in a format acceptable to the FAA by the last day of each calendar month.

3. Amend § 121.369 by adding paragraph (b)(10) as follows:
§ 121.369 Manual requirements.

(b) * * *

(10) Policies, procedures, methods, and instructions for the accomplishment of all maintenance, preventive maintenance, and alterations carried out by a maintenance provider. These policies, procedures, methods, and instructions must be acceptable to the FAA and provide for the maintenance, preventive maintenance, and alterations to be performed in accordance with the certificate holder's maintenance program and maintenance manual.

PART 135—OPERATING REQUIREMENTS: COMMUTER AND ON DEMAND OPERATIONS AND RULES GOVERNING PERSONS ON BOARD SUCH AIRCRAFT 4. The authority citation for part 135 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 41706, 40113, 44701-44702, 44705, 44709, 44711-44713, 44715-44717, 44722, 45101-45105.

5. Add new § 135.426 to read as follows:
§ 135.426 Contract maintenance.

(a) A certificate holder may arrange with another person for the performance of maintenance, preventive maintenance, and alterations as authorized in § 135.437(a) only if the certificate holder has met all the requirements in this section. For purposes of this section—

(1) A maintenance provider is any person who performs maintenance, preventive maintenance, or an alteration for a certificate holder other than a person who is trained by and employed directly by that certificate holder.

(2) Covered work means any of the following:

(i) Essential maintenance that could result in a failure, malfunction, or defect endangering the safe operation of an aircraft if not performed properly or if improper parts or materials are used;

(ii) Regularly scheduled maintenance; or

(iii) A required inspection item on an aircraft.

(3) Directly in charge means having responsibility for covered work performed by a maintenance provider. A representative of the certificate holder directly in charge of covered work does not need to physically observe and direct each maintenance provider constantly, but must be available for consultation on matters requiring instruction or decision.

(b) Each certificate holder must be directly in charge of all covered work done for it by a maintenance provider.

(c) Each maintenance provider must perform all covered work in accordance with the certificate holder's maintenance manual.

(d) No maintenance provider may perform covered work unless that work is carried out under the supervision and control of the certificate holder.

(e) Each certificate holder who contracts for maintenance, preventive maintenance, or alterations must develop and implement policies, procedures, methods, and instructions for the accomplishment of all contracted maintenance, preventive maintenance, and alterations. These policies, procedures, methods, and instructions must provide for the maintenance, preventive maintenance, and alterations to be performed in accordance with the certificate holder's maintenance program and maintenance manual.

(f) Each certificate holder who contracts for maintenance, preventive maintenance, or alterations must ensure that its system for the continuing analysis and surveillance of the maintenance, preventive maintenance, and alterations carried out by a maintenance provider, as required by § 135.431(a), contains procedures for oversight of all contracted covered work.

(g) The policies, procedures, methods, and instructions required by paragraphs (e) and (f) of this section must be acceptable to the FAA and included in the certificate holder's maintenance manual, as required by § 135.427(b)(10).

(h) Each certificate holder who contracts for maintenance, preventive maintenance, or alterations must provide to its FAA Certificate Holding District Office, in a format acceptable to the FAA, a list that includes the name and physical (street) address, or addresses, where the work is carried out for each maintenance provider that performs work for the certificate holder, and a description of the type of maintenance, preventive maintenance, or alteration that is to be performed at each location. The list must be updated with any changes, including additions or deletions, and the updated list provided to the FAA in a format acceptable to the FAA by the last day of each calendar month.

6. Amend § 135.427 by adding paragraph (b)(10) as follows:
§ 135.427 Manual requirements.

(b) * * *

(10) Policies, procedures, methods, and instructions for the accomplishment of all maintenance, preventive maintenance, and alterations carried out by a maintenance provider. These policies, procedures, methods, and instructions must be acceptable to the FAA and ensure that, when followed by the maintenance provider, the maintenance, preventive maintenance, and alterations are performed in accordance with the certificate holder's maintenance program and maintenance manual.

Issued under authority provided by 49 U.S.C. 106(f), 44701(a), and 44703 in Washington, DC, on February 9, 2015. Michael P. Huerta, Administrator.
[FR Doc. 2015-04179 Filed 3-3-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. USCG-2015-0056] Special Local Regulation; Southern California Annual Marine Events for the San Diego Captain of the Port Zone AGENCY:

Coast Guard, DHS.

ACTION:

Notice of enforcement of regulation.

SUMMARY:

The Coast Guard will enforce the special local regulations on the waters of Oceanside Harbor, California during the California Ironman Triathlon from 6:30 a.m. to 9:30 a.m. on March 28, 2015. These special local regulations are necessary to provide for the safety of the participants, crew, spectators, sponsor vessels of the triathlon, and general users of the waterway. During the enforcement period, persons and vessels are prohibited from entering into, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative.

DATES:

The regulations for the marine event listed in 33 CFR 100.1101, Table 1, Item 2, will be enforced from 6:30 a.m. to 9:30 p.m. on March 28, 2015.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this document, call or email Petty Officer Nick Bateman, Waterways Management, U.S. Coast Guard Sector San Diego, CA; telephone (619) 278-7656, email [email protected]

SUPPLEMENTARY INFORMATION:

The Coast Guard will enforce the special local regulations in 33 CFR 100.1101 in support of the annual marine event, the California Ironman Triathlon (Item 2 on Table 1 of 33 CFR 100.1101), held on March 28, 2015. The Coast Guard will enforce the special local regulations on the Harbor and Federal Channel in Oceanside on March 28, 2015 from 6:30 a.m. to 9:30 a.m. The triathlon course will commence at the Oceanside Harbor boat ramp then proceed outbound through the federal channel to the Oceanside Harbor Entrance, and then proceed back through the channel to the boat ramp.

Under the provisions of 33 CFR 100.1101, persons and vessels are prohibited from entering into, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This document is issued under authority of 5 U.S.C. 552(a) and 33 CFR 100.1101. In addition to this document in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners, Broadcast Notice to Mariners, and local advertising by the event sponsor.

If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Broadcast Notice to Mariners or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

Dated: February 5, 2015. J.S. Spaner, Captain, U.S. Coast Guard, Captain of the Port San Diego.
[FR Doc. 2015-04481 Filed 3-3-15; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2015-0113] Drawbridge Operation Regulation; Appomattox River, Hopewell, VA AGENCY:

Coast Guard, DHS.

ACTION:

Notice of deviation from drawbridge regulations.

SUMMARY:

The Coast Guard has issued a temporary deviation from the operating schedule that governs the draw of the Seaboard System Railroad (CSX Railroad) Bridge, across Appomattox River, mile 2.5, Hopewell, VA. This deviation is necessary to conduct bridge upgrades. This temporary deviation allows the swing bridge to remain in the closed to navigation position to facilitate bridge upgrades.

DATES:

This deviation is effective from 7 a.m. on March 7, 2015 to 8 p.m. on March 8, 2015.

ADDRESSES:

The docket for this deviation, [USCG-2015-0113] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this temporary deviation, call or email Mr. Jim Rousseau, Bridge Administration Branch Fifth District, Coast Guard; telephone (757) 398-6557, email [email protected] If you have questions on reviewing the docket, call Cheryl Collins, Program Manager, Docket Operations, 202-366-9826.

SUPPLEMENTARY INFORMATION:

The CSX Corporation, who owns and operates this swing bridge, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.995 to facilitate bridge upgrades.

Under the regular operating schedule, the Seaboard System Railroad (CSX Railroad) Bridge, mile 2.5, in Hopewell, VA, must open on signal if at least 24 hour notice is given. The draw normally is in the closed to navigation position and only opens when proper notice is given. The Seaboard System Railroad (CSX Railroad) Bridge has a vertical clearance in the closed position to vessels of 10 feet above mean high water.

Under this temporary deviation, the drawbridge will be maintained in the closed to navigation position from 8 a.m. Saturday March 8, 2015, until 8 p.m. Sunday March 9, 2015. The bridge will operate under the normal operating schedule at all other times. Emergency openings cannot be provided. There are no alternate routes for vessels transiting this section of the Appomattox River but vessels may pass before 8 a.m. on March 8, 2015, and after 8 p.m. on March 9, 2015, with advance notice.

Appomattox River is used by a variety of vessels including commercial and recreational vessels. The Coast Guard has carefully coordinated the restrictions with these waterway users. The Coast Guard will also inform additional waterway users through our Local and Broadcast Notice to Mariners of the closure periods for the bridge so that vessels can arrange their transits to minimize any impacts caused by the temporary deviation. Mariners able to pass under the bridge in the closed position may do so at any time. Mariners are advised to proceed with caution.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period.

This deviation from the operating regulations is authorized under 33 CFR 117.35.

Dated: February 20, 2015 James L. Rousseau, Bridge Program Manager, Fifth Coast Guard District.
[FR Doc. 2015-04482 Filed 3-3-15; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2014-1039] RIN 1625-AA09 Drawbridge Operation Regulation; Chevron Oil Company Canal, Fourchon, LA AGENCY:

Coast Guard, DHS.

ACTION:

Final rule.

SUMMARY:

The Coast Guard is adding a special operating regulation governing the State Route 3090 (SR 3090) swing span bridge across the Chevron Oil Company Canal, mile 0.05, at Fourchon, Louisiana. Since construction of the bridge in 1972, the bridge has operated on a customary schedule requiring a one-hour advance notice without having a special operating regulation in place. This rule codifies the current custom and operating schedule of the bridge as a special operating regulation.

DATES:

This rule is effective March 4, 2015.

ADDRESSES:

Documents mentioned in this preamble are part of docket [USCG 2014-1039]. To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Donna Gagliano, Bridge Specialist, Coast Guard; telephone 504-671-2128, email [email protected] If you have questions on viewing the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION: A. Regulatory History and Information

The Coast Guard is issuing this final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. This bridge has operated under one-hour notice for openings since put in place in 1972 without concern. Local community and waterway users are aware and accustomed to the operating schedule. In over 40 years of operation of this bridge, no complaints have been received by the Coast Guard. Waterway users understand how the bridge operates and this Final Rule simply codifies its operation. Completing the process of an NPRM is unnecessary because this operating practice is in use and accepted by the waterway users.

For the same reasons, under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective in less than 30 days after publication in the Federal Register (FR). The bridge has been operating under the one-hour advance notification schedule for over 40 years. This final rule codifies the existing schedule in 33 CFR part 117. Therefore, providing a 30-day notice before making this rule effective is unnecessary.

B. Basis and Purpose

The SR 3090 swing span bridge, locally known as the Fourchon Bridge, across the Chevron Oil Company Canal, mile 0.05, at Fourchon, LA has a vertical clearance of 12.0 feet above Mean High Water elevation, 3.0 feet at Mean Sea Level in the closed-to-navigation position, unlimited in the open position. Presently, this bridge opens on signal if at least one-hour advanced notification is given to the Greater Lafourche Port Commission 24-hour dispatcher. This operating schedule has been in place since the bridge was constructed in 1972; however, this custom and operating schedule was never codified in subpart B, Specific Requirements, under 33 CFR part 117. This final rule codifies the existing operating schedule for the bridge. Since construction of the bridge, no complaints have been received by the Coast Guard from waterway users concerning the operation of the bridge.

Navigation on the waterway consists of oilfield related equipment, houseboats, shrimp boats, and other recreational craft. The bridge has opened on average one time per month for the passage of oil field equipment, houseboats, shrimp boats, and other recreational crafts. During the shrimp season, the bridge may open 8-10 times per month.

C. Discussion of Final Rule

Under 33 CFR 117.5, bridges are required to open on signal for the passage of vessels except as otherwise authorized or required. The SR 3090 bridge is currently untended and maintained in the closed-to-navigation position. The bridge opens for the passage of vessels if a one-hour advance notice to the Greater Lafourche Port Commission 24-hour dispatcher. Title 33 CFR 117.40 requires that, if approved, a description of the full operation of the advance one-hour notice on the drawbridge will be added to subpart B of this part.

This present operating schedule is known and understood by the local waterway users, but this operating schedule is not reflected in the CFR. This rule codifies this schedule as a Special Operating Requirement under 33 CFR part 117, subpart B.

The operation of the draw of the SR 3090 swing span bridge across the Chevron Oil Company Canal, mile 0.05, at Fourchon, LA is as follows: The draw of the SR 3090 bridge at Fourchon shall open on signal if at least one-hour notice is given.

D. Regulatory Analyses

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

1. Regulatory Planning and Review

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

The Coast Guard does not consider this rule to be “significant” under that Order because the rule only codifies the current operating schedule for the SR 3090 bridge which is already understood, known, and accepted by the local bridge and waterway users.

2. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

This rule would affect the following entities, some of which may be small entities: The owners or operators of vessels who wish to transit the bridge. However, the affect would be negligible as this rule codifies the current custom and operating schedule of the bridge that mariners are accustomed to and the bridge would still be able to open with advance notice.

This Final Rule formalizes the drawbridge operation custom that has been in place since 1972. Therefore, mariners would not be affected given that they would not experience any alteration of current expectations with regard to current drawbridge operation.

3. Assistance for Small Entities

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

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

4. Collection of Information

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

5. Federalism

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.

6. Protest Activities

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

7. Unfunded Mandates Reform Act

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

8. Taking of Private Property

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

9. Civil Justice Reform

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

10. Protection of Children

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

11. Indian Tribal Governments

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

12. Energy Effects

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

13. Technical Standards

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

14. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, and Commandant Instruction M16475.lD which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule involves the promulgation of special operating regulations or procedures for drawbridges. This rule is categorically excluded, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

List of Subjects in 33 CFR Part 117

Bridges.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority:

33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

2. Redesignate §§ 117.437 through 117.439 as §§ 117.438 through 117.440, respectively, and add new § 117.437 to read as follows:
§ 117.437 Chevron Oil Company Canal.

The draw of the SR 3090, mile 0.05, at Fourchon, shall open on signal if at least one-hour notice is given.

Dated: February 11, 2015. Kevin S. Cook, Rear Admiral, U.S. Coast Guard Commander, Eighth Coast Guard District.
[FR Doc. 2015-04483 Filed 3-3-15; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF EDUCATION 34 CFR Chapter II [Docket ID ED-2014-OESE-0134; CFDA Number: 84.415A] Final Priorities, Requirements, Definitions, and Selection Criteria—State Tribal Education Partnership Program AGENCY:

Office of Elementary and Secondary Education, Department of Education.

ACTION:

Final priorities, requirements, definitions, and selection criteria.

SUMMARY:

The Assistant Secretary for Elementary and Secondary Education announces priorities, requirements, definitions, and selection criteria for the State Tribal Education Partnership (STEP) program. The Assistant Secretary may use one or more of these priorities, requirements, definitions, and selection criteria for competitions in fiscal year (FY) 2015 and later years. We take this action to enable tribal educational agencies (TEAs) to administer formula grant programs under the Elementary and Secondary Education Act of 1965, as amended (ESEA), and to improve the partnership between TEAs and the State educational agencies (SEAs) and local educational agencies (LEAs) that educate students from the affected tribes.

DATES:

Effective Date: These priorities, requirements, definitions, and selection criteria are effective April 3, 2015.

FOR FURTHER INFORMATION CONTACT:

Shahla Ortega, U.S. Department of Education, 400 Maryland Avenue SW., Room 3W223, Washington, DC 20202-6450. Telephone: (202) 453-5602 or by email: [email protected]

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Purposes of Program: The purposes of the STEP program are to: (1) Promote increased collaboration between TEAs and the SEAs and LEAs that serve students from affected tribes; and (2) build the capacity of TEAs to conduct certain administrative functions under certain ESEA formula grant programs for eligible schools, as determined by the TEA, SEA, and LEA.

Program Authority:

20 U.S.C. 7451(a)(4).

We published a notice of proposed priorities, requirements, definitions, and selection criteria (NPP) for this program in the Federal Register on October 31, 2014 (79 FR 64716). That notice contained background information and our reasons for proposing the particular priorities, requirements, definitions, and selection criteria. This notice of final priorities, requirements, definitions, and selection criteria contains several significant changes from the NPP. We fully explain these changes in the Analysis of Comments and Changes section below.

Public Comment: In response to our invitation in the NPP, five parties submitted comments on the proposed priorities, requirements, definitions, and selection criteria.

We group major issues according to subject. Generally we do not address technical and other minor changes.

Analysis of Comments and Changes: An analysis of the comments and of any changes in the priorities, requirements, definitions, and selection criteria since publication of the NPP follows.

General

Comment: One commenter stated that the STEP program was a good idea. Several commenters supported specific provisions in the NPP, including the requirement for projects to include at least one public school, the provision permitting the inclusion of off-reservation schools, the provision requiring the preliminary and final agreements to be signed by the TEA, SEA, and LEA, and the program-specific selection criteria.

Discussion: We appreciate the support for the STEP program and for the specific provisions in the NPP.

Changes: None.

Comment: Three commenters suggested that the Department expand the STEP program to allow TEAs and tribes to: coordinate all education programs; provide support services and technical assistance to schools serving tribal children; provide tribal “wrap around” services in schools located on or near reservations and service areas; perform child find duties; and develop or update tribal education codes.

Discussion: We agree that social services and other support services are very important, and that coordination and cooperation between the tribe and LEA regarding such services, including “wrap around” services, can lead to positive outcomes for students. We also agree that it would be appropriate for a STEP project to include cooperation between the TEA and the LEA or its schools in coordinating such services, assuming the STEP funds are not used for direct services or to supplant other funding sources. For example, a TEA that currently operates a preschool program could include provisions in the preliminary and final agreements regarding the transition of children to public school kindergarten, including required meetings between the relevant school district staff and tribal preschool staff, even if not directly tied to one of the ESEA formula grant programs. Therefore, we are revising the preliminary agreement requirements to include other activities as agreed by the parties. We are also revising the first purpose under the Purposes of Program section to broaden the scope of STEP.

Many tribes operate schools funded by the Bureau of Indian Education (BIE), or have BIE-operated schools on their reservation. While it would not be consistent with the purposes of STEP for a grantee to use STEP funds for direct services at those schools, STEP funds could be used to coordinate services provided by BIE schools and public schools. In such event, the parties would include specific provisions for such coordination in the preliminary and final agreements.

With respect to the suggestion to expand the STEP program for child find purposes, it would be duplicative and not an appropriate use of STEP funds to conduct child find for children with disabilities because there are other sources of funding, such as funds under Parts B and C of the Individuals with Disabilities Education Act (IDEA), that are specifically provided for that purpose. Under Parts B and C of the IDEA, the Department provides funds to tribal entities through the BIE, which may be used for child find purposes to identify infants, toddlers, and children with disabilities ages birth through five. Additionally, under the IDEA, the BIE is responsible for identifying, locating, and evaluating children with disabilities on reservations ages five through 21 enrolled in BIE-funded elementary and secondary schools. For infants and toddlers residing on reservations, the State lead agency is responsible under IDEA Part C for ensuring that children with disabilities ages birth through three residing in the State are identified, located, and evaluated. With respect to all other children ages three through 21 on reservations, the SEA is responsible for ensuring that all children with disabilities residing in the State are identified, located, and evaluated. However, increased collaboration between the TEA, SEA, and LEA, which is a likely outcome of a STEP project, can lead to improved communications regarding all services, including the early identification, location, and evaluation of children with disabilities.

With regard to developing tribal education codes, we understand that such codes are important. Moreover, developing a tribal education code may be helpful in implementing a STEP project, and TEAs may wish to pursue this activity. However, we have chosen not to focus on updating and developing education codes because of the limited resources available for STEP and because we wanted to focus attention on the broader purpose of STEP grants: Fostering collaboration with SEAs and LEAs.

We recognize that several of the commenters' suggested changes reflect provisions that are in section 7135 of the ESEA (“Grants to Tribes for Education Administrative Planning and Development”). The STEP program is funded under the general national activities authority in section 7131 of the ESEA, and is different from the program in section 7135. Thus, we are not required to include the activities that are in that program, and decline to do so for the reasons explained above.

Changes: We have revised the requirements of the preliminary agreement by adding paragraph (a)(2) to require an explanation of how the parties will cooperate to administer any other educational programs or services upon which the parties have agreed. We have also revised the first purpose in the “Purposes of Program” section of this notice to correspond with the broader cooperative goal, by deleting the phrase “in the administration of certain ESEA formula grant programs.”

Comment: One commenter suggested that tribes or TEAs should have the ability to apply directly for ESEA formula funding under the STEP program and assume the appropriate authority. Another commenter stated that when SEAs and LEAs manage “pass-through” dollars, those agencies retain money rather than spending all of the funds on students. The commenter requested that TEAs receive the funds and manage the programs.

Discussion: We cannot change the underlying statutory requirements of the ESEA State-administered formula grant programs through this regulatory action, including the provisions requiring that we grant the funds to SEAs, which then distribute them to LEAs, or the provisions permitting a certain portion of funds to be used for SEA-level and LEA-level administration of the programs. The STEP program does not provide funds for direct services. The purpose of the STEP program is to increase collaboration between TEAs, SEAs, and LEAs, and to increase the capacity of the TEA so that the TEA can assume LEA-type or SEA-type functions, within the existing statutory framework.

Changes: None.

Priorities

Comment: Although one commenter expressed support for the two priorities—one for established TEAs and one for TEAs with limited prior experience—two other commenters suggested that we modify the respective scopes of the two priorities by changing the definition of “established TEA.” Because the effect of the priorities largely turns on the definition of “established TEA,” we discuss those comments here.

These commenters stated that the proposed definition of “established TEA” is too broad and would include many very small TEAs that would meet the proposed definition but would be at a competitive disadvantage compared to larger TEAs. One of these commenters recommended that we narrow the definition of “established TEA” by including only those TEAs that have a specified number of staff members, an agreement with the SEA or LEA, and an existing tribal education code. The other commenter requested that we limit established TEAs to those TEAs with sufficient staff capacity, as determined by the tribe, as well as an agreement with the SEA or LEA and an existing tribal education code. These two commenters also did not support the proposed criteria that an established TEA have administered an education program or grant program, suggesting that these factors do not demonstrate that a TEA is, in fact, established. Another commenter requested that we provide TEAs with limited prior experience more technical assistance in preparing and implementing the grant.

Discussion: We created two priorities to minimize any competitive disadvantage that newly created TEAs and TEAs with relatively little experience operating education programs may have compared to current STEP grantees or TEAs that have existing relationships with their SEAs or LEAs. We agree that a modified definition of “established TEA” will better meet the objectives of the STEP program. Accordingly, we are revising the final definition of “established TEA” to specify some criteria that will be part of the definition of “established TEA,” as well as optional criteria that we may choose from and announce in the notice inviting applications. This flexibility will permit the Department to learn from each competition and apply its learning to subsequent competitions to better tailor the priorities to the program objectives.

Based on experience with the current STEP grants, we agree that a prior relationship with an SEA or LEA is a strong predictor of success, and should always be one of the criteria for classification as an established TEA. However, we do not agree that the other criteria that the commenters suggested should always be used to define an “established TEA.” First, we believe that we should reserve flexibility regarding the tribal education code criterion because there are so few tribes that have developed a tribal education code at this time. Second, we do not agree that size of staff should be a factor, due to the large variations in size among tribes and their memberships. Finally, we do not agree that we should add a tribally defined criterion of capacity, as that could allow TEAs to determine whether they are established, without regard to objective criteria applied to all TEAs.

We believe that experience administering Federal grants and education programs, such as a tribal preschool program, provides a strong foundation for tribal capacity and should be retained as optional criteria. Thus, we are revising the definition of “established TEA” accordingly.

With respect to the comment requesting technical assistance, we plan to provide technical assistance for the STEP competition.

Changes: We have revised the definition of “established TEA” to mean a TEA that has previously received a STEP grant, or a TEA that has a preexisting relationship with an SEA or LEA as evidenced by a written agreement between the TEA and SEA or LEA, and meets one or more of the following criteria (to be determined annually): Has an existing tribal education code, has administered at least one education program within the past five years, or has administered at least one Federal, State, local, or private grant within the past five years.

Comment: None.

Discussion: In further reviewing proposed priority 2, we have decided that it is unnecessary to state in the priority that a TEA with limited experience includes a TEA that has not received a previous STEP grant. This is already part of the definition of the term “TEA with limited experience.”

Changes: We have revised priority 2 by deleting the language “a TEA that has not received a previous STEP grant.”

Requirements

Comment: One commenter asked the Department to clarify the functions to be performed by the TEA. The commenter noted that, under the ESEA Formula Grant Programs section of the proposed requirements, STEP projects must include at least one SEA-administered ESEA formula grant program, while paragraph (b) of that section provides TEAs with flexibility to perform SEA- or LEA-type functions under the chosen ESEA program.

Discussion: Generally, applicants can choose between SEA-type and LEA-type functions. We included the requirement that at least one SEA-administered program (e.g., title I, title II, School Improvement Grants, etc.) be included in a project because we have expanded the scope of STEP to permit the incorporation of the ESEA title VII formula grants. Title VII formula grants are direct grants to LEAs; SEAs are not involved at all with these grants. If a project only included title VII grants, there would be no State role. Therefore, if a TEA and LEA choose to include a title VII program in the STEP project, the project must also include a State-administered ESEA formula grant program. However, for that State-administered program, the TEA can still choose LEA-type or SEA-type functions.

Changes: We have added a note following the definition of “ESEA formula grant program” stating that if applicants choose to include a title VII program in their STEP project, they must also include at least one State-administered program, but that applicants can still choose whether to perform SEA- or LEA-type functions for those State-administered programs.

Comment: Two commenters supported our inclusion of title VII in the types of formula grant programs that can be part of STEP projects. One commenter stated that both TEAs and LEAs are eligible for title VII formula grants, and the STEP grant would allow these two entities to make a local decision regarding the title VII grant administration. Another commenter suggested that the title VII grant program should be amended to include TEA administrative functions to ensure that tribal students are served properly.

Discussion: We agree that including title VII grants in STEP projects provides greater flexibility for TEAs. However, tribes are not eligible for title VII formula grants in the same way as LEAs; under the statute, tribes are eligible to apply for the formula grants only if they apply in lieu of the LEA in accordance with the requirements in section 7112 of the ESEA. Tribes and their TEAs cannot compete with LEAs for a title VII grant. The STEP program does not change the title VII formula program or its statutory requirements in any way. We cannot amend the statute through this regulatory process. However, we agree that inclusion of the title VII formula grant in a STEP project would facilitate a local discussion regarding the appropriate use of the title VII funds to improve outcomes for American Indian and Alaska Native (AI/AN) youth, regardless of which entity—tribe, TEA, or LEA—is the title VII grantee.

Changes: None.

Comment: One commenter supported the proposed preliminary agreement requirements related to data sharing. However, in this context, two commenters argued that it is difficult for TEAs to access education records, and that this hampers tribes' ability to provide support services and to make data-based decisions. These commenters suggested that the Department seek amendments to the Family Educational Rights and Privacy Act (FERPA) (Section 444 of the General Education Provisions Act (20 U.S.C. 1232g)) that would include TEAs among the educational agencies, authorities, and officials to whom protected student records and information may be released without the prior written consent of parents or students. In addition, one commenter suggested that we designate TEAs as authorized representatives of the Secretary of Education, and make technical assistance available to assist TEAs in the protection of education records. Another commenter requested a streamlined process for STEP grantees to access student records.

Discussion: Although we appreciate the commenters' concerns, the provisions of FERPA are both statutory and regulatory and beyond the scope of this regulatory action. Further, we cannot designate an entity as an authorized representative of the Secretary of Education unless that entity performs an audit or evaluation function for which the Secretary is responsible (20 U.S.C. 1232g(b)(1)(C) and (b)(3) and 34 CFR 99.35(a)(1)). The Department cannot use this FERPA exception to consent in order to permit entities to obtain access to education records to conduct evaluations that SEAs or LEAs are responsible for conducting.

We understand from our work with the current STEP grantees that access to student data is important to tribes and their TEAs, as well as to the success of STEP projects. We also understand that many entities misunderstand FERPA requirements. We have provided technical assistance to the current STEP grantees, through webinars and individual assistance from our Family Policy Compliance Office, and will continue to do so for future STEP grantees. We believe that involvement by all parties—TEA, SEA, and LEA—in such technical assistance opportunities will lead to mutually satisfactory outcomes. We also agree that stronger provisions regarding data sharing in the STEP agreements between the TEA, SEA, and LEA would be helpful. Accordingly, we are revising the preliminary agreement requirements in paragraph (f)(1) to require the parties to acknowledge the importance of student data to the project's success. In addition, in paragraph (f)(1), we are specifying that, if the project design requires data sharing, the progress of the parties towards mutual data access may be a factor in determining whether a project is making substantial progress towards meeting its objectives, for purposes of continuation awards.

In response to the commenters' concerns, we note that one option under which TEAs may access student education records without written consent is for the SEA or LEA to designate the TEA as an authorized representative for purposes of evaluating one or more ESEA formula grant programs that the SEA or LEA is responsible for evaluating. Because this designation requires the parties to enter a separate written agreement that complies with the FERPA regulations (see 34 CFR 99.35(a)(3)), it can take time to finalize. Therefore, such a designation would not have to be completed as part of the preliminary STEP agreement required as part of the grant application, but must be included in or attached to the final agreement. In paragraph (f)(2) we are requiring that parties make their best efforts to participate in training regarding FERPA and to include in or attach to the final agreement the terms relating to data sharing that are consistent with FERPA.

In paragraph (f) of the Preliminary Agreement requirement, we purposefully use the term data-sharing to emphasize that data sharing should be mutual, rather than one-directional, in order to account for all students. We note that many tribes operate BIE-funded schools, and AI/AN students transfer frequently between such schools and public schools. Accordingly, in any final agreement on terms relating to data sharing, a BIE school could agree to provide timely information to the TEA and the LEA concerning students who transfer to the public school or who drop out of the BIE school.

Changes: We have revised the language in paragraph (f) of the Preliminary Agreement requirement to require the parties to: acknowledge that access to student data is important for TEA capacity building; and commit to making best efforts to participate in trainings and technical assistance and reach agreement on data sharing that is consistent with FERPA if it is required by the project design. This replaces the language that was in proposed paragraph (h) of the Preliminary Agreement requirement.

Comment: One commenter raised concern about requiring TEAs to enter a partnership with local public schools and SEAs, because tribes have historically struggled with these agencies.

Discussion: We acknowledge the historical struggle between tribes, SEAs, and LEAs. One of the major purposes of the STEP program is to increase collaboration between TEAs, SEAs, and LEAs, and, thus, the Department believes it is important to include these entities in the partnership. The preliminary and final agreements must therefore be signed by these parties.

Changes: None.

Comment: None.

Discussion: Because STEP grants are subject to the Indian hiring preference in section 7(b) of the Indian Self-Determination and Education Assistance Act (Pub. L. 93-638) to the extent that they benefit primarily members of federally recognized tribes, we are adding a reference to this provision under the Requirements section.

Changes: We have added the statutory hiring preference requirements, entitled ISDEAA Hiring Preference, under the Requirements section of this notice.

Definitions

Comment: Several commenters suggested changes to the definition of “established TEA.” Those comments and corresponding changes are discussed in the Priorities part of the Analysis of Comments and Changes section of this document.

Final Priorities Final Priority 1—Established TEAs

To meet this priority, a TEA must be an established TEA.

Final Priority 2—TEAs with Limited Prior Experience

To meet this priority, a TEA with limited prior experience is, for any STEP competition, a TEA that does not meet the definition of an “established TEA.”

Types of Priorities

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register. The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

Final Requirements

The Assistant Secretary for Elementary and Secondary Education establishes the following requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect.

Eligible Applicant

(a) A TEA that is from an eligible Indian tribe and is authorized by its tribe to administer this program; or

(b) A consortium of such TEAs.

Schools and ESEA Formula Grant Programs Included in Project

(a) Schools. (1) Projects must include at least two eligible schools, at least one of which must be a public school.

(2) All schools included in the project must receive services or funds for the specific ESEA formula grant program(s) selected by the applicant.

(3) For projects that include one or more tribally controlled schools—

(i) The applicant TEA must include in its application evidence that it submitted a copy of the application to BIE; and

(ii) If the proposed project includes SEA-type functions with regard to the tribally controlled school, the TEA may be required by BIE to enter into an agreement with BIE, to be submitted to the Department at the same time as the final agreement.

(b) ESEA Formula Grant Programs. Projects must include at least one ESEA formula grant program that is State-administered.

Preliminary Agreement: An applicant must submit with its application for funding a signed preliminary agreement among the TEA, SEA, and LEA. Letters of support from an SEA or LEA will not meet this requirement and will not be accepted as a substitute.

The preliminary agreement must include:

(a) An explanation of how the parties will work collaboratively to:

(1) Administer selected ESEA formula grant programs in eligible schools; and

(2) Cooperate on administering other educational programs or services as agreed to by the parties.

(b) The primary ESEA formula grant program(s) for which the TEA will assume SEA-type or LEA-type administrative functions;

(c) A description of the primary SEA-type or LEA-type administrative functions that the TEA will assume;

(d) The training and other activities that the SEA or LEA, as appropriate, will provide for the TEA to gain the knowledge and skills needed to administer ESEA formula programs;

(e) The assistance that the TEA will provide to the SEA or LEA, as appropriate, to facilitate the project, such as cultural competence training;

(f) A statement concerning student data that—

(1) Acknowledges that access by the TEA to data on students who are tribal members is important to building the capacity of the TEA, and, depending on the project design, may be one of the factors the Secretary considers in determining whether a grantee has made substantial progress in achieving the goals and objectives of the project for the purpose of making continuation awards; and

(2) Commits the parties to making their best efforts to:

(i) Participate in training and technical assistance, provided by or through the Department, on the requirements of section 444 of the General Education Provisions Act (commonly referred to as the Family Educational Rights and Privacy Act, or FERPA) and on the possible ways in which the TEA could be provided access to tribal student data consistent with FERPA; and

(ii) Reach agreement on and include as part of the Final Agreement to be submitted during year 1 of the grant, a provision on data sharing that is consistent with FERPA, if data sharing is required by the project design;

(g) The names of at least one LEA and two or more eligible schools, at least one of which must be a public school, that are expected to participate in the project;

(h) An explanation of how the STEP funds will be used to build on existing activities or add new activities rather than replace tribal or other funds; and

(i) Signatures of the authorized representatives of the TEA, SEA, participating LEA(s), and any BIE-funded tribally controlled school that is included in the project.

Final Agreement: Each grantee must submit to the Department a final agreement by the date, in year 1 of the grant, to be established by the Department in the notice inviting applications. The final agreement must contain:

(a) All of the elements from the preliminary agreement, in final form;

(b) A timetable for accomplishing each of the objectives and activities that the parties will undertake;

(c) Goals of the project and measureable objectives towards reaching the goals; and

(d) The actions that the parties will take to sustain the relationships and activities established in the agreement after the project ends.

ISDEAA Hiring Preference

(a) Awards that are primarily for the benefit of Indians are subject to the provisions of section 7(b) of the Indian Self-Determination and Education Assistance Act (P.L. 93-638). That section requires that, to the greatest extent feasible, a grantee—

(1) Give to Indians preferences and opportunities for training and employment in connection with the administration of the grant; and

(2) Give to Indian organizations and to Indian-owned economic enterprises, as defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C. 1452(e)), preference in the award of contracts in connection with the administration of the grant.

(b) For purposes of this section, an Indian is a member of any federally recognized Indian tribe.

Final Definitions

The Assistant Secretary for Elementary and Secondary Education establishes the following definitions for this program. We may apply one or more of these definitions in any year in which this program is in effect.

Cultural competency means the use of culturally responsive education that takes into account a student's own cultural experiences, creates connections between home and school experiences, and uses the cultural knowledge, prior experiences, and learning styles of diverse students to make learning more appropriate and effective.

Eligible Indian tribe means a federally recognized or a State-recognized tribe.

Eligible school means a school that is included in the applicant's preliminary and final agreements, and that is:

(a) A public school, including a public charter school, or

(b) A BIE-funded tribally controlled school.

Established TEA means a TEA that:

(a) Previously received a STEP grant, or

(b) Has an existing prior relationship with an SEA or LEA as evidenced by a prior written agreement between the TEA and SEA or LEA, and meets one or more of the following criteria, as specified by the Secretary in a notice inviting applications published in the Federal Register:

(i) Has an existing tribal education code;

(ii) Has administered at least one education program (for example, a tribally operated preschool or afterschool program) within the past five years; or

(iii) Has administered at least one Federal, State, local, or private grant within the past five years.

Note:

For each competition, the Secretary will publish in the Federal Register the minimum number of criteria from this list (such as two out of three), or the specific criteria from this list that an established TEA must meet.

ESEA formula grant program means one of the following programs authorized under the Elementary and Secondary Education Act of 1965, as amended (ESEA), for which SEAs or LEAs receive formula funding:

(a) Improving Academic Achievement of the Disadvantaged (title I, part A);

(b) School Improvement Grants (section 1003(g));

(c) Migrant Education (title I, part C);

(d) Neglected and Delinquent State Grants (title I, part D);

(e) Improving Teacher Quality State Grants (title II, part A);

(f) English Learner Education State Grants (title III, part A);

(g) 21st Century Community Learning Centers (title IV, part B); and

(h) Indian Education Formula Grants (title VII, part A).

Note:

State-administered ESEA formula grant programs are the programs identified in paragraphs (a)-(g) of the definition of ESEA formula grant program. If an applicant chooses the Indian Education Formula Grants program (title VII, part A), which makes direct grants to LEAs, it must also choose at least one State-administered program listed in (a)-(g), as required by paragraph (b) of the Schools and ESEA Formula Grant Programs Included in Project requirement. Applicants can still choose SEA- or LEA-type functions for the State-administered ESEA formula grant.

LEA-type function means the type of activity that LEAs typically conduct, such as direct provision of educational services to students, grant implementation, school district curriculum development, staff professional development pursuant to State guidelines, and data submissions.

SEA-type function means the type of activity that SEAs typically conduct, such as overall education policy development, supervision and monitoring of school districts, provision of technical assistance to districts, statewide curriculum development, collecting and analyzing performance data, and evaluating programs.

Tribal educational agency (TEA) means the agency, department, or instrumentality of an eligible Indian tribe that is primarily responsible for supporting tribal students' elementary and secondary education, which may include early learning.

Final Selection Criteria

The Assistant Secretary for Elementary and Secondary Education establishes the following selection criteria for evaluating an application under this program. In any year in which this program is in effect, we may apply one or more of these criteria or sub-criteria, any of the selection criteria in 34 CFR 75.210, or any combination of these. In the notice inviting applications or the application package or both, we will announce the maximum possible points assigned to each criterion.

(a) Need for project. The Assistant Secretary considers the extent to which the goals and objectives in the preliminary agreement, including the TEA capacity-building activities, address identified educational needs of the Indian students to be served.

(b) Quality of the project design. The Assistant Secretary considers one or more of the following factors:

(1) The extent to which the proposed project would recognize and support tribal sovereignty.

(2) The extent to which the preliminary agreement defines goals, objectives, and outcomes of the proposed project that are likely to be achieved by the end of the project period.

(3) The extent to which the proposed project would build relationships and better communication among the TEA, SEA, and LEA, as well as families and communities, to the benefit of Indian students in the selected schools, including by enhancing the cultural competency of SEA and LEA staff.

(4) The extent to which the proposed project would enhance the capacity of the TEA to administer ESEA formula grants during the grant period and beyond.

(c) Adequacy of resources. The Assistant Secretary considers the extent to which:

(1) The TEA has established, prior to developing the preliminary agreement, a relationship with either the SEA or an LEA that will enhance the likelihood of the project's success; and

(2) The use of STEP grant funds supports the capacity-building activities that are needed to administer ESEA formula grants.

(d) Quality of project personnel. The Assistant Secretary considers the extent to which the proposed project director has experience in education and in administering Federal grants.

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Note:

This notice does not solicit applications. In any year in which we choose to use one or more of these priorities, requirements, definitions, or selection criteria, we will invite applications through a notice in the Federal Register.

Executive Orders 12866 and 13563 Regulatory Impact Analysis

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

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

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

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

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

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

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

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

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

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

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

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

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

We are issuing these final priorities, requirements, definitions, and selection criteria only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

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

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

We believe that the final priorities, requirements, definitions, and selection criteria would not impose significant costs on eligible TEAs that receive assistance through the STEP program. We also believe that the benefits of implementing the final priorities, requirements, definitions, and selection criteria outweigh any associated costs.

We believe that the costs imposed on applicants would be limited to costs associated with developing applications, including developing partnerships with SEAs and LEAs, and that the benefits of creating a partnership that is likely to be sustained after the end of the project period would outweigh any costs incurred by applicants. The costs of carrying out activities proposed in STEP applications would be paid for with program funds. Thus, the costs of implementation would not be a burden for any eligible applicants, including small entities. We also note that program participation is voluntary.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79, except that federally recognized Indian tribes are not subject to those rules. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

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

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

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

Dated: February 26, 2015. Deborah S. Delisle, Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 2015-04492 Filed 3-3-15; 8:45 am] BILLING CODE 4000-01-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2014-0522; FRL-9923-79-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Virginia; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standards AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the Commonwealth of Virginia pursuant to the Clean Air Act (CAA). Whenever new or revised National Ambient Air Quality Standards (NAAQS) are promulgated, the CAA requires states to submit a plan for the implementation, maintenance, and enforcement of such NAAQS. The plan is required to address basic program elements, including but not limited to regulatory structure, monitoring, modeling, legal authority, and adequate resources necessary to assure implementation, maintenance, and enforcement of the NAAQS. These elements are referred to as infrastructure requirements. The Commonwealth of Virginia made a submittal addressing the infrastructure requirements for the 2010 sulfur dioxide (SO2) primary NAAQS.

DATES:

This final rule is effective on April 3, 2015.

ADDRESSES:

EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2014-0522. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

FOR FURTHER INFORMATION CONTACT:

Ellen Schmitt, (215) 814-5787, or by email at [email protected]

SUPPLEMENTARY INFORMATION:

I. Summary of SIP Revision

On June 22, 2010 (75 FR 35520), EPA promulgated a 1-hour primary SO2 NAAQS at a level of 75 parts per billion (ppb), based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. The new NAAQS is codified at 40 CFR 50.17, while the prior NAAQS are at 40 CFR 50.4. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe.

On June 18, 2014, the Commonwealth of Virginia, through the Virginia Department of Environmental Quality (VADEQ), submitted a SIP revision that addresses the infrastructure elements specified in section 110(a)(2) of the CAA necessary to implement, maintain, and enforce the 2010 SO2 NAAQS. On August 22, 2014 (79 FR 49731), EPA published a notice of proposed rulemaking (NPR) for Virginia proposing approval of the submittal. In the NPR, EPA proposed approval of the following infrastructure elements: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (consultation, public notification, and prevention of significant deterioration), (K), (L), and (M).

Virginia did not submit section 110(a)(2)(I) which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) and will be addressed in a separate process. At this time, EPA is not taking action on section 110(a)(2)(D)(i)(II) or (J) for visibility protection for the 2010 SO2 NAAQS as explained in the NPR. Although Virginia's infrastructure SIP submittal for the 2010 SO2 NAAQS referred to Virginia's regional haze SIP for section 110(a)(2)(D)(i)(II) and (J) for visibility protection, EPA intends to take later, separate action on Virginia's submittal for these elements as explained in the NPR and the Technical Support Document (TSD) which accompanied the NPR. This rulemaking action also does not include action on section 110(a)(2)(D)(i)(I) of the CAA because Virginia's June 18, 2014 infrastructure SIP submittal did not include provisions for this element; therefore EPA will take later, separate action on section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS for Virginia as explained in the NPR. Finally, EPA will also take later, separate action with respect to Section 110(a)(2)(E)(ii) regarding CAA section 128 requirements for State Boards for the 2010 SO2 NAAQS as explained in the NPR.

The rationale supporting EPA's proposed rulemaking action, including the scope of infrastructure SIPs in general, is explained in the published NPR and the TSD accompanying the NPR and will not be restated here. The NPR and TSD are available in the docket for this rulemaking at www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-0522. The discussion below in responding to comments on the NPR provides additional rationale to the extent necessary and appropriate to provide such responses and support the final action.

II. Public Comments and EPA's Responses

EPA received comments from the Sierra Club on the August 22, 2014 proposed rulemaking action on Virginia's 2010 SO2 infrastructure SIP. A full set of these comments is provided in the docket for today's final rulemaking action.

A. Background Comments 1. The Plain Language of the CAA

Comment 1: Sierra Club contends in background comments that the plain language of section 110(a)(2)(A) of the CAA, legislative history of the CAA, case law, EPA regulations such as 40 CFR 51.112(a), and EPA interpretations in rulemakings require the inclusion of enforceable emission limits in an infrastructure SIP to prevent NAAQS exceedances in areas not designated nonattainment. Sierra Club then contends that the Virginia 2010 SO2 infrastructure SIP revision did not revise the existing SO2 emission limits in response to the 2010 SO2 NAAQS and fails to comport with asserted CAA requirements for SIPs to establish enforceable emission limits that are adequate to prohibit NAAQS exceedances in areas not designated nonattainment.

The Commenter states that the main objective of the infrastructure SIP process “is to ensure that all areas of the country meet the NAAQS,” and that nonattainment areas are addressed through nonattainment SIPs. The Commenter asserts the NAAQS are the foundation for specific emission limitations for most large stationary sources, such as coal-fired power plants. The Commenter discusses the CAA's framework whereby states have primary responsibility to assure air quality within the state pursuant to CAA section 107(a) which the states carry out through SIPs such as infrastructure SIPs required by section 110(a)(2). The Commenter also states that on its face the CAA requires infrastructure SIPs “to be adequate to prevent exceedances of the NAAQS.” In support, the Commenter quotes the language in section 110(a)(1) which requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) which requires SIPs to include enforceable emissions limitations as may be necessary to meet the requirements of the CAA and which the commenter claims include the maintenance plan requirement. Sierra Club notes the CAA definition of emission limit and reads these provisions together to require “enforceable emission limits on source emissions sufficient to ensure maintenance of the NAAQS.”

Response 1: EPA disagrees that section 110 is clear “on its face” and must be interpreted in the manner suggested by Sierra Club. As we have previously explained in response to Sierra Club's similar comments in taking action on Virginia's 2008 ozone NAAQS infrastructure SIP (see 79 FR 17043, 17047 (March 27, 2014)), section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure.

EPA interprets infrastructure SIPs as more general planning SIPs, consistent with the CAA as understood in light of its history and structure. When Congress enacted the CAA in 1970, it did not include provisions requiring states and the EPA to label areas as attainment or nonattainment. Rather, states were required to include all areas of the state in “air quality control regions” (AQCRs) and section 110 set forth the core substantive planning provisions for these AQCRs. At that time, Congress anticipated that states would be able to address air pollution quickly pursuant to the very general planning provisions in section 110 and could bring all areas into compliance with a new NAAQS within five years. Moreover, at that time, section 110(a)(2)(A)(i) specified that the section 110 plan provide for “attainment” of the NAAQS and section 110(a)(2)(B) specified that the plan must include “emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance [of the NAAQS].”

In 1977, Congress recognized that the existing structure was not sufficient and many areas were still violating the NAAQS. At that time, Congress for the first time added provisions requiring states and EPA to identify whether areas of a state were violating the NAAQS (i.e., were nonattainment) or were meeting the NAAQS (i.e., were attainment) and established specific planning requirements in section 172 for areas not meeting the NAAQS. In 1990, many areas still had air quality not meeting the NAAQS and Congress again amended the CAA and added yet another layer of more prescriptive planning requirements for each of the NAAQS. At that same time, Congress modified section 110 to remove references to the section 110 SIP providing for attainment, including removing pre-existing section 110(a)(2)(A) in its entirety and renumbering subparagraph (B) as section 110(a)(2)(A). Additionally, Congress replaced the clause “as may be necessary to insure attainment and maintenance [of the NAAQS]” with “as may be necessary or appropriate to meet the applicable requirements of this chapter.” Thus, the CAA has significantly evolved in the more than 40 years since it was originally enacted. While at one time section 110 of the CAA did provide the only detailed SIP planning provisions for states and specified that such plans must provide for attainment of the NAAQS, under the structure of the current CAA, section 110 is only the initial stepping-stone in the planning process for a specific NAAQS. More detailed, later-enacted provisions govern the substantive planning process, including planning for attainment of the NAAQS.

Thus, EPA asserts that section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of that structure and the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for “implementation, maintenance and enforcement” to mean that the SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. EPA has interpreted the requirement for emission limitations in section 110 to mean that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Finally, as EPA stated in the Infrastructure SIP Guidance which specifically provides guidance to states in addressing the 2010 SO2 NAAQS, “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both.” Infrastructure SIP Guidance at p. 2.1

1 Thus, EPA disagrees with Sierra Club's general assertion that the main objective of infrastructure SIPs is to ensure all areas of the country meet the NAAQS, as we believe the infrastructure SIP process is the opportunity to review the structural requirements of a state's air program. EPA, however, does agree with Sierra Club that the NAAQS are the foundation upon which emission limitations are set, but we believe, as explained in responses to subsequent comments, that these emission limitations are generally set in the attainment planning process envisioned by part D of title I of the CAA, including, but not limited to, CAA sections 172 and 191-192.

The Commenter makes general allegations that Virginia does not have sufficient protective measures to prevent SO2 NAAQS exceedances. EPA addressed the adequacy of Virginia's infrastructure SIP for 110(a)(2)(A) purposes to meet applicable requirements of the CAA in the TSD accompanying the August 22, 2014 NPR and explained why the SIP includes enforceable emission limitations and other control measures necessary for maintenance of the 2010 SO2 NAAQS throughout the Commonwealth.2 These include applicable portions of the following chapters of 9 VAC 5: 40 (Existing Stationary Sources),3 50 (New and Modified Stationary Sources), and 91 (Motor Vehicle Inspection and Maintenance in Northern Virginia). 4 Further, in 2012, EPA granted limited approval of Virginia's regional haze SIP which also includes emission measures related to SO2. 77 FR 35287 (June 13, 2012). As discussed in the TSD for this rulemaking, EPA finds the provisions for SO2 emission limitations and measures adequately address section 110(a)(2)(A) to aid in attaining and/or maintaining the NAAQS and finds Virginia demonstrated that it has the necessary tools to implement and enforce the NAAQS.

2 The TSD for this action is available on line at www.regulations.gov, Docket ID Number EPA-R03-OAR-2014-0522.

3 9VAC5 Chapter 40 includes emission standards for SO2 for many source categories including, but not limited to, portland cement, primary and secondary metal operations, sulfuric acid production, sulfur recovery operations, and lightweight aggregate process operations.

4 When EPA proposed to approve Virginia's SO2 infrastructure SIP in August 2014, we included in the TSD for section 110(a)(2)(A) a reference to 9VAC5 Chapter 140 which was Virginia's SIP approved regulations implementing EPA's Clean Air Interstate Rule (CAIR), a cap-and-trade program to reduce SO2 and nitrogen oxide (NOX) emissions at electric generating units (EGUs) aimed at reducing interstate impacts on ozone and particulate matter concentrations in downwind states. In August 2011, EPA issued the Cross-State Air Pollution Rule (CSAPR) to replace CAIR, which had been remanded by the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). See North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). See also 76 FR 48208 (August 8, 2011) (promulgation of CSAPR). New litigation commenced in the D.C. Circuit concerning CSAPR during which the D.C. Circuit initially vacated CSAPR in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), cert. granted 133 U.S. 2857 (2013) and ordered continued implementation of CAIR. However, the United States Supreme Court vacated that decision and remanded CSAPR to the D.C. Circuit for further proceedings. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). After the Supreme Court's decision, EPA filed a motion to lift the stay of CSAPR and asked the D.C. Circuit to toll CSAPR's compliance deadlines by three years. On October 23, 2014, after EPA proposed to approve Virginia's SO2 infrastructure SIP, the D.C. Circuit granted EPA's motion and lifted the stay on CSAPR. EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23, 2014), Order at 3. EPA views the D.C. Circuit's October 23, 2014 Order as also granting EPA's request to toll CSAPR's compliance deadlines and will therefore commence implementation of CSAPR on January 1, 2015. 79 FR 71663 (December 3, 2014) (interim final rule revising CSAPR compliance deadlines). Therefore, EPA began implementing CSAPR on January 1, 2015 and ceased implementing CAIR on December 31, 2014 because CSAPR replaced CAIR. Virginia EGU's will continue to be subject to a cap-and-trade program for reducing SO2 emissions which will preserve reductions at such EGUs achieved through CAIR; however, this program will be CSAPR, implemented as a FIP by EPA, until such time as Virginia adds the provisions of CSAPR to its SIP. CSAPR requires substantial reductions of SO2 and NOX emissions from EGUs in 28 states in the Eastern United States that significantly contribute to downwind nonattainment or interfere with maintenance of the 1997 fine particulate matter (PM2.5) and ozone NAAQS and 2006 PM2.5 NAAQS.

2. The Legislative History of the CAA

Comment 2: Sierra Club cites two excerpts from the legislative history of the 1970 CAA claiming they support an interpretation that SIP revisions under CAA section 110 must include emissions limitations sufficient to show maintenance of the NAAQS in all areas of Virginia. Sierra Club also contends that the legislative history of the CAA supports the interpretation that infrastructure SIPs under section 110(a)(2) must include enforceable emission limitations, citing the Senate Committee Report and the subsequent Senate Conference Report accompanying the 1970 CAA.

Response 2: As provided in the previous response, the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning demonstrating attainment. See also 79 FR at 17046 (responding to comments on Virginia's ozone infrastructure SIP). In any event, the two excerpts of legislative history the Commenter cites merely provide that states should include enforceable emission limits in their SIPs and they do not mention or otherwise address whether states are required to include maintenance plans for all areas of the state as part of the infrastructure SIP. As provided in response to another comment in this rulemaking, the TSD for the proposed rule explains why the Virginia SIP includes enforceable emissions limitations for SO2 for the relevant area.

3. Case Law

Comment 3: Sierra Club also discusses several cases applying the CAA which Sierra Club claims support their contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIPs to prevent exceedances of the NAAQS. Sierra Club first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are specific rules to which operators of pollution sources are subject, and which, if enforced, should result in ambient air which meet the national standards.” Sierra Club also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS, and to Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that “SIPs must include certain measures Congress specified” to ensure attainment of the NAAQS. The Commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“The Clean Air Act directs states to develop implementation plans—SIPs—that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations”); Hall v. EPA 273 F.3d 1146, 1153 (9th Cir. 2001) (“Each State must submit a [SIP] that specif[ies] the manner in which [NAAQS] will be achieved and maintained within each air quality control region in the State”); Conn. Fund for Env't, Inc. v. EPA, 696 F.2d 169, 172 (D.C. Cir. 1982) (CAA requires SIPs to contain “measures necessary to ensure attainment and maintenance of NAAQS”). Finally, Sierra Club cites Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS.

Response 3: None of the cases Sierra Club cites support its contention that section 110(a)(2)(A) is clear that infrastructure SIPs must include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how section 110(a)(2)(A) may reasonably be interpreted. With the exception of Train, none of the cases the Commenter cites concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the courts reference section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background sections of decisions in the context of a challenge to an EPA action on revisions to a SIP that was required and approved as meeting other provisions of the CAA or in the context of an enforcement action.

In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the sole statutory provision at that time regulating such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The Court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether a section 110 SIP needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS. To the extent the holding in the case has any bearing on how section 110(a)(2)(A) might be interpreted, it is important to realize that in 1975, when the opinion was issued, section 110(a)(2)(B) (the predecessor to section 110(a)(2)(A)) expressly referenced the requirement to attain the NAAQS, a reference that was removed in 1990.

The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on the pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved plan where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. Yet, even if the Court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation”, not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the Commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). Sierra Club does not raise any concerns about whether the measures relied on by the Commonwealth in the infrastructure SIP are “emissions limitations” and the decision in this case has no bearing here.5 In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was reviewing a federal implementation plan (FIP) that EPA promulgated after a long history of the state failing to submit an adequate SIP in response to EPA's finding under section 110(k)(5) that the previously approved SIP was substantially inadequate to attain or maintain the NAAQS, which triggered the state's duty to submit a new SIP to show how it would remedy that deficiency and attain the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations, but this language was not part of the Court's holding in the case, which focused instead on whether EPA's finding of SIP inadequacy, disapproval of the state's responsive attainment demonstration, and adoption of a remedial FIP were lawful. The Commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, Sierra Club also quotes the Court's statement that “SIPs must include certain measures Congress specified,” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the state's “new source” permitting program, not its infrastructure SIP.

5 While Sierra Club does contend that the Commonwealth shouldn't be allowed to rely on emission reductions that were developed for the prior SO2 standards (which we address herein), it does not claim that any of the measures are not “emissions limitations” within the definition of the CAA.

Two of the cases Sierra Club cites, Mich. Dept. of Envtl. Quality, 230 F.3d 181, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing “revisions” to plans, and not the initial plan submission requirement under section 110(a)(2) for a new or revised NAAQS, such as the infrastructure SIP at issue in this instance. In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA.

Finally, in Conn. Fund for Env't, Inc. v. EPA, the D.C. Circuit was reviewing EPA action on a control measure SIP provision which adjusted the percent of sulfur permissible in fuel oil. 696 F.2d 169 (D.C. Cir. 1982). The D.C. Circuit focused on whether EPA needed to evaluate effects of the SIP revision on one pollutant or effects of changes on all possible pollutants; therefore, the D.C. Circuit did not address required measures for infrastructure SIPs and nothing in the opinion addressed whether infrastructure SIPs needed to contain measures to ensure attainment and maintenance of the NAAQS.

4. EPA Regulations, Such as 40 CFR 51.112(a)

Comment 4: Sierra Club cites to 40 CFR 51.112(a), providing that “[e]ach plan must demonstrate that the measures, rules and regulations contained in it are adequate to provide for the timely attainment and maintenance of the [NAAQS].” Sierra Club asserts that this regulation requires all SIPs to include emissions limits necessary to ensure attainment of the NAAQS. Sierra Club states that “[a]lthough these regulations were developed before the Clean Air Act separated infrastructure SIPs from nonattainment SIPs—a process that began with the 1977 amendments and was completed by the 1990 amendments—the regulations apply to I-SIPs.” Sierra Club relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . .” 51 FR 40656, 40656 (November 7, 1986).

Response 4: Sierra Club's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits “adequate to prohibit NAAQS exceedances” and adequate or sufficient to ensure the maintenance of the NAAQS is not supported. As an initial matter, EPA notes and the Commenter recognizes this regulatory provision was initially promulgated and “restructured and consolidated” prior to the CAA Amendments of 1990, in which Congress removed all references to “attainment” in section 110(a)(2)(A). And, it is clear on its face that 40 CFR 51.112 applies to plans specifically designed to attain the NAAQS. EPA interprets these provisions to apply when states are developing “control strategy” SIPs such as the detailed attainment and maintenance plans required under other provisions of the CAA, as amended in 1977 and again in 1990, such as section 175A and 191-192. The Commenter suggests that these provisions must apply to section 110 SIPs because in the preamble to EPA's action “restructuring and consolidating” provisions in part 51, EPA stated that the new attainment demonstration provisions in the 1977 Amendments to the CAA were “beyond the scope” of the rulemaking. It is important to note, however, that EPA's action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated. EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. 51 FR at 40657.

Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “Part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SOX and PM (portion)”), 51.14 (“Control strategy: CO, HC, OX and NO2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

5. EPA Interpretations in Other Rulemakings

Comment 5: Sierra Club also references two prior EPA rulemaking actions where EPA disapproved or proposed to disapprove SIPs and claimed they were actions in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject infrastructure SIPs. The Commenter first points to a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the SO2 NAAQS. In that action, EPA cited section 110(a)(2)(A) for disapproving a revision to the state plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the NAAQS. Second, Sierra Club cites a 2013 disapproval of a revision to the SO2 SIP for Indiana, where the revision removed an emission limit that applied to a specific emissions source at a facility in the State. See 78 FR 17157, 17158, (March 20, 2013) (proposed rule on Indiana SO2 SIP) and 78 FR 78720, 78721 (December 27, 2013) (final rule on Indiana SO2 SIP). In its proposed disapproval, EPA relied on 40 CFR 51.112(a) in proposing to reject the revision, stating that the State had not demonstrated that the emission limit was “redundant, unnecessary, or that its removal would not result in or allow an increase in actual SO2 emissions.” EPA further stated in that proposed disapproval that the State had not demonstrated that removal of the limit would not “affect the validity of the emission rates used in the existing attainment demonstration.”

Response 5: EPA does not agree that the two prior actions referenced by Sierra Club establish how EPA reviews infrastructure SIPs. It is clear from both the final Missouri rule and the proposed and final Indiana rule that EPA was not reviewing initial infrastructure SIP submissions under section 110 of the CAA, but rather reviewing revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 addressed a control strategy SIP and not an infrastructure SIP. The Indiana action provides even less support for the Commenter's position. 78 FR 78720. The review in that rule was of a completely different requirement than the section 110(a)(2)(A) SIP. Rather, in that case, the State had an approved SO2 attainment plan and was seeking to remove provisions from the SIP that it relied on as part of the modeled attainment demonstration. EPA proposed that the State had failed to demonstrate under section 110(l) of the CAA why the SIP revision would not result in increased SO2 emissions and thus interfere with attainment of the NAAQS. See 78 FR 17157. Nothing in that proposed or final rulemaking addresses the necessary content of the initial infrastructure SIP for a new or revised NAAQS. Rather, it is simply applying the clear statutory requirement that a state must demonstrate why a revision to an approved attainment plan will not interfere with attainment of the NAAQS.

As discussed in detail in the TSD and NPR, EPA finds the Virginia SIP meets the appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the NAAQS and that the Commonwealth demonstrated that it has the necessary tools to implement and enforce a NAAQS. Therefore, EPA approves the Virginia SO2 infrastructure SIP.6

6 As stated previously, EPA will take later, separate action on several portions of Virginia's SO2 infrastructure SIP submittal including the portions of the SIP submittal addressing section 110(a)(2)(D)(i)(II) and (J) (both for visibility protection) and 110(a)(2)(E)(ii) for State Boards.

B. Comments on Virginia SIP SO2 Emission Limits

Comment 6: Citing section 110(a)(2)(A) of the CAA, Sierra Club contends that EPA may not approve the proposed infrastructure SIP because it does not include enforceable 1-hour SO2 emission limits for sources currently allowed to cause “NAAQS exceedances.” Sierra Club asserts the proposed infrastructure SIP fails to include enforceable 1-hour SO2 emissions limits or other required measures to ensure attainment and maintenance of the SO2 NAAQS in areas not designated nonattainment as Sierra Club claims is required by section 110(a)(2)(A). Sierra Club asserts an infrastructure SIP must ensure, through state-wide regulations or source specific requirements, proper mass limitations and short term averaging on specific large sources of pollutants such as power plants. Sierra Club asserts that emission limits are especially important for meeting the 1-hour SO2 NAAQS because SO2 impacts are strongly source-oriented. Sierra Club states coal-fired electric generating units (EGUs) are large contributors to SO2 emissions but contends Virginia did not demonstrate that emissions allowed by the proposed infrastructure SIP from such large sources of SO2 will ensure compliance with the 2010 1-hour SO2 NAAQS. The Commenter claims the proposed infrastructure SIP would allow major sources to continue operating with present emission limits.7 Sierra Club then refers to air dispersion modeling it conducted for two coal-fired EGUs in Virginia, Chesapeake Energy Center and Yorktown Power Station. Sierra Club asserts the results of the air dispersion modeling it conducted employing EPA's AERMOD program for modeling used the plants' allowable and maximum emissions and showed the plants could cause exceedances of the 2010 SO2 NAAQS with either allowable or maximum emissions.8 Based on the modeling, Sierra Club asserts the Virginia SO2 infrastructure SIP submittal authorizes the two EGUs to cause exceedances of the NAAQS with allowable and maximum emission rates and therefore the infrastructure SIP fails to include adequate enforceable emission limitations or other required measures for sources of SO2 sufficient to ensure attainment and maintenance of the 2010 SO2 NAAQS. Sierra Club cites to information from the owner of Chesapeake Energy Center and Yorktown Power Station regarding the retirement of certain units at those plants in 2015 and 2016 and asserts such planned retirements should be incorporated into the Virginia infrastructure SIP as necessary to ensure attainment and maintenance of the NAAQS. Sierra Club therefore asserts EPA must disapprove Virginia's proposed SIP revision. In addition, Sierra Club asserts “EPA must impose additional emission limits on the plants that ensure attainment and maintenance of the NAAQS at all times.”

7 Sierra Club provides a chart in its comments claiming 65 percent of SO2 emissions in Virginia are from coal-fired power plants based on 2011 data.

8 Sierra Club asserts its modeling followed protocols pursuant to 40 CFR part 50, Appendix W and EPA's 2005 Guideline on Air Quality Models.

Response 6: EPA believes that section 110(a)(2)(A) of the CAA is reasonably interpreted to require states to submit infrastructure SIPs that reflect the first step in their planning for attainment and maintenance of a new or revised NAAQS. These SIP revisions should contain a demonstration that the state has the available tools and authority to develop and implement plans to attain and maintain the NAAQS and show that the SIP has enforceable control measures. In light of the structure of the CAA, EPA's long-standing position regarding infrastructure SIPs is that they are general planning SIPs to ensure that the state has adequate resources and authority to implement a NAAQS in general throughout the state and not detailed attainment and maintenance plans for each individual area of the state. As mentioned above, EPA has interpreted this to mean, with regard to the requirement for emission limitations, that states may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit.

As stated in response to a previous comment, EPA asserts that section 110 of the CAA is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific planning requirements of the CAA, EPA reasonably interprets the requirement in section 110(a)(2)(A) of the CAA that the plan provide for “implementation, maintenance and enforcement” to mean that the SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the Commonwealth demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program. As discussed above, EPA has interpreted the requirement for emission limitations in section 110 to mean that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may choose to submit. Finally, as EPA stated in the Infrastructure SIP Guidance which specifically provides guidance to states in addressing the 2010 SO2 NAAQS, “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both.” Infrastructure SIP Guidance at p. 2.

On April 12, 2012, EPA explained its expectations regarding the 2010 SO2 NAAQS via letters to each of the states. EPA communicated in the April 2012 letters that all states were expected to submit SIPs meeting the “infrastructure” SIP requirements under section 110(a)(2) of the CAA by June 2013. At the time, EPA was undertaking a stakeholder outreach process to continue to develop possible approaches for determining attainment status under the SO2 NAAQS and implementing this NAAQS. EPA was abundantly clear in the April 2012 letters that EPA did not expect states to submit substantive attainment demonstrations or modeling demonstrations showing attainment for areas not designated nonattainment in infrastructure SIPs due in June 2013. Although EPA had previously suggested in its 2010 SO2 NAAQS preamble and in prior draft implementation guidance in 2011 that states should, in the unique SO2 context, use the section 110(a) SIP process as the vehicle for demonstrating attainment of the NAAQS, this approach was never adopted as a binding requirement and was subsequently discarded in the April 2012 letters to states. The April 2012 letters recommended states focus infrastructure SIPs due in June 2013, such as Virginia's SO2 infrastructure SIP, on traditional “infrastructure elements” in section 110(a)(1) and (2) rather than on modeling demonstrations for future attainment for areas not designated as nonattainment.9

9 In EPA's final SO2 NAAQS preamble (75 FR 35520 (June 22, 2010)) and subsequent draft guidance in March and September 2011, EPA had expressed its expectation that many areas would be initially designated as unclassifiable due to limitations in the scope of the ambient monitoring network and the short time available before which states could conduct modeling to support their designations recommendations due in June 2011. In order to address concerns about potential violations in these unclassifiable areas, EPA initially recommended that states submit substantive attainment demonstration SIPs based on air quality modeling by June 2013 (under section 110(a)) that show how their unclassifiable areas would attain and maintain the NAAQS in the future. Implementation of the 2010 Primary 1-Hour SO 2 NAAQS, Draft White Paper for Discussion, May 2012 (2012 Draft White Paper) (for discussion purposes with Stakeholders at meetings in May and June 2012), available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. However, EPA clearly stated in this 2012 Draft White Paper its clarified implementation position that it was no longer recommending such attainment demonstrations for unclassifiable areas for June 2013 infrastructure SIPs. Id. EPA had stated in the preamble to the NAAQS and in the prior 2011 draft guidance that EPA intended to develop and seek public comment on guidance for modeling and development of SIPs for sections 110 and 191 of the CAA. Section 191 of the CAA requires states to submit SIPs in accordance with section 172 for areas designated nonattainment with the SO2 NAAQS. After seeking such comment, EPA has now issued guidance for the nonattainment area SIPs due pursuant to sections 191 and 172. See Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions, Stephen D. Page, Director, EPA's Office of Air Quality Planning and Standards, to Regional Air Division Directors Regions 1-10, April 23, 2014. In September 2013, EPA had previously issued specific guidance relevant to infrastructure SIP submissions due for the NAAQS, including the 2010 SO2 NAAQS. See Infrastructure SIP Guidance.

Therefore, EPA asserts the elements of section 110(a)(2) which address SIP revisions for SO2 nonattainment areas including measures and modeling demonstrating attainment are due by the dates statutorily prescribed under subpart 5 under part D. Those submissions are due no later than 18 months after an area is designed nonattainment for SO2, under CAA section 191(a). Thus, the CAA directs states to submit these 110(a)(2) elements for nonattainment areas on a separate schedule from the “structural requirements” of 110(a)(2) which are due within three years of adoption or revision of a NAAQS. The infrastructure SIP submission requirement does not move up the date for any required submission of a part D plan for areas designated nonattainment for the new NAAQS. Thus, elements relating to demonstrating attainment for areas not attaining the NAAQS are not necessary for infrastructure SIP submissions, and the CAA does not provide explicit requirements for demonstrating attainment for areas that have not yet been designated regarding attainment with a particular NAAQS.

As stated previously, EPA believes that the proper inquiry at this juncture is whether Virginia has met the basic structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submittal. Emissions limitations and other control measures needed to attain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure elements. A state, like Virginia, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission. For example, Virginia submitted a list of existing emission reduction measures in the SIP that control emissions of SO2 as discussed above in response to a prior comment and discussed in detail in the TSD. These provisions have the ability to reduce SO2 overall. Although the Virginia SIP relies on measures and programs used to implement previous SO2 NAAQS, these provisions are not limited to reducing SO2 levels to meet one specific NAAQS and will continue to provide benefits for the 2010 SO2 NAAQS.

Additionally, as discussed in EPA's TSD supporting the NPR, Virginia has the ability to revise its SIP when necessary (e.g. in the event the Administrator finds the plan to be substantially inadequate to attain the NAAQS or otherwise meet all applicable CAA requirements) as required under element H of section 110(a)(2). See Code of Virginia 10.1-1308 (authorizing Virginia's Air Pollution Control Board to promulgate regulations to abate, control, and prohibit air pollution throughout the Commonwealth).

EPA believes the requirements for emission reduction measures for an area designated nonattainment for the 2010 primary SO2 NAAQS are in sections 172 and 191-192 of the CAA, and therefore, the appropriate avenue for implementing requirements for necessary emission limitations for demonstrating attainment with the 2010 SO2 NAAQS is through the attainment planning process contemplated by those sections of the CAA. On August 5, 2013, EPA designated as nonattainment most areas in locations where existing monitoring data from 2009-2011 indicated violations of the 1-hour SO2 standard. 78 FR 47191. At that time, no areas in Virginia had monitoring data from 2009-2011 indicating violations of the 1-hour SO2 standard, and thus no areas were designated nonattainment in Virginia. In separate future actions, EPA intends to address the designations for all other areas for which EPA has yet to issue designations. See, e.g., 79 FR 27446 (May 13, 2014) (proposing process and timetables by which state air agencies would characterize air quality around SO2 sources through ambient monitoring and/or air quality modeling techniques and submit such data to the EPA). Although no areas within Virginia have yet been designated nonattainment, any future nonattainment designations under the 2010 SO2 NAAQS within the Commonwealth will set appropriate due dates for any applicable attainment SIPs required pursuant to CAA sections 172, 191, and 192. EPA believes it is not appropriate to bypass the attainment planning process by imposing separate attainment planning process requirements outside the attainment planning process and into the infrastructure SIP process. Such actions would be disruptive and premature absent exceptional circumstances and would interfere with a state's planning process. See In the Matter of EME Homer City Generation LP and First Energy Generation Corp., Order on Petitions Numbers III-2012-06, III-2012-07, and III2013-01 (July 30, 2014) (hereafter, Homer City/Mansfield Order) at 10-19 (finding Pennsylvania SIP did not require imposition of SO2 emission limits on sources independent of the part D attainment planning process contemplated by the CAA). EPA believes that the history of the CAA, and intent of Congress for the CAA as described above, demonstrate clearly that it is within the section 172 and general part D attainment planning process that Virginia must include additional SO2 emission limits on sources in order to demonstrate future attainment, where needed, for any areas in Virginia or other states that may be designated nonattainment in the future, in order to reach attainment with the 2010 1-hour SO2 NAAQS.

The Commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits adequate to provide for timely attainment and maintenance of the standard is also not supported. As explained previously in response to the background comments, EPA notes this regulatory provision clearly on its face applies to plans specifically designed to attain the NAAQS and not to infrastructure SIPs which show the states have in place structural requirements necessary to implement the NAAQS. Therefore, EPA finds 40 CFR 51.112 inapplicable to its analysis of the Virginia SO2 infrastructure SIP.

As noted in EPA's preamble for the 2010 SO2 NAAQS, determining compliance with the SO2 NAAQS will likely be a source-driven analysis, and EPA has explored options to ensure that the SO2 designations and implementation processes realistically account for anticipated SO2 reductions at sources that we expect will be achieved by current and pending national and regional rules. See 75 FR 35520. As mentioned previously above, EPA has proposed a process to address additional areas in states which may be found to not be attaining the 2010 SO2 NAAQS. 79 FR 27446 (proposing process for further monitoring or modeling of areas with larger SO2 sources). In addition, in response to lawsuits in district courts seeking to compel EPA's remaining designations of undesignated areas under the NAAQS, EPA has proposed to enter a settlement under which this process would require an earlier round of designations focusing on areas with larger sources of SO2 emissions, as well as enforceable deadlines for the later rounds of designations.10 However, because the purpose of an infrastructure SIP submission is for more general planning purposes, EPA does not believe Virginia is obligated to account for controlled SO2 levels at individual sources during this infrastructure SIP planning process. See Homer City/Mansfield Order at 10-19.

10 These lawsuits have not yet been fully resolved, as of the date of this final action.

Regarding the air dispersion modeling conducted by Sierra Club pursuant to AERMOD for the coal-fired EGUs including Chesapeake Energy Center and Yorktown Power Station, EPA is not at this stage prepared to opine on whether the modeling demonstrates violations of the NAAQS, and does not find the modeling information relevant for review of an infrastructure SIP. EPA has issued non-binding guidance for states to use in conducting, if they choose, additional analysis to support designations for the 2010 SO2 NAAQS. SO 2 NAAQS Designations Modeling Technical Assistance Document, EPA Office of Air and Radiation and Office of Air Quality Planning and Standards, December 2013, available at http://www.epa.gov/airquality/sulfurdioxide/implement.html. Sierra Club's AERMOD modeling for the Virginia EGUs was conducted prior to the issuance of this guidance and may not address all recommended elements EPA may consider important to modeling for the 2010 SO2 NAAQS for designations purposes. If any areas in Virginia are designated nonattainment in the future, any potential future modeling in attainment demonstrations by the Commonwealth would need to account for any new emissions limitations Virginia develops to support such demonstration, which at this point are unknown. Therefore, it is premature at this point to evaluate whether current modeled allowable SO2 levels would be sufficient to show future attainment of the NAAQS. In addition, while EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations, EPA has recommended that such modeling was not needed for the SO2 infrastructure SIPs needed for the 2010 SO2 NAAQS. See April 12, 2012 letters to states and 2012 Draft White Paper. In contrast, EPA recently discussed modeling for designations in our May 14, 2014 proposal at 79 FR 27446 and for nonattainment planning in the April 23, 2014 Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions. 11

11 EPA does not disagree with Sierra Club's data indicating coal-fired power plants represented a majority of the SO2 emissions in Virginia based on 2011 data. However, such data are not relevant to EPA's approval of Virginia's SO2 infrastructure SIP, and EPA therefore provides no additional response.

Finally, EPA also disagrees with the Commenter that the Virginia infrastructure SIP should incorporate the planned retirement dates of certain emission units at Chesapeake Energy Center and Yorktown Power Station to ensure attainment and maintenance of the NAAQS. Because EPA does not believe Virginia's infrastructure SIP requires at this time 1-hour SO2 emission limits on these sources or other large stationary sources to prevent exceedances of the SO2 NAAQS for all the reasons discussed above in this response, EPA likewise does not believe incorporating planned retirement dates for SO2 emitters is necessary for our approval of an infrastructure SIP which we have explained meets the structural requirements of section 110(a)(2). If any areas in Virginia are subsequently designated nonattainment with the 2010 SO2 NAAQS, Virginia can address needed emission reductions, including reductions through source retirements, in any subsequent attainment planning process in accordance with part D of title I of the CAA.

In conclusion, EPA disagrees with Sierra Club's statements that EPA must disapprove Virginia's infrastructure SIP submission because it does not establish specific enforceable SO2 emission limits, either on coal-fired EGUs or other large SO2 sources, in order to demonstrate attainment and maintenance with the NAAQS at this time.

Comment 7: Sierra Club asserts that modeling is the appropriate tool for evaluating adequacy of infrastructure SIPs and ensuring attainment and maintenance of the 2010 SO2 NAAQS. The Commenter refers to EPA's historic use of air dispersion modeling for attainment designations as well as “SIP revisions.” The Commenter cites to prior EPA statements that the Agency has used modeling for designations and attainment demonstrations, including statements in the 2010 SO2 NAAQS preamble, EPA's 2012 Draft White Paper for Discussion on Implementing the 2010 SO2 NAAQS, and a 1994 SO2 Guideline Document, as modeling could better address the source-specific impacts of SO2 emissions and historic challenges from monitoring SO2 emissions.12

12 The Commenter also cites to a 1983 EPA Memorandum on section 107 designations policy regarding use of modeling for designations and to the 2012 Mont. Sulphur & Chem. Co. case which upheld EPA's finding that the previously approved SIP for an area in Montana was substantially inadequate to attain the NAAQS due to modeled violations of the NAAQS.

Sierra Club also cited to several cases upholding EPA's use of modeling in NAAQS implementation actions, including the Montana Sulphur case, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), Republic Steel Corp. v. Costle, 621 F.2d 797 (6th Cir. 1980), and Catawba County v. EPA, 571 F.3d 20 (D.C. Cir. 2009). The Commenter discusses statements made by EPA staff regarding the use of modeling and monitoring in setting emission limitations or determining ambient concentrations as a result of a source's emissions, discussing performance of AERMOD as a model, if AERMOD is capable of predicting whether the NAAQS is attained, and whether individual sources contribute to SO2 NAAQS violations. Sierra Club cites to EPA's history of employing air dispersion modeling for increment compliance verifications in the permitting process for the Prevention of Significant Deterioration (PSD) program required in part C of title I of the CAA. The Commenter claims the Chesapeake Energy Center and Yorktown Power Station are examples of sources located in elevated terrain where the AERMOD model functions appropriately in evaluating ambient impacts.

Sierra Club asserts EPA's use of air dispersion modeling was upheld in GenOn REMA, LLC v. EPA, 722 F.3d 513 (3rd Cir. 2013) where an EGU challenged EPA's use of CAA section 126 to impose SO2 emission limits on a source due to cross-state impacts. The Commenter claims the Third Circuit in GenOn REMA upheld EPA's actions after examining the record which included EPA's air dispersion modeling of the one source as well as other data.

The Commenter cites to Vehicle Mfrs. Ass'n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29,43 (1983) and NRDC v. EPA, 571 F.3d 1245, 1254 (D.C. Cir. 2009) for the general proposition that it would be arbitrary and capricious for an agency to ignore an aspect of an issue placed before it and that an agency must consider information presented during notice-and-comment rulemaking.

Finally, Sierra Club claims that Virginia's proposed SO2 infrastructure SIP lacks emission limitations informed by air dispersion modeling and therefore fails to ensure Virginia will achieve and maintain the 2010 SO2 NAAQS. Sierra Club claims EPA must require adequate, 1-hour SO2 emission limits in the infrastructure SIP that show no exceedances of NAAQS when modeled.

Response 7: EPA agrees with Sierra Club that air dispersion modeling, such as AERMOD, can be an important tool in the CAA section 107 designations process for SO2 and in the sections 172 and 191-192 attainment SIP process, including supporting required attainment demonstrations. EPA agrees that prior EPA statements, EPA guidance, and case law support the use of air dispersion modeling in the SO2 designations process and attainment demonstration process, as well as in analyses of whether existing approved SIPs remain adequate to show attainment and maintenance of the SO2 NAAQS. However, EPA disagrees with the Commenter that EPA must disapprove the Virginia SO2 infrastructure SIP for its alleged failure to include source-specific SO2 emission limits that show no exceedances of the NAAQS when modeled.

As discussed above and in the Infrastructure SIP Guidance, EPA believes the conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS and that the infrastructure SIP submission process provides an opportunity to review the basic structural requirements of the air agency's air quality management program in light of the new or revised NAAQS. See Infrastructure SIP Guidance at p. 2. EPA believes the attainment planning process detailed in part D of the CAA, including sections 172 and 191-192 attainment SIPs, is the appropriate place for the state to evaluate measures needed to bring nonattainment areas into attainment with a NAAQS and to impose additional emission limitations such as SO2 emission limits on specific sources.

EPA had initially recommended that states submit substantive attainment demonstration SIPs based on air quality modeling in the final 2010 SO2 NAAQS preamble (75 FR 35520) and in subsequent draft guidance issued in September 2011 for the section 110(a) SIPs due in June 2013 in order to show how areas expected to be designated as unclassifiable would attain and maintain the NAAQS. These initial statements in the preamble and 2011 draft guidance were based on EPA's expectation at the time, that by June 2012, most areas would initially be designated as unclassifiable due to limitations in the scope of the ambient monitoring network and the short time available before which states could conduct modeling to support designations recommendations in 2011. However, after conducting extensive stakeholder outreach and receiving comments from the states regarding these initial statements and the timeline for implementing the NAAQS, EPA subsequently stated in the April 12, 2012 letters and in the 2012 Draft White Paper that EPA was clarifying its implementation position and was no longer recommending such attainment demonstrations supported by air dispersion modeling for unclassifiable areas (which had not yet been designated) for the June 2013 infrastructure SIPs. EPA then reaffirmed this position in the February 6, 2013 memorandum, “Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard.” 13 As previously mentioned, EPA had stated in the preamble to the NAAQS and in the prior 2011 draft guidance that EPA intended to develop and seek public comment on guidance for modeling and development of SIPs for sections 110, 172 and 191-192 of the CAA. After receiving such further comment, EPA has now issued guidance for the nonattainment area SIPs due pursuant to sections 172 and 191-192 and proposed a process for further characterization of areas with larger SO2 sources, which could include use of air dispersion modeling. See April 23, 2014 Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions and 79 FR 27446 (proposing process and timetables for gathering additional information on impacts from larger SO2 sources informed through ambient monitoring and/or air quality modeling). While the EPA guidance for attainment SIPs and the proposed process for further characterizing SO2 emissions from larger sources both discuss the use air dispersion modeling, EPA's 2013 Infrastructure SIP Guidance did not suggest that states use air dispersion modeling to inform emission limitations for section 110(a)(2)(A) to ensure no exceedances of the NAAQS when sources are modeled. Therefore, as discussed previously, EPA believes the Virginia SO2 infrastructure SIP submittal contains the structural requirements to address elements in section 110(a)(2) as discussed in detail in the TSD accompanying the proposed approval. EPA believes infrastructure SIPs are general planning SIPs to ensure that a state has adequate resources and authority to implement a NAAQS. Infrastructure SIP submissions are not intended to act or fulfill the obligations of a detailed attainment and/or maintenance plan for each individual area of the state that is not attaining the NAAQS. While infrastructure SIPs must address modeling authorities in general for section 110(a)(2)(K), EPA believes 110(a)(2)(K) requires infrastructure SIPs to provide the state's authority for air quality modeling and for submission of modeling data to EPA, not specific air dispersion modeling for large stationary sources of pollutants. In the TSD for this rulemaking action, EPA provided a detailed explanation of Virginia's ability and authority to conduct air quality modeling when required and its authority to submit modeling data to the EPA.

13 The February 6, 2013 “Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard,” one of the April 12, 2012 state letters, and the May 2012 Draft White Paper are available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.

EPA finds Sierra Club's discussion of case law, guidance, and EPA staff statements regarding advantages of AERMOD as an air dispersion model to be irrelevant to the analysis of Virginia's infrastructure SIP as this is not an attainment SIP required to demonstrate attainment of the NAAQS pursuant to sections 172 or 192. In addition, Sierra Club's comments relating to EPA's use of AERMOD or modeling in general in designations pursuant to section 107, including its citation to Catawba County, are likewise irrelevant as EPA's present approval of Virginia's infrastructure SIP is unrelated to the section 107 designations process. Nor is EPA's action on this infrastructure SIP related to any new source review (NSR) or PSD permit program issue. As outlined in the August 23, 2010 clarification memo, “Applicability of Appendix W Modeling Guidance for the 1-hour SO2 National Ambient Air Quality Standard” (U.S. EPA, 2010a), AERMOD is the preferred model for single source modeling to address the 1-hour SO2 NAAQS as part of the NSR/PSD permit programs. Therefore, as attainment SIPs, designations, and NSR/PSD actions are outside the scope of a required infrastructure SIP for the 2010 SO2 NAAQS for section 110(a), EPA provides no further response to the Commenter's discussion of air dispersion modeling for these applications. If Sierra Club resubmits its air dispersion modeling for the Virginia EGUs, or updated modeling information in the appropriate context, EPA will address the resubmitted modeling or updated modeling in the appropriate future context when an analysis of whether Virginia's emissions limits are adequate to show attainment and maintenance of the NAAQS is warranted.

The Commenter correctly noted that the Third Circuit upheld EPA's Section 126 Order imposing SO2 emissions limitations on an EGU pursuant to CAA section 126. GenOn REMA, LLC v. EPA, 722 F.3d 513. Pursuant to section 126, any state or political subdivision may petition EPA for a finding that any major source or group of stationary sources emits, or would emit, any air pollutant in violation of the prohibition of section 110(a)(2)(D)(i)(I) which relates to significant contributions to nonattainment or maintenance in another state. The Third Circuit upheld EPA's authority under section 126 and found EPA's actions neither arbitrary nor capricious after reviewing EPA's supporting docket which included air dispersion modeling as well as ambient air monitoring data showing violations of the NAAQS. The Commenter appears to have cited to this matter to demonstrate EPA's use of modeling for certain aspects of the CAA. EPA agrees with the Commenter regarding the appropriate role air dispersion modeling has for SO2 NAAQS designations, attainment SIPs, and demonstrating significant contributions to interstate transport. However, EPA's approval of Virginia's infrastructure SIP is based on our determination that Virginia has the required structural requirements pursuant to section 110(a)(2) in accordance with our explanation of the intent for infrastructure SIPs as discussed in the 2013 Infrastructure SIP Guidance. Therefore, while air dispersion modeling may be appropriate for consideration in certain circumstances, EPA does not find air dispersion modeling demonstrating no exceedances of the NAAQS to be a required element before approval of infrastructure SIPs for section 110(a) or specifically for 110(a)(2)(A). Thus, EPA disagrees with the Commenter that EPA must require additional emission limitations in the Virginia SO2 infrastructure SIP informed by air dispersion modeling and demonstrating attainment and maintenance of the 2010 NAAQS.

In its comments, Sierra Club relies on Motor Vehicle Mfrs. Ass'n and NRDC v. EPA to support its comments that EPA must consider the Sierra Club's modeling data on the Chesapeake Energy Center and Yorktown Power Station based on administrative law principles regarding consideration of comments provided during a rulemaking process. EPA asserts that it has considered the modeling submitted by the Commenter as well as all the submitted comments of Sierra Club. As discussed in detail in the Responses above, however, EPA does not believe the infrastructure SIPs required by section 110(a) are the appropriate place to require emission limits demonstrating future attainment with a NAAQS. Part D of title I of the CAA contains numerous requirements for the NAAQS attainment planning process, including requirements for attainment demonstrations in section 172 supported by appropriate modeling. As also discussed previously, section 107 supports EPA's use of modeling in the designations process. In Catawba, the D.C. Circuit upheld EPA's consideration of data or factors for designations other than ambient monitoring. EPA does not believe infrastructure SIPs must contain emission limitations informed by air dispersion modeling in order to meet the requirements of section 110(a)(2)(A). Thus, EPA has evaluated the persuasiveness of the Commenter's submitted modeling in finding that it is not relevant to the approvability of Virginia's proposed infrastructure SIP for the 2010 SO2 NAAQS.

While EPA does not believe that infrastructure SIP submissions are required to contain emission limits, as suggested by the Commenter, EPA does recognize that in the past, states have used infrastructure SIP submittals as a `vehicle' for incorporating regulatory revisions or source-specific emission limits into the state's plan. See 78 FR 73442 (December 6, 2013) (approving regulations Maryland submitted for incorporation into the SIP along with the 2008 Ozone infrastructure SIP to address ethics requirements for State Boards in sections 128 and 110(a)(2)(E)(ii)). While these SIP revisions are intended to help the state meet the requirements of section 110(a)(2), these “ride-along” SIP revisions are not intended to signify that all infrastructure SIP submittals should have similar regulatory revisions or source-specific emission limits. Rather, the regulatory provisions and source-specific emission limits the state relies on when showing compliance with section 110(a)(2) have likely already been incorporated into the state's SIP prior to each new infrastructure SIP submission; in some cases this was done for entirely separate CAA requirements, such as attainment plans required under section 172, or for previous NAAQS.

Comment 8: Sierra Club asserts that EPA may not approve the Virginia proposed SO2 infrastructure SIP because it fails to include enforceable emission limitations with a 1-hour averaging time that applies at all times. The Commenter cites to CAA section 302(k) which requires emission limits to apply on a continuous basis. The Commenter claims EPA has stated that 1-hour averaging times are necessary for the 2010 SO2 NAAQS citing to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding the need for 1-hour SO2 emission limits in a PSD permit, an EPA Environmental Hearing Board (EHB) decision rejecting use of a 3-hour averaging time for a SO2 limit in a PSD permit, and EPA's disapproval of a Missouri SIP which relied on annual averaging for SO2 emission rates.14

14 Sierra Club cited to In re: Mississippi Lime Co., PSDAPLPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy SO2 SIP).

Sierra Club also contends that infrastructure SIPs approved by EPA must include monitoring of SO2 emission limits on a continuous basis using a continuous emission monitor system or systems (CEMS) and cites to section 110(a)(2)(F) which requires a SIP to establish a system to monitor emissions from stationary sources and to require submission of periodic emission reports. Sierra Club contends infrastructure SIPs must require such SO2 CEMS to monitor SO2 sources regardless of whether sources have control technology installed to ensure limits are protective of the NAAQS. Sierra Club contends any monitoring performed for the New Source Performance Standards (NSPS) in 40 CFR part 60 is inadequate for the NAAQS because NSPS monitoring does not call for monitoring during every hour of source operation which Sierra Club asserts is needed to protect the 1-hour SO2 NAAQS. Thus, Sierra Club contends EPA must require enforceable emission limits, applicable at all times, with 1-hour averaging periods, monitored continuously by large sources of SO2 emissions with CEMS, and therefore must disapprove Virginia's infrastructure SIP which Sierra Club claims fails to require emission limits with adequate averaging times.

Response 8: EPA disagrees that EPA must disapprove the proposed Virginia infrastructure SIP because the SIP does not contain enforceable SO2 emission limitations with 1-hour averaging periods that apply at all times, along with requiring CEMS, as these issues are not appropriate for resolution at this stage in advance of the state's submission of an attainment demonstration for areas which may be designated nonattainment pursuant to section 107 of the CAA.15 As explained in detail in previous responses, the purpose of the infrastructure SIP is to ensure that a state has the structural capability to attain and maintain the NAAQS and thus, additional SO2 emission limitations to ensure attainment and maintenance of the NAAQS are not required for such infrastructure SIPs.16 Likewise, EPA need not address, for the purpose of approving Virginia's infrastructure SIP, whether CEMS or some other appropriate monitoring of SO2 emissions is necessary to demonstrate compliance with emission limits in order to show attainment of the 2010 SO2 NAAQS as EPA believes such SO2 emission limits and an attainment demonstration are not a prerequisite to EPA's approval of Virginia's infrastructure SIP.17 Therefore, because EPA finds Virginia's SO2 infrastructure SIP approvable without the additional SO2 emission limitations showing attainment of the NAAQS, EPA finds the issues of appropriate averaging periods and monitoring requirements for such future limitations not relevant at this time. Sierra Club has cited to prior EPA discussion on emission limitations required in PSD permits (from an EAB decision and EPA's letter to Kansas' permitting authority) pursuant to part C of the CAA, which is neither relevant nor applicable to section 110 infrastructure SIPs. In addition, as previously discussed, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to a control strategy SIP required pursuant to part D attainment planning and is likewise not relevant to the analysis of infrastructure SIP requirements.

15 As EPA has stated, there are not presently any designated nonattainment areas pursuant to CAA section 107 for the 2010 SO2 NAAQS in the Commonwealth. Thus, the Commonwealth, at this time, has no obligation to submit any attainment plans for the 2010 SO2 NAAQS for sections 172, 191 and 192. EPA believes the appropriate time for examining necessity of 1-hour SO2 emission limits on specific sources is within the attainment planning process.

16 For a discussion on emission averaging times for emissions limitations for SO2 attainment SIPs, see the April 23, 2014 Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions. EPA explained that it is possible, in specific cases, for states to develop control strategies that account for variability in 1-hour emissions rates through emission limits with averaging times that are longer than 1-hour, using averaging times as long as 30-days, but still provide for attainment of the 2010 SO2 NAAQS as long as the limits are of at least comparable stringency to a 1-hour limit at the critical emission value. EPA has not yet evaluated any specific submission of such a limit, and so is not at this time prepared to take final action to implement this concept. If and when a state submits an attainment demonstration that relies upon a limit with such a longer averaging time, EPA will evaluate it then.

17 EPA believes the appropriate time for application of monitoring requirements to demonstrate continuous compliance by specific sources is when such 1-hour emission limits are set for specific sources whether in permits issued by Virginia pursuant to the SIP or in attainment SIPs submitted in the part D planning process.

EPA has explained in the TSD supporting this rulemaking action how the Virginia SIP meets requirements in section 110(a)(2)(F) related to monitoring. 9 VAC 5-40-100 requires sources in Virginia to install, maintain, and replace equipment such as CEMS to continuously monitor SO2 emissions where necessary and required. Further, 9 VAC 5-40 requires sources in Virginia to report information, such as periodic reports on the nature and amounts of emissions and emissions-related data, from owners or operators of stationary sources of SO2 emissions through permits and compliance orders. Pursuant to 40 CFR part 51, subpart A, “Air Emissions Reporting Requirements,” Virginia provides source-specific emissions data to EPA. Thus, EPA finds Virginia has the authority and responsibility to monitor air quality for the relevant NAAQS pollutants at appropriate locations and to submit data to EPA in a timely manner in accordance with 110(a)(2)(F) and the Infrastructure SIP Guidance.18 See Infrastructure SIP Guidance at p. 45-46.

18 While monitoring pursuant to NSPS requirements in 40 CFR part 60 may not be sufficient for 1-hour SO2 emission limits, EPA does not believe Sierra Club's comment regarding NSPS monitoring provisions is relevant at this time because EPA finds 1-hour SO2 emission limits and associated monitoring and averaging periods are not required for our approval of Virginia's SO2 infrastructure SIP.

Comment 9: Sierra Club states that enforceable emission limits in SIPs or permits are necessary to avoid nonattainment designations in areas where modeling or monitoring shows SO2 levels exceed the 1-hour SO2 NAAQS and cites to a February 6, 2013 EPA document, Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard, which Sierra Club contends discusses how states could avoid future nonattainment designations. The Commenter asserts EPA should add enforceable emission limits to the Virginia infrastructure SIP to prevent future nonattainment designations and to protect public health. The Commenter claims the modeling it conducted for Chesapeake Energy Center and Yorktown Power Station indicates fourteen counties/independent cities in Virginia are at risk for being designated nonattainment with the 2010 SO2 NAAQS without such enforceable SO2 limits. The Commenter states EPA must ensure large sources cannot cause exceedances of the 2010 SO2 NAAQS to comply with section 110(a)(2)(A) and to avoid future nonattainment designations. The Commenter asserts nonattainment designations create rigorous CAA requirements which could be avoided if states adopt and EPA approves such SO2 emission limitations. In addition, the Commenter asserts adding SO2 emission limitations on certain sources now would bring regulatory certainty for coal-fired EGUs and ultimately save such entities money as the sources could plan now for compliance with emission limits as well as with other CAA requirements such as the Mercury Air Toxic Standards, transport rules, and regional haze requirements. In summary, the Commenter asserts EPA must disapprove the Virginia infrastructure SIP and establish enforceable emission limits to ensure large sources of SO2 do not cause exceedances of the 2010 SO2 NAAQS, which would avoid nonattainment designations and bring “regulatory certainty” to sources in Virginia.

Response 9: EPA appreciates the Commenter's concern with avoiding nonattainment designations in Virginia for the 2010 SO2 NAAQS and with providing coal-fired EGUs regulatory certainty to help them make informed decisions on how to comply with CAA requirements. However, Congress designed the CAA such that states have the primary responsibility for achieving and maintaining the NAAQS within their geographic area by submitting SIPs which will specify the details of how the state will meet the NAAQS. Pursuant to section 107(d), the states make initial recommendations of designations for areas within each state and EPA then promulgates the designations after considering the state's submission and other information. EPA promulgated initial designations for the 2010 SO2 NAAQS in August 2013. EPA proposed on May 14, 2014 an additional process for gathering further SO2 emissions source information for implementing the 2010 SO2 NAAQS. 79 FR 27446. EPA has also proposed to enter a settlement to resolve deadline suits regarding the remaining designations that would, if entered by the court, impose deadlines for three more rounds of designations. Under these proposed schemes, Virginia would have the initial opportunity for proposing additional areas for designations for the 2010 SO2 NAAQS. While EPA appreciates Sierra Club's comments, further designations will occur pursuant to the section 107(d) process, and in accordance with any applicable future court orders addressing the designations deadline suits and, if promulgated, future EPA rules addressing additional monitoring or modeling to be conducted by states. Virginia may, on its own accord, decide to impose additional SO2 emission limitations to avoid future designations to nonattainment. If Virginia areas are designated nonattainment, Virginia will have the initial opportunity to develop additional emissions limitations needed to attain the NAAQS in the future, and EPA would be charged with reviewing whether those are adequate. If EPA were to disapprove the limits, then it would fall to EPA to adopt limits in a FIP. However, such considerations are not required of Virginia to consider at the infrastructure SIP stage of NAAQS implementation, as this action relates to our approval of Virginia's SO2 infrastructure SIP submittal pursuant to section 110(a) of the CAA, and Sierra Club's comments regarding designations under section 107 are neither relevant nor germane to EPA's approval of Virginia's SO2 infrastructure SIP. Likewise, while EPA appreciates Sierra Club's concern for providing “regulatory certainty” for coal-fired EGUs in Virginia, such concerns for regulatory certainty are not requirements for infrastructure SIPs as outlined by Congress in section 110(a)(2) nor as discussed in EPA's Infrastructure SIP Guidance. See Commonwealth of Virginia, et al., v. EPA, 108 F.3d 1397, 1410 (D.C. Cir. 1997) (citing Natural Resources Defense Council, Inc. v. Browner, 57 F.3d 1122, 1123 (D.C. Cir. 1995)) (discussing that states have primary responsibility for determining an emission reductions program for its areas subject to EPA approval dependent upon whether the SIP as a whole meets applicable requirements of the CAA). Thus, EPA does not believe it is appropriate and necessary to condition approval of Virginia's infrastructure SIP upon inclusion of a particular emission reduction program as long as the SIP otherwise meets the requirements of the CAA. Sierra Club's comments regarding emission limits providing “regulatory certainty” for EGUs are irrelevant to EPA's approval of Virginia's infrastructure SIP for the 2010 SO2 NAAQS, and EPA disagrees that the infrastructure SIP must be disapproved for not including enforceable emissions limitations to prevent future nonattainment designations or aid in providing “regulatory certainty.”

Comment 10: The Commenter claims EPA must disapprove the proposed infrastructure SIP for the 2010 SO2 NAAQS for its failure to include measures to ensure compliance with section 110(a)(2)(A) for the 2010 SO2 NAAQS. The Commenter claims the provisions listed by Virginia for section 110(a)(2)(A) in its 2010 SO2 NAAQS infrastructure SIP are not appropriate for the NAAQS as evidenced by the Commenter's modeling for plants which are not in areas presently designated nonattainment for the 2010 SO2 NAAQS. Sierra Club claims Virginia wrongly relies on CAA part D attainment planning requirements to address NAAQS exceedances. The Commenter asserts that the infrastructure SIP required by section 110(a) must provide assurances that the NAAQS will be attained and maintained for areas not designated nonattainment. The Commenter claims the proposed infrastructure SIP relies on emission limits added to the SIP prior to the 2010 SO2 NAAQS and does not include hourly SO2 emission limits. Sierra Club therefore contends the proposed infrastructure SIP cannot ensure Virginia will attain and maintain the 2010 SO2 NAAQS and EPA must disapprove the SIP and require 1-hour emission limits to address exceedances shown by Sierra Club's submitted modeling.

Response 10: EPA disagrees with Sierra Club that it must disapprove the Virginia proposed infrastructure SIP for the 2010 SO2 NAAQS for the reasons already discussed in response to other comments from Sierra Club. Generally, it is not appropriate to bypass the attainment planning process by imposing separate requirements, such as additional SO2 emission limits on sources, outside the attainment planning process. Such actions would be disruptive and premature absent exceptional circumstances.19 See Homer City/Mansfield Order at 10-19 (finding Pennsylvania SIP did not require imposition of 1-hour SO2 emission limits on sources independent of the part D attainment planning process contemplated by the CAA). As discussed in the Homer City/Mansfield Order, imposing different emission limitation requirements outside of the attainment planning process contemplated by Congress in part D of the CAA to address requirements for attaining the NAAQS might ultimately prove inconsistent with any attainment SIP Virginia will submit (when required) for designated nonattainment areas, even where one source is likely responsible for nonattainment. Id. As discussed in great detail above, the conceptual purpose of an infrastructure SIP submission is to assure that an air agency's SIP contains the necessary structural requirements for the new or revised NAAQS. Infrastructure SIP Guidance at p. 2.

19 Thus, EPA agrees with Virginia's response to Sierra Club when the Commenter raised these same comments to the Commonwealth during the drafting of Virginia's infrastructure SIP. Sierra Club's modeling of the coal-fired power plants SO2 emissions is not relevant at this time.

As mentioned previously, while EPA had in 2010 initially suggested that states submit substantive attainment demonstration SIPs for unclassifiable areas based on air dispersion modeling in section 110(a) infrastructure SIPs, EPA subsequently gathered additional information and clarified its position. The April 12, 2012 letters to states, 2012 Draft White Paper, and February 6, 2013 memorandum on next steps, as previously discussed, clearly recommend states focus section 110(a) infrastructure SIPs due in June 2013 on “traditional infrastructure elements” in section 110(a)(1) and (2) rather than on modeling demonstrations for future attainment for unclassifiable areas.20

20 The February 6, 2013 memorandum is more completely the February 6, 2013 memorandum, “Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard” available at http://www.epa.gov/airquality/sulfurdioxide/implement.html.

Therefore, EPA disagrees with the Commenter that the infrastructure SIP must be disapproved for failure to include measures to ensure compliance with the 2010 SO2 NAAQS. As Congress provided for state primacy in implementing the NAAQS, Virginia should appropriately evaluate and impose necessary SO2 emission limits on sources, where or when needed in Virginia, for any areas in Virginia which may later be designated nonattainment with the 2010 SO2 NAAQS under section 107.21

21 EPA also notes that in EPA's final rule regarding the 2010 SO2 NAAQS, EPA noted that it anticipates several forthcoming national and regional rules, such as the Industrial Boilers standard under CAA section 112, are likely to require significant reductions in SO2 emissions over the next several years. See 75 FR 35520. EPA continues to believe similar national and regional rules will lead to SO2 reductions that will help achieve compliance with the 2010 SO2 NAAQS. If it appears that states with areas designated nonattainment in 2013 will nevertheless fail to attain the NAAQS as expeditiously as practicable (but no later than August 2018) during EPA's review of attainment SIPs required by section 172, the CAA provides authorities and tools for EPA to solve such failure, including, as appropriate, disapproving submitted SIPs and promulgating FIPs. Likewise, for any areas designated nonattainment after 2013, EPA has the same authorities and tools available to address any areas which do not timely attain the NAAQS.

Comment 11: The Commenter alleges that the proposed SO2 infrastructure SIP does not address sources significantly contributing to nonattainment or interfering with maintenance of the NAAQS in other states as required by section 110(a)(2)(D)(i)(I) of the CAA, and states EPA must therefore disapprove the infrastructure SIP and impose a FIP. Sierra Club claims its modeling shows that at least one plant, Chesapeake Energy Center, is contributing to exceedances in other states. Sierra Club states that the CAA requires infrastructure SIPs to address cross-state air pollution within three years of the NAAQS promulgation. The Commenter argues that Virginia has not done so and that the EPA must disapprove the proposed infrastructure SIP and issue a FIP to correct these shortcomings. The Commenter references the recent Supreme Court decision, EPA v. EME Homer City Generation,, L.P. et al, 134 S. Ct. 1584 (2014), which supports the states' mandatory duty to address cross-state pollution under section 110(a)(2)(D)(i)(I) and affirmed EPA's ability to impose a FIP upon states' failure to address cross-state air pollution.

Response 11: EPA disagrees with Sierra Club's statement that EPA must disapprove the submitted 2010 SO2 infrastructure SIP due to Virginia's failure to address section 110(a)(2)(D)(i)(I). In EPA's NPR proposing to approve Virginia's infrastructure SIP for the 2010 SO2 NAAQS, EPA clearly stated that it was not taking any final action with respect to the good neighbor provision in section 110(a)(2)(D)(i)(I) which addresses emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS in another state. Virginia did not make a submission to address the requirements of section 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS, and thus there is no such submission upon which EPA proposed to take disapproval action under section 110(k) of the CAA. EPA cannot act under section 110(k) to disapprove a SIP submission that has not been submitted to EPA. EPA also disagrees with the Commenter that EPA cannot approve other elements of an infrastructure SIP submission without the good neighbor provision. EPA additionally believes there is no basis for the contention that EPA has triggered its obligation to issue a FIP addressing the good neighbor obligation under section 110(c), as EPA has neither found that Virginia failed to timely submit a required 110(a)(2)(D)(i)(I) SIP submission for the 2010 SO2 NAAQS or found that such a submission was incomplete, nor has EPA disapproved a SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2010 SO2 NAAQS.

EPA acknowledges the Commenter's concern for the interstate transport of air pollutants and agrees in general with the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses cross-state air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the Commenter's argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).

EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve, or conditionally approve, individual elements of Virginia's infrastructure SIP submission for the 2010 SO2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if Virginia had made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2010 SO2 NAAQS, which to date it has not, EPA would still have discretion under section 110(k) of the CAA to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate.

The Commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in EME Homer City alters EPA's interpretation that EPA may act on individual severable measures, including the requirements of section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA's action finding significant contribution or interference with maintenance). In sum, the concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve the portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO2 NAAQS.

Furthermore, as discussed above, EPA has no obligation to issue a FIP pursuant to 110(c)(1) to address Virginia's obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Virginia failed to make the required submission addressing the element or the Commonwealth has made such a submission but it is incomplete, or EPA disapproves a SIP submittal addressing that element. Until either occurs, EPA does not have the authority to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the Commenter's contention that it must issue a FIP for Virginia to address 110(a)(2)(D)(i)(I) for the 2010 SO2 NAAQS at this time.

Regarding Sierra Club's assertion that one stationary source is causing “exceedances” in other states according to the modeling conducted by Sierra Club, EPA believes such assertion is irrelevant to our action approving Virginia's infrastructure SIP for the 2010 SO2 NAAQS because EPA has not proposed any action on section 110(a)(2)(D)(i)(I) regarding Virginia's obligations to address the transport of SO2 emissions. EPA may consider such information if Sierra Club resubmits when EPA does act upon a Virginia SIP submission to address 110(a)(2)(D)(i)(I) obligations for the 2010 SO2 NAAQS.

Comment 12: Sierra Club contends that the EPA must disapprove the proposed infrastructure SIP because it does not contain adequate provisions to prohibit sources and emissions in Virginia from interfering with another state's visibility as required by section 110(a)(2)(D)(i)(II) of the CAA. The Commenter cites to the Supreme Court's decision in EME Homer City in support of its statement that Virginia's duty to protect visibility is a mandatory duty. The Commenter asserts EPA ignores its deadline by not acting in today's rulemaking on the visibility prong of section 110(a)(2)(D)(i)(II) and asserts EPA cites no legally defensible reason for not acting. Finally, the Commenter argues that the “deadline for state action has passed” and EPA must disapprove the SO2 infrastructure SIP and issue a FIP to address the failings of the infrastructure SIP to protect visibility in other states.

Response 12: EPA disagrees with the Commenter that in today's rulemaking action EPA must disapprove the Virginia SO2 infrastructure SIP for its failure to protect visibility and issue a FIP addressing visibility protection for Virginia. In EPA's NPR proposing to approve Virginia's infrastructure SIP for the 2010 SO2 NAAQS, EPA clearly stated that it was not proposing to take any action at that time with respect to the visibility protection provisions in section 110(a)(2)(D)(i)(II). While Virginia did make a SIP submission to address the requirements of section 110(a)(2)(D)(i)(II) for visibility protection, and cited to its regional haze SIP and CAIR as meeting these requirements, EPA did not propose to take any action in the NPR with respect to Virginia's visibility protection obligations pursuant to section 110(a)(2)(D)(i)(II).22 As indicated in EPA's NPR, EPA anticipates taking later action on the portion of Virginia's June 18, 2014 SIP submission addressing visibility protection.23 EPA disagrees with the Commenter that EPA cannot approve a portion of an infrastructure SIP submittal without taking action on the visibility protection provision. Further, there is no basis for the contention that EPA must issue a FIP under section 110(c) within two years, as EPA has neither disapproved nor found that Virginia failed to submit a required 110(a)(2)(D)(i)(II) SIP submission addressing visibility protection for the 2010 SO2 NAAQS.

22 On June 13, 2012 (77 FR 35287), EPA finalized a limited approval of Virginia's October 4, 2010 regional haze SIP, and subsequent supplements, to address the first implementation period for regional haze. On June 7, 2012, EPA issued a limited disapproval of this SIP because of Virginia's reliance on CAIR to meet certain regional haze requirements, which EPA replaced in August 2011 with CSAPR (76 FR 48208 (August 8, 2011)). 77 FR 33641. EPA had also issued on June 7, 2012 in the same action a FIP that replaced Virginia's reliance on CAIR with reliance on CSAPR for certain regional haze requirements. Id. Later, as discussed previously, the D.C. Circuit in EME Homer City Generation, 696 F.3d 7, vacated CSAPR and kept CAIR in place. Subsequently, on April 30, 2014, the Supreme Court vacated the D.C. Circuit decision and remanded the matter to the D.C. Circuit for further proceedings. EME Homer City, 134 S. Ct. 1584. On October 23, 2014, after we proposed to approve Virginia's infrastructure SIP, the D.C. Circuit lifted the stay on CSAPR. EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. Oct. 23, 2014), Order at 3. As mentioned in response to a prior comment, EPA began implementing CSAPR on January 1, 2015. 79 FR 71663 (December 3, 2014) (interim final rule revising CSAPR compliance deadlines). EPA will take appropriate action on Virginia's obligations under 110(a)(2)(D)(i)(II) for visibility protection in a subsequent rulemaking action.

23 One way in which section 110(a)(2)(D)(i)(II) for visibility protection may be satisfied for any relevant NAAQS is through an air agency's confirmation in its infrastructure SIP submission that it has an approved regional haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. Infrastructure SIP Guidance at p. 33. As previously indicated, Virginia has a regional haze SIP with limited approval and limited disapproval and a FIP which addresses replacement of CSAPR for CAIR for certain regional haze requirements.

As previously discussed regarding the good-neighbor SIP provisions for infrastructure SIPs, EPA disagrees with the Commenter's argument that EPA cannot approve a SIP without certain elements such as the visibility protection element. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such a plan meets the requirements of the CAA. As discussed above, this authority to approve SIP revisions in separable parts was included in the 1990 Amendments to the CAA. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA).

As discussed above, EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve individual elements of Virginia's infrastructure submission for the 2010 SO2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(II) for visibility protection. EPA views discrete infrastructure SIP requirements as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual, severable measures. In short, EPA believes we have discretion under section 110(k) of the CAA to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate. The concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO2 NAAQS.

EPA also has no obligation to issue a FIP to address Virginia's obligations under section 110(a)(2)(D)(i)(II) until EPA first finds Virginia failed to satisfy its visibility protection obligations with a complete SIP submittal addressing that element or disapproves any SIP submittal addressing that element. Until such occurs, EPA may not issue any further FIP for visibility protection pursuant to section 110(c).

Comment 13: The Commenter alleges the infrastructure SIP must not allow for such things as ambient air incremental increases, variances, exceptions, or exclusions for limits on sources of pollutants; otherwise, the Commenter alleges Virginia cannot assure compliance with infrastructure SIP requirements for the SO2 NAAQS. The Commenter asserts the infrastructure SIP should not allow for certain sources to be exempt from permit requirements nor allow affirmative defenses or variances to “requirements” during startup, shutdown or malfunction (SSM) or due to hardship. The Commenter states EPA cannot delay acting on “startup, shutdown, and malfunction” of operations or director's variances because of the mandatory timeline for infrastructure SIPs under the CAA. The Commenter also asserts EPA should issue a finding of non-completeness and set forth a FIP because Virginia has failed to submit certain required components for its SO2 infrastructure SIP. The Commenter maintains the CAA is clear and that EPA's “segmented and piecemeal approach” to approving Virginia's infrastructure SIP is inappropriate because infrastructure SIPs must contain the entirety of a state's comprehensive plan to implement and maintain the NAAQS and because the components of section 110(a)(2) are interrelated. Thus, the Commenter asserts EPA must disapprove the SO2 infrastructure SIP submittal and issue a FIP.

Response 13: EPA disagrees with the Commenter that EPA must disapprove Virginia's infrastructure SIP and issue a FIP, instead of acting in a “piecemeal” approach (as Sierra Club calls it) in approving the majority of Virginia's SO2 infrastructure SIP while acting at a later date on certain specific elements of the SIP, including the portions related to transport and regional haze in 110(a)(2)(D)(i)(I) and (II) and the portion related to State Boards in 110(a)(2)(E)(ii). As explained in the NPR for this rulemaking action and in the responses above, EPA interprets its authority under section 110(k)(3) of the CAA as affording EPA the discretion to approve individual elements of Virginia's infrastructure submission for the 2010 SO2 NAAQS, while taking later separate action on the infrastructure submission for the requirements of section 110(a)(2)(D)(i) for transport and visibility protection or 110(a)(2)(E)(ii) for State Board requirements. As explained previously, EPA views discrete infrastructure SIP requirements like transport, State Boards, and visibility protection as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing EPA to act on individual, severable measures. Section 110(k)(3) expressly authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. As discussed above, this authority to approve SIP revisions in separable parts was included in the 1990 Amendments to the CAA. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA).

In short, EPA believes that EPA has discretion under section 110(k) to act upon the various individual elements of the state's infrastructure SIP submission, separately or together, as appropriate. The Commenter has not provided any case law or EPA interpretation of section 110 to support its contrary interpretation that it is inappropriate or unreasonable for EPA to approve portions of Virginia's June 18, 2014 infrastructure SIP submission for the 2010 SO2 NAAQS.

In addition, EPA also has no obligation to issue a FIP to address Virginia's obligations under section 110(a)(2)(D)(i)(I) or (II) or 110(a)(2)(E)(ii) until EPA first finds Virginia failed to satisfy its obligations with a complete SIP submittal addressing those elements or disapproves any SIP submittal addressing that element. Until such occurs pursuant to section 110(c), EPA may not issue any FIP for transport, visibility protection, or State Board requirements or the infrastructure SIP as a whole.

EPA also disagrees with the Commenter that EPA is required to address all potential deficiencies that may exist in the Virginia SIP in the context of evaluating an infrastructure SIP submission. In particular, EPA is not addressing any existing SIP provisions related to the treatment of emissions during SSM events, including automatic or director's discretion exemptions, overbroad state enforcement discretion provisions, or affirmative defense provisions. As EPA stated in the TSD for this rulemaking action, EPA is not approving or disapproving any existing Virginia regulatory or statutory provisions with regard to excess emissions during SSM of operations at any facility. EPA believes that a number of states may have SIP provisions related to emissions during SSM events which are contrary to the CAA and existing EPA guidance (August 11, 1999 Steven Herman and Robert Perciasepe Guidance Memorandum, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown”), and EPA is addressing such potentially deficient SIP provisions in a separate rulemaking. See 78 FR 12460 (February 22, 2013) (proposed rulemaking on SSM SIP provisions). See also 79 FR 55920 (September 17, 2014) (supplemental proposed rulemaking on affirmative defense provisions). In the TSD, EPA also stated that EPA is not approving or disapproving any existing Virginia regulatory or statutory provisions with regard to director's discretion or variance provisions. EPA believes that a number of states may have such provisions which are contrary to the CAA and existing EPA guidance (see 52 FR 45109, November 1987), and EPA is also addressing such state regulations in the separate rulemaking. See 78 FR 12460. Similarly, EPA is not approving or disapproving any affirmative defense provisions applicable to excess emissions during SSM events in this action. EPA has separately proposed to address such existing affirmative defense provisions in the SIPs of many states, including Virginia. See also 79 FR 55920. In the meantime, EPA encourages any state having deficient SIP provisions related to the treatment of excess emissions during SSM events to take steps to correct them as soon as possible. Upon conclusion of EPA's SSM SIP call rulemaking, any states that EPA determines have impermissible SIP provisions related to SSM events will have time to adjust their SIPs where necessary and as required. As EPA is neither approving nor disapproving any new provisions related to automatic or director's discretion exemptions, overbroad state enforcement discretion provisions, or affirmative defense provisions in this rulemaking, EPA disagrees with Sierra Club's comment that the infrastructure SIP “must not allow for such things” and disagrees with any inference from the comment that EPA must disapprove the Virginia SO2 infrastructure SIP because of any such existing deficient provisions. Moreover, EPA emphasizes that by approving Virginia's SO2 infrastructure SIP submission, EPA is not approving or reapproving any such deficient provisions that exist in the current SIP.

Regarding the Commenter's statement that the infrastructure SIP should not allow Virginia to exempt certain sources from permitting, the Sierra Club fails to identify any exemptions from permitting that preclude EPA from approving the infrastructure SIP. EPA explained in the TSD for this rulemaking that Virginia's permitting program for major and minor stationary sources met requirements in the CAA for section 110(a)(2)(C). Specifically, EPA stated Virginia has a SIP-approved minor new source review (NSR) program located in 9 VAC 5-80-10 (New and Modified Stationary Sources) and 9 VAC 5-80-11 (Stationary Source Permit Exemption Levels) which regulates certain modifications and construction of stationary sources within areas covered by its SIP as necessary to assure the NAAQS are achieved. EPA had previously approved such provisions into the Virginia SIP as they met requirements for a minor NSR program in accordance with the CAA and 40 CFR 51.160. See 65 FR 21315 (April 21, 2000).

EPA's TSD for this rulemaking also explained Virginia's SIP met requirements in section 110(a)(2)(C) for a PSD permit program as required in part C of title I of the CAA. In Virginia, construction and modification of stationary sources are covered under Article 8, Permits for Major Stationary Sources and Major Modifications Locating in Prevention of Significant Deterioration Areas (9 VAC 5-80-1605 et seq.) which is included in the approved Virginia SIP. See 40 CFR 52.2420(c). Article 8 also provides that construction and modification of major stationary sources will not cause or contribute to a violation of any NAAQS (9 VAC 5-80-1635, Ambient Air Increments and 9 VAC 5-80-1645, Ambient Air Ceilings) and requires application of Best Available Control Technology to new or modified sources (9 VAC 5-80-1705, Control Technology Review). EPA has previously approved Virginia's PSD permit program as meeting the requirements in part C, title I of the CAA and 40 CFR 51.166. See 79 FR 10377 (February 25, 2014). The Sierra Club has not identified any specific exemption that is allegedly problematic or any recent amendments to the Virginia rules that has added such an exemption. The Sierra Club has not demonstrated that Virginia's permitting program for major and minor stationary sources does not meet requirements in the CAA for section 110(a)(2)(C).

III. Final Action

EPA is approving the following elements of Virginia's June 18, 2014 SIP revision for the 2010 SO2 NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (PSD requirements), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (consultation, public notification, and PSD), (K), (L), and (M). Virginia's SIP revision provides the basic program elements specified in Section 110(a)(2) necessary to implement, maintain, and enforce the 2010 SO2 NAAQS. This final rulemaking action does not include action on section 110(a)(2)(I) which pertains to the nonattainment planning requirements of part D, title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process. Additionally, EPA will take later, separate action on section 110(a)(2)(D)(i)(I) (interstate transport of emissions), (D)(i)(II) (visibility protection), (J) (visibility protection) and (E)(ii) (Section 128, “State Boards”) for the 2010 SO2 NAAQS as previously discussed.

IV. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, Sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under Section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

V. Statutory and Executive Order Reviews A. General Requirements

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

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

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

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

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

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

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

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

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

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

In addition, this rule approving portions of Virginia's infrastructure SIP for the 2010 SO2 NAAQS 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.

B. Submission to Congress and the Comptroller General

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

C. Petitions for Judicial Review

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, which satisfies certain infrastructure requirements of section 110(a)(2) of the CAA for the 2010 SO2 NAAQS for the Commonwealth of Virginia, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Incorporation by reference, Reporting and recordkeeping requirements, Sulfur dioxide.

Dated: February 5, 2015. William C. Early, Acting Regional Administrator, Region III.

40 CFR part 52 is amended as follows:

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

42 U.S.C. 7401 et seq.

Subpart VV—Virginia 2. Section 52.2420 is amended by: a. In paragraph (e), adding an entry for “Section 110(a)(2) Infrastructure Requirements for the 2010 Sulfur Dioxide NAAQS” at the end of the table.

The amendments read as follows:

§ 52.2420 Identification of plan.

(e) * * *

Name of non-regulatory SIP
  • revision
  • Applicable geographic area State submittal date EPA approval date Additional explanation
    *         *         *         *         *         *         * Section 110(a)(2) Infrastructure Requirements for the 2010 Sulfur Dioxide NAAQS Statewide 6/18/14 3/4/15 [Insert Federal Register citation] This action addresses the following CAA elements, or portions thereof: 110(a)(2)(A), (B), (C), (D)(i)(II) (PSD), (D)(ii), (E)(i), (E)(iii), (F), (G), (H), (J) (consultation, notification, and PSD), (K), (L), and (M).
    [FR Doc. 2015-04377 Filed 3-3-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2014-0700; FRL-9923-77-Region-6] Approval and Promulgation of Implementation Plans; Arkansas; Revisions for the Regulation and Permitting of Fine Particulate Matter AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving portions of three revisions to the Arkansas State Implementation Plan (SIP) submitted by the Arkansas Department of Environmental Quality on July 26, 2010; November 6, 2012; and December 1, 2014. Together, these three submittals update the Arkansas SIP such that the ADEQ has the authority to implement the current National Ambient Air Quality Standards (NAAQS) and regulate and permit emissions of fine particulate matter (particulate matter with diameters less than or equal to 2.5 micrometers (PM2.5)), and its precursors, through the Arkansas Prevention of Significant Deterioration (PSD) program. The EPA has determined that the Arkansas PSD program meets all Clean Air Act (CAA or the Act) requirements for PM2.5 PSD and, as a result, our final action will stop the two Federal Implementation Plan (FIP) clocks that are currently running on the Arkansas PSD program pertaining to PM2.5 PSD implementation. The EPA is also approving a portion of the December 17, 2007, Arkansas SIP submittal for the PM2.5 NAAQS pertaining to interstate transport of air pollution and PSD. The EPA is finalizing these actions under section 110 and part C of the CAA.

    DATES:

    This final rule is effective on April 3, 2015.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2014-0700. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

    FOR FURTHER INFORMATION CONTACT:

    Adina Wiley, Air Permits Section (6PD-R), telephone (214) 665-2115, email address [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

    Table of Contents I. Background II. Final Action III. Incorporation by Reference IV. Statutory and Executive Order Reviews I. Background

    The background for today's action is discussed in detail in our November 10, 2014 proposal (79 FR 66633). In that notice, we proposed to approve portions of three SIP submittals for the State of Arkansas submitted on July 26, 2010; November 6, 2012; and September 10, 2014, that collectively update the Arkansas SIP to provide for regulation and permitting of PM2.5 in the Arkansas PSD program consistent with federal PSD permit requirements.

    The September 10, 2014, submittal was a request for parallel processing of revisions adopted by the ADEQ on August 22, 2014, as revisions to the state regulations. Under the EPA's “parallel processing” procedure, the EPA proposes a rulemaking action on a proposed SIP revision concurrently with the State's public review process. If the State's proposed SIP revision is not significantly or substantively changed, the EPA will finalize the rulemaking on the SIP revision as proposed after responding to any submitted comments. Final rulemaking action by the EPA will occur only after the final SIP revision has been fully adopted by the ADEQ and submitted formally to the EPA for approval as a revision to the Arkansas SIP. See 40 CFR part 51, Appendix V.

    The ADEQ completed their state rulemaking process and submitted the final revisions to the Arkansas SIP on December 1, 2014. The EPA has evaluated the State's final SIP revision for any changes made from the time of proposal. See “Addendum to the TSD” for EPA-R06-OAR-2014-0700, available in the rulemaking docket. Our evaluation indicates that the ADEQ made no changes to the proposed SIP revision. As such, the EPA is proceeding with our final approval of the revisions to the Arkansas SIP. This action is being taken under section 110 of the Act. We did not receive any comments regarding our proposal.

    II. Final Action

    We are approving portions of three SIP submittals for the State of Arkansas submitted on July 26, 2010; November 6, 2012; and December 1, 2014, because we have determined that these SIP packages were adopted and submitted in accordance with the CAA and EPA regulations regarding implementation of the PM2.5 NAAQS. The EPA finds that the Arkansas PSD SIP meets all the CAA PSD requirements for implementing the 1997 and 2006 PM2.5 NAAQS, including the PM2.5 PSD requirements contained in the federal regulations as of December 9, 2013, including regulation of NOX and SO2 as PM2.5 precursors, regulation of condensables, and PM2.5 increments. As a result of today's final action, the EPA will stop the two FIP clocks that are currently running on the Arkansas PSD program pertaining to PM2.5 PSD implementation. The EPA is approving the following revisions into the Arkansas SIP:

    • Revisions to Regulation 19, Chapter 1 submitted on July 26, 2010, and November 6, 2012;

    • Revisions to Regulation 19, Chapter 2 submitted on July 26, 2010, November 6, 2012, and December 1, 2014, with the exception of the GHG Biomass Deferral language submitted to the definition of CO2e on November 6, 2012;

    • Revision to Regulation 19, Chapter 3 submitted on July 26, 2010, and December 1, 2014;

    • Revisions to Regulation 19, Chapter 5 submitted on July 26, 2010, and December 1, 2014;

    • Revisions to Regulation 19, Chapter 6 submitted on July 26, 2010;

    • Revisions to Regulation 19, Chapter 7 submitted on July 26, 2010;

    • Revisions to Regulation 19, Chapter 9 submitted on December 1, 2014;

    • Revisions to Regulation 19, Chapter 10 submitted on July 26, 2010;

    • Revisions to Regulation 19, Chapter 11 submitted on July 26, 2010;

    • Revisions to Regulation 19, Chapter 13 submitted on July 26, 2010;

    • New Regulation 19, Appendix B submitted on December 1, 2014; and

    • A portion of the December 17, 2007, SIP submittal addressing interstate transport of air pollution and PSD for the 1997 PM2.5 NAAQS (CAA 110(a)(2)(D)(i)(II)).

    This action is being taken under section 110 of the Act.

    III. Incorporation by Reference

    In this rule, we are finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.4, the EPA is finalizing the incorporation by reference of the revisions to the Arkansas Prevention of Significant Deterioration regulations as described in the Final Action section above. We have made, and will continue to make, these documents generally available electronically through www.regulation.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposed of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

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

    Dated: February 19, 2015. Ron Curry, Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart E—Arkansas 2. Amend § 52.170 as follows: a. In paragraph (c) the table titled “EPA-APPROVED REGULATIONS IN THE ARKANSAS SIP” is amended by revising the entries for: i. Chapter 1, Regulation No. 19, Reg. 19.101, Reg. 19.103 and Reg. 19.104; ii. Chapter 2; iii. Chapter 3, Reg. 19.304; iv. Chapter 5, Reg.19.502, 19.503, 19.504, and 19.505; v. Chapter 6, Reg. 19.601 and 19.602; vi. Chapter 7, Reg. 19.702 and 19.703; vii. Chapter 9, Reg. 19.903 and Reg. 19.904; viii. Chapter 10, Reg. 19.1002, Reg. 19.1003, Reg 19.1004 and Reg. 19.1005; ix. Chapter 11; x. Chapter 13, Reg. 19.1301 and 19.1303. b. In paragraph (c) the table titled “EPA-APPROVED REGULATIONS IN THE ARKANSAS SIP” is amended by adding a new entry in sequential order for Regulation No. 19, Appendix B. c. In paragraph (e) the third table titled “EPA-APPROVED NON-REGULATORY PROVISIONS AND QUASI-REGULATORY MEASURES IN THE ARKANSAS SIP” is amended by revising the entry for “Infrastructure for the 1997 and 2006 PM2.5 NAAQS”.

    The amendments read as follows:

    § 52.170 Identification of plan.

    (c) * * *

    EPA-Approved Regulations in the Arkansas SIP State citation Title/subject State
  • submittal/
  • effective
  • date
  • EPA approval date Explanation
    Regulation No. 19: Regulations of the Arkansas Plan of Implementation for Air Pollution Control Chapter 1: Title, Intent and Purpose Reg 19.101 Title 1/25/2009 3/4/2015 [Insert Federal Register citation] *         *         *         *         *         *         * Reg 19.103 Intent and Construction 1/25/2009 3/4/2015 [Insert Federal Register citation] Reg 19.104 Severability 11/18/2012 3/4/2015 [Insert Federal Register citation] Chapter 2: Definitions Chapter 2 Definitions 9/13/2014 3/4/2015 [Insert Federal Register citation] The SIP-approved definition of “CO2 equivalent emissions” does not contain the GHG Biomass Deferral Provisions. Chapter 3: Protection of the National Ambient Air Quality Standards  ' *         *         *         *         *         *         * Reg 19.304 Delegated Federal Programs 1/25/2009 3/4/2015 [Insert Federal Register citation] *         *         *         *         *         *         * Chapter 5: General Limitations Applicable to Equipment (Need to change title in CFR) *         *         *         *         *         *         * Reg 19.502 General Regulations 9/13/2014 3/4/2015 [Insert Federal Register citation] Reg 19.503 Visible Emission Regulations 1/25/2009 3/4/2015 [Insert Federal Register citation] Reg 19.504 Stack Height/Dispersion Regulations 1/25/2009 3/4/2015 [Insert Federal Register citation] Reg 19.505 Revised Emissions Limitation 1/25/2009 3/4/2015 [Insert Federal Register citation] Chapter 6: Upset and Emergency Conditions Reg 19.601 Upset Conditions 1/25/2009 3/4/2015 [Insert Federal Register citation] Reg 19.602 Emergency Conditions 1/25/2009 3/4/2015 [Insert Federal Register citation] Chapter 7: Sampling, Monitoring, and Reporting Requirements *         *         *         *         *         *         * Reg 19.702 Air Emissions Sampling 1/25/2009 3/4/2015 [Insert Federal Register citation] Reg 19.703 Continuous Emissions Monitoring 1/25/2009 3/4/2015 [Insert Federal Register citation] *         *         *         *         *         *         * Chapter 9: Prevention of Significant Deterioration *         *         *         *         *         *         * Reg 19.903 Definitions 9/13/2014 3/4/2015 [Insert Federal Register citation] Reg 19.904 Adoption of Regulations 9/13/2014 3/4/2015 [Insert Federal Register citation] The SIP-approved PSD program does not include the new provisions pertaining to GHG PSD PAL permitting at Regulation 19.904(A)(1), effective on July 27, 2013, and submitted to EPA on January 7, 2014.
  • The SIP-approved PSD program does not include the revisions to Regulation 19.904(G)(1), effective on July 27, 2013, and submitted to EPA on January 7, 2014, pertaining to GHG PSD PAL permitting.
  • The Arkansas SIP continues to include Regulation 19.904(G)(1) as approved by EPA on April 12, 2007, as submitted by the state on February 3, 2005.
  • Chapter 10: Regulations for the Control of Volatile Organic Compounds in Pulaski County *         *         *         *         *         *         * Reg 19.1002 Purpose 1/25/2009 3/4/2015 [Insert Federal Register citation] Reg 19.1003 Definitions 1/25/2009 3/4/2015 [Insert Federal Register citation] Reg 19.1004 General Provisions 1/25/2009 3/4/2015 [Insert Federal Register citation] Reg 19.1005 Provisions for Specific Processes 1/25/2009 3/4/2015 [Insert Federal Register citation] *         *         *         *         *         *         * Chapter 11: Major Source Permitting Procedures Chapter 11 Major Source Permitting Procedures 1/25/2009 3/4/2015 [Insert Federal Register citation] Chapter 13: Stage I Vapor Recovery Reg 19.1301 Provisions for Specific Processes 1/25/2009 3/4/2015 [Insert Federal Register citation] *         *         *         *         *         *         * Reg. 19.1303 Definitions 1/25/2009 3/4/2015 [Insert Federal Register citation] *         *         *         *         *         *         * Appendix B: National Ambient Air Quality Standards List Appendix B National Ambient Air Quality Standards List 9/13/2014 3/4/2015 [Insert Federal Register citation] *         *         *         *         *         *         *

    (e) * * *

    EPA-Approved Non-Regulatory Provisions and Quasi-Regulatory Measures in the Arkansas SIP Name of SIP provision Applicable geographic or nonattainment area State
  • submittal/
  • effective
  • date
  • EPA approval date Explanation
    *         *         *         *         *         *         * Infrastructure for the 1997 and 2006 PM2.5 NAAQS Statewide 3/28/2008
  • 9/16/2009
  • 9/13/2014
  • 3/4/2015 [Insert Federal Register citation] Approval for CAA elements 110(a)(2)(A), (B), (E), (F), (G), (H), (K), (L), and (M) on 8/20/2012 (77 FR 50033). Approval for PSD elements (C), (D)(i)(II) (interfere with measures in any other state to prevent significant deterioration of air quality) and (J) on May 4, 2015 [Insert Federal Register citation]
    *         *         *         *         *         *         *
    3. Section 52.172 is amended by revising paragraphs (c) and (d) to read as follows:
    § 52.172 Approval status.

    (b) * * *

    (c) 1997 PM2.5 NAAQS: The SIP submitted March 28, 2008 is disapproved for CAA element 110(a)(2)(D)(ii).

    (d) 2006 PM2.5 NAAQS: The SIPs submitted March 28, 2008 and September 16, 2009 are disapproved for CAA element 110(a)(2)(D)(ii).

    4. Section 52.181 is amended by adding paragraph (a)(5) to read as follows:
    § 52.181 Significant deterioration of air quality.

    (a) * * *

    (5) December 1, 2014—submittal of Regulation 19, Chapter 9, Prevention of Significant Deterioration which provided the authority to regulate and permit emissions of PM2.5 and its precursors.

    [FR Doc. 2015-04270 Filed 3-3-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52, 62, and 70 [EPA-R07-OAR-2015-0006; FRL9923-68-Region 7] Approval and Promulgation of Air Quality Implementation Plans, State Plans for Designated Facilities and Pollutants, and Operating Permits Program; State of Missouri AGENCY:

    Environmental Protection Agency.

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State Implementation Plan (SIP) and the operating permits program for the State of Missouri which were received on November 6, 2013, November 20, 2014, March 27, 2014, July 7, 2014, and July 14, 2014. The revisions submitted by the state include amendments to rules relating to reference methods, definitions and common reference tables, ambient air quality standards, and a rule rescission related to air quality control measures for sources clustered in small land areas. Many of the revisions are administrative in nature and either incorporate by reference or update state rules to match Federal regulations. Some are more substantive, but are non-controversial. In addition, they provide more clarity for the regulated public. This direct final action will amend the SIP to include revised regulations which will then be more consistent with Federal regulations. These revisions do not have an adverse effect on air quality. EPA's approval of these rule revisions is being done in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This direct final rule will be effective May 4, 2015, without further notice, unless EPA receives adverse comment April 3, 2015. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0006, by one of the following methods:

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

    2. Email: [email protected]

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

    Instructions: Direct your comments to Docket ID No. EPA-R07-OAR-2015-0006. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov or email information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

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

    FOR FURTHER INFORMATION CONTACT:

    Amy Bhesania, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7147, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. What is being addressed in this document? II. Have the requirements for approval of a SIP revision been met? III. What action is EPA taking? I. What is being addressed in this document?

    EPA is taking direct final action to amend Missouri's SIP, 111(d) plan, and operating permits program by approving the state's requests to amend the following rules:

    1. 10 CSR 10-6.040, Reference Methods, received November 6, 2013.

    2. 10 CSR 10-6.040, Reference Methods, received November 20, 2014.

    3. 10 CSR 10-6.020, Definitions and Common Reference Tables, received March 27, 2014.

    4. 10 CSR 10-5.240, Additional Air Quality Control Measures May be Required When Sources are Clustered in a Small Land Area, received July 7, 2014.

    5. 10 CSR 10-6.010, Air Quality Standards, received July 14, 2014.

    The revisions submitted by the state include revisions to update standards and reference methods, to clarify, add or amend definitions and reference tables, to rescind an outdated rule, and to update and clarify ambient air quality standards. For more information on the state's submissions, specific revisions to each rule and EPA's review of the revisions, see the Technical Support Document (TSD) that is a part of this docket.

    II. Have the requirements for approval of a SIP, part 62, and part 70 revisions been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the TSD which is part of this docket, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations. The substantive requirements of 40 CFR part 62 and Title V of the 1990 CAA Amendments and 40 CFR part 70 have been met as well.

    III. What action is EPA taking?

    EPA is taking direct final action to approve this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, we are publishing a separate document that will serve as the proposed rule to approve the SIP, 111(d), and operating permits revisions, if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

    If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

    Statutory and Executive Order Reviews

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Missouri rules 10-5.240, 10-6.010, 10-6.020, and 10-6.040 described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents 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 Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rule approves pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).

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

    This action also does not have Federalism implications because it does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus Executive Order 13132 does not apply to this action. This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rule also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it approves a state rule implementing a Federal standard.

    In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Burden is defined at 5 CFR 1320.3(b).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register.

    A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the final rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects 40 CFR Part 52

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

    40 CFR Part 62

    Environmental protection, Air pollution control, Administrative practice and procedure, Intergovernmental relations, Reporting and recordkeeping requirements.

    40 CFR Part 70

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.

    Dated: February 13, 2015. Karl Brooks, Regional Administrator, Region 7.

    For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 52 as set forth below: Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart AA—Missouri 2. In § 52.1320 the table in paragraph (c) is amended by: a. Removing under Chapter 5, the entry “10-5.240”; and b. Revising under Chapter 6, the entries for “10-6.010”, “10-6.020”, and “10-6.040”.

    The revisions read as follows:

    § 52.1320 Identification of Plan.

    (c) * * *

    EPA-Approved Missouri Regulations Missouri citation Title State effective date EPA approval date Explanation Missouri Department of Natural Resources *         *         *         *         *         *         * Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri 10 CSR 10-6.010 Ambient Air Quality Standards 7/30/14 3/4/15 and [Insert Federal Register citation] Hydrogen Sulfide and Sulfuric Acid state standards are not SIP approved. 10 CSR 10-6.020 Definitions and Common Reference Tables 3/30/14 3/4/15 and [Insert Federal Register citation] Many of the definitions pertain to Title V, 111(d) and asbestos programs and are approved in the SIP because they provide overall consistency in the use of terms in the air program. Similarly, the EPA has also approved this rule as part of the Title V program, and 111(d) even though many of the definitions pertain only to the SIP. *         *         *         *         *         *         * 10 CSR 10-6.040 Reference Methods 11/30/14 3/4/15 and [Insert Federal Register citation] *         *         *         *         *         *         *
    PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS 3. The authority citation for part 62 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart AA—Missouri
    4. Section 62.6350 is amended by adding paragraph (b)(6) to read as follows:
    § 62.6350 Identification of plan.

    (b) * * *

    (6) A revision to Missouri's 111(d) plan to incorporate state regulation 10 CSR 10-6.020 Definitions and Common Reference Tables was state effective March 30, 2014. The effective date of the amended plan is May 4, 2015.

    PART 70—STATE OPERATING PERMIT PROGRAMS 5. The authority citation for part 70 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    6. Appendix A to part 70 is amended by adding paragraph (cc) under Missouri to read as follows: Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs Missouri

    (cc) The Missouri Department of Natural Resources submitted revisions to Missouri rule 10 CSR 10-6.020, “Definitions and Common Reference Tables” on March 27, 2014. The state effective date is March 30, 2014. This revision is effective May 4, 2015.

    [FR Doc. 2015-04400 Filed 3-3-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2014-0147; FRL-9923-78-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation Request and Associated Maintenance Plan for the Reading, Pennsylvania Nonattainment Area for the 1997 Annual Fine Particulate Matter Standard, and 2007 Base Year Inventory AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving the Commonwealth of Pennsylvania's request to redesignate to attainment the Reading, Pennsylvania Nonattainment Area (Reading Area or Area) for the 1997 annual fine particulate matter (PM2.5) national ambient air quality standard (NAAQS). EPA has determined that the Reading Area attained the standard and that it continues to attain the standard. In addition, EPA is approving, as a revision to the Pennsylvania State Implementation Plan (SIP), the Reading Area maintenance plan to show maintenance of the 1997 annual PM2.5 NAAQS through 2025 for the Area. The maintenance plan includes the 2017 and 2025 PM2.5 and nitrogen oxides (NOX) mobile vehicle emissions budgets (MVEBs) for the Reading Area for the 1997 annual PM2.5 NAAQS, which EPA is approving and finding adequate for transportation conformity purposes. EPA is also approving the comprehensive emissions inventory for the 1997 annual PM2.5 NAAQS for the Reading Area. These actions are being taken under the Clean Air Act (CAA).

    DATES:

    This final rule is effective on March 4, 2015.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2014-0147. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

    FOR FURTHER INFORMATION CONTACT:

    Marilyn Powers at (215) 814-2308, or by email at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    On November 25, 2013, the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP), formally submitted a request to redesignate the Reading Area from nonattainment to attainment for the 1997 annual PM2.5 NAAQS. Concurrently, PADEP submitted a 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 PM2.5 NAAQS, which EPA is approving for transportation conformity purposes. PADEP also submitted a 2007 comprehensive emissions inventory for the 1997 annual PM2.5 NAAQS for PM2.5, NOX, sulfur dioxide (SO2), volatile organic compounds (VOC), and ammonia (NH3).

    On December 22, 2014 (79 FR 76251), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. In the NPR, EPA proposed approval of Pennsylvania's November 25, 2013 request to redesignate the Reading Area to attainment for the 1997 annual PM2.5 NAAQS, including the associated maintenance plan for the Reading Area, the 2017 and 2025 PM2.5 and NOX MVEBs, which EPA proposed to approve and find adequate for purposes of transportation conformity, and the 2007 emissions inventory to meet the emissions inventory requirement of section 172(c)(3) of the CAA.

    The details of Pennsylvania's submittal and the rationale for EPA's proposed actions are explained in the NPR and will not be restated here. No public comments were received on the NPR.

    II. Final Action

    EPA is taking final actions on the redesignation request and SIP revision submitted by the Commonwealth of Pennsylvania on November 25, 2013 for the Reading Area for the 1997 annual PM2.5 NAAQS. EPA is approving Pennsylvania's redesignation request for the 1997 annual PM2.5 NAAQS, because EPA has determined that the request meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA for this standard. EPA finds that the monitoring data demonstrates that the Area has attained the 1997 PM2.5 NAAQS, and continues to attain the NAAQS. EPA is also approving the associated maintenance plan for the Reading Area as a revision to the Pennsylvania SIP for the 1997 annual PM2.5 NAAQS because it meets the requirements of section 175A of the CAA. EPA is also approving and finding adequate the 2017 and 2025 PM2.5 and NOX MVEBs submitted by Pennsylvania for the Reading Area for transportation conformity purposes. Finally, EPA is approving the 2007 emissions inventory to meet section 172(c)(3) of the CAA. Approval of this redesignation request will change the official designation of the Reading Area from nonattainment to attainment for the 1997 annual PM2.5 NAAQS.

    In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. A delayed effective date is unnecessary due to the nature of a redesignation to attainment, which eliminates CAA obligations that would otherwise apply. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. Today's rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rule relieves the Commonwealth of Pennsylvania of the obligation to comply with nonattainment-related planning requirements for the Area pursuant to Part D of the CAA and approves certain emissions inventories and MVEBs for the Area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d) for this action to become effective on the date of publication of this notice.

    III. Statutory and Executive Order Reviews A. General Requirements

    Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 4, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

    This action, approving the redesignation request and maintenance plan, and comprehensive emissions inventory for the Reading Area for the 1997 annual PM2.5 NAAQS may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

    List of Subjects 40 CFR part 52

    Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

    40 CFR part 81

    Air pollution control, National parks, Wilderness areas.

    Dated: February 9, 2015. William C. Early, Acting Regional Administrator,Region III.

    40 CFR parts 52 and 81 are amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart NN—Pennsylvania 2. In § 52.2020, the table in paragraph (e)(1) is amended by adding an entry for 1997 Annual PM2.5 Maintenance Plan and 2007 Base Year Emissions Inventory at the end of the table. The added text reads as follows:
    § 52.2020 Identification of plan.

    (e) * * *

    (1) * * *

    Name of non-regulatory SIP revision Applicable geographic area State submittal date EPA approval date Additional explanation *         *         *         *         *         *         * 1997 Annual PM2.5 Maintenance Plan and 2007 Base Year Emissions Inventory Reading Area (Berks County) 11/25/14 3/4/15 [Insert Federal Register citation] See § 52.2036(s) and § 52.2059(n).
    3. Section 52.2036 is amended by adding paragraph (s) to read as follows:
    § 52.2036 Base year emissions inventory.

    (s) EPA approves as revisions to the Pennsylvania State Implementation Plan the 2007 base year emissions inventory for the Reading 1997 annual fine particulate matter (PM2.5) nonattainment area submitted by the Pennsylvania Department of Environmental Protection on November 25, 2014. The emissions inventory includes emissions estimates that cover the general source categories of point, area, nonroad, and onroad sources. The pollutants that comprise the inventory are PM2.5, nitrogen oxides (NOX), volatile organic compounds (VOCs), ammonia (NH3), and sulfur dioxide (SO2).

    4. Section 52.2059 is amended by adding paragraph (n) to read as follows:
    § 52.2059 Control strategy: Particular matter.

    (n) EPA approves the maintenance plan for the Reading nonattainment area for the 1997 annual PM2.5 NAAQS submitted by the Commonwealth of Pennsylvania on November 25, 2014. The maintenance plan includes the 2017 and 2025 PM2.5 and NOX mobile vehicle emissions budgets (MVEBs) for Berks County to be applied to all future transportation conformity determinations and analyses for the Reading nonattainment area for the 1997 annual PM2.5 NAAQS.

    Reading Area's Motor Vehicle Emission Budgets for the 1997 Annual PM2.5 NAAQS in Tons per Year Type of control strategy SIP Year PM2.5 NOX Effective date of SIP approval Maintenance Plan 2017 200 5,739 3/4/15 2025 146 3,719 3/4/15
    PART 81—DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES 1. The authority citation for Part 81 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    2. Section 81.339 is amended by revising the 1997 Annual PM2.5 NAAQS table entry for the Reading Area to read as follows:
    § 81.339 Pennsylvania. Pennsylvania—1997 Annual PM2.5 NAAQS [Primary and secondary] Designated Area Designation a Date 1 Type Classification Date 2 Type *         *         *         *         *         *         * Reading, PA: Berks County March 4, 2015 Attainment *         *         *         *         *         *         * a Includes Indian Country located in each county or area, except as otherwise specified. 1 This date is 90 days after January 5, 2005, unless otherwise noted. 2 This date is July 2, 2014, unless otherwise noted.
    [FR Doc. 2015-04391 Filed 3-3-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2014-0110; FRL-9921-85] Metaldehyde; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances for residues of metaldehyde in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). This regulation additionally removes the established tolerances in or on fruit, citrus group 10 and tomato as the tolerances will be superseded by tolerances established by this action.

    DATES:

    This regulation is effective March 4, 2015. Objections and requests for hearings must be received on or before May 4, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0110 is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: Notices@epa.gov.

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0110 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 4, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0110, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of February 25, 2014 (79 FR 10459) (FRL-9906-77), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 3E8223) by IR-4, 500 College Road East, Suite 201W, Princeton, NJ 08540. The petition requested that 40 CFR 180.523 be amended by establishing tolerances for residues of the molluscicide metaldehyde, 2,4,6,8-tetramethyl-1,3,5,7-tetroxocane, in or on clover, forage at 0.5 parts per million (ppm); clover, hay at 0.5 ppm; ginseng at 0.05 ppm; vegetable legume, edible podded, subgroup 6A at 0.8 ppm; pea and bean, succulent shelled, subgroup 6B at 0.2 ppm; vegetable, foliage of legume, except soybean, subgroup 7A at 1.5 ppm; tomato subgroup 8-10A at 0.24 ppm; and fruit, citrus, group 10-10 at 0.26 ppm. Clover, forage and clover, hay were proposed as tolerances with regional registrations. Additionally, the petition requested removing the established tolerances in or on fruit, citrus, group 10 at 0.26 ppm; and tomato at 0.24 ppm, upon establishment of the proposed tolerances. That document referenced a summary of the petition prepared by Lonza, Inc., the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

    Based upon review of the data supporting the petition, EPA has modified the proposed tolerances for clover, forage and clover, hay from 0.5 ppm to 0.60 ppm. The reason for these changes are explained in Unit IV.D.

    III. Aggregate Risk Assessment and Determination of Safety

    Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue* * *”

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for metaldehyde including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with metaldehyde follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The principal toxic effects for metaldehyde are clinical signs of neurotoxicity, as well as changes in the liver and testes/prostate following repeated oral dosing. The dog is the most sensitive species for neurotoxic effects. Nervous system effects observed in the subchronic and chronic oral toxicity studies include: Ataxia and tremors; twitching; salivation; emesis; rapid respiration in dogs and maternal rats; and limb paralysis, spinal cord necrosis, and hemorrhage in maternal rats. Liver effects include increased liver weight, increased incidence of liver lesions (hepatocellular necrosis, hepatocellular hypertrophy and inflammation), and an increased incidence of hepatocellular adenomas in female rats and in both sexes of mice. In dogs, atrophy of the testes and prostate was observed following subchronic and chronic exposure.

    In the rat developmental toxicity study, maternal toxicity was observed as evidenced by clinical signs including ataxia, tremors, and twitching at the highest dose tested (HDT) in the absence of developmental toxicity. There was no observed developmental or maternal toxicity in the rabbit developmental toxicity study. In the 2-generation rat reproductive toxicity study, mortality and clinical signs including limb paralysis, spinal cord necrosis and hemorrhage were observed in the maternal animals. Effects on the offspring in the rat reproductive toxicity study consisted of decreased pup body weight and body weight gains; reproductive toxicity was not observed.

    In the rat, clinical signs of neurotoxicity occurred at high dose levels following repeated oral exposures. In the 90-day neurotoxicity study, bilateral hindlimb paralysis was observed in one female rat at the HDT.

    Chronic feeding studies in rats and mice indicated that metaldehyde produced liver effects characterized by liver hypertrophy and liver tumors. The chronic mouse toxicity study showed that metaldehyde was associated with a common tumor in both sexes (liver tumors, adenomas), and the rat chronic toxicity study showed that metaldehyde was associated with liver adenomas in the female. EPA has determined that quantification of risk using a nonlinear Reference Dose (RfD) approach, using the chronic RfD/Population-Adjusted Dose (PAD), will adequately account for all chronic toxicity, including carcinogenicity, that could result from exposure to metaldehyde. That conclusion is based on the following considerations:

    1. Tumors found are commonly seen in the mouse;

    2. Liver tumors (adenomas) in both species were benign;

    3. Metaldehyde is not mutagenic;

    4. No carcinogenic response was seen in the male rat;

    5. Incidence of adenomas at the high dose in the female rat was within the historical control range of the testing lab; and

    6. Both the No Observed Adverse Effect Level (NOAEL) and Lowest Observed Adverse Effect Level (LOAEL) from the chronic rat study on which the chronic RfD/PAD was based are well below the dose at which adenomas were seen.

    Specific information on the studies received and the nature of the adverse effects caused by metaldehyde as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in document “Metaldehyde; Human Health Risk Assessment for Proposed New Uses on Vegetable, Legume, Edible Podded [Subgroup 6A], Pea and Bean, Succulent Shelled [Subgroup 6B], Vegetable, Foliage of Legume, Except Soybean [Subgroup 7A], Clover Forage and Hay, and Ginseng; and for Amendments to Existing Tolerances [Tomato and Crop Group 10]” in docket ID number EPA-HQ-OPP-2014-0110.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

    A summary of the toxicological endpoints for metaldehyde used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of November 27, 2013 (78 FR 70864) (FRL-9399-8).

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to metaldehyde, EPA considered exposure under the petitioned-for tolerances as well as all existing metaldehyde tolerances in 40 CFR 180.523. EPA assessed dietary exposures from metaldehyde in food as follows:

    i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

    Such effects were identified for metaldehyde. In estimating acute dietary exposure, EPA used the Dietary Exposure Evaluation Model with the Food Commodity Intake Database (DEEM-FCID). This software incorporates 2003-2008 food consumption data from the U.S. Department of Agriculture's National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA used tolerance-level residues for all commodities and 100 percent crop treated (PCT) estimates. The Agency also assumed processing factors to be 1.0 for all commodities except for dried tomato, tomato juice, cranberry juice, and high fructose corn syrup; for these commodities, DEEM default processing factors were used.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA 2003-2008 NHANES/WWEIA. As to residue levels in food, EPA used tolerance-level residues for all commodities and assumed 100 PCT. The Agency also assumed processing factors to be 1.0 for all commodities except for dried tomato, tomato juice, cranberry juice, and high fructose corn syrup; for these commodities, DEEM default processing factors were used.

    iii. Cancer. As discussed in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to metaldehyde. Cancer risk was assessed using the same exposure estimates as discussed in Unit III.C.1.ii.

    iv. Anticipated residue and PCT information. EPA did not use anticipated residue and/or PCT information in the dietary assessment for metaldehyde. Tolerance-level residues and/or 100 PCT were assumed for all food commodities.

    2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for metaldehyde in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of metaldehyde. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www.epa.gov/oppefed1/models/water/index.htm.

    Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of metaldehyde for acute exposures are estimated to be 205 parts per billion (ppb) for surface water and 1,880 ppb for ground water and for chronic exposures for non-cancer assessments are estimated to be 136 ppb for surface water and 915 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.

    For acute dietary risk assessment, the water concentration value of 1,880 ppb was used to assess the contribution to drinking water.

    For chronic dietary risk assessment, the water concentration of value 915 ppb was used to assess the contribution to drinking water.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

    Metaldehyde is currently registered for the following uses that could result in residential exposures: Residential ornamentals and lawn/turf applications. EPA assessed residential exposure using the following assumptions:

    i. Adult handler short-term inhalation exposures from loading/applying metaldehyde products including liquid ready-to-use products (with manually-pressurized hand wands, hose-end sprayers, and sprinkler cans) and applying granules (via push-type rotary spreaders, belly grinders, spoons, cups, hands, and shaker cans); and

    ii. Metaldehyde incidental post-application exposures assessed for children, including short-term exposure from hand-to-mouth and object-to-mouth contact with treated turf, and short- and intermediate-term exposures from treated soil ingestion. While EPA did calculate an acute incidental ingestion scenario for toddlers accidentally ingesting granules of metaldehyde, it is not appropriate to aggregate this scenario because it represents poisoning incident which is not likely to overlap with the typical post-application exposure scenario. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/science/residential-exposure-sop.html.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found metaldehyde to share a common mechanism of toxicity with any other substances, and metaldehyde does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that metaldehyde does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. Developmental toxicity was not observed in the rat or rabbit developmental toxicity studies, and maternal toxicity was not observed in the rabbit. In the rat, maternal toxicity was observed, as evidenced by clinical signs (ataxia, tremors, and twitching) at the HDT. In the rat reproductive toxicity study, mortality and clinical signs (limb paralysis, spinal cord necrosis and hemorrhage) were observed in the maternal animals, and the effects on the offspring consisted of decreased pup body weight and body weight gains. Reproductive toxicity was not observed.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

    i. The toxicity database for metaldehyde is complete.

    ii. The toxicity database contains indications of neurotoxicity resulting from exposure to metaldehyde, including:

    a. Clinical signs [ataxia, twitching, tremors, prostration, paresis of hind legs] in female rats in the developmental toxicity study;

    b. Hindlimb paralysis, necrosis and hemorrhage in the spinal cord and vertebra luxation in F0 dams during lactation period in the 2-generation reproduction study;

    c. Bilateral hindlimb paralysis observed initially on day 10 in one high-dose female sacrificed on day 22 due to poor condition in the 90-day subchronic neurotoxicity study in rats; no neuropathology was evident;

    d. Clinical signs [ataxia, tremors, twitching, salivation] in the chronic dog study, which occurred within the first week of exposure and persisted through week 19; other signs observed in the chronic dog study included lateral position, reduced mobility, convulsions, and vocalization in one female, and agitation in another.

    EPA has determined that the acute and developmental neurotoxicity studies are not needed, nor are additional uncertainty factors (UFs) necessary to account for neurotoxicity. There were no indications of neurotoxic effects in developing rats or rabbits in either the developmental or reproductive studies. Although there were some effects in adult rats, those effects occurred at doses much higher than in the dog study. The dog is the more sensitive species for neurotoxic effects and points of departure (30 mg/kg/day and 10 mg/kg/day) are based on the chronic dog oral toxicity study, which EPA considers to be protective of any neurotoxicity at higher dose levels.

    iii. There is no evidence that metaldehyde results in increased susceptibility in in utero rats or rabbits in the prenatal developmental studies or in young rats in the 2-generation reproduction study.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to metaldehyde in drinking water. EPA used similarly conservative assumptions to assess post application exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by metaldehyde.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to metaldehyde will occupy 55% of the aPAD for all infants (less than 1 year old), the population group receiving the greatest exposure.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to metaldehyde from food and water will utilize 51% of the cPAD for all infants less than 1 year old the population group receiving the greatest exposure. Chronic exposures to metaldehyde are expected for food and water only.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Metaldehyde is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to metaldehyde. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1,400 for adults and 590 for children. Because EPA's level of concern for metaldehyde is a MOE of 100 or below, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Metaldehyde is currently registered for uses that could result in intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to metaldehyde.

    Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in an aggregate MOE of 280 for children, only. Because EPA's level of concern for metaldehyde is a MOE of 100 or below, this MOE is not of concern.

    5. Aggregate cancer risk for U.S. population. Based on the data summarized in Unit III.A., EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to metaldehyde. Cancer risk was assessed using the same cPAD and exposure estimates as discussed in Unit III.A. and Unit III.C.1.ii. for the chronic risk assessment. Based on the results discussed in Unit III.E.2., EPA concludes that aggregate exposure to metaldehyde will not pose a cancer risk.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to metaldehyde residues.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (gas chromatography with mass spectrometry (GC/MS) method (EN-CAS Method No. ENC-3/99, Revision 1) is available to enforce the tolerance expression.

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established a MRL for metaldehyde.

    C. Response to Comments

    Six comments were posted in the docket for this action. However, the comments received were regarding bee concerns for a different chemical, sulfoxaflor. These comments were addressed at the time the Agency assessed sulfoxaflor. As a result, the only comments received were determined to be irrelevant to the Agency's tolerance action on metaldehyde.

    D. Revisions to Petitioned-For Tolerances

    The Agency has determined that tolerances of 0.60 ppm for clover hay and forage are appropriate based on available residue data and use of the OECD tolerance calculation procedures.

    V. Conclusion

    Therefore, tolerances are established for residues of metaldehyde in or on the following commodities: Vegetable, legume, edible podded, subgroup 6A at 0.80 ppm; pea and bean, succulent shelled, subgroup 6B at 0.20 ppm; vegetable, foliage of legume, except soybean, subgroup 7A at 1.5 ppm; tomato subgroup 8-10A at 0.24 ppm; fruit, citrus, group 10-10 at 0.26; and ginseng at 0.05 ppm; and tolerances with regional registrations for clover, forage at 0.60 ppm and clover, hay at 0.60 ppm. The regulation additionally removes the tolerances in or on fruit, citrus group 10 and tomato.

    VI. Statutory and Executive Order Reviews

    This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: February 23, 2015. Susan Lewis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.523: a. Revise the entry for “Fruit, citrus, group 10” in the table in paragraph (a). b. Add alphabetically the entries for “Ginseng”; “Pea and bean, succulent shelled, subgroup 6B”; “Tomato subgroup 8-10A”; “Vegetable, foliage of legume, except soybean, subgroup 7A”; and “Vegetable, legume, edible podded subgroup 6A” to the table in paragraph (a). c. Remove the entry for “Tomato” in the table in paragraph (a). d. Add alphabetically the entries for “Clover, forage” and “Clover, hay” to the table in paragraph (c).

    The amendments read as follows:

    § 180.523 Metaldehyde; tolerances for residues.

    (a) * * *

    Commodity Parts per
  • million
  • *         *         *         *         *         *         * Fruit, citrus, group 10-10 0.26 Ginseng 0.05 *         *         *         *         *         *         * Pea and bean, succulent shelled, subgroup 6B 0.20 *         *         *         *         *         *         * Tomato subgroup 8-10A 0.24 *         *         *         *         *         *         * Vegetable, foliage of legume, except soybean, subgroup 7A 1.5 Vegetable, legume, edible podded subgroup 6A 0.80 *         *         *         *         *         *         *

    (c) * * *

    Commodity Parts per
  • million
  • Clover, forage 0.60 Clover, hay 0.60 *         *         *         *         *         *         *
    [FR Doc. 2015-04277 Filed 3-3-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2013-0601; FRL-9922-29] 9-Octadecenoic Acid (9Z)-, Sulfonated, Oxidized and its Potassium and Sodium Salts; Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes an exemption from the requirement of a tolerance for residues of 9-octadecenoic acid (9Z)-, sulfonated, oxidized; 9-octadecenoic acid (9Z)-, sulfonated, oxidized, potassium salts; and 9-octadecenoic acid (9Z)-, sulfonated, oxidized, sodium salts, when used as an inert ingredient in antimicrobial pesticide formulations used on food contact surfaces in public eating places, dairy processing equipment and food processing equipment and utensils at a maximum end-use concentration not to exceed 250 parts per million (ppm). Ecolab submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts.

    DATES:

    This regulation is effective March 4, 2015. Objections and requests for hearings must be received on or before May 4, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2013-0601, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Director, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0601 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 4, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0601, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Petition for Exemption

    In the Federal Register of September 12, 2013 (78 FR 56185) (FRL-9399-7), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-10549) by Ecolab, Inc. 370 N. Wabasha Street, St. Paul, MN 55102. The petition requested that 40 CFR 180.940(a) be amended by establishing an exemption from the requirement of a tolerance for residues of 9-octadecenoic acid (9Z)-, sulfonated, oxidized (CAS Reg. No. 1315321-93-7); 9-octadecenoic acid (9Z)-, sulfonated, oxidized, potassium salts (CAS Reg. No. 1315321-94-8); and 9-octadecenoic acid (9Z)-, sulfonated, oxidized, sodium salts, (CAS No. 1315321-95-9) when used as an inert ingredient in antimicrobial pesticide formulations used on food contact surfaces in public eating places, dairy processing equipment, and food processing equipment and utensils at a maximum end-use concentration not to exceed 250 ppm. That document referenced a summary of the petition prepared by Ecolab Inc, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

    III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

    IV. Aggregate Risk Assessment and Determination of Safety

    Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

    EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

    Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts follows.

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salt (also referred to as peroxy sulfonated oleic acid (PSOA)) as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies discussed in this unit.

    Peroxy sulfonated oleic acid is acutely toxic via the oral route and is highly corrosive via the dermal and inhalation routes of exposure. In a 28-day oral toxicity study (OECD Guideline 407), rats were administered PSOA via gavage at dose levels of 15 milligrams/kilogram/day (mg/kg/day) and 50 mg/kg/day. No observable adverse effects were seen at either dose level but since no systemic effects were observed, the dosing was considered by the Agency to not be adequate.

    In a developmental toxicity (OECD Guideline 414) study with PSOA, the parental NOAEL for systemic effects was 50 mg/kg bw/day, the highest dose tested. The NOAEL for embryotoxic, fetotoxic and developmental effects was also 50 mg/kg bw/day, the highest dose tested.

    The dosing in the 28-day gavage study and the developmental toxicity studies was considered inadequate because animals were not challenged at higher doses. The applicant suggested that the higher doses were not utilized because of the corrosive nature of the chemical. Since there was no evidence of corrosivity in the study, a 14-day oral toxicity study was conducted at dose levels of 100 mg/kg/day, 300 mg/kg/day and 1,000 mg/kg/day. The study results confirmed that higher doses would have been corrosive.

    In a series of genotoxicity studies PSOA is negative for inducing mutations in bacterial and mammalian cells, with and without metabolic activation. In the in vitro chromosome aberration study using human lymphocytes, PSOA was positive with and without metabolic activation. However, the in vivo micronucleus assay in rats was negative.

    A neurotoxicity study was not conducted with PSOA. However, detailed functional observations were made among the parameters measured in the 28-day subchronic oral feeding study. There were no PSOA related changes in any of the parameters measured, including functional observations battery (FOB). No evidence of neurotoxicity was observed. An immunotoxicity study was not conducted with PSOA. However, minimal hemorrhage in the thymus was observed after the recovery period in the 14-day oral toxicity study with rats. Since, this effect is a common background lesion it is not considered indicative of potential immunotoxicity. There are no known chronic toxicity studies with PSOA and no available PSOA mammalian metabolism studies.

    B. Toxicological Points of Departure/Levels of Concern

    Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

    Table 1—Summary of Toxicological Dose and Endpoints for 9-Octadecenoic Acid (9Z)-, Sulfonated, Oxidized and Its Potassium and Sodium Salt for Use in Human Risk Assessment Exposure/scenario Dose used in risk assessment, interspecies and intraspecies and any traditional UF Special FQPA SF and LOC for risk assessment Study and toxicological effects Acute dietary (all populations) An endpoint attributable to a single dose exposure has not been identified. Chronic dietary (all populations) NOAEL= 50 mg/kg/day
  • UFA = 10X
  • UFH= 10X
  • Chronic RfD = 0.5 mg/kg/day
  • FQPA SF = 1X
  • cPAD = chronic RfD/Special
  • 14-day and 28-day rat oral toxicity study in rats.
  • LOAEL = 300 mg/kg/day based on gastrointestinal irritation.
  • Cancer (Oral, dermal, inhalation) NA NA NA. FQPA SF = Food Quality Protection Act Safety Factor. LOAEL = lowest-observed-adverse-effect-level. LOC = level of concern. mg/kg/day = milligram/kilogram/day. MOE = margin of exposure. NOAEL = no-observed-adverse-effect-level. PAD = population adjusted dose (a = acute, c = chronic). RfD = reference dose. UF = uncertainty factor. UFA = extrapolation from animal to human (interspecies). UFH = potential variation in sensitivity among members of the human population (intraspecies).
    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to PSOA, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from peroxy sulfonated oleic acids in food as follows:

    In the absence of actual dietary exposure data resulting from this use, EPA has utilized a conservative, health-protective method of estimating dietary intake that is based upon conservative assumptions related to the amount of residues that can be transferred to foods as a result of the proposed use of 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts in food contact sanitizing pesticide products. This same methodology has been utilized by EPA in estimating dietary exposures to antimicrobial pesticides used in food-handling settings. A complete description of the approach used to assess dietary exposures resulting from food contact sanitizing solution uses of nitric acid can be found at http://www.regulations.gov in document “Peroxy Sulfonated Oleic Acids; Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Exemption from the Requirement of a Tolerance When Used as Inert Ingredients in Pesticide Formulations,” pp. 14-15 in docket ID number EPA-HQ-OPP-2013-0601. EPA assessed dietary exposures from 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts in food as follows:

    i. Acute exposure. No adverse effects attributable to a single exposure of PSOA were seen in the toxicity databases. Therefore, an acute dietary exposure assessment for 9-octadecenoic acid (9Z)-, sulfonated, oxidized and its potassium and sodium salts is not necessary.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment, the Agency believes the assumptions used to estimate chronic dietary exposures lead to an extremely conservative assessment of chronic dietary risk due to a series of compounded conservative assumptions. First, when a surface is treated with a disinfectant, a quantity of the disinfectant remains on the surface (residual solution). In the absence of any other data, EPA has used an estimated worst-case concentration of 1 mg of residual solution per square centimeter (cm) of treated surface area for this quantity. Second, the conservatism of this methodology is compounded by EPA's decision to assume a worst case scenario that all food that an individual consumers will come into contact with 4,000 cm2 of sanitized non-porous food contact surfaces. This contact area represents all the surface area from silverware, china, and glass used by a person who regularly eats three meals per day at an institutional or public facility. Third, EPA assumes that 100% of the material present on food contact surfaces will migrate to food.

    2. Dietary exposure from drinking water. Due to the proposed use pattern, the Agency believes PSOA will not enter surface water or ground water as a result of the proposed use. Therefore a dietary exposure assessment for drinking water is not necessary.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure. Peroxy sulfonated oleic acids are not used as an inert ingredient in pesticide products that are registered for specific uses that may result in both indoor and outdoor residential exposures. Therefore, a residential exposure and risk assessment was not conducted for PSOA.

    4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

    EPA has not found peroxy sulfonated oleic acids to share a common mechanism of toxicity with any other substances, and peroxy sulfonated oleic acids do not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that peroxy sulfonated oleic acids do not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

    1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

    2. Prenatal and postnatal sensitivity. There is no concern for fetal susceptibility. There were no treatment related effects observed in a developmental toxicity study in rats up to the maximum dose tested (50 mg/kg/day). Based on the corrosive nature of PSOA toxicity testing at doses greater than 100 mg/kg/day results in local effects (i.e., severe gastrointestinal irritation) with other observed systemic effects being secondary to the irritation effects. Therefore, based on the available data, there are no concerns for residual uncertainties concerning prenatal and postnatal toxicity.

    3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:

    i. The NOAEL used for risk assessment is based on the corrosive effects of PSOA which occur at dose levels below which any systemic toxicity is observed and is therefore protective of potential developmental and reproductive effects.

    ii. There is no indication that PSOA is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.

    iii. There is no indication that PSOA is an immunotoxic chemical and there is no need for additional UFs to account for immunotoxicity.

    iv. There is no evidence that PSOA results in increased susceptibility in in utero rodents.

    v. There are no residual uncertainties identified in the exposure databases. EPA made conservative (health-protective) assumptions regarding dietary exposure to PSOA. This assessment will not underestimate the exposure and risks posed by PSOA.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). The aPAD and cPAD represent the highest safe exposures, taking into account all appropriate SFs. EPA calculates the aPAD and cPAD by dividing the POD by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the POD to ensure that the MOE called for by the product of all applicable UFs is not exceeded.

    1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, peroxy sulfonated oleic acids are not expected to pose an acute risk.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to peroxy sulfonated oleic acids from food and water will utilize 18% of the cPAD for children 1-2 years old, the population group receiving the highest exposure. There are no residential uses for peroxy sulfonated oleic acids. Based on the explanation in Unit IIIC.3 residential use patterns, chronic residential exposure to residues of peroxy sulfonated oleic acids is not expected.

    3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because there are no residential uses, short-term residential exposures are not likely to occur, and no short-term adverse effect was identified therefore peroxy sulfonated oleic acids are not expected to pose a short-term aggregate risk.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Because there are no residential uses, intermediate-term residential exposures are not likely to occur, and peroxy sulfonated oleic acids are not expected to pose an intermediate-term aggregate risk.

    5. Aggregate cancer risk for U.S. population. Based upon negative response for mutagenicity in a battery of genotoxicity tests, and lack of any structural alerts for carcinogenicity, peroxy sulfonated oleic acids are not expected to pose a cancer risk to humans.

    6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to peroxy sulfonated oleic acids residues.

    V. Other Considerations A. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of peroxy sulfonated oleic acids of in or on any food commodities. EPA is establishing a limitation on the amount of peroxy sulfonated oleic acids that may be used in pesticide formulations. That limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136 et seq. EPA will not register any pesticide for sale or distribution for which the final end use concentration of peroxy sulfonated oleic acids in antimicrobial food contact surface sanitizing solutions would exceed 250 ppm.

    B. International Residue Limits

    In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nation Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

    The Codex has not established a MRL for peroxy sulfonated oleic acids.

    VI. Conclusions

    Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.940(a) for residues of 9-octadecenoic acid (9Z)-, sulfonated, oxidized (CAS Reg. No. 1315321-93-7); 9-octadecenoic acid (9Z)-, sulfonated, oxidized, potassium salts (CAS Reg. No. 1315321-94-8); and 9-octadecenoic acid (9Z)-, sulfonated, oxidized, sodium salts, (CAS No. 1315321-95-9) when used as an inert ingredient in antimicrobial pesticide formulations used on food contact surfaces in public eating places, dairy processing equipment and food processing equipment and utensils at a maximum end-use concentration not to exceed 250 ppm.

    VII. Statutory and Executive Order Reviews

    This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

    Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

    This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

    This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

    VIII. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: February 25, 2015. Susan Lewis, Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.940(a), alphabetically add the following inert ingredients to the table in paragraph (a) to read as follows:
    § 180.940 Tolerance exemptions for active and inert ingredients for use in antimicrobial formulations (Food-contact surface sanitizing solutions).

    (a) * * *

    Pesticide chemical CAS Reg. No. Limits *         *         *         *         *         *         * 9-Octadecenoic acid (9Z)-, sulfonated, oxidized 1315321-93-7 When ready for use, the end-use concentration is not to exceed 250 ppm. 9-Octadecenoic acid (9Z)-, sulfonated, oxidized, potassium salts 1315321-94-8 When ready for use, the end-use concentration is not to exceed 250 ppm. 9-Octadecenoic acid (9Z)-, sulfonated, oxidized, sodium salts 1315321-95-9 When ready for use, the end-use concentration is not to exceed 250 ppm. *         *         *         *         *         *         *
    [FR Doc. 2015-04396 Filed 3-3-15; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 64 [WC Docket No. 13-39; FCC 13-135] Rural Call Completion Recordkeeping and Reporting Requirements AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule; announcement of effective date.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) announces that the Office of Management and Budget (OMB) has approved, for a period of three years, the information collection associated with the Commission's Report and Order (Order) WC Docket No. 13-39, FCC 13-135. This document is consistent with the Order, which stated that the Commission would publish a document in the Federal Register announcing OMB approval and the effective date of the requirements.

    DATES:

    47 CFR 64.2103, 64.2105, 64.2107, and the information collection in paragraph 67 of this Report and Order, which contains information collection requirements published at 78 FR 76218, December 17, 2013 are effective on March 4, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Randy Clarke, Acting Division Chief, Wireline Competition Bureau, at (202) 418-1587.

    SUPPLEMENTARY INFORMATION:

    This document announces that, on January 29, 2015, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Order, FCC 13-135, published at 78 FR 76218, December 17, 2013. The OMB Control Number is 3060-1186. The Commission publishes this document as an announcement of the effective date of paragraphs 66 and 67, of document WC Docket No. 13-39, FCC 13-135. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, Room 1-620, 445 12th Street SW., Washington, DC 20554, or via email at: [email protected] Please include the OMB Control Number, 3060-1186, in your correspondence. The Commission also will accept comments via email. Please send them to [email protected]

    To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    Synopsis

    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on January 29, 2015, for the information collection requirements contained in 64.2103, 64.2105, and 64.2107 of the Commission's Rules and the information collection in paragraph 67 of the Order.

    Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

    No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1186.

    The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

    The total annual reporting burdens and costs for the respondents are as follows:

    OMB Control Number: 3060-1186.

    OMB Approval Date: January 29, 2015.

    OMB Expiration Date: January 31, 2018.

    Title: Rural Call Completion Recordkeeping and Reporting Requirements.

    Form Number: FCC Form 480.

    Respondents: Businesses or other for-profit entities.

    Number of Respondents and Responses: 225 respondents; 940 responses.

    Estimated Time per Response: 12.5 hours (per quarter).

    Frequency of Response: Quarterly and one-time reporting requirements and recordkeeping requirement.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 151, 154(i), 201(b), 202(a), 218, 220(a), 251(a), 403.

    Total Annual Burden: 11,280 hours.

    Total Annual Cost: $793,750.

    Privacy Impact Assessment: No impact (s).

    Nature and Extent of Confidentiality: An assurance of confidentiality is not offered because this information collection does not require the collection of personally identifiable information from individuals. If the FCC requests that respondents submit information which respondents believe is confidential, respondents may request confidential treatment of such information pursuant to Section 0.459 of the FCC's rules, 47 CFR 0.459.

    Needs and Uses: On October 28, 2013, the Wireline Competition Bureau (Bureau) of the Federal Communications Commission adopted a Report and Order (Order), in WC Docket No. 13-39; FCC 13-135, 78 FR 76218, Rural Call Completion. Under the rules adopted by the Order, submission of Form 480 is mandatory for a “covered provider” as defined in 47 CFR 64.2101(c). A covered provider failing to file Form 480 in a timely fashion may be subject to penalties under the Communications Act, including sections 502 and 503(b). In the Order the Commission improves its ability to monitor problems with completing calls to rural areas, and enforce restrictions against blocking, choking, reducing, or restricting calls. The Order applies the new rules to “covered providers,” meaning providers of long-distance voice service that make the initial long-distance call path choice for more than 100,000 domestic retail subscriber lines, counting the total of all business and residential fixed subscriber lines and mobile phones and aggregated over all of the providers' affiliates. In most cases, this is the calling party's long-distance provider. Covered providers include LECs, interexchange carriers (IXCs), commercial mobile radio service (CMRS) providers, and VoIP service providers. These rules do not apply to intermediate providers. Covered providers must file quarterly reports and retain the call detail records for at least six calendar months. Long-distance voice service providers that have more than 100,000 domestic retail subscriber lines but that, for reasons set forth in paragraph 67 of the Order, are not required to file quarterly reports are required to file a one-time letter in WC Docket No. 13-39 explaining that they do not make the initial long-distance call path choice for more than 100,000 long-distance voice service subscriber lines and identifying the long-distance provider or providers to which they hand off their end-user customers' calls. The Order also allows qualifying providers to certify that they meet the conditions for a Safe Harbor that would reduce reporting and retention obligations. In addition, the Commission has delegated to the Bureau, in consultation with the Enforcement Bureau, the authority to act on requests from qualified providers for waiver of these rules. The Order also adopts a rule prohibiting all originating and intermediate providers from causing audible ringing to be sent to the caller before the terminating provider has signaled that the called party is being alerted.

    In the near future, the Bureau will issue a public notice providing detailed instructions and announcing the deadline for the submission of data and providing further filing information.

    Federal Communications Commission. Marlene H. Dortch, Secretary.
    [FR Doc. 2015-04415 Filed 3-3-15; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF THE TREASURY 48 CFR Parts 1001, 1002, 1016, 1019, 1028, 1032, 1034, 1042, and 1052 Department of the Treasury Acquisition Regulation; Technical Amendments AGENCY:

    Office of the Procurement Executive, Treasury.

    ACTION:

    Final rule.

    SUMMARY:

    The Department of the Treasury is amending the Department of the Treasury Acquisition Regulation (DTAR) in order to make editorial changes. These editorial changes are in response to updates made to the Federal Acquisition Regulations (FAR), Treasury bureau organizational restructuring, and other internal updates that have occurred since the 2013 edition.

    DATES:

    Effective: April 3, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Thomas O'Linn, Procurement Analyst, Office of the Procurement Executive, at (202) 622-2092.

    SUPPLEMENTARY INFORMATION:

    The DTAR, which supplement the Federal Acquisition Regulation, are codified at 48 CFR Chapter 10. In order to update certain elements in 48 CFR part 10, the Department issued a proposed rule on December 23, 2014 (79 FR 76948) to solicit comments on certain editorial changes to the DTAR, which include updating Treasury bureau names and updating titles and dates, and other nonsubstantive revisions. This proposed rule also invited comments on removal of the Earned Value Management System provisions codified at section 1052.234-72. There is no longer a need for Treasury-specific coverage in this area.

    The public comment period on the proposed rule closed on January 22, 2015. No comments were received. Accordingly, the Department is adopting the provisions of the proposed rule without change.

    Regulatory Planning and Review

    This rule is not a significant regulatory action as defined in section 3(f) of Executive Order 12866. Therefore a regulatory assessment is not required.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. chapter 6) generally requires agencies to conduct an initial regulatory flexibility analysis and a final regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.

    It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. Although the rule may affect a substantial number of small entities, the rule is limited to nonsubstantive, editorial changes to the DTAR, which are anticipated to have no economic impact. Therefore, a regulatory flexibility analysis is not required.

    Paperwork Reduction Act

    The information collections contained in this rule have been previously approved by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501, et seq.) and assigned OMB control numbers 1505-0081; 1505-0080; and 1505-0107. Under the Paperwork Reduction Act, an agency may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a valid OMB control number.

    List of Subjects in 48 CFR Chapter 10

    Government procurement.

    Accordingly, the Department of the Treasury amends 48 CFR chapter 10 as follows:

    PART 1001—DEPARTMENT OF THE TREASURY ACQUISITION REGULATION (DTAR) SYSTEM 1. The authority citation for part 1001 is revised to read as follows: Authority:

    41 U.S.C. 1707.

    1001.670 [Amended]
    2. Amend section 1001.670 by removing in the first sentence the word “Technical” and revising “COTR” to read “COR” wherever it occurs.
    PART 1002—DEFINITIONS OF WORDS AND TERMS 3. The authority citation for part 1002 is revised to read as follows: Authority:

    41 U.S.C. 1707.

    4. Section 1002.101 is revised to read as follows:
    1002.101 Definitions.

    Bureau means any one of the following Treasury organizations:

    (1) Alcohol and Tobacco Tax and Trade Bureau (TTB);

    (2) Bureau of Engraving & Printing (BEP);

    (3) Bureau of the Fiscal Service (formerly Bureau of Public Debt and Financial Management Service);

    (4) Departmental Offices (DO);

    (5) Financial Crimes Enforcement Network (FinCEN);

    (6) Office of the Inspector General (OIG);

    (7) Internal Revenue Service (IRS);

    (8) Office of the Comptroller of the Currency (OCC);

    (9) Special Inspector General for the Troubled Asset Relief Program (SIGTARP);

    (10) Treasury Inspector General for Tax Administration (TIGTA); or

    (11) United States Mint.

    1002.70 [Amended]
    5. Amend section 1002.70 by— a. Removing “COTR Contracting Technical Officer's Representative” and adding “COR Contracting Officer's Representative” in its place. b. Removing “IPP Internet Payment Platform” and adding “IPP Invoice Processing Platform” in its place.
    PART 1016—TYPES OF CONTRACTS 6. The authority citation for part 1016 is revised to read as follows: Authority:

    41 U.S.C. 1707.

    1016.505 [Amended]
    7. Section 1016.505 is revised to read as follows:
    1016.505 Ordering.

    (b)(8) The HCA shall designate a task and delivery order ombudsman in accordance with bureau procedures and provide a copy of the designation to the agency task and delivery order ombudsman. Bureau task and delivery order ombudsmen shall review complaints from contractors concerning task and delivery orders placed by the contracting activity and ensure they are afforded a fair opportunity to be considered, consistent with the procedures in the contract. In the absence of a designation, the Bureau advocate for competition will serve in that capacity.

    PART 1019—SMALL BUSINESS PROGRAMS 8. The authority citation for part 1019 is revised to read as follows: Authority:

    41 U.S.C. 1707.

    9. Amend section 1019.202-70 by— a. Removing from paragraph (d)(1) the text “List of Parties Excluded from Federal Procurement and Nonprocurement Programs,” and adding “System for Award Management Exclusions,” in its place; b. Adding paragraph (n)(2)(vi). c. Removing from paragraph (p)(1) the text “$500,000 ($1,000,000 for construction)” and adding “$650,000 ($1,500,000 for construction)” in its place; and d. Revising paragraph (p)(2).

    The addition and revision read as follows:

    1019.202-70 The Treasury Mentor Protégé Program.

    (n) * * *

    (2) * * *

    (vi) Protégé firms shall submit a post completion report 24 months after exiting the Mentor-Protégé Program. The post completion report will assist the Department of the Treasury in assessing the progress of Protégé firms upon completion of the program.

    (p) * * *

    (2) Insert the clause at 1052.219-75, Mentor Requirements and Evaluation, in solicitations and contracts where the contractor is a participant in the Treasury Mentor-Protégé Program.

    Subpart 1019.8—Contracting With the Small Business Administration (The 8(a) Program) 10. Revise the heading for subpart 1019.8 to read as set forth above.
    1019.811-3 [Amended]
    11. Amend section 1019.811-3 by— a. Removing from paragraph (d)(3) the citation “1019.8” and adding “FAR 19.8” in its place; and b. Removing from paragraph (f) the citation “1019.8” and adding “FAR 19.8” in its place.
    PART 1028—BONDS AND INSURANCE 12. The authority citation for part 1028 is revised to read as follows: Authority:

    41 U.S.C. 1707.

    1028.307-1 [Amended]
    13. In section 1028.307-1, remove reserved paragraph (b). 14. Revise section 1028.310-70 to read as follows:
    1028.310-70 Agency contract clause for work on a Government installation.

    (a) Insert a clause substantially similar to 1052.228-70, Insurance requirements, in all solicitations and contracts that contain the clause at FAR 52.228-5.

    15. Revise section 1028.311-2 to read as follows:
    1028.311-2 Agency solicitation provisions and contract clauses.

    Insert a clause substantially similar to 1052.228-70, Insurance requirements, in all solicitations and contracts that contain the clause at FAR 52.228-7.

    PART 1032—CONTRACT FINANCING 16. The authority citation for part 1032 is revised to read as follows: Authority:

    41 U.S.C. 1707.

    1032.7002 [Amended]
    17. Amend section 1032.7002 by— a. Removing from paragraph (a) introductory text the words “awarded after October 1, 2012,” and b. Removing from paragraph (c) the words “Treasury Internet Payment Platform” and adding the words “Treasury Invoice Processing Platform” in their place.
    18. Section 1032.7003 is revised to read as follows:
    1032.7003 Contract clause.

    Except as provided in 1032.7002(a), use the clause at 1052.232-7003, Electronic Submission of Payment Requests, in all solicitations and contracts.

    PART 1034—MAJOR SYSTEM ACQUISITION 19. The authority citation for part 1034 is revised to read as follows: Authority:

    41 U.S.C. 1707.

    20. In section 1034.001, add introductory text and remove the definition of “Core Earned Value Management”.

    The addition reads as follows:

    1034.001 Definitions.

    As used in this part—

    Subpart 34.2—[Removed] 21. Remove subpart 34.2. PART 1042—CONTRACT ADMINISTRATION AND AUDIT SERVICES 22. The authority citation for part 1042 is revised to read as follows: Authority:

    41 U.S.C. 1707.

    1042.1500 [Removed and Reserved]
    23. Remove and reserve section 1042.1500.
    PART 1052—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 24. The authority citation for part 1052 is revised to read as follows: Authority:

    41 U.S.C. 1707.

    25. In section 1052.201-70, revise the introductory text and paragraphs (a), (b), (c) introductory text, (c)(6), (d), and (e) to read as follows:
    1052.201-70 Contracting Officer's Representative (COR) appointment and authority.

    As prescribed in 1001.670-6, insert the following clause:

    CONTRACTING OFFICER'S REPRESENTATIVE (COR) APPOINTMENT AND AUTHORITY (APR 2015)

    (a) The COR is ____ [insert name, address and telephone number].

    (b) Performance of work under this contract is subject to the technical direction of the COR identified above, or a representative designated in writing. The term “technical direction” includes, without limitation, direction to the contractor that directs or redirects the labor effort, shifts the work between work areas or locations, and/or fills in details and otherwise serves to ensure that tasks outlined in the work statement are accomplished satisfactorily.

    (c) Technical direction must be within the scope of the contract specification(s)/work statement. The COR does not have authority to issue technical direction that:

    (6) Directs, supervises or otherwise controls the actions of the Contractor's employees.

    (d) Technical direction may be oral or in writing. The COR must confirm oral direction in writing within five workdays, with a copy to the Contracting Officer.

    (e) The Contractor shall proceed promptly with performance resulting from the technical direction issued by the COR. If, in the opinion of the Contractor, any direction of the COR or the designated representative falls within the limitations of (c) above, the Contractor shall immediately notify the Contracting Officer no later than the beginning of the next Government work day.

    26. Revise section 1052.210-70 to read as follows:
    1052.210-70 Contractor publicity.

    As prescribed in 1009.204-70, insert the following clause:

    CONTRACTOR PUBLICITY (APR 2015)

    The Contractor, or any entity or representative acting on behalf of the Contractor, shall not refer to the supplies or services furnished pursuant to the provisions of this contract in any news release or commercial advertising, or in connection with any news release or commercial advertising, without first obtaining explicit written consent to do so from the Contracting Officer. Should any reference to such supplies or services appear in any news release or commercial advertising issued by or on behalf of the Contractor without the required consent, the Government shall consider institution of all remedies available under applicable law, including 31 U.S.C. 333, and this contract. Further, any violation of this clause may be considered as part of the evaluation of past performance.

    (End of clause)
    27. Revise section 1052.228-70 to read as follows:
    1052.228-70 Insurance requirements.

    As prescribed in 1028.310-70 and 1028.311-2, insert a clause substantially as follows: The contracting officer may require additional kinds of insurance (e.g., aircraft public and passenger liability, vessel liability) or higher limits of coverage.

    INSURANCE (APR 2015)

    In accordance with FAR clause 52.228-5, entitled “Insurance—Work on a Government Installation” [or FAR clause 52.228-7 entitled, “Insurance—Liability to Third Persons”], insurance of the following kinds and minimum amounts shall be provided and maintained during the period of performance of this contract:

    (a) Worker's compensation and employer's liability. The Contractor shall, as a minimum, meet the requirements specified at FAR 28.307-2(a).

    (b) General liability. The Contractor shall, at a minimum, meet the requirements specified at FAR 28.307-2(b).

    (c) Automobile liability. The Contractor shall, at a minimum, meet the requirements specified at FAR 28.307-2(c).

    (End of clause)
    28. Revise section 1052.232-7003 to read as follows:
    1052.232-7003 Electronic submission of payment requests.

    As prescribed in 1032.7003, use the following clause:

    ELECTRONIC SUBMISSION OF PAYMENT REQUESTS (APR 2015)

    (a) Definitions. As used in this clause—

    (1) “Payment request” means a bill, voucher, invoice, or request for contract financing payment with associated supporting documentation. The payment request must comply with the requirements identified in FAR 32.905(b), “Content of Invoices” and the applicable Payment clause included in this contract.

    (b) Except as provided in paragraph (c) of this clause, the Contractor shall submit payment requests electronically using the Invoice Processing Platform (IPP). Information regarding IPP, including IPP Customer Support contact information, is available at www.ipp.gov or any successor site.

    (c) The Contractor may submit payment requests using other than IPP only when the Contracting Officer authorizes alternate procedures in writing in accordance with Treasury procedures.

    (d) If alternate payment procedures are authorized, the Contractor shall include a copy of the Contracting Officer's written authorization with each payment request.

    (End of clause)
    1052.234-2 [Removed]
    29. Remove section 1052.234-2.
    1052.234-3 [Removed]
    30. Remove section 1052.234-3.
    1052.234-4 [Removed]
    31. Remove section 1052.234-4.
    1052.234-70 [Removed]
    32. Remove section 1052.234-70.
    1052.234-71 [Removed]
    33. Remove section 1052.234-71.
    1052.234-72 [Removed]
    34. Remove section 1052.234-72.
    Iris B. Cooper, Senior Procurement Executive, Office of the Procurement Executive.
    [FR Doc. 2015-04464 Filed 3-3-15; 8:45 am] BILLING CODE 4810-25-P
    80 42 Wednesday, March 4, 2015 Proposed Rules DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 340 [Docket No. APHIS-2008-0023] RIN 0579-AC31 Importation, Interstate Movement, and Release Into the Environment of Certain Genetically Engineered Organisms AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Proposed rule; withdrawal.

    SUMMARY:

    We are withdrawing a proposed rule that would have amended the regulations regarding the introduction (importation, interstate movement, and environmental release (field testing)) of certain genetically engineered organisms. We are doing this in light of the experience we have gained over the past 28 years, continuing advances in biotechnology, and comments we received on the rule. We will begin a fresh stakeholder engagement aimed at exploring alternative policy approaches. This engagement will begin with a series of webinars that will provide the stakeholder community an opportunity to provide initial feedback. Information on these webinars will be announced in the coming month.

    DATES:

    Effective March 4, 2015, the proposed rule published on October 9, 2008 (73 FR 60008), is withdrawn.

    FOR FURTHER INFORMATION CONTACT:

    Mrs. Chessa Huff-Woodard, Biotechnology Regulatory Services, APHIS, 4700 River Road Unit 146, Riverdale, MD 20737-1236; (301) 8513943.

    SUPPLEMENTARY INFORMATION: Background

    On October 9, 2008, the Animal and Plant Health Inspection Service (APHIS) published in the Federal Register a proposal 1 (73 FR 60008-60048, Docket No. APHIS-2008-0023) to amend the regulations regarding the introduction (importation, interstate movement, and environmental release (field testing)) of certain genetically engineered (GE) organisms in response to advancements in biotechnology and APHIS' accumulated experience in implementing the current regulations. The proposed revisions were extensive and included significant changes to the scope of the regulations and the mechanics of APHIS' regulatory oversight. These changes included aligning the regulations with provisions of the Plant Protection Act (7 U.S.C. 7701 et seq.) and eliminating the current notification and permitting procedures and developing a multiple-category permitting system in its place.

    1 To view the proposed rule, supporting documents, and comments we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2008-0023.

    APHIS sought public comment on the proposal from October 9, 2008, to June 29, 2009. We received over 88,300 comments by the close of the comment period. These were received in 5,580 submissions that included unique comments, form letters, and signatories to petitions. We thoroughly reviewed each comment we received. Comments were from a variety of stakeholders, including advocacy groups; State, Tribal, and foreign governments; university researchers; farmers, businesses, trade associations and other regulated entities; and private citizens. We wish to thank the commenters for sharing their knowledge and views on this important subject.

    Many commenters indicated that the proposed scope and many of the provisions of the rule were unclear. With regard to the scope of the proposed changes, some commenters asserted that APHIS regulations needed to be more rigorous and far-reaching, while others believed that the proposed regulations were overly restrictive. Other commenters indicated that they were not clear as to what would and would not be regulated, and raised concerns regarding what future criteria might be used to determine what organisms would fall under APHIS regulatory jurisdiction. Concerns regarding oversight of crops that produce pharmaceutical and industrial compounds and increased regulatory burden are just a few examples of the complex issues raised by commenters.

    Many commenters also expressed opposition to genetic engineering in general and expressed concerns with a wide range of issues, many of which were outside the scope of the proposed rule. For example, commenters stated that APHIS should consider non-safety based risks, such as economic and social impacts, including impacts on the marketability of non-GE products. Other commenters requested that APHIS regulations include provisions related to the labeling of GE products and raised concerns regarding health effects of GE products and increased pesticide use.

    Based on the experience we have gained over the past 28 years, continuing advances in biotechnology, and the scope of comments received on the proposed rule, we have decided to withdraw it and to begin a fresh stakeholder engagement aimed at exploring alternative policy approaches. Because of rules limiting ex parte2 communications with respect to active rulemakings, publication of the 2008 proposed rule has constrained our ability to talk about alternatives with stakeholders. Withdrawing the proposed rule will lift this constraint and provide for a more timely and transparent dialogue. Once it is withdrawn, the nature of our conversations with stakeholders can change, allowing APHIS to discuss regulatory issues in ways that were not possible while the proposal was in formal rulemaking. Our intention is to utilize an open and robust policy dialogue to drive the development of a forward-looking rule that will provide a foundation for our future regulatory activities.

    2Ex parte rules are designed to prevent unequal access or the perception of favoritism during the active rulemaking period occurring after a new rule is proposed.

    Therefore, we are withdrawing the October 9, 2008, proposed rule. As we explore a full range of policy alternatives, we will consider the comments we received on the proposed rule, as well as new scientific knowledge whenever it is available, and continue to seek the active and open input of stakeholders. In the coming months, we will engage stakeholders on biotechnology regulation alternatives to ensure the safe environmental release (field testing), interstate movement, and importation of certain GE organisms regulated under 7 CFR part 340. Plans for that engagement are underway and will begin with a series of webinars that will provide the stakeholder community an opportunity to provide initial feedback. Information on these webinars will be announced in the coming month and will be available on the APHIS Web site.3 For those interested in additional information in advance of the webinars, this will be one of many topics at an upcoming U.S. Department of Agriculture workshop 4 on coexistence that is being held on March 12-13, 2015, and will be made widely available via webcast.

    3 Information on upcoming webinars will be available at http://www.aphis.usda.gov/wps/portal/aphis/ourfocus/biotechnology/!ut/p/a1/04_Sj9CPykssy0xPLMnMz0vMAfGjzOK9_D2MDJ0MjDzd3V2dDDz93HwCzL29jAyMTIEKIvEo8DYlTr-zu6OHibmPgYGBiYWRgaeLk4eLuaWvgYGnGXH6DXAARwNC-sP1o_AqAfkArACfE8EK8LihIDc0NMIg0xMA5AbGNw!!/?1dmy&urile=wcm%3apath%3a%2Faphis_content_library%2Fsa_our_focus%2Fsa_biotechnology%2Fsa_news%2Fct_news.

    4 Call-in and Webcast information is available at the agricultural coexistence workshop Web page at: http://www.aphis.usda.gov/wps/portal/aphis/newsroom/stakeholder-info/!ut/p/a1/nVFNU4MwEP0tHjxmEkgk4Ug7foBKD9W25MJskyixFChEx_57gem1aN3bzr739u1bLPEGywq-7Ds4W1dQDr0MchYL36fEj8ULFyQi8zBZxCtC6E0PyHoAOVMRGfnJ4sH3Zj3_fhnekjhd3T2LJ04fZwFeY4mlqlzjCpxBU9guV3XlTOXy0m5baIlowbar;XpIMctvWny8f52HcOdqaoS23ablBolNU4CxljRocaBYp6iCnOkdAAiAPVEBiujQcnxxOWfrl4dDyhkPATYCKUrPfAzy5JAry88KjkD3-yH4eDjPq0h3y_Hd78M-5m_7oX9Ih2b2mKZHb1A2VTHxo!/?1dmy&urile=wcm%3apath%3a%2Faphis_content_library%2Fsa_about_aphis%2Fsa_stakeholders%2Fct_coexistence_meeting. A notice announcing the workshop was published on February 3, 2015 (80 FR 5729-5731, Docket No. APHIS-2013-0047).

    Authority:

    7 U.S.C. 7701-7772 and 7781-7786; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.3.

    Done in Washington, DC, this 27th day of February 2015. Kevin Shea, Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2015-04463 Filed 3-3-15; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF ENERGY 10 CFR Part 429 [Docket No. EERE-2013-BT-NOC-0005] Appliance Standards and Rulemaking Federal Advisory Committee: Notice of Open Meeting and Webinar AGENCY:

    Office of Energy Efficiency and Renewable Energy, Department of Energy.

    ACTION:

    Notice of open meeting and webinar.

    SUMMARY:

    This document announces a meeting of the Appliance Standards and Rulemaking Federal Advisory Committee (ASRAC).

    DATES:

    The meeting will be held on Thursday, March 19, 2015 from 9 a.m. to 1 p.m.

    ADDRESSES:

    U.S. Department of Energy, Forrestal Building, Room 8E-089, 1000 Independence Avenue SW., Washington, DC 20585. For individuals that wish to attend by webinar, please register at—https://attendee.gotowebinar.com/register/9166475973377623554. After registering you will receive an email with the appropriate link to join the meeting and the necessary call-in information.

    FOR FURTHER INFORMATION CONTACT:

    John Cymbalsky, ASRAC Designated Federal Officer, U.S. Department of Energy (DOE), Office of Energy Efficiency and Renewable Energy, 950 L'Enfant Plaza SW., Washington, DC, 20024. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Federal Advisory Committee Act, Public Law 92-463, 86 Stat. 770, requires that agencies publish notice of an advisory committee meeting in the Federal Register.

    Purpose of Meeting: To provide advice and recommendations to the Energy Department on the development of standards and test procedures for residential appliances and commercial equipment.

    Tentative Agenda: (Subject to change; final agenda will be posted at http://www.appliancestandards.energy.gov):

    • Discussion of formation of working groups to negotiate proposed rules for commercial and industrial fans and miscellaneous refrigeration products.

    • Discussion of other topics where ASRAC can assist the Appliance and Equipment Standards Program

    • Discussion of public engagement under DOE's retrospective regulatory review plan

    Public Participation: Members of the public are welcome to observe the business of the meeting and, if time allows, may make oral statements during the specified period for public comment. To attend the meeting and/or to make oral statements regarding any of the items on the agenda, email [email protected] In the email, please indicate your name, organization (if appropriate), citizenship, and contact information. Please note that foreign nationals participating in the public meeting are subject to advance security screening procedures which require advance notice prior to attendance at the public meeting. If a foreign national wishes to participate in the public meeting, please inform DOE as soon as possible by contacting Ms. Regina Washington at (202) 586-1214 or by email: [email protected] so that the necessary procedures can be completed. Anyone attending the meeting will be required to present a government photo identification, such as a passport, driver's license, or government identification. Due to the required security screening upon entry, individuals attending should arrive early to allow for the extra time needed.

    Due to the REAL ID Act implemented by the Department of Homeland Security (DHS) recent changes regarding ID requirements for individuals wishing to enter Federal buildings from specific states and U.S. territories. Driver's licenses from the following states or territory will not be accepted for building entry and one of the alternate forms of ID listed below will be required.

    DHS has determined that regular driver's licenses (and ID cards) from the following jurisdictions are not acceptable for entry into DOE facilities: Alaska, Louisiana, New York, American Samoa, Maine, Oklahoma, Arizona, Massachusetts, Washington, and Minnesota.

    Acceptable alternate forms of Photo-ID include: U. S. Passport or Passport Card; An Enhanced Driver's License or Enhanced ID-Card issued by the states of Minnesota, New York or Washington (Enhanced licenses issued by these states are clearly marked Enhanced or Enhanced Driver's License); A military ID or other Federal government issued Photo-ID card.

    Members of the public will be heard in the order in which they sign up for the Public Comment Period. Time allotted per speaker will depend on the number of individuals who wish to speak but will not exceed five minutes. Reasonable provision will be made to include the scheduled oral statements on the agenda. The co-chairs of the Committee will make every effort to hear the views of all interested parties and to facilitate the orderly conduct of business.

    Participation in the meeting is not a prerequisite for submission of written comments. ASRAC invites written comments from all interested parties. Any comments submitted must identify the ASRAC, and provide docket number EERE-2013-BT-NOC-0005. Comments may be submitted using any of the following methods:

    1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

    2. Email: [email protected] Include docket number EERE-2013-BT-NOC-0005 in the subject line of the message.

    3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a compact disc (CD), in which case it is not necessary to include printed copies.

    4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza SW., Suite 600, Washington, DC 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    No telefacsimilies (faxes) will be accepted.

    Docket: The docket is available for review at www.regulations.gov, including Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials. All documents in the docket are listed in the www.regulations.gov index. However, not all documents listed in the index may be publicly available, such as information that is exempt from public disclosure.

    The Secretary of Energy has approved publication of this notice of proposed rulemaking.

    Issued in Washington, DC, on February 25, 2015. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy.
    [FR Doc. 2015-04503 Filed 3-3-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TREASURY Internal Revenue Service 26 CFR Parts 1 and 31 [REG-132253-11] RIN 1545-BL68 Information Returns; Winnings From Bingo, Keno, and Slot Machines AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking and notice of public hearing.

    SUMMARY:

    This document contains proposed regulations under section 6041 regarding the filing of information returns to report winnings from bingo, keno, and slot machine play. The proposed regulations affect persons who pay winnings of $1,200 or more from bingo and slot machine play, $1,500 or more from keno, and recipients of such payments. This document also provides a notice of a public hearing on these proposed regulations.

    DATES:

    Written or electronic comments must be received by June 2, 2015. Outlines of topics to be discussed at the public hearing scheduled for June 17, 2015 at 10 a.m. must be received by June 2, 2015.

    ADDRESSES:

    Send submissions to: CC:PA: LPD:PR (REG-132253-11), Room 5205, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-132253-11), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically, via the Federal eRulemaking Portal at http://www.regulations.gov (IRS REG-132253-11). The public hearing will be held in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC.

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, David Bergman, (202) 317-6844; concerning submissions of comments, the hearing, or to be placed on the building access list to attend the hearing, Oluwafunmilayo P. Taylor (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION: Background

    This document contains proposed regulations to Title 26 of the Code of Federal Regulations under section 6041 of the Internal Revenue Code. The proposed regulations would update and simplify the existing information reporting requirements under § 7.6041-1 of the Temporary Income Tax Regulations under the Tax Reform Act of 1976 for persons who make reportable payments of bingo, keno, or slot machine winnings. The updated requirements are proposed to be set forth in a new § 1.6041-10 of the regulations. Accordingly, when § 1.6041-10 of the proposed regulations becomes final, the regulations under § 7.6041-1 will be removed.

    Section 6041 generally requires information reporting by every person engaged in a trade or business who, in the course of such trade or business, makes payments of gross income of $600 or more in any taxable year. The current regulatory reporting thresholds for winnings from bingo, keno, and slot machines deviate from this general rule. Prior to the adoption of the current thresholds in 1977, reporting from bingo, keno, and slot machines was based a sliding scale threshold tied to the amount of the wager and required the wager odds to be at least 300 to 1. On January 7, 1977, temporary regulation § 7.6041-1 was published establishing reporting thresholds for payments of winnings from bingo, keno, and slot machine play in the amount of $600. In Announcement 77-63, 1977-8 IRB 25, the IRS announced that it would not assert penalties for failure to file information returns before May 1, 1977, to allow the casino industry to submit, and the IRS to consider, information regarding the industry's problems in complying with the reporting requirements. After considering the evidence presented by the casino industry, the IRS announced in a press release that effective May 1, 1977, information reporting to the IRS would be required on payments of winnings of $1,200 or more from a bingo game or a slot machine play, and $1,500 or more from a keno game net of the wager. On June 30, 1977, § 7.6041-1 was amended to raise the reporting thresholds for winnings from a bingo game and slot machine play to $1,200, and the reporting threshold for winnings from a keno game to $1,500.

    Section 7.6041-1(c) provides that bingo, keno, and slot machine winnings are reported on the Form W-2G, “Certain Gambling Winnings.” The payor must provide a copy of the Form W-2G to the payee by January 31 of the year following the year in which the reportable payment is made, and the payor must file the Form W-2G with the IRS by February 28 of the year following the year in which the reportable payment is made. The Form W-2G must include, among other things, the name, address, and taxpayer identification number of the payee and a general description of the two forms of identification used to verify this information.

    Explanation of Provisions

    The current regulations governing information reporting of winnings from bingo, keno, and slot machine play were published in 1977. There have been significant changes in gaming industry technology since that time. For instance, today many gaming establishments employ electronic slot machines and other mechanisms, such as player's cards, that permit electronic tracking of wagers and/or winnings. In addition, there have been many changes in the tax information reporting regime since the late 1970s, such as the enactment of backup withholding and requirements for electronic filing of information returns, including the Form W-2G. Current regulations under § 7.6041-1 of the Temporary Income Tax Regulations do not take these changes into account. Accordingly, the Treasury Department and the IRS think the regulations for reporting winnings from bingo, keno, and slot machine play need to be updated in light of these developments and that there are opportunities to reduce burden and simplify reporting. The changes proposed by this document are intended to accomplish these goals. In addition, the Treasury Department and the IRS specifically request comments on certain topics addressed by the regulations.

    Filing Requirement

    Proposed § 1.6041-10(a) retains the general rule from § 7.6041-1 of the Temporary Income Tax Regulations that every person engaged in a trade or business who, in the course of its trade or business, pays reportable gambling winnings must make an information return with respect to such payments. Proposed § 1.6041-10(a) clarifies that, consistent with current law and as provided in § 1.6041-1(b) of the regulations, the term “persons engaged in a trade or business” includes not only those engaged in a trade or business for profit or gain, but also organizations whose activities are not for profit or gain, such as tax-exempt organizations and governmental entities.

    Proposed § 1.6041-10(b) sets thresholds for when winnings from bingo, keno, and slot machine play will be treated as reportable gambling winnings and subject to reporting. Existing § 7.6041-1(b) of the Temporary Income Tax Regulations sets one threshold for bingo and slots, and a different threshold for keno. In addition, under § 7.6041-1(b) of the Temporary Income Tax Regulations, winnings from a keno game are reduced by the amount wagered in that game in determining whether the reporting threshold is satisfied, whereas for bingo and slot machine play winnings are not reduced by the amount wagered in determining whether the reporting threshold is satisfied.

    Under the proposed regulations, the reporting thresholds for winnings from bingo, keno and slot machine play (other than electronically tracked slot machine play) remain the same as under the existing regulations. These thresholds are intended to reach a balance between reporting burden and compliance risk. Based on over 35 years of experience with the current thresholds, the IRS thinks they are sufficient at this time to verify correct reporting of wagering income. Accordingly, § 1.6041-10(b) of the proposed regulations provides that reportable gambling winnings means (i) $1,200 or more in the case of one bingo game or slot machine play, and (ii) $1,500 or more in the case of one keno game. However, advances in technology in the nearly four decades since the existing rules were adopted may overcome the compliance concerns that prompted the higher reporting thresholds and may warrant reducing the thresholds for bingo, keno, and slots to $600, consistent with other information reporting thresholds under § 6041(a). Accordingly, the IRS and Treasury will continue to monitor the effectiveness of the existing (and proposed) reporting thresholds, and may propose to reduce those thresholds at a future time. Comments are specifically requested regarding the proposed reporting thresholds, including the feasibility of reducing those thresholds to $600 at a future time, whether electronically tracked slot machine play should have a separate reporting threshold, and whether the amounts should be uniform for bingo, keno, and slot machine play.

    In addition, the proposed regulations retain the rule from § 7.6041-1(b) of the Temporary Income Regulations that, in determining whether the reporting threshold is satisfied, the amount of the winnings from bingo or slot machine play is not reduced by the amount wagered, but the amount of winnings from one keno game is reduced by the amount wagered in that one game. Allowing the winnings from one keno game to be reduced by the amount wagered in that one game has been permitted by the regulations for over 35 years. This rule has been relied upon by payors and is an established norm in the gaming industry. The proposed regulations do not permit the winnings from one bingo game or slot machine pull to be reduced by the amount wagered in that one game or pull because the IRS does not have data indicating that this is feasible. Comments are requested regarding whether reportable gambling winnings in the case of bingo and slot machine play (other than electronically tracked slot machine play) should be determined by netting the wager against the winnings as with keno.

    The proposed regulations also include new rules for determining the reporting threshold for electronically tracked slot machine play. Under § 1.6041-10(b)(1) of the proposed regulations, electronically tracked slot machine play means slot machine play where an electronic player system that is controlled by the gaming establishment (such as through the use of a player's card or similar system) records the amount a specific individual won and wagered on slot machine play. The new reporting threshold rules for electronically tracked slot machine play rules are intended to simplify reporting by allowing payors to leverage their existing technology and processes to report winnings from electronically tracked slot machine play. In addition, these changes are intended to facilitate reporting that more closely reflects gross income that will be reported by payees on their individual income tax returns. See Notice 2015-21 for more information on computing gross income attributable to electronically tracked slot machine play. Comments are specifically requested with respect to the definitions of session and electronically tracked slot machine play.

    Under these new rules, gambling winnings for electronically tracked slot machine play must be reported when two criteria are met: (i) The total amount of winnings earned from electronically tracked slot machine play during a single session netted against the total amount of wagers placed on electronically tracked slot machines during the same session is $1,200 or more; and (ii) at least one single win during the session (without regard to the amount wagered) equals or exceeds $1,200. The first criterion helps to implement the safe harbor for computing gross income attributable to electronically tracked slot machine play described in Notice 2015-21. The second criterion is intended to be consistent with the casino industry's current practice of gathering payee information when a player wins a single jackpot that satisfies the reporting threshold. The $1,200 threshold for each criterion is intended to balance reporting burden and compliance risk as discussed previously. Pursuant to § 1.6041-10(b)(3) of the proposed regulations, a session begins when a patron places the first wager on a particular type of game at the payor's gaming establishment and ends when the patron places his or her last wager on the same type of game before the end of the same calendar day at the same establishment. Under this rule, reporting with respect to electronically tracked slot machine play is not required if no single win (without reduction for the amount of the wager) meets the $1,200 reporting threshold or if the net amount of winnings reduced by the amount of all wagers for the session is less than $1,200. However, if the $1,200 reporting threshold for a single win is satisfied and all winnings from electronically tracked slot machine play during a session netted against all wagers on electronically tracked slot machine play during that session are $1,200 or more, gambling winnings for the session must be reported on a Form W-2G.

    Proposed § 1.6041-10(b)(2) also includes several clarifications regarding the definition of reportable gambling winnings. First, the proposed regulations clarify that all winnings from all cards played during one bingo game are combined and that all winnings from all “ways” on a multi-way keno ticket are combined. Second, the proposed regulations clarify that winnings from different types of games are not combined to determine whether the reporting thresholds are satisfied, and that bingo, keno, electronically tracked slot machine play, and slot machine play that is not electronically tracked are all different types of games.

    Proposed § 1.6041-10(b)(4) also adds a definition of the term “slot machine” to these information reporting regulations. Under this definition, a slot machine is a device that, by application of the element of chance, may deliver or entitle the person playing or operating the device to receive cash, premiums, merchandise, or tokens, whether or not the device is operated by inserting a coin, token, or similar object. The definition of slot machine in the proposed regulations is intended to be consistent with § 44.4402-1(b)(1) of the Wagering Tax Regulations.

    Filing and Form and Content of the Information Return

    Proposed § 1.6041-10(d) retains the requirement in § 7.6041-1(c) of the Temporary Income Tax Regulations that a payor of reportable gambling winnings file a Form W-2G, “Certain Gambling Winnings,” or successor form, on or before February 28 (or March 31, if filed electronically) of the year following the calendar year in which the reportable gambling winnings were paid. Outdated references to the place of filing have been replaced with a requirement that the return is filed with the appropriate Internal Revenue Service location designated in the instructions to the form.

    Proposed § 1.6041-10(g) requires a payor of reportable gambling winnings to provide a statement of the reportable gambling winnings to each payee on or before January 31st of the calendar year after the calendar year in which the gambling winnings were paid. Although § 7.6041-1 of the Temporary Income Tax Regulations does not address when to provide statements to the payees, the proposed regulations are a restatement of the requirement to furnish statements to payees in section 6041(d). In addition, proposed § 1.6041-10(i) clarifies that the rules for reporting winnings from bingo, keno, and slot machine play under proposed § 1.6041-10 do not apply to payments made to foreign persons. Instead, gambling winnings paid to a foreign person are generally subject to 30 percent withholding under sections 1441(a) and 1442(a) and are reportable on Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons, and Form 1042-S, Foreign Person's U.S. Source Income Subject to Withholding. Proposed § 1.6041-10(e) retains the rules in § 7.6041-1(c) of the Temporary Regulations regarding the information that is required on the return, including the requirement that the payor describe on the return the two types of identification relied on to verify the payee's identity. However, proposed § 1.6041-10(e) now requires that one of the forms of identification include the payee's photograph to ensure that certain safeguards are in place to properly identify the payee. In addition, under proposed § 1.6041-10(f), the type of identification that is acceptable has been expanded.

    Payee Identification

    Section 7.6041-1(c)(3) of the Temporary Income Tax Regulations, which has been in place since 1977, provides that the identification verifying the payee's identity must include the payee's social security number. According to those regulations, examples of acceptable identification include a driver's license, a social security card, or a voter registration card. However, today most forms of identification do not include a person's social security number. Therefore, many payees do not have identification that contains the payee's social security number and, even if they do, they may not have this identification with them at the time that they receive a payment of reportable gambling winnings. To address this issue, § 1.6041-10(f) of the proposed regulations provides that, in addition to government-issued identification, a properly completed Form W-9 signed by the payee is an acceptable form of identification to verify the payee's identifying information. This rule is consistent with procedures currently used by many payors to address the fact that most forms of identification do not contain social security numbers. Accordingly, payors who verify payee information using identification set forth in proposed § 1.6041-10(f) before the date that final regulations implementing these provisions are published in the Federal Register will be treated as meeting the requirements of § 7.6041-1(c) of the Temporary Income Tax Regulations.

    Aggregate Reporting Method

    Proposed § 1.6041-10(h) provides an alternative method for reporting multiple winnings from bingo, keno, and slots. Under current regulations, each payment of gambling winnings from a single bingo or keno game, or slot machine play that meets the reporting threshold is required to be reported on a Form W-2G to the same payee. To simplify reporting, proposed § 1.6041-10(h) would allow a payor who makes more than one payment of reportable gambling winnings to the same payee from the same type of game during the same session to report the aggregate amount of such reportable gambling winnings on one Form W-2G. This aggregate reporting method may be used at the payor's option. Proposed § 1.6041-10(h)(3) sets forth certain recordkeeping requirements for a payor using the aggregate reporting method.

    Gambling Winnings Other Than Bingo, Keno, and Slot Machine Play

    These proposed regulations apply to reporting of gambling winnings from bingo, keno, and slot machine play. The Treasury Department and the IRS are aware that taxpayers required to report winnings from pari-mutuel gambling may have concerns, similar to those addressed in these proposed regulations, relating to when wagers with respect to horse races, dog races, and jai alai may be treated as identical. Identical wagers are combined and offset against winnings to determine proceeds from the wager for purposes of determining whether the reporting thresholds are satisfied. The Treasury Department and the IRS intend to amend the regulations under § 31.3402(q)-1 in a manner consistent with these proposed regulations and request comments from the public on this topic. In addition, comments are requested regarding whether the aggregate reporting method should be available for gambling winnings other than winnings from bingo, keno, and slot machine play.

    Proposed Effective/Applicability Date

    These regulations are proposed to apply to payments made on or after the date of publication of the Treasury decision adopting these rules as final regulations in the Federal Register.

    Special Analyses

    It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that this rule merely provides guidance as to the timing and filing of information reporting returns for payors who make reportable payments of bingo, keno, or slot machine winnings and who are required by section 6041 to make returns reporting those payments. The requirement for payors to make information returns is imposed by statute and not these regulations. In addition, this rule is reducing the existing burden on payors to comply with the statutory requirement by simplifying the process for payors to verify payees' identities using a broader range of documents that are more readily available and also by allowing payors to reduce the number of information returns they issue if they adopt the new aggregate reporting methodology in the regulations. Therefore, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. Chapter 6) is not required. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

    Comments and Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. In addition to the requests for comments noted in the Background Section, Treasury and the IRS request comments on any other aspects of the proposed rules, and any other issues relating to the payment of bingo, keno, and slot machine winnings that are not addressed in the proposed regulations. All comments will be available at www.regulations.gov for public inspection and copying.

    A public hearing has been scheduled for June 17, 2015, beginning at 10 a.m. in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

    The rules of § 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit electronic or written comments and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) and an outline of the topics to be discussed and the time to be devoted to each topic by June 2, 2015. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

    Drafting Information

    The principal author of these proposed regulations is Charles W. Gorham, formerly of the Office of the Associate Chief Counsel (Procedure and Administration).

    List of Subjects 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    26 CFR Part 31

    Employment Taxes and Collection of Income Tax at Source.

    Proposed Amendment to the Regulations

    Accordingly, 26 CFR parts 1 and 31 are proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 7805* * *

    Par. 2. Section 1.6041-10 is added to read as follows:
    § 1.6041-10 Return of information as to payments of winnings from bingo, keno, and slot machine play.

    (a) In general. Every person engaged in a trade or business (as defined in § 1.6041-1(b)) and who, in the course of such trade or business, makes a payment of reportable gambling winnings (defined in paragraph (b)(2) of this section) must make an information return with respect to such payment. Unless the provisions of paragraph (h) of this section (regarding aggregate reporting) apply, a separate information return is required with respect to each payment of reportable gambling winnings.

    (b) Definitions—(1) Electronically tracked slot machine play. For purposes of this section, the term “electronically tracked slot machine play” means slot machine play using an electronic player system that is controlled by the gaming establishment (such as through the use of a player's card or similar system) that records the amount a specific individual won and wagered on slot machine play.

    (2) Reportable gambling winnings. (i) For purposes of this section, the term “reportable gambling winnings” is defined as follows:

    (A) For bingo, the term “reportable gambling winnings” means winnings of $1,200 or more from one bingo game, without reduction for the amount wagered. All winnings received from all wagers made during one bingo game are combined (for example, all winnings from all cards played during one bingo game are combined).

    (B) For keno, the term “reportable gambling winnings” means winnings of $1,500 or more from one keno game reduced by the amount wagered on the same keno game. All winnings received from all wagers made during one keno game are combined (for example, all winnings from all “ways” on a multi-way keno ticket are combined).

    (C) For slot machine play (other than electronically tracked slot machine play as defined in paragraph (b)(1) of this section), the term “reportable gambling winnings” means winnings of $1,200 or more from one slot machine play, without reduction for the amount wagered.

    (D) For electronically tracked slot machine play (as defined in (b)(1) of this section), the term “reportable gambling winnings” means net winnings of $1,200 or more, but only if the winnings from at least one electronically tracked slot machine play during the session, without reduction for any amount wagered, is $1,200 or more. For purposes of this paragraph (b)(2)(i)(D) of this section, net winnings is determined by combining the amount of all winnings from all electronically tracked slot machine play during the session reduced by the amount of all wagers from all electronically tracked slot machine play during the same session.

    (ii) Winnings and wagers from different types of games are not combined to determine if the reporting threshold is satisfied. Bingo, keno, and slot machine play are different types of games. Electronically tracked slot machine play and slot machine play that is not electronically tracked are different types of games.

    (iii) Winnings include the fair market value of a payment in any medium other than cash.

    (iv) The amount wagered in the case of a free play is zero.

    (v) For purposes of paragraph (b)(2)(i)(D) of this section, with respect to electronically tracked slot machine play, if the amount wagered during a session exceeds the amount won during the same session, the amount of winnings is zero.

    (3) Session. For purposes of this section, a session of play begins when a patron places the first wager on a particular type of game at a gaming establishment and ends when the patron places his or her last wager on the same type of game before the end of the same calendar day at the same gaming establishment. For purposes of this section, the time is determined by the time zone of the location where the patron places the wager. A session of play is always determined with reference to a calendar day (24-hour period from 12 a.m. through 11:59 p.m.) and ends no later than the end of that calendar day. Nothing in this section prohibits a payor from terminating a session for any reason before the end of that calendar day.

    (4) Slot machine. The term “slot machine” means a device that, by application of the element of chance, may deliver, or entitle the person playing or operating the device to receive cash, premiums, merchandise, or tokens whether or not the device is operated by insertion of a coin, token, or similar object.

    (c) Examples. The following examples illustrate the provisions of paragraphs (a) and (b) of this section:

    Example 1.

    At 10 a.m., A wagers $20 at casino R on one play on a slot machine that is not electronically tracked. A wins $1,200 from this wager. At 2 p.m. on the same day, A wagers $100 on one keno game at casino R. A wins $1,550 from that wager. A makes no other wagers that day:

    (i) Under paragraph (b)(2)(i)(C) of this section, A's $1,200 in winnings from slot machine play that is not electronically tracked are not reduced by the amount wagered. Therefore, the $1,200 winnings from slot machine play that is not electronically tracked are reportable gambling winnings. R must report the $1,200 in winnings from slot machine play that it pays to A.

    (ii) Under paragraph (b)(2)(ii) of this section, because winnings from different types of games are not combined to determine whether the threshold for reportable gambling winnings is satisfied, A's winnings from slot machine play that is not electronically tracked are not combined with A's winnings from keno. A's winnings from keno are below the $1,500 reporting threshold for keno, because the gross amount of $1,550 that A won is reduced by the $100 amount that A wagered. R is therefore not required to report the winnings from keno that it pays to A under paragraph (b)(2)(i)(B) of this section.

    Example 2.

    Between 11 a.m. and 11 p.m. on the same day, B places five wagers of $20 each at casino Q on slot machine play that is not electronically tracked. B wins a total of $1,600 during that period of time as follows: an $800 win on the first play, no win on the second play, no win on the third play, a $600 win on the fourth play, and a $200 win on the fifth play. Under paragraph (b)(2)(i)(C) of this section, winnings from slot machine play that is not electronically tracked are not combined to determine whether the reporting threshold is satisfied. Therefore, none of B's winnings is a reportable gambling winning and Q is not required to report winnings from slot machine play that it pays to B.

    Example 3.

    During one session at casino R, C places two $20 wagers on one electronically tracked slot machine and three $20 wagers on a different electronically tracked slot machine. The first four wagers result in no wins. The fifth wager results in a win of $2,000. C makes no further wagers on any games at R during the same session. C's combined winnings for the session ($2,000) reduced by C's combined wagers for the session ($100) is $1,900, which is over the $1,200 threshold described in paragraph (b)(2)(i)(D) of this section. In addition, C had one win in the same session of $1,200 or more ($2,000 win). Therefore, under paragraph (b)(2)(i)(D) of this section, R paid reportable gambling winnings with respect to electronically tracked slot machine play of $1,900. Accordingly, R must report the winnings of $1,900 that it paid to C.

    Example 4.

    Assume the same facts as in Example 3, except that the fourth wager results in an $800 win and the fifth wager results in a $1,000 win. C's combined winnings for the session of $1,800 ($800 + $1,000) reduced by C's combined wagers placed during the session of $100 is $1,700. However, C did not have a single win during that session of $1,200 or more, as required under paragraph (b)(2)(i)(D) of this section, for there to be reportable gambling winnings from electronically tracked slot machine play. Accordingly, R is not required to report the winnings from the session from electronically tracked slot machine play that it pays to C.

    Example 5.

    During one session, D places ten $200 wagers on electronically tracked slot machine play at casino S. The first nine wagers result in no wins. The last wager results in a $1,500 win. D's combined winnings for the session ($1,500) reduced by D's combined wagers placed during the session ($2,000) did not result in any net winnings from electronically tracked slot machine play during the session. Under paragraph (b)(2)(i)(D) of this section, gambling winnings from a session of electronically tracked slot machine play are not reportable gambling winnings unless they include a single win of $1,200 or more and the net amount of all winnings during the session reduced by all wagers placed during the session is $1,200 or more. Here, there was a single win of $1,500, which exceeds the threshold for a single win under paragraph (b)(2)(i)(D) of this section. However, because the net amount of the winnings reduced by all the wagers placed during the session is not $1,200 or more, paragraph (b)(2)(i)(D) of this section is not satisfied. Therefore, during the session, D did not have reportable gambling winnings with respect to electronically tracked slot machine play during the session and S is not required to report the winnings it pays D with respect to electronically tracked slot machine play during this session.

    Example 6.

    During one session, E places five $20 wagers at casino T on slot machine play that is not electronically tracked. The first four wagers result in no wins. The fifth wager results in a win of $1,200. During the same session, E also places five $20 wagers at casino T on slot machine play that is electronically tracked. The first four wagers result in no wins. The fifth wager results in a win of $1,400. E makes no wagers on any other games at T during that session. Under paragraph (b)(2)(ii) of this section, winnings from slot machine play that is not electronically tracked and winnings from electronically tracked slot machine play are not combined. However, even without combining the winnings from both types of slot machine play, T paid reportable gambling winnings with respect to both the slot machine play that is not electronically tracked, and electronically tracked slot machine play as follows:

    (i) Under paragraph (b)(2)(i)(C) of this section, E's $1,200 of winnings from slot machine play that is not electronically tracked is not reduced by the amount wagered, even though all of E's wagers were placed during the same session. Accordingly, the $1,200 of winnings from slot machine play that is not electronically tracked meets the threshold in paragraph (b)(2)(i)(C) of this section and T must report the $1,200 in winnings from slot machine play that is not electronically tracked that it pays to E.

    (ii) Because E's combined winnings from electronically tracked slot machine play during the session ($1,400) reduced by E's combined wagers on electronically tracked slot machine play placed during the session ($100) is $1,200 or more ($1,400 − $100 = $1,300) and E had at least one win during the same session of $1,200 or more (a win of $1,400), under paragraph (b)(2)(i)(D) of this section, T paid E reportable gambling winnings with respect to electronically tracked slot machine play. Accordingly, T must also report winnings from the electronically tracked slot machine play during the session of $1,300 that it pays to E.

    Example 7.

    During the same session, F makes five $20 wagers at casino V on slot machine play that is electronically tracked on the same slot machine. The first three wagers result in no wins. The fourth wager results in a win of $900. The fifth wager results in a win of $1,100. After the fifth wager, F uses free play to make a wager. The free play wager occurs during the same session as the five wagers and is also electronically tracked. As a result of the free play, F wins $1,200. In this case, there are reportable gambling winnings from electronically tracked slot machine play. Under paragraph (b)(2)(i)(D) of this section, F's combined winnings from electronically tracked slot machine play during the session ($3,200) reduced by F's combined wagers placed on electronically tracked slot machine play during the session (($20 × 5) + 0 = $100) is $3,100, and F had at least one win in the same session of $1,200 or more (a win of $1,200 from the free play). Accordingly, V must report the $3,100 of winnings from the electronically tracked slot machine play during the session that it pays to F.

    Example 8.

    Between 11 p.m. and 11:59 p.m. on Day 1, G makes five $20 wagers at casino W on slot machine play that is electronically tracked. The first four wagers placed on Day 1 result in no wins. The fifth wager placed on Day 1 results in an $800 win. Between 12:00 a.m. and 12:15 a.m. on Day 2, G makes two $20 wagers on the same slot machine at casino W that is electronically tracked. The first wager placed on Day 2 results in a win of $600. The second wager placed on Day 2 results in a win of $900.

    (i) Under paragraphs (b)(2)(i)(D) and (b)(3) of this section, the winnings from one session of electronically tracked slot machine play are not combined with the winnings from another session of electronically tracked slot machine play for purposes of determining reportable gambling winnings. In this case, G engaged in electronically tracked slot machine play during two sessions, even though he played the same type of game on the same machine at the same gambling establishment. Therefore, each session must be analyzed to determine whether there were reportable gambling winnings from electronically tracked slot machine play.

    (ii) During the session on Day 1, G won $800. Because no single win was $1,200 or more on Day 1, there were no reportable gambling winnings from electronically tracked slot machine play on Day 1 under paragraph (b)(2)(i)(D) of this section, and W does not have to report the winnings from electronically tracked slot machine play on Day 1 that it paid to G.

    (iii) During the session on Day 2, G won $600 and $900. Because no single win was $1,200 or more on Day 2, there were no reportable gambling winnings from electronically tracked slot machine play on Day 2 under paragraph (b)(2)(i)(D) of this section, and W does not have to report the winnings from electronically tracked slot machine play on Day 2 that it paid to G.

    (d) Prescribed form; time and place for filing the return. The return described in paragraph (a) of this section is a Form W-2G, “Certain Gambling Winnings” or successor form. The Form W-2G must be filed with the appropriate Internal Revenue Service location designated in the instructions to the form on or before February 28 (March 31, if filed electronically) of the year following the calendar year in which the reportable gambling winnings were paid. See section 6011 and § 1.6011-2 for requirements to file electronically.

    (e) Information included on the return. Each return required by paragraph (a) of this section must contain:

    (1) The name, address, and taxpayer identification number of the payor;

    (2) The name, address, and taxpayer identification number of the payee;

    (3) A general description of the two types of identification (as described in paragraph (f) of this section), one of which must have the payee's photograph on it, that the payor relied on to verify the payee's name, address, and taxpayer identification number;

    (4) The date and amount of payment;

    (5) The type of wagering transaction (bingo, keno, slot machine play, or electronically tracked slot machine play);

    (6) In the case of a bingo or keno game, any number, color, or other designation assigned to the game for which the payment is made;

    (7) In the case of slot machine play (including electronically tracked slot machine play), the identification number of the slot machine(s) (for example, location and asset number);

    (8) Any other information required by the form, instructions, revenue procedure, or other applicable guidance published in the Internal Revenue Bulletin. In the case of aggregate reporting under paragraph (h) of this section, the amount of the payment in paragraphs (e)(4) is the aggregate amount of payments of reportable gambling winnings from the same type of game (bingo, keno, slot machine play, or electronically tracked slot machine play) made to the same payee during the same session (as defined in paragraph (b)(3) of this section). Unless otherwise provided in forms, instructions, or other guidance, in the case of aggregate reporting under paragraph (h) of this section the information required by paragraphs (e)(5), (6), (7) of this section, and this paragraph (e)(8) must be maintained by the payor as described in paragraph (h)(3) of this section.

    (f) Identification. The following items are treated as identification for purposes of paragraph (e)(3) of this section—

    (1) Government-issued identification (for example, a driver's license, passport, social security card, military identification card, or voter registration card) in the name of the payee; and

    (2) A Form W-9, “Request for Taxpayer Identification Number and Certification,” signed by the payee, that includes the payee's name, address, taxpayer identification number, and other information required by the form. A Form W-9 is not acceptable for this purpose if the payee has modified the form (other than pursuant to instructions to the form) or if the payee has deleted the jurat or other similar provisions by which the payee certifies or affirms the correctness of the statements contained on the form.

    (g) Furnishing a statement to the payee. Every payor required to make a return under paragraph (a) of this section must also make and furnish to each payee, with respect to each payment of reportable gambling winnings, a written statement that contains the information that is required to be included on the return under paragraph (e) of this section. The payor must furnish the statement to the payee on or before January 31st of the year following the calendar year in which payment of the reportable gambling winnings is made. The statement will be considered furnished to the payee if it is provided to the payee at the time of payment or if it is mailed to the payee on or before January 31st of the year following the calendar year in which payment was made.

    (h) Aggregate reporting of bingo, keno, and slot machine winnings—(1) In general. In lieu of filing a separate information return for each payment of reportable gambling winnings as required by paragraph (a) of this section, a payor may use the aggregate reporting method (defined in paragraph (h)(2) of this section) to report reportable gambling winnings from bingo, keno, or slot machine play (including electronically tracked slot machine play). A payor using the aggregate reporting method to file information returns under paragraph (a) of this section must also furnish statements to the payee under paragraph (g) of this section using the aggregate reporting method.

    (2) Aggregate reporting method defined. (i) The aggregate reporting method is a method of reporting more than one payment of reportable gambling winnings from the same type of game (bingo, keno, slot machine play, or electronically tracked slot machine play) made to the same payee during the same session (as defined in this paragraph (b)(3) of this section) on one information return or statement.

    (ii) A payor may use the aggregate reporting method for payments to some payees and not others, at its own discretion. In addition, with respect to a single payee, the payor may use the aggregate reporting method to report winnings from one type of game, but not for winnings from another type of game.

    (iii) Failure to report some reportable gambling winnings from a particular type of game during one session to a particular payee under the aggregate reporting method (for whatever reason, including because the winnings are not permitted to be reported using the aggregate reporting method under paragraph (h)(4) of this section) will not disqualify the payor from using the aggregate reporting method to report other reportable gambling winnings from that type of game during that session to that payee.

    (3) Recordkeeping under the aggregate reporting method. A payor using the aggregate reporting method must maintain a record of every payment of reportable gambling winnings from the same type of game made to the same payee during the session that will be reported using the aggregate reporting method. Every individual that the payor has determined is responsible for an entry in the record must confirm the information in the entry by signing the record in a manner that will enable the signature to be associated with the relevant entry. Each payment of a reportable gambling winning made to the same payee and reported under the aggregate reporting method must have its own entry in the record, however, the information required by paragraphs (e)(1), (2), and (3) of this section is not required to be recorded more than one time per session. A payor that uses the aggregate reporting method must retain a copy of the record in its files. The record (which may be electronic provided the requirements set forth in forms, instructions, or guidance published in the Internal Revenue Bulletin are met) must include the following information about each payment:

    (i) The payee's signature confirming the information in the record;

    (ii) The information required under paragraph (e) of this section;

    (iii) The time of the win resulting in the reportable gambling winnings;

    (iv) Except in the case of electronically tracked slot machine play, the total amount of reportable gambling winnings;

    (v) In the case of electronically tracked slot machine play—

    (A) The total amount of the winnings during the session from electronically tracked slot machine play; and

    (B) The total amount of the wagers placed during the session on electronically tracked slot machine play;

    (vi) The amount of reportable gambling winnings;

    (vii) The method of payment to the payee (for example, cash, check, voucher, token, or chips); and

    (viii) The name and gaming license number of the individual that the payor has determined is responsible for ensuring that the entry with respect to the reportable gambling winnings (including the general description of two types of identification used to verify the payee's name, address, and taxpayer identification number) is complete and accurate. Such individual may or may not be the same individual who prepared the entry.

    (4) When the aggregate reporting method may not be used. A payor cannot use the aggregate reporting method if—

    (i) The payee is a foreign person;

    (ii) The payor knows or has reason to know that the person making the wager is not the person entitled to the winnings or is not the only person entitled to the winnings (regardless of whether the person making the wager furnishes a Form 5754, “Statement by Person(s) Receiving Gambling Winnings,” or successor form); or

    (iii) Backup withholding under section 3406(a) applies to the payment.

    (5) Examples. The following examples illustrate the provisions of this paragraph (h):

    Example 1.

    On Day 1, C places five wagers at casino R on five different slot machines that are not electronically tracked. The first two wagers result in no win. The third wager results in a $1,500 win. The fourth wager results in a $2,500 win. The fifth wager results in an $800 win:

    (i) Under paragraph (b)(2)(i)(C) of this section, there are reportable gambling winnings from the slot machine play that is not electronically tracked of $4,000 ($1,500 + $2,500). The $800 win is not a reportable gambling winning from slot machine play that is not electronically tracked because it does not equal or exceed the $1,200 threshold.

    (ii) Because all of the amounts were won on the same type of game (even though each of the winnings occurred on different machines) during the same session, R is permitted to use the aggregate reporting method under this paragraph (h). If R decides not to use the aggregate reporting method and meets the requirements of paragraph (h), a separate Form W-2G would have to be filed and furnished for the payment of reportable gambling winnings of $1,500 and for the payment of reportable gambling winnings of $2,500. However, if R decides to use the aggregate reporting method, R may report total reportable gambling winnings from slot machine play that is not electronically tracked of $4,000 ($1,500 + $2,500) on one Form W-2G.

    Example 2.

    Assume the same facts as Example 1, except that in addition to the winnings described in Example 1, at 1 a.m. on Day 2, C wins $3,250 from one slot machine play that is not electronically tracked at casino R. Even though C played the same type of game (slot machines that are not electronically tracked) on Day 1 and Day 2, because under paragraph (b)(3) of this section the win at 1 a.m. on Day 2 is a win during a new session, under paragraph (h)(2)(i) of this section the $3,250 of reportable gambling winnings cannot be aggregated with the reportable gambling winnings of $4,000 from Day 1 on a single Form W-2G. Accordingly, if R uses the aggregate reporting method, R must file two Forms W-2G with respect to C's reportable gambling winnings on Day 1 and Day 2. R must report $4,000 of reportable gambling winnings from slot machine play paid to C on Day 1 on the first Form W-2G, and $3,250 of reportable gambling winnings from slot machine play paid to C on Day 2 on the second Form W-2G.

    Example 3.

    At 2 p.m. on Day 1, D won $2,000 (after reducing the amount of the win by the amount wagered) playing one keno game at casino S. D provides S with his driver's license. The driver's license has D's photograph on it, as well as D's name and address. The driver's license does not include D's social security number. D cannot remember his social security number and has no other identification at the time with his social security number on it. D does not provide S with his social security number before S pays the winnings to D. Because D cannot remember his social security number, D cannot complete and sign a Form W-9. S deducts and withholds $560 (28 percent of $2,000) under the backup withholding provisions of section 3406(a) and pays the remaining $1,440 in winnings to D. D returns to casino S and at 6 p.m. on Day 1 wins $1,500 (after reducing the amount of the win by the amount wagered) in one keno game. D provides S with his driver's license as well as D's social security card. S generally uses the aggregate reporting method and in all cases where it is used, S complies with the requirements of this paragraph (h). At 8 p.m. and 10 p.m. on Day 1, D wins an additional $1,800 and $1,700 (after reducing the amount of the win by the amount wagered), respectively, from two different keno games. For each of these two wins, an employee of S obtains the information from D required by this paragraph (h):

    (i) Under paragraph (b)(2)(i)(B) of this section, each of D's wins from the four games of keno on Day 1 ($2,000, $1,500, $1,700, and $1,800) are reportable gambling winnings. Because D's first win on Day 1 was at 2 p.m. and D's last win on Day 1 was at 10 p.m., all of D's reportable gambling winnings from keno are won during the same session. Because S satisfies the requirements of paragraph (h)(2)(i), S may use the aggregate reporting method to report D's reportable gambling winnings from keno. However, pursuant to paragraph (h)(4)(iii) of this section, the $2,000 payment made to D at 2 p.m. cannot be reported under the aggregate reporting method because that payment was subject to backup withholding. Accordingly, if S uses the aggregate reporting method under this paragraph (h), S will have to file two Forms W-2G with respect to D's reportable gambling winnings from keno on Day 1. On the first Form W-2G, S will report $2,000 of reportable gambling winnings and $560 of backup withholding with respect to the 2 p.m. win from keno, and on the second Form W-2G S will report $5,000 of reportable gambling winnings from keno (representing the three payments of $1,500, $1,700, and $1,800 that D won between 6 p.m. and 10 p.m. on Day 1).

    Example 4.

    In one session on Day 1, E won five reportable gambling winnings from five different bingo games at a casino T. T generally uses the aggregate reporting method and in all cases where it is used, T complies with the requirements of this paragraph (h). Although E signed the entry in the record T maintains for payment of the first four reportable gambling winnings, E refuses to sign the entry in the record for the fifth payment of reportable gambling winnings. T may use the aggregate reporting method for the first four payments of reportable gambling winnings to E. However, because the entry in the record for the fifth payment of reportable gambling winnings does not include E's signature, that payment may not be reported under the aggregate reporting method. Accordingly, if T uses the aggregate reporting method under paragraph (h) of this section, T must prepare two Forms W-2G as follows: On the first Form W-2G, T must report the first four payments of reportable gambling winnings from bingo made to E on Day 1. On the second Form W-2G, T must report the fifth payment of reportable gambling winnings from bingo made to E on Day 1.

    (i) Payments to foreign persons. See § 1.6041-4 regarding payments to foreign persons. See § 1.6049-5(d) for determining whether the payee is a foreign person.

    (j) Effective/applicability date. This section applies to payments of reportable gambling winnings from bingo, keno, slot machine play, and electronically tracked slot machine play made on or after the date these regulations are published as final regulations in the Federal Register. For payments made before that date, other than payments from electronically tracked slot machine play, payors may rely on the provisions of these proposed regulations.

    PART 31—EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE Par. 3. The authority citation for part 31 continues to read in part as follows:

    26 U.S.C. 7805 * * *

    § 31.3406(g)-2 [Amended]
    Par. 4. In § 31.3406(g)-2, paragraph (d)(3) is amended by removing the text “§ 7.6041-1” and adding the text “§ 1.6041-10” in its place. John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2015-04437 Filed 3-3-15; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2015-0024] RIN 1625-AA00 Safety Zone; Rotary Club of Fort Lauderdale New River Raft Race, New River; Fort Lauderdale, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a temporary safety zone on the waters of the New River in Fort Lauderdale, Florida during the Rotary Club of Fort Lauderdale New River Raft Race, on Saturday, April 18, 2015. The safety zone will encompass the waters between Esplanade Park to just east of the Southeast 3rd Avenue Bridge. Approximately 100 participants will attend the race. The safety zone is necessary to ensure the safety of the participants, participant vessels, and the general public during the event. Persons and vessels, except those participating in the event, are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Miami or a designated representative.

    DATES:

    Comments and related material must be received by the Coast Guard on or before April 3, 2015.

    Requests for public meetings must be received by the Coast Guard on or before April 3, 2015.

    ADDRESSES:

    You may submit comments identified by docket number using any one of the following methods:

    (1) Federal eRulemaking Portal: http://www.regulations.gov.

    (2) Fax: 202-493-2251.

    (3) Mail or Delivery: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001. Deliveries accepted between 9 a.m. and 5 p.m., Monday through Friday, except federal holidays. The telephone number is 202-366-9329.

    See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for further instructions on submitting comments. To avoid duplication, please use only one of these three methods.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer John K. Jennings, Sector Miami Prevention Department, Coast Guard; telephone (305) 535-4317, email [email protected] If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone (202) 366-9826.

    SUPPLEMENTARY INFORMATION: Table of Acronyms DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking A. Public Participation and Request for Comments

    We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

    1. Submitting Comments

    If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online at http://www.regulations.gov, or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

    To submit your comment online, go to http://www.regulations.gov, type the docket number USCG-2015-0024 in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

    If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

    2. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2015-0024) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    3. Privacy Act

    Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

    4. Public Meeting

    We do not now plan to hold a public meeting. But you may submit a request for one, using one of the methods specified under ADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

    B. Regulatory History and Information

    Previously, a rule regarding this maritime event was published in the Code of Federal Regulations at 33 CFR part 100. No final rule has been published in regards to this event.

    C. Basis and Purpose

    The legal basis for the rule is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195 33 CFR 1.05-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1. The purpose of the rule is to provide for the safety of life on navigable waters of the United States during the Rotary Club of Fort Lauderdale New River Raft Race.

    D. Discussion of Proposed Rule

    On April 18, 2015, Fort Lauderdale Rotary Club is hosting the Rotary Club of Fort Lauderdale New River Raft Race. The race will be held on the waters of the New River in Fort Lauderdale, Florida. Approximately 100 participants will attend the race. Minimal spectator vessels are expected.

    The proposed rule will establish a safety zone that will encompass certain navigable waters of the New River in Fort Lauderdale, Florida from Esplanade Park to east of the Southeast 3rd Avenue Bridge. The safety zone will be enforced from 3 p.m. until 6 p.m. on April 18, 2015.

    Non-participant persons and vessels may request authorization to enter, transit through, anchor in, or remain within the event area by contacting the Captain of the Port Miami by telephone at 305-535-4472, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the event area is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

    E. Regulatory Analyses

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

    1. Regulatory Planning and Review

    This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The economic impact of this proposed rule is not significant for the following reasons: (1) The safety zone will be enforced for only three hours; (2) although non-participant persons and vessels will not be able to enter, transit through, anchor in, or remain within the event area without authorization from the Captain of the Port Miami or a designated representative, they may operate in the surrounding area during the enforcement period; (3) non-participant persons and vessels may still enter, transit through, anchor in, or remain within the event area during the enforcement period if authorized by the Captain of the Port Miami or a designated representative; and (4) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.

    2. Impact on Small Entities

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

    This rulemaking may affect the following entities, some of which may be small entities: The owners or operators of vessels intending to enter, transit through, anchor in, or remain within that portion of Biscayne Bay encompassed within the safety zone from 3 p.m. until 6 p.m. on April 18, 2015. For the reasons discussed in the Regulatory Planning and Review section above, this rulemaking will not have a significant economic impact on a substantial number of small entities.

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

    3. Assistance for Small Entities

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

    4. Collection of Information

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

    5. Federalism

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rulemaking does not have implications for federalism.

    6. Protest Activities

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

    7. Unfunded Mandates Reform Act

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

    8. Taking of Private Property

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

    9. Civil Justice Reform

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

    10. Protection of Children From Environmental Health Risks

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

    11. Indian Tribal Governments

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

    12. Energy Effects

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

    13. Technical Standards

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

    14. Environment

    We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the creation of a special local regulation issued in conjunction with a regatta or marine parade. This rulemaking is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. Preliminary environmental analysis checklists supporting this determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, and Waterways.

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

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

    33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

    2. Add a temporary § 165.T07-0024 to read as follows: § 165.T07-0024 Safety Zone; Rotary Club of Fort Lauderdale New River Raft Race, New River, Fort Lauderdale, FL.

    (a) Regulated Area. The following regulated area is a safety zone. All waters of the New River between Esplanade Park east to just east of the Southeast 3rd Avenue Bridge, contained within the following points: starting at Point 1 in position 26°07′10″ N, 80°08′52″ W; thence southeast to Point 2 in position 26°07′05″ N, 80°08′34″ W; thence southwest to Point 3 in position 26°07′04″ N, 80°08′35″ W thence northwest to Point 4 in position 26°07′08″ N, 80°08′52″ W; thence north back to origin. All coordinates are North American Datum 1983.

    (b) Definition. The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Miami in the enforcement of the regulated area.

    (c) Regulations.

    (1) Non-participant persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by Captain of the Port Miami or a designated representative. Non-participant persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port Miami by telephone at 305-535-4472, or a designated representative via VHF radio on channel 16. If authorization is granted by the Captain of the Port Miami or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative.

    (2) The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners and on-scene designated representatives.

    (d) Effective Date. This rule will be enforced from 3 p.m. until 6 p.m. on April 18, 2015.

    Dated: February 20, 2015. A. J. Gould, Captain, U.S. Coast Guard, Captain of the Port Miami.
    [FR Doc. 2015-04284 Filed 3-3-15; 8:45 a.m.] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52, 62 and 70 [EPA-R07-OAR-2015-0006; FRL 9923-67-Region 7] Approval and Promulgation of Air Quality Implementation Plans, State Plans for Designated Facilities and Pollutants, and Operating Permits Program; State of Missouri AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) and the operating permits program for the State of Missouri which were received on November 6, 2013, November 20, 2014, March 27, 2014, July 7, 2014, and July 14, 2014. The revisions submitted by the state include amendments to rules relating to reference methods, definitions and common reference tables, ambient air quality standards, and a rule rescission related to air quality control measures for sources clustered in small land areas. Many of the revisions are administrative in nature and either incorporate by reference or update state rules to match Federal regulations. Some are more substantive, but are non-controversial. In addition, they provide more clarity for the regulated public. This direct final action will amend the SIP to include revised regulations which will then be more consistent with Federal regulations. These revisions do not have an adverse effect on air quality. EPA's proposed approval of these rule revisions is being done in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    Comments on this proposed action must be received in writing by April 3, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2015-0006, by mail to Amy Bhesania, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the ADDRESSES section of the direct final rule located in the rules section of this Federal Register.

    FOR FURTHER INFORMATION CONTACT:

    Amy Bhesania, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7147, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    EPA is proposing to approve revisions to the State Implementation Plan (SIP), the 40 CFR part 62 state plans (111(d)), and the 40 CFR part 70 operating permits program, for the State of Missouri's requests to amend the following rules:

    1. 10 CSR 10-6.040, Reference Methods, received November 6, 2013. 2. 10 CSR 10-6.040, Reference Methods, received November 20, 2014. 3. 10 CSR 10-6.020, Definitions and Common Reference Tables, received March 27, 2014. 4. 10 CSR 10-5.240, Additional Air Quality Control Measures May be Required When Sources are Clustered in a Small Land Area, received July 7, 2014. 5. 10 CSR 10-6.010, Air Quality Standards, received July 14, 2014.

    The revisions submitted by the state include revisions to update standards and reference methods, to clarify, add or amend definitions and reference tables, to rescind an outdated rule, and to update and clarify ambient air quality standards. For more information on the state's submissions, specific revisions to each rule and EPA's review of the revisions, see the Technical Support Document (TSD) that is a part of this docket.

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

    List of Subjects 40 CFR Part 52

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

    40 CFR Part 62

    Environmental protection, Air pollution control, Administrative practice and procedure, Intergovernmental relations, Reporting and recordkeeping requirements.

    40 CFR Part 70

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.

    Dated: February 13, 2015. Karl Brooks, Regional Administrator, Region 7.

    For the reasons stated in the preamble, the Environmental Protection Agency proposes to amend 40 CFR parts 52, 62, and 70 as set forth below: Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart AA—MISSOURI 2. In § 52.1320 the table in paragraph (c) is amended by: a. Removing under Chapter 5, the entry for “10-5.240”; and b. Revising under Chapter 6, the entries for “10-6.010”, “10-6.020”, and “10-6.040”.

    The revisions read as follows:

    § 52.1320 Identification of Plan.

    (c) * * *

    EPA-Approved Missouri Regulations Missouri citation Title State effective date EPA Approval date Explanation Missouri Department of Natural Resources *         *         *         *         *         *         * Chapter 6—Air Quality Standards, Definitions, Sampling and Reference Methods, and Air Pollution Control Regulations for the State of Missouri 10 CSR 10-6.010 Ambient Air Quality Standards 7/30/14 [date of publication of final rule] and [Insert Federal Register citation] Hydrogen Sulfide and Sulfuric Acid state standards are not SIP approved. 10 CSR 10-6.020 Definitions and Common Reference Tables 3/30/14 [date of publication of final rule] and [Insert Federal Register citation] Many of the definitions pertain to Title V, 111(d) and asbestos programs and are approved in the SIP because they provide overall consistency in the use of terms in the air program. Similarly, the EPA has also approved this rule as part of the Title V program, and 111(d) even though many of the definitions pertain only to the SIP. *         *         *         *         *         *         * 10 CSR 10-6.040 Reference Methods 11/30/14 [date of publication of final rule] and [Insert Federal Register citation] *         *         *         *         *         *         *
    PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS 3. The authority citation for part 62 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart AA—Missouri 4. Section 62.6350 is amended by adding paragraph (b)(6) to read as follows:
    § 62.6350 Identification of plan.

    (b) * * *

    (6) A revision to Missouri's 111(d) plan to incorporate state regulation 10 CSR 10-6.020 Definitions and Common Reference Tables was state effective March 30, 2014. The effective date of the amended plan is [60 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register].

    PART 70—STATE OPERATING PERMIT PROGRAMS 5. The authority citation for part 70 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    6. Appendix A to part 70 is amended by adding paragraph (cc) under Missouri to read as follows: Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs Missouri

    (cc) The Missouri Department of Natural Resources submitted revisions to Missouri rule 10 CSR 10-6.020, “Definitions and Common Reference Tables” on March 27, 2014. The state effective date is March 30, 2014. This revision is effective [60 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE Federal Register].

    [FR Doc. 2015-04399 Filed 3-3-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 174 and 180 [EPA-HQ-OPP-2015-0032; FRL-9922-68] Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of filing of petitions and request for comment.

    SUMMARY:

    This document announces the Agency's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.

    DATES:

    Comments must be received on or before April 3, 2015.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number and the pesticide petition number (PP) of interest as shown in the body of this document, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Susan Lewis, Registration Division (RD) (7505P), main telephone number: (703) 305-7090; email address: [email protected] Robert McNally, Biopesticides and Pollution Prevention Division (BPPD), (7511P), main telephone number: (703) 305-7090; email address: [email protected] The mailing address for each contact person is: Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001. As part of the mailing address, include the contact person's name, division, and mail code. The division to contact is listed at the end of each pesticide petition summary.

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT for the division listed at the end of the pesticide petition summary of interest.

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

    II. What action is the Agency taking?

    EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

    Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at http://www.regulations.gov.

    As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

    New Tolerance

    1. PP 4E8298. (EPA-HQ-OPP-2014-0591). Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide methoxyfenozide, including its metabolites and degradates in or on the following raw agricultural commodities under paragraph (a): Chive, fresh leaves at 30.0 parts per million (ppm); fruit, stone, group 12-12, except plum, prune, fresh at 3.0 ppm; and nut, tree, group 14-12 at 0.10 ppm. It is also proposed that the following tolerances under paragraph (a) be removed upon approval of the proposed tolerances listed above: Fruit, stone, group 12, except plum, prune, fresh at 3.0 ppm; pistachio at 0.10 ppm; and nut, tree, group 14 at 0.10 ppm; and in paragraph (d), chive at 4.5 ppm be removed. Adequate methods are available for tolerance enforcement in primary crops and animal commodities. Contact: RD.

    2. PP 4E8304. (EPA-HQ-OPP-2014-OPP-2014-0681). Sumitomo Chemical Latin America through U.S. Agent Valent USA Corporation, 1600 Riviera Avenue, Suite 200, Walnut Creek, CA 94596, requests to establish an import tolerance in 40 CFR part 180 for residues of the insecticide, etoxazole, 2-(2,6-difluorophenyl)-4-[4-(1,1-dimethylethyl)-2-ethoxyphenyl]-4,5-dihydrooxazole, in or on orange and orange oil at 0.08 ppm and 1.8 ppm. The gas chromatography with mass-selective detection (GC/MSD) enforcement analytical method is used to measure and evaluate the chemical. Contact: RD.

    3. PP 4E8311. (EPA-HQ-OPP-2014-0784). Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide, flubendiamide, (N2-1,1-dimethyl-2-(methylsulfonyl)ethyl-3-iodo-N1-2-methyl-4-1,2,2,2-tetrafluoro-1-(trifluoromethyl)ethylphenyl-1,2-benzenedicarboxamide) in or on the following: Bushberry subgroup 13-07B at 8.0 ppm; Vegetable, fruiting group 8-10 at 0.60 ppm; Fruit, pome, group 11-10 at 1.5 ppm; Fruit, stone, group 12-12 at 1.6 ppm; Nut, tree, group 14-12 at 0.06 ppm; and Sunflower, subgroup 20B at 5.0 ppm. Upon the approval of the aforementioned tolerances, the petitioner requests to remove the established tolerances for flubendiamide in or on Fruit, pome, group 11 at 1.5 ppm; Fruit, stone, group 12 at 1.6 ppm; Nut, tree, group 14 at 0.06 ppm; Safflower, seed at 5.0 ppm; and Sunflower, seed at 5.0 ppm. Independently validated, analytical methods for crop matrices have been submitted for measuring flubendiamide. Typically, plant matrices samples are extracted, concentrated, and quantified by Liquid Chromotography with tandem mass spectrometry (LC/MS/MS) using deuterated internal standards. Contact: RD.

    4. PP 4E8319. (EPA-HQ-OPP-2014-0822). Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to establish a tolerance in 40 CFR part 180 for residues of azoxystrobin (methyl (E)-2-{2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy]phenyl}-3-methoxyacrylate) and the Z isomer of azoxystrobin, (methyl (Z)-2-{2-[6-(2- cyanophenoxy)pyrimidin-4-yloxy]pheny1}-3-methoxyacrylate) in or on the raw agricultural commodities Ti palm, leaves at 50 ppm; Ti palm, roots at 0.5 ppm; Fruit, stone, group 12-12 at 2.0 ppm; and Nut, tree, group 14-12 at 0.02 ppm. Upon the approval of the aforementioned tolerances, the petitioner requests to remove the established tolerances for azoxystrobin in or on the raw agricultural commodities Fruit, stone, group 12 at 1.5 ppm; and Nut, tree, group 14 at 0.02 ppm. An adequate analytical method, gas chromatography with nitrogen-phosphorus detection (GC-NPD) or in mobile phase by high performance liquid chromatography with ultra-violet detection (HPLC-UV), is available for enforcement purposes with a limit of detection that allows monitoring of food with residues at or above the levels set in these tolerances. Contact: RD

    5. PP 4E8330. (EPA-HQ-OPP-2014-0879). Interregional Research Project No. 4 (IR-4), IR-4 Headquarters, 500 College Road East, Suite 201 W, Princeton, NJ, requests to establish a tolerance in 40 CFR part 180 for residues of the herbicide, penoxsulam (2-(2,2-difluoroethoxy)-N-(5,8-dimethoxy[1,2,4] triazolo[1,5-c]pyrimidin-2-yl)-6-(trifluoromethyl)benzenesulfonamide) in or on the following raw agricultural commodities: Fruit, pome, group 11-10 at 0.01 ppm, Fruit, stone, group 12-12 at 0.01 ppm, Fruit, small, vine climbing, subgroup 13-07F, except Fuzzy kiwifruit at 0.01 ppm, Nut, tree, group 14-12 at 0.01 ppm, Olive at 0.01 ppm, and Pomegranate at 0.01 ppm. In addition, the petitioner proposes based upon the establishment of the just mentioned new tolerances, removal of existing tolerances at 40 CFR 180.605 for Grape at 0.01 ppm, Nut, tree, group 14 at 0.01 ppm and Pistachio at 0.01 ppm. The residues of penoxsulam were determined using the analytical method GRM 04.09 which involves sample extraction and preparation procedures, and analyses by liquid chromatography with positive-ion electrospray tandem mass spectrometry (LC/MS/MS). Contact: RD

    6. PP 4F8239. (EPA-HQ-OPP-2015-0031). Syngenta Crop Protection, LLC. 410 Swing Road. P.O. Box 18300. Greensboro, NC 27419, requests to establish a tolerance in 40 CFR 180.637 for residues of the fungicide, mandipropamid, in or on potato at 0.08 ppm. The RAM 415-02 is used to measure and evaluate the chemical mandipropamid. Contact: RD.

    Amended Tolerance

    1. PP 4E8298. (EPA-HQ-OPP-2014-0591). Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to amend the tolerances in 40 CFR 180.544 for residues of the insecticide, methoxyfenozide in or on onion, green, subgroup 3-07B at 5.0 ppm to onion, green, subgroup 3-07B, except chive at 5.0 ppm; and herb subgroup 19A, except chive at 400 ppm to Herb subgroup 19A, except chive, fresh leaves at 400 ppm. Adequate methods are available for tolerance enforcement in primary crops and animal commodities. Contact: RD.

    2. PP 4F8329. (EPA-HQ-OPP-2015-0031). Syngenta Crop Protection, LLC. 410 Swing Road. P.O. Box 18300. Greensboro, NC 27419, requests to amend the tolerance in 40 CFR 180.637 for residues of the fungicide, mandipropamid, in or on potato, wet peel at 0.12 parts per million (ppm), and amend the current tolerance commodity terminology which contains potato from “vegetable, tuberous and corm, subgroup 1C”, to “vegetable, tuberous and corm, subgroup 1C, except potato”. The RAM 415-02 analytical method is used to measure and evaluate the chemical mandipropamid. Contact: RD.

    New Tolerance Exemption

    1. IN 10713. (EPA-HQ-OPP-2014-0630). ISK Biosciences Corporation, 7470 Auburn Road, Suite A, Concord, OH 44077, requests to establish an exemption from the requirement of a tolerance for residues of dimethyl sulfoxide (CAS No.67-68-5), when used as a pesticide inert ingredient in pesticide formulations as a diluent in cyclaniliprole only formulations in accordance with 40 CFR 180.920. The petitioner believes no analytical method is needed because it is not required for the establishment of a tolerance exemption for inert ingredients. Contact: RD.

    2. IN-10720. (EPA-HQ-OPP-2014-0633). BASF Corporation, 26 Davis Drive, P.O. Box 13528 Research Triangle Park, NC, 27709, requests to establish an exemption from the requirement of a tolerance for residues of methanesulfonic acid (CAS No. 75-75-2), when used as a pesticide inert ingredient in pesticide formulations for use on animals and in food contact surface sanitizing solutions. The petitioner believes no analytical method is needed because the request is for an exemption from the requirement of a tolerance. Contact: RD.

    3. IN-10748. (EPA-HQ-OPP-2014-0783). Huntsman Corporation (8600 Gosling Road, The Woodlands, TX 77381, requests to establish an exemption from the requirement of a tolerance for residues of benzyl acetate (CAS No. 140-11-4), when used as a pesticide inert ingredient in pesticide formulations on growing crops under 40 CFR 180.920. The petitioner believes no analytical method is needed because the request is for an exemption from the requirement of a tolerance. Contact: RD.

    4. IN 10766. (EPA-HQ-OPP-2014-0793). West Agro, Inc., 11100 N. Congress Ave., Kansas City, MO 64153, requests to establish an exemption from the requirement of a tolerance for residues of acetic acid (CAS No.64-19-7) when used as a pesticide inert ingredient in pesticide formulations not to exceed a concentration of 1,200 ppm, in a sanitizing end use product for use on dairy processing equipment and food-processing equipment and utensils under 40 CFR 180.940(b) and 180.940(c). The petitioner believes no analytical method is needed because it is not required for the establishment of a tolerance exemption for inert ingredients. Contact: RD.

    5. PP 4F8287. (EPA-HQ-OPP-2015-0023). CP Bio, Inc., 4802 Murrieta Street, Chino, CA 91710, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the biochemical plant growth regulator, Choline Chloride (Acetyl Choline), in or on all raw agricultural commodities, when applied pre-harvest. The analytical method High-Performance Liquid Chromatographic (HPLC) Analysis is available to EPA for the detection and measurement of the pesticide residue. Contact: BPPD.

    6. PP 4F8292. (EPA-HQ-OPP-2015-0017). Suterra LLC, 20950 NE Talus Place, Bend, OR 97701, requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the arthropod pheromone, lavandulyl senecioate, in or on all raw agricultural commodities when applied to growing crops at a rate not to exceed 150 grams active ingredient/acre/year in accordance with good agricultural practices. The petitioner believes no analytical method is needed because significant residues of the pheromone active ingredient are not possible if use rates are limited to 150 grams pheromone active ingredient per acre per year. Contact: BPPD.

    7. PP 4F8313. (EPA-HQ-OPP-2014-0896). Technology Sciences Group, Inc., 712 Fifth St., Suite A, Davis, CA 95616 (on behalf of EctoPharma Ltd., Dunsdale Rd., Selkirk, TD7 5EB, United Kingdom), requests to establish an exemption from the requirement of a tolerance in 40 CFR part 180 for residues of the insecticide, 1,2-Octanediol, in or on all food commodities. The petitioner believes no analytical method is needed because it is expected that when the pesticide containing 1,2-Octanediol is used as proposed, it would not result in residues that are of toxicological concern. Contact: BPPD.

    Authority:

    21 U.S.C. 346a.

    Dated: February 18, 2015. Susan T. Lewis, Director, Registration Division, Office of Pesticide Programs.
    [FR Doc. 2015-04281 Filed 3-3-15; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 74 [WT Docket No. 15-36; FCC 15-22] Permitting Remote Pickup Broadcast Auxiliary Stations To Utilize Modern Digital Technologies AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) seeks comment on its proposal to permit broadcasters to use modern digital technologies for Remote Pickup operations. Permitting this would further the Commission's goal of enabling broadcasters to use the same digital technologies for Remote Pickup operations as used by operators in the Private Land Mobile Radio Service.

    DATES:

    Submit comments on or before April 3, 2015. Submit reply comments on or before April 20, 2015.

    ADDRESSES:

    You may submit comments, identified by WT Docket No. 15-36, by any of the following methods:

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

    Federal Communications Commission's Electronic Comment Filing System (ECFS): http://fcc.gov/ecfs//. Follow the instructions for submitting comments.

    Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail): Federal Communications Commission, 9300 East Hampton Dr., Capitol Heights, MD 20743.

    U.S. Postal Service (First-class, Express, and Priority): Federal Communications Commission, 445 12th St. SW., Washington, DC 20554.

    Hand-delivered/Courier: Federal Communications Commission, 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for the Notice of Proposed Rulemaking. All comments received will be posted without change to http://fcc.gov/ecfs//, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document.

    Docket: For access to the docket to read background documents or comments received, go to https://apps.fcc.gov/edocs_public/attachmatch/FCC-15-22A1.docx.

    FOR FURTHER INFORMATION CONTACT:

    For further information, please contact Nancy Zaczek of the Wireless Telecommunications Bureau, Broadband Division, at (202) 418-0274 or email to [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Notice of Proposed Rulemaking and Order, WT Docket No. 15-36, RM-11648, and RM 11649 adopted on February 13, 2015 and released on February 18, 2015. The complete text of this document will be available for public inspection during regular business hours in the FCC Reference Center (CY-A257) at the Federal Communications Commission, 445 12th Street SW., Washington, DC 20554. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. The complete text of this document will also be available via ECFS.

    Public Participation

    Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

    • Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

    Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    I. Order—Remote Pickup (RPU) Center Frequencies A. Background

    1. RPU stations may be authorized to operate within the 25.67-26.48 MHz band (HF RPU Band), the 152.855-154 MHz, 157.45-161.575 MHz, 161.625-161.775 MHz bands (collectively, VHF RPU Band), and the 450-451 MHz and 455-456 MHz bands (collectively, UHF RPU Band). These frequencies are also either available for assignment in the part 90 Private Land Mobile Radio Service (PLMRS) or are near frequencies available for PLMRS use. When the Commission established the current RPU service rules in 2002, its goal was to harmonize the RPU technical standards with the part 90 rules so that broadcasters could use radios developed for part 90 PLMRS use for RPU use, particularly for dispatch and operational traffic. At the same time, the Commission recognized that part 90 narrowband radios may not be suitable for transmitting audio program feeds, which require greater bandwidth to support high audio quality with no delay. Accordingly, the Commission allowed broadcasters to stack multiple RPU channel segments to create wider channels. Under the current rules, the VHF RPU and UHF RPU Bands are divided into segments with designated channel centers, but broadcasters may combine multiple segments to form wider RPU channels so long as they comply with the applicable bandwidth and emission requirements. Broadcasters using RPU stations to transmit program material have primary use of the wider channels.

    2. The Engineers for the Integrity of Broadcast Auxiliary Services Spectrum (EIBASS) and the Society for Broadcast Engineers (SBE) have separately identified two obstacles that they argue have prevented broadcasters from using PLMRS equipment for RPU use in the VHF RPU and UHF RPU Bands. The first obstacle concerns a mismatch between PLMRS equipment and the channel centers for RPU stations specified in the Commission's rules. For analog equipment, the 25 kilohertz channel centers listed for RPU stations in the Commission's rules cannot be programmed into analog part 90 PLMRS equipment used by broadcasters. If a broadcaster attempted to combine four 6.25 kilohertz segments to form a 25 kilohertz RPU channel, the center frequency of the resultant channel would be offset from the RPU channel centers specified in the Commission's rules. Under this scenario, the only way to create an RPU channel with a center frequency that is specified in the Commission's rules is to request an odd number of RPU segments (i.e., request an extra segment). Furthermore, while digital equipment can tune to the nearest Hertz, many, if not most, analog radios now in use cannot program frequencies with that degree of accuracy.

    B. Discussion

    3. As described above, EIBASS and SBE identify two issues relating to the designation of center frequencies for RPU stations: (1) The fact that when an applicant combines an even number of channels, the center frequency for the combined channels will fall in between frequencies listed in the Commission's rules; and (2) the inability of analog equipment to specify the center frequency with the level of precision set forth in the Commission's rules. With the clarification and guidance provided below, we conclude that no rule changes are necessary to address either of these issues.

    4. We find that existing § 74.402 of the Commission's rules address the first issue. In its preamble, that rule provides, “When an even number of channels are stacked in those sections [where] stacking is permitted, channel assignments may be made for the frequency halfway between those listed.” Thus, to use EIBASS' example, a broadcaster wishing to combine the 6.25 kilohertz segments centered 455.48750 MHz, 455.49375 MHz, 455.50000 MHz, and 455.50625 MHz into a 25 kilohertz RPU channel could specify 455.496875 MHz as the center frequency of the combined segments because it is halfway between 455.49375 MHz and 455.5 MHz. Consistent with § 74.402, the current process of the Wireless Telecommunications Bureau has been to require applicants to stack the minimum number of segments necessary to accommodate the applicant's bandwidth needs. Applications that stack an odd number of segments must specify a center frequency consistent with the center of the segments listed in § 74.402, and applications that stack an even number of segments must specify a center frequency that falls in between the channel centers listed in § 74.402. The Wireless Telecommunications Bureau will continue to process applications specifying an even number of segments consistent with this interpretation of § 74.402.

    5. With respect to the inability of analog equipment to precisely specify frequencies to six decimal places, no transmitter can operate on a specific frequency with absolute precision. The Broadcast Auxiliary Service (BAS) rules recognize this limitation by establishing permissible frequency tolerances for RPU equipment. In the VHF RPU Band, the tightest applicable frequency stability requirement is one part per million, which translates into an acceptable deviation of approximately 150 Hertz on those frequencies. For the UHF RPU Band, the tightest applicable frequency stability requirement is .5 parts per million, which translates into an acceptable deviation of approximately 225 Hertz on those frequencies. We note that the channel centers listed in the rules specify some frequencies in the UHF RPU Band to the nearest 10 Hertz, and neither EIBASS nor SBE has claimed that analog equipment cannot program those frequencies. So long as licensees comply with the applicable emission masks as measured from the center frequency specified in the authorization, and the licensee programs the center frequency as closely to the specified center frequency as the equipment will allow, we would view a licensee as being in compliance with the center frequency requirements of § 74.402 of the Commission's rules for the VHF RPU Band and UHF RPU Band.

    II. Notice of Proposed Rulemaking A. RPU Digital Emissions and Modulation Requirements

    6. SBE and EIBASS point out another obstacle to using PLMRS equipment for RPU purposes, specifically the lack of authorization in the rules for use of specific digital technologies. SBE and EIBASS identify Time Division Multiple Access (TDMA), Next Generation Digital Network (NXDN), ANSI/TIA-102A (Project 25), Trans-European Trunked Radio (TETRA), Digital Private Mobile Radio (dPMR), and Digital Mobile Radio (DMR) as digital technologies used in PLMRS radios that could be suitable for RPU use. Section 74.462 of the Commission's rules “requires that the `equipment shall be operated in accordance with emissions specifications included in the grant of the certification and as prescribed in . . . this section” and lists the authorized emissions for RPU stations. The only emissions currently authorized by the rule, however, are all analog emissions. No digital emissions are included in the list of authorized emissions.

    7. We propose to change our rules to allow broadcasters to use modern digital technologies such as TDMA and NXDN for RPU operations. We believe it would be in the public interest to give broadcasters the opportunity to use the same digital technologies for RPU stations as those used by part 90 PLMRS licensees. The Commission's intent in 2002 was to harmonize the RPU technical standards with the part 90 rules so that broadcasters could use radios developed for part 90 PLMRS use, particularly for dispatch and operational traffic. By allowing broadcasters to use the same digital technologies for RPU stations as those used by PLMRS licensees, we would further that goal and allow broadcasters to use equipment and technologies developed for PLMRS. We seek comment on the costs and benefits and advantages or disadvantages of allowing broadcasters to use the digital technology of their choice in the VHF and UHF RPU Bands.

    8. SBE and EIBASS each propose that we amend § 74.462 of the Commission's rules to permit RPU stations to use any digital emissions that meets the applicable emissions mask and bandwidth limitations. We seek comment on amending § 74.462 in that fashion. We note that while SBE and EIBASS focus on the VHF and UHF RPU Bands, the proposed rule change would also allow digital emissions in the HF RPU Band. We seek comment on whether it is appropriate to also allow digital emissions in the HF RPU Band. We also seek comment on alternative means of amending our rules to reach the same result requested by EIBASS and SBE. Further, we seek comment on amending § 74.462 to specify a maximum authorized bandwidth of 50 kilohertz in the 450.03125-450.61875 MHz and 455.03125 455.061875 MHz bands, as opposed to the maximum authorized bandwidth of 25 kilohertz currently in the rule. This change would make § 74.462 consistent with § 74.402(b) of the Commission's rules, which allows up to eight 6.25 kilohertz segments to be stacked for a total RPU channel bandwidth of 50 kilohertz. We seek comment on the costs and benefits and advantages or disadvantages of the various proposed approaches.

    9. We also seek comment on EIBASS's request that we amend § 74.463 of the Commission's rules to explicitly add the phrase “digital modulation”. We seek comment on the proposed rule language and its attendant costs and benefits, and on any alternatives and their associated costs and benefits.

    B. Station Identification Requirements

    10. In addition, we seek comment on what changes to our station identification requirements are needed to accommodate digital RPU operations. EIBASS recommends that we amend the station identification requirements in § 74.482 of the Commission's rules to cover all forms of commercially available digital land mobile radios, using language that is broad enough to cover new forms of digital signals as they are developed. Although EIBASS specifically recommends that we adopt a method of identifying stations that uses a watermark ID, such as the protocol adopted in the Advanced Television Systems Committee (ATSC) A/82 Data Return Link (DRL) standard, it stresses that is more important that we adopt the same protocol for both RPU BAS and PLMRS stations. In 2010, the Commission sought comment on amending the PLMRS rules to allow station identification in the 150-170 MHz and 450-470 MHz bands in digital format. The proposed rule language in that proceeding would allow PLMRS stations to digitally transmit their call signs, subject to the requirement that the licensees provide the Commission with the means to decode the digital transmission. Adopting the same station identification rules for both RPU BAS and PLMRS stations, EIBASS argues, would enable RPU broadcasters to purchase COTS two-way radios whose transmissions could be universally decoded to identify interfering transmitters. Should we adopt the requirements proposed by the Commission in 2010 for PLMRS stations, or should the Commission adopt a specific standard, such as the A/82 DRL standard? Commenters should provide information on the costs and benefits and advantages or disadvantages of the different approaches.

    C. 100 Kilohertz RPU Channels

    11. SBE also raises a different but related issue with regard to § 74.402 of the Commission's rules. Specifically, SBE believes there is no current need for new RPU stations with a 100 kilohertz bandwidth. It therefore proposes that no new RPU stations proposing a 100 kilohertz bandwidth be authorized absent a showing of need in individual cases. SBE believes that existing 100 kilohertz RPU stations should be grandfathered.

    12. Consistent with SBE's request, we propose to modify § 74.402 to eliminate a licensee's ability to create 100 kilohertz RPU channels in the future. Given the relatively small amount of spectrum available for RPU operations, and that the 100 kilohertz channels overlap the narrower channels, a license specifying 100 kilohertz bandwidth can make it difficult for other broadcasters to obtain spectrum for narrowband RPU operations, which are much more prevalent than 100 kilohertz operations. We note that in the past four years, the Wireless Telecommunications Bureau has received only one application requesting authorization for a 100 kilohertz bandwidth RPU channel. Accordingly, there appears to be little need for licenses with 100 kilohertz channels. If we eliminate the ability to create these channels, applicants would still be able to apply via a waiver of the rules to use 100 kilohertz channels. We emphasize that we are not proposing to change the rights of existing licensees with 100 kilohertz bandwidth RPU channels. Instead, we propose to grandfather existing licensees with 100 kilohertz RPU channel authorizations. These licensees will be permitted to renew their authorizations indefinitely and will be allowed to make modifications to their existing authorization without affecting their grandfathered status. We seek comment on these proposals, as well as their associated costs and benefits.

    III. Waiver Request

    13. SBE also seeks a temporary waiver of § 74.462 of the Commission's rules to permit broadcasters to use FCC-certified narrowband VHF and UHF RPU equipment, such as TDMA technology or NXDN technology, in the VHF and UHF RPU Bands while the rulemaking is pending. The Commission's rules provide that waivers will be granted if the petitioner shows that: (i) The underlying purpose of the rules(s) would not be served or would be frustrated by application to the instant case, and that a grant of the requested waiver would be in the public interest; or (ii) in view of the unique or unusual factual circumstances of the instant case, application of the rule(s) would be inequitable, unduly burdensome or contrary to the public interest, or the applicant has no reasonable alternative.

    14. We decline to grant a blanket waiver of § 74.462 to permit use of digital emissions in the VHF and UHF RPU Bands while this rulemaking is pending. While we agree with SBE that it appears to be in the public interest to empower RPU broadcasters to use digital technologies, the instant rulemaking is designed to provide an opportunity for meaningful comment on this assessment and on important details about the implementation of such digital operations. For example, it is not clear based on the current record how broadcasters using digital equipment will comply with the station identification requirement. If we were to grant a general waiver, broadcasters might use any type of digital RPU equipment, some or all of which might be incompatible with the requirements that the Commission ultimately adopts. Therefore, until the Commission has established rules for implementation of digital technologies in the VHF and UHF, and perhaps HF RPU Bands, we do not find it to be in the public interest to grant broadcasters a general waiver to do so. Under these circumstances, we believe the better course of action is to proceed through the rulemaking process and establish rules that all broadcasters can rely on going forward. Our denial of SBE's request for a general waiver does not preclude a broadcaster from invoking the Commission's waiver rules in a specific case in order to request appropriate individualized relief. Such cases will be considered on an ad hoc basis.

    IV. Procedural Matters A. Ex Parte Rules—Permit-but-Disclose Proceeding

    15. Pursuant to § 1.1200(a) of the Commission's rules, the Notice of Proposed Rulemaking and Order shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule § 1.1206(b). In proceedings governed by rule § 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    B. Paperwork Reduction Analysis

    16. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

    C. Initial Regulatory Flexibility Analysis

    17. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in this Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines specified in the NPRM for comments. The Commission will send a copy of this NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

    D. Need for, and Objectives of, the Proposed Rules

    18. In the NPRM, we propose to amend our rules to allow broadcasters to use any type of digital equipment. In addition, permitting digital emissions in the RPU bands may also require us to amend §§ 74.402, 74.462, and 74.482 of the Commission's rules. These changes are supported by the commenters and will give RPU licensees the flexibility to choose from a wide variety of “off-the-shelf” digital equipment, which will, in turn, encourage RPU licensees to convert to digital systems and increase spectrum efficiency.

    E. Legal Basis

    19. The proposed action is authorized pursuant to sections 4 and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154, 303, and § 1.411 of the Commission's rules, 47 CFR 1.411.

    F. Description and Estimate of the Number of Small Entities To Which the Proposed Rules Will Apply

    20. The RFA directs agencies to provide a description of, and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

    21. The proposals in the NPRM would affect BAS RPU licensees. Only licensees of broadcast stations, broadcast networks, and cable networks can hold RPU licenses. Additionally, the proposals affect manufacturers of equipment that supports the BAS Remote Pickup Service. BAS involves a variety of transmitters, generally used to relay broadcast programming to the public (through translator and booster stations) or within the program distribution chain (from a remote news gathering unit to the studio or from the studio to the transmitter). The Commission has not developed a definition of small entities applicable to these licensees. Therefore, the applicable definitions of small entities for each of these services under the SBA rules is as follows: for Remote pickup BAS we will use SIC code 4833 when used by a TV station or 4832 when used by a radio station and for BAS equipment manufacturers, we will use SIC code 3663 (Radio and Television Broadcasting and Communications Equipment) which are classified as small businesses if they employ no more than 750 people.

    G. Radio Broadcasting

    22. The subject rules and policies potentially will apply to all AM and FM radio broadcasting licensees and potential licensees. A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. Included in this industry are commercial, religious, educational, and other radio stations. Radio broadcasting stations, which primarily are engaged in radio broadcasting, and produce radio program materials are similarly included. However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under another NAICS number. The SBA has established a small business size standard for this category, which is: firms having $7 million or less in annual receipts. According to Commission staff review of the BIA Publications, Inc. Master Access Radio Analyzer Database as of August 2, 2013, about 10,811 (97 percent) of 11,162 commercial radio station have revenues of $7 million or less and thus qualify as small entities under the SBA definition. Therefore, the majority of such entities are small entities. We note, however, that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by any ultimate changes to the rules and forms.

    H. Television Broadcasting

    23. This economic census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” The SBA has created the following small business size standard for Television Broadcasting firms: those having $14 million or less in annual receipts. The Commission has estimated the number of licensed commercial television stations to be 1,388. In addition, according to Commission staff review of the BIA Advisory Services, LLC's Media Access Pro Television Database on March 28, 2012, about 950 of an estimated 1,300 commercial television stations (or approximately 73 percent) had revenues of $14 million or less. We therefore estimate that the majority of commercial television broadcasters are small entities.

    24. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent.

    25. In addition, the Commission has estimated the number of licensed noncommercial educational (“NCE”) television stations to be 396. These stations are non-profit, and therefore considered to be small entities.

    26. There are also 2,414 LPTV stations, including Class A stations, and 4,046 TV translator stations. Given the nature of these services, we will presume that all of these entities qualify as small entities under the above SBA small business size standard.

    I. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    27. The NPRM proposes no new reporting or recordkeeping requirements.

    J. Steps Taken To Minimize Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    28. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.

    29. The actions proposed in the NPRM would give RPU licensees the flexibility to use off-the-shelf digital equipment, thus reducing their costs. This action will serve the public interest by enabling RPU licensees to use spectrum more efficiently. The rules will therefore open up beneficial economic opportunities to a variety of spectrum users, including small businesses. Because the actions proposed in the NPRM will improve beneficial economic opportunities for all businesses, including small businesses, a detailed discussion of alternatives is not required.

    30. Generally, the alternative approach would be to maintain the existing rules. Under that approach, however, Remote Pickup Service licensees would not have the opportunity to use digital off-the-shelf equipment.

    K. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    31. None.

    V. Ordering Clauses

    32. Accordingly, it is ordered, pursuant to sections 4 and 303 of the Communications Act of 1934, 47 U.S.C. 154, 303, and § 1.411 of the Commission's rules, 47 CFR 1.411, that the Notice of Proposed Rulemaking is hereby adopted.

    33. It is further ordered, pursuant to sections 4 and 303 of the Communications Act of 1934, 47 U.S.C. 154, 303, and § 1.407 of the Commission's rules, 47 CFR 1.407, that the petitions for rulemaking filed by the Engineers for the Integrity of Broadcast Auxiliary Services on October 7, 2011 and by Society of Broadcast Engineers, Incorporated on November 7, 2011 are granted to the extent indicated herein and are otherwise denied.

    34. For the reasons stated above, it is further ordered, pursuant to section 4(i) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and § 1.925(b)(3) of the Commission's rules, 47 CFR 1.925(b)(3), that the waiver request filed by the Society for Broadcast Engineers on November 7, 2011 is denied.

    35. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects in 47 CFR Part 74

    Communications equipment.

    Federal Communications Commission. Sheryl D. Todd, Deputy Secretary.

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 74 as follows:

    PART 74—EXPERIMENTAL RADIO, AUXILIARY, SPECIAL BROADCAST AND OTHER PROGRAM DISTRIBUTION SERVICES 1. The authority citation for part 74 continues to read as follows: Authority:

    47 U.S.C. 154, 302a, 303, 307, 309, 336 and 554.

    2. Amend § 74.402 by revising the introductory text in paragraph (d) to read as follows:
    § 74.402 Frequency assignment.

    (d) Up to two of the following 50 kilohertz segments may be stacked to form a channel which may be assigned for use by broadcast remote pickup stations using any emission contained within the resultant channel in accordance with the provisions of § 74.462. Users committed to 100 kilohertz bandwidths and transmitting program material will have primary use of these channels. After [insert effective date of rule], initial authorizations with 100 kilohertz bandwidth will not be issued.

    3. Amend § 74.462 by revising paragraphs (a) and (b) to read as follows:
    § 74.462 Authorized Bandwidth and Emissions.

    (a) Each authorization for a new remote pickup broadcast station or system shall require the use of certificated equipment and such equipment shall be operated in accordance with emission specifications included in the grant of certification and as prescribed in paragraphs (b), (c), and (d) of this section. Any form of modulation may be used.

    (b) The maximum authorized bandwidth of emissions corresponding to the types of emissions specified below, and the maximum authorized frequency deviation in the case of frequency or phase modulated emission, shall be as follows:

    Frequencies Maximum
  • authorized
  • bandwidth
  • (kilohertz)
  • Maximum
  • frequency
  • deviation
  • (kilohertz) 1
  • MHz: 25.87 to 26.03 40 10 26.07 to 26.47 20 5 152.8625 to 153.3575 2 30/60 5/10 160.860 to 161.400 60 10 161.625 to 161.775 30 5 166.25 and 170.15 3 12.5 2.5 450.00625 to 450.99375 25 5 455.00625 to 455.99375 25 5 450.03125 to 450.61875 50 455.03125 to 455.61875 50 5 450.6375 to 450.8625 455.6375 to 455.8625 50 10 450.900, 450.950 455.900, 455.950 4 100 35 1 Applies where F1A, F1B, F1D, F1E, F2A, F2B, F2D, F2E, F3E, or F9E emissions are used. 2 New or modified licenses for use of the frequencies will not be granted to utilize transmitters on board aircraft, or to use a bandwidth in excess of 30 kilohertz and maximum deviation exceeding 5 kilohertz. 3 For stations licensed or applied for before April 16, 2003, the sum of the bandwidth of emission and tolerance on frequencies 166.25 MHz or 170.15 MHz shall not exceed 25 kilohertz, and such operation may continue until January 1, 2005. For new stations licensed or applied for on or after April 16, 2003, the sum of the bandwidth of emission and tolerance on these frequencies shall not exceed 12.5 kilohertz. For all remote pickup broadcast stations, the sum of the bandwidth of emission and tolerance on these frequencies shall not exceed 12.5 kilohertz on or after January 1, 2005. 4 After [insert effective date of rule], new authorizations with 100 kilohertz bandwidth will not be issued.
    4. Amend § 74.463 by revising paragraph (c) to read as follows:
    § 74.463 Modulation Requirements.

    (c) If frequency modulation or digital modulation is employed, the emission shall conform to the requirements specified in § 74.462.

    5. Amend § 74.482 by adding a new paragraph (f) to read as follows:
    § 74.482 Station Identification.

    (f) Stations that normally employ digital signals for the transmission of data, text, control codes, or digitized voice, may also be identified by digital transmission of the call sign. A licensee that identifies its call sign in this manner must provide the Commission, upon request, information sufficient to decode the digital transmission and ascertain the call sign transmitted.

    [FR Doc. 2015-04155 Filed 3-3-15; 8:45 am] BILLING CODE 6712-01-P
    GENERAL SERVICES ADMINISTRATION 48 CFR Parts 501, 516, 538 and 552 [GSAR Case 2013-G504; Docket 2014-0020; Sequence 1] RIN 3090-AJ51 General Services Administration Acquisition Regulation (GSAR); Transactional Data Reporting AGENCY:

    Office of Acquisition Policy, General Services Administration.

    ACTION:

    Notice of a public meeting and request for comments on proposed rule.

    SUMMARY:

    The General Services Administration (GSA) announces a public meeting and request for comment on its proposal to amend the General Services Administration Acquisition Regulation (GSAR) to include clauses that would require vendors to report transactional data from orders and prices paid by ordering activities. This includes orders placed against both Federal Supply Schedule (FSS) contract vehicles and GSA's non-FSS contract vehicles—Governmentwide Acquisition Contracts (GWACs) and Governmentwide Indefinite-Delivery, Indefinite-Quality (IDIQ) contracts. For FSS vehicles, the clause would be introduced in phases, beginning with a pilot for select products and commoditized services. The new clause will be paired with changes to the basis of award monitoring requirement of the existing price reductions clause, resulting in a burden reduction for participating FSS contractors. This rulemaking does not apply to the Department of Veterans Affairs (VA) FSS contract holders.

    GSA is interested in conducting a dialogue with industry and interested parties in Government about the proposed change. GSA is seeking feedback on potential impacts to agency customers and contractors alike. Feedback will be used to help inform the revisions to the proposed clauses, provisions, and prescriptions and other guidance to implement the proposed rule.

    DATES:

    Interested parties may offer oral and/or written comments at a public meeting to be held on Friday, April 17, 2015, at 9:00 a.m. Eastern Standard Time. Parties are also encouraged to provide all written comments, including those to be delivered at the public meeting, directly to www.regulations.gov. As explained in this notice, other tools will also be used to elicit public input.

    Interested parties should submit written comments to the Regulatory Secretariat on or before Monday, May 4, 2015 to be considered in the formulation of a final rule.

    The public meeting will be conducted on Friday, April 17, 2015, at 9:00 a.m. Eastern Standard Time. Information for the public meeting may be found under the heading SUPPLEMENTARY INFORMATION.

    ADDRESSES:

    Submit comments identified by GSAR Case 2013-G504, Transactional Data Reporting, by any of the following methods:

    Regulations.gov: http://www.regulations.gov.

    Submit comments by searching for “GSAR Case 2013-G504”. Select the link “Comment Now” and follow the instructions provided at the “You are commenting on” screen. Please include your name, company name (if any), and “GSAR Case 2013-G504”, on your attached document.

    Fax: 202-501-4067.

    Mail: U.S. General Services Administration, Regulatory Secretariat Division (MVCB), 1800 F Street NW., 2nd Floor, ATTN: Hada Flowers, Washington, DC 20405-0001.

    Instructions: Please submit comments only and cite GSAR Case 2013-G504 in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Dana Munson, General Services Acquisition Policy Division, GSA, 202-357-9652 or Mr. Matthew McFarland, General Services Acquisition Policy Division, GSA, 202-690-9232 or email [email protected], for clarification of content, public meeting information and submission of comment. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202-501-4755. Please cite GSAR Case 2013-G504.

    SUPPLEMENTARY INFORMATION: I. Public Meeting

    GSA is holding a public meeting on Friday, April 17, 2015. The meeting will start at 9:00 a.m. Eastern Standard Time. The meeting end time will depend on the final number of registered oral presentations. Attendees can attend the meeting in person at GSA Central Office or virtually through GSA's Internet meeting platform, Adobe Connect.

    In-person Attendance: Interested parties may attend the public meeting to be held in the GSA Auditorium at GSA Headquarters, located at 1800 F St. NW., Washington, DC 20405. The public is asked to pre-register by Wednesday April 1, 2015, due to security and seating limitations. To pre-register, use the following link: https://meet.gsa.gov/e5rpxxbrh14/event/event_info.html. Registration check-in will begin at 8:00 a.m. Eastern Standard Time Friday, April 17, 2015, and the meeting will start at 9:00 a.m. Eastern Standard Time. Attendees must be prepared to present a form of government issued photo identification.

    Virtual Attendance: Interested parties may also attend virtually through GSA's Internet meeting platform, hosted by Adobe Connect. Virtual attendees must register in advance at https://meet.gsa.gov/e5rpxxbrh14/event/event_info.html.

    Meeting Accommodations: The public meeting is physically accessible to people with disabilities. Request for sign language interpretation or other auxiliary aids should be directed to Ms. Munson at [email protected] or 202-357-9652 by Wednesday, April 1, 2015.

    The TTY number for further information is: 1-800-877-8339. When the operator answers the call, let them know the agency is the General Services Administration; the point-of-contact is Dana Munson at 202-357-9652 or Matthew McFarland 202-690-9232.

    Oral Public Comments: Parties wishing to make formal oral presentations at the public meeting should indicate so during the registration process. Presentations must be provided to Ms. Dana Munson by electronic mail at [email protected] no later than Wednesday, April 8, 2015. Time allocations for oral presentations will be limited to fifteen minutes. All formal oral public comments should also be followed-up in writing and submitted to www.regulations.gov no later than Monday, May 4, 2015. When submitting your comments, search for “GSAR Case 2013-G504” and reference “Public Meeting, Public Comments on Transactional Data Reporting.” Note: Requests made after the deadline for formal oral presentations will be permitted as time permits and assigned based on the order the requests are received.

    Written Comments/Statements: In lieu of, or in addition to, participating in the public meeting, interested parties may submit written comments to www.regulations.gov by Monday, May 4, 2015. When submitting your comments, search for “GSAR Case 2013-G504” and reference “Public Comments on Transactional Data Reporting.” Parties wishing to share written statements at the public meeting must submit such statements to Ms. Dana Munson at [email protected] by Wednesday, April 8, 2015.

    II. Overview

    The Office of Federal Procurement Policy (OFPP) recently announced a new vision for Federal purchasing, one that fundamentally shifts from managing purchases and price individually across thousands of procurement units to managing entire categories of purchases across Government collaboratively (see Transforming the Marketplace: Simplifying Federal Procurement to Improve Performance, Drive Innovation and Increase Savings, December 4, 2014, available at http://www.whitehouse.gov/sites/default/files/omb/procurement/memo/simplifying-federal-procurement-to-improve-performance-drive-innovation-increase-savings.pdf). Category management involves buying and managing commonly-purchased goods and services through categories like information technology (IT) hardware and IT software. Categories will be managed by experts with in-depth market expertise who understand buying trends, industry cost drivers, new innovations on the horizon and emerging companies. Category managers will also share information with agencies across government to support smarter buying decisions.

    GSA is creating a Common Acquisition Platform (CAP), an online marketplace to identify best-in-class contracts issued by GSA or other agencies, best practices, and other information agencies need to reduce the proliferation of duplicative contract vehicles and deliver the best value possible to federal customers and the American people. A critical component of the CAP, and smarter buying in general, is the availability of the prices previously paid by other government buyers for a similar product or service under similar terms and conditions. Government buyers will be able to use that data, in combination with other relevant information—such as customer satisfaction with the performance of the contractor-furnished solution—to determine fair and reasonable pricing as part of a best value solution.

    The current lack of transparency on prices paid by government customers has led to significant price variation, sometimes 300 percent or more, for identical purchases by federal agencies from the same commercial vendor as well as the unnecessary duplication of contract vehicles. A recent pilot where contractors were required to furnish prices paid on GSA's strategically sourced Office Supplies 2 (OS2) vehicle demonstrated the power of such a tool in producing market driven pricing throughout the life of the contract.

    Accordingly, this proposed rule would create a transactional data reporting clause to improve GSA's ability to conduct meaningful price analysis and more efficiently and effectively validate fair and reasonable pricing on both its non-FSS and FSS vehicles. It would also allow GSA's customers to improve their ability to compare prices prior to placing orders under its vehicles. Under the transactional data reporting clause, contractors would report prices paid for products and services delivered during the performance of the contract, including under orders and blanket purchase agreements (BPAs) through a user-friendly, online reporting system. The report would include transactional data elements such as unit measure, quantity of item sold, universal product code, if applicable, prices paid per unit, and total price.

    The transactional data reporting clause would be applied immediately to GSA's government-wide non-FSS vehicles, where transactional data is not already collected through other methods. For FSS vehicles, the clause would be introduced in phases, beginning with a pilot for select products and commoditized services. Under the pilot, FSS customers would take advantage of prices paid information and the more rigorous order level competition it generates to establish pricing. To ensure these prices remain competitive with commercial pricing, GSA would evaluate prices paid under the pilot to commercial benchmarks and other available data on commercial pricing, as well as prices previously paid prior to the pilot where such data is available. Vendors would not be subject to the “tracking customer” provisions of the price reductions clause that require them to monitor their pricing, and provide the government with the same price reductions that they give to the class of the contractor's commercial customers upon which the original contract was awarded. However, GSA would maintain the right throughout the life of the FSS contract to ask a vendor for updates to the disclosures on its commercial sales format—which is used to negotiate pricing on FSS vehicles—where commercial benchmarks or other available data on commercial pricing is insufficient to establish price reasonableness. Price and quality metrics would be established, and commercial benchmarks identified, prior to the launch of the pilot so that GSA could perform these analyses and measure the results and impact of the pilot. GSA would also seek vendor feedback to compare experience with the transactional data clause to the tracking requirements of the price reductions clause. GSA would use all relevant information and analysis to determine, in consultation with OMB, whether use of the clause is beneficial. If the results of the pilot confirm that using transactional data is an effective pricing model, its use would be broadened using the authorities provided by this rule. If the results of the pilot reveal that using transactional data is not an effective pricing model, contracts would be modified to revert back to using the tracking customer provisions of the price reductions clause. Additional details regarding the scope of the pilot will be announced through an open dialog on GSA's Interact platform at interact.gsa.gov. This public input will be considered prior to the launch of the pilot.

    GSA recognizes that use of prices paid information must be done within the context of seeking to obtain the best value for the taxpayer. GSA believes the clause will be especially impactful when combined with the insight and expertise of category managers to provide agency buyers across government with market intelligence, expertise, and deep-dive analysis to improve supply chain management, pricing variances, innovation, redundancies, and unnecessary duplication of effort. Tools and training deployed in connection with the implementation of this rule would emphasize the importance of considering total cost (not just unit price) in the context of each procurement, taking into account desired terms and conditions, performance levels, past customer satisfaction, and other relevant information.

    III. Background

    In Fiscal Year 2014, government agencies ordered nearly $39 billion in goods and services through GSA's FSS contracts GWACs, and Governmentwide IDIQs. While GSA has a number of policies in place to help its buyers and agency users to secure best value for the taxpayer, two limitations in current pricing practices make achievement of this goal unnecessarily challenging: (1) Lack of visibility into prices paid by other customers; and (2) insufficient attention on “horizontal pricing” under the FSS program—i.e., the ability to compare one vendor's pricing to that of other vendors.

    Lack of Transparency in Prices Previously Paid

    The Federal Acquisition Regulation (FAR) has long emphasized the need for contracting officers to conduct price analysis as part of their responsibility to establish that offered prices are fair and reasonable. Price analysis requires contracting officers to obtain and analyze data on the prices at which the same or similar items have been sold. At GSA, like most agencies, collection of this information has rested largely on the shoulders of each contracting officer. Until recently, little effort was made to share prices previously paid by agencies throughout the government. Over the years, this lack of transparency contributed to large price disparities, where one agency may pay a significant amount more for the exact same product or commoditized service as another agency under the same or substantially similar terms and conditions, sometimes even from the same vendor. GSA has already seen examples where price variability has decreased through the collection of transactional data such as with its Office Supplies 2 (OS2) government-wide strategic sourcing vehicle, and others, saving taxpayers approximately $370 million.

    GSA proposes to address this weakness through the use of a transactional data reporting clause. Under the clause contractors would be required to report historical information encompassing the products and services delivered during the performance of the contract, including under orders and BPAs. Contractors would be required to electronically report contract sales monthly through a user-friendly online reporting system. The report would include transactional data elements such as unit measures, quantity of item sold, universal product code, if applicable, price paid per unit, and total price.

    GSA believes there are multiple benefits to use of the transactional data reporting clause, including better pricing, administrative savings, increased opportunities for small business participation, and standardization of practice.

    Better pricing: The availability of prices paid information will lead to better prices for the taxpayer by improving the agency's ability to conduct price analysis. It will also improve the quality of both contract and order level competition because vendors will know that their customers have greater market intelligence on what other agencies have paid in similar situations. For example, GSA initiated a dynamic pricing model, where prices are adjusted based on transactional data, on its Office Supplies 2 vehicle between November 2012 and January 2013. Prior to the implementation of dynamic pricing, the average OS2 savings were 13.5 percent. However, since fully implementing dynamic pricing in June 2013, savings rates have averaged approximately 18 percent, or roughly 4.5 percent higher than pre-dynamic pricing.

    Administrative savings: GSA expects the added value of transactional data to GSA contract vehicles to ultimately reduce duplicative contract vehicles as both FSS and non-FSS contracts will demonstrably offer best value, reducing transactional costs to both agencies and contractors. GSA estimates that more than 600,000 open market actions overlap with existing GSA contract vehicles. With better pricing on GSA contracts, agencies will have less incentive to establish separate contracts. Additionally, GSA believes replacing the price reduction clause's tracking customer requirement with transactional data reporting could reduce the annual burden on contractors by more than 85 percent, or approximately $51 million in administrative costs to contractors, when compared to the burden hours associated with the tracking customer requirement under the price reductions clause in its current configuration.

    Reduction of barriers to small business participation: The reduction in duplicative and inefficient procurement transactions removes barriers to entry into the Federal marketplace, particularly for small businesses. The GAO reports the costs of being on multiple contract vehicles ranged from $10,000 to $1,000,000 due to increased bid and proposal, and administrative costs (see GAO report # GAO-10-367, Contracting Strategies, Data and Oversight Problems Hamper Opportunities to Leverage Value of Interagency and Enterprisewide Contracts).

    Standardization: Significant GSA non-FSS contracts include a requirement for transactional data. Though the specifics vary, GSA's Alliant, Alliant Small Business, 8(a) Streamlined Technology Acquisition Resources for Services (STARS) II, and Veterans Technology Services (VETS) GWACs, Connections II, Custom SATCOM Solutions (CS2), Custom SATCOM Solutions—Small Business (CS2-SB), Office Supply Third Generation (OS3), and One Acquisition Solution for Integrated Services (OASIS) Govermentwide IDIQs, all have built-in vendor requirements for submission of transactional data. Currently, these requirements are communicated in solicitations without the benefit of a dedicated GSAR clause. The creation of a uniform clause to be used across GSA's non-FSS programs would facilitate consistency and transparency by allowing the public to comment on the proposed new clause.

    Use of Vertical Pricing and Movement Toward Both Vertical and Horizontal Pricing in the FSS Program

    The FSS program is currently built around a vertical pricing model where pricing offered to the government from a potential vendor is compared to the pricing that the same vendor offers to its commercial customers. When vendors first submit an FSS offer, minimal consideration is given to the relative competitiveness of the vendor's prices to other vendors (i.e., horizontal pricing). Instead, the FSS program primarily collects aggregate sales information, including a broad disclosure of discounts vendors offer to commercial customers for similar products and services (see the “Commercial Sales” disclosure guidance at GSAR 515.408). The Government's negotiation objective is to achieve a company's best price—i.e., the price given to its most favored customer (see GSAR 538.270(a)) who buys in quantities and under conditions similar to those of the government. Contractors are then required, under the “price reductions” clause (PRC), to monitor their pricing over the life of the contract and provide the government with the same price reductions that they give to the class of the contractor's commercial customers upon which the original contract award was predicated (see GSAR 552.238-75). In addition to the “tracking customer” requirement, the price reductions clause allows vendors to voluntarily reduce prices to the Government and for the Government to request a price reduction at any time during the contract period such as where market analysis indicates that lower prices are being offered or paid for the same items under similar conditions.

    The required disclosure of commercial sales practices and the PRC were first introduced into the FSS program in the 1980s as a way to ensure fair and reasonable pricing through the life of a contract with the goal of achieving most favored customer pricing. For many years, the tracking customer feature of the PRC was a critical mechanism for enabling GSA and its customers to maintain good pricing from original equipment manufacturers who held the vast majority of FSS contracts. However, changes in the Federal market have lessened the impact of the tracking customer mechanism over time. Of particular note, an increasing percentage of FSS contractors are resellers with little or no commercial sales. The GSA Inspector General (IG) recently reported that resellers represent more than one-third of FSS vendors (See Major Issues from Multiple Award Schedules Audits, Audit Memorandum Numbers A120050-3, available at http://www.gsaig.gov under Office of Inspector General (OIG) Reports and Audit Reports).

    Moreover, due to the various exceptions included in the PRC the tracking customer feature ties pricing for reductions to sales of single items and plays little role in blanket purchase agreement and order purchases reflecting volume sales. Further, many products sold under the FSS program are commercial-off-the-shelf (COTS) products or other commercial items for which the government is not a market driver. The government, and other customers in the category to which the government is most typically aligned under the price reductions clause, tend to receive voluntary price reductions from the vendor as a result of general market forces (e.g., intense competition and small profit margins within the IT hardware arena that cause vendors to lower their prices for all customers voluntarily to maintain market share). In other words, prices are reduced under the voluntary provisions of the price reduction clause as a result of market rate pricing changes, not under the mandatory tracking customer provisions. GSA recently analyzed modifications issued between October 1, 2013 and August 4, 2014 under nine of its FSS contracts, including Schedule 70 (Information Technology), Schedule 874 (Mission Oriented Business Integrated Solutions (MOBIS)), Schedule 66 (Scientific Equipment and Services), Schedule 84 (Total Solutions for Law Enforcement, Security, Facilities Management, Fire, Rescue, Clothing, Marine Craft and Emergency/Disaster Response), Schedule 899 (Environmental Services), Schedule 738 II (Language Services), 874 V (Logistics Worldwide), Schedule 871 (Professional Engineering Services), and Schedule 00CORP (The Consolidated Schedule). GSA found that only about 3 percent of the total price reductions received under the price reduction clause were tied to the “tracking customer” feature. The vast majority (approximately 78 percent) came as a result of commercial pricelist adjustments and market rate changes, with the balance for other reasons. This finding supports attempting a different means of making better pricing available.

    Simultaneous with these trends, significant improvements in technology now make it possible to collect transactional data and display it in a way that government customers can see the prices paid by other FSS customers along with other data to determine whether prices offered to them represent the best value to the taxpayer. As explained above, the required disclosure and sharing of prices paid information through the use of a transactional data reporting clause and portal under the OS2 pilot led to savings rates averaging approximately 18 percent, or about 4.5 percent higher than pre-dynamic pricing.

    GSA believes the collection and use of transactional data may be a more efficient and effective way for driving price reductions on FSS buys than through use of the tracking customer mechanism. In addition to avoiding the challenges associated with the tracking customer mechanism described above, the transactional data reporting clause would allow for greater reliance on horizontal pricing in the FSS program so that GSA and its customers can easily evaluate the relative competitiveness of prices between FSS vendors. Moreover, the transactional data reporting clause, if used as an alternative to tracking customer mechanism, could significantly reduce contractor burden. The Chief Acquisition Officers Council recently conducted an Open Dialogue through an online platform on improving how to do business with the Federal Government. Contractors pointed to the price reductions clause as one of the most complicated and burdensome requirements in Federal contracting, and GSA's own estimates suggest FSS contractors spend over 860,000 hours a year (at a cost of approximately $58.5 million) on compliance with this clause. Several conversations in this dialogue identified the need to reform FSS pricing policies, particularly requesting the removal of GSAR clause 552.238-75, Price Reductions requirements. Over the years, GSA has made adjustments to address burdens and improve the use of these tools. In particular, on March 4, 1996 (GSAR Change 70), GSA modified the sales disclosure form to require only summary information and recognize that the terms and conditions of commercial sales vary and there may be legitimate reasons why the best price is not achieved. Despite these significant adjustments to the FSS pricing model, contractors continue to struggle to comply with the sales practice disclosure requirements and the price reduction clause. In two separate reports, the GSA IG found that over two-thirds of vendors reviewed in fiscal year (FY) 2011 and 84 percent in FY 2012 provided commercial sales practice disclosures that are not current, accurate, and/or complete and nearly half of the vendors in FY 2012 had inadequate sales monitoring systems and billing systems to ensure proper administration of the price reduction and billing provisions. See Major Issues from Multiple Award Schedules Audits, Audit Memorandum Numbers A120050-3 and A120050-4, available at http://www.gsaig.gov under OIG Reports and Audit Reports.

    As stated above, GSA believes that the transactional data reporting clause could reduce the annual burden on contractors by more than 85 percent, or approximately $51 million in administrative costs to contractors, when compared to the burden hours associated with monitoring pricing under the price reductions clause in its current configuration. GSA further believes that use of the transactional data reporting clause as an alternative to the price reduction clause addresses recommendations made by independent reviewers of the FSS program over the past several years. In particular, the Multiple Award Schedule (MAS) Blue Ribbon Advisory Panel, which included representatives from the largest buying agencies, the Department of the Defense, Department of Homeland Security, Department of the Interior, Department of the Treasury, and U.S. Department of Education and industry, recommended in 2010 that “the GSA Administrator remove the Price Reduction Clause from the MAS program supply contracts for products in phases as the GSA Administrator implements recommendations for competition and price transparency at the Schedule contract level and the order level.” The same year, the Government Accountability Office (GAO) issued a report recommending that GSA collect “prices paid” data on FSS orders and make this information available to FSS contract negotiators and customer agencies. See Data and Oversight Problems Hamper Opportunities to Leverage Value of Interagency and Enterprisewide Contracts, GAO-10-367 (April 2010), available at http://www.gao.gov/products/GAO-10-367.

    Transitioning to Transactional Data Reporting

    GSA recognizes that use of prices paid information must be done within the context of seeking to obtain the best value for the taxpayer and envisions that this information would be used as one information point in conjunction with other considerations, such as total cost, desired performance levels, delivery schedule, unique terms and conditions, time considerations, and customer satisfaction. Training to support the implementation of this rule would emphasize that prices paid information must be considered within the context of each individual procurement. More importantly, related efforts, such as the development of category hallways—an online marketplace tool—and the appointment of category managers with in-depth market expertise, will help agencies gain market intelligence to make smarter and well-informed buying decisions.

    GSA further recognizes that its government-wide non-FSS and FSS contract vehicles require separate implementation strategies taking into account differences in the pricing models currently used by these vehicles.

    Government-wide Non-FSS contract vehicles. To implement the transactional data reporting requirement, this proposed rule would add a new GSAR clause for non-FSS contract vehicles, 552.216-75 Sales Reporting and Fee Remittance, which would require the submission of transactional data from vendors on orders and prices paid by ordering activities. Government-wide non-FSS contract vehicles account for approximately $3.9 billion in federal contract spending each year. As explained above, a significant number of GSA's non-FSS contract vehicles, including all GWAC vehicles, already include a requirement for transactional data. This proposed rule would standardize this practice for non-FSS contract vehicles and allow GSA to collect data on fixed-price, time-and-material, labor-hour, and cost-reimbursement contracts, consistent with requirements currently in GWAC vehicles.

    FSS contract vehicles. GSA proposes a phased-in implementation of the transactional data reporting clause to the FSS program, beginning with a pilot chosen from FSS product offerings and commoditized services where obtaining such data has the greatest potential impact to reduce price variability and help agencies secure better value for the taxpayer through category management. Application of the transactional data reporting clause, including the proposed pilot, would be limited to FSS contracts managed by GSA's Federal Acquisition Service. This rule would not apply to FSS contracts managed by the Department of Veterans Affairs pursuant to a delegation provided by GSA.

    Details regarding the pilot will be provided by separate notice, including through social media tools already in place such as GSA Interact (https://interact.gsa.gov), as well as updates to GSA's Web site where current information is displayed and access and links to other sites are provided. Respondents will be invited to provide feedback through these mechanisms as well as at the public meeting announced in this notice. Respondents are also invited to provide written feedback in response to this notice regarding the preliminary pilot design features described below:

    Scope. The pilot would focus on commercial-off-the-shelf and related commercial products and commoditized services that experience high volume of repetitive purchasing under identical or substantially similar terms and conditions.

    Participation: Vendor participation in the pilot would be mandatory. Covered vendors would not be subject to the tracking customer requirements of the price reduction clause.

    However, vendors would still be subject to the commercial sales disclosure requirements, including the requirement to disclose commercial sales practices when requesting a contract modification for additional items or additional Special Item Numbers. In addition, GSA would maintain the right throughout the life of the FSS contract to ask a vendor for updates to the disclosures made on its commercial sales format (which is used to negotiate pricing on FSS vehicles) if and as necessary to ensure that prices remain fair and reasonable in light of changing market conditions. The government could request price reductions and vendors could voluntarily provide price reductions. GSA would modify select existing contracts and conduct solicitation refreshes under the FSS program to implement the new transactional data reporting requirements.

    Evaluation: Similar to best practices used in strategic sourcing efforts, GSA would establish clearly defined metrics prior to the launch of the pilot, such as savings rates, customer satisfaction, small business utilization, and benchmark results against available commercial data sources within categories of spend to evaluate the impact of the transactional data reporting clause. Pilot results would be evaluated before applying the transactional data reporting clause to additional FSS contracts and making usage mandatory more broadly. Pilot results would also be used to evaluate the comparative efficiency and effectiveness of the tracking customer requirement. If GSA determines using transactional data is not an effective pricing model within the FSS program, contracts would be modified to revert back to using the provisions described in the basic GSAR clause 552.238-75, Price Reductions.

    Software, Tools, and Training

    GSA intends to update its systems in order to collect and analyze transactional data. Data submission will be enabled through multiple electronic interfaces (e.g., secure data entry, electronic file submission, or an application programming interface (API)). The goal is to make the reporting process as streamlined, secure and efficient as possible for contractors, requiring them to submit only the transactional data GSA cannot access via other means (e.g., GSA contract management systems or Federal reporting systems such as the System for Award Management (SAM) or the Federal Procurement Data System (FPDS)).

    GSA also plans to implement an API for buyers to benefit from using transactional data. Through the API, GSA will make this information accessible online for all Government buyers. This data will help buyers better understand the universe of GSA purchases; helping them to drive down prices, reduce price variability, and make smarter purchases.

    Prior to implementation of transactional data reporting requirements, GSA's Vendor Support Center (https://vsc.gsa.gov) will provide instructions and offer training to vendors on how to report transactional data for FSS and non-FSS orders.

    Additionally, GSA will update its relevant courseware on the Federal Acquisition Institute (FAI) and Defense Acquisition University (DAU) portals to educate both customers and GSA contracting officers on how to use the data. The Federal Acquisition Service (FAS) has an internal training course aimed at GSA contracting officers awarding and administering FSS contracts—this course will be updated to educate contracting officers on how to conduct analysis on transactional data, as well as how to use these analyses to achieve better pricing on the contracts. Similarly, the external-facing courseware on how to use the FSS program and other non-FSS GWACs and MACs will be updated to educate customers on the new requirements and how they can use the data collected (to be shared by GSA) to buy smarter. The external courseware will also highlight the additional value the collected data offers to GSA's FSS and non-FSS contracting programs.

    IV. Executive Orders 12866 and 13356

    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.

    V. Regulatory Flexibility Act

    GSA expects 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 the proposed rule involves providing transactional data on FSS and non-FSS orders and transactional data that may ultimately affect the end pricing of products offered through GSA. However, the cost to comply with the additional reporting requirement may be offset by the benefits provided by the transactional data, such as greater insight and visibility into customer buying habits and knowledge of market competition.

    An additional benefit to FSS contractors is that the addition of the transactional data reporting clause would be coupled with an alternate version of GSAR clause 552.238-75 Price Reductions that does not require customer tracking where the vendor monitors and provides price reductions to the Government when the customer or category of customer upon which the contract was predicated receives a discount. GSAR clause 552.238-75, Price Reductions has long been the mechanism through which GSA ensures prices on contract remained fair and reasonable. However, with transactional data, contracting officers will have a new, potentially more effective and less burdensome mechanism through which to ensure contract pricing is competitive and fair and reasonable, although vertical pricing analysis techniques can still be used.

    Providing the required transactional data will impose significant economic impact on all contractors, both small and other than small, doing business on GSA-managed contracts. Therefore, an Initial Regulatory Flexibility Analysis (IRFA) has been prepared consistent with 5 U.S.C. 603, and is summarized as follows:

    The General Services Administration (GSA) is proposing to amend General Services Administration Acquisition Regulation (GSAR) to add an alternate to clause 552.238-74 Industrial Funding Fee (IFF) and Sales Reporting, and new clause 552.216-75 Sales Reporting and Fee Remittance to require transactional data reporting in FSS and non-FSS contract vehicles. The clause will require GSA contractors to provide transactional data, which is equivalent to information found on an itemized invoice, to GSA. This will further the objective to improve category management and negotiate better pricing on all GSA acquisition vehicles. Collecting transactional data on orders and prices paid will allow customers to analyze spending patterns and develop new acquisition strategies to fully leverage the Government's spend.

    GSA is undertaking a major modernization initiative aimed at enabling customers to drive better value and achieve taxpayer savings by setting the stage for pricing reform. A major characteristic of modernization is collecting and using transactional data for units under most GSA acquisition vehicles to serve as a basis for price analysis and category management.

    This rule will apply to all contractors who hold non-FSS contract vehicles as well as to all FSS contract holders, contingent on beneficial results being demonstrated through a pilot conducted on a subset of FSS contracts for products and commoditized services. As of Fiscal Year 2013, there are 15,738 vendors holding 18,598 FSS and non-FSS contract vehicles. Of the 15,738 vendors, 12,590 are small entities to which the rule will apply. Only those contracts with sales would have data to report. Department of Veteran Affairs FSS holders are not affected.

    During the development of the rule, GSA considered using one of its many internal applications that support pre-award and post-award actions for GSA contracts to pull the transactional data necessary for more robust price analysis. These internal applications facilitate data exchanges between GSA and its vendors to provide business intelligence, create procurement sources, facilitate acquisitions, execute deliveries, and provide customer care. GSA uses this information to update systems architecture, to develop new applications for contract administration, and to enhance business intelligence for suppliers and ordering activities. Unfortunately, most of these systems do not collect transactional data at a level that would be of benefit for spend analysis and/or do not possess the most accurate and timely information regarding purchasing activity. Approximately 13 percent of GSA-controlled sales, which includes purchases made by GSA's Assisted Acquisition Services activity on behalf of customer agencies, can capture transactional data; for the remaining majority of purchases (87 percent), the customer and supplier are the only sources of detailed transaction-level data.

    Another option for transactional data sourcing would be to enhance or combine existing GSA systems to collect the data. GSA would incur significant IT development costs for the effort. Were GSA to invest the time and resources into an enterprise-wide system that could handle procurement functions and spend analysis, then customers and suppliers would need to commit to use electronic commercial tools such as eBuy and Advantage!®. Without the 100 percent commitment of individual customers, the data will be incomplete—possibly to a large extent—and may significantly skew any subsequent analysis on cost savings and/or purchasing decisions.

    GSA's SmartPay program (the program that manages the governmentwide purchase card) is another source where transactional data could be collected, and has been on a limited basis following commercial standards for the past several years on sub-sets of several FSS contracts. However, with less than 1 percent of procurements being made through the purchase card, this method would not provide a complete set of data to achieve the full benefits of capturing transactional data.

    Finally, FPDS could be upgraded to collect transactional data. However, this would require Federal Acquisition Regulation revisions, tens of millions of dollars in system changes, and years to implement. Additionally, ordering activities do not normally collect transactional data, so agency financial procedures and systems would have to be overhauled in order to accommodate transactional data collection.

    The Regulatory Secretariat has submitted a copy of the Initial Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. 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 this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (GSAR Case 2013-G504), in correspondence.

    VI. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The proposed rule contains information collection requirements. Accordingly, the Regulatory Secretariat will be submitting a request for approval of a new information collection requirement concerning this rule to the Office of Management and Budget under 44 U.S.C. 3501, et seq.

    GSA estimates the proposed rule will result in a net burden reduction of approximately 757,000 hours per year based on the difference in current reporting requirement (i.e. GSAR clause 552.238-75) and the proposed reporting requirements (i.e. clause 552.238-74 Industrial Funding Fee and Sales Reporting (Federal Supply Schedule) Alternate I and clause 552.216-75 Sales Reporting and Fee Remittance). The analysis of this calculation as well as the assumptions made to support this analysis is presented below.

    A. New Reporting Requirements

    GSA estimates the public reporting burden for contractors to set-up transactional data reporting systems to average a one-time initial set-up burden of 6 hours. The estimated time includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. GSA also took into consideration training, compliance systems, negotiations, and audit preparation the new clause may require, when estimating the one-time initial set-up of 6 hours.

    Thereafter, the monthly burden estimate to report data is approximately .52 of an hour or 31 minutes. This number takes into consideration the distribution of contract values (i.e. sales) and assumes monthly reporting burden rises with vendor sales based on the distribution of sales and obligations within FSS contracts and non-FSS contracts. There is a wide variation in contract sales, therefore monthly reporting burden ranges between 2 minutes (for contractors with $0 in sales) and 4 hours (for contractors with greater than $50 million in sales). GSA estimates that only the top 0.6 percent of FSS contractors and top 4 percent of non-FSS contractors will be affected the most. The average GSA contractor will see little or no effect of the new reporting requirement.

    A weighted average was used, based on distribution of sales, to calculate a reporting burden. To arrive at the weighted average, vendors were broken up into six categories, based on contract values. The characteristics of these categories of contracts in FY 2013 are as follows:

    Category 1: Contract value is less than $0. The estimated burden for this category per contractor is 0.03 hours (2 minutes) a month, or 0.36 hours (21.8 minutes) annually. This makes up 37 percent of FSS contractors and 8 percent of non-FSS vendors. The total annual burden for this category is estimated as 2,620 hours.

    Category 2: Contract value is $1-$500,000. The estimated burden for this category per contractor is 0.5 hours (30 minutes) a month, or 6 hours annually. This category makes up 41 percent of FSS contractors and 24 percent of non-FSS vendors. The total annual burden for this category is estimated as 44,884 hours.

    Category 3: Contract value is $500,000-$5,000,000. The estimated burden for this category per contractor is 1 hour per month, or 12 hours annually. This category makes up 17 percent of FSS contractors and 43 percent of non-FSS vendors. The total annual burden for this category is estimated as 38,956 hours.

    Category 4: Contract value is $5,000,000-$20,000,000. The estimated burden for this category per contractor is 2 hours per month, or 24 hours annually. This category makes up 4 percent of FSS contractors and 17 percent of non-FSS vendors. The total annual burden for this category is estimated as 17,293 hours.

    Category 5: Contract value is $20,000,000-$50,000,000. The estimated burden for this category per contractor is 3 hours per month, or 36 hours annually. This category makes up 1 percent of FSS contractors and 5 percent of non-FSS vendors. The total annual burden for this category is estimated as 6,785 hours.

    Category 6: Contract value is greater than $50,000,000. The estimated burden for this category per contractor is 4 hours per month, or 48 hours annually. This category makes up 1 percent of FSS contractors and 4 percent of non-FSS vendors. The total annual burden for this category is estimated as 5,094 hours.

    Taking the above into consideration, a weighted average was used to calculate an annual burden of 6.3 hours or 0.52 hours per month since reporting will be required monthly.

    The cost of reporting was quantified by multiplying the level of effort in hours by an assumed fully loaded hourly rate for contractors ($50 × 136 percent = $68). The annual reporting burden is estimated as follows:

    552.216-75 Sales Reporting and Fee Remittance (Transactional Data Reporting Requirement) and 552.238-74 Industrial Funding Fee and Sales Reporting (FEDERAL SUPPLY SCHEDULE) Alternate I

    The total public annual burden hours for setup and reporting are 223,906.32 based on the following:

    Non-FSS Contracts

    (One-time initial setup)

    Respondents: 477.

    Responses Per Respondent: × 1.

    Total Responses: 477.

    Hours Per Response: × 6.

    Total Burden Hours: 2,862.

    Non-FSS Contracts

    (Reporting)

    Respondents: 477.

    Responses Per Respondent: × 12.

    Total Responses: 5,724.

    Hours Per Response: × 0.52.

    Total Burden Hours: 2,976.48.

    The annual estimated total burden hours for non-FSS contracts are 5,838.48 for year one and 2,976.48 for every year thereafter.

    FSS Contracts

    (One-time initial setup)

    Respondents: 17,816.

    Responses Per Respondent: × 1.

    Total Responses: 17,816.

    Hours Per Response: × 6.

    Total Burden Hours: 106,896.

    FSS Contracts

    (Reporting)

    Respondents: 17,816.

    Responses Per Respondent: × 12.

    Total Responses: 213,792.

    Hours Per Response: × 0.52.

    Total Burden Hours: 111,171.84.

    The annual estimated total burden hours for FSS contracts are 218,067.84 for year one and 111,171.84 for every year thereafter.

    The total annual estimated cost to the public for the Transactional Data Reporting GSAR clauses (552.216-75 and 552.238-74 Alternate I) and is estimated to be $15,225,629.76 based on the following:

    Non-FSS

    (One-time initial setup)

    Respondents: 477.

    Responses per respondent: × 1.

    Total annual responses: 477.

    Preparation hours per response: × 6.

    Total response burden hours: 2,862.

    Average hourly wages ($50.00+36 percent overhead): × 68.

    Estimated cost to the public: $194,616.

    Non-FSS

    (Reporting)

    Respondents: 477.

    Responses per respondent: × 12.

    Total annual responses: 5,724.

    Preparation hours per response: × .52.

    Total response burden hours: 2,976.48

    Average hourly wages ($50.00+36 percent overhead): × 68.

    Estimated cost to the public: $202,400.64.

    Estimated cost to the public for Non-MAS contracts is: $397,016.64 for year one and $202,400.64 for every year thereafter.

    FSS Contracts

    (One-time initial set up)

    Respondents: 17,816.

    Responses per respondent: × 1.

    Total annual responses: 17,816.

    Preparation hours per response: × 6.

    Total response burden hours: 106,896.00

    Average hourly wages ($50.00+36 percent overhead): × 68.00.

    Estimated cost to the public: $7,268,928.

    FSS

    (Reporting)

    Respondents: 17,816.

    Responses per respondent: × 12.

    Total annual responses: 213,792.

    Preparation hours per response: × .52.

    Total response burden hours: 111,171.84.

    Average hourly wages ($50.00+36 percent overhead): 68.00.

    Estimated cost to the public: $7,559,685.12.

    The total estimated cost to the public for FSS contracts is $14,828,613.12 for year one and $7,559,687.12 for every year thereafter.

    There are 18,293 contracts containing the transactional data reporting requirement. Data submitted by respondents is submitted and stored electronically. Retrieval of cumulative data requires approximately 1 hour each month (1*12) for a total of 12 hours annually; and costs the Government $9,015,522.12 annually.

    Requests per year 18,293.

    Reviewing Time (1*12)  × 12. 

    Total Review Time/year 219,516.

    Average Cost/hr  × 41.07.

    Total Government Cost $9,015,522.12.

    The cost of $41.07 per hour is based on GS-12, step 5 salary (Salary Table 2014-DCB Washington-Baltimore, DC-MD-VA-WV-PA, Effective January 2014).

    Difference in Reporting Requirements

    Acceptance of GSAR Alternate I, 552.238-74 Industrial Funding Fee and Sales Reporting (Federal Supply Schedule), also triggers the inclusion of Alternate II, 552.238-75 Price Reductions. Unlike the basic Price Reductions GSAR clause, Alternate II of 552.238-75 does not require the vendor to monitor and provide price reductions to the Government when the customer or category of customer upon which the contract was predicated receives a discount. In other words, there will be no reporting burden for GSAR Alternate II, 552.238-75 Price Reductions.

    The current total estimated reporting burden hours for GSAR clause 552.238-75 Price Reductions is 868,150 with annual burden cost of approximately $58.5 million (see OMB control number 3090-0235). The total annual estimated reporting burden hours for the new Transactional Data Reporting clause is 111,171.84 with annual burden cost of $7,559,685.12. Therefore, the net annual burden reduction is 756,978.16 hours with annual burden savings of approximately $51 million.

    B. Request for Comments Regarding Paperwork Burden

    Submit comments, including suggestions for reducing this burden, not later than Monday, May 4, 2015 to: General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Hada Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405-0001.

    Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the GSAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology.

    Requesters may obtain a copy of the supporting statement from the General Services Administration, Regulatory Secretariat (MVCB), ATTN: Hada Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20407. Please cite OMB Control Number 3090-0306, Transactional Data Reporting: GSAR Part Affected: 552.238-74, Industrial Funding Fee and Sales in all correspondence.

    List of Subjects in 48 CFR Parts 501, 516, 538 and 552

    Government procurement.

    Dated: February 25, 2015. Jeffrey A. Koses, Senior Procurement Executive, Office of Acquisition Policy, Office of Government-wide Policy, General Services Administration.

    Therefore, GSA proposes to amend 48 CFR parts 501, 516, 538, and 552 as set forth below:

    1. The authority citation for 48 CFR parts 501, 516, 538, and 552 continues to read as follows: Authority:

    40 U.S.C 121(c).

    PART 501—GENERAL SERVICES ADMINISTRATION ACQUISITION REGULATION SYSTEM
    501.106 [Amended]
    2. Amend section 501.106 in the table, by adding in numerical sequence, GSAR Reference “552.216-75” and its corresponding OMB Control Number “3090-XXXX”. PART 516—TYPES OF CONTRACTS 3. Amend section 516.506 by adding paragraph (d) to read as follows:
    516.506 Solicitation provisions and contract clauses.

    (d) The contracting officer may insert clause 552.216-75 in solicitations and GSA-awarded IDIQ contracts. This clause should be included in all GSA-awarded Governmentwide acquisition contracts and multi-agency contracts.

    PART 538—FEDERAL SUPPLY SCHEDULE CONTRACTING 4. Amend section 538.273 by revising paragraphs (b)(1) and (2) to read as follows:
    538.273 Contract clauses.

    (b) * * *

    (1) 552.238-74, Industrial Funding Fee and Sales Reporting. Use Alternate I for Federal Supply Schedules with Transactional Data Reporting Requirements. Clause 552.238-75 Alternate II should also be used when vendors agree to include clause 552.238-74 Alternate I in the contract.

    (2) 552.238-75, Price Reductions (May 2004).

    (i) Except in cases where Alternate II is used, use Alternate I in solicitations and contracts for:

    (A) Federal Supply Schedule 70;

    (B) The Consolidated Schedule containing information technology Special Item Numbers;

    (C) Federal Supply Schedule 84; and

    (D) Federal Supply Schedules for recovery purchasing (see 538.7102).

    (ii) Use Alternate II for Federal Supply Schedules with Transactional Data Reporting Requirements. This alternate clause is used when vendors agree to include clause 552.238-74 Alternate I;

    (iii) Federal Supply Schedule 84; and

    (iv) Federal Supply Schedules for recovery purchasing (see 538.7102).

    PART 552—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 5. Amend section 552.212-71 by revising the introductory text to read as follows:
    552.212-71 Contract Terms and Conditions Applicable to GSA Acquisition of Commercial Items.

    As prescribed in 512.301(a)(1), insert the following clause:

    6. Add section 552.216-75 to read as follows:
    552.216-75 Transactional Data Reporting.

    As prescribed in 516.506(d), insert the following provision:

    Transactional Data Reporting (Date)

    (a) Definitions:

    (1) Contract sale is the price paid by the ordering activity for the product or service on the task or delivery order placed against this contract. Contract sales include contract items sold to authorized users unless the purchase was conducted pursuant to a separate contracting authority, such a separately awarded FAR part 12, FAR part 13, FAR part 14, or FAR part 15 procurement; or a non-FAR contract.

    (2) Transactional data is historical information encompassing the products and services delivered during the performance of a contract.

    (b) Reporting of Contract Sales. The Contractor shall report all contract sales under this contract as follows:

    (1) The Contractor shall electronically report contract sales monthly, including “zero” sales, by utilizing the automated reporting system at an Internet Web site designated by the General Services Administration (GSA) or by uploading the data according to GSA instructions. Each report shall be submitted within 15 calendar days of the applicable monthly reporting period. The Web site address, as well as registration instructions and reporting procedures, will be provided at the time of award.

    (2) The Contractor shall provide, at no cost to the Government, the following transactional data elements, as applicable—

    (i) Contract or BPA Number;

    (ii) Order Number/Procurement Instrument Identifier (PIID);

    (iii) Non Federal Entity, if applicable;

    (iv) Description of Deliverable;

    (v) Manufacturer Name;

    (vi) Manufacturer Part Number;

    (vii) Unit Measure (each, hour, case, lot);

    (viii) Quantity of Item Sold;

    (ix) Universal Product Code (UPC), if applicable;

    (x) Price Paid per Unit; and

    (xi) Total Price.

    (3) GSA will post reporting instructions at https://vsc.gsa.gov/. GSA reserves the unilateral right to change reporting instructions, including data submission requirements, following 60 days advance notification to the Contractor.

    (4) The Contractor shall report contract sales in U.S. dollars.

    (5) The reported contract sales value shall include the Contractor Access Fee (CAF).

    (6) The Contractor shall maintain a consistent accounting method of contract sales reporting, based on the Contractor's established commercial accounting practice.

    (7) The acceptable points at which contract sales may be reported include—

    (i) Issuance of an invoice; or

    (ii) Receipt of payment.

    (8) The Contractor shall continue to furnish reports, including “zero” sales, through physical completion of the last outstanding task or delivery order of the contract.

    (9) Orders that contain classified information are exempt from this reporting requirement (See FAR 4.606(c)).

    (c) Contractor Access Fee (CAF). (1) The CAF represents a percentage of the total quarterly sales reported. This percentage is set at the discretion of GSA. GSA has the unilateral right to change the percentage at any time, but not more than once per year. GSA provides reasonable notice prior to the effective date of the change. The CAF reimburses GSA for operating costs. Offerors must include the CAF in their prices. The fee is included in the awarded price(s) and reflected in the total amount charged to ordering activities.

    (2) Within 60 days of award, a GSA representative will provide the Contractor with specific written procedural instructions on remitting the CAF. GSA reserves the unilateral right to change such instructions following notification to the Contractor.

    (3) The Contractor shall remit the CAF at the rate set by GSA within 15 calendar days after the end of the calendar month. Final payment shall be remitted within 30 days after physical completion of the last outstanding task order or delivery order of the contract.

    (4) The Contractor shall remit the CAF to GSA in U.S. dollars.

    (5) Failure to remit the full amount of the CAF within 15 calendar days after the end of the applicable reporting period constitutes a contract debt to the United States Government under the terms of FAR Subpart 32.6. The Government may exercise all rights under the Debt Collection Improvement Act of 1996, including withholding or setting off payments and interest on the debt (see FAR clause 52.232-17, Interest). Should the Contractor fail to submit the required sales reports, falsify them, or fail to timely pay the CAF, this is sufficient cause for the Government to terminate the contract for cause.

    (End of Clause)
    7. Amend section 552.238-74 by revising the date of the clause; and adding Alternate I to read as follows:
    552.238-74 Industrial Funding Fee and Sales Reporting. Industrial Funding Fee and Sales Reporting (Date)

    Alternate I (Date): As prescribed in 538.273(b)(1), substitute the following paragraphs (a), (b), and (c) for paragraphs (a), (b), and (c) of the basic clause:

    (a) Definitions.

    (1) Contract sale is the price paid by the ordering activity for the product or service on the task or delivery order placed against this contract. Contract sales include contract items sold to authorized users unless the purchase was conducted pursuant to a separate contracting authority, such as a Governmentwide Acquisition Contract (GWAC); a separately awarded FAR part 12, FAR part 13, FAR part 14, or FAR part 15 procurement; or a non-FAR contract. Sales made to state and local governments under Cooperative Purchasing authority shall be counted as reportable sales.

    (2) Transactional data is historical information encompassing the products and services delivered during the performance of a contract.

    (b) Reporting of Contract Sales. The Contractor shall report all contract sales under this contract as follows:

    (1) The Contractor shall electronically report contract sales monthly, including “zero” sales, by utilizing the automated reporting system at an Internet Web site designated by the General Services Administration (GSA) or by uploading the data according to GSA instructions. Each report shall be submitted within 15 calendar days of the applicable monthly reporting period. The Web site address, as well as registration instructions and reporting procedures, will be provided at the time of award.

    (2) The Contractor shall provide, at no cost to the Government, the following transactional data elements, as applicable—

    (i) Contract or BPA Number;

    (ii) Order Number/Procurement Instrument Identifier (PIID);

    (iii) Non Federal Entity, if applicable;

    (iv) Description of Deliverable;

    (v) Manufacturer Name;

    (vi) Manufacturer Part Number;

    (vii) Unit Measure (each, hour, case, lot);

    (viii) Quantity of Item Sold;

    (ix) Universal Product Code (UPC), if applicable;

    (x) Price Paid per Unit; and

    (xi) Total Price.

    (3) GSA will post reporting instructions at vsc.gsa.gov. GSA reserves the unilateral right to change reporting instructions, including data submission requirements, following 60 days advance notification to the Contractor.

    (4) The Contractor shall report contract sales in U.S. dollars.

    (5) The reported contract sales value shall include the Industrial Funding Fee (IFF).

    (6) The Contractor shall maintain a consistent accounting method of contract sales reporting, based on the Contractor's established commercial accounting practice.

    (7) The acceptable points at which contract sales may be reported include—

    (i) Issuance of an invoice; or

    (ii) Receipt of payment.

    (8) The Contractor shall continue to furnish reports, including “zero” sales, through physical completion of the last outstanding task or delivery order of the contract.

    (9) Orders that contain classified information are exempt from this reporting requirement (See FAR 4.606(c)).

    (c) Industrial Funding Fee. The Contractor shall remit the IFF at the rate set by GSA's FAS.

    (1) The Contractor shall remit the IFF to FAS in U.S. dollars within 30 calendar days after the end of the reporting quarter; final payment shall be remitted within 30 days after physical completion of the last outstanding task order or delivery order of the contract.

    (2) The IFF remittance Web site address, as well as registration procedures and remittance instructions, will be provided at the time of award or acceptance of this clause. FAS reserves the unilateral right to change such instructions from time to time, following notification to the Contractor.

    (3) The IFF represents a percentage of the total quarterly sales reported. This percentage is set at the discretion of GSA's FAS. GSA's FAS has the unilateral right to change the percentage at any time, but not more than once per year. FAS will provide reasonable notice prior to the effective date of the change. The IFF reimburses FAS for the costs of operating the Federal Supply Schedules Program. FAS recoups its operating costs from ordering activities as set forth in 40 U.S.C. 321: Acquisition Services Fund. Net operating revenues generated by the IFF are also applied to fund initiatives benefitting other authorized FAS programs, in accordance with 40 U.S.C. 321. Offerors must include the IFF in their prices. The fee is included in the awarded price(s) and reflected in the total amount charged to ordering activities. FAS will post notice of the current IFF at https://72a.gsa.gov/ or successor Web site as appropriate.

    8. Amend section 552.238-75 by revising the date of the clause; and adding Alternate II to read as follows:
    552.238-75 Price Reductions. Price Reductions (Date)

    Alternate II (Date). As prescribed in 538.273(b)(2)(ii), substitute the following paragraph (a) for paragraphs (a), (b), (c), (d), (f) and (g) of the basic clause, and paragraph (e) of the basic clause will become paragraph (b) in Alternate II.

    The Government may request from the contractor a price reduction at any time during the contract period.

    [FR Doc. 2015-04349 Filed 3-3-15; 8:45 am] BILLING CODE 6820-61-P
    80 42 Wednesday, March 4, 2015 Notices DEPARTMENT OF AGRICULTURE Forest Service Eldorado National Forest; California; Eldorado National Forest Over-Snow Vehicle (OSV) Use Designation Environmental Impact Statement AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of intent to prepare an environmental impact statement.

    SUMMARY:

    The Forest Service, U.S. Department of Agriculture will prepare an Environmental Impact Statement (EIS) on a proposal to designate over-snow vehicle (OSV) use on National Forest System roads, National Forest System trails, and Areas on National Forest System lands within the Eldorado National Forest; and to identify snow trails for grooming within the Eldorado National Forest. In addition, the Forest Service proposes to:

    1. Formally adopt California State Parks' Off-Highway Motor Vehicle Recreation (OHMVR) Division snow depth standards for grooming to occur;

    2. Implement a forest-wide snow depth requirement for OSV use that would provide for public safety and natural and cultural resource protection by allowing off-trail, cross-country OSV use in designated Areas when there is a minimum of 12 inches of continuous and supportable snow covering the landscape;

    3. Allow OSV use on designated National Forest System snow trails when there is a minimum of 6 inches of snow, regardless of the underlying surface; and

    4. Prohibit OSV use in selected Areas and on non-motorized trails.

    This proposal would be implemented on all of the Eldorado National Forest.

    DATES:

    Comments concerning the scope of the analysis must be received by April 3, 2015. The draft environmental impact statement is expected in February 2016 and the final environmental impact statement is expected in October 2016.

    ADDRESSES:

    Send written comments to Micki D. Smith, on behalf of Laurence Crabtree, Forest Supervisor, Eldorado National Forest, 100 Forni Road Placerville, CA 95667. Comments may also be sent via facsimile to 530-621-5297. Comments may also be submitted on the Eldorado National Forest OSV Designation Web page: http://www.fs.usda.gov/project/?project=46034.

    Individuals who use telecommunication devices for the deaf (TTY) may call the Federal Information Relay Service (FIRS) at (800) 877-8339 TTY, 24 hours a day, 7 days a week.

    FOR FURTHER INFORMATION CONTACT:

    Micki D. Smith, Amador Resource and Recreation Staff Officer, USDA Forest Service, Eldorado National Forest, 100 Forni Road, Placerville, CA 95667; phone: 209-295-5960; [email protected]

    SUPPLEMENTARY INFORMATION:

    The following summarizes how the Forest Service currently manages OSV use on the approximately 606,260-acre Eldorado National Forest:

    1. Approximately 56 miles of National Forest System OSV trails exist on the Eldorado National Forest; all of which are groomed for OSV use;

    2. Approximately 159 miles of National Forest System trails are closed to OSV use, but accessible from Areas otherwise open to off-trail, cross-country OSV use;

    3. Approximately 452,140 acres of National Forest System land are open to off-trail, cross-country OSV use; and

    4. Approximately 154,120 acres of National Forest System land are closed to OSV use.

    Travel Management Rule Subpart C: The Forest Service issued a final rule governing OSV management (Subpart C of the Travel Management Rule, 36 CFR part 212) in the Federal Register on January 18, 2015, and this rule went into effect on February 27, 2015 (80 FR 4500, Jan. 28, 2015). Subpart C of the Travel Management Rule states,

    “Over-snow vehicle use on National Forest System roads, on National Forest System trails, and in areas on National Forest System lands shall be designated by the Responsible Official on administrative units or Ranger Districts, or parts of administrative units or Ranger Districts, of the National Forest System where snowfall is adequate for that use to occur, and, if appropriate, shall be designated by class of vehicle and time of year, provided that the following uses are exempted from these decisions:

    1. Limited administrative use by the Forest Service;

    2. Use of any fire, military, emergency, or law enforcement vehicle for emergency purposes;

    3. Authorized use of any combat or combat support vehicle for national defense purposes;

    4. Law enforcement response to violations of law, including pursuit; and

    5. Over-snow vehicle use that is specifically authorized under a written authorization issued under Federal law or regulations” (36 CFR 212.81(a)).

    The designations resulting from this analysis would only apply to the use of OSVs. An OSV is defined in the Forest Service's Travel Management Rule as “a motor vehicle that is designed for use over snow and that runs on a track or tracks and/or a ski or skis, while in use over snow” (36 CFR 212.1). OSV use designations made as a result of the analysis in this environmental impact statement would conform to Subpart C of the Travel Management Rule. OSV use that is inconsistent with the OSV use designations made under this decision would be prohibited under 36 CFR 261.14.

    These designations would not affect valid existing rights held by federally recognized tribes, counties, or private individuals, including treaty rights, other statutory rights, or private rights-of-way.

    Snow Trail Grooming Program: For over 30 years, the Forest Service, Pacific Southwest Region, in cooperation with the California Department of Parks and Recreation (California State Parks) Off-highway Motor Vehicle Division has enhanced winter recreation, and more specifically, snowmobiling recreation by maintaining National Forest System trails (snow trails) by grooming snow for snowmobile use. Most groomed snow trails are co-located on underlying National Forest System roads and trails. Some grooming occurs on county roads and closed snow-covered highways, and some routes are designated cross-country over snow. Grooming activities are funded by the state off-highway vehicle trust fund.

    In 2013, the Forest Service entered into a Settlement Agreement with Snowlands Network et al., to “complete appropriate NEPA [National Environmental Policy Act] analysis(es) to identify snow trails for grooming” on the Eldorado National Forest and four other national forests in California. The Forest Service will comply with the terms of the Settlement Agreement for the Eldorado National Forest by completing this analysis. Other requirements of the Settlement Agreement are listed in the “Need for Analysis” section, below.

    Purpose and Need for Action

    One purpose of this project is to effectively manage OSV use on the Eldorado National Forest to provide access, ensure that OSV use occurs when there is adequate snow, promote the safety of all users, enhance public enjoyment, minimize impacts to natural and cultural resources, and minimize conflicts among the various uses.

    There is a need to provide a manageable, designated OSV system of trails and Areas within the Eldorado National Forest, that is consistent with and achieves the purposes of the Forest Service Travel Management Rule at 36 CFR part 212. This action responds to direction provided by the Forest Service's Travel Management Rule.

    The existing system of available OSV trails and Areas on the Eldorado National Forest is the culmination of multiple agency decisions over recent decades. Public OSV use of the majority of this available system continues to be manageable and consistent with current travel management regulations. Exceptions have been identified, based on internal and public input and the criteria for designating roads, trails, and Areas listed at 36 CFR 212.55. These include needs to provide improved access for OSV users and enact prohibitions required by the Eldorado National Forest Land and Resource Management Plan (Forest Plan) and other management direction. These exceptions represent additional needs for change, and in these cases, changes are proposed to meet the overall objectives.

    The Forest Service has identified trails and Areas in which OSV use should be prohibited based on management direction in the Forest Plan. These trails and areas are currently managed as closed to OSV use through temporary closure orders to comply with Forest Plan direction. However, those closure orders will eventually expire. Therefore, the proposed action will prohibit OSV use on these trails and in these Areas on a more permanent basis to be consistent with the Forest Plan.

    A second purpose of this project is to identify snow trails where the Forest Service or its contractors would conduct grooming for OSV use. Under the terms of the Settlement Agreement between the Forest Service and Snowlands Network et al., the Forest Service is required to complete the appropriate NEPA analysis to identify snow trails for grooming on the Eldorado National Forest.

    The snow trail grooming analysis would also address the need to provide a safe, high-quality snowmobile trail system on the Eldorado National Forest that is smooth and stable for the rider. Groomed trails are designed so that the novice rider can use them safely and without difficulty.

    Need for Analysis

    Subpart C of the Forest Service Travel Management Regulation requires the Forest Service to designate over-snow vehicle (OSV) use on National Forest System roads, National Forest System trails, and Areas on National Forest System lands. Both decisions will be informed by an analysis as required by the National Environmental Policy Act (42 U.S.C. 4321 et seq.).

    Subpart C of the Travel Management Regulation specifies that all requirements of subpart B of the Travel Management Regulations will continue to apply to the designation decision, including:

    1. Public involvement as required by the National Environmental Policy Act (36 CFR 212.52);

    2. Coordination with Federal, State, county, and other local governmental entities and tribal governments (36 CFR 212.53);

    3. Revision of designations (36 CFR 212.54);

    4. Consideration of the criteria for designation of roads, trails, and Areas (36 CFR 212.55);

    5. Identification of designated uses on a publicly available use map of roads, trails, and Areas (36 CFR 212.56); and

    6. Monitoring of effects (36 CFR 212.57).

    Pursuant to the Settlement Agreement, the Forest Service is required to complete an appropriate NEPA analysis to identify snow trails for grooming. Furthermore, additional terms of the Settlement Agreement require the Forest Service to:

    1. Analyze ancillary activities such as the plowing of related parking lots and trailheads as part of the effects analysis;

    2. Consider a range of alternative actions that would result in varying levels of snowmobile use; and

    3. Consider an alternative submitted by Plaintiffs and/or Interveners during the scoping period in the NEPA analysis so long as the alternative meets the purpose and need, and is feasible and within the scope of the NEPA analysis.

    Proposed Action

    The Forest Service proposes several actions on the Eldorado National Forest to be analyzed as required by the National Environmental Policy Act (NEPA). The actions proposed are as follows:

    1. To designate OSV use on National Forest System roads, National Forest System trails, and Areas on National Forest System lands within the Eldorado National Forest where snowfall depth is adequate for that use to occur. This would result in no change in the number of miles of snow trail and acres of OSV Areas on the Eldorado National Forest where OSV use would be allowed, subject to snow depth restrictions. All existing OSV prohibitions applying to Areas or trails would continue. OSV use that is inconsistent with the designations made under this project would be prohibited under 36 CFR 261.14.

    2. To enact OSV prohibitions of a more permanent nature than the temporary closures that currently exist in the following Areas and trails, consistent with management direction in the Forest Plan:

    a. Caples Creek Recommended Wilderness;

    b. Primitive High Country;

    c. Areas within Semi-primitive Non-motorized High Country: Little McKinstry, Shadow Lake, Rockbound, July Flat, Bryan Meadow, Devils Lake, Hidden Lake, and Little Indian;

    d. Research Natural Areas (RNAs): Peavine RNA, and Station Creek RNA;

    e. Special Use permitted areas: Kirkwood Mountain and Kirkwood Nordic Ski Resorts, Sierra-at-Tahoe Resort, Adventure Mountain, and Echo Summit Nordic area;

    f. Rock Creek Critical Deer Winter Range;

    g. Loon Lake Winter Recreation Area (including forest developed roads);

    h. Emigrant Lake Trail;

    i. Carson-Emigrant National Recreation Trail from Horse Canyon Saddle to Caples Lake Trailhead; and

    j. Rock Creek Trails (including Mar Det).

    3. To identify approximately 56 miles of designated snow trails that would be groomed on the Eldorado National Forest for OSV use. Our trail mileages are estimates only and we are currently reviewing the status of trails where there is uncertainty regarding Forest Service jurisdiction or grooming authorization, such as trails located on private property, or county roads that groomed trails have historically passed through.

    4. To groom trails consistent with historical grooming practices, when there are 12 or more inches of snow, and formally adopt California State Parks' Off-Highway Motor Vehicle Recreation (OHMVR) Division snow depth standards for grooming to occur.

    5. To implement a forest-wide snow depth requirement for OSV use that would provide for public safety and natural and cultural resource protection by allowing off-trail, cross-country OSV use in designated Areas when there is a minimum of 12 inches of continuous and supportable snow covering the landscape; and allow OSV use on designated National Forest System snow trails when there is a minimum of 6 inches of snow, regardless of the underlying surface. When the snow-depth requirement is not met, OSV use would be prohibited.

    These actions would begin immediately upon the issuance of the record of decision, which is expected in October of 2016. The Forest Service would produce an OSV use map (OSVUM) that would look like the existing motor vehicle use map (MVUM) for the Eldorado National Forest. Such a map would allow OSV enthusiasts to identify the routes and Areas where OSV use would be allowed on the Eldorado National Forest.

    Responsible Official

    The Eldorado National Forest Supervisor will issue the decision.

    Nature of Decision To Be Made

    This decision will designate OSV use on National Forest System roads, on National Forest System trails, and in Areas on National Forest System lands on the Eldorado National Forest where snowfall is adequate for that use to occur. It will also identify the National Forest System trails where grooming would occur. The decision would only apply to the use of over-snow vehicles as defined in the Forest Service's Travel Management Regulations (36 CFR 212.1). The Forest Supervisor will consider all reasonable alternatives and decide whether to continue current management of OSV uses on the Eldorado National Forest, implement the proposed action, or select an alternative for the management of OSV uses.

    Scoping Process

    This notice of intent initiates the scoping process, which guides the development of the environmental impact statement.

    It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Written comments should be within the scope of the proposed action, have a direct relationship to the proposed action, and must include supporting reasons for the responsible official to consider. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions. The preferred format for attachments to electronically submitted comments would be as an MS Word document. Attachments in portable document format (pdf) are not preferred, but are acceptable.

    Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however.

    The Eldorado National Forest Over-Snow Vehicle (OSV) Use Designation is an activity implementing a land management plan. It is not an activity authorized under the Healthy Forests Restoration Act of 2003 (Pub. L. 108-148). Therefore, this activity is subject to pre-decisional administrative review consistent with the Consolidated Appropriations Act of 2012 (Pub. L. 112-74) as implemented by subparts A and B of 36 CFR part 218.

    Dated: February 26, 2015. Laurence Crabtree, Forest Supervisor, Eldorado National Forest.
    [FR Doc. 2015-04459 Filed 3-3-15; 8:45 am] BILLING CODE 3410-11-P
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice and opportunity for public comment.

    Pursuant to Section 251 of the Trade Act 1974, as amended (19 U.S.C. 2341 et seq.), the Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of these firms contributed importantly to the total or partial separation of the firm's workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    List of Petitions Received by EDA for Certification Eligibility To Apply for Trade Adjustment Assistance [2/12/2015 through 2/26/2015] Firm name Firm address Date accepted for investigation Product(s) LFI, Inc. 1 Industrial Drive South, Smithfield, RI 02917 2/25/2015 The firm manufactures high precision minimally invasive surgical instruments.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance for Firms Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Dated: February 26, 2015. Michael S. DeVillo, Eligibility Examiner.
    [FR Doc. 2015-04455 Filed 3-3-15; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-80-2014] Foreign-Trade Zone (FTZ) 127—West Columbia, South Carolina; Authorization of Production Activity; Komatsu America Corporation (Material Handling, Construction and Forestry Machinery); Newberry, South Carolina

    On October 28, 2014, Komatsu America Corporation submitted a notification of proposed production activity to the Foreign-Trade Zones (FTZ) Board for its facility within FTZ 127—Site 3, located in Newberry, South Carolina.

    The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (79 FR 67414-67415, 11-13-2014). The FTZ Board has determined that no further review of the activity is warranted at this time. The production activity described in the notification is authorized, subject to the FTZ Act and the Board's regulations, including Section 400.14.

    Dated: February 25, 2015. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2015-04494 Filed 3-3-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-14-2015] Foreign-Trade Zone 21—Charleston, South Carolina Application for Reorganization/Expansion Under Alternative Site Framework

    An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the South Carolina State Ports Authority, grantee of FTZ 21, requesting authority to reorganize and expand the zone under the alternative site framework (ASF) adopted by the FTZ Board (15 CFR 400.2(c)). The ASF is an option for grantees for the establishment or reorganization of zones and can permit significantly greater flexibility in the designation of new subzones or “usage-driven” FTZ sites for operators/users located within a grantee's “service area” in the context of the FTZ Board's standard 2,000-acre activation limit for a zone. The application was submitted pursuant to the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the Board (15 CFR part 400). It was formally docketed on February 25, 2015.

    FTZ 21 was approved by the FTZ Board on June 12, 1975 (Board Order 106, 40 FR 25613, June 17, 1975), and expanded on February 28, 1995 (Board Order 734, 60 FR 12735, March 8, 1995), on June 20, 1996 (Board Order 832, 61 FR 33491, June 27, 1996), on October 23, 1996 (Board Order 850, 61 FR 57383-57384, November 6, 1996), on June 20, 1997 (Board Order 905, 62 FR 36044-36045, July 3, 1997), on September 5, 1997 (Board Order 918, 62 FR 48591, September 16, 1997), on July 25, 2000 (Board Order 1112, 65 FR 47953, August 4, 2000) and on April 1, 2010 (Board Order 1675, 75 FR 24583-24584, May 5, 2010).

    The current zone includes the following sites: Site 5 (267 acres)—terminal complex at the Port of Charleston, 1 Immigration St., Charleston; Site 6 (19 acres)—Meadow Street Business Park, 4 Meadow St., Loris; Site 9 (548 acres)—Charleston Business Park, Clements Ferry Road, Charleston; Site 15 (24 acres)—Robert Bosch Inc., 3298 Benchmark Drive and 4597 Appian Way, North Charleston; Site 16 (343 acres)—Bushy Park Industrial Park, 1588 Bushy Park Rd., Goose Creek; Site 17 (190 acres, sunset 4/30/15)—Jedburg Industrial Park, 1090 Newton Way, Summerville; Site 18 (291 acres, sunset 4/30/15)—Rockefeller Foreign-Trade Zone, Drop Off Road and Interstate 26, Summerville; Site 21 (445 acres, sunset 4/30/15)—Orangeburg City/County Industrial Park, 348 Millennium Drive, Orangeburg; Site 22 (284 acres, expires 4/30/15)—Southern Patio Industrial Park, 1000 Southern Patio Parkway, Rowesville; Site 23 (178 acres, sunset 4/30/15)—Colleton County Commerce Park, Interstate 95 and McLeod Road, Walterboro; Site 26 (7.98 acres, expires 12/31/15)—MAHLE Behr Charleston, Inc., 4500 Leeds Avenue, Charleston; Site 27 (2 acres, expires 12/31/15)—Tides Trading Enterprises, 578 Meeting St., Charleston; Site 28 (4 acres, expires 12/31/15)—Tides Trading Enterprises, 2509 Clements Ferry Road, Charleston; Site 29 (8 acres, expires 12/31/15)—PTR Industries, 101 Cool Springs Drive, Aynor; Site 30 (5.5 acres, expires 12/31/15)—CMMC, LLC, 1210 Truxtun Avenue, N. Charleston; Site 31 (6 acres, expires 12/31/15)—American Tactical Imports, Inc., 231 Deming Way, Summerville; and, Site 32 (12 acres, expires 12/31/15)—Alkane Trucks/CLG-SC, Inc., 2725 W. 5th North Street, Summerville.

    The grantee's proposed service area under the ASF would be: The Counties of Charleston, Berkeley, Dorchester and Orangeburg within and adjacent to the Charleston Customs and Border Protection port of entry; the Counties of Williamsburg and Georgetown in their entirety and portions of Horry, Florence, and Marion Counties within and adjacent to the Georgetown, South Carolina Customs and Border Protection port of entry; and, the Counties of Colleton, Jasper, Hampton and Beaufort adjacent to the Savannah, Georgia Customs and Border Protection port of entry, as described in the application. If approved, the grantee would be able to serve sites throughout the service area based on companies' needs for FTZ designation.

    The applicant is requesting authority to reorganize and expand its existing zone as follows: Modify Site 5 by restoring 109 acres at Parcel 5—Coal Tipple and by including 109 acres at Parcel 7—Columbus Street Terminal on a permanent basis (new total acreage = 376 acres); Sites 5 (modified), 9, 16, 17, 18, 21, 22 and 23 would become “magnet” sites; and, Sites 6, 15, 26, 27, 28, 29, 30, 31 and 32 would become “usage-driven” sites. The ASF allows for the possible exemption of one magnet site from the “sunset” time limits that generally apply to sites under the ASF, and the applicant proposes that Site 5 be so exempted. No subzones/usage-driven sites are being requested at this time. The application would have no impact on FTZ 21's previously authorized subzones.

    In accordance with the FTZ Board's regulations, Kathleen Boyce of the FTZ Staff is designated examiner to evaluate and analyze the facts and information presented in the application and case record and to report findings and recommendations to the FTZ Board.

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is May 4, 2015. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to May 18, 2015.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz. For further information, contact Kathleen Boyce at [email protected] or (202) 482-1346.

    Dated: February 26, 2015. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2015-04505 Filed 3-3-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Reporting of Sea Turtle Incidental Take in Virginia Chesapeake Bay Pound Net Operations AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before May 4, 2015.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Carrie Upite, Greater Atlantic Regional Fisheries Office, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA, 01930; (978) 282-8475; or [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for extension of a current information collection.

    This action would continue the reporting measure requiring all Virginia Chesapeake Bay pound net fishermen to report interactions with endangered and threatened sea turtles, found both live and dead, in their pound net operations. When a live or dead sea turtle is discovered during a pound net trip, the Virginia pound net fisherman is required to report the incidental take to National Marine Fisheries Service (NMFS) and, if necessary, the appropriate rehabilitation and stranding network. This information will be used to monitor the level of incidental take in the state-managed Virginia pound net fishery and ensure that the seasonal pound net leader restrictions (50 CFR 223.206(d)(10)) are adequately protecting listed sea turtles. Based on the number of sea turtle takes anticipated in the Virginia pound net fishery and the available number of Virginia pound net fishermen and pound nets, the number of responses anticipated on an annual basis is 483.

    II. Method of Collection

    Reports may be made either by telephone or fax.

    III. Data

    OMB Control Number: 0648-0470.

    Form Number(s): None.

    Type of Review: Regular submission (extension of a current information collection).

    Affected Public: Individuals or households.

    Estimated Number of Respondents: 37.

    Estimated Time per Response: 10 minutes.

    Estimated Total Annual Burden Hours: 81 hours.

    Estimated Total Annual Cost to Public: $111 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: February 27, 2015. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2015-04474 Filed 3-3-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Certification Requirements for Distributors of NOAA Electronic Navigational Charts/NOAA Hydrographic Products AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before May 4, 2015.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Julia Powell (301) 713-0388, ext. 169 or [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    This request is for extension of a currently approved information collection.

    NOS Office of Coast Survey manages the Certification Requirements for Distributors of NOAA Electronic Navigational Charts (NOAA ENCs®). The certification allows entities to download, redistribute, repackage, or in some cases reformat, official NOAA ENCs and retain the NOAA ENC's official status. The regulations for implementing the Certification are at 15 CFR part 995. The recordkeeping and reporting requirements of 15 CFR part 995 form the basis for this collection of information. This information allows the Office of Coast Survey to administer the regulation, and to better understand the marketplace resulting in products to that meet the needs of the customer in a timely and efficient manner.

    II. Method of Collection

    Responses from the Certified ENC Distributors are all electronic and sent via email. All distributors have an Excel spreadsheet which they submit for the twice-yearly report.

    III. Data

    OMB Control Number: 0648-0508.

    Form Number(s): None.

    Type of Review: Regular submission (extension of a currently approved information collection).

    Affected Public: Not-for-profit institutions; business or other for-profits organizations.

    Estimated Number of Respondents: 8.

    Estimated Time per Response: 1 hour to provide a distribution report twice a year, 12 hours for reporting of errors in the ENC (approximately 4 per month, usually each distributor will catch the same issue).

    Estimated Total Annual Burden Hours: 88.

    Estimated Total Annual Cost to Public: $0 in recordkeeping/reporting costs.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Dated: February 27, 2015. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2015-04475 Filed 3-3-15; 8:45 am] BILLING CODE 3520-JE-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD792 Caribbean Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Caribbean Fishery Management Council's (Council) Scientific and Statistical Committee (SSC) will hold a meeting.

    DATES:

    The SSC meeting will be held on March 24-26, 2015, from 9 a.m. to 5 p.m.

    ADDRESSES:

    The SSC will meet at the Caribbean Fishery Management Council headquarters, located at 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico.

    SUPPLEMENTARY INFORMATION:

    The SSC will meet to discuss the items contained in the following agenda:

    March 24-26, 2015 ○ Call to Order ○ Selection Criteria for Exclusion/Inclusion of Species in the Island-Based FMPs A. Brief Review of criteria selection—Status to date B. Continuation of determining selection criteria 1. Data available a. Commercial Landings Data—SEFSC Update i. Overview of Landings Data: Species List Ranked by Poundage and Value—Puerto Rico, St. Thomas/St. John, St. Croix ii. Monthly landings iii. Spatial distribution of landings (EEZ-State) iv. Landings by Coast for Puerto Rico as a Proxy to Differentiate Species that Might be Restricted to the State Waters v. Landings by Fishing Center-Town: Puerto Rico b. SEFSC/DNER revision of the 2005 East Coast Correction Factor Update c. Recreational Landings Data—MRIP Update i. Overview of Landings Data: Species List Ranked by Poundage. ii. Spatial distribution of recreational landings iii. Recommendation to CFMC 2. District Advisory Panels Reports ○ New ABC control rule dealing with data poor stocks. ○ FMUs ACL Overages—SERO Update Accountability Measures ○ Red Hind Data Review to develop a separate ACL for red hind 1. Data review SEFSC 2. Recommendation to CFMC ○ National SSC V (February 23-25, 2015): Report ○ Discussion of 5-year Research Plan ○ Federal Permits Options Paper ○ Other Business

    The meetings are open to the public, and will be conducted in English.

    Special Accommodations: These meetings are physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918, telephone (787) 766-5926, at least 5 days prior to the meeting date.

    Dated: February 26, 2015. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-04414 Filed 3-3-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD732 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Shell Ice Overflight Surveys in the Beaufort and Chukchi Seas, Alaska AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS received an application from Shell Gulf of Mexico Inc. (Shell) for an Incidental Harassment Authorization (IHA) to take marine mammals, by harassment, incidental to ice overflight surveys in the Chukchi and Beaufort Seas, Alaska. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an IHA to Shell to take, by Level B harassment only, seven species of marine mammals during the specified activity.

    DATES:

    Comments and information must be received no later than April 3, 2015.

    ADDRESSES:

    Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is [email protected] NMFS is not responsible for email comments sent to addresses other than the one provided here. Comments sent via email, including all attachments, must not exceed a 10-megabyte file size.

    Instructions: All comments received are a part of the public record and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

    A copy of the application, which contains several attachments used in this document, including Shell's marine mammal mitigation and monitoring plan (4MP) and Plan of Cooperation, may be obtained by writing to the address specified above, telephoning the contact listed below (see FOR FURTHER INFORMATION CONTACT), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address.

    FOR FURTHER INFORMATION CONTACT:

    Shane Guan, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

    Summary of Request

    On December 2, 2014, Shell submitted an application to NMFS for the taking of marine mammals incidental to ice overflight surveys the Chukchi and Beaufort Seas, Alaska. After receiving comments and questions from NMFS, Shell revised its IHA application on January 13, 2015. NMFS determined that the application was adequate and complete on January 15, 2015.

    The proposed activity would occur between May 1, 2015 and April 30, 2016. The following specific aspects of the proposed activities are likely to result in the take of marine mammals: Ice overflight surveys using fixed and rotate winged aircraft when flying at low altitudes.

    Shell has requested an authorization to take seven marine mammal species by Level B harassment. These species include: Beluga whale (Delphinapterus leucas); bowhead whale (Balaena mysticetus); gray whale (Eschrichtius robustus); bearded seal (Erignathus barbatus); ringed seal (Phoca hispida); spotted seal (P. largha); and ribbon seal (Histriophoca fasciata).

    Description of the Specified Activity Overview

    Shell plans to conduct two periods of ice overflight surveys during May 2015-April 2016: Break-up surveys and freeze-up surveys.

    Shell plans to conduct the overflight surveys from fixed wing and rotary aircraft. The aircraft to be used for the surveys are not currently under contract to Shell or a contractor to Shell. Ice and weather conditions will influence when and where the surveys can be conducted.

    Dates and Duration

    For initial planning purposes, Shell proposes to conduct the overflight surveys during May 1, 2015 to April 30, 2016.

    Specified Geographic Region

    The ice overflight survey areas are the Chukchi and Beaufort Seas, Alaska, as indicated in Figure 1-1 of Shell's IHA application. Aircraft supporting these surveys will operate out of Barrow and Deadhorse, Alaska.

    Detailed Description of Activities (1) Proposed Break-Up Surveys

    The break-up surveys will occur between June and July in either the Chukchi or Beaufort Sea and will include:

    • Up to five fixed-wing flights of approximately 1,500 nm total for up to approximately 13 hours total;

    • One helicopter flight totaling of approximately 200 nm total for up to approximately 3 hours total.

    Flight altitudes for fixed wing surveys will range from 30 to 610 m (100 to 2,000 ft) but will mostly be at or above 152 m (500 ft). For helicopter flights, the altitude will range from 15 to 152 m (50 to 500 ft) but will mostly be at or above 61 m (200 ft). Flights will occur when there is daylight. Aircraft are not scheduled to fly at the same time.

    (2) Proposed Freeze-Up Surveys

    The freeze-up surveys will occur between November 2015 and March 2016 in either the Chukchi or Beaufort Sea and will include:

    • Up to seven fixed-wing flights of approximately 2,500 nautical miles (nm) total in early winter for up to approximately 21 hours total;

    • One helicopter flight in the Beaufort of approximately 200 nm that will include approximately 4 landings to collect ice measurements during late freeze-up including sampling with a battery powered ice auger for up to approximately 3 hours total.

    Flight altitudes for fixed wing surveys will range from 30 to 610 m (100 to 2,000 ft) but will mostly be at or above 152 m (500 ft). For helicopter flights, the altitude will range from 15 to 152 m (50 to 500 ft) but will mostly be at or above 61 m (200 ft). Helicopter flights will also include landings. Flights will occur when there is daylight. Aircraft are not scheduled to fly at the same time.

    Proposed Aircraft To Conduct Ice Overflight Surveys

    Shell plans to conduct the ice overflight surveys with an Aero Commander (or similar) fixed winged aircraft and a Bell 412, AW 139, EC 145 (or similar) helicopter.

    Shell will also have a dedicated helicopter for Search and Rescue (SAR) for the spring 2015 surveys. The SAR helicopter is expected to be a Sikorsky S-92 (or similar). This aircraft will stay grounded at the Barrow shorebase location except during training drills, emergencies, and other non-routine events.

    Description of Marine Mammals in the Area of the Specified Activity

    The Chukchi and Beaufort Seas support a diverse assemblage of marine mammals, including: Bowhead, gray, beluga, killer, minke, humpback, and fin whales; harbor porpoise; ringed, ribbon, spotted, and bearded seals; narwhals; polar bears; and walruses. Both the walrus and the polar bear are managed by the U.S. Fish and Wildlife Service (USFWS) and are not considered further in this proposed IHA notice.

    Among the rest of marine mammal species, only beluga, bowhead, and gray whales, and ringed, spotted, bearded, and ribbon seals could potentially be affected by the proposed ice overflight activity. The remaining cetacean species are rare and not likely to be encountered during Shell's ice overflight surveys, which are planned either during winter when nearly 10/10 ice coverage is present, or during spring when sea ice also pre-dominants the study area. Therefore, these species are not further discussed.

    The bowhead whale is listed as “endangered” under the Endangered Species Act (ESA) and as depleted under the MMPA. The ringed seal is listed as “threatened” under the ESA. Certain stocks or populations of gray and beluga whales and spotted seals are listed as endangered under the ESA; however, none of those stocks or populations occur in the proposed activity area.

    Shell's application contains information on the status, distribution, seasonal distribution, abundance, and life history of each of the species under NMFS' jurisdiction mentioned in this document. When reviewing the application, NMFS determined that the species descriptions provided by Shell correctly characterized the status, distribution, seasonal distribution, and abundance of each species. Please refer to the application for that information (see ADDRESSES). Additional information can also be found in the NMFS Stock Assessment Reports (SAR). The Alaska 2013 SAR is available at: http://www.nmfs.noaa.gov/pr/sars/pdf/ak2013_final.pdf.

    Table 1 lists the seven marine mammal species under NMFS' jurisdiction with confirmed or possible occurrence in the proposed project area.

    Table 1—Marine Mammal Species and Stocks That Could Be Affected by Shell's Ice Overflight Surveys in the Beaufort and Chukchi Seas Common name Scientific name Status Occurrence Seasonality Range Abundance Odontocetes Beluga whale (Eastern Chukchi Sea stock) Dephinapterus leucas Common Mostly spring and fall with some in summer Russia to Canada 3,710 Beluga whale (Beaufort Sea stock) Delphinapterus leucas Common Mostly spring and fall with some in summer Russia to Canada 39,258 Mysticetes Bowhead whale Balaena mysticetus Endangered; Depleted Common Mostly spring and fall with some in summer Russia to Canada 19,534 Gray whale Eschrichtius robustus Somewhat common Mostly summer Mexico to the U.S. Arctic Ocean 19,126 Pinnipeds Bearded seal (Beringia distinct population segment) Erigathus barbatus Candidate Common Spring and summer Bering, Chukchi, and Beaufort Seas 155,000 Ringed seal (Arctic stock) Phoca hispida Threatened; Depleted Common Year round Bering, Chukchi, and Beaufort Seas 300,000 Spotted seal Phoca largha Common Summer Japan to U.S. Arctic Ocean 141,479 Ribbon seal Histriophoca fasciata Species of concern Occasional Summer Russia to U.S. Arctic Ocean 49,000 Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., aircraft overflight) have been observed to or are thought to impact marine mammals. This section may include a discussion of known effects that do not rise to the level of an MMPA take (for example, with acoustics, we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measurable avoidance). The discussion may also include reactions that we consider to rise to the level of a take and those that we do not consider to rise to the level of a take. This section is intended as a background of potential effects and does not consider either the specific manner in which this activity will be carried out or the mitigation that will be implemented or how either of those will shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, the “Mitigation” section, and the “Anticipated Effects on Marine Mammal Habitat” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.

    The reasonably expected or reasonably likely impacts of the specified activities on marine mammals will be related primarily to localized, short-term acoustic disturbance from aircraft flying primarily over areas covered by sea ice with limited flight activity over open water and adjacent ice edges. The acoustic sense of marine mammals probably constitutes their most important distance receptor system. Potential acoustic effects relate to sound produced by helicopters and fixed-wing aircraft.

    Dominant tones in noise spectra from helicopters are generally below 500 Hz (Greene and Moore 1995). Harmonics of the main rotor and tail rotor usually dominate the sound from helicopters; however, many additional tones associated with the engines and other rotating parts are sometimes present. Because of Doppler shift effects, the frequencies of tones received at a stationary site diminish when an aircraft passes overhead. The apparent frequency is increased while the aircraft approaches and is reduced while it moves away.

    Aircraft flyovers are not heard underwater for very long, especially when compared to how long they are heard in air as the aircraft approaches an observer. Very few cetaceans, including the species in the proposed ice overflight survey areas, are expected to be encountered during ice overflights due to the low density of cetacean species in the winter survey area and small area to be flown over open water during spring. Most of these effects are expected in open-water where limited aircraft noise could penetrate into the water column. For cetaceans under the ice, the noise levels from the aircraft are expected to be dramatically reduced by floating ice. Long-term or population level effects are not expected.

    Evidence from flyover studies of ringed and bearded seals suggests that a reaction to helicopters is more common than to fixed wing aircraft, all else being equal (Born et al. 1999; Burns and Frost 1979). Under calm conditions, rotor and engine sounds are coupled into the water through ice within a 26° cone beneath the aircraft (Richardson et al. 1995). Scattering and absorption, however, will limit lateral propagation in the shallow water (Greene and Moore 1995). The majority of seals encountered by fixed wing aircraft are unlikely to show a notable disturbance reaction, and approximately half of the seals encountered by helicopters may react by moving from ice into the water (Born et al. 1999). Any potential disturbance from aircraft to seals in the area of ice overflights will be localized and short-term in duration with no population level effects.

    Historically, there have been far greater levels of aviation activity in the offshore Chukchi and Beaufort Seas compared with that of the proposed ice overflights. None of this previous offshore aviation activity is believed to have resulted in long-term impacts to marine mammals, as demonstrated by results from a wide range of monitoring programs and scientific studies. Impacts to marine mammals from aviation activities in Arctic offshore habitats have been shown to be, at most, short-term and highly-localized in nature (e.g., Funk et al. 2013; Richardson et al. 1985a, b; Patenaude et al. 2002; Born et al. 1999).

    The effect of aircraft overflight on marine mammals will depend on the behavior of the animal at the time of reception of the stimulus, as well as the distance from the aircraft and received level of sound. Cetaceans (such as bowhead, gray, and beluga whales) will only be present, and thus have the potential to be disturbed, when aircraft fly over open water in between ice floes; seals may be disturbed when aircraft are over open water or over ice on which seals may be present. Disturbance reactions are likely to vary among some of the seals in the general vicinity, and not all of the seals present are expected to react to fixed wing aircraft and helicopters.

    Behavioral distances from marine mammals also depend on the altitudes of the aircraft overflight. Marine mammals are not likely to be affected by aircraft overflights that are above 1,000 ft. Therefore, behavioral harassments discussed above are only limited to those aircraft flying at lower altitudes. Proposed monitoring measures discussed below would further reduce potential affects from Shell's proposed ice overflight surveys.

    In light of the nature of the activities, and for the reasons described below, NMFS does not expect marine mammals will be injured or killed as a result of ice overflight surveys. In addition, due to the low received noise levels from aircraft overflights, NMFS does not expect marine mammals will experience hearing impairment such as TTS or PTS.

    Of the seal species which may be encountered, only ringed seals are abundant in the Chukchi and Beaufort Seas during the winter and early spring when the overflights are scheduled to occur. In March-April, ringed seals give birth in subnivean lairs established on shorefast and stable pack ice (Smith and Stirling 1975; Smith 1973). Ringed seals in subnivean layers have been known to react to aircraft overhead by entering the water in some instances (Kelly et al. 1986); however, there is no evidence to indicate injurious effects to adults or pups from such a response.

    Bearded seals spend the winter season in the Bering Sea, and then follow the ice edge as it retreats in spring (MacIntyre and Stafford 2011). Large numbers of bearded seals are unlikely to be present in the project area during the time of planned operations. However, some individuals may be encountered. Spotted seals are found in the Bering Sea in winter and spring where they breed, molt, and pup in large groups (Quakenbush 1988; Rugh et al. 1997). Few spotted seals are expected to be encountered in the Chukchi and Beaufort seas until July. Even then, they are rarely seen on pack ice but are commonly observed hauled out on land or swimming in open water (Lowry et al. 1998). The ice overflights are designed to maximize flying over ice, avoiding coastal and terrestrial areas. Haul outs for spotted seals are generally known, and Shell will avoid these areas during the break up surveys.

    Based on extensive analysis of digital imagery taken during aerial surveys in support of Shell's 2012 operations in the Chukchi and Beaufort Seas, ice seals are very infrequently observed hauled out on the ice in groups of greater than one individual (Shell 2015). Tens of thousands of images from 17 flights that took place from July through October were reviewed in detail. Of 107 total observations of spotted or ringed seals on ice, only three of those sightings were of a group of two individuals (Shell 2015). Since seals typically are found as individuals or in very small groups when they are in the project area, the chance of a stampede event is very unlikely. Finally, ice seals are well adapted to move between ice and water without injury, including “escape reactions” to avoid predators.

    Ringed and bearded seals sometimes, but not always, dive when approached by low-flying aircraft (Burns and Frost 1979; Burns et al. 1982). Ringed and bearded seals may be more sensitive to helicopter sounds than to fixed-wing aircraft (Burns and Frost 1979). In 2000, during a study on e impacts of pipe-driving sounds on pinnipeds at Northstar in the Beaufort Sea which involved helicopter, only some of the ringed seals present exhibited a reaction to an approaching helicopter (Blackwell et al. 2001). Of 23 individuals, only 11 reacted; of those 11, 10 increased alertness and only 1 moved into the water (when the helicopter was 100 m away; Blackwell et al. 2004). Reactions of ringed seals while they are in subnivean lairs vary with the characteristics of the flyover, including lateral distance and altitude of aircraft (Kelly et al. 1986).

    The sound of aircraft is also reduced by the snow of the lair (Cummings and Holliday 1983). Spotted seals are sensitive to aircraft, reacting erratically at considerable distances which may result in mother-pup separation or injury to pups (Frost et al 1993, Rugh et al. 1993). However, as previously noted, few spotted seals are expected to be present in the project area during the time of planned ice overflights, and overflights will focus on offshore areas as opposed to terrestrial habitat with potential spotted seal haulouts.

    Anticipated Effects on Marine Mammal Habitat

    Shell's planned 2015/16 ice overflight surveys will not result in any permanent impact on habitats used by marine mammals, or to their prey sources. The primary potential impacts on marine mammal habitat and prey resources that are reasonably expected or reasonably likely are associated with elevated sound levels from the aircraft passing overhead. Effects on marine mammal habitat from the generation of sound from the planned surveys would be negligible and temporary, lasting only as long as the aircraft is overhead. Water column effects will be localized and ephemeral, lasting only the duration of the aircrafts presence. All effects on marine mammal habitat from the planned surveys are expected to be negligible and confined to very small areas within the Chukchi and Beaufort Seas.

    The primary effect of the sound energy generated by ice overflight survey activities on marine mammal habitat will be the ensonification of the water column and air at the surface. Sound energy can also affect invertebrates and fish that are marine mammal prey, and thereby indirectly impact the marine mammals.

    Levels and duration of sounds received by marine mammals underwater from a passing helicopter or fixed-wing aircraft are a function of the type of aircraft, orientation and altitude of the aircraft, depth of the animal, and water depth. Aircraft sounds are detectable underwater at greater distances when the receiver is in shallow rather than deep water. Generally, sound levels received underwater decrease as the altitude of the aircraft increases (Richardson et al. 1995a). The nature of sounds produced by aircraft activities does not pose a direct threat to the underwater marine mammal habitat or prey.

    Aircraft sounds are audible for much greater distances in air than in water. Under calm conditions, rotor and engine sounds are coupled into the water within a 26° cone beneath the aircraft. Some of the sound will transmit beyond the immediate area, and some sound will enter the water outside the 26 degree area when the sea surface is rough. However, scattering and absorption will limit lateral propagation in shallow water. Dominant tones in noise spectra from helicopters are generally below 500 Hz (Greene and Moore 1995). Because of Doppler shift effects, the frequencies of tones received at a stationary site diminish when an aircraft passes overhead. The apparent frequency is increased while the aircraft approaches and is reduced while it moves away. Sounds generated underwater from aircraft flyovers are of short duration.

    Helicopters will generally maintain straight-line routes, thereby limiting the sound levels at and below the surface. Given the timing and location of the proposed ice overflight activities, as well as the mitigation measures that will be implemented as a part of the program, any impacts from aircraft traffic on marine mammal habitat or prey will be localized and temporary with no anticipated population level effects.

    Proposed Mitigation

    In order to issue an incidental take authorization (ITA) under sections 101(a)(5)(A) and (D) of the MMPA, NMFS must, where applicable, set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (where relevant). This section summarizes the contents of Shell's Marine Mammal Monitoring and Mitigation Plan (4MP). Later in this document in the “Proposed Incidental Harassment Authorization” section, NMFS lays out the proposed conditions for review, as they would appear in the final IHA (if issued).

    Shell submitted a 4MP as part of its application (see ADDRESSES). Shell proposes a suite of mitigation measures to minimize any adverse impacts associated with the ice overflight surveys in the Chukchi and Beaufort Sea. These include, among others discussed in the 4MP (See Attachment A of Shell's IHA application), the following: (1) The timing and locations for active survey acquisition work; and (2) increasing altitude or deviating from survey tract when the protected species observers sight visually (from the aircraft) the presence of marine mammals. The mitigation measures are presented in the 4MP. To summarize:

    • A PSO will be aboard all flights recording all sightings/observations (e.g. including number of individuals, approximate age (when possible to determine), and any type of potential reaction to the aircraft). Environmental information the observer will record includes weather, air temperature, cloud and ice cover, visibility conditions, and wind speed.

    • The aircraft will maintain a 1 mi radius when flying over areas where seals appear to be concentrated in groups of ≥5 individuals;

    • The aircraft will not land on ice within 0.5 mi of hauled out pinnipeds or polar bears;

    • The aircraft will avoid flying over polynyas and along adjacent ice margins as much as possible to minimize potential disturbance to cetaceans; and

    • Shell will routinely engage with local communities and subsistence groups to ensure no disturbance of whaling or other subsistence activities.

    Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned, and • The practicability of the measure for applicant implementation.

    Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

    1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

    2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of noises generated from ice overflight surveys, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of noises generated from ice overflight surveys, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of noises generated from ice overflight surveys, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).

    5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

    6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed measures to ensure availability of such species or stock for taking for certain subsistence uses are discussed later in this document (see “Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses” section).

    Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Shell submitted a marine mammal monitoring plan as part of the IHA application. It can be found in Appendix B of the Shell's IHA application. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period or from the peer review panel (see the “Monitoring Plan Peer Review” section later in this document).

    Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

    1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;

    2. An increase in our understanding of how many marine mammals are likely to be exposed to levels of noises generated from ice overflight surveys that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;

    3. An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

    Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;

    4. An increased knowledge of the affected species; and

    5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

    Proposed Monitoring Measures (1) Protected Species Observers

    Aerial monitoring for marine mammals will be conducted by a trained protected species observer (PSO) aboard each flight. PSO duties will include watching for and identifying marine mammals, recording their numbers, distances from, and potential reactions to the presence of the aircraft, in addition to working with the helicopter pilots to identify areas for landings on ice that is clear of marine mammals.

    (2) Observer Qualifications and Training

    Observers will have previous marine mammal observation experience in the Chukchi and Beaufort Seas. All observers will be trained and familiar with the marine mammals of the area, data collection protocols, reporting procedures, and required mitigation measures.

    (3) Specialized Field Equipment

    The following specialized field equipment for use by the onboard PSO: Fujinon 7 × 50 binoculars for visual monitoring, a GPS unit to document the route of each ice overflight, a laptop computer for data entry, a voice recorder to capture detailed observations and data for post flight entry into the computer, and digital still cameras.

    (4) Field Data-Recording

    The observer on the aircraft will record observations directly into computers using a custom software package. The accuracy of the data entry will be verified in the field by computerized validity checks as the data are entered, and by subsequent manual checking following the flight. Additionally, observers will capture the details of sightings and other observations with a voice recorder, which will maximize observation time and the collection of data. These procedures will allow initial summaries of data to be prepared during and shortly after the surveys, and will facilitate transfer of the data to statistical, graphical or other programs for further processing.

    During the course of the flights, the observer will record information for each sighting including number of individuals, approximate age (when possible to determine), and any type of potential reaction to the aircraft. Environmental information the observer will record includes weather, air temperature, cloud and ice cover, visibility conditions, and wind speed.

    Monitoring Plan Peer Review

    The MMPA requires that monitoring plans be independently peer reviewed “where the proposed activity may affect the availability of a species or stock for taking for subsistence uses” (16 U.S.C. 1371(a)(5)(D)(ii)(III)). Regarding this requirement, NMFS' implementing regulations state, “Upon receipt of a complete monitoring plan, and at its discretion, [NMFS] will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, schedule a workshop to review the plan” (50 CFR 216.108(d)).

    NMFS has established an independent peer review panel to review Shell's 4MP for ice overflight survey in the Beaufort and Chukchi Seas. The panel is scheduled to meet in early March 2015, and will provide comments to NMFS shortly after they meet. After completion of the peer review, NMFS will consider all recommendations made by the panel, incorporate appropriate changes into the monitoring requirements of the IHA (if issued), and publish the panel's findings and recommendations in the final IHA notice of issuance or denial document.

    Reporting Measures (1) Final Report

    The results of Shell's ice overflight monitoring report will be presented in the “90-day” final report, as required by NMFS under the proposed IHA. The initial final report is due to NMFS within 90 days after the expiration of the IHA (if issued). The report will include:

    • Summaries of monitoring effort: Total hours, total distances flown, and environmental conditions during surveys;

    • Summaries of occurrence, species composition, and distribution of all marine mammal sightings including date, numbers, age/size/gender categories (when discernible), group sizes, ice cover and other environmental variables; data will be visualized by plotting sightings relative to the position of the aircraft; and

    • Analyses of the potential effects of ice overflights on marine mammals and the number of individuals that may have been disturbed by aircraft.

    The “90-day” report will be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS.

    (2) Notification of Injured or Dead Marine Mammals

    Shell will be required to notify NMFS' Office of Protected Resources and NMFS' Stranding Network of any sighting of an injured or dead marine mammal. Based on different circumstances, Shell may or may not be required to stop operations upon such a sighting. Shell will provide NMFS with the species or description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available). The specific language describing what Shell must do upon sighting a dead or injured marine mammal can be found in the “Proposed Incidental Harassment Authorization” section of this document.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment]. Only take by Level B behavioral harassment is anticipated as a result of the proposed ice overflight surveys.

    As discussed earlier in this document, potential noise impacts to marine mammals from ice overflight surveys would be limited in a 26° cone under the flight path. The intensity of noise enters the water depends on the altitude of the aircraft (Richardson et al. 1995). Scattering and absorption, however, will limit lateral propagation in the shallow water (Greene and Moore 1995).

    Basis for Estimating “Take by Harassment”

    Exposures were calculated in the following sections for cetaceans and seals. The methods used to estimate exposure for each species group was fundamentally the same with minor differences as described below. Exposure estimates for cetaceans were calculated by multiplying the anticipated area to be flown over open water each season (winter and spring) by the expected densities of cetaceans that may occur in the survey area.

    Exposures of seals were calculated by multiplying the anticipated area to be flown over open water and ice in each season (winter and spring) by the expected densities of seals that may occur in the survey area by the proportion of seals on ice that may actually show a disturbance reaction to each type of aircraft (Born et al. 1999).

    Marine Mammal Density Estimates

    Marine mammal density estimates in the Chukchi and Beaufort Seas have been derived for two time periods: the winter period covering November through April, and the spring period including May through early July.

    There is some uncertainty about the representativeness of the data and assumptions used in the calculations. To provide some allowance for uncertainties, “average” as well as “maximum” estimates of the numbers of marine mammals potentially affected have been derived. For a few species, several density estimates were available. In those cases, the mean and maximum estimates were determined from the reported densities or survey data. In other cases, only one or no applicable estimate was available, so correction factors were used to arrive at “average” and “maximum” estimates. These are described in detail in the following sections.

    In Polar Regions, most pinnipeds are associated with sea ice and typical census methods involve counting pinnipeds when they are hauled out on ice. In the Beaufort Sea, abundance surveys typically occur in spring when ringed seals emerge from their lairs (Frost et al. 2004). Depending on the species and study, a correction factor for the proportion of animals hauled out at any one time may or may not have been applied (depending on whether an appropriate correction factor was available for the particular species, area, and time period). By applying a correction factor, the density of the pinniped species in an area can be estimated.

    Detectability bias, quantified in part by f(0), is associated with diminishing sightability with increasing lateral distance from the survey trackline. Availability bias, g(0), refers to the fact that there is <100 percent probability of sighting an animal that is present along the survey trackline. Some sources below included these correction factors in the reported densities (e.g. ringed seals in Bengtson et al. 2005) and the best available correction factors were applied to reported results when they had not already been included (e.g. bearded seals in Bengtson et al. 2005).

    (1) Cetaceans: Winter (A) Beluga Whales

    Beluga whale density estimates were calculated based on aerial survey data collected in October in the eastern Alaskan Beaufort Sea by the NMML (as part of the BWASP program funded by BOEMRE) in 2007-2010. They reported 31 sightings of 66 individual whales during 1597 km of on-transect effort over waters 200-2000 m deep. An f(0) value of 2.326 was applied and it was calculated using beluga whale sightings data collected in the Canadian Beaufort Sea (Innes et al. 2002). A g(0) value of 0.419 was used that represents a combination of ga(0) = 0.55 (Innes et al. 2002) and gd(0) = 0.762 (Harwood et al. 1996). The resulting densities were then multiplied by 0.10 because the Beaufort Sea and north-eastern Chukchi Sea is believed to be at the edge of the species' range in by November. Belugas typically migrate into the Bering Sea for the winter (Allen and Angliss 2014) and are not expected to be present in the study area in the winter. Satellite tagging data support this and indicate belugas migrate out of the Beaufort Sea in the October-November period (Suydam et al. 2005).

    (B) Bowhead Whales

    Bowhead whale density estimates in the winter in the planned ice overflight area are expected to be quite low. Miller et al. (2002) presented a 10-day moving average of bowhead whale abundance in the eastern Beaufort Sea using data from 1979-2000 that showed a decrease of ~90% from early to late October. Based on these data, it is expected that almost all whales that had been in the Chukchi Sea during early October would likely have migrated beyond the survey areas by November-December. In addition, kernel density estimates and animal tracklines generated from satellite-tagged bowhead whales, along with acoustic monitoring data, suggest that few bowhead whales are present in the proposed survey area in November (near Point Barrow), and no whales were present in December (ADFG 2010; Moore et al. 2010). Therefore, minimal density estimates (0.0001whales/km2) were used.

    (C) Gray whales

    Gray whales may be encountered as they have been detected near Pt. Barrow throughout the winter (Moore et al. 2006, Stafford et al. 2007), but they are expected to be very rare. Thus no density estimate is available.

    (2) Cetaceans: Spring (A) Beluga Whales

    Spring densities of beluga whales in offshore waters are expected to be low, with somewhat higher densities in ice-margin and nearshore areas. Past aerial surveys have recorded few belugas in the offshore Chukchi Sea during the summer months and belugas are most likely encountered in offshore waters of the eastern Alaskan Beaufort Sea (Moore et al. 2000). More recent aerial surveys from 2008-2012 flown by the National Marine Mammal Laboratory (NMML) as part of the Chukchi Offshore Monitoring in Drilling Area (COMIDA) project, now part of the Aerial Surveys of Arctic Marine Mammals (ASAMM) project, reported 10 beluga sightings (22 individuals) in offshore waters during 22,154 km of on-transect effort. Larger groups of beluga whales were recorded in nearshore areas, especially in June and July during the spring migration (Clarke and Ferguson in prep; Clarke et al. 2012, 2013). Effort and sightings reported by Clarke and Ferguson (in prep.) and Clarke et al. (2012, 2013) were used to calculate the average open-water density estimate.

    Those aerial surveys recorded 10 on-transect beluga sightings (22 individuals) during 22,154 km of on transect effort in waters 36-50 m deep in the Chukchi Sea during July and August. The mean group size of the sightings was 2.2. An f(0) value of 2.841 and g(0) value of 0.58 from Harwood et al. (1996) were also used in the density calculation resulting in an average open-water density of 0.0024 belugas/km2. Specific data on the relative abundance of beluga whales in open-water versus ice-margin habitat during the summer in the Chukchi Sea is not available. However, belugas are commonly associated with ice, particularly ice edges and adjacent polynyas, so an inflation factor of 4 was used to estimate the ice-margin densities from the open-water densities.

    (B) Bowhead Whales

    Eastward migrating bowhead whales were recorded during industry aerial surveys of the continental shelf near Camden Bay in 2008 until 12 July (Christie et al. 2010). No bowhead sightings were recorded again, despite continued flights, until 19 August. Aerial surveys by industry operators did not begin until late August of 2006 and 2007, but in both years bowheads were also recorded in the region before the end of August (Lyons et al. 2009). The late August sightings were likely of bowheads beginning their fall migration so the densities calculated from those surveys were not used to estimate summer densities in this region. The three surveys in July of 2008 resulted in density estimates of 0.0099, 0.0717, and 0.0186 bowhead whales/km2, respectively (Christie et al. 2010). The estimate of 0.0186 whales/km2 was used as the average nearshore density and the estimate of 0 0.0717 whales/km2 was used as the maximum. Sea ice was not present during these surveys. Moore et al. (2000) reported that bowhead whales in the Alaskan Beaufort Sea were distributed uniformly relative to sea ice.

    (C) Gray Whales

    Gray whales are expected to be present in the Chukchi Sea but are unlikely in the Beaufort Sea. Moore et al. (2000) found the distribution of gray whales in Chukchi Sea was scattered and limited to nearshore areas where most whales were observed in water less than 35m deep. The average open-water summer density (Table 2) was calculated from 2008-2012 aerial survey effort and sightings in Clarke and Ferguson (in prep) and Clarke et al. (2012, 2013) for water depths 36-50 m including 98 sightings (137 individuals) during 22,154 km of on-transect effort. The average group size of those sightings was 1.4. Correction factors f(0) = 2.49 (Forney and Barlow 1998) and g(0) = 0.30 (Forney and Barlow 1998, Mallonee 1991) were used to calculate and average open-water density of 0.0253 gray whales/km2 (Table 2). The highest density from the survey periods reported in Clarke and Ferguson (in prep) and Clarke et al. (2012, 2013) was 0.0268 gray whales/km2 in 2012 and this was used as the maximum open-water density.

    (3) Pinnipeds: Winter (A) Ringed Seals

    Ringed seal densities were taken from offshore aerial surveys of the pack ice zone conducted in spring 1999 and 2000 (Bengtson et al. 2005). Seal distribution and density in spring, prior to break-up, are thought to reflect distribution patterns established earlier in the year (i.e., during the winter months; Frost et al. 2004). The average density from those two years (weighted by survey effort) was 0.4892 seals/km2. This value served as the average density while the highest density from the two years (0.8100 seals/km2 in 1999) was used as the maximum density.

    (B) Other Seal Species

    Other seal species are not expected to be present in the ice overflight survey area in large numbers during the winter period of the ice overflights. Bearded, spotted, and ribbon seals would be present in the area in smaller numbers than ringed seals during spring through fall summer, but these less common seal species generally migrate into the southern Chukchi and Bering Seas during fall and remain there through the winter (Allen and Angliss 2014). Few satellite-tagging studies have been conducted on these species in the Beaufort Sea, winter surveys have not been conducted, and a few bearded seals have been reported over the continental shelf in spring prior to general break-up. However, the tracks of three bearded seals tagged in 2009 moved south into the Bering Sea along the continental shelf by November (Cameron and Boveng 2009). These species would be more common in the area during spring through fall, but it is possible that some individuals, bearded seals in particular, may be present in the area surveyed in winter. Ribbon seals are unlikely to be present in the survey area during winter as they also migrate southward from the northeastern Chukchi Sea during this period. In the absence of better information from the published literature or other sources that would indicate that significant numbers of any of these species might be present during winter, minimal density estimates were used for these species. Estimates for bearded seals were assumed to be slightly higher than those for spotted and ribbon seals.

    (4) Pinnipeds: Spring

    Three species of pinnipeds under NMFS' jurisdiction are likely to be encountered in the Chukchi and Beaufort Seas during planned ice overflights in spring of 2015: ringed, bearded, and spotted seals. Ringed and bearded seals are associated with both the ice margin and the nearshore open water area during spring. Spotted seals are often considered to be predominantly a coastal species except in the spring when they may be found in the southern margin of the retreating sea ice. However, satellite tagging has shown that some individuals undertake long excursions into offshore waters during summer (Lowry et al. 1994, 1998). Ribbon seals have been reported in very small numbers within the Chukchi Sea by observers on industry vessels (Patterson et al. 2007, Hartin et al. 2013).

    (A) Ringed Seal and Bearded Seal

    Ringed seal and bearded seal “average” and “maximum” spring densities were available in Bengtson et al. (2005) from spring surveys in the offshore pack ice zone (zone 12P) of the northern Chukchi Sea. However, corrections for bearded seal availability, g(0), based on haulout and diving patterns were not available.

    (B) Spotted Seal

    Little information on spotted seal densities in offshore areas of the Alaskan Arctic is available. Spotted seal densities in the spring were estimated by multiplying the ringed seal densities by 0.02. This was based on the ratio of the estimated occurrence of the two species during ice overflight surveys and the assumption that the vast majority of seals present in areas of pack ice would be ringed seals (Funk et al., 2010; 2013).

    (C) Ribbon Seal

    Four ribbon seal sightings were reported during industry vessel operations in the Chukchi Sea in 2006-2010 (Hartin et al. 2013). The resulting density estimate of 0.0007/km2 was used as the average density and 4 times that was used as the maximum for the spring season.

    Estimated Areas Where Cetaceans May Be Encountered by Aircraft

    Encounters that may result in potential disturbance of cetaceans will likely occur only in open water. Flight paths over open water and adjacent ice edges will be minimized by the objectives of the program as an effort to reduce encounters with cetaceans. It is estimated that five to ten percent of distance flown in winter will be over open water, and ten to twenty percent of distance flown in spring will be over open water. We applied the most conservative of these percentages to the proposed tracklines in winter and spring to estimate the area of open water exposed by planned ice overflights.

    The potential disturbance area for each season was based on flight altitude and lateral distance of cetaceans from the center trackline. Based on known air-to-water propagation paths, cetaceans may be exposed to sounds produced by the aircraft when individuals are up to 13 degrees from the aircraft's center (Snell's law; Urick 1972 in Richardson et al. 1995). It was assumed that cetaceans in open water could be disturbed within 13 degrees of vertical (i.e., a 26-degree cone) from the location of an aircraft when aircraft are 305 m (1,000 ft) or lower. NMFS considers aircraft above this altitude would not appreciably disturb cetaceans in open water below. This 305-m maximum disturbance altitude and Snell's law results in a maximum potential disturbance radius of approximately 70 m. Based on Snell's law (Richardson et al. 1995) and a 305 m flight altitude, we used a conservative radius of 75 m to calculate the potential disturbance area beneath an aircraft for cetaceans in open-water conditions.

    Table 2 summarizes potential disturbance radii, maximum flight distances over open water, and potential disturbance areas for cetaceans from fixed wing aircraft and helicopters during Shell's proposed ice overflights program in winter (November through April) and spring (May through early July). Maximum percentage of total trackline over open water, as based on previous surveys, is 10% and 20% of the total trackline for winter and spring, respectively. Based on maximum flight distances, percent open water, and a potential disturbance radius of 75 m for fixed wing aircraft and helicopters, a total of 169 km2 of open-water could be disturbed. Approximately 45% of this total estimated open-water area would be surveyed in winter and the remaining 55% would be surveyed during spring.

    Table 2—Potential Disturbance Radii, Maximum Flight Distances Over Open Water, and Potential Disturbance Areas for Cetaceans in Open Water From Fixed Wing Aircraft and Helicopters in the Chukchi and Beaufort Seas, Alaska, During the Proposed 2015-2016 Ice Overflight Survey Program Aircraft Potential disturbance radius
  • (km)
  • Maximum open water flight distance
  • (km)
  • Winter Spring Potential disturbance
  • area
  • (km2)
  • Winter Spring
    Fixed Wing 0.075 463 556 69 83 Helicopter 0.075 37 74 6 11 Grand Totals 500 630 75 94
    Estimated Areas Where Seals May Be Encountered by Aircraft

    Fixed wing and helicopter flights over ice at ice overflight survey altitudes have the potential to disturb seals hauled out on ice, although the flight altitude and lateral distances at which seals may react to aircraft are highly variable (Born et al. 1999; Burns et al. 1982; Burns and Frost 1979). The probability of a seal hauled out on ice reacting to a fixed wing aircraft or helicopter is influenced by a combination of variables such as flight altitude, lateral distance from the aircraft, ambient conditions (e.g., wind chill), activity, and time of day (Born et al. 1999). Evidence from flyover studies of ringed and bearded seals suggests that a reaction to helicopters is more common than to fixed wing aircraft, all else being equal (Born et al. 1999; Burns and Frost 1979).

    Born et al. (1999) investigated the reactions of ringed seals hauled out on ice to aircraft. The threshold lateral distances from the aircraft trackline out to which the vast majority of reactions were observed were 600 and 1500 m for fixed wing aircraft and helicopters, respectively. Many individual ringed seals within these distances; however, did not react (Born et al. 1999). Results indicated ~6% and ~49% of total seals observed reacted to fixed wing aircraft and helicopters, respectively, by entering the water when aircraft were flown over ice at altitudes similar to those proposed for Shell's ice overflight surveys as described in the Description of the Specific Activity section. These lateral distances and reaction probabilities were used as guidelines for estimating the area of sea ice habitat within which hauled out seals may be disturbed by aircraft and the number of seals that might react. Born et al. 1999, also was used as a guideline in a similar fashion for estimating the numbers of seals that would react to helicopters during US Fish and Wildlife Service polar bear tagging in 2011 and 2012, in which an IHA was issued by NMFS (NMFS 2011).

    Table 3 summarizes potential disturbance radii, maximum flight distances, and potential disturbance areas for seals from fixed wing aircraft and helicopters during Shell's proposed ice overflights program in winter (November through April) and spring (May through early July). Based on maximum flight distances and potential disturbance radii of 600 and 1500 m for fixed wing aircraft and helicopters, respectively, a total of 11,112 km2 (of sea ice could be disturbed. Based on Born et al.'s (1999) observations, however, it is estimated that only ~6 and ~49% of seals in these areas will exhibit a notable reaction to fixed wing aircraft and helicopters, respectively, by entering the water. Approximately 60% of this total area would be surveyed in winter and the remaining 40% would be surveyed during spring.

    Table 3—Potential Disturbance Radii, Maximum Flight Distances Over Open Water, and Potential Disturbance Areas for Seals in Open Water From Fixed Wing Aircraft and Helicopters in the Chukchi and Beaufort Seas, Alaska, During the Proposed 2015-2016 Ice Overflight Survey Program Aircraft Potential disturbance radius
  • (km)
  • Maximum flight distance
  • (km)
  • Winter Spring Potential disturbance area
  • (km2)
  • Winter Spring
    Fixed Wing 0.6 4,630 2,778 5,557 3,335 Helicopter 1.5 370 370 1,110 1,110 Grand Totals 5,000 3,148 6,667 4,445
    Potential Number of “Takes by Harassment” (1) Cetaceans

    This subsection provides estimates of the number of individual cetaceans that could potentially be disturbed by aircraft during Shell's proposed ice overflights. The estimates are based on an estimate of the anticipated open-water area that could be subjected to disturbance from overflights, proximity of cetaceans in open water to the aircraft, and expected cetacean densities in those areas during each season.

    The number of individuals of each cetacean species potentially disturbed by fixed wing aircraft or helicopters was estimated by multiplying:

    • The potential disturbance area from each aircraft (fixed wing and helicopter) for each season (winter and spring), by

    • The percentage of survey area expected to be over open water as opposed to ice in each season, by

    • The expected cetacean density for each season.

    The numbers of individual cetaceans potentially disturbed were then summed for each species across the two seasons.

    Estimates of the average and maximum number of individual cetaceans that may be disturbed are shown by season in Table 4. Less than one individual of each cetacean species was estimated to be disturbed in winter. This was due to the low density of cetaceans in the survey area in winter and extensive ice cover during this period. In spring, a few beluga whales, bowhead whales, and gray whales are estimated to potentially be disturbed during ice overflights when aircraft transit over open water for short periods. The numbers of individuals exposed represent very small proportions of their populations.

    (2) Pinnipeds

    This subsection provides estimates of the number of individual ice seals that could potentially be disturbed by aircraft during Shell's proposed ice overflights. The estimates are based on a consideration of the proposed flight distances, proximity of seals to the aircraft trackline, and the proportion of ice seals present that might actually be disturbed appreciably (i.e. moving from the ice into the water) by flight operations in the Chukchi and Beaufort Seas and the anticipated area that could be subjected to disturbance from overflights.

    The number of individuals of each ice seal species potentially disturbed by fixed wing aircraft or helicopters was estimated by multiplying:

    • The potential disturbance area from each aircraft (fixed wing and helicopter) for each season (winter and spring), by

    • The expected seal density in each season, and by

    • The expected proportion of seals expected to react to each type of aircraft in a way that could be interpreted as disturbance.

    The numbers of individuals potentially disturbed were then summed for each species across the two seasons.

    Estimates of the average number of individual seals that may be disturbed are shown by season in Table 4. The estimates shown represent proportions of the total number of seals encountered that may actually demonstrate a disturbance reaction to each type of aircraft. Estimates shown in Table 4 were based on Born et al. 1999, which assumed that ~6 and ~49% of seals would react within lateral distances of 600 and 1,500 m of fixed wing aircraft and helicopters, respectively.

    Ringed seal is by far the most abundant species expected to be encountered during the planned ice overflights. The best (average) estimate of the numbers of ringed seals potentially disturbed during ice overflights is 793 individuals, which represents only a small proportion of the estimated population of ringed seals in the Chukchi and Beaufort Seas. Fewer individuals of other pinniped species are estimated to be encountered during ice overflights, also representing very small proportions of their populations.

    Table 4—The Total Number of Potential Exposures of Marine Mammals During the Shell's Proposed Ice Overflight Surveys in the Chukchi and Beaufort Seas, Alaska, 2015-2016. Estimates Are Also Shown as a Percent of Each Population Species Abundance Number
  • potential
  • exposure
  • Percent
  • estimated
  • population
  • Beluga (E. Chukchi Sea) 3,710 1 0.027 Beluga whale (Beaufort Sea) 39,258 1 0.003 Bowhead whale 19,534 2 0.010 Gray whale 19,126 2 0.010 Bearded seal 155,000 11 0.007 Ribbon seal 49,000 1 0.002 Ringed seal 300,000 793 0.264 Spotted seal 141,479 7 0.005
    Analysis and Preliminary Determinations Negligible Impact

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, effects on habitat, and the status of the species.

    No injuries or mortalities are anticipated to occur as a result of Shell's proposed ice overflight surveys in the Beaufort and Chukchi Seas, and none are proposed to be authorized. Additionally, animals in the area are not expected to incur hearing impairment (i.e., TTS or PTS) or non-auditory physiological effects. Instead, any impact that could result from Shell's activities is most likely to be behavioral harassment and is expected to be of brief duration and the aircraft flies by. Although it is possible that some individuals may be exposed to sounds from aircraft overflight more than once, during the migratory periods it is less likely that this will occur since animals will continue to move across the Chukchi Sea towards their wintering grounds.

    Aircraft flyovers are not heard underwater for very long, especially when compared to how long they are heard in air as the aircraft approaches an observer. Very few cetaceans are expected to be encountered during ice overflights due to the low density of cetacean species in the winter survey area and small area to be flown over open water during spring. Long-term or population level effects are not expected. The majority of seals encountered by fixed wing aircraft will unlikely show a notable disturbance reaction, and approximately half of the seals encountered by helicopters may react by moving from ice into the water. Any potential disturbance from aircraft to seals in the area of ice overflights will be localized and short-term in duration with no population level effects

    Of the seven marine mammal species likely to occur in the proposed ice overflight survey area, only the bowhead whale and ringed seal are listed as endangered under the ESA. These two species are also designated as “depleted” under the MMPA. Despite these designations, the Bering-Chukchi-Beaufort stock of bowheads has been increasing at a rate of 3.4% annually for nearly a decade (Allen and Angliss, 2011), even in the face of ongoing industrial activity. Additionally, during the 2001 census, 121 calves were counted, which was the highest yet recorded. The calf count provides corroborating evidence for a healthy and increasing population (Allen and Angliss, 2011). Certain stocks or populations of gray and beluga whales and spotted seals are listed as endangered or are proposed for listing under the ESA; however, none of those stocks or populations occur in the proposed activity area. Ringed seals were recently listed under the ESA as threatened species. On July 25, 2014 the U.S. District Court for the District of Alaska vacated the rule listing to the Beringia bearded seal DPS and remanded the rule to NMFS to correct the deficiencies identified in the opinion. None of the other species that may occur in the project area is listed as threatened or endangered under the ESA or designated as depleted under the MMPA. There is currently no established critical habitat in the proposed project area for any of these seven species.

    Potential impacts to marine mammal habitat were discussed previously in this document (see the “Anticipated Effects on Habitat” section). Although some disturbance is possible to food sources of marine mammals, the impacts are anticipated to be minor. Based on the vast size of the Arctic Ocean where feeding by marine mammals occurs versus the localized area of the ice overflight surveys, any missed feeding opportunities in the direct project area would be of little consequence, as marine mammals would have access to other feeding grounds.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from Shell's proposed 2015 ice overflight surveys in the Chukchi and Beaufort Seas will have a negligible impact on the affected marine mammal species or stocks.

    Small Numbers

    The estimated takes proposed to be authorized represent less than 0.3% of the affected population or stock for all species in the survey area.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

    Impact on Availability of Affected Species or Stock for Taking for Subsistence Uses Potential Impacts to Subsistence Uses

    NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as: “an impact resulting from the specified activity: (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers between the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

    Subsistence hunting continues to be an essential aspect of Inupiat Native life, especially in rural coastal villages. The Inupiat participate in subsistence hunting activities in and around the Beaufort and Chukchi Seas. The animals taken for subsistence provide a significant portion of the food that will last the community through the year. Marine mammals represent on the order of 60-80% of the total subsistence harvest. Along with the nourishment necessary for survival, the subsistence activities strengthen bonds within the culture, provide a means for educating the younger generation, provide supplies for artistic expression, and allow for important celebratory events.

    Bowhead Whale

    Activities associated with Shell's planned ice overflight survey program is not likely to have an un-mitigable adverse impact on the availability of bowhead whales for taking for subsistence uses. Ice overflight surveys that may occur near Point Lay, Wainwright, Barrow, Nuiqsut, and Kaktovik would traverse bowhead subsistence areas. Most flights would take place after the date of fall and prior to spring bowhead whale hunting from the villages. The most commonly observed reactions of bowheads to aircraft traffic are hasty dives, but changes in orientation, dispersal, and changes in activity are sometimes noted. Such reactions could potentially affect subsistence hunts if the flights occurred near and at the same time as the hunt. Shell has developed and proposes to implement a number of mitigation measures to avoid such impacts. These mitigation measures include minimum flight altitudes, use of Village Community Liaison Officers (CLOs), Subsistence Advisors (SAs), and Communication Centers in order to avoid conflicts with subsistence activities. SA calls will be held while subsistence activities are underway during the ice overflight survey program and are attended by operations staff, logistics staff, and CLOs. Aircraft flights are adjusted as needed and planned in a manner that avoids potential impacts to bowhead whale hunts and other subsistence activities. With these mitigation measures any effects on the bowhead whale as a subsistence resource, or effects on bowhead subsistence hunts would be minimal.

    Beluga Whale

    Activities associated with Shell's planned ice overflight survey program will not have an un-mitigable adverse impact on the availability of beluga whales for taking for subsistence uses.

    Ice overflight surveys may occur near Point Lay, Wainwright, Barrow, Nuiqsut, and Kaktovik would and traverse beluga whale hunt subsistence areas. Most flights would take place when belugas are not typically harvested. Survey activities could potentially affect subsistence hunts if the flights occurred near and at the same time as the hunt. Shell has developed and proposes to implement a number of mitigation measures to avoid such impacts. These mitigation measures include minimum flight altitudes, use of CLOs, SAs, and Communication Centers. SA calls will be held while subsistence activities are underway during the ice overflight survey program and are attended by operations staff, logistics staff, and CLOs. Aircraft flights are adjusted as needed and planned in a manner that avoids potential impacts to beluga whale hunts and other subsistence activities. With these mitigation measures any effects on the beluga whale as a subsistence resource, or effects on beluga subsistence hunts would be minimal.

    Seals

    Seals are an important subsistence resource with ringed and bearded seals making up the bulk of the seal harvest. The survey areas are far outside of areas reportedly utilized for the harvest of seals by the villages of Point Hope, thus the ice overflight surveys will not have an un-mitigable adverse impact on the availability of ice seals for taking for subsistence uses. The survey areas encompass some areas utilized by residents of Point Lay, Wainwright, Barrow, Nuiqsut and Kaktovik for the harvest of seals. Most ringed and bearded seals are harvested in the winter and a harvest of seals could possibly be affected by Shell's planned activities. Spotted seals are harvested during the summer and may overlap briefly with Shell's planned activities. Most seals are harvested in coastal waters, with available maps of recent and past subsistence use areas indicating that seal harvests have occurred only within 30-40 mi (48-64 km) off the coastline. Some of the planned ice overflight surveys would take place in areas used by the village residents for the harvest of seals. The survey aircraft could potentially travel over areas used by residents for seal hunting and could potentially disturb seals and, therefore, subsistence hunts for seals. Any such effects from the survey activities would be minimal due to the infrequency of the planned surveys. Shell has developed and proposes to implement a number of mitigation measures which include a proposed 4MP, use of CLOs, SAs, operation of Communication Centers, and minimum altitude requirements. SA calls will be held while subsistence activities are underway during the ice overflight survey program and are attended by operations staff, logistics staff, and CLO's. Aircraft movements and activities are adjusted as needed and planned in a manner that avoids potential impacts to subsistence activities. With these mitigation measures any effects on ringed, bearded, and spotted seals as subsistence resources, or effects on subsistence hunts for seals, would be minimal.

    Plan of Cooperation or Measures To Minimize Impacts to Subsistence Hunts

    Regulations at 50 CFR 216.104(a)(12) require IHA applicants for activities that take place in Arctic waters to provide a Plan of Cooperation (POC) or information that identifies what measures have been taken and/or will be taken to minimize adverse effects on the availability of marine mammals for subsistence purposes.

    Shell is preparing to implement a POC in accordance with NMFS' regulations. The POC relies upon the Chukchi Sea Communication Plans to identify the measures that Shell has developed in consultation with North Slope subsistence communities and will implement during its planned 2015/2016 ice overflight surveys to minimize any adverse effects on the availability of marine mammals for subsistence uses. In addition, the POC will detail Shell's communications and consultations with local subsistence communities concerning its planned 2015/2016 program, potential conflicts with subsistence activities, and means of resolving any such conflicts (50 CFR 216.104(a) (12) (i), (ii), and (iv)). Shell continues to document its contacts with the North Slope subsistence communities, as well as the substance of its communications with subsistence stakeholder groups.

    The POC identifies and documents potential conflicts and associated measures that will be taken to minimize any adverse effects on the availability of marine mammals for subsistence use. Outcomes of POC meetings are typically included in updates attached to the POC as addenda and distributed to federal, state, and local agencies as well as local stakeholder groups that either adjudicate or influence mitigation approaches for Shell's activities.

    Shell will engage with the villages potentially impacted by the 2015/2016 ice overflight surveys in the Chukchi and Beaufort Seas in 2014 and early 2015. Meetings were held in Barrow and Point Lay in early November 2014 and additional engagements are scheduled with other villages in early 2015. Throughout 2015, and 2016 Shell anticipates continued engagement with the marine mammal commissions and committees active in the subsistence harvests and marine mammal research.

    Following the 2015/2016 season, Shell intends to have a post-season co-management meeting with the commissioners and committee heads to discuss results of mitigation measures and outcomes of the preceding season. The goal of the post-season meeting is to build upon the knowledge base, discuss successful or unsuccessful outcomes of mitigation measures, and possibly refine plans or mitigation measures if necessary.

    In addition to the POC, the following subsistence mitigation measures will be implemented for Shell's proposed ice overflight surveys.

    (1) Communications

    • Shell has developed a Communication Plan and will implement this plan before initiating ice overflight survey operations to coordinate activities with local subsistence users, as well as Village Whaling Captains' Associations, to minimize the risk of interfering with subsistence hunting activities, and keep current as to the timing and status of the bowhead whale hunt and other subsistence hunts.

    • Shell will employ local CLOs and/or SAs from the Chukchi Sea villages that are potentially impacted by Shell's ice overflight surveys. The CLOs and SAs will provide consultation and guidance regarding the whale migration and subsistence activities. There will be one per village. The CLO and/or SA will use local knowledge (Traditional Knowledge) to gather data on the subsistence lifestyle within the community and provide advice on ways to minimize and mitigate potential negative impacts to subsistence resources during the survey season. Responsibilities include reporting any subsistence concerns or conflicts; coordinating with subsistence users; reporting subsistence-related comments, concerns, and information; and advising how to avoid subsistence conflicts.

    (2) Aircraft Travel

    • The aircraft will maintain a 1 mi (1.6 km) radius when flying over areas where seals appear to be concentrated in groups of ≥ 5 individuals.

    • The aircraft will not land on ice within 0.5 mi (805 m) of hauled out pinnipeds.

    • The aircraft will avoid flying over polynyas and along adjacent ice margins as much as possible to minimize potential disturbance to cetaceans.

    • Aircraft shall not operate below 1,500 ft (457 m) in areas of active whale hunting; such areas to be identified through communications with the Com Centers and SAs.

    • Shell will routinely engage with local communities and subsistence groups to ensure no disturbance of whaling or other subsistence activities.

    Unmitigable Adverse Impact Analysis and Preliminary Determination

    NMFS considers that these mitigation measures including measures to reduce overall impacts to marine mammals in the vicinity of the proposed ice overflight survey area and measures to mitigate any potential adverse effects on subsistence use of marine mammals are adequate to ensure subsistence use of marine mammals in the vicinity of Shell's proposed ice overflight surveys in the Chukchi and Beaufort Seas.

    Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the proposed mitigation and monitoring measures, NMFS has preliminarily determined that there will not be an unmitigable adverse impact on subsistence uses from Shell's proposed activities.

    Endangered Species Act (ESA)

    There are two marine mammal species listed as endangered under the ESA with confirmed or possible occurrence in the proposed project area: the bowhead whale and ringed seal. NMFS' Permits and Conservation Division will initiate consultation with NMFS' Endangered Species Division under section 7 of the ESA on the issuance of an IHA to Shell under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to a determination on the issuance of an IHA.

    National Environmental Policy Act (NEPA)

    NMFS is preparing an Environmental Assessment (EA), pursuant to NEPA, to determine whether the issuance of an IHA to Shell for its 2015/2016 ice overflight surveys may have a significant impact on the human environment. NMFS has released a draft of the EA for public comment along with this proposed IHA.

    Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to issue an IHA to Shell for conducting ice overflight surveys in the Chukchi and Beaufort Seas during 2015/2016, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.

    This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).

    (1) This Authorization is valid from May 1, 2015, through April 30, 2016.

    (2) This Authorization is valid only for activities associated with Shell's 2015/2016 Chukchi and Beaufort Seas ice overflight surveys. The specific areas where Shell's ice overflight surveys will be conducted are the Chukchi and Beaufort Seas, Alaska, as indicated in Figure 1-1 of Shell's IHA application.

    (3)(a) The incidental taking of marine mammals, by Level B harassment only, is limited to the following species: bowhead whale; gray whale; beluga whale; ringed seal; bearded seal; spotted seal; and ribbon seal.

    (3)(b) The taking by injury (Level A harassment), serious injury, or death of any of the species listed in Condition 3(a) or the taking of any kind of any other species of marine mammal is prohibited and may result in the modification, suspension or revocation of this Authorization.

    (4) The authorization for taking by harassment is limited to the following activities: Ice overflight surveys during freeze-up, winter, and break-up periods in 2015 and 2016 by aircraft.

    (5) The taking of any marine mammal in a manner prohibited under this Authorization must be reported immediately to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS or her designee.

    (6) The holder of this Authorization must notify the Chief of the Permits and Conservation Division, Office of Protected Resources, at least 48 hours prior to the start of ice overflight surveys (unless constrained by the date of issuance of this Authorization in which case notification shall be made as soon as possible).

    (7) Ice Overflight Mitigation and Monitoring Requirements: The Holder of this Authorization is required to implement the following mitigation and monitoring requirements when conducting the specified activities to achieve the least practicable impact on affected marine mammal species or stocks:

    (a) A PSO will be aboard all flights recording all sightings/observations (e.g. including number of individuals, approximate age (when possible to determine)), and any type of potential reaction to the aircraft. Environmental information the observer will record includes weather, air temperature, cloud and ice cover, visibility conditions, and wind speed.

    (b) The aircraft will maintain a 1 mi radius when flying over areas where seals appear to be concentrated in groups of ≥ 5 individuals;

    (c) The aircraft will not land on ice within 0.5 mi of hauled out pinnipeds or polar bears; and

    (d) The aircraft will avoid flying over polynyas and along adjacent ice margins as much as possible to minimize potential disturbance to cetaceans.

    (8) Subsistence Mitigation Measures: To ensure no unmitigable adverse impact on subsistence uses of marine mammals, the Holder of this Authorization shall:

    (a) Develop and implement a Communication Plan before initiating ice overflight survey operations to coordinate activities with local subsistence users, as well as Village Whaling Captains' Associations, to minimize the risk of interfering with subsistence hunting activities, and keep current as to the timing and status of the bowhead whale hunt and other subsistence hunts.

    (b) Employ local Community Liaison Officers (CLOs) and/or Subsistence Advisors (SAs) from the Chukchi Sea villages that are potentially impacted by the ice overflight surveys.

    (A) The CLOs and SAs will provide consultation and guidance regarding the whale migration and subsistence activities.

    (B) The CLOs and SAs will also report any subsistence concerns or conflicts; coordinate with subsistence users; report subsistence-related comments, concerns, and information; and advise how to avoid subsistence conflicts.

    (c) Routinely engage with local communities and subsistence groups to ensure no disturbance of whaling or other subsistence activities.

    (9) Monitoring Measures:

    (a) Protected Species Observers:

    (A) Aerial monitoring for marine mammals will be conducted by a trained protected species observer (PSO) aboard each flight.

    (B) PSO duties will include watching for and identifying marine mammals, recording their numbers, distances from, and potential reactions to the presence of the aircraft, in addition to working with the helicopter pilots to identify areas for landings on ice that is clear of marine mammals.

    (b) Observer Qualifications and Training

    (A) Observers will have previous marine mammal observation experience in the Chukchi and Beaufort Seas.

    (B) All observers will be trained and familiar with the marine mammals of the area, data collection protocols, reporting procedures, and required mitigation measures.

    (c) Specialized Field Equipment:

    (A) Fujinon 7 X 50 binoculars for visual monitoring,

    (B) GPS unit to document the route of each ice overflight,

    (C) Laptop computer for data entry,

    (D) Voice recorder to capture detailed observations and data for post flight entry into the computer,

    (E) Digital still cameras.

    (d) Field Data-Recording

    (A) The observer on the aircraft will record observations directly into computers using a custom software package.

    (B) The accuracy of the data entry will be verified in the field by computerized validity checks as the data are entered, and by subsequent manual checking following the flight.

    (C) Observers will capture the details of sightings and other observations with a voice recorder, which will maximize observation time and the collection of data.

    (D) During the course of the flights, the observer will record information for each sighting including:

    • Number of individuals,

    • Approximate age (when possible to determine),

    • Any type of potential reaction to the aircraft.

    • Weather, air temperature, wind speed, cloud and ice cover, and

    • Visibility conditions.

    (10) Reporting Requirements:

    (a) Final Report: The results of Shell's ice overflight monitoring report will be presented in the “90-day” final report, as required by NMFS under the proposed IHA. The initial final report is due to NMFS within 90 days after the expiration of the IHA. The report will include:

    (A) Summaries of monitoring effort: total hours, total distances flown, and environmental conditions during surveys;

    (B) Summaries of occurrence, species composition, and distribution of all marine mammal sightings including date, numbers, age/size/gender categories (when discernible), group sizes, ice cover and other environmental variables; data will be visualized by plotting sightings relative to the position of the aircraft; and

    (C) Analyses of the potential effects of ice overflights on marine mammals and the number of individuals that may have been disturbed by aircraft.

    (b) The “90-day” report will be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS.

    (11)(a) In the unanticipated event that the ice overflight surveys clearly cause the take of a marine mammal in a manner prohibited by this Authorization, such as an injury (Level A harassment), serious injury or mortality, Shell shall immediately cease operations and immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, by phone or email and the Alaska Regional Stranding Coordinators. The report must include the following information: (i) Time, date, and location (latitude/longitude) of the incident; (ii) the name and type of vessel involved; (iii) the vessel's speed during and leading up to the incident; (iv) description of the incident; (v) status of all sound source use in the 24 hours preceding the incident; (vi) water depth; (vii) environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); (viii) description of marine mammal observations in the 24 hours preceding the incident; (ix) species identification or description of the animal(s) involved; (x) the fate of the animal(s); (xi) and photographs or video footage of the animal (if equipment is available).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with Shell to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Shell may not resume their activities until notified by NMFS via letter, email, or telephone.

    (b) In the event that Shell discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), Shell will immediately report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, by phone or email and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinators. The report must include the same information identified in Condition 12(a) above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with Shell to determine whether modifications in the activities are appropriate.

    (c) In the event that Shell discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in Condition 2 of this Authorization (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), Shell shall report the incident to the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, by phone or email and the NMFS Alaska Stranding Hotline and/or by email to the Alaska Regional Stranding Coordinators, within 24 hours of the discovery. Shell shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. Activities may continue while NMFS reviews the circumstances of the incident.

    (12) The Plan of Cooperation outlining the steps that will be taken to cooperate and communicate with the native communities to ensure the availability of marine mammals for subsistence uses must be implemented.

    (13) Shell is required to comply with the Terms and Conditions of the Incidental Take Statement (ITS) corresponding to NMFS's Biological Opinion issued to NMFS's Office of Protected Resources.

    (14) A copy of this Authorization and the ITS must be in the possession of all contractors and PSOs operating under the authority of this Incidental Harassment Authorization.

    (15) Penalties and Permit Sanctions: Any person who violates any provision of this Incidental Harassment Authorization is subject to civil and criminal penalties, permit sanctions, and forfeiture as authorized under the MMPA.

    (16) This Authorization may be modified, suspended or withdrawn if the Holder fails to abide by the conditions prescribed herein or if the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, or if there is an unmitigable adverse impact on the availability of such species or stocks for subsistence uses.

    Request for Public Comment

    As noted above, NMFS requests comment on our analysis, the draft authorization, and any other aspect of the Notice of Proposed IHA for Shell's 2015/2016 Chukchi and Beaufort Seas ice overflight surveys. Please include, with your comments, any supporting data or literature citations to help inform our final decision on Shell's request for an MMPA authorization.

    Dated: February 25, 2015. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2015-04426 Filed 3-3-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD741 Taking of Marine Mammals Incidental to Specified Activities; Anacortes Tie-Up Slips Dolphin and Wingwall Replacement AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments and information.

    SUMMARY:

    NMFS has received a request from the Washington State Department of Transportation (WSDOT) for an authorization to take small numbers of 11 species of marine mammals, by Level B harassment, incidental to proposed construction activities for a tie-up slips dolphin and wingwall replacement project in Anacortes, Washington State. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an authorization to WDOT to incidentally take, by harassment, small numbers of marine mammals for a period of 1 year.

    DATES:

    Comments and information must be received no later than April 3, 2015.

    ADDRESSES:

    Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is [email protected] NMFS is not responsible for email comments sent to addresses other than the one provided here. Comments sent via email, including all attachments, must not exceed a 25-megabyte file size.

    Instructions: All comments received are a part of the public record and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

    A copy of the application may be obtained by writing to the address specified above or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm. Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address.

    FOR FURTHER INFORMATION CONTACT:

    Shane Guan, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for a one-year authorization to incidentally take small numbers of marine mammals by harassment, provided that there is no potential for serious injury or mortality to result from the activity. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.

    Summary of Request

    On April 1, 2014, WSDOT submitted a request to NOAA requesting an IHA for the possible harassment of small numbers of 11 marine mammal species incidental to construction associated with the Anacortes Tie-up Slips Dolphin and Wingwall Replacement in the city of Anacortes, on Fidalgo Island, adjacent to Guemes Channel, Skagit County, Washington, between September 1, 2015, and February 15, 2016. NMFS determined that the IHA application was complete on July 1, 2014. NMFS is proposing to authorize the Level B harassment of the following marine mammal species/stocks: Harbor seal, California sea lion, Steller sea lion (eastern Distinct Population Segment, or DPS), northern elephant seal, killer whale (transient and Southern Resident stocks), gray whale, humpback whale, minke whale, harbor porpoise, Dall's porpoise, and Pacific white-sided dolphin.

    Description of the Specified Activity Overview

    The purpose of this project is to replace the aging timber wingwalls and dolphins in Tie-up Slips 3 and 4 (Figures 1-3, 1-4 and 1-5 in WSDOT's IHA application) with standard steel and concrete designs. The aging timber facilities are beginning to deteriorate from combined docking operations, salt water infusion and wood rot organisms. Replacement of these facilities will allow the ferries to safely moor at the terminal and provide the necessary protection of the terminal from the docking of ferries. The timber piles that will be permanently removed are listed Table 1.

    WSDOT plans to re-use eight existing 36-inch steel piles (remove and relocate) and install 52 new permanent steel piles (24-, 30-, and 36-inch) with a vibratory hammer. In addition, WSDOT may install one temporary dolphin consisting of one 24-inch steel pile and/or the contractor may elect to temporarily install four 24-inch steel piles at the location of each dolphin and wingwall to be used as a pile driving template for the permanent piles (Table 2). These four temporary piles will be removed once the corresponding landing aid is completed, then installed at the location of the next structure, and completely removed at the end of the project. Between one and five temporary piles will be installed at any given time during the project.

    A vibratory hammer will be used for pile removal and driving. No impact pile driving or proofing is necessary. Existing timber piles may also be removed by direct pull. Pile driving and removal will be conducted from a barge containing a derrick, crane, and other necessary equipment. The barge will be anchored and/or spudded. No barge dynamic positioning system (DPS) will be used on this project.

    Table 1—Timber Piles To Be Removed Structure Number
  • of piles
  • removed
  • Slip 3 Wingwalls 46 Slip 3 Left Dolphin 35 Slip 3 Right Inner 35 Slip 3 Right Outer 51 Slip 4 Wing Dolphins 70 Slip 4 Right Outer 35 Total 272
    Table 2—Project Piles To Be Installed Structure name Location Depth
  • (ft)
  • Existing
  • steel
  • piles
  • 36″ Temporary
  • steel
  • piles*
  • 24″ New
  • permanent
  • steel piles
  • 36″ 30″ 24″ Total
    Dolphin 1 Slip 3 left intermediate −28 4 1 4 9 Dolphin 2 Slip 3 right inner (double sided) −28 4 2 4 10 Dolphin 3 Slip 3 right outer (double sided) −30 4 10 6 20 Dolphin 4 Slip 4 right outer −27 4 3 6 13 Wingwall 1 Slip 3 −28 8 4 12 Wingwall 2 Slip 4 −25 4 8 16 Temporary Dolphin Protective Dolphin −34 1 1 Total 8 5 1 20 20 12 81 1 No more than five temporary piles will be in place at any one time.
    Dates and Duration

    In-water construction is planned to take place between September 2015 and February 2016. The on-site work will last approximately 135 days with pile removal and driving taking place over approximately 36 days. All work will occur in water depths between −25 and −34 feet mean low low water (MLLW).

    Duration estimates of each of the pile driving elements follow:

    • The daily construction window for pile removal or driving will begin no sooner than 30 minutes after sunrise to allow for initial marine mammal monitoring, and will end 30 minutes before sunset to allow for post-construction marine mammal monitoring.

    • Vibratory pile removal of the existing timber piles will take approximately 10 to 15 minutes per pile. Vibratory removal will take less time than driving, because piles are vibrated to loosen them from the soil, and then pulled out with the vibratory hammer turned off. Assuming the worst case of 15 minutes per pile (with no direct pull or clamshell removal), removal of 272 piles at the Anacortes terminal will take 68 hours over nine days of pile removal.

    • Vibratory pile driving of the steel piles will take approximately 20 minutes per pile, with three to five piles installed per day. Assuming 20 minutes per pile, and three piles per day, driving of 81 piles at the Anacortes terminal will take 27 hours over 27 days.

    The total worst-case time for pile removal is nine days, and 27 days for pile installation. The actual number of pile-removal/driving days is expected to be less.

    Specified Geographic Region

    The proposed activities will occur at the Anacortes ferry terminal located in Anacortes, Washington (see Figures 1-1 and 1-2 of WSDOT's IHA application). The terminal is adjacent to Guemes Channel, tributary to the Georgia Basin.

    The Anacortes ferry terminal, serving State Route 20, is located in the city of Anacortes, on Fidalgo Island, adjacent to Guemes Channel, Skagit County, Washington. Guemes Channel is tributary to the Georgia Basin. The terminal is located in Section 22, Township 35 North, Range 1 East. This is the primary terminal for all WSDOT ferry departures to the San Juan Islands and Vancouver Island. Land use in the area is a mix of residential, business, and local parks.

    Detailed Description of Anacortes Tie-up Slips Dolphin and Wingwall Replacement

    The following construction activities are anticipated:

    • Remove three 35-pile dolphins, one 51-pile dolphin, 70 piles associated with wing-dolphins, and 46 piles associated with wingwalls. These piles will be removed with a vibratory hammer or by direct pull and clamshell removal.

    • If necessary, vibratory pile-drive one to five 24-inch steel piles for use as a temporary template at each structure location.

    • Vibratory pile-drive up to six 30-inch steel piles and up to ten 36-inch steel piles for each new dolphin.

    • Place precast concrete diaphragm on new dolphins.

    • Attach fender panel to new fender pile.

    • Remove temporary piles.

    • At Slip 3 wingwalls, vibratory pile-drive up to four 24-inch steel piles (two per wingwall).

    • At Slip 4 wingwalls, vibratory pile-drive and up to four 24-inch steel piles (two per wingwall), and eight 36-inch steel piles (four per wingwall).

    • Attach rubber fenders between plumb piles.

    Approximately 441 tons of creosote-treated timbers will be removed from the marine environment. The total mudline footprint of the existing dolphins is 258 square feet (ft2). The total mudline footprint of the new dolphins will be 263 ft2, an increase of five square feet. However, the footprint of the new steel dolphins will be more open, allowing fish movement between the piles. The new dolphins and wingwalls will have 52 piles, compared to the existing structures, which have 272 tightly clustered piles with no space between them. Detailed descriptions of these activities are provided below.

    (1) Vibratory Hammer Pile Removal

    Vibratory hammer extraction is a common method for removing timber piling. A vibratory hammer is a large mechanical device mostly constructed of steel (weighing 5 to 16 tons) that is suspended from a crane by a cable. It is attached to a derrick and positioned on the top of a pile. The pile is then unseated from the sediments by engaging the hammer, creating a vibration that loosens the sediments binding the pile, and then slowly lifting up on the hammer with the aid of the crane.

    Once unseated, the crane will continue to raise the hammer and pull the pile from the sediment. When the pile is released from the sediment, the vibratory hammer is disengaged and the pile is pulled from the water and placed on a barge for transfer upland. Vibratory removal will take approximately 10 to 15 minutes per pile, depending on sediment conditions.

    The piling will be loaded onto the barge or into a container and disposed of offsite in accordance with State of Washington Administrative Code (WAC) 173-304 Minimum Functional Standards for Solid Waste Handling and mitigation.

    (2) Direct Pull and Clamshell Pile Removal

    Older timber pilings are particularly prone to breaking at the mudline because of damage from marine borers and vessel impacts, and must be removed because they can interfere with the installation of new pilings. In some cases, removal with a vibratory hammer is not possible if the pile is too fragile to withstand the hammer force.

    Broken or damaged piles may be removed by wrapping the piles with a cable and pulling them directly from the sediment with a crane. If the piles break below the waterline, the pile stubs may be removed with a clamshell bucket, a hinged steel apparatus that operates like a set of steel jaws. The bucket will be lowered from a crane and the jaws will grasp the pile stub as the crane pulls up. The broken piling and stubs will be loaded onto the barge for off-site disposal. Clamshell removal will be used only if necessary. Direct pull and clamshell removal do not produce noise that could impact marine mammals.

    (3) Vibratory Hammer Pile Installation

    Vibratory hammers are commonly used in steel pile installation where sediments allow and may involve the same vibratory hammer used in pile extraction. The pile is placed into position using a choker and crane, and then vibrated between 1,200 and 2,400 vibrations per minute. The vibrations liquefy the sediment surrounding the pile allowing it to penetrate to the required seating depth. The type of vibratory hammer that will be used for the project will likely be an APE 400 King Kong (or equivalent) with a drive force of 361 tons.

    Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction most likely to occur in the proposed construction area include Pacific harbor seal (Phoca vitulina richardsi), northern elephant seal (Mirounga angustirostris), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), killer whale (Orcinus orca) (transient and Southern Resident stocks), gray whale (Eschrichtius robustus), humpback whale (Megaptera novaeangliae), minke whale (Balaenoptera acutorostrata), harbor porpoise (Phocoena phocoena), Dall's porpoise (P. dali), and Pacific white-sided dolphin (Lagenorhynchus obliquidens).

    Table—Marine Mammal Species Potentially Present in Region of Activity Species ESA Status MMPA Status Occurrence Harbor Seal Not listed Non-depleted Frequent. California Sea Lion Not listed Non-depleted Frequent. Northern Elephant Seal Not listed Non-depleted Occasional. Steller Sea Lion (eastern DPS) Not listed Under review Rare. Harbor Porpoise Not listed Non-depleted Frequent. Dall's Porpoise Not listed Non-depleted Occasional. Pacific White-sided dolphin Not listed Non-depleted Occasional. Killer Whale Endangered (Southern Resident) Depleted Occasional. Gray Whale Delisted Unclassified Occasional. Humpback Whale Endangered Depleted Rare. Minke Whale Not listed Non-depleted Rare.

    General information on the marine mammal species found in Washington coastal waters can be found in Caretta et al. (2014), which is available at the following URL: http://www.nmfs.noaa.gov/pr/sars/pdf/po2013.pdf. Refer to that document for information on these species. A list of marine mammals in the vicinity of the action and their status are provided in Table 3. Specific information concerning these species in the vicinity of the proposed action area is provided in detail in the WSDOT's IHA application.

    Potential Effects of the Specified Activity on Marine Mammals

    This section includes a summary and discussion of the ways that the types of stressors associated with the specified activity (e.g., pile removal and pile driving) have been observed to impact marine mammals. This discussion may also include reactions that we consider to rise to the level of a take and those that we do not consider to rise to the level of a take (for example, with acoustics, we may include a discussion of studies that showed animals not reacting at all to sound or exhibiting barely measurable avoidance). This section is intended as a background of potential effects and does not consider either the specific manner in which this activity will be carried out or the mitigation that will be implemented, and how either of those will shape the anticipated impacts from this specific activity. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, the “Proposed Mitigation” section, and the “Anticipated Effects on Marine Mammal Habitat” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks.

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall et al. (2007) designate “functional hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The functional groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their functional range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range):

    • Low frequency cetaceans (13 species of mysticetes): Functional hearing is estimated to occur between approximately 7 Hz and 22 kHz (however, a study by Au et al., (2006) of humpback whale songs indicate that the range may extend to at least 24 kHz);

    • Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    • High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): Functional hearing is estimated to occur between approximately 200 Hz and 180 kHz; and

    • Pinnipeds in Water: Functional hearing is estimated to occur between approximately 75 Hz and 75 kHz, with the greatest sensitivity between approximately 700 Hz and 20 kHz.

    As mentioned previously in this document, 11 marine mammal species (7 cetacean and 4 pinniped species) are likely to occur in the proposed seismic survey area. Of the 7 cetacean species likely to occur in the proposed project area, 3 are classified as low-frequency cetaceans (i.e., humpback, gray, and minke whales), 2 are classified as mid-frequency cetaceans (i.e., killer whale and Pacific white-sided dolphin), and 2 are classified as high-frequency cetaceans (i.e., harbor and Dall's porpoises) (Southall et al., 2007). A species' functional hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals.

    Marine mammals exposed to high-intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al. 1999; Schlundt et al. 2000; Finneran et al. 2002; 2005). TS can be permanent (PTS), in which case the loss of hearing sensitivity is unrecoverable, or temporary (TTS), in which case the animal's hearing threshold will recover over time (Southall et al. 2007). Since marine mammals depend on acoustic cues for vital biological functions, such as orientation, communication, finding prey, and avoiding predators, hearing impairment could result in the reduced ability of marine mammals to detect or interpret important sounds. Repeated noise exposure that causes TTS could lead to PTS.

    Experiments on a bottlenose dolphin (Tursiops truncates) and beluga whale (Delphinapterus leucas) showed that exposure to a single watergun impulse at a received level of 207 kPa (or 30 psi) peak-to-peak (p-p), which is equivalent to 228 dB (p-p) re 1 μPa, resulted in a 7 and 6 dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds returned to within 2 dB of the pre-exposure level within 4 minutes of the exposure (Finneran et al. 2002). No TTS was observed in the bottlenose dolphin. Although the source level of one hammer strike for pile driving is expected to be much lower than the single watergun impulse cited here, animals being exposed for a prolonged period to repeated hammer strikes could receive more noise exposure in terms of sound exposure level (SEL) than from the single watergun impulse (estimated at 188 dB re 1 μPa2−s) in the aforementioned experiment (Finneran et al. 2002).

    Chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions (Clark et al. 2009). Masking is the obscuring of sounds of interest by other sounds, often at similar frequencies. Masking generally occurs when sounds in the environment are louder than, and of a similar frequency as, auditory signals an animal is trying to receive. Masking can interfere with detection of acoustic signals, such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired.

    Masking occurs at the frequency band which the animals utilize. Since noise generated from in-water vibratory pile removal and driving is mostly concentrated at low frequency ranges, it may have little effect on high-frequency echolocation sounds by odontocetes (toothed whales), which may hunt California sea lion and harbor seal. However, the lower frequency man-made noises are more likely to affect the detection of communication calls and other potentially important natural sounds, such as surf and prey noise. The noises may also affect communication signals when those signals occur near the noise band, and thus reduce the communication space of animals (e.g., Clark et al. 2009) and cause increased stress levels (e.g., Foote et al. 2004; Holt et al. 2009).

    Unlike TS, masking can potentially impact the species at community, population, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels in the world's oceans have increased by as much as 20 dB (more than 3 times, in terms of SPL) from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). All anthropogenic noise sources, such as those from vessel traffic and pile removal and driving, contribute to the elevated ambient noise levels, thus intensifying masking.

    Finally, in addition to TS and masking, exposure of marine mammals to certain sounds could lead to behavioral disturbance (Richardson et al. 1995), such as: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities, such as socializing or feeding; visible startle response or aggressive behavior, such as tail/fluke slapping or jaw clapping; avoidance of areas where noise sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries). The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography), and is therefore difficult to predict (Southall et al. 2007).The activities of workers in the project area may also cause behavioral reactions by marine mammals, such as pinnipeds flushing from the jetty or pier or moving farther from the disturbance to forage. However, observations of the area show that it is unlikely that more than 10 to 20 individuals of pinnipeds would be present in the project vicinity at any one time. Therefore, even if pinnipeds were flushed from the haul-out, a stampede is very unlikely, due to the relatively low number of animals onsite. In addition, proposed mitigation and monitoring measures would minimize the startle behavior of pinnipeds and prevent the animals from flushing into the water.

    The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, or reproduction. Some of these types of significant behavioral modifications include: Drastic change in diving/surfacing patterns (such as those thought to be causing beaked whale strandings due to exposure to military mid-frequency tactical sonar); habitat abandonment due to loss of desirable acoustic environment; and cessation of feeding or social interaction.

    Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory pile removal and pile driving in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.

    Potential Impacts on Prey Species

    With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga et al. 1981) and possibly avoid predators (Wilson and Dill 2002). Experiments have shown that fish can sense both the strength and direction of sound (Hawkins 1981). Primary factors determining whether a fish can sense a sound signal, and potentially react to it, are the frequency of the signal and the strength of the signal in relation to the natural background noise level.

    The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas et al. 1993). In general, fish react more strongly to pulses of sound rather than non-pulse signals (such as noise from pile driving) (Blaxter et al. 1981), and a quicker alarm response is elicited when the sound signal intensity rises rapidly compared to sound rising more slowly to the same level.

    During the coastal construction only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the pile driving activity ceases. Thus, the proposed construction would have little, if any, impact on the abilities of marine mammals to feed in the area where construction work is planned.

    Finally, the time of the proposed construction activity would avoid the spawning season of the ESA-listed salmonid species.

    Water and Sediment Quality

    Short-term turbidity is a water quality effect of most in-water work, including pile driving. WSDOT must comply with state water quality standards during these operations by limiting the extent of turbidity to the immediate project area.

    Roni and Weitkamp (1996) monitored water quality parameters during a pier replacement project in Manchester, Washington. The study measured water quality before, during and after pile driving. The study found that construction activity at the site had “little or no effect on dissolved oxygen, water temperature and salinity”, and turbidity (measured in nephelometric turbidity units [NTU]) at all depths nearest the construction activity was typically less than 1 NTU higher than stations farther from the project area throughout construction.

    Similar results were recorded during pile removal operations at two WSDOT ferry facilities. At the Friday Harbor terminal, localized turbidity levels (from three timber pile removal events) were generally less than 0.5 NTU higher than background levels and never exceeded 1 NTU. At the Eagle Harbor maintenance facility, local turbidity levels (from removal of timber and steel piles) did not exceed 0.2 NTU above background levels. In general, turbidity associated with pile installation is localized to about a 25-foot radius around the pile (Everitt et al. 1980).

    Cetaceans are not expected to be close enough to the Anacortes ferry terminal to experience turbidity, and any pinnipeds will be transiting the terminal area and could avoid localized areas of turbidity. Therefore, the impact from increased turbidity levels is expected to be discountable to marine mammals.

    Passage Obstructions

    Pile removal and driving operations at the Anacortes ferry terminal will not obstruct movements of marine mammals. The operations at Anacortes will occur within 152 m (500 ft) of the shoreline, leaving 3.2 km (2.0 mi) of Puget Sound for marine mammals to pass.

    A construction barge will be used during the project. The barge will be anchored and/or spudded. No dynamic positioning system (DPS) will be used.

    Proposed Mitigation Measures

    In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses.

    For WSDOT's proposed Anacortes tie-up slips dolphin and wingwall replacement project, WSDOT worked with NMFS and proposed the following mitigation measures to minimize the potential impacts to marine mammals in the project vicinity. The primary purposes of these mitigation measures are to minimize sound levels from the activities, to monitor marine mammals within designated zones of influence (ZOI) corresponding to NMFS' current Level B harassment thresholds and, if marine mammals with the ZOI appear disturbed by the work activity, to initiate immediate shutdown or power down of the piling hammer, making it very unlikely potential injury or TTS to marine mammals would occur and ensuring that Level B behavioral harassment of marine mammals would be reduced to the lowest level practicable.

    No Impact Pile Driving

    To avoid potential injury to marine mammals, only vibratory pile hammer will be used for pile removal and pile driving.

    Time Restriction

    Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted. In addition, all in-water construction will be limited to the period between September 1, 2015, and February 15, 2016.

    Establishment of Level B Harassment Zones of Influence

    Because WSDOT will not use impact pile driving for the proposed construction work, no Level A exclusion zone exists for marine mammals. NMFS currently uses received level of 120 dB as the onset of Level B harassment from non-impulse sources such as vibratory pile driving and pile removal. However, the in-water background noise data taken within the functional hearing group of relevant species showed that at the Anacortes ferry terminal area, the median day-time cumulative distribution function (CDF) for ambient noise levels range between 123 and 133 dBRMS re 1 µPa (WSDOT 2014). Therefore, the 123-dB level will be used as the onset of Level B behavioral harassment at the Anacortes project area because this level will include marine mammals in all functional hearing groups.

    Before the commencement of in-water pile driving activities, WSDOT shall establish Level B behavioral harassment zones of influence (ZOIs) where received underwater sound pressure levels (SPLs) are higher than 123 dB (rms) re 1 µPa for vibratory pile driving.

    The 123-dB Level B harassment ZOIs from in-water vibratory pile removal and pile driving are modeled based on in-water measurements at the WSDOT Port Townsend Ferry Terminal (Laughlin 2011) and Friday Harbor Ferry Terminal (Laughlin 2010) constructions. These modeled results are presented in Table 4 below.

    Table 4—Modeled ZOI Distances to Level B Behavioral Harassment From the Pile Driving and Pile Removal at WSDOT's Anacortes Project Area Vibratory pile type/method Threshold In-water ZOI
  • (km)
  • In-air ZOI
  • (m)
  • 12-inch timber removal 123 dBRMS re 1 µPa 1.6 24-inch steel removal/driving 123 dBRMS re 1 µPa 4.0 30-inch steel driving 123 dBRMS re 1 µPa 26 36-inch steel driving 123 dBRMS re 1 µPa 40 All piles/in-air (harbor seals) 90 dBRMS re 20 µPa 30 All piles/in-air (other pinnipeds) 100 dBRMS re 20 µPa 10
    Soft Start

    WSDOT will implement “soft start” (or ramp up) to reduce potential startling behavioral responses from marine mammals. Soft start requires contractors to initiate noise from the vibratory hammer for 15 seconds at reduced energy followed by a 1-minute waiting period. The procedure will be repeated two additional times. Each day, WSDOT will use the soft-start technique at the beginning of pile driving, or if pile driving has ceased for more than one hour.

    Shutdown Measures

    WSDOT shall implement shutdown measures if southern resident killer whales are sighted within the vicinity of the project area and are approaching the Level B harassment zone (zone of influence, or ZOI) during in-water construction activities.

    If a killer whale approaches the ZOI during pile driving or removal, and it is unknown whether it is a Southern Resident killer whale or a transient killer whale, it shall be assumed to be a Southern Resident killer whale and WSDOT shall implement the shutdown measure.

    If a Southern Resident killer whale or an unidentified killer whale enters the ZOI undetected, in-water pile driving or pile removal shall be suspended until the whale exits the ZOI to avoid further level B harassment.

    Further, WSDOT shall implement shutdown measures if the number of any allotted marine mammal takes reaches the limit under the IHA (if issued), if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities.

    Coordination With Local Marine Mammal Research Network

    Prior to the start of pile driving, the Orca Network and/or Center for Whale Research will be contacted to find out the location of the nearest marine mammal sightings. The Orca Sightings Network consists of a list of over 600 (and growing) residents, scientists, and government agency personnel in the U.S. and Canada. Sightings are called or emailed into the Orca Network and immediately distributed to other sighting networks including: The Northwest Fisheries Science Center of NOAA Fisheries, the Center for Whale Research, Cascadia Research, the Whale Museum Hotline and the British Columbia Sightings Network.

    `Sightings' information collected by the Orca Network includes detection by hydrophone. The SeaSound Remote Sensing Network is a system of interconnected hydrophones installed in the marine environment of Haro Strait (west side of San Juan Island) to study orca communication, in-water noise, bottom fish ecology and local climatic conditions. A hydrophone at the Port Townsend Marine Science Center measures average in-water sound levels and automatically detects unusual sounds. These passive acoustic devices allow researchers to hear when different marine mammals come into the region. This acoustic network, combined with the volunteer (incidental) visual sighting network allows researchers to document presence and location of various marine mammal species.

    With this level of coordination in the region of activity, WSDOT will be able to get real-time information on the presence or absence of whales before starting any pile driving.

    Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned • The practicability of the measure for applicant implementation

    Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

    (1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

    (2) A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of pile driving and pile removal or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    (3) A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of pile driving and pile removal, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    (4) A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).

    (5) Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

    (6) For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed Monitoring and Reporting

    In order to issue an incidental take authorization (ITA) for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. WSDOT submitted a marine mammal monitoring plan as part of the IHA application. It can be found at http://www.nmfs.noaa.gov/pr/permits/incidental.htm. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period.

    Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

    (1) An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;

    (2) An increase in our understanding of how many marine mammals are likely to be exposed to levels of pile driving that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;

    (3) An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

    Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;

    (4) An increased knowledge of the affected species; and

    (5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

    Proposed Monitoring Measures

    WSDOT shall employ NMFS-approved protected species observers (PSOs) to conduct marine mammal monitoring for its Anacortes tie-up dolphins and wingwall replacement project. The PSOs will observe and collect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all pile removal and pile installation work. If a PSO observes a marine mammal within a ZOI that appears to be disturbed by the work activity, the PSO will notify the work crew to initiate shutdown measures.

    Monitoring of marine mammals around the construction site shall be conducted using high-quality binoculars (e.g., Zeiss, 10 × 42 power). Due to the different sizes of ZOIs from different pile sizes, two different ZOIs and monitoring protocols corresponding to a specific pile size will be established. Specifically, during vibratory timber removal, and 24″ steel vibratory pile driving and removal, one land-based PSO will monitor the area from the terminal work site, and one boat with a driver and a PSO will travel through the monitoring area. During 30/36″ vibratory pile driving, one land-based PSO will monitor the area from the terminal work site, and two boats with two drivers and two PSOs will travel through the monitoring area (see Figures 2 and 3 in WSDOT's Marine Mammal Monitoring Plan).

    Data collection during marine mammal monitoring will consist of a count of all marine mammals by species, a description of behavior (if possible), location, direction of movement, type of construction that is occurring, time that pile replacement work begins and ends, any acoustic or visual disturbance, and time of the observation. Environmental conditions such as weather, visibility, temperature, tide level, current, and sea state would also be recorded.

    Proposed Reporting Measures

    WSDOT would be required to submit a final monitoring report within 90 days after completion of the construction work or the expiration of the IHA (if issued), whichever comes earlier. This report would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. NMFS would have an opportunity to provide comments on the report, and if NMFS has comments, WSDOT would address the comments and submit a final report to NMFS within 30 days.

    In addition, NMFS would require WSDOT to notify NMFS' Office of Protected Resources and NMFS' Stranding Network within 48 hours of sighting an injured or dead marine mammal in the vicinity of the construction site. WSDOT shall provide NMFS with the species or description of the animal(s), the condition of the animal(s) (including carcass condition, if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).

    In the event that WSDOT finds an injured or dead marine mammal that is not in the vicinity of the construction area, WSDOT would report the same information as listed above to NMFS as soon as operationally feasible.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

    As discussed above, in-water pile removal and pile driving (vibratory and impact) generate loud noises that could potentially harass marine mammals in the vicinity of WSDOT's proposed Anacortes Ferry Terminal tie-up slip dolphin and wingwall replacement project.

    As mentioned earlier in this document, currently NMFS uses 120 dB re 1 µPa and 160 dB re 1 µPa at the received levels for the onset of Level B harassment from non-impulse (vibratory pile driving and removal) and impulse sources (impact pile driving) underwater, respectively. Table 3 summarizes the current NMFS marine mammal take criteria.

    Table 3—Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater Criterion Criterion definition Threshold Level A Harassment (Injury) Permanent Threshold Shift (PTS) (Any level above that which is known to cause TTS) 180 dB re 1 µPa (cetaceans)
  • 190 dB re 1 µPa (pinnipeds)
  • root mean square (rms)
  • Level B Harassment Behavioral Disruption (for impulse noises) 160 dB re 1 µPa (rms) Level B Harassment Behavioral Disruption (for non-impulse noise) 120 dB re 1 µPa (rms)

    As explained above, ZOIs will be established that encompass the areas where received underwater sound pressure levels (SPLs) exceed the applicable thresholds for Level B harassment. In the case of WSDOT's proposed Anacortes construction project, the Level B harassment ZOI for non-impulse noise sources will be at the received level at 123 dB, which is the median ambient noise level for the high-frequency cetacean. There will not be a zone for Level A harassment in this case, because source levels from vibratory hammer do not exceed the threshold for Level A harassment, and no impact hammer will be used in the proposed project.

    Sound Levels From Proposed Construction Activity

    As mentioned earlier, the 123-dB Level B harassment ZOIs are modeled based on in-water measurements at the WSDOT Port Townsend Ferry Terminal (Laughlin 2011) and Friday Harbor Ferry Terminal (Laughlin 2010) constructions (Table 4). Incidental take is calculated for each species by estimating the likelihood of a marine mammal being present within a ZOI during active pile removal/driving. Expected marine mammal presence is determined by past observations and general abundance near the Anacortes ferry terminal during the construction window. Ideally, potential take is estimated by multiplying the area of the ZOI by the local animal density. This provides an estimate of the number of animals that might occupy the ZOI at any given moment. However, there are no density estimates for any Puget Sound population of marine mammal.

    As a result, the take requests were estimated using local marine mammal data sets, and information from state and federal agencies. All haulout and observation data available are summarized in Section 3 of WSDOT's IHA application. Project duration is presented in Section 2 of WSDOT's IHA application.

    The calculation for marine mammal exposures is estimated by:

    Exposure estimate = N (number of animals in the area) * Number of days of pile removal/driving activity

    Estimates include Level B acoustical harassment during vibratory pile removal and driving. All estimates are conservative, as pile removal/driving will not be continuous during the work day. Using this approach, a summary of estimated takes of marine mammals incidental to WSDOT's Anacortes Ferry Terminal tip-up dolphins and wingwall replacement work are provided in Table 5.

    Table 5—Estimated Numbers of Marine Mammals That May Be Exposed to Received Pile Removal Levels Above 123 dB re 1 μPa (rms) Species Estimated marine mammal takes Abundance Percentage Pacific harbor seal 900 14,612 6.0 California sea lion 180 296,750 0.06 Steller sea lion 360 52,847 0.7 Northern elephant seal 72 124,000 0.06 Harbor porpoise 612 10,682 5.7 Dall's porpoise 108 42,000 0.3 Killer whale, transient 70 354 20 Killer whale, Southern Resident 4 81 5.0 Pacific white-sided dolphin 360 25,233 1.4 Gray whale 36 18,017 0.2 Humpback whale 30 2,043 1.5 Minke whale 10 202-600 1.7-5 Analysis and Preliminary Determinations Negligible Impact

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, and effects on habitat.

    WSDOT's proposed Anacortes Ferry Terminal tie-up dolphins and wingwall replacement project would involve vibratory pile removal and pile driving activities. Elevated underwater noises are expected to be generated as a result of these activities; however, these noises are expected to result in no mortality or Level A harassment and limited Level B harassment of marine mammals. WSDOT would not use impact hammer for pile driving, thus eliminating the potential for injury (including PTS) and TTS from noise impact. For vibratory pile removal and pile driving, noise levels are not expected to reach the level that may cause TTS, injury (including PTS), or mortality to marine mammals. Therefore, NMFS does not expect that any animals would experience Level A harassment (including injury or PTS) or Level B harassment in the form of TTS from being exposed to in-water pile removal and pile driving associated with WSDOT's construction project.

    Additionally, the sum of noise from WSDOT's proposed Anacortes Ferry Terminal tie-up dolphins and wingwall replacement construction activities is confined to a limited area by surrounding landmasses; therefore, the noise generated is not expected to contribute to increased ocean ambient noise. In addition, due to shallow water depths in the project area, underwater sound propagation of low-frequency sound (which is the major noise source from pile driving) is expected to be poor.

    In addition, WSDOT's proposed activities are localized and of short duration. The entire project area is limited to WSDOT's Anacortes Ferry Terminal construction work. The entire project would involve the removal of 272 existing piles and installation of 81 piles. The duration for the construction would involve 68 hours in 9 days for pile removal and 27 hours in 27 days for pile installation. These low-intensity, localized, and short-term noise exposures may cause brief startle reactions or short-term behavioral modification by the animals. These reactions and behavioral changes are expected to subside quickly when the exposures cease. Moreover, the proposed mitigation and monitoring measures are expected to reduce potential exposures and behavioral modifications even further. Additionally, no important feeding and/or reproductive areas for marine mammals are known to be near the proposed action area. Therefore, the take resulting from the proposed Anacortes Ferry Terminal tie-up dolphins and wingwall replacement work is not reasonably expected to, and is not reasonably likely to, adversely affect the marine mammal species or stocks through effects on annual rates of recruitment or survival.

    The proposed project area is not a prime habitat for marine mammals, nor is it considered an area frequented by marine mammals. Therefore, behavioral disturbances that could result from anthropogenic noise associated with WSDOT's construction activities are expected to affect only a small number of marine mammals on an infrequent and limited basis.

    The project also is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. The project activities would not modify existing marine mammal habitat. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from WSDOT's Anacortes Ferry Terminal tie-up dolphins and wingwall replacement project will have a negligible impact on the affected marine mammal species or stocks.

    Small Number

    Based on analyses provided above, it is estimated that approximately 900 harbor seals, 180 California sea lions, 360 Steller sea lions, 72 northern elephant seals, 612 harbor porpoises, 108 Dall's porpoises, 70 transient killer whales, 4 Southern Resident killer whales, 360 Pacific white-sided dolphins, 36 gray whales, 30 humpback whales, and 10 minke whales could be exposed to received noise levels that could cause Level B behavioral harassment from the proposed construction work at the Anacortes Ferry Terminal in Washington State. These numbers represent approximately 0.06% to 20% of the populations of these species that could be affected by Level B behavioral harassment, respectively (see Table 5 above), which are small percentages relative to the total populations of the affected species or stocks.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, which are expected to reduce the number of marine mammals potentially affected by the proposed action, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

    Impact on Availability of Affected Species for Taking for Subsistence Uses

    There are no subsistence uses of marine mammals in the proposed project area; and, thus, no subsistence uses impacted by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    The humpback whale and the Southern Resident stock of killer whale are the only marine mammal species currently listed under the ESA that could occur in the vicinity of WSDOT's proposed construction projects. NMFS' Permits and Conservation Division has initiated consultation with NMFS' Protected Resources Division under section 7 of the ESA on the issuance of an IHA to WSDOT under section 101(a)(5)(D) of the MMPA for this activity. Consultation will be concluded prior to a determination on the issuance of an IHA.

    National Environmental Policy Act (NEPA)

    NMFS prepared a draft Environmental Assessment (EA) for the proposed issuance of an IHA, pursuant to NEPA, to determine whether or not this proposed activity may have a significant effect on the human environment. This analysis will be completed prior to the issuance or denial of this proposed IHA.

    Proposed Authorization

    As a result of these preliminary determinations, NMFS proposes to issue an IHA to WSDOT for conducting the Anacortes Ferry Terminal tie-up dolphins and wingwall replacement project, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.

    1. This Authorization is valid from September 1, 2015, through August 31, 2016.

    2. This Authorization is valid only for activities associated in-water construction work at the Anacortes Ferry Terminal tie-up dolphins and wingwall replacement project in the State of Washington.

    3. (a) The species authorized for incidental harassment takings, Level B harassment only, are: Pacific harbor seal (Phoca vitulina richardsi), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), northern elephant seals (Mirounga angustirostris), transient and Southern Resident killer whales (Orcinus orca), Pacific white-sided dolphin (Lagenorhynchus obliquidens), gray whale (Eschrichtius robustus), humpback whale (Megaptera novaeangliae), harbor porpoise (Phocoena phocoena), and Dall's porpoise (Phocoena dali).

    (b) The authorization for taking by harassment is limited to the following acoustic sources and from the following activities:

    • Vibratory pile driving;

    • Vibratory pile removal; and

    • Work associated with above piling activities.

    (c) The taking of any marine mammal in a manner prohibited under this Authorization must be reported within 24 hours of the taking to the West Coast Administrator (206-526-6150), National Marine Fisheries Service (NMFS) and the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301) 427-8401, or her designee (301-427-8418).

    4. The holder of this Authorization must notify the Chief of the Permits and Conservation Division, Office of Protected Resources, at least 48 hours prior to the start of activities identified in 3(b) (unless constrained by the date of issuance of this Authorization in which case notification shall be made as soon as possible).

    5. Prohibitions

    (a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 5. The taking by Level A harassment, injury or death of these species or the taking by harassment, injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this Authorization.

    (b) The taking of any marine mammal is prohibited whenever the required protected species observers (PSOs), required by condition 7(a), are not present in conformance with condition 7(a) of this Authorization.

    6. Mitigation

    (a) Time Restriction

    In-water construction work shall occur only during daylight hours, when visual monitoring of marine mammals can be conducted.

    (b) Establishment of Level B Harassment Zones of Influence

    Before the commencement of in-water pile driving activities, WSDOT shall establish Level B behavioral harassment zones of influence (ZOIs) where received underwater sound pressure levels (SPLs) are higher than 123 dB (rms) re 1 µPa. The modeled isopleths for ZOIs are listed in Table 4.

    (c) Monitoring of marine mammals shall take place starting 30 minutes before pile driving begins until 30 minutes after pile driving ends.

    (d) Soft Start

    (i) When there has been downtime of 30 minutes or more without pile driving, the contractor will initiate the driving with ramp-up procedures described below.

    (ii) Soft start requires contractors to initiate noise from the vibratory hammer for 15 seconds at reduced energy followed by a 1-minute waiting period. The procedure will be repeated two additional times. Each day, WSDOT will use the soft-start technique at the beginning of pile driving, or if pile driving has ceased for more than one hour.

    (e) Shutdown Measures

    (i) WSDOT shall implement shutdown measures if southern resident killer whales (SRKWs) are sighted within the vicinity of the project area and are approaching the Level B harassment zone (zone of influence, or ZOI) during in-water construction activities.

    (ii) If a killer whale approaches the ZOI during pile driving or removal, and it is unknown whether it is a SRKW or a transient killer whale, it shall be assumed to be a SRKW and WSDOT shall implement the shutdown measure identified in 6(e)(i).

    (iii) If a SRKW enters the ZOI undetected, in-water pile driving or pile removal shall be suspended until the SRKW exits the ZOI to avoid further level B harassment.

    (iv) WSDOT shall implement shutdown measures if the number of any allotted marine mammal takes reaches the limit under the IHA, if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during pile removal activities.

    (v) WSDOT shall implement shutdown measures if marine mammals with the ZOI appear disturbed by the work activity.

    (f) Coordination With Local Marine Mammal Research Network

    Prior to the start of pile driving, WSDOT will contact the Orca Network and/or Center for Whale Research to get real-time information on the presence or absence of whales before starting any pile driving.

    7. Monitoring:

    (a) Protected Species Observers

    WSDOT shall employ NMFS-approved PSOs to conduct marine mammal monitoring for its construction project.

    (i) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars will be required to correctly identify the target.

    (ii) Experience or training in the field identification of marine mammals (cetaceans and pinnipeds).

    (iii) Sufficient training, orientation or experience with the construction operation to provide for personal safety during observations.

    (iv) Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary.

    (v) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).

    (vi) Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area during construction, dates and times when observations were conducted; dates and times when in-water construction activities were conducted; and dates and times when marine mammals were present at or within the defined ZOI.

    (b) Monitoring Protocols: PSOs shall be present on site at all times during pile removal and driving.

    (i) A range finder or hand-held global positioning system device will be used to ensure that the 123 dBrms re 1 μPa Level B behavioral harassment ZOI is monitored.

    (ii) A 30-minute pre-construction marine mammal monitoring will be required before the first pile driving or pile removal of the day. A 30-minute post-construction marine mammal monitoring will be required after the last pile driving or pile removal of the day. If the constructors take a break between subsequent pile driving or pile removal for more than 30 minutes, then additional pre-construction marine mammal monitoring will be required before the next start-up of pile driving or pile removal.

    (iii) Marine mammal visual monitoring will be conducted for different ZOIs based on different sizes of piles being driven or removed.

    (A) For vibratory timber removal, and 24″ steel vibratory pile driving and removal, one land-based PSO will monitor the area from the terminal work site, and one boat with a driver and a PSO will travel through the monitoring area.

    (B) For 30″/36″ vibratory pile driving, one land-based PSO will monitor the area from the terminal work site, and two boats with two drivers and two PSOs will travel through the monitoring area.

    (iv) If marine mammals are observed, the following information will be documented:

    (A) Species of observed marine mammals;

    (B) Number of observed marine mammal individuals;

    (C) Behavioral of observed marine mammals;

    (D) Location within the ZOI; and

    (E) Animals' reaction (if any) to pile-driving activities.

    8. Reporting:

    (a) WSDOT shall provide NMFS with a draft monitoring report within 90 days of the conclusion of the construction work or within 90 days of the expiration of the IHA, whichever comes first. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.

    (b) If comments are received from the NMFS West Coast Regional Administrator or NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.

    (c) In the unanticipated event that the construction activities clearly cause the take of a marine mammal in a manner prohibited by this Authorization (if issued), such as an injury, serious injury, or mortality, WSDOT shall immediately cease all operations and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators. The report must include the following information:

    (i) Time, date, and location (latitude/longitude) of the incident;

    (ii) Description of the incident;

    (iii) Status of all sound source use in the 24 hours preceding the incident;

    (iv) Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, visibility, and water depth);

    (v) Description of marine mammal observations in the 24 hours preceding the incident;

    (vi) Species identification or description of the animal(s) involved;

    (vii) The fate of the animal(s); and

    (viii) Photographs or video footage of the animal (if equipment is available).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with WSDOT to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. WSDOT may not resume their activities until notified by NMFS via letter, email, or telephone.

    (E) In the event that WSDOT discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), WSDOT will immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators. The report must include the same information identified above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with WSDOT to determine whether modifications in the activities are appropriate.

    (F) In the event that WSDOT discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), WSDOT shall report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators, within 24 hours of the discovery. WSDOT shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. WSDOT can continue its operations under such a case.

    9. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein or if the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, or if there is an unmitigable adverse impact on the availability of such species or stocks for subsistence uses.

    10. A copy of this Authorization and the Incidental Take Statement must be in the possession of each contractor who performs the construction work at the Anacortes Ferry Terminals.

    11. WSDOT is required to comply with the Terms and Conditions of the Incidental Take Statement corresponding to NMFS' Biological Opinion.

    Dated: February 25, 2015. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2015-04425 Filed 3-3-15; 8:45 am] BILLING CODE 3510-22-P
    BUREAU OF CONSUMER FINANCIAL PROTECTION Credit Union Advisory Council Meeting AGENCY:

    Bureau of Consumer Financial Protection.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    This notice sets forth the announcement of a public meeting of the Credit Union Advisory Council (CUAC or Council) of the Consumer Financial Protection Bureau (Bureau). The notice also describes the functions of the Council. Notice of the meeting is permitted by section 6 of the CUAC Charter and is intended to notify the public of this meeting. Specifically, section X of the CUAC Charter states:

    (1) Each meeting of the Council shall be open to public observation, to the extent that a facility is available to accommodate the public, unless the Bureau, in accordance with paragraph (4) of this section, determines that the meeting shall be closed. The Bureau also will make reasonable efforts to make the meetings available to the public through live recording. (2) Notice of the time, place and purpose of each meeting, as well as a summary of the proposed agenda, shall be published in the Federal Register not more than 45 or less than 15 days prior to the scheduled meeting date. Shorter notice may be given when the Bureau determines that the Council's business so requires; in such event, the public will be given notice at the earliest practicable time. (3) Minutes of meetings, records, reports, studies, and agenda of the Council shall be posted on the Bureau's Web site (www.consumerfinance.gov). (4) The Bureau may close to the public a portion of any meeting, for confidential discussion. If the Bureau closes a meeting or any portion of a meeting, the Bureau will issue, at least annually, a summary of the Council's activities during such closed meetings or portions of meetings.

    DATES:

    The meeting date is Thursday, March 12, 2014, 3:00 p.m. to 5:00 p.m. Eastern Standard Time.

    ADDRESSES:

    The meeting location is Consumer Financial Protection Bureau, 1275 First Street NE., Washington, DC 20002.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Draper, Consumer Advisory Board & Councils, External Affairs, 1700 G Street NW., Washington, DC 20552; telephone: 202-435-7176; [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    Section 1014(a) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (http://www.sec.gov/about/laws/wallstreetreform-cpa.pdf) (Dodd-Frank Act) provides: “The Director shall establish a Credit Union Advisory Board to advise and consult with the Bureau in the exercise of its functions under the Federal consumer financial laws, and to provide information on emerging practices in the consumer financial products or services industry, including regional trends, concerns, and other relevant information.” 12 U.S.C. 5494.

    (a) The purpose of the Council is outlined in section 1014(a) of the Dodd-Frank Act (http://www.sec.gov/about/laws/wallstreetreform-cpa.pdf), which states that the Council shall “advise and consult with the Bureau in the exercise of its functions under the Federal consumer financial laws” and “provide information on emerging practices in the consumer financial products or services industry, including regional trends, concerns, and other relevant information.” (b) To carry out the Council's purpose, the scope of its activities shall include providing information, analysis, and recommendations to the Bureau. The Council will generally serve as a vehicle for market intelligence and expertise for the Bureau. Its objectives will include identifying and assessing the impact on consumers and other market participants of new, emerging, and changing products, practices, or services. (c) The Council will also be available to advise and consult with the Director and the Bureau on other matters related to the Bureau's functions under the Dodd-Frank Act.

    II. Agenda

    The Credit Union Advisory Council will discuss financial education and financial capability.

    Persons who need a reasonable accommodation to participate should contact [email protected], 202-435-9EEO, 1-855-233-0362, or 202-435-9742 (TTY) at least ten business days prior to the meeting or event to request assistance. The request must identify the date, time, location, and title of the meeting or event, the nature of the assistance requested, and contact information for the requester. CFPB will strive to provide, but cannot guarantee that accommodation will be provided for late requests.

    Individuals who wish to attend the Credit Union Advisory Council meeting must RSVP to [email protected] by noon, Tuesday, March 10, 2015. Members of the public must RSVP by the due date and must include “CUAC” in the subject line of the RSVP.

    III. Availability

    The Council's agenda will be made available to the public on Friday, February 27, 2015, via consumerfinance.gov. Individuals should express in their RSVP if they require a paper copy of the agenda.

    A recording and transcript of this meeting will be available after the meeting on the CFPB's Web site consumerfinance.gov.

    Dated: February 25, 2015. Christopher D'Angelo, Chief of Staff, Bureau of Consumer Financial Protection.
    [FR Doc. 2015-04360 Filed 3-3-15; 8:45 am] BILLING CODE 4810-AM-P
    DEPARTMENT OF EDUCATION [Docket No. ED-2015-ICCD-0021] Agency Information Collection Activities; Comment Request; 2015-16 National Teacher and Principal Survey (NTPS) Full-Scale Data Collection AGENCY:

    Department of Education (ED), Institute of Education Sciences/National Center for Education Statistics (IES).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501 et seq.), ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before May 4, 2015.

    ADDRESSES:

    Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting Docket ID number ED-2015-ICCD-0021 or via postal mail, commercial delivery, or hand delivery. If the regulations.gov site is not available to the public for any reason, ED will temporarily accept comments at [email protected] Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted; ED will only accept comments during the comment period in this mailbox when the regulations.gov site is not available. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Mailstop L-OM-2-2E319, Room 2E103, Washington, DC 20202.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Kashka Kubzdela, 202-502-7411.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: 2015-16 National Teacher and Principal Survey (NTPS) Full-Scale Data Collection.

    OMB Control Number: 1850-0598.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: Individuals.

    Total Estimated Number of Annual Responses: 44,916.

    Total Estimated Number of Annual Burden Hours: 26,616.

    Abstract: The National Teacher and Principal Survey (NTPS) is a redesign of the Schools and Staffing Survey (SASS) and is ED's primary source of information on the teacher and principal labor market and on what is happening in K-12 public schools from teachers' and principals' perspectives. NTPS is an in-depth, nationally representative survey of first through twelfth grade public school teachers, principals, and schools. Kindergarten teachers in schools with at least a first grade are also eligible for NTPS. Starting in 2015-2016, the NTPS will be conducted every two years utilizing core content and a series of rotating modules to allow timely collection of important education trends and conducting trend analyses. The NTPS is the Department's regular source of data on salaries, out-of-pocket expenses, qualifications, and race/ethnic and age distribution of teachers; along with salaries and race/ethnic and age distribution of principals; and school start times and student teacher ratios. This request is to conduct the 2015-16 NTPS full-scale data collection.

    Dated: February 27, 2015. Kate Mullan, Acting Director, Information Collection Clearance Division, Privacy, Information and Records Management Services, Office of Management.
    [FR Doc. 2015-04439 Filed 3-3-15; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY [OE Docket No. EA-368-A] Application To Export Electric Energy; Brookfield Energy Marketing LP AGENCY:

    Office of Electricity Delivery and Energy Reliability, DOE.

    ACTION:

    Notice of application.

    SUMMARY:

    Brookfield Energy Marketing LP (Applicant or BEMLP) has applied to renew its authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.

    DATES:

    Comments, protests, or motions to intervene must be submitted on or before April 3, 2015.

    ADDRESSES:

    Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to [email protected], or by facsimile to 202-586-8008.

    SUPPLEMENTARY INFORMATION:

    Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).

    On August 12, 2010, DOE issued Order No. EA-368 to the Applicant, which authorized BEMLP to transmit electric energy from the United States to Canada as a power marketer for a five-year term using existing international transmission facilities. That authority expires on August 12, 2015. On January 29, 2015, the Applicant filed an application with DOE for renewal of the export authority contained in Order No. EA-368 for an additional five-year term.

    In its application, the Applicant states that it does not own or operate any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that the Applicant proposes to export to Canada would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.

    Procedural Matters: Any person desiring to be heard in this proceeding should file a comment or protest to the application at the address provided above. Protests should be filed in accordance with Rule 211 of the Federal Energy Regulatory Commission's (FERC) Rules of Practice and Procedures (18 CFR 385.211). Any person desiring to become a party to these proceedings should file a motion to intervene at the above address in accordance with FERC Rule 214 (18 CFR 385.214). Five copies of such comments, protests, or motions to intervene should be sent to the address provided above on or before the date listed above.

    Comments and other filings concerning the BEMLP application to export electric energy to Canada should be clearly marked with OE Docket No. EA-368-A. An additional copy is to be provided directly to Shaun Logue, Brookfield Energy Marketing LP, 480 de la Cite Blvd., Gatineau, Quebec J8T 8R3.

    A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.

    Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at http://energy.gov/node/11845, or by emailing Angela Troy at [email protected]

    Issued in Washington, DC, on February 25, 2015. Brian Mills, Director, Permitting and Siting, Office of Electricity Delivery and Energy Reliability.
    [FR Doc. 2015-04473 Filed 3-3-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY [OE Docket No. EA-408] Application To Export Electric Energy; Nalcor Energy Marketing Corporation AGENCY:

    Office of Electricity Delivery and Energy Reliability, DOE.

    ACTION:

    Notice of Application.

    SUMMARY:

    Nalcor Energy Marketing Corporation (Applicant or NEMC) has applied for authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.

    DATES:

    Comments, protests, or motions to intervene must be submitted on or before April 3, 2015.

    ADDRESSES:

    Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to [email protected], or by facsimile to 202-586-8008.

    SUPPLEMENTARY INFORMATION:

    Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).

    On February 20, 2015, DOE received an application from NEMC for authority to transmit electric energy from the United States to Canada as a power marketer for five years using existing international transmission facilities.

    In its application, NEMC states that it does not own or control any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that NEMC proposes to export to Canada would be surplus energy purchased from wholesale energy markets operated by NYISO, ISO-NE., electric utilities and other entities within the United States. The existing international transmission facilities to be utilized by NEMC have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.

    Procedural Matters: Any person desiring to be heard in this proceeding should file a comment or protest to the application at the address provided above. Protests should be filed in accordance with Rule 211 of the Federal Energy Regulatory Commission's (FERC) Rules of Practice and Procedures (18 CFR 385.211). Any person desiring to become a party to these proceedings should file a motion to intervene at the above address in accordance with FERC Rule 214 (18 CFR 385.214). Five copies of such comments, protests, or motions to intervene should be sent to the address provided above on or before the date listed above.

    Comments and other filings concerning the NEMC application to export electric energy to Canada should be clearly marked with OE Docket No. EA-408. An additional copy is to be provided directly to both Greg Jones, Nalcor Energy Marketing Corporation, 500 Columbus Drive—Hydro Place, P.O. Box 15200, St. John's, NL, A1B0P5 Canada and to Joseph B. Nelson, Van Ness Feldman, LLP, 1050 Thomas Jefferson St. NW., Washington, DC 20007.

    A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.

    Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at http://energy.gov/node/11845, or by emailing Angela Troy at [email protected]

    Issued in Washington, DC, on February 25, 2015. Brian Mills, Director, Permitting and Siting, Office of Electricity Delivery and Energy Reliability.
    [FR Doc. 2015-04456 Filed 3-3-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY [OE Docket No. EA-364-A] Application To Export Electric Energy; Noble Americas Gas & Power Corporation AGENCY:

    Office of Electricity Delivery and Energy Reliability, DOE.

    ACTION:

    Notice of Application.

    SUMMARY:

    Noble Americas Gas & Power Corporation (Applicant or NAG&P) has applied to renew its authority to transmit electric energy from the United States to Canada pursuant to section 202(e) of the Federal Power Act.

    DATES:

    Comments, protests, or motions to intervene must be submitted on or before April 3, 2015.

    ADDRESSES:

    Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to [email protected], or by facsimile to 202-586-8008.

    SUPPLEMENTARY INFORMATION:

    Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. §§ 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. § 824a(e)).

    On April 22, 2010, DOE issued Order No. EA-364 to the Applicant, which authorized NAG&P to transmit electric energy from the United States to Canada as a power marketer for a five-year term using existing international transmission facilities. That authority expires on April 22, 2015. On February 18, 2015, the Applicant filed an application with DOE for renewal of the export authority contained in Order No. EA-364 for an additional five-year term.

    In its application, the Applicant states that it does not own or operate any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that the Applicant proposes to export to Canada would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.

    Procedural Matters: Any person desiring to be heard in this proceeding should file a comment or protest to the application at the address provided above. Protests should be filed in accordance with Rule 211 of the Federal Energy Regulatory Commission's (FERC) Rules of Practice and Procedures (18 CFR 385.211). Any person desiring to become a party to these proceedings should file a motion to intervene at the above address in accordance with FERC Rule 214 (18 CFR 385.214). Five copies of such comments, protests, or motions to intervene should be sent to the address provided above on or before the date listed above.

    Comments and other filings concerning the NAG&P's application to export electric energy to Canada should be clearly marked with OE Docket No. EA-364-A. An additional copy is to be provided directly to Joseph P. Limone, Noble Americas Corporation, 107 Elm Street, Four Stamford Plaza, Stamford, CT 06902.

    A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.

    Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at http://energy.gov/node/11845, or by emailing Angela Troy at [email protected].

    Issued in Washington, DC, on February 25, 2015. Brian Mills, Director, Permitting and Siting, Office of Electricity Delivery and Energy Reliability.
    [FR Doc. 2015-04457 Filed 3-3-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY [OE Docket No. EA-363-A] Application To Export Electric Energy; Noble Americas Gas & Power Corporation AGENCY:

    Office of Electricity Delivery and Energy Reliability, DOE.

    ACTION:

    Notice of Application.

    SUMMARY:

    Noble Americas Gas & Power Corporation (Applicant or NAG&P) has applied to renew its authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.

    DATES:

    Comments, protests, or motions to intervene must be submitted on or before April 3, 2015.

    ADDRESSES:

    Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to [email protected], or by facsimile to 202-586-8008.

    SUPPLEMENTARY INFORMATION:

    Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).

    On April 26, 2010, DOE issued Order No. EA-363 to the Applicant, which authorized NAG&P to transmit electric energy from the United States to Mexico as a power marketer for a five-year term using existing international transmission facilities. That authority expires on April 26, 2015. On February 18, 2015, the Applicant filed an application with DOE for renewal of the export authority contained in Order No. EA-363 for an additional five-year term.

    In its application, the Applicant states that it does not own or operate any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that the Applicant proposes to export to Mexico would be surplus energy from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.

    Procedural Matters: Any person desiring to be heard in this proceeding should file a comment or protest to the application at the address provided above. Protests should be filed in accordance with Rule 211 of the Federal Energy Regulatory Commission's (FERC) Rules of Practice and Procedures (18 CFR 385.211). Any person desiring to become a party to these proceedings should file a motion to intervene at the above address in accordance with FERC Rule 214 (18 CFR 385.214). Five copies of such comments, protests, or motions to intervene should be sent to the address provided above on or before the date listed above.

    Comments and other filings concerning the NAG&P application to export electric energy to Mexico should be clearly marked with OE Docket No. EA-363-A. An additional copy is to be provided directly to Joseph P. Limone, Noble Americas Corporation, 107 Elm Street, Four Stamford Plaza, Stamford, CT 06902.

    A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.

    Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at http://energy.gov/node/11845, or by emailing Angela Troy at [email protected]

    Issued in Washington, DC, on February 25, 2015. Brian Mills, Director, Permitting and Siting, Office of Electricity Delivery and Energy Reliability.
    [FR Doc. 2015-04500 Filed 3-3-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY [OE Docket No. EA-406] Application To Export Electric Energy; Sempra Generation, LLC AGENCY:

    Office of Electricity Delivery and Energy Reliability, DOE.

    ACTION:

    Notice of Application.

    SUMMARY:

    Sempra Generation, LLC (Sempra or Applicant) has applied for authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.

    DATES:

    Comments, protests, or motions to intervene must be submitted on or before April 3, 2015.

    ADDRESSES:

    Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to [email protected], or by facsimile to 202-586-8008.

    SUPPLEMENTARY INFORMATION:

    Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).

    On February 10, 2015, DOE received an application from the Applicant for authority to transmit electric energy from the United States to Mexico as a power marketer for a five-year term using existing international transmission facilities.

    In its application, Sempra states that it does not own or operate an integrated transmission or distribution system, and it does not have a franchised service area. The electric energy that Sempra proposes to export to Mexico would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.

    Procedural Matters: Any person desiring to be heard in this proceeding should file a comment or protest to the application at the address provided above. Protests should be filed in accordance with Rule 211 of the Federal Energy Regulatory Commission's (FERC) Rules of Practice and Procedures (18 CFR 385.211). Any person desiring to become a party to these proceedings should file a motion to intervene at the above address in accordance with FERC Rule 214 (18 CFR 385.214). Five copies of such comments, protests, or motions to intervene should be sent to the address provided above on or before the date listed above.

    Comments and other filings concerning the Sempra application to export electric energy to Mexico should be clearly marked with OE Docket No. EA-406. An additional copy is to be provided directly to Daniel A. King, Sempra U.S. Gas & Power, LLC, 101 Ash Street, HQ15C, San Diego, CA 92101 and to Emily Shults, Sempra U.S. Gas & Power, LLC, 101 Ash Street, HQ13, San Diego, CA 92101.

    A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.

    Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at http://energy.gov/node/11845, or by emailing Angela Troy at [email protected]

    Issued in Washington, DC, on February 25, 2015. Brian Mills, Director, Permitting and Siting, Office of Electricity Delivery and Energy Reliability.
    [FR Doc. 2015-04497 Filed 3-3-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY [OE Docket No. EA-407] Application To Export Electric Energy; Vitol Inc. AGENCY:

    Office of Electricity Delivery and Energy Reliability, DOE.

    ACTION:

    Notice of Application.

    SUMMARY:

    Vitol Inc. (Vitol or Applicant) has applied for authority to transmit electric energy from the United States to Mexico pursuant to section 202(e) of the Federal Power Act.

    DATES:

    Comments, protests, or motions to intervene must be submitted on or before April 3, 2015.

    ADDRESSES:

    Comments, protests, motions to intervene, or requests for more information should be addressed to: Office of Electricity Delivery and Energy Reliability, Mail Code: OE-20, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-0350. Because of delays in handling conventional mail, it is recommended that documents be transmitted by overnight mail, by electronic mail to [email protected], or by facsimile to 202-586-8008.

    SUPPLEMENTARY INFORMATION:

    Exports of electricity from the United States to a foreign country are regulated by the Department of Energy (DOE) pursuant to sections 301(b) and 402(f) of the Department of Energy Organization Act (42 U.S.C. 7151(b), 7172(f)) and require authorization under section 202(e) of the Federal Power Act (16 U.S.C. 824a(e)).

    On February 10, 2015, DOE received an application from Vitol for authority to transmit electric energy from the United States to Mexico as a power marketer for a five-year term using existing international transmission facilities. The Applicant is also requesting an expedited review of the Application and for DOE to issue the requested authorization within 60 days.

    In its application, Vitol states that it does not own or control any electric generation or transmission facilities, and it does not have a franchised service area. The electric energy that Vitol proposes to export to Mexico would be surplus energy purchased from third parties such as electric utilities and Federal power marketing agencies pursuant to voluntary agreements. The existing international transmission facilities to be utilized by the Applicant have previously been authorized by Presidential permits issued pursuant to Executive Order 10485, as amended, and are appropriate for open access transmission by third parties.

    Procedural Matters: Any person desiring to be heard in this proceeding should file a comment or protest to the application at the address provided above. Protests should be filed in accordance with Rule 211 of the Federal Energy Regulatory Commission's (FERC) Rules of Practice and Procedures (18 CFR 385.211). Any person desiring to become a party to these proceedings should file a motion to intervene at the above address in accordance with FERC Rule 214 (18 CFR 385.214). Five copies of such comments, protests, or motions to intervene should be sent to the address provided above on or before the date listed above.

    Comments and other filings concerning the Vitol application to export electric energy to Mexico should be clearly marked with OE Docket No. EA-407. An additional copy is to be provided directly to both Robert F. Viola and Kolby Kettler, Vitol Inc., 1100 Louisiana Street, Suite 5500, Houston, TX 77002.

    A final decision will be made on this application after the environmental impacts have been evaluated pursuant to DOE's National Environmental Policy Act Implementing Procedures (10 CFR part 1021) and after a determination is made by DOE that the proposed action will not have an adverse impact on the sufficiency of supply or reliability of the U.S. electric power supply system.

    Copies of this application will be made available, upon request, for public inspection and copying at the address provided above, by accessing the program Web site at http://energy.gov/node/11845, or by emailing Angela Troy at [email protected]

    Issued in Washington, DC, on February 25, 2015. Brian Mills, Director, Permitting and Siting, Office of Electricity Delivery and Energy Reliability.
    [FR Doc. 2015-04499 Filed 3-3-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Notice of Procedure Requiring Designation of U.S. Resident Agent for Applicants and Authorization Holders That Neither Reside in Nor Have a Place of Business or Other Corporate Presence in the United States AGENCY:

    Office of Fossil Energy, DOE.

    ACTION:

    Notice of procedure.

    SUMMARY:

    The Office of Fossil Energy (FE) of the Department of Energy (DOE) is hereby notifying both applicants for authorizations to import or export natural gas, including liquefied natural gas (LNG), and the current holders of such authorizations that neither reside in nor have a place of business or other corporate presence in the United States that they must identify an agent resident within the United States to receive service of legal process. This notice applies to any such applicant and/or authorization holder that has not already identified a U.S. agent in its existing proceeding in a filing or other correspondence with DOE/FE.

    DATES:

    This procedural change is effective March 4, 2015. Those affected by the change must comply by April 3, 2015.

    ADDRESSES:

    Submissions of information required by this procedure can be made using one of the following:

    Electronic Filing by Email

    [email protected]

    Regular Mail

    U.S. Department of Energy (FE-34), Office of Oil and Gas Global Security and Supply, Office of Fossil Energy, P.O. Box 44375, Washington, DC 20026-4375.

    Hand Delivery or Private Delivery Services (e.g., FedEx, UPS, etc.)

    U.S. Department of Energy (FE-34), Office of Oil and Gas Global Security and Supply, Office of Fossil Energy, Forrestal Building, Room 3E-042, 1000 Independence Avenue SW., Washington, DC 20585.

    FOR FURTHER INFORMATION CONTACT:

    Larine Moore or Beverly Howard, U.S. Department of Energy (FE-34), Office of Oil and Gas Global Security and Supply, Office of Fossil Energy, Forrestal Building, Room 3E-042, 1000 Independence Avenue SW., Washington, DC 20585, (202) 586-9478; (202) 586-9387.

    Edward B. Myers, Cassandra S. Bernstein, U.S. Department of Energy, Office of the Assistant General Counsel for Electricity and Fossil Energy, Forrestal Building, 1000 Independence Ave. SW., Washington, DC 20585, (202) 586-3397, (202) 586-9793.

    SUPPLEMENTARY INFORMATION:

    DOE is authorized under the Natural Gas Act, 15 U.S.C. 717b(a), (c), to regulate the import and export of natural gas to or from the United States.1 As the number of applicants and authorization holders regulated under these statutory provisions continues to increase, DOE/FE is aware that many such applicants and authorization holders neither reside in nor have a place of business or other corporate presence in the United States. Applications to import or export natural gas are informal adjudications conducted in accordance with DOE regulations, 10 CFR part 590, and the Administrative Procedure Act, 5 U.S.C. 551, et seq. Applicants therefore must be available to receive and respond to timely service of process of DOE/FE orders and other filings, including pleadings submitted by parties in application proceedings. Additionally, authorization holders are subject to continuing agency jurisdiction and to terms, conditions, and reporting and recordkeeping requirements set forth in each authorization. To monitor and enforce compliance with its authorizations, DOE/FE must have the means to serve legal process on authorization holders within the United States.

    1 The authority to regulate the imports and exports of natural gas, including liquefied natural gas, under section 3 of the NGA (15 U.S.C. 717b) has been delegated to the Assistant Secretary for FE in Redelegation Order No. 00-006.02 issued on November 17, 2014.

    Accordingly, DOE/FE has determined that applicants and authorization holders that neither reside in nor have a place of business or other corporate presence in the United States must identify an agent within the jurisdiction of the United States to receive service of process regarding their pending application or existing authorization, respectively. As noted above, this action will help to ensure that all applicants and authorization holders are notified promptly of any agency or party filing in their proceeding, and that DOE/FE has the means to monitor and enforce compliance with the terms, conditions, and other requirements of its authorizations.

    Compliance with this procedural change shall be accomplished in the following manner: Within 30 days of the date of publication of this Notice in the Federal Register, all applicants and authorization holders that do not reside in the United States and do not have a place of business or other corporate presence in the United States must provide DOE/FE with the name, address, and telephone number of an agent in the United States designated to receive service of legal process in connection with their pending application(s) and/or existing authorization(s). This requirement does not apply to any such applicant and/or authorization holder that has already identified a U.S. agent in its existing proceeding in a filing or other correspondence with DOE/FE.

    For purposes of complying with this procedural requirement, the U.S. agent may be a natural person residing in the United States, a U.S. corporation, or a foreign corporation registered to conduct business in the United States (including the applicant or authorization holder itself), provided that the domestic or foreign corporation has a business address in the United States and is authorized by its articles of incorporation to act as agent.

    Submissions shall include the docket number and the order number(s) (if appropriate), the agent's name and complete U.S. address, and the consent of the applicant or authorization holder to service of process on the designated agent as long as the authority of the agent continues. This requirement shall be a continuing obligation of applicants and authorization holders. Accordingly, it shall be incumbent upon applicants and authorization holders to designate a new agent in the event an agent discontinues its service as agent.

    Issued in Washington, DC, on February 26, 2015. John A. Anderson, Director, Office of Oil and Gas Global Security and Supply, Office of Oil and Natural Gas.
    [FR Doc. 2015-04461 Filed 3-3-15; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Secretary of Energy Advisory Board; Notice of Open Meeting AGENCY:

    Department of Energy.

    ACTION:

    Notice of Open Meeting.

    SUMMARY:

    This notice announces an open meeting of the Secretary of Energy Advisory Board (SEAB). SEAB was reestablished pursuant to the Federal Advisory Committee Act (Pub. L. 92-463, 86 Stat. 770) (the Act). This notice is provided in accordance with the Act.

    DATES:

    Tuesday, March 31, 2015—11:30 a.m.-2:30 p.m.

    ADDRESSES:

    Department of Energy, 1000 Independence Avenue SW., Room 8E-089, Washington, DC 20585.

    FOR FURTHER INFORMATION CONTACT:

    Karen Gibson, Designated Federal Officer, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; telephone: (202) 586-3787; email: [email protected]

    SUPPLEMENTARY INFOR