Federal Register Vol. 81, No.147,

Federal Register Volume 81, Issue 147 (August 1, 2016)

Page Range50283-50604
FR Document

81_FR_147
Current View
Page and SubjectPDF
81 FR 50462 - Initiation of Five-Year (“Sunset”) ReviewPDF
81 FR 50588 - Sunshine Act MeetingPDF
81 FR 50543 - Receipt of Incidental Take Permit Applications for Participation in the Amended Oil and Gas Industry Conservation Plan for the American Burying Beetle in OklahomaPDF
81 FR 50500 - Notice to all Interested Parties of the Termination of the Receivership of 10123, Southern Colorado National Bank Pueblo, ColoradoPDF
81 FR 50542 - Receipt of Applications for Endangered Species PermitsPDF
81 FR 50321 - Adjustment of Civil Monetary Penalties for InflationPDF
81 FR 50532 - Opportunity to Co-sponsor an Office on Women's Health Awards Ceremony and Event for its 25th AnniversaryPDF
81 FR 50521 - Proposed Information Collection Activity; Comment Request; State Developmental Disabilities Council 5-Year State PlanPDF
81 FR 50599 - Multiemployer Pension Plan Application To Reduce Benefits.PDF
81 FR 50571 - Mail Classification Schedule Changes Concerning Assignment of Country GroupsPDF
81 FR 50342 - Air Plan Approval; VT; Prevention of Significant Deterioration, Nonattainment and Minor New Source ReviewPDF
81 FR 50415 - Air Plan Approval; VT; Prevention of Significant Deterioration, Nonattainment and Minor New Source ReviewPDF
81 FR 50358 - Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Measurement and Reporting of Condensable Particulate Matter EmissionsPDF
81 FR 50430 - Approval and Promulgation of Air Quality Implementation Plans; Interstate Transport for UtahPDF
81 FR 50409 - Air Plan Approval; Alabama and North Carolina; Interstate Transport-2010 NO2PDF
81 FR 50569 - Advisory Committee on Reactor Safeguards (ACRS), Meeting of the ACRS Subcommittee on Reliability and PRAPDF
81 FR 50570 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on NUSCALE; Notice of MeetingPDF
81 FR 50568 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Plant Operations and Fire Protection; Notice of MeetingPDF
81 FR 50568 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on AP1000PDF
81 FR 50566 - Pennsylvania State University Breazeale Nuclear ReactorPDF
81 FR 50566 - Notice of Permits Issued Under the Antarctic Conservation Act of 1978PDF
81 FR 50569 - U.S. Department of Veterans Affairs; Alan J. Blotcky Reactor FacilityPDF
81 FR 50565 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978PDF
81 FR 50303 - Food Labeling; Calorie Labeling of Articles of Food in Vending Machines; Extension of Compliance DatePDF
81 FR 50596 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 50593 - Qualification of Drivers; Exemption Applications; HearingPDF
81 FR 50494 - Privacy Act; System of Records: Establishment of New Passport Expiration Notification System (PENS)PDF
81 FR 50564 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 50434 - Public Notification for Combined Sewer Overflows in the Great Lakes; Public Listening Session; Request for Stakeholder InputPDF
81 FR 50594 - Qualification of Drivers; Application for Exemptions; HearingPDF
81 FR 50592 - Commercial Driver's License (CDL) Testing; Application for Exemption: State of MinnesotaPDF
81 FR 50602 - Submission for OMB Review; Comment RequestPDF
81 FR 50500 - Notice of Termination; 10447 The Farmers Bank of Lynchburg, Lynchburg, TennesseePDF
81 FR 50484 - Agency Information Collection Activities: Comment RequestPDF
81 FR 50319 - Special Local Regulation; Seattle Seafair Unlimited Hydroplane Race, Lake Washington, WAPDF
81 FR 50405 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch in the West Yakutat District of the Gulf of AlaskaPDF
81 FR 50591 - U.S. Department of State Advisory Committee on Private International Law (ACPIL): Public Meeting on Conciliated Settlement AgreementsPDF
81 FR 50560 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Plan Asset Transactions Determined by Independent Qualified Professional Asset Managers Under Prohibited Transaction Exemption 1984-14PDF
81 FR 50559 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Plan Asset Transactions Determined by In-House Asset Managers Under Prohibited Transaction Class Exemption 1996-23PDF
81 FR 50404 - Fisheries of the Exclusive Economic Zone Off Alaska; Dusky Rockfish in the West Yakutat District of the Gulf of AlaskaPDF
81 FR 50461 - National Advisory Committee for Implementation of the National Forest System Land Management Planning RulePDF
81 FR 50492 - Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service DeliveryPDF
81 FR 50492 - Notice of Filing of Self-Certification of Coal Capability Under the Powerplant and Industrial Fuel Use ActPDF
81 FR 50599 - Open Meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project Committee; CorrectionPDF
81 FR 50283 - Minimum Quality and Handling Standards for Domestic and Imported Peanuts Marketed in the United States; Change to the Quality and Handling RequirementsPDF
81 FR 50406 - Irish Potatoes Grown in Colorado; Modification of the Handling Regulation for Area No. 2PDF
81 FR 50533 - Merchant Marine Personnel Advisory Committee; VacanciesPDF
81 FR 50564 - Notice of Intent To Grant Partially Exclusive LicensePDF
81 FR 50436 - Fisheries of the Exclusive Economic Zone off Alaska; Modifications to Recordkeeping and Reporting RequirementsPDF
81 FR 50460 - Notice of Meeting of the National Organic Standards BoardPDF
81 FR 50552 - Office of the Attorney General; Supplemental Guidelines for Juvenile Registration Under the Sex Offender Registration and Notification ActPDF
81 FR 50598 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel SERENITE; Invitation for Public CommentsPDF
81 FR 50599 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel MERLOT; Invitation for Public CommentsPDF
81 FR 50463 - Endangered and Threatened Wildlife and Plants; Notice of 12-Month Finding on Petitions To List Porbeagle Shark as Threatened or Endangered Under the Endangered Species Act (ESA)PDF
81 FR 50501 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
81 FR 50603 - Agency Information Collection (Statement of Disappearance, VA Form 21P-1775) Activity Under OMB ReviewPDF
81 FR 50603 - Agency Information Collection (Application of Refund of Educational Contributions) Activity Under OMB ReviewPDF
81 FR 50541 - Endangered and Threatened Wildlife and Plants; Initiation of 5-Year Status Review of OrangutanPDF
81 FR 50499 - Information Collections Being Reviewed by the Federal Communications CommissionPDF
81 FR 50498 - Information Collections Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 50528 - Outsourcing Facility Fee Rates for Fiscal Year 2017PDF
81 FR 50522 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance for Tobacco Retailers on Tobacco Retailer Training ProgramsPDF
81 FR 50561 - Nemko North America, Inc.: Application for Expansion of RecognitionPDF
81 FR 50563 - Formaldehyde Standard; Extension of the Office of Management and Budget's (OMB) Approval of Collections of InformationPDF
81 FR 50525 - Food Safety Modernization Act Domestic and Foreign Facility Reinspection, Recall, and Importer Reinspection Fee Rates for Fiscal Year 2017PDF
81 FR 50531 - Request for Nominations on the Tobacco Products Scientific Advisory CommitteePDF
81 FR 50558 - Agency Information Collection Activities; Proposed eCollection; eComments Requested Generic Clearance for the Collection of Qualitative Feedback on Agency Service DeliveryPDF
81 FR 50401 - International Fisheries; Tuna and Tuna-Like Species in the Eastern Pacific Ocean; Fishing Restrictions Regarding Mobulid RaysPDF
81 FR 50520 - Proposed Information Collection Activity; Comment RequestPDF
81 FR 50460 - Submission for OMB Review; Comment RequestPDF
81 FR 50320 - Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WAPDF
81 FR 50495 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 50497 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated AuthorityPDF
81 FR 50496 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 50463 - Submission for OMB Review; Comment RequestPDF
81 FR 50444 - Fisheries of the Exclusive Economic Zone Off Alaska; Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Amendment 113PDF
81 FR 50549 - Certain Hand Dryers and Housings for Hand Dryers: Institution of InvestigationPDF
81 FR 50485 - Charter Amendment of Department of Defense Federal Advisory CommitteesPDF
81 FR 50394 - Endangered and Threatened Wildlife and Plants; Listing Three Angelshark Species as Endangered Under the Endangered Species ActPDF
81 FR 50491 - Applications for New Awards; Promise Neighborhoods Program-Implementation Grant Competition; Correction Catalog of Federal Domestic Assistance (CFDA) Number: 84.215N.PDF
81 FR 50550 - Agency Information Collection Activities; Proposed Collection Comments Requested; USMS Medical FormsPDF
81 FR 50501 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
81 FR 50501 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 50483 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 50584 - New York Life Insurance and Annuity Corporation, et al; Notice of ApplicationPDF
81 FR 50580 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule to Amend the Fees SchedulePDF
81 FR 50572 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Filing of Proposed Rule Change To Amend Rule 11.230 To Rename the “Router Plus” Routing Option to “Router”PDF
81 FR 50582 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Phlx Rule 754 (Employees' Discretion as to Customers' Accounts)PDF
81 FR 50573 - Self-Regulatory Organizations; Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to the Collection of Exchange Fees and Other Claims and Billing PolicyPDF
81 FR 50588 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment No. 1, To List and Trade Shares of the Pointbreak Agriculture Commodity Strategy Fund of the Pointbreak ETF Trust Under BZX Rule 14.11(i), Managed Fund SharesPDF
81 FR 50576 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of Proposed Rule Change, as Modified by Amendment No. 1, Relating to the Listing and Trading of Shares of the Virtus Japan Alpha ETF Under NYSE Arca Equities Rule 8.600PDF
81 FR 50600 - Proposed Collection; Comment RequestPDF
81 FR 50523 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Guidance for Industry on Electronic Drug Product Reporting of Human Drug Compounding Outsourcing Facilities Under Section 503B of the Federal Food, Drug, and Cosmetic ActPDF
81 FR 50601 - Submission for OMB Review; Comment RequestPDF
81 FR 50597 - Fiscal Year 2015 Low or No Emission Vehicle Deployment (LoNo) ProgramPDF
81 FR 50324 - Final Priorities, Requirements, and Definition-Disability Innovation Fund-Transition Work-Based Learning Model DemonstrationsPDF
81 FR 50485 - Applications for New Awards; Rehabilitation Services Administration-Disability Innovation Fund-Transition Work-Based Learning Model DemonstrationsPDF
81 FR 50416 - Air Quality Plans; Florida; Infrastructure Requirements for the 2012 PM2.5PDF
81 FR 50428 - Air Plan Approval; Kentucky; Revisions to Louisville Definitions and Ambient Air Quality StandardsPDF
81 FR 50427 - Approval of California Air Plan Revisions, Modoc County Air Pollution Control District, Permit ProgramsPDF
81 FR 50362 - Approval of California Air Plan Revisions, Modoc County Air Pollution Control District, Permit ProgramsPDF
81 FR 50502 - Medicare Program; FY 2017 Inpatient Psychiatric Facilities Prospective Payment System-Rate UpdatePDF
81 FR 50533 - Extension and Redesignation of Syria for Temporary Protected StatusPDF
81 FR 50482 - Availability of Seats for National Marine Sanctuary Advisory CouncilsPDF
81 FR 50348 - Approval of California Air Plan Revisions, Placer County Air Pollution Control District and Ventura County Air Pollution Control DistrictPDF
81 FR 50416 - Approval of California Air Plan Revisions, Placer County Air Pollution Control District and Ventura County Air Pollution Control DistrictPDF
81 FR 50339 - Revisions to California State Implementation Plan; Bay Area Air Quality Management District; Stationary Source PermitsPDF
81 FR 50367 - Bus Testing: Establishment of Performance Standards, a Bus Model Scoring System, a Pass/Fail Standard and Other Program UpdatesPDF
81 FR 50365 - NASA Federal Acquisition Regulation Supplement: Clarification of Award Fee Evaluations and Payments (NFS Case 2016-N008)PDF
81 FR 50290 - Requirements for Frequency and Voltage Ride Through Capability of Small Generating FacilitiesPDF
81 FR 50353 - Air Plan Approval; Maine: Prevention of Significant Deterioration; PM2.5PDF
81 FR 50426 - Air Plan Approval; Maine: Prevention of Significant Deterioration; PM2.5PDF
81 FR 50336 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Volatile Organic Compounds Emissions From Fiberglass Boat Manufacturing MaterialsPDF
81 FR 50427 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Volatile Organic Compounds Emissions From Fiberglass Boat Manufacturing MaterialsPDF
81 FR 50408 - Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds-Exclusion of 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) Ethane (HFE-347pcf2)PDF
81 FR 50330 - Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds-Exclusion of 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) Ethane (HFE-347pcf2)PDF
81 FR 50351 - Approval of Missouri's Air Quality Implementation Plans; Regional Haze State Implementation Plan Revision and 2013 Five-Year Progress ReportPDF
81 FR 50360 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Reasonable Further Progress Plan, Contingency Measures, Motor Vehicle Emissions Budgets for the Baltimore 1997 8-Hour Ozone Serious Nonattainment AreaPDF
81 FR 50298 - Federal-State Unemployment Compensation Program; Middle Class Tax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation ApplicantsPDF
81 FR 50547 - Glycine From China; Institution of a Five-Year ReviewPDF
81 FR 50544 - Certain Polyester Staple Fiber From Korea and Taiwan: Institution of Five-Year ReviewsPDF
81 FR 50306 - Amendments to Civil Penalty RegulationsPDF

Issue

81 147 Monday, August 1, 2016 Contents Agricultural Marketing Agricultural Marketing Service RULES Quality and Handling Requirements: Minimum Quality and Handling Standards for Domestic and Imported Peanuts Marketed in the United States, 50283-50290 2016-18116 PROPOSED RULES Irish Potatoes Grown in Colorado: Handling Regulation for Area No. 2, 50406-50408 2016-18114 NOTICES Meetings: National Organic Standards Board, 50460 2016-18107 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Food Safety and Inspection Service

See

Forest Service

Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50483-50485 2016-18064 2016-18128 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Medicare Program: FY 2017 Inpatient Psychiatric Facilities Prospective Payment System: Rate Update, 50502-50520 2016-17982 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50520-50521 2016-18082 Coast Guard Coast Guard RULES Drawbridge Operations: Lake Washington Ship Canal, Seattle, WA, 50320-50321 2016-18080 Special Local Regulations: Seattle Seafair Unlimited Hydroplane Race, Lake Washington, WA, 50319-50320 2016-18127 NOTICES Requests for Nominations: Merchant Marine Personnel Advisory Committee, 50533 2016-18112 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Community Living Administration Community Living Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Developmental Disabilities Council 5-Year State Plan, 50521-50522 2016-18177 Defense Department Defense Department NOTICES Charter Amendment of Department of Defense Federal Advisory Committees, 50485 2016-18072 Education Department Education Department RULES Adjustment of Civil Monetary Penalties for Inflation, 50321-50324 2016-18179 Priorities, Requirements, Definitions, and Selection Criteria: Disability Innovation Fund—Transition Work-Based Learning Model Demonstrations, 50324-50330 2016-18031 NOTICES Applications for New Awards: Promise Neighborhoods Program—Implementation Grant Competition; Correction, 50491-50492 2016-18069 Rehabilitation Services Administration—Disability Innovation Fund—Transition Work-Based Learning Model Demonstrations, 50485-50491 2016-18030 Employment and Training Employment and Training Administration RULES Federal-State Unemployment Compensation Program: Middle Class Tax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation Applicants, 50298-50303 2016-17738 Energy Department Energy Department See

Energy Information Administration

See

Federal Energy Regulatory Commission

NOTICES Filing of Self-Certification of Coal Capability, 50492 2016-18119
Energy Information Energy Information Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals Qualitative Feedback on Agency Service Delivery, 50492-50494 2016-18120 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Air Plan Revisions, Modoc County Air Pollution Control District, Permit Programs, 50362-50365 2016-18009 California; Bay Area Air Quality Management District; Stationary Source Permits, 50339-50342 2016-17904 California; Placer County Air Pollution Control District and Ventura County Air Pollution Control District, 50348-50351 2016-17912 Maine; Air Plan Approval; Prevention of Significant Deterioration; PM2.5, 50353-50358 2016-17830 Maryland; Control of Volatile Organic Compounds Emissions from Fiberglass Boat Manufacturing Materials, 50336-50339 2016-17809 Maryland; Reasonable Further Progress Plan, Contingency Measures, Motor Vehicle Emissions Budgets for the Baltimore 1997 8-Hour Ozone Serious Nonattainment Area, 50360-50362 2016-17781 Missouri; Air Quality Implementation Plans; Regional Haze State Implementation Plan Revision and 2013 Five-Year Progress Report, 50351-50353 2016-17785 Pennsylvania: Measurement and Reporting of Condensable Particulate Matter Emissions, 50358-50360 2016-18156 Vermont: Prevention of Significant Deterioration, Nonattainment and Minor New Source Review, 50342-50348 2016-18158 Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds: Exclusion of 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (HFE-347pcf2), 50330-50336 2016-17789 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Alabama, North Carolina: Interstate Transport: 2010 NO2 Standards, 50409-50415 2016-18151 California; Air Plan Revisions, Modoc County Air Pollution Control District, Permit Programs, 50427-50428 2016-18010 California; Placer County Air Pollution Control District and Ventura County Air Pollution Control District, 50416 2016-17905 Florida; Infrastructure Requirements for the 2012 PM2.5 National Ambient Air Quality Standard, 50416-50426 2016-18013 Kentucky; Air Plan Approval; Revisions to Louisville Definitions and Ambient Air Quality Standards, 50428-50430 2016-18011 Maine; Air Plan Approval; Prevention of Significant Deterioration; PM2.5, 50426-50427 2016-17829 Maryland; Control of Volatile Organic Compounds Emissions from Fiberglass Boat Manufacturing Materials, 50427 2016-17808 Utah: Interstate Transport, 50430-50434 2016-18153 Vermont: Prevention of Significant Deterioration, Nonattainment and Minor New Source Review, 50415-50416 2016-18157 Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds: Exclusion of 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (HFE-347pcf2), 50408-50409 2016-17790 Combined Sewer Overflows in the Great Lakes: Stakeholder Input, 50434-50436 2016-18133 NOTICES Privacy Act; Systems of Records, 50494-50495 2016-18136 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50495-50500 2016-18077 2016-18078 2016-18079 2016-18094 2016-18095 Federal Deposit Federal Deposit Insurance Corporation NOTICES Terminations of Receivership: 10123, Southern Colorado National Bank Pueblo, CO, 50500 2016-18181 10447, The Farmers Bank of Lynchburg, Lynchburg, TN, 50500 2016-18129 Federal Energy Federal Energy Regulatory Commission RULES Requirements for Frequency and Voltage Ride Through Capability of Small Generating Facilities, 50290-50298 2016-17843 Federal Motor Federal Motor Carrier Safety Administration NOTICES Commercial Driver's License Testing; Exemption Applications: Minnesota, 50592-50593 2016-18131 Qualification of Drivers; Exemption Applications: Hearing, 50593-50596 2016-18132 2016-18137 Visiion, 50596-50597 2016-18138 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 2016-18065 50501-50502 2016-18099 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 50501 2016-18066 Proposals to Engage In or to Acquire Companies Engaged In Permissible Nonbanking Activities, 50501 2016-18067 Federal Transit Federal Transit Administration RULES Bus Testing: Performance Standards, a Bus Model Scoring System, a Pass/Fail Standard and other Program Updates, 50367-50394 2016-17889 NOTICES Funding Availabilities: Fiscal Year 2015 Low or No Emission Vehicle Deployment Program, 50597-50598 2016-18045 Fish Fish and Wildlife Service NOTICES Applications for Endangered Species Permits, 50542-50543 2016-18180 Endangered and Threatened Wildlife and Plants: Initiation of 5-Year Status Review of Orangutan, 50541-50542 2016-18096 Incidental Take Permit Applications: Participation in the Amended Oil and Gas Industry Conservation Plan for the American Burying Beetle in Oklahoma, 50543-50544 2016-18184 Food and Drug Food and Drug Administration RULES Food Labeling: Calorie Labeling of Articles of Food in Vending Machines, 50303-50306 2016-18140 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Guidance for Industry on Electronic Drug Product Reporting of Human Drug Compounding Outsourcing Facilities, 50523-50525 2016-18048 Guidance for Tobacco Retailers on Tobacco Retailer Training Programs, 50522-50523 2016-18092 Food Safety Modernization Act: Domestic and Foreign Facility Reinspection, Recall, and Importer Reinspection Fee Rates for FY 2017, 50525-50528 2016-18089 Outsourcing Facility Fee Rates for Fiscal Year 2017, 50528-50531 2016-18093 Requests for Nominations: Tobacco Products Scientific Advisory Committee, 50531-50532 2016-18085 Food Safety Food Safety and Inspection Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50460-50461 2016-18081 Forest Forest Service NOTICES Meetings: National Advisory Committee for Implementation of the National Forest System Land Management Planning Rule, 50461 2016-18121 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Community Living Administration

See

Food and Drug Administration

NOTICES Sponsorship Opportunity: Office on Women's Health Awards Ceremony and Event for its 25th Anniversary, 50532-50533 2016-18178
Homeland Homeland Security Department See

Coast Guard

See

U.S. Citizenship and Immigration Services

Interior Interior Department See

Fish and Wildlife Service

See

Office of Natural Resources Revenue

Internal Revenue Internal Revenue Service NOTICES Meetings: Taxpayer Advocacy Panel Taxpayer Communications Project Committee; Correction, 50599 2016-18118 International Trade Adm International Trade Administration NOTICES Antidumping and Countervailing Duty Investigations, Orders, and Reviews: Initiation of Five-Year (Sunset) Review, 50462-50463 2016-18297 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Hand Dryers and Housings for Hand Dryers, 50549-50550 2016-18073 Certain Polyester Staple Fiber from Korea and Taiwan, 50544-50547 2016-17660 Glycine from China, 50547-50549 2016-17679 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Collection of Qualitative Feedback on Agency Service Delivery, 50558-50559 2016-18084 USMS Medical Forms, 50550-50551 2016-18068 Supplemental Guidelines for Juvenile Registration under the Sex Offender Registration and Notification Act, 50552-50558 2016-18106 Labor Department Labor Department See

Employment and Training Administration

See

Occupational Safety and Health Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Plan Asset Transactions Determined by Independent Qualified Professional Asset Managers, 50560-50561 2016-18124 Plan Asset Transactions Determined by In-House Asset Managers, 50559-50560 2016-18123
Maritime Maritime Administration NOTICES Requested Administrative Waivers of the Coastwise Trade Laws: Vessel MERLOT, 50599 2016-18104 Vessel SERENITE, 50598-50599 2016-18105 NASA National Aeronautics and Space Administration RULES Federal Acquisition Regulation Supplements: Clarification of Award Fee Evaluations and Payments, 50365-50366 2016-17844 NOTICES Intents to Grant Partially Exclusive Licenses, 50564 2016-18111 National Credit National Credit Union Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50564-50565 2016-18135 National Oceanic National Oceanic and Atmospheric Administration RULES Endangered and Threatened Wildlife and Plants: Listing Three Angelshark Species as Endangered under the Endangered Species Act, 50394-50401 2016-18071 Fisheries of the Exclusive Economic Zone Off Alaska: Dusky Rockfish in the West Yakutat District of the Gulf of Alaska, 50404-50405 2016-18122 Pacific Ocean Perch in the West Yakutat District of the Gulf of Alaska, 50405 2016-18126 International Fisheries: Tuna and Tuna-like Species in the Eastern Pacific Ocean; Fishing Restrictions Regarding Mobulid Rays, 50401-50404 2016-18083 PROPOSED RULES Fisheries of the Exclusive Economic Zone Off Alaska: Bering Sea and Aleutian Islands Management Area; American Fisheries Act; Amendment 113, 50444-50459 2016-18074 Fisheries of the Exclusive Economic Zone off Alaska: Recordkeeping and Reporting Requirements, 50436-50444 2016-18110 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50463 2016-18076 Endangered and Threatened Species: 12-Month Finding on Petitions to List Porbeagle Shark as Threatened or Endangered under the Endangered Species Act, 50463-50482 2016-18101 Requests for Nominations: National Marine Sanctuary Advisory Councils, 50482-50483 2016-17917 National Science National Science Foundation NOTICES Antarctic Conservation Act Permits, 50565-50566 2016-18141 2016-18143 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Exemptions: Pennsylvania State University Breazeale Nuclear Reactor, 50566-50568 2016-18144 License Terminations: Department of Veterans Affairs Alan J. Blotcky Reactor Facility, 50569-50570 2016-18142 Meetings: Advisory Committee on Reactor Safeguards Subcommittee on NUSCALE, 50570-50571 2016-18148 Advisory Committee on Reactor Safeguards Subcommittee on AP1000, 50568 2016-18145 Advisory Committee on Reactor Safeguards Subcommittee on Plant Operations and Fire Protection, 50568-50569 2016-18147 Advisory Committee on Reactor Safeguards Subcommittee on Reliability and PRA, 50569 2016-18149 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Formaldehyde Standard; Extension, 50563-50564 2016-18090 Applications for Expansion of Recognition: Nemko North America, Inc., 50561-50562 2016-18091 Natural Resources Office of Natural Resources Revenue RULES Civil Penalty Regulations, 50306-50319 2016-17598 Postal Service Postal Service NOTICES Mail Classification Schedule Changes Concerning Assignment of Country Groups, 50571-50572 2016-18173 Securities Securities and Exchange Commission NOTICES Applications: New York Life Insurance and Annuity Corp., et al., 50584-50588 2016-18060 Meetings; Sunshine Act, 50588 2016-18211 Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 50588-50591 2016-18053 C2 Options Exchange, Inc., 50580-50582 2016-18057 Investors Exchange, LLC, 50572-50576 2016-18054 2016-18056 NASDAQ PHLX, LLC, 50582-50584 2016-18055 NYSE Arca, Inc., 50576-50580 2016-18052 State Department State Department NOTICES Meetings: Advisory Committee on Private International Law; Conciliated Settlement Agreements, 50591-50592 2016-18125 Transportation Department Transportation Department See

Federal Motor Carrier Safety Administration

See

Federal Transit Administration

See

Maritime Administration

Treasury Treasury Department See

Internal Revenue Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 50600-50603 2016-18046 2016-18047 2016-18049 2016-18130 Multiemployer Pension Plan Application To Reduce Benefits, 50599-50600 2016-18175
U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Extension and Redesignation of Syria for Temporary Protected Status, 50533-50541 2016-17933 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application of Refund of Educational Contributions, 50603-50604 2016-18097 Statement of Disappearance, 50603 2016-18098 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

81 147 Monday, August 1, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 996 [Doc. No. AMS-FV-15-0066; FV16-996-1 FR] Minimum Quality and Handling Standards for Domestic and Imported Peanuts Marketed in the United States; Change to the Quality and Handling Requirements AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This rule implements a recommendation from the Peanut Standards Board (Board) to revise the minimum quality and handling standards for domestic and imported peanuts marketed in the United States (Standards). The Board advises the Secretary of Agriculture regarding potential changes to the Standards and is comprised of producers and industry representatives. This rule revises the minimum quality, positive lot identification, and reporting and recordkeeping requirements under the Standards. It also makes numerous other changes to better reflect current industry practices and revises outdated language. The Board believes these changes will make additional peanuts available for sale, help increase efficiencies, and reduce costs to the industry.

DATES:

Effective August 31, 2016.

FOR FURTHER INFORMATION CONTACT:

Steven W. Kauffman, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: [email protected] or [email protected]

Small businesses may request information on complying with this regulation by contacting Antoinette Carter, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

SUPPLEMENTARY INFORMATION:

This final rule is issued under the Minimum Quality and Handling Standards for Domestic and Imported Peanuts Marketed in the United States (Standards), as amended (7 CFR part 996), as established pursuant to Public Law 107-171, the Farm Security and Rural Investment Act of 2002 (Act). The Standards regulate the quality and handling of domestic and imported peanuts marketed in the United States.

Executive Order 12866 and Executive Order 13563

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action has been designated as a “non-significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget (OMB) has waived the review process.

Executive Order 13175

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect and shall not abrogate nor nullify any other statute, whether State or Federal, dealing with the same subjects as this Act; but is intended that all such statutes shall remain in full force and effect except in so far as they are inconsistent herewith or repugnant hereto (7 U.S.C. 587).

There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

The Act requires that USDA take several actions with regard to peanuts marketed in the United States. These include ensuring mandatory inspection on all peanuts marketed in the United States; developing and implementing peanut quality and handling requirements; establishing the Board comprised of producers and industry representatives to advise USDA regarding the quality and handling requirements under the Standards; and modifying those quality and handling requirements when needed. USDA is required by the Act to consult with the Board prior to making any changes to the Standards.

Pursuant to the Act, USDA has consulted with Board members in its review of the changes to the Standards included in this final rule. This final rule implements the revisions to the minimum quality, positive lot identification, and reporting and recordkeeping requirements under the Standards. This final rule also makes numerous other changes to the Standards to better reflect current industry practices and to revise outdated language. The Board believes these changes will make additional peanuts available for sale, increase efficiencies, and reduce industry costs. These changes were recommended by the Board at its meetings on June 24, 2015, and November 18, 2015.

The Standards establish minimum incoming and outgoing quality requirements for domestic and imported peanuts marketed in the United States. Mandatory inspection is required to ensure that the quality regulations are met. The Standards also require an identification process so peanuts can be identified and tracked during processing and disposition. Finally, the Standards specify reporting and recordkeeping requirements for handlers and importers.

Sections 996.30 and 996.31 of the Standards outline the incoming and outgoing quality standards, respectively, for peanuts. The incoming standards currently prescribe specific requirements for segregation, moisture content, and foreign material (stones, dirt, sticks, etc.). The outgoing standards include specific requirements for damage, foreign material, and moisture for both shelled and inshell peanuts. The outgoing standards also require peanuts to be positive lot identified and tested and certified as negative for aflatoxin. Both the incoming and outgoing standards require inspection and certification by the Federal-State Inspection Service.

Section 996.15 establishes a definition for positive lot identification (PLI). Section 996.31 requires PLI on all peanuts designated for human consumption as part of the outgoing standards. Section 996.40 establishes handling standards for peanuts and includes specifics on how PLI will be used throughout the handling process, from initial identification through the sampling and testing process. Section 996.50 outlines the process for reconditioning failing lots and establishes PLI requirements to track and identify the peanuts throughout the reconditioning process. Section 996.74 outlines the compliance requirements for the Standards and includes penalties for failing to maintain proper PLI.

Sections 996.71 and 996.73 establish the reporting and recordkeeping requirements under the Standards. These sections specify, in part, the reports required and establish what records need to be maintained and for how long.

The Standards were last revised in 2005. In 2014, the American Peanut Shellers Association (APSA) started a review of the current Standards and developed a proposal to revise the Standards to reflect changes in the industry and to make other changes to bring the Standards up to date. These recommended revisions were shared with USDA and industry representatives and were then presented to the Board at its meeting on June 24, 2015. The Board voted to approve the recommendations from APSA in their entirety. In addition, a subcommittee was created to work with USDA to review and recommend any additional conforming changes to the Standards necessary to facilitate the revisions requested by the industry. At a meeting on November 18, 2015, the Board reviewed the modifications and conforming changes from the subcommittee and USDA, and approved them unanimously. Consequently, this final rule makes the following recommended changes.

This final rule revises the minimum quality requirements under both the incoming and outgoing standards. The industry originally thought the presence of foreign material in incoming peanuts could promote the growth of aflatoxin. Therefore, a limit on the amount of foreign material in incoming peanuts was established. However, the industry no longer believes there to be a correlation between foreign material and aflatoxin. In addition, due to advances in technology, foreign material is easily removed from incoming peanuts, and handlers are able to remove foreign material from incoming peanuts to a level that is lower than the limit currently specified in the incoming standards. Further, most handlers are setting their own tolerances for the presence of foreign material. Eliminating the maximum amount of foreign material that incoming farmers stock peanuts may contain from the Standards provides additional flexibility by allowing individual handlers to determine the amount of foreign material they are willing to accept. As such, this action removes the current limit of 10.49 percent on the amount of foreign material that incoming farmers stock peanuts may contain.

The outgoing quality standards currently include a table that outlines, in part, requirements for damage, minor defects, foreign material, and moisture. Two of the columns of the table deal with damage and defects. The first of these columns provides the allowance for damage to unshelled peanuts and kernels, and the second column provides the allowance for minor defects. Currently the allowance for major damage is 1.5 percent for lots excluding splits and 2 percent for lots of splits. The current allowance for minor defects is 2.5 percent, except for No. 2 Virginia peanuts, for which the allowance for minor defects is 3 percent.

Under the proposal from APSA, the two columns on damage will be merged into one column and will set one overall allowance for damage on unshelled peanuts, cleaned-inshell peanuts, and kernels at 3.5 percent. Over the years, the industry has found that growing practices such as no till farming and modern harvesting practices have increased the amount of damage to individual kernels. In addition, the shift to new peanut varieties that produce larger kernels has impacted the sampling of peanuts for damage. The larger kernels reduce the number of peanuts in the sample such that damaged kernels have a larger impact on the percentage of damage in the sample size. Increasing the allowable damage will allow additional peanuts to meet the Standards and be shipped for human consumption. In addition, relaxing the damage allowance will allow more lots of peanuts to move without being remilled, helping to reduce handling costs.

Peanuts are also used for many different products, including outlets where cosmetic damage is not as important, such as peanut butter, where the manufacturers are willing to purchase lots with a higher percentage of damage. Most manufacturers are setting their own tolerance levels for damage based on the products they manufacture. By increasing the amount of allowable damage, more peanuts will be available to be manufactured for human consumption, helping to maximize shipments and improving returns. Therefore, this final rule relaxes the allowance for damage and defects to 3.5 percent for all unshelled peanuts, kernels, and for cleaned-inshell peanuts.

This rule will also make changes to the PLI requirements and the recordkeeping and reporting requirements under the Standards. In the Standards, the PLI requirements are used to help maintain the identity of peanuts throughout the handling process, thus maintaining the integrity of lots being shipped to human consumption outlets, lots that are subject to the reconditioning process, and lots that are disposed of in non-human consumption outlets. PLI also helps ensure that peanuts certified for human consumption meet the outgoing standards for grade and aflatoxin. In addition, the PLI requirements are a useful tool in product traceability and helping to ensure compliance with the Standards.

The reporting and recordkeeping requirements also play a role in ensuring compliance. Handlers and importers are required to maintain all relevant documentation on the disposition of inedible peanuts. The documentation maintained must be sufficient to document and substantiate the proper disposition of all peanut lots that do not meet grade or aflatoxin quality standards. Reports and records are used to track and document the disposition of peanuts and to substantiate handler and importer compliance with the Standards.

In 2009, the peanut industry began the process of completely restructuring its tracking and reporting systems under an industry-wide food safety system, utilizing industry experts as well as guidance from the Food and Drug Administration, the Grocery Manufacturers Association, and finished product manufacturers. The industry also decided to work toward meeting the Global Food Safety Initiative (GFSI) standards that were being mandated by many major food manufacturers. GFSI certification requires, in part, that a company shall be able to trace all raw material product lots, including packaging, from its suppliers through all stages of processing and dispatch to its customers. The industry reports that in 2010, the industry had its first audits performed against the GFSI standards, and many in the industry are now certified under a GFSI scheme.

The purpose of this effort was to reduce the need for multiple audits while providing ongoing assurance of compliance within the industry with food safety initiatives. Under these new industry procedures, all raw peanuts are lot coded, and there is a traceability system in place to track them throughout the handling process. Handlers currently trace all peanuts from the warehouse to final disposition, including edible, blanched, and oil stock. Further, lots are segregated throughout the handling process in order to maintain identity should there be a recall notice issued.

In reviewing the Standards, the APSA thought it is important to maintain PLI on all lots meeting outgoing requirements. This preserves the integrity of these lots and provides assurance to buyers that the peanuts have met all requirements, have not been commingled with lower grade peanuts, and are ready to be utilized for human consumption. In addition, all peanut manufacturers require the official grade and aflatoxin certificate before taking possession of the peanuts to confirm that the analytical and physical tests required by law have been conducted.

However, given the industry's new requirements for tracking and traceability, the APSA found the remaining PLI requirements in the Standards to be redundant and no longer necessary. When the Standards were implemented in 2002, the current industry traceability systems had not yet been developed, and PLI was an important tool in maintaining compliance. The new traceability systems are used by the industry to help maintain the identity of peanuts throughout the handling process, the same way PLI is used. These systems are also used to track peanuts that are to be reconditioned or disposed of in non-human consumption outlets, such as for seed or animal feed. The industry reports that each peanut handler has designed a traceability system that is specifically integrated into their operations, and the industry believes that these systems largely perform all the same functions as PLI. Further, these systems were also designed to meet the new demands under food safety requirements, such as the Food Safety and Modernization Act, and the food safety and handling requirements set by the manufacturers. The industry believes having to utilize PLI in addition to its own tracking systems requires additional time and recordkeeping to follow peanuts that already have documented traceability.

The APSA proposal, as approved by the Board, recommends revision to the Standards to reflect current industry traceability programs. The industry believes that these changes will reduce handling and inspection costs and help improve the efficiency of handling operations. Consequently, this final rule will add language to § 996.73 of the Standards to define the necessary requirements for an industry-based traceability system and will provide allowances for systems meeting these requirements to be used in place of PLI prior to inspection and certification. The existing PLI system will also remain in place as a requirement for any handler who does not have a system in place that meets the requirements for an industry-based traceability system and for any handler who uses PLI in conjunction with their own traceability system. However, PLI will still continue to be required for all peanuts meeting the outgoing standards.

This final rule will also revise the reporting and recordkeeping requirements under the Standards. All handlers and importers are currently required to submit to USDA a monthly report documenting their monthly farmers stock acquisitions. Under these changes, the requirement to submit this monthly report will be eliminated. The industry stated that the information contained within the form was already being submitted to USDA on a daily basis as part of the farmers stock inspection process. Further, industry representatives stated that this data is maintained as part of the traceability systems now in place. Therefore, the industry supported the removal of this requirement.

Additional changes were recommended to recognize the reporting and recordkeeping done by the industry to meet the tracking and traceability requirements now required of the industry for food safety initiatives. In addition to records relating to peanuts meeting the outgoing standards, handlers and importers are required to maintain all relevant documentation on the disposition of inedible peanuts as part of their food safety traceability requirements. Given the traceability and recordkeeping requirements recommended to be added to the Standards and the recordkeeping requirements demanded under food safety requirements, the industry questioned the continued need for USDA to have access to all such records under the Standards. Industry representatives stated that they no longer see the need for USDA to require regular access to records other than those pertaining to peanuts meeting the outgoing requirements. Consequently, pursuant to the Board-approved recommendation, this final rule will modify the reporting requirements to specify that USDA will be permitted to inspect any peanuts meeting outgoing standards and any and all records pertaining to peanuts meeting outgoing quality regulations. However, pursuant to the Act, the Secretary shall work to provide adequate safeguards regarding all quality concerns related to peanuts. Therefore, this change will not preclude USDA from having access to all materials and records necessary should there be a situation necessitating an investigation or review to ensure compliance. The documentation maintained must still be sufficient to document and substantiate the proper disposition of all peanuts failing grade or aflatoxin quality standards.

Additionally, USDA would like to clarify that under this modified reporting requirement, USDA will continue to have access to all materials and records regarding any and all peanuts originally intended for human consumption. This applies whether the peanuts meet outgoing quality requirements or not.

The APSA proposal as approved by the Board also recommended revising the Standards to clarify that handlers and importers are not producing a finished product and that the peanuts require further processing prior to human consumption. This includes amending the definition for peanuts in the Standards to indicate that the peanuts covered under the Standards are raw peanuts and intended for further processing by manufacturers prior to human consumption. The definitions for inshell and shelled peanuts will also be revised to reflect that the peanuts covered by the Standards are in their raw, natural state. The definition of peanuts will continue to provide that green peanuts, which are raw, for consumption as boiled peanuts are not subject to regulation under the Standards. However, these green peanuts are sold mostly by producers, not by handlers and importers, and make up a small share of the peanut market. The change to the definition for peanuts will also state that peanuts intended for wildlife are not subject to regulation under the Standards.

This change will also eliminate all references to roasting in the Standards to further clarify that handlers and importers are not producing a finished product. At one time, roasting was used to reduce levels of aflatoxin and was included in the Standards for that purpose. However, roasting is no longer used to treat aflatoxin. The Board supported these changes to reduce any confusion that handlers and importers under the Standards are delivering a finished product ready for human consumption.

Finally, this final rule will also make numerous other changes throughout the Standards to update language and to reflect current industry practices and changes. Such changes include a change to the crop year, eliminating language relating to the old quota system, and updating outdated information, such as incorrect addresses, titles, and other contact information. It will also remove the requirement that peanuts testing at or above 301 ppb of aflatoxin can only be disposed of through crushing or export, as cleaning technology has improved to the point that peanuts testing at or above this level may possibly be cleaned to meet the outgoing standards.

The proposed changes approved by the Board also included a recommendation to remove the lot size limit of 200,000 pounds on peanuts presented for outgoing inspection. However, the 200,000 pound limit is required by USDA and the inspection service to ensure an accurate sampling protocol. Therefore, the 200,000 pound lot limit will be maintained.

USDA is also adding an additional change under this final rule that will revise the requirements for imported peanuts under § 996.60(a). This change modifies how importers submit their entry information to USDA. This section currently references the “stamp and fax” entry process, which is being replaced by the International Trade Data System, a system that will automate the filing of import and export information. This change will revise this section to reflect the new electronic entry process.

The Board believes these changes will bring the Standards closer in line with current industry practices, make additional peanuts available for sale, help reduce costs, and make operations more efficient. These changes are consistent with the Standards and the Act.

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened.

Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms, including handlers and importers, are defined as those having annual receipts of less than $7,500,000 (13 CFR 121.201).

There are approximately 7,500 peanut producers; 65 peanut handlers, operating approximately 70 shelling plants; and 25 importers subject to regulation under this peanut program.

An approximation of the number of peanut farms that could be considered small agricultural businesses under the SBA definition can be obtained from the 2012 Agricultural Census, which is the most recent information on the number of farms categorized by size. There were 3,066 peanut farms with annual agricultural sales valued at less than $500,000 in 2012, representing 47 percent of the total number of peanut farms in the U.S. (6,561). According to the National Agricultural Statistics Service (NASS), peanut production for the 2014 and 2015 crop years averaged 5.756 billion pounds. The average value of production for the two-year period was $1.088 billion. The average grower price over the two-year period was $0.25 per pound. Dividing the two-year average production value of $1.088 billion by the approximate number of peanut producers (7,500) results in an average revenue per producer of approximately $145,000, which is well below the SBA threshold for small producers. Based on information and reports received by USDA, more than 50 percent of handlers may be considered small entities. Further, the estimated value of peanuts imported into the United States in 2014 was approximately $64 million. Based on that number, the majority of importers would meet the SBA definition for small agricultural service firms. Consequently, a majority of handlers, importers and producers may be classified as small entities.

The current 10 custom blanchers, 4 custom remillers, 3 oil mill operators, and 1 USDA and 17 USDA-approved private chemical (aflatoxin) laboratories are subject to this rule to the extent that they must comply with reconditioning provisions under § 996.50 and reporting and recordkeeping requirements under § 996.71. These requirements are applied uniformly to these entities, whether large or small.

This final rule will revise the minimum quality, positive lot identification, and reporting and recordkeeping requirements under the Standards. This action will also make numerous other changes to the Standards to better reflect current industry practices and to revise outdated language. The Board believes these changes will make additional peanuts available for sale, help increase efficiencies, and reduce costs to the industry.

This final rule is issued under the Minimum Quality and Handling Standards for Domestic and Imported Peanuts Marketed in the United States, as amended (7 CFR part 996), as established pursuant to Public Law 107-171, the Farm Security and Rural Investment Act of 2002.

It is not anticipated that this action will impose additional costs on handlers, producers, or importers, regardless of size. Rather, these changes should help the industry reduce costs by helping to increase efficiencies. The industry believes the requirement that they continue to use PLI in addition to its own internal traceability systems creates redundancy and additional costs. By recognizing its internal traceability programs as an alternative to PLI, this should improve efficiencies and reduce costs. In addition, this action should also make additional peanuts available for sale, helping to maximize shipments and improving industry returns.

This final rule is expected to benefit the industry. The effects of this rule are not expected to be disproportionately greater or less for small handlers, producers or importers than for larger entities.

USDA has considered alternatives to these changes. The Act requires USDA to consult with the Board on changes to the Standards. An alternative considered was to continue the Standards in their current form. However, the industry believes these changes will increase efficiencies, make additional peanuts available for sale, and help update the Standards. Therefore, because of the anticipated benefits of these changes, this alternative was rejected. USDA has met with the Board, which is representative of the industry, and has included nearly all of its recommendations in this final rule.

The Act specifies in § 1601(c)(2)(A) that the Standards established pursuant to it may be implemented without regard to the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). However, USDA has considered the reporting and recordkeeping burden on handlers and importers under this program. Handlers and importers are only required to complete one form, the monthly acquisition of farmers stock peanuts. Under this final rule, this requirement will be removed, reducing the reporting burden. Recordkeeping requirements will remain the same. Accordingly, this rule will not impose any additional reporting or recordkeeping requirements on either small or large handlers or importers.

AMS is committed to complying with the E-Government Act to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

The Board's meetings were widely publicized throughout the peanut industry, and all interested persons were invited to attend and participate in Board deliberations on all issues. Like all Board meetings, the June 26, 2015, and the November 18, 2015, meetings were public meetings, and all entities, both large and small, were able to express views on these issues.

Section 1601 of the Act also provides that amendments to the Standards may be implemented without extending interested parties an opportunity to comment. However, due to the nature of the proposed changes, interested parties were provided with a 60-day comment period.

A proposed rule concerning this action was published in the Federal Register on January 19, 2016 (81 FR 2775). Copies of the rule were mailed to all Board members, and a press release was issued regarding the proposed rule to notify the industry. Finally, the rule was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending March 21, 2016, was provided to allow interested persons to respond to the proposal.

Fifteen comments were received during the comment period in response to the proposal. The commenters included growers, shellers, manufacturers, congressional representatives, and an interested consumer. Fourteen of the comments were in support of the proposed rule. One comment was in opposition to the proposed changes to the outgoing quality requirements. Most of the points made by the commenter in opposition were discussed at the public meetings on June 26, 2015, and November 18, 2015, prior to the Board's vote.

All 14 of the positive comments expressed support for finalizing the proposed rule as issued. Five of these comments referenced support of the proposal's recognition of modern business management, food safety progress and technological change. Two commenters noted the changes will better reflect current industry practices while revising outdated language and reducing regulatory burden on the industry. One comment asserted that the changes will eliminate waste and costs to the industry. Another expressed that under the change to the outgoing requirements, users of peanuts can still request the desired level of damage by specification in their contracts. One commenter stated that food safety will not be affected by these changes since the outgoing standards for aflatoxin are unchanged.

The one negative comment received was from a manufacturer and opposed the proposed changes to the outgoing quality requirements. Specifically, the comment opposed the changes that will merge the previously separate categories for damage and minor defects for unshelled peanuts and kernels into one overall allowance for damage and increases that allowance to 3.5 percent, stating that the current requirements for damage and defects aligned with their requirements.

The commenter expressed concerns that the changes to the outgoing quality standards may hinder their ability to control the type of peanut being supplied from shellers and could result in additional inspections and added costs. However, the modification to the outgoing standards will not alter the customer's ability to specify conformity regarding damage or defect. The manufacturer's contract with the supplier can still specify the types of damage and defect, thereby maintaining the desired transparency and ensuring the visual and sensory product quality required by the manufacturer. The Federal-State Inspection Service can certify peanuts at the damage level requested, so this change should not result in the need for additional inspections.

Further, peanut customer requirements can vary depending on the end use of the peanuts. This is why the Board recommended increasing the allowable damage under the Standards. Some segments of the peanut industry do not require the same threshold for damage and defect. The proposed changes will allow for additional peanuts to be utilized for manufacturing in segments of the industry where cosmetic damage to the peanut is not as important.

The proposed changes to the outgoing quality requirement are designed to help improve the efficiency of handling operations and make additional peanuts available for all customers within the peanut industry. This was discussed during the public Board meetings on June 26, 2015, and November 18, 2015, prior to the Board's vote. During the meetings, Board members discussed the implication of adjusting the damage level to 3.5 percent and noted that the customer can still request a more stringent level than the Standards require. In fact, some manufacturers may already require tighter specifications for damage than currently allowed.

The commenter was also concerned with how these changes may affect aflatoxin levels and that the changes may result in more lots failing as to aflatoxin. All peanuts for human consumption will still be chemically analyzed by a USDA laboratory or a USDA-approved laboratory and certified “negative” as to aflatoxin. The criteria for the outgoing standard regarding aflatoxin was not modified as part of the proposed changes and still requires a certificate of analysis indicating that the level of aflatoxin does not exceed 15 parts per billion.

Accordingly, no changes will be made to the rule as proposed, based on the comments received.

After consideration of all relevant matter presented, including the information and recommendation submitted by the Board and other available information, it is hereby found that this rule, as hereinafter set forth, will tend to effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 996

Food grades and standards, Marketing agreements, Peanuts, Reporting and recordkeeping requirements.

For the reasons set forth in the preamble, 7 CFR part 996 is amended as follows:

PART 996—MINIMUM QUALITY AND HANDLING STANDARDS FOR DOMESTIC AND IMPORTED PEANUTS MARKETED IN THE UNITED STATES 1. The authority citation for 7 CFR part 996 continues to read as follows: Authority:

7 U.S.C. 7958.

2. Section 996.3 is revised to read as follows:
§ 996.3 Crop year.

Crop year means the calendar year in which the peanuts were planted as documented by the applicant for inspection.

3. Section 996.9 is revised to read as follows:
§ 996.9 Inshell peanuts.

Inshell peanuts means peanuts, the kernel or edible portions of which are contained in the shell in their raw or natural state which are milled but unshelled.

4. Section 996.10 is revised to read as follows:
§ 996.10 Inspection Service.

Inspection Service means the Federal Inspection Service, Specialty Crops Program, Agricultural Marketing Service, USDA, or the Federal-State Inspection Service.

5. Section 996.12 is revised to read as follows:
§ 996.12 Outgoing inspection.

Outgoing inspection means the sampling, inspection, and certification of either: shelled peanuts which have been cleaned, sorted, sized, and otherwise prepared for further processing; or inshell peanuts which have been cleaned, sorted, and otherwise prepared for further processing.

6. In § 996.13 revise the introductory text to read as follows:
§ 996.13 Peanuts.

Peanuts means the seeds of the legume Arachis hypogaea and includes both inshell and shelled peanuts produced in the United States or imported from foreign countries and intended for further processing prior to consumption by humans or animals, other than those intended for wildlife or those in green form for consumption as boiled peanuts.

7. Section 996.15 is revised to read as follows:
§ 996.15 Positive lot identification.

Positive lot identification is a means of identifying those peanuts meeting outgoing quality regulations as defined in § 996.31 and relating the inspection certificate issued by the Inspection Service, as defined in § 996.10, to the lot covered so that there is no doubt that the peanuts in the lot are the same peanuts described on the inspection certificate.

§ 996.17 [Removed and Reserved]
8. Section 996.17 is removed and reserved. 9. Section 996.19 is revised to read as follows:
§ 996.19 Shelled peanuts.

Shelled peanuts means the kernels or portions of kernels of peanuts in their raw or natural state after the shells are removed.

§ 996.30 [Amended]
10. Section 996.30 is amended by removing paragraphs (c) and (d). 11. Section 996.31 is amended by revising the table following paragraph (a) and paragraph (b)(2) to read as follows:
§ 996.31 Outgoing quality standards.

(a) * * *

Minimum Quality Standards—Peanuts for Human Consumption [Whole kernels and splits: Maximum limitations] Type and grade category Unshelled peanuts and damaged
  • kernels and
  • minor defects
  • (percent)
  • Total fall through sound whole kernels and/or sound split and broken kernels Foreign
  • materials
  • (percent)
  • Moisture
  • (percent)
  • Excluding Lots of “splits” Runner 3.50 6.00%; 17/64 inch round screen .20 9.00 Virginia (except No. 2) 3.50 6.00%; 17/64 inch round screen .20 9.00 Spanish and Valencia 3.50 6.00%; 16/64 inch round screen .20 9.00 No. 2 Virginia 3.50 6.00%; 17/64 inch round screen .20 9.00 Runner with splits (not more than 15% sound splits) 3.50 6.00%; 17/64 inch round screen .20 9.00 Virginia with splits (not more than 15% sound splits) 3.50 6.00%; 17/64 inch round screen .20 9.00 Spanish and Valencia with splits (not more than 15% sound splits) 3.50 6.00%; 16/64 inch round screen .20 9.00 Lots of “splits” Runner (not less than 90% splits) 3.50 6.00%; 17/64 inch round screen .20 9.00 Virginia (not less than 90% splits) 3.50 6.00%; 17/64 inch round screen .20 9.00 Spanish and Valencia (not less than 90% splits) 3.50 6.00%; 16/64 inch round screen .20 9.00

    (b) * * *

    (2) Not more than 3.50 percent peanuts with damaged or defective kernels;

    12. In § 996.40, paragraph (a), the last sentence of paragraph (b)(2), and paragraphs (b)(5) and (6) are revised to read as follows:
    § 996.40 Handling standards.

    (a) Identification: Each lot of shelled or cleaned- inshell peanuts intended for human consumption shall be identified by positive lot identification prior to being shipped or otherwise disposed of. Positive lot identification (PLI) methods are tailored to the size and containerization of the lot, by warehouse storage or space requirements, or by necessary further movement of the lot prior to certification. Positive lot identification is established by the Inspection Service and includes the following methods of identification. For domestic lots and repackaged import lots, PLI includes PLI stickers, tags or seals applied to each individual package or container in such a manner that is acceptable to the Inspection Service and maintains the identity of the lot. For imported lots, PLI tape may be used to wrap bags or boxes on pallets, PLI stickers may be used to cover the shrink-wrap overlap, doors may be sealed to isolate the lot, bags or boxes may be stenciled with a lot number, or any other means that is acceptable to the Inspection Service. The crop year means the calendar year in which the peanuts were planted as documented by the applicant. All lots of shelled and cleaned-inshell peanuts shall be shipped under positive lot identification procedures. However, peanut lots failing to meet quality requirements may be moved from a handler's facility to another facility owned by the same handler or another handler without PLI so long as such handler maintains a satisfactory records system for traceability purposes as defined in § 996.73.

    (b) * * *

    (2) * * * Both Subsamples 1-AB and 1-CD shall be accompanied by a notice of sampling or grade certificate, signed by the inspector, containing, at least, identifying information as to the handler or importer, and the positive lot identification of the shelled peanuts.

    (5) Handlers and importers may make arrangements for required inspection and certification by contacting the Inspection Service office closest to where the peanuts will be made available for sampling. For questions regarding inspection services, a list of Federal or Federal-State Inspection Service offices, or for further assistance, handlers and importers may contact: Specialty Crops Inspection Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Room 1536-S, (STOP 0240), Washington, DC, 20250-0240; Telephone: (202) 720-5870; Fax: (202) 720-0393.

    (6) Handlers and importers may make arrangements for required chemical analysis for aflatoxin content at the nearest USDA or USDA-approved laboratory. For further information concerning chemical analysis and a list of laboratories authorized to conduct such analysis contact: Science and Technology Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0270, Washington, DC 20250-0270; Telephone (202) 690-0621; Fax (202) 720-4631.

    13. In § 996.50: a. Revise paragraph (a); b. Remove paragraph (b)(2); c. Redesignate paragraph (b)(1) as paragraph (b)(2); redesignate paragraph (b) introductory text as (b)(1) and revise it; d. Remove paragraphs (e); e. Redesignate paragraphs (f), (g), (h), and (i) as paragraphs (e), (f), (g), and (h), respectively; and f. Revise newly redesignated paragraphs (e) and (f).

    The revisions read as follows:

    § 996.50 Reconditioning failing quality peanuts.

    (a) Lots of peanuts which have not been certified as meeting the requirements for disposition to human consumption outlets may be disposed for non-human consumption uses: Provided, That each such lot is positive lot identified using red tags, identified using a traceability system as defined in § 996.73, or other methods acceptable to the Inspection Service, and certified as to aflatoxin content (actual numerical count), unless they are designated for crushing. However, on the shipping papers covering the disposition of each such lot, the handler or importer shall cause the following statement to be shown: “The peanuts covered by this bill of lading (or invoice, etc.) are not to be used for human consumption.”

    (b)(1) Sheller oil stock residuals shall be positive lot identified using red tags, identified using a traceability system as defined in § 996.73, or other methods acceptable to the Inspection Service, and may be disposed of domestically or to the export market in bulk or bags or other suitable containers. Disposition to crushing may be to approved crushers. However, sheller oil stock residuals may be moved from a handler's facility to another facility owned by the same handler or another handler without PLI so long as such handler maintains a satisfactory records system for traceability purposes as defined in § 996.73.

    (e) Lots of shelled peanuts moved for remilling or blanching shall be positive lot identified and accompanied by valid grade inspection certificate, Except That, a handler's shelled peanuts may be moved without PLI and grade inspection to the handler's blanching facility that blanches only the handler's peanuts. Lots of shelled peanuts may be moved for remilling or blanching to another handler without PLI if the handler uses a traceability system as defined in § 996.73, Except That, any grade inspection certificates associated with these lots would no longer be valid. The title of such peanuts shall be retained by the handler or importer until the peanuts have been certified by the Inspection Service as meeting the outgoing quality standards specified in the table in § 996.31(a). Remilling or blanching under the provisions of this paragraph shall be performed only by those remillers and blanchers approved by USDA. Such approved entities must agree to comply with the handling standards in this part and to report dispositions of all failing peanuts and residual peanuts to USDA, unless they are designated for crushing.

    (f) Residual peanuts resulting from remilling or blanching of peanuts shall be red tagged, identified using a traceability system as defined in § 996.73, or identified by other means acceptable to the Inspection Service, and returned directly to the handler for further disposition or, in the alternative, such residual peanuts shall be positive lot identified by the Inspection Service and shall be disposed of to handlers who are crushers, or to approved crushers, Except That, a handler may move the residual peanuts without PLI to a facility for crushing owned by the handler. Handlers who are crushers and crushers approved by USDA must agree to comply with the terms and conditions of this part.

    14. In § 996.60: a. Revise paragraph (a); b. Remove paragraphs (b) and (c); and c. Redesignate paragraph (d) as paragraph (b).

    The revision reads as follows:

    § 996.60 Safeguard procedures for imported peanuts.

    (a) Prior to arrival of a foreign-produced peanut lot at a port-of-entry, the importer, or customs broker acting on behalf of the importer, shall submit information electronically to the United States Customs and Border Protection, which includes the following: The Customs Service entry number; the container number(s) or other identification of the lot(s); the volume of the peanuts in each lot being entered; the inland shipment destination where the lot will be made available for inspection; and a contact name or telephone number at the destination.

    15. In § 996.71: a. Remove paragraph (a); b. Redesignate paragraphs (b) and (c) as paragraphs (a) and (b), respectively; c. Revise newly redesignated paragraph (a); and d. Revise the last sentence in newly redesignated paragraph (b).

    The revisions read as follows:

    § 996.71 Reports and recordkeeping.

    (a) Each handler and importer shall maintain a satisfactory records system for traceability purposes as defined in § 996.73.

    (b) * * * USDA and USDA-approved laboratories shall file copies of all aflatoxin certificates completed by such laboratories with the Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1124 1st Street South, Winter Haven, Florida 33880; Telephone (863) 324-3375, Fax: (863) 291-8614, or other address as determined by USDA.

    16. Section 996.73 is revised to read as follows:
    § 996.73 Verification of reports.

    (a) For the purpose of checking and verifying reports kept by handlers and importers and the operation of handlers and importers under the provisions of this Part, the officers, employees or duly authorized agents of USDA shall have access to any premises where peanuts may be held at any time during reasonable business hours and shall be permitted to inspect any peanuts that meet outgoing quality regulations, so held by such handler or importer and any and all records of such handler with respect to the acquisition, holding, or disposition of all peanuts meeting outgoing quality regulations, which may be held or which may have been disposed by handler.

    (b) Reports shall be maintained by the handler for nonconforming products to assure traceability throughout the supply chain. The traceability system must include documented records, which enable a full product history to be produced in a timely manner and must ensure product can be traced forward (raw material to distribution) and backwards from distribution to the warehouse feeding the shelling plant, and ensure that all associated tests and all relevant records have been completed. The traceability system shall include identification of all raw materials, process parameters (for specific lot), packaging and final disposition. The handler shall be able to identify the warehouse in which the peanuts were stored immediately prior to shelling. Traceability must be maintained throughout production runs with specific lot codes, and there shall be complete linkage from raw material receipt through final disposition.

    17. In § 996.74: a. Remove paragraph (a)(1); b. Redesignate paragraphs (a)(2) through (7) as paragraphs (a)(1) through (6), respectively; c. Revise newly redesignated paragraphs (a)(3) and (5); and d. Revise paragraph (b).

    The revisions read as follows:

    § 996.74 Compliance.

    (a) * * *

    (3) Commingles failing quality peanuts with certified edible quality peanuts and ships the commingled lot for human consumption use without meeting outgoing quality regulations;

    (5) Fails to maintain and provide access to records, pursuant to § 996.71, and the standards for traceability and nonconforming product disposition pursuant to § 996.73, on the reconditioning or disposition of peanuts acquired by such handler or importer; and on lots that meet outgoing quality standards; or

    (b) Any peanut lot shipped which fails to meet the outgoing quality standards specified in § 996.31, and is not reconditioned to meet such standards, or is not disposed to non-human consumption outlets as specified in § 996.50, shall be reported by USDA to the Food and Drug Administration and listed on an Agricultural Marketing Service Web site.

    18. Section 996.75 is revised to read as follows:
    § 996.75 Effective time.

    The provisions of this part, as well as any amendments, shall apply to current crop year peanuts, subsequent crop year peanuts, and prior crop year peanuts not yet inspected, or failing peanut lots that have not met disposition standards, and shall continue in force and effect until modified, suspended, or terminated.

    Dated: July 27, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-18116 Filed 7-29-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 35 [Docket No. RM16-8-000; Order No. 828] Requirements for Frequency and Voltage Ride Through Capability of Small Generating Facilities AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) is modifying the pro forma Small Generator Interconnection Agreement (SGIA). The pro forma SGIA establishes the terms and conditions under which public utilities must provide interconnection service to small generating facilities of no larger than 20 megawatts. The Commission is modifying the pro forma SGIA to require newly interconnecting small generating facilities to ride through abnormal frequency and voltage events and not disconnect during such events. The specific ride through settings must be consistent with Good Utility Practice and any standards and guidelines applied by the transmission provider to other generating facilities on a comparable basis. The Commission already requires generators interconnecting under the Large Generator Interconnection Agreement to meet such requirements, and it would be unduly discriminatory not to also impose these requirements on small generating facilities. The Commission concludes that newly interconnecting small generating facilities should have ride through requirements comparable to large generating facilities.

    DATES:

    This final rule will become effective October 5, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Monica Taba (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6789, [email protected]. Alan Rukin (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8502, [email protected]. SUPPLEMENTARY INFORMATION:

    Order No. 828 Final Rule

    1. In this Final Rule, the Commission modifies the pro forma Small Generator Interconnection Agreement (SGIA) originally set forth in Order No. 2006 1 and revised in Order No. 792 2 to require small generating facilities interconnecting through the SGIA to ride through abnormal frequency and voltage events and not disconnect during such events.3 Pursuant to section 206 of the Federal Power Act (FPA), the Commission finds that, given the changes to conditions since the Commission last evaluated whether to impose ride through requirements on small generating facilities, the revisions to the pro forma SGIA are necessary to remedy undue discrimination by ensuring that small generating facilities have ride through requirements comparable to large generating facilities.4

    1Standardization of Small Generator Interconnection Agreements and Procedures, Order No. 2006, FERC Stats. & Regs. ¶ 31,180, order on reh'g, Order No. 2006-A, FERC Stats. & Regs. ¶ 31,196 (2005), order granting clarification, Order No. 2006-B, FERC Stats. & Regs. ¶ 31,221 (2006) (Order No. 2006).

    2Small Generator Interconnection Agreements and Procedures, Order No. 792, 145 FERC ¶ 61,159 (2013), clarified, Order No. 792-A, 146 FERC ¶ 61,214 (2014) (Order No. 792).

    3 In Order No. 2003, the Commission defined “ride through” to mean a generating facility staying connected to and synchronized with the transmission system during system disturbances within a range of over- and under-frequency conditions, in accordance with Good Utility Practice. Standardization of Generator Interconnection Agreements and Procedures, Order No. 2003, FERC Stats. & Regs. ¶ 31,146, at P 562 n.88 (2003), order on reh'g, Order No. 2003-A, FERC Stats. & Regs. ¶ 31,160, order on reh'g, Order No. 2003-B, FERC Stats. & Regs. ¶ 31,171 (2004), order on reh'g, Order No. 2003-C, FERC Stats. & Regs. ¶ 31,190 (2005), aff'd sub nom. Nat'l Ass'n of Regulatory Util. Comm'rs v. FERC, 475 F.3d 1277 (D.C. Cir. 2007), cert. denied, 552 U.S. 1230 (2008) (Order No. 2003). Reliability Standard PRC-024-1 requires bulk electric system generation to ride through over- and under-voltage conditions.

    4 16 U.S.C. 824e.

    2. As a result of this Final Rule, small generating facilities are required to not disconnect automatically or instantaneously from the system or equipment of the transmission provider and any affected systems for an under-frequency or over-frequency condition, or an under-voltage or over-voltage condition. Furthermore, the transmission provider must coordinate the small generating facility's protective equipment settings with any automatic load shedding program (e.g., under-frequency load shedding, under-voltage load shedding). The specific ride through settings must be consistent with Good Utility Practice and any standards and guidelines applied by the transmission provider to other generating facilities on a comparable basis. These requirements will apply to new interconnection customers that execute or request the unexecuted filing of an SGIA on or after the effective date of this Final Rule. These requirements will also apply to existing interconnection customers that, pursuant to a new interconnection request, execute or request the unexecuted filing of a new or modified SGIA on or after the effective date of this Final Rule.

    I. Background

    3. The pro forma SGIA establishes the terms and conditions under which public utilities must provide interconnection service to small generating facilities of no larger than 20 megawatts (MW). Currently, the pro forma SGIA does not mandate that small generating facilities have the capability to ride through voltage or frequency disturbances.

    4. In Order No. 2006, the Commission explored whether voltage ride through requirements proposed for large wind generating facilities should apply to small generating facilities.5 A commenter during that proceeding asked the Commission to implement ride through standards for small generating facilities similar to those proposed for large generating facilities. However, other commenters responded that special capabilities, such as low voltage ride through, were not needed for any small generating facility, whether wind-powered or not. The Commission concluded that wind generating facilities interconnecting under Order No. 2006 would be small and would have minimal impact on the transmission provider's electric system and, therefore, need not be subject to ride through requirements.6

    5 Order No. 2006, FERC Stats. & Regs. ¶ 31,180 at P 24.

    6Id. The penetration of small generating facilities has increased since the Commission analyzed the impact of small generating facilities in Order No. 2006. See infra P 8.

    5. More recently, the Commission again addressed these requirements with regard to small generating facilities in Order No. 792.7 In that proceeding, the Commission proposed to revise section 1.5.4 of the pro forma SGIA to address the reliability concern related to automatic disconnection of small generating facilities during over- and under-frequency events, which could become a greater concern at high penetrations of distributed energy resources.8 The proposed revisions to section 1.5.4 would have required the interconnection customer to design, install, maintain, and operate its small generating facility, in accordance with the latest version of the applicable standards to prevent automatic disconnection during over- and under-frequency events.9

    7 Order No. 792, 145 FERC ¶ 61,159.

    8Small Generator Interconnection Agreements and Procedures, Notice of Proposed Rulemaking, 142 FERC ¶ 61,049, at P 46 (2013) (Order No. 792 NOPR). NERC defines distributed energy resources to mean resources that are distributed geographically and not centralized like traditional generation resources. NERC, Essential Reliability Services Task Force Measures Report, (Nov. 2015), http://www.nerc.com/comm/Other/essntlrlbltysrvcstskfrcDL/ERSTF%20Framework%20Report%20-%20Final.pdf.

    9Id.

    6. The Commission declined to adopt this proposed revision in Order No. 792.10 Instead, the Commission recognized that the Institute of Electrical and Electronics Engineers (IEEE) was, at the time, in the process of amending IEEE Standard 1547, which is an interconnection standard for interconnecting distributed resources with electric power systems that is referenced in the Small Generator Interconnection Procedures.11 The Commission also noted that IEEE was about to begin a full IEEE Standard 1547 revision process in 2014, where frequency and voltage ride through requirements in the standard were to be evaluated. The Commission concluded that it would continue to monitor the IEEE Standard 1547 revision process and could revise the pro forma SGIA as it relates to IEEE Standard 1547 in the future, if necessary.12

    10 Order No. 792, 145 FERC ¶ 61,159 at P 220.

    11Id.

    12Id.

    7. Since the Commission issued Order No. 792, IEEE has completed a partial revision of IEEE Standard 1547, which is IEEE Standard 1547a. IEEE is now in the process of fully revising IEEE Standard 1547. The partially revised standard, IEEE Standard 1547a, permits generating facilities to have wider trip settings compared with IEEE Standard 1547. These wider trip settings allow generating facilities to stay connected to the grid for greater frequency or voltage excursions facilitating their ability to ride through such excursions. IEEE Standard 1547a also permits—but does not mandate—ride through requirements.13

    13 IEEE Standard 1547a contains “must trip” requirements; it does not have “must ride through” requirements. By widening the trip settings, IEEE Standard 1547a permits generating facilities to trip at a later time. This change effectively allows generating facilities to ride through disturbances, but they are not required to do so.

    8. Following the Commission's evaluation of the need for ride through requirements for small generating facilities in the Order Nos. 2006 and 792 rulemaking proceedings, the impact of small generating facilities on the grid has changed, and the amount has increased. For example, as the North American Electric Reliability Corporation (NERC) has noted in multiple reports, the mix of generation resources is changing and the high penetration of distributed energy resources will impact the reliability of the electric grid if sufficient care is not taken to mitigate potential adverse impacts.14 NERC also has found that a lack of coordination between small generating facilities and Reliability Standards can lead to events where system load imbalance may increase during frequency excursions or voltage deviations due to the disconnection of distributed energy resources, which may exacerbate a disturbance on the Bulk-Power System.15 In addition, the Commission has observed the growth in grid-connected solar photovoltaic generation since the issuance of Order No. 2006 and the growth in small generator interconnection requests driven by state renewable portfolio standards, reductions in cost for solar panels, and deployment of new technologies.16 Moreover, technology now available to newly interconnecting small generating facilities, such as smart inverters, permits the capability to ride through frequency and voltage disturbances.17

    14See NERC Special Report, Potential Bulk System Reliability Impacts of Distributed Resources (Aug. 2011), http://www.nerc.com/docs/pc/ivgtf/IVGTF_TF-1-8_Reliability-Impact-Distributed-Resources_Final-Draft_2011.pdf; see also NERC Integration of Variable Generation Task Force Draft Report, Performance of Distributed Energy Resources During and After System Disturbance (Dec. 2013), http://www.nerc.com/comm/PC/Integration%20of%20Variable%20Generation%20Task%20Force%2011/IVGTF17_PC_FinalDraft_December_clean.pdf.

    15 NERC Essential Reliability Services Report at 21.

    16See, e.g., Order No. 792, 145 FERC ¶ 61,159 at P 15; Solar Energy Indus. Ass'n, Solar Industry Data, http://www.seia.org/research-resources/solar-industry-data (last visited Jul. 5, 2016).

    17See Electric Power Research Institute, Recommended Settings for Voltage and Frequency Ride Through of Distributed Energy Resources, 28-29 (May 2015), http://www.epri.com/abstracts/Pages/ProductAbstract.aspx?ProductId=000000003002006203.

    II. Notice of Proposed Rulemaking

    9. On March 23, 2016, the Commission issued a Notice of Proposed Rulemaking that proposed to add new section 1.5.7 to the pro forma SGIA,18 which would require small generating facilities to ride through defined frequency and voltage disturbances.

    18Requirements for Frequency and Voltage Ride Through Capability of Small Generating Facilities, 154 FERC ¶ 61,222 (2016) (NOPR).

    10. In response to the NOPR, eleven entities submitted substantive comments, which generally support the Commission's proposal.19 These comments have informed our determinations in this Final Rule.

    19 Appendix A lists the entities that submitted comments and the shortened names used throughout this Final Rule to describe those entities.

    III. Discussion

    11. For the reasons discussed below, we adopt the NOPR proposal and require small generating facilities to ride through abnormal frequency and voltage events comparable to large generating facilities. We find that, given the changes to conditions since the Commission last evaluated whether to impose ride through requirements on small generating facilities, the revisions to the pro forma SGIA are necessary to remedy undue discrimination by ensuring that small generating facilities have ride through requirements comparable to large generating facilities.20 Specifically, since the Commission's last consideration of this issue, IEEE has revised its standards, and IEEE Standard 1547a now provides wider trip settings that allow small generating facilities more leeway to ride through disturbances. In addition, distributed energy resources have had an increasing presence and impact on the electric system. The absence of ride through requirements for small generating facilities increases the risk that an initial voltage or frequency disturbance may cause a significant number of small generating facilities to trip across a particular area or Interconnection, further exacerbating the initial disturbance. Large generating facilities are already subject to ride through requirements to avoid these types of occurrences.21

    20 16 U.S.C. 824e. The Commission routinely evaluates the effectiveness of its regulations and policies in light of changing industry conditions to determine if changes in these conditions and policies are necessary. See, e.g., Integration of Variable Energy Resources, Order No. 764, FERC Stats. & Regs, ¶ 31,331 (2012).

    21See Order No. 2003, FERC Stats. & Regs. ¶ 31,146 at P 562 n.88.

    12. The Commission acknowledges that some areas have a greater penetration of distributed resources than others at this time. Nevertheless, the Commission believes that the proposed reforms to the pro forma SGIA are appropriate on an industry-wide basis now. The Commission continues to affirm that this Final Rule is not intended to interfere with state interconnection procedures or agreements in any way. The pro forma SGIA applies only to interconnections made subject to a jurisdictional open access transmission tariff (OATT) for the purposes of jurisdictional wholesale sales. Similar to the approach in Order Nos. 2006 and 792, the Commission hopes that the changes to the pro forma SGIA resulting from this Final Rule will be helpful to states when updating their own interconnection rules, but the states are under no obligation to adopt the provisions of the Commission's proposal.22

    22 Order No. 792, 145 FERC ¶ 61,159 at P 27; Order No. 2006, FERC Stats. & Regs. ¶ 31,180 at P 8.

    A. Revision of the Pro Forma SGIA 1. NOPR Proposal

    13. In the NOPR, the Commission proposed to revise the pro forma SGIA to include proposed section 1.5.7, which would require interconnection customers to ensure the frequency ride through capability and the voltage ride through capability of small generating facilities that execute or request the unexecuted filing of interconnection agreements following the effective date of the proposed section 1.5.7. Proposed section 1.5.7 would also require a small generating facility not to disconnect automatically or instantaneously from the system or equipment of the transmission provider and any affected systems for an under-frequency or over-frequency condition, or an under-voltage or over-voltage condition. In addition, the transmission provider must coordinate the small generating facility's protective equipment settings with any automatic load shedding program.

    2. Comments

    14. The substantive comments filed in response to the NOPR generally support the proposal to modify the pro forma SGIA.23 Commenters agree with the need for fair and equitable treatment between small and large generating facilities, the need for effective protections for system operation while also avoiding increased costs, and the potential to improve system stability and reliability over the coming years by adopting the proposed modifications to the pro forma SGIA.24 Commenters acknowledge the proposal's benefits, stating it will simplify operational conditions, especially considering the rising small generator penetration levels on the distribution system.25 NERC states that revising the pro forma SGIA to impose ride through requirements would be consistent with the results of a number of NERC's reliability assessments.26 Trade Associations and PNM agree that the absence of ride through requirements for small generating facilities increases the risk that an initial voltage or frequency disturbance may cause a significant number of small generating facilities to trip offline, exacerbating the initial disturbance.27

    23 Peak Reliability Comments at 3; Idaho Power Comments at 2; PNM Comments at 1; SoCal Edison Comments at 2; ISO/RTO Council Comments at 6; Trade Associations Comments at 4; Bonneville Comments at 1; EPRI Comments at 7; NERC Comments at 2; PG&E Comments at 2.

    24 SoCal Edison Comments at 2; Peak Reliability Comments at 3; EPRI Comments at 7.

    25 PNM Comments at 2; Trade Associations Comments at 7.

    26 NERC Comments at 4.

    27 PNM Comments at 2; Trade Associations Comments at 7.

    15. Idaho Power claims that if more small generation facilities connect to its system, without the proposed changes to the pro forma SGIA, it would become increasingly difficult for it to comply with Reliability Standards PRC-006-2 (Automatic Underfrequency Load Shedding) and BAL-003-1.1 (Frequency Response and Frequency Bias Setting).28

    28 Idaho Power Comments at 2.

    16. The ISO/RTO Council recommends that the proposed required characteristics for small generating facilities should be demonstrated “as tested,” and that this should be specified in the pro forma SGIA section 1.5.7. The ISO/RTO Council notes that demonstrating characteristics “as tested” is already required under section 24 of the large generator interconnection agreement (LGIA). The ISO/RTO Council further explains that, while the pro forma SGIA does not presently have such language, the “as tested” requirement applies to small generating facilities pursuant to the directives in Order No. 2006.29

    29 ISO/RTO Council Comments at 7 (citing Order No. 2006, FERC Stats. & Regs. ¶ 31,180 at P 59).

    17. Some commenters request that the Commission delay implementation of the Final Rule. While EPRI does not believe that additional action is required for other existing interconnected small generating facilities, EPRI comments that additional reliability studies may be required if aggregate penetration levels increase sufficiently before the modifications to the pro forma SGIA and revised IEEE Standard 1547 become effective.30 EPRI notes the need for timely revision and balloting of IEEE Standard 1547, as well as prompt adoption of the standard.31 Trade Associations suggest waiting until after key industry standards are approved and the safety and effectiveness of smart inverter technology is validated. 32 Trade Associations request time to allow entities to resolve outstanding concerns such as personnel and asset safety, as well as the ability to effectively coordinate protections systems between the local utility and interconnecting resources.33 EPRI and IEEE assert that relevant stakeholders, including transmission owners and transmission operators, should engage with the IEEE Standard 1547 revision process to ensure that the final framework and requirements for ride through can be consistently applied to meet individual system needs.34

    30 EPRI Comments at 7.

    31Id. at 7-8.

    32 Trade Associations Comments at 7-8; EPRI Comments at 7-8.

    33 Trade Associations Comments at 7-8.

    34 EPRI Comments at 7-8.

    18. Trade Associations claim that the new ride through capability requirements are only possible through smart inverter technology, but point out that key associated specifications contained in the reference standards remain unapproved. Trade Associations explain that distribution feeders are often designed as radial feeders that depend on remote generation to quickly disconnect when the utility source is disconnected. According to Trade Associations, failure to do so may result in unintentional islands which create safety hazards for personnel and customers, as well as liability concerns. Trade Associations caution that directing small generation facilities to ride through disturbances may create islanding conditions and relaxed response to fault conditions.

    19. Further, Trade Associations claim that more industry discussion is needed to ensure that small generators' interconnections meet the unique regional utility safety and reliability concerns before the proposed revisions to section 1.5.7 of the pro forma SGIA are adopted. Trade Associations suggest that the Commission include the issues in this proceeding in the three regional technical conferences recommended by Edison Electric Institute in Docket No. RM16-6-000.35

    35 Trade Associations Comments at 13-14. In Docket No. RM16-6-000, the Commission issued a Notice of Inquiry seeking comment on the need for reforms to its rules and regulations regarding the provision and compensation of primary frequency response.

    20. Trade Associations also suggest that the Commission explore how changes made to the pro forma SGIA often influence state regulations. Trade Associations note that distribution level interconnections are broadly supported by industry standards and company interconnection rules; and alignment to pro forma SGIA may be inappropriate for some state regulations.36

    36 Trade Associations Comments at 14.

    3. Commission Determination

    21. As discussed above, we find the revisions to the pro forma SGIA adopted herein are necessary to remedy treatment that is unjust, unreasonable, and unduly discriminatory and preferential because there is no technical or economic basis to require small and large generating facilities to follow different requirements in regards to voltage and frequency ride through. Our revisions will place similar requirements on large generating facilities and small generating facilities for ride through capabilities. As discussed above, the NOPR proposal received widespread support from commenters. Further, the absence of ride through requirements for small generating facilities may have adverse impacts on the reliability of the electric grid. We find that the lack of ride through requirements for small generating facilities is unduly discriminatory. This is due to the increased presence and impact of small generating facilities, including distributed energy resources, on the electric system, that could create reliability issues if they do not have the capability to ride through voltage or frequency disturbances. Further, improvements in technology, such as smart inverters, make it economically feasible for small generating facilities to ride through voltage and frequency disturbances. We acknowledge that some areas have a greater penetration of distributed resources than others at this time. Nevertheless, we believe that the proposed reforms to the pro forma SGIA are appropriate on an industry-wide basis now and that deferred action would not be appropriate.

    22. We recognize the work of the IEEE 1547 Working Group, but we determine that there is a pressing need to establish ride through capability requirements at this time because we expect a continuing increase in penetration of small generating facilities. The revisions to the pro forma SGIA that we now approve will require the small generating facility to implement ride through settings based on a technical standard established by the transmission provider.

    23. While Trade Associations point out that IEEE is revising IEEE Standard 1547, the standard does not currently require ride through capability. We are acting now to ensure that all affected jurisdictional small generating facilities will have the ride through capability, as allowed by IEEE Standard 1547a.37

    37 As we also explained in the NOPR, the Commission's proposal was not intended to impede the ongoing efforts of the IEEE 1547 Working Group, and we reiterate that point here. NOPR, 154 FERC ¶ 61,222 at P 8 n.19.

    24. We are persuaded by the ISO/RTO Council's recommendation to add the “as tested” language to section 1.5.7 of the pro forma SGIA to harmonize the requirements between the pro forma SGIA and the pro forma LGIA. Pursuant to this “as tested” language, the interconnection customer must provide the successfully completed test results to the transmission provider in a similar manner as in section 24.4 of the pro forma LGIA. We believe that the addition of “as tested” language does not create an extra burden on either party to an interconnection agreement because the pro forma SGIA already includes testing requirements in section 2.1.38 The “as tested” language assures the transmission provider that the required ride through capability can actually be performed by the small generating facility.

    38Pro forma SGIA, Section 2.1 “Equipment Test and Inspection.”

    25. We hereby adopt new section 1.5.7 of the pro forma SGIA showing the changes made to the Commission's proposal in the NOPR as follows:

    1.5.7 The Interconnection Customer shall ensure “frequency ride through” capability and “voltage ride through” capability of its Small Generating Facility. The Interconnection Customer shall enable these capabilities such that its Small Generating Facility shall not disconnect automatically or instantaneously from the system or equipment of the Transmission Provider and any Affected Systems for a defined under-frequency or over-frequency condition, or an under-voltage or over-voltage condition, as tested pursuant to section 2.1 of this agreement. The defined conditions shall be in accordance with Good Utility Practice and consistent with any standards and guidelines that are applied to other generating facilities in the Balancing Authority Area on a comparable basis. . . .

    26. We recognize the Trade Associations' concern about potential tension between ride through requirements and anti-islanding protection. Ensuring the safety of utility lineworkers is critically important, and an issue the Commission takes seriously. Based on our consideration of the record, we believe that the ride through requirements adopted herein are technically and safely achievable. In particular, we note that this Final Rule provides significant flexibility for transmission providers to account for potential safety and islanding concerns. For example, the transmission provider can determine specific ride through settings needed to address those concerns so long as those settings are consistent with Good Utility Practice and any standards and guidelines applied to other generating facilities on a comparable basis.

    27. Furthermore, we note that islanding and personnel safety are not new issues resulting from this Final Rule; to the contrary, they will continue to be important concerns regardless of the reforms adopted in this Final Rule. Accordingly, we emphasize the importance of implementing ride through requirements through careful coordination between the interconnection customer and the transmission provider, as well as the utilization of appropriate safety procedures for utility personnel, particularly effective and thorough communication for lineworkers in the field, when performing remedial actions following a system disturbance. We support the continued efforts by industry to explore innovative ways to detect island conditions in order to mitigate the risk of unintentional islands.

    28. In light of our goal to prevent undue discrimination, we seek to provide guidelines that will be applied to generating facilities on a comparable basis, while allowing for justified differences on a case by case basis. For example, if a transmission provider believes a particular facility has a higher risk of unintentional islanding due to specific conditions on that facility, the revisions to the pro forma SGIA will permit the transmission provider to coordinate with the small generating facility to set ride through settings appropriate for those conditions, in accordance with Good Utility Practice and the appropriate technical standards. For facilities with a lower risk of forming an unintentional island, the transmission provider can implement a longer ride through requirement, in accordance with Good Utility Practice and the appropriate technical standards. We believe that the flexibility provided by section 1.5.7 allows for appropriate ride through requirements while recognizing the need to address any safety concerns.

    B. Referencing Specific Technical Standards 1. NOPR Proposal

    29. In the NOPR, the Commission proposed to avoid prescriptive frequency and voltage ride through requirements to allow for the development of appropriate system- specific standards, noting that the standards can be based on work developed by recognized standards settings bodies, such as IEEE.

    2. Comments

    30. Commenters request that the proposed rule contain explicit references to standards such as the Reliability Standards and IEEE and UL standards.39 The ISO/RTO Council states that Reliability Standards already provide requirements for coordination of automatic under-frequency generator tripping with automatic under-frequency load shedding programs that should be incorporated in the new ride through requirements. The ISO/RTO Council suggests that the pro forma SGIA explicitly reference Reliability Standard PRC-024 (Generator Frequency and Voltage Protective Relay Settings) and applicable regional Reliability Standards as part of the definition of “Good Utility Practice” and for the coordination of automatic generator tripping with automatic load shedding.40 The ISO/RTO Council also recommends that the pro forma SGIA refer to the Reliability Standards and regional Reliability Standards for coordination of automatic generator tripping with automatic load shedding, and as appropriate, permit individual transmission providers to also reference their automatic load-shed program.

    39 ISO/RTO Council Comments at 7.

    40Id. at 6-7.

    31. Commenters assert that specifying certain technical standards would be beneficial for consistent enforceability; specifically, some commenters suggest that the pro forma SGIA reference IEEE and UL 1741 standards to describe “Good Utility Practice.” 41 EPRI and IEEE comment that failure to harmonize ride through requirements with the proposed draft IEEE 1547 requirements may introduce confusion and ultimately delay testing and compliance, exposing the electric system to an increased reliability risk.42 PNM recognizes that there are challenges to developing specific settings applicable to all small generating facilities.43 However, PNM states that the Commission should still consider documenting some ride through expectation similar to those outlined in the LGIA requirements. PNM requests that the pro forma SGIA revisions consider a minimum ride through duration based on fault clearing times and a minimum voltage. PNM also requests that the Commission specify the location where the frequency and voltage measurements are taken to comply with the requirements, such as the point of interconnection.

    41 PNM Comments at 3; EPRI Comments at 13; IEEE Comments at 2.

    42 EPRI Comments at 13; IEEE Comments at 2.

    43 PNM Comments at 2.

    32. SoCal Edison observes that the California Public Utilities Commission (CPUC) has established, through its retail Rule 21 tariff, smart inverter requirements for small generators interconnecting to the distribution systems of California's investor owned utilities, and low/high voltage ride through and low/high frequency ride through are part of the new required capabilities for small generators.44 SoCal Edison explains that the CPUC ordered all investor owned utilities “to seek approval as may be needed for conforming changes to harmonize their federal wholesale Tariffs interconnection specifications with the revisions to Electric Tariff Rule 21.” 45

    44 SoCal Edison Comments at 3.

    45Id.

    3. Commission Determination

    33. We are not persuaded by commenters' arguments for the need to reference specific technical standards and decline to incorporate by reference any specific standard into the pro forma SGIA or to specify ride through duration and voltage and frequency levels. We therefore decline to modify the NOPR proposal in this regard.

    34. To accommodate the differences in voltage and frequency ride through capabilities inherent in the different generation technologies, we believe that requiring basic performance expectations without explicitly specifying the duration or voltage and frequency levels allows the flexibility to apply appropriate ride through settings with coordination and approval of the transmission operator. As EPRI and IEEE note, the ride through requirement framework in the draft IEEE Standard 1547 is being structured along “performance categories” that take into account the technological differences of various types of small generating facilities. Once finalized, IEEE Standard 1547 may be used as a technical guide to meet the requirements adopted herein. Until revisions to IEEE Standard 1547 are finalized, however, transmission providers and affected interconnection customers must coordinate appropriate alternative frequency and voltage ride through settings.

    35. Furthermore, as a pragmatic matter, by setting minimum ride through capability requirements that are not tied to a specific standard, the requirements in section 1.5.7 of the pro forma SGIA would remain applicable following any updates from IEEE Standard 1547 or other applicable standards, without having to modify the pro forma SGIA each time any such standard is updated.

    36. In response to PNM's clarification request, we clarify that the point of interconnection is the appropriate place to measure frequency and voltage to comply with the ride through requirements.

    C. Regional Differences 1. NOPR Proposal

    37. The Commission proposed to permit RTOs and ISOs to seek “independent entity variations” from the proposed revisions to the pro forma SGIA.

    2. Comments

    38. Multiple commenters support the Commission's proposal to permit RTOs and ISOs to seek “independent entity variations” from the proposed revisions to the pro forma SGIA.46

    46 Trade Associations Comments at 12-13; SoCal Edison Comments at 4; ISO/RTO Council Comments at 6.

    39. Trade Associations request that the Commission also affirm the ability of transmission providers that are not members of RTOs or ISOs to seek variations from the pro forma SGIA to ensure consistency with regional reliability requirements. Trade Associations explain that differences in resource penetration and configuration (such as state renewable portfolio standards or wind generation in remote locations) have led to regional reliability requirements. Trade Associations note that the Commission recognized in Order No. 2003 that such regional reliability requirements might justify variations to pro forma interconnection agreements and procedures.47 SoCal Edison believes that, to the extent that some regions may need additional time to implement the proposed ride through requirements on small generating facilities, the Commission should grant such time.48

    47 Trade Associations Comments at 12-13.

    48 SoCal Edison Comments at 4.

    3. Commission Determination

    40. We adopt the NOPR proposal and permit ISOs and RTOs to seek “independent entity variations” from revisions to the pro forma SGIA.49 Also, as proposed in the NOPR, if a transmission provider seeks a deviation from section 1.5.7 of the pro forma SGIA, it must demonstrate that the deviation is consistent with or superior to the principles set forth in this Final Rule.

    49See Order No. 792, 145 FERC ¶ 61,159 at P 274 (citing Order No. 2003, FERC Stats. & Regs. ¶ 31,146 at PP 822-827).

    41. In addition, we clarify that we will also consider requests for “regional reliability variations,” provided that such requests are supported by references to regional Reliability Standards, explain why these regional Reliability Standards support the requested variation, and include the text of the referenced Reliability Standards.50 While some regions currently have greater penetration of small generation facilities than others, we are acting now to set a national minimum ride through capability before future increases in deployment of small generation facilities.

    50See id. P 273 (citing Order No. 2006, FERC Stats. & Regs. ¶ 31,180 at P 546).

    IV. Compliance and Implementation

    42. Section 35.28(f)(1) of the Commission's regulations requires every public utility with a non-discriminatory open access transmission tariff OATT on file to also have an SGIA on file with the Commission.51

    51 18 CFR 35.28(f)(1).

    43. We reiterate that the requirements of this Final Rule apply to all newly interconnecting small generating facilities that execute or request the unexecuted filing of an SGIA on or after the effective date of this Final Rule as well as existing interconnection customers that, pursuant to a new interconnection request, execute or request the unexecuted filing of a new or modified SGIA on or after the effective date.

    44. We require each public utility transmission provider that has an SGIA within its OATT to submit a compliance filing within 65 days following publication in the Federal Register.52 The compliance filing must demonstrate that it meets the requirements set forth in this proposal.

    52 For purposes of this Final Rule, a public utility is a utility that owns, controls, or operates facilities used for transmitting electric energy in interstate commerce, as defined by the FPA. See 16 U.S.C. 824(e). A non-public utility that seeks voluntary compliance with the reciprocity condition of an OATT may satisfy that condition by filing an OATT, which includes an SGIA.

    45. The Commission recently issued Order No. 827, a final rule in Docket No. RM16-1-000, directing transmission providers to submit SGIA revisions related to reactive power requirements to the Commission.53 Those compliance filings are due to the Commission on September 21, 2016. To facilitate administrative efficiency, we will require the compliance filings for this Final Rule and Order No. 827 to be filed in one combined filing. Once this Final Rule is published in the Federal Register, the Commission will provide a short extension to the compliance dates in both proceedings such that the compliance dates are the same.

    53Reactive Power Requirements for Non-Synchronous Generation, Order No. 827, 81 FR 40,793 (Jun. 23, 2016), 155 FERC ¶ 61,277 (2016).

    46. As discussed above, we are not requiring changes to interconnection agreements that were executed prior to the effective date of this Final Rule. Instead, the requirements of this Final Rule apply to newly interconnecting small generating facilities that execute or request the unexecuted filing of an interconnection agreement on or after the effective date. The requirements of this Final Rule also apply to existing small generating facilities that, pursuant to a new interconnection request, require new or modified interconnection agreements that are executed or requested to be filed unexecuted on or after the effective date.

    47. Some public utility transmission providers may have provisions in their existing SGIAs or other document(s) subject to the Commission's jurisdiction that the Commission has deemed to be consistent with or superior to the pro forma SGIA or are permissible under the independent entity variation standard or regional reliability standard.54 Where these provisions would be modified by this Final Rule, public utility transmission providers must either comply with this Final Rule or demonstrate that these previously-approved variations continue to be consistent with or superior to the pro forma SGIA as modified by this Final Rule or continue to be permissible under the independent entity variation standard or regional reliability standard.55

    54See Order No. 792, 145 FERC ¶ 61,159 at P 270.

    55See 18 CFR 35.28(f)(1)(i).

    48. We find that transmission providers that are not public utilities must adopt the requirements of this Final Rule as a condition of maintaining the status of their safe harbor tariff or otherwise satisfying the reciprocity requirement of Order No. 888.56

    56Promoting Wholesale Competition Through Open Access Non-Discriminatory Transmission Services by Public Utilities; Recovery of Stranded Costs by Public Utilities and Transmitting Utilities, Order No. 888, FERC Stats. & Regs. ¶ 31,036, at 31,760-63 (1996), order on reh'g, Order No. 888-A, FERC Stats. & Regs. ¶ 31,048, order on reh'g, Order No. 888-B, 81 FERC ¶ 61,248 (1997), order on reh'g, Order No. 888-C, 82 FERC ¶ 61,046 (1998), aff'd in relevant part sub nom. Transmission Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000), aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).

    V. Information Collection Statement

    49. The following collection of information contained in this Final Rule is subject to review by the Office of Management and Budget (OMB) regulations under section 3507(d) of the Paperwork Reduction Act of 1995.57 OMB's regulations require approval of certain information collection requirements imposed by agency rules.58 Upon approval of a collection of information, OMB will assign an OMB control number and expiration date. Respondents subject to the filing requirements of this Final Rule will not be penalized for failing to respond to this collection of information unless the collection of information displays a valid OMB control number.

    57 44 U.S.C. 3507(d).

    58 5 CFR 1320.11.

    50. The reforms adopted in this Final Rule revise the Commission's pro forma SGIA in accordance with section 35.28(f)(1) of the Commission's regulations.59 This Final Rule applies to all newly interconnecting small generating facilities that execute or request the unexecuted filing of an SGIA on or after the effective date of this Final Rule as well as existing interconnection customers that, pursuant to a new interconnection request, execute or request the unexecuted filing of a new or modified SGIA on or after the effective date, to ensure frequency ride through capability and voltage ride through capability in accordance with good utility practice and consistent with any standards and guidelines that are applied to other generating facilities in the balancing authority area on a comparable basis. The reforms adopted in this Final Rule would require filings of SGIAs with the Commission. The Commission anticipates the revisions required by this Final Rule, once implemented, will not significantly change existing burdens on an ongoing basis. With regard to those public utility transmission providers that believe that they already comply with the revisions adopted in this Final Rule, they can demonstrate their compliance in the filing required 65 days after the effective date of this Final Rule. The Commission will submit the proposed reporting requirements to OMB for its review and approval under section 3507(d) of the Paperwork Reduction Act.60

    59 18 CFR 35.28(f)(1).

    60 44 U.S.C. 3507(d).

    51. While the Commission expects the revisions adopted in this Final Rule will provide significant benefits, the Commission understands that implementation would entail some costs. The Commission solicited comments on the accuracy of provided burden and cost estimates and any suggested methods for minimizing the respondents' burdens. The Commission did not receive any comments concerning its burden or cost estimates. As explained above, we will require the compliance filings for this Final Rule and Order No. 827 to be filed in one combined filing. We expect that this will reduce the burden on public utility transmission providers at the time the Commission gives notice of the extension of the compliance date and requirement to combine compliance filings.

    Burden Estimate: The Commission believes that the burden estimates below are representative of the average burden on respondents. The estimated burden and cost for the requirements adopted in this Final Rule follow.61

    61 Commission staff estimates that industry is similarly situated in terms of hourly cost (wages plus benefits). Based on the Commission 2016 average cost (wages plus benefits), $74.50/hour is used.

    FERC 516A Revisions in RM16-8 Number of
  • respondents 62
  • Annual
  • number of
  • responses per
  • respondent
  • Total number of responses Average burden
  • (hrs.) & cost ($)
  • per response
  • Total annual burden hrs. & total annual cost ($)
    (1) (2) (1)*(2)=(3) (4) (3)*(4)=(5) Conforming SGIA changes to incorporate revisions 118 1 118 7.5 hrs.; $558.75 885 hrs.; $65,932.50 Total 118 7.5 hrs.; $558.75 885 hrs.; $65,932.50

    Cost to Comply: The Commission has projected the additional cost of compliance as follows: 63

    62 Number of Applicable Registered Entities.

    63 The costs for Year 1 would consist of filing proposed changes to the pro forma SGIA with the Commission within 65 days of the effective date of the final revision plus initial implementation. The Commission does not expect any ongoing costs beyond the initial compliance in Year 1.

    • Year 1: $65,932.50 for all affected entities ($558.75/utility) • Year 2 and subsequent years: $0 After implementation in Year 1, the reforms proposed in this Final Rule would be complete.

    Title: FERC-516A, Standardization of Small Generator Interconnection Agreements and Procedures.

    Action: Revision of currently approved collection of information.

    OMB Control No.: 1902-0203.

    Respondents for This Rulemaking: Businesses or other for profit and/or not-for-profit institutions.

    Frequency of Information: One-time during Year 1.

    Necessity of Information: The Commission adopts changes to the pro forma SGIA in order to more efficiently and cost-effectively interconnect generating facilities no larger than 20 MW (small generating facilities) to Commission-jurisdictional transmission systems. The purpose of this Final Rule is to revise the pro forma SGIA so small generating facilities can be reliably and efficiently integrated into the electric grid and to ensure that Commission-jurisdictional services are provided at rates, terms and conditions that are just and reasonable and not unduly discriminatory or preferential. This Final Rule seeks to achieve this goal by amending the pro forma SGIA to include new section 1.5.7.

    Internal Review: The Commission has reviewed the changes and has determined that the changes are necessary. These requirements conform to the Commission's need for efficient information collection, communication, and management within the energy industry. The Commission has assured itself, by means of internal review, that there is specific, objective support for the burden estimates associated with the information collection requirements.

    52. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], email: [email protected], Phone: (202) 502-8663, fax: (202) 273-0873.

    53. Comments on the collection of information and the associated burden estimate in the Final Rule should be sent to the Commission in this docket and may also be sent to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission], at the following email address: [email protected] Please reference OMB Control No. 1902-0203 and the docket number of this rulemaking in your submission.

    VI. Regulatory Flexibility Act

    54. The Regulatory Flexibility Act of 1980 (RFA) 64 generally requires a description and analysis of rules that will have significant economic impact on a substantial number of small entities. The RFA does not mandate any particular outcome in a rulemaking. It only requires consideration of alternatives that are less burdensome to small entities and an agency explanation of why alternatives were rejected.

    64 5 U.S.C. 601-612.

    55. The Small Business Administration (SBA) revised its size standards (effective January 22, 2014) for electric utilities from a standard based on megawatt hours to a standard based on the number of employees, including affiliates. Under SBA's standards, some transmission owners will fall under the following category and associated size threshold: Electric bulk power transmission and control, at 500 employees.65

    65 13 CFR 121.201, Sector 22 (Utilities), NAICS code 221121 (Electric Bulk Power Transmission and Control).

    56. The Commission estimates that the total number of public utility transmission providers that would have to modify the SGIAs within their currently effective OATTs is 118. Of these, the Commission estimates that approximately 43% are small entities. The Commission estimates the average cost to each of these entities will be minimal, requiring on average 7.5 hours or $558.75. According to SBA guidance, the determination of significance of impact “should be seen as relative to the size of the business, the size of the competitor's business, and the impact the regulation has on larger competitors.” 66 The Commission does not consider the estimated burden to be a significant economic impact. As a result, the Commission certifies that the reforms adopted in this Final Rule would not have a significant economic impact on a substantial number of small entities.

    66 U.S. Small Business Administration, A Guide for Government Agencies How to Comply with the Regulatory Flexibility Act, at 18 (May 2012), https://www.sba.gov/sites/default/files/advocacy/rfaguide_0512_0.pdf.

    VII. Environmental Analysis

    57. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.67 As we stated in the NOPR, the Commission concludes that neither an Environmental Assessment nor an Environmental Impact Statement is required for the revisions adopted in this Final Rule under section 380.4(a)(15) of the Commission's regulations, which provides a categorical exemption for approval of actions under sections 205 and 206 of the FPA relating to the filing of schedules containing all rates and charges for the transmission or sale of electric energy subject to the Commission's jurisdiction, plus the classification, practices, contracts and regulations that affect rates, charges, classifications, and services.68 The revisions adopted in this Final Rule would update and clarify the application of the Commission's standard interconnection requirements to small generating facilities.

    67Regulations Implementing National Environmental Policy Act, Order No. 486, FERC Stats. & Regs. ¶ 30,783 (1987).

    68 18 CFR 380.4(a)(15).

    58. Therefore, this Final Rule falls within the categorical exemptions provided in the Commission's regulations, and as a result neither an Environmental Impact Statement nor an Environmental Assessment is required.

    VIII. Document Availability

    59. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    60. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number of this document, excluding the last three digits, in the docket number field.

    61. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    IX. Effective Date and Congressional Notification

    62. The Final Rule is effective October 5, 2016. However, as noted above, the requirements of this Final Rule will apply only to all newly interconnecting small generating facilities that execute or request the unexecuted filing of an SGIA on or after the effective date of this Final Rule as well as existing interconnection customers that, pursuant to a new interconnection request, execute or request the unexecuted filing of a new or modified SGIA on or after the effective date. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this Final Rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This Final Rule is being submitted to the Senate, House, Government Accountability Office, and Small Business Administration.

    By the Commission.

    Issued: July 21, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    Note:

    The following Attachment will not appear in the Code of Federal Regulations.

    Appendix A—List of Substantive Commenters (RM16-8-000) Bonneville Bonneville Power Administration Trade Associations Edison Electric Institute/American Public Power Association/Large Public Power Council/National Rural Electric Cooperative Association EPRI Electric Power Research Institute Idaho Power Idaho Power Company IEEE Institute of Electrical and Electronics Engineers ISO/RTO Council ISO/RTO Council NERC North American Electric Reliability Corporation PG&E Pacific Gas and Electric Company Peak Reliability Peak Reliability PNM Public Service Company of New Mexico SoCal Edison Southern California Edison Company

    In addition, Entergy Services, Inc. submitted non-substantive comments.

    [FR Doc. 2016-17843 Filed 7-29-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF LABOR Employment and Training Administration 20 CFR Part 620 RIN 1205-AB63 Federal-State Unemployment Compensation Program; Middle Class Tax Relief and Job Creation Act of 2012 Provision on Establishing Appropriate Occupations for Drug Testing of Unemployment Compensation Applicants AGENCY:

    Employment and Training Administration, Labor.

    ACTION:

    Final rule.

    SUMMARY:

    The Employment and Training Administration (ETA) of the U.S. Department of Labor (Department) is issuing this final rule to establish, for State Unemployment Compensation (UC) program purposes, occupations that regularly conduct drug testing. These regulations implement the Middle Class Tax Relief and Job Creation Act of 2012 (the Act) amendments to the Social Security Act (SSA), permitting States to enact legislation that would allow State UC agencies to conduct drug testing on UC applicants for whom suitable work (as defined under the State law) is available only in an occupation that regularly conducts drug testing (as determined under regulations issued by the Secretary of Labor (Secretary)). States may deny UC to an applicant who tests positive for drug use under these circumstances. The Secretary is required under the SSA to issue regulations determining those occupations that regularly conduct drug testing.

    DATES:

    Effective Date: This final rule is effective September 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Suzanne Simonetta, Office of Unemployment Insurance, ETA, U.S. Department of Labor, 200 Constitution Avenue NW., Room S-4524, Washington, DC 20210; telephone: (202) 693-3225 (this is not a toll-free number); email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On October 9, 2014, The Department published a Notice of Proposed Rulemaking (NPRM) concerning occupations that regularly conduct drug testing at 79 FR 61013. The Department invited comments through December 8, 2014.

    II. General Discussion of the Final Rule

    On February 22, 2012, President Obama signed the Act, Public Law 112-96. Title II of the Act amended section 303, SSA, to add a new subsection (l) permitting States to drug test UC applicants as a condition of UC eligibility under two circumstances. The first circumstance is if the applicant was terminated from employment with the applicant's most recent employer because of the unlawful use of a controlled substance. (Section 303(l)(1)(A)(i), SSA.) The second circumstance is if the only available suitable work (as defined in the law of the State conducting the drug testing) for an individual is in an occupation that regularly conducts drug testing (as determined in regulations by the Secretary). If an applicant who is tested for drug use under either circumstance tests positive, the State may deny UC to that applicant. On October 9, 2014, the Department published a Notice of Proposed Rulemaking (NPRM) concerning occupations that regularly conduct drug testing at 79 FR 61013. The NPRM proposed that occupations that regularly drug test be defined as those required to be drug tested in Federal or State laws at the time the NPRM was published. The NPRM also defined key terms:

    • An “applicant” means an individual who files an initial claim for UC.

    • “Controlled substance” is defined by reference to the definition of the term in Section 102 of the Controlled Substances Act. (This definition is in the Act.)

    • “Suitable work” means suitable work as defined under the UC law of the State against which the claim is filed. It must be the same definition that the State otherwise uses for determining UC eligibility based on seeking work or refusal of work for an initial applicant for UC.

    • Occupation means a position or class of positions.

    • “Unemployment compensation” is defined as “cash benefits payable to an individual with respect to their unemployment under the State law.” This definition derives from the definition found in Federal UC law at Section 3306(h), FUTA.

    The Department invited comments through December 8, 2014. This final rule defines those occupations that regularly conduct drug testing as required by section 303(l)(1)(A)(ii), SSA. The Department, separately from this rulemaking, issued guidance (Unemployment Insurance Program Letter (UIPL) No. 1-15) to States to address other issues related to the implementation of drug testing under 303(l), SSA.

    III. Summary of the Comments Comments Received on the Proposed Rule

    The Department received sixteen (16) comments (by letter or through the Federal e-Rulemaking Portal) by the close of the comment period. Ten (10) of the comments were from individuals; one was from an employer advocacy group; one was from an industry association; one was from a worker advocacy group; and three (3) were from governmental officials or committees. The Department considered all timely comments and included them in the rulemaking record. There were no late comments.

    These comments are discussed below in the Discussion of Comments. We address only those comments addressing the scope and purpose of the rule, the identification of occupations that regularly conduct drug testing. Therefore, comments received concerning the Department's previously issued guidance about drug testing in UIPL No. 1-15; comments supporting or opposing drug testing in general; and comments about drug testing procedures, the efficacy of drug tests, and the cost of drug tests, are not addressed as these issues fall outside the scope of the statutory requirement that is the basis for this regulation. We made one change, discussed below, in response to the comments.

    Discussion of Comments

    A number of commenters opposed the limitation on the list of occupations requiring drug testing. Three commenters wrote that limiting the list of occupations requiring drug testing to those identified in Federal or State laws that were in effect on the date of publication of the NPRM (October 9, 2014) was not appropriate. Of those, one wrote it was uncertain if future amendments to the Federal regulations would incorporate future State law enactments mandating testing. One wrote that States would not be given sufficient time to enact legislation to add any occupations to the list already established by Federal or State law, and the public interest would be served by a broader interpretation of “regularly conducting drug testing.” One wrote it was an unnecessary obstacle to States using drug screening and testing to improve the chances that unemployed workers are ready to return to work.

    One commenter wrote that the limitation was appropriate in order to provide the ability to assess the cost effectiveness of implementing drug testing in the UC program and that to do otherwise would circumvent the intent of Congress to limit authority to drug test to a small pool of workers for whom, because of their job requirements, drug testing is directly related to continued employment. The commenter asserted it was not the intent of Congress to cover a more expansive segment of the workforce, such as those subject to pre-employment screening.

    The Department agrees with the commenters that the rule should not limit the list of occupations requiring drug testing, set forth in the NPRM, to those identified in specified Federal laws or those State laws that were in effect on the date of publication of the NPRM; thus, this provision is revised in the final rule to broaden its applicability as requested by commenters. In a dynamic economy, occupations change over time, sometimes rapidly, and new occupations are created, and it is important that this rule contain the flexibility necessary to allow States and the Federal government to adapt to those changes. Thus, the regulation has been expanded to encompass any Federal or State law requiring drug testing regardless of when enacted. Specifically, section 620.3(h) has been revised to specify that occupations that regularly conduct drug testing include any “occupation specifically identified in a State or Federal law as requiring an employee to be tested for controlled substances.” In recognition of the fact that new federal laws may be enacted that may require drug testing for other occupations, and that those occupations may not necessarily be included in § 620.3(a)-(g), the Department added “Federal law” to § 620.3(h). This additional change ensures the final rule is consistent with the policy change being made in response to the comments. Additionally, the final rule eliminates the reference to dates where the proposed rule referenced State law and the specified Federal regulations in § 620.3(a)-(g). The Department will monitor changes in Federal law that affect the definition of “occupations” for which drug testing is required and inform States of any changes through guidance.

    There is no evidence of Congressional intent for the legislation to permit testing on any basis other than the plain language of the statute, i.e., occupations that regularly test for drugs. However, the Department agrees that changes to those occupations for which Federal or State law require drug testing should be accommodated by the regulation.

    One commenter wrote that the proposed rule in Section 620.4(a), that drug testing is permitted only of an applicant, and not of an individual filing a continued claim for unemployment compensation after initially being determined eligible, would unduly limit drug testing to only the period after an applicant files an initial claim and before the applicant files a continued claim for unemployment compensation.

    The plain language of Section 303(l), SSA, limits permissible drug testing to applicants for UC. “Applicants” are individuals who have submitted an initial application for UC. Once individuals have been determined eligible to receive UC, they are no longer applicants for UC. The act of certifying that certain conditions are met to maintain eligibility is different than making an application for UC benefits. This is illustrated throughout Title III, SSA. Section 303(h)(3)(B), SSA, requiring UC information disclosures to the Department of Health and Human Services, and Section 303(i)(1)(A)(ii)), SSA, requiring UC information disclosures to the Department of Housing and Urban Development, both refer to an individual who “has made application for” UC, distinguishing them from an individual who “is receiving” or “has received” UC. Similarly, Section 303(d)(2)(B), SSA, and Section 303(e)(2)(A), SSA, both refer to a “new applicant” for UC and then use the term “applicant” throughout the remainder of the subsection, signifying that the term is used to denote only an individual applying for UC for the first time. Thus, those provisions clarify that, as used in Section 303, SSA, an applicant is not a continuing claimant. Similarly, Section 303(l)(1)(B), SSA, permits the denial of UC based on the results of a drug test only to “applicants,” not as a condition of continued eligibility. As these provisions demonstrate, “applicant” refers to an initial claimant, not a continuing claimant; therefore, the final rule includes no changes to the requirements of Section 620.4(a).

    Two commenters wrote that the rule arbitrarily narrows the definition of “occupations that regularly test for drugs” so that the potential number of applicants affected is negligible. They also noted that businesses regularly conduct drug testing in occupations without Federal or State mandate. For this reason, they believe the definition “occupations that regularly conduct drug testing” should include occupations for which employers already conduct drug testing outside those mandated by State or Federal law.

    Section 303(l)(1)(A)(ii), SSA, requires the Secretary to identify those “occupations,” not employers, that regularly conduct drug testing. As explained in the NPRM, whether an occupation is subject to “regular” drug testing in private employment was not chosen as the standard here because it would be very difficult to implement in a consistent manner. Drug testing in occupations where it is not required by law is not consistent across employers, across industries, across the States, or over time; thus, we are unable to reliably and consistently determine which occupations require “regular” drug testing where not required by law. Even if certain employers do conduct drug testing for certain occupations when permitted to do so, that is not sufficient to show that those occupations are subject to regular drug testing because a significant number of employers may not drug test individuals working in those occupations. In addition, those employers who conduct drug testing when they are not required by law to do so do not necessarily limit the testing to applicants or employees working in a specific occupation. The determination by an employer to drug-test all of its employees is not a determination that all of the occupations in which its employees fall are occupations for which drug testing is appropriate, under the requirements of this rule, but rather a determination in keeping with that employer's beliefs about its business needs that drug testing is appropriate for all of its employees.

    The final rule will permit States to require drug testing for UC eligibility for occupations that are subjected under State law to drug testing after the date of the NPRM publication, which ensures that there is flexibility for States to require drug testing for other occupations, while still providing predictability and consistency in identifying in this final rule what occupations are “regularly” drug tested. Thus, the Department has not changed the rule to address this concern.

    One commenter wrote that the proposed rules would impose an unnecessary burden on the State agency to determine whether “suitable work” in a specific occupation is available in the local labor market.

    The comment appears to misunderstand the proposed rule, which requires only that a State use the same definition of “suitable work” for UC drug testing as otherwise used in State UC law. The rule does not use the term “local labor market” when addressing suitable work. State UC agencies routinely make eligibility determinations about availability for work, search for work, and refusal of offers of suitable work. Whether work is available in the local labor market for UC claimants is one criterion for determining what constitutes “suitable” work under State UC law in some States, but this rule does not require it. For drug testing, section 303(l)(1)(A)(ii), SSA, provides, as one of the two permissible reasons for drug testing as a condition for the receipt of UC, that the applicant “is an individual for whom suitable work (as defined under the State law) is only available in an occupation that regularly conducts drug testing . . . ” [Emphasis added.] Thus, the NPRM required that drug testing is permitted only if the applicant's only suitable work requires it as a condition of employment. Because the rule's definition of “suitable work” allows the States to apply their own current laws, the definition of suitable work in the proposed rule would not impose any burden on States, and the Department has not changed the definition in the final rule.

    One commenter wrote that the proposed rule, by limiting the scope of permissible drug testing, contradicts Congressional intent and the practices of many American businesses and the best interests of American workers.

    The Department drafted the NPRM to be consistent with the language of the statute. The scope of drug testing contemplated in the NPRM is consistent with the statutory language; there is no evidence of Congressional intent in the legislative history which would require it to be interpreted more broadly than the Department interprets it in this regulation. Therefore, the Department declines to expand the scope of drug testing in this rule.

    IV. Administrative Information Executive Orders 12866 and 13563: Regulatory Planning and Review

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. For a “significant regulatory action,” E.O. 12866 asks agencies to describe the need for the regulatory action and explain how the regulatory action will meet that need, as well as assess the costs and benefits of the regulation.1 This regulation is necessary because of the statutory requirement contained in new section 303(l)(1)(A)(ii), SSA, which requires the Secretary to determine the occupations that regularly conduct drug testing for the purpose of determining which applicants may be drug tested when applying for State unemployment compensation. OMB has determined that this rule is “significant” as defined in section 3(f) of E.O. 12866. Before the amendment of Federal law to add new section 303(l)(1), SSA, drug testing of applicants for UC as a condition of eligibility was prohibited.

    1 Executive Order No. 12866, section 6(a)(3)(B).

    However, the Department has determined that this final rule is not an economically significant rulemaking within the definition of E.O. 12866 because it is not an action that is likely to result in the following: An annual effect on the economy of $100 million or more; an adverse or material effect on a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities; serious inconsistency or interference with an action taken or planned by another agency; or a material change in the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof. In addition, since the drug testing of UC applicants as a condition of UC eligibility is entirely voluntary on the part of the States, and since Section 303(l), SSA, is written narrowly, the Department believes that it is unlikely that many States will establish a testing program because they will not deem it cost effective to do so. The Department sought comment from interested stakeholders on this assumption. We received no comments on this topic.

    There are limited data on which to base estimates of the cost associated with establishing a testing program. Only one of the two States that have enacted a conforming drug testing law issued a fiscal note. That State is Texas, which estimated that the 5-year cost of administering the program would be $1,175,954. This includes both one-time technology personnel services for the first year to program the State UI computer system and ongoing administrative costs for personnel. The Texas analysis estimated a potential savings to the Unemployment Trust Fund of $13,700,580 over the 5-year period, resulting in a net savings of approximately $12.5 million. The Department believes it would be inappropriate to extrapolate the Texas analysis to all States in part because of differences in the Texas law and the requirements in this final rule. The Department has included this information about Texas for illustrative purposes only and emphasizes that by doing so, it is not validating the methodology or assumptions in the Texas analysis. Under the rule, States are prohibited from testing applicants for unemployment compensation who do not meet the narrow criteria established in the law. The Department requested that interested stakeholders with data on the costs of establishing a state-wide testing program; the number of applicants for unemployment compensation that fit the narrow criteria established in the law; and estimates of the number of individuals that would subsequently be denied unemployment compensation due to a failed drug test submit it during the comment period. We received no comments that provided the requested information.

    In the absence of data, the Department is unable to quantify the administrative costs States will incur if they choose to implement drug testing under this rule. States may need to find funding to implement a conforming drug testing program for unemployment compensation applicants. No additional funding has been appropriated for this purpose and current Federal funding for the administration of State unemployment compensation programs may be insufficient to support the additional costs of establishing and operating a drug testing program. States will need to fund the cost of the drug tests, staff costs for administration of the drug testing function, and technology costs to track drug testing outcomes. States will incur ramp up costs that will include implementing business processes necessary to determine whether an applicant is one for whom drug testing is permissible under the law; developing a process to refer and track applicants referred for drug testing; and the costs of testing that meets the standards required by the Secretary of Labor. States will also have to factor in increased costs of adjudication and appeals of both the determination of applicability of the drug testing to the individual and of the resulting determinations of benefit eligibility based on the test results.

    The benefits of the rule are equally hard to determine. As discussed above, because permissible drug testing is limited under the statute and this rule, the Department of Labor believes that the provisions will impact a very limited number of applicants for unemployment compensation benefits. Only one State has estimated savings from a drug testing program in a fiscal note and the Department cannot and should not extrapolate results from those estimates.

    Paperwork Reduction Act

    The purposes of the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., include minimizing the paperwork burden on affected entities. The PRA requires certain actions before an agency can adopt or revise a collection of information, including publishing a summary of the collection of information, a brief description of the need for and proposed use of the information, and a request for comments on the information collections.

    A Federal agency may not conduct or sponsor a collection of information unless it is approved by OMB under the PRA, and displays a currently valid OMB control number, and the public is not required to respond to a collection of information unless it displays a currently valid OMB control number. Also, notwithstanding any other provisions of law, no person shall be subject to penalty for failing to comply with a collection of information if the collection of information does not display a currently valid OMB control number (44 U.S.C. 3512).

    The Department has determined that this final rule does not contain a “collection of information,” as the term is defined. See 5 CFR 1320.3(c). The Department received no comments on this determination.

    Executive Order 13132: Federalism

    Section 6 of Executive Order 13132 requires Federal agencies to consult with State entities when a regulation or policy may have a substantial direct effect on the States or the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of government, within the meaning of the Executive Order. Section 3(b) of the Executive Order further provides that Federal agencies must implement regulations that have a substantial direct effect only if statutory authority permits the regulation and it is of national significance.

    This final rule does not have a substantial direct effect on the States or the relationship between the National Government and the States, or the distribution of power and responsibilities among the various levels of Government, within the meaning of the Executive Order. This is because drug testing authorized by the regulation is voluntary on the part of the State, not required.

    Unfunded Mandates Reform Act of 1995

    This regulatory action has been reviewed in accordance with the Unfunded Mandates Reform Act of 1995 (the Reform Act). Under the Reform Act, a Federal agency must determine whether a regulation proposes a Federal mandate that would result in the increased expenditures by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more in any single year. The Department has determined that since States have an option of drug testing UC applicants and can elect not to do so, this final rule does not include any Federal mandate that could result in increased expenditure by State, local, and Tribal governments. Drug testing under this rule is purely voluntary, so that any increased cost to the States is not the result of a Federal mandate. Accordingly, it is unnecessary for the Department to prepare a budgetary impact statement.

    Plain Language

    The Department drafted this final rule in plain language.

    Effect on Family Life

    The Department certifies that this final rule has been assessed according to section 654 of the Treasury and General Government Appropriations Act, enacted as part of the Omnibus Consolidated and Emergency Supplemental Appropriations Act of 1999 (Pub. L. 105-277, 112 Stat. 2681) for its effect on family well-being. The Department certifies that this final rule does not adversely impact family well-being as discussed under section 654 of the Treasury and General Government Appropriations Act of 1999.

    Regulatory Flexibility Act/Small Business Regulatory Enforcement Fairness Act

    The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603(a) requires agencies to prepare and make available for public comment an initial regulatory flexibility analysis which will describe the impact of the final rule on small entities. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed or final rulemaking is not expected to have a significant economic impact on a substantial number of small entities. This final rule does not affect small entities as defined in the RFA. Therefore, the rule will not have a significant economic impact on a substantial number of these small entities. The Department has certified this to the Chief Counsel for Advocacy, Small Business Administration, pursuant to the Regulatory Flexibility Act.

    List of Subjects in 20 CFR Part 620

    Unemployment compensation.

    For the reasons stated in the preamble, the Department amends 20 CFR chapter V by adding part 620 to read as follows:

    PART 620—OCCUPATIONS THAT REGULARLY CONDUCT DRUG TESTING FOR STATE UNEMPLOYMENT COMPENSATION ELIGIBILITY DETERMINATION PURPOSES Sec. 620.1 Purpose. 620.2 Definitions. 620.3 Occupations that regularly conduct drug testing for purposes of determining which applicants may be drug tested when applying for state unemployment compensation. 620.4 Testing of unemployment compensation applicants for the unlawful use of a controlled substance. 620.5 Conformity and substantial compliance. Authority:

    42 U.S.C. 1302(a); 42 U.S.C. 503(l)(1)(ii)

    § 620.1 Purpose.

    The regulations in this part implement section 303(l) of the Social Security Act (SSA) (42 U.S.C. 503(l)). Section 303(l), SSA, permits States to enact legislation to provide for the State-conducted testing of an unemployment compensation applicant for the unlawful use of controlled substances, as a condition of unemployment compensation eligibility, if the applicant was discharged for unlawful use of controlled substances by his or her most recent employer, or if suitable work (as defined under the State unemployment compensation law) is only available in an occupation for which drug testing is regularly conducted (as determined under this part 620). Section 303(l)(1)(A)(ii), SSA, requires the Secretary of Labor to issue regulations determining the occupations that regularly conduct drug testing. These regulations are limited to that requirement.

    § 620.2 Definitions.

    As used in this part—

    Applicant means an individual who files an initial claim for unemployment compensation under State law. Applicant excludes an individual already found initially eligible and filing a continued claim.

    Controlled substance means a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of 21 U.S.C. 801 et seq., as defined in section 102 of the Controlled Substances Act (Pub. L. 91-513, 21 U.S.C. 801 et seq.). The term does not include distilled spirits, wine, malt beverages, or tobacco, as those terms are defined or used in subtitle E of the Internal Revenue Code of 1986.

    Occupation means a position or class of positions. Federal and State laws governing drug testing refer to the classes of positions that are required to be drug tested rather than occupations, such as those defined by the Bureau of Labor Statistics in the Standard Occupational Classification System. Therefore, for purposes of this regulation, a position or class of positions will be considered the same as an “occupation.”

    Suitable work means suitable work as defined by the unemployment compensation law of a State against which the claim is filed. It must be the same definition the State law otherwise uses for determining the type of work an individual must seek given the individual's education, experience and previous level of remuneration.

    Unemployment compensation means any cash benefits payable to an individual with respect to their unemployment under the State law (including amounts payable under an agreement under a Federal unemployment compensation law.)

    § 620.3 Occupations that regularly conduct drug testing for purposes of determining which applicants may be drug tested when applying for state unemployment compensation.

    Occupations that regularly conduct drug testing, for purposes of § 620.4, are:

    (a) An occupation that requires the employee to carry a firearm;

    (b) An occupation identified in 14 CFR 120.105 by the Federal Aviation Administration, in which the employee must be tested (Aviation flight crew members and air traffic controllers);

    (c) An occupation identified in 49 CFR 382.103 by the Federal Motor Carrier Safety Administration, in which the employee must be tested (Commercial drivers);

    (d) An occupation identified in 49 CFR 219.3 by the Federal Railroad Administration, in which the employee must be tested (Railroad operating crew members);

    (e) An occupation identified in 49 CFR 655.3 by the Federal Transit Administration, in which the employee must be tested (Public transportation operators);

    (f) An occupation identified in 49 CFR 199.2 by the Pipeline and Hazardous Materials Safety Administration, in which the employee must be tested (Pipeline operation and maintenance crew members);

    (g) An occupation identified in 46 CFR 16.201 by the United States Coast Guard, in which the employee must be tested (Crewmembers and maritime credential holders on a commercial vessel);

    (h) An occupation specifically identified in a State or Federal law as requiring an employee to be tested for controlled substances.

    § 620.4 Testing of unemployment compensation applicants for the unlawful use of a controlled substance.

    (a) States may conduct a drug test on an unemployment compensation applicant, as defined in § 620.2, for the unlawful use of controlled substances, as defined in § 620.2, as a condition of eligibility for unemployment compensation if the individual is one for whom suitable work, as defined in State law, as defined in § 620.2, is only available in an occupation that regularly conducts drug testing under § 620.3. Drug testing is permitted only of an applicant, and not of an individual filing a continued claim for unemployment compensation after initially being determined eligible. No State is required to apply drug testing to UC applicants under this part 620.

    (b) A State conducting drug testing as a condition of unemployment compensation eligibility as provided in paragraph (a) of this section may apply drug testing only to the occupations listed under § 620.3, but is not required to apply drug testing to any of them.

    (c) State standards governing drug testing of UC applicants must be in accordance with guidance, in the form of program letters or other issuances, issued by the Department of Labor.

    § 620.5 Conformity and substantial compliance.

    (a) In general. A State law implementing the drug testing of applicants for unemployment compensation must conform with, and the law's administration must substantially comply with, the requirements of this part 620 for purposes of certification under Section 302 of the SSA (42 U.S.C. 502), of whether a State is eligible to receive Federal grants for the administration of its UC program.

    (b) Resolving issues of conformity and substantial compliance. For the purposes of resolving issues of conformity and substantial compliance with the requirements of this part 620, the following provisions of 20 CFR 601.5 apply:

    (1) Paragraph (b) of 20 CFR 601.5, pertaining to informal discussions with the Department of Labor to resolve conformity and substantial compliance issues, and

    (2) Paragraph (d) of 20 CFR 601.5, pertaining to the Secretary of Labor's hearing and decision on conformity and substantial compliance.

    (c) Result of failure to conform or substantially comply. Whenever the Secretary of Labor, after reasonable notice and opportunity for a hearing to the State UC agency, finds that the State UC law fails to conform, or that the State or State UC agency fails to comply substantially, with the requirements of title III, SSA (42 U.S.C. 501-504), as implemented in this part 620, then the Secretary of Labor must notify the Governor of the State and such State UC agency that further payments for the administration of the State UC law will not be made to the State until the Secretary of Labor is satisfied that there is no longer any such failure. Until the Secretary of Labor is so satisfied, the Department of Labor will not make further payments to such State.

    Portia Wu, Assistant Secretary for Employment and Training, Labor.
    [FR Doc. 2016-17738 Filed 7-29-16; 8:45 am] BILLING CODE 4510-FN-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 11 and 101 [Docket No. FDA-2011-F-0171] RIN 0910-AG56 Food Labeling; Calorie Labeling of Articles of Food in Vending Machines; Extension of Compliance Date AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule; extension of compliance date.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is extending the compliance date for certain requirements in the final rule requiring disclosure of calorie declarations for food sold from certain vending machines. The final rule appeared in the Federal Register of December 1, 2014. We are taking this action in response to requests for an extension and for reconsideration of the rule's requirements pertaining to the size of calorie disclosures on front-of-package labeling.

    DATES:

    Effective date: This final rule is effective December 1, 2016.

    Compliance date: The compliance date for type size front-of-pack labeling requirements (§ 101.8(b)(2) (21 CFR 101.8(b)(2))) and calorie disclosure requirements (§ 101.8(c)(2)) for certain gums, mints, and roll candy products in glass-front machines in the final rule published December 1, 2014 (79 FR 71259) is extended to July 26, 2018. The compliance date for all other requirements in the final rule (79 FR 71259) remains December 1, 2016.

    FOR FURTHER INFORMATION CONTACT:

    April Kates, Center for Food Safety and Applied Nutrition (HFS-820), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2371, email: [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    In the Federal Register of December 1, 2014 (79 FR 71259), we published a final rule establishing requirements for providing calorie declarations for food sold from certain vending machines. The final rule, which is codified primarily at § 101.8, will ensure that calorie information is available for certain food sold from a vending machine that does not permit a prospective purchaser to examine the Nutrition Facts Panel before purchasing the article, or does not otherwise provide visible nutrition information at the point of purchase. The declaration of accurate and clear calorie information for food sold from vending machines will make calorie information available to consumers in a direct and accessible manner to enable consumers to make informed and healthful dietary choices. The final rule applies to certain food from vending machines operated by a person engaged in the business of owning or operating 20 or more vending machines. Vending machine operators not subject to the rules may elect to be subject to the Federal requirements by registering with FDA.

    The final rule also specifies how calories must be declared. In brief,

    • Vending machine operators do not have to declare calorie information for a food if a prospective purchaser can view certain calorie information on the front of the package, in the Nutrition Facts label on the food, or in a reproduction of the Nutrition Facts label on the food subject to certain requirements, or if the vending machine operator does not own or operate 20 or more vending machines.

    • Calorie declarations must be clear and conspicuous and placed prominently, and may be placed on a sign in, on, or adjacent to the vending machine, so long as the sign is in close proximity to the article of food or selection button.

    • The final rule establishes type size, color, and contrast requirements for calorie declarations in or on the vending machines, and for calorie declarations on signs adjacent to the vending machines.

    • The final rule establishes requirements for calorie declarations on electronic vending machines, those vending machines with only pictures or names of the food items, and those vending machines with few choices (e.g., popcorn machines).

    The final rule also requires vending machine operator contact information to be displayed for enforcement purposes.

    The final rule implements provisions of section 403(q)(5)(H) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 343(q)(5)(H)).

    In the preamble to the final rule (79 FR 71259 at 71282 through 71283), we stated that all covered vending machine operators must come into compliance with the rule's requirements no later than December 1, 2016.

    II. Extending the Compliance Date A. Introduction

    Since we published the final rule in the Federal Register, several trade associations have contacted us to state that the type size requirement for calorie information on the package, often referred to as “front-of-pack” or FOP labeling, presents significant technical challenges to the packaged food industry. The trade associations asked us to amend the type size requirement for FOP labeling and to provide additional flexibility for providing calorie information for gums, mints, and roll candy (see Refs. 1 and 2).

    B. Type Size Requirement for “Articles of Food Not Covered” (§ 101.8(b)(2))

    With respect to FOP labeling, § 101.8(b)(2), states that articles of food sold from a vending machine are not “covered vending machine food” if the prospective purchaser can otherwise view visible nutrition information, including, at a minimum the total number of calories for the article of food as sold at the point of purchase. The visible nutrition information must appear on the food label itself, be clear and conspicuous and able to be easily read on the article of food while in the vending machine, and be in a type size at least 50 percent of the size of the largest printed matter on the label and with sufficient color and contrasting background to other print on the label to permit the perspective purchaser to clearly distinguish the information.

    In the preamble to the final rule (79 FR 71259 at 71269 (see comment 16 and our response)), we discussed how FOP labeling could be a way to provide visible nutrition information for articles of food that are sold from a vending machine that are not “covered vending machine food” as interpreted by § 101.8(c). We also noted how some comments felt that the rule's type size requirement was too large, whereas others stated that the type size would be too small (79 FR 71259 at 71269). We explained that specifying the minimum type size for calorie information on vending machine food labels will provide greater clarity for both compliance and enforcement (id.).

    Since the publication of the final rule, several trade associations indicated that the type size requirement would make the calorie declaration very large on some products and would make label redesign difficult and/or not practical. They noted the existence of voluntary FOP labeling programs whereby calorie information is presented in a FOP type size that ranges from 100 to 150 percent of the size of the “net quantity of contents” statement on the principal display panel. They also asked us to align the compliance date with that for the Nutrition Facts labeling rule (81 FR 33742, May 27, 2016) so that food companies can “make all changes to their food labels, including adding FOP calorie information, at the same time” (see Ref. 2). The compliance date for the Nutrition Facts label rule is July 26, 2018, for manufacturers with $10 million or more in annual food sales.

    Consequently, with respect to § 101.8(b)(2), we have decided to extend the compliance date for certain food products sold from a glass-front vending machine that allow prospective purchasers to view packaged foods offered for sale. Specifically, if the food is:

    • Sold from a glass-front vending machine that allows prospective purchasers to view packaged foods offered for sale;

    • not a covered vending machine food within § 101.8(b)(2); and

    • the label for such packaged foods provides front-of-package calorie disclosures that complies with all aspects of the final vending machine labeling rule except that the disclosure is not 50 percent of the size of the largest print on the label,

    then the compliance date for § 101.8(b)(2) is extended to July 26, 2018. This extension of the compliance date will give us time to consider whether a revision to § 101.8(b)(2) is necessary and also give packaged food manufacturers more time to consider label redesign issues or, in the case of products without FOP calorie labeling, to consider whether to add such labeling. We emphasize that this extension is limited to vending machine operators whose glass-front vending machines are subject to § 101.8(b)(2) and where the packaged food has FOP calorie disclosures that complies with all aspects of the final vending machine labeling rule except that the disclosure is not 50 percent of the size of the largest print on the label. Thus, a vending machine operator whose vending machines dispense packaged food without FOP labeling or use electronic displays is not affected by the extension. Similarly, a vending machine operator whose vending machines sell unpackaged food (such as fruit) is not affected by the extension. C. Signage for Gums, Mints, and Roll Candy

    With respect to providing calorie information for gums, mints, and roll candy, our regulations, at § 101.8(c), establishes requirements for calorie labeling for certain food sold from vending machines. Under § 101.8(c)(2)(i)(C), the calorie declaration for covered vending machine food must include the total calories present in the packaged food, regardless of whether the packaged food contains a single serving or multiple servings. Under § 101.8(c)(2)(ii)(A), the calorie declarations for covered vending machine food must be clear and conspicuous and placed prominently on a sign in close proximity to the article of food or selection button so long as the calorie declaration is visible at the same time as the food, its name, price, selection button, or selection number is visible.

    Several trade associations have disagreed with § 101.8(c)(2) insofar as it would apply to gums, mints, and roll candy. The trade associations contend that gums, mints, and roll candy suitable for vending machines are not typically amenable to FOP labeling due to the limited size of the principal display panel, and as a result, there are few options for compliance for these products. They also describe that in glass-front vending machines, these items are often placed together at the bottom of the machine with limited space for signage. In addition, the trade associations have asserted that providing calories declarations “per serving” for these items is preferable to providing calories “per container”, because consumers typically do not consume the entire packaged product at one time, and providing calorie declarations on a “per serving” basis would be consistent with our serving size requirements at 21 CFR 101.9. The trade associations also explained that these items typically contain insignificant amounts of all nutrients and are otherwise exempt from packaged food nutrition labeling, and that providing a sign with a range of 0 to 25 calories “per serving” for these items is sufficient for consumers to make informed choices (Ref. 1). Based on these distinct challenges, the trade associations also suggested that we amend § 101.8(c)(2) by adding a new paragraph that would, in effect, provide an exception for gums, mints, and roll candies that would allow the use of a range of calories (such as “25 calories or less/serving”) and the covered vending machine food:

    • Contains at least three servings per package;

    • has a “reference amount customarily consumed” (the portion size based on the amount the average person is likely to eat at one time) of 5 grams or less; and

    • contains 25 calories or less per serving.

    The trade associations indicated that the extension would only be for vending machine operators who, by December 1, 2016, have “interim calorie signage” that would consist of a single sign in close proximity to the article of food or selection button or inside the vending machine, where the sign states that gum, mint, and roll candies provide 25 calories or less/serving.

    We addressed a similar issue in the preamble to the final rule (see 79 FR 71259 at 71276 through 71277 (see comment 24 and our response)) and explained why the calorie declaration requirement applies to the entire package rather than to a serving in the package. We disagree with the trade associations' suggestion that the final vending machine rule's serving size requirement should be consistent with that in our serving size rule. The vending machine rule applies to certain vending machine operators, whereas the serving size rule applies to food manufacturers. The statutory authority behind each regulation also differs; the vending machine label requirement is found in section 403(q)(5)(H) of the FD&C Act, which requires, generally, that food sold in certain vending machines disclose the number of calories contained in food, whereas section 403(q)(1)(A)(i) of the FD&C Act requires, with certain exceptions, that food that is intended for human consumption and offered for sale bear nutrition information that provides a serving size that reflects the amount of food customarily consumed and is expressed in a common household measure that is appropriate to the food. Section 2(b)(1)(B) of the Nutrition Labeling and Education Act further requires the Secretary of Health and Human Services to issue regulations to establish standards to define serving size. Nevertheless, we note that, in the preamble to the final vending machine rule, we said we would allow, in addition to the total calorie declaration for the food as vended, the voluntary declaration of calories per serving for covered vending machine foods (see 79 FR 71259 at 71277). The voluntary declaration of calories per serving, in addition to declaration of calories per container (required by § 101.8(c)(2)), should accommodate the trade associations' desire to disclose the number of calories per serving.

    However, we also are mindful that the gums, mints, and roll candies mentioned by the trade associations tend to be sold in small packages that do not lend themselves to FOP labeling and often are located or placed in a small space in glass-front vending machines; the small space may limit the size of any sign(s) that would disclose calorie information for each gum, mint, or roll candy. For example, we are aware that some glass-front vending machines may have trays that are different sizes; the tray width for bags of potato chips is larger than the tray width for a roll of mints or hard candies or for a small package of gum. The smaller tray size for gums, mints, and roll candy may make it difficult to add information, inside the vending machine, beyond the product's price and selection number. Therefore, we are extending the compliance date for § 101.8(c)(2) to July 26, 2018, so that we may consider this issue further. This extension of the compliance date is limited to:

    • Gums, mints, and roll candy sold in packages that are too small to bear FOP labeling and where the gums, mints, and roll candy are located in a small space within a glass-front vending machine that allows prospective purchasers to view packaged foods offered for sale;

    • the space within the glass-front vending machine holding the gum, mints, and roll candy is so small such that it is not practicable to provide calorie information under each gum, mint, or roll candy; and

    • the glass-front vending machine also does not or is not capable of providing calorie information electronically.

    This limited change in the compliance date for § 101.8(c)(2) will give us time to consider issues relating to signage and vending machine design and give vending machine operators some flexibility in their disclosure of calorie information for gums, mints, and roll candies in small packages. In the interim, so consumers can make informed choices, we encourage vending machine operators to provide calorie information through a sign in close proximity to the gums, mints, and roll candy inside the vending machine that states the gums, mints, and roll candies provide “X” calories or less/serving, where X represents the value of the largest number of calories per serving for the gums, mints, and roll candies. We emphasize that this extension does not extend to other products in glass-front vending machines or glass-front vending machines that are capable of providing information electronically, nor does it extend to other types of vending machines. We also emphasize that the limited compliance date extension for § 101.8(c)(2) is intended to give vending machine operators more flexibility in providing calorie information for gums, mints, and roll candy in glass-front vending machines where those gums, mints, and roll candy are located or placed in a small space such that it is not practicable to provide calorie information under each gum, mint, or roll candy. Our final rule already gives vending machine operators other ways to comply with the calorie disclosure requirement; for example, vending machine operators can provide calorie declarations on a sign adjacent to the vending machine (see § 101.8(c)(2)(ii)(C)).

    III. Economic Analysis of Impacts

    We have examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We have developed a comprehensive Economic Analysis of Impacts that assesses the impacts of this final rule (Ref. 3). We believe that this final rule is not a significant regulatory action as defined by Executive Order 12866.

    The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because the final rule changes the compliance date for § 101.8(b)(2) and (c)(2), under the limited circumstances described in this document, from December 1, 2016, to July 26, 2018, we certify that the final rule will not have a significant economic impact on a substantial number of small entities.

    The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $146 million, using the most current (2015) Implicit Price Deflator for the Gross Domestic Product. This final rule would not result in an expenditure in any year that meets or exceeds this amount.

    IV. Paperwork Reduction Act of 1995

    This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

    V. Analysis of Environmental Impact

    We have determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    VI. References

    The following references are on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at http://www.regulations.gov.

    1. Letter from Karin F. R. Moore, Vice President and General Counsel, Grocery Manufacturers Association, to Susan Mayne, Ph.D., Director, Center for Food Safety and Applied Nutrition, dated March 31, 2016. 2. Letter from Karin Moore, Senior Vice President and General Counsel, Grocery Manufacturers Association, to Susan Mayne, Ph.D., Director, Center for Food Safety and Applied Nutrition, dated June 26, 2016. 3. Economics Staff, Office of Planning, Office of Policy, Planning, Legislation, and Analysis, Office of the Commissioner, Food and Drug Administration, “Food Labeling; Calorie Labeling of Articles of Food in Vending Machines; Extension of Compliance Date,” dated July 2016. Dated: July 27, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-18140 Filed 7-29-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF THE INTERIOR Office of Natural Resources Revenue 30 CFR Part 1241 [Docket No. ONRR-2012-0005; DS63644000 DR2PS0000.CH7000 167D0102R2] RIN 1012-AA05 Amendments to Civil Penalty Regulations AGENCY:

    Office of the Secretary, Office of Natural Resources Revenue, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    This rule amends the Office of Natural Resources Revenue (ONRR) civil penalty regulations by expanding the regulations to all Federal mineral leases onshore and on the Outer Continental Shelf (OCS), to all Federally-administered mineral leases on Indian Tribal and individual Indian mineral owners' lands, and to all easements, rights of way, and other agreements on the OCS; incorporating the civil penalty inflation adjustments pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act); clarifying and simplifying existing regulations for issuing a Notice of Noncompliance (NONC), Failure to Correct Civil Penalty Notice (FCCP), and Immediate Liability Civil Penalty Notice (ILCP); and providing notice that ONRR will post matrices for civil penalty assessments on its Web site.

    DATES:

    Effective Date: August 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    For comments or questions on procedural issues, contact Armand Southall, Regulatory Specialist, by telephone at (303) 231-3221 or email to [email protected] For questions on technical issues, contact Geary Keeton, ONRR Chief of Enforcement, by telephone at (303) 231-3096 or email to [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    ONRR is amending its civil penalty regulations.

    On May 13, 1999, the Department of the Interior (Department) published a final rule (64 FR 26240) in the Federal Register (FR) governing Minerals Management Service (MMS) Minerals Revenue Management (MRM) issuance of notices of noncompliance and civil penalties.

    On May 19, 2010, the Secretary of the Department (Secretary) reassigned MMS's responsibilities to three separate organizations. As part of this reorganization, the Secretary renamed MMS's MRM to ONRR and transferred it to the Assistant Secretary of Policy, Management and Budget. This change required the reorganization of title 30 of the Code of Federal Regulations (30 CFR). In response, ONRR published a direct final rule on October 4, 2010 (75 FR 61051), to establish a new chapter XII in 30 CFR; to remove certain regulations from Chapter II; and to recodify these regulations in the new Chapter XII. Therefore, all references to ONRR in this rule include its predecessor MRM, and all references to 30 CFR part 1241 in this rule include former 30 CFR part 241.

    II. Notice of and Comments on the Proposed Amendments

    On May 20, 2014, ONRR published a Notice of Proposed Rulemaking (79 FR 28862) to amend ONRR's civil penalty regulations. In the preamble of the proposed rule, ONRR invited comments on all aspects of the proposed rule, including (1) the amount of the proposed processing fee for a hearing request, payment by Electronic Funds Transfer, and the form of identification to include with the fee; (2) the effect that the proposed processing fee could have on the filing of hearing requests; (3) the procedure to allow a motion for summary decision to be filed at any time after the case is referred to the Departmental Cases Hearings Division (DCHD), including before discovery commences; (4) whether industry should have the burden of showing by a preponderance of the evidence that it is not liable or that the penalty amount should be reduced; (5) whether the accrual of a penalty during the hearing process could be stayed; and (6) the definition of the term “knowingly or willfully.”

    The proposed rulemaking provided for a 60-day comment period, which ended on July 21, 2014. During the public comment period, ONRR received 19 written comments: 11 responses from members of industry, 7 responses from industry trade groups or associations, and 1 response from the Jicarilla Apache Nation.

    ONRR has carefully considered all of the public comments that we received during the rulemaking process. We hereby adopt final regulations governing the application, assessment, and issuance of and request for hearing on a NONC, FCCP, and ILCP. These regulations will apply prospectively to a NONC, FCCP or ILCP issued on or after the effective date that we specify in the DATES section of this preamble.

    This final rule reflects revisions to the proposed rule. Also, consistent with the proposed rule, it amends the current ONRR regulations to (1) apply the regulations to all Federal mineral leases onshore and on the OCS, to all Federally-administered mineral leases on Indian Tribal and individual Indian mineral owners' lands, and to all easements, rights of way, and other agreements on the OCS; (2) incorporate the civil penalty inflation adjustments made pursuant to the 2015 Act; (3) clarify and simplify the existing regulations for issuing a NONC, FCCP, and ILCP; and (4) provide notice that ONRR will post matrices for civil penalty assessments on its Web site. The maximum civil penalty amounts for ONRR penalties under 30 U.S.C. 1719(a)-(d) were established in 1983 in the Federal Oil and Gas Management Act (FOGRMA). The civil penalties were not subsequently adjusted for inflation. The proposed rule, published on May 20, 2014 [79 FR 28862], adjusted the civil penalty amounts by 10 percent pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410) (Inflation Adjustment Act). However, on November 2, 2015, the President of the United States signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) (the 2015 Act), which further amended the Inflation Adjustment Act. The 2015 Act required Federal agencies to adjust each civil penalty amount with an initial catch-up adjustment through an interim final rulemaking. The 2015 Act also requires Federal agencies to make annual inflation adjustments. In accordance with the 2015 Act, in a separate interim final rule, ONRR replaced the established 1983 maximum civil penalty amounts for each of the four established civil penalty tiers specified in 30 U.S.C. 1719(a)-(d). Therefore, the maximum civil penalty amounts in this final rule are greater than the amounts in the proposed rule because this final rule incorporates the adjustments made pursuant to the 2015 Act. Also, this final rule reflects other non-substantive technical changes and additions made to the proposed rule for the purpose of clarity. We discuss the revisions and amendments in more detail below.

    A. General Comments

    The majority of commenters expressed opposition to the proposed rule. The general comments fall into two categories: (1) The proposed rule is at odds with the FOGRMA civil penalty hierarchy, and (2) the proposed rule denies due process.

    1. The Proposed Rule Is at Odds With the FOGRMA Civil Penalty Hierarchy

    Public Comment: Industry contends that the proposed rule expands the definitions of statutory terms, establishes too lenient of standards for agency notification to industry members, and seeks to invent new knowing or willful violations. Industry further contends that Congress did not authorize ONRR to impose broad-ranging knowing or willful civil penalties entirely at ONRR's discretion. Rather, Congress established a purposeful hierarchy of civil penalties.

    ONRR Response: We include language in the preamble of this final rule that clarifies ambiguities and simplifies the processes for issuing and contesting a NONC, FCCP, and ILCP. We may issue either a NONC or ILCP, depending upon the type of violation we discover and whether it is knowing or willful. We acknowledge that FOGRMA does not expressly define some statutory terms, such as “knowingly or willfully,”submits,” or “maintains.” Therefore, we clarify these terms as they relate to royalty and production information, collection, and management. We do not believe that the definitions expand on or redefine these terms, but rather clarify the terms to minimize ambiguity. We do not understand what industry means by a broad-ranging knowing or willful civil penalty. Congress authorized the Secretary to impose civil penalties for the specific violations identified in 30 U.S.C. 1719. The burden of proof lies with us to prove, by a preponderance of the evidence, the fact of the violation and the basis of the amount of the civil penalty.

    2. The Proposed Rule Denies Due Process

    Public Comment: Industry asserts that the proposed rule would deprive a lessee of due process, including (1) precluding a lessee's statutory right to a full hearing on the record before an administrative law judge (ALJ), (2) preventing them from obtaining a stay of penalty accrual pending appeal of a FCCP or ILCP, and (3) unfairly shifting the adjudicatory role from an independent arbiter—an ALJ—to the agency that issued the contested civil penalty.

    ONRR Response: We address industry concerns regarding due process under Specific Comments on 30 CFR part 1241—Penalties.

    B. Specific Comments on 30 CFR Part 1241—Penalties 1. Definitions and Standards a. The Proposed Definition of the Term “Maintains” Is Invalid

    Public Comment: ONRR received 13 comments stating that the definition of “maintains” in proposed 30 CFR 1241.3 is invalid because it imposes liability under 30 U.S.C. 1719(d)(1) for failing to ensure the continued accuracy of information after it is provided to ONRR for a data system or other official record. Industry's position is that the proposed definition of “maintains” makes two changes, exposing a lessee to potentially limitless liability for a knowing or willful violation under 30 U.S.C. 1719(d)(1). First, the proscribed conduct of knowingly or willfully maintaining false, inaccurate, or misleading information is converted from an affirmative act to the passive act or non-action of failing to correct information. Second, the duty to maintain is made applicable to external information; in other words, information already provided to ONRR. Industry emphasizes that the term “maintains” applies only to a lessee's internal preservation of its own records for agency review or inspection. Industry notes that FOGRMA does not define “maintains” and that the proposed definition would elevate 30 U.S.C. 1719(a) and (b) violations to a 30 U.S.C. 1719(d)(1) violation, which is not FOGRMA's intent. Industry further contends that, under the proposed definition, a lessee who is given prior notice of an inadvertent error will be subject to a knowing or willful civil penalty, which is reserved for a violation without prior notice.

    Additionally, industry comments that the proposed 30 CFR 1241.3 and the preamble contain undefined “critical operative terms,” resulting in no guidance for a lessee. For example, industry contends that the proposed rule expands the scope of “maintains” because ONRR may pursue a knowing or willful violation under 30 U.S.C. 1719(d)(1) if a lessee receives “an email, preliminary determination letter, . . . or any other written communication” identifying a violation and fails to correct the violation. Industry contends that this would violate a lessee's due process rights because a lessee cannot appeal any communication that is not an order.

    ONRR Response: Under 30 CFR 1210.30 each reporter/payor must submit accurate, complete, and timely information to ONRR according to the requirements. If you discover an error in a previous report, you must file an accurate and complete amended report within 30 days of your discovery. The burden falls on us to prove that the alleged violator knew that the incorrect information existed on our data system—and the incorrect information remained uncorrected on our data system—or that the violator acted with reckless disregard or deliberate ignorance to the same.

    Industry asserts that FOGRMA uses the term “maintains” to refer exclusively to industry's internal recordkeeping. We conclude that “maintains” refers to both a party's internal records and to external information that the party submitted into our industry-fed recordkeeping system. FOGRMA recognizes the importance of accuracy in this system, as evidenced by 30 U.S.C 1711, which mandates an accurate royalty accounting system. The statutory obligation to ensure the full and proper collection of a royalty owed for the production and sale of a Federal royalty-bearing resource depends on the accuracy of the information that a party reports.

    In Statoil USA E&P, Inc. v. ONRR, 185 IBLA 302 (Apr. 29, 2015) (on interlocutory review of summary judgment ruling), the Interior Board of Land Appeals (IBLA) affirmed ALJ Harvey C. Sweitzer's conclusion that found the term “maintains” applies to information regarding royalty computation and payment within a party's internal recordkeeping system and to such information that a party has reported to us. Id. at 314. The IBLA concluded that, when a party has already submitted a report to us and later comes to know, whether through a party's own efforts or notice from us, that the report is inaccurate and then fails to correct the report on time, that party has knowingly or willfully maintained inaccurate information and ONRR may assess a civil penalty under 30 U.S.C. 1719(d)(1). Id. at 315. Moreover, a party's due process rights are not violated because they may challenge the ILCP through the hearing process.

    b. The Proposed Definition of the Term “Submits” Is Invalid

    Public Comment: ONRR received 10 comments asserting that the definition of “submits” in proposed 30 CFR 1241.3 is invalid. Industry asserts that ONRR's definition overreaches and directly “contradicts the knowing or willful standard within 30 U.S.C. 1719(d) and is unlawful” because it bypasses the lower hierarchy violations set out in 30 U.S.C. 1719(a) and (b). Additionally, industry contends that proposed 30 CFR 1241.60(b)(2) is unclear. It describes what information may be used as evidence of a knowing or willful violation, including lessee notification of a violation via a communication that is not an appealable order followed by correction of the violation and commission of “substantially the same violation in the future.” Industry contends that the quoted phrase is unclear because ONRR does not explicitly define what type of violation is “substantially the same.” Further, industry argues that ONRR should not be able to invoke the knowing or willful standard based on a communication that “does not even rise to the level of an appealable order.”

    ONRR Response: The term “knowingly or willfully” is not defined in FOGRMA, which is why we are clarifying the term in the regulation. Reporting requirements are already defined in 30 CFR part 1210 and elsewhere; therefore, we can reasonably expect that information submitted to an ONRR system or representative will conform to those requirements. A party holding an interest in a Federal or Indian property must submit information that is correct, accurate, and not misleading. Furthermore, we are not required to prove “specific intent” to defraud, only that a party submitting false, inaccurate, or misleading information did so with actual knowledge, deliberate ignorance, or reckless disregard.

    The proposed regulation did not explicitly define what constitutes “substantially the same” violation. For clarity the term “substantially” was removed from the final rule. ONRR will consider, on a case-by-case basis, a party's history of noncompliance for the purpose of determining the appropriate amount of the civil penalty. Although 30 U.S.C. 1719(d)(1), as amended by the 2015 Act, allows for a penalty assessment “of up to $58,871 per violation for each day such violation continues,” we rarely exercise our right to issue a penalty of this magnitude. FOGRMA provides that submission violations require no prior opportunity to correct before a civil penalty is issued. Therefore, industry's argument that we should issue an appealable order before issuing the civil penalty is inconsistent with FOGRMA's clear language.

    c. The Proposed Definition of the Term “Knowingly or Willfully” is Invalid

    Public Comment: ONRR received six comments from industry stating that the definition of the term “knowingly or willfully” in proposed 30 CFR 1241.3 is invalid because ONRR is defining “knowingly or willfully” to mean gross negligence, which is too low of a standard. Industry states that gross negligence requires ONRR to “show that a person has `failed to exercise even that care which a careless person would use.'” Industry argues that “ONRR cites no legal authority for equating `knowing or willful' under FOGRMA with `gross negligence.'”

    ONRR Response: In 30 CFR 1241.3 of the final rule, the definition of the term “knowingly or willfully” includes acting—or failing to act, as applicable—in reckless disregard of the facts surrounding the event or violation. Industry equates reckless disregard with gross negligence. Regardless of whether the terms are equivalent, the application of the reckless disregard standard is consistent with a recent ruling issued by ALJ Sweitzer in Cabot Oil & Gas Corporation, Case No. CP11-016 (DCHD June 5, 2015). ALJ Sweitzer held that the term “willfully” in 30 U.S.C. 1719 includes acts undertaken with reckless disregard. Further, ALJ Sweitzer suggested that gross negligence may support a finding that the conduct is “willful.” Consequently, the reckless disregard standard is an appropriate standard to measure a knowing or willful violation.

    d. The Proposed “Mens Rea” Standard Is Insufficient

    Public Comment: ONRR received 12 comments from industry stating that the “mens rea” standard of gross negligence in the definition of the term “knowingly or willfully” in proposed 30 CFR 1241.3 is too low of a standard for a 30 U.S.C. 1719(d) violation. Conduct that violates 30 U.S.C. 1719(d) is also criminally punishable under 30 U.S.C. 1720. Industry mentions that “willfully” can signify two different “mens rea” depending on whether it is being used in civil or criminal law. Industry argues that ONRR is improperly patterning the “mens rea” requirements for 30 U.S.C. 1719(d) on the lower civil “mens rea” requirements of the False Claims Act, despite the fact that a 30 U.S.C. 1719(d) violation is also punishable criminally.

    The False Claims Act defines “knowing” to include reckless disregard. Because FOGRMA makes no mention of reckless disregard, industry contends that FOGRMA requires the government to prove criminal “mens rea” to establish liability. “ONRR's Proposed Rule also fails to acknowledge that the “knowing or willful” standard in § 1719(d) is unique and must also warrant criminal liability under § 1720,” which would undercut Congress' hierarchy penalty system already established in FOGRMA and conflict with established principles of law.

    ONRR Response: The proposed definition of the term “knowingly or willfully” is consistent with the history and purpose of FOGRMA. Congress was concerned by reports from the U.S. General Accounting Office (GAO, now the U.S. Government Accountability Office) discussing the government's failure to collect royalties for oil and gas leases on Federal and Indian lands and the theft of oil and gas from those leases. The Secretary appointed the Linowes Commission (Commission) to address GAO's claims. The Commission found numerous deficiencies, concluding that “the industry is essentially on an honor system.” In response, Congress passed FOGRMA and empowered the Secretary with the authority to impose a civil penalty to guard against a FOGRMA violation. When Congress established the tiered system of penalties, Congress stated that “a balance must be struck between the need to deter violations of the Act and the need to avoid a situation in which exposure to very severe penalty liability for relatively minor or inadvertent violations of necessarily complex regulations becomes a major disincentive to produce oil or gas from lease sites on Federal or Indian lands.”

    Though FOGRMA does not define the term “knowingly or willfully,” courts generally do not dispute the meaning of the term “knowingly,” which denotes actual knowledge or intentional blindness. However, the term “willfully” may signify two different standards depending on whether it is being used in criminal or civil law. The IBLA considered the meaning of the term “willful” in Meridian Oil, Inc., 147 IBLA 211 (1999), in the context of a civil penalty proceeding. The IBLA concluded that the term “willfulness” can be demonstrated through reckless disregard as to whether a violation is occurring. In Cabot Oil, ALJ Sweitzer addressed whether the criminal law mens rea standard for the term “willfully” should apply to knowing or willful violations under 30 U.S.C. 1719. ALJ Sweitzer concluded that “Congress intended the civil mens rea of reckless disregard for the law should be applied . . . ” to willful violations under 30 U.S.C. 1719. Thus, the final rule's definition of the term “knowingly or willfully” is in accordance with administrative rulings interpreting the term, and does not violate FOGRMA's hierarchical penalty system.

    Industry also commented that our proposed rule would improperly create criminal exposure for an individual who does not have the requisite “mens rea” for criminal conduct. The Supreme Court considered a similar argument made in Safeco Insurance Co. of America v. Burr, 551 U.S. 47, 56-60 (2007), in which Safeco claimed that the word “willfully” in the civil provision of the Fair Credit Reporting Act (FCRA) cannot include recklessness because the criminal penalty provisions of the FCRA are triggered by actions that are engaged in knowingly and willfully. The Supreme Court disagreed, stating that “ . . . in the criminal law, `willfully' typically narrows the otherwise sufficient intent, making the government prove something extra, in contrast to its civil-law usage, giving the plaintiff a choice of mental states to show in making a case for liability.” Safeco Ins. Co., 551 U.S. at 60. ONRR recognizes the different standards for civil and criminal actions and will apply the civil standard for each civil penalty brought under 30 U.S.C. 1719.

    The proposed 30 CFR 1241.75 notes that the United States may pursue a criminal penalty if a party committed an act for which a civil penalty is provided in 30 U.S.C. 1719(d) and 30 CFR 1241.60(b)(2). The proposed 30 CFR 1241.75 was intended to clarify and explain the application of 30 U.S.C. 1719(d) in a civil context. However, after further consideration, we do not believe that it is necessary to provide a regulation to discuss criminal prosecution. Therefore, 30 CFR 1241.75 is removed from the final rule. The removal of 30 CFR 1241.75 in no way limits our ability to refer a violation for criminal prosecution under 30 U.S.C. 1720 or another statute.

    e. “Strict Vicarious Liability” of a Lessee for the Act and Knowledge of Its Employee or Agent Is Untenable

    Public Comment: ONRR received nine comments from industry contending that proposed 30 CFR 1241.60(b)(2) untenably imposes “strict vicarious liability” on a lessee for the act and knowledge of its employee or agent. The proposed section describes what information we may use as evidence of a knowing or willful violation, including “the acts and failures to act of [a lessee's] employees and agents.” Industry opposes “strict vicarious liability” because ONRR would hold a lessee responsible for the knowledge of all its employees, even for a matter beyond the scope of the employee's “employment, experience or responsibility.” Further, industry notes that a “specific intent criminal-type standard” cannot be imputed to a corporation where an employee acts without apparent authority and outside of the scope of his or her responsibilities.

    Industry states that ONRR is relying on the “strict vicarious liability” standards in the False Claims Act which imposes “strict vicarious liability” on a corporation for the act and knowledge of its employee. Industry contends that ONRR cannot apply those standards to FOGRMA because they are two entirely different statutes. Industry states that ONRR must conduct a case-by-case evaluation of the relevant factors and may impute liability to the corporation only if the agent's culpable act or knowledge is material to the agent's duties. Industry also states that, under FOGRMA, a lessee may designate an agent for a royalty related matter and that ONRR recognizes such designation when a company fills out and submits an Addressee of Record Designation for Service of Official Correspondence (form ONRR-4444). Industry states that the proposed regulation would circumvent an otherwise orderly system in which liability should only be imputed for an act or knowledge of a designated agent. Industry contends that it would be unfair to “strictly and vicariously” impose a large civil penalty on a lessee under proposed 30 CFR 1241.60(b)(2) if a lessee fails to comply with any communication that ONRR sends to any company employee. Industry likewise contends that it is unfair to impose a civil penalty if ONRR fails to send official correspondence to the designated person by authorized means.

    ONRR Response: The proposed definition of the term “knowingly or willfully” includes a situation where a corporation or individual in a corporation acts with actual knowledge, as well as a situation where the corporation acts with deliberate ignorance or reckless disregard. By holding the corporation vicariously liable for the employee's actions, the final rule deters management from recklessly disregarding or deliberately ignoring the actions of an employee or agent. To avoid the possibility of a civil penalty, a company must exercise sufficient quality control and management oversight to ensure that it reports and pays correctly. The principle that a company can be held liable for the conduct of its agent or employee acting under apparent or actual authority, regardless of the actual knowledge of corporate management, is especially applicable in a civil penalty case brought under FOGRMA. A corporation acts through its employee and empowers its employee to conduct business on its behalf. In dealing with us, a corporation designates an employee as a point of contact using form ONRR-4444. See 30 CFR part 1218, subpart H. A corporate employee who is designated or in regular contact with us, is an agent with the actual or apparent authority to communicate on behalf of, and bind, the corporation. And we reasonably and necessarily rely on the agent's authority to speak for the corporation. Further, relevant case law holds that knowledge of a non-managerial employee is imputed to a corporation regardless of the principal's or management's actual knowledge. See, for example, United States v. Shackelford, 484 F. Supp. 2d 669 (E.D. Mich. 2007) (“Shackelford”) (False Claims Act); ASME v. Hydrolevel Corp., 456 U.S. at 566-568 (1957) (antitrust); United States ex rel. Bryant v. Williams Bldg. Corp., 158 F. Supp. 2d 1001, 1006-1009 (D. S.D. 2001) (“Bryant”) (False Claims Act); see also United States ex rel. Ann Fago v. M&T Mortgage Corp., 518 F. Supp. 2d 108, 124-125 (D.D.C. 2007) (False Claims Act) (rejecting the principle that a corporation is not liable for the acts of a non-managerial employee absent knowledge or recklessness by the corporation as going “against the great weight of authority in [False Claims Act] cases”). Indeed, in Cabot Oil, ALJ Sweitzer agreed with us that the scienter of an oil and gas company's non-managerial employee should be imputed to the company—at least when the company designates the employee as its point of contact. Therefore, our application of the knowingly or willfully standard under this final rule is in accordance with judicial and administrative rulings and does not circumvent or undercut FOGRMA's intent or authority.

    2. Legal Principles a. The Omnibus Appropriations Act, 2009, P.L. 111-8, Sec. 115, 123 Stat. 524 (2009 Appropriations Act) and the Department of the Interior, Environment, and Related Agencies Appropriations Act, 2010, P.L. 111-88, Sec. 114, 123 Stat. 2928 (Codified at 30 U.S.C. 1720a) (2010 Appropriations Act) Authorizing the Application of FOGRMA to Solid Mineral Leases

    Public Comment: One commenter expressed concern regarding the application of the proposed rule to solid mineral leases. Since FOGRMA did not cover solid mineral leases until mandated by the 2009 and 2010 Appropriations Acts, the commenter believes that solid mineral leases were shoehorned into FOGRMA with no consideration of the unique provisions of these leases. In addition, this commenter suggested that a conflict exists with the Bureau of Land Management (BLM) regulation at 43 CFR 3485.1(e), which prescribes a different penalty for misreporting on a coal lease.

    ONRR Response: FOGRMA established civil penalties relating to oil and gas development on Federal lands and the OCS. The 2009 and 2010 Appropriations Acts expanded the application of Section 109 of FOGRMA to any lease authorizing exploration for or development of coal, any other solid mineral, or any geothermal resource on any Federal or Indian lands and any lease, easement, right of way, or other agreement, regardless of form, for use of the OCS. If BLM issues a violation for misreporting on a coal lease, BLM regulation 43 CFR 3485.1(e) and any other pertinent BLM regulation will govern the penalty assessment. However, if we issue the violation for misreporting on a coal lease, we will follow the authority set forth in FOGRMA section 109 and any applicable lease terms.

    b. ONRR Already Possesses Sufficient Civil Penalty Tools To Address a Reporting Error and Failure To Correct

    Public Comment: ONRR received 14 comments stating that ONRR already possesses sufficient civil penalty tools to address a reporting error and failure to correct. Industry comments that ONRR does not explain why it is proposing wholesale changes to the current civil penalty regulation, given its existing clear and adequate enforcement path to address the conduct that it now seeks to shoehorn under 30 U.S.C. 1719(c) and (d).

    Industry asserts that, under ONRR's preferred formulation, ONRR could sweep any reporting violation into 30 U.S.C. 1719(d), however alleged, that is not immediately corrected, thus merging the FOGRMA civil penalty provisions and eliminating the various hierarchy of violations that FOGRMA clearly established. Industry contends that ONRR lacks the authority to erase the graduated, proportionate, and strictly defined hierarchy of ascending civil penalties that Congress prescribed.

    ONRR Response: We already possess the authority to issue a NONC, FCCP, or ILCP. This rule seeks to increase transparency and to clarify the purpose of each notice. Therefore, this final rule sets out more specific guidelines regarding the types of violations and how these violations prescribe the selection and issuance of each type of enforcement notice.

    Moreover, in the 2009 and 2010 Appropriations Acts, Congress directed the Secretary to apply FOGRMA section 109 (30 U.S.C. 1719) to Federal and Indian solid mineral leases, geothermal leases, and agreements for OCS energy development under 43 U.S.C. 1337(p). This rule is necessary to effectively announce and clarify the authority set out in the 2009 and 2010 Appropriations Acts. The new 30 CFR 1241.2 states that this part will apply to all Federal mineral leases onshore and on the OCS, to all Federally-administered mineral leases on Indian Tribal and individual Indian mineral owners' lands, and to all easements, rights of way, and other agreements on the OCS.

    Title 30 CFR 1241.3 provides definitions for terms that are not comprehensively defined or, in most instances, not defined at all in the current 30 CFR 1241. For example, we already possess the authority to issue a civil penalty for knowing or willful violations under 30 U.S.C. 1719(c) and (d). This rule simply clarifies what the term “knowingly or willfully” means. Additionally, the definitions in this rule clarify broad terms. For instance, “information” is a broad term that the final rule defines as it pertains to royalty collection and management.

    FOGRMA established a tiered system of civil penalties and structured liabilities for relatively minor or inadvertent violations to major, complex, or severe violations. Congress delegated to the Secretary the authority to impose a civil penalty to deter FOGRMA violations. We may issue either a NONC or ILCP, depending upon the type of violation we discover and whether it is knowing or willful. 30 CFR part 1210 provides specific requirements for reporting, including discovering errors and submitting corrections. Thus, a party's action or inaction dictates the type of 30 U.S.C. violation assessed.

    c. ONRR's Application of 30 U.S.C. 1719(d)(1) Is Contrary to Law

    Public Comment: ONRR received five comments asserting that ONRR is expanding 30 U.S.C. 1719(d)(1) contrary to law. Industry contends that “a plain reading of 30 U.S.C. 1719(d)(1), particularly within its statutory context, reveals that it does not apply to mere delays in correcting alleged errors not knowingly or willfully made when originally submitted.” Further, industry contends that ONRR “parses out individual statutory terms and separately assigns new definitions created out of thin air,” then uses these definitions to manufacture a new violation under 30 U.S.C. 1719(d)(1). The commenters state that the proposed rule does not faithfully interpret the governing statute, but, instead, seeks to re-draft it.

    ONRR Response: Industry comments that we are applying 30 U.S.C. 1719(d)(1) in matters of “mere delays in correcting alleged reporting errors.” In fact, we apply 30 U.S.C. 1719(d)(1) after confirming that the violator knowingly or willfully maintained incorrect information on our financial system and failed to make corrections on our financial system within a reasonable period of time. See, also, the discussion under Part II.B.1.a., above.

    d. ONRR's Application of 30 U.S.C. 1719(c) Is Contrary to Law

    Public Comment: ONRR received three comments requesting that ONRR not revise its regulations implementing 30 U.S.C. 1719(c). Industry takes issue with proposed 30 CFR 1241.60(b)(1)(ii) setting forth the penalty for “knowingly or willfully fail[ing] to make any royalty payment . . .,” 30 CFR 1241.60(a)(1), or for “fail[ing] or refus[ing] to permit lawful entry, inspection, or audit.” 30 CFR 1241.60(a)(2). Industry objects to the addition of a new sentence in the proposed 30 CFR 1241.60(b)(1)(ii) that: “[ONRR] may consider [a party's] failure to keep, maintain, or produce documents to be a knowing or willful failure or refusal to permit an audit.” Industry states that “The proposed rule tries to impose a uniform `knowing or willful' definition for both [30 U.S.C.] 1719(c) and (d), when the applicable standard for [30 U.S.C.] 1719(d) must be considerably more strict.” Commenters state that ONRR “would convert any internal recordkeeping issue into an impediment of a hypothetical audit and thereby trigger greater penalties without notice.” And commenters state that “as written, proposed [30 CFR] 1241.60(b)(1)(ii) potentially could allow knowing or willful civil penalties based on an audit not even occurring.” The commenters state that ONRR cannot automatically impute 30 U.S.C. 1719(c) liability to a company for any alleged impediment of an audit by an employee.

    ONRR Response: As stated in the preamble of the proposed rule, we issued a Dear Reporter Letter on March 10, 2011, explaining the recordkeeping requirements and the consequences of failing or refusing to produce requested documents. This letter warns of the penalty consequence for the failure to keep, maintain, or provide in a timely manner a document for an audit, compliance review, or investigation. Additionally, 30 U.S.C. 1713 and 30 CFR part 1212 include recordkeeping obligations that require a reporter to establish and maintain a record, make a report, provide information needed to implement FOGRMA, determine compliance with a regulation or order, and produce a record upon request. Moreover, 30 CFR part 1212 states, “When an audit or investigation is underway, records shall be maintained until the record holder is released by written notice of the obligation to maintain records.” Therefore, 30 CFR 1241.60(b)(1)(ii) does not deviate from existing regulations or practice.

    A company is legally required to have records available and ready for inspection. If an audit cannot be performed because of a company's failure to produce documents, we are authorized to issue an ILCP for failing or refusing to permit an audit.

    e. The Proposed Knowing and Willful Provisions Do Not Work With the Unbundling Issue

    Public Comment: The Independent Petroleum Association of New Mexico (IPANM) contends that the proposed knowing and willful provisions do not work with the unbundling issue. IPANM states that unbundling requires “all natural gas producers to use specific formulae for each processing plant when calculating royalty payments to the [F]ederal government.” IPANM asserts that ONRR requires the use of an outdated unbundling cost allocation (UCA) to estimate a UCA for current and future reporting, which later requires replacement with an actual value. IPANM contends that this system creates uncertainty and will, ultimately, unfairly expose a company to liability for a knowing or willful violation.

    ONRR Response: We are not required to provide a UCA, and a party is not required to use an ONRR-generated UCA. The use of an ONRR-generated UCA does not waive our statutory right to audit reasonable and actual costs for transportation and processing deductions. We will not assess a civil penalty simply because a party chooses to use an ONRR-generated UCA. A civil penalty may be assessed if a party is notified that an ONRR-generated UCA has changed and they knowingly or willfully failed to update their reporting.

    f. ONRR's Proposed Rule Contravenes the Federal Oil and Gas Royalty Simplification and Fairness Act (RSFA)

    Public Comment: ONRR received two comments from industry stating that ONRR's proposed rule contravenes FOGRMA as amended by RSFA because it treats a reporting error as a knowing or willful violation punishable under 30 U.S.C. 1719(d). Industry explains that RSFA amendments to FOGRMA reflect Congressional intent to establish a “fairer and more moderate approach to enforcing accurate royalty reporting.” Industry contends that “RSFA demonstrated Congress' intent that even `chronically submitted erroneous reports,' let alone minor reporting errors, do not warrant knowing or willful civil penalties under 30 U.S.C. 1719(d).” Industry continues to explain that, under 30 U.S.C. 1724(d)(4)(B), ONRR may issue an order to perform restructured accounting (RSO) when ONRR or a delegated State determines, during an audit, that a lessee “has made identified underpayments or overpayments . . . based upon repeated, systemic reporting errors. . . . ” However, industry notes that ONRR's proposed rule would do away with the statutory RSO requirements and, in effect, define the failure to comply with an RSO as a knowing or willful maintenance of an inaccurate report. Therefore, industry concludes that “the RSFA amendments enacted in 1996 collectively demonstrate that Congress did not contemplate that reporting errors, even chronic reporting errors, were routinely in the scope of 30 U.S.C. 1719(d) knowing or willful civil penalties.”

    ONRR Response: As discussed elsewhere in this preamble, FOGRMA established a tiered system of civil penalties and structured liabilities for relatively minor or inadvertent violations and major, complex, or severe violations. Congress delegated to the Secretary the authority to impose a civil penalty to sanction and deter FOGRMA violations. Industry commented that the proposed rule would impact statutory RSO requirements. If ONRR issues a RSO, a party may appeal and exhaust all available administrative and judicial remedies. Should a party not timely appeal a RSO, or should a final determination be made that a RSO is valid, and the company fails to comply with the RSO, a civil penalty may be assessed under 30 U.S.C. 1719. Furthermore, neither FOGRMA nor its amendments in RSFA define the term “knowingly or willfully,” leaving the definition to be clarified and established by regulations, judicial and administrative decisions, or both.

    g. The Proposed Rule Understates Its Economic Impact

    Public Comment: ONRR received three comments in which industry argues that ONRR's estimation of the proposed rule's annual financial impact is not credible. Commenters elaborate that “[t]he allowable daily civil penalties that could now accrue under ONRR's expanded use of [30 U.S.C.] 1719(c) [and] (d) are several times greater than penalties properly assessed under [30 U.S.C.] 1719(a) [and] (b).” Moreover, they assert that “under the Proposed Rule, penalty accrual could no longer be stayed and steep penalties could be pursued even when the lessor has not been deprived of substantial royalty.” Industry contends that “since ONRR could accumulate [civil] penalties without notice, there would be little to prevent ONRR from running up civil penalties before issuing an ILCP.” Additionally, industry states that “ONRR . . . relies on outdated gas penalty assessment data from 2007-2011.” Further, industry asserts that ONRR “seeks to bootstrap its ad hoc `initiative' and apply more severe penalties on a widespread basis, even absent to date any final Departmental or judicial determination of ONRR's novel interpretation of FOGRMA.” Finally, industry contends that ONRR's proposed rule does not accurately depict the economic impact on small businesses and Indian Tribes and individual Indian mineral interest owners.

    ONRR Response: As required by the 2009 and 2010 Appropriations Acts, we are expanding the application of Section 109 of FOGRMA to any lease authorizing exploration for or development of coal, any other solid mineral, or any geothermal resource on any Federal or Indian lands and any lease, easement, right of way, or other agreement, regardless of form, for use of the OCS. Further, we have updated our economic analysis of the impact of this rule with data through the end of October 2015. See, the discussion under Part III.1.A.-D., below. With respect to industry's concern regarding the accrual of a steep penalty due to the removal of industry's right to a stay of the accrual of a penalty, the final rule leaves intact the right to request a stay. Furthermore, ONRR cannot “run up” a civil penalty before issuing an ILCP. The date on which the ILCP is issued has no effect on the amount of the civil penalty because a knowing or willful civil penalty only accrues for as many days as the violating party allows it to accrue. A party that knowingly or willfully commits a violation can stop the accrual of the civil penalty at any time by simply correcting the violation.

    h. ONRR's Proposed Rule May Have Unintended Consequences

    Public Comment: ONRR received five comments in which industry asserts that ONRR's proposed rule may have unintended consequences. Industry contends that the rule “would chill communication with ONRR out of fear that any agency feedback or guidance would be construed as notice forming the basis for potential knowing or willful civil penalties if that informal guidance is not strictly followed.” Additionally, industry argues that “total royalty collections may decrease as ONRR's significant expansion of the most egregious civil penalty provision provides a disincentive to lessees, particularly smaller entities, from producing on Federal lands, Indian lands, and the OCS in the first instance.”

    ONRR Response: We disagree that the final rule will “chill” communications. Indeed, the final rule will improve communications because the language clarifies ambiguity and simplifies the process for issuing and contesting a notice. Although industry contends that this rule will have unintended consequences, a majority of its provisions are already in practice, especially with the changes made between the proposed and final rule, as discussed elsewhere in this preamble. Further, the final rule will (1) apply the regulations to all Federal mineral leases onshore and on the OCS, to all Federally-administered mineral leases on Indian Tribal and individual Indian mineral owners' lands, and to all easements, rights of way, and other agreements on the OCS; (2) incorporate the civil penalty inflation adjustments made pursuant to the 2015 Act; (3) clarify and simplify the existing regulations for issuing a NONC, FCCP, and ILCP; and (4) provide notice that we will post matrices for civil penalty assessments on our Web site. These are the dominant consequences of the final rule, all of which are intended.

    i. ONRR's Royalty and Reporting Obligations Regarding Multiple Lessees or Leases

    Public Comment: ONRR received one comment from industry regarding complying with ONRR's royalty and reporting obligations in a situation where there are multiple lessees or leases. Industry stated that a lack of timely action from another surface management agency will result in a civil penalty action, specifically BLM's delay in approving a unit revision.

    ONRR Response: We appreciate industry's comments; however, the action or inaction of another surface management agency is beyond the scope of this final rule. Further, we will evaluate each potential civil penalty matter on a case-by-case basis.

    3. Due Process a. Un-Reviewable Discretion of the Agency To Issue a Civil Penalty

    Public Comment: ONRR received five comments asserting that the proposed rule circumvents the ALJ's authority to review the appropriateness of a civil penalty. Further, industry expresses concern that civil penalty liability will be based on a communication that is not an appealable order. Moreover, industry states that “[a] lessee also would have no means to hold ONRR to its obligation to treat similar civil penalty cases in a similar manner; the aggrieved lessee would be foreclosed from ever questioning the agency's rationale for disparate treatment, and ONRR would have no obligation to provide one.”

    ONRR Response: In light of industry comments and upon further consideration, the final rule will leave intact the ALJ's discretion and authority to review our issuance of a civil penalty. Proposed 30 CFR 1241.8 is removed from the final rule and replaced with 30 CFR 1241.8 addressing the ALJ holding a hearing and rendering a decision.

    b. Inability of ALJ or Board to Stay the Accrual of a Penalty Pending Review

    Public Comment: ONRR received 11 comments asserting that proposed 30 CFR 1241.12(b) would preclude any stay of the accrual of a penalty pending a hearing request before the ALJ or an IBLA appeal. Commenters argue that this proposed section prevents the appellant and the administrative tribunal from effectuating a stay in circumstances in which it is warranted, thereby taking away a lessee's basic appeal right. Consequently, proposed 30 CFR 1241.12(b) would force a lessee “to either (i) subject itself to additional penalties . . . plus accumulating interest . . . or (ii) comply with a directive (possibly informal) that the lessee may believe is incorrect. . . .” Additionally, the section “would needlessly burden the Federal Judiciary with otherwise premature Federal Court lawsuits to obtain preliminary injunctive relief.”

    ONRR Response: In light of industry comments and upon further consideration, the final rule leaves intact the right to request a stay of the accrual of a penalty. Thus, proposed 30 CFR 1241.12(b) is modified and the hearing requester's opportunity to petition the ALJ to stay the accrual of a civil penalty is re-designated to 30 CFR 1241.11.

    c. ONRR as Sole Gatekeeper to a Hearing on the Record

    Public Comment: ONRR received eight comments asserting that the proposed rule makes ONNR the sole gatekeeper to a hearing on the record. Industry argues that proposed 30 CFR 1241.5 “would permit ONRR alone to decide whether [the] ALJ jurisdiction has been timely triggered to review either a NONC, [FCCP,] or [an ILCP.]” Proposed 30 CFR 1241.5 requires the hearing requester to provide certain information and a surety instrument or demonstration of financial solvency for an unpaid and accrued penalty plus interest within 30 days after service of the NONC, FCCP, or ILCP, and provides that, if a hearing request is incomplete, ONRR would not consider it to be filed and would return it to the lessee. Industry contends that proposed 30 CFR 1241.5 allows “unreviewable discretion to determine whether the appeal request is satisfactory, and imposes a blanket ban on extensions of the original 30-day period to provide that information.” Thus, the proposed rule potentially allows for a “right to a hearing on the record [to be] forever lost.”

    Industry contends that the prerequisites to request a hearing set forth in proposed 30 CFR 1241.5 are burdensome and ambiguous. For instance, they contend that ONRR does not clearly articulate what is necessary for industry to explain its reasons for challenging a NONC, FCCP, or ILCP. Industry also contends that ONRR requires the submission of a surety instrument based on uncertain dollar amounts due, which is similar to using a “moving target to find the submitted security insufficient and deny a hearing on the record.” Moreover, industry disagrees with the requirement in proposed 30 CFR 1241.6 to use Pay.gov to pay the hearing request processing fee. Industry asserts that “ONRR must withdraw or revise and re-propose these proposed [hearing request] requirements.”

    ONRR Response: The proposed rule invited public comment on new requirements pertaining to the filing of a hearing request on a NONC, FCCP, or ILCP. In light of industry comments and upon further consideration, the final rule does not include the proposed 30 CFR 1241.5 and 1241.6, which contained these new requirements. Title 30 CFR 1241.7 describes the method for filing all hearing requests, and 30 CFR 1241.5 and 1241.6 clarify which enforcement actions are and are not subject to a hearing.

    Currently under 30 CFR 1241.54, a recipient of a NONC can request a hearing on its liability for the NONC. Under the current 30 CFR 1241.56, the recipient may request a hearing on only the amount of the penalty. Likewise, under the current regulations, a recipient of an ILCP can request a hearing on its liability for the ILCP under 30 CFR 1241.62, or on the amount of the penalty under 30 CFR 1241.64. We believe that having four sections to request a hearing that result in the same process is confusing and redundant. Therefore, 30 CFR 1241.7 consolidates all four sections.

    Under the final 30 CFR 1241.7, a party may still request a hearing on a NONC, FCCP, or ILCP before an ALJ. A party will have 30 days from receipt of a NONC, FCCP, or ILCP to file a hearing request. This provision is the same as the current regulations in 30 CFR 1241.54 (hearing request for a NONC) and 30 CFR 1241.62 (hearing request for liability for an ILCP). However, this provision will change current regulations at 30 CFR 1241.56(b) (hearing request for a FCCP) and 1241.64(b) (hearing request on the amount of a civil penalty assessed in an ILCP). The current regulations allow only 10 days for a party to request a hearing on a civil penalty assessment. Title 30 CFR 1241.7 extends the period within which to request a hearing to 30 days. Final 30 CFR 1241.7 also clarifies that the 30-day period may not be extended.

    d. Motion for Summary Decision

    Public Comment: ONRR received seven comments asserting that proposed 30 CFR 1241.8 allows ONRR to move for summary decision based on an alleged fact prior to an appellant initiating discovery to contravene that fact. Furthermore, they contend that ONRR is seeking to “reverse the black-letter rule that on a motion for summary [decision] disputed facts should be construed in favor of the non-movant.” Thus, they claim that ONRR is depriving a lessee of its right to a hearing on the record.

    ONRR Response: Proposed 30 CFR 1241.8 allowed a motion for summary decision to be filed at any time after the case is referred to the DCHD, including before discovery commenced. Additionally, proposed 30 CFR 1241.8 included a new provision indicating that industry had the burden of showing by a preponderance of the evidence that it was not liable or that the penalty amount should be reduced. Furthermore, proposed 30 CFR 1241.9 outlined the requirements and standards for both parties to follow when filing a motion for summary decision, response, and reply.

    After consideration of industry comments, we removed proposed 30 CFR 1241.8 and 1241.9 from the final rule. Nevertheless, the option of filing a motion for summary decision is available to either party upon the commencement of the case, and the burden will remain with the movant to demonstrate that there is no issue of material fact and that, as a matter of law, judgment is appropriate. The ALJ has the discretion to schedule and rule on any motion for summary decision. Additionally, even without a regulatory amendment, both parties should adhere to the customary standards for a motion for summary decision. Because proposed 30 CFR 1241.8 and 1241.9 are removed, 30 CFR 1241.8 is replaced with 30 CFR 1241.8 addressing the ALJ holding a hearing and rendering a decision, and proposed 30 CFR 1241.10, addressing the appeal of an ALJ's decision, is re-designated as 30 CFR 1241.9.

    e. Fixed Period To Correct

    Public Comment: ONRR received five comments asserting that ONRR's “absolute barrier” to providing an extension to correct a violation identified in a NONC is “patently unreasonable.” See proposed 30 CFR 1241.50(c). Industry alleges that “[a] NONC may require the lessee to perform a scope of work that is impossible to complete within the default 20-day period.” Industry believes that an extension should be considered for a justifiable reason on a case-by-case basis.

    ONRR Response: A company's compliance dictates whether or not we will issue a NONC. We are removing the language from 30 CFR 1241.50(c) that no extension will be given for a NONC. We provide a minimum of 20 days to correct a violation identified in a NONC, but hold the right to set out a longer cure period for a violation identified after taking into account all relevant factors and circumstances to achieve compliance.

    f. Unreviewable Enforcement Actions

    Public Comment: ONRR received five comments stating that ONRR should only base liability for a civil penalty on an appealable communication. Furthermore, the appeal clock or civil penalty should only run upon ONRR's issuance of an order recognized under 30 CFR part 1290. Consequently, “the Proposed Rule creates unreviewable enforcement actions exempt from a hearing on the record, which could apply even where no opportunity existed to appeal the earlier communication.”

    ONRR Response: When we issue an order, a company has the opportunity to appeal the order under 30 CFR part 1290 and can present new information and testimony (in the form of written affidavits) as part of that appeal. When we issue a FCCP or ILCP, a company has the opportunity to request a hearing. This rule clarifies that, if a party receives an ONRR order and does not appeal that order under current 30 CFR part 1290, that order is the final decision of the Department, and the order cannot be changed by subsequently requesting a hearing on a NONC, FCCP, or ILCP issued for failing to comply with that order.

    g. Inability of the ALJ To Reduce a Civil Penalty Amount

    Public Comment: ONRR received 12 comments requesting that ONRR eliminate proposed 30 CFR 1241.8(h)(1) in the final rule. Industry contends that the proposed rule is imposing on the ALJ's discretion and bars the ALJ from substantially reducing a penalty in circumstances where a reduction may be warranted. Additionally, industry alleges that ONRR may purposely delay the issuance of an ILCP in order to further penalize industry monetarily.

    ONRR Response: The proposed rule would have prohibited the ALJ from reducing the penalty below half of the amount assessed, precluded the ALJ from reviewing our exercise of discretion to impose a civil penalty, and prohibited the ALJ from considering any factors in reviewing the amount of the penalty other than those specified in 30 CFR 1241.70. In light of industry's comments and upon further consideration, we dropped these provisions from the final rule.

    We do not purposely delay the issuance of an ILCP in order to escalate the amount of a penalty assessment. Indeed, the date on which the ILCP is issued has no effect on the amount of the civil penalty because a knowing or willful civil penalty only accrues for as many days as the violating party allows it to accrue. A party that knowingly or willfully commits a violation can stop the accrual of the civil penalty at any time by simply correcting the violation, regardless of when we issue the ILCP.

    h. ONRR's Stacked Deck

    Public Comment: ONRR received two comments stating that the incorporation of the combined proposed amendments will stack the deck in ONRR's favor. This would result in an “interference with due process and the statutory right to a hearing on the record.”

    ONRR Response: In light of industry comments and upon further consideration, we have removed or modified portions of the proposed rule so that the final rule addresses industry concerns. Those changes are indicated in our responses to industry's comments in this preamble under the subheadings 3.a. Unreviewable Discretion of the Agency to Issue a Civil Penalty, 3.b. Inability of the ALJ or Board to Stay the Accrual of a Penalty Pending Review, 3.c. ONRR as Sole Gatekeeper to a Hearing on the Record, 3.d. Motion for Summary Decision, 3.e. Fixed Period to Correct, 3.f. Unreviewable Enforcement Actions, and 3.g. Inability of the ALJ to Reduce a Civil Penalty Amount.

    i. Refusal To Consider Royalty Implication in Determining Whether the Civil Penalty Amount Is Arbitrary

    Public Comment: ONRR received four comments stating that the proposed amendments to 30 CFR 1241.70(b) explicitly disregards the royalty consequence of an underlying violation when ONRR is determining the amount of the civil penalty to assess. Industry suggests that a paperwork error should not be in the same tier as a royalty underpayment because the central purpose and motivation behind the enactment of FOGRMA is royalty collection. Industry further suggests that “when enacting FOGRMA, Congress was keenly aware of the need to preserve basic principles of proportionality between the amount of the penalty and the severity of the underlying offense.” Industry declares that ONRR “not only ignores [the] basic tenet of proportionality but also explicitly calls for the agency to disregard it in imposing civil penalties.” Industry states that this is especially true regarding ONRR's new proposed definitions of “maintains” and “submits” in proposed 30 CFR 1241.3. “ONRR's disregard of the royalty consequences of alleged reporting errors ignores Congressional intent to impose penalties that will deter violators but not jeopardize future leasing and operations.” Finally, industry purports that “[s]ome of the factors that ONRR states it does intend to consider in setting penalty amounts also may result in unjust outcomes under ONRR's Proposed Rule.” Specifically, industry objects to ONRR considering prior violations when assessing a future civil penalty assessment. Moreover, industry contends that the “`size of [a party's] business' should only be a mitigating factor for a small business, and not an arbitrary multiplier for larger entities.”

    ONRR Response: FOGRMA does not link the amount of a civil penalty to the royalty consequence of an underlying violation, and we will not issue a reduced penalty because the violation produced little or no royalty consequence. Civil penalties are designed to promote compliance with lease terms and royalty statutes and regulations, and to encourage accurate and timely reporting. As a result, Congress authorized the secretary to impose civil penalties for reporting errors and failing to submit data, regardless of the royalty consequence of those violations. Indeed, many reporting errors and failures to submit data delay an audit or prevent ONRR or a delegated State from performing an audit, which can be penalized under FOGRMA. Accurate reporting is paramount to our obligation to collect and disburse revenues in a timely manner. Regardless of whether a party owes an additional royalty, or if there is any royalty consequence to the violation, misreporting can lead to a myriad of repercussions that affect not only us, but also surface management agencies, States, Indian Tribes, and others that rely on that reported data.

    ONRR determines the amount of the civil penalty by considering the three factors set forth in 30 CFR 1241.70. Industry is aware of the factors considered by ONRR when determining the amount of a civil penalty. Additionally, industry is aware of its reporting requirements set forth in the regulations. FOGRMA authorizes steep penalties for 30 U.S.C. 1719 violations, but our assessments are already far below the maximum allowable under the law. We determine the amount of the civil penalty in accordance with 30 CFR 1241.70 which is consistent with our current practice.

    j. Inconsistency in ONRR's Communication and Accountability

    Public Comment: ONRR received two comments from industry stating that the proposed rule does not account for a situation when ONRR is erroneous in its assessment of wrongdoing or misreporting. Additionally, industry comments that ONRR's unresponsiveness, unwillingness to communicate, or both, is detrimental to the resolution of a time-sensitive issue.

    ONRR Response: A party's right to request a hearing before an ALJ, and the right to appeal any ALJ decision, provides a party with recourse should we err in our assessment of wrongdoing or misreporting. Moreover, we evaluate each matter on a case-by-case basis. If we were unresponsive or unwilling to communicate, and our actions contributed to the delay giving rise to the civil penalty, we may consider this when determining whether to issue a civil penalty or as a mitigating factor when determining the appropriate amount of the civil penalty.

    k. A Penalty Will Accrue From the Date When a NONC Is Served

    Public Comment: ONRR received one comment from industry requesting clarification regarding the start date of the civil penalty calculation.

    ONRR Response: We typically serve a NONC, FCCP, or ILCP as set forth in FOGRMA section 109(h) (30 U.S.C. 1719) by registered mail or personal service to the addressee of record or alternate as identified in 30 CFR 1218.540 and will consider the notice served on the date when it was delivered. For an FCCP, the penalty calculation will begin running on the day when a party is served with the NONC. The penalty calculation for an ILCP will begin running from the day when the violation was committed.

    III. Procedural Matters 1. Summary Cost and Royalty Impact Data

    This is a technical rule that will (1) apply the regulations to all Federal mineral leases onshore and on the OCS, to all Federally-administered mineral leases on Indian Tribal and individual Indian mineral owners' lands, and to all easements, rights of way, and other agreements on the OCS; (2) incorporate the civil penalty inflation adjustments made pursuant to the 2015 Act; (3) clarify and simplify the existing regulations for issuing a NONC, FCCP, and ILCP; and (4) announce our practice of publishing our civil penalty assessment matrices on our Web site. These changes will have no royalty impacts on industry; State and local governments; Indian Tribes; individual Indian mineral owners; or the Federal Government. As explained below, industry will not incur significant additional administrative costs under this final rule. However, industry can realize some increased penalties under this final rule. The Federal Government, and any States and Tribes that are eligible to share civil penalties under 30 U.S.C. 1736, will benefit from penalty amounts that we imposed, for the first time, on solid mineral and geothermal lessees. The cost and benefit information in item 1 of the Procedural Matters is used as the basis for Departmental certifications in items 2 through 10.

    A. Industry

    (1) Royalty Impacts. None.

    (2) Administrative Costs—Processing Fee. None.

    (3) Penalties. This final rule may result in some increase in civil penalties that lessees must pay. We collected an average of $1,879,264 in civil penalties annually for fiscal years 2007-2015. We estimated the potential increase in civil penalties due to application of part 1241 to solid mineral and geothermal leases by estimating how many lessees, operators, and royalty payors of solid mineral and geothermal leases there are in relation to all mineral leases that reported production and royalties as of October 2015. That estimate came to 9 percent of our current mineral reporter universe (135 solids and geothermal payors and reporters divided by 1,514 total payors and reporters (oil and gas; solids; and geothermal)). Therefore, we multiplied the $1,879,264 in average annual civil penalties by 9 percent (solid mineral and geothermal payors and reporters) to estimate an increase in civil penalties that we collect of $169,134.

    B. State and Local Governments

    (1) Royalty Impacts. None.

    (2) Administrative Costs. None.

    (3) Penalties. State governments having delegated audit authority under 30 U.S.C. 1735 will receive a 50-percent share of civil penalties collected as a result of their activities under our delegation of authority (30 U.S.C. 1736). However, the amount that a State government will receive due to the estimated increase discussed above is purely speculative.

    C. Indian Tribes and Individual Indian Minerals Owners

    (1) Royalty Impacts. None.

    (2) Administrative Costs. None.

    (3) Penalties. Indian Tribal governments that have cooperative agreements with us under 30 U.S.C. 1732 will receive a 50-percent share of civil penalties collected as a result of their activities under our delegation of authority (30 U.S.C. 1736). However, the amount that a Tribal government will receive due to the estimated increase discussed above is purely speculative.

    D. Federal Government

    (1) Royalty Impacts. None.

    (2) Administrative Costs. The application of FOGRMA penalties to solid minerals and geothermal leases will produce a slight increase in the enforcement workload, which we likely will absorb using current staff.

    (3) Penalties. As discussed above, we estimate that the Federal Government can receive $169,134 in increased civil penalties for solid and geothermal leases as a result of this rule if no State or Tribe shares in these civil penalties.

    2. Regulatory Planning and Review (Executive Orders 12866 and 13563)

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

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

    3. Regulatory Flexibility Act

    The Department certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

    This rule will affect lessees under Federal mineral leases onshore and the OCS and all Federally administered mineral lease on Indian Tribal and individual Indian mineral owners' lands. Federal and Indian mineral lessees are, generally, companies classified under the North American Industry Classification System (NAICS), as follows:

    • Code 211111, which includes companies that extract crude petroleum and natural gas.

    • Code 212111, which includes companies that extract surface coal.

    • Code 212112, which includes companies that extract underground coal.

    For these NAICS code classifications, a small company is one with fewer than 500 employees. The Department estimates that 1,855 companies that this rule affects are small businesses that submit royalty and production reports from Federal and Indian leases to us each month.

    Per our analysis shown in item 1 above, we do not estimate that this rule will result in a significant economic effect on a substantial number of small entities because this rule will cost approximately a collective total of $169,134 per year to affected small businesses. Therefore, a Regulatory Flexibility Analysis will not be required, and, accordingly, a Small Entity Compliance Guide will not be required.

    Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and ten Regional Fairness Boards receive comments from small businesses about Federal agency enforcement actions. The Ombudsman annually evaluates the enforcement activities and rates each agency's responsiveness to small business. If you wish to comment on our actions, call 1-(888) 734-3247. You may comment to the Small Business Administration without fear of retaliation. Allegations of discrimination, retaliation, or both filed with the Small Business Administration will be investigated for appropriate action.

    4. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

    a. Does not have an annual effect on the economy of $100 million or more. We estimate that the maximum effect on all of industry will be $169,134 annually. As shown in item 1 above, the economic impact on industry; State and local governments; Indian Tribes and individual Indian mineral owners; and the Federal government will be well below the $100 million threshold that the Federal government uses to define a rule as having a significant impact on the economy.

    b. Will not cause a major increase in costs or prices for consumers; individual industries; Federal, State, local government agencies; or geographic regions. See item 1 above.

    c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

    5. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. Therefore, we are not required to provide a statement containing the information that the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) requires because this rule is not an unfunded mandate. See item 1 above.

    6. Takings (E.O. 12630)

    Under the criteria in section 2 of E.O. 12630, this rule does not have any significant takings implications. This rule will not impose conditions or limitations on the use of any private property. This rule will apply to all Federal and Indian leases. Therefore, this rule does not require a Takings Implication Assessment.

    7. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. The management of all Federal and Indian leases is the responsibility of the Secretary, and we distribute monies that we collect from the leases to States, Tribes, and individual Indian mineral owners. This rule does not substantially and directly affect the relationship between the Federal and State governments. Because this rule does not alter that relationship, this rule does not require a Federalism summary impact statement.

    8. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of E.O. 12988. Specifically, this rule:

    a. Meets the criteria of section 3(a), which requires that we review all regulations to eliminate errors and ambiguity and to write them to minimize litigation.

    b. Meets the criteria of § 3(b)(2), which requires that we write all regulations in clear language using clear legal standards.

    9. Consultation With Indian Tribal Governments (E.O. 13175)

    The Department strives to strengthen its government-to-government relationship with the Indian Tribes through a commitment to consultation with the Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. Under the Department's consultation policy and the criteria in E.O. 13175, we evaluated this rule and determined that it will have no substantial effects on Federally-recognized Indian Tribes. Likewise, these amendments to 30 CFR part 1241, subpart B, will not affect Indian Tribes because the changes are only technical in nature.

    10. Paperwork Reduction Act

    This rule:

    (a) Does not contain any new information collection requirements.

    (b) Does not require a submission to OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). See 5 CFR 1320.4(a)(2).

    11. National Environmental Policy Act of 1969 (NEPA)

    This rule does not constitute a major Federal action, significantly affecting the quality of the human environment. We are not required to provide a detailed statement under NEPA because this rule qualifies for categorical exclusion under 43 CFR 46.210(i) in that this rule is “. . . of an administrative, financial, legal, technical, or procedural nature. . . .” This rule also qualifies for categorical exclusion under the Departmental Manual, part 516, section 15.4.(C)(1) in that its impacts are limited to administrative, economic, or technological effects. We also have determined that this rule is not involved in any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA. The procedural changes resulting from these amendments have no consequences on the physical environment. This rule will not alter, in any material way, natural resources exploration, production, or transportation.

    12. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition in E.O. 13211; therefore, a Statement of Energy Effects is not required.

    List of Subjects in 30 CFR Part 1241

    Civil penalties, Notices of noncompliance.

    Dated: June 22, 2016. Kristen J. Sarri, Principal Deputy Assistant Secretary for Policy, Management and Budget. Authority and Issuance

    For the reasons discussed in the preamble, ONRR revises 30 CFR part 1241 to read as follows:

    PART 1241—PENALTIES Subpart A—General Provisions Sec. 1241.1 What is the purpose of this part? 1241.2 What leases are subject to this part? 1241.3 What definitions apply to this part? 1241.4 How will ONRR serve a Notice? 1241.5 Which ONRR enforcement actions are subject to a hearing? 1241.6 Which ONRR enforcement actions are not subject to a hearing? 1241.7 How do I request a hearing on the record on a Notice? 1241.8 How will DCHD conduct the hearing on the record? 1241.9 May I appeal the ALJ's decision? 1241.10 May I seek judicial review of the IBLA decision? 1241.11 Does my hearing request affect a penalty? Subpart B—Notices of Noncompliance and Civil Penalties Penalties With a Period To Correct 1241.50 What may ONRR do if I violate a statute, regulation, order, or lease term relating to a lease subject to this part? 1241.51 What if I correct the violation identified in a NONC? 1241.52 What if I do not correct the violation identified in a NONC? Penalties Without a Period To Correct 1241.60 Am I subject to a penalty without prior notice and an opportunity to correct? Subpart C—Penalty Amount, Interest, and Collections 1241.70 How does ONRR decide the amount of the penalty to assess? 1241.71 Do I owe interest on both the penalty amount and any underlying underpayment or unpaid debt? 1241.72 When must I pay the penalty? 1241.73 May ONRR reduce my penalty once it is assessed? 1241.74 How may ONRR collect my penalty? Authority:

    25 U.S.C. 396 et seq., 396a et seq., 2101 et seq.; 30 U.S.C. 181 et seq., 351 et seq., 1001 et seq., 1701 et seq.; 43 U.S.C. 1301 et seq., 1331 et seq., 1801 et seq.

    Subpart A—General Provisions
    § 1241.1 What is the purpose of this part?

    This part explains:

    (a) When you may receive a NONC, FCCP, or ILCP.

    (b) How ONRR assesses a civil penalty.

    (c) How to appeal a NONC, FCCP, or ILCP.

    § 1241.2 What leases are subject to this part?

    This part applies to:

    (a) All Federal mineral leases onshore and on the OCS.

    (b) All Federally-administered mineral leases on Indian Tribal and individual Indian mineral owners' lands, regardless of the statutory authority under which the lease was issued or maintained.

    (c) All easements, rights of way, and other agreements subject to 43 U.S.C. 1337(p).

    § 1241.3 What definitions apply to this part?

    (a) Unless specifically defined in paragraph (b) of this section, the terms in this part have the same meaning as in 30 U.S.C. 1702.

    (b) The following definitions apply to this part:

    Agent means any individual or other person with the actual authority of, with the apparent authority of, or designated by a person subject to FOGRMA who acts or who, with apparent authority, appears to act on behalf of the person subject to FOGRMA.

    ALJ means an Administrative Law Judge in the DCHD.

    Assessment means a civil penalty set out in a FCCP or ILCP; it includes a dollar amount per violation for each day the violation continues. In this part “assessment” is used consistent with 30 U.S.C. 1719(k), but is distinguishable from “assessment” as defined in 30 U.S.C. 1702(19) and used in 30 U.S.C. 1702(25). Correspondence that we send to you to update you on the amount of penalties accrued or outstanding under a FCCP or ILCP we previously served on you is not an assessment.

    DCHD means the Departmental Cases Hearings Division, Office of Hearings and Appeals.

    FCCP means a Failure to Correct Civil Penalty Notice; it assesses a civil penalty if you fail to correct a violation identified in a NONC.

    FOGRMA means the Federal Oil and Gas Royalty Management Act.

    IBLA means the Interior Board of Land Appeals, Office of Hearings and Appeals.

    ILCP means an Immediate Liability Civil Penalty Notice; it identifies a violation and assesses a civil penalty for the violation even if you have not been provided prior notice and an opportunity to correct the violation.

    Information means any data that you provide to an ONRR data system, or otherwise provide to us for our official records, including, but not limited to, any report, notice, affidavit, record, data, or document that you provide to us, any document that you provide to us in response to our request, and any other written information that you provide to us.

    Knowingly or willfully includes an act or failure to act committed with:

    (i) Actual knowledge;

    (ii) Deliberate ignorance; or

    (iii) Reckless disregard of the facts surrounding the event or violation; it requires no proof of specific intent to defraud.

    Maintains false, inaccurate, or misleading information includes providing information to an ONRR data system, or otherwise to us for our official records, and later learning that the information that you provided was false, inaccurate, or misleading, and you do not correct that information or other information that you provided to us that you know or should know contains the same false, inaccurate, or misleading information.

    NONC means a Notice of Noncompliance; it identifies a violation, specifies the corrective action that must be taken, and establishes the deadline for such action to avoid a civil penalty.

    Notice means a NONC, FCCP, or ILCP, as defined in this section.

    OCS means the Outer Continental Shelf.

    ONRR means the Office of Natural Resources Revenue (also referred to in the regulations as “we,” “our,” and “us,” as appropriate).

    RSFA means the Federal Oil and Gas Royalty Simplification and Fairness Act of 1996.

    Submits false, inaccurate, or misleading information means that you provide false, inaccurate, or misleading information to an ONRR data system, or otherwise to us for our official records.

    Violation means any action or failure to take action that is inconsistent with the provisions of FOGRMA, RSFA, a regulation promulgated under either of those Acts, or a Federal or Indian lease as defined by FOGRMA, as amended.

    You (I) means the recipient of a NONC, FCCP, or ILCP.

    § 1241.4 How will ONRR serve a Notice?

    (a) We will serve a NONC, FCCP, or ILCP as set out in FOGRMA section 109(h) (30 U.S.C. 1719) by registered mail or personal service to the addressee of record or alternate, as identified in 30 CFR 1218.540.

    (b) We will consider the Notice served on the date when it was delivered to the addressee of record or alternate, as identified in 30 CFR 1218.540.

    § 1241.5 Which ONRR enforcement actions are subject to a hearing?

    Except as provided by § 1241.6, you may request a hearing on:

    (a) A NONC to contest your liability.

    (b) A FCCP to contest only the civil penalty amount, unless a request for hearing was filed under paragraph (a) of this section; in which case, the requests for hearing filed under paragraph (a) and this paragraph (b) will be combined into a single proceeding.

    (c) An ILCP to contest your liability, civil penalty amount, or both. If your hearing request does not state whether you are contesting your liability for the ILCP or the penalty amount, or both, you will be deemed to have requested a hearing only on the penalty amount.

    (d) You may request a hearing even if you correct the violation identified in a Notice.

    § 1241.6 Which ONRR enforcement actions are not subject to a hearing?

    You may not request a hearing on:

    (a) Your liability under an order identified in a NONC, FCCP, or ILCP if you did not appeal in a timely manner the order under 30 CFR part 1290 or you appealed in a timely manner the order under 30 CFR part 1290 but have exhausted your appeal rights.

    (b) Any correspondence that we send to you to update you on the amount of penalties accrued or outstanding under a FCCP or ILCP ONRR previously served on you.

    § 1241.7 How do I request a hearing on the record on a Notice?

    You may request a hearing on the record before an ALJ on a Notice by filing a request within 30 days of the date of service of the Notice with the DCHD, at the address indicated in your Notice. The 30 day-period to request a hearing on the record will not be extended for any reason.

    § 1241.8 How will DCHD conduct the hearing on the record?

    If you request a hearing on the record under § 1241.7, an ALJ will conduct the hearing under the provisions of 43 CFR 4.420 through 4.438, except when the provisions are inconsistent with the provisions of this part. We have the burden of proving, by a preponderance of the evidence, the fact of the violation and the basis for the amount of the civil penalty. Upon completion of the hearing, the ALJ will issue a decision according to the evidence presented and the applicable law.

    § 1241.9 May I appeal the ALJ's decision?

    If you are adversely affected by the ALJ's decision, you may appeal that decision to the IBLA under 43 CFR part 4, subpart E.

    § 1241.10 May I seek judicial review of the IBLA decision?

    You may seek judicial review of the IBLA decision under 30 U.S.C. 1719(j) in Federal District Court. You must file a suit for judicial review in Federal District Court within 90 days after the final IBLA decision.

    § 1241.11 Does my hearing request affect a penalty?

    (a) If you do not correct the violation identified in a Notice, any penalty will continue to accrue, even if you request a hearing, except as provided in paragraph (b) of this section.

    (b) Standards and procedures for obtaining a stay. If you request in a timely manner a hearing on a Notice, you may petition the DCHD to stay the assessment or accrual of penalties pending the hearing on the record and a decision by the ALJ under § 1241.8.

    (1) You must file your petition for stay within 45 calendar days after you receive a Notice.

    (2) You must file your petition for stay under 43 CFR 4.21(b), in which event:

    (i) We may file a response to your petition within 30 days after service.

    (ii) The 45-day requirement set out in 43 CFR 4.21(b)(4) for the ALJ to grant or deny the petition does not apply.

    (3) If the ALJ determines that a stay is warranted, the ALJ will issue an order granting your petition, subject to your satisfaction of the following condition: within 10 days of your receipt of the order, you must post a bond or other surety instrument using the same standards and requirements as prescribed in 30 CFR part 1243, subpart B; or demonstrate financial solvency using the same standards and requirements as prescribed in 30 CFR part 1243, subpart C, for any specified, unpaid principal amount that is the subject of the Notice, any interest accrued on the principal, and the amount of any penalty set out in a Notice accrued up to the date of the ALJ order conditionally granting your petition.

    (4)(i) If you satisfy the condition to post a bond or surety instrument or demonstrate financial solvency under paragraph (b)(3) of this section, the accrual of penalties will be stayed effective on the date of the ALJ's order conditionally granting your petition.

    (ii) If you fail to satisfy the condition to post a bond or surety instrument or demonstrate financial solvency under paragraph (b)(3) of this section, penalties will continue to accrue.

    (5) Notwithstanding paragraphs (b)(1), (2), (3), and (4) of this section, if the ALJ determines that your defense to a Notice is frivolous, and a civil penalty is owed, you will forfeit the benefit of the stay, and penalties will be calculated as if no stay had been granted.

    Subpart B—Notices of Noncompliance and Civil Penalties Penalties With a Period To Correct
    § 1241.50 What may ONRR do if I violate a statute, regulation, order, or lease term relating to a lease subject to this part?

    If we determine that you have not followed any requirement of a statute, regulation, order, or a term of a lease subject to this part, we may serve you with a NONC explaining:

    (a) What the violation is.

    (b) How to correct the violation to avoid a civil penalty.

    (c) That you have 20 days after the date on which you are served the NONC to correct the violation, unless the NONC specifies a longer period.

    § 1241.51 What if I correct the violation identified in a NONC?

    If you correct all of the violations that we identified in the NONC within 20 days after the date on which you are served the NONC, or any longer period for correction that the NONC specifies, we will close the matter and will not assess a civil penalty. However, we will consider these violations as part of your history of noncompliance for future penalty assessments under § 1241.70(a)(2).

    § 1241.52 What if I do not correct the violation identified in a NONC?

    (a) If you do not correct all of the violations that we identified in the NONC within 20 days after the date on which you are served the NONC, or any longer period that the NONC specifies for correction, then we may send you an FCCP.

    (1) The FCCP will state the amount of the penalty that you must pay. The penalty will:

    (i) Begin to run on the day on which you were served with the NONC.

    (ii) Continue to accrue for each violation identified in the NONC until it is corrected.

    (2) The penalty may be up to $1,177 per day for each violation identified in the NONC that you have not corrected.

    (b) If you do not correct all of the violations identified in the NONC within 40 days after you are served the NONC, or within 20 days following the expiration of any period longer than 20 days that the NONC specifies for correction, then we may increase the penalty to a maximum of $11,774 per day for each violation identified in the NONC that you have not corrected. The increased penalty will:

    (1) Begin to run on the 40th day after the date on which you were served the NONC, or on the 20th day after the expiration of any period longer than 20 days that the NONC specifies for correction.

    (2) Continue to accrue for each violation identified in the NONC until it is corrected.

    Penalties Without a Period To Correct
    § 1241.60 Am I subject to a penalty without prior notice and an opportunity to correct?

    (a) We may assess a penalty for a violation identified in paragraph (b) of this section without prior notice or first giving you an opportunity to correct the violation. We will inform you of a violation without a period to correct by issuing an ILCP explaining:

    (1) What the violation is.

    (2) The amount of the civil penalty. The civil penalty for such a violation begins running on the day it was committed.

    (b) ONRR may assess a civil penalty of up to:

    (1) $23,548 per day, per violation for each day that the violation continues if you:

    (i) Knowingly or willfully fail to make any royalty payment by the date specified by statute, regulation, order, or a term of the lease.

    (ii) Fail or refuse to permit lawful entry, inspection, or audit, including refusal to keep, maintain, or produce documents.

    (2) $58,871 per day, per violation for each day that the violation continues if you knowingly or willfully prepare, maintain, or submit a false, inaccurate, or misleading report, notice, affidavit, record, data, or any other written information.

    (c) We may use any information as evidence that you knowingly or willfully committed a violation, including:

    (1) The act and failure to act of your employee or agent.

    (2) An email indicating your concurrence with an issue.

    (3) An order that you did not appeal or an order, NONC, or ILCP for which no further appeal is available.

    (4) Any written or oral communication, identifying a violation which:

    (i) You acknowledge as true and fail to correct.

    (ii) You fail to or cannot further appeal and fail to correct.

    (iii) You correct, but you subsequently commit the same violation.

    Subpart C—Penalty Amount, Interest, and Collections
    § 1241.70 How does ONRR decide the amount of the penalty to assess?

    (a) ONRR will determine the amount of the penalty to assess by considering:

    (1) The severity of the violation.

    (2) Your history of noncompliance.

    (3) The size of your business. To determine the size of your business, we may consider the number of employees in your company, parent company or companies, and any subsidiaries and contractors.

    (b) We will not consider the royalty consequence of the underlying violation when determining the amount of the civil penalty for a violation under § 1241.50 or § 1241.60(b)(1)(ii) or (b)(2).

    (c) We will post the FCCP and ILCP assessment matrices and any adjustments to the matrices on our Web site.

    § 1241.71 Do I owe interest on both the penalty amount and any underlying underpayment or unpaid debt?

    (a) A penalty under this part is in addition to interest that you may owe on any underlying underpayment or unpaid debt.

    (b) If you do not pay the penalty amount by the due date in the bill accompanying the FCCP or ILCP, you will owe late payment interest on the penalty amount under 30 CFR 1218.54 from the date when the civil penalty payment became due under § 1241.72 until the date when you pay the civil penalty amount.

    § 1241.72 When must I pay the penalty?

    (a) If you do not request a hearing on a FCCP or ILCP under this part, you must pay the penalty amount by the due date specified in the bill accompanying the FCCP or ILCP.

    (b) If you request a hearing on a FCCP or ILCP under this part, the ALJ affirms the civil penalty; and

    (1) You do not appeal the ALJ's decision to the IBLA under § 1241.9, you must pay the civil penalty amount determined by the ALJ within 30 days of the ALJ's decision; or

    (2) You appeal the ALJ's decision to the IBLA under § 1241.9, and IBLA affirms a civil penalty; and

    (i) You do not seek judicial review of the IBLA's decision under 30 U.S.C. 1719(j), you must pay the civil penalty amount that IBLA determines within 120 days of the IBLA decision; or

    (ii) You seek judicial review of the IBLA decision, and a court of competent jurisdiction affirms the penalty, you must pay the penalty assessed within 30 days after the court enters a final non-appealable judgment.

    § 1241.73 May ONRR reduce my penalty once it is assessed?

    ONRR's Director or his or her delegate may compromise or reduce a civil penalty assessed under this part.

    § 1241.74 How may ONRR collect my penalty?

    (a) If you do not pay a civil penalty amount by the date when payment is due under § 1241.72, we may use all available means to collect the penalty, including but not limited to:

    (1) Requiring the lease surety, for an amount owed by a lessee, to pay the penalty.

    (2) Deducting the amount of the penalty from any sum that the United States owes you.

    (3) Referring the debt to the Department of the Treasury for collection under 30 CFR part 1218, subpart J.

    (4) Using the judicial process to compel your payment under 30 U.S.C. 1719(k).

    (b) If ONRR uses the judicial process to compel your payment, or if you seek judicial review under 30 U.S.C. 1719(j), and the court upholds the assessment of a penalty, the court will have jurisdiction to award the penalty amount assessed plus interest from the date of the expiration of the 90-day period referred to in 30 U.S.C. 1719(j).

    [FR Doc. 2016-17598 Filed 7-29-16; 8:45 am] BILLING CODE 4335-30-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. USCG-2013-1018] Special Local Regulation; Seattle Seafair Unlimited Hydroplane Race, Lake Washington, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the Seattle Seafair Unlimited Hydroplane Race special local regulation on Lake Washington, WA from 8 a.m. on August 2, 2016 through 11 p.m. on August 7, 2016 during hydroplane race times. This action is necessary to ensure public safety from the inherent dangers associated with high-speed races while allowing access for rescue personnel in the event of an emergency. During the enforcement period, no person or vessel will be allowed to enter the regulated area without the permission of the Captain of the Port, Puget Sound, the on-scene Patrol Commander, or a designated representative.

    DATES:

    The regulations in 33 CFR 100.1301 will be effective from 8 a.m. on August 2, 2016 through 11 p.m. on August 7, 2016.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice, call or email LT Kate Haseley, Sector Puget Sound Waterways Management Division, Coast Guard; telephone (206) 217-6051, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the Seattle Seafair Unlimited Hydroplane Race special local regulation in 33 CFR 100.1301 from 8 a.m. on August 2, 2016 through 11 p.m. on August 7, 2016.

    Under the provisions of 33 CFR 100.1301, the Coast Guard will restrict general navigation in the following area: All waters of Lake Washington bounded by the Interstate 90 (Mercer Island/Lacey V. Murrow) Bridge, the western shore of Lake Washington, and the east/west line drawn tangent to Bailey Peninsula and along the shoreline of Mercer Island.

    The regulated area has been divided into two zones. The zones are separated by a line perpendicular from the I-90 Bridge to the northwest corner of the East log boom and a line extending from the southeast corner of the East log boom to the southeast corner of the hydroplane race course and then to the northerly tip of Ohlers Island in Andrews Bay. The western zone is designated Zone I, the eastern zone, Zone II. (Refer to NOAA Chart 18447).

    The Coast Guard will maintain a patrol consisting of Coast Guard vessels, assisted by Coast Guard Auxiliary vessels, in Zone II. The Coast Guard patrol of this area is under the direction of the Coast Guard Patrol Commander (the “Patrol Commander”). The Patrol Commander is empowered to control the movement of vessels on the racecourse and in the adjoining waters during the periods this regulation is in effect. The Patrol Commander may be assisted by other federal, state and local law enforcement agencies.

    Only vessels authorized by the Patrol Commander may be allowed to enter Zone I during the hours this regulation is in effect. Vessels in the vicinity of Zone I shall maneuver and anchor as directed by the Patrol Commander.

    During the times in which the regulation is in effect, the following rules shall apply:

    (1) Swimming, wading, or otherwise entering the water in Zone I by any person is prohibited while hydroplane boats are on the racecourse. At other times in Zone I, any person entering the water from the shoreline shall remain west of the swim line, denoted by buoys, and any person entering the water from the log boom shall remain within ten (10) feet of the log boom.

    (2) Any person swimming or otherwise entering the water in Zone II shall remain within ten (10) feet of a vessel.

    (3) Rafting to a log boom will be limited to groups of three vessels.

    (4) Up to six (6) vessels may raft together in Zone II if none of the vessels are secured to a log boom. Only vessels authorized by the Patrol Commander, other law enforcement agencies or event sponsors shall be permitted to tow other watercraft or inflatable devices.

    (5) Vessels proceeding in either Zone I or Zone II during the hours this regulation is in effect shall do so only at speeds which will create minimum wake, seven (07) miles per hour or less. This maximum speed may be reduced at the discretion of the Patrol Commander.

    (6) Upon completion of the daily racing activities, all vessels leaving either Zone I or Zone II shall proceed at speeds of seven (07) miles per hour or less. The maximum speed may be reduced at the discretion of the Patrol Commander.

    (7) A succession of sharp, short signals by whistle or horn from vessels patrolling the areas under the direction of the Patrol Commander shall serve as signal to stop. Vessels signaled shall stop and shall comply with the orders of the patrol vessel; failure to do so may result in expulsion from the area, citation for failure to comply, or both.

    The Captain of the Port may be assisted by other federal, state and local law enforcement agencies in enforcing this regulation.

    This notice is issued under authority of 33 CFR 100.1301 and 5 U.S.C. 552(a). If the Captain of the Port determines that the regulated area need not be enforced for the full duration stated in this notice, he or she may use a Broadcast Notice to Mariners to grant general permission to enter the regulated area.

    Dated: July 20, 2016. M.W. Raymond, Captain, U.S. Coast Guard, Captain of the Port, Puget Sound.
    [FR Doc. 2016-18127 Filed 7-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0635] Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of temporary deviation from regulation; modification.

    SUMMARY:

    The Coast Guard has modified a temporary deviation from the operating schedule that governs Seattle Department of Transportation's (SDOT) Fremont Bridge, across the Lake Washington Ship Canal, mile 2.6, at Seattle, WA. The modified deviation is necessary to accommodate heavy pedestrian and cycling traffic across the bridge during the `Fun Ride' event and Lake Union 10K Run event. This modified deviation allows the bridge to remain in the closed-to-navigation position and need not open to maritime traffic.

    DATES:

    This deviation is effective from 7:30 a.m. to 8:30 a.m. and 10:30 a.m. to 12:30 p.m. on August 14, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0635] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email [email protected]

    SUPPLEMENTARY INFORMATION:

    On July 15, 2016, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; Lake Washington Ship Canal, Seattle, WA” in the Federal Register (81 FR 45971). This document was necessary for Seattle Department of Transportation (SDOT) to temporarily deviate from the operating schedule for the Fremont Bridge, mile 2.6, crossing the Lake Washington Ship Canal at Seattle, WA. This modification adds an additional closure hour on August 14, 2016 for these events. The deviation is necessary to accommodate heavy pedestrian and cycling traffic across the bridge during the `Fun Ride' event and Lake Union 10K Run event. To facilitate these events, the double bascule draw of the bridge will not open for vessel traffic during the effective date and times. The Fremont Bridge provides a vertical clearance of 14 feet (31 feet of vertical clearance for the center 36 horizontal feet) in the close-to-navigation position. The clearance is referenced to the mean water elevation of Lake Washington. The normal operating schedule for the Fremont Bridge is found at 33 CFR 117.1051. Waterway usage on the Lake Washington Ship Canal ranges from commercial tug and barge to small pleasure craft. No early Sunday morning bridge opening requests have been received during August for the Fremont Bridge in the last five years.

    Vessels able to pass through the bridge in the closed-to-navigation position may do so at anytime. The bridge will be able to open for emergencies, and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the designated time period. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: July 26, 2016. Steven M. Fischer, Bridge Administrator, Thirteenth Coast Guard District.
    [FR Doc. 2016-18080 Filed 7-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF EDUCATION 34 CFR Part 36 RIN 1801-AA16 [Docket ID ED-2015-OGC-0051] Adjustment of Civil Monetary Penalties for Inflation AGENCY:

    Department of Education.

    ACTION:

    Interim final regulations.

    SUMMARY:

    The Department of Education (Department) issues these interim final regulations to adjust the Department's civil monetary penalties (CMPs) for inflation, as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act).

    DATES:

    These regulations are effective August 1, 2016. In this rule, the adjusted civil penalty amounts are applicable only to civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, the date of enactment of the 2015 Amendments. Therefore, violations occurring on or before November 2, 2015, and assessments made prior to August 1, 2016 whose associated violations occurred after November 2, 2015, will continue to be subject to the civil monetary penalty amounts set forth in the Department's existing regulations at 34 CFR 36.2 (or as set forth by statute if the amount has not yet been adjusted by regulation).

    FOR FURTHER INFORMATION CONTACT:

    Levon Schlichter, U.S. Department of Education, Office of the General Counsel, 400 Maryland Avenue SW., Room 6E235, Washington, DC 20202-2241. Telephone: (202) 453-6387 or by email: [email protected]

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

    Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the contact person listed in this section.

    SUPPLEMENTARY INFORMATION:

    Background: The Federal Civil Penalties Inflation Adjustment Act of 1990 (Inflation Adjustment Act) (28 U.S.C. 2461 note) provides for the regular evaluation of civil monetary penalties (CMPs) to ensure that they continue to maintain their deterrent value. The Inflation Adjustment Act required that each agency issue regulations to adjust its CMPs beginning in 1996 and at least every four years thereafter. The Department published its most recent cost adjustment to each CMP in the Federal Register on October 2, 2012 (77 FR 60047), and those adjustments became effective on the date of publication.

    On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) (section 701 of Pub. L. 114-74), which further amended the Inflation Adjustment Act, to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect.

    The 2015 Act requires agencies to: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rulemaking (IFR); and (2) make subsequent annual adjustments for inflation. Catch-up adjustments are based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty was last adjusted by a statute other than the Inflation Adjustment Act, and the October 2015 CPI-U. Annual inflation adjustments are based on the percent change between the October CPI-U preceding the date of each statutory adjustment, and the prior year's October CPI-U.1

    1 If a statute that created a penalty is amended to change the penalty amount, the Department does not adjust the penalty in the year following the adjustment.

    The Department is required to publish an IFR with the initial penalty adjustment amounts by July 1, 2016, and the new penalty levels must take effect no later than August 1, 2016. These adjustments will apply to all civil monetary penalties covered by the Inflation Adjustment Act.

    A CMP is defined in the statute as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

    The formula for the amount of a CMP inflation adjustment is prescribed by law, as explained in OMB Memorandum M-16-06 (February 24, 2016), and is not subject to the exercise of discretion by the Secretary of Education (Secretary). Under the 2015 Act, the Department must use, as the baseline for adjusting the CMPs in this IFR, the CMP amounts as they were most recently established or adjusted under a provision of law other than by the Inflation Adjustment Act. In accordance with the 2015 Act, we are not using the amounts set out in 34 CFR part 36 in 2012 in the formula used to adjust for inflation because those CMP amounts were updated pursuant to the Inflation Adjustment Act.2 Instead, the baselines we are using are the amounts set out most recently in each of the statutes that provide for civil penalties. Using these statutory CMPs, we have determined which year those amounts were originally enacted by Congress (or the year the statutory amounts were last amended by the statute that established the penalty) and used the annual inflation adjustment multiplier corresponding to that year from Table A of OMB Memorandum M-16-06. We then rounded the number to the nearest dollar and checked, as required by the Inflation Adjustment Act, to see if that adjusted amount exceeded 150 percent of the CMP amount that was established under 34 CFR part 36, and in effect on November 2, 2015. If any of the amounts exceeded 150 percent, we are required to use the lesser amount (the 150 percent amount). All of the adjusted amounts were less than 150 percent so we did not have to replace any of the amounts we calculated using the multiplier from Table A of OMB Memorandum M-16-06 with the lesser amount.

    2 As originally enacted, the Inflation Adjustment Act limited the first increased adjustment, which we made through regulation, to a maximum of 10 percent. This 10 percent limitation affected the increase we last made in the 2012 rulemaking. In the 2015 Act, Congress determined that limiting the first adjustments to 10 percent reduced the effectiveness of the penalties, so the 2015 Act requires us to use the statutory amounts as our baseline.

    The Department's Civil Monetary Penalties

    The following analysis calculates new civil monetary penalties for penalty statutes in the order in which they appear in 34 CFR 36.2. The 2015 Act provides that any increase to an agency's CMPs applies only to CMPs, including those whose associated violation predated such increase, which are assessed after the effective date of the adjustments. These regulations are effective August 1, 2016. Therefore, the adjustments made by this amendment to the Department's CMPs apply only to violations that are assessed after August 1, 2016.

    Statute: 20 U.S.C. 1015(c)(5).

    Current Regulations: The CMP for 20 U.S.C. 1015(c)(5) [Section 131(c)(5) of the Higher Education Act of 1965, as amended (HEA)], as last set out in statute in 1998 (Pub. Law 105-244, title I, § 101(a), Oct. 7, 1998, 112 Stat. 1602), is a fine of up to $25,000 for failure by an IHE to provide information on the cost of higher education to the Commissioner of Education Statistics.

    New Regulations: The new penalty for this section is $36,256.

    Reason: Using the multiplier for 1998 of 1.45023 from OMB Memorandum M-16-06, the new penalty is calculated as follows: $25,000 × 1.45023 = $36,255.75, which makes the adjusted penalty $36,256, when rounded to the nearest dollar.

    Statute: 20 U.S.C. 1022d(a)(3).

    Current Regulations: The CMP for 20 U.S.C. 1022d(a)(3) [Section 205(a)(3) of the HEA], as last set out in statute in 2008 (Pub. L. 110-315, title II, § 201(2), Aug. 14, 2008, 122 Stat. 3147), provides for a fine of up to $27,500 for failure by an IHE to provide information to the State and the public regarding its teacher-preparation programs.

    New Regulations: The new penalty for this section is $30,200.

    Reason: Using the multiplier for 2008 of 1.09819 from OMB Memorandum M-16-06, the new penalty is calculated as follows: $27,500 × 1.09819 = $30,200.23, which makes the adjusted penalty $30,200, when rounded to the nearest dollar.

    Statute: 20 U.S.C. 1082(g).

    Current Regulations: The CMP for 20 U.S.C. 1082(g) [Section 432(g) of the HEA], as last set out in statute in 1986 (Pub. L. 99-498, title IV, § 402(a), Oct. 17, 1986, 100 Stat. 1401), provides for a fine of up to $25,000 for violations by lenders and guaranty agencies of Title IV of the HEA, which authorizes the Federal Family Education Loan Program.

    New Regulation: The new penalty for this section is $53,907.

    Reason: Using the multiplier for 1986 of 2.15628 from OMB Memorandum M-16-06, the new penalty is calculated as follows: $25,000 × 2.15628 = $53,907.00, which makes the adjusted penalty $53,907, when rounded to the nearest dollar.

    Statute: 20 U.S.C. 1094(c)(3)(B).

    Current Regulations: The CMP for 20 U.S.C. 1094(c)(3)(B) [Section 487(c)(3)(B) of the HEA], as set out in statute in 1986 (Pub. L. 99-498, title IV, § 407(a), Oct. 17, 1986, 100 Stat. 1488), provides for a fine of up to $25,000 for an IHE's violation of Title IV of the HEA or its implementing regulations. Title IV authorizes various programs of student financial assistance.

    New Regulations: The new penalty for this section is $53,907.

    Reason: Using the multiplier for 1986 of 2.15628 from OMB Memorandum M-16-06, the new penalty is calculated as follows: $25,000 × 2.15628 = $53,907.00, which makes the adjusted penalty $53,907, when rounded to the nearest dollar.

    Statute: 20 U.S.C. 1228c(c)(2)(E).

    Current Regulations: The CMP for 20 U.S.C. 1228c(c)(2)(E) [Section 429 of the General Education Provisions Act], as set out in statute in 1994 (Pub. L. 103-382, title II, § 238, Oct. 20, 1994, 108 Stat. 3918), provides for a fine of up to $1,000 for an educational organization's failure to disclose certain information to minor students and their parents.

    New Regulations: The new penalty for this section is $1,591.

    Reason: Using the multiplier for 1994 of 1.59089 from OMB Memorandum M-16-06, the new penalty is calculated as follows: $1,000 × 1.59089 = $1,590.89, which makes the adjusted penalty $1,591, when rounded to the nearest dollar.

    Statute: 31 U.S.C. 1352(c)(1) and (c)(2)(A).

    Current Regulations: The CMPs for 31 U.S.C. 1352(c)(1) and (c)(2)(A), as set out in statute in 1989, provide for a fine of $10,000 to $100,000 for recipients of Government grants, contracts, etc. that improperly lobby Congress or the Executive Branch with respect to the award of Government grants and contracts.

    New Regulations: The new penalties for these sections are $18,936 to $189,361.

    Reason: Using the multiplier for 1989 of 1.89361 from OMB Memorandum M-16-06, the new minimum penalty is calculated as follows: $10,000 × 1.89361 = $18,936.10, which makes the adjusted penalty $18,936, when rounded to the nearest dollar. The new maximum penalty is calculated as follows: $100,000 × 1.89361 = $189,361.00, which makes the adjusted penalty $189,361, when rounded to the nearest dollar.

    Statute: 31 U.S.C. 3802(a)(1) and (a)(2).

    Current Regulations: The CMPs for 31 U.S.C. 3802(a)(1) and (a)(2), as set out in statute in 1986 (Pub. L. 99-509, title VI, § 6103(a), Oct. 21, 1986, 100 Stat. 1937), provide for a fine of up to $5,000 for false claims and statements made to the Government.

    New Regulations: The new penalty for this section is $10,781.

    Reason: Using the multiplier for 1986 of 2.15628 from OMB Memorandum M-16-06, the new penalty is calculated as follows: $5,000 × 2.15628 = $10,781.40, which makes the adjusted penalty $10,781, when rounded to the nearest dollar.

    Executive Orders 12866 and 13563 Regulatory Impact Analysis

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

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

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

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

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

    Based on the number and amount of penalties imposed under the CMPs amended in this IFR, we have determined that this regulatory action will have none of the economic impacts described under the Executive order. This IFR is required by statute, the adjusted CMPs are not at the Secretary's discretion, and, accordingly, this IFR does not have any of the policy impacts described under the Executive order. Because this IFR is not a significant regulatory action, it is not subject to review by OMB under section 3(f) of Executive Order 12866.

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

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

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

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

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

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

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

    We are issuing this IFR as required by statute. The Secretary has no discretion to consider alternative approaches as delineated in the Executive order. Based on this analysis and the reasons stated in the preamble, the Department believes that this IFR is consistent with the principles in Executive Order 13563.

    Waiver of Rulemaking and Delayed Effective Date

    Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, the APA provides that an agency is not required to conduct notice-and-comment rulemaking when the agency, for good cause, finds that notice and public comment thereon are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B)). There is good cause to waive rulemaking here as unnecessary.

    Rulemaking is “unnecessary” in those situations in which “the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.” Utility Solid Waste Activities Group v. EPA, 236 F.3d 749, 755 (D.C. Cir. 2001), quoting U.S. Department of Justice, Attorney General's Manual on the Administrative Procedure Act 31 (1947) and South Carolina v. Block, 558 F. Supp. 1004, 1016 (D.S.C. 1983).

    These regulations merely implement the statutory mandate to adjust CMPs for inflation. The regulations reflect administrative computations performed by the Department as prescribed by the statute and the Secretary has no discretion in determining the new penalties.

    The APA also generally requires that regulations be published at least 30 days before their effective date, unless the agency has good cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again, because these final regulations merely implement non-discretionary administrative computations, there is good cause to make them effective on the day they are published.

    Regulatory Flexibility Act Certification

    The Secretary certifies that these regulations will not have a significant economic impact on a substantial number of small entities. The formula for the amount of the inflation adjustments is prescribed by statute and is not subject to the Secretary's discretion. These CMPs are infrequently imposed by the Secretary, and the regulations do not involve any special considerations that might affect the imposition of CMPs on small entities.

    Paperwork Reduction Act of 1995

    These regulations do not contain any information collection requirements.

    Intergovernmental Review

    This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

    Assessment of Educational Impact

    Based on our own review, we have determined that this IFR does not require transmission of information that any other agency or authority of the United States gathers or makes available.

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

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

    List of Subjects in 34 CFR Part 36

    Claims, Fraud, Penalties.

    Dated: July 27, 2016. John B. King, Jr., Secretary of Education.

    For the reasons discussed in the preamble, the Secretary amends part 36 of title 34 of the Code of Federal Regulations as follows:

    PART 36—ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION 1. The authority citation for part 36 is revised to read as follows: Authority:

    20 U.S.C. 1221e-3 and 3474; 28 U.S.C. 2461 note, as amended by § 701 of Pub. Law 114-74, unless otherwise noted.

    2. In § 36.1, revise the authority citation to read as follows:
    § 36.1 Purpose. (Authority: 20 U.S.C. 1221e-3 and 3474; 28 U.S.C. 2461 note, as amended by § 701 of Pub. Law 114-74.)
    3. Section 36.2 is amended by revising Table I and the authority citation to read as follows:
    § 36.2 Penalty adjustment. Table I, Section 36.2—Civil Monetary Penalty Inflation Adjustments Statute Description New maximum (and minimum, if applicable) penalty amount 20 U.S.C. 1015(c)(5) (Section 131(c)(5) of the Higher Education Act of 1965 (HEA)) Provides for a fine, as set by Congress in 1998, of up to $25,000 for failure by an institute of higher education to provide information on the cost of higher education to the Commissioner of Education Statistics $36,256 20 U.S.C. 1022d(a)(3) (Section 205(a)(3) of the HEA) Provides for a fine, as set by Congress in 2008, of up to $27,500 for failure by an IHE to provide information to the State and the public regarding its teacher-preparation programs 30,200 20 U.S.C. 1082(g) (Section 432(g) of the HEA) Provides for a civil penalty, as set by Congress in 1986, of up to $25,000 for violations by lenders and guaranty agencies of Title IV of the HEA, which authorizes the Federal Family Education Loan Program 53,907 20 U.S.C. 1094(c)(3)(B) (Section 487(c)(3)(B) of the HEA) Provides for a civil penalty, as set by Congress in 1986, of up to $25,000 for an IHE's violation of Title IV of the HEA, which authorizes various programs of student financial assistance 53,907 20 U.S.C. 1228c(c)(2)(E) (Section 429 of the General Education Provisions Act) Provides for a civil penalty, as set by Congress in 1994, of up to $1,000 for an educational organization's failure to disclose certain information to minor students and their parents 1,591 31 U.S.C. 1352(c)(1) and (c)(2)(A) Provides for a civil penalty, as set by Congress in 1989, of $10,000 to $100,000 for recipients of Government grants, contracts, etc. that improperly lobby Congress or the Executive Branch with respect to the award of Government grants and contracts 18,936
  • to 189,361
  • 31 U.S.C. 3802(a)(1) and (a)(2) Provides for a civil penalty, as set by Congress in 1986, of up to $5,000 for false claims and statements made to the Government 10,781
    (Authority: 20 U.S.C. 1221e-3 and 3474; 28 U.S.C. 2461 note, as amended by § 701 of Pub. Law 114-74).
    [FR Doc. 2016-18179 Filed 7-29-16; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF EDUCATION 34 CFR Chapter III [Docket ID ED-2016-OSERS-0022; CFDA Number: 84.421B.] Final Priorities, Requirements, and Definition—Disability Innovation Fund—Transition Work-Based Learning Model Demonstrations AGENCY:

    Office of Special Education and Rehabilitative Services, Department of Education.

    ACTION:

    Final priorities, requirements, and definition.

    SUMMARY:

    The Assistant Secretary for Special Education and Rehabilitative Services announces priorities, requirements, and a definition under the Disability Innovation Fund (DIF) Program. The Assistant Secretary may use these priorities, requirements, and definition for competitions in fiscal year (FY) 2016 and later years. The Assistant Secretary takes this action to identify, develop, implement, and evaluate work-based learning models that are supported by evidence and will help students with disabilities prepare for postsecondary education and competitive integrated employment. The models must be delivered through a coordinated system of transition services.

    DATES:

    The priorities, requirements, and definition are effective October 9, 2016.

    FOR FURTHER INFORMATION CONTACT:

    RoseAnn Ashby, U.S. Department of Education, Rehabilitation Services Administration, 400 Maryland Avenue SW., Room 5057, Potomac Center Plaza, Washington, DC 20202-2800. Telephone: (202) 245-7258, or by email: [email protected]

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

    SUPPLEMENTARY INFORMATION:

    Purpose of Program: The purpose of the DIF Program, as provided by the Consolidated Appropriations Act, 2015 (Pub. L. 113-235), is to support innovative activities aimed at improving the outcomes of “individuals with disabilities,” as defined in section 7(20)(A) of the Rehabilitation Act of 1973, as amended (Rehabilitation Act) (29 U.S.C. 705(20)(A)).

    Program Authority: Consolidated Appropriations Act, 2015 (Pub. L. 113-235).

    We published a notice of proposed priorities, requirements, and definitions (NPP) for this competition in the Federal Register on April 13, 2016 (81 FR 21808). That notice contained background information and our reasons for proposing the particular priorities, requirements, and definitions.

    Public Comment: In response to our invitation in the NPP, 10 parties submitted comments on the proposed priorities, requirements, and definitions. We group major issues according to subject. Generally, we do not address technical and other minor changes, or suggested changes the law does not authorize us to make under the applicable statutory authority. In addition, we do not address general comments that raised concerns not directly related to the priorities.

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

    Priority 1 General

    Comment: None.

    Discussion: Upon review of the requirements for proposed Priority 1, we became aware that to ensure the replicability of the project model, we needed to clarify that the proposed project design must be replicable in similar contexts and settings and implemented at multiple local sites.

    Changes: We have specified in the first sentence in paragraph (a) of the requirements for Priority 1 that the proposed project design must be replicable in similar contexts and settings. For emphasis, we also moved the requirement that the model be implemented at multiple local sites from the end of proposed paragraph (b) to the end of paragraph (a). In addition, we clarified in paragraph (a) of the requirements of Priority 1 that evidence of strong theory is required for the project design.

    Comment: None.

    Discussion: Upon review of Priority 1, we became aware that we needed to eliminate possible confusion about what is meant by the word “effective” and more accurately reflect the purpose of Priority 1.

    The term “effective” in the context of education research and evaluation usually means that a high-quality study was conducted to assess the effectiveness of an intervention. While the purpose of Priority 1 is to build the evidence base and identify and demonstrate work-based learning interventions that are supported by evidence for students with disabilities, the priority does not require that the proposed interventions to be implemented under the project's model be supported by a specific level of effectiveness determined by a high-quality study. Accordingly, we believe that the term “supported by evidence” more accurately reflects the intent of the priority.

    Changes: We have replaced the word “effective” with “supported by evidence” throughout the priority and requirements when referring to the applicant's proposed strategies, model, or project.

    Comments: None.

    Discussion: Upon further review of the notice, we removed the second sentence in paragraph (i)(2) of Requirements for Priority 1 because the summative evaluation is not an effectiveness evaluation and would not statistically prove the effectiveness of the model. Also, the intent of this sentence was redundant with paragraph (j) of the requirements for Priority 1.

    Changes: We deleted the second sentence in paragraph (i)(2) under the Requirements for Priority 1.

    Eligible Applicants and Partners

    Comment: One commenter stated that eligible applicants should include secondary schools and school districts. The commenter indicated that secondary schools are developing many great programs to provide career pathways and successful transitions to college and careers for students with disabilities.

    Discussion: We recognize the importance of the partnerships between State vocational rehabilitation (VR) agencies and secondary schools or school districts in implementing strategies designed to successfully transition students with disabilities to college and careers. However, the purpose of Priority 1 is to identify models that State VR agencies will be able to replicate. We believe that the best way to accomplish this objective is to require the applicant to be a State VR agency working in collaboration with other key partners. This will allow the VR agency to make use of the expertise and experience of multiple partners and to implement models in multiple settings. Each applicant is required to develop a partnership, and chief among these partners are local educational agencies (LEAs).

    Changes: None.

    Comment: One commenter asked that the Department include national and community-based nonprofit organizations as eligible applicants. Although work-based learning is carried out at the local level, the commenter indicated that the bulk of the work—recruiting individuals with disabilities, connecting individuals to community work-based learning experiences, and providing follow-along supports—is actually done by service providers. In addition, the commenter stated that limiting eligible applicants to State VR agencies would narrow the ability of the Department to evaluate specific strategies with different populations in different parts of the country. The commenter explained that a national organization could, for example, operate a multi-community, multi-State demonstration to effectively evaluate work-based learning strategies on a large and diverse scale.

    Discussion: We recognize the important role that service providers play in facilitating and supporting work-based learning experiences in the community. Nevertheless, as discussed earlier, we have decided to limit eligible applicants to State VR agencies because the purpose of Priority 1 is to identify models that State VR agencies will be able to replicate. Limiting applicants to State VR agencies will not narrow the ability of the Department to evaluate specific strategies with different populations in different parts of the country. Rather than having one national grant with multiple local sites, we elected to have multiple grants, each of which may propose variations in the evaluations conducted. These may require different methodologies and may lead to different, but nonetheless comparable, findings for specific populations in a variety of contexts.

    Changes: None.

    Comment: Given the emphasis on coordinated systems, interagency collaboration, and effective intervention at an individual and local level, one commenter asked whether the Department anticipates funding projects at a local or State level. The commenter further asked whether the Department will fund multiple-State consortia in this competition.

    Discussion: The Department understands the importance of coordinated systems, interagency collaboration, and effective intervention at the individual, local, and State levels. While the eligible applicant is the State VR agency, the projects themselves would be carried out at the local level in collaboration with LEAs or, where appropriate, State educational agencies (SEAs) and other local partners. Given the limited funds that are available for this competition, we will only be able to support a small number of projects, depending on their scope and intensity. Funding multiple-State consortia would further limit the number of projects awarded and the number and variety of work-based learning models that they will produce.

    Changes: None.

    Comment: One commenter recommended that the required partners specifically be expanded to include disability service providers. The commenter listed several places in the requirements for Priority 1 where the term “disability service providers” should be included because the commenter wanted disability service providers to be involved in as many aspects of the project as possible.

    Discussion: We recognize the important role that disability service providers and other community service providers play in assisting students with disabilities to achieve their educational and employment goals. Thus, the requirement to establish partnerships in developing and implementing a project's model in paragraph (c) of the requirements for Priority 1 includes “providers or other agencies that are critical to the development of work-based learning experiences in integrated settings for students with disabilities.” However, we believe that applicants should have the flexibility to determine which providers these are, as well as the extent to which disability service providers or other agencies are critical to the development of work-based learning experiences in the community.

    Changes: None.

    Target Population

    Comment: One commenter asked for clarification as to how Priority 1 will address the needs of out-of-school youth and young adults.

    Discussion: The focus of this priority is students with disabilities. We believe that out-of-school youth and young adults would benefit from successful work-based learning opportunities that are developed and evaluated through these priorities; however, the narrower scope of these models, focusing specifically on students with disabilities, will help to ensure the rigorous evaluation of the models.

    Changes: None.

    Comment: One commenter requested that the Department revise Priority 1 to require applicants to develop and implement project designs that improve outcomes for students with disabilities, including low-incidence populations such as students who are deaf or hard of hearing. The commenter would also establish partnerships with entities or specific individuals with expertise in developing, evaluating, and disseminating innovative strategies for serving individuals from low-incidence populations, including students who are deaf or hard of hearing.

    Discussion: The Department appreciates the commenter's interest in ensuring that the projects funded under this priority are designed to address work-based learning experiences for students with low-incidence disabilities. Nothing precludes an applicant from proposing to serve individuals from low-incidence populations, such as students who are deaf or hard of hearing. However, the Department declines to require all applicants to design projects to serve any specific disability population or place greater importance on serving one population over another under these priorities.

    Changes: None.

    Work-based Learning Experiences

    Comment: One commenter recommended that work performed through work-based learning experiences be financially compensated. For example, the commenter stated that internships and apprenticeships should be paid work experiences.

    Discussion: We are aware that research in this field indicates that paid work experiences result in better employment outcomes for youth with disabilities than do unpaid work experiences. Therefore, paragraph (e) of the requirements for Priority 1 requires that at least one of a student's work experiences be a paid experience. While we encourage grantees to arrange for paid work experiences whenever possible, we do not want to preclude a grantee from providing an unpaid work-based learning experience that would be beneficial and appropriate to the student's goals, particularly in instances where a paid work experience is unavailable.

    Changes: None.

    Comment: One commenter asserted that the proposed requirements for Priority 1 should include an increased emphasis on engaging people with disabilities in innovation, similar to investments in science, technology, engineering, and mathematics (STEM) skills, such as “creativity/making” skills and entrepreneurial skills.

    Discussion: We agree that students with disabilities should be exposed to a wide variety of work-based learning experiences, including those in innovative fields (i.e., STEM) and those involving entrepreneurship skills. Work-based learning experiences supported under this priority should take into consideration the student's career interests and goals, which may include some of the innovative fields and entrepreneurship skills that the commenter described, as well as information about labor market demand and career pathways. We disagree with the commenter, however, that we should emphasize innovation and entrepreneurship above other areas of career focus because that would unnecessarily limit both the scope of the projects proposed and the work-based learning experiences available to students with disabilities.

    Changes: None.

    Comment: One commenter asserted that it is critically important that any work-based learning program funded and evaluated by the Department include access to programs that ensure that work disincentives created by receiving benefits and assistance under Supplemental Security Income or Social Security Disability Insurance do not prevent young adults with disabilities from seeking employment.

    Discussion: We agree that a grantee may implement strategies or activities that address potential work disincentives that discourage a student with a disability from seeking employment. Nothing in Priority 1 would preclude an applicant from forming partnerships with other providers or programs that work in this area.

    Changes: None.

    Comment: One commenter requested that instead of including transportation as an optional support service in paragraph (g) of the requirements for Priority 1, the Department require grantees to provide transportation education and travel training within their demonstrations. The commenter stated that adding a specific project requirement for transportation education would ensure that individuals participating in the demonstration projects have access to and know how to use transportation, both in the short-term (during their work-based learning opportunities) and in the long-term (when they transition into employment or post-secondary education). The commenter added that in the explanatory statement accompanying the Consolidated Appropriations Act, 2015, Congress highlighted the importance of transportation in transition outcomes and directed the Department to collaborate with transportation experts and implement transportation strategies.

    Discussion: The Department agrees that transportation services, including education and travel training, are important services and can help many students with disabilities succeed in work-based learning. Transportation services are not optional, as the commenter suggested. Paragraph (g) of the requirements for Priority 1 requires the applicant to identify and provide support services, including transportation services, needed to ensure the student's success in participating in work-based learning experiences. The phrase “as appropriate” in the context of this requirement does not make a project's provision of transportation services optional. Rather, we recognize that not all project participants will require transportation services or the same types of transportation services. Projects are required to provide transportation services to all students with disabilities who may require such services to be successful in their work-based learning experiences. However, to address the commenters' concerns, we have modified paragraph (g) to make it clear that transportation services may include transportation education and travel training.

    Changes: We have modified paragraph (g) in the requirements for Priority 1 to include transportation education and travel training as examples of transportation services that may be provided to ensure the student's success in participating in work-based learning experiences.

    Other

    Comment: One commenter expressed concerns about the scope of the data required to be collected and specifically requested that data be collected on the type of assistive technology used by participants and the assistive technologies requested but not acquired.

    Discussion: We agree that assistive technology allows many students with disabilities to achieve their education and employment goals and that providing access to assistive technology is a necessary element of any transition model. In recognition of assistive technology's importance, paragraph (h) of the requirements for Priority 1 requires the project to identify and provide or arrange for accommodations or assistive technology needed to ensure the student's success in participating in work-based learning experiences. The purpose of these priorities is to evaluate the extent to which the project's model of coordinated work-based learning practices and strategies helps ensure that students with disabilities are prepared for postsecondary education and competitive integrated employment. Thus, we would expect grantees to document the services and supports provided to project participants, including the provision of assistive technology. However, we are not requiring grantees to evaluate the use of specific assistive technology because we expect the types of assistive technology used will vary with the needs of project participants. Therefore, there is no need to increase the scope of the required data collection described in paragraph (j) of Priority 1 to document whether the assistive technology requested by participants was acquired.

    Changes: None.

    Comment: One commenter asked that the Department make outcome data aggregated from the transition work-based learning model demonstrations publicly available so researchers and service providers nationwide can benefit from and create new best-practice strategies from this relevant information. This commenter observed that the DIF-funded demonstrations will represent one of the most significant and coordinated efforts to study models supported by evidence to improve transition outcomes.

    Discussion: We agree with the commenter and will require grantees to make outcome data available to the Department in order to publish such data on the National Clearinghouse of Rehabilitation Training Materials (NCRTM) and other publicly available sources so that successful practices may be shared and available for replication.

    Changes: We have added a new paragraph (k) to the requirements for Priority 1 to require grantees to provide outcome data to the Department for publication through the NCRTM.

    Priorities 2 and 3

    Comment: None.

    Discussion: Upon review of Priority 2, we became aware that we needed to clarify the requirement that at least one component of the proposed project must be supported by evidence of promise.

    Change: We have revised Priority 2 by requiring evidence of promise for at least one key component and at least one relevant outcome in the logic model for their proposed project and made conforming changes to the application requirements.

    Comment: A commenter observed that Priority 3 outlined multiple approaches to determine the quality of evidence but also stated that the field would better benefit from controlled studies of interventions. The commenter asked whether the Department intends for these projects to incorporate randomized control treatment designs.

    Discussion: We are not requiring a randomized control treatment design but also do not want to discourage applicants from proposing this type of design. We have revised Priority 3 and its associated requirements to clarify that proposed evaluations designed to produce evidence of effectiveness and likely to meet the What Works Clearinghouse Evidence Standards, such as a randomized control treatment design, are also permitted. In short, we would encourage applicants to use the most appropriate and strongest research design to answer their research questions.

    Changes: We have revised Priority 3 and paragraph (b) of its associated requirements to state that an applicant may propose an evaluation design that, if well implemented, is likely to meet the What Works Clearinghouse Evidence Standards.

    Final Priorities

    Priority 1: Transition Work-Based Learning Model Demonstrations.

    We give priority to model demonstration projects designed to identify, develop, implement, and evaluate work-based learning models that are supported by evidence and will help ensure that students with disabilities are prepared for postsecondary education and competitive integrated employment. The model demonstration projects must provide work-based learning experiences, supported by evidence, in integrated settings, in coordination with other transition services, including pre-employment transition services, to students with disabilities, through State VR agencies, in collaboration with LEAs or, where appropriate, SEAs and other local partners.

    Priority 2: Evidence of Promise Supporting the Proposed Model.

    We give priority to applicants who propose projects supported by evidence of promise for at least one key component and at least one relevant outcome in the logic model for their proposed project.

    Priority 3: Project Evaluation Designed to Meet the What Works Clearinghouse Evidence Standards.

    We give priority to applicants that propose to conduct a rigorous and well-designed evaluation of their completed model demonstration project that, if the research design is well implemented, would meet the What Works Clearinghouse Evidence Standards.

    Types of Priorities:

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

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

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

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

    Final Requirements

    The Assistant Secretary announces the following project requirements for this competition. We may apply one or more of these requirements in any year in which this competition is in effect. Each of the following sets of requirements corresponds to one of the priorities.

    Requirements for Priority 1:

    To be considered for funding under Priority 1, applicants must describe their plans to carry out the following project requirements—

    (a) Develop and implement a project design replicable in similar contexts and settings that is supported by strong theory. The model must be implemented at multiple local sites to ensure its replicability;

    (b) Develop and implement a project demonstrating practices and strategies that are supported by evidence in the use of work-based learning experiences in integrated settings within the local community to prepare students with disabilities for postsecondary education and competitive integrated employment;

    (c) Establish partnerships with the LEA or, as appropriate, the SEA, institutions of higher education, employers, and providers or other agencies that are critical to the development of work-based learning experiences in integrated settings for students with disabilities. At a minimum, the partnership must include representatives from the LEA, workforce training providers (e.g., American Job Centers), and employers who will collaborate to develop and provide opportunities (such as internships, short-term employment, and apprenticeships) for students with disabilities served under the project;

    (d) Provide career exploration and counseling to assist students in identifying possible career pathways (as defined in this notice) and the relevant work-based learning experiences;

    (e) Develop work-based learning experiences in integrated settings, at least one of which must be a paid experience, that—

    (1) Provide exposure to a wide range of work sites to help students make informed choices about career selections;

    (2) Are appropriate for the age and stage in life of each participating student, ranging from site visits and tours, job shadowing, service learning, apprenticeships, and internships;

    (3) Are structured and linked to classroom or related instruction;

    (4) Use a trained mentor to help structure the learning at the worksite;

    (5) Include periodic assessment and feedback as part of each experience; and

    (6) Fully involve students with disabilities and, as appropriate, their representative in choosing and structuring their experiences;

    (f) Provide instruction in employee rights and responsibilities, as well as positive work skills, habits, and behaviors that foster success in the workplace;

    (g) Identify and provide support services, as appropriate, including transportation services (e.g., transportation education and travel training), that are needed to ensure the student's success in participating in work-based learning experiences;

    (h) Identify and provide or arrange for accommodations or assistive technology needed to ensure the student's success in participating in work-based learning experiences;

    (i) Develop and implement a plan to measure the model demonstration project's performance and outcomes. A detailed and complete evaluation plan must include—

    (1) A formative evaluation plan, consistent with the project's logic model, that—

    (i) Includes evaluation questions, source(s) for data, a timeline for data collection, and analysis plans;

    (ii) Shows how the outcome (e.g., postsecondary education and competitive integrated employment) and implementation data will be used separately or in combination to improve the project during the performance period; and

    (iii) Outlines how these data will be reviewed by project staff, when they will be reviewed, and how they will be used during the course of the project to adjust the model or its implementation to increase the model's usefulness, replicability in similar contexts and settings, and potential for sustainability; and

    (2) A summative evaluation plan, including a timeline, to collect and analyze data on students and their outcomes over time, both for students with disabilities served by the project and for students with disabilities in a comparison group not receiving project services.

    (j) Collect data necessary to evaluate the outcomes of the project, including the progress of the project in achieving its goals and outcomes, which, at a minimum, must include:

    (1) The relevant available RSA-911 Case Service Report data for each student in the project;

    (2) The number of students in the work-based learning project;

    (3) The number of students in the project who complete at least one work-based learning experience;

    (4) The number of work-based learning experiences that each student completes during the project;

    (5) The types of work-based learning experiences in which students participated;

    (6) The number of students who attain a recognized post-secondary credential and the type of credentials attained;

    (7) The number of students who obtain competitive integrated employment; and

    (8) An unduplicated count of students who obtain a recognized postsecondary credential and competitive integrated employment.

    (k) Make outcome data available to the Department for publication through the National Clearinghouse of Rehabilitation Training Materials.

    To be considered for funding under Priority 1, an applicant also must provide the following with its application:

    (a) A detailed review of the literature that describes the evidence base for the proposed demonstration project, its components, and strategies for work-based learning experiences for students with disabilities;

    (b) A logic model;

    (c) A description of the applicant's plan for implementing the project, including a description of—

    (1) A cohesive, articulated model of partnership and coordination among the participating agencies and organizations;

    (2) The coordinated set of practices and strategies that are supported by evidence in the use and development of work-based learning models that are aligned with employment, training, and education programs and reflect the needs of employers and of students with disabilities; and

    (3) How the proposed project will—

    (i) Involve employers in the project design and in partnering with project staff to develop integrated job shadowing, internships, apprenticeships, and other paid and unpaid work-based learning experiences that are designed to increase the preparation of students with disabilities for postsecondary education and competitive integrated employment;

    (ii) Conduct outreach activities to identify students with disabilities whom the work-based learning experiences would enable them to achieve competitive integrated employment; and

    (iii) Identify innovative strategies, including development, implementation, and evaluation of approved models, methods, and measures that will increase the preparation of students with disabilities for postsecondary education and competitive integrated employment;

    (d) A description of the methods and criteria that will be used to select the site(s) at which the project activities will be implemented;

    (e) Documentation (e.g., letter of support or draft agreement) that the State VR agency has specific agreements with its partners in the development and implementation of the project;

    (f) A plan for evaluating the project's performance, including an evaluation of the practices and strategies implemented by the project, in achieving project goals and objectives.

    Specifically, the evaluation plan must include a description of—

    (1) A formative evaluation plan, consistent with the project's logic model that includes the following:

    (i) The key questions to be addressed by the project evaluation and the appropriateness of the methods for how each question will be addressed;

    (ii) How the methods of evaluation will provide valid and reliable performance data on relevant outcomes, particularly postsecondary and competitive integrated employment outcomes, including the source(s) for the data and the timeline for data collection;

    (iii) A clear and credible analysis plan, including a proposed sample size and minimum detectable effect size that aligns with the expected project impact, and an analytic approach for addressing the research questions; and

    (iv) How the key components of the project, as well as a measurable threshold for acceptable implementation and outcome data, will be reviewed and used to improve the project;

    (2) A summative evaluation plan, including—

    (i) How the outcomes and implementation data collected by the project will be used, separately or in combination, to demonstrate that the goals of the model were met;

    (ii) How the outcomes for students with disabilities served by the project will be compared with the outcomes of students with disabilities not receiving project services.

    (g) A plan for systematic dissemination of project findings, templates, resources, and knowledge gained that will assist State and local VR and educational agencies in adapting or replicating the model work-based learning demonstration developed and implemented by the project, which could include elements such as development of a Web site, resources (e.g., toolkits), community of practice, and participation in national and State conferences;

    (h) An assurance that the employment goal for all students served under Priority 1 will be competitive integrated employment, including customized or supported employment; and

    (i) An assurance that the project will collaborate with other work-based learning initiatives.

    Requirements for Priority 2

    To meet Priority 2, applicants must meet the following requirements:

    (a) Applicants must identify and include a detailed discussion of up to two cited studies that meet the evidence of promise standard for at least one key component and at least one relevant outcome in the logic model for the proposed project. Both the critical component(s) and relevant outcome(s) must be specified for each study cited.

    (b) The full names and links for the citations submitted for this priority must be provided on the Abstract and Information page of the application, or the full text of each study cited must be provided.

    (c) Applicants must specify on the Abstract and Information page the findings in the studies that are cited as evidence of promise for the key component(s) and relevant outcome(s) and ensure that the citations and links are from publicly or readily available sources. Studies of fewer than 10 pages may be attached in full under Other Attachments in Grants.gov.

    Requirements for Priority 3

    To meet Priority 3, applicants must describe in their applications how they would meet the following competition requirements:

    (a) Conduct an independent evaluation (as defined in this notice) of its project. This evaluation must estimate the impact of the project on a relevant outcome.

    (b) Use an evaluation design that, if well implemented, is likely to meet the What Works Clearinghouse Evidence Standards.

    (c) Make broadly available the results of any evaluations it conducts of its funded activities, digitally and free of charge, through formal (e.g., peer-reviewed journals) or informal (e.g., newsletters) mechanisms. The grantee must also ensure that the data from its evaluation are made available to third-party researchers consistent with applicable privacy requirements.

    (d) Cooperate on an ongoing basis with any technical assistance provided by the Department or its contractor and comply with the requirements of any evaluation of the program conducted by the Department.

    Final Definitions

    We announce one new definition for use in connection with the priorities. The remaining definitions listed in the NPP and used in the final priorities and requirements in this notice are established defined terms in the Workforce Innovation and Opportunity Act (WIOA), the Rehabilitation Act, or 34 CFR part 77 and are provided in the notice inviting applications published elsewhere in this issue of the Federal Register. Specifically, the definitions for the terms “evidence of promise,” “logic model,” “randomized controlled trial,” “relevant outcome,” “quasi-experimental design study,” and “strong theory” are from 34 CFR part 77.

    Definition:

    The Assistant Secretary announces the following definition for this competition. We may apply this definition in any year in which this program is in effect.

    Independent evaluation means an evaluation that is designed and carried out independent of, and external to, the grantee but in coordination with any employees of the grantee who develop a process, product, strategy, or practice that is currently being implemented as part of the grant's activities.

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

    Note: This notice does not solicit applications. In any year in which we choose to use these priorities, requirements and this definition, we invite applications through a notice in the Federal Register.

    Executive Orders 12866 and 13563 Regulatory Impact Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Intergovernmental Review: This competition is subject to Executive Order 12372 and the regulations in 34 CFR part 79. However, under 34 CFR 79.8(a), we waive intergovernmental review in order to make an award by the end of FY 2016.

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

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

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

    Dated: July 26, 2016. Sue Swenson, Acting Assistant Secretary for Special Education and Rehabilitative Services.
    [FR Doc. 2016-18031 Filed 7-29-16; 8:45 am] BILLING CODE 4000-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 51 [EPA-HQ-OAR-2015-0041; FRL-9949-77-OAR] RIN 2060-AR94 Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds—Exclusion of 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) Ethane (HFE-347pcf2) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to revise the regulatory definition of volatile organic compounds (VOC) under the Clean Air Act (CAA). This direct final action adds 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (also known as HFE-347pcf2; CAS number 406-78-0) to the list of compounds excluded from the regulatory definition of VOC on the basis that this compound makes a negligible contribution to tropospheric ozone (O3) formation.

    DATES:

    This rule is effective on September 30, 2016 without further notice, unless the EPA receives adverse comment by August 31, 2016. If the EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2015-0041, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Souad Benromdhane, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, Mail Code C539-07, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone: (919) 541-4359; fax number: (919) 541-5315; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Why is the EPA using a direct final rule? II. Does this action apply to me? III. Background A. The EPA's VOC Exemption Policy B. Petition To List HFE-347pcf2 as an Exempt Compound IV. The EPA's Assessment of the Petition A. Contribution to Tropospheric Ozone Formation B. Contribution to Stratospheric Ozone Depletion C. Toxicity D. Contribution to Climate Change E. Conclusions V. Direct Final Action VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) L. Judicial Review I. Why is the EPA using a direct final rule?

    The EPA is publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. This action revises the EPA's regulatory definition of VOC for purposes of preparing state implementation plans (SIPs) to attain the national ambient air quality standards (NAAQS) for O3 under title I of the CAA by adding HFE-347pcf2 to the list of compounds excluded from the regulatory definition of VOC on the basis that this compound makes a negligible contribution to tropospheric O3 formation. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to make this revision to the regulatory definition of VOC if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

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

    II. Does this action apply to me?

    Entities potentially affected by this direct final rule include, but are not necessarily limited to: State and local air pollution control agencies that adopt and implement regulations to control air emissions of VOC; and industries manufacturing and/or using HFE-347pcf2 as a precision cleaning agent to remove contaminants including oil, flux, and fingerprints from items like medical devices, artificial implants, crucial military and aerospace items, electric components, printed circuit boards, optics, jewelry, ball bearings, aircraft guidance systems, film, relays, and a variety of metal components, among others.

    III. Background A. The EPA's VOC Exemption Policy

    Tropospheric O3, commonly known as smog, is formed when VOC and nitrogen oxides (NOX) react in the atmosphere in the presence of sunlight. Because of the harmful health effects of O3, the EPA and state governments limit the amount of VOC that can be released into the atmosphere. Volatile organic compounds form O3 through atmospheric photochemical reactions, and different VOC have different levels of reactivity. That is, different VOC do not react to form O3 at the same speed or do not form O3 to the same extent. Some VOC react slowly or form less O3; therefore, changes in their emissions have limited effects on local or regional O3 pollution episodes. It is the EPA's policy that organic compounds with a negligible level of reactivity should be excluded from the regulatory definition of VOC in order to focus VOC control efforts on compounds that significantly increase O3 concentrations. The EPA also believes that exempting such compounds creates an incentive for industry to use negligibly reactive compounds in place of more highly reactive compounds that are regulated as VOC. The EPA lists compounds that it has determined to be negligibly reactive in its regulations as being excluded from the regulatory definition of VOC (40 CFR 51.100(s)).

    The CAA requires the regulation of VOC for various purposes. Section 302(s) of the CAA specifies that the EPA has the authority to define the meaning of “VOC” and, hence, what compounds shall be treated as VOC for regulatory purposes. The policy of excluding negligibly reactive compounds from the regulatory definition of VOC was first laid out in the “Recommended Policy on Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977) (from here forward referred to as the 1977 Recommended Policy) and was supplemented subsequently with the “Interim Guidance on Control of Volatile Organic Compounds in Ozone State Implementation Plans” (70 FR 54046, September 13, 2005) (from here forward referred to as the 2005 Interim Guidance). The EPA uses the reactivity of ethane as the threshold for determining whether a compound has negligible reactivity. Compounds that are less reactive than, or equally reactive to, ethane under certain assumed conditions may be deemed negligibly reactive and, therefore, suitable for exemption from the regulatory definition of VOC. Compounds that are more reactive than ethane continue to be considered VOC for regulatory purposes and, therefore, are subject to control requirements. The selection of ethane as the threshold compound was based on a series of smog chamber experiments that underlay the 1977 policy.

    The EPA has used three different metrics to compare the reactivity of a specific compound to that of ethane: (i) The rate constant for reaction with the hydroxyl radical (OH) (known as kOH); (ii) the maximum incremental reactivity (MIR) on a reactivity per unit mass basis; and (iii) the MIR expressed on a reactivity per mole basis. Differences between these three metrics are discussed below.

    The kOH is the rate constant of the reaction of the compound with the OH radical in the air. This reaction is often, but not always the first and rate-limiting step in a series of chemical reactions by which a compound breaks down in the air and contributes to O3 formation. If this step is slow, the compound will likely not form O3 at a very fast rate. The kOH values have long been used by the EPA as metrics of photochemical reactivity and O3-forming activity, and they have been the basis for most of the EPA's early exemptions of negligibly reactive compounds from the regulatory definition of VOC. The kOH metric is inherently a molar-based comparison, i.e., it measures the rate at which molecules react.

    The MIR, both by mole and by mass, is a more updated metric of photochemical reactivity derived from a computer-based photochemical model, and has been used as a consideration of reactivity since 1995. This metric considers the complete O3-forming activity of a compound over multiple hours and through multiple reaction pathways, not merely the first reaction step with OH. Further explanation of the MIR metric can be found in Carter (1994), “Development of ozone reactivity scales for volatile organic compounds.”

    The EPA has considered the choice between a molar or mass basis for the comparison to ethane in past rulemakings and guidance. In the 2005 Interim Guidance, the EPA stated:

    [A] comparison to ethane on a mass basis strikes the right balance between a threshold that is low enough to capture compounds that significantly affect ozone concentrations and a threshold that is high enough to exempt some compounds that may usefully substitute for more highly reactive compounds.

    When reviewing compounds that have been suggested for VOC-exempt status, EPA will continue to compare them to ethane using kOH expressed on a molar basis and MIR values expressed on a mass basis.

    The 2005 Interim Guidance also noted that concerns have sometimes been raised about the potential impact of a VOC exemption on environmental endpoints other than O3 concentrations, including fine particle formation, air toxics exposures, stratospheric O3 depletion, and climate change. The EPA has recognized, however, that there are existing regulatory and non-regulatory programs that are specifically designed to address these issues, and the EPA continues to believe in general that the impacts of VOC exemptions on environmental endpoints other than O3 formation will be adequately addressed by these programs. The VOC exemption policy is intended to facilitate attainment of the O3 NAAQS. In general, VOC exemption decisions will continue to be based solely on consideration of a compound's contribution to O3 formation. However, if the EPA determines that a particular VOC exemption is likely to result in a significant increase in the use of a compound and that the increased use would pose a significant risk to human health or the environment that would not be addressed adequately by existing programs or policies, then the EPA may exercise its judgment accordingly in deciding whether to grant an exemption.

    B. Petition To List HFE-347pcf2 as an Exempt Compound

    Asahi Glass Company, AGC Chemicals America, Inc. submitted a petition to the EPA on February 5, 2007, requesting that 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (HFE-347pcf2; CAS number 406-78-0) be exempted from the regulatory definition of VOC. The petition was based on the argument that HFE-347pcf2 has low reactivity relative to ethane. The petitioner indicated that HFE-347pcf2 may be used in a variety of applications as a precision cleaning agent to remove contaminants including oil, flux, and fingerprints from items like medical devices, artificial implants, crucial military and aerospace items, electric components, printed circuit boards, optics, jewelry, ball bearings, aircraft guidance systems, film, relays, and a variety of metal components, among others.

    To support its petition, AGC Chemicals America, Inc. referenced several documents, including two peer-reviewed journal articles on HFE-347pcf2's reaction rates (Tokuhashi et al., 2000; Pitts et al, 1983). In 2014, AGC provided a supplemental technical report on the maximum incremental reactivity of HFE-347pcf2 (Carter, 2014). According to this report, the maximum incremental reactivity of HFE-347pcf2 ranges between 0.0007 g O3/g HFE-347pcf2 (best estimate) and 0.0013 g O3/g HFE-347pcf2 (high reactivity estimate) on the mass-based MIR scale. This reactivity rate is much lower than that of ethane (0.28 g O3/g ethane), the compound that the EPA has used for comparison to define “negligible” O3 reactivity for the purpose of exempting compounds from the regulatory definition of VOC. The rate constant for the gas-phase reaction of OH radicals with HFE-347pcf2 (kOH) has been measured to be 9.16 × 10−15 cm3/molecule-sec at ~298 K (Pitts et al., 1983, Tokuhashi et al., 2000). Based on the measured reactivity rate of HFE-347pcf2 (Pitts et al., 1983), HFE-347pcf2 has a smaller kOH than ethane (kOH of ethane = 2.4 × 10−13 cm3/molecule-sec at ~298 K) and, therefore, is less reactive than ethane.

    To address the potential for stratospheric O3 impacts, the petitioner contended that, given the atmospheric lifetime of HFE-347pcf2 and that it does not contain chlorine or bromine, it is not expected to contribute to the depletion of the stratospheric O3 layer.

    IV. The EPA's Assessment of the Petition

    The EPA is taking direct final action to respond to the petition by exempting HFE-347pcf2 from the regulatory definition of VOC. This action is based on consideration of the compound's low contribution to tropospheric O3 and the low likelihood of risk to human health or the environment. In this case, the EPA considered issues of contribution to stratospheric O3 depletion, toxicity, and climate change. Additional information on these topics is provided in the following sections.

    A. Contribution to Tropospheric Ozone Formation

    The reaction rate of HFE-347pcf2 with the OH radical (kOH) has been measured to be 9.16 × 10−15 cm3/molecule-sec (Tokuhashi et al., 2000); other reactions with O3 and the nitrate radical were negligibly small. The corresponding reaction rate of ethane with OH is 2.4 × 10−13 cm3/molecule-sec (Atkinson et al., 2006).

    The overall atmospheric reactivity of HFE-347pcf2 was not studied in an experimental smog chamber, but the chemical mechanism derived from other chamber studies (Carter, 2011) was used to model the complete formation of O3 for an entire single day under realistic atmospheric conditions (Carter, 2014). In 2014, Carter calculated a MIR value of 0.0007 to 0.0013 g O3/g VOC for HFE-347pcf2 for “averaged conditions,” versus 0.28 g O3/g VOC for ethane.

    Table 1 presents the three reactivity metrics for HFE-347pcf2 as they compare to ethane.

    Table 1—Reactivities of Ethane and HFE-347pcf2 Compound kOH
  • (cm3/molecule-sec)
  • Maximum
  • incremental
  • reactivity (MIR)
  • (g O3/mole VOC)
  • Maximum
  • incremental
  • reactivity (MIR)
  • (g O3/g VOC)
  • Ethane 2.4 × 10 13 8.4 0.28 HFE-347pcf2 9.16 × 10 15 0.14-0.26 0.0007-0.0013 Notes: 1. kOH value at 298 K for ethane is from Atkinson et al., 2006 (page 3626). 2. kOH value at 298 K for HFE-347pcf2 is from Tokuhashi, 2000. 3. Mass-based MIR value (g O3/g VOC) of ethane is from Carter, 2011. 4. Mass-based MIR value (g O3/g VOC) of HFE-347pcf2 is from a supplemental report by Carter, 2014. 5. Molar-based MIR (g O3/mole VOC) values were calculated from the mass-based MIR (g O3/g VOC) values using the number of moles per gram of the relevant organic compound.

    The data in Table 1, shows that HFE-347pcf2 has a significantly lower kOH value than ethane, meaning that it initially reacts less quickly in the atmosphere than ethane. Also, a molecule of HFE-347pcf2 is less reactive than a molecule of ethane in terms of complete O3-forming activity as shown by the molar-based MIR (g O3/mole VOC) values. Additionally, one gram of HFE-347pcf2 has a lower capacity than one gram of ethane to form O3. Thus, following the 2005 Interim Guidance, HFE-347pcf2 is eligible to be exempted from the regulatory definition of VOC on the basis of kOH and both the mole- and mass-based MIR.

    B. Contribution to Stratospheric Ozone Depletion

    HFE-347pcf2 is unlikely to contribute to the depletion of the stratospheric O3 layer. The O3 depletion potential (ODP) of HFE-347pcf2 is expected to be negligible based on several lines of evidence: The absence of chlorine or bromine from the compound, the expected initial reactions described in Carter (2008), and the general theory supporting the estimated mechanisms of its reactivity with the hydroxyl OH discussed in Carter (2011).

    The Significant New Alternatives Policy (SNAP) program is the EPA's program to evaluate and regulate substitutes for end uses historically using ozone-depleting chemicals. Under Section 612(c) of the CAA, the EPA is required to identify and publish lists of acceptable and unacceptable substitutes for class I or class II ozone-depleting substances. According to the SNAP program finding, the HFE-347pcf2 ODP is zero and therefore HFE-347pcf2 is listed as an acceptable substitute for several of these ozone-depleting chemicals in electronics and precision cleaning and as an aerosol solvent in 2012.1

    1 77 FR 47768, August 10, 2012. Also see list of acceptable cleaning solvents under SNAP decision: http://www.epa.gov/ozone/snap/solvents/solvents.pdf.

    C. Toxicity

    Based on a screening assessment of the health and environmental risks of HFE-347pcf2 (available in the docket for the SNAP rule at EPA-HQ-OAR-2003-0118 under the name, “Risk Screen on Substitutes CFC-113, Methyl Chloroform, and HCFC-141b in Aerosol Solvent, Electronics Cleaning, and Precision Cleaning Substitute: HFE-347pcf2”), the SNAP program anticipated that users will be able to use the compound in precision cleaning without significantly greater health risks than presented by use of other available substitutes.

    Potential health effects of HFE-347pcf2 include coughing, dizziness, dullness, drowsiness, and headache. Higher concentrations can produce heart irregularities, central nervous system depression, narcosis, unconsciousness, respiratory failure, or death. This compound may also irritate the skin or eyes. The acute and short-term studies presented during the SNAP review indicated that HFE-347pcf2 is toxic by inhalation, and mortality was observed at high concentrations of 2000 ppm and above. HFE-347pcf2 is not commonly used outside of industrial settings, and other compounds in the same industrial uses have similar health and environmental risks. The SNAP program, in their listing of HFE-347pcf2 as an acceptable substitute in aerosol solvent, recommended that adequate ventilation and good industrial hygiene practice be utilized due to the potential neurotoxic effects of this substitute at high acute (short-term) concentrations. The manufacturer recommended an acceptable exposure limit (AEL) for the workplace of 50 ppm (8-hr total weight average, TWA). The EPA recommended a maximum allowable human exposure limit of 150 ppm for HFE-347pcf2. The EPA anticipates that users following good practices will be able to use HFE-347pcf2 in electronics and precision cleaning without appreciable health risks.

    HFE-347pcf2 is not regulated as a hazardous air pollutant (HAP) under Title I of the CAA. Also, it is not listed as a toxic chemical under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).

    The Toxic Substances Control Act (TSCA) gives the EPA authority to assess and prevent potential unreasonable risks to human health and the environment before a new chemical substance is introduced into commerce. Section 5 of TSCA requires manufacturers and importers to notify the EPA before manufacturing or importing a new chemical substance by submitting a pre-manufacture notice (PMN) prior to the manufacture (including import) of the chemical. Under the TSCA New Chemicals Program, the EPA then assesses whether an unreasonable risk may, or will, be presented by the expected manufacture, processing, distribution in commerce, use, and disposal of the new substance. The PMN for HFE-347pcf2 stated the substance will be used in industrial settings for cleaning electronic components, precision cleaning, dewatering of electronic components and other parts following aqueous cleaning, and as a carrier/lubricant coating for hard disk drives and other precision parts. EPA did not determine that the above-listed proposed industrial processing or use of the substance presents an unreasonable risk. The EPA has determined, however, that domestic manufacture, use in non-industrial products, or use other than as described in the PMN may cause serious chronic health effects. To mitigate risks identified during the PMN review of HFE-347pcf2 (PMN P-04-0635), EPA issued a Significant New Use Rule (SNUR) 2 requiring that manufacturers notify the EPA prior to manufacture or processing of the compound for any new use other than those proposed in the PMN. The required notification will provide the EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs.

    2 77 FR 61117 (Oct. 5, 2012): FR document, with preamble background. See 40 CFR 721.10549.

    D. Contribution to Climate Change

    The Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report (IPCC AR5) estimated the lifetime of HFE-347pcf2 to be 6.0 years and the radiative efficiency to be 0.48 W/m2/ppb. The report estimated the resulting 100-year global warming potential (GWP) to be 889, meaning that, over a 100-year period, one ton of HFE-347pcf2 traps 889 times as much warming energy as one ton of CO2 (IPCC, 2013).3 HFE-347pcf2's GWP of 889 is lower than some of the substitutes in the end uses for which it has been listed as acceptable under the SNAP program, such as HFC-4310mee (GWP = 1650), but higher than the GWP of some other substitutes, such as HFC-365mfc (GWP = 804), HFE-7100 (GWP = 421) and aqueous cleaners with no direct GWP. Under the SNAP program, the EPA continually reviews the availability of acceptable substitutes and expects to eventually eliminate higher-GWP chemicals from the list of acceptable compounds as safer, lower-GWP substitutes become available.

    3 The GWP value for HFE-347pcf2 of 580 considered in the 2012 SNAP decision came from the previous IPCC report, AR4 (IPCC, 2007). AR4 GWP values are still used in a number of regulatory and reporting contexts to maintain consistency and allow for analysis of trends.

    E. Conclusions

    The EPA finds that HFE-347pcf2 is negligibly reactive with respect to its contribution to tropospheric O3 formation and thus may be exempted from the EPA's definition of VOC in 40 CFR 51.100(s). HFE-347pcf2 has been listed as acceptable for use in electronic and precision cleaning and as an aerosol solvent under the SNAP program (USEPA, 2004). The EPA determined that HFE-347pcf2 has a similar or lower stratospheric O3 depletion potential than available substitutes in those end uses and that the toxicity risk from using HFE-347pcf2 is not significantly greater than the risk from using other available alternatives. HFE-347pcf2, among other hydrofluoroethers, was found by both the Montreal Protocol's solvents, coatings, and adhesives technical options committee in 2002 and its technical and economic assessment panel in 2005, to be a suitable replacement for other, more harmful cleaning solvents (UNEP, 2002, 2005). HFE-347pcf2 is expected to be used primarily for the purposes regulated by the SNAP program. It is mostly replacing chemicals with higher GWP and the SNAP program will continue to evaluate its acceptability as an alternative for those specific uses, the EPA has concluded that non-tropospheric ozone-related risks associated with potential increased use of HFE-347pcf2 are adequately managed by this program. The EPA does not expect significant use of HFE-347pcf2 in applications not covered by the SNAP program. However, the SNUR in place under TSCA requires that any significant new use of the chemical be reported to EPA using a Significant New Use Notice (SNUN).

    Any significant new use of HFE-347pcf2 would need to be evaluated by the EPA, and the EPA will continually review the availability of acceptable substitute chemicals from the list of acceptable compounds under the SNAP program as lower-GWP substitutes become available, which could lead to restrictions on the use of HFE-347pcf2, should safer, lower-GWP substitutes become available. At this time, SNAP does not anticipate further evaluation of HFE-347pcf2 to potentially remove the compound from the list of acceptable substitutes in the precision cleaning end-use largely because the use of the chemical is limited to a small niche market.

    V. Direct Final Action

    The EPA is responding to the petition by revising its regulatory definition of VOC at 40 CFR 51.100(s) to add HFE-347pcf2 to the list of compounds that are exempt from the regulatory definition of VOC because it is less reactive than ethane based on a comparison of kOH, and mass-based MIR, and molar-based MIR metrics and is therefore considered negligibly reactive. As a result of this action, if an entity uses or produces any of this compound and is subject to the EPA regulations limiting the use of VOC in a product, limiting the VOC emissions from a facility, or otherwise controlling the use of VOC for purposes related to attaining the O3 NAAQS, then this compound will not be counted as a VOC in determining whether these regulatory obligations have been met. This action may also affect whether this compound is considered a VOC for state regulatory purposes to reduce O3 formation if a state relies on the EPA's regulatory definition of VOC. States are not obligated to exclude from control as a VOC those compounds that the EPA has found to be negligibly reactive. However, no state may take credit for controlling this compound in its O3 control strategy. Consequently, reduction in emissions for this compound will not be considered or counted in determining whether states have met the rate of progress requirements for VOC in SIPs or in demonstrating attainment of the O3 NAAQS.

    VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. It does not contain any recordkeeping or reporting requirements.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action removes HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers, and users of the compound from requirements to control emissions of the compound.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments, or the private sector.

    E. Executive Order 13132: Federalism

    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.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175. This direct final rule removes HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users from requirements to control emissions of the compound. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Since HFE-347pcf2 is utilized in specific industrial applications where children are not present and dissipates quickly, there is no exposure or disproportionate risk to children. This action removes HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users from requirements to control emissions of the compound.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629 February 16, 1994). This action removes HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers, and users of the compound from requirements to control emissions of the compound.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit Court within 60 days from the date the final action is published in the Federal Register. Filing a petition for review by the Administrator of this final action does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review must be filed, and shall not postpone the effectiveness of such action. Thus, any petitions for review of this action related to the exemption of HFE-347pcf2 from the regulatory definition of VOC must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

    References Atkinson, R., Baulch, D. L., Cox, R. A., Crowley, J. N., Hampson, Jr., R. F., Hynes, R. G., Jenkin, M. E., Kerr, J. A., Rossi, M. J., and Troe, J. (2006) Evaluated kinetic and photochemical data for atmospheric chemistry: Volume II—gas phase reactions of organic species. Atmos. Chem. Phys. 6: 3625-4055. Carter, W. P. L. (1994) Development of ozone reactivity scales for volatile organic compounds. J. Air Waste Manage, 44: 881-899. Carter, W. P. L. (2008) Reactivity Estimates for Selected Consumer Product Compounds, Final Report to California Air Resources Board Contract No. 06-408, February 19, 2008. http://www.arb.ca.gov/research/reactivity/consumer_products.pdf. Carter, W. P. L. (2011) SAPRC Atmospheric Chemical Mechanisms and VOC Reactivity Scales, Web page at http://www.engr.ucr.edu/~carter/SAPRC/ Last updated in Sept. 14, 2013. Tables of Maximum Incremental Reactivity (MIR) Values available at http://www.arb.ca.gov/regact/2009/mir2009/mir2009.htm. May 11, 2011. Carter, W. P. L. (2014) Estimating the ground-level atmospheric ozone formation potentials of 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (HFE-347pcf2), November 13, 2014. IPCC, 2007: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K. B. Averyt, M. Tignor and H. L. Miller (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, 996 pp. IPCC, 2013: Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Stocker, T. F., D. Qin, G.-K. Plattner, M. Tignor, S. K. Allen, J. Boschung, A. Nauels, Y. Xia, V. Bex and P. M. Midgley (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, 1535 pp. Pitts, J. N. Jr., Winer, A. M., Aschmann, S. M., Carter, W. P. L., and Atkinson, K. (1983), Experimental Protocol for Determining Hydroxyl Radical Reaction Rate Constants Environmental Science Research Laboratory, ORD, USEPA. EPA600/3-82-038. Tokuhashi, K., Takahashi, A., Kaise, M., Kondo, K., Sekiya, A., Yamashita, S., and Ito, H., (2000), Rate Constants for the Reactions of OH Radicals with CH3OCF2CHF2, CHF2OCH2CF2CHF2, CHF2OCH2CF2CF3, and CF3CH2OCF2CHF2 over the Temperature Range 250-430 K. J. Phys. Chem. Kinet A, 2000, V 104, N 6, 17 February, 2000. UNEP (2002), Montreal Protocol on Substances that Deplete the Ozone Layer: 2002 Report of the Solvents, Coatings, and Adhesives Technical Options Committee, Assessment Report, 2002. UNEP Technology and Economic Assessment Panel, UNEP/TEAP, (2005), Montreal Protocol on Substances that Deplete the Ozone Layer, Progress Report, May 2005. USEPA, (USEPA/SNAP), (2004), The U.S. Solvents Cleaning Industry and the Transition to Non Ozone Depleting Substances, September 2004. List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: July 20, 2016. Gina McCarthy, Administrator.

    For reasons stated in the preamble, part 51 of chapter I of title 40 of the Code of Federal Regulations is amended as follows:

    PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS Subpart F—Procedural Requirements 1. The authority citation for part 51, subpart F, continues to read as follows: Authority:

    42 U.S.C. 7401, 7411, 7412, 7413, 7414, 7470-7479, 7501-7508, 7601, and 7602.

    2. Section 51.100 is amended by revising the introductory text of paragraph (s)(1) to read as follows:
    § 51.100 Definitions.

    (s)(1) This includes any such organic compound other than the following, which have been determined to have negligible photochemical reactivity: Methane; ethane; methylene chloride (dichloromethane); 1,1,1-trichloroethane (methyl chloroform); 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113); trichlorofluoromethane (CFC-11); dichlorodifluoromethane (CFC-12); chlorodifluoromethane (HCFC-22); trifluoromethane (HFC-23); 1,2-dichloro 1,1,2,2-tetrafluoroethane (CFC-114); chloropentafluoroethane (CFC-115); 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123); 1,1,1,2-tetrafluoroethane (HFC-134a); 1,1-dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-difluoroethane (HCFC-142b); 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124); pentafluoroethane (HFC-125); 1,1,2,2-tetrafluoroethane (HFC-134); 1,1,1-trifluoroethane (HFC-143a); 1,1-difluoroethane (HFC-152a); parachlorobenzotrifluoride (PCBTF); cyclic, branched, or linear completely methylated siloxanes; acetone; perchloroethylene (tetrachloroethylene); 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca); 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb); 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee); difluoromethane (HFC-32); ethylfluoride (HFC-161); 1,1,1,3,3,3-hexafluoropropane (HFC-236fa); 1,1,2,2,3-pentafluoropropane (HFC-245ca); 1,1,2,3,3-pentafluoropropane (HFC-245ea); 1,1,1,2,3-pentafluoropropane (HFC-245eb); 1,1,1,3,3-pentafluoropropane (HFC-245fa); 1,1,1,2,3,3-hexafluoropropane (HFC-236ea); 1,1,1,3,3-pentafluorobutane (HFC-365mfc); chlorofluoromethane (HCFC-31); 1 chloro-1-fluoroethane (HCFC-151a); 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a); 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane (C4F9OCH3 or HFE-7100); 2-(difluoromethoxymethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF3)2CFCF2OCH3); 1-ethoxy-1,1,2,2,3,3,4,4,4-nonafluorobutane (C4F9OC2H5 or HFE-7200); 2-(ethoxydifluoromethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF3)2CFCF2OC2H5); methyl acetate; 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (n-C3F7OCH3, HFE-7000); 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (HFE-7500); 1,1,1,2,3,3,3-heptafluoropropane (HFC 227ea); methyl formate (HCOOCH3); 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane (HFE-7300); propylene carbonate; dimethyl carbonate; trans-1,3,3,3-tetrafluoropropene; HCF2OCF2H (HFE-134); HCF2OCF2OCF2H (HFE-236cal2); HCF2OCF2CF2OCF2H (HFE-338pcc13); HCF2OCF2OCF2CF2OCF2H (H-Galden 1040x or H-Galden ZT 130 (or 150 or 180)); trans 1-chloro-3,3,3-trifluoroprop-1-ene; 2,3,3,3-tetrafluoropropene; 2-amino-2-methyl-1-propanol; t-butyl acetate; 1,1,2,2- Tetrafluoro -1-(2,2,2-trifluoroethoxy) ethane; and perfluorocarbon compounds which fall into these classes:

    [FR Doc. 2016-17789 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0304; FRL-9949-72-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Control of Volatile Organic Compounds Emissions From Fiberglass Boat Manufacturing Materials AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve a state implementation plan (SIP) revision submitted by the State of Maryland. This revision pertains to Maryland's adoption of the requirements in EPA's control technique guidelines (CTG) for fiberglass boat manufacturing materials. This action is being taken under the Clean Air Act (CAA).

    DATES:

    This rule is effective on September 30, 2016 without further notice, unless EPA receives adverse written comment by August 31, 2016. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2016-0304 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Gavin Huang, (215) 814-2042, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    Section 172(c)(1) of the CAA provides that SIPs for nonattainment areas must include reasonably available control measures (RACM), including reasonably available control technology (RACT), for sources of emissions. Additionally, Maryland is in the Ozone Transport Region (OTR) established under section 184(a) of the CAA. Pursuant to section 184(b)(1)(B) of the CAA, all areas in the OTR must submit SIP revisions that include implementation of RACT with respect to all sources of VOCs in the states covered by a CTG. See CAA section 184(b)(1). EPA defines RACT as “the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.” 44 FR 53761 (September 17, 1979).

    CTGs are intended to provide state and local air pollution control authorities information that should assist them in determining RACT for VOCs from various sources of fiberglass boat manufacturing. EPA has not published a previous CTG for fiberglass boat manufacturing materials, but did publish an assessment of VOC emissions from fiberglass boat manufacturing in 1990. The 1990 assessment defined the nature and scope of VOC emissions from fiberglass boat manufacturing, characterized the industry, estimated per plant and national VOC emissions, and identified and evaluated potential control options. In 2001, EPA promulgated the National Emission Standards for Hazardous Air Pollutants for Boat Manufacturing, 40 CFR part 63, subpart VVVV (2001 NESHAP). The 2001 NESHAP established organic hazardous air pollutant (HAP) emissions limits based on low-HAP resins and gel coats and low-emitting resin application technology. Several of the air pollution control districts in California have specific regulations that control VOC emissions from fiberglass boat manufacturing operations as part of their regulations for limiting VOC emissions from polyester resin operations. Several other states also have regulations that address VOC emissions from fiberglass boat manufacturing as part of polyester resin operations. After reviewing the 1990 VOC assessment, the 2001 NESHAP, and existing California district and other state VOC emission reduction approaches, and after considering information obtained since the issuance of the 2001 NESHAP, EPA developed a CTG entitled Control Techniques Guidelines for Fiberglass Boat Manufacturing Materials (Publication No. EPA 453/R-08-004; September 2008).

    The CTG for fiberglass boat manufacturing materials provides control recommendations for reducing VOC emissions from the use of gel coats, resins, and materials used to clean application equipment in fiberglass boat manufacturing operations. This CTG applies to facilities that manufacture hulls or decks of boats from fiberglass or build molds to make fiberglass boat hulls or decks. EPA's 2008 CTG recommends that the following operations should be covered: Open molding resin and gel coat operations (these include pigmented gel coat, clear gel coat, production resin, tooling gel coat, and tooling resin); resin and gel coat mixing operations; and resin and gel coat application equipment cleaning operations.

    EPA's 2008 CTG recommends the following VOC reduction measures: VOC emission limits for molding resins and gel coats; work practices for resin and gel coat mixing containers; and VOC content and vapor pressure limits for cleaning materials. Recommended VOC emission limits for open molding resin and gel coat operations are shown in Table 1.

    Table 1—Monomer VOC Content Limitations for Open Molding Resin and Gel Coat Operations Materials Application method Individual monomer VOC content or weight average monomer VOC
  • content limit
  • (weight percent)
  • Production Resin Atomized (spray) 28 Production Resin Nonatomized 35 Pigmented Gel Coat Any Method 33 Clear Gel Coat Any Method 48 Tooling Resin Atomized 30 Tooling Resin Nonatomized 39 Tooling Gel Coat Any Method 40
    II. Summary of SIP Revision

    On December 23, 2015, the Maryland Department of the Environment (MDE) submitted on behalf of the State of Maryland to EPA SIP revision #15-07 concerning implementation of RACT requirements for the control of VOC emissions from fiberglass boat manufacturing materials. Maryland has adopted EPA's CTG standards for fiberglass boat manufacturing materials, including the emission limits found in Table 1 of this rulemaking action, through a regulation, found at Code of Maryland Regulations (COMAR) 26.11.19 (relating to VOC from specific processes). This SIP revision seeks to add COMAR 26.11.19.26-1 (control of VOC emissions from fiberglass boat manufacturing materials) to the Maryland SIP and also includes an amendment to COMAR 26.11.19.26 (control of VOC emissions from reinforced plastic manufacturing) which was previously approved into the Maryland SIP. In addition to adopting EPA's CTG standards, COMAR 26.11.19.26-1 includes numerous terms and definitions to support the interpretation of the measures, as well as work practices for cleaning, compliance and monitoring requirements, sampling and testing, and record keeping requirements. The amendment to COMAR 26.11.19.26 at COMAR 26.11.19.26A exempts fiberglass boat manufacturing to avoid duplicative or conflicting requirements. Prior to Maryland's new COMAR 26.11.19.26-1, fiberglass boat manufacturing materials were covered under COMAR 26.11.19.26 which did not address fully EPA's CTG requirements. Thus, with COMAR 26.11.19.26-1 now addressing fiberglass boat manufacturing materials, Maryland has revised COMAR 26.11.19.26A to clarify and exempt fiberglass boat manufacturing materials from COMAR 26.11.19.26A as these are now clearly addressed in COMAR 26.11.19.26-1. EPA finds the provisions in COMAR 26.11.19.26-1 identical to the CTG standards for fiberglass boat manufacturing materials and therefore approvable in accordance with sections 172(c)(1) and 184(b)(1)(B) of the CAA.

    III. Final Action

    EPA is approving the Maryland SIP revision adding new regulation COMAR 26.11.19.26-1 and amending COMAR 26.11.19.26, which was submitted on December 23, 2015, because it meets the requirement to adopt RACT for sources covered by EPA's CTG standards for fiberglass boat manufacturing materials. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of this Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on September 30, 2016 without further notice unless EPA receives adverse comment by August 31, 2016. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    IV. Incorporation by Reference

    In this rulemaking action, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of COMAR 26.11.19.26-1 and an amendment to COMAR 26.11.19.26 into the Maryland SIP. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or may be viewed at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    V. Statutory and Executive Order Reviews A. General Requirements

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

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

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

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

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

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

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

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

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

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

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

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the “Proposed Rules” section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

    This action to approve the Maryland SIP revision adding new regulation COMAR 26.11.19.26-1 and amending COMAR 26.11.19.26 may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Ozone, Volatile organic compounds.

    Dated: July 15, 2016. Shawn M. Garvin, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart V—Maryland 2. In § 52.1070, the table in paragraph (c) is amended by revising the entry for “26.11.19.26” and adding in numerical order the entry for “26.11.19.26-1” to read as follows:
    § 52.1070 Identification of plan.

    (c) * * *

    EPA-Approved Regulations, Technical Memoranda, and Statutes in the Maryland SIP Code of Maryland
  • Administrative
  • Regulations
  • (COMAR) citation
  • Title/subject State
  • effective
  • date
  • EPA approval date Additional explanation/
  • citation at 40 CFR 52.1100
  • *         *         *         *         *         *         * 26.11.19 Volatile Organic Compounds From Specific Processes *         *         *         *         *         *         * 26.11.19.26 Control of Volatile Organic Compound Emissions from Reinforced Plastic Manufacturing 09/28/15 8/1/16 [Insert Federal Register citation] Amendment to .26A. 26.11.19.26-1 Control of Volatile Organic Compound Emissions from Fiberglass Boat Manufacturing 09/28/15 8/1/16 [Insert Federal Register citation] New Regulation. *         *         *         *         *         *         *
    [FR Doc. 2016-17809 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0280; FRL-9947-70-Region 9] Revisions to California State Implementation Plan; Bay Area Air Quality Management District; Stationary Source Permits AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is finalizing a limited approval and limited disapproval of revisions to Regulation 2, Rules 1 and 2 for the Bay Area Air Quality Management District (BAAQMD or District) portion of the California State Implementation Plan (SIP) submitted on April 22, 2013. These revisions consist of significant updates to rules governing the issuance of permits for stationary sources, including review and permitting of major sources and major modifications under parts C and D of title I of the Clean Air Act (CAA). Under the authority of the CAA, this action simultaneously approves a local rule that regulates permit requirements for stationary sources and directs the BAAQMD to correct rule deficiencies.

    DATES:

    These rules will be effective on August 31, 2016.

    ADDRESSES:

    The EPA has established docket number EPA-R09-OAR-2015-0280 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.

    FOR FURTHER INFORMATION CONTACT:

    Shaheerah Kelly, EPA Region 9, (415) 947-4156, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Proposed Action II. Summary of Public Comments and EPA Responses III. EPA Action IV. Incorporation by Reference V. Statutory and Executive Order Review Definitions

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

    (i) The word or initials Act or CAA mean or refer to the Clean Air Act, unless the context indicates otherwise.

    (ii) The initials ATC mean or refer to the authority to construct permit.

    (iii) The word or initials BAAQMD or District mean or refer to the Bay Area Air Quality Management District.

    (iv) The initials CFR mean or refer to Code of Federal Regulations.

    (v) The initials or words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

    (vi) The initials ERCs mean or refer to Emission Reduction Credits.

    (vii) The initials FLM mean or refer to Federal Land Manager.

    (viii) The initials FR mean or refer to Federal Register.

    (ix) The initials NSR mean or refer to New Source Review.

    (x) The initials PM 2.5 mean or refer to particulate matter with an aerodynamic diameter of less than or equal to 2.5 micrometers (fine particulate matter).

    (xi) The initials PSD mean or refer to Prevention of Significant Deterioration.

    (xii) The initials PTE mean or refer to potential to emit.

    (xiii) The initials SIP mean or refer to State Implementation Plan.

    (xiv) The initials SO 2 mean or refer to sulfur dioxide.

    (xv) The initials TSD mean or refer to the technical support document for the proposed action.

    I. Proposed Action

    On August 28, 2015, the EPA proposed a limited approval and limited disapproval of the rules listed in Table 1 that were submitted for incorporation into the California SIP. 80 FR 52236 (Aug. 28, 2015). Our detailed analysis of these rules is provided in the TSD and Federal Register notice for the proposed rulemaking for this SIP revision approval action.

    Table 1—Submitted NSR Rules Regulation & rule No. Rule title Adopted/amended Submitted Regulation 2, Rule 1 (2-1) Permits, General Requirements 12/19/12 4/22/13 Regulation 2, Rule 2 (2-2) Permits, New Source Review 12/19/12 4/22/13

    We proposed a limited approval because we determined that these rules strengthen the SIP and are largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with CAA section 110, including Parts C and D, and the regulations implementing those laws. The disapproved provisions include the following:

    1. The definitions of “agricultural source” in Section 2-1-239 and “large confined animal facility” used in Section 2-1-424 rely on other definitions and provisions in District rules that are not SIP approved. (See our evaluation of Sections 2-1-239 and 2-1-424 in section 6.1.2 of the TSD.)

    2. Section 2-1-234, subparagraph 2.2, is deficient because it does not satisfy the PSD provisions at 40 CFR 51.166(a)(7) and 51.166(r)(6) & (7), which require PSD programs to contain specific applicability procedures and recordkeeping provisions. (See our evaluation of Section 2-1-234 in sections 6.1.2 and 7.2.2 of the TSD.)

    3. The same deficiency discussed above for the PSD provisions applies to the nonattainment NSR provisions. Section 2-1-234, subparagraph 2.1, does not satisfy the requirements of 51.165(a)(2) and 51.165(a)(6) & (7), which require nonattainment NSR programs to contain specific applicability procedures and recordkeeping provisions. (See our evaluation of Section 2-1-234 in sections 6.1.2 and 7.3.12 of the TSD.)

    4. The definition of the term “PSD pollutant” as defined in Section 2-2-223, which is used in place of the federal definition for the term “regulated NSR pollutant,” is deficient because it explicitly excludes nonattainment pollutants. (See our evaluation of Sections 2-2-223 and 2-2-224 in sections 6.2.2 and 7.2.3 of the TSD.)

    5. Section 2-2-305 does not require written approval of the Administrator prior to using any modified or substituted air quality model as provided in subsection 3.2.2 of 40 CFR 51, appendix W. (See our evaluation of Section 2-2-305 in sections 6.2.3 and 7.2.15 of the TSD.)

    6. Section 2-2-611 does not include the requirement regarding “any other stationary source category which as of August 7, 1980, is being regulated under section 111 or 112 of the Act” in the list of source categories that must include fugitive emissions to determine whether a source is a major facility. (See our evaluation of Section 2-2-611 in sections 6.2.6 and 7.3.10 of the TSD.)

    7. Section 2-2-401.4 only requires a visibility analysis for sources that are located within 100 km of a Class I area, rather than for any source that “may have an impact on visibility” in any mandatory Class I Federal Area, as required by 40 CFR 51.307(b)(2). (See our evaluation of Section 2-2-401.4 in sections 6.2.4 and 7.3.9 of the TSD.)

    8. Section 2-2-411 pertaining to Offset Refunds does not contain any timeframe for obtaining an offset refund. (See our evaluation of Section 2-2-411 in section 6.2.4 of the TSD.)

    9. The Offset Program Equivalence demonstration required by Section 2-2-412 does not provide a remedy if the District fails to make the required demonstration. (See our evaluation of Section 2-2-412 in section 6.2.4 of the TSD.)

    10. Subsection 2-2-605.2 allows existing “fully-offset” sources to generate ERCs based on the difference between the post-modification PTE and the pre-modification PTE. Emission reductions intended to be used as offsets for new major sources or major modifications are only creditable if they are reductions of actual emissions, not reductions in the PTE of a source. (See our evaluation of Section 2-2-605 in sections 6.2.6, 7.3.3, 7.3.13, and 7.3.22 of the TSD.)

    11. Subsection 2-2-606.2, as it applies to major modifications, does not require “fully-offset” sources to calculate the emission increases from a proposed major modification based on the difference between the post-modification PTE and the pre-modification actual emissions as required by 40 CFR 51.165(a)(3)(ii)(J). (See our evaluation of Section 2-2-606 in sections 6.2.6 and 7.3.22 of the TSD.)

    In addition, we had proposed a limited disapproval of Section 2-2-308. (See our evaluation of Section 2-2-308 in sections 6.2.3 and 7.4.1 of the TSD.) We also proposed to find the rules were deficient because they did not require a demonstration that a new source meet all applicable SIP requirements as required by 40 CFR 51.160(b)(1). (See section 7.4.1 in the TSD.) For the reasons discussed in sections 2.2 and 2.3 of our Response to Comments document, we are not finalizing our proposed disapproval of Section 2-2-308 or the proposed deficiency based on the requirements of 40 CFR 51.160(b)(1).

    II. Summary of Public Comments and EPA Responses

    Our August 28, 2015 proposed rulemaking provided a 30-day public comment period. The EPA granted a request from BAAQMD to extend the public comment period until November 12, 2015, which is the date the public comment period ended. We received comments from BAAQMD and the California Council for Environmental and Economic Balance (CCEEB).1 We also received a comment letter from the Sacramento Metropolitan Air Quality Management District (SMAQMD) after the public comment period ended. We received an anonymous, non-substantive comment letter and a comment letter submitted on behalf of the California Air Pollution Control Officers Association (CAPCOA) that was withdrawn during the comment period. Our Response to Comments document in the docket for this action contains a summary of the comments and the EPA's responses. The full text of the public comments, as well as all other documents relevant to this action, are available in the docket (visit http://www.regulations.gov and search for Docket ID: EPA-R09-OAR-2015-0280). Below, we briefly summarize the significant comments and our responses to the major issues raised by commenters.

    1 Each of the comments contained in CCEEB's comment letter mirrored issues raised in the BAAQMD comment letter, therefore the comment summary provided in this notice does not attribute specific comments to CCEEB. Please see the Response to Comments documents for more information.

    Comment 1: BAAQMD commented that the CAA is designed to achieve “cooperative federalism”, and that the EPA should defer to the District's policy choices on how to implement its NSR program.

    Response 1: The EPA understands its role under the cooperative federalism approach established under the CAA and we have applied the appropriate standard in reviewing the BAAQMD's NSR rules.

    Comment 2: BAAQMD disagrees with the EPA's limited disapproval of Section 2-2-308 as it relates to satisfying the requirements in 40 CFR 51.160(b).

    Response 2: We are not finalizing our limited disapproval of Section 2-2-308 as it relates to 40 CFR 51.160(b)(2) for the reasons discussed in our Response to Comments document. Accordingly, the EPA is finalizing approval of Section 2-2-308.

    Comment 3: BAAQMD disagrees with the EPA's limited disapproval of the District NSR rules because it did not contain a prohibition on the issuance of an ATC if the project does not meet all applicable requirements of the control strategy as required in 40 CFR 51.160(b)(1). BAAQMD commented that Sections 2-1-304 and 2-1-321 satisfy this requirement.

    Response 3: The EPA is not finalizing our proposed limited disapproval of this issue because Section 2-1-304 satisfies the control strategy requirement in 40 CFR 51.160(b)(1). The EPA is finalizing approval of Section 2-1-304 as satisfying requirement in 40 CFR 51.160(b)(1).

    Comment 4: BAAQMD disagrees with the EPA's proposed limited disapproval of Section 2-2-602.2 for determining the amount of offsets required for major modifications that will be constructed at major sources that have previously provided offsets equal to the source's PTE when the modification will not increase the PTE of the source.

    Response 4: The EPA is finalizing our limited disapproval regarding this issue. 40 CFR 51.165(a)(3)(ii)(J) directs SIPs to include rules to ensure that the total tonnage of increased emissions, in tons per year, resulting from a major modification that must be offset in accordance with section 173 of the Act shall be determined by summing the difference between the allowable emissions after the modification and the actual emissions before the modification. This provision requires providing offsets for each major modification at a major source in an amount equal to the difference between pre-modification actual emissions and post-modification PTE.

    Comment 5: BAAQMD disagrees with the EPA's proposed limited disapproval of the PTE-to-PTE calculation method for determining the amount of ERCs generated from sources that have provided offsets up to their full PTE and that are being shut down.

    Response 5: The EPA is finalizing its limited disapproval on this issue because offsets are required to be generated from reductions in actual emissions consistent with CAA section 173(a) and (c) and 40 CFR 51.165(a)(3).

    Comment 6: BAAQMD comments that the EPA cannot require nonattainment offsets for SO2 because the San Francisco Bay Area is not designated as nonattainment for SO2.

    Response 6: The EPA is finalizing its limited disapproval on this issue because 40 CFR 51.165(a)(1)(xxxvii) specifies that sulfur dioxide is a precursor in all PM2.5 nonattainment areas and the BAAQMD is designated nonattainment for the 2006 PM2.5 National Ambient Air Quality Standards.

    Comment 7: BAAQMD comments that the EPA's visibility regulations at 40 CFR 51.307(b) do not specify what projects “may have an impact” on visibility at Federal Class I areas, therefore it is acceptable to use a 100-km radius to meet the requirement.

    Response 7: The EPA is finalizing its limited disapproval on this issue because the EPA's visibility regulations require a new major source or major modification that “may have an impact on visibility” at a Federal mandatory Class I area to conduct a visibility analysis on a case-by-case basis in consultation with the applicable FLM.

    Comment 8: BAAQMD requests that the EPA confirm that the limited approval and limited disapproval action will make the BAAQMD's NSR rules as a whole part of the California SIP and federally enforceable under the CAA.

    Response 8: Regulation 2, Rules 1 and 2 will become the federally enforceable NSR program in the SIP for BAAQMD subject to an obligation to correct rule deficiencies listed in Section I of this Federal Register document.

    III. EPA Action

    For the reasons provided in our proposed rule and above in response to comments, pursuant to section 110(k) of the CAA, the EPA is finalizing a limited approval and limited disapproval of the submitted BAAQMD rules, listed in Table 1 above, into the California SIP. Regulation 2, Rules 1 and 2 will become the federally enforceable NSR program in the SIP for BAAQMD subject to an obligation to correct the rule deficiencies listed in Section I of this Federal Register document. We are finalizing a limited approval because incorporating the BAAQMD permitting rules will strengthen and update the BAAQMD portion of the California SIP. We are finalizing our limited disapproval because some of the BAAQMD permitting rules do not comply with federal NSR requirements.

    We are finalizing our action as proposed, except for the limited disapprovals regarding Sections 2-2-308 and the requirements of 40 CFR 51.160(a) and (b). Accordingly, the EPA will finalize approval of these provisions.

    Our limited disapproval action will trigger an obligation for the EPA to promulgate a Federal Implementation Plan under CAA section 110(c) unless California corrects the deficiencies that are the bases for the limited disapproval, and the EPA approves the related rule revisions, within 24 months of the effective date of this final action. In addition, sanctions will be imposed unless the EPA approves subsequent SIP revisions that correct the rule deficiencies within 18 months of the effective date of this action. These sanctions will be imposed under section 179 of the Act and 40 CFR 52.31.

    The District has been implementing the federal PSD permitting program based on a delegation agreement with the EPA pursuant to 40 CFR 52.21(u).2 Despite limited deficiencies, this final action approving the District's PSD permitting program into the SIP means that the District will be the PSD permitting authority on the effective date of this final action. Concurrent with the EPA's approval of the District's rules, all PSD permits for sources located in the BAAQMD issued directly by the EPA or under the PSD delegation agreement are being transferred to the District. A list of these EPA-issued permits is included in the docket for this rulemaking action.

    2 On June 21, 2004, the EPA issued a PSD delegation agreement, which was updated on January 20, 2006, February 4, 2008, and March 9, 2011.

    IV. Incorporation by Reference

    The EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the BAAQMD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through http://www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    V. Statutory and Executive Order Review

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

    E. Executive Order 13132: Federalism

    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.

    F. Executive Order 13175: Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental 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 impose additional requirements beyond those imposed by state law.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Population

    The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    L. Petitions for Judicial Review

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: June 3, 2016. Alexis Strauss, Acting Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

    PART 52—[AMENDED] 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by adding paragraphs (c)(182)(i)(B)(7) and (c)(199)(i)(A)(9) and (c)(202)(i)(A)(2) and (c)(429)(i)(E)(1) and (2) to read as follows:
    § 52.220 Identification of plan.

    (c) * * *

    (182) * * *

    (i) * * *

    (B) * * *

    (7) Previously approved on January 26, 1999 in paragraph (c)(182)(i)(B)(6) of this section and now deleted with replacement in (c)(429)(i)(E)(1), Regulation 2, Rule 1 adopted on November 1, 1989.

    (199) * * *

    (i) * * *

    (A) * * *

    (9) Previously approved on January 26, 1999 in paragraph (c)(199)(i)(A)(8) of this section and now deleted with replacement in (c)(429)(i)(E)(2), Regulation 2, Rule 2 adopted on June 15, 1994.

    (202) * * *

    (i) * * *

    (A) * * *

    (2) Previously approved on April 3, 1995 in paragraph (c)(202)(i)(A)(1) of this section and now deleted with replacement in (c)(429)(i)(E)(1), Rule 2-1-249, adopted on June 15, 1994.

    (429) * * *

    (i) * * *

    (E) Bay Area Air Quality Management District.

    (1) Regulation 2, “Permits,” Rule 1, “General Requirements,” adopted on December 19, 2012.

    (2) Regulation 2, “Permits,” Rule 2, “New Source Review,” adopted on December 19, 2012.

    3. Section 52.270 is amended by adding paragraph (b)(16) to read as follows:
    § 52.270 Significant deterioration of air quality.

    (b) * * *

    (16) The PSD program for the Bay Area Air Quality Management District (BAAQMD), as incorporated by reference in § 52.220(c)(429)(i)(E)(2), is approved under part C, subpart 1, of the Clean Air Act. For PSD permits previously issued by EPA pursuant to § 52.21 to sources located in the BAAQMD, this approval includes the authority for the BAAQMD to conduct general administration of these existing permits, authority to process and issue any and all subsequent permit actions relating to such permits, and authority to enforce such permits.

    [FR Doc. 2016-17904 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2014-0617; A-1-FRL-9950-03-Region 1] Air Plan Approval; VT; Prevention of Significant Deterioration, Nonattainment and Minor New Source Review AGENCY:

    Environmental Protection Agency.

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving three State Implementation Plan (SIP) revisions submitted by the State of Vermont. These revisions primarily amend several aspects of Vermont's new source review permitting regulations. The permitting revisions are part of Vermont's major and minor stationary source preconstruction permitting programs, and are intended to align Vermont's regulations with the federal new source review regulations. The revisions also contain amendments to other Clean Air Act (CAA) requirements, including updating the State's ambient air quality standards and certain emissions limits for sources of nitrogen oxides and sulfur dioxide. This action is being taken in accordance with the Clean Air Act.

    DATES:

    This direct final rule will be effective September 30, 2016, unless EPA receives adverse comments by August 31, 2016. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2014-0617 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Ida E. McDonnell, Manager, Air Permits, Toxics, and Indoor Programs Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square, Suite 100, (OEP05-2), Boston, MA 02109-3912, phone number (617) 918-1653, fax number (617) 918-0653, email [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    I. Background and Purpose A. Clean Air Act Permitting B. State Ambient Air Quality Standards II. Summary of State Submittals A. 1993 SIP Revision B. 2011 SIP Revision C. 2014 SIP Revision III. Final Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background and Purpose A. Clean Air Act Permitting

    In the Clean Air Act Amendments of 1990, nonattainment new source review (NNSR) requirements were expanded to include ozone attainment areas within the Ozone Transport Region (OTR). The federal regulations at 40 CFR 51.165 contain the minimum elements that a State's preconstruction permitting program for major stationary sources in nonattainment areas (and in the OTR) must contain in order for EPA to approve the State's program into the SIP.

    On November 29, 2005 (70 FR 71612), EPA promulgated the “Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2; Final Rule to Implement Certain Aspects of the 1990 Amendments Relating to New Source Review and Prevention of Significant Deterioration as They Apply in Carbon Monoxide, Particulate Matter, and Ozone NAAQS; Final Rule for Reformulated Gasoline” (Phase 2 Rule). Among other requirements, the Phase 2 Rule obligated states to revise their Prevention of Significant Deterioration (PSD) programs to explicitly identify nitrogen oxides (NOX) as a precursor to ozone. This requirement was codified in 40 CFR 51.166, and requires that states submit SIP revisions incorporating the requirements of the rule, including specific provisions treating NOX as a precursor to ozone, by June 15, 2007. See 70 FR 71612 at 71683, November 29, 2005.

    On May 16, 2008 (73 FR 28321), EPA issued the Final Rule on the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” (2008 NSR Rule). The 2008 NSR Rule finalized several new requirements for SIPs to address sources that emit direct PM2.5, and other pollutants that contribute to secondary PM2.5 formation. One of these requirements is for NSR permits to address pollutants responsible for the secondary formation of PM2.5, otherwise known as precursor pollutants. In the 2008 rule, EPA identified precursors to PM2.5 for the PSD program to be sulfur dioxide (SO2) and NOX (unless the state demonstrates to the Administrator's satisfaction, or EPA demonstrates, that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The 2008 NSR Rule also specifies that volatile organic compounds (VOCs) are not considered to be precursors to PM2.5 in the PSD program, unless the state demonstrates to the Administrator's satisfaction, or EPA demonstrates, that emissions of VOCs in an area are significant contributors to that area's ambient PM2.5 concentrations. The explicit references to SO2, NOX and VOCs as they pertain to secondary PM2.5 formation are codified at 40 CFR 51.166(b)(49)(i)(b) and 52.21(b)(50)(i)(b). As part of identifying pollutants that are precursors to PM2.5, the 2008 NSR Rule also required states to revise the definition of “significant” as it relates to a net emissions increase or the potential of a source to emit pollutants. Specifically, 40 CFR 51.166(b)(23)(i) and 52.21(b)(23)(i) define “significant” for PM2.5 to mean the following emissions rates: 10 tons per year (tpy) of direct PM2.5; 40 tpy of SO2; and 40 tpy of NOX (unless the state demonstrates to the Administrator's satisfaction, or EPA demonstrates, that NOX emissions in an area are not a significant contributor to that area's ambient PM2.5 concentrations). The deadline for states to submit SIP revisions to their PSD programs incorporating these changes was May 16, 2011. See 73 FR 28321 at 28341, May 16, 2008.

    The 2008 NSR Rule did not require states to immediately account for gases that could condense to form particulate matter, known as condensables, in PM2.5 and PM10 emission limits in NSR permits. Instead, EPA determined that states had to account for PM2.5 and PM10 condensables for applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits beginning on or after January 1, 2011. See 73 FR 28321 at 28334. This requirement is codified in 40 CFR 51.166(b)(49)(i)(a) and 52.21(b)(50)(i)(a). Revisions to states' PSD programs incorporating the inclusion of condensables were required to be submitted to EPA by May 16, 2011. See 73 FR 28321 at 28341.

    On October 20, 2010, EPA issued the final rule on the “Prevention of Significant Deterioration (PSD) for Particulate Matter Less Than 2.5 Micrometers (PM2.5)—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration (SMC)” (2010 PSD Rule). See 75 FR 64864. This rule established several components for making PSD permitting determinations for PM2.5, including a system of “increments,” which is the mechanism used to estimate significant deterioration of ambient air quality for a pollutant. These increments are codified in 40 CFR 51.166(c) and 40 CFR 52.21(c). The 2010 PSD Rule also established a new “major source baseline date” for PM2.5 as October 20, 2010, and a new trigger date for PM2.5 as October 20, 2011. These revisions are codified in 40 CFR 51.166(b)(14)(i)(c) and (b)(14)(ii)(c), and 52.21(b)(14)(i)(c) and (b)(14)(ii)(c). Lastly, the 2010 PSD Rule revised the definition of “baseline area” to include a level of significance of 0.3 micrograms per cubic meter, annual average, for PM2.5. This change is codified in 40 CFR 51.166(b)(15)(i) and 52.21(b)(15)(i).

    B. State Ambient Air Quality Standards

    Section 109 of the CAA directs EPA to establish NAAQS requisite to protect public health with an adequate margin of safety (primary standard) and for the protection of public welfare (secondary standard). Section 109(d)(1) of the CAA requires EPA to complete a thorough review of the NAAQS at 5-year intervals and promulgate new standards when appropriate. Additionally, Section 107 of the CAA requires the establishment of air quality control regions for the purpose of implementing the NAAQS.

    On October 17, 2006 (71 FR 61144), EPA revised the primary and secondary 24-hour NAAQS for fine particulate matter (PM2.5) to 35 micrograms per cubic meter and retained the primary and secondary 24-hour NAAQS for coarse particulate matter (PM10) of 150 micrograms per cubic meter. EPA revoked the annual standard for PM10. This final rule became effective on December 18, 2006.

    On March 27, 2008 (73 FR 16436), EPA revised the NAAQS for ozone, setting the level of the primary and secondary 8-hour standard to 0.075 parts per million. This final ozone standard rule became effective on May 27, 2008. On October 26, 2015 (80 FR 65292), EPA revised the NAAQS for ozone, setting the level of the primary and secondary 8-hour standard to 0.070 parts per million. This final ozone standard rule became effective on December 28, 2015.

    On November 12, 2008 (73 FR 66964), EPA revised the NAAQS for lead, setting the level of the primary and secondary standard to 0.15 micrograms per cubic meter and revised the averaging time to a rolling 3-month period with a maximum (not-to-be-exceeded) form, evaluated over a 3-year period. The final lead standard rule became effective on January 12, 2009.

    On February 9, 2010 (75 FR 6474), EPA revised the NAAQS for oxides of nitrogen as measured by nitrogen dioxide (NO2). EPA established a 1-hour primary standard for NO2 at a level of 100 parts per billion, based on the 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations, to supplement the existing primary and secondary annual standard of 53 parts per billion (See 61 FR 52852, October 8, 1996). The final NO2 rule became effective on April 12, 2010.

    On June 22, 2010 (75 FR 35520), EPA revised the NAAQS for oxides of sulfur as measured by sulfur dioxide (SO2). EPA established a new 1-hour SO2 primary standard at a level of 75 parts per billion, based on the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. EPA also revoked both the previous 24-hour and annual primary SO2 standards. EPA did not revise the existing secondary standard of 0.5 part per million averaged over 3 hours and not to be exceeded more than once per year. This final rule became effective on August 23, 2010.

    On January 15, 2013 (78 FR 3086), EPA revised the primary PM2.5 annual NAAQS, lowering the standard to 12.0 micrograms per cubic meter. The final rule became effective on March 18, 2013.

    II. Summary of State Submittals A. 1993 SIP Revision

    On August 9, 1993, the Vermont Department of Environmental conservation (VT DEC) submitted a revision to its State Implementation Plan (SIP) addressing the nonattainment new source review (NNSR) and reasonable available control technology (RACT) requirements of the 1990 Clean Air Act Amendments (1993 SIP submittal). The submittal consisted of several changes to the State's regulations as well as a SIP narrative. In 1998, EPA approved the revisions dealing with the RACT requirements. See 63 FR 19825, April 22, 1998.

    In a letter dated July 13, 2016, Vermont withdrew the SIP narrative and a number of definitions that were either already approved into the SIP or were determined not to be required to be in the SIP. The State also withdrew certain provisions of APCR, Subchapter V, Sections 5-502(3), (6), and (7) because revised versions of those provisions were resubmitted by the State on February 14, 2011. We are therefore not acting on those provisions withdrawn by the State from the 1993 SIP submittal.

    EPA is approving the definition of “Federally Enforceable” in Section 5-101 from the 1993 SIP submittal.

    B. 2011 SIP Revision

    On February 14, 2011, the VT DEC submitted a revision to its SIP addressing EPA's Greenhouse Gas Tailoring Rule, certain other aspects of the State's preconstruction permitting requirements, and certain emissions limits for sources of nitrogen oxides and sulfur dioxide (2011 SIP submittal). In 2012, EPA approved the portions of the 2011 SIP submittal that related to EPA's Greenhouse Gas Tailoring Rule. See 77 FR 60907, October 5, 2012.

    In a letter dated July 13, 2016, VT DEC withdrew some, but not all, of the revisions included in the 2011 SIP submittal. The State withdrew these provisions for various reasons; either because additional information needs to be submitted before EPA could approve certain provisions into the SIP, Vermont intends in the near future to revise certain provisions and resubmit them to EPA, certain provisions were already in the SIP, or certain provisions were determined not to be required to be in the SIP.

    We are approving the following provisions contained in the 2011 SIP submittal: 1

    1 For a more detailed listing of these provisions and the specific language in question, please see EPA's Technical Support Document (TSD) included in the administrative record and docket.

    a. A clarification to the definition of the term “Federal Land Manger.”

    b. Provisions containing emissions limits for certain categories of sources that emit NOX and SO2. (In a letter dated July 13, 2016, Vermont submitted a technical demonstration consistent with section 110(l) of the Clean Air Act, showing that the changes to the applicability of these emissions limits will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA. See EPA's TSD for a more detailed analysis.)

    c. A provision clarifying what type of operations would be considered asphalt batch plants and would be required to obtain a minor new source review permit for any new or modified source.

    d. Provisions clarifying Vermont's authority to request sources to submit written reports.

    e. Provisions (further revised in a 2014 SIP submission) providing the State with the authority to require air dispersion modeling on a case-by-case basis for minor sources, and containing the procedures a source must follow when providing an impact analysis on ambient air quality in order for the source to obtain a PSD permit.

    f. Provisions requiring sources to obtain a permit prior to construction, and providing the State with the authority to deny a permit for a project that would not be in compliance with the state permitting regulations. (We note that these provisions are codified in the State's submittal as APCR Section 5-501(4). However, the existing approved SIP already contains an APCR Section 5-501(4) that relates to a different topic. Thus, our approval of this new APCR Section 5-501(4) will appear in the SIP after existing Section APCR 5-501(4). This codification issue arose because the State has amended its regulations over time at the state level and did not submit the entire revised regulation to EPA for approval into the SIP. EPA believes that implementation of the State's permitting program and the enforceability of these provisions as part of that program will not be compromised because the provisions will have been approved by EPA on separate dates. Thus, in future legal proceedings, a complete and accurate citation to one of these two provisions should also include the date upon which EPA approved the provision in question into Vermont's SIP in order to distinguish clearly one from the other.)

    g. Provisions (further revised in a 2014 SIP revision) specifying which entities, including affected states and federal land managers, are to receive notification when a source is subject to major new source review. (We note that one of these provisions is codified in the State's submittal as APCR Section 5-501(6). However, the existing approved SIP already contains an APCR Section 5-501(6) that relates to a different topic. Thus, our approval of this new APCR Section 5-501(6) will appear in the SIP after existing APCR Section 5-501(6). This codification issue arose because the State has amended its regulations over time at the state level and did not submit the entire revised regulation to EPA for approval into the SIP. EPA believes that implementation of the State's permitting program and the enforceability of these provisions as part of that program will not be compromised because the provisions will have been approved by EPA on separate dates. Thus, in future legal proceedings, a complete and accurate citation to one of these two provisions should also include the date upon which EPA approved the provision in question into Vermont's SIP in order to distinguish clearly one from the other.)

    h. A provision prohibiting a major new source or major modification from initiating construction prior to obtaining a construction permit.

    i. Provisions (further revised in a 2014 SIP submittal) requiring new major sources and major modifications to conduct an air quality impact analysis.

    j. Provisions containing requirements for major new sources and major modifications that are subject to nonattainment new source review under Part D of the CAA because Vermont is located within the ozone transport region.

    EPA is approving the provisions identified above in subparagraphs a. through j. See EPA's TSD for more detailed information.

    C. 2014 SIP Revision

    On July 25, 2014, the VT DEC submitted a revision to its SIP primarily addressing permitting requirements for PM2.5 emissions (2014 SIP submittal). In a letter dated July 13, 2016, VT DEC withdrew some, but not all, of the revisions the State requested in its 2014 SIP submittal. The State withdrew these provisions for various reasons; either because more information would be needed before certain provisions could be approved by EPA into the SIP, one provision was erroneously submitted, or Vermont intends in the near future to revise certain provisions and resubmit them to EPA.

    We are approving the following contained in the State's 2014 SIP submittal:

    a. Nine new and two revised definitions in APC Section 5-101 that were contained in the 2014 SIP submittal. The new definitions are of the terms: (1) “Municipal Waste Combustor Acid Gases (measured as sulfur dioxide and hydrogen chloride)”; (2) “Municipal Waste Combustor Metals (measured as particulate matter)”; (3) “Municipal Waste Combustor Organics (measured as total tetra- through octa-chlorinated debenzo-p-dioxins and dibenzofurans)”; (4) “Municipal Solid Waste Landfill Emissions (measured as nonmethane organic compounds)”; (5) “Particulate Matter Emissions”; (6) “PM10,”; (7) “PM10 emissions”; (8) “PM2.5”; and (9) “PM2.5 direct emissions.” The two revised definitions are of the terms: (1) “Significant”; and (2) “Particulate Matter.”

    b. A provision which removes an exemption for wood coating operations from the SIP rule for “Other Sources That Emit Volatile Organic Compounds.”

    c. Provisions that revise the State's Ambient Air Quality Standards for the criteria air pollutants.2

    2 Because the state adopted these state ambient air quality standards in 2014, Vermont's regulations do not contain an ambient air quality standard for ozone that is equivalent to the federal 2015 ozone standard. However, the ozone standard we are approving is consistent with the 2008 federal ozone standard.

    d. Provisions that (as stated earlier) contain requirements for sources to follow when submitting an ambient air impact analysis in relation to a PSD permit. The revision was made to clarify that a source's analysis must follow EPA's procedures at 40 CFR part 51, Appendix W.

    e. Provisions that slightly revise the requirements that apply to a new or modified source that otherwise would have been subject to minor new source review to be classified as major based on the impact on ambient air from the source's allowable emissions.

    f. Provisions (as stated earlier) require the State to notify certain entities of a proposed PSD permit, including affected states and federal land managers.

    g. Provisions (as stated earlier) that require sources subject to PSD to conduct and submit an ambient air quality impact analysis.

    h. A provision that requires a source subject to PSD to demonstrate that it will not cause an adverse impact on visibility or any air quality related value in any Class I area.

    (i) A provision requiring a source subject to PSD to gather ambient monitoring data representative of the area in which the source is located. (We note that this provision is codified at APCR Section 5-502(8)(b) of the State's regulation and will be approved into the SIP with that same codification. Because the codification of, and provisions contained in, the State's regulations have changed over the years, and the State's 2014 SIP submittal did not include all of the State's current ambient air quality monitoring provisions, APCR Section 5-502(8)(b) will appear after and separately from the already approved SIP revisions in APCR Section 5-502(7), which also relate to ambient air quality monitoring; the one exception is that the current SIP provision at APCR Section 5-502(7)(b) will no longer be in the SIP because it is being replaced by APCR 5-502(8)(b). EPA believes that implementation of the State's permitting program and the enforceability of these provisions as part of that program will not be compromised because the provisions will have been approved by EPA on separate dates. Thus, in future legal proceedings, a complete and accurate citation to these provisions should also include the date upon which EPA approved the provision in question into Vermont's SIP in order to distinguish clearly one from the other.)

    III. Final Action

    Based on the analysis contained in the Technical Support Document, EPA is approving the following sections of Vermont's APCR:

    Within APCR Subchapter I: Definitions:

    1. “Federal Land Manager”

    2. “Federally Enforceable”

    3. “Municipal Waste Combustor Acid Gases (measured as sulfur dioxide and hydrogen chloride)”

    4. “Municipal Waste Combustor Metals (measured as particulate matter)”

    5. “Municipal Waste Combustor Organics (measured as total tetra- through octa-chlorinated debenzo-p-dioxins and dibenzofurans)”

    6. “Municipal Solid Waste Landfill Emissions (measured as nonmethane organic compounds)”

    7. “Particulate Matter”

    8. “Particulate Matter Emissions”

    9. “PM10

    10. “PM10 emissions”

    11. “PM2.5

    12. “PM2.5 direct emissions”

    13. “Significant”

    Within APCR Subchapter II: Prohibitions:

    1. Section 5-5-251: Control of Nitrogen Oxide Emissions.

    2. Section 5-252: Control of Sulfur Dioxide Emissions.

    3. Section 5-253.20(a)(3): Applicability for Other Sources That Emit Volatile Organic Compounds.

    Within APCR Subchapter III: Ambient Air Quality Standards:

    1. Section 5-301: Scope.

    2. Section 5-302: Sulfur oxides (sulfur dioxide).

    3. Section 5-303: Reserved.

    4. Section 5-304: Particulate Matter PM2.5.

    5. Section 5-306: Particulate Matter PM10.

    6. Section 5-307: Carbon Monoxide.

    7. Section 5-308: Ozone.

    8. Section 5-309: Nitrogen Dioxide.

    9. Section 5-310: Lead.

    Within APCR Subchapter IV: Operations and Procedures:

    1. Section 4-401(2): Hot Mix Asphalt Batch Plants.

    2. Section 4-402: Written Reports When Requested.

    3. Section 5-406: Required Air Modeling.

    Within APCR Subchapter V: Review of New Air Contaminant Sources:

    1. Section 5-501: Review of Construction or Modification of Air Contaminant Sources. EPA is approving subsections (1), (4), (5), (6), and (7)(c) of this section.

    2. Section 5-502: Major Stationary Sources and Major Modifications: EPA is approving subsections (2), (4)(a), (4)(b), (4)(e), (6)(b), and (8)(b).

    The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective September 30, 2016 without further notice unless the Agency receives relevant adverse comments by August 31, 2016.

    If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 30, 2016 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of Vermont's Air Pollution Control Regulations described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov.

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

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

    Dated: July 20, 2016. H. Curtis Spalding, Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart UU—Vermont 2. In § 52.2370(c) the Table “EPA Approved Vermont Regulations” is amended by: a. Revising state citation entries for Sections 5-101, 5-251, 5-252, 5-253.20, 5-301, 5-302, 5-303, 5-306, 5-307, 5-308, 5-309, 5-310, 5-401, 5-402, 5-406, 5-501, and 5-502; and b. Adding state citation entries Sections 5-304 and 5-305.

    The revisions and additions read as follows:

    § 52.2370 Identification of plan.

    (c) EPA approved regulations.

    EPA-Approved Vermont Regulations State citation Title/subject State effective date EPA approval date Explanations *         *         *         *         *         *         * Section 5-101 Definitions 7/5/2014 8/1/2016 [Insert Federal Register citation] Revised three definitions and added 10 new definitions. *         *         *         *         *         *         * Section 5-251 Control of nitrogen oxides emissions 2/8/2011 8/1/2016 [Insert Federal Register citation] Revised the applicability section. Section 5-252 Control of sulfur dioxide emissions 2/8/2011 8/1/2016 [Insert Federal Register citation] Revised the applicability section. *         *         *         *         *         *         * Section 5-253.20 Other sources that emit volatile organic compounds 7/5/2014 8/1/2016 [Insert Federal Register citation] Removed the exemption for surface coating of wood. *         *         *         *         *         *         * Section 5-301 Scope 7/5/2014 8/1/2016 [Insert Federal Register citation] The air quality standard for sulfates is not part of the SIP. Section 5-302 Sulfur oxides (sulfur dioxide) 7/5/2014 8/1/2016 [Insert Federal Register citation] Revision addresses the SO2 NAAQS adopted in 2010. Section 5-303 Reserved 7/5/2014 8/1/2016 [Insert Federal Register citation] The secondary standard for SO2 is now contained in Section 5-302. Section 5-304 Particulate matter PM2.5 7/5/2014 8/1/2016 [Insert Federal Register citation] New section addresses the 2006 primary and secondary 24-hr standard and the 2013 primary annual standard for the PM2.5 NAAQS. Section 5-306 Particulate matter PM10 7/5/2014 8/1/2016 [Insert Federal Register citation] Removed the annual standard to be consistent with the 2006 PM10 NAAQS. Section 5-307 Carbon monoxide 7/5/2014 8/1/2016 [Insert Federal Register citation] Clarified language to be consistent with EPA. Section 5-308 Ozone 7/5/2014 8/1/2016 [Insert Federal Register citation] Revision addresses the Ozone NAAQS adopted in 2008. Section 5-309 Nitrogen dioxide 7/5/2014 8/1/2016 [Insert Federal Register citation] Revision addresses the NO2 NAAQS adopted in 2010. Section 5-310 Lead 7/5/2014 8/1/2016 [Insert Federal Register citation] Revision addresses the Lead NAAQS adopted in 2008. *         *         *         *         *         *         * Section 5-401 Classification of air contaminant sources 2/8/2011 8/1/2016 [Insert Federal Register citation] Amended the source category for asphalt batch plants. Section 5-402 Written reports when requested 2/8/2011 8/1/2016 [Insert Federal Register citation] *         *         *         *         *         *         * Section 5-406 Required air modeling 7/5/2014 8/1/2016 [Insert Federal Register citation] Clarified air dispersion modeling must be done in accordance with 40 CFR part 51, Appendix W. Section 5-501 Review of construction or modification of air contaminant sources 7/5/2014 8/1/2016 [Insert Federal Register citation] Only approving: revisions made to subsections (1) and (5); new provisions (4), and (6) even though existing subsection 4 and 6 will remain in the SIP; and new introductory text in subsection (7), and new text in subsection (7)(c). Section 5-502 Major stationary sources and major modifications 7/5/2014 8/1/2016 [Insert Federal Register citation] Approving only revisions made to subsections (2), (4)(a), (4)(b), (4)(e), and (6)(b) and adding a new subsection (8)(b). Also removing subsection (7)(b). Subsections (7) and (8) both relate to ambient air quality monitoring. *         *         *         *         *         *         *
    [FR Doc. 2016-18158 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2016-0262; FRL-9948-10-Region 9] Approval of California Air Plan Revisions, Placer County Air Pollution Control District and Ventura County Air Pollution Control District AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Placer County Air Pollution Control District (PCAPCD) and Ventura County Air Pollution Control District (VCAPCD) portions of the California State Implementation Plan (SIP). These revisions concern oxides of nitrogen (NOX) and carbon monoxide (CO) emissions from stationary gas turbines, boilers, steam generators, and process heaters. We are approving local rules that regulate these emission sources under the Clean Air Act (CAA or the Act).

    DATES:

    This rule is effective on September 30, 2016 without further notice, unless the EPA receives adverse comments by August 31, 2016. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0262 at http://www.regulations.gov, or via email to Andrew Steckel, Rules Office Chief, at [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the Web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Gong, EPA Region IX, (415) 972 3073, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. The State's Submittal A. What rules did the State submit? B. Are there other versions of these rules? C. What is the purpose of the submitted rule revisions? II. The EPA's Evaluation and Action A. How is the EPA evaluating the rules? B. Do the rules meet the evaluation criteria? C. EPA Recommendations To Further Improve the Rules D. Public Comment and Final Action III. Incorporation by Reference IV. Statutory and Executive Order Reviews I. The State's Submittal A. What rules did the State submit?

    Table 1 lists the rules addressed by this action with the dates that they were adopted by the local air agencies and submitted by the California Air Resources Board.

    Table 1—Submitted Rules Local agency Rule No. Rule title Date of local action Submitted PCAPCD 250 Stationary Gas Turbines Amended 10/8/2015 03/11/2016 VCAPCD 74.15.1 Boilers, Steam Generators, and Process Heaters Revised 6/23/2015 11/13/2015

    On January 19, 2016, the EPA determined that the submittal for VCAPCD Rule 74.15.1 met the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review. On April 19, 2016, the EPA determined that the submittal for PCAPCD Rule 250 met the completeness criteria.

    B. Are there other versions of these rules?

    We approved an earlier version of PCAPCD Rule 250 into the SIP on August 23, 1995, in 60 FR 43713, and an earlier version of VCAPCD Rule 74.15.1 into the SIP on May 19, 2014, in 79 FR 28612.

    C. What is the purpose of the submitted rule revisions?

    NOX helps produce ground-level ozone, smog and particulate matter (PM), which harm human health and the environment. Section 110(a) of the CAA requires States to submit regulations that control NOX emissions. PCAPCD Rule 250 and VCAPCD Rule 74.15.1 both limit the emissions of NOX from their respective source categories. The revisions to PCAPCD Rule 250 include the removal of exemptions for emissions resulting from startup and shutdown operations, and simplification of the emission limits for stationary gas turbines. VCAPCD Rule 74.15.1 updates the testing regime and clarifies several exemptions for boilers, steam generators, and process heaters.

    The EPA's technical support documents (TSDs) have more information about these rules.

    II. The EPA's Evaluation and Action A. How is the EPA evaluating the rules?

    SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).

    SIP provisions cannot include exemptions from emission limitations for emissions during startup, shutdown, and malfunction (SSM) events. Thus, in order to be permissible in a SIP, emission limitations must apply continuously, i.e., they cannot include periods during which emissions are legally or functionally exempt from regulation (see CAA sections 110(a)(2) and 302(k)). EPA recently clarified this requirement for periods of startup, shutdown, and malfunction. See Restatement and Update of EPA's SSM Policy Applicable to SIPs, 80 FR 33839 (June 12, 2015).

    Generally, SIP rules must require reasonably available control technology (RACT) for each major source of NOX in ozone nonattainment areas classified as moderate or above (see CAA sections 182(b)(2) and 182(f)). PCAPCD regulates an ozone nonattainment area classified as Severe for the 1994 1-hour ozone National Ambient Air Quality Standard (NAAQS), and for the 1997 and 2008 8-hour ozone NAAQS (40 CFR 81.305). VCAPCD also regulates an ozone nonattainment area classified as Severe for the 1994 1-hour ozone NAAQS and for the 1997 and 2008 8-hour ozone NAAQS (40 CFR 81.305). Therefore, PCAPCD Rule 250 and VCAPCD Rule 74.15.1 must both implement RACT as the Districts regulate ozone nonattainment areas classified as Severe.

    Guidance and policy documents that we used to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:

    1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” (57 FR 13498, April 16, 1992 and 57 FR 18070, April 28, 1992). 2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations” (“the Bluebook,” U.S. EPA, May 25, 1988; revised January 11, 1990). 3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies” (“the Little Bluebook”, EPA Region 9, August 21, 2001). 4. “State Implementation Plans; Nitrogen Oxides Supplement to the General Preamble; Clean Air Act Amendments of 1990 Implementation of Title I; Proposed Rule” (“the NOX Supplement,” 57 FR 55620, November 25, 1992). 5. “Alternative Control Techniques Document—NOX Emissions from Stationary Gas Turbines,” (EPA-453/R-93-007), Emissions Standards Division, EPA OAQPS, January 1993. 6. “Control Techniques for Nitrogen Oxides Emissions from Stationary Sources—Second Edition,” (EPA-450/1-78-001), January 1978. 7. “Alternative Control Techniques Document—NOX Emissions from Process Heaters (Revised),” (EPA-453/R93-034), September 1993. 8. “Determination of Reasonably Available Control Technology and Best Available Retrofit Control Technology for Industrial, Institutional, and Commercial Boilers, Steam Generators, and Process Heaters,” California Air Resources Board RACT/BARCT guidance, July 18, 1991. 9. “Restatement and Update of EPA's SSM Policy Applicable to SIPs,” 80 FR 33839, June 12, 2015. B. Do the rules meet the evaluation criteria?

    We believe these rules are consistent with the relevant policy and guidance regarding enforceability, RACT, SIP relaxations, and requirements for emissions that occur during SSM events. The TSDs have more information on our evaluation.

    C. EPA Recommendations To Further Improve the Rules

    The TSDs describe additional rule revisions that we recommend for the next time the local agency modifies the rules but are not currently the basis for rule disapproval.

    D. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, the EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements.1 We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments by August 31, 2016, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on September 30, 2016. This will incorporate these rules into the federally enforceable SIP.

    1 Upon the effective date of this final action, submitted PCAPCD Rule 250 would supersede existing PCAPCD Rule 250, approved at 60 FR 43713 in the applicable SIP. Submitted VCAPCD Rule 74.15.1 would supersede existing VCAPCD Rule 74.15.1, approved at 79 FR 28612.

    Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    III. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the PCAPCD and VCAPCD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at U.S. Environmental Protection Agency Region IX (Air-4), 75 Hawthorne Street, San Francisco, CA, 94105-3901.

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements.

    Dated: June 14, 2016. Alexis Strauss, Acting Regional Administrator, Region IX.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by adding paragraphs (c)(202)(i)(E)(3), (c)(429)(i)(A)(6), (c)(472)(i)(B), and (c)(474) to read as follows:
    § 52.220 Identification of plan—in part.

    (c) * * *

    (202) * * *

    (i) * * *

    (E) * * *

    (3) Previously approved on August 23, 1995, in paragraph (c)(202)(i)(E)(1) of this section, and now deleted with replacement in (c)(474)(i)(A)(1), Rule 250, “Stationary Gas Turbines,” adopted on October 17, 1994.

    (429) * * *

    (i) * * *

    (A) * * *

    (6) Previously approved on May 19, 2014, in paragraph (c)(429)(i)(A)(3) of this section and now deleted with replacement in (c)(472)(i)(B)(1), Rule 74.15.1, “Boilers, Steam Generators, and Process Heaters,” amended on September 11, 2012.

    (472) * * *

    (i) * * *

    (B) Ventura County Air Pollution Control District.

    (1) Rule 74.15.1, “Boilers, Steam Generators, and Process Heaters,” revised June 23, 2015.

    (474) New and amended regulations were submitted on March 11, 2016, by the Governor's designee.

    (i) Incorporation by reference.

    (A) Placer County Air Pollution Control District.

    (1) Rule 250, “Stationary Gas Turbines,” amended on October 8, 2015.

    [FR Doc. 2016-17912 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0581; FRL-9949-68-Region 7] Approval of Missouri's Air Quality Implementation Plans; Regional Haze State Implementation Plan Revision and 2013 Five-Year Progress Report AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve the Missouri State Implementation Plan (SIP) revision submitted to EPA by the State of Missouri on August 5, 2014, documenting that the State's existing plan is making adequate progress to achieve visibility goals by 2018. The Missouri SIP revision addressed the Regional Haze Rule (RHR) requirements under the Clean Air Act (CAA or Act) to submit a report describing progress in achieving reasonable progress goals (RPGs) to improve visibility in Federally designated areas in nearby states that may be affected by emissions from sources in Missouri. EPA is taking final action to approve Missouri's determination that the existing Regional Haze (RH) SIP is adequate to meet the visibility goals and requires no substantive revision at this time.

    DATES:

    This final rule is effective August 31, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2015-0581. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or at the Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. The Regional Office's official hours of business are Monday through Friday, 8:00 a.m. to 4:30 p.m., excluding Federal holidays. The interested persons wanting to examine these documents should make an appointment with the office at least 24 hours in advance.

    FOR FURTHER INFORMATION CONTACT:

    Amy Algoe-Eakin, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913-551-7942, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. Background II. Summary of SIP Revision III. Final Action IV. Statutory and Executive Order Reviews I. Background

    On September 29, 2015, (80 FR 58410), EPA published a notice of proposed rulemaking (NPR) for the State of Missouri. In the NPR, EPA proposed approval of Missouri's progress report SIP, a report on progress made in the first implementation period towards RPGs for Class I areas that are affected by emissions from Missouri sources. This progress report SIP and accompanying cover letter also included a determination that Missouri's existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emissions reduction goals for 2018.

    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 within the state and in each mandatory Class I Federal 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. The Missouri Department of Natural Resources (MDNR) submitted its regional haze SIP on August 5, 2009, and a supplement on January 30, 2012, in accordance with 40 CFR 51.308(b).1

    1 On June 26, 2012, EPA finalized a limited approval of Missouri's August 5, 2009, regional haze SIP to address the first implementation period for regional haze (77 FR 38007). In a separate action, published on June 7, 2012 (77 FR 33642), EPA finalized a limited disapproval of the Missouri regional haze SIP because of the State's reliance on the Clean Air Interstate Rule to meet certain regional haze requirements, which EPA replaced in August 2011 with the Cross-State Air Pollution Rule (CSAPR) (76 FR 48208 (Aug. 8, 2011)). In the aforementioned June 7, 2012, action, EPA finalized a Federal Implementation Plan (FIP) for Missouri to replace the State's reliance on CAIR with reliance on CSAPR. Following these EPA actions, the D.C. Circuit issued a decision in EME Homer City Generation, L.P. v. EPA (“EME Homer City”), 696 F. 3d 7 (D.C. Cir. 2012), vacating CSAPR and keeping CAIR in place pending the promulgation of a valid replacement rule. On April 29, 2014, the U.S. Supreme Court reversed the D.C. Circuit opinion vacating CSAPR, and remanded the case for further proceedings. EME Homer City, 572 U.S. 134 S. Ct. 1584. In the interim, CAIR remained in place. On October 23, 2014, the D.C. Circuit granted EPA's motion to lift the stay on CSAPR. Order of October 23, 2014, in EME Homer City, D.C. Cir. No. 11-1302. EPA issued an interim final rule to clarify how EPA will implement CSAPR consistent with the D.C. Circuit's order. 79 FR 71663 (December 3, 2014) (interim final rulemaking). Subsequent to the interim final rulemaking, EPA began implementation of CSAPR on January 1, 2015.

    On February 14, 2014, MDNR provided to the Federal Land Managers a revision to Missouri's SIP reporting on progress made during the first implementation period toward RPGs for Class I areas in the state and Class I areas outside the state that are affected by Missouri sources. Missouri has two Class I areas, Mingo National Wildlife Refuge (Mingo) and Hercules Glades Wilderness Area (Hercules Glades). Missouri also hosts an additional Interagency Monitoring of Protected Visual Environments (IMPROVE) monitoring site, located at El Dorado Springs.2 Notification was published on MDNR's Air Pollution Control Program Web site on April 28, 2014. A public hearing was held on held at the St. Louis Regional Office on Thursday, May 29, 2014.

    2 The El Dorado Springs IMPROVE monitoring site is a Protocol monitoring site that is maintained by MDNR to also measure visibility impairment in Missouri, but it is not located in a Federal Class I area. It was established to aid in determining impacts to portions of the country where no Class I areas exist.

    On August 5, 2014, MDNR submitted the five year progress report SIP to EPA. This progress report SIP and accompanying cover letter also included a determination that the state's existing regional haze SIP requires no substantive revision to achieve the established regional haze visibility improvement and emissions reduction goals for 2018. EPA proposed approval of Missouri's progress report SIP on the basis that it satisfies the requirements of 40 CFR 51.308(g) and (h).

    II. Summary of SIP Revision

    On August 5, 2014, MDNR submitted a revision to Missouri's regional haze SIP to address progress made toward RPGs of Class I areas in the state and Class I areas outside the state that are affected by emissions from Missouri's sources. This progress report SIP also included a determination of the adequacy of the state's existing regional haze SIP. Missouri has two Class I areas within its borders, and maintains an additional IMPROVE monitoring site. MDNR utilized particulate matter source apportionment (PSAT) techniques for photochemical modeling conducted by the Central Regional Air Planning Association (CENRAP) to identify two Class I areas in nearby Arkansas potentially impacted by Missouri sources: Upper Buffalo Wilderness Area (UBWA) and Caney Creek Wilderness Area (CCWA).

    The provisions in 40 CFR 51.308(g) require a progress report SIP to address seven elements. In the NPR, EPA proposed to approve the SIP as adequately addressing each element under 40 CFR 51.308(g). The seven elements and EPA's proposed conclusions in the NPR are briefly summarized below.

    The provisions in 40 CFR 51.308(g) require progress report SIPs to include a description of the status of measures in the regional haze implementation plan; a summary of the emissions reductions achieved; an assessment of the visibility conditions for each Class I area in the state; an analysis of the changes in emissions from sources and activities within the state; an assessment of any significant changes in anthropogenic emissions within or outside the state that have limited or impeded visibility improvement progress in Class I areas impacted by the state's sources; an assessment of the sufficiency of the regional haze implementation plan to enable states to meet reasonable progress goals; and a review of the state's visibility monitoring strategy. As explained in detail in the NPR, EPA proposed Missouri's progress report SIP addressed each element and therefore satisfied the requirements under 40 CFR 51.308(g).

    In addition, pursuant to 40 CFR 51.308(h), states are required to submit, at the same time as the progress report SIP revision, a determination of the adequacy of their existing regional haze SIP and to take one of four possible actions based on information in the progress report. In its progress report SIP, Missouri determined that its regional haze SIP is sufficient to meet its obligations related to the reasonable progress goals for Class I areas affected by Missouri's sources. The State accordingly provided EPA with a negative declaration that further revision of the existing regional haze implementation plan was not needed at this time. See 40 CFR 51.308(h)(1). As explained in detail in the NPR, EPA proposed to determine that Missouri had adequately addressed 40 CFR 51.308(h) because the visibility data trends at the Class I areas impacted by Missouri's sources and the emissions trends of the largest emitters in Missouri of visibility-impairing pollutants both indicate that the reasonable progress goals for 2018 for these areas will be met or exceeded. Therefore, in our NPR, EPA proposed to approve Missouri's progress report SIP as meeting the requirements of 40 CFR 51.308(g) and (h).

    III. Final Action

    EPA is taking final action to approve Missouri's regional haze five-year progress report and SIP revision, submitted August 5, 2014, as meeting the applicable regional haze requirements as set forth in 40 CFR 51.308(g) and (h).

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

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

    Dated: July 18, 2016. Mark Hague, Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

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

    42 U.S.C. 7401 et. seq.

    Subpart AA—Missouri 2. In § 52.1320, the table in paragraph (e) is amended by adding the entry “(70) State Implementation Plan (SIP) Revision for the Attainment and Maintenance of National Ambient Air Quality Standards for Regional Haze (2014 Five-Year Progress Report)” in numerical order to read as follows:
    § 52.1320 Identification of plan.

    (e) * * *

    EPA-Approved Missouri Nonregulatory SIP Provisions Name of nonregulatory SIP provision Applicable geographic or nonattainment area State
  • submittal date
  • EPA approval date Explanation
    *         *         *         *         *         *         * (70) State Implementation Plan (SIP) Revision for the Attainment and Maintenance of National Ambient Air Quality Standards for Regional Haze (2014 Five-Year Progress Report) Statewide 8/5/14 8/1/16 [Insert Federal Register citation] [EPA-R07-OAR-2015-0581; FRL-9949-68-Region 7].
    [FR Doc. 2016-17785 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2014-0291, FRL-9949-58-Region 1] Air Plan Approval; Maine: Prevention of Significant Deterioration; PM2.5 AGENCY:

    Environmental Protection Agency.

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to fully approve revisions to the State of Maine's State Implementation Plan (SIP) relating to the regulation of fine particulate matter (that is, particles with an aerodynamic diameter less than or equal to a nominal 2.5 micrometer, generally referred to as “PM2.5”) within the context of Maine's Prevention of Significant Deterioration (PSD) program. EPA is also taking direct final action on other minor changes to Maine's PSD program. Actions related to this direct final rulemaking are being taken in accordance with the Clean Air Act (CAA).

    DATES:

    This direct final rule is effective September 30, 2016, unless EPA receives adverse comments by August 31, 2016. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2014-0291 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Patrick Bird, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits, Toxics, and Indoor Programs Unit, 5 Post Office Square—Suite 100, (mail code OEP05-2), Boston, MA 02109-3912; telephone number: (617) 918-1287; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    I. Background and Purpose II. Analysis of Maine's SIP Revisions III. Description of Codification Issues in Maine's SIP IV. Final Action V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. Background and Purpose

    The State of Maine PSD program is established in 06-096 Code of Maine Regulations (CMR), Chapter 100 (Definitions Regulation), Chapter 113 (Growth Offset Regulation), and Chapter 115 (Major and Minor Source Air Emission License Regulations). Maine implements its PSD program requirements under Chapter 115. Revisions to the PSD program were last approved into the Maine SIP on February 14, 1996 (61 FR 5690). Maine has authority to issue and enforce PSD permits under its SIP-approved PSD program.

    On February 14, 2013, the State of Maine Department of Environmental Protection (DEP) submitted a formal revision to its SIP. The SIP revision included the amendments to certain portions of Chapter 100 and Chapter 115 to incorporate PM2.5 into the PSD permitting program. On May 31, 2016, Maine DEP submitted additional revisions to its PSD program for SIP approval, which includes minor changes to: (1) The Chapter 100 definition of “ambient increment;” (2) a portion of the Chapter 100 definition of “regulated pollutant;” and (3) the Chapter 100 definition of “significant emissions increase.” Pursuant to section 110 of the CAA, EPA is approving these revisions into the Maine SIP.

    II. Analysis of Maine's SIP Revisions

    EPA performed a review of Maine's proposed revisions and has determined that they are consistent with EPA's PSD program regulations. Maine submitted for approval amendments to the definition of “ambient increment” at Chapter 100.11, amendments to the definition of “baseline concentration” at Chapter 100.16, a new definition for “PM2.5” at Chapter 100.133, amendments to the definition of “PM10” at Chapter 100.134, amendments to a portion of the definition of “regulated pollutant” at Chapter 100.149(I); and amendments to the definition of “significant emissions increase” at Chapter 100.156. Maine also submitted amendments to the section of Chapter 115 related to “innovative control technology waivers” and also added a section to Chapter 115 relating to major new and modified source growth analyses.

    The previously SIP-approved definition of “ambient increment” has been amended to include PM2.5 as a pollutant of consideration and to add specificity related to the time period that must be considered when determining existing source baseline emissions for PM2.5, PM10, sulfur dioxide (SO2), and nitrogen dioxide (NO2). These changes are relevant to conducting an increment consumption analysis under the State's PSD permit program.

    Maine's approach in determining baseline emissions for purposes of an increment consumption analysis remains unchanged when compared to the previously approved provisions in Maine's SIP. The SIP revisions we are approving in this document adds PM2.5 as an additional pollutant to consider when conducting an increment analysis, and clarifies in the definition of “ambient increment,” the emissions baseline years used in the analyses for each covered pollutant. Although Maine's approach to establishing a baseline emissions concentration as part of an increment consumption analysis differs to some extent from the approach taken under the federal PSD regulations codified at 40 CFR 51.166, EPA has determined that those minor differences do not result in a different baseline emissions concentration calculation and Maine's approach is therefore functionally equivalent to the federal PSD regulations. For example, Maine's regulation identifies a specific year, e.g., 2010 for PM2.5, to be used to calculate baseline emissions concentrations for an increment consumption analysis. Although the approach taken under the federal PSD regulations would result in the use of a slightly different time period for calculating baseline emissions, EPA has analyzed the relevant permitting transactions using Maine's time period and the federal PSD regulations' time period and concluded that the calculation yields the same result in each case. Thus, the baseline emissions calculation for PM2.5 under Maine's regulation yields the same result calculated under the federal PSD regulations.

    The definition of “baseline concentration” at Chapter 100.16 has been amended to include a reference to PM2.5 as a pollutant of consideration. The definition has also been revised in terms of formatting when compared to the previously SIP-approved definition. The PM2.5 baseline concentration date is October 20, 2010, meaning the actual emissions representative of sources in existence on that date shall be included in determining the ambient baseline concentration for purposes of an increment determination. Emissions increases and decreases after the baseline concentration date shall impact available increment in the baseline concentration area. In a note to the definition of “baseline concentration,” Maine states the baseline area is considered to be the entire State of Maine, which is consistent with how Maine's PSD program has functioned in previous EPA SIP-approved versions.

    Maine's SIP revision also adds a definition of “PM2.5” at Chapter 100.133. The definition is consistent with EPA's treatment of PM2.5 in the definition of “Regulated NSR Pollutant” at 40 CFR 51.166(b)(49)(i)(a), with one exception. EPA's definition of “regulated air pollutant” states, among other things, that “PM2.5 and PM10 emissions shall include gaseous emissions from a source or activity which condense to form particulate matter at ambient temperatures.” EPA's definition also states that “[o]n or after January 1, 2011, such condensable particulate matter shall be accounted for in applicability determinations and in establishing emissions limitations for PM2.5 and PM10 in PSD permits.” Maine's definition of PM2.5 became effective as state law on December 1, 2012, and therefore does not include EPA's January 1, 2011 date. Maine DEP has confirmed in a communication with EPA Region 1 that Maine's definition requires consideration of condensable particulate matter as of the effective date of the State's regulation (there is no explicit date at all included in Maine's definition). EPA believes this is a reasonable approach. Maine's definition of PM2.5 also includes clarification as to how PM2.5 is to be measured and designated, by cross referencing 40 CFR part 50, appendix L (Reference Method for the Determination of Fine Particulate Matter as PM2.5 in the Atmosphere) and 40 CFR part 53 (Ambient Air Monitoring Reference And Equivalent Methods). We are approving Maine's definition of PM2.5.

    Revisions to the Maine SIP also includes an amendment to the definition of “PM10” at Chapter 100.134. As with Maine's definition of PM2.5, Maine's definition of PM10 is consistent with EPA's treatment of PM2.5 in the definition of “Regulated NSR Pollutant” at 40 CFR 51.166(b)(49)(i)(a), with the one exception regarding the date after which condensable particulate matter must be considered for purposes of PSD permitting. Again, EPA believes that Maine's approach is a reasonable one. Similar to the State's definition of “PM2.5,” Maine's definition of PM10 includes clarification as to how PM10 is to be measured and designated, by cross referencing 40 CFR part 50, appendix J (Reference Method for the Determination of Fine Particulate Matter as PM10 in the Atmosphere) and 40 CFR part 53 (Ambient Air Monitoring Reference And Equivalent Methods). We are approving Maine's definition of PM10.

    A portion of the definition of “regulated pollutant” at Chapter 100.149(I) is being amended to clarify what precursor pollutants are to be regulated under Maine's PSD permitting program. Maine's treatment of SO2 and NOX as precursors to PM2.5 and volatile organic compounds and NOX as precursors to ozone is consistent with EPA's treatment of these respective precursors for purposes of PSD permitting as found in the federal definition of “Regulated NSR Pollutant” at 40 CFR 51.166(b)(49)(i)(b).

    The definition of “significant emissions increase” at Chapter 100.156 is being revised to include significant emissions increase rates for PM2.5 and precursors to PM2.5 (NOX and SO2). This revision to Maine's SIP is consistent with the federal definitions of “Significant” at 40 CFR 51.166(b)(23)(i) and “Significant emissions increase” at 40 CFR 51.166(b)(39).

    Chapter 115 has been amended to include revised text to the State's “Innovative control technology waiver” provision at Chapter 115(4)(A)(4)(f)(i)(d)(iii). The innovative control technology provision of EPA's PSD program is an optional element found at 40 CFR 51.166(s) and allows for an owner or operator to request approval for a system of innovative pollution control. Maine's amendment adds a provision which states that PM10, PM2.5, SO2, or NO2 emissions may not significantly impact any nonattainment areas during the time period the new or modified source is reducing continuous emissions to a rate greater than or equal to the rate that would have been required by virtue of a best available control technology (BACT) determination. We are approving this amendment to Maine's “Innovative control technology waiver” provision because it is consistent with the intent of EPA's PSD regulations.

    Maine has requested an additional provision to be approved into the SIP at Chapter 115(4)(A)(4)(h), entitled “Growth Analysis.” The Maine provision requires a permit applicant to provide an analysis of air quality impacts from all general, commercial, residential, industrial, and other growth in areas affected by a major modification or a major new source. This provision aligns with EPA's regulations at 40 CFR 51.166(n)(3)(ii) and (o)(2). In conjunction with Maine's definition of “ambient increment” at Chapter 100.11, “baseline concentration” at Chapter 100.16, and Maine's air quality impact analyses requirements contained in Chapter 115, Maine's additional provision satisfies requirements to conduct an ambient increment determination, as specified in EPA's regulation at 40 CFR 51.166(k)(1)(ii). We are approving this provision into Maine's SIP.

    III. Description of Codification Issues in Maine's SIP

    The State of Maine regulations found within 06-096 CMR Chapters 100 and 115 have been amended numerous times under state law since they were originally approved into the SIP. Not all of these state law amendments were submitted to EPA as formal SIP revisions. These “state-only” amendments resulted in new text being added, existing text being rearranged, and, in some cases, changes to how Maine regulations are codified. Due to such “state-only” amendments to Chapters 100 and 115, there are instances where the state regulation being submitted for approval into the SIP at this time does not mesh precisely within the existing codification structure of the Maine SIP. As a matter of substantive legal requirements, however, the regulations approved into the Maine SIP, including those we are approving today, are harmonious and clear.

    Below, we describe exactly how each definition and provision we are approving into Maine's SIP through this document will be incorporated into the SIP. In certain instances, the amendments to the SIP are straightforward and need no detailed explanation. In other instances, however, we explain below for purposes of clarity how the amendments mesh with the existing SIP's structure and codification.

    In the existing Maine SIP, the definition of “ambient increment” is codified at Chapter 100.11. The revised definition of “ambient increment” being acted on in this document is also codified at Chapter 100.11. The revised definition will supplant the existing definition at Chapter 100.11.

    In the existing Maine SIP, the citations for “baseline concentration,” “PM10,” and “significant emissions increase” do not coincide with the citations of those terms being approved in this document. The existing citation for “baseline concentration” is “Chapter 100.15;” the existing citation for “PM10” is “Chapter 100.122” and; the existing citation for “significant emissions increase” is “Chapter 100.144.” The action we are taking in this document will involve removing the text of the former definitions of “baseline concentration,” “PM10,” and “significant emissions increase” from Chapter 100.15, 100.122, and Chapter 100.144, respectively, and indicate those removals by using the term “reserved” in those locations of the Maine SIP.

    The revised definitions of “baseline concentration,” “PM10,” and “significant emissions increase” that we are approving in this document will be codified in the Maine SIP as Chapter 100.16, Chapter 100.134, and Chapter 100. 156, respectively, in the same manner that they are codified under current state regulation. This change, however, results in two different terms (with correspondingly different definitions), each of which has an identical codification.

    Specifically, “Chapter 100.16” will now be the correct citation for two different terms, as follows. Prior to our approval in this document of Maine's revise definition of “baseline concentration,” Chapter 100.16 was the SIP citation for the term “Begin actual construction.” After our approval in this document of Maine's revise definition of “baseline concentration,” Chapter 100.16 will be the correct SIP citation for two separate terms and their definitions: (1) “Begin actual construction”; and (2) “Baseline concentration.” EPA believes that implementation of the State's permitting program and the enforceability of these terms as part of that program will not be compromised because the content of the two definitions clearly is different and will have been approved by EPA on separate dates. Thus, in future legal proceedings, a complete and accurate citation to one of these two definitions should also include the date upon which EPA approved the definition in question into Maine's SIP in order to distinguish clearly one from the other. This result was necessary because Maine did not submit its entire revised Chapter 100 to EPA for approval into the SIP.

    The revised definition of “PM10” that we are approving in this document will be codified in the Maine SIP as Chapter 100.134. Chapter 100.134 will now be the correct citation for two different terms, as follows. Prior to our approval in this document of Maine's revise definition of “PM10,” Chapter 100.134 was the SIP citation for the term “Recovery boiler.” After our approval in this document of Maine's definition of “PM10,” Chapter 100.134 will be the correct SIP citation for two separate terms and their definitions: (1) “PM10”; and (2) “Recovery Boiler.” EPA believes that implementation of the State's permitting program and the enforceability of these terms as part of that program will not be compromised because the content of the two definitions clearly is different and will have been approved by EPA on separate dates. Thus, a complete and accurate citation in a future legal proceeding to one of these two definitions should also include the date upon which EPA approved the specific definition in question into Maine's SIP in order to distinguish clearly one from the other. This result was necessary because Maine did not submit its entire revised Chapter 100 to EPA for approval into the SIP.

    The revised definition of “significant emissions increase” that we are approving in this document will be codified in the Maine SIP as Chapter 100.156. Chapter 100.156 will now be the correct citation for two different terms, as follows. Prior to our approval in this document of Maine's revise definition of “Significant emissions increase,” Chapter 100.156 was the SIP citation for the term “Title I Modification.” After our approval in this document of Maine's definition of “Significant emissions increase,” Chapter 100.156 will be the correct SIP citation for two separate terms and their definitions: (1) “Significant emissions increase”; and (2) “Title I Modification.” EPA believes that implementation of the State's permitting program and the enforceability of these terms as part of that program will not be compromised because the content of the two definitions clearly is different and will have been approved by EPA on separate dates. Thus, a complete and accurate citation in a future legal proceeding to one of these two definitions should also include the date upon which EPA approved the specific definition in question into Maine's SIP in order to distinguish clearly one from the other. This result was necessary because Maine did not submit its entire revised Chapter 100 to EPA for approval into the SIP.

    The new definition of “PM2.5” that we are approving through this document will be codified in the Maine SIP as Chapter 100.133. Chapter 100.133 will now be the correct citation for two different terms, as follows. Prior to our approval through this document of Maine's definition of “PM2.5” Chapter 100.133 was the SIP citation for the term “Reconstruction or reconstructed.” After our approval through this document of Maine's definition of “PM2.5” Chapter 100.133 will be the correct SIP citation for two separate terms and their definitions: (1) “PM2.5”; and (2) “Reconstruction or reconstructed.” EPA believes that implementation of the State's permitting program and the enforceability of these terms as part of that program will not be compromised because the content of the two definitions clearly is different and will have been approved by EPA on separate dates. Thus, a complete and accurate citation in a future legal proceeding to one of these two definitions should also include the date upon which EPA approved the specific definition in question into Maine's SIP in order to distinguish clearly one from the other. This result was necessary because Maine did not submit its entire revised Chapter 100 to EPA for approval into the SIP.

    With respect to our approval of a paragraph (I) of the definition of “Regulated pollutant” (codified at Chapter 100.149 in the current Maine regulation), we recognize the definition of “Regulated pollutant” already exists in the SIP-approved version of Chapter 100 (codified at Chapter 100.137). The existing SIP-approved definition does not contain the required precursor language for PM2.5 and ozone, and thus EPA will add paragraph (I) from the current Maine definition of “Regulated pollutant” to the SIP version of “Regulated pollutant” at Chapter 100.137. After our approval through this document of Maine's definition of “Regulated pollutant,” Chapter 100.137(I) will be the correct SIP citation for two separate provisions within the same definition. EPA believes that implementation of the State's permitting program and the enforceability of these terms as part of that program will not be compromised because the content of the two provisions clearly is different and will have been approved by EPA on separate dates. Thus, a complete and accurate citation in a future legal proceeding to one of these two provisions should also include the date upon which EPA approved the specific provision in question into Maine's SIP in order to distinguish clearly one from the other. This result was necessary because Maine did not submit its entire revised Chapter 100 to EPA for approval into the SIP.

    In this SIP action we are also approving an amendment to the State's “Innovative control technology waiver” provision at Chapter 115(4)(A)(4)(f)(i)(d)(iii). We are also approving a new provision entitled “Growth Analysis” at Chapter 115(4)(A)(4)(h). We provide below, an explanation relating to the fact that Maine's Chapter 115 has been restructured in terms of its codification scheme since EPA's last SIP approval action on the chapter. Due to this restructuring, the way in which Maine references provisions in its February 14, 2013 submittal (consistent with the codification scheme contained in current state regulations) is different than how the Maine SIP is structured in terms of its codification scheme.

    Chapter 115(4)(A)(4)(f)(i)(d)(iii) (the State's current codification) expands on a list of existing conditions earlier approved by EPA into Maine's SIP concerning prohibitions applicable to an innovative control technology waiver. The provision being approved in this document will be inserted in the Maine SIP by adding the new condition in its appropriate place within the existing regulation earlier approved into the SIP. This will be the case despite the fact that its codification does not align neatly with the codification scheme previously approved for the innovative control technology waiver. Specifically, Chapter 115(4)(A)(4)(f)(i)(d)(iii) will be placed between the Maine SIP's provisions codified at Chapter 115(VI)(B)(1)(b)(iv)(b) and Chapter 115(VI)(B)(1)(b)(iv)(c). This result was necessary because Maine did not submit its entire revised Chapter 115 to EPA for approval into the SIP. EPA believes the difference in codification does not affect the enforceability of this provision and that, as a substantive legal requirement, the new provision meshes as it should with the existing substantive requirements.

    In this SIP action we are also approving a revised provision entitled “Growth Analysis,” which is currently codified under state regulation as Chapter 115(4)(A)(4)(h). The provision concerns air quality impact information an applicant must supply to Maine DEP as part of a PSD permit application. This provision is an amendment to an existing provision previously approved into the Maine SIP and codified as Chapter 115(III)(B)(5). Maine DEP and EPA communicated on how best to codify the new provision entitled “Growth Analysis” at Chapter 115(4)(A)(4)(h). Maine DEP concurred with EPA's assessment that the new provision replaces the older provision, which was previously approved into the Maine SIP. In this action, the new provision will supplant the older provision, and the Maine SIP will reflect the updated language by marking Chapter 115(III)(B)(5) as “reserved” and adding the provision entitled “Growth Analysis” at Chapter 115(4)(A)(4)(h) immediately after Chapter 115(III)(B)(5) in the Maine SIP. This result is necessary because Maine did not submit its entire revised Chapter 115 to EPA for approval into the SIP. EPA believes the difference in codification does not affect the enforceability of this provision and that, as a substantive legal requirement, the new provision meshes as it should with the existing substantive requirements.

    IV. Final Action

    Pursuant to section 110 of the CAA, EPA is approving the provisions described above in this document as submitted in Maine's February 14, 2013 submission to EPA. The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revisions should relevant adverse comments be filed. This rule will be effective September 30, 2016 without further notice unless the Agency receives relevant adverse comments by August 31, 2016.

    If the EPA receives such comments, then EPA will publish a document withdrawing this final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 30, 2016 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    V. Incorporation by Reference

    In this rulemaking action, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference state provisions as described above into the Maine SIP. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or may be viewed at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    VI. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

    • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

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

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: July 5, 2016. H. Curtis Spalding, Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart U—Maine 2. Amend § 52.1020 in the table in paragraph (c) by revising the entries for “Chapter 100” and “Chapter 115” to read as follows:
    § 52.1020 Identification of plan.

    (c) * * *

    EPA-Approved Maine Regulations State citation Title/subject State effective date EPA approval date
  • EPA approval date and
  • citation 1
  • Explanations
    *         *         *         *         *         *         * Chapter 100 Definitions May 22, 2016 August 1, 2016 [Insert Federal Register citation] *         *         *         *         *         *         * Chapter 115 Emission License Regulation November 6, 2012 August 1, 2016 [Insert Federal Register citation] *         *         *         *         *         *         * 1 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision.
    [FR Doc. 2016-17830 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2016-0005; FRL-9949-94-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Measurement and Reporting of Condensable Particulate Matter Emissions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a state implementation plan (SIP) revision submitted by the Commonwealth of Pennsylvania. This SIP revision amends two regulations to clarify testing and sampling methods for stationary sources of particulate matter (PM) and adds the requirement to measure and report filterable and condensable PM. EPA is approving this revision in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This final rule is effective on August 31, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2016-0005. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through www.regulations.gov or may be viewed during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection, Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105.

    FOR FURTHER INFORMATION CONTACT:

    Maria A. Pino, (215) 814-2181, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On April 8, 2016 (81 FR 20598), EPA published a notice of proposed rulemaking (NPR) for the Commonwealth of Pennsylvania. In the NPR, EPA proposed approval of amendments to chapters 121 and 139 of title 25, Environmental Protection, of the Pennsylvania Code (25 Pa. Code). The formal SIP revision was submitted by the Commonwealth of Pennsylvania on June 15, 2015.

    II. Summary of SIP Revision

    On June 25, 2015, the Commonwealth of Pennsylvania submitted a formal SIP revision that amends chapters 121 and 139 of 25 Pa. Code. Amendments to 25 Pa. Code section 121.1 in chapter 121 add definitions for the terms “condensable particulate matter” and “filterable particulate matter.” The amendments to 25 Pa. Code section 139.12 in chapter 139 add the requirement to measure and report filterable and condensable PM and explain the compliance demonstration process. The amendment to 25 Pa. Code section 139.53 specifies to whom monitoring reports must be submitted. Other specific requirements of chapters 121 and 139 of 25 Pa. Code and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

    III. Final Action

    EPA is approving the June 25, 2015 Pennsylvania SIP revision that amends specific provisions within chapters 121 and 139 of 25 Pa. Code. The amendments clarify testing and sampling methods and reporting requirements for stationary sources of PM and add the requirement to measure and report filterable and condensable PM.

    IV. Incorporation by Reference

    In this rulemaking action, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the revised Pennsylvania regulations, published in the Pennsylvania Bulletin, Vol. 44 No. 15, April 12, 2014, and effective on April 12, 2014. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or may be viewed at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    V. Statutory and Executive Order Reviews A. General Requirements

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

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

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

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

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

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

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

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

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

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

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

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This rulemaking action, approving amendments to Pennsylvania's regulations regarding testing and sampling methods for stationary sources of PM, including filterable and condensable PM, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Reporting and recordkeeping requirements.

    Dated: July 1, 2016. Shawn M. Garvin, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart NN—Pennsylvania 2. In § 52.2020, the table in paragraph (c)(1) is amended by revising the entries “Section 121.1”, “Section 139.12”, and “Section 139.53” to read as follows:
    § 52.2020 Identification of plan.

    (c) * * *

    (1) * * *

    State citation Title/subject State
  • effective date
  • EPA Approval date Additional
  • explanation/
  • § 52.2063 citation
  • Title 25—Environmental Protection Article III—Air Resources Chapter 121—General Provisions Section 121.1 Definitions 04/12/2014 8/1/16 [Insert Federal Register citation] Adds definitions for the terms “condensable particulate matter” and “filterable particulate matter.” *         *         *         *         *         *         * Chapter 139—Sampling and Testing Subchapter A—Sampling and Testing Methods and Procedures *         *         *         *         *         *         * Stationary Sources *         *         *         *         *         *         * Section 139.12 Emissions of particulate matter 04/12/2014 8/1/16 [Insert Federal Register citation] Amends section 139.12. *         *         *         *         *         *         * Subchapter B—Monitoring Duties of Certain Sources General *         *         *         *         *         *         * Section 139.53 Filing monitoring reports 04/12/2014 8/1/16 [Insert Federal Register citation] Amends section 139.53. *         *         *         *         *         *         *
    [FR Doc. 2016-18156 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2015-0788; FRL-9949-70-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Reasonable Further Progress Plan, Contingency Measures, Motor Vehicle Emissions Budgets for the Baltimore 1997 8-Hour Ozone Serious Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving the serious nonattainment area reasonable further progress (RFP) plan for the Baltimore serious nonattainment area for the 1997 8-hour ozone national ambient air quality standard (NAAQS). The SIP revision includes 2011 and 2012 RFP milestones, contingency measures for failure to meet RFP, and updates to the 2002 base year inventory and the 2008 reasonable RFP plan previously approved by EPA. EPA is also approving the transportation conformity motor vehicle emissions budgets (MVEBs) associated with this revision. This action is being taken under the Clean Air Act (CAA).

    DATES:

    This final rule is effective on August 31, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID Number EPA-R03-OAR-2015-0788. All documents in the docket are listed in the www.regulations.gov Web site. Although listed in the electronic docket, some information is not publicly available, i.e., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through www.regulations.gov or may be viewed during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230.

    FOR FURTHER INFORMATION CONTACT:

    Maria A. Pino, (215) 814-2181, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On May 2, 2016 (81 FR 26188), EPA published a notice of proposed rulemaking (NPR) for the State of Maryland. In the NPR, EPA proposed approval of the “Baltimore Serious Nonattainment Area 0.08 ppm 8-Hour Ozone State Implementation Plan Demonstrating Rate of Progress for 2008, 2011 and 2012 Revision to 2002 Base Year Emissions; and Serious Area Attainment Demonstration, SIP Number: 13-07,” (the Serious Area Plan) submitted by the Maryland Department of the Environment (MDE) on July 22, 2013. The SIP revision submittal included updates to the 2002 base year emissions inventory and 2008 RFP plan that EPA previously approved into the Maryland SIP, RFP for 2011 and 2012, an attainment demonstration, including modeling and weight of evidence, RFP and attainment contingency measures, a reasonably available control measures (RACM) determination, and 2012 MVEBs. After EPA determined Baltimore had attained the 1997 8-hour ozone standard, Maryland, by letter dated October 20, 2015, withdrew the attainment demonstration, including modeling and weight of evidence, contingency measures for attainment, and the RACM analysis from consideration as a SIP revision. Therefore, those elements are not addressed in this rulemaking action.

    II. Summary of SIP Revision

    On June 4, 2010, EPA approved Maryland's moderate area RFP that provided for a 15 percent (%) emissions reduction from 2002 to 2008, contained in the Moderate Area Plan. 75 FR 31709. Maryland, however, needed to update the 2008 target levels for its Serious Area Plan because they are the basis for the new 2011 and 2012 target level calculations for RFP. Maryland also needed to update its 2002 base year inventory, which is the basis for the 2008 target levels and its 15% RFP plan. In the Serious Area Plan, MDE updated its 2002 base year inventory and 15% RFP plan, including 2008 target levels, to reflect changes to EPA's approved model for on-road mobile sector emissions, from the Mobile Source Emission Factor Model (MOBILE) to the Motor Vehicle Emission Simulator (MOVES) model, as well as updates to EPA's NONROAD model.

    Serious 8-hour ozone nonattainment areas are subject to RFP requirements in section 182(c)(2)(B) of the CAA that require an average of 3% per year of volatile organic compounds (VOC) and/or oxides of nitrogen (NOX) emissions reductions for all remaining 3-year periods after the first 6-year period out to the area's attainment date (2008-2011 and 2011-2012). For a serious area, such as the Baltimore Area, with an approved 15% rate of progress (ROP) plan under the 1-hour standard, states can use reductions from VOC or NOX or a combination of either. The Serious Area Plan contains 2011 and 2012 RFP for the Baltimore Area, including the calculation of 2011 and 2012 target levels, 2011 and 2012 projected inventories, and an accounting of the emission reductions from permanent and enforceable emission control measures achieved to meet RFP. The Serious Area Plan also includes contains contingency measures for failure to meet the 2012 RFP milestone. Finally, the Serious Area Plan includes 2012 MVEBs the Baltimore Area, set at 93.5 tons per day (tpd) NOX and 40.2 tpd VOC.

    EPA reviewed the RFP plan for the Baltimore Area submitted in the Serious Area Plan, including updates to the 2008 RFP target levels previously SIP approved by EPA, the 2011 and 2012 RFP targets levels, control measures used to meet RFP, and contingency measures for failure to meet the 2012 RFP target, and found them to be approvable. In addition, EPA determined that MDE used acceptable techniques and methodologies to update the 2002 base year and 2008 projected inventories, and to develop the 2011 and 2012 milestone year projected inventories and found them approvable. Furthermore, EPA has found the Baltimore Area's 2012 MVEBs adequate for transportation conformity purposes and approvable. For details on EPA's analysis, see the Technical Support Documents (TSDs) for this rulemaking action, which are available online at http://www.regulations.gov, Docket number EPA-R03-OAR-2015-0788.

    Other specific requirements of the Baltimore Area serious area RFP plan, inventories, RFP contingency measures, and MVEBs, and the rationale for EPA's proposed action are explained in the NPR and will not be restated here. No public comments were received on the NPR.

    III. Final Action

    EPA is approving the updates to the 2002 base year inventory, updates to the 2008 RFP plan and associated 2008 projected emissions inventory, the 2011 and 2012 RFP plan and associated projected emission inventories, the contingency measures for failure to meet 2012 RFP, and the 2012 MVEBs for the Baltimore Area submitted in MDE's July 22, 2013 Serious Area Plan. The other parts of the Serious Area Plan were withdrawn by Maryland.

    IV. Statutory and Executive Order Reviews A. General Requirements

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

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

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

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

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

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

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

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

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

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

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

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

    This action, pertaining to the Baltimore Area serious RFP plan, inventories, RFP contingency measures, and MVEBs, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Volatile organic compounds.

    Dated: July 15, 2016. Shawn M. Garvin, Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart V—Maryland 2. In § 52.1070, the table in paragraph (e) is amended by adding the entries “Serious Area Reasonable Further Progress (RFP) Plan and 2012 RFP Contingency Measures,” “Updates to the 2002 Base Year Inventory for VOC, NOX and CO,” and “2012 Transportation Conformity Budgets” at the end of the table to read as follows:
    § 52.1070 Identification of plan.

    (e) * * *

    Name of non-regulatory
  • SIP revision
  • Applicable geographic area State submittal date EPA approval date Additional
  • explanation
  • *         *         *         *         *         *         * Serious Area Reasonable Further Progress (RFP) Plan and 2012 RFP Contingency Measures Baltimore 1997 8-hour ozone serious nonattainment area July 22, 2013 8/1/2016 [Insert Federal Register citation] § 52.1076(cc) Updates to the 2002 Base Year Inventory for VOC, NOX and CO Baltimore 1997 8-hour ozone serious nonattainment area July 22, 2013 8/1/2016 [Insert Federal Register citation] § 52.1075(p) 2012 Transportation Conformity Budgets Baltimore 1997 8-hour ozone serious nonattainment area July 22, 2013 8/1/2016 [Insert Federal Register citation] § 52.1076(dd)
    3. Section 52.1075 is amended by adding paragraph (p) to read as follows:
    § 52.1075 Base year emissions inventory.

    (p) EPA approves, as a revision to the Maryland State Implementation Plan, updates to the 2002 base year emissions inventories previously approved under paragraph (i) of this section for the Baltimore 1997 8-hour ozone serious nonattainment area (Area) submitted by the Secretary of the Maryland Department of the Environment on July 22, 2013. This submittal consists of updated 2002 base year point, area, non-road mobile, and on-road mobile source inventories in the Area for the following pollutants: Volatile organic compounds (VOC), carbon monoxide (CO) and nitrogen oxides (NOX).

    4. Section 52.1076 is amended by adding paragraphs (cc) and (dd) to read as follows:
    § 52.1076 52.1076 Control strategy plans for attainment and rate-of-progress: Ozone.

    (cc) EPA approves revisions to the Maryland State Implementation Plan consisting of the serious area reasonable further progress (RFP) plan for the Baltimore 1997 8-hour ozone serious nonattainment area, including 2011 and 2012 RFP milestones, updates to the 2008 RFP milestones previously approved by EPA under paragraph (q) of this section, and contingency measures for failure to meet 2012 RFP, submitted by the Secretary of the Maryland Department of the Environment on July 22, 2013.

    (dd) EPA approves the following 2012 RFP motor vehicle emissions budgets (MVEBs) for the Baltimore 1997 8-hour ozone serious nonattainment area, in tons per day (tpd) of volatile organic compounds (VOC) and nitrogen oxides (NOX), submitted by the Secretary of the Maryland Department of the Environment on July 22, 2013:

    Transportation Conformity Emissions Budgets for the Baltimore Area Type of control strategy SIP Year VOC
  • (tpd)
  • NOX
  • (tpd)
  • Effective date of adequacy determination or SIP approval
    Rate of Progress Plan 2012 40.2 93.5 March 8, 2016 (81 FR 8711), published February 22, 2016.
    [FR Doc. 2016-17781 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2016-0119; FRL-9948-26-Region 9] Approval of California Air Plan Revisions, Modoc County Air Pollution Control District, Permit Programs AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the Modoc County Air Pollution Control District (MCAPCD) portion of the California State Implementation Plan (SIP). These revisions concern MCAPCD's administrative and procedural requirements to obtain preconstruction permits that regulate emission sources under the Clean Air Act as amended in 1990 (CAA or the Act). We are approving local rules under the CAA.

    DATES:

    This rule is effective on September 30, 2016 without further notice, unless the EPA receives adverse comments by August 31, 2016. If we receive such comments, we will publish a timely withdrawal in the Federal Register to notify the public that this direct final rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2016-0119 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Ya-Ting (Sheila) Tsai, EPA Region IX, (415) 972-3328, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. The State's Submittal A. What rules did the State submit? B. Are there other versions of these rules? C. What is the purpose of the submitted rule revisions? II. The EPA's Evaluation and Action A. How is the EPA evaluating the rules? B. Do the rules meet the evaluation criteria? C. Public Comment and Final Action III. Incorporation by Reference IV. Statutory and Executive Order Reviews I. The State's Submittal A. What rules did the State submit?

    Table 1 lists the rules under MCAPCD Regulation II, “Permit System” addressed by this action with the dates that they were adopted by the local air agency and submitted by the California Air Resources Board (CARB).

    Table 1—Submitted Rules Rule No. Rule title Adoption or amendment date Submittal date 2.3 Transfers 1/15/1989 12/31/1990 2.5 Expiration of Applications 1/15/1989 12/31/1990 2.7 Conditional Approval 1/15/1989 12/31/1990 2.10 Further Information 1/15/1989 12/31/1990

    On February 28, 1991, the EPA determined that the submittal for the MCAPCD rules listed in Table 1 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.

    B. Are there other versions of these rules?

    EPA approved the rules listed in Table 2 into the MCAPCD portion of the California SIP on the dates listed. When the rules listed in Table 1 are approved by EPA, those rules will take the place of the existing SIP approved rules listed in Table 2.

    Table 2—SIP Approved Rules Rule No. Rule title SIP approval date Federal
  • Register
  • citation
  • 2.3 Transfer 09/22/1972 37 FR 19812 2.5 Cancellation of Applications 09/22/1972 37 FR 19812 2.7 * Provision of Sampling and Testing Facilities 09/22/1972 37 FR 19812 2.9 * Conditional Approval 09/22/1972 37 FR 19812 * Note: SIP approved Rule 2.7—Provision of Sampling and Testing Facilities will be replaced by newly submitted Rule 2.10 Further Information. SIP approved Rule 2.9—Conditional Approval will be replaced by submitted Rule 2.7—Conditional Approval.
    C. What is the purpose of the submitted rule revisions?

    Section 110(a) of the CAA requires States to submit regulations that will assure attainment and maintenance of the National Ambient Quality Air Quality Standards (NAAQS). These rules were developed as part of the local agency's general programmatic requirement to implement the requirement commonly referred to as the minor or general New Source Review (NSR) program. The revisions contained in the submitted rules listed in Table 1 are mostly administrative in nature. Rule 2.3 prohibits the transfer of an Authority to Construct or Permit to Operate without written approval. Rule 2.5 provides the timeline for an Authority to Construct or an application for a Permit to Operate to expire and/or be extended. Rule 2.7 is renumbered from Rule 2.9 and provides additional enforceability by clarifying that equipment cannot be operated contrary to permit conditions specified in the permit. Rule 2.10 is a new rule that allows MCAPCD to require data, sampling, testing, and monitoring to determine a stationary source's emissions. There are no substantive relaxations to these rules.

    The TSD, which is available in the docket for today's rulemaking, has more information about these rules.

    II. The EPA's Evaluation and Action A. How is the EPA evaluating the rules?

    SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193). The submitted rules are revisions to existing SIP approved general NSR permit program requirements under 40 CFR 51.160-51.164. The revisions are primarily administrative in nature (reformatting, providing additional clarity and enforceability).

    B. Do the rules meet the evaluation criteria?

    We believe these rules are consistent with the relevant policy and guidance regarding enforceability and SIP relaxations. These changes are mostly administrative in nature and their approval will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other CAA application requirement.

    The TSD, which is available in the docket for today's rulemaking, has more information on our evaluation.

    C. Public Comment and Final Action

    As authorized in section 110(k)(3) of the Act, the EPA is fully approving the submitted rules because we believe they fulfill all relevant requirements. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this Federal Register, we are simultaneously proposing approval of the same submitted rules. If we receive adverse comments by August 31, 2016, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on September 30, 2016. This action will incorporate these rules into the federally enforceable SIP.

    Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    III. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the MCAPCD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at U.S. Environmental Protection Agency Region IX (AIR-3), 75 Hawthorne Street, San Francisco, CA 94105-3901.

    IV. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 30, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.

    Dated: June 15, 2016. Alexis Strauss, Acting Regional Administrator, Region IX.

    Part 52, Chapter I, Title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart F—California 2. Section 52.220 is amended by adding paragraphs (c)(6)(xi)(D), and (c)(182)(i)(F)(5), (6), (7), and (8) to read as follows:
    § 52.220 Identification of plan.

    (c) * * *

    (6) * * *

    (xi) * * *

    (D) Previously approved September 22, 1972 in paragraph (c)(6) of this section and now deleted with replacement in paragraph (c)(182)(i)(F)(5), (6), (7), and (8), Rule 2.3 “Transfer,” Rule 2.5 “Cancellation of Application,” Rule 2.7 “Provision of Sampling and Testing Facilities,” and Rule 2.9 “Conditional Approval”.

    (182) * * *

    (i) * * *

    (F) * * *

    (5) Regulation II, “Permit System,” Rule 2.3 “Transfers” amended on January 15, 1989.

    (6) Regulation II, “Permit System,” Rule 2.5 “Expiration of Applications” amended on January 15, 1989.

    (7) Regulation II, “Permit System,” Rule 2.7 “Conditional Approval” amended on January 15, 1989.

    (8) Regulation II, “Permit System,” Rule 2.10 “Further Information” amended on January 15, 1989.

    [FR Doc. 2016-18009 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1816 and 1852 RIN 2700-AE31 NASA Federal Acquisition Regulation Supplement: Clarification of Award Fee Evaluations and Payments (NFS Case 2016-N008) AGENCY:

    National Aeronautics and Space Administration.

    ACTION:

    Final rule.

    SUMMARY:

    NASA is issuing a final rule amending the NASA Federal Acquisition Regulation Supplement (NFS) to clarify NASA's award fee process by incorporating terms used in award fee contracting; guidance relative to final award fee evaluations; release of source selection information; and the calculation of the provisional award fee payment percentage in NASA end-item award fee contracts.

    DATES:

    Effective: August 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. William Roets, telephone 202-358-4483.

    SUPPLEMENTARY INFORMATION:

    I. Background

    NASA published a proposed rule in the Federal Register at 81 FR 23667 on April 22, 2016, to revise NFS 1816.4 and 1852.216-77 to clarify NASA's award fee evaluation and payment processes. One public comment was received in response to the proposed rule.

    II. Discussion and Analysis

    NASA reviewed the public comment in the development of the final rule. A discussion of the comment and the changes made to the rule as a result of this comment is provided, as follows:

    A. Changes

    No change was made in the final rule in response to the public comment received.

    B. Analysis of Public Comment

    Comment: Respondent stated that they do not support this rule.

    Response: The respondent did not identify any specific areas of concern. Accordingly, this rule provides needed clarification to NASA's award fee processes to enhance the efficient administration of award fee incentives.

    III. Executive Orders 12866 and 13563

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

    IV. Regulatory Flexibility Act

    A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., and is summarized as follows:

    NASA is amending the NFS to clarify award fee process by incorporating terms used in award fee contracting; guidance relative to final award fee evaluations; release of source selection information; and the calculation of the provisional award fee payment percentage in NASA end-item award fee contracts.

    No changes were made to the proposed rule in developing the final rule. No comments from small entities were submitted in reference to the Regulatory Flexibility Act request in the proposed rule. Therefore, the proposed rule has been adopted as final.

    NASA does not expect this final rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because the guidance largely clarifies aspects relative to the award fee evaluation and payment process resulting in a more consistent use and administration of award fees within NASA providing all entities both large and small a positive benefit. An analysis of data in the Federal Procurement Data System (FPDS) revealed that award fee contracts are primarily awarded to large businesses with large dollar contracts. An analysis of FPDS data over the past three years (FY2013 through FY2015) showed an average of 157 award fee contracts were awarded at NASA per year, of which 33 (approximately 20%) were awarded to small businesses. Thus, the application of the award fee revisions contained in this rule do not apply to a substantial number of small entities.

    The rule imposes no reporting, recordkeeping, or other information collection requirements. There are no significant alternatives that could further minimize the already minimal impact on businesses, small or large.

    V. Paperwork Reduction Act

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

    List of Subjects in 48 CFR Parts 1816 and 1852

    Government procurement.

    Manuel Quinones, NASA FAR Supplement Manager.

    Accordingly, 48 CFR parts 1816 and 1852 are amended as follows:

    1. The authority citation for parts 1816 and 1852 continues to read as follows: Authority:

    51 U.S.C. 20113(a) and 48 CFR chapter 1.

    PART 1816—TYPES OF CONTRACTS
    2. Add section 1816.001 to read as follows:
    1816.001 Definitions.

    As used in this part—

    Earned award fee means the payment of the full amount of an award fee evaluation period's score/rating.

    Unearned award fee means the difference between the available award fee pool amount for a given award fee evaluation period less the contractor's earned award fee amount for that same evaluation period.

    1816.307 [Amended]
    3. Amend section 1816.307 by removing paragraph (g)(1). 4. Amend section 1816.307-70 by revising paragraph (f) to read as follows:
    1816.307-70 NASA contract clauses.

    (f) When FAR clause 52.216-7, Allowable Cost and Payment, is included in the contract, as prescribed at FAR 16.307(a), the contracting officer should include the clause at 1852.216-89, Assignment and Release Forms.

    5. Amend section 1816.405-273 by revising paragraphs (b) and (c) to read as follows:
    1816.405-273 Award fee evaluations.

    (b) End item contracts. On contracts, such as those for end item deliverables, where the true quality of contractor performance cannot be measured until the end of the contract, only the last evaluation is final. At that point, the total contract award fee pool is available, and the contractor's total performance is evaluated against the award fee plan to determine total earned award fee. In addition to the final evaluation, interim evaluations are done to monitor performance prior to contract completion, provide feedback to the contractor on the Government's assessment of the quality of its performance, and establish the basis for making interim award fee payments (see 1816.405-276(a)). These interim evaluations and associated interim award fee payments are superseded by the fee determination made in the final evaluation at contract completion. However, if the final award fee adjectival rating is higher or lower than the average adjectival rating of all the interim award fee periods, or if the final award fee score is eight base percentage points higher or lower than the average award fee score of all interim award fee periods (e.g. 80% to 88%), then the Head of the Contracting Activity (HCA) or the Deputy Chief Acquisition Officer (if the HCA is the Fee Determination Official) shall review and concur in the final award fee determination. The Government will then pay the contractor, or the contractor will refund to the Government, the difference between the final award fee determination and the cumulative interim fee payments.

    (c) Control of evaluations. Interim and final evaluations may be used to provide past performance information during the source selection process in future acquisitions and should be marked and controlled as “Source Selection Information—see FAR 3.104”. See FAR 42.1503(h) regarding the requirements for releasing Source Selection Information included in the Contractor Performance Assessment Reporting System (CPARS).

    6. Amend section 1816.405-276 by revising the last sentence of paragraph (b) to read as follows:
    1816.405-276 Award fee payments and limitations.

    (b) * * * For an end item contract, the total amount of provisional payments in a period is limited to a percentage not to exceed 80 percent of the prior interim period's evaluation score, except for the first evaluation period which is limited to 80 percent of the available award fee for that evaluation period.

    PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 7. Amend section 1852.216-77 by revising the date of the clause and paragraph (c)(3) to read as follows:
    1852.216-77 Award fee for end item contracts. Award Fee for End Item Contracts (Aug 2016)

    (c) * * *

    (3) Provisional award fee payments will [insert “not” if applicable] be made under this contract pending each interim evaluation. If applicable, provisional award fee payments will be made to the Contractor on a [insert the frequency of provisional payments (not more often than monthly)] basis. The amount of award fee which will be provisionally paid in each evaluation period is limited to [Insert a percent not to exceed 80 percent] of the prior interim evaluation score (see [insert applicable cite]), except for the first evaluation period which is limited to [insert a percent not to exceed 80 percent] of the available award fee for that evaluation period. Provisional award fee payments made each evaluation period will be superseded by the interim award fee evaluation for that period. If provisional payments made exceed the interim evaluation score, the Contractor will either credit the next payment voucher for the amount of such overpayment or refund the difference to the Government, as directed by the Contracting Officer. If the Government determines that (i) the total amount of provisional fee payments will apparently substantially exceed the anticipated final evaluation score, or (ii) the prior interim evaluation is “poor/unsatisfactory,” the Contracting Officer will direct the suspension or reduction of the future payments and/or request a prompt refund of excess payments as appropriate. Written notification of the determination will be provided to the Contractor with a copy to the Deputy Chief Financial Officer (Finance).

    8. Amend section 1852.216-89 by revising the date of the clause and the introductory text of the clause to read as follows:
    1852.216-89 Assignment and release forms. Assignment and Release Forms (Aug 2016)

    The Contractor shall use the following forms to fulfill the assignment and release requirements of FAR clause 52.216-7, Allowable Cost and Payment:

    [FR Doc. 2016-17844 Filed 7-29-16; 8:45 am] BILLING CODE 7510-13-P
    DEPARTMENT OF TRANSPORTATION Federal Transit Administration 49 CFR Part 665 [Docket No. FTA-2015-0019] RIN 2132-AB11 Bus Testing: Establishment of Performance Standards, a Bus Model Scoring System, a Pass/Fail Standard and Other Program Updates AGENCY:

    Federal Transit Administration (FTA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Transit Administration (FTA) is issuing a new pass/fail standard and new aggregated scoring system for buses and modified vans (hereafter referred to as “bus” or “buses”) that are subject to FTA's bus testing program, as mandated by Section 20014 of the Moving Ahead for Progress in the 21st Century Act (MAP-21). The pass/fail standard and scoring system address the following categories as required by MAP-21: Structural integrity, safety, maintainability, reliability, fuel economy, emissions, noise, and performance. Recipients of FTA grants are prohibited from using FTA financial assistance to procure new buses that have not met the minimum performance standards established by today's final rule. Finally, FTA is requiring bus manufacturers to provide country-of-origin information for test unit bus components, in lieu of applying Buy America U.S. content requirements to all buses submitted for testing.

    DATES:

    The effective date of this rule is October 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    For technical information, Michael Baltes, Director, Office of Infrastructure and Asset Innovation, Office of Research, Demonstration and Innovation (TRI), (202) 366-2182, [email protected] For legal information, Richard Wong, Office of the Chief Counsel (TCC), (202) 366-4011, [email protected]

    SUPPLEMENTARY INFORMATION: Table of Contents A. Executive Summary B. Rulemaking Background C. Summary of Comments and Section-by-Section Analysis D. Regulatory Analyses and Notices A. Executive Summary Purpose

    The purpose of this final rule is to implement minimum performance standards, a scoring system, and a pass/fail threshold for new model transit buses procured with FTA financial assistance authorized under 49 U.S.C. Chapter 53. Consistent with 49 U.S.C. 5318(e), FTA recipients are prohibited from using FTA financial assistance to procure new buses that have not met the minimum performance standards established by this rule. The standards and scoring system address the following categories: Structural integrity, safety, maintainability, reliability, fuel economy, emissions, noise, and performance. Buses must meet a minimum performance standard in each of these categories in order to receive an overall passing score and be eligible for purchase using FTA financial assistance. Buses can achieve higher scores with higher performance in each category, and today's rule establishes a numerical scoring system based on a 100-point scale so that buyers can more effectively compare vehicles.

    To minimize disruption to transit vehicle manufacturers, consistent with the proposal, today's rule adopts many of the existing testing procedures and standards used under the current bus testing program. The rule, however, imposes some changes including: (1) New inspections at bus check-in to verify the bus configuration is within its weight capacity rating at its rated passenger load and an inspection to determine if the major components of the test bus match those identified in the Buy America pre-audit report; (2) elimination of the on-road fuel economy testing and substituting the fuel economy results obtained during the emissions test; and (3) revision to the payloading procedure to recognize the manufacturer's “standee” passenger rating. The final rule does not add any new tests to the existing bus testing program—in fact, FTA is eliminating two tests, the on-road fuel economy test, as equivalent data could be derived from the more accurate dynamometer testing, and the shakedown test, which is considered redundant to the structural durability test and no bus models have historically failed this test.

    Because FTA provides financial assistance to State and local agencies operating public transportation systems, covering up to eighty-five percent (85%) of a vehicle's capital cost, while the State or local government provides at least fifteen percent (15%) matching share, there is a strong incentive by FTA and local agencies to ensure that those funds are used effectively and efficiently. As part of its stewardship of those funds, Congress directed FTA in 1987 to establish a bus testing program whereby new model buses would first be tested to ensure their ability to withstand the rigors of regular transit service before FTA funds would be spent on those vehicles. In the following years, FTA accumulated comprehensive test data on the scores of buses that had undergone testing, but the program did not assign a comparative ranking to the vehicles. Further, because the program was intended to provide information on a vehicle's performance and Congress did not authorize FTA to use the test data to disqualify a vehicle from participating in FTA-assisted procurements, FTA did not establish a pass/fail performance baseline. Since that time, several tested buses did not meet their expected service lives at the cost of millions of dollars to transit agencies and significant inconvenience to transit riders. In MAP-21, Congress directed FTA to establish a new pass/fail standard for tested buses, including a weighted scoring system that would assist transit bus buyers in selecting an appropriate vehicle. FTA issued the Notice of Proposed Rulemaking (NPRM) for this action on June 23, 2015. Today's final rule establishes a new scoring system and a pass/fail standard for buses tested under FTA's existing bus testing program, as well as making other administrative changes.

    Legal Authority

    Although Section 20014 of the Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 121-141) retained the existing bus testing categories of maintainability, reliability, safety, performance, structural integrity, fuel economy, emissions, and noise in the existing 49 U.S.C. 5318(a), Section 20014 also expanded 49 U.S.C. 5318(e) by adding three new requirements on the use of Chapter 53 funding to acquire new bus models. The first is that new bus models must meet performance standards for maintainability, reliability, performance (including braking performance), structural integrity, fuel economy, emissions, and noise. The second is that new bus models acquired with Chapter 53 funds must meet the minimum safety performance standards established pursuant to section 5329(b). The third is that the new bus model must satisfy an overall pass/fail standard based on the weighted aggregate score derived from each of the existing test categories (maintainability, reliability, safety, performance (including braking performance), structural integrity, fuel economy, emissions, and noise).

    Today's rule does not address the minimum safety performance standards for public transportation vehicles required under 49 U.S.C. 5318(e)(1)(B)(ii). FTA proposed a National Public Transportation Safety Plan (81 FR 6372, February 5, 2016), pursuant to 49 U.S.C. 5329(b), which stated that the minimum safety performance standards may eventually be the subject of rulemaking, proposed voluntary vehicle performance standards in the interim, and sought comment on four questions posed in the proposed Plan.

    Summary of Key Provisions

    Today's rule is taking the following actions, the first of which is required by MAP-21 as part of the new “pass/fail” requirement, and the remainder of which are discretionary actions to strengthen the program:

    • Establish testing procedures and establish minimum performance standards, which are generally based upon the pre-MAP-21 tests, and a pass/fail scoring system for new bus models, with a minimum passing score of 60 points. A bus model could receive up to an additional 40 points based on its performance above the proposed minimum performance standard in particular test categories. Buses would need to achieve at least a minimum score in each category in order to pass the overall test and be eligible for procurement using FTA financial assistances.

    • Establish check-in procedures, including FTA approval, for new bus models proposed for testing.

    • Require transit vehicle manufacturers to submit Disadvantaged Business Enterprise (DBE) goals to FTA prior to scheduling a test.

    • Determine a new bus model's total passenger load based on the manufacturer's maximum passenger rating, including accommodations for standees.

    • Establish a simulated passenger weight of 150 lbs. for seated and standing (standee) passengers, and a weight of 600 lbs. for passengers who use wheelchairs.

    • Require test model buses to identify the country-of-origin for the components of the test vehicle to facilitate a transit agency's ability to compare it with the actual production model.

    • The replacement of the on-road fuel economy test with the fuel economy testing already conducted during the emissions test on the chassis dynamometer.

    Generally, FTA is adopting the test procedures that were proposed in the NPRM, although FTA, is making a small number of changes to some test procedures as a result of comments received in response to the NPRM. FTA is adding a set of brake stops at gross passenger load as part of the Braking Test; measuring noise levels while traversing road irregularities as part of the Noise Test; and eliminating the Shakedown Test and moving its single point score value into the Structural Durability Test. Further, FTA is not adopting the proposal that the test unit bus must be Buy America-compliant. Instead, FTA only is requiring that the manufacturer provide the country of origin for the test vehicle's major components, which FTA believes will help transit agencies ensure that the tested bus is similar to the bus the will be completed in production. In addition, FTA is making a few non-substantive amendments, replacing the term “grantee” with “recipient” to bring it into conformity with standard FTA usage, and cross-referencing FTA Circular 5010's categorization of a vehicle's useful service life instead of repeating it in the regulatory text.

    The NPRM sought comment on establishing testing procedures, performance standards, and a scoring system for remanufactured vehicles sold by third-party vendors and procured using FTA financial assistance. Based on the comments received, FTA has concluded that further consideration is warranted, and therefore, is not extending the bus testing requirement to remanufactured buses through today's final rule. Given the growing investment in Federal and local dollars in remanufactured buses, however, and the emphasis on public transit safety in MAP-21, FTA believes that it is responsible Federal stewardship to ensure that remanufactured buses meet expectations for reliability and durability and will address remanufactured buses in a subsequent rulemaking action.

    Summary of Benefits and Costs

    Table 1 below summarizes the potential benefits and costs of this rule that FTA was able to quantify over 10 years and using a 3 and 7 percent discount rate. Quantified costs stem from shipping buses to the testing facility, manufacturer testing fees, having repair personnel for bus manufacturers available at the testing site, new paperwork requirements, and increases to the resources needed to operate the bus testing program (which represents most of the quantified costs). Unquantified costs include remedial actions to buses that do not pass the proposed test (which may extend to all the buses in a model represented by the tested bus) and potential improvements to buses to obtain a higher testing score. However, given that 41 of 49 buses tested between January 2010 and February 2013 would have satisfied the proposed performance standards without any design changes, FTA believes that the proposed requirements would not drive systemic changes to all transit bus models. Quantified benefits are from a reduction in unscheduled maintenance costs. The total annual program cost impact of this rule is estimated to be $159,369. The total annual program benefit is estimated to be $531,990. The resulting cost and benefits are presented in Table 1.

    Table 1—Summary of Quantified Costs and Benefits Year Costs Benefits Net cash flow Discounted net benefits @ 3% 7% 1 $159,369 $531,990 $372,621 $361,768 $348,244 2 159,369 531,990 372,621 351,231 325,462 3 159,369 531,990 372,621 341,001 304,170 4 159,369 531,990 372,621 331,069 284,271 5 159,369 531,990 372,621 321,426 265,674 6 159,369 531,990 372,621 312,064 248,293 7 159,369 531,990 372,621 302,975 232,050 8 159,369 531,990 372,621 294,150 216,869 9 159,369 531,990 372,621 285,583 202,681 10 159,369 531,990 372,621 277,265 189,422 Net Present Value 3,178,533 2,617,134 B. Background

    FTA's grant programs, including those at 49 U.S.C. 5307, 5310, 5311 and 5339, assist transit agencies with procuring buses. The Federal transit program allows FTA to provide up to 85% funding for each bus. In 2013, for example, FTA funds assisted in the procurement of 8,934 new vehicles, of which approximately 5,600 buses and modified vans were covered under the existing testing program. The testing program has its origins in Section 317 of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (STURAA, Pub. L. 100-17), which provided that no funds appropriated or made available under the Urban Mass Transportation Act of 1964, as amended, were to be obligated or expended for the acquisition of a new model bus after September 30, 1989, unless a bus of such model had been tested to ensure that the vehicle “will be able to withstand the rigors of transit service” (H. Rept. 100-27, p. 230). In subsection 317(b), Congress mandated seven specific test categories—maintainability, reliability, safety, performance, structural integrity, fuel economy, and noise—augmenting those tests with the addition of braking performance and emissions testing through section 6021 of the Intermodal Surface Transportation Efficiency Act of 1991 (Pub. L. 102-240). These requirements were subsequently codified at 49 U.S.C. 5318.

    FTA issued its initial NPRM in May 1989 (54 FR 22716, May 25, 1989) and an interim Final Rule three months later (54 FR 35158, August 23, 1989), establishing a bus testing program that submitted vehicles to seven statutorily-mandated tests resulting in a test report and requiring transit bus manufacturers to submit that completed test report to transit agencies before FTA funds could be expended to purchase those vehicles. Although Congress did not authorize FTA to withhold financial assistance for a vehicle based on the data contained in a test report, FTA expected that the test report would provide accurate and reliable bus performance information to transit authorities that could be used in their purchasing and operational decisions.

    This system remained in place for over twenty years. During the intervening period, however, a handful of bus models that had documented problems in their test reports were able to enter transit service, most notably, a fleet of 226 articulated buses that one of the Nation's largest transit agencies ordered in 2001. After paying $87.7M of the $102.1M contract, the transit agency stopped payments in 2005 due to unresolved problems concerning the suspension systems and structural cracks around the articulation joint, near the axles, and in the rear door header, triggering years of litigation. In addition, in 2009, the transit agency abruptly pulled all of these models from service for safety concerns following a structural failure related to the articulation joint, resulting in lengthier and more crowded commutes for thousands of transit riders. In May 2012, a local court ruled that the transit agency could sell the buses for scrap metal, a move that generated only $1.2M for vehicles that had served barely half of their FTA-funded service lives.

    In 2012, MAP-21 amended 49 U.S.C. 5318 by adding new requirements to subsection 5318(e), Acquiring New Bus Models. Importantly, it shifted the program to one where recipients could only use FTA funding to procure buses that passed FTA's testing program, which now included a bus model scoring system and a pass/fail standard based on the weighted aggregate score for each of the existing performance standards (maintainability, reliability, performance (including braking performance), structural integrity, fuel economy, emissions, and noise).

    MAP-21 also amended section 5318(e) to require that new bus models meet the minimum safety performance standards to be established by the Secretary of Transportation pursuant to 49 U.S.C. 5329(b). In the recently-proposed National Public Transportation Safety Plan (81 FR 6372, February 5, 2016), FTA proposed to establish voluntary vehicle performance standards as an interim measure, acknowledging that minimum safety performance standards eventually may be the subject of rulemaking, and sought comment on four questions posed in the proposed Plan.

    The primary purpose of today's rule is to establish minimum performance standards, a new bus model scoring system, and a pass/fail standard. In developing the proposals contained in the NPRM, FTA engaged in extensive discussions with transit industry stakeholders through the use of public webinars, teleconferences, and presentations at industry conferences. Participants in these public outreach efforts included transit vehicle manufacturers, component suppliers, public transit agencies, State departments of transportation, and Bus Testing Facility personnel, and their contributions were reflected in the aggregate scoring system and pass/fail criteria contained in the NPRM.

    In addition to implementing the statutory mandates, FTA proposed other administrative changes that would adjust the passenger payloading process to better reflect industry practice and ensure that buses tested at the facility comply with FTA Civil Rights and Buy America requirements regarding disadvantaged business enterprises and domestic content, respectively.

    Finally, FTA sought comment on establishing a bus testing requirement and scoring system for remanufactured buses sold by third parties and procured using FTA funds.

    C. Summary of Comments and Section-by-Section Analysis

    FTA received a total of 22 comments in response to the NPRM, including comments from transit bus manufacturers, remanufacturers of transit buses, national and state transit associations, and transit agencies procuring transit buses. FTA also received several comments from fire safety advocates and component manufacturers, who urged FTA to adopt fire safety standards for materials used in bus interiors, including bus seats, which exceed Federal Motor Vehicle Safety Standard (FMVSS) 302. As noted above, although Congress directed FTA to establish minimum safety performance standards for vehicles used in public transportation in 49 U.S.C. 5329(b), FTA has not yet initiated such a rulemaking and those comments, however well-intentioned, are beyond the scope of today's regulatory action.

    Although today's final rule contains much of what was proposed in the NPRM, FTA is making some changes to the test procedures as a result of comments received in response to the NPRM. FTA is adding a set of brake stops at gross passenger load as part of the Braking Test; measuring noise levels while traversing road irregularities as part of the Noise Test; and eliminating the Shakedown Test and moving its single point score value into the Structural Durability Test. Further, FTA is removing the proposal that the test unit bus be Buy America-compliant, and instead, is only requiring the manufacturer to provide the country of origin for the test vehicle's major components, which FTA believes will help transit agencies ensure that the tested bus is similar to the bus that will be produced and delivered. In addition, FTA is making a few non-substantive technical amendments, replacing the term “grantee” with “recipient” to bring it into conformity with standard FTA usage, and cross-referencing FTA Circular 5010's categorization of a vehicle's useful service life instead of repeating it in the regulatory text.

    Section 665.1 Purpose

    FTA proposed to amend the purpose of the regulation to reflect a new pass/fail test and scoring system.

    Comments Received: FTA did not receive any comments on this section.

    Agency Response: FTA is including this section in the final rule without change.

    Section 665.3 Scope

    FTA proposed no changes, as the requirements of this part continue to apply to recipients of Federal financial assistance under 49 U.S.C. Chapter 53.

    Comments Received: FTA did not receive any comments on this section.

    Agency Response: FTA is including this section in the final rule without change.

    Section 665.5 Definitions

    FTA proposed changing the definition of Curb Weight from “Curb weight means the weight of the empty, ready-to-operate bus plus driver and fuel.” to “Curb weight means the weight of the bus including maximum fuel, oil, and coolant; but without passengers or driver.”

    FTA proposed changing the definition of Gross Weight from “Gross weight, also gross vehicle weight, means the curb weight of the bus plus passengers simulated by adding 150 pounds of ballast to each seating position and 150 pounds for each standing position (assumed to be each 1.5 square feet of free floor space).” to “the seated load weight of the bus plus 150 pounds of ballast for each rated standee passenger, up to and including, the maximum rated standee passenger capacity identified on the bus interior bulkhead”.

    FTA proposed changing the definition of Seated Load Weight from “Seated load weight means the weight of the bus plus driver, fuel, and seated passengers simulated by adding 150 pounds of ballast to each seating position.” to “the curb weight of the bus plus seated passengers simulated by adding 150 pounds of ballast to each seating position and 600 pounds per wheelchair position.” This 600 pound figure is based on the minimum load-bearing capacity for wheelchair lifts and ramps in the USDOT's accessible bus specifications at 49 CFR 38.23(b)(1) and (c)(1).

    Comments Received: FTA received two comments on this section. One commenter suggested that buses be tested at their maximum Gross Vehicle Weight Rating (GVWR) and Gross Axle Weight Rating (GAWR), and that loading a bus based on the number of seated and standing passengers (using a simulated weight of 150 pounds for each passenger and 600 pounds for each wheelchair location) would not accurately reflect a fully loaded bus or actual operating conditions. The other commenter sought clarification about the simulated passenger payload of 150 pounds per person, believing that FTA had raised it to 175 pounds in a previous regulatory action.

    Agency Response: FTA does not support testing a bus at its maximum GVWR and GAWR for several reasons. First, unlike trucks that transport cargo and axle loads that must be monitored, buses transport people and are loaded based on the number of available seat/wheelchair positions and the amount of open floor space where standees are allowed by the bus operator, regardless of the vehicle's weight ratings. Second, in actual transit use, the capacity of a transit bus is not based on the vehicle's GVWR or GAWR limit, but rather, on the vehicle's actual passenger capacity. FTA will allow bus manufacturers to request that the bus be loaded up to its maximum weight rating when the resulting gross vehicle weight at the manufacturer's rated passenger load is less than the GVWR to allow the manufacturer the flexibility to adjust the seating layouts up to the full weight capacity of the bus model. If a bus's advertised passenger capacity is well below its weight ratings, a manufacturer may not increase the length of the vehicle to accommodate additional passengers because an increase in the length of a tested bus model is considered a major change in configuration and could result in additional testing.

    With regard to the commenter who sought clarification on the simulated passenger weight, FTA had proposed raising the weight from 150 pounds to 175 pounds in a 2011 Federal Register Notice (76 FR 13580, March 14, 2011), but that proposal was subsequently withdrawn (77 FR 76597, December 14, 2012).

    Therefore, FTA is adopting this section in the final rule without change.

    Remanufactured Buses

    FTA also posed a series of questions seeking comment on whether remanufactured buses (i.e., previously owned buses that have undergone substantial structural, mechanical, electrical, and/or cosmetic rebuilding and are sold to a transit agency other than the vehicle's original owner) should be subject to the bus testing requirement. As FTA explained in the NPRM, FTA had not previously extended the testing requirements to these types of buses because, until recently, transit agencies were only rebuilding their existing buses as part of their fleet maintenance. However, FTA is aware that remanufactured buses are now being offered by third-parties to transit agencies as a less expensive alternative to acquiring new buses. FTA therefore is concerned that these models could be introduced as de facto new buses or purchased in lieu of new buses, without having to go through the same testing requirements as a new bus model. However, because FTA had various questions about how to apply the bus testing program to this category of vehicles, FTA sought comment through the NPRM.

    One manufacturer of new transit buses, one transit agency, one trade association, and two bus remanufacturers submitted comments, all of whom agreed that remanufactured buses need to meet safety and durability requirements, but disagreeing on the preferred method. The manufacturer of new buses supported the standardized testing of remanufactured buses, believing that “remanufactured buses should undergo the same rigorous testing that new buses and coaches must meet in order to ensure their safety and reliability,” recommending that the final rule include provisions that ensure that the original bus manufacturer is not referenced in a test report to limit confusion and to prevent a company from selling remanufactured vehicles using the original bus manufacturer's name for marketing purposes. In contrast, the remanufacturers said their vehicles already undergo extensive testing and analysis before, during, and after the remanufacturing process to ensure the vehicles' safety and durability, and that additional testing at Altoona would be ineffective and redundant.

    FTA is also aware that procuring remanufactured buses is being advertised in trade magazines and at trade shows as a less expensive alternative to procuring a newly built bus, and submitting both new and remanufactured vehicles to the same testing program could place both on an equal footing and ensure the safety and reliability of each. Furthermore, the national trade association's comments noted some issues within the trucking industry related to remanufactured equipment that could compromise safety and reliability of vehicles. Given Congressional direction in MAP-21 to augment FTA's safety responsibilities and to strengthen the bus testing program through today's regulatory changes, FTA believes the subject of remanufactured buses should undergo further review and consideration and will address the subject in a later rulemaking.

    Section 665.7 Certification of Compliance

    FTA proposed to amend this section to reflect that the recipient must certify that a bus has received a passing test score, but acknowledging that parties may seek assistance from FTA, consistent with FTA's role in reviewing partial testing requests as described in section 665.11(d). FTA is also removing the term “Grantee” from the section heading and throughout this part, as FTA now uses the term “recipient.”

    Comments Received: FTA did not receive any comments on this section.

    Agency Response: FTA is including this section in the final rule without change.

    Section 665.11 Testing Requirements

    FTA proposed new entrance requirements for a bus to enter the bus testing program. Before submitting a new bus model for testing, the transit vehicle manufacturer (TVM) would have to submit its disadvantaged business enterprise (DBE) goals to FTA consistent with the Department's DBE regulations in 49 CFR part 26. Test model buses would also need to comply with applicable FMVSS requirements in 49 CFR part 566, Manufacturer Identification; 49 CFR part 567, Certification; and 49 CFR part 568, Vehicle Manufactured in Two or More Stages—All Incomplete, Intermediate and Final-Stage Manufacturers of Vehicle Manufactured in Two or More Stages. Bus models would also need to identify the maximum rated quantity of standee passengers identified on the interior bulkhead in 2 inch tall or greater characters; be capable of negotiating the Durability Test course at the requisite test speed under all conditions of loading (curb weight, SLW, and GVW); and be capable of following the test duty cycles used for Fuel Economy and Emissions Tests within the test procedure for allowable speed deviation. Lastly, FTA proposed that bus models submitted would need to satisfy the domestic content requirements for rolling stock in 49 CFR part 661, Buy America Requirements.

    FTA also proposed a technical amendment to section 665.11(g) reflecting the addition of Appendix B to this part, resulting in the relabeling of the former appendix as the new “Appendix A.”

    Comments Received: FTA received multiple comments on this section. One commenter supported applying the Disadvantaged Business Enterprise (DBE) and Buy America requirement to bus models submitted for testing, stating that an inspection of a vehicle's domestic content prior to introducing a new foreign bus model is vital to preserve the integrity and reliability of the testing program and provides a level playing field among competitors, noting the importance of the test unit matching the composition of subsequent production units. Another commenter indicated that documentation of the vehicle's domestic content will assist future purchasers to assess the impact that changes in components could have on a vehicle's Buy America compliance. In contrast, several commenters opposed the Buy America content proposal—two noted that the buses submitted for testing are typically the private property of the bus manufacturer and are not being procured with FTA funds, with FTA funding serving as a determinant of Buy America applicability. Another commenter indicated that the requirement will discourage innovation by locking buses into a particular configuration and leaving no leeway for the introduction of new technologies. Another commenter requested that FTA consider alternative bus service life categories that account for the risk to grantees that procure new technology vehicles.

    Agency Response: FTA is eliminating the proposed Buy America content requirement from section 665.11(a)(5) in the final rule. Instead, FTA will require that the manufacturing country of origin for the test vehicle's major components be documented by the TVM during the test scheduling process—these would include the vehicle shell, axles, brakes, propulsion power system and auxiliary power systems (engine, transmission, traction batteries, electric motor(s), fuel cell(s)), and the primary energy storage and delivery systems (fuel tanks, fuel injectors & manifolds, and the fuel injection electronic control unit).

    This is a modification from the NPRM, which proposed that all buses submitted for testing meet the domestic content requirements of the FTA Buy America regulation. The primary focus of the proposal was to ensure that the design configuration of the test unit bus matched subsequent production units. However, commenters made FTA aware that the test unit bus may not be fully representative of all production units, and that grantees have the ability to specify changes in a production unit's components and configuration. These changes may subject the bus to additional testing, but that is a decision that the purchaser must knowingly make. In addition, bus models delivered for testing do not always include all of the ancillary systems (seats, wheelchair tie-downs, passenger information systems, etc.) that may well be part of the domestic content calculation of a particular bus procurement but these systems are not evaluated by the bus testing program, nor are they required in order for the vehicle to under testing. Finally, changes in, or the inclusion of, components may also alter a production vehicle's domestic content, and documenting the test unit vehicle's domestic content in a permanent test report may give a false indication of a vehicle's Buy America content. FTA acknowledges that the pre-award and post-delivery audits required by 49 U.S.C. 5323(m) and 49 CFR part 663 are the only acceptable confirmation of a vehicle's Buy America compliance and for that reason, TVMs will not be required to document a vehicle's compliance with Buy America during the check-in process.

    However, because the primary objective of the proposed requirement was to ensure that the design configuration of the test unit bus (structure design and materials, axles and brakes, and propulsion system and fuel systems) was representative of the production unit buses that would be delivered to FTA grantees, FTA is requiring TVMs to provide information concerning the source of essential vehicle components so that purchasers will have an effective means of comparing the test unit bus against the specific vehicle they intend to procure.

    Lastly, to acknowledge the broader applicability of FTA's service life categories other than simply as a means of determining a vehicle's testing procedure, FTA is removing the list of vehicle service life categories in section 665.11(e) and will instead incorporate the service life categories contained in FTA's Circular 5010.1.

    Section 665.13 Test Report and Manufacturer Certification

    FTA proposed adding language to this section that would require the Bus Testing Facility operator to score the test results using the performance standards and scoring system outlined in Appendix A of this part. FTA also proposed that the Bus Testing Facility operator obtain approval of the Bus Testing Report by the bus manufacturer and by FTA prior to its release and publication. Finally, FTA proposed that the Bus Testing Facility operator make the test results available electronically to supplement the printed copies.

    Comments Received: FTA did not receive any comments on this section.

    Agency Response: FTA is including this section in the final rule without change.

    Section 665.21 Scheduling

    FTA proposed that all requests for testing, including requests for full or partial testing, be submitted to the FTA Bus Testing Program Manager prior to scheduling with the Bus Testing Facility operator. All test requests would provide: a detailed description of the new bus model to be tested, the service life category of the bus, engineering level documentation characterizing all major changes to the bus model, and documentation that demonstrates satisfaction of each one of the testing requirements outlined in section 665.11(a). FTA would review the test request and determine if the bus model is eligible for testing and which tests need to be performed. FTA would prepare a written response to the requester for use in scheduling the required testing with the Bus Testing Facility operator.

    Comments Received: FTA received two comments on this section. Both comments asked FTA to commit to a maximum amount of time to review the test requests and provide a response to the requester.

    Agency Response: FTA will commit to reviewing the test request and providing an initial response within five business days. Some requests, particularly requests for partial testing of a bus model that has undergone the testing process but is subsequently produced with a change in configuration or component, may require additional time to review the specific design and engineering changes proposed and provide a final response.

    Section 665.23 Fees

    FTA proposed that the manufacturer's share of the test fee would be expended first during the testing procedure and that the Bus Testing Facility operator would obtain approval from FTA prior to committing FTA program funds.

    Comments Received: FTA did not receive any comments on this section.

    Agency Response: FTA is including this section in the final rule without change.

    Section 665.25 Transportation of Vehicle

    FTA did not propose any changes.

    Comments Received: FTA did not receive any comments on this section.

    Agency Response: FTA is including this section in the final rule without change.

    Section 665.27 Procedures During Testing

    FTA proposed additional language for this section to require the Bus Testing Facility operator to inspect the bus model configuration upon arrival to compare it to that submitted in the test request; to compare the gross vehicle weight and gross axle weights to the ratings on the bus; to determine if the bus model can negotiate the test track and maintain proper test speed over the durability, fuel economy and emission drive cycles; and to provide these results to the bus manufacturer and FTA prior to conducting testing using FTA program funds.

    FTA also proposed additional language to require the Bus Testing Facility operator to investigate each occurrence of unsupervised maintenance and assess the impact on the validity of the test results and to repeat any impacted test results at the manufacturer's expense. FTA also proposed language to address modifications to bus models undergoing testing. Specifically, FTA proposed that the Bus Testing Facility operator perform or supervise and document the performance of bus modifications only after the modifications have been reviewed and approved by FTA. The language also stated that testing would be halted after the occurrence of unsupervised bus modifications and the Bus Testing Facility operator would not resume testing until FTA has issued a determination regarding the modifications.

    In addition, FTA proposed moving the listing of test categories from Appendix A into section 665.27 and assigning performance standards to each of the test categories as MAP-21 requires. FTA proposed amending the Performance Test category by removing the language regarding the Braking Performance Test and moving it into the Safety Test category. FTA also proposed adding the requirement for a review of the Class 1 failures documented in the Reliability Test category to the Safety Test category.

    Comments Received and Agency Response: FTA received numerous comments on this section. One commenter asked how many days FTA would need to perform the test readiness review and issue a decision regarding the start of testing. The other comments on this section were pertaining to the specific tests and the proposed performance standards, which are summarized as follows:

    Structural Integrity

    There were nine comments on the Structural Integrity test category and the associated performance standards. In response to comments, several refinements were applied to the final rule.

    FTA received two comments concerning the Shakedown test and performance standard, with one recommending a maximum deflection of 0.100 inch to account for the floor load of a passenger on a wheeled mobility device, the second challenging the relevance of the test and considering it to be redundant with the test track durability test. The Shakedown test in section 665.27(h)(5)(i)(1) has been eliminated as FTA believes that this test is a legacy test procedure that pre-dates the bus testing program and provided a means to verify a level of structural integrity at a transit agency facility in lieu of performing a test track durability test. Any incremental value provided by the Shakedown test in light of the Structural Durability test performed on the test track is not apparent.

    One commenter inquired whether the Dynamic Towing test would capture any structural or other types of failures throughout the bus and if the test was performed in a stop-and-go manner including the negotiation of turns. FTA is not making any changes to section 665.27(h)(5)(i)(4) regarding the Dynamic Towing test and performance standard. The Dynamic Towing test is a demonstration that the bus can be safely and effectively towed by a common heavy duty vehicle tow truck, without regard to operational usage or negotiation of turns. The test, however, does induce unique loads into the bus structure and on the rear axle of the bus, as the five-mile towing distance performed during the test is continuous around the paved test loop.

    One commenter questioned the relevance of the Jacking test and recommend that FTA seek the input of transit operators. FTA is not revising section 665.27(h)(5)(i)(5), the Jacking test. FTA believes that this test remains relevant, that a bus model that fails to meet the performance standard could be a significant operational problem for transit operators, and that the time and cost burdens of conducting the test are minimal.

    Another commenter suggested that FTA consider evaluating the corrosion resistance of bus models during the structural durability test. One commenter offered a proposal to evaluate the corrosion resistance of new bus models. FTA considered this proposal and believes that this non-testing based evaluation does not provide sufficient technical analysis on which to base a score, in addition to being outside the scope of this rulemaking.

    One commenter proposed that FTA to make bus models available to component suppliers to use for partial testing programs to enable the development of robust aftermarket components and new technology subsystems. While this is an interesting proposal, this is also outside the scope of today's rulemaking and FTA would need a significant increase in funding in order to acquire and maintain a fleet of buses to serve as platforms for the testing of new components and technologies.

    Structural Integrity—Durability

    There were several comments requesting clarification on the implications of the proposed durability performance standards and suggestions for alternatives methods for evaluating both structural and powertrain durability of new bus models, components, and subsystems.

    First, FTA was asked to clarify the types of failures that invoke a failure to meet the durability performance standard and the process for resolving those failures. The commenter wanted to know if there were certain types of failures that would automatically trigger a test restart, if FTA could commit to a response time to provide feedback about the proposed design remedy to resolve a durability failure. The commenter proposed that FTA consider not requiring a mile-for-mile validation of structural durability failures that are not Class 1 or Class 2 level reliability failures through the use of stress and strain measurements and common structure modeling techniques, and suggested that FTA allow the durability test to continue after a durability performance standard failure so that testing can progress while the bus manufacturer prepares the design remedy.

    To clarify, then, for the structural durability performance standard, any discontinuity (e.g., cracking, deformation, or separation) that develops during the test in any of the bus material elements that are permanently affixed, through welding or other bonding methods including non-serviceable fasteners such as rivets, whose function is to bear the weight of the vehicle or the weight of the passengers, or maintain the physical geometry of other load bearing elements and openings in the bus body, or that secure and retain other non-bonded bus body components will be considered a failure to meet this performance standard. Material discontinuities that develop during the test in the main frame rails and the frame cross-members on body-on-frame bus models will also be considered a failure of the structural durability performance standard. For the powertrain durability performance standard, all malfunctions of bus powertrain system will be classified as a failure of the powertrain durability performance standard until remedied and validated. Structural failures of the powertrain components, including any associated bracketry, mounts, cradles, and fasteners used to physically attach the components to the bus body or frame are also considered a failure of the powertrain durability performance standard.

    If the Durability test reveals a durability performance standard failure, the structural durability test will be paused awaiting a proposed design remedy from the bus manufacturer. FTA will review the proposed remedy and provide a response to the proposed design remedy within five business days. The intent of the FTA review is to evaluate that the proposed design modification is relevant to the failure mode and that it is suitable for production.

    FTA will employ the existing partial testing policy for powertrain changes or updates to new bus models that are subject to the Pass/Fail rule. Currently, FTA focuses on the engine, transmission fuel system, and drive axle to assess if partial testing is needed. Once each of these new components has been tested in a bus, FTA allows their use in subsequent bus models without additional testing based on FTA's experience that the replacement of these components is not likely to significantly alter existing test data in the Bus Testing Report. While the scope of the powertrain durability performance standard casts a wider net than the partial testing policy for powertrain changes, bus manufacturers will be allowed to substitute minor powertrain components not currently tracked by the current partial testing policy if a credible analysis is provided that demonstrates the component substitution is durable in a transit service environment and that secondary failures of the primary powertrain components are not induced if the substituted component fails. FTA does not believe that the supply of aftermarket parts available to transit operator for maintaining their buses will be negatively affected by the powertrain durability performance standard. FTA only requires that the buses remain in service for at least their designated service life. Grantees do not have to maintain the original design configuration throughout a vehicle's service life and may replace components and major subsystems over the vehicle's lifespan.

    Commenters also sought clarification regarding the inclusion of electric bus model off-board charging equipment in the powertrain durability performance standard. Currently, all battery bus chargers are unique to the bus models. If the charging system fails to perform, the bus can only operate on the remaining charge. For bus fleets that employ bus models designed for overnight charging, FTA assumes that more than one battery charger will be available at the bus depot, providing a charging system redundancy that can be leveraged to maintain bus operations. These battery chargers would not be considered as part of the vehicle's powertrain. For bus models designed specifically for on-route charging, the off-board charging system and the on-board charging system interfaces are considered part of the bus powertrain. Additionally, since all bus charging systems are unique, all electric bus models are subject to the testing requirement. The Bus Testing Facility operator provides access to a high voltage source for the battery charger, while the TVM or component vendor is expected to provide the battery charger with the bus model to be tested. Once battery charging systems for buses become standardized, FTA will pursue their installation at the test site.

    Various commenters also proposed alternative durability tests. First, one commenter proposed the use of a risk assessment and field monitoring process for the introduction of new bus technologies on an existing bus model as a substitute for performing partial testing. While this concept has some merit, it would not satisfy the current legislative mandate to conduct actual testing and additional program resources would need to be made available in order to execute this type of program. Another commenter requested that FTA reduce the amount of additional test mileage required to validate a design modification in the event of a failure to meet the durability performance standard. This commenter suggested a combination of stress and strain measurements and analytical models to be used to validate that the probability of the stress induced structural discontinuities in the bus have been reduced or eliminated with the new design. FTA considered the merits of this proposal and has decided that in cases where there is not enough remaining mileage in a test procedure to validate the design change on an actual mileage basis, FTA will consider the manufacturer's efforts to characterize the material stresses through measurements, analyses, and other engineering work to determine an adequate test distance to validate the analysis and the proposed design remedy.

    Safety

    There were multiple comments related to the Safety test category. Seven commenters recommended that FTA consider heightened standards with respect to the flammability of interior materials to address the inadequacies of Federal Motor Vehicle Safety Standard (FMVSS) 302. Although establishing fire safety standards for bus testing program is outside the scope of the NPRM, FTA reviewed the large number of vehicle interior fire safety information submitted by various commenters. FTA notes that updating FMVSS 302 is not within FTA's regulatory authority and suggests that commenters direct their comments to the National Highway Traffic Safety Administration, the U.S. DOT mode responsible for maintaining the FMVSS.

    Another commenter suggested that FTA establish a requirement for the use of collision avoidance systems in transit buses, while another recommended that FTA establish crashworthiness test standards for buses. The commenter's recommendation to establish safety performance standards to require collision avoidance systems and crumple zone or other crashworthiness standards on transit buses are not within the scope of the NPRM, as is the proposal to establish braking standards for emergency stops on a grade and the recommendation to adopt performance standards for wheeled mobility device securement devices.

    One recommended that the acceleration test be inserted into the Safety test category and that FTA adopt performance standards for mobility aid securement devices. The suggestion to move the acceleration test into the Safety test category is not being adopted because FTA believes this test is more pertinent to the vehicle's performance, rather than affecting the vehicle's safety.

    Additional commenters sought clarification on the definition of Class 1 failures. With regard to the commenter who sought clarification on whether structural failures should be addressed as hazards, FTA considers the following types of test incidents as Class 1 reliability failures resulting in a failure to satisfy the hazards performance standard: (1) the loss or degradation of the obstacle avoidance capability (braking, steering, & acceleration/speed control) of the bus due to a component malfunction. For example, a loss of power steering is considered a Class 1 reliability failure due to the expected increase in the force required to turn the steering wheel, reducing the rate of directional change a driver can effect into the bus and compromising its ability to avoid an obstacle; (2) the occurrence of a fire or the potential for a fire (e.g. fuel leak in the presence of an ignition source, electrical short circuit, leaks of other flammable fluids near an ignition or heat source); (3) major structural failures that can induce conditions (1) or (2) above, or lead to a physical compromise of the passenger compartment (an unintended exposure to the outside environment or physical trauma to a passenger) or degrades the ability of a passenger to exit the bus.

    Regarding the proposed testing and performance standards for Braking, one commenter recommended the elimination of the brake stopping distance test and the use of FMVSS certification testing results. Another commenter recommended that the buses be weighted to the maximum gross passenger load for the braking test, and another asked FTA to establish additional brake performance requirements for stopping on a grade. The commenter's suggestion to eliminate the stopping distance test was not accommodated, as a braking performance test is required by statute, and FMVSS compliance is based on self-certification, whereas FTA's is based on actual test data. FTA is adopting the suggestion to conduct the stopping distance test at a full passenger load by conducting an additional set of brake stops at gross passenger load. However, the stopping distance performance standard will be assessed using the test results with the bus loaded to seated load weight as was proposed in the NPRM.

    Reliability

    One comment to the Reliability test category and proposed performance standard recommended that flat tire incidents not be counted as a test failure, as flat tires are commonly caused by road debris and not by bus design.

    FTA does not agree with the commenter's suggestion to ignore the occurrence of flat tires during the test and not count them against the Reliability performance standard. Flat tires that are the result of a physical interference or structural problem will need to be addressed and resolved prior to test completion, but flat tires due to the presence of debris on the test track will not be documented in the test report.

    Noise

    Two comments to the Noise test category and proposed performance standards were offered. The first requested clarification as to how the performance applied to electric bus charging systems. The second suggested that the noise levels, while traversing a fixed object, such as a speed bump, be measured during the noise test.

    FTA will accommodate the request to measure noise levels while the bus traverses road irregularities, as the current audible vibration test is conducted over the road while travelling from the test track to the main maintenance shop area in Altoona. In addition to the over the road segment this general interior noise test will be conducted on the test track. However, there is no minimum performance standard or scoring associated with this test, and noise testing of an electric bus will not be conducted while it is being charged, as it is not directly related to the vehicle's durability or performance.

    Performance

    Two similar comments on the Performance test category and performance standard suggested that FTA conduct the tests in this test category at a fully-weighted or gross passenger load.

    With regard to the suggestion to conduct acceleration and gradeability tests at the maximum gross passenger load, current tests are conducted at a seated passenger load and there is no technical basis to conduct additional test runs. However, expected performance standards for acceleration and gradeability can be extrapolated using the results from the seated passenger load test runs.

    For the check-in procedures outlined in section 665.27(b), FTA has revised the language to provide FTA five business days to review the results from the procedure outlined in 665.27(a) and provide a decision to either start the test or to request clarification about the results of that review. To prevent administrative test delays, the Bus Testing Facility operator has the authority to commence specific tests where FTA does not provide a response within five business days and the performance of those tests is not dependent on FTA's determination.

    Appendix A to Part 665—Bus Model Scoring System and the Pass/Fail Standard

    FTA proposed adding tables as Appendix A to graphically illustrate the new Bus Model Scoring System and the Pass/Fail Standard.

    Comments Received

    Four commenters expressed a concern that the aggregate score will encourage grantees to use the score blindly and not read the actual content of the test reports. They also expressed a concern that a procurement protest could be filed if they selected a bus model that did not have the highest score of those submitted for bid. In addition, one commenter wanted to know if they would be allowed to apply a different weighting to the scoring system than the weights assigned by FTA.

    FTA also received several comments regarding the fuel economy test and the fuel economy scoring system. Two commenters were concerned that the new dynamometer based fuel economy test method will not differentiate the efficiency differences between heating, ventilation, and air conditioning (HVAC) systems installed on the test buses and that the new test methodology does not fully reveal the potential of the new hybrid bus technologies. Two commenters strongly recommended that FTA employ a universal fuel economy scoring system for use with all fuel types, to illustrate the higher fuel economy of electric and hybrid-electric vehicles. Another commenter recommended that the fuel economy scores for 60-foot bus models be adjusted higher by 150 percent to reflect the additional weight of the vehicle.

    Agency Response: In regards to the concerns about the use of the scoring system as a primary determinant in procurement decisions, FTA will insert a disclaimer in test reports explaining that the using the test scores as the determinative factor in a competitive procurement is not required. Grantees may use their own specified selection criteria, so long as the selected bus model received a passing test score. Grantees are allowed to establish evaluation criteria more stringent than those used in FTA's testing program or to use an alternative weighting for the scoring of the test results, provided that those criteria do not violate FTA's requirement for full and open competition (See 49 U.S.C. 5323(a)).

    Based on comments that the Shakedown test is redundant in light of the broader Structural Durability test, FTA is eliminating the Shakedown test and moving the base points (1.0) associated with the test into the Structural Durability test category, increasing the value of the later test from 12.0 to 13.0 points. Regarding the comments requesting modification of the Fuel Economy test procedure to reflect the effect of HVAC operation on fuel consumption, neither the existing test track test procedure nor the dynamometer procedures are capable to testing the effects of various HVAC systems on the measured fuel economy. While the testing is conducted with the ventilation fan engaged, the air conditioning and the heating system controls are set to the equivalent of an “off” state. Although evaluating the effect of HVAC systems on fuel economy is technically possible, it would require that the dynamometer facility be capable of maintaining extreme temperatures to accurately stress the HVAC systems and the overall thermal performance of the bus body. Performing this type of testing would require a significant capital investment in the test facility and also would require a significant increase in testing fees.

    Both the test track and dynamometer-based fuel economy tests do not expressly inhibit engine-off hybrid buses from turning their engines off during the test procedure. Two of the three dynamometer-based test cycles are actual transit duty cycles. Because buses are designed to operate in an efficient manner, a bus should end with the battery state of charge (SOC) at the same level or higher than at the start of the test cycle. This may require the vehicle to idle for an additional time period to restore the battery's SOC.

    Several commenters on the proposed fuel economy scoring scale recommended using a single scoring for all fuel types instead of the individual fuel-specific scales proposed in the NPRM. A scale such as Miles per Gallon diesel equivalent (MPGde), conceptually based on the current Miles Per Gallon equivalent (MPGe) scale developed by the Environmental Protection Agency (EPA) for light duty vehicles 1 and adjusted to the diesel fuel energy equivalent, was considered. The MPGe scale expresses the fuel economy of all other vehicle fuel types in terms of the energy equivalent of a gallon of gasoline. This methodology examines the efficiency of each vehicle's energy to power conversion from the fuel tank to the wheels but does not account for the efficiency of producing and delivering the fuel to the vehicle.

    1https://www3.epa.gov/otaq/carlabel/electriclabelreadmore.htm.

    FTA strongly believes that given the wide range of fuel types available in the transit bus marketplace, the best and most commonly cited scoring metric for fuel economy is fuel cost per operating mile. However, due to the volatility of fuel prices, regional fuel price variances, and the variance in the availability of various fuels, establishing a standardized baseline for fuel economy test results based on fuel cost per operating mile is inherently problematic for inclusion in the rule.

    FTA examined the use of MPGde for the scoring of the fuel economy test results but declines to adopt such an approach for several reasons. First, MPGde does not factor the energy cost efficiency of each fuel type into the calculation. High values of MPGde do not always indicate low overall fuel operating costs which is a top bus performance priority for most agencies. For example, hydrogen fuel cell buses would be expected to have an MPGde rating more than twice as high as a diesel bus but the fuel currently costs more than three times that of diesel fuel on a gallon equivalent basis resulting in higher overall fuel operating costs. Similarly, CNG buses would be expected to have an MPGde rating about 20% lower than that of a diesel bus but the fuel itself costs less than half that of diesel making it a popular choice in many locales even when the capital and operating costs of the fueling stations are considered.

    Second, MPGde does not account for the significant fueling infrastructure costs of most alternative fuels introduced into transit fleets, nor does MPGde account for the significant differences in maintenance facilities, maintenance practices and tools, and maintainer skill sets required for each fuel type. While the choice between gasoline and diesel is not an issue for private owners of passenger vehicles, who can take the vehicle to any number of car dealers or maintenance garages, switching or adding a new bus fuel type can be a significant undertaking for most agencies with respect to bus maintenance. Although MPGde could be considered relevant to an overarching Federal interest in minimizing transportation energy consumption, FTA believes that MPGde is not used by transit agencies as it is not a clear indicator of fuel operating costs.

    Third, MPGde only assesses the fuel efficiency of the vehicle from the vehicle's fuel tank to the wheels and not the true “well-to-wheels” efficiency of the complete fuel chain. This methodology generates an artificially high MPGde value for electric vehicles as most of the costs of generating and delivering electric “fuel” take place off-board the vehicle at the electric powerplant and along the power transmission lines. For instance, a bus can consume compressed natural gas (CNG) and achieve one MPGde value, versus burning CNG to fuel an electric powerplant and delivering the electricity over wires to charge an electric bus, with a resultant MPGde rating approximately five to six times greater than that of the CNG bus due primarily to the efficiency accounting methodology and not the actual well-to-wheels fuel efficiency. Therefore, FTA believes that adopting MPGde is not a suitable scoring mechanism to indicate the Federal priorities for energy sustainability to the transit industry.

    Lastly, if FTA scored the fuel economy results using MPGde, the resulting inflated electric vehicle MPGde values will require expanding the range of the scoring scale significantly. Due to the current scale having a fixed number of points, the resolution of the scale will be reduced, making all bus models of the same size class and fuel type look identical with respect to the score. This defeats the primary purpose of the program which is to provide agencies objective information for the selection of bus models during the bus procurement process.

    By maintaining the separate proposed fuel economy scoring scales, the well-to-wheels efficiency differences of different fuel types are neutralized as each fuel type has its own scale. This approach highlights the efficiency differences between bus models of the same fuel type which is very useful for transit agencies while still supporting the Federal interest in reducing transportation fuel consumption.

    D. Regulatory Analyses and Notices Executive Orders 13563 and 12866 and DOT Regulatory Policies and Procedures

    This rulemaking is a significant regulatory action within the meaning of Executive Orders 13563 and 12866, and FTA has determined that it is also significant under DOT regulatory policies and procedures because of substantial State, local government, congressional, and public interest. However, this rule is not “economically significant,” as defined in Executive Order 12866.

    This section explains the purpose of the bus testing program, why FTA is establishing a pass/fail requirement with a point-based system and how that fits within FTA's mission, the alternative scoring systems FTA considered, the logic that FTA employed in determining the weights assigned to the different test categories, FTA's rationale for prioritizing use of the manufacturer's portion of the testing fee, and FTA's analysis of the costs and benefits.

    Alternative Scoring Systems Considered

    While reviewing and developing scoring systems to meet the MAP-21 requirements, FTA considered a number of alternatives. To begin, FTA considered the importance of the entirety of the safety tests within the existing Bus Testing Program. Noting how integral to the bus testing program each of the testing categories were, FTA wanted to ensure that the buses that were tested, at the very least, met all of the minimum performance standards, regardless of the scoring system that FTA adopted. Stated differently, FTA resolved that the scoring system would have to preclude a bus model from passing the test solely by attaining additional points in other categories (while failing in one or more key categories), resulting in points greater than the threshold that FTA set for the pass/fail standard. FTA also wanted to ensure that whatever system FTA adopted would be relatively simple, straightforward, and easy to understand, and provide meaningful information to both transit agencies and manufacturers. Using these principles, FTA assessed various systems that FTA could adopt or implement to meet the requirements of MAP-21.

    FTA first considered various qualitative systems. FTA reviewed a “five-tier” based system, as used by other organizations. FTA liked the simplicity of the five-star system for grading buses that met the minimum requirement of passing all of the tests. While FTA's review of various systems indicated that such qualitative systems are simple to implement, they can be very subjective. Moreover, the five-tier system did not capture the level of detail and differential information that FTA desired to convey to the transit industry and manufacturers. FTA also reviewed and considered an “A to D” based grading system. Again, while this would have resulted in a fairly simple and straightforward system, it did not convey the level of information or the level of detail to inform transit agencies who are purchasing the vehicles. Thus, FTA rejected these two qualitative systems. While they were simple, straightforward, and easy to understand, they did not meet FTA's goal of providing meaningful information to transit agencies and manufacturers.

    Next, FTA considered quantitative point-based systems with the minimum threshold requirement of passing all of the tests. FTA considered various scales. FTA rejected a 50-point based scale for lack of simplicity. FTA considered an 80-point scale (10 points for each test category) and rejected it because it did not capture the relative importance or weighting of the categories. FTA also considered various levels for the pass/fail threshold for each of the scales. Finally, FTA settled on a 100-point scale due to its universality. FTA initially considered a minimum passing score of 40 points, believing the 60 discretionary points would provide purchasers with a greater range with which to evaluate different vehicles, but given the grading systems used in academia and other applications, FTA established a minimum passing threshold of 60 points with 40 discretionary points. This quantitative scale with the minimum threshold of passing all of the tests met all of FTA's goals that the scoring system is relatively simple, straightforward, and easy to understand, and will provide meaningful information to transit agencies and manufacturers.

    Logic Used To Determine Weighting for Tests and Sub-Tests

    After deciding to propose a 100-point scale for the Bus testing program, FTA had to weigh the importance of each of the test categories within the Bus testing program. FTA determined that the Structural Integrity and Safety Tests were the most important components of the bus testing program, as both were critical to the operation of the vehicle while on the road. Therefore, FTA allotted 50 of the total 100 points to these two tests. Between the two tests, FTA determined that while both were important, the Structural Integrity Test was more important than the Safety Test, based on its greater importance in evaluating a vehicle's construction, design, and ability to meet service life requirements. Hence, FTA assigned 60 percent of the points for these tests to the Structural Integrity Test and the remaining 40 percent to the Safety Test.

    Within the Structural Integrity Test are six sub-test categories, of which five are pass/fail tests. Thus, FTA allotted one point each for the Distortion, Static Towing, Dynamic Towing, Hydraulic Jacking, and Hoisting Tests. The Durability Test, as the most important component of the Structural Integrity Test, received the remaining 25 points. Within these Durability Tests, FTA allocated 13 points to structural durability and 12 points to powertrain durability due to importance to meeting service life requirements.

    For the Safety sub-tests, FTA determined that the Hazards Test was as important as the other two sub-tests within this category and allotted it one-half of the total 20 points. The Stability and Braking Tests have three component tests that require a pass/fail grading and one that is a performance based allocation. FTA valued each of these tests equally, based on their relative importance when evaluating a vehicle. Hence, FTA apportioned 25 percent of the remaining points to each test.

    For the Maintainability and Reliability Tests, FTA assessed the Maintainability Test to be twice as important as the Reliability Test, but both tests to be as important as the remaining tests, as both directly affect a transit agency's operating costs. Maintainability reflects how much time and resources the transit agency should expect to budget over the course of a vehicle's service life to perform routine maintenance, and reliability reflects a vehicle's ability to meet its service life requirements without significant service disruptions caused by unscheduled maintenance. For ease of assigning points within the weightings, FTA allocated 24 points (or just less than one-half of the 50 points for the remaining tests) to these two tests. Hence, within FTA's weighting scheme, the Maintainability Test received 16 percent of the total points and the Reliability Test received eight percent of the total points.

    Assessing the remaining four tests, Fuel Economy, Emissions, Noise, and Performance Tests, FTA determined that each was about the same level of importance based on comments from transit agencies, but that two, Fuel Economy and Emissions Tests, were slightly more important in terms of helping a transit agency to budget for a vehicle's fuel consumption over its lifetime and in calculating the vehicle's incremental benefit towards meeting Clean Air Act requirements. Therefore, as opposed to assigning equal weighting to each of the remaining tests, FTA allocated slightly more weight to the Fuel Economy and Emissions Tests than the Noise and Performance Tests. This resulted in a point allocation of seven points or 27 percent of the remaining points for to the Fuel Economy and Emissions Tests and an average of six points or 23 percent of the remaining points for the Noise and Performance Tests.

    The Fuel Economy Test allocates points on a performance basis determined by the output of the type of fuel. For the Emissions Tests, FTA apportioned one-half point for each of the five Emissions Tests that are already regulated by other Federal agencies and the remaining points for the Carbon Dioxide Test. This weighting for carbon dioxide captures the importance of alternative fuels with respect to greenhouse gases.

    The Noise Test allocates points on a performance basis determined by the level of decibels produced. FTA weighted the Interior Noise and Exterior Noise Test equally (3.5 points each). As for the Performance Test, FTA weighted the bus model performance on a 2.5 percent grade and the performance during the acceleration test as being equally important and together being worth 60 percent of the five points available. The performance on a 10 percent grade was valued at 40 percent of the Performance test category.

    Testing Fee Prioritization

    In order to preclude buses that are not ready to complete the bus testing program, the NPRM proposed to exhaust the manufacturer's 20 percent contribution for the total testing fee prior to employing funds from FTA's 80 percent contribution. This prioritizing of the manufacturers' portion of the test fee will incentivize transit vehicle manufacturers to ensure that the bus model submitted will, at a minimum, clear the initial check-in inspections, passenger loading, and initial testing operations. FTA estimates that, depending on the bus model, the first 20 percent of the testing fee should encompass the check-in process and threshold tests.

    Based on previous testing experience, FTA determined that bus models that fail these preliminary activities will not perform well during subsequent tests. This policy minimizes the cost to FTA from bus models submitted before they are ready for testing, thereby conserving Federal resources and ensuring that the proper incentive structures are in place. This will encourage manufacturers to ensure their product can withstand the rigors of bus testing. FTA would continue to pay the 80 percent Federal match for one retest and would contribute no Federal funds for a third test or subsequent tests required to achieve a passing test score.

    Cost-Benefit Analysis

    This section contains FTA's analysis of the benefits and costs of the rule. FTA estimated the rule's benefits and costs through two steps: First, FTA identified and analyzed the costs of the existing Bus testing program (baseline). Second, FTA identified and analyzed the expected costs of the rule relative to the baseline. To determine the benefits and costs of the rule, FTA reviewed the test data for all bus models that had been tested at the Bus Testing Facility between January 2010, when the Environmental Protection Agency's (EPA's) current Diesel Engine Emission Standards took effect (40 CFR part 86, as amended, 66 FR 5002, January 18, 2001), and February 2013, when this rulemaking commenced. The resulting diesel engine exhaust after-treatment systems used to satisfy the 2010 requirements potentially impacted the reliability, maintainability, fuel economy, emissions, and noise test results for a portion of the 49 buses. Additionally, there were OEM product updates to many of the medium-duty chassis used by the five, seven, and ten year service life buses that would affect test results in several test categories.

    A total of 49 buses had been tested over this period. FTA believes that the test results for these 49 bus models tested since 2010 provide the best available source of information for determining the cost of the rule on future buses that would be tested (and the models they represent). All bus types and sizes are included in the group of 49, from accessible vans to 60-foot articulated bus models. Buses fueled by compressed natural gas (CNG), electricity, diesel, gasoline, and liquefied petroleum gas (LPG) are included within this group. To determine qualitative benefits, FTA also examined the test results and the transit experience with two bus models tested (prior to 2010) that failed to meet their service life requirements in transit service. FTA has placed the test results of the buses that it analyzed in the docket for this rulemaking.

    Costs

    A summary of the results of FTA's cost analysis is presented in Table H-1. Eight categories of costs were identified, analyzed, and annualized:

    1. Cost of Required Bus Design Changes: This category is the estimated annual cost of applying the design changes and components necessary to comply with all of the proposed performance standards to all affected bus models produced in one year.

    2. Lost Value of Test Buses: This category estimates the depreciation cost of a bus subjected to the testing process. For each of the 49 buses models tested from 2010 through 2012, the full retail value was estimated by identifying a recent purchase value from the 2013 APTA Fleet Report and applying a depreciation factor of 50% to bus models that underwent a durability test and a factor of 20% for bus models that only underwent performance and other non-durability related tests.

    3. Shipping of Test Buses: This category estimates the cost of shipping the test buses to the Bus Testing and Research Center and back to the manufacturer. The actual/estimated distance that each of the 49 bus models traveled was determined and was used for FTA's calculations. Table H-0 presents this data. For 10-, 7-, 5-, and 4-year buses, a cost of $2.00 per mile was used to estimate the shipping cost. This cost is based on a recent shipment of a mid-sized bus on a truck. For heavy-duty 12-year diesel fueled buses, a cost of $1.61 per mile was used to cover the costs of driving the bus to the test center and back. The estimated fuel costs were calculated using the bus model's measured highway fuel economy and a fuel price of $3.00 per gallon was added. For heavy-duty buses powered by natural gas or electricity, a shipping cost of $4.00 per mile was applied. This cost represents the cost to ship these bus models on a truck.

    Table H-0—Distance Traveled To and From Test Center Report No. Service life Actual/Estimated shipping distance to and from test center Shipped via truck to and from test center 1001 7 490 1002 7 490 1003 12 549 1004 7 490 1005 7 1014 1006 10 490 1007 12 310 1008 7 490 1009 7 490 1010 10 975 1011 12 780 1012 7 490 1014 7 490 1015 12 1400 1016 12 1400 X 1017 4 490 1101 12 1400 1102 7 490 1103 7 1112 1104 10 490 1105 7 1112 1106 7 490 1107 12 574 X 1108 12 482 1109 12 2676 X 1110 10 490 1111 7 490 1112 7 490 1113 7 430 1114 7 490 1115 4 1112 1116 7 1112 1117 12 310 1118 12 1400 X 1120 7 490 1201 7 490 1202 12 310 1203 7 430 1204 7 1112 1205 12 1400 1206 12 2676 X 1207 7 1112 1208 7 430 1210 7 1112 1211 12 1400 1212 7 955 1213 12 482 1214 7 1112 X 1215 4 490

    4. Parts Consumed: This cost category is for the cost of parts consumed during the test.

    5. On-Site Personnel: This cost category is for the cost of maintaining manufacturer personnel on-site at the test center. For each test of a heavy-duty bus, the cost of a mechanic's labor ($20.35 an hour), lodging, and per diem at State College, PA for three full months. Manufacturer personnel are often on-site during the testing of heavy-duty bus models.

    6. Paperwork Burden: This cost category covers the costs to manufacturers of providing mandatory information to the bus testing program.

    7. Manufacturer Testing Fees: This cost category covers the 20 percent testing fees that the manufacturers pay to have testing conducted.

    8. FTA Program Cost: This cost category covers the funding provided by FTA to cover 80 percent of the costs associated with testing a bus model.

    FTA estimates the costs of the existing bus testing program are as follows: The maximum total annual program cost is $3,750,000 with 80 percent ($3,000,000) covered by FTA and 20 percent ($750,000) paid by transit vehicle manufacturers who submit a bus for testing. The current Paperwork Reduction Act reportable costs are $9,016. The estimated annual cost of on-site manufacturer personnel is estimated to be $76,673. The value of the parts consumed in the testing process is unknown. The annual estimated bus shipping costs for the current program is $63,743. The estimated annual test bus depreciation cost is $1,591,714. The annual cost of bus design improvements as a result of the current program is assumed zero as there are no minimum performance standards requirements. The estimated annual cost of the current bus testing program is $5,491,146.

    Table H-1—Summary of Cost Analysis Results [All values in $] Cost of req'd
  • bus design
  • changes
  • Lost value
  • of test
  • buses
  • Shipping
  • of test
  • buses
  • Parts
  • consumed
  • Manufacturer
  • on-site
  • personnel
  • Paperwork
  • burden
  • Testing
  • fees
  • FTA
  • Program
  • cost
  • Baseline-current program 0 1,591,714 63,743 unknown 76,673 9,016 750,000 3,000,000 Proposed MAP-21 Minimum Proposed Performance Standards and Scoring System unknown 0 2,209 unknown 5,103 767 33,362 133,448 Proposed Discretionary Program Changes 58,308 0 0 0 0 2,810 −15,328 −61,310 Revised Bus Payloading Procedures 58,308 0 0 0 0 1,488 −74 −294 Elimination of On-Road Fuel Economy Test 0 0 0 0 0 0 −16,000 −64,000 Revised Bus Passenger Load for Emissions Testing 0 0 0 0 0 0 −118 −470 Bus Testing Entrance Requirements 0 0 0 0 0 0 664 2,654 Revisions to the Test Scheduling Requirements 0 0 0 0 0 1,322 0 0 Test Requirements Review Milestone 0 0 0 0 0 0 0 0 Penalty for Unauthorized Maintenance & Modification 0 0 0 0 0 0 200 800 Estimated Program Costs (Baseline & New Proposals) 58,308 1,591,714 65,952 unknown 81,776 12,593 768,034 3,072,138 Total 5,650,515 Baseline Total 5,491,146 Incremental Program Cost 159,369

    To estimate the costs of the rule, FTA first identified all of the bus models in the study group of 49 that would fail to meet the standards.

    The most significant cost caused by this rule will be the cost of retesting to validate a vehicle that has failed one or more tests. Eight of the 49 buses FTA examined failed one or more tests. The below table identifies each test these buses would have failed, thus triggering the retesting requirement. FTA also estimated the costs for retesting, and in two cases, the cost of a potential remedy.

    Table H-2—Summary of the Costs for Retesting Failed Bus Models [Cost of remedying and retesting bus models (2010-2013) that would fail a proposed performance standard ($)] Bus
  • (report No.)
  • Failed test
  • category
  • Cost of required bus design changes Lost value
  • of test
  • buses
  • Shipping of test bus back to manufacturer for modifications and return to
  • Altoona
  • Additional
  • parts
  • consumed
  • On-site
  • personnel
  • Paperwork
  • burden
  • Testing fees
  • (20%)
  • FTA
  • program
  • cost
  • PTI-BY-1214 Structural durability Unknown—upper body structure failing 0 0 Unknown 4,374 215 11,152 44,608 PTI-BT-1208 Structural durability Unknown—body structure cracks 0 0 Unknown 4,374 215 11,152 44,608 PTI-BT-1110 Structural durability Unknown—body to frame interface is cracking. Potentially need a new bus body mount design 0 0 Unknown 4,374 215 17,054 68,216 PTI-BT-1108 Powertrain durability Unknown—multiple different powertrain failure modes need to be remedied 0 2,034 Unknown 710 23,578 94,312 Maintainability If powertrain durability failures are corrected this standard would be met as well 0 0 Unknown 0 0 0 PTI-BT-1108 Performance Unknown—the maximum propulsion power delivered to the wheels needs to be increased 0 0 Unknown 0 600 2,400 PTI-BT-1009 Powertrain durability Unknown—multiple different powertrain failure modes need to be remedied 0 0 Unknown 2,187 215 11,152 44,608 PTI-BT-1107 Structural durability $130—radius rod mount was re-welded to correct manufacturing defect 0 0 42 0 0 Powertrain durability Unknown—multiple different powertrain failure modes need to be remedied. Transmission cradle was the primary issue 0 4,592 Unknown 380 23,578 94,312 PTI-BT-1107 Performance Unknown—the maximum propulsion power delivered to the wheels needs to be increased 0 Unknown 42 600 2,400 Safety-braking Additional test trials needed to achieve greater brake lining contact with brake rotors 0 0 0 0 0 620 2,480 Maintainability 0—if the powertrain durability failures are corrected this standard would be met as well 0 0 Unknown 0 0 0 PTI-BT-1006 Interior Noise $211—this trolley bus exceeded the proposed interior noise standard by 4 dB at the driver's seating position. Commercially available sound dampening material applied to the floor and engine cover area would reduce the average noise level by 5 dBs 20 square feet of this material costs $170.00 retail and a two hours of mechanic labor (2 − 20.35 = 40.70) to install 0 0 0 0 133 300 1200 PTI-BT-1010 Interior Noise $211—this trolley bus exceeded the proposed interior noise standard by 4 dB at the driver's seating position. Commercially available sound dampening material applied to the floor and engine cover area would reduce the average noise level by 5 dBs 20 square feet of this material costs $170.00 retail and a two hours of mechanic labor (2 − 20.35 = 40.70) to install 0 0 0 0 133 300 1200 Total Cost ($) Unknown 0 6,626 0 15,309 2,300 100,086 400,344 Annual Cost ($) Unknown 0 2,209 0 5,103 767 33,362 133,448

    In addition, the testing fees for the program are broken down by test and sub-test categories, with manufacturers charged fees only for the tests that must be conducted. The fee schedule for the current program is shown in Table H-3.

    Table H-3—Adjusted Bus Testing Program Costs and Fees Test 500,000 mi—
  • 12 year
  • service life
  • 350,000 mi—10 year
  • service life
  • 200,000 mi —
  • 7 year
  • service life
  • 150,000 mi —
  • 5 year
  • service life
  • 100,000 mi —
  • 4 year
  • service life
  • Check-In 3,000 3,000 3,000 3,000 3,000 Inspect for Accessibility 1,500 1,500 1,500 1,500 1,500 Maintainability (scheduled and unscheduled) Included in the durability test cost Selected Maintainability 4,500 4,500 4,500 4,500 4,500 Reliability Included in the durability test cost Safety 3,000 3,000 3,000 3,000 3,000 Performance 6,000 6,000 6,000 6,000 6,000 Brake 6,100 6,100 6,100 6,100 6,100 Distortion 3,000 3,000 3,000 3,000 3,000 Static Towing 1,500 1,500 1,500 1,500 1,500 Dynamic Towing 1,500 1,500 1,500 1,500 1,500 Jacking 1,500 1,500 1,500 1,500 1,500 Hoisting 1,500 1,500 1,500 1,500 1,500 Structural Durability 117,890 85,270 55,760 40,060 25,970 Fuel Economy 6,000 6,000 6,000 6,000 6,000 Interior Noise 1,500 1,500 1,500 1,500 1,500 Exterior Noise 1,500 1,500 1,500 1,500 1,500 Emissions 44,000 44,000 44,000 44,000 44,000 Total for Full Testing (100%) 203,990 171,370 141,860 77,660 60,570 Manufacturer's Portion Fee (20%) 40,798 34,274 28,372 15,532 12,114

    The results from this analysis indicate that annual costs would increase in several areas. The impact of the performance standards to the FTA program cost is estimated to be $133,448. A total of $33,362 in additional manufacturer's fees would be collected from the additional tests. An additional paperwork burden of $767 would be incurred from the required failure analysis and remedy proposal process. An additional $5,103 would be expended for on-site personnel expenses incurred performing test bus modifications at the test site. An unknown amount of additional parts and components would be consumed during the retesting. FTA estimates that one of the eight failed buses would be returned to the manufacturer for systemic modifications incurring additional round-trip shipping expenses of $2,034. FTA believes that the retesting process will not depreciate the test bus an additional amount beyond the first test. However, FTA believes there are no additional costs to the program from implementing the Bus Model Scoring System, as the scores will be calculated automatically once the test results are finalized.

    FTA also analyzed the costs of the discretionary program changes in the final rule. The rule will modify two test procedures (payloading and emissions test payload) but will not impose any completely new testing procedures, and will eliminate the On-Road Fuel Economy Test procedure, thereby reducing the aggregate costs currently associated with the bus testing program. For the revised bus payloading procedures, FTA estimates an annual decrease in the program cost of $294 and a decrease in testing fees of $74. These are a result of labor cost savings from loading the mid-sized buses with fewer or no simulated standee passengers. FTA estimates an increase in the annual paperwork burden of $1,488 from the increased manufacturer labor required to determine and report to FTA the total passenger capacity of new bus models submitted to the program. The only other cost introduced by the revised bus payloading procedures is the requirement to add a placard on the interior bulkhead of the bus identifying the maximum standee passenger rating in 2 inch or taller letters. FTA estimates the annual cost impact to new bus models is $58,038. This cost analysis is presented in Table H-3.

    Table H-4—Cost of Standee Passenger Rating Placard ($) Standee Rating Placard Estimated cost per decal (using a quantity of 500) Labor rate (hr) Labor amount to install (hr) Estimated cost per bus Total annual cost Annual cost for new production transit buses (5600 units a year) 8.99 13.74 0.10 10.36 58,038 (Source: www.edecals.com using a 2.5 inch tall lettering stating “XX Standees Maximum”). Labor rate assumes a category of “assembler and fabricator” from bls.gov.

    The annual cost savings of eliminating the on-road fuel economy test is $64,000 for the FTA program and $16,000 in manufacturer test fees. FTA estimates that 15 on-road fuel economy tests would be eliminated annually and the cost of the dynamometer based fuel economy test is already captured in the cost for the emissions test. One full electric bus is expected to be tested annually. Although electric bus models do not need to undergo emissions testing, the cost for conducting one electric bus fuel economy test was retained.

    FTA is also changing the bus passenger load for the emissions test from 2/3 seated load weight to full seated load weight. FTA estimates a cost reduction of $470 for the FTA program portion and $118 in reduced fees to the manufacturers. The cost savings is derived from eliminating the labor of unloading and reloading 1/3 of the seated passenger load as all of the other non-durability performance tests are conducted at full seated load.

    The program entrance requirements are expected to increase the annual FTA program costs by $2,654 and require $664 in additional manufacturer costs. The additional costs are a result of the bus configuration inspections conducted at bus check-in. The details of this cost analysis are outlined in Table H-5.

    Table H-5—Bus Configuration Inspection Cost Labor category Hourly rate Source Total hours per bus Cost Diesel auto service tech 20.35 bls.gov 4 81.40 Technical writer 31.49 bls.gov 4 125.96 Cost per bus 207.36 Total annual cost (16 buses) $3,318

    The revisions to the test scheduling process are expected to increase the annual paperwork burden to bus manufacturers by $1,322. The test entrance requirements review milestone is not expected to add any costs to the program as only FTA will be reviewing the results of the check-in process and determining the outcome of the milestone review.

    Lastly, the annual cost of the penalty for unauthorized maintenance and modification is estimated to be $800 for the FTA program cost portion and $200 in fees to the manufacturers. The costs

    were determined by amortizing the cost of test track upgrades for physical security and surveillance over a 10-year period.

    The total annual cost of the Bus Test Program is estimated to be $5,650,515 given the changes made under this rule. The current Bus Test Program incurs annual costs of $5,494,146. The incremental cost of the rule is anticipated to be $159,369 per year for the new bus models.

    Benefits

    A summary of the estimated annual benefits of the Bus testing program is presented in Table H-6. FTA has identified and analyzed seven categories of program benefits:

    1. Greater probability of meeting service life and reduced unscheduled maintenance: This category estimates the annual benefits achieved by adopting these procedures will improve the likelihood that new model bus models entering revenue service will satisfy their service life requirement and the benefits obtained through a reduction of unscheduled maintenance in actual service. While FTA provides a potential estimate of this benefit, FTA does not include it in its quantitative analysis, but notes that this will most likely be a cost reduction (qualitative benefit) to the industry.

    2. Reduced safety risk: This category estimates the annual benefits that reduce the safety risk of new bus models entering transit service.

    3. Improved recipient awareness and accuracy of total bus passenger capacity: This category of benefits examines the benefits obtained from determining and communicating the rated standee passenger capacity of a bus to recipients to inform their procurement process and their bus operations.

    4. Improved recipient knowledge of a bus model production configuration: This category improves the knowledge of the tested bus model configuration and any deviations from the original planned configuration herein.

    5. Increased confidence the delivered production buses will perform the same as the test bus: This category examines the benefits of the proposals in increasing the understanding and confidence that the bus model a recipient procures and is delivered, and matches the bus tested with respect to its design configuration and major components.

    6. Faster comprehension of test results/scores and motivation for improved bus performance: This category examines the benefits derived from the proposals to increase the speed and depth of comprehension of the bus testing results.

    7. Simplified test scheduling process and elimination of unnecessary testing: This category examines the benefits of maintaining one point and process of program entry and the benefits of eliminating unnecessary testing.

    FTA was unable to provide monetized benefits for many of the benefit categories. For many of the categories where FTA believes there are benefits but was unable to quantify, the result is identified as “unknown”. For categories where FTA believes there is no benefit, the result was identified as “0”. The benefits of a greater probability of bus models meeting their service life was quantified, but only to inform FTA's qualitative assumptions.

    Overall, FTA believes that the current program provides potential benefits in all of the seven categories identified when the information generated by the program is used in the procurement decision process. FTA did not receive comments to the docket challenging or questioning these benefits, but FTA believes that adopting these minimum performance standards will reduce safety risks, reduce unscheduled maintenance, and ensure a greater probability of a bus model meeting its expected service life.

    Table H-6—Summary of the Estimated Annual Benefits for All Proposals Item Greater probability of meeting service life and reduced unscheduled maintenance Reduced safety risk Grantee awareness and accuracy of total bus passenger capacity Improved grantee Knowledge of Buy America and bus testing production configuration Increased confidence the delivered production buses will perform the same as the test bus Faster comprehension of test scores and motivation for improved bus performance Simplified test scheduling and process & elimination of unnecessary testing Baseline—Current Program Unknown Unknown Unknown Unknown Unknown Unknown Unknown. Proposed MAP—21 Minimum Performance Standards Cost reduction Unknown 0 0 0 0 0. Proposed Scoring System Unknown Unknown 0 0 0 Unknown 0. Proposed Discretionary Program Changes Revised Bus Payloading Procedures Unknown Unknown Unknown 0 0 0 0. Elimination of On-Road Fuel Economy Test 0 0 0 0 Unknown 0 Cost reduction. Revised Bus Passenger Load for Emissions Testing 0 0 0 0 0 0 Cost reduction. Bus Testing Entrance Requirement 0 Unknown Unknown Unknown Unknown 0 Unknown. Revisions to the Scheduling of Testing Requirements 0 0 0 0 0 0 Unknown. Test Requirements Review Milestone 0 0 0 0 0 0 Unknown. Penalty for Unauthorized Maintenance and Modification Unknown Unknown Unknown Unknown Unknown Unknown 0. Estimated Program Benefit (Baseline and all Proposals) Cost Reduction Unknown Unknown Unknown Unknown Unknown Cost reduction. Table H-7—Benefits Achieved From the Minimum Performance Standards [Projected benefit from the service life loss prevention resulting from the proposed durability requirements] Bus Size Service life category (yrs) # of units sold in 2013 1 # of models tested 2010-2012 # of tested models that failed durability (structural or powertrain) Estimated quantity of buses sold in 2013 that have failed the proposed durability standard Average new bus value 2 ($) Estimated annual service life value loss (assumes bus retirement at 50% life) ($) Total cost of new transit buses procured in 2013 > 55 foot articulated 12 172 2 0 0 760,766 0 130,851,752 45 foot 12 18 2 0 0 449,712 0 8,094,816 40 foot 12 1906 10 1 38 439,954 8,385,523 838,552,324 35 foot 12 373 2 1 37 286,972 5,352,028 107,040,556 30 foot 10 283 4 1 14 207,528 1,468,261 58,730,424 < 27 foot 4, 5, 7 2892 29 3 60 62,410 1,867,135 180,489,720 Total 5644 49 6 149 17,072,947 1,323,759,592 1Table 9A, FY2013: http://www.fta.dot.gov/about_FTA_16073.html. 2 See APTA Public Transportation Vehicle Database. http://www.apta.com/resources/statistics/Pages/OtherAPTAStatistics.aspx.

    FTA is not able to provide a monetized value for the safety risk reduction. Further, FTA estimated benefits of bus models meeting their service life requirements, but FTA used this to inform FTA's qualitative assumption that there would be aggregate benefits to the industry. FTA did not include this in FTA's quantitative calculations because FTA was uncertain of the potential aggregate savings on a year-to-year basis into the future as the industry adapts to today's rulemaking. The results of this analysis are presented in Table H-7.

    The analysis presented in Table H-7 used the 2013 transit bus procurement data outlined in Table 9A in the FY 2013 FTA statistical summaries by bus size category and quantity. This analysis also estimated the average cost of a bus model in each size category using the cost information in Table 9A. FTA then determined the quantity of bus models tested in each of the size categories from 2010-2012 (49 buses total) and the number of those that failed the proposed durability performance standard (6). FTA estimated the quantity of bus models sold in 2013 that would have been restricted from FTA recipients in each bus size category. This estimate assumes that 20 percent of the bus models sold in 2013 were bus models tested between 2010 and 2012. The other 80 percent of the sales were assumed to consist of existing bus models tested prior to 2010. FTA then estimated the projected quantity of failing buses by applying a ratio of the number of tested buses that would fail the proposed durability standard by the number of bus models tested in that size category to 20 percent of the 2013 bus sales figures. This resulting quantity of buses was multiplied by the average monetary value of that bus size category and divided by two to obtain the average amount of service life value lost assuming that each of the failed buses only satisfied 50 percent of their service life requirement. FTA notes that this analysis assumes that all six models were not modified by the manufacturer prior to procurement, as the agency has no information concerning whether or not any modifications did in fact occur. If modifications did occur, then the potential benefits discussed here may be overstated.

    FTA notes here that although FTA conducted this analysis, FTA did not include these values in its quantitative calculation of benefits. FTA conducted this analysis to inform FTA's qualitative assumption of potential benefits. FTA found, as shown above in Table H-6, that the potential for a major cost reduction for the industry is great, but FTA is uncertain of the potential aggregate savings on a year-to-year basis into the future as the industry adapts to the new requirements.

    As another baseline, the lost service life value of two tested bus models known to have failed in service but outside the study window from 2010-2012 was also estimated. The results of this analysis are presented in Table H-8. Again, while FTA performed this analysis, FTA did not include these values in FTA's quantitative calculation of benefits. FTA used this analysis to inform FTA's qualitative assumption of potential benefits. FTA found again, as shown in Table H-8, that the potential for a major cost reduction for the industry is great, but FTA is uncertain of the potential aggregate savings on a year-to-year basis into the future as the industry adapts to the new requirements.

    Table H-8—Estimated Service Life Value Loss of Two Failed Bus Models [Estimated benefits from service life loss prevention of proposed durability requirements with known bus models that failed in service from 2003 to 2013] Bus size Quantity Initial bus value ($) Estimated annual service life value loss (assumes bus retirement at 50% life) ($) 60 foot articulated 226 451,328 51,000,064 23 foot hybrid electric 70 150,000 5,250,000 Total Service Value Loss 56,250,064 Estimated Annual Loss over 2003-2013 5,625,006

    FTA, though, was able to quantify benefits provided by the durability performance standards in the form of reduced unscheduled maintenance, which FTA estimates to be $531,990 per year. FTA was only able to estimate the reduction in labor costs and not the associated reduction in the costs of replacement components. The basis for the reduction in labor costs was the estimated reduction in unscheduled maintenance hours after the design remedies for structural and powertrain durability were applied to the failing bus models identified in the study group. The results of this analysis are presented in Table H-9.

    Table H-9—Benefits From Reduced Unscheduled Maintenance [Benefit derived from reduced bus maintenance requirements as a result of proposed durability standards] Bus size Service Life Category (yrs) # of tested models that failed durability (structural or powertrain) Average unscheduled maintenance hours per bus eliminated by durability standard during test (25% service life) Average unscheduled maintenance hours per bus avoided over 50% service life (until early retirement) Estimated quantity of buses sold in 2013 that have failed the proposed durability standard Benefit from the reduction in maintenance hours @20.35/hr (diesel service technician) ($) Benefit from the reduction in the amount of components replaced >55 foot articulated 12 0 0 0 0 0 unknown. 45 foot 12 0 0 0 0 0 unknown. 40 foot 12 1 103 206 38 159,300 unknown. 35 ft 12 1 113 226 37 170,167 unknown. 30 ft 10 1 4 8 14 2,279 unknown. <27 foot 4, 5, 7 3 82 164 60 200,244 unknown. Total 6 149 531,990

    FTA believes the scoring system will provide benefits in the areas of reduced unscheduled maintenance, reduced safety risk, with the faster comprehension of test results, and provide industry motivation to seek bus models with higher test scores.

    FTA is confident the revisions to the bus pay loading procedures that require the posting of the maximum rated standee passenger load on the interior bus bulkhead will provide benefits in the areas of greater probability of a bus meeting its service life requirements, reduced amounts of unscheduled maintenance, reduced safety risk, and greater understanding of the total rated bus passenger capacity.

    FTA believes that eliminating the current on-road fuel economy test and only publishing the fuel economy test results from the dynamometer based test will provide recipients more realistic and reliable test results than the current on-road fuel economy test. Having only one set of fuel economy test results will also eliminate the potential confusion to recipients and manufacturers with respect to the scoring of the test results. FTA was unable to quantify the benefits, beyond the program cost reduction, of eliminating the on-road fuel economy test.

    Regarding the revision to the bus passenger load for the emissions testing to seated load weight instead of the 2/3 seated load weight that was unique in the emission test, the benefit of this change is a minor cost reduction from the reduced labor of unloading and loading 1/3 of the seated load weight just for this test. FTA does not expect any other benefits from this approach.

    The entrance requirements are expected to provide benefits with reduced safety risk, greater awareness and accuracy of the bus passenger capacity, greater understanding of Buy America implications on bus configurations with respect to major components, and prevention of unnecessary retesting due to bus production configuration anomalies discovered during or after the test is completed.

    The primary benefit of the revisions to the scheduling of testing requirements is that the process will be the same whether it is a request for full testing or partial testing. By establishing a single point of entry for the program there will be less confusion about the program requirements and the process and consistency in the resulting determinations.

    The benefit of the test requirements review milestone is a program event that will deliver the benefits of the bus entrance requirements. This milestone will provide all testing stakeholders (manufacturer, Bus Testing Facility operator, FTA, and potential purchasers) a clear understanding of a new bus model's program eligibility and readiness for testing.

    The penalty for unauthorized maintenance and modification is the repeat of all potentially affected tests. This rule provides benefits in all the categories identified except with the “simplified test scheduling and elimination of unnecessary testing” category.

    Summary of Costs and Benefits for Bus Model Testing

    The annual incremental cost of the rule is $159,369 and the quantified annual benefit of future bus tests is expected to be $531,990, giving an annual net benefit of $372,621. The costs and benefits of the rule are expected to be the same each year into the future.

    Summary of Overall Costs and Benefits

    Using a 3 and 7 percent discount rate over a ten-year analysis period for the annual costs and benefits developed above, the Net Present Value of the changes encompassed within this rule would yield a net benefit of $3,178,533 at 3 percent discount rate and $2,617,134 at 7 percent discount rate, as shown in Table H-14.

    Table H-10—Summary of Quantified Costs and Benefits Year Costs Benefits Net Cash Flow Discounted Net Benefits @ 3% 7% 1 $159,369 $531,990 $372,621 $361,768 $348,244 2 159,369 531,990 372,621 351,231 325,462 3 159,369 531,990 372,621 341,001 304,170 4 159,369 531,990 372,621 331,069 284,271 5 159,369 531,990 372,621 321,426 265,674 6 159,369 531,990 372,621 312,064 248,293 7 159,369 531,990 372,621 302,975 232,050 8 159,369 531,990 372,621 294,150 216,869 9 159,369 531,990 372,621 285,583 202,681 10 159,369 531,990 372,621 277,265 189,422 Net Present Value 3,178,533 2,617,134 Executive Order 13132 (Federalism)

    This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”'). This rule does not include any regulation that has substantial direct effects on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

    Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments)

    This rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 and because this rule does not have tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply.

    Executive Order 13272 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-611) requires each agency to analyze regulations and proposals to assess their impact on small businesses and other small entities to determine whether the rule or proposal will have a significant economic impact on a substantial number of small entities. Although the testing requirement imposes compliance costs on the regulated industry, including bus manufacturers who meet the definition of “small businesses,” Congress has authorized FTA to pay 80% of the bus manufacturer's testing fee, defraying the direct financial impact on these entities. FTA has estimated the additional costs and the projected benefits of this rule and certifies that this rule would not have a significant economic impact on a substantial number of small entities.

    Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532, et seq.) requires agencies to evaluate whether an agency action would result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $155 million or more (as adjusted for inflation) in any one year, and if so, to take steps to minimize these unfunded mandates. FTA does not believe the rulemaking would result in expenditures exceeding this level.

    Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), a Federal agency must obtain approval from OMB before conducting or sponsoring a collection of information as defined by the PRA. Because today's regulation contains a new provision that would require manufacturers to provide technical specifications regarding their vehicles to FTA in order to receive approval to proceed with testing, FTA submitted a revised information collection estimate to OMB and invited comment on the information collection burden estimate published in the NPRM.

    Regulation Identifier Number (RIN)

    A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document may be used to cross-reference this action with the Unified Agenda.

    National Environmental Policy Act

    The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4347), requires Federal agencies to consider the consequences of major federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. FTA has determined that this rulemaking is categorically excluded pursuant to 23 CFR 771.118(c)(4).

    Privacy Act

    Anyone is able to search the electronic form for all comments received into any of FTA's dockets by the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit www.regulations.gov.

    Executive Order 12898 (Environmental Justice)

    Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations,” and DOT Order 5610.2(a), “Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (see, www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require DOT agencies to achieve environmental justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations in the United States. The DOT Order requires DOT agencies to address compliance with the Executive Order and the DOT Order in all rulemaking activities. To meet this goal, FTA has issued additional final guidance in the form of a circular (Circular 4703.1, “FTA Policy Guidance for Federal Transit Recipients,” July 17, 2012; http://www.fta.dot.gov/legislation_law/12349_14740.html), to implement Executive Order 12898 and DOT Order 5610.2(a).

    FTA evaluated this rule under the Executive Order, the DOT Order, and the FTA Circular. Environmental justice principles, in the context of establishing a quantitative scoring system for public transit vehicles, fall outside the scope of applicability.

    Nothing inherent in today's regulation would disproportionately impact minority or low income populations, as the primary parties affected by this rule are those transit vehicle manufactures who would be subject to the bus testing procedures and the new quantitative scoring system. FTA has determined that the regulation would not cause disproportionately high and adverse human health and environmental effects on minority or low income populations.

    List of Subjects in 49 CFR Part 665

    Buses, Grant programs—transportation, Public transportation, Motor vehicle safety, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the Federal Transit Administration revises 49 CFR Part 665 as set forth below:

    Title 49—Transportation PART 665—BUS TESTING Subpart A—General Sec. 665.1 Purpose. 665.3 Scope. 665.5 Definitions. 665.7 Certification of compliance. Subpart B—Bus Testing Procedures 665.11 Testing requirements. 665.13 Test report and manufacturer certification. Subpart C—Operations 665.21 Scheduling. 665.23 Fees. 665.25 Transportation of vehicle. 665.27 Procedures during testing. Appendix A to Part 665—Bus Model Scoring System and Pass/Fail Standard Authority:

    49 U.S.C. 5318 and 49 CFR 1.91.

    Subpart A—General
    § 665.1 Purpose.

    An applicant for Federal financial assistance for the purchase or lease of buses with funds obligated by the FTA shall certify to the FTA that any new bus model acquired with such assistance has been tested and has received a passing test score in accordance with this part. This part contains the information necessary for a recipient to ensure compliance with this provision.

    § 665.3 Scope.

    This part shall apply to an entity receiving Federal financial assistance under 49 U.S.C. Chapter 53.

    § 665.5 Definitions.

    As used in this part—

    Administrator means the Administrator of the Federal Transit Administration or the Administrator's designee.

    Automotive means that the bus is not continuously dependent on external power or guidance for normal operation. Intermittent use of external power shall not automatically exclude a bus of its automotive character or the testing requirement.

    Bus means a rubber-tired automotive vehicle used for the provision of public transportation service by or for a recipient of FTA financial assistance.

    Bus model means a bus design or variation of a bus design usually designated by the manufacturer by a specific name and/or model number.

    Bus Testing Facility means the facility used by the entity selected by FTA to conduct the bus testing program, including test track facilities operated in connection with the program.

    Bus Testing Report means the complete test report for a bus model, documenting the results of performing the complete set of bus tests on a bus model.

    Curb weight means the weight of the bus including maximum fuel, oil, and coolant; but without passengers or driver.

    Emissions means the components of the engine tailpipe exhaust that are regulated by the United States Environmental Protection Agency (EPA), plus carbon dioxide (CO2) and methane (CH4).

    Emissions control system means the components on a bus whose primary purpose is to minimize regulated emissions before they exit the tailpipe. This definition does not include components that contribute to low emissions as a side effect of the manner in which they perform their primary function (e.g., fuel injectors or combustion chambers).

    Final acceptance means the formal approval by the recipient that the vehicle has met all of its bid specifications and the recipient has received proper title.

    Gross weight (Gross Vehicle Weight, or GVW) means the seated load weight of the bus plus 150 pounds of ballast for each standee passenger, up to and including, the maximum rated standee passenger capacity identified on the bus interior bulkhead.

    Hybrid means a propulsion system that combines two power sources, at least one of which is capable of capturing, storing, and re-using energy.

    Major change in chassis design means, for vehicles manufactured on a third-party chassis, a change in frame structure, material or configuration, or a change in chassis suspension type.

    Major change in components means:

    (1) For those vehicles that are not manufactured on a third-party chassis, a change in a vehicle's engine, axle, transmission, suspension, or steering components;

    (2) For those that are manufactured on a third-party chassis, a change in the vehicle's chassis from one major design to another.

    Major change in configuration means a change that is expected to have a significant impact on vehicle handling and stability or structural integrity.

    Modified third-party chassis or van means a vehicle that is manufactured from an incomplete, partially assembled third-party chassis or van as provided by an OEM to a small bus manufacturer. This includes vehicles whose chassis structure has been modified to include: A tandem or tag axle; a drop or lowered floor; changes to the GVWR from the OEM rating; or other modifications that are not made in strict conformance with the OEM's modifications guidelines where they exist.

    New bus model means a bus model that—

    (1) Has not been used in public transportation service in the United States before October 1, 1988; or

    (2) Has been used in such service but which after September 30, 1988, is being produced with a major change in configuration or a major change in components.

    Operator means the operator of the Bus Testing Facility.

    Original equipment manufacturer (OEM) means the original manufacturer of a chassis or van supplied as a complete or incomplete vehicle to a bus manufacturer.

    Parking brake means a system that prevents the bus from moving when parked by preventing the wheels from rotating.

    Partial testing means the performance of only that subset of the complete set of bus tests in which significantly different data would reasonably be expected compared to the data obtained in previous full testing of the baseline bus model at the Bus Testing Facility.

    Partial testing report, also partial test report, means a report documenting, for a previously-tested bus model that is produced with major changes, the results of performing only that subset of the complete set of bus tests in which significantly different data would reasonably be expected as a result of the changes made to the bus from the configuration documented in the original full Bus Testing Report. A partial testing report is not valid unless accompanied by the corresponding full Bus Testing Report for the corresponding baseline bus configuration.

    Public transportation service means the operation of a vehicle that provides general or special service to the public on a regular and continuing basis consistent with 49 U.S.C. Chapter 53.

    Recipient means an entity that receives funds under 49 U.S.C. Chapter 53, either directly from FTA or through a direct recipient.

    Regenerative braking system means a system that decelerates a bus by recovering its kinetic energy for on-board storage and subsequent use.

    Retarder means a system other than the service brakes that slows a bus by dissipating kinetic energy.

    Seated load weight means the curb weight of the bus plus the seated passenger load simulated by adding 150 pounds of ballast to each seating position and 600 pounds per wheelchair position.

    Service brake(s) means the primary system used by the driver during normal operation to reduce the speed of a moving bus and to allow the driver to bring the bus to a controlled stop and hold it there. Service brakes may be supplemented by retarders or by regenerative braking systems.

    Small bus manufacturer means a secondary market assembler that acquires a chassis or van from an OEM for subsequent modification or assembly and sale as 5-year/150,000-mile or 4-year/100,000-mile minimum service life vehicle.

    Tailpipe emissions means the exhaust constituents actually emitted to the atmosphere at the exit of the vehicle tailpipe or corresponding system.

    Third party chassis means a commercially available chassis whose design, manufacturing, and quality control are performed by an entity independent of the bus manufacturer.

    Unmodified mass-produced van means a van that is mass-produced, complete and fully assembled as provided by an OEM. This shall include vans with raised roofs, and/or wheelchair lifts, or ramps that are installed by the OEM or by a party other than the OEM provided that the installation of these components is completed in strict conformance with the OEM modification guidelines.

    Unmodified third-party chassis means a third-party chassis that either has not been modified, or has been modified in strict conformance with the OEM's modification guidelines.

    § 665.7 Certification of compliance.

    (a) In each application to FTA for the purchase or lease of any new bus model, or any bus model with a major change in configuration or components to be acquired or leased with funds obligated by the FTA, the recipient shall certify that the bus was tested at the Bus Testing Facility and that the bus received a passing test score as required in this part. The recipient shall receive the appropriate full Bus Testing Report and any applicable partial testing report(s) before final acceptance of the first vehicle.

    (b) In dealing with a bus manufacturer or dealer, the recipient shall be responsible for determining whether a vehicle to be acquired requires full testing or partial testing or has already satisfied the requirements of this part. A bus manufacturer or recipient may request guidance from FTA.

    Subpart B—Bus Testing Procedures
    § 665.11 Testing requirements.

    (a) In order to be tested at the Bus Testing Facility, a new model bus shall—

    (1) Be a single model that complies with NHTSA requirements at 49 CFR part 565 Vehicle Identification Number Requirements; 49 CFR part 566 Manufacturer Identification; 49 CFR part 567 Certification; and where applicable, 49 CFR part 568 Vehicle Manufactured in Two or More Stages—All Incomplete, Intermediate and Final-Stage Manufacturers of Vehicle Manufactured in Two or More Stages;

    (2) Have been produced by an entity whose Disadvantaged Business Enterprise DBE goals have been submitted to FTA pursuant to 49 CFR part 26;

    (3) Identify the maximum rated quantity of standee passengers on the interior bulkhead in 2 inch tall or greater characters;

    (4) Meet all applicable Federal Motor Vehicle Safety Standards, as defined by the National Highway Traffic Safety Administration in part 571 of this title; and

    (5) Be substantially fabricated and assembled using the techniques, tooling, and materials that will be used in production of subsequent buses of that model with the manufacturing point of origin for the bus structure, the axles, the foundation brakes, the propulsion power system and auxiliary power systems (engine, transmission, traction batteries, electric motor(s), fuel cell(s)), and the primary energy storage and delivery systems (fuel tanks, fuel injectors & manifolds, and the fuel injection electronic control unit) identified in the test request submitted to FTA during the scheduling process.

    (b) If the new bus model has not previously been tested at the Bus Testing Facility, then the new bus model shall undergo the full tests requirements for Maintainability, Reliability, Safety, Performance (including Braking Performance), Structural Integrity, Fuel Economy, Noise, and Emissions Tests.

    (c) If the new bus model has not previously been tested at the Bus Testing Facility and is being produced on a third-party chassis that has been previously tested on another bus model at the Bus Testing Facility, then the new bus model may undergo partial testing in place of full testing.

    (d) If the new bus model has previously been tested at the Bus Testing Facility, but is subsequently manufactured with a major change in chassis or components, then the new bus model may undergo partial testing in place of full testing.

    (e) Buses shall be tested according to the service life requirements identified in the prevailing published version of FTA Circular 5010.

    (f) Tests performed in a higher service life category (i.e., longer service life) need not be repeated when the same bus model is used in lesser service life applications.

    § 665.13 Test report and manufacturer certification.

    (a) The operator of the Bus Testing Facility shall implement the performance standards and scoring system set forth in this part.

    (b) Upon completion of testing, the operator of the facility shall provide the scored test results and the resulting test report to the entity that submitted the bus for testing and to FTA. The test report will be available to recipients only after both the bus manufacturer and FTA have approved it for release. If the bus manufacturer declines to release the report, or if the bus did not achieve a passing test score, the vehicle will be ineligible for FTA financial assistance.

    (c)(1) A manufacturer or dealer of a new bus model or a bus produced with a major change in component or configuration shall provide a copy of the corresponding full Bus Testing Report and any applicable partial testing report(s) to a recipient during the point in the procurement process specified by the recipient, but in all cases before final acceptance of the first bus by the recipient.

    (2) A manufacturer who releases a report under paragraph (c)(1) of this section also shall provide notice to the operator of the facility that the test results and the test report are to be made available to the public.

    (d) If a tested bus model with a Bus Testing Report undergoes a subsequent major change in component or configuration, the manufacturer or dealer shall advise the recipient during the procurement process and shall include a description of the change. Any party may ask FTA for confirmation regarding the scope of the change.

    (e) A Bus Testing Report shall be available publicly once the bus manufacturer makes it available during a recipient's procurement process. The operator of the facility shall have copies of all the publicly available reports available for distribution. The operator shall make the final test results from the approved report available electronically and accessible over the internet.

    (f) The Bus Testing Report and the test results are the only official information and documentation that shall be made publicly available in connection with any bus model tested at the Bus Testing Facility.

    Subpart C—Operations
    § 665.21 Scheduling.

    (a) All requests for testing, including requests for full, partial, or repeat testing, shall be submitted to the FTA Bus Testing Program Manager for review prior to scheduling with the operator of the Bus Testing Facility. All test requests shall provide: A detailed description of the new bus model to be tested; the service life category of the bus; engineering level documentation characterizing all major changes to the bus model; and documentation that demonstrates satisfaction of each one of the testing requirements outlined in section 665.11(a).

    (b) FTA will review the request, determine if the bus model is eligible for testing, and provide an initial response within five (5) business days. FTA will prepare a written response to the requester for use in scheduling the required testing.

    (c) To schedule a bus for testing, a manufacturer shall contact the operator of the Bus Testing Facility and provide the FTA response to the test request. Contact information and procedures for scheduling testing are available on the operator's Bus Testing Web site, http://www.altoonabustest.com.

    (d) Upon contacting the operator, the operator shall provide the manufacturer with the following:

    (1) A draft contract for the testing;

    (2) A fee schedule; and

    (3) The test procedures for the tests that will be conducted on the vehicle.

    (e) The operator shall process vehicles FTA has approved for testing in the order in which the contracts are signed.

    § 665.23 Fees.

    (a) The operator shall charge fees in accordance with a schedule approved by FTA, which shall include different fees for partial testing.

    (b) Fees shall be prorated for a vehicle withdrawn from the Bus Testing Facility before the completion of testing.

    (c) The manufacturer's portion of the test fee shall be used first during the conduct of testing. The operator of the Bus Testing Facility shall obtain approval from FTA prior to continuing testing of each bus model at the Bus testing program's expense after the manufacturer's fee has been expended.

    § 665.25 Transportation of vehicle.

    A manufacturer shall be responsible for transporting its vehicle to and from the Bus Testing Facility at the beginning and completion of the testing at the manufacturer's own risk and expense.

    § 665.27 Procedures during testing.

    (a) Upon receipt of a bus approved for testing the operator of the Bus Testing Facility shall:

    (1) Inspect the bus design configuration and compare it to the configuration documented in the test request;

    (2) Determine if the bus, when loaded to Gross Weight, does not exceed its Gross Vehicle Weight Rating, Gross Axle Weight Ratings, or maximum tire load ratings;

    (3) Determine if the bus is capable of negotiating the durability test track at curb weight, seated load weight, and Gross Vehicle Weight;

    (4) Determine if the bus is capable of performing the Fuel Economy and Emissions Test duty cycles within the established standards for speed deviation.

    (b) The operator shall present the results obtained from the activities of 665.27(a) and present them to the bus manufacturer and the FTA Bus Testing Program Manager for review prior to initiating testing using the Bus testing program funds. FTA will provide a written response within five (5) business days to authorize the start of testing or to request clarification for any discrepancies noted from the activities of 665.27(a). Testing can commence after five (5) business days if FTA does not provide a response.

    (c) The operator shall perform all maintenance and repairs on the test vehicle, consistent with the manufacturer's specifications, unless the operator determines that the nature of the maintenance or repair is best performed by the manufacturer under the operator's supervision.

    (d) The manufacturer shall be permitted to observe all tests. The manufacturer shall not provide maintenance or service unless requested to do so by the operator.

    (e) The operator shall investigate each occurrence of unauthorized maintenance and repairs and determine the potential impact to the validity of the test results. Tests where the results could have been impacted must be repeated at the manufacturer's expense.

    (f) The operator shall perform all modifications on the test vehicle, consistent with the manufacturer's specifications, unless the operator determines that the nature of the modification is best performed by the manufacturer under the operator's supervision. All vehicle modifications performed after the test has started will first require review and approval by FTA. If the modification is determined to be a major change, some or all of the tests already completed shall be repeated or extended at FTA's discretion.

    (g) The operator shall halt testing after any occurrence of unapproved, unauthorized, or unsupervised test vehicle modifications. Following an occurrence of unapproved or unsupervised test vehicle modifications, the vehicle manufacturer shall submit a new test request to FTA that addresses all the requirements in 665.11 to reenter the Bus testing program.

    (h) The operator shall perform eight categories of tests on new bus models. The eight tests and their corresponding performance standards are described in the following paragraphs.

    (1) Maintainability test. The Maintainability test shall include bus servicing, preventive maintenance, inspection, and repair. It shall also include the removal and reinstallation of the engine and drive-train components that would be expected to require replacement during the bus's normal life cycle. Much of the maintainability data should be obtained during the Bus Durability Test. All servicing, preventive maintenance, and repair actions shall be recorded and reported. These actions shall be performed by test facility staff, although manufacturers shall be allowed to maintain a representative on-site during the testing. Test facility staff may require a manufacturer to provide vehicle servicing or repair under the supervision of the facility staff. Since the operator may not be familiar with the detailed design of all new bus models that are tested, tests to determine the time and skill required for removing and reinstalling an engine, a transmission, or other major propulsion system components may require advice from the bus manufacturer. All routine and corrective maintenance shall be carried out by the operator in accordance with the manufacturer's specifications.

    (i) The Maintainability Test Report shall include the frequency, personnel hours, and replacement parts or supplies required for each action during the test. The accessibility of selected components and other observations that could be important to a bus purchaser shall be included in the report.

    (ii) The performance standard for Maintainability is that no greater than 125 hours of total unscheduled maintenance shall be accumulated over the execution of a full test.

    (2) Reliability test. Reliability shall not be a separate test, but shall be addressed by recording all bus failures and breakdowns during all other testing. The detected bus failures, repair time, and the actions required to return the bus to operation shall be presented in the report. The performance standard for Reliability is that the vehicle under test experience no more than one uncorrected Class 1 failure and two uncorrected Class 2 failures over the execution of a full test. Class 1 failures are addressed in the Safety Test, below. An uncorrected Class 2 failure is a failure mode not addressed by a design or component modification that would cause a transit vehicle to be unable to complete its transit route and require towing or on-route repairs. A failure is considered corrected when a design or component modification is validated through sufficient remaining or additional reliability testing in which the failure does not reoccur.

    (3) Safety test. The Safety Test shall consist of a Handling and Stability Test, a Braking Performance Test, and a review of the Class 1 reliability failures that occurred during the test. The Handling and Stability Test shall be an obstacle avoidance double-lane change test performed on a smooth and level test track. The lane change course will be set up using pylons to mark off two 12 foot center to center lanes with two 100 foot lane change areas 100 feet apart. Bus speed shall be held constant throughout a given test run. Individual test runs shall be made at increasing speeds up to a specified maximum or until the bus can no longer be operated safely over the course, whichever speed is lower. Both left- and right-hand lane changes shall be tested. The performance standard is that the test vehicle can safely negotiate and remain within the lane change test course at a speed of no less than 45 mph.

    (i) The functionality and performance of the service, regenerative (if applicable), and parking brake systems shall be evaluated at the test track. The test bus shall be subjected to a series of brake stops from specified speeds on high, low, and split-friction surfaces. The parking brake shall be evaluated with the bus parked facing both up and down a steep grade. There are three performance standards for braking. The stopping distance from a speed of 45 mph on a high friction surface shall satisfy the bus stopping distance requirements of FMVSS 105 or 121 as applicable. The bus shall remain within a standard 12-foot lane width during split coefficient brake stops. The parking brake shall hold the test vehicle stationary on a 20 percent grade facing up and down the grade for a period of 5 minutes.

    (ii) A review of all the Class 1 failures that occurred during the test shall be conducted as part of the Safety Test. Class 1 failures include those failures that, when they occur, could result in a loss of vehicle control; in serious injury to the driver, passengers, pedestrians, or other motorists; and in property damage or loss due to collision or fire. The performance standard is that at the completion of testing with no uncorrected Class 1 failure modes. A failure is considered corrected when a design or component modification is validated through sufficient remaining or additional Reliability Tests in which the failure does not reoccur over a number of miles equal to or greater than the additional failure up to 100% of the durability test mileage for the service life category of the tested bus.

    (4) Performance test. The Performance Test shall measure the maximum acceleration, speed, and gradeability capability of the test vehicle. In determining the transit vehicle's maximum acceleration and speed, the bus shall be accelerated at full throttle from rest until it achieves its maximum speed on a level roadway. The performance standard for acceleration is that the maximum time that the test vehicle requires to achieve 30 mph is 18 seconds on a level grade. The gradeability test of the test vehicle shall be calculated based on the data measured on a level grade during the Acceleration Test. The performance standard for the gradeability test is that the test vehicle achieves a sustained speed of at least 40 mph on a 2.5 percent grade and a sustained speed of at least 10 mph on a 10 percent grade.

    (5) Structural integrity tests. Two complementary Structural Integrity Tests shall be performed. Structural Strength and Distortion Tests shall be performed at the Bus Testing Center, and the Structural Durability Test shall be performed at the test track.

    (i) Structural strength and distortion tests. (1) The bus shall be loaded to GVW, with one wheel on top of a curb and then in a pothole. This test shall be repeated for all four wheels. The test verifies:

    (i) Normal operation of the steering mechanism and;

    (ii) Operability of all passenger doors, passenger escape mechanisms, windows, and service doors. A water leak test shall be conducted in each suspension travel condition. The performance standard shall be that all vehicle passenger exits remain operational throughout the test.

    (2) Using a load-equalizing towing sling, a static tension load equal to 1.2 times the curb weight shall be applied to the bus towing fixtures (front and rear). The load shall be removed and the two eyes and adjoining structure inspected for damages or permanent deformations. The performance standard shall be that no permanent deformation is experienced at static loads up to 1.2 times the vehicle curb weight.

    (3) The bus shall be towed at CW with a heavy wrecker truck for 5 miles at 20 mph and then inspected for structural damage or permanent deformation. The performance standard shall be that the vehicle is towable with a standard commercial vehicle wrecker without experiencing any permanent damage to the vehicle.

    (4) With the bus at CW, probable damages and clearance issues due to tire deflating and hydraulic jacking shall be assessed. The performance standard shall be that the vehicle is capable of being lifted with a standard commercial vehicle hydraulic jack.

    (5) With the bus at CW, possible damages or deformation associated with lifting the bus on a two post hoist system or supporting it on jack stands shall be assessed. The performance standard shall be that the vehicle is capable of being supported by jack stands rated for the vehicle's weight.

    (i) Structural durability test. The Structural Durability Test shall be performed on the durability course at the test track, simulating twenty-five percent of the vehicle's normal service life. The bus structure shall be inspected regularly during the test, and the mileage and identification of any structural anomalies and failures shall be reported in the Reliability Test. There shall be two performance standards for the Durability Test, one to address the vehicle frame and body structure and one to address the bus propulsion system. The performance standard for the vehicle frame and body structure shall be that there are no uncorrected failure modes of the vehicle frame and body structure at the completion of the full vehicle test. The performance standard for the vehicle propulsion system is that there are no uncorrected powertrain failure modes at the completion of a full test.

    (ii) [Reserved]

    (6) Fuel economy test. The Fuel Economy Test shall be conducted using duty cycles that simulate a diverse range of transit service operating profiles. This test shall measure the fuel economy or fuel consumption of the vehicle and present the results in metrics that minimize the number of unit conversions for mass, volume, and energy.

    (i) The Fuel Economy Test shall be designed only to enable FTA recipients to compare the relative fuel economy of buses operating at a consistent loading condition on the same set of typical transit driving cycles. The results of this test are not directly comparable to fuel economy estimates by other agencies, such as the National Highway Traffic Safety Administration (NHTSA) or U.S. Environmental Protection Agency (EPA) or for other purposes.

    (ii) The performance standard for fuel economy shall be the prevailing model year fuel consumption standards for heavy-duty vocational vehicles outlined in the NHTSA's Medium and Heavy-Duty Fuel Efficiency Program (49 CFR part 535).

    (7) Noise test. The Noise Test shall measure interior noise and vibration while the bus is idling (or in a comparable operating mode) and driving over smooth and irregular road surfaces, and also shall measure the transmission of exterior noise to the interior while the bus is not running. The exterior noise shall be measured as the bus is operated past a stationary measurement instrument. There shall be two minimum noise performance standards: One to address the maximum interior noise during vehicle acceleration from a stop, and one to address the maximum exterior noise during vehicle acceleration from a stop. The performance standard for interior noise while the vehicle accelerates from 0-35 mph shall be no greater than 80 decibels A-weighted. The performance standard for exterior noise while the vehicle accelerates from 0-35 miles per hour shall be no greater than 83 decibels A-weighted.

    (8) Emissions test. The Emissions Test shall measure tailpipe emissions of those exhaust constituents regulated by the United States EPA for transit bus emissions, plus carbon dioxide (CO2) and methane (CH4), as the bus is operated over specific repeatable transit vehicle driving cycles. The Emissions test shall be conducted using an emission testing laboratory equipped with a chassis dynamometer capable of both absorbing and applying power.

    (i) The Emissions Test is not a certification test, and is designed only to enable FTA recipients to relatively compare the emissions of buses operating on the same set of typical transit driving cycles. The results of this test are not directly comparable to emissions measurements reported to other agencies, such as the EPA, or for other purposes.

    (ii) The emissions performance standard shall be the prevailing EPA emissions requirements for heavy-duty vehicles outlined in 40 CFR part 86 and 40 CFR part 1037.

    Appendix A to Part 665—Bus Model Scoring System and the Pass/Fail Standard 1. Bus Model Scoring System

    The Bus Model Scoring System shall be used to score the test results using the performance standards in each category. A bus model that fails to meet a minimum performance standard shall be deemed to have failed the test and will not receive an aggregate score. For buses that have passed all the minimum performance standards, an aggregate score shall be generated and presented in each Bus Testing Report. A bus model that just satisfies the minimum baseline performance standard and does not exceed any of the standards shall receive a score of 60. The maximum score a bus model shall receive is 100. The minimum and maximum points available in each test category shall be as shown below in Table A. The Bus Testing report will include a scoring summary table that displays the resulting scores in each of the test categories and subcategories. The scoring summary table shall have a disclaimer footnote stating that the use of the scoring system is not mandatory, only that the bus being procured receive a passing score.

    2. Pass/Fail Standard

    The passing standard shall be a score of 60. Bus models that fail to meet one or more of the minimum baseline performance standards will be ineligible to obtain an aggregate passing score.

    BILLING CODE P ER01AU16.000 ER01AU16.001
    Carolyn Flowers, Acting Administrator.
    [FR Doc. 2016-17889 Filed 7-29-16; 8:45 am] BILLING CODE C
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 224 [Docket No. 150506424-6642-02] RIN 0648-XD940 Endangered and Threatened Wildlife and Plants; Listing Three Angelshark Species as Endangered Under the Endangered Species Act AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    We, NMFS, issue a final rule to list three foreign marine angelshark species under the Endangered Species Act (ESA). We considered comments submitted on the proposed listing rule and have determined that the sawback angelshark (Squatina aculeata), smoothback angelshark (Squatina oculata), and common angelshark (Squatina squatina) warrant listing as endangered species. We will not designate critical habitat for any of these species because the geographical areas occupied by these species are entirely outside U.S. jurisdiction, and we have not identified any unoccupied areas within U.S. jurisdiction that are currently essential to the conservation of any of these species.

    DATES:

    This final rule is effective August 31, 2016.

    ADDRESSES:

    Chief, Endangered Species Division, NMFS Office of Protected Resources (F/PR3), 1315 East West Highway, Silver Spring, MD 20910.

    FOR FURTHER INFORMATION CONTACT:

    Maggie Miller, NMFS, Office of Protected Resources (OPR), (301) 427-8403.

    SUPPLEMENTARY INFORMATION:

    Background

    On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species or subpopulations as threatened or endangered under the ESA. This petition included species from many different taxonomic groups, and we prepared our 90-day findings in batches by taxonomic group. We found that the petitioned actions may be warranted for 24 of the species and 3 of the subpopulations and announced the initiation of status reviews for each of the 24 species and 3 subpopulations (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). On July 14, 2015, we published a proposed rule to list the sawback angelshark (Squatina aculeata), smoothback angelshark (Squatina oculata), and the common angelshark (Squatina squatina) as endangered species (80 FR 40969). We requested public comment on information in the draft status review and proposed rule, and the comment period was open through September 14, 2015. This final rule provides a discussion of the information we received during the public comment period and our final determination on the petition to list the sawback angelshark, smoothback angelshark, and common angelshark under the ESA. The status of the findings and relevant Federal Register notices for the other 21 species and 3 subpopulations can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.

    Listing Species Under the Endangered Species Act

    We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we first consider whether a group of organisms constitutes a “species” under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

    Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

    Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five threat factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any State or foreign nation to protect the species.

    In making a listing determination, we first determine whether a petitioned species meets the ESA definition of a “species.” Next, using the best available information gathered during the status review for the species, we complete a status and extinction risk assessment. In assessing extinction risk for these three angelshark species, we considered the demographic viability factors developed by McElhany et al. (2000). The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews, including for Pacific salmonids, Pacific hake, walleye pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, scalloped hammerhead sharks, and black abalone (see http://www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four viable population descriptors: Abundance, growth rate/productivity, spatial structure/connectivity, and diversity. These viable population descriptors reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk (NMFS 2015).

    We then assess efforts being made to protect the species to determine if these conservation efforts are adequate to mitigate the existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species.

    Summary of Comments

    In response to our request for comments on the proposed rule, we received information and/or comments from three parties. Two of the commenters presented general information on threats or provided data that were already cited, discussed, and considered in the draft status review report (Miller 2015) or the proposed rule (80 FR 40969; July 14, 2015). Summaries of the substantive public comments received, and our responses, are provided below, with references to our prior documents where relevant.

    Comment 1: One commenter agreed with the listing determination, citing the evidence provided in the draft status review report (Miller 2015) that the three species are at high risk of extinction due to threats of overutilization and inadequacy of existing regulatory mechanisms.

    Response: We agree with the commenter.

    Comment 2: One commenter suggested that instead of a traditional recovery plan for the endangered Squatina sharks, the Secretary should contribute resources toward developing the Illegal, Unreported, and Unregulated (IUU) and Seafood Fraud Action Plan under the direction of the Presidential IUU Task Force. The commenter specifically mentioned that traceability regulations are integral for the recovery of these Squatina species, and while imports into U.S. markets are likely minimal (because catches are currently so low), limitations on seafood traceability preclude any enforcement of the ESA import provisions. As such, the IUU design principles around traceability are especially relevant to the recovery of these species and the strategy will advance the recovery of these, and other, internationally threatened species.

    Response: Once a species is listed as threatened or endangered, section 4 of the ESA requires that we develop and implement recovery plans that must, in part, identify objective, measurable criteria which, when met, would result in a determination that the species may be removed from the list. However, we note that the action to develop recovery plans for these Squatina species is not part of the determination for listing, which is the subject of this action, and, thus, will not be considered further here. The Presidential Task Force on Combating IUU Fishing and Seafood Fraud and the Action Plan for Implementing the Task Force Recommendations are also beyond the scope of this rulemaking.

    Comment 3: One commenter remarked on our consideration of the International Union for Conservation of Nature (IUCN) Red List species assessments. Using an example from over 30 years ago, the commenter asserted, noting the IUCN's “vulnerable” extinction risk determination for the Guadalupe fur seal, that we applied the corresponding ESA listing status of “threatened” to this species. Furthermore, the commenter suggested that in addition to our practice of evaluating the source of information the IUCN classification is based upon, in light of the standards on extinction risk and impacts or threats (as discussed in our previous ESA listing findings), we should ensure that we give adequate weight to the opinions of the reasonable scientists who make these threat determinations as well, especially given the fact that they are often preeminent experts on the species being assessed. The commenter stated that the IUCN species assessments, themselves, are each essentially scientific articles quantifying threats to species, should be treated as an additional, independent scientific source, and should be given weight beyond the mere citations that they include.

    Response: As noted in many of our previous findings (see 81 FR 1376; January 12, 2016, and 81 FR 8874; February 23, 2016, for 2 recent examples), risk classifications by other organizations or made under other Federal or State statutes may be informative, but such classification alone does not provide the rationale for listing determinations (or even preliminary 90-day findings) under the ESA. As mentioned in the 90-day finding for these species (78 FR 69376; November 19, 2013), species classifications under IUCN and the ESA are not equivalent, and data standards, criteria used to evaluate species, and treatment of uncertainty are also not necessarily the same. As the commenter notes, our practice is to evaluate the source of information that the IUCN classification is based upon in light of the standards on extinction risk and impacts or threats discussed above. This was applicable even in the case of the Guadalupe fur seal, although the commenter misrepresents the listing determination basis, implying that we listed the Guadalupe fur seal as “threatened” based on the IUCN's “vulnerable” risk determination. In fact, as noted in the final determination for the Guadalupe fur seal (50 FR 51252; December 16, 1985), the IUCN submitted comments on the proposed Guadalupe fur seal listing rule, recommending an ESA “endangered” status for the species. However, based on the available information and our evaluation of the data in light of the standards on extinction risk, threats to the species, and ESA definitions, we determined that the status of the Guadalupe fur seal corresponded with the ESA definition of a “threatened” species. Thus, as we did with the Guadalupe fur seal listing determination, we will continue to evaluate all sources of available information, in light of the ESA standards on extinction risk and impacts or threats to the species, to inform our ESA listing determinations.

    Comment 4: One commenter cited the new 2015 IUCN assessment of S. squatina (Ferretti et al. 2015) as evidence of the bleak status of the species.

    Response: We reviewed the new IUCN assessment of S. squatina (Ferretti et al. 2015) and evaluated the sources of available information cited within the assessment in light of the ESA standards on extinction risk and impacts or threats to the species. We did not find any new species-specific information on the impacts of threats or the biological response of the species to these threats that was not already considered in the proposed rule and draft status review report. The latest assessment references many of the same studies and findings discussed in the status review and proposed rule. We did, however, update the status review based on information from a reference cited within Ferretti et al. (2015), specifically Maynou et al. (2011). Maynou et al. (2011) conducted interview surveys of 106 retired fishermen who used to fish (either in the small scale fisheries or trawl fishers) in the Catalan, Ligurian, Tyrrhenian, north Adriatic, and Hellenic Seas, to see if these fishermen perceived any trends in dolphin and shark abundances between 1940 and 1999. As it applies to the three Squatina species of this action, the results from these interviews suggest that angelsharks disappeared from the Catalan Sea probably before 1959, from waters off the western Italian coast by the early 1980s, and from waters off Sardinia by the mid-1980s. As we already assumed potential extirpations of these species in the Ligurian and Tyrrhenian Seas and off the Balearic Islands based on other available information, this new information does not change our conclusions regarding the extinction risk of the species, but does provide further support for our assumptions and findings.

    Comment 5: One commenter disagreed with our assessment of the climate change threat to the three Squatina species. The commenter asserted that climate change is likely to harm all three Squatina species and provided the following reasons: (1) The climate change threat was only assessed for S. squatina in United Kingdom (UK) waters (based on the Jones et al. (2013) paper) and, therefore, our conclusion regarding climate change impacts are purely speculative for S. aculeata and S. oculata; (2) Our expected decrease in the angelshark species' overlap with commercially-targeted species is unlikely to occur; (3) Our projected increase in protected angelshark range is unlikely to occur; and (4) the three angelshark species are likely entirely unable to migrate to avoid the effects of climate change.

    Response: Broad statements about generalized threats to the species, such as climate change, or identification of factors that could negatively impact a species, do not constitute substantial information that listing may be warranted. We look for information indicating that not only is the particular species exposed to a factor, but that the species may be responding in a negative fashion; then we assess the potential significance of that negative response.

    Based on our comprehensive review of the literature, the Jones et al. (2013) paper was the only information we found that provided an analysis of the threat of climate change and potential response by a Squatina species (S. squatina). While the commenter disagreed with our reliance on the Jones et al. (2013) paper, the commenter did not provide any new species-specific information on the threat of climate change or evidence that the Squatina species are responding in a negative fashion to the threat. As such, and as stated in the proposed rule, the best available information does not indicate that climate change is contributing significantly to the extinction risk of these species. Below we provide further comments on each of the commenter's points mentioned above.

    The commenter mentioned that the climate change threat was only assessed for S. squatina in UK waters and, therefore, our conclusion regarding climate change impacts are purely speculative for S. aculeata and S. oculata. We disagree that our conclusions are speculative. Rather, we state that our conclusions are based on the best available information. In the proposed rule, we note that besides the Jones et al. (2013) study (which examined the impacts from climate change for S. squatina in UK waters), “we found no other information regarding the response of Squatina species to the impacts of climate change.” Therefore, based on the best available information (i.e., the Jones et al. (2013) paper) we did not find any evidence to suggest that climate change contributes significantly to the extinction risk of S. squatina, and, additionally, we have no information to suggest that climate change contributes significantly to the extinction risk of the other two Squatina species.

    The commenter also asserts that our expected decrease in the angelshark species' overlap with commercially-targeted species, and the projected increase in protected angelshark range, are unlikely to occur, and speculates that the three angelshark species will be unable to migrate to avoid the effects of climate change. In the proposed rule, we cited findings from the Jones et al. (2013) paper, including that the impacts from a range shift due to climate change would likely be offset by an increase in availability of protected habitat areas for the common angelshark (S. squatina). We also noted that the predicted range shift would shrink the (common) angelshark's overlap with other commercially-targeted species. The commenter states that the proposed climate-induced shifts in range discussed in the Jones et al. (2013) paper predict only slight increases in habitat suitability in candidate marine protected areas, and because these are only candidate areas, the commenter notes that it is unclear whether these habitat areas will ever even be protected in the future. Additionally, according to the Jones et al. (2013) paper, and acknowledged by the commenter, S. squatina was predicted to have a small, but negative change of 2.7 percent in median overlap across all commercial species investigated. However, the commenter argues that this change is so miniscule when considering the effects that fishing of commercially-targeted species in areas currently overlapping with S. squatina has had over the last several decades. As such, bycatch pressure on S. squatina will likely remain high as the overlap will remain almost entirely the same. Finally, the commenter speculates that the three angelshark species may be unable to move to avoid climate change due to limited dispersal capabilities.

    As already thoroughly discussed in the proposed rule and draft status review for these angelshark species, we agree that overutilization is a significant threat that has led to S. squatina being presently in danger of extinction. The purpose of the above information and discussion was to evaluate the specific impact of climate change and the corresponding likely response of the common angelshark in order to evaluate the significance of this particular threat on the species' risk of extinction. As the commenter has made clear, the impact of climate change on the extinction risk of S. squatina appears negligible as it will unlikely alter the threat of overutilization to the species. Although a very minor range shift may occur, there is no information to suggest the species' response to climate change impacts would significantly alter its extinction risk (either through a decrease or increase in risk). Additionally, the commenter provides no information on the actual threat that climate change poses to the species, such as the species' biological or physiological responses to climate change impacts and the actual need for the species to migrate elsewhere, and we could find no such information. As such, our conclusion remains the same: The best available information does not suggest that climate change contributes significantly to the extinction risk of the species.

    Comment 6: One commenter provided new information on historical catch of Squatina species in the Adriatic Sea (based on fish market data; Raicevich and Fortibuoni 2013) and information on benthic shark exploitation in the Canary Islands (Couce-Montero et al. 2015).

    Response: We have updated the status review report to include this information. In particular, the new information indicates the contemporary presence of S. squatina in the Adriatic Sea (which was previously thought to be potentially extirpated), but demonstrates the significant decline in both abundance and size that has occurred in the population since the early 20th century (Fortibuoni et al. 2016), providing additional evidence of the overutilization of the species in this part of its range. Similarly, the Couce-Montero et al. (2015), which was a broad-scale study of the impacts of artisanal, recreational and industrial fleets on the Gran Canaria (Canary Islands) marine ecosystem, found overall fishing pressure by these fleets to be high and benthic sharks, as a functional group, to be overexploited. This new information does not change our conclusions regarding the extinction risk of the Squatina species.

    Comment 7: One commenter suggested we consider the global impacts of recreational fishing on S. squatina and S. aculeata, providing a general description of some of the aspects of recreational fishing and ways it differs from commercial fishing.

    Response: In our evaluation of threats in both the draft status review report and proposed rule, we did consider impacts of recreational fishing on the Squatina species (see the Overutilization for Commercial, Recreational, Scientific, or Educational Purposes sections of both documents). As the commenter did not provide any new species-specific information on threats from recreational fishing effort that was not already considered in the proposed rule and draft status review report, we have no reason to change our evaluation of the threat at this time.

    Comment 8: One commenter provided information on the ancient and contemporary use of S. oculata in Spain for therapeutic purposes (Vallejo and Gonzalez 2014) and suggested this use is an additional threat to the species.

    Response: The paper cited by the petitioner, Vallejo and Gonzalez (2014), provides simply an inventory of the fish species that have been used for medicinal purposes from ancient times to recent times in Spain. While we have updated the status review to include this new information on the use of the species, neither the study, nor the commenter, provide information on the extent or frequency that this species is collected for traditional Spanish remedies. Also, the contemporary evidence identified in the paper corresponds to S. squatina in Gran Canaria (Canary Islands), as opposed to S. oculata, and is from a 2004 article (González Salgado 2004) that also provides no information on the extent or frequency of use of S. squatina in traditional medicines. Finally, current regulations in Spain prohibit these Squatina species from being captured, injured, traded, imported, or exported. Therefore, we do not find any indication that the use of these species in traditional Spanish remedies is an additional threat that significantly increases these species' risks of extinction.

    Comment 9: One commenter provided suggested edits to the background portions of the draft status review report to reflect the research they and others have conducted on S. squatina in the Canary Islands, and included information on the conservation initiatives of their nonprofit organization (ElasmoCan). Specifically, the commenter provided new (or clarified previous) information on the reproduction, growth, and distribution of S. squatina, identified a micropredator of S. squatina in the Canary Islands, provided details on the trawling prohibition in the Canary Islands, and highlighted the research they have conducted on the common angelshark within the Canary Islands. They also provided links to petitions requesting that the Canary Islands become a shark and ray sanctuary, that S. squatina be added to the Canarian catalogue of protected species, and that recreational fishing in the Canary Islands be prohibited.

    Response: We have updated the status review with the provided information where appropriate. None of the information provided by the commenter (which was primarily life history and distribution data for S. squatina within the Canary Islands) changed our analysis of the threats to the species. As stated in the proposed rule, current conservation efforts, including those by ElasmoCan, are helping to increase the scientific knowledge about S. squatina and promote public awareness of the species (as demonstrated by the petitions cited by the commenter); however, there is no indication that these efforts are currently effective in reducing the threats to the species, particularly those related to overutilization and the inadequacy of existing regulatory mechanisms. As such, our conclusion from the proposed rule regarding the overall extinction risk of S. squatina remains the same.

    In addition to requesting public comment on our proposed rule, we also directly solicited comments from the foreign ambassadors of countries where the three Squatina species occur. We received responses from three embassies, and their comments, as well as our responses, are provided below.

    Comment 10: The Libyan Embassy, through Dr. Ramadan, consultant of the International Cooperation Office of the General Corporation for Agriculture on fisheries and marine resources of Libya, commented that while the three Squatina sharks are found in Libyan waters, they are not targeted by fishermen, nor are they common in the catch. However, most of the fishing gear used in the traditional fisheries can catch the species (including trammel nets, gillnets, bottom trawls, longlines, and illegal explosive), and when caught as bycatch, Libyans will consume these sharks. Dr. Ramadan also provided names of the two marine protected areas in Libya that could afford the species some protection: Wadi Elkouf and Ain El Gazala, both located on the eastern Mediterranean coast.

    Response: We thank Dr. Ramadan for the comments and have updated the status review accordingly. While the proposed rule and draft status review noted that the three Squatina species were “relatively common” in Libyan waters, with a caveat that there was no corresponding citation or more recent data to support the statement, this new information, particularly that the species is not common in the fisheries catch yet susceptible to the traditional fishing gear, indicates that the species has likely significantly declined in abundance in Libyan waters over the past 10 years. We find this information lends further support to our conclusion that these species are presently at a high risk of extinction throughout their respective ranges.

    Comment 11: The Sierra Leone Embassy, through the Ministry of Fisheries and Marine Resources, commented that the three Squatina sharks are found throughout the entire coastal waters of Sierra Leone, and endemic in the southern tip, from the shoal of Saint Ann to the boundary of Liberia and potentially beyond. Their presence has been recorded in both industrial fisheries and research survey data collected from 2008-2010. Squatina oculata has also been recorded from artisanal landing sites in Bonthe, Sierra Leone. However, overall, in Sierra Leone waters, the Squatina species are sparsely distributed and seldom caught. The Ministry of Fisheries and Marine Resources expressed support for the listing of these species as endangered and provided a list of draft fisheries regulations pertaining to sharks, but noted that they will not close areas to fishing to protect these species.

    Response: We thank the Sierra Leone Ministry of Fisheries and Marine Resources for the comments and have updated the status review accordingly. We note that while the survey data mentioned above indicate the recent presence of S. squatina in Sierra Leone waters, the range of the species in the Eastern Atlantic is thought to extend only as far south as Mauritania. It is unclear if these findings indicate a range expansion for the species, new migratory routes, a reflection of the true range of the species that was previously unknown due to poor sampling of the region, or perhaps, and more likely, misidentification of the species, as the species has yet to be identified from any other countries south of Mauritania, despite expansive historical sampling. Additionally, the draft nature of the regulations provided by the Ministry, and uncertainty regarding their implementation or effectiveness, coupled with the implication that the Ministry will not consider area closures where the species are found because they inhabit major fishing grounds in the territorial waters of Sierra Leone, we do not consider these efforts adequate to mitigate the existing threats to the point where extinction risk is significantly lowered for these three species.

    Comment 12: The Embassy of Greece, through the Hellenic Ministry of Rural Development and Food, commented that Greece meets its obligations arising from international conventions, such as the Barcelona Convention, and is a party to the General Fisheries Commission of the Mediterranean (GFCM), the regional fisheries management organization whose convention area includes Mediterranean waters and the Black Sea. The measures adopted by the GFCM are incorporated into European Law. The Ministry specifically highlighted GFCM recommendation GFCM/36/3012/3, which prohibits those sharks on Annex II of the Specially Protected Areas and Biological Diversity (SPA/BD) Protocol to the Barcelona Convention (which include the three Squatina species) from being retained on board, transhipped, landed, transferred, stored, sold or displayed, or offered for sale. The Ministry noted that the species must be released, as far as possible, unharmed and alive, and that there is an obligation of owners of fishing vessels to record information related to fishing activities, including capture data, incidental catch, and releases and/or discards of species.

    Response: We thank the Hellenic Ministry of Rural Development and Food for the comments and have updated the status review accordingly. We note that while these regulations and retention prohibitions may decrease, to some extent, fisheries-related mortality of the Squatina species in the Mediterranean, for the most part, it appears that these Squatina species are normally discarded due to their low commercial value. Given the species' assumed high mortality rates in fishing gear (around 60 percent in trawls and 25-67 percent in gillnets), vulnerability to exploitation, present demographic risks, population declines and potential local extirpations to the point where all three species are rarely observed throughout the Mediterranean, and the evidence of continued intensive demersal fisheries operating throughout the Mediterranean, we conclude that these regulatory mechanisms are unlikely to significantly decrease the Squatina species' risks of extinction.

    Summary of Changes From the Proposed Listing Rule

    We reviewed, and incorporate as appropriate, scientific data from references that were not previously included in the draft status review report (Miller 2015) and proposed rule (80 FR 40969; July 14, 2015). We also incorporate, as appropriate, relevant information received as communications during the public comment process. We include the following references and communications, which, together with previously cited references, represent the best available scientific and commercial data on S. aculeata, S. oculata, and S. squatina: El Dia Digital 2000; Lamboeuf et al. 2000; Maynou et al. 2011; Narváez 2012; Narváez et al. 2014; Couce-Montero et al. 2015; Gelbalder 2015; Osaer et al. 2015; Osaer and Narváez 2015; Dr. Ramadan personal communication (pers. comm.) 2016; ElasmoCan pers. comm. 2016; Fitzpatrick et al. 2016; Fortibuoni et al. 2016; Narváez and Osaer 2016; Sierra Leone Ministry of Fisheries and Marine Resources pers. comm. 2016. However, the information not previously included in the draft status review or proposed rule does not present significant new findings that change any of our proposed listing determinations.

    Status Review

    The status review for the three angelshark species was conducted by a NMFS biologist in the Office of Protected Resources. In order to complete the status review, we compiled information on the species' biology, ecology, life history, threats, and conservation status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. Prior to publication of the proposed rule, the status review was subjected to peer review. Peer reviewer comments are available at http://www.cio.noaa.gov/services_programs/prplans/PRsummaries.html. The status review report has since been updated (Miller 2016) based on the aforementioned information submitted by the public and new information collected since the publication of the proposed rule, and is available at: http://www.nmfs.noaa.gov/pr/species/petition81.htm.

    This status review report provides a thorough discussion of the life history, demographic risks, and threats to the three angelshark species. We considered all identified threats, both individually and cumulatively, to determine whether these angelshark species respond in a way that causes actual impacts at the species level. The collective condition of individual populations was also considered at the species level, according to the four viable population descriptors discussed above.

    Species Determinations

    Based on the best available scientific and commercial information described or referenced above, and included in the status review report, we have determined that the sawback angelshark (S. aculeata), smoothback angelshark (S. oculata), and common angelshark (S. squatina) are taxonomically-distinct species and therefore meet the definition of “species” pursuant to section 3 of the ESA and are eligible for listing under the ESA.

    Summary of Factors Affecting the Three Species

    Next we consider whether any one or a combination of the five threat factors specified in section 4(a)(1) of the ESA contribute to the extinction risk of these species. The comments that we received on the proposed rule and the additional information that became available since the publication of the proposed rule did not change our conclusions regarding any of the section 4(a)(1) factors or their interactions for these species. In fact, the majority of the new information received (Maynou et al. 2011; Couce-Montero et al. 2015; Dr. Ramadan pers. comm. 2016; Fortibuoni et al. 2016; Hellenic Ministry of Rural Development and Food pers. comm. 2016; Sierra Leone Ministry of Fisheries and Marine Resources pers. comm. 2016), and described previously in our response to comments, lends further support to our conclusion that the threats of overutilization and inadequacy of existing regulatory mechanisms are contributing significantly to the risk of extinction for all three Squatina species. Therefore, we incorporate herein all information, discussion, and conclusions on the summary of factors affecting the three angelshark species in the status review report (Miller 2016) and proposed rule (80 FR 40969; July 14, 2015).

    Extinction Risk

    None of the information we received from public comment on the proposed rule affected our extinction risk evaluations of these three angelshark species. We note that based on comments from Dr. Ramadan (pers. comm. 2016), we no longer find it likely that the S. oculata may be more common in portions of the central Mediterranean (i.e., Libya), as was previously stated in the proposed rule. Additionally, based on the information from Fortibuoni et al. (2016), we no longer consider S. squatina to be extirpated from the entire Adriatic Sea, but find that the information from Maynou et al. (2011) provides further support for our assumption of the likelihood of extirpations of the Squatina species in the Ligurian, Tyrrhenian, and Catalan Seas. Additionally, we reviewed a recent abstract (Fitzpatrick et al. 2016) that provided preliminary information on the genetic population dynamics of S. squatina in the Canary Islands, and found that the results of low genetic diversity support our previous assumption that the species is likely comprised of small, fragmented and isolated populations that are at an increased risk of random genetic drift and could experience the fixing of recessive detrimental alleles, reducing the overall fitness of the species.

    While this information has been used to provide minor updates to our status review report, our evaluations and conclusions regarding extinction risk for these species remain the same. Therefore, we incorporate herein all information, discussion, and conclusions, with the minor updates noted above, on the extinction risk of the three angelshark species in the status review report (Miller 2016) and proposed rule (80 FR 40969; July 14, 2015).

    Protective Efforts

    Finally, we considered conservation efforts to protect each species and evaluated whether these conservation efforts are adequate to mitigate the existing threats to the point where extinction risk is significantly lowered and the species' status is improved. While none of the information we received from public comment on the proposed rule affected our conclusions regarding conservation efforts to protect the three angelshark species, we have updated the status review report (Miller 2016) to reflect the information provided by ElasmoCan during the public comment period on their conservation initiatives in the Canary Islands (ElamoCan pers. comm. 2016). We incorporate herein all information, discussion, and conclusions on the protective efforts for the three angelshark species in the status review report (Miller 2016) and proposed rule (80 FR 40969; July 14, 2015).

    Final Determination

    We have reviewed the best available scientific and commercial information, including the petition, the information in the status review report (Miller 2016), the comments of peer reviewers, public comments, and information that has become available since the publication of the proposed rule. Based on the best available information, we find that all three Squatina species are in danger of extinction throughout their respective ranges. We assessed the ESA section 4(a)(1) factors and conclude that S. aculeata, S. oculata, and S. squatina all face ongoing threats of overutilization by fisheries and inadequate existing regulatory mechanisms throughout their ranges. Squatina squatina has also suffered a significant curtailment of its range. These species' natural biological vulnerability to overexploitation and present demographic risks (e.g., low and declining abundance, small and isolated populations, patchy distribution, and low productivity) are currently exacerbating the negative effects of these threats and placing these species in danger of extinction. After considering efforts being made to protect each of these species, we could not conclude that the existing or proposed conservation efforts would alter the extinction risk for any of these species. Therefore, we are listing all three species as endangered.

    Effects of Listing

    Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); designation of critical habitat if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking (16 U.S.C. 1538). In addition, recognition of the species' plight through listing promotes conservation actions by Federal and State agencies, foreign entities, private groups, and individuals. Because the ranges of these three species are entirely outside U.S. jurisdiction, the main effects of these endangered listings are prohibitions on take, including export and import.

    Identifying Section 7 Consultation Requirements

    Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. It is unlikely that the listing of these species under the ESA will increase the number of section 7 consultations, because these species occur entirely outside of the United States and are unlikely to be affected by Federal actions.

    Critical Habitat

    Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12 (h)).

    The best available scientific and commercial data as discussed above identify the geographical areas occupied by S. aculeata, S. oculata, and S. squatina as being entirely outside U.S. jurisdiction, so we cannot designate occupied critical habitat for these species. We can designate critical habitat in areas in the United States currently unoccupied by the species if the area(s) are determined by the Secretary to be essential for the conservation of the species. The best available scientific and commercial information on these species does not indicate that U.S. waters provide any specific essential biological function for any of the Squatina species. Therefore, based on the available information, we are not designating critical habitat for S. aculeata, S. oculata, or S. squatina.

    Identification of Those Activities That Would Likely Constitute a Violation of Section 9 of the ESA

    On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not likely constitute a violation of section 9 of the ESA. Because we are listing the three Squatina species as endangered, all of the prohibitions of section 9(a)(1) of the ESA will apply to these species. These include prohibitions against the import, export, interstate or foreign trade (including delivery, receipt, carriage, shipment, transport, sale and offering for sale), and “take” of these species. These prohibitions apply to all persons subject to the jurisdiction of the United States, including in the United States, its territorial sea, or on the high seas. Take is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The intent of this policy is to increase public awareness of the effects of this listing on proposed and ongoing activities within the species' ranges. Activities that we believe could (subject to the exemptions set forth in 16 U.S.C. 1539) result in a violation of section 9 prohibitions for these species include, but are not limited to, the following:

    (1) Possessing, delivering, transporting, or shipping any individual or part (dead or alive) taken in violation of section 9(a)(1);

    (2) Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any individual or part, in the course of a commercial activity;

    (3) Selling or offering for sale in interstate or foreign commerce any individual or part, except antique articles at least 100 years old; and

    (4) Importing or exporting these angelshark species or any part of these species.

    We emphasize that whether a violation results from a particular activity is entirely dependent upon the facts and circumstances of each incident. Further, an activity not listed may in fact constitute or result in a violation.

    Identification of Those Activities That Would Not Likely Constitute a Violation of Section 9 of the ESA

    Although the determination of whether any given activity constitutes a violation is fact dependent, we consider the following actions, depending on the circumstances, as being unlikely to violate the prohibitions in ESA section 9: (1) Take authorized by, and carried out in accordance with the terms and conditions of, an ESA section 10(a)(1)(A) permit issued by NMFS for purposes of scientific research or the enhancement of the propagation or survival of the species; and (2) continued possession of parts that were in possession at the time of listing. Such parts may be non-commercially exported or imported; however the importer or exporter must be able to provide evidence to show that the parts meet the criteria of ESA section 9(b)(1) (i.e., held in a controlled environment at the time of listing, in a non-commercial activity).

    References

    A complete list of the references used in this final rule is available upon request (see ADDRESSES).

    Classification National Environmental Policy Act

    The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F.2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA).

    Executive Order 12866, Regulatory Flexibility Act, and Paperwork Reduction Act

    As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, this final rule is exempt from review under Executive Order 12866 and the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

    Executive Order 13132, Federalism

    In accordance with E.O. 13132, we determined that this final rule does not have significant Federalism effects and that a Federalism assessment is not required.

    List of Subjects in 50 CFR Part 224

    Endangered and threatened species, Exports, Imports, Transportation.

    Dated: July 26, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 224 is amended as follows:

    PART 224—ENDANGERED MARINE AND ANADROMOUS SPECIES 1. The authority citation for part 224 continues to read as follows: Authority:

    16 U.S.C. 1531-1543 and 16 U.S.C. 1361 et seq.

    2. In § 224.101, amend the table in paragraph (h) by adding entries for “Angelshark common,” “Angelshark sawback,” and “Angelshark smoothback” in alphabetical order under the “Fishes” table subheading to read as follows:
    § 224.101 Enumeration of endangered marine and anadromous species.

    (h) The endangered species under the jurisdiction of the Secretary of Commerce are:

    Species 1 Common name Scientific name Description of listed entity Citation(s) for listing
  • determination(s)
  • Critical habitat ESA rules
    *         *         *         *         *         *         * Fishes Angelshark, common Squatina squatina Entire species 81 FR [Insert Federal Register page where the document begins], August 1, 2016 NA NA Angelshark, sawback Squatina aculeata Entire species 81 FR [Insert Federal Register page where the document begins], August 1, 2016 NA NA Angelshark, smoothback Squatina oculata Entire species 81 FR [Insert Federal Register page where the document begins], August 1, 2016 NA NA *         *         *         *         *         *         * 1 Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991).
    [FR Doc. 2016-18071 Filed 7-29-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 160104009-6617-02] RIN 0648-BF65 International Fisheries; Tuna and Tuna-Like Species in the Eastern Pacific Ocean; Fishing Restrictions Regarding Mobulid Rays AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    NMFS is issuing regulations under the Tuna Conventions Act to implement Resolution C-15-04 (Resolution on the Conservation of Mobulid Rays Caught in Association with Fisheries in the IATTC Convention Area) of the Inter-American Tropical Tuna Commission (IATTC). These regulations prohibit any part or whole carcass of mobulid rays (i.e., the family Mobulidae, which includes manta rays (Manta spp.) and devil rays (Mobula spp.)) caught in the IATTC Convention Area from being retained on board, transshipped, landed, stored, sold, or offered for sale. These regulations also provide requirements for the release of mobulid rays. This rule also revises related codified text for consistency with the recent amendments to the Tuna Conventions Act. This action is necessary for the United States to satisfy its obligations as a member of the IATTC.

    DATES:

    This rule is effective August 1, 2016.

    ADDRESSES:

    Copies of the Regulatory Impact Review and other supporting documents are available via the Federal eRulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2016-0035 or by contacting the Regional Administrator, William W. Stelle, Jr., NMFS West Coast Region, 7600 Sand Point Way NE., Bldg. 1, Seattle, WA 98115-0070, or [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Rachael Wadsworth, NMFS, West Coast Region, 562-980-4036.

    SUPPLEMENTARY INFORMATION:

    Background on the IATTC

    On April 22, 2016, NMFS published a proposed rule in the Federal Register (81 FR 23669) to implement Resolution C-15-04 adopted by the IATTC in 2015. The proposed rule contained additional background information, including information on the IATTC, the international obligations of the United States as an IATTC member, and the need for regulations. The 30-day public comment period for the proposed rule closed on May 23, 2016.

    The final rule is implemented under the Tuna Conventions Act (16 U.S.C. 951 et seq.), as amended on November 5, 2015, by title II of Public Law 114-81. The recent amendments provide that the Secretary of Commerce, in consultation with the Secretary of State and, with respect to enforcement measures, the Secretary of the Department of Homeland Security, may promulgate such regulations as may be necessary to carry out U.S. international obligations under the Convention, including recommendations and decisions adopted by the IATTC. The Secretary's authority to promulgate such regulations has been delegated to NMFS.

    This rule implements Resolution C-15-04 for U.S. commercial fishing vessels used in the IATTC Convention Area and prohibits any part or whole carcass of a mobulid ray caught by vessels owners or operators in the IATTC Convention Area from being retained on board, transshipped, landed, stored, sold, or offered for sale. The rule provides that the crew, operator, and owner of a U.S. commercial fishing vessel must promptly release unharmed, to the extent practicable, any mobulid ray (whether live or dead) caught in the IATTC Convention Area as soon as it is seen in the net, on the hook, or on the deck, without compromising the safety of any persons. If a mobulid ray is live when caught, the crew, operator, and owner of a U.S. commercial fishing vessel must follow the requirements for release that are incorporated into regulatory text. Regulations at 50 CFR 300.25 already required purse seine vessels to release all rays, except those being retained for consumption aboard the vessel, as soon as practicable after being identified on board the vessel during the brailing operation. This rule revises regulations at 50 CFR 300.25 to specify that there are other regulatory release requirements specifically for mobulid rays, as described below.

    The rule provides an exemption in the case of any mobulid ray caught in the IATTC Convention Area on a purse seine vessel that is not seen during fishing operations and is delivered into the vessel hold. In this circumstance, the mobulid ray may be stored on board and landed, but the vessel owner or operator must show the whole mobulid ray to the on-board vessel observer at the point of landing for recording purposes, and then dispose of the mobulid ray at the direction of the responsible government authority. In U.S. ports, the responsible governmental authority is the NOAA Office of Law Enforcement divisional office nearest to the port or other authorized personnel. Mobulid rays that are caught and landed in this manner may not be sold or bartered, but may be donated for purposes of domestic human consumption consistent with relevant laws and policies.

    In addition, this rule would also revise related codified text for consistency with the recent amendments to the Tuna Conventions Act made by Title II of Public Law 114-81, effective on November 5, 2015 (Tuna Conventions Act of 1950). The rule updates the purpose and scope for 50 CFR part 300, subpart C, by clarifying that the regulations in the subpart are issued under the “amended” authority of the Tuna Conventions Act of 1950, and that the regulations implement “recommendations and other decisions” of the IATTC for the conservation and management of stocks of “tunas and tuna-like species and other species of fish taken by vessels fishing for tunas and tuna-like species” in the IATTC Convention Area. The rule also updates the definitions description at § 300.21 to clarify that the terms defined in § 300.2 include terms defined in the Antigua Convention. The rule also revises the description in § 300.25, which states how NOAA implements IATTC recommendations and decisions through rulemaking, to clarify that the Secretary, in consultation with the Secretary of State and, with respect to enforcement measures, the U.S. Coast Guard on behalf of the Secretary of the Department of Homeland Security, may promulgate such regulations as may be necessary to carry out U.S. international obligations.

    In addition, to improve the readability of the regulatory text, this action moves several paragraphs of regulatory text related to bycatch in § 300.25(e) to a new section (§ 300.27) that is dedicated to incidental catch and retention requirements. Several paragraphs in the prohibitions at § 300.24 are updated for consistency with the new section.

    Public Comments and Responses

    NMFS received three letters in response to the proposed rule during the 30-day comment period that closed on May 23, 2016. The first letter, submitted jointly by three non-governmental organizations (NGOs), supported the proposed regulations and also requested that the United States work to close the exemption in the IATTC Resolution C-15-04 for developing small-scale and artisanal fisheries. NMFS responds to that comment below. The second letter, from a member of the public, supported the proposed regulations. A third letter, submitted jointly by two NGOs, provided seven documents containing biological information and further conservation recommendations about mobulid rays in the IATTC Convention Area but did not directly express a view on the proposed regulations. These documents seem to support the intent of the proposed rule.

    Comment: We remain concerned about the broader exemptions allowed under Resolution C-15-04 that exempt small scale fisheries from mobulid ray retention bans. We urge the United States to work to close loopholes and otherwise improve mobulid ray protection, data collection, and related capacity building at future meetings of the IATTC.

    Response: As described in the preamble of the proposed rule, the requirements of Resolution C-15-04 do not apply to small-scale and artisanal fisheries that fish exclusively for domestic consumption and that are flagged/registered by a developing Member or Cooperating Non-Member. Because the United States is not a developing nation, this exclusion was not implemented in U.S. regulations. NMFS recognizes the conservation concerns expressed by the commenter about providing this exemption that allows certain other IATTC Members or Cooperating Non-Members to continue taking mobulid rays. However, NMFS also acknowledges that the IATTC took an important first step in conservation measures for mobulid rays and that the IATTC can work to strengthen these measures in future meetings.

    Changes From the Proposed Rule

    In § 300.27(g), the description of responsible government authority in U.S. ports was revised to clarify that the responsible governmental authority in U.S. ports is the NOAA Office of Law Enforcement divisional office nearest to the port. Previously the language specified the Western Division and Pacific Island Division, which may be too limiting to vessels landing in ports outside of these regions. In addition, the language within the same paragraph is revised to clarify that the observer should be shown the whole mobulid ray to the observer at the point of landing specifically for recording purposes rather than for other purposes.

    Classification

    The NMFS Assistant Administrator has determined that this rule is consistent with the Tuna Conventions Act and other applicable laws. This rule has been determined to be not significant for purposes of Executive Order 12866. Additionally, although there are no new collection-of-information requirements associated with this action that are subject to the Paperwork Reduction Act (PRA), existing collection-of-information requirements still apply under the following Control Numbers: 0648-0148, 0648-0214, and 0648-0593. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid Office of Management and Budget control number.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. On December 29, 2015, the NMFS issued a final rule establishing a small business size standard of $11 million in annual gross receipts for all businesses primarily engaged in the commercial fishing industry (NAICS 11411) for Regulatory Flexibility Act (RFA) compliance purposes only (80 FR 81194, December 29, 2015). The $11 million standard became effective on July 1, 2016, and is to be used in place of the U.S. Small Business Administration's (SBA) current standards of $20.5 million, $5.5 million, and $7.5 million for the finfish (NAICS 114111), shellfish (NAICS 114112), and other marine fishing (NAICS 114119) sectors of the U.S. commercial fishing industry in all NMFS rules subject to the RFA after July 1, 2016. Id. at 81194.

    The certification under the Regulatory Flexibility Act was developed for this regulatory action at the proposed rule stage using SBA's former size standards. Thus, NMFS has reviewed the analyses prepared for this regulatory action in light of the new size standard. All of the entities directly regulated by this regulatory action are commercial finfish fishing businesses. The new standard could result in a few less commercial finfish businesses being considered small. However, NMFS has determined that the new size standard does not affect its underlying analysis and, thus, NMFS has not changed its decision to certify this regulatory action.

    As described in the proposed rule, the small entities that would be affected by this action are U.S. commercial fishing vessels that may be used for IATTC fisheries in the IATTC Convention Area (i.e., purse seine, longline, and large-mesh drift gillnet (DGN)). There are two components to the U.S. tuna purse seine fishery in the EPO: (1) Purse seine vessels with at least 363 metric tons (mt) of fish hold volume (size class 6 vessels) that typically have been based in the western and central Pacific Ocean, and (2) coastal purse seine vessels with smaller fish hold volume that are based on the U.S. West Coast. As of July 2016, there are 15 size class 6 purse seine vessels on the IATTC Regional Vessel Register. In recent years, size class 6 purse seine vessels have landed most of the yellowfin, skipjack, and bigeye tuna catch in the EPO. Estimates of ex-vessel revenues for size class 6 purse seine vessels in the IATTC Convention Area since 2005 are confidential and may not be publicly disclosed because of the small number of vessels in the fishery. Since 2010, fewer than three coastal purse seine vessels targeted tunas; therefore, their landings and revenue are confidential. In 2014, eight coastal purse seine vessels landed 1,413 mt of tuna (ex-vessel value of about $1,535,000) in west coast ports. Participation in the large-mesh DGN fishery has declined significantly over the years, from 78 vessels in 2000 to 18 in 2013. The large-mesh DGN fishery primarily targets swordfish and to a lesser extent common thresher shark. During 2003 to 2014, the average ex-vessel value of the landings by the large mesh DGN fishery remained near $1.8 million per year. U.S. West Coast vessels with deep-set longline gear primarily target tuna species with a small percentage of swordfish and other highly migratory species taken incidentally. U.S. West Coast-based longline vessels fish primarily in the EPO and are currently restricted to fishing with deep-set longline gear outside of the U.S. West Coast EEZ. Given this restriction, there has been fewer than three west coast-based vessels operating out of southern California ports since 2005; therefore, landings and ex-vessel revenue are confidential. Recently, the number of Hawaii-permitted longline vessels that have landed in west coast ports has increased from one vessel in 2006 to 14 vessels in 2014. In 2014, 621 mt of highly migratory species were landed by Hawaii permitted longline vessels with an average ex-vessel revenue of approximately $247,857 per vessel.

    NMFS considers all entities subject to this action to be small entities as defined by both the former, lower size standards and the revised size standards. Because each affected vessel is a small business, this proposed action is considered to equally affect all of these small entities in the same manner. This action is not expected to change the typical fishing practices of affected vessels or the income of U.S. vessels because these vessels do not target mobulid rays, and do not commonly catch mobulid rays, even incidentally. The action is not expected to have a significant economic impact on substantial number of small entities. Accordingly, vessel income is not expected to be altered as a result of this rule. This action is not likely to increase the economic or record keeping and reporting burden on U.S. vessel owners and operators.

    Further details on the factual basis for the certification were published in the proposed rule (April 22, 2016, 81 FR 23669) and are not repeated here. No comments were received regarding the certification. Therefore, the certification published with the proposed rule that states this rule is not expected to have a significant economic impact on a substantial number of small entities is still valid. As a result, a regulatory flexibility analysis was not required and none was prepared.

    The Assistant Administrator for Fisheries has determined that good cause exists under 5 U.S.C. 553(d)(3) to waive the requirement for a 30-day delay in effectiveness. If this rule were subject to the 30-day delay in effectiveness, the United States would not be able to satisfy its international obligations to implement legally binding IATTC Resolution C-15-04 by August 1, 2016, which is the effective date specified in the resolution. Additionally, the rule does not require the regulated entities to undertake actions (such as purchasing equipment, re-writing software, creating new reporting sheets, or training in new skills) in order to come into compliance with this rule prior to the effective date. As soon as the rule is filed with the Office of the Federal Register, notice will be sent to inform members of the tuna-fishing industry.

    List of Subjects in 50 CFR Part 300

    Fish, Fisheries, Fishing, Fishing vessels, International organizations, Marine resources, Reporting and recordkeeping requirements, Treaties.

    Dated: July 26, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:

    PART 300—INTERNATIONAL FISHERIES REGULATIONS 1. The authority citation for part 300, subpart C, continues to read as follows: Authority:

    16 U.S.C. 951 et seq.

    2. Section 300.20 is revised to read as follows:
    § 300.20 Purpose and scope.

    The regulations in this subpart are issued under the authority of the Tuna Conventions Act of 1950, as amended, (Act) and apply to persons and vessels subject to the jurisdiction of the United States. The regulations implement recommendations and other decisions of the Inter-American Tropical Tuna Commission (IATTC) for the conservation and management of stocks of tunas and tuna-like species and other species of fish taken by vessels fishing for tunas and tuna-like species in the IATTC Convention Area.

    3. In § 300.21, revise the introductory text and add a definition for “Mobulid ray” in alphabetical order to read as follows:
    § 300.21 Definitions.

    In addition to the terms defined in § 300.2, in the Act, the Convention for the Establishment of an Inter-American Tropical Tuna Commission (Convention), and the Convention for the Strengthening of the Inter-American Tropical Tuna Commission Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (Antigua Convention), the terms used in this subpart have the following meanings. If a term is defined differently in § 300.2, in the Act, or in the Antigua Convention, the definition in this section shall apply.

    Mobulid ray means any animal in the family Mobulidae, which includes manta rays (Manta spp.) and devil rays (Mobula spp.).

    4. In § 300.24, revise paragraphs (e), (f), (h), (t), (w), and (x) and add paragraphs (cc) and (dd) to read as follows:
    § 300.24 Prohibitions.

    (e) Fail to retain any bigeye, skipjack, or yellowfin tuna caught by a fishing vessel of the United States of class size 4-6 using purse seine gear in the Convention Area as required under § 300.27(a).

    (f) When using purse seine gear to fish for tuna in the Convention Area, fail to release any non-tuna species as soon as practicable after being identified on board the vessel during the brailing operation as required in § 300.27(b).

    (h) Fail to use the sea turtle handling, release, and resuscitation procedures in § 300.27(c).

    (t) Use a U.S. fishing vessel to fish for HMS in the Convention Area and retain on board, transship, land, store, sell, or offer for sale any part or whole carcass of an oceanic whitetip shark (Carcharhinus longimanus) or fail to release unharmed, to the extent practicable, all oceanic whitetip sharks when brought alongside the vessel in contravention of § 300.27(d).

    (w) Set or attempt to set a purse seine on or around a whale shark (Rhincodon typus) in contravention of § 300.27(e).

    (x) Fail to release a whale shark encircled in a purse seine net of a fishing vessel as required in § 300.27(f).

    (cc) To retain on board, transship, store, land, sell, or offer for sale any part or whole carcass of a mobulid ray, as described in § 300.27(g).

    (dd) Fail to handle or release a mobulid ray as required in § 300.27(h).

    5. In § 300.25, revise paragraph (a), remove paragraph (e), and redesignate paragraphs (f) through (h) as (e) through (g), respectively.

    The revision reads as follows:

    § 300.25 Eastern Pacific fisheries management.

    (a) IATTC recommendations and decisions. The Secretary of Commerce, in consultation with the Secretary of State and, with respect to enforcement measures, the U.S. Coast Guard, may promulgate such regulations as may be necessary to carry out the U.S. international obligations under the Convention, Antigua Convention, and the Act, including recommendations and other decisions adopted by the IATTC.

    6. Section 300.27 is added to subpart C to read as follows:
    § 300.27 Incidental catch and tuna retention requirements.

    (a) Tuna retention requirements for purse seine vessels. Bigeye, skipjack, and yellowfin tuna caught in the Convention Area by a fishing vessel of the United States of class size 4-6 (more than 182 metric tons carrying capacity) using purse seine gear must be retained on board and landed, except for fish deemed unfit for human consumption for reasons other than size. This requirement shall not apply to the last set of a trip if the available well capacity is insufficient to accommodate the entire catch.

    (b) Release requirements for non-tuna species on purse seine vessels. All purse seine vessels must release all shark, billfish, ray (not including mobulid rays, which are subject to paragraph (g) of this section), dorado (Coryphaena hippurus), and other non-tuna fish species, except those being retained for consumption aboard the vessel, as soon as practicable after being identified on board the vessel during the brailing operation.

    (c) Sea turtle handling and release. All purse seine vessels must apply special sea turtle handling and release requirements, as follows:

    (1) Whenever a sea turtle is sighted in the net, a speedboat shall be stationed close to the point where the net is lifted out of the water to assist in release of the sea turtle;

    (2) If a sea turtle is entangled in the net, net roll shall stop as soon as the sea turtle comes out of the water and shall not resume until the sea turtle has been disentangled and released;

    (3) If, in spite of the measures taken under paragraphs (c)(1) and (c)(2) of this section, a sea turtle is accidentally brought on board the vessel alive and active, the vessel's engine shall be disengaged and the sea turtle shall be released as quickly as practicable;

    (4) If a sea turtle brought on board under paragraph (c)(3) of this section is alive but comatose or inactive, the resuscitation procedures described in § 223.206(d)(1)(i)(B) of this title shall be used before release of the turtle.

    (d) Oceanic whitetip shark restrictions. The crew, operator, or owner of a fishing vessel of the United States used to fish for HMS in the Convention Area shall be prohibited from retaining on board, transshipping, landing, storing, selling, or offering for sale any part or whole carcass of an oceanic whitetip shark (Carcharhinus longimanus) and must release unharmed, to the extent practicable, all oceanic whitetip sharks when brought alongside the vessel.

    (e) Whale shark restrictions for purse seine vessels. Owners, operators, and crew of fishing vessels of the United States commercially fishing for tuna in the Convention Area may not set or attempt to set a purse seine on or around a whale shark (Rhincodon typus) if the animal is sighted prior to the commencement of the set or the attempted set.

    (f) Whale shark release. The crew, operator, and owner of a fishing vessel of the United States commercially fishing for tuna in the Convention Area must release as soon as possible, any whale shark that is encircled in a purse seine net, and must ensure that all reasonable steps are taken to ensure its safe release.

    (g) Mobulid ray restrictions. The crew, operator, and owner of a U.S. commercial fishing vessel is prohibited from retaining on board, transshipping, storing, landing, selling, or offering for sale any part or whole carcass of a mobulid ray that is caught in the IATTC Convention Area, except as provided in the following sentence. In the case of any mobulid ray caught in the IATTC Convention Area on an observed purse seine vessel that is not seen during fishing operations and is delivered into the vessel hold, the mobulid ray may be stored on board and landed, but the vessel owner or operator must show the whole mobulid ray to the on-board observer at the point of landing for recording purposes, and then dispose of the mobulid ray at the direction of the responsible government authority. In U.S. ports the responsible governmental authority is the NOAA Office of Law Enforcement divisional office nearest to the port, or other authorized personnel. Mobulid rays that are caught and landed in this manner may not be sold or bartered, but may be donated for purposes of domestic human consumption consistent with relevant laws and policies.

    (h) Mobulid ray handling and release. The crew, operator, and owner of a U.S. commercial fishing vessel must promptly release unharmed, to the extent practicable, any mobulid ray (whether live or dead) caught in the IATTC Convention Area as soon as it is seen in the net, on the hook, or on the deck, without compromising the safety of any persons. If a mobulid ray is live when caught, the crew, operator, and owner of a U.S. commercial fishing vessel must use the release procedures described in the following two paragraphs.

    (1) No mobulid ray may be gaffed, no mobulid ray may be lifted by the gill slits or spiracles or by using bind wire against or inserted through the body, and no holes may be punched through the bodies of mobulid ray (e.g., to pass a cable through for lifting the mobulid ray).

    (2) Applicable to purse seine operations, large mobulid rays must be brailed out of the net by directly releasing the mobulid ray from the brailer into the ocean. Large mobulid rays that cannot be released without compromising the safety of persons or the mobulid ray before being landed on deck, must be returned to the water as soon as possible, either utilizing a ramp from the deck connecting to an opening on the side of the boat, or lowered with a sling or net, using a crane if available. The minimum size for the sling or net must be at least 25 feet in diameter.

    [FR Doc. 2016-18083 Filed 7-29-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150818742-6210-02] RIN 0648-XE771 Fisheries of the Exclusive Economic Zone Off Alaska; Dusky Rockfish in the West Yakutat District of the Gulf of Alaska AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for dusky rockfish in the West Yakutat District of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2016 total allowable catch of dusky rockfish in the West Yakutat District of the GOA.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), July 27, 2016, through 2400 hours, A.l.t., December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2016 total allowable catch (TAC) of dusky rockfish in the West Yakutat District of the GOA is 275 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).

    In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2016 TAC of dusky rockfish in the West Yakutat District of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 270 mt, and is setting aside the remaining 5 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for dusky rockfish in the West Yakutat District of the GOA.

    After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for dusky rockfish in the West Yakutat District of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 26, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: July 27, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-18122 Filed 7-27-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150818742-0610-02] RIN 0648-XE772 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch in the West Yakutat District of the Gulf of Alaska AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting directed fishing for Pacific ocean perch in the West Yakutat District of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2016 total allowable catch of Pacific ocean perch in the West Yakutat District of the GOA.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), July 27, 2016, through 2400 hours, A.l.t., December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2016 total allowable catch (TAC) of Pacific ocean perch in the West Yakutat District of the GOA is 2,847 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).

    In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2016 TAC of Pacific ocean perch in the West Yakutat District of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 2,747 mt, and is setting aside the remaining 100 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the West Yakutat District of the GOA.

    After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing for Pacific ocean perch in the West Yakutat District of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 26, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: July 27, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-18126 Filed 7-27-16; 4:15 pm] BILLING CODE 3510-22-P
    81 147 Monday, August 1, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 948 [Doc. No. AMS-SC-16-0042; SC16-948-1 PR] Irish Potatoes Grown in Colorado; Modification of the Handling Regulation for Area No. 2 AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would implement a recommendation from the Colorado Potato Administrative Committee, Area No. 2 (Committee) to revise the grade requirement currently prescribed for 11/2-inch minimum to 21/4-inch maximum diameter (Size B) potatoes under the Colorado potato marketing order (order). The Committee locally administers the order and is comprised of producers and handlers of potatoes operating within the area of production. This action would relax the current minimum grade requirement for Size B red potatoes from U.S. Commercial grade or better to U.S. No. 2 grade or better. Relaxing this grade requirement would allow area handlers to supply new markets with U.S. No. 2 grade Size B red potatoes and is expected to benefit producers, handlers, and consumers.

    DATES:

    Comments must be received by September 30, 2016.

    ADDRESSES:

    Interested persons are invited to submit written comments concerning this proposal. Comments must be sent to the Docket Clerk, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Fax: (202) 720-8938; or Internet: http://www.regulations.gov. All comments should reference the document number and the date and page number of this issue of the Federal Register and will be made available for public inspection in the Office of the Docket Clerk during regular business hours, or can be viewed at: http://www.regulations.gov. All comments submitted in response to this proposal will be included in the record and will be made available to the public. Please be advised that the identity of the individuals or entities submitting the comments will be made public on the internet at the address provided above.

    FOR FURTHER INFORMATION CONTACT:

    Sue Coleman, Marketing Specialist, or Gary D. Olson, Regional Director, Northwest Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326-2724, Fax: (503) 326-7440, or Email: [email protected] or [email protected]

    Small businesses may request information on complying with this regulation by contacting Antoinette Carter, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    This proposal is issued under Marketing Agreement No. 97 and Marketing Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

    The Department of Agriculture (USDA) is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 13175.

    This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have retroactive effect.

    The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

    This proposal invites comments on revisions to the grade requirement currently prescribed for Size B potatoes under the order. This proposal would relax the current minimum grade requirement for Size B red potatoes from U.S. Commercial grade to U.S. No. 2 grade. This change was unanimously recommended by the Committee at a meeting held on March 17, 2016.

    Section 948.22 authorizes the issuance of grade, size, quality, maturity, pack, and container regulations for potatoes grown in the order's production area. Section 948.21 authorizes the modification, suspension, or termination of regulations issued pursuant to § 948.22.

    Under the Colorado potato marketing order, the State of Colorado is divided into three areas of regulation for marketing order purposes. These include: Area 1, commonly known as the Western Slope; Area 2, commonly known as San Luis Valley; and, Area 3, which consists of the remaining producing areas within the State of Colorado not included in the definitions of Area 1 or Area 2. Currently, the order only regulates the handling of potatoes produced in Area 2 and Area 3. Regulation for Area 1 has been suspended.

    The grade, size, and maturity requirements specific to the handling of potatoes grown in Area 2 are contained in § 948.386 of the order. The current handling regulation requires that, for all varieties, Size B potatoes (11/2-inch minimum to 21/4-inch maximum diameter as designated in the U.S. Standards for Grades of Potatoes) may be handled under the order, if such potatoes meet or exceed the requirements of the U.S. Commercial grade.

    At the March 17, 2016, Committee meeting, industry participants indicated to the Committee that there is demand in several markets, including the food service market, for Size B, U.S. No. 2 grade red potatoes. They further stated that the order's current grade requirement for Size B potatoes (U.S. Commercial grade or better) precludes handlers from supplying this growing and profitable market. Relaxing the grade requirement for Size B red potatoes would allow area handlers to compete with other domestic potato producing regions. This change would effectively lower the allowable grade for red varieties of Size B potatoes from U.S. Commercial grade or better to U.S. No. 2 grade or better.

    Relaxing the grade requirement to allow shipments of U.S. No. 2 grade Size B red potatoes would make more potatoes available to consumers and would allow Area 2 handlers to move more of the area's potato production into the fresh market. This change is expected to benefit producers, handlers, and consumers of potatoes.

    Initial Regulatory Flexibility Analysis

    Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

    There are approximately 66 handlers of Colorado Area No. 2 potatoes subject to regulation under the order and approximately 150 producers in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA) as those having annual receipts of less than $7,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000 (13 CFR 121.201).

    During the 2014-2015 marketing year, the most recent full marketing year for which statistics are available, 14,075,876 hundredweight of Colorado Area No. 2 potatoes were inspected under the order and sold into the fresh market. Based on information reported by USDA's Market News Service, the average f.o.b. shipping point price for the 2014-2015 Colorado potato crop was $8.60 per hundredweight. Multiplying $8.60 by the shipment quantity of 14,075,876 hundredweight yields an annual crop revenue estimate of $121,052,534. The average annual fresh potato revenue for each of the 66 handlers is therefore calculated to be $1,834,129 ($121,052,534 divided by 66), which is less than the SBA threshold of $7,500,000. Consequently, on average most of the Colorado Area No. 2 potato handlers may be classified as small entities.

    In addition, based on information provided by the National Agricultural Statistics Service, the average producer price for the 2014 Colorado fall potato crop was $8.25 per hundredweight. Multiplying $8.25 by the shipment quantity of 14,075,876 hundredweight yields an annual crop revenue estimate of $116,125,977. The average annual fresh potato revenue for each of the 150 Colorado Area No. 2 potato producers is therefore calculated to be approximately $774,173 ($116,125,977 divided by 150), which is greater than the SBA threshold of $750,000. Consequently, on average, many of the Area No. 2 Colorado potato producers may not be classified as small entities.

    This proposal would relax the minimum grade requirement prescribed for 11/2-inch minimum diameter to 21/4-inch maximum diameter (Size B) red potatoes under the order. Currently, the handling of Size B potatoes is allowed if the potatoes otherwise meet or exceed the requirements of the U.S. Commercial grade standard. This change would effectively lower the minimum grade requirement for Size B red potatoes from U.S. Commercial grade or better to U.S. No. 2 grade or better. Relaxing the grade requirement would allow Colorado Area 2 handlers to supply markets with U.S. No. 2 grade Size B red potatoes and enable them to better compete with the other domestic potato producing regions. The proposed change in the handling regulations is expected to benefit producers, handlers, and consumers. All other requirements in the order's handling regulations would remain unchanged. Authority for this action is contained in §§ 948.20, 948.21, and 948.22 of the order.

    This relaxation is expected to benefit producers, handlers, and consumers of Colorado Area 2 potatoes by allowing a greater quantity of potatoes from the production area to enter the fresh market. The anticipated increase in volume is expected to translate into greater returns for handlers and producers, and more purchasing options for consumers.

    After discussing possible alternatives to this proposed rule, the Committee determined that a relaxation in the grade requirement for Size B red potatoes would meet the industry's current needs while maintaining the integrity of the order's quality objectives. During its deliberations, the Committee considered making no changes to the handling regulation, as well as relaxing the grade requirement for all Size B potatoes. The Committee believes that a relaxation in the handling regulation for Size B red potatoes is necessary to allow handlers to pursue new markets, but lowering the grade requirement for all other types and varieties of Size B potatoes to U.S. No. 2 grade or better could erode the quality reputation of the area's production. Therefore, the Committee found that there were no other viable alternatives to the proposal as recommended.

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, (Generic Vegetable and Specialty Crops). No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

    This proposed rule would relax minimum grade requirement under the Colorado Area 2 potato marketing order. Accordingly, this action would not impose any additional reporting or recordkeeping requirements on either small or large potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

    AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule.

    In addition, the Committee's meeting was widely publicized throughout the Colorado potato industry and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the March 17, 2016, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

    A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Antoinette Carter at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

    A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.

    List of Subjects in 7 CFR Part 948

    Marketing agreements, Potatoes, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, 7 CFR part 948 is proposed to be amended as follows:

    PART 948—IRISH POTATOES GROWN IN COLORADO 1. The authority citation for 7 CFR part 948 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    2. In § 948.386, paragraph (a)(3) is revised to read as follows:
    § 948.386 Handling regulation.

    (a) * * *

    (3) 11/2-inch minimum to 21/4-inch maximum diameter (Size B). U.S. Commercial grade or better, except that red varieties may be U.S. No. 2 grade or better.

    Dated: July 27, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
    [FR Doc. 2016-18114 Filed 7-29-16; 8:45 am] BILLING CODE 3410-02-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 51 [EPA-HQ-OAR-2015-0041; FRL-9949-76-OAR] RIN 2060-AR94 Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds—Exclusion of 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) Ethane (HFE-347pcf2) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to revise the regulatory definition of volatile organic compounds (VOC) under the Clean Air Act (CAA). This proposed revision would add 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane (also known as HFE-347pcf2; CAS number 406-78-0) to the list of compounds excluded from the regulatory definition of VOC on the basis that this compound makes a negligible contribution to tropospheric ozone formation. In the “Rules and Regulations” section of this Federal Register, we are making this same amendment as a direct final rule without a prior proposed rule. If we receive no adverse comment, we will not take further action on this proposed rule.

    DATES:

    Written comments must be received on or before August 31, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2015-0041, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Souad Benromdhane, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, Mail Code C539-07, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone: (919) 541-4359; fax number: (919) 541-5315; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Why is the EPA issuing this proposed rule?

    This document proposes to revise the EPA's regulatory definition of VOC for purposes of preparing state implementation plans (SIPs) to attain the national ambient air quality standards (NAAQS) for ozone under title I of the CAA by adding HFE-347pcf2 to the list of compounds excluded from the regulatory definition of VOC on the basis that this compound makes a negligible contribution to tropospheric ozone formation. We have published a direct final rule in the “Rules and Regulations” section of this Federal Register because we view this action as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule.

    If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule.

    We do not intend to 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 information provided in the ADDRESSES section of this document.

    B. Does this action apply to me?

    Entities potentially affected by this direct final rule include, but are not necessarily limited to, state and local air pollution control agencies that adopt and implement regulations to control air emissions of VOC; and industries manufacturing and/or using HFE-347pcf2 as a precision cleaning agent to remove contaminates including oil, flux, fingerprints from items like medical devices, artificial implants, crucial military and aerospace items, electric components, printed circuit boards, optics, jewelry, ball bearings, aircraft guidance systems, film, relays and a variety of metal components, among others. In addition to being available in the docket, an electronic copy of this proposal will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this action will be posted on the EPA's Web site http://www.epa.gov/airquality/ozonepollution/actions.html#impl.

    C. What should I consider as I prepare my comments for the EPA?

    Submitting CBI: Do not submit this information to the EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    II. Proposed Rule

    This proposed action would revise the EPA's regulatory definition of VOC for purposes of preparing SIPs to attain the NAAQS for ozone under title I of the CAA, by adding HFE-347pcf2 to the list of compounds excluded from the regulatory definition of VOC on the basis that this compound makes a negligible contribution to tropospheric ozone formation. We have explained our reasons for this action in the preamble to the direct final rule. The regulatory text for the proposal is identical to that for the direct final rule published in the “Rules and Regulations” section of this Federal Register. For further supplementary information, the detailed rationale for the proposal and the regulatory revisions, see the direct final rule published under “Rules and Regulations” of the Federal Register.

    III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. It does not contain any recordkeeping or reporting requirements.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action removes HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users of the compound from requirements to control emissions of the compound.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    E. Executive Order 13132: Federalism

    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.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. This proposed rule would remove HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users from requirements to control emissions of the compound. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Since HFE-347pcf2 is utilized in specific industrial applications where children are not present and dissipates quickly, there is no exposure or disproportionate risk to children. This proposed rule would remove HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users from requirements to control emissions of the compound.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action would remove HFE-347pcf2 from the regulatory definition of VOC and thereby relieves manufacturers, distributers and users of the compound from requirements to control emissions of the compound.

    List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: July 20, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-17790 Filed 7-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0209; FRL-9950-00-Region 4] Air Plan Approval; Alabama and North Carolina; Interstate Transport—2010 NO2 Standards AGENCY:

    Environmental Protection Agency.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a revision to the North Carolina SIP, submitted by the North Carolina Department of Environmental Quality (NC DEQ) on March 24, 2016, and the portions of a revision to the Alabama State Implementation Plan (SIP), submitted by the Alabama Department of Environmental Management (ADEM) on December 9, 2015, addressing the Clean Air Act (CAA or Act) interstate transport (prongs 1 and 2) infrastructure SIP requirements for the 2010 1-hour Nitrogen Dioxide (NO2) National Ambient Air Quality Standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, commonly referred to as an “infrastructure SIP.” Specifically, EPA is proposing to approve North Carolina's March 24, 2016, SIP submission and the portions of Alabama's December 9, 2015, SIP submission addressing interstate transport requirements for the 2010 NO2 NAAQS.

    DATES:

    Comments must be received on or before August 31, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No EPA-R04-OAR-2016-0209 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Sean Lakeman of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

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

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

    Through these proposed actions, EPA is proposing to approve North Carolina's March 24, 2016, SIP submission and the portions of Alabama's December 9, 2015, SIP submission addressing interstate transport requirements for the 2010 NO2 NAAQS. All other applicable infrastructure SIP requirements for Alabama and North Carolina for the 2010 1-hour NO2 NAAQS will be addressed in separate rulemakings. A brief background regarding the 2010 1-hour NO2 NAAQS is provided below.

    On January 22, 2010, EPA established a new 1-hour primary NAAQS for NO2 at a level of 100 parts per billion, based on a 3-year average of the 98th percentile of the yearly distribution of 1-hour daily maximum concentrations. See 75 FR 6474 (February 9, 2010). This NAAQS is designed to protect against exposure to the entire group of nitrogen oxides (NOX). NO2 is the component of greatest concern and is used as the indicator for the larger group of NOX. Emissions that lead to the formation of NO2 generally also lead to the formation of other NOX. Therefore, control measures that reduce NO2 can generally be expected to reduce population exposures to all gaseous NOX which may have the co-benefit of reducing the formation of ozone and fine particles both of which pose significant public health threats.

    States were required to submit infrastructure SIP submissions for the 2010 1-hour NO2 NAAQS to EPA no later than January 22, 2013. For comprehensive information on 2010 1-hour NO2 NAAQS, please refer to the Federal Register notice cited above.

    II. What is EPA's approach to the review of infrastructure SIP submissions?

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

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

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

    1 For example: Section 110(a)(2)(E)(i) provides that states must provide assurances that they have adequate legal authority under state and local law to carry out the SIP; Section 110(a)(2)(C) provides that states must have a SIP-approved program to address certain sources as required by part C of Title I of the CAA; and section 110(a)(2)(G) provides that states must have legal authority to address emergencies as well as contingency plans that are triggered in the event of such emergencies.

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

    2See, e.g., “Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call; Final Rule,” 70 FR 25162, at 25163-65 (May 12, 2005) (explaining relationship between timing requirement of section 110(a)(2)(D) versus section 110(a)(2)(I)).

    3 EPA notes that this ambiguity within section 110(a)(2) is heightened by the fact that various subparts of part D set specific dates for submission of certain types of SIP submissions in designated nonattainment areas for various pollutants. Note, e.g., that section 182(a)(1) provides specific dates for submission of emissions inventories for the ozone NAAQS. Some of these specific dates are necessarily later than three years after promulgation of the new or revised NAAQS.

    Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.4 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.5

    4See, e.g., “Approval and Promulgation of Implementation Plans; New Mexico; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Prevention of Significant Deterioration (PSD) and Nonattainment New Source Review (NNSR) Permitting,” 78 FR 4339 (January 22, 2013) (EPA's final action approving the structural PSD elements of the New Mexico SIP submitted by the State separately to meet the requirements of EPA's 2008 PM2.5 NSR rule), and “Approval and Promulgation of Air Quality Implementation Plans; New Mexico; Infrastructure and Interstate Transport Requirements for the 2006 PM2.5 NAAQS,” 78 FR 4337 (January 22, 2013) (EPA's final action on the infrastructure SIP for the 2006 PM2.5 NAAQS).

    5 On December 14, 2007, the State of Tennessee, through the Tennessee Department of Environment and Conservation, made a SIP revision to EPA demonstrating that the State meets the requirements of sections 110(a)(1) and (2). EPA proposed action for infrastructure SIP elements (C) and (J) on January 23, 2012 (77 FR 3213) and took final action on March 14, 2012 (77 FR 14976). On April 16, 2012 (77 FR 22533) and July 23, 2012 (77 FR 42997), EPA took separate proposed and final actions on all other section 110(a)(2) infrastructure SIP elements of Tennessee's December 14, 2007 submittal.

    Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.6

    6 For example, implementation of the 1997 PM2.5 NAAQS required the deployment of a system of new monitors to measure ambient levels of that new indicator species for the new NAAQS.

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

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

    Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.7 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).8 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions.9 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

    7 EPA notes, however, that nothing in the CAA requires EPA to provide guidance or to promulgate regulations for infrastructure SIP submissions. The CAA directly applies to states and requires the submission of infrastructure SIP submissions, regardless of whether or not EPA provides guidance or regulations pertaining to such submissions. EPA elects to issue such guidance in order to assist states, as appropriate.

    8 “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” Memorandum from Stephen D. Page, September 13, 2013.

    9 EPA's September 13, 2013, guidance did not make recommendations with respect to infrastructure SIP submissions to address section 110(a)(2)(D)(i)(I). EPA issued the guidance shortly after the U.S. Supreme Court agreed to review the D.C. Circuit decision in EME Homer City, 696 F.3d 7 (D.C. Cir. 2012) which had interpreted the requirements of section 110(a)(2)(D)(i)(I). In light of the uncertainty created by ongoing litigation, EPA elected not to provide additional guidance on the requirements of section 110(a)(2)(D)(i)(I) at that time. As the guidance is neither binding nor required by statute, whether EPA elects to provide guidance on a particular section has no impact on a state's CAA obligations.

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

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

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

    With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction (SSM) that may be contrary to the CAA and EPA's policies addressing such excess emissions; 10 (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes that it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions.11 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

    10 Subsequent to issuing the 2013 Guidance, EPA's interpretation of the CAA with respect to the approvability of affirmative defense provisions in SIPs has changed. See “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” 80 FR 33839 (June 12, 2015). As a result, EPA's 2013 Guidance (p. 21 & n.30) no longer represents the EPA's view concerning the validity of affirmative defense provisions, in light of the requirements of section 113 and section 304.

    11 By contrast, EPA notes that if a state were to include a new provision in an infrastructure SIP submission that contained a legal deficiency, such as a new exemption or affirmative defense for excess emissions during SSM events, then EPA would need to evaluate that provision for compliance against the rubric of applicable CAA requirements in the context of the action on the infrastructure SIP.

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

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

    Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA.12 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions.13 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action.14

    12 For example, EPA issued a SIP call to Utah to address specific existing SIP deficiencies related to the treatment of excess emissions during SSM events. See “Finding of Substantial Inadequacy of Implementation Plan; Call for Utah State Implementation Plan Revisions,” 74 FR 21639 (April 18, 2011).

    13 EPA has used this authority to correct errors in past actions on SIP submissions related to PSD programs. See “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans; Final Rule,” 75 FR 82536 (December 30, 2010). EPA has previously used its authority under section 110(k)(6) of the CAA to remove numerous other SIP provisions that the Agency determined it had approved in error. See, e.g., 61 FR 38664 (July 25, 1996) and 62 FR 34641 (June 27, 1997) (corrections to American Samoa, Arizona, California, Hawaii, and Nevada SIPs); 69 FR 67062, November 16, 2004 (corrections to California SIP); and 74 FR 57051 (November 3, 2009) (corrections to Arizona and Nevada SIPs).

    14See, e.g., EPA's disapproval of a SIP submission from Colorado on the grounds that it would have included a director's discretion provision inconsistent with CAA requirements, including section 110(a)(2)(A). See, e.g., 75 FR 42342 at 42344 (July 21, 2010) (proposed disapproval of director's discretion provisions); 76 FR 4540 (January 26, 2011) (final disapproval of such provisions).

    III. What are the prongs 1 and 2 requirements?

    For each new NAAQS, section 110(a)(2)(D)(i)(I) of the CAA requires each state to submit a SIP revision that contains adequate provisions prohibiting emissions activity in the state from contributing significantly to nonattainment, or interfering with maintenance, of the NAAQS in any downwind state. EPA sometimes refers to these requirements as prong 1 (significant contribution to nonattainment) and prong 2 (interference with maintenance), or conjointly as the “good neighbor” provision of the CAA. Section 110(a)(2)(D)(i)(I) requires the elimination of upwind state emissions that significantly contribute to nonattainment or interference with maintenance of the NAAQS in another state.

    IV. What is EPA's analysis of how Alabama and North Carolina addressed prongs 1 and 2? A. Prong 1 (Significant Contribution to Nonattainment) for Alabama

    Alabama has concluded that it does not contribute significantly to nonattainment of the 2010 1-hour NO2 NAAQS in any other state for the following reasons: (1) There are no areas in Alabama or in the surrounding states that are designated as nonattainment for the 2010 NO2 NAAQS; (2) monitored ambient NO2 concentrations in the State and surrounding states are well below the 1-hour 2010 NO2 NAAQS; (3) there are federal and SIP-approved state regulations in place to control NOX emissions in the State. EPA agrees with the State's conclusion based on the rationale discussed below.

    First, there are no designated nonattainment areas for the 1-hr NO2 NAAQS. On February 17, 2012, EPA designated the entire country as “unclassifiable/attainment” for the 2010 1-hour NO2 NAAQS, stating that “available information does not indicate that the air quality in these areas exceeds the 2010 1-hour NO2 NAAQS” (77 FR 9532).

    Second, as part of its December 9, 2015 submittal, Alabama examined NO2 monitoring data from 2012-2014 in the State and surrounding states. According to this data, the design values during this period are well below the 100 ppb standard with Georgia and Tennessee having the highest design values (49 ppb).

    Third, in its submittal, Alabama identifies SIP-approved regulations at Alabama Administrative Code 335-3-8 that require controls and emission limits for certain NOX emitting sources in the State. These regulations include the SIP-approved portion of the NOX SIP call that requires certain NOX emitting sources to comply with a capped NOX emission budget.15 Alabama also notes that it has implemented several federal programs that, while not relied upon to address its “good neighbor” obligations for the NO2 NAAQS, have reduced NOX emissions within the State.16 Alabama also controls NOX emissions at certain sources through source-specific measures pursuant to its SIP-approved permitting regulations at Alabama Administrative Code 335-3-14. These permitting requirements help ensure that no new or modified NOX sources in the State subject to these permitting regulations will significantly contribute to nonattainment or interfere with maintenance of the 2010 NO2 NAAQS.

    15 On October 27, 1998 (63 FR 57356), EPA issued the NOX SIP Call requiring the District of Columbia and 22 states to reduce emissions of NOX and providing a mechanism (the NOX Budget Trading Program) that states could use to achieve those reductions. Affected states were required to comply with Phase I of the SIP Call beginning in 2004 and Phase II beginning in 2007.

    16 The federal programs identified by the State include New Source Performance Standards (40 CFR part 60), National Emission Standards for Hazardous Air Pollutants (40 CFR parts 61 and 63), and the Cross-State Air Pollution Rule (CSAPR).

    For all the reasons discussed above, EPA has preliminarily determined that Alabama does not contribute significantly to nonattainment of the 2010 1-hour NO2 NAAQS in any other state and that Alabama's SIP includes adequate provisions to prevent emissions sources within the State from significantly contributing to nonattainment of this standard in any other state.

    B. Prong 2 (Interference With Maintenance) for Alabama

    Alabama has concluded that it does not interfere with maintenance of the 2010 1-hour NO2 NAAQS in any other state. As noted above, NO2 design values in the State and in surrounding states are well below the standard, Alabama's SIP contains provisions to control NOX emissions, and Alabama has implemented a number of federal programs that have reduced NOX emissions within the State. For these reasons, EPA has preliminarily determined that Alabama is not interfering with maintenance of the 2010 1-hour NO2 NAAQS in any other state and that Alabama's SIP includes adequate provisions to prevent emissions sources within the state from interfering with maintenance of this standard in any other state.

    C. Prong 1 (Significant Contribution to Nonattainment) for North Carolina

    North Carolina has concluded that it does not contribute significantly to nonattainment of the 2010 1-hour NO2 NAAQS in any other state for several reasons, including the following: (1) There are no areas in the country designated as nonattainment for the 2010 NO2 NAAQS; (2) monitored ambient NO2 concentrations in the State and in the surrounding states are well below the 1-hour 2010 NO2 NAAQS; (3) NOX emissions have declined significantly and are expected to continue to decline through 2017 and beyond; and 4) there are federal and SIP-approved state regulations in place to control NOX emissions. EPA agrees with the State's conclusion based on the rationale discussed below.

    First, as noted above, there are no designated nonattainment areas for the 1-hr NO2 NAAQS.

    Second, North Carolina examined 1-hour NO2 design values based on monitoring data collected between 2012-2014 from NO2 monitors within North Carolina and surrounding states.17 The design values during this period are well below the 100 ppb standard with Georgia and Tennessee having the highest design values (49 ppb).

    17 North Carolina notes that two new near-road NO2 monitors deployed in the State in 2014 show measured concentrations well below the 1-hour standard. The State believes that this data indicates that NOX emissions from mobile sources in North Carolina are unlikely to contribute to nonattainment or interfere with maintenance of the NO2 NAAQS in a downwind state. These monitors were required as part of a modified NO2 monitoring network to site monitors in locations where maximum NO2 concentrations are expected to occur, including within 50 meters of major roadways.

    Third, North Carolina reviewed 1996-2011 annual NOX emissions data for the State from EPA's National Emissions Inventory and determined that the State's NOX emissions have declined by approximately 50 percent during this time. North Carolina projects that NOX emissions from 2011-2017 in the State will decline by an additional 39 percent. The State also notes that NOX emissions from EGUs in North Carolina have declined between 2002-2011 primarily due to the State's 2002 Clean Smokestack Act (CSA).18 The CSA establishes entity-wide caps on total annual NOX emissions from investor-owned coal-fired electric generating units (EGUs) in the State.19

    18 EPA appr