Federal Register Vol. 81, No.110,

This notice extends the public comment period provided in the proposed rule published in the Federal Register on April 13, 2016 (71 FR 21956) on Organic Livestock and Poultry Practices. In the proposed rule, AMS solicits public comments generally and requests comments on specific topics. AMS is extending the comment period, which was set to end on June 13, 2016, to July 13, 2016.

AMS is proposing to amend the organic livestock and poultry production requirements by: Adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expanding and clarifying existing requirements covering livestock health care practices and mammalian living conditions.

To submit comments, or access the proposed rule docket, please follow the instructions provided under the ADDRESSES section. If you have questions, consult the person listed under FOR FURTHER INFORMATION CONTACT.

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-7003; Directorate Identifier 2016-CE-015-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On October 20, 2014, we issued AD 2014-22-01, Amendment 39-18005 (79 FR 67343, November 13, 2014) (“AD 2014-22-01”). That AD required actions intended to address an unsafe condition on all PILATUS AIRCRAFT LTD. Models PC-12, PC-12/45, PC-12/47, and PC-12/47E airplanes and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country.

Since we issued AD 2014-22-01, PILATUS AIRCRAFT LTD. has issued revisions to the Limitations section of the airplane maintenance manual to include repetitive inspections of the main landing gear (MLG) attachment bolts.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No. 2016-0083, dated April 28, 2016 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7003.

PILATUS AIRCRAFT LTD. has issued Structural, Component and Miscellaneous—Airworthiness Limitations, document 12-A-04-00-00-00A-000A-A, dated September 28, 2015, and Structural and Component Limitations—Airworthiness Limitations, document 12-B-04-00-00-00A-000A-A, dated September 28, 2015. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We estimate that this AD will affect 770 products of U.S. registry. We also estimate that it would take about 1.5 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $98,175, or $127.50 per product. This breaks down as follows:

• Incorporating new revisions into the Limitations section, Chapter 4, of the FAA-approved maintenance program (e.g., maintenance manual): .5 work-hour for a fleet cost of $32,725, or $42.50 per product.

• New inspections: MLG attachment bolts: 1 work-hour with no parts cost for fleet cost of $65,450 or $85 per product.

In addition, we estimate that any necessary corrective actions (on-condition costs) that must be taken based on the proposed inspections, would take about 1 work-hour and require parts costing approximately $100 for a cost of $185 per product. We have no way of determining the number of products that may need these necessary corrective actions. This breaks down as follows:

The only costs that would be imposed by this proposed AD over that already required by AD 2014-22-01 is insertion of the revised Limitation section and the MLG attachment bolts inspection and replacement as necessary.

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.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 proposed regulation:

(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, 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.

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-6897; Directorate Identifier 2015-NM-187-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On January 30, 2015, we issued AD 2015-03-01, Amendment 39-18097 (80 FR 7298, February 10, 2015) (“AD 2015-03-01”). AD 2015-03-01 requires installing additional attaching hardware on the left and right fan cowl access panels and the nacelle attaching structures. Since we issued AD 2015-03-01, we have determined it is necessary to update the weight and balance data needed to calculate the center of gravity for affected airplanes.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2014-20R1, dated August 12, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes The MCAI states:

Bombardier, Inc. has issued Bombardier Service Bulletin, 601R-71-034, Revision C, dated May 8, 2015. The service information provides procedures for modifying the fan cowl access panels and the nacelle attaching structures. The service information also provides updated weight and balance data. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We estimate that this proposed AD affects 497 airplanes of U.S. registry.

The actions required by AD 2015-03-01 and retained in this proposed AD take about 8 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $5,458 per product. Based on these figures, the estimated cost of the actions that are required by AD 2015-03-01 is $6,138 per product.

We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $42,245, or $85 per product.

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.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 proposed regulation:

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; 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.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, part, A, subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace at Lakota Municipal Airport, Lakota, ND.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-6115/Airspace Docket No. 16-AGL-14.” The postcard will be date/time stamped and returned to the commenter.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's Web page at http://www.faa.gov/airports_airtraffic/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the Central Service Center, Operation Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking (202) 267-9677, to request a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

This document would amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) Part 71 by establishing Class E airspace extending upward from 700 feet above the surface within an 6-mile radius of Lakota Municipal Airport, Lakota, ND, to accommodate new standard instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport.

Class E airspace designations are published in Section 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Background and Explanation of Provisions

Temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend the Income Tax Regulations (26 CFR part 1) relating to section 337(d). The temporary regulations impose corporate level tax on certain transactions in which property of a C corporation becomes the property of a REIT. The text of those regulations also serves as the text of these proposed regulations. The preamble to the temporary regulations explains the amendments.

The proposed regulations also include a modification to the definition of converted property that is not addressed in the temporary regulations. This modification treats as converted property any property the basis of which is determined, directly or indirectly, in whole or in part, by reference to the basis of property owned by a C corporation that becomes the property of a RIC or a REIT. The Treasury Department and the IRS believe that such property presents similar concerns with regard to the purposes of General Utilities repeal as other property of a C corporation that becomes the property of a RIC or REIT.

Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13653. Therefore, a regulatory impact assessment is not required. Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these proposed regulations would not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that these proposed regulations would primarily affect large corporations with a substantial number of shareholders. Therefore, a regulatory flexibility analysis is not required. Pursuant to section 7805(f) of the Code, this regulation has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. In particular, comments are requested regarding the scope of the terms predecessors and successors. In addition, although related section 355 distributions occurring before or after conversion transactions involving RICs do not present the same degree of concern regarding the purposes of General Utilities repeal, comments are requested as to whether the proposed regulations regarding related section 355 distributions should, like the rules of § 1.337(d)-7 generally, apply to both conversion transactions involving RICs and conversion transactions involving REITs. All comments will be available at www.regulations.gov or upon request. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place of the public hearing will be published in the Federal Register.

The principal author of these regulations is Austin M. Diamond-Jones of the Office of Associate Chief Counsel (Corporate). Other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

MSHA will hold four public hearings on the proposed rule to provide the public with an opportunity to present oral statements, written comments, and other information on this rulemaking. The public hearings will begin at 9 a.m. and end after the last presenter speaks, and in any event not later than 5 p.m., on the following dates at the locations indicated:

The hearings will begin with an opening statement from MSHA, followed by an opportunity for members of the public to make oral presentations. You do not have to make a written request to speak; however, persons and organizations wishing to speak are encouraged to notify MSHA in advance for scheduling purposes.

Speakers and other attendees may present information to MSHA for inclusion in the rulemaking record. The hearings will be conducted in an informal manner. Formal rules of evidence or cross examination will not apply.

A verbatim transcript of the proceedings will be prepared and made a part of the rulemaking record. Copies of the transcript will be available to the public. The transcript may also be viewed on MSHA's Web site at http://arlweb.msha.gov/currentcomments.asp, under Comments on Public Rule Making. MSHA will accept post-hearing written comments and other appropriate information for the record from any interested party, including those not presenting oral statements.

On July 31, 1969, MSHA's predecessor, the Department of the Interior's Bureau of Mines, published a final rule (34 FR 12503) addressing health and safety standards for Metal and Nonmetallic Open Pit Mines; Sand, Gravel, and Crushed Stone Operations; and Metal and Nonmetallic Underground Mines. These standards were promulgated pursuant to the 1966 Federal Metal and Nonmetallic Mine Safety Act (MNM Act). The final rule included some mandatory standards and some advisory standards. The final rule at §§ 55.18-8, 56.18-8, and 57.18-8 set forth an advisory standard stating that each working place “should be visited by a supervisor or a designated person at least once each shift and more frequently as necessary to insure that work is being done in a safe manner.”

The Federal Mine Safety and Health Act of 1977 (Mine Act) amended the Federal Coal Mine Health and Safety Act of 1969 (Coal Act) to include MNM mines and repealed the MNM Act. The Mine Act retained the mandatory standards and regulations promulgated under the Coal Act and the MNM Act. In addition, section 301(b)(2) of the Mine Act required the Secretary of Labor to establish an advisory committee to review all advisory standards under the MNM Act and to either revoke them or make them mandatory (with or without revision). On August 17, 1979 (44 FR 48490), MSHA revised, renumbered, and made mandatory the Agency's advisory standards regarding working place examinations. This resulted in standards, set forth at §§ 55.18-2, 56.18-2, and 57.18-2, that mirrored the language that currently exists at §§ 56.18002 and 57.18002.

On January 29, 1985 (50 FR 4048), MSHA combined and recodified the standards in 30 CFR parts 55 and 56 into a single part 56 that applies to all surface MNM mines. As a part of this effort, the MNM working place examination standards were redesignated as 30 CFR 56.18002 and 57.18002. No change was made to the language of the standards.

Mining continues to be one of the nation's most hazardous occupations. Mining operations have dynamic work environments where working conditions can change rapidly and without warning. Under the Mine Act, mine operators with the assistance of the miners have the primary responsibility to prevent the existence of unsafe and unhealthful conditions and practices. Compliance with safety and health standards and adoption of safe work practices provide a substantial measure of protection against hazards that cause accidents, injuries, and fatalities. MSHA has determined that effective accident prevention strategies include an examination of working places.

Under existing §§ 56.18002 and 57.18002, MSHA requires that a competent person designated by the operator examine each working place at least once each shift for conditions that may adversely affect safety or health, that the operator promptly initiate appropriate action to correct such conditions, and that the operator keep records for one year that the examinations were conducted. These standards also require the operator to withdraw persons from an area where conditions may present an imminent danger, except those persons referred to in section 104(c) of the Mine Act, until the danger is abated.

The proposal would require that operators promptly notify miners of any adverse conditions found that may adversely affect safety or health. It would also require that the examination record include additional information that MSHA believes would help assure that adverse conditions are identified and corrected, and that the record be made available to miners and their representatives so that they can be made aware of these conditions. MSHA is proposing that the record include: (1) The locations of all areas examined and a description of each condition found that could adversely affect the safety or health of miners; and (2) a description of the corrective action and date the corrective action was taken. The proposal would also require that the competent person who conducted the examination sign and date the examination record before the end of each shift.

MSHA believes that making and maintaining a record of adverse conditions found and corrective actions taken would help mine operators and miners and their representatives become more aware of potential dangers and more proactive in their approach to correcting these issues before they cause or contribute to an accident, injury, or fatality. Under this proposed rule, MSHA anticipates that improved communication at the mine site about adverse conditions and the best practices used to correct the conditions will encourage awareness and participation at all levels, fostering a culture of safety and health at the mine.

In developing the proposed rule, MSHA reviewed accident investigation reports and the Agency's enforcement data from January 2010 through mid-December 2015. During this period, 122 miners were killed in 110 accidents at MNM mines. MSHA conducted investigations into each of these 110 fatal accidents and issued 252 citations and orders for violations of 95 different mandatory safety and health standards. MSHA's analysis of the accident investigations further revealed that in more than 60 percent of the fatal accidents (67 out of 110), the Agency had issued at least one citation or order for a violation of a mandatory safety or health standard identified in MSHA's Rules to Live By (RTLB) initiative, launched in February 2010. Violations of the 19 MNM RTLB standards represent the conditions or practices that have been most frequently cited as causing or contributing to fatal accidents.

At this point, MSHA believes that most operators and miners should be familiar with the RTLB standards. Under the proposal, the additional communication that would be required by operators (1) notifying miners of conditions that violate RTLB standards and other adverse conditions and (2) recording additional information about these conditions in the examination record should further serve to educate miners, their representatives, and operators about adverse conditions and encourage prompt corrective action. In this way, MSHA believes the proposal will help prevent fatalities and other accidents.

Over the years, MSHA has issued Program Policy Letters (PPL) regarding working place examinations, including PPL No. P94-IV-5 (1994); PPL No. P96-IV-2 (1996); PPL No. P10-IV-3 (2010); PPL No. P14-IV-01 (2014); and PPL P15-IV-01 (July 22, 2015). The PPLs are MSHA's guidance and best practices regarding compliance with the existing standards. MSHA inspectors, miners, mine operators, trainers, and the mining community use these PPLs as guidance in determining how best to comply with MSHA's standards on working place examinations.

As discussed in PPL No. P15-IV-01 and other PPLs, MSHA believes that, for a record to provide meaningful information, it should contain the following: (1) The date of the examination; (2) the examiner's name; and (3) the working places examined. As reflected in the PPLs, MSHA also believes that, as a best practice, the record should include a description of the conditions found that adversely affect safety or health.

Effective working place examinations are a fundamental accident prevention tool; they allow operators to find and fix adverse conditions and violations of health and safety standards before they cause injury or death to miners. MSHA believes that notifying miners of adverse conditions in their working place allows the miner to take appropriate precautions until the adverse condition is corrected. Records alert operators to take prompt corrective action. The following are recent examples of adverse conditions that existed for more than one shift prior to causing or contributing to a fatal accident.1 MSHA believes that, had the person making the examination noted these conditions prior to miners working in an area, had the conditions been recorded, and had the operator warned miners about these conditions, the accidents may have been prevented.

In March 2011, a contract supervisor was fatally injured when he was struck by a section of pipe. He was supervising the operation of joining two ends of pipe using a pipe-fusion machine. The positioning cylinder was defective and had been removed from the pipe-fusion machine eight days prior to the accident. Since the positioning cylinder was removed, the machine could not hold the pipe in place. MSHA believes that, had a competent person identified and recorded the adverse condition before miners used the machine, the operator could have warned miners and removed the machine from service until the cylinder was repaired and replaced, thus preventing the fatal accident.

In January 2015, a fatal accident occurred at a phosphate rock mine. A heavy equipment operator was operating an excavator near a water-filled ditch when the excavator tipped on its side, into the water, trapping the miner inside the nearly submerged cab. The equipment operator was rescued from the cab and hospitalized, but died later that day. Three days prior to the accident, several inches of rain fell in the area causing the ditch to fill with water and overflow, making the ditch invisible to persons working in the area. MSHA believes that had a competent person conducted a workplace examination before miners started working in the area the hazard would have been identified; notification to affected miners of the water-filled ditch would have made them aware of the hazardous condition; and a record of the hazardous condition would have prompted corrective action and prevented the fatality.

Another fatal accident in March 2015 involved a haul truck driver at a sand and gravel mine. The driver was driving on an elevated roadway on an embankment next to the mine's dredge pond. The roadway, which was recently established, had no berm as a barrier to the drop-off as required by MSHA standards. The truck went off the roadway into the pond. The driver was hospitalized and died two days later. MSHA believes that the operator should have recognized during a workplace examination that a berm was not in place along the banks of the elevated haul road and warned miners before miners started work in that area. MSHA also believes that a record of this hazard likely would have prompted corrective action and that these actions would have prevented the accident that occurred.

From 2013 through 2015, there were 68 fatalities at MNM mines, as compared with 54 fatalities in the preceding three years (2010-2012). To reduce fatalities at MNM mines, MSHA has engaged, and continues to share best practices and training materials with stakeholders in the MNM industry. The Agency has provided stakeholders with guidance and compliance assistance materials to help mine operators find and fix violations of mandatory safety and health standards. These efforts included stakeholder conferences, online training sessions, and a “walk and talk” safety initiative in which MSHA's inspectors and field staff provided operators and miners information about potentially hazardous tasks and conditions, as well as best mining practices to prevent accidents, injuries, and fatalities. These efforts, however, have not been sufficient to address the increase in fatalities that began in 2013.

This proposed rule is intended to strengthen MSHA's requirements for MNM working place examinations to help prevent the kind of accidents discussed above. MSHA believes that the proposed requirements that operators examine working places before miners begin work in an area and notify miners of any adverse conditions that may adversely affect safety or health would assure that miners and operators are aware of hazards and take proactive actions to correct hazards. In addition, the record required under the proposed rule would help assure that adverse conditions are identified and corrected promptly.

This proposed rule would help reduce common causes of accidents, injuries, and fatalities at MNM mines by enhancing the effectiveness of working place examinations.

Proposed §§ 56.18002(a) and 57.18002(a) would require an examination of each working place at least once each shift, before work begins in an area, for conditions that may adversely affect the safety or health of miners.

Existing §§ 56.2 and 57.2 define the phrase “working place” as: “any place in or about a mine where work is being performed.” In PPL No. P15-IV-01, MSHA clarifies that “working place” applies to all locations at a mine where miners work in the extraction or milling processes. The Agency further explains that this includes areas where work is performed on an infrequent basis, such as areas accessed primarily during periods of maintenance or clean-up, if miners will be performing work in these areas during the shift. As discussed in previous guidance, the “working place” would not include roads not directly involved in the mining process, administrative office buildings, parking lots, lunchrooms, toilet facilities, or inactive storage areas. Operators would be required to examine isolated, abandoned, or idle areas of mines or mills only when miners have to perform work in these areas during the shift.

The existing standards for examinations of working places in MNM mines in §§ 56.18002(a) and 57.18002(a) require that a competent person designated by the mine operator examine each working place at least once per shift for conditions that may adversely affect safety or health and promptly initiate appropriate action to correct such conditions. While the existing standards permit the examination to be made at any time during the shift, MSHA is proposing that the examination start before work begins in an area. MSHA believes that the proposal is consistent with the remedial intent of the Mine Act and the existing standards. MSHA also believes that the proposed requirement that operators conduct an examination of working places before work begins in an area would provide better protection of miners. MSHA requests comments on whether the Agency should require that examinations be conducted within a specified time period, e.g., 2 hours, before miners start work in an area. Please provide specific rationale for your position, and include the merits for your argument.

Like the existing rule, the proposed rule would require that the examination be made by a competent person designated by the mine operator. In PPL No. P15-IV-01, MSHA emphasized that the competent person designated by the operator to conduct working place examinations should be able to recognize hazards and adverse conditions that are expected or known to occur in a specific work area or that are predictable to someone familiar with the mining industry. MSHA states in various PPLs that, although a best practice is for a foreman or other supervisor to conduct the examination in most cases, an experienced non-supervisory person may also be “competent.” The PPLs emphasized that a competent person designated by the operator under §§ 56.18002(a) and 57.18002(a) must already have the experience and training to be able to perform the examination and identify safety and health hazards.

MSHA requests comment on whether the Agency should require that the competent person conducting a working place examination have a minimum level of experience or particular training or knowledge to identify workplace hazards. The Agency requests information on whether a competent person should have a certain ability, experience, knowledge, or training that would enable the person to recognize conditions that could adversely affect safety or health. Please provide the rationale, including supporting documentation.

Proposed §§ 56.18002(a)(1) and 57.18002(a)(1) incorporate the existing requirements in §§ 56.18002(a) and 57.18002(a) that the mine operator promptly initiate action to correct conditions that may adversely affect safety or health that are found during the examination, and would add a new requirement that the operator promptly notify the miners in any affected areas of any adverse conditions found during the working place examination. MSHA believes that miners need to know about adverse conditions in their working place so that they can take precautions to avoid an accident or injury.

Proposed §§ 56.18002(a)(2) and 57.18002(a)(2) are substantively the same as existing §§ 56.18002(c) and 57.18002(c). These provisions would require that, if the competent person finds conditions that may present an imminent danger, these conditions must be brought to the immediate attention of the operator. The operator must immediately withdraw all persons from the affected area until the danger is abated, except persons referred to in section 104(c) of the Mine Act who are necessary to eliminate the imminent danger.

Imminent danger is defined in section 3(j) of the Mine Act as the existence of any condition or practice which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated. From January 2010 through December 2015, MSHA has issued 1,819 imminent danger orders under section 107(a) of the Mine Act in MNM mines.

MSHA believes that, to be effective, working place examinations must be timely, made by a competent person, and made in the areas where miners work. MSHA is proposing that working place examination records include additional information the Agency believes is necessary to accomplish the intent of the standards.

The proposed rule would add new requirements addressing the contents of the examination record. The introductory text to proposed §§ 56.18002(b) and 57.18002(b) would continue to require that a record of the working place examination be made. The proposed rule would add the requirement that the competent person who conducted the examination sign and date the record before the end of the shift for which the examination was made. Proposed §§ 56.18002(b)(1) and 57.18002(b)(1) would require the record to include the locations examined and a description of any adverse conditions found. MSHA believes that this proposed requirement for a description of the adverse conditions found would expedite the correction of these conditions. Proposed §§ 56.18002(b)(2)(i) through (iii) and 57.18002(b)(2)(i) through (iii) are new provisions; they would require that, if any adverse condition is found, the record must include:

• A description of the action taken to correct the adverse condition,

• The date that the corrective action was taken, and

• The name of the person who made the record of the corrective action and the date the corrective action was taken. (MSHA expects that the person taking the corrective action would make this record.)

The proposed rule would redesignate the requirement for recordkeeping in existing §§ 56.18002(b) and 57.18002(b) as proposed §§ 56.18002(b)(3) and 57.18002(b)(3). Existing §§ 56.18002(b) and 57.18002(b) require that a record that such working place examinations were conducted shall be kept by the operator for a period of one year and shall be made available for review by the Secretary or his authorized representative. The proposed rule would add new requirements that the record also be made available to miners and their representatives and that a copy be provided to the Secretary or his authorized representative or a miners' representative when they request a copy. MSHA solicits comments on these proposed requirements.

Please provide any other data or information that would be useful to MSHA as the Agency evaluates its proposal related to working place examinations in MNM mines. Please provide the rationale and sufficient detail in your comments to enable proper Agency review and consideration. Where possible, include specific examples to support the rationale and other relevant information, including past experience, studies and articles, and standard professional practices. Include any related cost and benefit data with your submission, and information on economic and technological feasibility.

Based data reported on MSHA Form 7000-2, 90 percent of MNM mines employ fewer than 20 miners. In addition, almost all (98 percent) of MNM mines are surface operations. Over half of all MNM mines are surface sand and gravel or crushed stone operations that operate intermittently or seasonally and employ five or fewer miners. For this reason, MSHA is particularly interested in comments related to the impact of the proposed rule on small mines, particularly comments and suggestions on alternatives and best practices that small mines might use to implement more effective working place examinations.

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

Under Executive Order (E.O.) 12866, the Agency must determine whether a regulatory action is “significant” and subject to review by the Office of Management and Budget (OMB). Section 3(f) of E.O. 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities (also referred to as “economically significant”); (2) creating serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

Based on its assessment of the costs and benefits, MSHA has determined that this proposed rule would not have an annual effect of $100 million or more on the economy and, therefore, would not be an economically significant regulatory action pursuant to section 3(f) of E.O. 12866. MSHA requests comments on all cost and benefit estimates presented in this preamble and on the data and assumptions the Agency used to develop estimates.

The proposed rule would apply to all MNM mines in the United States. In 2014, there were approximately 11,800 MNM mines employing 145,800 miners, excluding office workers, and 75,800 contractors working at MNM mines.

Table 1 presents the number of MNM mines and employment by mine size.

The U.S. Department of the Interior (DOI) estimated the value of the U.S. mining industry's MNM output in 2014 to be $77.6 billion.2 Table 2 presents the hours worked and revenue produced at MNM mines by mine size.

The proposed rule would require additional recordkeeping provisions to assure that adverse conditions are recorded and corrected. The proposed rule would provide for more detailed examination records that include essential information that the operator can use to correct recognized hazards and protect miners. The proposed provisions to record the adverse conditions found during the examinations and the corrective actions taken to mitigate the hazards, and to notify miners of the adverse conditions that may adversely affect safety or health, would better achieve the protections intended under the existing requirements. The additional information recorded in the examination records would assist MSHA, mine operators, and miners in focusing efforts on correcting hazardous conditions.

MSHA is unable to quantify the benefits from this proposed rulemaking, including the proposed provisions that an examination of the working place be conducted before miners begin work in an area; that the operator notify miners in the working place of any conditions found that may adversely affect their safety or health; and that the examination record include a description of the adverse conditions found and the corrective actions taken. MSHA anticipates, however, that there would be benefits from the proposed requirements, such as expedited correction of adverse conditions, which would be expected to result in fewer injuries and fatalities. MSHA requests information and data on the benefits from this proposed rulemaking. Please be specific to facilitate any benefits quantification that may be possible.

Net benefits under MSHA's current analysis would be negative (zero quantified benefits minus quantified costs). MSHA also believes that there would be a financial benefit to MNM mine operators who conduct working place examinations to find and fix adverse conditions and violations of health and safety standards before these conditions cause injury or death. Mine operators who conduct effective working place examinations could achieve a financial benefit from reduced penalties. From January 2010 through December 2015, penalties for MNM mine operators were $152 million for violations of all mandatory safety and health standards.

The quantified cost associated with this proposed rule would be the additional cost for the expanded recordkeeping requirements. Some mine operators already conduct and record working place examinations that satisfy the proposed requirements and would have little or no additional cost. Many adverse conditions found during the working place examination are corrected immediately before miners have an opportunity to encounter the condition; therefore, MSHA also believes that the cost associated with examining areas before miners begin work in that area and with notifying miners of any adverse conditions would be de minimis. MSHA requests information and data on the costs of this proposed rulemaking.

For the purpose of this analysis, MSHA estimates that the competent person making the record of the examination of working places would earn $31.14 (including benefits). The wage rate is from U.S. Metal and Industrial Mineral Mine Salaries, Wages, and Benefits—2012 Survey Results, InfoMine USA, Inc., 2012. MSHA updated rates from 2012 to 2014 for inflation using a percent change of 3.8 percent derived from the BLS Employment Cost Index (CIU2010000405000I), total compensation for private industry workers in construction, extraction, farming, fishing, and forestry occupations (Index available at http://data.bls.gov/timeseries/CIU2010000405000I).

MSHA also estimates that—

• Mines with 1-19 employees operate one shift per day, 300 days per year; and

• Mines with 20+ employees operate two shifts per day, 300 days per year.

MSHA recognizes that there are many seasonal and intermittent mines that would be covered by this proposed rule. MSHA requests information and data on the Agency's estimates on the number of days per year a mine operates; the number of working place examinations made each shift; the number of competent persons required to conduct multiple examinations during a single shift; the amount of time required to record the examination and record corrective actions taken; and the number of shifts per day, by mine size.

The proposed rule would revise existing §§ 56.18002(b) and 57.18002(b) by adding requirements that the record of the examination include the locations of all areas examined and a description of each adverse condition found, and that the competent person conducting the examination sign and date this record before the end of the shift for which the examination was made. Also, if an adverse condition is found, the record must include a description of the actions taken to correct the adverse condition, the date that corrective action was taken, and the name of the person updating the record as well as the date the record was updated. MSHA expects that the person taking the corrective action would update the record on completion of the corrective action. MSHA has no data on the number of corrective actions that would be recorded under this proposed rule. However, the Agency believes that the time to record the corrective actions would be minimal at best.

MSHA estimates that it will take a competent person approximately 5 additional minutes to make the record after each examination. MSHA estimates that the annual cost of making this record for all MNM mines is approximately $10.1 million:

• $8.3 million in mines with 1-19 employees (10,599 mines × 1 exam/day × 300 days/yr × 5 mins × $31.14/hr);

• $1.8 million in mines with 20-500 employees (1,162 mines × 2 exams/day × 300 days/yr × 5 mins × $31.14/hr); and

• $40,482 in mines with 501+ employees (26 mines × 2 exams/day × 300 days/yr × 5 mins × $31.14/hr).

Discounting is a technique used to apply the economic concept that the preference for the value of money decreases over time. In this analysis, MSHA provides cost totals at zero, 3, and 7 percent discount rates. The zero percent discount rate is referred to as the undiscounted rate. MSHA used the Excel Net Present Value (NPV) function to determine the present value of costs and computed an annualized cost from the present value using the Excel PMT function.3 The negative value of the PMT function provides the annualized cost over 10 years at a 3 and 7 percent discount rate.

MSHA estimates that the total undiscounted cost of the proposed rule over a 10-year period would be approximately $101.0 million, $86.2 million at a 3 percent rate, and $70.9 million at a 7 percent rate. The total undiscounted cost annualized over 10 years would be approximately $10.1 million per year, $9.8 million per year at a 3 percent rate, and $9.4 million per year at a 7 percent rate.

The proposed rule contains recordkeeping requirements; the proposed rule is not technology-forcing. MSHA concludes that the rule is technologically feasible.

MSHA has traditionally used a revenue screening test—whether the yearly impacts of a regulation are less than one percent of revenues—to establish presumptively that the regulation is economically feasible for the mining community. The proposed rule is projected to cost approximately $10.1 million per year and the MNM industry has estimated annual revenues of $77.6 billion, which is less than one percent of revenues. MSHA concludes that the proposed rule would be economically feasible for the MNM mining industry.

Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the impact of the proposed rule on small entities. Based on that analysis, MSHA certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities. The Agency, therefore, is not required to develop an initial regulatory flexibility analysis. The factual basis for this certification is presented below.

Under the RFA, in analyzing the impact of a rule on small entities, MSHA must use the Small Business Administration's (SBA's) definition for a small entity, or after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the Federal Register for notice and comment. MSHA has not established an alternative definition and, therefore, must use SBA's definition. The SBA defines a small entity in the mining industry as an establishment with 500 or fewer employees.

MSHA has also examined the impact of the proposed rule on mines with fewer than 20 employees, which MSHA and the mining community have traditionally referred to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. Therefore, the impact of MSHA's rules and the costs of complying with them will also tend to differ for these small mines. This analysis complies with the requirements of the RFA for an analysis of the impact on “small entities” using both SBA's definition for small entities in the mining industry and MSHA's traditional definition.

MSHA initially evaluates the impacts on small entities by comparing the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for the affected sector. When estimated compliance costs are less than one percent of the estimated revenues, the Agency believes it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. When estimated compliance costs exceed one percent of revenues, MSHA investigates whether further analysis is required. MSHA projects that the proposed compliance costs of $10.1 million for MNM mines with 1 to 500 employees is less than one percent of the $66 billion revenue of these mines in 2014. Proposed compliance costs for MNM mines with 1 to 19 employees is $8.3 million, which is less than one percent of the $23.5 billion revenue of these mines in 2014.

This proposed rule contains changes that affect the burden in an existing paperwork package with OMB Control Number 1219-0089. MSHA estimates that the proposed rule will result in 324,375 additional burden hours with an associated additional cost of approximately $10.1 million annually. MSHA requests information and data on the Agency's estimates used to calculate the additional burden hours in the information collection package for this proposed rule.

Proposed §§ 56.18002(b)(1) and (2) and 57.18002(b)(1) and (2) would revise the existing provisions in §§ 56.18002(b) and 57.18002(b) by requiring competent persons to include in the record of the examination: (1) The locations of all areas examined, (2) a description of any adverse condition found, (3) a description of the actions taken to correct the adverse condition, and (4) the date that corrective action was taken. The competent person must sign and date this record before the end of the shift for which the examination was made. Also, if the record is updated, it must include the date and name of the person updating the record.

MSHA estimates that a MNM competent person who conducts working place examinations earns $31.14 an hour (includes benefits, see cost section above). MSHA estimates that—

• Mines with 1-19 employees operate one shift per day, 300 days per year;

• Mines with 20-500 employees operate two shifts per day, 300 days per year; and

• Mines with 501+ employees operate two shifts per day, 300 days per year.

MSHA's estimates of MNM mine operators' additional annual burden hours and burden hour costs for examination records are presented below.

• 10,599 mines (with 1-19 employees) × 1 exam × 300 days × 5 min = 264,975 hr

• 1,162 mines (with 20-500 employees) × 2 exams × 300 days × 5 min = 58,100 hr

• 26 mines (with >500 employees) × 2 exams × 300 days × 5 min = 1,300 hr

• Total Burden Hours = 324,375 hr

• Total Burden Hour Costs = 324,375 hr × $31.14/hr = $10,101,038

There are no other associated burden hour costs because the proposed rule only adds documentation requirements to a record already required by existing standards.

The information collection package for this proposed rule has been submitted to OMB for review under 44 U.S.C. 3504, paragraph (h) of the Paperwork Reduction Act of 1995, as amended. Comments on the information collection requirements should be sent to both OMB and MSHA. Addresses for both offices can be found in the ADDRESSES section of this preamble.

MSHA has reviewed the proposed rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this proposed rule does not include any federal mandate that may result in increased expenditures by State, local, or tribal governments; nor will it increase private sector expenditures by more than $100 million (adjusted for inflation) in any one year or significantly or uniquely affect small governments. Accordingly, the Unfunded Mandates Reform Act requires no further Agency action or analysis.

Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Agency action on family well-being. MSHA has determined that this proposed rule will have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. Accordingly, MSHA certifies that this proposed rule would not impact family well-being.

Section 5 of Executive Order (E.O.) 12630 requires Federal agencies to “identify the takings implications of proposed regulatory actions . . . .” MSHA has determined that this proposed rule does not include a regulatory or policy action with takings implications. Accordingly, E.O. 12630 requires no further Agency action or analysis.

Section 3 of Executive Order (E.O.) 12988 contains requirements for Federal agencies promulgating new regulations or reviewing existing regulations to minimize litigation by eliminating drafting errors and ambiguity, providing a clear legal standard for affected conduct rather than a general standard, promoting simplification, and reducing burden. MSHA has reviewed this proposed rule and has determined that it would meet the applicable standards provided in E.O. 12988 to minimize litigation and undue burden on the Federal court system.

MSHA has determined that this proposed rule will have no adverse impact on children. Accordingly, E.O. 13045 requires no further Agency action or analysis.

MSHA has determined that this proposed rule does not have federalism implications because it will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, E.O. 13132 requires no further Agency action or analysis.

MSHA has determined that this proposed rule does not have tribal implications because it will not have substantial direct effects 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. Accordingly, E.O. 13175 requires no further Agency action or analysis.

Executive Order 13211 requires agencies to publish a statement of energy effects when a rule has a significant energy action that adversely affects energy supply, distribution, or use. MSHA has reviewed this proposed rule for its energy effects because the proposed rule applies to the metal and nonmetal mining sector. Although this proposed rule will result in yearly costs of approximately $10.1 million to the metal and nonmetal mining industry, only the impact on uranium mines is applicable in this case. MSHA data show only three active uranium mines in 2014. The Energy Information Administration's annual uranium report for 2014 4 shows 4.7 million pounds at an average price of $39.17, for sales of approximately $185.9 million. Using average annual costs, the impact to all active uranium mine operators is less than $4,000. MSHA has concluded that it is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, under this analysis, no further Agency action or analysis is required.

MSHA has reviewed the proposed rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. MSHA has determined that the proposed rule would not have a significant economic impact on a substantial number of small entities.

For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006, MSHA is proposing to amend chapter I of title 30 of the Code of Federal Regulations as follows:

Table of Contents I. Background A. Regulatory History B. Recent Research C. Health Hazard Alerts D. Recent State Actions II. Information Request A. Non-Permissible, Light-Duty, Diesel-Powered Equipment in Underground Coal Mines B. Maintenance of Diesel-Powered Equipment in Underground Coal Mines and Recordkeeping Requirements C. Exhaust After-Treatment Technology D. Monitoring MNM Miners' Exposures to DPM E. Other Information I. Background A. Regulatory History 1. DPM in Underground Coal Mines

On October 25, 1996, MSHA published a final rule establishing revised requirements for the approval of diesel engines and related components used in underground coal mines; requirements for coal mine operators' monitoring of diesel exhaust emissions; and safety standards for the use of diesel-powered equipment in underground coal mines (61 FR 55412). The rule required clean-burning engines on diesel-powered equipment and training for persons maintaining the equipment. The rule also required sufficient ventilating air where diesel-powered equipment is operated.

On January 19, 2001, MSHA published a final rule (66 FR 5526) limiting diesel particulate matter (DPM) exposure in underground coal mines. This standard is based on laboratory analysis of engine exhaust. It requires that the exhaust of certain pieces of equipment be restricted to the following prescribed levels:

• Permissible equipment must not emit more than 2.5 grams per hour (g/hr) of DPM;

• Non-permissible heavy-duty equipment, as defined by 30 CFR 75.1908(a) and operated in underground areas of underground coal mines, must not emit more than 2.5 g/hr of DPM (30 CFR 72.501(c));

• Non-permissible light-duty equipment, as defined by 30 CFR 75.1908(b), must not emit more than 5.0 g/hr of DPM (30 CFR 72.502(a)).

Under 30 CFR 72.502(b), non-permissible, light-duty, diesel-powered equipment must be deemed in compliance with 30 CFR 72.502(a) if it uses an engine that meets or exceeds the applicable Environmental Protection Agency (EPA) particulate matter emissions requirements. In promulgating its DPM rule, which allows more particulate emissions for light-duty equipment than for heavy-duty equipment, MSHA assumed that diesel engine manufacturers would comply with EPA standards and that, when replacing vehicles in the mine's light-duty fleet, mine operators would purchase newer (new or used) vehicles that met EPA emissions standards, thus accelerating the turnover to a newer generation of technology. MSHA expected a significant reduction in the amount of DPM emitted by the underground fleet as these cleaner engines replaced or supplemented older engines in underground coal mines.

MSHA had considered establishing stricter standards for certain types of equipment and covering more light-duty equipment, but concluded that such actions would either be technologically or economically infeasible for the coal mining industry as a whole at that time. MSHA concluded that the introduction of newer and cleaner engines underground that met EPA standards, and the continued development of after-treatment and other control technologies, would allow additional reductions in DPM levels to become feasible for the industry as a whole.

For this reason, MSHA's January 2001 DPM standards incorporated EPA's then-applicable standards for light-duty diesel engine emissions. In 2004, EPA phased in even lower emissions standards for light-duty diesel engines.

All MSHA diesel equipment is classified as “nonroad” under EPA rules. EPA nonroad diesel engine regulations were structured as a 4-tiered progression. Each tier involved a phased-in lowering of emissions standards over several years based on the size (power) of the engine.

EPA published Tier 1 standards on June 17, 1994 (59 FR 31306, 40 CFR part 89) for nonroad compression-ignition engines (which include diesel engines). Under these standards, for engines at and above 130 kilowatts (kW), emissions of particulate matter could not exceed .54 g/kW and carbon monoxide could not exceed 11.4 g/kW. These standards were phased in by engine size for model years 1996 to 2000. In addition, all engines greater than or equal to 37 kW were subject to an oxides of nitrogen (NOX, consisting of NO and NO2) emissions limit of 9.2 g/kW-hr, phased in by engine size over model years 1998 through 2000 (59 FR 31341). However, EPA explicitly excluded engines regulated by MSHA. Id. at 31340.

On October 23, 1998, EPA published Tier 1 DPM standards for nonroad compression-ignition engines less than 37 kW (50 hp), setting a 1.2 g/kW-hr particulate matter limit phased in by engine size over model years 1999 and 2000. The rule also established a Tier 1 NOX limit of 14.6 g/kW-hr for engines 37 kW and above, phased in by engine size over model years 1996 through 2000.

In addition, the rule required more stringent Tier 2 DPM standards for all nonroad diesel engines, ranging from 1.0 g/kW-hr for the smallest engines to .54 g/kW-hr for the largest engines, phased in by engine size over model years 2001 to 2006. Under the rule, Tier 3 DPM standards for engines 37 kW and above were the same as the Tier 2 standards, but for these engines Tier 3 introduced additional limits for other types of emissions (hydrocarbons plus NOX). The rule also introduced Tier 3 standards for engines 37-560 kW for these same other types of emissions, phased in by engine size over model years 2006 through 2008 (40 CFR 89.112). MSHA-regulated engines continued to be exempted from the EPA rule.

On June 29, 2004, the EPA published a final rule introducing even lower Tier 4 emissions standards for new compression-ignition engines of all sizes. (69 FR 38958, 40 CFR 1039). This rule provided for “interim” Tier 4 standards applicable to engines for model years 2014 and earlier and final Tier 4 standards applicable to model years after the 2014 model year. Based on engine size, the final standards set particulate matter limits of .04 to .40 g/kW-hr, NOX limits of .40 to 3.5 g/kW-hr, and carbon monoxide limits of 3.5 to 6.6 g/kW-hr. The final standards also imposed lower hydrocarbon limits. 40 CFR 1039.101. Again, MSHA-regulated engines were explicitly excluded from these standards. 40 CFR 1039.5(c). Tier 4 engines were expected to have 90 percent lower DPM emissions than the same types of engines under Tier 3 standards (69 FR 38958, 40 CFR 1039).

In 2001, MSHA published a final rule establishing new health standards for underground metal and nonmetal mines that use equipment powered by diesel engines (30 CFR part 57). This rule established a concentration limit for DPM and required mine operators to use engineering and work practice controls to reduce DPM to that limit. Operators were required to comply in accordance with a phase-in period, with the final limit to be in effect by January 20, 2006. In the rule, MSHA provided operators with the opportunity to obtain a special extension if engineering and work practice controls that would reduce a miner's personal exposure to the final exposure limit could not be implemented by the deadline due to technological constraints. This extension opportunity did not apply to newer mines.

MSHA published another final rule (70 FR 32868; June 6, 2005) that replaced the concentration limit for DPM exposures of MNM miners from a total carbon (TC) permissible exposure limit (PEL) to a comparable elemental carbon (EC) PEL. This was not intended to be a substantive change to the exposure limits; rather, MSHA believed that EC renders a more accurate measure of DPM exposure than does TC. The first phase of the PEL reduction would have required a PEL of 308 micrograms of EC per cubic meter of air (308EC μg/m3), effective on May 20, 2006.

After publishing this 2005 rule, however, MSHA found that the engineering applications and related technological implementation issues were more complex and extensive than previously thought. In response, the Agency published a proposed rule (70 FR 53280; September 7, 2005) seeking specific comments and data on an appropriate conversion factor for the final DPM limit from TC to EC and related technological implementation issues.

On May 18, 2006, MSHA published a final rule (71 FR 28924) that reverted back to using TC to measure DPM exposure. This rule phased-in a final DPM PEL of 160 micrograms of TC per cubic meter of air (160TC μg/m3) over a two-year period. MSHA believed that the industry as a whole was capable of attaining this DPM PEL within the timeframes established using existing DPM control methods and not requiring the development of new technologies.

MSHA stated that the development of high temperature disposable diesel particulate filter (HTDPF) systems would fill a critical gap in available filter technology because they demonstrated high filtration efficiency for EC, and did not increase NO2 emissions. MSHA also anticipated that production of biodiesel fuel would increase dramatically, making it easier for mine operators to gain access to a reliable supply of this alternative fuel. In addition, MSHA anticipated that EPA-compliant engines along with other engineering and administrative controls would enable the underground MNM mining industry as a whole to resolve lingering implementation challenges relating to the 160TC μg/m3 DPM final exposure limit.

In the May 18, 2006 final rule, MSHA also: (1) Finalized provisions addressing medical evaluation and transfer of miners who are unable to wear respirators for medical reasons; (2) committed the Agency to proposing a rule in the near future to convert the DPM limit from TC to EC; (3) deleted the provision that restricts newer mines from applying for an extension of time in which to meet the final concentration limit; and (4) addressed technological and economic feasibility issues and the costs and benefits of the rule. 30 CFR part 57. In accordance with the phase-in schedule, the DPM PEL was reduced to 350TC µg/m3 effective January 20, 2007. The final limit of 160TC µg/m3 became effective on May 20, 2008.

On May 20, 2008 (73 FR 29058), MSHA published a Federal Register document announcing that it had decided not to engage in rulemaking to convert the TC limit to a comparable EC limit. This decision was based on MSHA's assessment that the latest available scientific evidence regarding the variability of the TC to EC ratio, at levels below 230 µg TC, was insufficient to suggest an appropriate conversion factor. Because the Agency could not support an appropriate EC limit, MSHA's existing DPM standard presently remains at 160TC µg/m3.

The existing standards are based on a miner's personal exposure to DPM and specify that, in an underground MNM mine, such exposure must not exceed an average 8-hour equivalent, full-shift airborne concentration of 160 micrograms of total carbon (TC) per cubic meter of air (160TC µg/m3) when measured as an 8-hour, time-weighted average concentration (TWA8). 30 CFR 57.5060(b)(3). These standards require mine operators to use engineering and/or workplace controls to reduce miners' exposures to a level as low as feasible and, where controls do not reduce exposure to the PEL or below, to supplement controls with respiratory protection. 30 CFR 57.5060(d). These standards also provide that a physician or other licensed health care professional conduct a medical evaluation of miners to determine the miner's ability to wear respiratory protection. 30 CFR 57.5060(d)(3).

The National Cancer Institute (NCI) (Silverman et al.) and the National Institute for Occupational Safety and Health (NIOSH) (Attfield et al.) completed the Diesel Exhaust in Miners Study in March 2012. This epidemiological study included 12,315 workers from eight nonmetal mining facilities (three potash, three trona, one limestone, and one salt (halite) facility) located in Ohio, Missouri, New Mexico, and Wyoming. The study was conducted to determine whether breathing diesel exhaust could lead to lung cancer and other health outcomes. Two evaluations of this study are published in the Journal of the National Cancer Institute, as follows:

Silverman et al. concluded that diesel exhaust exposure may cause lung cancer in humans and may represent a potential public health burden. Attfield et al. concluded that diesel exhaust increases the risk of death from lung cancer and has important public health implications.

Both the case-control study (Silverman et al.) and the mortality study (Attfield et al.) showed a strong relationship between the levels of exposure to diesel exhaust and risk of death from lung cancer. In both studies, the relationship between lung cancer risk and diesel exhaust exposure remained after controlling for smoking and other lung cancer risk factors. The death rates were about three to five times greater for workers with the highest exposures to diesel exhaust than for workers who had the lowest exposures.

On June 12, 2012, the International Agency for Research on Cancer (IARC) 1 concluded that there is sufficient evidence of carcinogenicity in humans from diesel exhaust exposure to upgrade its classification of diesel exhaust from “probably carcinogenic” to “carcinogenic to humans”.2

In November 2015, the Health Effects Institute 3 completed its evaluation of recent epidemiological evidence for assessing the risk of lung cancer from exposure to diesel exhaust. The evaluation concluded that the Diesel Exhaust in Miners Study and the Trucking Industry Particle Study were “well designed and carefully conducted, embodying the attributes of epidemiological studies that are considered important for quantitative risk assessment.” 4

Following the IARC classification of diesel exhaust as a human carcinogen, MSHA issued two Health Hazard Alerts: one on diesel exhaust and DPM in underground coal and MNM mines, and one on nitrogen dioxide (NO2) emissions in underground coal mines. The first Health Hazard Alert was issued in partnership with the Occupational Safety and Health Administration (OSHA) on January 10, 2013. It provided information about diesel exhaust and DPM in underground coal and MNM mines, occupations with potential exposure, the health hazards of exposure, engineering and workplace controls, respiratory protection, and the standards in place to protect miners from exposure.

MSHA issued a second Health Hazard Alert on August 6, 2013. The alert reinforced the dangers of platinum-based particulate filters as a source of increased concentrations of nitrogen dioxide (NO2) in underground coal mines. MSHA had addressed these dangers before. On May 16, 2011, MSHA had published a Program Information Bulletin NO. P11-38, Re-Issue of P02-04—Potential Health Hazard Caused by Platinum-Based Catalyzed Diesel Particulate Matter Exhaust Filters, informing mine operators of a potential health hazard caused by then-available platinum-based catalyzed diesel particulate matter (DPM) exhaust filters for diesel-powered equipment. The PIB advised that the use of these filters may result in increased production of nitrogen dioxide (NO2) gas, as compared to NO2 emissions produced by engines operating without these filters, causing miners to be exposed to increased concentrations of NO2.

West Virginia, Pennsylvania, and Ohio require diesel-powered equipment used in underground coal mines to include an exhaust emissions control and conditioning system that meets the following requirements:

• DPM emissions that do not exceed an average concentration of 0.12 milligrams of DPM per cubic meter of air (mg/m3) when diluted by 100 percent (West Virginia and Ohio) or by 50 percent (Pennsylvania) of the MSHA Part 7 approved ventilation rate for that diesel engine.

• An oxidation catalyst or other gaseous emissions control device capable of reducing undiluted carbon monoxide (CO) emissions to 100 parts per million (ppm) or less under all conditions of operation within the normal engine operating temperature range.

• A DPM filter capable of reducing DPM concentrations by at least 75 percent (West Virginia) or by an average of 95 percent (Pennsylvania) or to a level that does not exceed an average concentration of 0.12 milligrams per cubic meter (mg/m3) of air when diluted by 100 percent of the MSHA Part 7 approved ventilation rate for that diesel engine (Ohio).

In addition, West Virginia, Ohio, and Pennsylvania limit ambient concentrations of exhaust gases to a ceiling of 35 parts per million (ppm) for carbon monoxide (CO) and 3 ppm for nitrogen dioxide (NO2). West Virginia and Pennsylvania also limit ambient concentrations of nitric oxide (NO) to 25 ppm. If the concentrations of these emissions exceed 75 percent of these limits, these states require mine operators to make changes to the use of diesel equipment, mine ventilation, or other modifications to the mining process.

All three states require mine operators to keep written records of emissions tests, pre-operational examinations, and maintenance and repairs for all diesel equipment operated underground. These states also require specific information to be recorded that MSHA does not require, e.g., the results of testing the engine at full throttle against the brakes with loaded hydraulics (engine speed tests), operating hour meter hours, total intake restriction, total exhaust back pressure, cooled exhaust gas temperature, coolant temperature, engine oil pressure, and engine oil temperature.

MSHA requests information and data on the effectiveness of the existing standards in controlling miners' exposures to diesel exhaust, including DPM. MSHA specifically requests input from industry, labor, and other interested parties on approaches that may enhance control of DPM and diesel exhaust exposures to improve protections for miners in underground coal and MNM mines. When responding—

• Address your comments to the topic and question number. For example, the response to questions regarding underground coal mines, Question 1, would be identified as “A.1”.

• Explain the rationale supporting your views and, where possible, include specific examples.

• Provide sufficient detail in your responses to enable proper Agency review and consideration.

• Identify the information on which you rely and include applicable experiences, data, models, calculations, studies and articles, standard professional practices, availability of technology, and costs.

MSHA invites comment in response to the specific questions posed below and encourages commenters to include any related cost and benefit data, and any specific issues related to the impact on small mines.

It has been 14 years since MSHA promulgated its DPM rule for underground coal mines. At that time, MSHA had estimated a service life of 10 years for non-permissible, light-duty, diesel-powered equipment. Based on this estimate, MSHA expects that all the non-permissible, light-duty, diesel-powered equipment in use at that time has now been replaced with equipment having newer and cleaner diesel engines. MSHA's latest diesel inventory for underground coal mines indicates that this newer light-duty equipment makes up about 66 percent of the total existing diesel-powered fleet. MSHA believes that this newer equipment has resulted in a decrease in the overall levels of diesel emissions in underground coal mines. Diesel engine manufacturers have integrated a variety of advanced technologies into new engine designs to reduce engine emissions to meet EPA requirements.

To assist MSHA in determining whether it is feasible to lower the emissions limits for non-permissible, light-duty, diesel-powered equipment to 2.5 g/hr of DPM or less, please respond to the following questions. For each response, please provide data, the specific type of equipment, manufacturer, engine type, filter type, level of DPM, and comments that support your response.

1. Is there evidence that non-permissible, light-duty, diesel-powered equipment currently being operated in underground mines emits 2.5 g/hr of DPM or less? If so, please provide this evidence.

2. What administrative, engineering, and technological challenges would the coal mining industry face in meeting a 2.5 g/hr DPM emissions level for non-permissible, light-duty, diesel-powered equipment?

3. What costs would the coal mining industry incur to lower emissions of DPM to 2.5 g/hr or less on non-permissible, light-duty diesel-powered equipment? What are the advantages, disadvantages of requiring that light-duty diesel-powered equipment emit no more than 2.5 g/hr of DPM?

4. What percentage of non-permissible, light-duty, diesel-powered equipment operating underground does not meet the current EPA emissions standards?

5. What modifications could be applied to non-permissible, light-duty, diesel-powered equipment to meet current EPA emissions standards? What percentage of this equipment could not be modified to meet current EPA emissions standards? If these are specific types of equipment, please list the manufacturers and model numbers.

6. What are the advantages, disadvantages, and costs associated with requiring all non-permissible, light-duty, diesel-powered equipment operating in underground coal mines to meet current EPA emissions standards? Please be specific and include the rationale for your response.

7. West Virginia, Pennsylvania, and Ohio limit diesel equipment in the outby areas of underground coal mines based on the air quantity approved on the highest ventilation plate. What are the advantages, disadvantages, and costs of MSHA adopting such an approach?

Performing routine preventive maintenance of diesel engines helps ensure that the engines are maintained in approved condition. Under 30 CFR 75.1914(f), all diesel-powered equipment must be examined and tested weekly in accordance with approved checklists and manufacturers' maintenance manuals. Under 30 CFR 75.1914(g), diesel-powered equipment approved under 30 CFR part 36 and non-permissible, heavy-duty, diesel-powered equipment in underground coal mines are tested and evaluated on a weekly basis in accordance with mine operator-developed standard operating procedures. These procedures must provide for carbon monoxide sampling; carbon monoxide concentration must not exceed 2500 parts per million.

8. What would be the advantages, disadvantages, safety and health benefits, and costs of testing non-permissible, light-duty, underground diesel-powered equipment on a weekly basis for carbon monoxide as required for permissible diesel-powered equipment and non-permissible, heavy-duty, diesel-powered equipment?

9. Reducing the emissions of nitric oxide (NO) and nitrogen dioxide (NO2) is one way that engine manufacturers can control particulate production indirectly. What are the advantages, disadvantages, and costs of expanding exhaust emissions tests to include NO and NO2 to determine the effectiveness of emissions controls in underground coal mines? Please provide data and comments that support your response.

10. Should MSHA require that diagnostics system tests include engine speed (testing the engine at full throttle against the brakes with loaded hydraulics), operating hour meter, total intake restriction, total exhaust back pressure, cooled exhaust gas temperature, coolant temperature, engine oil pressure, and engine oil temperature, as required by some states? Why or why not?

11. What would be the advantages, disadvantages, and costs associated with requiring additional records to document the testing and maintenance of diesel-powered equipment in underground coal mines, such as the testing described above? Please be specific and include the rationale for your response.

12. If your mine is in West Virginia, Pennsylvania, or Ohio, what is your experience with the resources expended to keep testing records? How have these records been used, e.g., have you analyzed the records for trends? Have you made any changes in the use of the diesel-powered equipment, emissions controls, or mine ventilation based on the records of emissions testing? If so, please provide examples.

13. Please provide information related to additional training requirements for persons who operate and maintain diesel equipment. Please be specific on the types of training required, time associated with training, and additional safety and health benefits provided.

Options for reducing diesel exhaust emissions that are available include integration of advanced technologies into new engine designs and exhaust after-treatment systems. Reduction of diesel exhaust emissions prior to their release into the mine environment is an effective strategy used to prevent or reduce exposure of underground miners to diesel exhaust. The underground coal and MNM mining industries use exhaust after-treatment technology to control and reduce DPM and gaseous emissions from the existing fleet of diesel-powered equipment. While existing DPM standards provide for flexibility of controls to reach the required limit (i.e., controls that reduce engine emissions), MSHA expected that most operators would use hot gas (ceramic) filters to comply.

MSHA is requesting information on the types and effectiveness of exhaust after-treatment technologies used in underground mines. Please describe some best practices for selecting and using after-treatment devices.

14. What exhaust after-treatment technologies are currently used on diesel-powered equipment? What are the costs associated with acquiring and maintaining these after-treatment technologies and by how much did they reduce DPM emissions? How durable and reliable are after-treatment technologies and how often should these technologies be replaced? Please be specific and include examples and the rationale for your response.

15. What are the advantages, disadvantages, and relative costs of using DPM filters capable of reducing DPM concentrations by at least 75 percent or by an average of 95 percent or to a level that does not exceed an average concentration of 0.12 milligrams per cubic meter (mg/m3) of air when diluted by 100 percent of the MSHA Part 7 approved ventilation rate for that diesel engine? How often do the filters need to be replaced?

16. What sensors (e.g. ammonia, nitrogen oxide (NO), nitrogen dioxide (NO2)) are built into the after-treatment devices used on the diesel-powered equipment?

17. Are integrated engine and exhaust after-treatment systems used to control DPM and gaseous emissions in the mining industry? If so, please describe the costs associated with acquiring and maintaining integrated systems, and the reduction in DPM emissions produced.

18. What are the advantages, disadvantages, and relative costs of requiring that all light-duty diesel-powered equipment be equipped with high-efficiency DPM filters?

As discussed above, on June 29, 2004, EPA adopted Tier 4 diesel engine standards. These standards are performance-based and technology-neutral in the sense that manufacturers are responsible for determining which emissions control technologies will be needed to meet the requirements. Engine manufacturers will produce new engines with advanced emissions control technologies to comply with Tier 4 emissions standards. Exhaust emissions from these engines are expected to decrease by more than 90 percent.

19. In the mining industry, are operators replacing the engines on existing equipment with Tier 4i (interim) or Tier 4 engines? If so, please specify the type of equipment (make and model) and engine size and tier. Please indicate how much it costs to replace the engine (parts and labor).

20. What types of diesel equipment purchased new for use in the mining industry is powered by Tier 4i or Tier 4 engines? What types of diesel-powered equipment, purchased used for use in the mining industry, are powered by Tier 3, Tier 4i or Tier 4 engines?

21. Are Tier 4i or Tier 4 engines used in underground mines equipped with diesel particulate filter (DPF) systems (e.g., advanced diesel engines with integrated after-treatment systems)? Please provide specific examples.

22. How long have Tier 4i or Tier 4 engines been in use in the mining industry and what additional cost is associated with maintaining equipment equipped with these engines?

23. What percentage of underground coal mines' total diesel equipment inventory is equipped with Tier 4i or Tier 4 engines?

Under the existing standards, MSHA uses total carbon (TC) measurements as a surrogate for DPM when determining MNM miners' DPM exposures.

24. MSHA requests information on alternative surrogates, other than TC, to estimate a miner's DPM exposure. What is the surrogate's limit of detection and what are potential interferences in a mine environment?

25. What are the advantages, disadvantages, and relative costs for using the alternative surrogate to determine a MNM miner's exposure to DPM? Please be specific and include the rationale for your response.

26. MSHA requests information on advances in sampling and analytical technology and other methods for measuring a MNM miner's DPM exposure that may allow for a reduced exposure limit.

MSHA analyzed its sampling data from 2006 (when the final PEL was published) to 2015, and found that the average exposures of MNM miners decreased by 57 percent from 253TC to 109TC μg/m3 in MNM mines. Further analysis of the data revealed that approximately 63 percent of the mines sampled had average exposures below 100TC μg/m3 in 2015 and 75 percent of the mines sampled have average exposures below 122TC μg/m3. Overall, 50 percent of the mines sampled have average exposures between 48TC and 122TC μg/m3. For operators who have had success in reducing exposures below the existing standard, please describe the best practices that you have used to reduce controls. MSHA intends to share this information with the underground metal and nonmetal mining community.

27. What existing controls were most effective in reducing exposures since 2006? Are these controls available and applicable to all MNM mines?

28. Based on MSHA's data, MNM miners' average exposures are well below the existing standard of 160TC μg/m3. What are the technological challenges and relative costs of reducing the DPM exposure limit?

Please provide any other data or information that may be useful to MSHA in evaluating miners' exposures to harmful diesel exhaust emissions, including the effectiveness of existing control mechanisms for reducing harmful diesel emissions and limiting miners' exposures to harmful diesel exhaust emissions.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

On April 6, 2016, the Chester Volunteer Fire Department notified the Coast Guard that it will be conducting a fireworks display from 9:30 p.m. to 11:00 p.m. on July 4, 2016. The fireworks will be launched from land in the vicinity of Ohio River mile 42.5 to mile 43.0 along the left descending bank. Hazards from fireworks displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The COTP proposes to establish a safety zone from 9:30 p.m. to 11:00 p.m. on July 4, 2016. The safety zone would cover the waters extending 300 feet from the left descending bank into the Ohio River from mile 42.5 to mile 43.0. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

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 and Executive orders and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, and duration, of the safety zone and the low traffic nature of this area. The safety zone would close a small portion of the Ohio River for less than two hours. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow other waterway users to seek permission to enter the zone. Requests to transit the safety zone area would be considered on a case-by-case basis.

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

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV. A. above this proposed rule would not have a significant economic impact on any vessel owner or operator.

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, 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. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 rule elsewhere in this preamble.

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 (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 a safety zone lasting less than two hours that would prohibit entry into the safety zone. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. 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.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

Invitation to Comment: We invite you to submit comments regarding this notice. To ensure that your comments have maximum effect in developing the notice of final priority, we urge you to identify clearly the specific issues that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866 and 13563 and their overall requirement of reducing regulatory burden that might result from this proposed priority. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of our programs.

During and after the comment period, you may inspect all public comments about this notice by accessing Regulations.gov. You may also inspect the comments in person in Room 4W335, 400 Maryland Avenue SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Washington, DC time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for this notice. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Proposed Priority: This notice contains one proposed priority.

Background: Children living in concentrated poverty face significant barriers to learning that contribute to poor outcomes for such students in our public schools.1 In 2012, nearly one-quarter of our Nation's public school students attended schools where more than 75 percent of students were eligible for free or reduced price lunch; in cities, 40 percent of all public school students attend high-poverty schools.2 Furthermore, most high-poverty schools are located in high-poverty school districts. Students attending high-poverty schools continue to have unequal access to advanced coursework, the best teachers, and necessary funding and supports.3 Moreover, research shows that States with less socioeconomically diverse schools tend to have larger achievement gaps between low- and higher-income students.4 Some communities have begun to address these disparities by employing strategies to bring together students from varying socioeconomic backgrounds; for example, more than 90 school districts and charter-school operators currently use socioeconomic status as a consideration in student assignment.5

In addition to the negative effects of concentrated poverty on education, many schools and communities continue to suffer the effects of racial segregation, and some of our Nation's largest school districts remain starkly segregated along both racial and economic lines. Accordingly, the Department believes that it is imperative for schools, school districts, States, and postsecondary institutions to take lawful steps to increase student-body diversity based on race and ethnicity. Using the Secretary's existing priority on Promoting Diversity, published in the Federal Register on December 10, 2014 (79 FR 73425), we intend to continue our efforts to reduce racial isolation in public schools and to increase racial and ethnic diversity in education. In addition, however, given the growing body of research showing that socioeconomically diverse schools and communities are associated with improved outcomes for disadvantaged children and families,6 the Department plans to use this proposed priority to continue to focus on increasing diversity, including socioeconomic diversity, in educational settings.7

Proposed Priority—Increasing Socioeconomic Diversity in Schools.

Projects that are designed to increase socioeconomic diversity in educational settings by addressing one or more of the following:

(a) Using established survey or data-collection methods to identify socioeconomic stratification and related barriers to socioeconomic diversity at the classroom, school, district, community, or regional level.

(b) Developing, evaluating, or providing technical assistance on evidence-based policies or strategies designed to increase socioeconomic diversity in schools.

(c) Designing or implementing, with community input, education funding strategies, such as the use of weighted per-pupil allocations of local, State, and eligible Federal funds, to provide incentives for schools and districts to increase socioeconomic diversity.

(d) Developing or implementing policies or strategies to increase socioeconomic diversity in schools that—

(i) Are evidence-based;

(ii) May be carried out on an intra-district, inter-district, community, or regional basis;

(iii) Demonstrate ongoing, robust family and community involvement, including a process for intensive public engagement and consultation;

(iv) Reflect coordination with other relevant government entities, including housing or transportation authorities, to the extent practicable;

(v) May be based on an existing, public diversity plan or diversity needs assessment; and

(vi) May include, for example—

(A) Establishing school assignment or admissions policies that are designed to give preference to low-income students, students from low-performing schools, or students residing in neighborhoods experiencing concentrated poverty to attend higher-performing schools;

(B) Establishing or expanding schools that are designed to attract substantial numbers of students of different socioeconomic backgrounds, such as magnet or theme schools, charter schools, or other schools of choice.

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 Priority: We will announce the final priority in a notice in the Federal Register. We will determine the final priority after considering responses to this notice and other information available to the Department. This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

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 proposed 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 proposed 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 this proposed priority only on a reasoned determination that its benefits would justify its costs. In choosing among alternative regulatory approaches, we selected the approach 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 associated with this regulatory action are those resulting from regulatory requirements and those we have determined as necessary for administering the Department's programs and activities.

Discussion of Costs and Benefits: The proposed priority would not impose significant costs on entities that would receive assistance through the Department's discretionary grant programs. Additionally, the benefits of implementing the proposal contained in this notice outweigh any associated costs because it would result in the Department's discretionary grant programs selecting high-quality applications to implement activities that reflect the Administration's policy focus.

Application submission and participation in a discretionary grant program are voluntary. The Secretary believes that the costs imposed on applicants by the proposed priority would be limited to paperwork burden related to preparing an application for a discretionary grant program that is using the priority in its competition. Because the costs of carrying out activities would be paid for with program funds, the costs of implementation would not be a burden for any eligible applicants, including small entities.

Regulatory Flexibility Act Certification: For these reasons as well, the Secretary certifies that these proposed regulations would not have a significant economic impact on a substantial number of small entities.

Intergovernmental Review: Some of the programs affected by this proposed priority are subject to Executive Order 12372 and the regulations in 34 CFR part 79. 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 these programs.

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.

Background

Under Title VIII of ANILCA (16 U.S.C. 3111-3126), the Secretary of the Interior and the Secretary of Agriculture (Secretaries) jointly implement the Federal Subsistence Management Program. This program provides a preference for take of fish and wildlife resources for subsistence uses on Federal public lands and waters in Alaska. The Secretaries published temporary regulations to carry out this program in the Federal Register on June 29, 1990 (55 FR 27114), and published final regulations in the Federal Register on May 29, 1992 (57 FR 22940). The program regulations have subsequently been amended a number of times. Because this program is a joint effort between Interior and Agriculture, these regulations are located in two titles of the Code of Federal Regulations (CFR): Title 36, “Parks, Forests, and Public Property,” and Title 50, “Wildlife and Fisheries,” at 36 CFR 242.1-242.28 and 50 CFR 100.1-100.28, respectively. The regulations contain subparts as follows: Subpart A, General Provisions; Subpart B, Program Structure; Subpart C, Board Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.

Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board to administer the Federal Subsistence Management Program (Program). The Board comprises:

• A Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture;

• The Alaska Regional Director, U.S. Fish and Wildlife Service;

• The Alaska Regional Director, National Park Service;

• The Alaska State Director, Bureau of Land Management;

• The Alaska Regional Director, Bureau of Indian Affairs;

• The Alaska Regional Forester, U.S. Forest Service; and

• Two public members appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture.

Through the Board, these agencies and public members participate in the development of regulations for subparts C and D, which, among other things, set forth program eligibility and specific harvest seasons and limits.

In administering the program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Regional Advisory Council (Council). The Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Council members represent varied geographical, cultural, and user interests within each region.

The Federal Subsistence Regional Advisory Councils have a substantial role in reviewing this proposed rule and making recommendations for the final rule. The Federal Subsistence Board, through the Councils, will hold public meetings on this proposed rule at the following locations in Alaska, on the following dates:

A public notice of specific dates, times, and meeting locations will be published in local and statewide newspapers prior to each meeting. Locations and dates may change based on weather or local circumstances. The Regional Advisory Council's agenda determines the length of each Council meeting based on workload.

The Board will discuss and evaluate submitted comments and public testimony on this proposed rule during a public meeting scheduled for January 2017 in Anchorage, Alaska. The Federal Subsistence Regional Advisory Council Chairs, or their designated representatives, will present their respective Councils' recommendations at the Board meeting. Additional public testimony may be provided to the Board on this proposed rule at that time. At that public meeting, the Board will deliberate and make final recommendations to the Secretaries on this proposed rule.

You may submit written comments and materials concerning this proposed rule by one of the methods listed in ADDRESSES. If you submit a comment via http://www.regulations.gov, your entire comment, including any personal identifying information, will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, between 8 a.m. and 3 p.m., Monday through Friday, except Federal holidays, at: USFWS, Office of Subsistence Management, 1011 East Tudor Road, Anchorage, AK 99503.

The Federal Subsistence Board is committed to providing access to these meetings for all participants. Please direct all requests for sign language interpreting services, closed captioning, or other accommodation needs to Deborah Coble, 907-786-3880, [email protected], or 800-877-8339 (TTY), seven business days prior to the meeting you would like to attend.

As expressed in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” the Federal officials that have been delegated authority by the Secretaries are committed to honoring the unique government-to-government political relationship that exists between the Federal Government and Federally Recognized Indian Tribes (Tribes) as listed in 75 FR 60810 (October 1, 2010). Consultation with Alaska Native corporations is based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.”

The Alaska National Interest Lands Conservation Act does not provide specific rights to Tribes for the subsistence taking of wildlife, fish, and shellfish. However, because tribal members are affected by subsistence fishing, hunting, and trapping regulations, the Secretaries, through the Board, will provide Federally recognized Tribes and Alaska Native corporations an opportunity to consult on this proposed rule.

The Board will engage in outreach efforts for this proposed rule, including a notification letter, to ensure that Tribes and Alaska Native corporations are advised of the mechanisms by which they can participate. The Board provides a variety of opportunities for consultation: Proposing changes to the existing rule; commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Advisory Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process. The Board will commit to efficiently and adequately providing an opportunity to Tribes and Alaska Native corporations for consultation in regard to subsistence rulemaking.

The Board will consider Tribes' and Alaska Native corporations' information, input, and recommendations, and address their concerns as much as practicable.

The Peratrovich case dates back to 1992 and has a long and involved procedural history. The plaintiffs in that litigation raised the question of which marine waters in the Tongass National Forest, if any, are subject to the jurisdiction of the Federal Subsistence Management Program. In its May 31, 2011, order, the U.S. District Court for Alaska (Court) stated that “it is the duty of the Secretaries [Agriculture & Interior] to identify any submerged lands (and the marine waters overlying them) within the Tongass National Forest to which the United States holds title.” It also stated that, if such title exists, it “creates an interest in [the overlying] waters sufficient to make those marine waters public lands for purposes of [the subsistence provisions] of ANILCA.”

Most of the marine waters within the Tongass National Forest were not initially identified in the regulations as public lands subject to the subsistence priority based upon a determination that the submerged lands were State lands, and later through reliance upon a disclaimer of interest filed by the United States in Alaska v. United States, No. 128 Orig., 546 U.S. 413 (2006). In that case, the State of Alaska had sought to quiet title to all lands underlying marine waters in southeast Alaska, which includes most of the Tongass National Forest. Ultimately, the United States disclaimed ownership to most of the submerged lands in the Tongass National Forest. The Supreme Court accepted the disclaimer by the United States to title to the marine waters within the Tongass National Forest, excepting from that disclaimer several classes of submerged public lands that generally involve small tracts. Alaska v. United States, 546 U.S. at 415.

When the United States took over the subsistence program in Alaska in 1990, the Departments of the Interior and Agriculture stated in response to comments on the scope of the program during promulgation of the interim regulations that “the United States generally does not hold title to navigable waters and thus navigable waters generally are not included within the definition of public lands” (55 FR 27115; June 29, 1990). That position was changed in 1999 when the subsistence priority was extended to waters subject to a Federal reserved water right following the Katie John litigation. The Board identified certain submerged marine lands that did not pass to the State and, therefore, where the subsistence priority applied. However, the Board did not attempt to identify each and every small parcel of submerged public lands and thereby marine water possibly subject to the Federal Subsistence Management Program because of the potentially overwhelming administrative burden. Instead the Board invited the public to petition to have submerged marine lands included. Over the years, several small areas of submerged marine lands in the Tongass National Forest have been identified as public lands subject to the subsistence priority.

In its May 31, 2011, order, the Court stated that the petition process was not sufficient and found that “concerns about costs and management problems simply cannot trump the congressional policy that the subsistence lifestyle of rural Alaskans be preserved as to public lands.” The Court acknowledged in its order that inventorying all these lands could be an expensive undertaking, but that it is a burden “necessitated by the `complicated regulatory scheme' which has resulted from the inability of the State of Alaska to implement Title VIII of ANILCA.” The Court then “enjoined” the United States “to promptly initiate regulatory proceedings for the purpose of implementing the subsistence provisions in Title VIII of ANILCA with respect to submerged public lands within Tongass National Forest” and directed entry of judgment.

The BLM and USDA-FS started a time- and resource-consuming review of hundreds of potential pre-statehood (January 3, 1959) withdrawals in the marine waters of the Tongass National Forest. Both agencies are reviewing their records to identify dock sites, log transfer sites, and other areas that may not have passed to the State at statehood. The review process is ongoing and expected to take quite some time.

In April and October of 2015, BLM submitted initial listings of parcels of submerged public lands to the Board. This proposed rule will add those listings to the subsistence regulations to ensure compliance with the Court's order. Additional listings will be published as BLM and USDA-FS continue their reviews of pre-statehood withdrawals. In addition, this proposed rule would make nonsubstantive changes to 36 CFR 242.3 and 50 CFR 100.3 to correct errors, such as misspellings and punctuation errors, which occur in the existing regulations.

Because this proposed rule concerns public lands managed by an agency or agencies in both the Departments of Agriculture and the Interior, identical text will be incorporated into 36 CFR part 242 and 50 CFR part 100.

A Draft Environmental Impact Statement that described four alternatives for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. The Final Environmental Impact Statement (FEIS) was published on February 28, 1992. The Record of Decision (ROD) on Subsistence Management for Federal Public Lands in Alaska was signed April 6, 1992. The selected alternative in the FEIS (Alternative IV) defined the administrative framework of an annual regulatory cycle for subsistence regulations.

A 1997 environmental assessment dealt with the expansion of Federal jurisdiction over fisheries and is available at the office listed under FOR FURTHER INFORMATION CONTACT. The Secretary of the Interior, with concurrence of the Secretary of Agriculture, determined that expansion of Federal jurisdiction does not constitute a major Federal action significantly affecting the human environment and, therefore, signed a Finding of No Significant Impact.

An ANILCA § 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program. The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. The final § 810 analysis determination appeared in the April 6, 1992, ROD and concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.

During the subsequent environmental assessment process for extending fisheries jurisdiction, an evaluation of the effects of the subsistence program regulations was conducted in accordance with § 810. This evaluation also supported the Secretaries' determination that the regulations will not reach the “may significantly restrict” threshold that would require notice and hearings under ANILCA § 810(a).

This proposed rule does not contain any new collections of information that require Office of Management and Budget (OMB) approval under the PRA (44 U.S.C. 3501 et seq.) OMB has reviewed and approved the collections of information associated with the subsistence regulations at 36 CFR 242 and 50 CFR 100, and assigned OMB Control Number 1018-0075. We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this proposed rule is not significant.

Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. In general, the resources to be harvested under this proposed rule are already being harvested and consumed by the local harvester and do not result in an additional dollar benefit to the economy. However, we estimate that two million pounds of meat are harvested by subsistence users annually and, if given an estimated dollar value of $3.00 per pound, this amount would equate to about $6 million in food value statewide. Based upon the amounts and values cited above, the Departments certify that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.), this proposed rule is not a major rule. It will not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these proposed regulations have no potential takings of private property implications as defined by Executive Order 12630.

The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this proposed rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies and there is no cost imposed on any State or local entities or tribal governments.

The Secretaries have determined that these proposed regulations meet the applicable standards provided in §§ 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the proposed rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.

The Alaska National Interest Lands Conservation Act, Title VIII, does not provide specific rights to tribes for the subsistence taking of wildlife, fish, and shellfish. However, the Secretaries, through the Board, will provide Federally recognized Tribes and Alaska Native corporations an opportunity to consult on this proposed rule. Consultation with Alaska Native corporations are based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.”

The Secretaries, through the Board, will provide a variety of opportunities for consultation: commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process.

This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this proposed rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.

Theo Matuskowitz drafted these proposed regulations under the guidance of Gene Peltola of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by:

• Daniel Sharp, Alaska State Office, Bureau of Land Management;

• Mary McBurney, Alaska Regional Office, National Park Service;

• Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs;

• Trevor Fox, Alaska Regional Office, U.S. Fish and Wildlife Service; and

• Thomas Whitford, Alaska Regional Office, USDA—Forest Service.

For the reasons set out in the preamble, the Secretaries propose to amend 36 CFR part 242 and 50 CFR part 100 as set forth below.

By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as the requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.

Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) or from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

Through this action, EPA is proposing to conditionally approve the prong 4 portions of South Carolina's infrastructure SIP submissions for the 2008 8-hour Ozone, 2010 1-hour NO2, 2010 1-hour SO2, and 2012 annual PM2.5 NAAQS as discussed in section IV of this document.1 All other applicable infrastructure SIP requirements for these SIP submissions have been or will be addressed in separate rulemakings. A brief background regarding the NAAQS relevant to this proposal is provided below. For comprehensive information on these NAAQS, please refer to the Federal Register notices cited in the following subsections.

On March 12, 2008, EPA revised the 8-hour Ozone NAAQS to 0.075 parts per million. See 73 FR 16436 (March 27, 2008). States were required to submit infrastructure SIP submissions for the 2008 8-hour Ozone NAAQS to EPA no later than March 12, 2011. South Carolina submitted its infrastructure SIP submission on July 17, 2012, for the 2008 8-hour Ozone NAAQS.

On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474 (February 9, 2010). States were required to submit infrastructure SIP submissions for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013. South Carolina submitted its infrastructure SIP submission on April 30, 2014, for the 2010 1-hour NO2 NAAQS.

On June 2, 2010, EPA revised the primary SO2 NAAQS to an hourly standard of 75 parts per billion based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. See 75 FR 35520 (June 22, 2010). States were required to submit infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013. South Carolina submitted its infrastructure SIP submission on May 8, 2014, for the 2010 1-hour SO2 NAAQS.

On December 14, 2012, EPA revised the primary annual PM2.5 NAAQS to 12 micrograms per cubic meter (μg/m3). See 78 FR 3086 (January 15, 2013). States were required to submit infrastructure SIP submissions for the 2012 PM2.5 NAAQS to EPA no later than December 14, 2015. South Carolina submitted its infrastructure SIP submission on December 18, 2015, for the 2012 PM2.5 NAAQS.

The requirement for states to make a SIP submission of this type arises out of section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “each such plan” submission must address.

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

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

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of Title I of the CAA, which specifically address nonattainment SIP requirements.3 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years or in some cases three years, for such designations to be promulgated.4 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.5 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.6

Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.7

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

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

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.8 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).9 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.10 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

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

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

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

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions; 11 (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes that it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.12 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

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

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

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.13 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.14 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.15

Section 110(a)(2)(D)(i)(II) includes a requirement that a state's implementation plan contain provisions prohibiting sources in that state from emitting pollutants in amounts that interfere with any other state's efforts to protect visibility under part C of Title I of the CAA (which includes sections 169A and 169B). The 2013 Guidance states that these prong 4 requirements can be satisfied by approved SIP provisions that EPA has found to adequately address any contribution of that state's sources to impacts on visibility program requirements in other states. The 2013 Guidance also states that EPA interprets this prong to be pollutant-specific, such that the infrastructure SIP submission need only address the potential for interference with protection of visibility caused by the pollutant (including precursors) to which the new or revised NAAQS applies.

The 2013 Guidance delineates two ways in which a state's infrastructure SIP may satisfy prong 4. The first way is through an air agency's confirmation in its infrastructure SIP submission that it has an EPA-approved regional haze SIP that fully meets the requirements of 40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require that a state participating in a regional planning process include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. A fully approved regional haze SIP will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility.

Alternatively, in the absence of a fully approved regional haze SIP, a state may meet the requirements of prong 4 through a demonstration in its infrastructure SIP submission that emissions within its jurisdiction do not interfere with other air agencies' plans to protect visibility. Such an infrastructure SIP submission would need to include measures to limit visibility-impairing pollutants and ensure that the reductions conform with any mutually agreed regional haze reasonable progress goals for mandatory Class I areas in other states.

South Carolina's July 17, 2012, 2008 8-hour Ozone submission; April 30, 2014, 2010 1-hour NO2 submission; May 8, 2014, 2010 1-hour SO2 submission; and December 18, 2015, 2012 annual PM2.5 submission cite to the State's regional haze SIP as satisfying prong 4 requirements.16 However, as explained below, EPA has not yet fully approved South Carolina's regional haze SIP because the SIP relies on the Clean Air Interstate Rule (CAIR) to satisfy the nitrogen oxides (NOX) and SO2 Best Available Retrofit Technology (BART) requirements for the CAIR-subject electric generating units (EGUs) in the State and the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress goals.17

EPA demonstrated that CAIR achieved greater reasonable progress toward the national visibility goal than BART for NOX and SO2 at BART-eligible EGUs in CAIR affected states, and revised the regional haze rule to provide that states participating in CAIR's cap-and-trade programs need not require affected BART-eligible EGUs to install, operate, and maintain BART for emissions of SO2 and NOX. See 70 FR 39104 (July 6, 2005). As a result, a number of states in the CAIR region designed their regional haze SIPs to rely on CAIR as an alternative to NOX and SO2 BART for CAIR-subject EGUs. These states also relied on CAIR as an element of a long-term strategy for achieving their reasonable progress goals.

The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) initially vacated CAIR in 2008,18 but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR.19 On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR and thus to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS.

Due to CAIR's status as a temporary measure following the D.C. Circuit's 2008 ruling, EPA could not fully approve regional haze SIP revisions to the extent that they relied on CAIR to satisfy the BART requirement and the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress goals. On these grounds, EPA finalized a limited disapproval of South Carolina's regional haze SIP on June 7, 2012 (77 FR 33642), triggering the requirement for EPA to promulgate a Federal Implementation Plan (FIP) unless South Carolina submitted and EPA approved a SIP revision that corrected the deficiencies. EPA finalized a limited approval of South Carolina's regional haze SIP on June 28, 2012 (77 FR 38509), as meeting the remaining applicable regional haze requirements set forth in the CAA and the regional haze rule.

Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on August 21, 2012, the court issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the D.C. Circuit to resolve remaining issues in accordance with the high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the CSAPR budgets as to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015). The remanded budgets include the Phase 2 SO2 emissions budget for South Carolina.20

Although South Carolina's infrastructure SIP revisions cite to the regional haze program as satisfying the requirements of Prong 4, the State may not currently rely on its regional haze SIP to satisfy these requirements because the regional haze SIP is not fully approved. In addition, these revisions do not otherwise demonstrate that emissions within the State's jurisdiction do not interfere with other states' plans to protect visibility. Therefore, on April 19, 2016, South Carolina submitted a commitment letter to EPA requesting conditional approval of the prong 4 portions of the aforementioned infrastructure SIP revisions.21 In this letter, South Carolina commits to satisfy the prong 4 requirements for the 2008 8-hour ozone NAAQS, 2010 1-hour NO2 NAAQS, 2010 1-hour SO2 NAAQS, and 2012 PM2.5 NAAQS by providing a SIP revision that adopts provisions for participation in the CSAPR annual NOX and annual SO2 trading programs, including annual NOX and annual SO2 budgets that are at least as stringent as the budgets codified for South Carolina at 40 CFR 97.710(a) (SO2 Group 2 trading budgets) and 40 CFR 97.410(a) (NOX Annual trading budgets). South Carolina will rely on this SIP revision adopting such budgets to submit a concurrent SIP revision specifically addressing the visibility requirements of prong 4. In its commitment letter, South Carolina commits to providing these two concurrent SIP revisions within one year of EPA's final conditional approval of the prong 4 portions of the infrastructure SIP revisions and provides an anticipated schedule for these revisions. If the revised infrastructure SIP revision relies on a fully approvable regional haze SIP, South Carolina also commits to providing the necessary regional haze SIP revision to EPA within one year of EPA's final conditional approval.

If South Carolina meets its commitment within one year of final conditional approval, the prong 4 portions of the conditionally approved infrastructure SIP submissions will remain a part of the SIP until EPA takes final action approving or disapproving the new SIP revision(s). However, if the State fails to submit these revisions within the one-year timeframe, the conditional approval will automatically become a disapproval one year from EPA's final conditional approval and EPA will issue a finding of disapproval. EPA is not required to propose the finding of disapproval. If the conditional approval is converted to a disapproval, the final disapproval triggers the FIP requirement under CAA section 110(c).

As described above, EPA is proposing to conditionally approve the prong 4 portions of South Carolina's July 17, 2008 8-hour Ozone infrastructure SIP submission; April 30, 2014, 2010 1-hour NO2 infrastructure SIP submission; May 8, 2014, 2010 1-hour SO2 infrastructure SIP submission; and December 18, 2015, 2012 annual PM2.5 infrastructure SIP submission. All other applicable infrastructure requirements for these SIP submissions have been or will be addressed in separate rulemakings.

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

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

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

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

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

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

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

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

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

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

In addition, this proposed action for the state of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). The Catawba Indian Nation Reservation is located within the State of South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, South Carolina statute 27-16-120, “all state and local environmental laws and regulations apply to the [Catawba Indian Nation] and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” However, EPA has determined that because this proposed rule does not have substantial direct effects on an Indian Tribe because, as noted above, this action is not approving any specific rule, but rather proposing that South Carolina's already approved SIP meets certain CAA requirements. EPA notes this action will not impose substantial direct costs on Tribal governments or preempt Tribal law.

This is a summary of Commission's document, Report No. 3045, released May 20, 2016. The full text of the Petitions is available for viewing and copying at the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554 or may be accessed online via the Commission's Electronic Comment Filing System at http://apps.fcc.gov/ecfs/. The Commission will not send a copy of this Notice pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because this Notice does not have an impact on any rules of particular applicability.

Subject: In the Matter of Revision of Part 15 of the Commission's Rules to Permit Unlicensed National Information Infrastructure (U-NII) Devices in the 5 GHz Band, published at 81 FR 19896, April 6, 2016, and FCC 16-24. This Notice is being published pursuant to 47 CFR 1.429(e). See also 47 CFR 1.4(b)(1).

Number of Petitions Filed: 3.

Public Participation and Request for Comments

FMCSA and FRA encourage you to participate by submitting comments and related materials.

If you submit a comment, please include the docket number for this document (FMCSA-2015-0419 or FRA-2015-0111), 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 or by fax, mail, or hand delivery, but please use only one of these means. FMCSA and FRA recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov and enter either docket number, “FMCSA-2015-0419” or “FRA-2015-0111” in the “Keyword” box, and click “Search.” When the new screen appears, click on “Comment Now!” button and type your comment into the text box in the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. 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.

FMCSA and FRA will consider all comments and material received during the comment period and may change this document based on your comments.

To view comments, as well as documents available in the docket, go to http://www.regulations.gov and insert the docket number, “FMCSA-2015-0419” or “FRA-2015-0111” in the “Keyword” box and click “Search.” Next, click “Open Docket Folder” button and choose the document listed to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal holidays.

Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its potential rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

On May 18, 2016, the Owner Operator Independent Drivers Association (OOIDA) requested an extension to the comment period (Docket ID: FMCSA-2015-0419-0348) in order to review the results from the American Transportation Research Institute (ATRI) Commercial Driver Survey on Sleep Apnea Issues (http://atri-online.org/2016/04/14/atri-launches-commercial-driver-survey-on-sleep-apnea-issues/). In its request, OOIDA stated that the survey will provide a comprehensive look at the impact of OSA screening and treatment within the motor carrier community that is beyond the information which any one carrier can provide. Furthermore, with this data in hand, OOIDA will be able to present a better analysis of the information requested by the ANPRM. ATRI released its survey results on Thursday, May 26, 2016.

FMCSA and FRA believe that other potential commenters to this rulemaking will benefit from an extension as well. Accordingly, FMCSA and FRA extend the comment period for all comments on the ANPRM and its related documents to July 8, 2016.