Federal Register Vol. 81, No.138,

Authority for This Rulemaking

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

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-2016-5574; Airspace Docket No. 16ANM-5.” 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.regulations.gov. 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.

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 Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

This document proposes to 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 modifying class E airspace extending upward from 700 feet above the surface at Napa County Airport, Napa, CA, by removing an irregular shaped area located approximately 20 miles southwest of the airport. This airspace area is discontinuous from the airspace surrounding Napa County Airport and is not necessary to support IFR operations. This proposal also would update the airport geographic coordinates to lat. 38°12′48″ N., long. 122°16′51″ W., to coincide with the FAA's aeronautical database.

Class E airspace designations are published in paragraph 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:

History

An NPRM was published in the Federal Register of March 30, 2016 (81 FR 17619), to establish new temporary restricted areas R-2509E, R-2509W, and R-2509N to accommodate a United States Marine Corps (USMC) Large Scale Exercise (LSE) on new Twentynine Palms lands planned for August 1 to August 18, 2016. The proposed new temporary restricted areas would support live fire activities including anti-tank weapons, mortars, and artillery, as well as Unmanned Aircraft Systems, fixed wing, and rotary wing training activities conducting close air support and live ordnance delivery. Efforts to mitigate the aeronautical impacts associated with the proposed action have been unsuccessful and there is no longer sufficient time remaining to complete the actions required to process the airspace proposal in time for the August 1, 2016, exercise start date. Therefore, the NPRM is being withdrawn.

In consideration of the foregoing, the NPRM for FR Doc. FAA-2016-4282, Airspace Docket No. 16-AWP-3, as published in the Federal Register of March 30, 2016 (81 FR 17619) (FR Doc. 2016-07166), is hereby withdrawn.

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

For the purpose of this document, we are giving meaning to certain words or initials as follows:

• The words or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

• The initials ADEQ mean or refer to the Arizona Department of Environmental Quality.

• The initials AFUDC mean or refer to Allowance for Funds Used During Construction.

• The initials APS mean or refer to Arizona Public Service Company.

• The words Arizona and State mean the State of Arizona.

• The initials BART mean or refer to Best Available Retrofit Technology.

• The term Class I area refers to a mandatory Class I Federal area.1

• The initials CBI mean or refer to Confidential Business Information.

• The initials CCM mean or refer to the EPA's Control Cost Manual.

• The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

• The initials FIP mean or refer to Federal Implementation Plan.

• The initials LNB mean or refer to low-NOX burners.

• The initials MMBtu mean or refer to million British thermal units

• The initials NO X mean or refer to nitrogen oxides.

• The initials OFA mean or refer to over fire air.

• The initials PM 10 mean or refer to particulate matter with an aerodynamic diameter of less than 10 micrometers.

• The initials RHR mean or refer to the EPA's Regional Haze Rule.

• The initials RP mean or refer to Reasonable Progress.

• The initials RPG or RPGs mean or refer to Reasonable Progress Goal(s).

• The initials SCR mean or refer to Selective Catalytic Reduction.

• The initials SIP mean or refer to State Implementation Plan.

• The initials SNCR mean or refer to Selective Non-catalytic Reduction

• The initials SOFA mean or refer to separated over fire air.

• The initials SO 2 mean or refer to sulfur dioxide.

The EPA has established docket number EPA-R09-OAR-2016-0292 for this action. Generally, documents in the docket for this action are available electronically at http://www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105-3901. While all documents in the docket are listed at http://www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps, multi-volume reports), and some may not be available in either location (e.g., confidential business information (CBI)). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

If anyone contacts the EPA by August 3, 2016 requesting to speak at a public hearing, the EPA will schedule a public hearing and announce the hearing in the Federal Register. Contact Vijay Limaye at (415) 972-3086 or at [email protected] to request a hearing or to determine if a hearing will be held.

This section provides a brief overview of the requirements of the CAA and RHR, as they apply to this particular action. Please refer to our previous rulemakings on the Arizona Regional Haze SIP for additional background regarding the visibility protection provisions of the CAA and the RHR.2

In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas which impairment results from manmade air pollution.” 3 It also directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 (known as “BART-eligible” sources) procure, install, and operate BART. In the 1990 CAA Amendments, Congress amended the visibility provisions in the CAA to focus attention on the problem of regional haze, which is visibility impairment produced by a multitude of sources and activities located across a broad geographic area.4

In 1999, we promulgated the RHR, which requires states to develop and implement SIPs to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas (Class I areas) 5 by reducing emissions that cause or contribute to regional haze.6 Under the RHR, states are directed to conduct an analysis and make a BART determination for each BART-eligible source that may be anticipated to cause or contribute to any visibility impairment in a Class I area.7 In particular, under CAA section 169A(g)(2) and 40 CFR 51.308(e)(1)(ii)(A), states must analyze and consider the following five factors as part of each source-specific BART analysis: (1) The costs of compliance of each technically feasible control technology, (2) the energy and non-air quality environmental impacts of compliance of the control technologies, (3) any existing pollution control technology in use at the source, (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology (collectively known as the “five-factor BART analysis”).

In 2005, the EPA published the Guidelines for BART Determinations under the Regional Haze Rule at Appendix Y to 40 CFR part 51 (“BART Guidelines”) on July 6, 2005. The BART Guidelines assist states in determining which of their sources should be subject to the BART requirements and in determining appropriate emission limits for each such “subject-to-BART” source. In making BART determinations for fossil fuel-fired electric generating plants with a total generating capacity in excess of 750 megawatts, states must use the approaches set forth in the BART Guidelines. States are encouraged, but not required, to follow the BART Guidelines in making BART determinations for other types of sources. In lieu of requiring source-specific BART controls, states also have the flexibility to adopt an alternative measure as long as the alternative provides greater reasonable progress towards natural visibility conditions than BART (i.e., the alternative must be “better than BART”).8

In addition to the visibility protection requirements of the CAA and the RHR, SIP revisions concerning regional haze are also subject to the general requirements of CAA section 110. In particular, they are subject to the requirement in CAA section 110(l) that SIP revisions must not “interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in [CAA section 171]), or any other applicable requirement of [the CAA],” as well as the requirement in CAA section 110(a)(2)(A) that SIPs must include enforceable emission limits.

Cholla Generating Station consists of four primarily coal-fired electricity generating units with a total plant-wide generating capacity of 1,150 megawatts. Unit 1 is a 126 MW tangentially-fired, dry-bottom boiler that is not BART-eligible. Units 2, 3 and 4 have capacities of 272 MW, 272 MW and 410 MW, respectively, and are tangentially-fired, dry-bottom boilers that are each BART-eligible. Units 1, 2, and 3 are owned and operated by APS and Unit 4 is owned by PacifiCorp and operated by APS.

On February 28, 2011, the Arizona Department of Environmental Quality (ADEQ) submitted a Regional Haze SIP under Section 308 of the RHR (“Arizona Regional Haze SIP”) to EPA. This submittal included BART analyses and determinations for nitrogen oxides (NOX), particulate matter with an aerodynamic diameter of less than 10 micrometers (PM10), and sulfur dioxide (SO2) at Cholla Units 2, 3, and 4. ADEQ's BART analyses for Cholla included the following seven steps:

• Step 1: Identify the Existing Control Technologies in Use at the Source,

• Step 2: Identify All Available Retrofit Control Options,

• Step 3: Eliminate All Technically Infeasible Control Options,

• Step 4: Evaluate Control Effectiveness of Remaining Technologies,

• Step 5: Evaluate the Energy and Non-Air Quality Environmental Impacts and Document Results,9

• Step 6: Evaluate Visibility Impacts, and

• Step 7: Select BART.10

On December 5, 2012, we issued a final rule approving in part and disapproving in part ADEQ's BART determinations for three sources, including Cholla.11 We found that ADEQ's overall approach to conducting BART analyses and its implementation of the first four steps of its approach were generally reasonable and consistent with the RHR and the BART Guidelines. However, we found significant flaws in ADEQ's implementation of the last three steps. In particular, under step 5, we found that the costs of compliance were not calculated in accordance with the BART Guidelines; under step 6, we found that the visibility benefits were not appropriately evaluated and considered; and under step 7, we found that ADEQ did not provide a sufficient explanation and rationale for its determinations.12 As a result of these flaws, we disapproved ADEQ's BART determinations for NOX at Cholla Units 2, 3, and 4. We also found that the SIP lacked enforceable emission limits for all units and pollutants. In the same action, we promulgated a FIP for the disapproved portions of the SIP, including NOX BART determinations for Units 2, 3, and 4. We determined that BART for NOX at Units 2, 3, and 4 was an emission limit of 0.055 pounds per million British thermal units (lb/MMBtu) determined as an average across the three units, based on a rolling 30-boiler-operating-day average, which is achievable with the use of low-NOX burners (LNB), overfire air (OFA) and selective catalytic reduction (SCR). The compliance date for the NOX BART emission limit is December 5, 2017. In addition, we established an SO2 removal efficiency requirement of 95 percent for the scrubbers on Cholla Units 2, 3 and 4. Cholla Units 3 and 4 were required to achieve this removal efficiency by December 5, 2013, and Cholla Unit 2 was required to comply by April 1, 2016. We also established requirements for equipment maintenance, monitoring, recordkeeping, and reporting for all units and all pollutants.

On January 15, 2015, APS and PacifiCorp submitted an “Application for Significant Permit Revision and Five-Factor BART Reassessment for Cholla” to ADEQ. APS and PacifiCorp requested that ADEQ conduct a revised BART analysis and determination based on new facts (“BART Reassessment”) and submit this BART Reassessment to the EPA as a revision to the Arizona Regional Haze SIP. Under the Cholla BART Reassessment, APS and PacifiCorp would commit to the following measures in lieu of implementing the FIP requirements for the Cholla Generating Station:

• Unit 2 would be permanently shut down by April 1, 2016;

• Unit 3 and Unit 4 would continue to operate with currently installed LNB and separated over fire air (SOFA). In addition, by April 30, 2025, APS and PacifiCorp would permanently cease burning coal at both units with the option to convert to pipeline-quality natural gas by July 31, 2025, with a ≤20 percent annual average capacity factor.

On October 22, 2015, ADEQ submitted a revision to the Arizona Regional Haze SIP that incorporates the Cholla BART Reassessment (“Cholla SIP Revision”). The Cholla SIP Revision is the subject of this proposal.

The Cholla SIP Revision consists of a revised BART analysis and determination for NOX at Cholla, an analysis under CAA section 110(l), and a revision to Cholla's operating permit (“Cholla Permit Revision”) 13 to implement both the revised BART determination for NOX and ADEQ's prior BART determinations for SO2 and PM10 at Cholla. If fully approved by the EPA, the Cholla SIP Revision would fill the gap in the Arizona Regional Haze SIP that resulted from the EPA's disapproval of ADEQ's BART determinations for NOX at Cholla Units 2, 3, and 4 and the lack of enforceable emission limits for all units and pollutants. Accordingly, full approval of the Cholla SIP Revision would enable the EPA to withdraw the provisions of the Arizona Regional Haze FIP that apply to Cholla.

In the Cholla SIP Revision, ADEQ determined that, if Unit 2 were shut down by April 1, 2016, no BART determination for Unit 2 would be necessary “because the enforceable shutdown date is within the five-year BART window.” 14 For Units 3 and 4, ADEQ performed a revised BART analysis, taking into account the new requirements that would be imposed as part of the Cholla BART Reassessment. This re-analysis and the resulting BART determinations are summarized in the following sections.

ADEQ's BART re-analysis for Units 3 and 4 consists of an evaluation of each of the five BART factors, effectively replacing step 5 (evaluation of costs of compliance, energy and non-air quality environmental impacts, and remaining useful life) and step 6 (evaluation of visibility benefits) of ADEQ's prior BART analysis for Cholla in the Arizona Regional Haze SIP.

ADEQ evaluated the costs of compliance for three control options: (1) LNB and SOFA, (2) SNCR with LNB and SOFA, and (3) SCR with LNB and SOFA. Two fuel-use scenarios were used as a comparison: (1) Twenty years of operation on coal and (2) eight years of operation on coal followed by twelve years of operation on natural gas (as provided for under the BART Reassessment). The cost-effectiveness values for each control option under each of these scenarios are shown in Tables 1 and 2. For all options, the costs associated with the BART Reassessment are due to lower utilization periods (coal firing until 2025 instead of for 20 years) as well as significantly lower NOX emissions after conversion to natural gas.

ADEQ indicated that the energy impacts of LNB, SOFA, and SNCR are minimal and that there are no non-air quality environmental impacts associated with LNB and SOFA. ADEQ also noted that SNCR and SCR would result in ammonia slip and that the transport and handling of anhydrous ammonia presents potential safety hazards.

ADEQ noted that, under the Cholla BART Reassessment, use of the existing LNB and SOFA would be continued at Units 3 and 4. ADEQ proposed no additional controls for these two units. Unit 2 would be shut down in April 2016, while Unit 1 (the non-BART unit) would cease burning coal in 2025.

ADEQ used a 20-year amortization period in order to calculate the costs of compliance for Units 3 and 4 because neither unit is subject to an enforceable shutdown date.

ADEQ included the results of modeling conducted by APS and PacifiCorp to predict the degree of visibility improvement associated with the three BART scenarios. This modeling predicted visibility impacts at the thirteen Class I areas within 300 km of the Cholla facility under a baseline scenario (based on 2001-2003 emissions with all four units operating), as well as the three BART control scenarios:

• BART Option 1: Unit 1 with 2001-2003 baseline controls (pre-LNB), Unit 2 shut down, LNB/SOFA on Units 3 and 4;

• BART Option 2: Unit 1 with 2001-2003 baseline controls (pre-LNB), Unit 2 shut down, LNB/SOFA and SNCR on Units 3 and 4; and

• BART Option 3: Unit 1 with 2001-2003 baseline controls (pre-LNB), Unit 2 shut down, LNB/SOFA and SCR on Units 3 and 4.

ADEQ's BART determination for Cholla Units 3 and 4 in the Cholla SIP Revision effectively replaces step 7 (select BART) of its prior BART analysis for NOX BART for Cholla in the Arizona Regional Haze SIP. In making this determination, ADEQ compared the three emission control options (LNB and SOFA, SNCR with LNB and SOFA, SCR with LNB and SOFA). For Option 1, it found that the LNB and SOFA controls could be installed at reasonable cost-effectiveness and would deliver visibility improvements ranging from 0.48 to 1.61 dv over baseline conditions across thirteen Class I areas. For Option 2, it found the SNCR control option to be too costly in comparison to the small additional visibility benefits it would be expected to deliver. For Option 3, ADEQ noted that the visibility benefits of SCR (3.97 dv cumulative incremental visibility improvement) would only last until 2025 when coal firing would cease, after which the incremental benefits of SCR would be “negligible.” Based on its analysis, ADEQ found Option 1 (LNB with SOFA) to be BART for NOX at Cholla Units 3 and 4. The rolling 30-boiler-operating-day NOX emission limits associated with this BART determination are 0.22 lb/MMbtu (effective until April 30, 2025), which reflects the use of coal, and 0.080 lb/MMbtu (effective May 1, 2025), which reflects the use of natural gas.

In addition to the BART re-analysis and determinations, the Cholla SIP Revision also includes a demonstration of “noninterference” under CAA section 110(l). In particular, ADEQ considered whether the Cholla SIP Revision would interfere with (1) any applicable requirement concerning attainment of any National Ambient Air Quality Standards (NAAQS) or (2) any other applicable requirement of the CAA.

ADEQ noted that Cholla is located in Navajo County, Arizona, which is currently designated as attainment or unclassifiable for the following NAAQS: Carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO2), ozone (O3) (2008 NAAQS), PM2.5 (1997 and 2006 NAAQS), PM10, and SO2 (1971 NAAQS). ADEQ also noted that it has recommended an attainment/unclassifiable designation for this area for the 2012 PM2.5 and 2010 SO2 standards.

ADEQ's demonstration of noninterference with attainment focused on the NAAQS for PM10, SO2, NO2, and O3 because ambient levels of these pollutants are affected by emissions of PM10, SO2, and/or NOX. Specifically, ADEQ analyzed emissions of PM10, SO2, and NOX under the control strategies in the Cholla BART Reassessment, as compared with the existing control requirements in the applicable SIP and FIP. This assessment was conducted by considering revised emissions limits included in the Cholla SIP Revision, summarized in Table 5.

For its PM10 analysis, ADEQ found that the emission control strategies in the Cholla BART Reassessment will result in greater PM10 reductions than those in the Arizona Regional Haze SIP beginning in 2016 and continuing into the future, as shown in Table 6. Beginning in 2026, PM10 emissions will be further reduced under the Cholla BART Reassessment, due to the 20 percent capacity factor limit and the more stringent emission limits (0.01 lb/MMBtu rather than 0.015 lb/MMBtu) that will apply after the switch to natural gas at Units 3 and 4. Therefore, ADEQ found that the Cholla SIP Revision will not interfere with attainment and maintenance of the PM10 NAAQS.

ADEQ also compared SO2 emission control strategies in the 2011 SIP with those in the Cholla BART Reassessment. As shown in Table 7, the control strategies in the Cholla BART Reassessment will result in greater SO2 reductions than those in the 2011 SIP beginning in 2016 and continuing into the future. Therefore, ADEQ found that the emissions reductions achieved by the control strategy outlined in the Cholla SIP Revision will not interfere with attainment and maintenance of the SO2 NAAQS.

ADEQ also analyzed the emission control strategies for NOX in the Cholla BART Reassessment (Unit 2 shutdown and LNB/SOFA controls at Units 3 and 4 until conversion to natural gas by 2025 with a ≤20 percent annual average capacity factor) in comparison to the FIP, which requires the installation of SCR with LNB and SOFA at all units by December 5, 2017. As shown in Table 8, while the shutdown of Unit 2 results in lower NOX emissions than the FIP for 2016, the Reassessment will allow for 4,161 tpy more NOX emissions than the FIP between 2018 and 2025. However, after 2025, due to the conversion to natural gas, the Cholla BART Reassessment will result in greater annual NOX emission reductions than the FIP. ADEQ found that, because there are no nonattainment or maintenance SIPs that rely on emission reductions at Cholla to ensure continued attainment of the NO2 NAAQS and the Cholla BART Reassessment will result in NOX emission reductions relative to the existing operating conditions of the facility, it will not interfere with attainment or maintenance of the current NO2 NAAQS.

Similarly, with regard to ozone, for which NOX emissions are a precursor, ADEQ noted that there are no nonattainment or maintenance SIPs that rely on emission reductions at Cholla to ensure continued attainment of the NAAQS and that the Cholla BART Reassessment will result in greater long-term NOX emission reductions than the existing FIP. Accordingly, ADEQ concluded that the Cholla BART Reassessment will not interfere with the attainment or maintenance of the 2008 ozone NAAQS.

With regards to the other applicable CAA requirements, ADEQ considered whether the Cholla BART Reassessment would interfere with (1) the requirements of the Regional Haze program or (2) the CAA's air toxics requirements.

In evaluating potential interference with the RHR, ADEQ relied primarily on the results of air quality modeling (using CALPUFF) performed by APS and PacifiCorp to assess the visibility impacts of Cholla under the Cholla SIP Revision compared to the existing SIP and FIP requirements.15 These results, summarized in Table 9, show that, compared with the existing SIP and FIP requirements, the Cholla SIP Revision would result in less visibility improvement at all affected Class I areas between 2018 and 2025, but would result in greater improvement starting in 2026. Based on these results and taking into consideration the long-term goal of the Regional Haze Rule to achieve natural visibility conditions, ADEQ found that the BART Reassessment will not interfere with the requirements of the regional haze program.

Concerning air toxics, ADEQ noted that in addition to ceasing operation of Unit 2, the Cholla facility proposes to implement sorbent injection at Units 1, 3, and 4 by March 2016 to reduce air toxics and achieve compliance with the EPA's Mercury and Air Toxics (MATS) rule. Therefore, ADEQ concluded that the Cholla BART Reassessment will not interfere with any air toxics requirements of the CAA.

The Cholla Permit Revision, which is incorporated as Appendix A to the Cholla SIP Revision, was issued by ADEQ on October 16, 2015. The Permit Revision incorporates emission limits and compliance dates as well as monitoring, recordkeeping, and reporting requirements to implement both the Cholla BART Reassessment and ADEQ's prior BART determinations for SO2 and PM10 at Cholla.

We have evaluated the Cholla SIP Revision for compliance with the requirements of the CAA, the RHR, and the BART Guidelines.16 Our evaluation of each of the major components of the Cholla SIP Revision is summarized in the following sections.

The Cholla Permit Revision requires Unit 2 to be permanently retired by no later than April 1, 2016.17 This date coincides with the compliance deadlines for SO2 and PM10 in the Arizona Regional Haze FIP and precedes the deadline for NOX by over a year.18 In fact, the unit was shut down on October 1, 2015.19 If Unit 2 were not retired, APS would have been required to install additional controls to meet the SO2 and PM10 limits in the SIP, as well as the NOX limit in the FIP, which is achievable with SCR. The requirement for permanent retirement will become effective and federally enforceable when the Cholla SIP Revision is approved into the SIP and the FIP provisions applicable to Cholla are withdrawn.20 Accordingly, we agree with ADEQ that no further analysis is required for Cholla Unit 2, and we propose to approve the requirement for permanent retirement as satisfying the requirements of the CAA and RHR for Cholla Unit 2.

We find that ADEQ's BART analysis for Cholla Units 3 and 4 is consistent with the requirements of the CAA, RHR, and the BART Guidelines. In particular, we find that ADEQ's BART re-analysis addresses the flaws that were the basis for our disapproval of ADEQ's prior BART analysis for Cholla.21

With regard to the cost of compliance, in its previous BART analysis for Cholla, ADEQ included certain line item costs not allowed by the EPA Control Cost Manual (CCM),22 such as owner's costs, surcharge, and Allowance for Funds Used During Construction (AFUDC).23 This approach did not comply with BART Guidelines' direction that cost estimates should be based on the CCM. In the Cholla SIP revision, by contrast, ADEQ used the cost estimates that the EPA developed as part of the Regional Haze FIP,24 which were calculated using the CCM methodology.25

We note that in May 2016, EPA revised the CCM chapter that concerns SCR systems.26 The revised CCM recommends use of a 30-year equipment life for SCR systems,27 whereas the previous version recommended a 20-year life.28 As noted above, ADEQ used a 20-year remaining useful life in its cost calculations in the Cholla SIP Revision, which was consistent with the current CCM recommendation at the time of SIP submittal in October 2015. Given that the majority of other BART analyses, including the EPA's analysis for Cholla in the Arizona Regional Haze FIP,29 have used a 20-year remaining useful life for SCR, we believe that this remains an appropriate assumption in this instance in order to ensure a consistent comparison with the cost estimates for SCR in other BART determinations. Nonetheless, we have also conducted an additional analysis to evaluate how use of a 30-year remaining useful life would affect the cost-effectiveness values for SCR at Cholla Units 3 and 4. We found that use of a 30-year remaining useful life would increase the average cost-effectiveness of SCR at Unit 3 from $6,286/ton to $7,864/ton and the “incremental” cost-effectiveness (as compared with LNB+SOFA) from $9,237/ton to $11,295/ton.30 The average and “incremental” (as compared with LNB+SOFA) cost-effectiveness of SCR at Unit 4 would be increased from $6,810/ton to $8,401/ton and from $10,539 to $12,674, respectively.31 Thus, if ADEQ had calculated the average and incremental cost-effectiveness of SCR based on a 30-year remaining useful life, it would have provided further support for ADEQ's determination that the incremental costs of compliance for SCR are not warranted by the incremental benefits.

With regard to visibility modeling, in its previous BART analysis for Cholla, ADEQ considered the benefits from controls on only one emitting unit at a time and overlooked significant benefits at multiple Class I areas, thereby understating the full visibility benefits of the candidate controls.32 By contrast, in the Cholla SIP revision, ADEQ looked at the visibility impacts and potential improvements from all three BART-eligible units together and also considered impacts and potential improvements at all 13 Class I areas within 300 km of Cholla, based on modeling performed by APS and PacifiCorp.33

In considering the results of this modeling, it should be noted that the baseline scenario included emissions from Unit 2, but the control scenarios did not include any emissions from Unit 2. As a result, the total visibility improvement anticipated under each of the control scenarios represents not only the visibility benefits of controls on Units 3 and 4, but also the visibility benefits of the closure of Unit 2. We consider this to be a reasonable approach because it is consistent with the requirement of the BART Guidelines for states to consider the visibility improvement from controls applied to the entire BART-eligible source.34 However, given that ADEQ is not making a BART determination for Unit 2 in this instance, we believe it is appropriate to also consider the visibility improvement expected to result from controls on Units 3 and 4 only. ADEQ's evaluation of the “incremental” visibility benefits of SNCR (“Option 2 over Option 1” in Table 4) and SCR (“Option 3 over Option 1” in Table 4) effectively excludes the benefits of the Unit 2 shutdown because Options 1, 2, and 3 all exclude emissions from Unit 2. Given that ADEQ relied heavily on these “incremental” visibility benefits in reaching its ultimate BART determination,35 we find that ADEQ appropriately considered the visibility benefits of controls on Units 3 and 4 only, as well as the benefits of the Cholla BART Reassessment as a whole.

We also note that ADEQ did not quantify the expected visibility benefits of SCR and SNCR on Units 3 and 4 after these units are converted to gas in 2025, but characterized these benefits as “negligible.” In order to evaluate ADEQ's characterization, we scaled the modeled visibility benefits of SCR under the coal-fired scenario to roughly estimate what the benefits would be under the gas-fired scenario. The results of this scaling indicate that, under the gas-fired scenario, the approximate benefits of SNCR would be 0.07 dv at the most-improved Class I area and 0.31 dv cumulatively over all affected Class I areas, while the approximate benefits of SCR would be 0.15 dv at the most-improved Class I area and 0.77 dv cumulatively over all affected Class I areas.36 Thus, the benefits of SNCR or SCR under the gas-fired scenario would be significantly less than under the coal-fired scenario, for which the expected “incremental” benefits over LNB+SOFA are 0.28 dv at the most-improved area and 1.32 dv cumulative for SNCR and 0.79 dv at the most-improved Class I area and 3.97 dv cumulative for SCR.

In the Cholla SIP Revision, ADEQ also appropriately accounted for the requirements that will apply to Units 3 and 4 as of 2025, i.e., the permanent cessation of coal burning by April 30, 2025, with the option to convert to pipeline-quality natural gas and comply with a 20 percent annual average capacity factor limit by July 31, 2025. These new requirements significantly decrease the emission reductions achievable by SCR or SNCR beginning in 2025 and thus increase the average $/ton of both SCR and SNCR over the remaining useful life of the units, as shown in Tables 1 and 2 above. Similarly, these requirements limit the timeframe in which significant visibility benefits would result from either SCR or SNCR to less than eight years.

We note that ADEQ did diverge slightly from the BART Guidelines in its calculation of the incremental cost-effectiveness of SCR. In particular, ADEQ calculated the incremental cost, as well as incremental visibility benefits, based on a comparison between SCR with LNB+SOFA and LNB+SOFA only. This differs from the approach to calculating incremental cost-effectiveness that is set forth in the BART Guidelines, under which incremental cost-effectiveness is calculated by comparing “the costs and performance level of a control option to those of the next most stringent option . . . .” 37 In this case, SNCR with LNB+SOFA is the next most stringent option compared to SCR with LNB+SOFA. Had ADEQ compared SCR with LNB+SOFA to SNCR with LNB+SOFA, the incremental cost-effectiveness using a 20-year remaining useful life would have been $10,347/ton for Unit 3 and $12,295/ton for Unit 4,38 rather than $9,237/ton for Unit 3 and $10,539/ton for Unit 4. Similarly, had ADEQ calculated the incremental visibility benefits of SCR with LNB+SOFA based on a comparison to SNCR with LNB+SOFA, the per area incremental benefits would have ranged from 0.01 dv to 0.51 dv, rather than 0.07 dv to 0.79 dv, and the cumulative incremental benefit would have been 2.65 dv rather than 3.97 dv.39 Thus, if ADEQ had calculated the incremental costs and benefits of SCR in accordance with the BART Guidelines, it would have resulted in higher incremental cost-effectiveness values and lower incremental visibility benefits compared with the figures provided in the Cholla SIP Revision, which would provide further support for ADEQ's determination that the incremental costs of compliance for SCR are not warranted by the incremental benefits. Accordingly, in reviewing the reasonableness of ADEQ's re-analysis of BART for these units, we find that ADEQ's diversion from the BART Guidelines in this regard was of no consequence.

Based on our findings that the Cholla SIP Revision addresses the flaws that were the basis for our disapproval of ADEQ's prior BART analysis for Cholla and otherwise meets the requirements of the CAA, RHR, and the BART Guidelines, we propose to approve ADEQ's BART re-analysis for Cholla Units 3 and 4.

We also find that ADEQ's BART determination for NOX at Cholla Units 3 and 4 is consistent with the requirements of the CAA, RHR, and the BART Guidelines. In particular, we find that ADEQ appropriately considered and weighed the five BART factors in relation to the available control options and reached a reasonable BART determination based on its consideration of the factors.

With regard to SCR, we find that it was reasonable for ADEQ to conclude that the costs of SCR were not warranted by the visibility benefits in this instance. In particular, with regard to costs, we are not aware of any instance in which the EPA has determined SCR to be BART where the average cost-effectiveness of SCR was greater than $6,000/ton and the incremental cost-effectiveness (calculated in accordance with the BART Guidelines) was greater than $10,000/ton, as is the case with Cholla Units 3 and 4. Similarly, we are not aware of any instance in which the EPA has disapproved a state's BART determination that rejected SCR as BART based on similar cost-effectiveness values. Furthermore, while the total visibility benefits of the SCR-based control scenario (“BART Option 3”) are large (2.20 dv at the most improved area and 17.89 dv cumulative across all affected areas), as noted in the previous section, these benefits include not only the effect of SCR installation on Units 3 and 4, but also the retirement of Unit 2. Thus, we believe it was appropriate for ADEQ to focus primarily on what it characterized as the “incremental” visibility benefits, i.e., the relative degree of visibility improvement expected under Option 3 (Unit 2 retired and SCR with LNB+SOFA on Units 3 and 4) compared with Option 1 (Unit 2 retired and LNB+SOFA on Units 3 and 4), which were 0.07 dv to 0.79 dv per area and 3.97 dv cumulative.40 While these benefits are significant, we believe it was reasonable for ADEQ to determine that the benefits were not warranted in light of the high costs of SCR and the fact that benefits of this magnitude would only last for approximately eight years, after which the benefits of SCR would be far less (roughly 0.15 dv at the most-improved Class I area and 0.77 dv cumulatively over all affected Class I areas).

With regard to SNCR, we find that it was reasonable for ADEQ to conclude that the costs of SNCR were not warranted by the visibility benefits. In particular, with regard to costs, we are not aware of any instance in which the EPA has determined SNCR to be BART where the average cost-effectiveness of SNCR was greater than $3,000/ton and the incremental cost-effectiveness was roughly $7,000/ton, as is the case with Cholla Units 3 and 4. Similarly, we are not aware of any instance in which the EPA has disapproved a state's BART determination that rejected SNCR as BART based on similar cost-effectiveness values. Furthermore, while the total visibility benefits of the SNCR-based control scenario (“BART Option 2”) are large (1.78 dv at the most improved area and 15.24 dv cumulative across all affected areas), as noted above, these benefits include not only the effect of SNCR installation on Units 3 and 4, but also the retirement of Unit 2. Thus, we believe it was appropriate for ADEQ to focus primarily on incremental visibility benefits, i.e., the relative degree of visibility improvement expected under Option 2 (Unit 2 retired and SNCR with LNB+SOFA on Units 3 and 4) compared with Option 1 (Unit 2 retired and LNB+SOFA on Units 3 and 4), which were 0.01 dv to 0.28 dv per area and 1.32 dv cumulative. While these benefits are not insignificant, we believe it was reasonable for ADEQ to determine that the benefits were not warranted in light of the relatively high costs of SNCR and the fact that benefits of this magnitude would only last for approximately eight years, after which the benefits of SNCR would be far less (roughly 0.07 dv at the most-improved Class I area and 0.31 dv cumulatively over all affected Class I areas).

Therefore, we propose to approve ADEQ's determination that BART for NOX at Cholla Units 3 and 4 consists of LNB+SOFA with associated emission limits of 0.22 lb/MMbtu (rolling 30-boiler-operating-day average) for each unit. As explained above, these emission limits will remain in effect until April 30, 2025, at which point both units will be permanently retired or converted to natural gas with NOX emission limits of 0.08 lb/MMBtu (rolling 30-boiler-operating-day average).

CAA section 110(l) requires that any revision to an implementation plan shall not be approved by the EPA Administrator if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (RFP) or any other applicable requirement of the Act.41 In evaluating whether the Cholla SIP Revision would interfere with any CAA requirements, we note that overall, the Cholla SIP Revision will result in reduced emissions of both SO2 and PM10 compared to the existing SIP and FIP requirements beginning in 2016 (see Tables 6 and 7 above) due to the retirement of Unit 2. While the Cholla SIP Revision will require fewer NOX reductions than the FIP between 2018 and 2025, it will ensure that NOX emissions remain at or below current levels (i.e., levels consistent with non-operation of Unit 2 42 and operation of LNB and SOFA on Units 1, 3 and 4) until 2025, after which it will require a substantial reduction in NOX emissions compared to both current levels and the FIP (see Table 8 above).

With regard to applicable requirements concerning attainment and RFP, as explained by ADEQ, Cholla is located in north central Navajo County, Arizona, which is designated as unclassifiable/attainment for all of the NAAQS for which the EPA has issued designations.43 ADEQ also indicated that it has recommended an attainment/unclassifiable designation for this area for the 2012 PM2.5 and 2010 SO2 standards. With regard to the 2012 PM2.5 standard, the EPA has finalized a designation of unclassifiable/attainment for Navajo County.44 With regard to the 2010 SO2 standard, we note that, under the EPA's Data Requirements Rule,45 ADEQ is required to develop and submit air quality data characterizing ambient concentrations of SO2 in the area around Cholla.46 The EPA will take these data into consideration in finalizing a designation for the area. Finally, we note that, on October 1, 2015, the EPA promulgated revised primary and secondary ozone NAAQS.47 State designation recommendations for the 2015 ozone NAAQS are due to the EPA by October 1, 2016.48

In summary, Cholla is located in area that is designated unclassifiable/attainment or has not yet been designated for each of the current NAAQS. Thus, the Arizona SIP does not currently rely on emission limitations at Cholla to satisfy any attainment or RFP requirements. Given that the Cholla SIP Revision will result in equivalent or lower emissions of NOX, PM10 and SO2 for all future years, compared to current emission levels, in an area that is designated unclassifiable/attainment or has not yet been designated for all NAAQS, we propose to find that the Cholla SIP Revision would not interfere with any applicable requirements concerning attainment or RFP.

The other requirements of the CAA that apply to Cholla are:

• Standards of Performance for New Stationary Sources (NSPS), 40 CFR part 60, subpart D;

• National Emission Standards for Hazardous Air Pollutants (NESHAP), 40 CFR part 63, subpart UUUUU (also known as MATS);

• Compliance Assurance Monitoring (CAM), 40 CFR part 64; and

• BART and other visibility protection requirements under CAA section 169A and the RHR.

The Cholla SIP Revision would not affect the applicable NESHAP, NSPS and CAM requirements. Therefore, we propose to find that the Cholla SIP Revision would not interfere with the applicable NESHAP, NSPS and CAM requirements.

We also propose to find that Cholla SIP Revision would not interfere with the visibility protection requirements of the CAA and the RHR. Our proposed approval of the BART Reassessment is based on our determination that, taking into consideration the differences in the facts underlying the EPA's prior BART analysis for NOX in Arizona Regional Haze FIP and the Cholla BART Reassessment, ADEQ's revised BART analysis and determination for Cholla meet the BART requirements of the CAA and RHR. Furthermore, the Cholla SIP Revision would result in greater visibility improvement than the existing SIP and FIP requirements beginning in 2026, which is consistent with the long-term national goal of restoring natural visibility conditions at Class I areas. Thus, we propose to find that the Cholla SIP Revision would not interfere with the visibility protection requirements of the CAA.

CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limitations as necessary or appropriate to meet the applicable requirements of the Act. In addition, SIPs must contain regulatory requirements related to monitoring, recordkeeping, and reporting for applicable emission limitations.49 The Cholla Permit Revision includes such enforceable emission limits, as well as associated monitoring, recordkeeping, and reporting requirements, for all units and pollutants. These requirements will become effective and federally enforceable when the Cholla SIP Revision is approved into the SIP and the FIP provisions applicable to Cholla are withdrawn.50 Therefore, we propose to find that the Cholla SIP Revision meets the requirements of the CAA and the EPA's implementing regulations for enforceable emission limitations.

For the reasons described above, the EPA proposes to approve the Cholla SIP Revision. Because this approval would fill the gap in the Arizona Regional Haze SIP left by the EPA's prior partial disapproval with respect to Cholla, we propose to withdraw the provisions of the Arizona Regional Haze FIP that apply to Cholla. We also propose to find that withdrawal of the FIP would constitute our action on APS's and PacifiCorp's petitions for reconsideration of the Arizona Regional Haze FIP.

As shown in Tables 6 and 7, the Cholla SIP Revision will result in reduced emissions of both SO2 and PM10 compared to the existing SIP and FIP requirements beginning in 2016. As shown in Table 8, while the Cholla SIP Revision will result in fewer NOX reductions than the FIP between 2018 and 2025, it will ensure that NOX emissions remain at or below current levels until 2025, after which it will require a substantial reduction in NOX emissions compared to both current levels and to the existing Arizona Regional Haze FIP. Therefore, the EPA believes that this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations.

In this rule, the EPA is proposing to include in a final EPA rule, regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference “Significant Permit Revision No. 61713 to Operating Permit No. 53399” issued by ADEQ on October 16, 2015. The EPA has made, and will continue to make, this document available electronically through www.regulations.gov and in hard copy at U.S. Environmental Protection Agency Region IX, Air-2, 75 Hawthorne Street, San Francisco, CA, 94105-3901.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review. This rule applies to only one facility and is therefore not a rule of general applicability.

This action does not impose an information collection burden under the PRA. This rule applies to only one facility. Therefore, its recordkeeping and reporting provisions do not constitute a “collection of information” as defined under 44 U.S.C. 3502(3) and 5 CFR 1320.3(c).

I certify that this action will not have a significant economic impact on a substantial number of small entities. This action will not impose any requirements on small entities. Firms primarily engaged in the generation, transmission, and/or distribution of electric energy for sale are small if, including affiliates, the total electric output for the preceding fiscal year did not exceed 4 million megawatt hours. Both owners of Cholla, APS and PacifiCorp, exceed this threshold.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

This action does not have federalism implications. 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.

This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on any 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. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets EO 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards. The EPA is not revising any technical standards or imposing any new technical standards in this action.

The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. The results of this evaluation are contained in section VI above.

Pursuant to CAA section 307(d)(1)(B), the EPA proposes to determine that this action is subject to the provisions of section 307(d). Section 307(d) establishes procedural requirements specific to certain rulemaking actions under the CAA. Pursuant to CAA section 307(d)(1)(B), the withdrawal of the provisions of the Arizona Regional Haze FIP that apply to Cholla is subject to the requirements of CAA section 307(d), as it constitutes a revision to a FIP under CAA section 110(c). Furthermore, CAA section 307(d)(1)(V) provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.” The EPA proposes that the provisions of 307(d) apply to the EPA's action on the Cholla SIP revision.

In the “Rules and Regulations” section of this Federal Register, the EPA is approving the State's SIP revision as a direct final rule without prior proposal because the agency views this as a noncontroversial SIP revision and anticipates no adverse comments. A detailed rationale for the approval is set forth in the preamble to the direct final rule.

If the EPA receives no adverse comments, the EPA will not take further action on this proposed rule. If the EPA receives adverse comments, the EPA will withdraw the direct final rule and it will not take effect. The EPA will address all public comments in a subsequent final rule based on this proposed rule.

The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the ADDRESSES section of this notice.

Please note that if the EPA receives adverse comment on a distinct provision of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. See the information provided in the Direct Final action of the same title which is located in the Rules and Regulations Section of this Federal Register.

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

Organization of this document. The following outline is provided to aid in locating information in this preamble.

States are required to submit a progress report in the form of a SIP revision every five years that evaluates progress towards the RPGs for each mandatory Class I Federal area 1 (Class I area) within the state and in each Class I area outside the state which may be affected by emissions from within the state. See 40 CFR 51.308(g). In addition, the provisions under 40 CFR 51.308(h) require states to submit, at the same time as the 40 CFR 51.308(g) progress report, a determination of the adequacy of the state's existing Regional Haze SIP. The first progress report SIP is due five years after submittal of the initial Regional Haze SIP. On January 29, 2010, the New Hampshire Department of Environmental Services (NH DES) submitted the State's first Regional Haze SIP in accordance with 40 CFR 51.308.2

On December 16, 2014, NH DES submitted a revision to the New Hampshire SIP detailing the progress made in the first planning period toward implementation of the Long Term Strategy (LTS) outlined in the 2010 Regional Haze SIP submittal, the visibility improvement measured at the State's Class I areas, and a determination of the adequacy of the State's existing Regional Haze SIP. EPA is proposing to approve New Hampshire's December 16, 2014 SIP revision on the basis that it satisfies the requirements of 40 CFR 51.308(g) and (h).

Under 40 CFR 51.308(g), States must submit a regional haze progress report as a SIP revision every five years and must address the seven elements found in 40 CFR 51.308(g). As described in further detail in section III of this proposed rulemaking, 40 CFR 51.308(g) requires: (1) A description of the status of measures in the approved Regional Haze SIP; (2) a summary of emissions reductions achieved; (3) an assessment of visibility conditions for each Class I area in the state; (4) an analysis of changes in emissions from sources and activities within the state; (5) an assessment of any significant changes in anthropogenic emissions within or outside the state that have limited or impeded progress in Class I areas impacted by the state's sources; (6) an assessment of the sufficiency of the approved Regional Haze SIP; and (7) a review of the state's visibility monitoring strategy.

Under 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP, a determination of the adequacy of their existing Regional Haze SIP and to take one of the following four possible actions based on information in the progress report: (1) Submit a negative declaration to EPA that no further substantive revision to the state's existing Regional Haze SIP is needed; (2) provide notification to EPA (and other state(s) that participated in the regional planning process) if the state determines that the existing Regional Haze SIP is, or may be, inadequate to ensure reasonable progress at one or more Class I areas due to emissions from sources in other state(s) that participated in the regional haze planning process, and collaborated with these other state(s) to develop additional strategies to address deficiencies; (3) provide notification with supporting information to EPA if the state determines that its existing Regional Haze SIP is, or may be, inadequate to ensure reasonable progress at one or more Class I areas due to emissions from sources in another county; or (4) revise its Regional Haze SIP to address deficiencies within one year if the state determines that its existing Regional Haze SIP is or may be inadequate to ensure reasonable progress in one or more Class I areas due to emission from sources within the state.

On December 14, 2014, New Hampshire submitted the “Regional Haze 5-Year Progress Report” (Progress Report) to EPA as a SIP revision.

New Hampshire has two Class I areas within its borders: Great Gulf Wilderness Area (Great Gulf) and Presidential Range-Dry River Wilderness Area (Dry River), both located within the White Mountains National Forest. Emissions from New Hampshire's sources were also found to impact visibility at one nearby Class I area, Acadia National Park in Maine (Acadia). See 77 FR 11809 (February 28, 2012).

Through the consultation process, New Hampshire agreed to pursue the coordinated course of action agreed to by the Mid-Atlantic/Northeast Visibility Union (MANE-VU) 3 to assure reasonable progress toward preventing any future, and remedying any existing, impairment of visibility in the mandatory Class I areas within the MANE-VU region. These measures are: Implementation of best available retrofit technology (BART) requirements; a low-sulfur fuel oil strategy; a targeted electricity generating unit (EGU) strategy; and continued evaluation of other control measures.4 While New Hampshire did not adopt a low-sulfur fuel oil strategy for implementation during the first regional haze planning period, the State showed in its 2010 Regional Haze SIP that equivalent emission reductions were achieved through alternate measures such as recent fuel switching at a coal-fired power plant in the state (i.e., Schiller Station) and facility shutdowns.

This section summarizes each of the seven elements that must be addressed by the progress report under 40 CFR 51.308(g), and describes how New Hampshire's progress report SIP addresses each element. This section also includes EPA's analysis of New Hampshire's SIP, and our proposed determination as to whether the State satisfied each element.

The provisions in 40 CFR 51.308(g)(1) require a description of the status of implementation of all measures included in the Regional Haze SIP for achieving RPGs for Class I areas both within and outside the state. New Hampshire's 2010 Regional Haze SIP RPGs are based on: Control measures for the State's two subject-to-BART sources; control measures for one additional EGU stack; and sulfur dioxide (SO2) emission reductions from States found to be contributing to the visibility impairment at the New Hampshire Class I areas. New Hampshire's two subject-to-BART sources are Eversource Energy (formally Public Service of New Hampshire (PSNH)) Merrimack Station Unit MK2 and Eversource Energy (formally PSNH) Newington Unit NT1. Along with the two subject-to-BART units, Eversource Energy Merrimack Station Unit MK1 was identified as among the top 167 EGUs contributing to visibility impairment. New Hampshire's 2010 Regional Haze SIP included control measures for these three units. The 2014 Progress Report confirms the installation and use of flue gas desulfurization (FGD) for Merrimack Station Units MK1 and MK2; the implementation of a more stringent SO2 emission limit for Newington Station; and the implementation of more stringent emission limits for the existing oxides of nitrogen (NOX) and particulate emission control technologies in use at Merrimack and Newington Stations.

In addition, the New Hampshire 2014 Progress Report also includes the status of SO2 emission reductions from the identified top 167 EGUs outside of New Hampshire.5 The MANE-VU targeted EGU strategy called for a 90% SO2 reduction from the top contributing stacks by 2018. New Hampshire reports SO2 scrubbers have already been placed on many of the 167 targeted EGUs, while other units have seen lower utilization or have been shut down entirely.

EPA proposes that New Hampshire's analysis adequately addresses the provisions under 40 CFR 51.308(g)(1). The State demonstrates the implementation of measures within the State, including BART and targeted SO2 reductions from New Hampshire's three in-state units that were part of the contributing 167 stacks. In addition, the Progress Report documents the status of requested SO2 reductions from the remaining top 167 stacks outside of New Hampshire.

The provision under 40 CFR 51.308(g)(2) requires a summary of the emission reductions achieved in the state through the measures subject to the requirements under 40 CFR 51.308(g)(1). During the development of the Regional Haze SIP for the first planning period, MANE-VU and New Hampshire determined that SO2 was the greatest contributor to anthropogenic visibility impairment at the State's Class I areas. Therefore, the bulk of visibility improvement achieved in the first planning period was expected to result from reductions in SO2 emissions from sources inside and outside of the State. Table 6-1 of the 2014 Progress Report details the SO2 emission reduction from the 2002 New Hampshire Regional Haze SIP baseline to 2013 for not only the targeted Merrimack Station Units MK1 and MK2 and Newington Unit NT1, but all New Hampshire EGUs.6 The targeted EGU units subject to control through the installation of BART and New Hampshire's LTS show an emission reduction from 35,882 tons SO2 in 2002 to 1,729 tons SO2 in 2013, a reduction of 95%. NOX emissions from these same sources were reduced from 4,776 tons in 2002 to 2,230 tons in 2013, a reduction of 57%. All New Hampshire EGUs combined showed a 92.8% reduction in SO2 emissions and a 61.3% reduction in NOXemissions for the same time period.

EPA proposes to find that New Hampshire has adequately addressed the provision under 40 CFR 51.308(g)(2). New Hampshire has detailed the SO2 and NOX reduction from the 2002 Regional Haze baseline to the most recently available year of data at the time of the development of New Hampshire's Progress Report, 2013. In addition, NH DES highlighted SO2 and NOX emissions reductions from all New Hampshire EGUs during this same time period.

The provisions under 40 CFR 51.308(g)(3) require that states with Class I areas within their borders provide the following information for the most impaired and least impaired days 7 for each area, with values expressed in terms of five-year averages of these annual values: (1) Current visibility conditions; (2) the difference between current visibility conditions and baseline visibility conditions; and (3) the change in visibility impairment over the past five years.

New Hampshire is home to two Class I areas, Great Gulf and Dry River. The Interagency Monitoring of Protected Visual Environments program (IMPROVE) monitor within Great Gulf is representative of both New Hampshire Class I areas. In the Progress Report, NH DES provides the data for the baseline 2000-2004 5-Year Average visibility, the most recent 2009-2013 5-Year Average visibility, the 2018 RPG from the 2010 Regional Haze SIP, and the calculated visibility improvement. See Table 1.

The baseline visibility for Great Gulf was 22.8 dv on the 20% most impaired days and 7.7 dv on the least impaired days. The most recent five-year average visibility data shows an improvement of 6.1 dv on the 20% most impaired days and 1.8 dv improvement on the 20% least impaired days. The 2014 Progress Report also demonstrates that the State has already achieved and surpassed the 2018 RPG for the 20% most impaired days and ensured no visibility degradation for the 20% least impaired days for the first planning period.

EPA is proposing to find that New Hampshire provided the required information regarding visibility conditions to meet the requirements under 40 CFR 51.308(g)(3), specifically providing baseline visibility conditions (2000-2004), current conditions based on the most recently available IMPROVE monitoring data (2009-2013), and the difference between current visibility conditions and baseline visibility conditions.

The provisions under 40 CFR 51.308(g)(4) require an analysis tracking emissions changes of visibility-impairing pollutants from the state's sources by type or category over the past five years based on the most recent updated emissions inventory. In its progress report SIP to address the requirements of 40 CFR 51.308(g)(4), New Hampshire presents data from statewide emissions inventories developed for the years 2002, 2007, 2013 (EGUs only), and projected inventories for 2018 for SO2, NOX, PM2.5 and Volatile Organic Compounds (VOC).8 9 New Hampshire's emissions inventories include the following source classifications: Point EGUs, Point Non-EGUs, Area, On-road Mobile, and Non-road Mobile. From 2002 through 2013, New Hampshire's overall EGU (the largest SO2 sector) emissions were reduced from 43,962 tons per year (tpy) SO2 to 3,167 tpy, surpassing the 2018 projected goal of 10,766 tpy SO2. For NOX, from 2002 to 2007, the State achieved an overall 13% reduction from 64,625 tpy to 56,110 tpy. NH DES is projecting an additional 25,000 tpy reduction in NOX by 2018, mostly from the on-road mobile sector, which would result in approximately 31,110 tpy NOX in 2018. This estimate compares well with the 2018 projected goal of 30,369 tpy. Finally, NH DES indicates that based on the 2007 emission data, the State has already exceeded the 2018 emission reduction goals for direct PM2.5 (55% reduction) and VOCs (53% reduction).

This is a summary of the Commission's Notice of Proposed Rulemaking in IB Docket No. 16-155, adopted on June 24, 2016 and released on June 24, 2016. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center, 445 12th Street SW., Washington, DC 20554. The document also is available for download over the Internet at: http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db0624/FCC-16-79A1.pdf.

Pursuant to §§ 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated above. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the Commission's ECFS Web site at http://apps.fcc.gov/ecfs/.

• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.

1. In this Notice of Proposed Rulemaking, we propose changes to our rules and procedures related to certain applications and petitions for declaratory ruling involving foreign ownership. On May 10, 2016, the National Telecommunications and Information Administration (NTIA) filed a letter on behalf of the Executive Branch requesting that the Commission make changes to its processes that would help facilitate a more streamlined Executive Branch review process. The Executive Branch asks the Commission to require applicants seeking international section 214 authorizations or transfer of such authorizations, submarine cable landing licenses, satellite earth station authorizations, and section 310(b) foreign ownership rulings to provide certain information as part of their applications. The Executive Branch specifically asks that applicants with reportable foreign ownership provide certain information regarding ownership, network operations, and related matters, and that all applicants, regardless of whether they have reportable foreign ownership, certify that they will comply with applicable law enforcement assistance requirements and respond truthfully and accurately to lawful requests for information and/or legal process. The NTIA Letter states that such requirements will improve the ability of the Executive Branch to expeditiously and efficiently review referred applications, particularly in regard to identifying and assessing applications that raise national security or law enforcement concerns. The letter further states that the proposed certifications, in many cases, may eliminate the need for national security or law enforcement conditions, and thus facilitate expeditious responses to the Commission on specific applications.

2. Based on the NTIA Letter and the comments received, we propose specific changes in our rules, designed to address the Executive Branch's request in a manner that furthers our mandate to serve the public interest. We also propose to adopt time frames for Executive Branch review of applications and other changes to our processing rules. We seek comment on those proposed changes. We believe that implementation of these rule changes would speed the action on applications while continuing to take into consideration relevant national security, law enforcement, foreign policy, and trade policy concerns.

3. The Commission refers certain applications to the Executive Branch when there is reportable foreign ownership in the applicant. Specifically, where an applicant has a ten percent or greater direct or indirect owner that is not a U.S. citizen, Commission practice has been to refer an application for: (1) International section 214 authority; (2) assignment or transfer of control of domestic or international section 214 authority; (3) a submarine cable landing license; and (4) assignment or transfer of control of a submarine cable landing license. The Commission also refers petitions seeking authority to exceed the section 310(b) foreign ownership limits for broadcast and common carrier wireless licensees, including common carrier satellite earth stations.

4. Our understanding is that the national security and law enforcement agencies generally initiate review of an application by sending the applicant a set of questions seeking information on the five percent or greater owners of the applicant, the names and identifying information of officers and directors of companies, the business plans of the applicant, and details about the network to be used to provide services. The applicant provides answers to these threshold and any follow-up questions directly to the agencies, without involvement of Commission staff. The agencies use the information gathered through the questions to conduct their review and determine whether they need to negotiate a mitigation agreement with the applicant to address potential national security or law enforcement issues. Mitigation agreements can take the form of a letter of assurance (LOA) or a national security agreement (NSA). An LOA is a letter from the applicant to the agencies in which it agrees to undertake certain actions and that is signed only by the applicant. An NSA is a formal agreement between the applicant and the agencies and is signed by all parties.

5. Upon completion of review, the Executive Branch notifies the Commission of its recommendation in typically one of two forms. The national security and law enforcement agencies may have no comment, in which case they file a letter to this effect, and the Commission moves forward with its action on the application. Alternatively, the agencies may advise the Commission that they have no objection to the grant of an application so long as the applicant complies with the terms of the relevant LOA or NSA. In such case, a grant of the application will typically be subject to the express condition that the applicant abide by the commitments and undertakings contained in the LOA and or NSA. More specifically, a typical authorization states that a failure to comply and/or remain in compliance with any of the commitments and undertakings in the LOA or NSA shall constitute a failure to meet a condition of such authorization, and thus grounds for declaring that the authorization has been terminated under the terms of the condition without further action on the part of the Commission. See IB Public Notice, 30 FCC Rcd at 11018; see, e.g., Wypoint Telecom, Inc., Termination of International Section 214 Authorization, Order, 30 FCC Rcd 13431, 13431-32, para. 2 (IB 2015). Failure to meet a condition of the authorization may also result in monetary sanctions or other enforcement action by the Commission. 47 U.S.C. 312; 47 U.S.C. 503. A third type of notification might involve a request to deny an application on national security or law enforcement grounds. To date, the agencies have not requested that the Commission deny an application. Regardless of the type of response from the Executive Branch, the Commission acts quickly to dispose of an application after the agencies complete their review.

6. On May 12, 2016, the International Bureau released a public notice seeking comment on the May 10, 2016 NTIA Letter. Based on the NTIA Letter and the comments we have received, we identify below several proposals to make the Executive Branch review process more efficient and transparent. These include proposals that address the following requests set out in the NTIA Letter: (1) Requiring certain applicants with reportable foreign ownership to file information regarding ownership, network operations, and related matters; and (2) requiring applicants, regardless of whether they have reportable foreign ownership, to certify they will comply with certain law enforcement assistance requirements and respond truthfully and accurately to lawful requests for information and/or legal process. They also include additional proposals to establish time frames for Executive Branch review of applications and modify our processing rules. We seek comment on these and other ways to expedite the review process and increase transparency while ensuring that relevant Executive Branch concerns receive consideration as part of the Commission's public interest review.

7. TYPES OF APPLICATIONS. We propose that only certain types of applications may be required to provide the information and certifications requested by the Executive Branch in the NTIA Letter. In the NTIA Letter, the Executive Branch requests that applicants seeking international section 214 authorizations or transfer of such authorizations, submarine cable landing licenses, satellite earth station authorizations, and section 310(b) foreign ownership rulings, provide certain information and certifications as part of their applications. We currently refer to the Executive Branch applications with reportable foreign ownership for international section 214 authorizations, applications to assign or transfer control of domestic or international section 214 authority, submarine cable landing licenses and applications to assign or transfer control of such licenses, and petitions for section 310(b) foreign ownership rulings (broadcast, common carrier wireless, and common carrier satellite earth stations). We do not propose to expand the types of applications that we refer to the Executive Branch.

8. Currently, we refer applications for transfer of control of domestic section 214 authority that have reportable foreign ownership and that do not have a corresponding international section 214 transfer of control application. The NTIA Letter does not seek to review these types of applications, nor do we propose to include these applications among those we will refer to the Executive Branch or to require the requested information and certifications. We seek comment on this and whether there are situations where we should refer a domestic-only section 214 authority transfer of control application to the Executive Branch.

9. EchoStar/Hughes and SIA raise concerns that the NTIA Letter seeks to require non-common carrier earth station licenses to be subject to the information and certification requests by the Executive Branch. We have not been referring earth station applications to the Executive Branch because most earth stations are authorized on a non-common carrier basis, and we do not collect ownership information in the applications. An earth station application, however, may be included as part of a referral of associated applications, such as an international section 214 application or an assignment or transfer of control application. We propose to maintain our current practice and only refer common carrier earth station applications if the applicant requires a section 310(b) foreign ownership ruling. Consequently, an applicant for an earth station license would not be required to provide the information and certifications sought by the Executive Branch as part of its application, but would only need to provide such information as part of its section 310(b) petition if it required a foreign ownership ruling. Similarly, we propose that an applicant for a broadcast or common carrier wireless license not be required to provide the information as part of its application, but only need to provide such information as part of its section 310(b) petition if it required a foreign ownership ruling. We seek comment on whether these are the appropriate types of applications to be required to provide the information and certifications requested by the Executive Branch and be considered for referral to the Executive Branch for national security, law enforcement, foreign policy, and trade policy concerns.

10. OWNERSHIP, NETWORK OPERATIONS, AND OTHER INFORMATION REQUIREMENTS. We propose to require applicants with reportable foreign ownership to provide information on ownership, network operations, and related matters when filing their applications. For international section 214 authorizations and submarine cable landing licenses, the applicant must report all individuals or entities with a ten percent or greater direct or indirect ownership interest in the applicant. 47 CFR 1.767(a)(8), 63.18(h). For assignment or transfer of control applications, the applicant must report all individuals or entities with a ten percent or greater direct or indirect ownership interest in the applicant. 47 CFR 1.767(a)(11), 63.24. Common carrier wireless licensees, common carrier satellite earth station licensees, and broadcast licensees must seek a foreign ownership ruling if their foreign ownership would exceed the relevant benchmark set out in section 310(b) of the Act. 47 U.S.C. 310(b). The NTIA Letter states that receiving the requested information as part of an application will allow the Executive Branch to start its review of the application sooner than is possible under the current review process. We agree. We propose to require that the information be filed at the time an applicant submits its application to the Commission. We seek comment on this proposal and any alternative or additional methods to streamline the application process and increase transparency, while providing the Executive Branch with the information needed to conduct its national security and law enforcement review.

11. Categories of Information. Under the current process, the questions asked of applicants by the Executive Branch require information that is not included in the applications submitted to the Commission. The NTIA Letter states that the relevant agencies need answers to these questions to evaluate whether an application may raise national security or law enforcement concerns. The questions may vary depending on the specifics of the application. The applicant generally cannot prepare answers in advance of receiving the questions. Because tailoring the questions sent to each applicant takes time, there often is some delay between when the Commission refers the application and when the agencies send questions to the applicant. The NTIA Letter notes that there is currently no required timeline on the applicant's response to the questions. Thus, it may take the Executive Branch additional time to obtain complete answers from applicants, which adds delay. The agencies also may have follow-up questions for the applicant upon review of the initial set of answers. This, among other factors, can lead to longer time periods for review.

12. To help ensure that the relevant departments and agencies have the information needed to review an application promptly, the Executive Branch requests that we require applicants with reportable foreign ownership seeking international section 214 authorizations or transfer of such authorization, submarine cable landing licenses, and satellite earth station authorizations, as well as petitioners for section 310(b) foreign ownership rulings, to provide as part of their applications detailed and comprehensive information in the following areas:

(1) Corporate structure and shareholder information;

(2) Relationships with foreign entities;

(3) Financial condition and circumstances;

(4) Compliance with applicable laws and regulations; and

(5) Business and operational information, including services to be provided and network infrastructure.

13. The Executive Branch asks the Commission “to adopt requirements that focus on the above categories of information to be collected, while also providing sufficient flexibility for the Commission to prescribe and, as necessary, modify the specific questions posed to applicants.” The Executive Branch recommends that the Commission propose and seek comment on specific questions through an information collection process consistent with the Paperwork Reduction Act of 1995 (PRA) process. For illustrative purposes, the Executive Branch also filed sample questions that show the types and extent of the information it seeks to obtain. The introductory language for the sample questions states that the questions seek “information regarding the business organization and services, network infrastructure, relationships with foreign entities or persons, historical regulatory and penal actions, and capabilities to comply with applicable legal requirements, and would be shared with relevant Executive Branch departments and agencies to assist in the review of public interest factors.”

14. The NTIA Letter states that this information is necessary for the agencies to assess whether an application with reportable foreign ownership raises national security or law enforcement concerns, including preventing abuses of U.S. communications systems, protecting the confidentiality, integrity and availability of U.S communications, protecting the national infrastructure, preventing fraudulent or other criminal activity, and preserving the ability to effectuate legal process for communications data. It states that receiving the information at the time of referral, rather than having to request it after referral, will help the Executive Branch begin review of the application promptly after referral. Commenters state that requiring these categories of information may help expedite the process, but may go beyond the information the Executive Branch currently requests. For example, one commenter asserts that seeking information on financial condition and circumstances and compliance with applicable laws and regulations “seems far outside the scope of [the Executive Branch's] review of applications for `national security, law enforcement, foreign policy, or trade concerns.'” Others argue that the requested information is duplicative of information provided as part of the Commission's application. We seek comment on this request and on the proposed categories of information. Are there more narrowly tailored questions that can adequately serve the goals sought in the NTIA Letter? Are there additional questions that should be included, and, if so, what are those questions?

15. Information Filing. We propose to require applicants with reportable foreign ownership seeking an international section 214 authorization or a submarine cable landing license or to assign or transfer control of such authorizations, and petitioners for section 310(b) foreign ownership rulings (common carrier wireless, common carrier satellite earth stations, or broadcast) to provide the information requested by the NTIA Letter at the time they file their applications or petitions. We seek comment on whether there are situations where an applicant should not be required to file the information. For example, should the Commission require an applicant to provide such information when the applicant has an existing LOA or NSA and there has been no material change in the foreign ownership since it negotiated the LOA or NSA? Should non-facilities-based carriers be subject to the information request?

16. Publicly Available Questions. We propose that the Commission retain flexibility regarding the specific questions to be answered and thus propose to include in the rules the categories of questions to be answered but not to place the specific questions in the rules. The NTIA Letter urges the Commission to adopt requirements that focus on the categories of information to be collected so as to afford the Commission flexibility to vary the specific questions as appropriate to the circumstances at the time. The NTIA Letter notes that the specific questions would be subject to the PRA as an information collection. We propose to adopt the approach described in the Executive Branch request, and after the new rules are adopted, we would start a PRA process with the specific questions, and then make the questions publicly available on a Web site as a downloadable document so it is readily available to applicants. This approach would be similar to our practice of outlining the requirements for an application in our rules and then including specific questions that elicit the required information during the PRA process to adopt the forms for filing the application. If we adopt this proposal, applicants and other interested parties will have the opportunity to comment on the specific questions during the PRA review process. We seek comment on this proposal.

17. We also seek comment on whether the use of a publicly available set of standardized questions for which the answers must be provided at the time of filing an application will help to streamline the Executive Branch review process. For instance, will the inclusion of responses to the standardized questions at the time the application is filed result in more timely review than the use of individualized questions that are sent to the applicant after the application has been filed? Many of the commenters support having the questions publicly available and the answers provided at the time the application is filed, stating that this should expedite Executive Branch review. CTIA, while supporting publicly-available standardized questions, recommends that the answers not be provided when the application is filed because the answers would likely delay and complicate applications. CTIA instead suggests that applicants “certify in their application that they will provide complete responses to the questionnaire within a particular time frame after filing the application.” We seek comment on whether the answers should be provided when the application is filed with the Commission, and if not, how a later filing would serve the goal of expediting Executive Branch review of the applications.

18. We propose that, although the questions would be standardized, they vary by category of application. For example, an applicant for an international section 214 authorization would not be required to provide information about cable landing location sites. We also seek comment on whether there is information that the Executive Branch may require that cannot be provided when an application is filed, but which could be made available later in the review process. For example, Level 3 notes that submarine cable landing applicants usually cannot provide answers to all the questions at the time the application is filed. Should an application be considered complete and acceptable for filing if there is information that an applicant cannot provide at the time of filing? Are there specific questions for submarine cable applicants or other applicants that should not be required at the time the applicant files?

19. FCC Review of Responses. We propose that, as part of our review of an application for acceptability for filing, the Commission staff review the responses to the threshold questions for completeness, but leave the substantive review to the Executive Branch. CTIA and Level 3 question the usefulness of submitting the answers to the Commission and suggest that they be sent directly to the Executive Branch. We seek comment on whether the Commission should receive and/or review the answers in the first instance. We seek comment on what Commission staff should look for to determine if the responses are sufficient to find the application acceptable for filing. We also seek comment on alternatives if Commission staff does not review the responses to the questions. For example, should we require a certification that the applicant has provided the responses to the Executive Branch at the time of filing or will do so within a specified period of time? If so, what would be an appropriate period? If the Commission staff does not review the responses, how would that affect the proposed time frames for Executive Branch review? When would the 90-day period for the review start if the Executive Branch has to go back and forth with the applicant to get complete responses to the questions?

20. We recognize that the responses to some of these threshold questions may contain confidential commercial information. Some of the threshold questions would seek personally identifiable information (PII). Any questions that seek PII would require the Commission to assess whether by obtaining and using such PII it would be creating a system of records under the Privacy Act. 5 U.S.C. 552a. With respect to any information we may receive that includes PII, we intend to comply fully with the requirements of that statute and related statutes that protect PII. The Commission's rules provide a mechanism for requesting confidential treatment of such information. Under these rules, such information will be accorded confidential treatment until the Commission acts on the confidentiality request and all subsequent agency review and judicial stay proceedings have been exhausted. To the extent the information qualifies as trade secrets or confidential commercial or financial information that is exempt from disclosure under the Freedom of Information Act, our rules require a “persuasive showing” for public release of the information, showing among other factors that the information is relevant to a public interest issue before the Commission. In application proceedings, the Commission may rely upon protective orders to limit disclosure and use of competitively sensitive and other confidential information. We seek comment on whether these established procedures serve to provide appropriate protections in such situations. Given the scope of this information, the likelihood that some of it may already be public, and the relevance of context in evaluating competitive concerns, we do not propose to designate such information in our rules as the kind that is presumed confidential and therefore does not require the filing of a request for confidentiality. We seek comment on this view. We seek comment on whether some of this information can be presumed to be confidential and request that commenters specify which types of information should be presumed confidential.

21. If we require the responses to the questions to be filed with the Commission, we seek comment on whether the Commission should take special steps to ensure that the responses to threshold questions submitted by applicants are secure, such as having applicants submit their responses through a secure portal. We note that the Commission has experience in receiving confidential information and sharing that information with other agencies. Currently, the Commission has in place secure portals, such as the Network Outage Reporting System (NORS). We would anticipate developing a similar system to facilitate the receiving, reviewing, sharing, and generally storing any confidential or sensitive information in the applicants' submissions in response to the threshold questions. We also invite suggestions about other heightened security measures that the Commission can undertake to ensure the protection of the information submitted by applicants.

22. In this case, our proposals contemplate sharing of confidential information submitted as part of the application with Executive Branch agencies, who would continue to review it in the first instance for national security, law enforcement, foreign policy, and trade policy concerns. Under our rules, such sharing is subject to the requirement that the Executive Branch agencies must comply with the protections applicable both to the Commission and to themselves relating to the unlawful disclosure of information. Because current practice already involves submission of similar information for review by these agencies, and in light of their legitimate need for the information, we propose to amend section 0.442 of the Commission's rules to make clear that sharing with Executive Branch agencies under these restrictions is permissible without the pre-notification procedures of that rule. We seek comment on this proposal. Are the obligations of the various Executive Branch agencies different than the Commission's obligation to protect the information? If so, what are the differences and what is the possible impact of those differences?

23. We seek comment on whether there are reasons why the Commission should or should not undertake the initial review of the answers for completeness. We seek comment on whether there are concerns with Commission staff receiving, reviewing, storing, and forwarding to the Executive Branch such personally identifiable and business sensitive information. What are the benefits and burdens of the Commission receiving and reviewing the threshold questions? We invite suggestions on heightened confidentiality protections for sensitive and proprietary financial, operational, and privacy related information that applicants would provide as part of the Commission's application process.

24. CERTIFICATION REQUIREMENTS. We propose to add a certification requirement to our rules, and seek comment on the scope of this proposal. The Executive Branch requests that the Commission require all applicants to certify that they agree to comply with several mitigation measures, as discussed below. The NTIA Letter states that requiring an applicant to certify to compliance with these measures as part of its application should reduce the need for routine mitigation, which should facilitate a faster response to the Commission by the Executive Branch on its review and advance the shared goal of making the Executive Branch review process as expeditious and efficient as possible.

25. The NTIA Letter observes that national security and law enforcement review frequently requires time both to negotiate assurances from an applicant that it will comply with applicable law enforcement assistance requirements and to draft an individualized LOA upon which the Executive Branch will rely to address national security and law enforcement concerns. It states that the proposed certification would simplify and expedite the review process. The Executive Branch therefore requests that an applicant certify that, with respect to the communications services to be provided under the requested license or authorization, it will:

(1) Comply with applicable provisions of the Communications Assistance for Law Enforcement Act (CALEA);

(2) make communications to, from, or within the United States, as well as records thereof, available in a form and location that permits them to be subject to lawful request or valid legal process under U.S. law, for services covered under the requested Commission license or authorization; and

(3) agree to designate a point of contact located in the United States who is a U.S. citizen or lawful permanent resident for the execution of lawful requests and/or legal process.

26. Eliminating the Need to Negotiate LOAs. We believe that eliminating the need to negotiate LOAs for routine mitigation measures should help to streamline the Executive Branch review process and provide the opportunity to allocate resources to resolution of more complicated applications. Our experience shows that in 2014 almost half (13 of 29) of all mitigation agreements filed with the Commission concerned only issues that would have been adequately addressed by the certification requirement; in 2015, the figure was over half (17 of 29). We encourage those who have had experience in negotiating routine LOAs that cover compliance with CALEA and other law enforcement assistance requirements to address whether and in what ways and by how much time the proposed certifications might have expedited Executive Branch review of their applications.

27. Applicants. We seek comment on the Executive Branch request that all applicants seeking an international section 214 authorization or a submarine cable landing license, or applications to assign or transfer control of such authorizations, and petitioners for section 310(b) foreign ownership rulings (common carrier wireless, common carrier satellite earth stations or broadcast) be required to make the foregoing certifications, not just those applicants with reportable foreign ownership. Specifically, we seek comment on the premise that the certification requirement would address legitimate law enforcement concerns that should apply regardless of foreign ownership. We note that extension of this requirement to all applicants would encompass the vast majority of such applications, including many that do not require Executive Branch review. Several commenters oppose requiring applicants that do not have reportable foreign ownership to make the requested certification. For example, CTIA argues that the NTIA letter “does not explain why [the proposed] certifications should be extended to all applicants” when the Executive Branch review process is currently limited to applicants with reportable foreign ownership. In addition, T-Mobile claims that “[t]here is no basis to require applicants without cognizable foreign ownership to submit to these new requirements.” Moreover, USTelecom contends that applicants should not have to “submit up front information or certifications if their applications have no meaningful nexus to national security, law enforcement, foreign policy, or trade concerns,” which are the main reasons behind the Executive Branch review. We seek comment on their concerns. Are there reasons why the certification should apply only to applicants with reportable foreign ownership? How would requiring certifications from all applicants expedite the review of applications with reportable foreign ownership? Would distinguishing between applicants with reportable foreign ownership and those without foreign ownership raise concerns with any U.S. treaty obligations, such as the non-discrimination/national treatment obligations common to U.S. free trade agreements? We invite comments on whether the benefits of the certifications outweigh the burdens related to compliance with the requirement.

28. Extent of Current Laws and Obligations. We seek comment on whether, and in what ways, the proposed certifications might add any new requirements beyond those set out in the applicable statutes and rules. The NTIA Letter states that the requested certification essentially reflects current laws and obligations. Several commenters disagree, arguing that the certifications go beyond the existing obligations of carriers under current statute and rules. For example, CTIA contends that the second proposed certification could be interpreted as requiring carriers to “take steps beyond what is currently required to assist with breaking security measures on customers' accounts and devices.” In particular, T-Mobile and Wiley Rein are concerned that the certification is broad enough to be read as prohibiting encryption, establishing duties to decrypt, and requiring disclosure to government agencies that is not legally compelled. T-Mobile further contends that the “certification language also appears to be trying to improperly enforce localization and repatriation in the United States,” running contrary to the Commerce Department's policy of favoring the “free flow of information.” USTelecom ultimately finds that some certifications such as the second certification are “subject to differing legal interpretation and potential legal challenge,” making their “validity and wisdom . . . unclear.” We seek comment on these concerns as well as alternatives to the second certification offered by these parties, such as T-Mobile's proposal that it should be limited to compliance with obligations otherwise established in statute or regulation. We also seek comment on whether there are conflicts between U.S. law and other laws applicable to communications made to or from other countries or records associated therewith, and if so how should applicants resolve any such conflicts? Would the proposed certifications raise foreign policy or other concerns regarding potential reciprocal demands by foreign regulatory authorities on U.S. entities? Would this burden vary by the type of license or authorization to which the certification applies? What experience have prior applicants had with any similar provisions under existing LOAs or NSAs?

29. We also seek comment on whether the certifications regarding compliance with CALEA and making communications within the United States as well as records thereof available in a form and location that permits them to be subject to lawful request or valid legal process under U.S. law, should be applied to all applicants or only applied to certain applicants. We also seek comment on whether the certifications regarding compliance with CALEA and making communications within the United States, as well as records thereof, available in a form and location that permits them to be subject to lawful request or valid legal process under U.S. law should be applied more narrowly than proposed in the NTIA Letter. Should they only apply to common carrier licensees? For example, the Broadcaster Representatives argue that the CALEA compliance and intercept capabilities have nothing to do with broadcasting, or with broadcast licensees or applicants that file a petition for a foreign ownership ruling under section 310(b). The Broadcaster Representatives state that broadcasters “do not have compliance obligations” under CALEA and recommend the Commission consider differentiating the requirements in the broadcast context. We seek comment on considerations of the scope and implications of the certifications proposal.

30. TIME FRAMES FOR EXECUTIVE BRANCH REVIEW. We propose to adopt a 90-day period for the Executive Branch to complete its review of referred applications and petitions. In rare instances, we propose to allow a one-time additional 90-day extension provided the Executive Branch demonstrates that issues of complexity warrant such an extension and provides to the Commission the status of its review every 30 days thereafter. We also propose that the time period would start from the date the application is placed on the Commission's acceptable for filing public notice. We believe that time frames will bring additional clarity and certainty to the review process. Such transparency would benefit the Commission and applicants alike, by keeping all parties better informed of the application's status and facilitating expectations for resolution of pending cases. Several commenters agree, stating that time frames (including a 90-day period) should be established for Executive Branch review in order to promote transparency and certainty of action. Because these time frames will affect multiple types of applications with requirements that are set out in different parts of the Commission's rules, we propose to establish a new subpart U in Part 1 of the rules for referral of applications to the Executive Branch.

31. Acceptability for Filing. Under our proposal, Commission staff will review the application to ensure it is acceptable for filing. If the threshold questions have been answered, the certification is complete, and the application otherwise complies with our rules, the Commission proposes to place the application on public notice, with appropriate protections, and forward the application, including the answers to the threshold questions, to the Executive Branch. In instances where the Commission finds that any of the threshold questions have not been answered or the certification is incomplete, we propose that the Commission notify the applicants and give them a reasonable time to respond. We seek comment on what a reasonable time frame should be (such as, for example, seven days). Failure to respond within the time frame will be grounds for dismissal of the application without prejudice to refiling. We seek comment on this proposal and any other recommendations on the process to ensure transparency to the public and applicants and to promote an efficient review process. One commenter suggested that to enhance transparency, applicants should have names and contact information of the individuals in the Executive Branch who are reviewing their applications. We seek comment regarding whether the Executive Branch agencies should identify a single point of content or point agency for referral of applications and any inquiries the Commission or applicants have during the course of the Executive Branch review process for any given application. In the alternative, we seek comment on whether each participating agency should identify its own point of contact. If obtained, we propose to provide Executive Branch contact information on our Web site along with the standardized national security and law enforcement questions. We seek comment on this proposal.

32. Non-Streamlined Processing. We propose to process on a non-streamlined basis international section 214 and submarine cables applications with foreign ownership that are referred to the Executive Branch for review. Streamlined processing of an international section 214 application means that the application is granted on the 14th day after the application is placed on public notice. Based on our experience, the Executive Branch needs time to review an application and streamlined processing, particularly a 14-day process, does not provide sufficient time for such a review. The Commission previously has made such a determination in the context of submarine cable landing licenses, where it found that a 14-day review period was insufficient due to the need to coordinate such licenses with the State Department. Moreover, the Executive Branch regularly requests that we remove applications from streamlined processing as it cannot complete its review in that short of a time period. We believe it would be beneficial to the applicant, the Commission, and the Executive Branch agencies to process the applications as non-streamlined from the beginning rather than to initially process the application on a streamlined basis and then remove it from streamlining. This should provide more transparency as to the process for those applications referred to the Executive Branch for review. We seek comment on this proposal and seek suggestions on alternative changes to our processing of applications. We propose to remove from streamlining any transactions involving joint domestic and international section 214 authority where foreign ownership of the international 214 authorization alone would be cause for non-streamlined processing. In such cases, we see no reason to streamline one part of the transaction (domestic 214 authority) while another part (international 214 authority) is not streamlined. We seek comment on these proposals and seek suggestions on alternative changes to our processing of applications.

33. 90-Day and 180-Day Time Frames for Executive Branch Review. We propose a 90-day review period for applications referred to the Executive Branch, with a one-time additional 90-day extension for circumstances where the Executive Branch requires additional review time beyond the initial period. Many of the commenters support a 90-day review period. We expect that many of the referred applications will be processed within the initial comment period because the certification requirement should obviate the need for negotiating LOAs related to compliance with routine law enforcement requirements. We will refer applications with reportable foreign ownership to the Executive Branch upon release of the public notice, and we propose that, at that time, the 90-day clock would begin. Currently, only applications concerning international section 214 authorizations—either initial applications for authority or applications for assignment or transfer of authority—that qualify for streamlined processing pursuant section 63.12 are referred to the Executive Branch prior to the application being placed on public notice. 47 CFR 63.12. In those cases, the applications have been referred to the Executive Branch generally a week prior to release of the public notice, and the Executive Branch is requested to notify the Commission prior to the automatic grant of the application if it wishes to review the application. Commenters support starting the clock when the application either is referred to the Executive Branch or placed on an accepted for filing public notice.

34. In keeping with current practice, we propose to continue to request that the Executive Branch notify us within the comment period established by the public notice if it will require additional time to review the application (i.e., beyond the comment period established by the public notice). Any request to defer Commission action beyond the public notice period pending national security, law enforcement, foreign policy, and trade policy review would be filed in the public record for the application. If the Executive Branch asks us to defer action on an application beyond the public comment period for the application, we propose a timetable for completing its review within 90 days of the release of the accepted-for-filing public notice. Should the Executive Branch complete review prior to the end of the 90-day period, we propose that it should notify the Commission at the time the review is complete. If the Executive Branch does not notify the Commission within the 90-day period that it is requesting additional time to review the application, we propose to deem that it has not found any national security, law enforcement, foreign policy, or trade policy issues present, and we will move ahead with Commission action on the application. Commenters agree with this approach. We seek comment on this proposal and on any alternative proposals for processing such applications.

35. A 90-day period is consistent with the existing timelines for action on non-streamlined international 214 and cable landing license applications. Moreover, a 90-day review period is consistent with review periods used by other agencies as well. For example, CFIUS conducts national security reviews of mergers, acquisitions, and takeovers by, or with, any foreign person that could result in foreign control of a U.S. business (a “covered transaction”) under a similar time frame. After an organization submits notice of a transaction to the Committee, CFIUS has up to 90 days to complete its review of the transaction.

36. We recognize that, in some unusual cases, the Executive Branch may need more than 90 days to investigate and/or resolve any national security, law enforcement, foreign policy, or trade policy issues. Allowing the Executive Branch up to an additional 90 days (i.e., 180 days total from the date of public notice and referral) for review would be consistent with our rules regarding international section 214 and cable landing license applications that provide the Commission an additional 90 days' review in cases of extraordinary complexity.

37. Under our proposal, the Executive Branch would complete its review within the 90-day period or notify the Commission no later than the initial 90-day date that it requires additional time for review and, every 30 days thereafter, would notify the Commission on the status of review. We propose that the notification would explain why the Executive Branch requires additional time to complete review, along with an estimate of the additional time required. We invite comment on factors that would provide a basis for an extension. If the explanation includes classified or other information that should not be made public, the agencies would have the ability to file a short statement in the public record, and provide a more thorough explanation to Commission staff in a non-public record.

38. We seek comment on the proposed 90-day and 180-day time periods. Are these appropriate? Should they apply to all the applications that are referred to the Executive Branch or should there be different time periods for different types of applications? If different periods should be adopted, what would be the rationale for such a distinction and what would be an appropriate period?

39. Follow-Up Questions. As discussed above, the period for Executive Branch review would begin when the application goes on public notice and is referred to the Executive Branch. After receiving an applicant's answers to the threshold questions, there may be situations, as there are under the current process, when the agencies will need to seek additional information or clarification from the applicant to conduct their national security, law enforcement, foreign policy, and trade policy review. As is the current practice, we propose that the agencies engage directly with the applicant regarding any follow-up information requests, and that the applicant send its answers to the follow-up requests directly and solely to the agencies, but that the Commission could request copies of such answers in its discretion. To ensure that the time frames for Executive Branch review can be maintained, we propose that the applicant be required to respond to the agencies' requests for information within seven days. If the applicant does not provide the requested information on time, we propose that the Commission have the discretion to dismiss the application without prejudice. We propose that the Executive Branch would need to notify the Commission when an applicant fails to provide supplemental information within seven days. The applicant would have the option of asking for additional time to respond, but that would stop the 90-day review clock until the applicant provides the requested information. We propose that a request for additional time to provide supplemental information be submitted by the applicant directly to the Executive Branch with a copy submitted to the Commission.

40. We also propose to place similar requirements on the applicant to be responsive to requests by the agencies to negotiate mitigation, a process which we expect to occur within the 90-day review period following referral of an application, as discussed in the paragraphs above. Thus, under this proposed approach, an applicant would have seven days after receiving a draft mitigation agreement to respond to it (either by signing it or offering a counter-proposal). If an applicant desires more than seven days to respond to the draft mitigation agreement, it must submit an extension request directly to the Executive Branch. The 90-day clock would stop for the duration of the extension, just as it would stop for extensions to respond to follow-up questions. Negotiation of the mitigation agreement could involve several rounds of seven-day review periods (or longer if extensions are sought) if multiple drafts and counter-proposals are exchanged. Failure of an applicant to respond within the seven days or any approved extension period would result in dismissal of the application, without prejudice. We seek comment on these proposals. In particular, we request comment on whether seven days is sufficient time to respond to follow-up questions, and what impact allowing a longer period would have on the 90-day period for Executive Branch review.

41. CATEGORIES OF REFERRALS. Although we propose to continue to refer certain applications to the Executive Branch agencies, we seek comment on whether there are categories of applications with foreign ownership that the Commission should generally not refer to the Executive Branch. For example, currently the Commission does not refer a pro forma notification because by definition there is no change in the ultimate control of the licensee. Under section 63.24(f), carriers may submit post-transaction notifications for non-substantial, or pro forma, transfers and assignments in which no change in the actual controlling party occurs. 47 CFR 63.24(f). Thus, for example, where the owner maintains de facto control of the carrier, less than 50 percent of the carrier's voting interests changes hands, and no new party gains negative or de jure control as a result of the transaction or series of transactions, the transaction would constitute a pro forma transfer of control. See Amendment of Parts 1 and 63 of the Commission's Rules, IB Docket No. 04-47, Report and Order, 22 FCC Rcd 11398, 11411, para. 36 (2007). Under section 63.24(f), the carrier can notify the Commission of the transaction after the transfer is completed. Several commenters support exclusion of pro forma notifications from the referral process. TelePacific asserts that applications for transactions that involve resellers with no facilities should not be referred to the Executive Branch. If the Commission adopted this position, how would the Commission know that no facilities are being assigned/transferred in the proposed transaction? Are there other categories of applications that the Commission should generally not refer to the Executive Branch, such as when the applicant has an existing LOA or NSA and there has been no change in the foreign ownership since the Executive Branch and applicant negotiated the relevant LOA or NSA? We also seek comment on whether the Commission might review and not refer to the Executive Branch certain categories of applications. How would this process work and which categories of applications might be included? Would internal Commission review for national security and law enforcement concerns serve to expedite the processing of applications?

42. OTHER CHANGES TO THE APPLICATION PROCESS. We also propose other revisions to the application process to streamline the review process. First, we propose to amend our rules to clarify that applicants for international section 214 authorizations, assignments or transfers of control of domestic or international section 214 authority, and applications for submarine cable landing licenses or to assign or transfer control of such licenses must include in their applications the voting interests, in addition to the equity interests, of individuals or entities with ten percent or greater direct or indirect ownership in the applicant. Second, we propose to require these applicants to include in their applications a diagram of the applicant's ownership, showing the ten percent or greater direct or indirect ownership interests in the applicant. We believe that these two rule revisions will facilitate faster review of applications by Commission staff.

43. The current rules require applicants to provide the name, address, citizenship, and principal businesses of any individual or entity that owns directly or indirectly at least ten percent of the equity of the applicant. These rules originated when equity and voting ownership were usually the same. Today, applicants often have multiple classes of ownership and equity interests that differ from the voting interests. It is important for the Commission to know for potential control purposes who has voting interests in the applicant. The Commission has recognized this in other rules, where it requires an applicant to provide both equity and voting interests in an applicant. Although most applicants provide the voting information in their international section 214 and submarine cable license applications, others do not. If the filing does not provide information about the voting interests, either by providing separate equity and voting share information or noting that the voting interests track the equity interests, it is the practice of Commission staff to contact applicants and request the information. Having to request this information delays review of the application. We seek comment on this proposal to include applicant's applicable voting interests.

44. We also believe that inclusion of a diagram showing the ten-percent-or-greater interests in the applicant can help speed the processing of an application. Many applicants have complex ownership structures, particularly those with private equity ownership. A diagram can help distill a lengthy description of an ownership structure and make it more easily understood. The Commission has found this especially helpful in the context of foreign ownership petitions and recently included such a requirement in the rules regarding the contents of a request for declaratory ruling under section 310(b) of the Act. While many applicants already provide ownership diagrams in their applications, Commission staff often request such a diagram from an applicant after the application has been filed. We believe that requiring the application to include the diagram would impose a minimal burden on applicants which would be offset by the Commission staff's ability to process applications more expeditiously. We seek comment on this proposal.

45. Finally, we propose a clean-up edit to the cable landing license rules. In 2014, the Commission removed the effective competitive opportunities test for cable landing licenses. The Commission at that time failed to amend the reporting requirement for licensees affiliated with a carrier with market power in a cable's destination market to remove the limitation that it apply only to destination markets in World Trade Organization (WTO) Member countries. We propose to remove that limitation and apply the reporting requirements to licensees affiliated with a carrier with market power in a cable's destination market for all countries, whether or not they are a WTO Member. We seek comment on this proposal.

46. CONCLUSION. The Commission seeks to streamline and to bring more transparency to the Executive Branch referral process while continuing to give consideration to relevant national security, law enforcement, foreign policy, and trade policy concerns. We seek comment on the proposals we make to implement the suggestions submitted by the Executive Branch. We also seek comment on establishing appropriate time frames for Executive Branch review of an application with reportable foreign ownership and other changes to our processing rules. We tentatively conclude that implementation of these proposals would provide for more timely and transparent review while ensuring that relevant national security, law enforcement, foreign policy, and trade policy concerns receive consideration.

47. This document contains new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document, as required by the Paperwork Reduction Act of 1995, Public Law 104-13. Public and agency comments are due September 19, 2016. Comments should address: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and (e) way to further reduce the information collection burden on small business concerns with fewer than 25 employees. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

48. As required by the Regulatory Flexibility Act (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities by the policies and rules proposed in this Notice of Proposed Rule Making (NPRM). We request written public comments on this IRFA. Commenters must identify their comments as responses to the IRFA and must file the comments by the deadlines provided in the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration. In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

49. This NPRM seeks comment on the proposed changes to our rules and procedures related to the review of certain applications and petitions for declaratory ruling involving foreign ownership by the Executive Branch agencies. The Commission's objective is to improve the timeliness and transparency of the Executive Branch review process. Industry has expressed concern about the uncertainty and lengthy review times that make it difficult to put a business plan in place. In response, the Executive Branch agencies filed a letter requesting the Commission make changes to its processes that would help facilitate a more streamlined review. The proposed rules seek to remedy the uncertainty and time frame for review.

50. The NPRM proposes several changes to our rules. Specifically, it proposes to:

51. The proposed action is authorized under sections 4(i), 4(j), 214, 303, 309, 310 and 413 of the Communications Act as amended, 47 U.S.C. 154(i), 154(j), 214, 303, 309, 310 and 413, and the Cable Landing License Act of 1921, 47 U.S.C. 34 through 39, and Executive Order No. 10530, section 5(a) reprinted as amended in 3 U.S.C. 301.

52. The RFA directs agencies to provide a description of, and, where feasible, an estimate of, the number of small entities that may be affected by the rules adopted herein. Below, we describe and estimate the number of small entity applicants that may be affected by the adopted rules.

1. Wired Telecommunications Carriers.

2. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers.

3. Interexchange Carriers (IXCs).

4. Prepaid Calling Card Providers.

5. Local Resellers.

6. Toll Resellers.

7. Other Toll Carriers.

8. Wireless Telecommunications Carriers (except Satellite).

9. All Other Telecommunications.

10. Satellite Telecommunications and All Other Telecommunications.

11. Radio Broadcasting.

53. The NPRM proposes a number of rule changes that would affect reporting, recordkeeping and other compliance requirements for applicants who file international section 214 authorizations, submarine cable landing licenses or applications to assign or transfer control of such authorizations, and section 310 rulings (common carrier wireless, common carrier satellite earth stations or broadcast) (applicants). The proposed threshold questions request information already routinely asked by the Executive Branch agencies after filing the application but the proposed rules will require applicants with reportable foreign ownership to submit answers to the threshold questions at the time of filing their FCC application. Information requested will be on: Corporate structure and shareholder information; relationship with foreign entities; financial condition and circumstances; compliance with applicable laws and regulations; and business and operational information, including services to be provided and network infrastructure. Applicants would have a time frame by when they need to respond to any follow-up questions relevant to the application. Applicants would also be required to certify that they will comply with the Communications Assistance to Law Enforcement (CALEA); will make communications to, from, or within United States, as well as records thereof, available in a form and location that permits them to be subject to a valid and lawful request or legal process in accordance with U.S. law; certify that applicants would designate a point of contact in the U.S. that is a U.S. citizen or lawful permanent resident; certify that all information at time of submission is accurate and notify when information submitted is no longer accurate; and if an applicant fails to fulfill obligations contained in certifications they will be subject to all remedies available to the United States Government.

54. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

55. In this NPRM, the proposed changes for Executive Branch's review of FCC applications involving foreign ownership would help improve the timeliness and transparency of the review process, thus lessening the burden of the licensing process on all applicants, including small entities. The threshold questions would be publicly available, thus providing transparency and helping expedite Executive Branch's review. The proposed certifications will help reduce the need for routine mitigation, which should facilitate a faster response by the Executive Branch on its review and advance the shared goal of making the Executive Branch review process as efficient as possible. Time frames for review of FCC applications referred to the Executive Branch have also been proposed, which will help prevent unnecessary delays and make the process more efficient and transparent, which ultimately benefits all applicants, including small entities.

56. The NPRM seeks comment from all interested parties. The Commission is aware that some of the proposals under consideration may impact small entities. Small entities are encouraged to bring to the Commission's attention any specific concerns they may have with the proposals outlined in the NPRM.

57. The Commission expects to consider the economic impact on small entities, as identified in comments filed in response to the NPRM, in reaching its final conclusions and taking action in this proceeding.

58. Our proposed rules require applicants to certify that they will comply with federal rules related to assistance to law enforcement. Some of the federal rules that may duplicate with our proposed rules are:

1. Communications Assistance to Law Enforcement Act. 47 U.S.C. 1001 through 10.

2. Wiretap Act. 18 U.S.C. 2510 et seq.

3. Stored Communications Act. 18 U.S.C. 2701 et seq.

4. Pen Register and Trap and Trace Statute. 18 U.S.C. 3121 et seq.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR parts 0, 1, and 63 as follows:

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary. The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. The Council has submitted Amendment 113 to the Secretary for review. This notice announces that proposed Amendment 113 to the FMP is available for public review and comment.

Amendment 113 to the FMP was adopted by the Council in October 2015. The objective of Amendment 113 is to modify the BSAI Pacific cod fishery to prioritize the harvest of a portion of the Aleutian Islands Pacific cod TAC by catcher vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch for processing to Aleutian Islands shoreplants, thereby supporting social and economic development in the western Aleutian Islands fishing communities in which those vessels operate and shoreplants are located. The harvest set-aside would provide the opportunity for Aleutian Islands catcher vessels, shoreplants, and the communities where Aleutian Islands shoreplants are located to receive benefits from a portion of the Aleutian Islands Pacific cod fishery, while the notification and performance requirements would preserve an opportunity for the complete harvest of the BSAI Pacific cod resource.

A combination of physical, biological, economic, and management factors, such as the relatively low Pacific cod stock abundance in the Aleutian Islands and the potential influx of excess at-sea processing capacity from rationalized fisheries, have affected harvesting and processing opportunities for Pacific cod for some participants in the Aleutian Islands and created the risk that Aleutian Islands fishing communities may not be able to sustain their participation in the Aleutian Islands Pacific cod fishery. The Council determined that Amendment 113 is necessary to provide benefits and stability to fishery-dependent fishing communities in the Aleutian Islands. Amendment 113 is consistent with long-standing policies recommended by the Council and regulations established by NMFS to provide harvesting and processing protections for non-rationalized fisheries and opportunities for fishing communities engaged in fisheries in the Aleutian Islands.

If approved, Amendment 113 would amend four sections of the FMP as described below. First, a new row entitled “Aleutian Islands Catcher Vessel Harvest Set-Aside” would be added to Table ES-2 in the Executive Summary, below the row entitled “Retention and Utilization Requirements”, to read, “Under certain conditions, up to five thousand metric tons of the AI Pacific cod TAC (excluding CDQ) is reserved exclusively for harvest by vessels directed fishing for AI Pacific cod and delivering their catch for processing to Aleutian Islands shoreplants west of 170 degrees W. long. from January 1 through March 15.” This harvest set-aside would be referred to as the “Aleutian Islands Catcher Vessel Harvest Set-Aside” in regulations.

Second, Amendment 113 would make two modifications in Section 3.2.3.4.3, “Apportionment of Total Allowable Catch”. Under subheading “3) Pacific cod”, the subheading “C) Seasonal Allocations” would be changed to read “B) Seasonal Allocations”. This change would be an editorial correction only. The second change in Section 3.2.3.4.3 would add a new subsection entitled “C) Bering Sea Trawl CV A-Season Sector Limitation” under subheading “3) Pacific cod”. This new subsection would state that if the Aleutian Islands Catcher Vessel Harvest Set-Aside is in effect, the trawl CV sector may not catch more than an amount that is equal to the trawl CV sector's A-season Pacific cod allocation minus the lesser of either the Aleutian Islands non-CDQ Pacific cod directed fishing allowance or 5,000 mt in the Bering Sea subarea before March 21.

Third, a new subsection 3.6.5, entitled “Aleutian Islands Catcher Vessel Harvest Set-Aside”, would be added at the end of Section 3.6, “Catch Restrictions”. This new subsection would include the five main components of the Aleutian Islands Catcher Vessel Harvest Set-Aside:

• First, “Aleutian Islands shoreplant,” for purposes of the Aleutian Islands Catcher Vessel Harvest Set-Aside, would be defined to mean a processing facility physically located on land west of 170 degrees W. long.

• In the Aleutian Islands Pacific cod fishery, up to 5,000 mt of the non-CDQ directed fishing allowance would be reserved exclusively for harvest by vessels directed fishing for Aleutian Islands Pacific cod and delivering their catch for processing to Aleutian Islands shoreplants from January 1 until March 15. This exclusive harvest reservation is the “Aleutian Islands Catcher Vessel Harvest Set-Aside.” Any amount of the Aleutian Islands Pacific cod non-CDQ directed fishing allowance in excess of the Aleutian Islands Catcher Vessel Harvest Set-Aside would be available for harvest by all non-CDQ sectors with available A-season allocations of Pacific cod and could be processed by any eligible processor.

• If less than 1,000 mt of the Aleutian Islands Catcher Vessel Harvest Set-Aside has been landed at Aleutian Islands shoreplants by February 28, the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands Catcher Vessel Harvest Set-Aside would be suspended for the remainder of the year.

• Either the City of Adak or the City of Atka would be required to notify NMFS each year of its intent to process Aleutian Islands Pacific cod in the upcoming year for the Aleutian Islands Catcher Vessel Harvest Set-Aside to go into effect. Regulations implementing Amendment 113 will specify the date and the method by which the City of Adak or the City of Atka must notify NMFS. If neither the City of Adak nor the City of Atka notifies NMFS by the annual deadline of its intent to process Aleutian Islands Pacific cod, the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands Catcher Vessel Harvest Set-Aside for Pacific cod would not apply for the upcoming year.

• If the entire Aleutian Islands non-CDQ Pacific cod directed fishing allowance is harvested prior to March 15, the Bering Sea Trawl CV A-Season Sector Limitation and the Aleutian Islands Catcher Vessel Harvest Set-Aside for Pacific cod would not apply for the remainder of the year.

Finally, a section would be added to Appendix A, summarizing the main provisions of Amendment 113.

The Council considered a range of dates, set-aside amounts, and performance requirements before adopting its preferred alternative for Amendment 113. The Council determined and NMFS agrees that the combination of measures within Amendment 113 would give Aleutian Islands Pacific cod fishery participants and Aleutian Islands shoreplants sufficient opportunity to harvest and process the set-aside for Aleutian Islands Pacific cod. The Council also determined and NMFS agrees that the notification and performance requirements would prevent stranding BSAI Pacific cod TAC and preserve opportunities for the complete harvest of the BSAI Pacific cod resource.

NMFS is soliciting public comments on proposed Amendment 113 through the end of the comment period (see DATES). NMFS intends to publish in the Federal Register and seek public comment on a proposed rule that would implement Amendment 113, following NMFS' evaluation of the proposed rule under the Magnuson-Stevens Act. All comments received by the end of the comment period on Amendment 113, whether specifically directed to the FMP amendment or the proposed rule, will be considered in the decision to approve or disapprove Amendment 113. Comments received after that date may not be considered in the decision on Amendment 113. To be certain of consideration, comments must be received by NMFS, not just postmarked or otherwise transmitted, by the last day of the comment period.