Federal Register Vol. 81, No.156,

Federal Register Volume 81, Issue 156 (August 12, 2016)

Page Range53245-53905
FR Document

81_FR_156
Current View
Page and SubjectPDF
81 FR 53505 - Government in the Sunshine Act Meeting NoticePDF
81 FR 53424 - Certain Hot-Rolled Steel Flat Products From Brazil: Final Determination of Sales at Less Than Fair Value and Final Affirmative Determination of Critical Circumstances, in PartPDF
81 FR 53419 - Certain Hot-Rolled Steel Flat Products From the Republic of Korea: Final Determination of Sales at Less Than Fair ValuePDF
81 FR 53433 - Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products From the Republic of Turkey: Final Affirmative DeterminationPDF
81 FR 53409 - Certain Hot-Rolled Steel Flat Products From Japan: Final Determination of Sales at Less Than Fair Value and Final Affirmative Determination of Critical CircumstancesPDF
81 FR 53439 - Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products From the Republic of Korea: Final Affirmative DeterminationPDF
81 FR 53416 - Countervailing Duty Investigation of Certain Hot-Rolled Steel Flat Products From Brazil: Final Affirmative Determination, and Final Determination of Critical Circumstances, in PartPDF
81 FR 53406 - Certain Hot-Rolled Steel Flat Products From Australia: Final Determination of Sales at Less Than Fair ValuePDF
81 FR 53436 - Certain Hot-Rolled Steel Flat Products From the United Kingdom: Final Determination of Sales at Less Than Fair ValuePDF
81 FR 53428 - Certain Hot-Rolled Steel Flat Products From the Republic of Turkey: Final Determination of Sales at Less Than Fair ValuePDF
81 FR 53421 - Certain Hot-Rolled Steel Flat Products From the Netherlands: Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical CircumstancesPDF
81 FR 53271 - Drawbridge Operation RegulationsPDF
81 FR 53402 - Sunshine Act Meeting NoticePDF
81 FR 53486 - Dietary Supplements: New Dietary Ingredient Notifications and Related Issues; Revised Draft Guidance for Industry; AvailabilityPDF
81 FR 53483 - Sunshine Act MeetingsPDF
81 FR 53401 - Flathead Resource Advisory CommitteePDF
81 FR 53489 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Health Center Program Application FormsPDF
81 FR 53271 - Final Priority-Training of Interpreters for Individuals Who Are Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind ProgramPDF
81 FR 53476 - Applications for New Awards; Training of Interpreters for Individuals Who Are Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind ProgramPDF
81 FR 53475 - Applications for New Awards; Training of Interpreters for Individuals Who Are Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind Program; CorrectionPDF
81 FR 53497 - National Customs Automation Program (NCAP) Test Concerning Electronic Filing of Protests in the Automated Commercial Environment (ACE)PDF
81 FR 53541 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel SURGE; Invitation for Public CommentsPDF
81 FR 53403 - Notice of Availability of a Draft Programmatic Environmental Impact Statement for the Central Region of the Nationwide Public Safety Broadband Network and Notice of Public MeetingsPDF
81 FR 53542 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel MATTARAY; Invitation for Public CommentsPDF
81 FR 53540 - Agency Requests for Renewal of a Previously Approved Information Collection(s): Merchant Marine Medals and AwardsPDF
81 FR 53414 - Solid Urea From the Russian Federation: Preliminary Results of Antidumping Duty Administrative and New Shipper Reviews and Rescission of Administrative Review, in Part; 2014-2015PDF
81 FR 53431 - Lightweight Thermal Paper From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 53542 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel PWD #315; Invitation for Public CommentsPDF
81 FR 53481 - Reopening; Applications for New Awards; Promoting Student ResiliencePDF
81 FR 53464 - Pacific Island Fisheries; Public MeetingPDF
81 FR 53463 - New England Fishery Management Council; Public MeetingPDF
81 FR 53464 - New England Fishery Management Council; Public MeetingPDF
81 FR 53412 - Certain Cut-to-Length Carbon Steel Plate From the People's Republic of China: Preliminary Results of Antidumping Administrative Review, Preliminary Determination of No Shipments, in Part, and Partial Rescission; 2014-2015PDF
81 FR 53541 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel TENACITY; Invitation for Public CommentsPDF
81 FR 53433 - Ammonium Nitrate From the Russian Federation: Final Results of Sunset Review and Revocation of Antidumping Duty OrderPDF
81 FR 53482 - Environmental Impact Statements; Notice of AvailabilityPDF
81 FR 53247 - National Poultry Improvement Plan and Auxiliary ProvisionsPDF
81 FR 53537 - Petition for Exemption; Summary of Petition Received; TransPac Aviation AcademyPDF
81 FR 53536 - Petition for Exemption; Summary of Petition Received; USA Jet AirlinesPDF
81 FR 53379 - Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various CommoditiesPDF
81 FR 53538 - Petition for Exemption; Summary of Petition Received; Mr. Karl BeutnerPDF
81 FR 53537 - Petition for Exemption; Summary of Petition Received; Boeing Executive Flight OperationsPDF
81 FR 53466 - Procurement List; Additions and DeletionsPDF
81 FR 53466 - Procurement List; Proposed DeletionsPDF
81 FR 53536 - Union Pacific Railroad Company-Discontinuance of Service Exemption-in Port of Los Angeles' San Pedro Subdivision, Los Angeles, CAPDF
81 FR 53535 - Pacific Harbor Line, Inc.-Discontinuance of Service Exemption-in Los Angeles County, CAPDF
81 FR 53481 - Energy Savings Performance Contract Energy Sales Agreement; Request for InformationPDF
81 FR 53343 - Chief Compliance Officer Annual Report Requirements for Futures Commission Merchants, Swap Dealers, and Major Swap Participants; Amendments to Filing DatesPDF
81 FR 53484 - Agency Information Collection Activities; Proposed Collection; Comment RequestPDF
81 FR 53535 - Southwestern Railroad, Inc.-Amended Lease and Operation Exemption-BNSF Railway CompanyPDF
81 FR 53399 - Flathead Resource Advisory CommitteePDF
81 FR 53334 - Importation of Orchids in Growing Media From the Republic of Korea Into the Continental United StatesPDF
81 FR 53398 - Environmental Impact Statement; Fruit Fly Eradication ProgramPDF
81 FR 53396 - Okanagan Specialty Fruits, Inc.; Availability of Preliminary Finding of No Significant Impact, Preliminary Plant Pest Risk Similarity Assessment, and Preliminary Determination for an Extension of a Determination of Nonregulated Status for Non-Browning Arctic® Apple Event NF872 ApplePDF
81 FR 53391 - Migratory Bird Hunting; Supplemental Proposals for Migratory Game Bird Hunting Regulations for the 2017-18 Hunting Season; Notice of MeetingsPDF
81 FR 53402 - Submission for OMB Review; Comment RequestPDF
81 FR 53400 - Flathead Resource Advisory CommitteePDF
81 FR 53543 - National Emergency Medical Services Advisory Council (NEMSAC); Notice of Federal Advisory Committee MeetingPDF
81 FR 53495 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 53508 - License Amendment Requests for Changes to Emergency Response Organization Staffing and AugmentationPDF
81 FR 53266 - Written Acknowledgment of Customer Funds From Federal Reserve BanksPDF
81 FR 53467 - Order Exempting the Federal Reserve Banks From Sections 4d and 22 of the Commodity Exchange ActPDF
81 FR 53533 - Submission for OMB Review; Comment RequestPDF
81 FR 53529 - Proposed Collection; Comment RequestPDF
81 FR 53494 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
81 FR 53484 - Filing Dates for the Hawaii Special Election in the 1st Congressional DistrictPDF
81 FR 53506 - Meetings of Humanities PanelPDF
81 FR 53508 - Notice of Public Meeting of Presidio Institute Advisory CouncilPDF
81 FR 53538 - Notice To Rescind Notice of Intent To Prepare Environmental Impact Statement/Draft Section 4(f) Evaluation, MD 28/MD 198 Corridor Study, Montgomery and Prince George's County, MarylandPDF
81 FR 53482 - Equal Employment Opportunity and DiversityPDF
81 FR 53507 - Termination of Operating Licenses for Nuclear ReactorsPDF
81 FR 53492 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 53492 - National Human Genome Research Institute; Notice of Closed MeetingPDF
81 FR 53491 - National Institute of Arthritis and Musculoskeletal and Skin Diseases; Notice of MeetingPDF
81 FR 53491 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed MeetingsPDF
81 FR 53492 - National Institute on Minority Health and Health Disparities; Notice of MeetingPDF
81 FR 53270 - Drawbridge Operation Regulation; Rockaway Inlet, Queens, NYPDF
81 FR 53505 - Certain Computer Cables, Chargers, Adapters, Peripheral Devices and Packaging Containing the Same; Notice of To Review an Initial Determination Finding All Respondents in Default; Request for Written Submissions on Remedy, the Public Interest, and BondingPDF
81 FR 53493 - Request for Comment on Report Entitled: Advancing the Care of Pregnant and Parenting Women With Opioid Use Disorder and Their Infants: A Foundation for Clinical GuidancePDF
81 FR 53512 - Blackrock Funds, et al.; Notice of ApplicationPDF
81 FR 53517 - Submission for OMB Review; Comment RequestPDF
81 FR 53509 - Submission for OMB Review; Comment RequestPDF
81 FR 53521 - Proposed Collection; Comment RequestPDF
81 FR 53534 - Tennessee Disaster Number TN-00091PDF
81 FR 53533 - Texas Disaster Number TX-00472PDF
81 FR 53521 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend NYSE MKT Rule 19-Equities To Specify in Exchange Rules the Exchange's Use of Data Feeds From Investors' Exchange, LLC for Order Handling and Execution, Order Routing, and Regulatory CompliancePDF
81 FR 53518 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Specify in Exchange Rules the Exchange's Use of Data Feeds From Investors' Exchange, LLC for Order Handling and Execution, Order Routing, and Regulatory CompliancePDF
81 FR 53531 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 19 To Specify in Exchange Rules the Exchange's Use of Data Feeds From Investors' Exchange, LLC for Order Handling and Execution, Order Routing, and Regulatory CompliancePDF
81 FR 53524 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Section 3 of NYSE Arca Equities Rule 8 To Extend the Effectiveness of the Exchange Traded Product Incentive ProgramPDF
81 FR 53527 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Its Fee SchedulePDF
81 FR 53523 - Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Continuing Education FeesPDF
81 FR 53519 - Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Update or Adopt Various Fees for Services Provided by the Financial Industry Regulatory AuthorityPDF
81 FR 53509 - Self-Regulatory Organizations: Investors Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 9.218 To Specify the List of Violations Eligible for Disposition Under IEX's Minor Rule Violation PlanPDF
81 FR 53530 - Self-Regulatory Organizations; ICE Clear Credit LLC; Order Approving Proposed Rule Change To Revise the ICC End-of-Day Price Discovery Policies and ProceduresPDF
81 FR 53534 - Texas Disaster Number TX-00474PDF
81 FR 53496 - Quarterly IRS Interest Rates Used In Calculating Interest on Overdue Accounts and Refunds on Customs DutiesPDF
81 FR 53400 - Southwest Mississippi Resource Advisory CommitteePDF
81 FR 53465 - Submission for OMB Review; Comment RequestPDF
81 FR 53284 - Approval and Promulgation of Air Quality Implementation Plans; Texas; Interstate Transport of Air Pollution for the 2008 Ozone National Ambient Air Quality StandardsPDF
81 FR 53465 - BroadbandUSA Webinar SeriesPDF
81 FR 53308 - Approval and Promulgation of Air Quality Implementation Plans; Louisiana; Interstate Transport of Air Pollution for the 2008 Ozone National Ambient Air Quality StandardsPDF
81 FR 53395 - Statement of Principles on Industrial HempPDF
81 FR 53443 - Takes of Marine Mammals Incidental to Specified Activities; Marine Geophysical Survey in the Southeast Pacific Ocean, 2016-2017PDF
81 FR 53380 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Jackson Steel Superfund SitePDF
81 FR 53245 - National Dairy Promotion and Research Program; Amendments to the OrderPDF
81 FR 53269 - Special Local Regulation; Allegheny River Mile 0.0-1.5; Pittsburgh, PAPDF
81 FR 53441 - Polyethylene Terephthalate Film, Sheet, and Strip From Taiwan: Preliminary Results of Antidumping Duty Administrative Review and Preliminary Determination of No Shipments; 2014-2015PDF
81 FR 53311 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Jackson Steel Superfund SitePDF
81 FR 53404 - Certain Pasta From Italy: Preliminary Results of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 53290 - Approval and Promulgation of Implementation Plans; Idaho: Stationary Source Permitting RevisionsPDF
81 FR 53337 - Procedural Rules for DOE Nuclear ActivitiesPDF
81 FR 53483 - Notice to All Interested Parties of the Termination of the Receivership of 10474 First Federal Bank, Lexington, KentuckyPDF
81 FR 53503 - Notice of Availability of the Gunnison Sage-Grouse Rangewide Draft Resource Management Plan Amendment and Draft Environmental Impact Statement, Colorado and UtahPDF
81 FR 53388 - Amateur Radio Service Rules To Permit Greater Flexibility in Data CommunicationsPDF
81 FR 53348 - Oil and Gas and Sulfur Operations in the Outer Continental Shelf-Decommissioning Costs for PipelinesPDF
81 FR 53297 - Air Plan Approval; Indiana; Abengoa Bioenergy of Indiana, Commissioner's OrderPDF
81 FR 53362 - Approval and Promulgation of Implementation Plans; Washington: Updates to Incorporation by Reference and Miscellaneous RevisionsPDF
81 FR 53378 - Air Plan Approval; Indiana; Abengoa Bioenergy of Indiana, Commissioner's OrderPDF
81 FR 53309 - Wisconsin; Approval/Disapproval of Interstate Transport Requirements for the 2008 Ozone NAAQSPDF
81 FR 53262 - Establishment of Class E Airspace; Linton, NDPDF
81 FR 53265 - Establishment of Class E Airspace; Harvey, NDPDF
81 FR 53342 - Proposed Amendment of Class E Airspace, Kahului, HIPDF
81 FR 53264 - Revocation of Class D Airspace; North, SCPDF
81 FR 53263 - Establishment of Class E Airspace; Platte, SDPDF
81 FR 53539 - Agency Information Collection Activities; Renewal of a Currently-Approved Information Collection: Licensing Applications for Motor Carrier Operating AuthorityPDF
81 FR 53381 - 340B Drug Pricing Program; Administrative Dispute ResolutionPDF
81 FR 53268 - Confined Spaces in Construction; Approval of Collections of InformationPDF
81 FR 53401 - Glenn and Colusa County Resource Advisory CommitteePDF
81 FR 53300 - Revision to the California State Implementation Plan; San Joaquin Valley; Demonstration of Creditable Emission Reductions From Economic Incentive ProgramsPDF
81 FR 53280 - Revisions to the California State Implementation Plan, Sacramento Metropolitan Air Quality Management DistrictPDF
81 FR 53294 - Approval and Promulgation of Implementation Plans; California; San Joaquin Valley; Revisions to Motor Vehicle Emissions Budgets for Ozone and Particulate MatterPDF
81 FR 53370 - Approval and Promulgation of Air Quality Implementation Plans; State of Colorado; Motor Vehicle Inspection and Maintenance, Clean Screen Program and the Low Emitter Index, On-Board Diagnostics, and Associated RevisionsPDF
81 FR 53501 - Federal Property Suitable as Facilities To Assist the HomelessPDF
81 FR 53365 - Approval and Promulgation of State Implementation Plan Revisions to Primary Air Quality Standards, Minor Source Baseline Date, Incorporation by Reference, and 2008 Ozone NAAQS Infrastructure Requirements for CAA Section 110(a)(2)(C) and (D)(i)(II); WyomingPDF
81 FR 53252 - Airworthiness Directives; BAE Systems (Operations) Limited AirplanesPDF
81 FR 53315 - Endangered and Threatened Wildlife and Plants; Removing the San Miguel Island Fox, Santa Rosa Island Fox, and Santa Cruz Island Fox From the Federal List of Endangered and Threatened Wildlife, and Reclassifying the Santa Catalina Island Fox From Endangered to ThreatenedPDF
81 FR 53658 - Submission of Policies, Provisions of Policies, Rates of Premium, and Non-Reinsured Supplemental PoliciesPDF
81 FR 53353 - Schedule for Rating Disabilities; Skin ConditionsPDF
81 FR 53544 - Proposed Collection; Comment Request for Form 8911PDF
81 FR 53850 - System Safety ProgramPDF
81 FR 53255 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 53767 - Denial of Petition To Initiate Proceedings To Reschedule MarijuanaPDF
81 FR 53846 - Applications To Become Registered Under the Controlled Substances Act To Manufacture Marijuana To Supply Researchers in the United StatesPDF
81 FR 53688 - Denial of Petition To Initiate Proceedings To Reschedule MarijuanaPDF
81 FR 53546 - Regulation SBSR-Reporting and Dissemination of Security-Based Swap InformationPDF

Issue

81 156 Friday, August 12, 2016 Contents Agricultural Marketing Agricultural Marketing Service RULES National Dairy Promotion and Research Program; Amendments to the Order, 53245-53247 2016-19140 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Animal and Plant Health Inspection Service

See

Federal Crop Insurance Corporation

See

Forest Service

See

National Agricultural Statistics Service

NOTICES Statement of Principles on Industrial Hemp, 53395-53396 2016-19146
Animal Animal and Plant Health Inspection Service RULES National Poultry Improvement Plan and Auxiliary Provisions, 53247-53252 2016-19245 PROPOSED RULES Importation of Plants: Orchids in Growing Media From the Republic of Korea, 53334-53336 2016-19224 NOTICES Environmental Impact Statements; Availability, etc.: Fruit Fly Eradication Program, 53398-53399 2016-19223 Findings of No Significant Impact, etc.: Okanagan Specialty Fruits, Inc., Extension of Nonregulated Status for Non-Browning Arctic Apple Event NF872 Apple, 53396-53398 2016-19222 Safety Enviromental Enforcement Bureau of Safety and Environmental Enforcement PROPOSED RULES Oil and Gas and Sulfur Operations: Decommissioning Costs for Pipelines, Outer Continental Shelf, 53348-53353 2016-19057 Civil Rights Civil Rights Commission NOTICES Meetings; Sunshine Act, 53402-53403 2016-19311 Coast Guard Coast Guard RULES Drawbridge Operation Regulations; CFR Correction, 53271 2016-19344 Drawbridge Operations: Rockaway Inlet, Queens, NY, 53270-53271 2016-19189 Special Local Regulations: Allegheny River Mile 0.0-1.5; Pittsburgh, PA, 53269-53270 2016-19138 Commerce Commerce Department See

First Responder Network Authority

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 2016-19235 53466-53467 2016-19236 Commodity Futures Commodity Futures Trading Commission RULES Written Acknowledgment of Customer Funds from Federal Reserve Banks, 53266-53268 2016-19211 PROPOSED RULES Chief Compliance Officer Annual Report Requirements for Futures Commission Merchants, Swap Dealers, and Major Swap Participants: Filing Dates, 53343-53348 2016-19231 NOTICES Federal Reserve Banks from Sections of the Commodity Exchange Act; Exemptions, 53467-53475 2016-19210 Drug Drug Enforcement Administration RULES Applications to Become Registered under the Controlled Substances Act to Manufacture Marijuana to Supply Researchers in the U.S., 53846-53848 2016-17955 PROPOSED RULES Denial of Petition to Initiate Proceedings to Reschedule Marijuana, 53688-53845 2016-17954 2016-17960 NOTICES Statement of Principles on Industrial Hemp, 53395-53396 2016-19146 Education Department Education Department RULES Final Priorities: Training of Interpreters for Individuals Who Are Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind Program, 53271-53280 2016-19273 NOTICES Applications for New Awards: Promoting Student Resilience, 53481 2016-19254 Training of Interpreters for Individuals Who Are Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind Program, 53476-53481 2016-19270 Training of Interpreters for Individuals Who Are Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind Program; Correction, 53475-53476 2016-19269 Energy Department Energy Department PROPOSED RULES Procedural Rules for DOE Nuclear Activities, 53337-53342 2016-19103 NOTICES Requests for Information: Energy Savings Performance Contract Energy Sales Agreement, 53481-53482 2016-19232 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Idaho; Stationary Source Permitting Revisions, 53290-53294 2016-19122 Indiana; Abengoa Bioenergy of Indiana, Commissioner's Order, 53297-53300 2016-19032 Louisiana; Interstate Transport of Air Pollution for the 2008 Ozone National Ambient Air Quality Standards, 53308-53309 2016-19148 Sacramento Metropolitan Air Quality Management District, CA, 53280-53284 2016-18900 San Joaquin Valley, CA, 53294-53297, 53300-53308 2016-18898 2016-18903 Texas; Interstate Transport of Air Pollution for the 2008 Ozone National Ambient Air Quality Standards, 53284-53290 2016-19151 Wisconsin; Interstate Transport Requirements for the 2008 Ozone NAAQS, 53309-53311 2016-19025 National Priorities List: National Oil and Hazardous Substances Pollution Contingency Plan: Deletion of the Jackson Steel Superfund Site, 53311-53315 2016-19130 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Colorado—Motor Vehicle Inspection and Maintenance, Clean Screen Program and the Low Emitter Index, On-Board Diagnostics, 53370-53378 2016-18878 Indiana; Abengoa Bioenergy of Indiana, Commissioner's Order, 53378-53379 2016-19030 Washington; Updates to Incorporation by Reference and Miscellaneous Revisions, 53362-53365 2016-19031 Wyoming—Primary Air Quality Standards, Minor Source Baseline Date, Incorporation by Reference, and 2008 Ozone NAAQS Infrastructure Requirements, 53365-53370 2016-18869 National Priorities List: National Oil and Hazardous Substances Pollution Contingency Plan: Deletion of the Jackson Steel Superfund Site, 53380-53381 2016-19142 Pesticide Petitions: Residues of Pesticide Chemicals in or on Various Commodities, 53379-53380 2016-19239 NOTICES Environmental Impact Statements; Availability, etc., 53482 2016-19247 Farm Credit Farm Credit Administration NOTICES Equal Employment Opportunity and Diversity, 53482-53483 2016-19196 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 53255-53261 2016-18169 BAE Systems (Operations) Limited Airplanes, 53252-53255 2016-18821 Class D Airspace; Revocations: North, SC, 53264-53265 2016-19001 Class E Airspace; Establishments: Harvey, ND, 53265-53266 2016-19006 Linton, ND, 53262-53263 2016-19011 Platte, SD, 53263-53264 2016-18996 PROPOSED RULES Class E Airspace; Amendments: Kahului, HI, 53342-53343 2016-19004 NOTICES Petitions for Exemptions; Summaries: Boeing Executive Flight Operations, 53537 2016-19237 Mr. Karl Beutner, 53538 2016-19238 TransPac Aviation Academy, 53537-53538 2016-19242 USA Jet Airlines, 53536-53537 2016-19240 Federal Communications Federal Communications Commission PROPOSED RULES Greater Flexibility in Data Communications: Amateur Radio Service, 53388-53391 2016-19085 Federal Crop Federal Crop Insurance Corporation RULES Submission of Policies, Provisions of Policies, Rates of Premium, and Non-Reinsured Supplemental Policies, 53658-53686 2016-18743 Federal Deposit Federal Deposit Insurance Corporation NOTICES Terminations of Receivership: 10474 First Federal Bank, Lexington, KY, 53483 2016-19101 Federal Election Federal Election Commission NOTICES Filing Dates: Hawaii Special Election in the 1st Congressional District, 53484 2016-19205 Meetings; Sunshine Act, 53483-53484 2016-19305 Federal Highway Federal Highway Administration NOTICES Environmental Impact Statements; Availability, etc.: MD 28/MD 198 Corridor Study, Montgomery and Prince George's County, MD, 53538-53539 2016-19197 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Licensing Applications for Motor Carrier Operating Authority, 53539-53540 2016-18988 Federal Railroad Federal Railroad Administration RULES System Safety Program, 53850-53905 2016-18301 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 53484-53486 2016-19230 FIRSTNET First Responder Network Authority NOTICES Environmental Impact Statements; Availability, etc.: Central Region of the Nationwide Public Safety Broadband Network; Public Meetings, 53403-53404 2016-19265 Fish Fish and Wildlife Service RULES Endangered and Threatened Species: San Miguel Island Fox, Santa Rosa Island Fox, Santa Cruz Island Fox, Santa Catalina Island Fox, 53315-53333 2016-18778 PROPOSED RULES Migratory Bird Hunting: Regulations for the 2017-18 Hunting Season; Supplement, 53391-53394 2016-19221 Food and Drug Food and Drug Administration NOTICES Guidance for Industry: Dietary Supplements; New Dietary Ingredient Notifications and Related Issues, 53486-53489 2016-19306 Statement of Principles on Industrial Hemp, 53395-53396 2016-19146 Forest Forest Service NOTICES Meetings: Flathead Resource Advisory Committee, 2016-19217 53399-53402 2016-19225 2016-19303 Glenn and Colusa County Resource Advisory Council, 53401 2016-18958 Southwest Mississippi Resource Advisory Committee, 53400 2016-19160 Health and Human Health and Human Services Department See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

PROPOSED RULES Administrative Dispute Resolutions: 340B Drug Pricing Program, 53381-53388 2016-18969
Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Health Center Program Application Forms, 53489-53491 2016-19301 Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Federal Property Suitable as Facilities to Assist the Homeless, 53501-53503 2016-18871 Interior Interior Department See

Bureau of Safety and Environmental Enforcement

See

Fish and Wildlife Service

See

Land Management Bureau

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 53544 2016-18635 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Ammonium Nitrate from the Russian Federation, 53433 2016-19248 Certain Hot-Rolled Steel Flat Products from Brazil, 53416-53419 2016-19376 Certain Hot-Rolled Steel Flat Products from the Republic of Korea, 53439-53441 2016-19377 Certain Hot-Rolled Steel Flat Products from the Republic of Turkey, 53433-53436 2016-19379 Cut-to-Length Carbon Steel Plate from the People's Republic of China, 53412-53414 2016-19250 Lightweight Thermal Paper from the People's Republic of China, 53431-53433 2016-19258 Pasta from Italy, 53404-53406 2016-19129 Polyethylene Terephthalate Film, Sheet, and Strip from Taiwan, 53441-53443 2016-19136 Solid Urea from the Russian Federation, 53414-53416 2016-19261 Determinations of Sales at Less Than Fair Value: Certain Hot-Rolled Steel Flat Products from Australia, 53406-53408 2016-19375 Certain Hot-Rolled Steel Flat Products from Brazil, 53424-53428 2016-19381 Certain Hot-Rolled Steel Flat Products from Japan, 53409-53412 2016-19378 Certain Hot-Rolled Steel Flat Products from the Netherlands, 53421-53424 2016-19371 Certain Hot-Rolled Steel Flat Products from the Republic of Korea, 53419-53421 2016-19380 Certain Hot-Rolled Steel Flat Products from the Republic of Turkey, 53428-53431 2016-19373 Certain Hot-Rolled Steel Flat Products from the United Kingdom, 53436-53439 2016-19374 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Computer Cables, Chargers, Adapters, Peripheral Devices and Packaging Containing the Same, 53505-53506 2016-19188 Meetings; Sunshine Act, 53505 2016-19407 Justice Department Justice Department See

Drug Enforcement Administration

Labor Department Labor Department See

Occupational Safety and Health Administration

Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Gunnison Sage-Grouse Rangewide Draft Resource Management Plan; Colorado and Utah, 53503-53505 2016-19100 Maritime Maritime Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Merchant Marine Medals and Awards; Renewal, 53540-53541 2016-19262 Requests for Administrative Waivers of the Coastwise Trade Laws: Vessel MATTARAY, 53542 2016-19263 Vessel PWD #315, 53542-53543 2016-19257 Vessel SURGE, 53541-53542 2016-19266 Vessel TENACITY, 53541 2016-19249 National Agricultural National Agricultural Statistics Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 53402 2016-19218 National Endowment for the Humanities National Endowment for the Humanities NOTICES Meetings: Humanities Panel, 53506-53507 2016-19204 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Humanities

National Highway National Highway Traffic Safety Administration NOTICES Meetings: National Emergency Medical Services Advisory Council, 53543-53544 2016-19215 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 53492 2016-19194 National Advisory Council on Minority Health and Health Disparities, 53492 2016-19190 National Human Genome Research Institute, 53492-53493 2016-19193 National Institute of Arthritis and Musculoskeletal and Skin Diseases, 53491-53492 2016-19192 National Institute of Biomedical Imaging and Bioengineering, 53491 2016-19191 National Oceanic National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 53465 2016-19157 Meetings: New England Fishery Management Council, 53463-53465 2016-19251 2016-19252 Pacific Island Fisheries, 53464 2016-19253 Takes of Marine Mammals: Marine Geophysical Survey in the Southeast Pacific Ocean, 2016-2017, 53443-53463 2016-19145 National Telecommunications National Telecommunications and Information Administration NOTICES Environmental Impact Statements; Availability, etc.: Central Region of the Nationwide Public Safety Broadband Network; Public Meetings, 53403-53404 2016-19265 Meetings: BroadbandUSA Webinar Series, 53465-53466 2016-19149 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Guidance: License Amendment Requests for Changes to Emergency Response Organization Staffing and Augmentation, 53508 2016-19212 Termination of Operating Licenses for Nuclear Reactors; Withdrawal, 53507-53508 2016-19195 Occupational Safety Health Adm Occupational Safety and Health Administration RULES Confined Spaces in Construction: Approval of Collections of Information, 53268 2016-18965 Presidio Presidio Trust NOTICES Meetings: Presidio Institute Advisory Council, 53508-53509 2016-19200 Securities Securities and Exchange Commission RULES Reporting and Dissemination of Security-Based Swap Information, 53546-53655 2016-17032 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 2016-19181 2016-19182 2016-19183 53509, 53517, 53521, 53529-53530, 53533 2016-19207 2016-19208 Applications: Blackrock Funds, et al., 53512-53517 2016-19184 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Stock Exchange, Inc., 53519-53521, 53523-53524 2016-19172 2016-19173 ICE Clear Credit LLC, 53530-53531 2016-19170 Investors Exchange LLC, 53509-53512 2016-19171 Miami International Securities Exchange LLC, 53527-53529 2016-19174 New York Stock Exchange LLC, 53531-53533 2016-19176 NYSE Arca, Inc., 53518-53519, 53524-53527 2016-19175 2016-19177 NYSE MKT, LLC, 53521-53523 2016-19178 Small Business Small Business Administration NOTICES Disaster Declarations: Tennessee, 53534 2016-19180 Texas; Amendment 2, 53534 2016-19169 Texas; Amendment 3, 53534 2016-19168 Texas; Amendment 4, 53533-53534 2016-19179 Substance Substance Abuse and Mental Health Services Administration NOTICES Advancing the Care of Pregnant and Parenting Women with Opioid Use Disorder and their Infants: A Foundation for Clinical Guidance, 53493-53494 2016-19187 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 53494-53496 2016-19206 2016-19214 Surface Transportation Surface Transportation Board NOTICES Amended Leases and Operation Exemptions: Southwestern Railroad, Inc. from BNSF Railway Co., 53535-53536 2016-19228 Discontinuance of Service Exemptions: Pacific Harbor Line, Inc,, Los Angeles County, CA, 53535 2016-19233 Union Pacific Railroad Co., Port of Los Angeles San Pedro Subdivision, Los Angeles, CA, 53536 2016-19234 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

Maritime Administration

See

National Highway Traffic Safety Administration

Treasury Treasury Department See

Internal Revenue Service

Customs U.S. Customs and Border Protection NOTICES National Customs Automation Program Tests: Electronic Filing of Protests in the Automated Commercial Environment, 53497-53501 2016-19267 Quarterly IRS Interest Rates Used In Calculating Interest on Overdue Accounts and Refunds On Customs Duties, 53496-53497 2016-19167 Veteran Affairs Veterans Affairs Department PROPOSED RULES Schedule for Rating Disabilities; Skin Conditions, 53353-53362 2016-18695 Separate Parts In This Issue Part II Securities and Exchange Commission, 53546-53655 2016-17032 Part III Agriculture Department, Federal Crop Insurance Corporation, 53658-53686 2016-18743 Part IV Justice Department, Drug Enforcement Administration, 2016-17955 53688-53848 2016-17954 2016-17960 Part V Transportation Department, Federal Railroad Administration, 53850-53905 2016-18301 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.

81 156 Friday, August 12, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1150 [Document No. AMS-DA-14-0074] National Dairy Promotion and Research Program; Amendments to the Order AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This final rule amends the Dairy Promotion and Research Order (Dairy Order). The amendment modifies the number of National Dairy Promotion and Research Board (Dairy Board) importer members. The total number of importer members would be reduced from 2 members to 1 member, and the domestic Dairy Board members would remain the same at 36. The Dairy Order requires that at least once every three years, after the initial appointment of importer members on the Dairy Board, the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous three years, and, on the basis of that review, if warranted, reapportion the importer representation on the Dairy Board to reflect the proportional shares of the United States market served by domestic production and imported dairy products.

DATES:

Effective Date: August 12, 2016.

FOR FURTHER INFORMATION CONTACT:

Whitney A. Rick, Director, Promotion, Research and Planning Division, AMS, USDA, 1400 Independence Ave. SW., Room 2958-S, Stop 0233, Washington, DC 20250-0233. Phone: (202) 720-6909. Email: [email protected]

SUPPLEMENTARY INFORMATION:

This final rule is issued pursuant to the Dairy Production Stabilization Act (Dairy Act) of 1983 [7 U.S.C. 4501-4514], as amended.

Executive Order 12866

The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule is not intended to have a retroactive effect. In accordance with 7 U.S.C. 4512(a), this rule will not preempt or supersede any other program relating to dairy product promotion organized and operated under the laws of the United States or any State.

The Dairy Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under 7 U.S.C. 4509, any person subject to the Dairy Order may file with the Secretary of Agriculture (Secretary) a petition stating that the Dairy Order, any provision of the Dairy Order, or any obligation imposed in connection with the Dairy Order is not in accordance with the law and request a modification of the Dairy Order or to be exempted from the Dairy Order. Such person is afforded the opportunity for a hearing on the petition. After a hearing, the Secretary would rule on the petition. The Dairy Act provides that the district court of the United States in any district in which the person is an inhabitant or has his principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided a complaint is filed not later than 20 days after the date of the entry of the ruling.

Regulatory Flexibility Act

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this final rule will not have a significant economic impact on a substantial number of small entities. The purpose of the Regulatory Flexibility Act is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened.

The Dairy Act authorizes a national program for dairy product promotion, research and nutrition education. Congress found that it is in the public interest to authorize the establishment of an orderly procedure for financing (through assessment on all milk produced in the United States for commercial use and on imported dairy products) and carrying out a coordinated program of promotion designed to strengthen the dairy industry's position in the marketplace and to maintain and expand domestic and foreign markets and uses for fluid milk and dairy products.

The Small Business Administration [13 CFR 121.201] defines such entities with fewer than 500 employees as small businesses. According to 2013 data from the U.S. Census Bureau, 98.6 percent of these types of firms had fewer than 500 employees (http://census.gov/econ/subs/). According to the U.S. Customs and Border Protection (CBP), in 2014, approximately 1,400 importers paid assessments under Section 1150.152(b) of the Dairy Order. Although data is not available concerning the sizes of these firms, it is reasonable to assume that most of them would be considered small businesses. The most common classification for dairy product importers is Grocery and Related Product Merchant Wholesalers (North American Industry Classification System, category 4244).

The final rule amends the Dairy Order, Section 1150.131(c), by reducing the number of Dairy Board importer representatives from 2 members to 1 member.

The amendment should not have a significant economic impact on persons subject to the Dairy Order. The changes allow representation on the Dairy Board to better reflect the volume of dairy product imports into the United States.

Paperwork Reduction Act

In accordance with the Office of Management and Budget (OMB) regulation [5 CFR part 1320] which implements the Paperwork Reduction Act of 1995 [44 U.S.C. chapter 35], the information collection requirements and record keeping provisions imposed by the Dairy Order have been previously approved by OMB and assigned OMB Control No. 0581-0093. No relevant Federal rules have been identified that duplicate, overlap, or conflict with this rule.

Statement of Consideration

Upon publication of this rule, the Dairy Order is administered by a 37-member Dairy Board, 36 members representing 12 geographic regions within the United States and 1 member representing importers. The Dairy Order requires in Section 1150.131(f) that at least once every three years, after the initial appointment of importer representatives on the Dairy Board, the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous three years and, on the basis of that review, if warranted, reapportion the importer representation on the Dairy Board to reflect the proportional shares of the United States market served by domestic production and imported dairy products. This reapportionment review is the first conducted since importer members were appointed to the Dairy Board on November 2, 2011.

For initial representation of importers on the Dairy Board, the Dairy Act states “In making initial appointments to the Board of importer representatives, the Secretary shall appoint 2 members who represent importers of dairy products and are subject to assessment under the order.” 7 U.S.C. 4504(b)(6)(A). For subsequent representation of importers, the Dairy Act goes on to state “At least once every 3 years after the initial appointment of importer representatives under subparagraph (A), the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous 3 years and, on the basis of that review, shall reapportion importer representation on the Board to reflect the proportional share of the United States market by domestic production and imported dairy products.” 7 U.S.C. 4504(b)(6)(B).

Section 1150.131(f) of the Dairy Order states the basis for the comparison of domestic production of dairy products to imported products should be estimated total milk solids. The calculation of total milk solids of imported dairy products for reapportionment purposes “shall be the same as the calculation of total milk solids of imported dairy products for assessment purposes.” The reapportionment review was not conducted prior to 2015 because three full years' worth of data was not available.

Using National Agricultural Statistical Service (NASS) Annual Dairy Products Summary data, the average U.S. milk total solids for domestic dairy products for 2012 to 2014 was 23,462 billion pounds annually. Based on the total milk solids number, each of the 36 domestic Dairy Board producer members would represent 652 million pounds of total milk solids (23,462 billion pounds divided by 36 producer members equals 652 million pounds per producer).

Using information received from CBP, the average total milk solids imported during 2012 to 2014 was 589 million pounds (589 million pounds divided by 1 importer member equals 589 million pounds per importer).

Accordingly, Table 1 summarizes, based on U.S. total solids and imported total solids, the adopted number of Dairy Board seats for domestic and importer members.

Table 1—Dairy Board Representation Based on U.S. Total Solids and Imported Total Solids Average total
  • milk solids
  • (lbs.)
  • Adopted
  • number of
  • board seats
  • Average total
  • milk solids
  • represented
  • per board member
  • (lbs.)
  • Domestic Producer 23,461,555,556 36 651,709,877 Importer 589,296,653 1 589,296,653

    On April 1, 2016, a proposed rule was published in the Federal Register [81 FR 18802] inviting comments on proposed modifications to the number of importer representatives on the Dairy Board. Interested parties were provided 30 days to comment on the proposed amendment. USDA received three timely comments from industry organizations and an individual. Of those comments, two were opposed the rule and one did not address the merits of the proposed rule.

    One commenter opposed reducing the number of importer members on the Dairy Board, recognizing that approximately 1,400 importers paid assessments under the Dairy Order in 2014. The commenter stated that due to the limits of the Dairy Tariff-Rate Import Quota Licensing Program placed on the volume of cheese imported into the U.S., increasing import volumes by any appreciable amount is impossible.

    A second commenter also opposed the proposal to reduce Dairy Board importer representation from two members to one member, and urged for the withdrawal of the proposed rule. The commenter recognized the Dairy Act requires importer representation to reflect the proportional share of the U.S. market by domestic production and imported dairy products. However, the commenter argued that increasing import volumes by any appreciable amount is impossible due to the limits placed on the volume of cheese imported into the U.S. by factors beyond the control of the market, namely quotas, tariffs and import licenses. The commenter also stated safeguard triggers require substantially higher tariffs if the triggers are breached and noted this occurred with butter in 2015 and may occur in the coming year with several cheeses. The commenter went on to state that the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP) agreements are focused on the reduction, if not elimination of tariffs and quotas. As a result, TPP and TTIP implementation would likely result in an increase in imported dairy products, including cheese, and would make the representation of importers on the Dairy Board even more meaningful.

    As noted in the proposed rule, the Dairy Order requires and provides instruction on how to carry out a review to determine whether or not a reapportionment of importer members on the Dairy Board is warranted. Therefore, the proposed rule will not be withdrawn. Neither commenter disputed the method of nor the data used to conduct the reapportionment review. Similarly, an alternative process for conducting the review was not offered. Additionally, because the Secretary is required to review importer representation every three years, any increase in imported dairy products, cheese or otherwise, would be reflected in the calculations used to determine whether importer representation would increase, remain the same, or decrease.

    This final rule adopts the proposed rule without change, and therefore Dairy Board importer representation is decreased from two importer members to one importer member.

    Pursuant to 5 U.S.C. 553, it is found and determined that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because this rule should be in effect as soon as possible to appoint Dairy Board members for the 2016-2019 term.

    List of Subjects in 7 CFR Part 1150

    Dairy products, Milk, Promotion, Research.

    For the reasons set forth in the preamble, 7 CFR part 1150 is amended as follows:

    PART 1150—DAIRY PROMOTION PROGRAM 1. The authority citation for 7 CFR part 1150 continues to read as follows: Authority:

    7 U.S.C. 4501-4514 and 7 U.S.C. 7401.

    2. In § 1150.131, paragraph (c) is revised to read as follows:
    § 1150.131 Establishment and membership.

    (c) One member of the board shall be an importer who is subject to assessments under § 1150.152(b).

    Dated: August 8, 2016. Elanor Starmer, Administrator.
    [FR Doc. 2016-19140 Filed 8-11-16; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 9 CFR Parts 56, 145, 146, and 147 [Docket No. APHIS-2014-0101] RIN 0579-AE16 National Poultry Improvement Plan and Auxiliary Provisions AGENCY:

    Animal and Plant Health Inspection Service, USDA.

    ACTION:

    Final rule.

    SUMMARY:

    We are amending the National Poultry Improvement Plan (NPIP), its auxiliary provisions, and the indemnity regulations for the control of H5 and H7 low pathogenic avian influenza. Specifically, we are clarifying who may participate in the NPIP, amending participation requirements, amending definitions for poultry and breeding stock, amending the approval process for new diagnostic tests, and amending slaughter plant inspection and laboratory inspection and testing requirements. These changes will align the regulations with international standards and make them more transparent to Animal and Plant Health Inspection Service stakeholders and the general public. The changes in this final rule were voted on and approved by the voting delegates at the Plan's 2014 National Plan Conference.

    DATES:

    Effective September 12, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Dr. Denise Brinson, DVM, Director, National Poultry Improvement Plan, VS, APHIS, USDA, 1506 Klondike Road, Suite 101, Conyers, GA 30094-5104; (770) 922-3496.

    SUPPLEMENTARY INFORMATION:

    Background

    The National Poultry Improvement Plan (NPIP, also referred to below as “the Plan”) is a cooperative Federal-State-industry mechanism for controlling certain poultry diseases. The Plan consists of a variety of programs intended to prevent and control poultry diseases. Participation in all Plan programs is voluntary, but breeding flocks, hatcheries, and dealers must first qualify as “U.S. Pullorum-Typhoid Clean” as a condition for participating in the other Plan programs.

    The Plan identifies States, flocks, hatcheries, dealers, and slaughter plants that meet certain disease control standards specified in the Plan's various programs. As a result, customers can buy poultry that has tested clean of certain diseases or that has been produced under disease-prevention conditions.

    The regulations in 9 CFR parts 145, 146, and 147 (referred to below as the regulations) contain the provisions of the Plan. The Animal and Plant Health Inspection Service (APHIS, also referred to as “the Service”) of the U.S. Department of Agriculture (also referred to as “the Department”) amends these provisions from time to time to incorporate new scientific information and technologies within the Plan. In addition, the regulations in 9 CFR part 56 set out conditions for the payment of indemnity for costs associated with poultry that are infected with or exposed to H5/H7 low pathogenic avian influenza and provisions for a cooperative control program for the disease.

    On March 24, 2016, we published in the Federal Register (81 FR 15652-15660, Docket No. APHIS-2014-0101) a proposal 1 to amend the regulations by clarifying who may participate in the NPIP and amending participation requirements. In addition, we proposed to amend definitions of poultry and breeding stock, amend the approval process for new diagnostic tests, and amend slaughter plant inspection and laboratory inspection and testing requirements.

    1 To view the proposed rule and the comment we received, go to http://www.regulations.gov/#!docketDetail;D=APHIS-2014-0101.

    We solicited comments concerning our proposal for 60 days ending May 23, 2016. We received one comment by that date. It was from an individual. The issues raised by the commenter are discussed below.

    In the March 2016 proposed rule, we proposed to amend the definition of breeding flock in § 56.1 to remove the word “chicks” and replace it with the word “progeny.” The commenter objected to this change, suggesting that many people would not know the meaning of the latter term and would find it confusing.

    We are not making any changes to the final rule in response to this comment. As stated in the March 2016 proposed rule, the term “progeny” is more accurate than “chicks” in this context because it is more inclusive of both chicken and turkey flocks. Young turkeys are known as poults rather than chicks. In addition, as we noted in the proposed rule, the change in terminology also makes our definition of breeding flock in § 56.1 consistent with our definition of multiplier breeding flock in § 145.1.

    The March 2016 proposed rule included a minor change to § 145.12, which contains requirements for the retention and examination of records for all flocks maintained primarily for hatching eggs. We proposed to specify, in paragraph (b) of that section, that records for all breeder flock hatcheries must be made available for annual examination by a State inspector. Historically, testing records were retained at the hatchery, which allowed for examination of the records during annual inspections, but that is no longer the case. Many commercial hatcheries now keep testing records at the corporate office or another site. Our proposed amendment to § 145.12 was intended to reflect this change in recordkeeping practices in the industry and also to allow flexibility in the regulations regarding who may make the records available to the State inspector.

    The commenter objected to this proposed change, stating that the records should be kept at the hatchery with the flocks so that taxpayers do not have to incur additional costs due to the need for inspectors to travel to different locations.

    We do not agree with this comment. As noted above, we are amending the regulations to reflect current practices in the industry. By allowing hatcheries the discretion to maintain records where they would most readily be accessible when needed, we are relieving a regulatory burden. The commenter provides no evidence to support the claim that having the records kept at sites other than the hatcheries will result in additional costs to taxpayers.

    The commenter also stated that the proposed rule would have the effect of loosening testing standards, thereby increasing the risk of the spread of disease.

    We did not propose to loosen existing testing standards, as the commenter claims. We proposed instead to make some editorial changes to § 145.14(b) to remove references to tests that are no longer being used, update terminology that is no longer current, and otherwise clarify the testing requirements in that section.

    Finally, the commenter objected to our proposed changes to the slaughter plant inspection requirements in § 146.11.

    We will not be making any changes to the final rule in response to this comment. The commenter did not offer a rationale for opposing the proposed amendments to § 146.11, which were intended to clarify our slaughter plant inspection requirements and remove language that conflicted with requirements set out elsewhere in part 146.

    Miscellaneous

    In this final rule, we are making one minor editorial change to correct an error in the regulatory text of the proposed rule.

    Part 146 of the regulations contains the NPIP provisions for commercial poultry. Currently, the only disease addressed in this part is H5/H7 low pathogenic avian influenza; under part 146, table-egg layer flocks, meat-type chicken slaughter plants, meat-type turkey slaughter plants, and certain types of game birds and waterfowl may participate in U.S. H5/H7 Avian Influenza Monitored classifications.

    Section 146.11 sets out the audit process for participating slaughter plants. Paragraph (b) states that flocks slaughtered at a slaughter plant will be considered to be not conforming to the required protocol of the classifications if there are no test results available, if the flock was not tested within 21 days before slaughter, or if the test results for the flocks were not returned before slaughter. We intended to amend paragraph (b) to state that “a flock will be considered to be conforming to protocol if it meets the requirements as described in §§ 146.33(a), 146.43(a), 146.53(a).” However, we inadvertently referred to § 145.33(a) instead of § 146.33(a). In this final rule, we are correcting that error.

    Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the change discussed in this document.

    Executive Order 12866 and Regulatory Flexibility Act

    This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

    In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under FOR FURTHER INFORMATION CONTACT.

    We are amending the NPIP, its auxiliary provisions, and the indemnity regulations for the control of H5 and H7 low pathogenic avian influenza to align the regulations with international standards and make them more transparent to stakeholders and the general public. The changes in this final rule were voted on and approved by the voting delegates at the 2014 NPIP National Plan Conference.

    The establishments that will be affected by the rule—principally entities engaged in poultry production and processing—are predominantly small by Small Business Administration standards. In those instances in which an addition to or modification of requirements could potentially result in a cost to certain entities, we do not expect the costs to be significant. NPIP membership is voluntary. The changes contained in this final rule were decided upon by the NPIP General Conference Committee on behalf of Plan members; that is, the changes were recognized by the poultry industry as being in their interest.

    Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

    Executive Order 12372

    This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

    Executive Order 12988

    This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are in conflict with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

    Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the information collection or recordkeeping requirements included in this final rule, which were filed under 0579-0445, have been submitted for approval to the Office of Management and Budget (OMB). When OMB notifies us of its decision, if approval is denied, we will publish a document in the Federal Register providing notice of what action we plan to take.

    E-Government Act Compliance

    The Animal and Plant Health Inspection Service is committed to compliance 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. For information pertinent to E-Government Act compliance related to this rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

    List of Subjects 9 CFR Part 56

    Animal diseases, Indemnity payments, Low pathogenic avian influenza, Poultry.

    9 CFR Parts 145, 146, and 147

    Animal diseases, Poultry and poultry products, Reporting and recordkeeping requirements.

    Accordingly, we are amending 9 CFR parts 56, 145, 146, and 147 as follows:

    PART 56—CONTROL OF H5/H7 LOW PATHOGENIC AVIAN INFLUENZA 1. The authority citation for part 56 continues to read as follows: Authority:

    7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.

    2. Section 56.1 is amended by revising the definition of breeding flock to read as follows:
    § 56.1 Definitions.

    Breeding flock. A flock that is composed of stock that has been developed for commercial egg or meat production and is maintained for the principal purpose of producing progeny for the ultimate production of eggs or meat for human consumption.

    PART 145—NATIONAL POULTRY IMPROVEMENT PLAN FOR BREEDING POULTRY 3. The authority citation for part 145 continues to read as follows: Authority:

    7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.

    § 145.2 [Amended]
    4. In § 145.2, paragraph (d) is amended by removing the reference “§ 145.3(d)” and adding the reference “§ 145.3(e)” in its place. 5. Section 145.3 is amended as follows: a. By redesignating paragraphs (a) through (f) as paragraphs (b) through (g), respectively. b. By adding a new paragraph (a).

    The addition reads as follows:

    § 145.3 Participation.

    (a) The National Poultry Improvement Plan is a cooperative Federal-State-Industry program through which new or existing diagnostic technology can be effectively applied to improve poultry and poultry products by controlling or eliminating specific poultry diseases. The Plan consists of programs that identify States, flocks, hatcheries, dealers, and slaughter plants that meet specific disease control standards specified in the Plan. Participants shall maintain records to demonstrate that they adhere to the disease control programs in which they participate.

    § 145.12 [Amended]
    6. Section 145.12 is amended by adding, in paragraph (b), the words “made available to and” before the word “examined”. 7. Section 145.14 is amended as follows: a. By revising paragraph (a)(5). b. By revising paragraph (b)(1).

    The revisions read as follows:

    § 145.14 Testing.

    (a) * * *

    (5) The official blood test shall include the testing of a sample of blood from each bird in the flock: Provided, That under specified conditions (see applicable provisions of §§ 145.23, 145.33, 145.43, 145.53, 145.63, 145.73, 145.83, and 145.93) the testing of a portion or sample of the birds may be used in lieu of testing each bird.

    (b) * * *

    (1) The official tests for M. gallisepticum, M. meleagridis, and M. synoviae shall be the serum plate agglutination test, the hemagglutination inhibition (HI) test, the enzyme-linked immunosorbent assay (ELISA) test,3 or a molecular based test. The HI test or molecular based test shall be used to confirm the positive results of other serological screening tests. HI titers of 1:40 or more may be interpreted as suspicious, and final judgment must be based on further samplings and/or culture of reactors. Tests must be conducted in accordance with this paragraph (b) and in accordance with part 147 of this subchapter.

    3 Procedures for the enzyme-linked immunosorbent assay (ELISA) test are set forth in the following publications:

    A.A. Ansari, R.F. Taylor, T.S. Chang, “Application of Enzyme-Linked Immunosorbent Assay for Detecting Antibody to Mycoplasma gallisepticum Infections in Poultry,” Avian Diseases, Vol. 27, No. 1, pp. 21-35, January-March 1983; and

    H.M. Opitz, J.B. Duplessis, and M.J. Cyr, “Indirect Micro-Enzyme-Linked Immunosorbent Assay for the Detection of Antibodies to Mycoplasma synoviae and M. gallisepticum,” Avian Diseases, Vol. 27, No. 3, pp. 773-786, July-September 1983; and

    H.B. Ortmayer and R. Yamamoto, “Mycoplasma Meleagridis Antibody Detection by Enzyme-Linked Immunosorbent Assay (ELISA),” Proceedings, 30th Western Poultry Disease Conference, pp. 63-66, March 1981.

    8. In § 145.42, paragraph (b) is revised to read as follows:
    § 145.42 Participation.

    (b) Hatching eggs should be nest clean. They may be fumigated in accordance with part 147 of this subchapter or otherwise sanitized.

    9. Section 145.53 is amended as follows: a. By revising paragraphs (c)(1)(i), (c)(1)(ii) introductory text, and (c)(1)(ii)(A). b. By revising paragraphs (d)(1)(i), (d)(1)(ii) introductory text, and (d)(1)(ii)(A).

    The revisions read as follows:

    § 145.53 Terminology and classification; flocks and products.

    (c) * * *

    (1) * * *

    (i) It is a flock in which all birds or a sample of at least 300 birds has been tested for M. gallisepticum as provided in § 145.14(b) when more than 4 months of age or upon reaching sexual maturity: Provided, That to retain this classification, a random sample of serum or egg yolk or a targeted bird sample of the choanal palatine cleft/fissure area using appropriate swabs from all the birds in the flock if the flock size is less than 30, but at least 30 birds, shall be tested at intervals of not more than 90 days: And provided further, That a sample comprised of less than 30 birds may be tested at any one time, with the approval of the Official State Agency and the concurrence of the Service, provided that a total of at least 30 birds, or all birds in the flock if flock size is less than 30, is tested within each 90-day period; or

    (ii) It is a multiplier breeding flock which originated as U.S. M. Gallisepticum Clean baby poultry from primary breeding flocks and a random sample comprised of 50 percent of the birds in the flock, with a maximum of 200 birds and a minimum of 30 birds per flock or all birds in the flock if the flock size is less than 30 birds, has been tested for M. gallisepticum as provided in § 145.14(b) when more than 4 months of age or upon reaching sexual maturity: Provided, That to retain this classification, the flock shall be subjected to one of the following procedures:

    (A) At intervals of not more than 90 days, a random sample of serum or egg yolk or a targeted bird sample of the choanal palatine cleft/fissure area using appropriate swabs from all the birds in the flock if flock size is less than 30, but at least 30 birds, shall be tested; or

    (d) * * *

    (1) * * *

    (i) It is a flock in which all birds or a sample of at least 300 birds has been tested for M. synoviae as provided in § 145.14(b) when more than 4 months of age or upon reaching sexual maturity: Provided, That to retain this classification, a random sample of serum or egg yolk or a targeted bird sample of the choanal palatine cleft/fissure area using appropriate swabs (C.P. swabs) from all the birds in the flock if flock size is less than 30, but at least 30 birds, shall be tested at intervals of not more than 90 days: And provided further, That a sample comprised of less than 30 birds may be tested at any one time with the approval of the Official State Agency and the concurrence of the Service, provided that a total of at least 30 birds is tested within each 90-day period; or

    (ii) It is a multiplier breeding flock that originated as U.S. M. Synoviae Clean chicks from primary breeding flocks and from which a random sample comprised of 50 percent of the birds in the flock, with a maximum of 200 birds and a minimum of 30 birds per flock or all birds in the flock if the flock is less than 30 birds, has been tested for M. synoviae as provided in § 145.14(b) when more than 4 months of age or upon reaching sexual maturity: Provided, That to retain this classification, the flock shall be subjected to one of the following procedures:

    (A) At intervals of not more than 90 days, a random sample of serum or egg yolk or a targeted bird sample of the choanal palantine cleft/fissure area using appropriate swabs from all the birds in the flock if the flock size is less than 30, but at least 30 birds shall be tested: Provided, That a sample of fewer than 30 birds may be tested at any one time with the approval of the Official State Agency and the concurrence of the Service, provided that a total of at least 30 birds, or the entire flock if flock size is less than 30, is tested each time and a total of at least 30 birds is tested within each 90-day period; or

    10. Section 145.83 is amended as follows: a. By revising paragraph (f)(1)(i). b. By removing paragraphs (f)(1)(ii) and (f)(1)(iii). c. By redesignating paragraphs (f)(1)(iv) through (f)(1)(viii) as paragraphs (f)(1)(ii) through (f)(1)(vi). d. In newly redesignated paragraphs (f)(1)(v) and (f)(1)(vi) by removing the words “(f)(1)(vi)” and adding the words “(f)(1)(iv)” in their place. e. By revising paragraph (f)(3).

    The revisions read as follows:

    § 145.83 Terminology and classification; flocks and products.

    (f) * * *

    (1) * * *

    (i) Measures shall be implemented to control Salmonella challenge through feed, feed storage, and feed transport.

    (3) In order for a hatchery to sell products of paragraphs (f)(1)(i) through (f)(1)(vi) of this section, all products handled shall meet the requirements of the classification.

    11. In § 145.92, paragraph (b) is revised to read as follows:
    § 145.92 Participation.

    (b) Hatching eggs produced by primary and multiplier breeding flocks should be nest clean. They may be fumigated in accordance with part 147 of this subchapter or otherwise sanitized.

    § 145.93 [Amended]
    12. In § 145.93, paragraph (c)(3) is amended by removing the number “30” and adding the number “11” in its place. PART 146—NATIONAL POULTRY IMPROVEMENT PLAN FOR COMMERCIAL POULTRY 13. The authority citation for part 146 continues to read as follows: Authority:

    7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.

    14. Section 146.1 is amended by revising the definition of poultry to read as follows:
    § 146.1 Definitions.

    Poultry. Domesticated fowl, including chickens, turkeys, waterfowl, and game birds, except doves and pigeons, that are bred for the primary purpose of producing eggs or meat.

    15. Section 146.2 is amended by revising paragraph (c) to read as follows:
    § 146.2 Administration.

    (c)(1) An Official State Agency may accept for participation a commercial table-egg layer pullet flock, commercial table-egg layer flock, or a commercial meat-type flock (including an affiliated flock) located in another participating State under a mutual understanding and agreement, in writing, between the two Official State Agencies regarding conditions of participation and supervision.

    (2) An Official State Agency may accept for participation a commercial table-egg layer pullet flock, commercial table-egg layer flock, or a commercial meat-type flock (including an affiliated flock) located in a State that does not participate in the Plan under a mutual understanding and agreement, in writing, between the owner of the flock and the Official State Agency regarding conditions of participation and supervision.

    § 146.3 [Amended]
    16. In § 146.3, paragraph (a) is amended by adding the words “commercial table-egg layer pullet flock,” before the words “table-egg producer”. 17. In § 146.11, paragraph (b) is revised to read as follows:
    § 146.11 Inspections.

    (b) A flock will be considered to be conforming to protocol if it meets the requirements as described in § 146.33(a), § 146.43(a), or § 146.53(a).

    § 146.51 [Amended]
    18. Section 146.51 is amended as follows: a. In the definition of commercial upland game birds by removing the word “purpose” and adding in its place “purposes” and adding the words “eggs and/or” before the word “meat”. b. In the definition of commercial waterfowl, by removing the word “purpose” and adding in its place “purposes” and adding the words “eggs and/or” before the word “meat”. 19. Section 146.52 is amended by revising paragraphs (a) and (c) to read as follows:
    § 146.52 Participation.

    (a) Participating commercial upland game bird slaughter plants, commercial waterfowl slaughter plants, raised-for-release upland game bird premises, raised-for-release waterfowl premises, and commercial upland game bird and commercial waterfowl producing eggs for human consumption premises shall comply with the applicable general provisions of subpart A of this part and the special provisions of this subpart E.

    (c) Raised-for-release upland game bird premises, raised-for-release waterfowl premises, and commercial upland game bird and commercial waterfowl producing eggs for human consumption premises that raise fewer than 25,000 birds annually are exempt from the special provisions of this subpart E.

    20. Section 146.53 is amended as follows: a. In paragraph (a) introductory text, by adding the words “or, in the case of egg-producing flocks, the regular surveillance of these flocks” after the words “participating slaughter plant”. b. By adding paragraphs (a)(4) and (a)(5).

    The additions read as follows:

    § 146.53 Terminology and classification; slaughter plants and premises.

    (a) * * *

    (4) It is a commercial upland game bird or waterfowl flock that produces eggs for human consumption where a minimum of 11 birds per flock have been tested negative to the H5/H7 subtypes of avian influenza as provided in § 146.13(b) within 30 days of disposal or within a 12 month period.

    (5) It is a commercial upland game bird or waterfowl flock that has an on-going active and passive surveillance program for H5/H7 subtypes of avian influenza that is approved by the Official State Agency and the Service.

    PART 147—AUXILIARY PROVISIONS ON NATIONAL POULTRY IMPROVEMENT PLAN 21. The authority citation for part 147 continues to read as follows: Authority:

    7 U.S.C. 8301-8317; 7 CFR 2.22, 2.80, and 371.4.

    22. In § 147.52, paragraph (d) is revised to read as follows:
    § 147.52 Authorized laboratories.

    (d) State site visit. The Official State Agency will conduct a site visit and recordkeeping audit at least once every 2 years. This will include, but may not be limited to, review of technician training records, check test proficiency, and test results. The information from the site visit and recordkeeping audit will be made available to the NPIP upon request.

    23. Section 147.54 is revised to read as follows:
    § 147.54 Approval of diagnostic test kits not licensed by the Service.

    (a) Diagnostic test kits that are not licensed by the Service (e.g., bacteriological culturing kits) may be approved through the following procedure:

    (1) The sensitivity of the kit will be evaluated in at least three NPIP authorized laboratories by testing known positive samples, as determined by the official NPIP procedures found in the NPIP Program Standards or through other procedures approved by the Administrator. Field samples for which the presence or absence of the target organism or analyte has been determined by the current NPIP test should be used, not spiked samples or pure cultures. Samples from a variety of field cases representing a range of low, medium, and high analyte concentrations should be used. In some cases it may be necessary to utilize samples from experimentally infected animals. Spiked samples (clinical sample matrix with a known amount of pure culture added) should only be used in the event that no other sample types are available. Pure cultures should never be used. Additionally, laboratories should be selected for their experience with testing for the target organism or analyte with the current NPIP approved test. If certain conditions or interfering substances are known to affect the performance of the kit, appropriate samples will be included so that the magnitude and significance of the effect(s) can be evaluated.

    (2) The specificity of the kit will be evaluated in at least three NPIP authorized laboratories by testing known negative samples, as determined by tests conducted in accordance with the NPIP Program Standards or other procedures approved by the Administrator in accordance with § 147.53(d)(1). If certain conditions or interfering substances are known to affect the performance of the kit, appropriate samples will be included so that the magnitude and significance of the effect(s) can be evaluated.

    (3) The kit will be provided to the cooperating laboratories in its final form and include the instructions for use. The cooperating laboratories must perform the assay exactly as stated in the supplied instructions. Each laboratory must test a panel of at least 25 known positive samples. In addition, each laboratory will be asked to test at least 50 known negative samples obtained from several sources, to provide a representative sampling of the general population. The cooperating laboratories must perform a current NPIP procedure or NPIP approved test on the samples alongside the test kit for comparison.

    (4) Cooperating laboratories will submit to the kit manufacturer all raw data regarding the assay response. Each sample tested will be reported as positive or negative, and the official NPIP procedure used to classify the sample must be submitted in addition to the assay response value. A completed worksheet for diagnostic test evaluation is required to be submitted with the raw data and may be obtained by contacting the NPIP Senior Coordinator. Raw data and the completed worksheet for diagnostic test evaluation must be submitted to the NPIP Senior Coordinator 4 months prior to the next scheduled General Conference Committee meeting, which is when approval will be sought.

    (5) The findings of the cooperating laboratories will be evaluated by the NPIP Technical Committee, and the Technical Committee will make a majority recommendation whether to approve the test kit to the General Conference Committee at the next scheduled General Conference Committee meeting. If the Technical Committee recommends approval, the final approval will be granted in accordance with the procedures described in §§ 147.46, 147.47, and 147.48.

    (6) Diagnostic test kits that are not licensed by the Service (e.g., bacteriological culturing kits) and that have been approved for use in the NPIP in accordance with this section are listed in the NPIP Program Standards.

    (b) Approved tests modification and removal. (1) The specific data required for modifications of previously approved tests will be taken on a case-by-case basis by the technical committee.

    (2) If the Technical Committee determines that only additional field data is needed at the time of submission for a modification of a previously approved test, allow for a conditional approval for 60 days for data collection side-by-side with a current test. The submitting party must provide complete protocol and study design, including criteria for pass/fail to the Technical Committee. The Technical Committee must review the data prior to final approval. This would only apply to the specific situation where a modified test needs additional field data with poultry to be approved.

    (3) Approved diagnostic tests may be removed from the Plan by submission of a proposed change from a participant, Official State Agency, the Department, or other interested person or industry organization. The data in support of removing an approved test will be compiled and evaluated by the NPIP Technical Committee, and the Technical Committee will make a majority recommendation whether to remove the test kit to the General Conference Committee at the next scheduled General Conference Committee meeting. If the Technical Committee recommends removal, the final decision to remove the test will be granted in accordance with the procedures described in §§ 147.46, 147.47, and 147.48.

    Done in Washington, DC, this 9th day of August 2016. Jere L. Dick, Acting Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2016-19245 Filed 8-11-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-5465; Directorate Identifier 2015-NM-041-AD; Amendment 39-18609; AD 2016-16-11] RIN 2120-AA64 Airworthiness Directives; BAE Systems (Operations) Limited Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2010-10-13, for all BAE Systems (Operations) Limited Model BAe 146 and Avro 146 series airplanes. AD 2010-10-13 required repetitive inspections of the wing fixed leading edge and front spar structure for corrosion and cracking, and repair if necessary. This new AD requires revised inspection procedures that terminate a previously approved inspection procedure. This AD was prompted by revised inspection procedures issued by the Design Approval Holder (DAH). We are issuing this AD to detect and correct corrosion and cracking of the wing fixed leading edge and front spar structure, which could result in reduced structural integrity of the airplane.

    DATES:

    This AD is effective September 16, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of September 16, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain other publication listed in this AD as of June 21, 2010 (75 FR 27419, May 17, 2010).

    ADDRESSES:

    For service information identified in this final rule, contact BAE Systems (Operations) Limited, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 675704; email [email protected]; Internet http://www.baesystems.com/Businesses/RegionalAircraft/index.htm. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5465.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5465; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1175; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2010-10-13, Amendment 39-16292 (75 FR 27419, May 17, 2010) (“AD 2010-10-13”). AD 2010-10-13 applied to all BAE Systems (Operations) Limited Model BAe 146 and Avro 146 series airplanes. The NPRM published in the Federal Register on April 20, 2016 (81 FR 23208) (“the NPRM”). The NPRM was prompted by revised inspection procedures issued by the DAH. The NPRM proposed to continue to require repetitive inspections of the wing fixed leading edge and front spar structure for corrosion and cracking, and repair if necessary. The NPRM also proposed to require revised inspection procedures that terminate a previously approved inspection procedure. We are issuing this AD to detect and correct corrosion and cracking of the wing fixed leading edge and front spar structure, which could result in reduced structural integrity of the airplane.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0047; corrected February 26, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”); to correct an unsafe condition. The MCAI states:

    Corrosion of the wing fixed leading edge structure was detected on a BAe 146 aeroplane during removal of wing removable edge for a repair. The review of available scheduled tasks intended to detect environmental and fatigue deteriorations of the wing revealed that they may not have been sufficient to identify corrosion or fatigue damage in the affected structural area.

    This condition, if not detected and corrected, could lead to degradation of the structural integrity of the wing.

    To address this potential unsafe condition, EASA issued AD 2009-0014 [which corresponds to FAA AD 2010-10-13] to require repetitive inspections of fixed wing leading edge and front spar structure [for cracking and corrosion, and repair if necessary] in accordance with BAE Systems (Operations) Ltd Inspection Service Bulletin (ISB) ISB.57-072 which incorporated two possible inspection procedures, either method 1, a combination of a detailed visual inspection (DVI) and a visual inspection (VI) after removal of the outer fixed leading edge only, or method 2, a DVI only, after removal of the inner, centre and outer fixed leading edges.

    Since that [EASA] AD was issued, BAE Systems (Operations) Ltd issued ISB.57-072 Revision 1 to correct a material reference number, Revision 2, which removed method 1 as an available inspection procedure to detect fatigue and environmental damage of the wing structure and Revision 3 to delete the requirement to install weights if the engines were removed when the leading edges were removed.

    For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2009-0014, which is superseded, but requires accomplishment of the [repetitive] inspections in accordance with updated inspection procedures, i.e. method 2 only.

    This [EASA] AD is re-published to correct a typographical error in Table 1, restoring a compliance time as previously required by EASA AD 2009-0014.

    The repetitive inspection interval for the detailed visual inspection for cracking and corrosion of the wing fixed leading edge and front spar structure is:

    • 12 years or 36,000 flight cycles, whichever occurs earlier, for airplanes on which the enhanced corrosion protection has not been accomplished.

    • 6 years or 36,000 flight cycles, whichever occurs earlier, for airplanes on which the enhanced corrosion protection has been accomplished.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5465.

    Comments

    We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

    Conclusion

    We reviewed the available data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

    • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM.

    Related Service Information Under 1 CFR Part 51

    BAE Systems (Operations) Limited has issued Service Bulletin ISB.57-072, Revision 3, dated August 31, 2010. The service information describes procedures for inspection and repair for cracking and corrosion of the wing fixed leading edge and front spar structure. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 4 airplanes of U.S. registry.

    The actions required by AD 2010-10-13, and retained in this AD take about 12 work-hours per product, and 1 work-hour per product for reporting, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2010-10-13 is $1,105 per product.

    The new requirements of this AD add no additional economic burden.

    We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

    Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify that this AD:

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2010-10-13, Amendment 39-16292 (75 FR 27419, May 17, 2010), and adding the following new AD: 2016-16-11 BAE Systems (Operations) Limited: Amendment 39-18609. Docket No. FAA-2016-5465; Directorate Identifier 2015-NM-041-AD. (a) Effective Date

    This AD is effective September 16, 2016.

    (b) Affected ADs

    This AD replaces AD 2010-10-13, Amendment 39-16292 (75 FR 27419, May 17, 2010) (“AD 2010-10-13”).

    (c) Applicability

    This AD applies to BAE Systems (Operations) Limited Model BAe 146-100A, -200A, and -300A series airplanes; and Model Avro 146-RJ70A, 146-RJ85A, and 146-RJ100A airplanes; certificated in any category, all serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Reason

    This AD was prompted by revised inspection procedures issued by the Design Approval Holder. We are issuing this AD to detect and correct corrosion and cracking of the wing fixed leading edge and front spar structure, which could result in reduced structural integrity of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Retained Actions and Compliance, With Added Provision for Terminating Action

    This paragraph restates the requirements of paragraph (f) of AD 2010-10-13, with an added provision for terminating action. Accomplishing the initial inspection required by paragraph (j) of this AD terminates the requirements of paragraph (g) of this AD.

    (1) At the applicable time identified in paragraph (g)(1)(i), (g)(1)(ii), or (g)(1)(iii) of this AD: Perform a detailed visual inspection and visual inspection (Method 1) or a detailed visual inspection (Method 2) for cracking and corrosion of the wing fixed leading edge and front spar structure, in accordance with paragraph 2.C. or 2.D., as applicable, of the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008.

    (i) For airplanes with less than 9 years since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness as of the effective date of this AD: Within 18 months after June 21, 2010 (the effective date of AD 2010-10-13).

    (ii) For airplanes with 9 years or more, but less than 15 years, since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness as of June 21, 2010 (the effective date of AD 2010-10-13): Within 18 months after June 21, 2010, or within 16 years since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness, whichever occurs first.

    (iii) For airplanes with 15 years or more since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness as of June 21, 2010 (the effective date of AD 2010-10-13): Within 6 months after June 21, 2010.

    (2) After doing the initial inspection required by paragraph (g)(1) of this AD, at the applicable intervals specified in paragraph (g)(2)(i) or (g)(2)(ii) of this AD, accomplish the repetitive inspections of the wing fixed leading edge and front spar structure for cracking and corrosion in the “area of inspection” specified in table 1 of paragraph 1.D., “Compliance,” of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008. Do the inspections in accordance with paragraph 2.C. (Method 1) or paragraph 2.D. (Method 2) of the Accomplishment Instructions of BAE SYSTEMS (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008. Where previously applied, enhanced corrosion protection may then be re-applied, as an option, in accordance with paragraph 2.E. of the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008. Perform the repetitive inspections at the times specified in paragraph (g)(2)(i) or (g)(2)(ii) of this AD, as applicable.

    (i) For airplanes having enhanced corrosion protection that was applied during the previous inspection: Inspect at intervals not to exceed 144 months.

    (ii) For airplanes not having enhanced corrosion protection that was applied during the previous inspection: Inspect at intervals not to exceed 72 months.

    (3) After doing the initial inspection required by paragraph (g)(1) of this AD, at intervals not to exceed 36,000 flight cycles, accomplish fatigue inspections in accordance with paragraph 2.C. (Method 1) or paragraph 2.D. (Method 2) of the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008.

    (4) If any cracking or corrosion is found during any inspection required by paragraph (g) of this AD, before further flight, repair in accordance with the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008.

    (5) No repair terminates the inspection requirements of this AD.

    (6) Actions done before June 21, 2010 (the effective date of AD 2010-10-13), in accordance with BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, dated February 22, 2008, are considered acceptable for compliance with the corresponding actions specified in this AD.

    (7) Submit a report of the findings (both positive and negative) of the inspection required by paragraph (f)(1) of this AD to Customer Liaison, Customer Support (Building 37), BAE Systems (Operations) Limited, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland; fax +44 (0) 1292 675432; email [email protected], at the applicable time specified in paragraphs (g)(7)(i) and (g)(7)(ii) of this AD. The report must include the inspection results, a description of any discrepancies found, the airplane serial number, and the number of landings and flight hours on the airplane.

    (i) If the inspection was done on or after June 21, 2010 (the effective date of AD 2010-10-13): Submit the report within 30 days after the inspection.

    (ii) If the inspection was done before June 21, 2010 (the effective date of AD 2010-10-13): Submit the report within 30 days after June 21, 2010.

    (h) Retained Corrosion Protection Information, With No Changes

    This paragraph restates the corrosion protection information in Note 2 of AD 2010-10-13, with no changes. At the discretion of the airplane owner/operator, corrosion protection may be embodied on those areas subject to a detailed visual inspection, in accordance with paragraph 2.E. or paragraph 2.F. of the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008. Embodiment of enhanced corrosion protection in accordance with paragraph 2.E. of the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008, allows the interval of the repetitive inspections (as required by paragraph (g)(2) of this AD) to be extended in the area(s) of application in accordance with paragraph (g)(2)(i) or (g)(2)(ii) of this AD, as applicable.

    (i) Retained Inspection Information, With No Changes

    This paragraph restates the inspection information in Note 3 of AD 2010-10-13, with no changes. The inspections required by this AD prevail over the Maintenance Review Board Report (MRBR), Maintenance Planning Document (MPD), Corrosion Prevention and Control Program (CPCP), and Supplemental Structural Inspection Document (SSID) inspections defined in paragraph 1.C.(3) of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008.

    (j) New Requirement of This AD: Repetitive Inspection

    At the applicable time identified in paragraph (j)(1), (j)(2), or (j)(3) of this AD; or within 6 months after the effective date of this AD; whichever occurs later: Perform a detailed visual inspection for cracking and corrosion of the wing fixed leading edge and front spar structure, in accordance with paragraph 2.C. of the Accomplishment Instructions of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 3, dated August 31, 2010. Repeat the inspection thereafter at the applicable intervals specified in paragraph 1.D.2. of BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 3, dated August 31, 2010. Accomplishing the initial inspection required by this paragraph terminates the requirements of paragraph (g) of this AD.

    (1) For airplanes with less than 9 years since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness as of June 21, 2010 (the effective date of AD 2010-10-13): Within 18 months after June 21, 2010, or within 9 years since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness, whichever occurs later.

    (2) For airplanes with 9 years or more, but less than 15 years, since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness as of June 21, 2010 (the effective date of AD 2010-10-13): Within 18 months after June 21, 2010, or within 16 years since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness, whichever occurs first.

    (3) For airplanes with 15 years or more since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness as of June 21, 2010 (the effective date of AD 2010-10-13): Within 6 months after June 21, 2010.

    (k) New Requirement of This AD: Repair

    If any crack or corrosion is found during any inspection required by paragraph (j) of this AD: Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or BAE Systems (Operations) Limited's EASA Design Organization Approval (DOA).

    (l) No Provisions for Terminating Action

    Accomplishment of any repair, as required by paragraph (k) of this AD, does not constitute terminating action for inspections required by this AD.

    (m) Credit for Previous Actions

    This paragraph provides credit for actions required by this AD, if those actions were performed before the effective date of this AD using BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, dated February 22, 2008; or BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008.

    (n) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Todd Thompson, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1175; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: As of the effective date of this AD, for any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the EASA; or BAE Systems (Operations) Limited's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Reporting Requirements: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

    (o) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-004; corrected February 26, 2015; for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5465.

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (p)(5) and (p)(6) of this AD.

    (p) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (3) The following service information was approved for IBR on September 16, 2016.

    (i) BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 3, dated August 31, 2010.

    (ii) Reserved.

    (4) The following service information was approved for IBR on June 21, 2010 (75 FR 27419, May 17, 2010).

    (i) BAE Systems (Operations) Limited Inspection Service Bulletin ISB.57-072, Revision 1, dated September 25, 2008.

    (ii) Reserved.

    (5) For service information identified in this AD, contact BAE Systems (Operations) Limited, Customer Information Department, Prestwick International Airport, Ayrshire, KA9 2RW, Scotland, United Kingdom; telephone +44 1292 675207; fax +44 1292 675704; email [email protected]; Internet http://www.baesystems.com/Businesses/RegionalAircraft/index.htm.

    (6) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (7) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on July 27, 2016. Victor Wicklund, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18821 Filed 8-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3989; Directorate Identifier 2014-NM-250-AD; Amendment 39-18600; AD 2016-16-02] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Airbus Model A318, A319, A320, and A321 series airplanes. This AD was prompted by reports of premature aging of certain passenger chemical oxygen generators that resulted in the generators failing to activate. This AD requires an inspection to determine if certain passenger chemical oxygen generators are installed and replacement of affected passenger chemical oxygen generators. We are issuing this AD to prevent failure of the passenger chemical oxygen generator to activate and consequently not deliver oxygen during an emergency, possibly resulting in injury to the airplane occupants.

    DATES:

    This AD is effective September 16, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 16, 2016.

    ADDRESSES:

    For Airbus service information identified in this final rule, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email: [email protected]; Internet: http://www.airbus.com. For B/E Aerospace service information identified in this final rule, contact B/E Aerospace Inc., 10800 Pflumm Road, Lenexa, KS 66215; telephone: 913-338-9800; fax: 913-469-8419; Internet: http://beaerospace.com/home/globalsupport. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3989.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3989; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1405; fax: 425-227-1149.

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Model A318, A319, A320, and A321 series airplanes. The NPRM published in the Federal Register on October 19, 2015 (80 FR 63136) (“the NPRM”). The NPRM was prompted by reports of premature aging of certain passenger chemical oxygen generators that resulted in the generators failing to activate. The NPRM proposed to require an inspection to determine if certain passenger chemical oxygen generators are installed and replacement of affected passenger chemical oxygen generators. We are issuing this AD to prevent failure of the passenger chemical oxygen generator to activate and consequently not deliver oxygen during an emergency, possibly resulting in injury to the airplane occupants.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015-0117, dated June 24, 2015; corrected August 7, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”); to correct an unsafe condition for all Airbus Model A318, A319, A320, and A321 series airplanes. The MCAI states:

    Reports have been received indicating premature ageing of certain chemical oxygen generators, Part Number (P/N) 117042-XX (XX representing any numerical value), manufactured by B/E Aerospace. Some operators reported that when they tried to activate generators, some older units failed to activate. Given the number of failed units reported, all generators manufactured in 1999, 2000 and 2001 were considered unreliable.

    This condition, if not corrected, could lead to failure of the generator to activate and consequently not deliver oxygen during an emergency, possibly resulting in injury to aeroplane occupants.

    To address this potential unsafe condition, Airbus issued Alert Operators Transmission (AOT) A35N006-14, making reference to B/E Aerospace Service Information Letter (SIL) D1019-01 (currently at Revision 1) and B/E Aerospace Service Bulletin (SB) 117042-35-001.

    Consequently, EASA issued AD * * * (later revised) to require identification and replacement of the affected oxygen generators.

    Since EASA AD 2014-0275R1 was issued, and following new investigation results, EASA have decided to introduce a life limitation concerning all P/N 117042-XX chemical oxygen generators, manufactured by B/E Aerospace.

    For the reason described above, this [EASA] AD retains the requirements of the EASA AD 2014-0275R1, which is superseded, expands the scope of the [EASA] AD to include chemical oxygen generators manufactured after 2001, and requires their removal from service before exceeding 10 years since date of manufacture.

    This [EASA] AD is re-published to correct a template error, removing the word ‘Proposed’ and replacing the acronym ‘PAD’ with ‘AD’.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3989.

    Comments

    We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (80 FR 63136, October 19, 2015) and the FAA's response to each comment.

    Requests To Extend Compliance Times

    United Airlines (UAL) and Delta Air Lines, Inc. (DAL) requested an extension of the 30-day compliance time for the part number inspection. UAL stated that the time required for the part number inspection and the size of UAL's fleet is prohibitive to meeting the 30-day compliance time and requested that we extend the initial compliance time to 24 months. DAL stated that the time required for the part number inspection and the size of DAL's fleet is prohibitive to meeting the 30-day compliance time and requested that we extend the initial compliance time for the part number inspection to 90 days. DAL pointed out that a 90-day compliance time would allow ample time to route airplanes and schedule the required work on the first group of affected airplanes.

    We disagree with the requests to extend the 30-day compliance time for the part number inspection. The commenters did not provide any justification to substantiate how increasing the compliance time from 30 days to 90 days or 24 months would provide an acceptable level of safety. After considering all of the available information, we have determined that the compliance time, as proposed, represents an appropriate interval of time in which the required actions can be performed in a timely manner with the affected fleet, while still maintaining an adequate level of safety. In developing an appropriated compliance time, we considered the safety implications, parts availability, and normal maintenance schedules for timely accomplishment of the replacement, overall risk to the fleet, including the severity of the identified unsafe condition and the likelihood of the occurrence of the unsafe condition. However, under the provisions of paragraph (n)(1) of this AD, operators may apply for an extension of the compliance time by providing rationale explaining why a compliance time extension provides an acceptable level of safety. We have not changed this AD in this regard.

    Request To Revise Cost Estimates

    DAL requested that we revise the Costs of Compliance section provided in the NPRM. DAL pointed out that the cost estimate may not properly account for the number of products per airplane and that they believe the costs are significantly higher than the estimate included in the NPRM. DAL also provided revised cost estimates based on their fleet.

    We partially agree with the request to revise the Costs of Compliance section. We disagree that the cost estimate should be revised based on airplane configuration, findings, and associated costs based only on the DAL fleet. The configuration of each airplane and inspection findings may vary among U.S. operators. We agree that the Costs of Compliance section provided in the NPRM might not have accurately represented the actual cost. After considering the data presented by DAL, we also agree that the number of work-hours required is higher than our previous estimate. The Costs of Compliance section of this final rule has been revised accordingly.

    Request To Remove Reporting Requirement

    UAL requested that we remove the reporting requirement in the proposed AD. UAL pointed out that reporting could expose operators to compliance risk. UAL also pointed out that they do not find any value in the information being requested by the reporting requirement. UAL stated that they will provide any feedback as requested.

    We disagree with the request to remove the reporting requirement. We disagree that the information requested provides no value. Reporting is necessary for the airframe manufacturer to determine the extent of the unsafe condition and any necessary follow-up actions. We have not changed this AD in this regard.

    Request To Reference Revised Service Information

    Mr. Ricardo Erazo requested that we revise the AD to reference B/E Aerospace Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015. Mr. Erazo did not provide rationale for this request.

    We agree with the request to revise this AD to reference B/E Aerospace Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015, and have revised this AD accordingly. B/E Aerospace Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015, clarifies references to additional service information. As a result, we have also added paragraph (m) to this AD, to give credit for actions accomplished before the effective date of this AD using B/E Aerospace Service Bulletin 117042-35-001, dated December 10, 2014; B/E Aerospace Service Bulletin 117042-35-001, Revision 001, dated April 9, 2015; B/E Aerospace Service Bulletin 117042-35-001, Revision 002, dated May 29, 2015; or B/E Aerospace Service Bulletin 117042-35-001, Revision 003, dated June 25, 2015.

    Change to Service Information References

    We have revised paragraphs (h) and (i) of this AD to refer to Airbus AOT A35N006-14, dated December 10, 2014, including Appendix 1, as an additional appropriate source of service information for the 15-minute passenger chemical oxygen generators.

    Conclusion

    We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:

    • Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and

    • Do not add any additional burden upon the public than was already proposed in the NPRM.

    We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.

    Related Service Information Under 1 CFR Part 51

    We reviewed the following service information.

    • Airbus AOT A35N006-14, dated December 10, 2014, including Appendix 1.

    • B/E Aerospace Inc. Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015.

    This service information describes procedures to replace certain passenger chemical oxygen generators. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 953 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Part number inspection 4 work-hours × $85 per hour = $340 $0 $340 $324,020 Reporting 1 work-hour × $85 per hour = $85 0 85 81,005

    We estimate the following costs to do any necessary replacements that would be required based on the results of the required inspection. We have no way of determining the number of airplanes that might need these replacements:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replacement Up to 25 work-hours × $85 per hour = $2,125 $390 Up to $2,515.
    Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify that this AD:

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-16-02 Airbus: Amendment 39-18600. Docket No. FAA-2015-3989; Directorate Identifier 2014-NM-250-AD. (a) Effective Date

    This AD is effective September 16, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1), (c)(2), (c)(3), and (c)(4) of this AD; certificated in any category; all manufacturer serial numbers, except those that have embodied Airbus modification 33125 (gaseous system for all oxygen containers) in production.

    (1) Airbus Model A318-111, -112, -121, and -122 airplanes.

    (2) Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.

    (3) Airbus Model A320-211, -212, -214, -231, -232, and -233 airplanes.

    (4) Airbus Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 35, Oxygen.

    (e) Reason

    This AD was prompted by reports of premature aging of certain passenger chemical oxygen generators that resulted in the generators failing to activate. We are issuing this AD to prevent failure of the passenger chemical oxygen generator to activate and consequently not deliver oxygen during an emergency, possibly resulting in injury to the airplane occupants.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Part Number Inspection

    Within 30 days after the effective date of this AD: Do a one-time inspection of passenger chemical oxygen generators, part numbers (P/N) 117042-02 (15 minutes (min)—2 masks), 117042-03 (15 min—3 masks), 117042-04 (15 min—4 masks), 117042-22 (22 min—2 masks), 117042-23 (22 min—3 masks), and 117042-24 (22 min—4 masks) to determine the date of manufacture as specified in Airbus Alert Operators Transmission (AOT) A35N006-14, dated December 10, 2014, including Appendix 1. Refer to figures 1 and 2 to paragraph (g) of this AD for the location of the date. A review of airplane maintenance records is acceptable for the inspection required by this paragraph, provided the date of manufacture can be conclusively determined by that review.

    ER12AU16.004 ER12AU16.003 (h) Replacement of Passenger Chemical Oxygen Generators Manufactured in 1999, 2000, or 2001

    If, during any inspection required by paragraph (g) of this AD, any passenger chemical oxygen generator having a date of manufacture in 1999, 2000, or 2001 is found: At the applicable time specified in paragraph (h)(1), (h)(2), or (h)(3) of this AD, remove and replace the affected passenger chemical oxygen generator with a serviceable unit, in accordance with Airbus AOT A35N006-14, dated December 10, 2014, including Appendix 1 (for 15-minute and 22-minute passenger chemical oxygen generators); or the Accomplishment Instructions of B/E Aerospace Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015 (for 15-minute passenger chemical oxygen generators).

    (1) For passenger chemical oxygen generators that have a date of manufacture in 1999: Within 30 days after the effective date of this AD.

    (2) For passenger chemical oxygen generators that have a date of manufacture in 2000: Within 6 months after the effective date of this AD.

    (3) For passenger chemical oxygen generators that have a date of manufacture in 2001: Within 12 months after the effective date of this AD.

    (i) Replacement of Passenger Chemical Oxygen Generators Manufactured in 2002 and Later

    If, during any inspection required by paragraph (g) of this AD, any passenger chemical oxygen generator having a date specified in table 1 to paragraph (i) of this AD is found: At the applicable time specified in table 1 to paragraph (i) of this AD, remove and replace the affected passenger chemical oxygen generator with a serviceable unit, in accordance with Airbus AOT A35N006-14, dated December 10, 2014, including Appendix 01, undated (for 15-minute and 22-minute passenger chemical oxygen generators); or the Accomplishment Instructions of B/E Aerospace Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015 (for 15-minute passenger chemical oxygen generators).

    Table 1 to Paragraph (i) of This AD—Replacement Compliance Times Year of
  • manufacture
  • Compliance time
    2002 Within 12 months after the effective date of this AD. 2003 Within 16 months after the effective date of this AD. 2004 Within 20 months after the effective date of this AD. 2005 Within 24 months after the effective date of this AD. 2006 Within 28 months after the effective date of this AD. 2007 Within 32 months after the effective date of this AD. 2008 Within 36 months after the effective date of this AD. 2009 Before exceeding 10 years since date of manufacture of the passenger chemical oxygen generator.
    (j) Definition of Serviceable

    For the purpose of this AD, a serviceable unit is a passenger chemical oxygen generator having P/N 117042-XX with a manufacturing date not older than 10 years, or any other approved part number, provided that the generator has not exceeded the life limit established for that generator by the manufacturer.

    (k) Reporting

    At the applicable time specified in paragraph (k)(1) or (k)(2) of this AD, submit a report of the findings (both positive and negative) of the inspection required by paragraph (g) of this AD, in accordance with paragraph 7, “Reporting,” of Airbus AOT A35N006-14, dated December 10, 2014, including Appendix 1. The report must include the information specified in Appendix 1 of Airbus AOT A35N006-14, dated December 10, 2014.

    (1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.

    (2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.

    (l) Parts Installation Limitation

    As of the effective date of this AD, no person may install a passenger chemical oxygen generator, unless it is determined, prior to installation, that the oxygen generator is a serviceable unit as specified in paragraph (j) of this AD.

    (m) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (h) and (i) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraphs (m)(1), (m)(2), (m)(3), or (m)(4).

    (1) B/E Aerospace Service Bulletin 117042-35-001, dated December 10, 2014.

    (2) B/E Aerospace Service Bulletin 117042-35-001, Revision 001, dated April 9, 2015.

    (3) B/E Aerospace Service Bulletin 117042-35-001, Revision 002, dated May 29, 2015.

    (4) B/E Aerospace Service Bulletin 117042-35-001, Revision 003, dated June 25, 2015.

    (n) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1405; fax: 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Reporting Requirements: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

    (o) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency (EASA) AD 2015-0117, dated June 24, 2015; corrected August 7, 2015; for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3989.

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (p)(3) and (p)(4) of this AD.

    (p) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Airbus Alert Operators Transmission A35N006-14, dated December 10, 2014, including Appendix 01, undated.

    (ii) B/E Aerospace Service Bulletin 117042-35-001, Revision 004, dated October 13, 2015.

    (3) For Airbus service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email: [email protected]; Internet: http://www.airbus.com. For B/E Aerospace service information identified in this AD, contact B/E Aerospace Inc., 10800 Pflumm Road, Lenexa, KS 66215; telephone: 913-338-9800; fax: 913-469-8419; Internet: http://beaerospace.com/home/globalsupport.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on July 21, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-18169 Filed 8-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-5456; Airspace Docket No. 16-AGL-11] Establishment of Class E Airspace; Linton, ND AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action establishes Class E en route domestic airspace in the Linton, ND, area. Controlled airspace is necessary at Linton Municipal Airport to facilitate vectoring of Instrument Flight Rules (IFR) aircraft under control of Minneapolis Air Route Traffic Control Center (ARTCC). This action enhances the safety and management of IFR operations within the National Airspace System (NAS).

    DATES:

    Effective 0901 UTC, November 10, 2016. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at http://www.faa.gov/airtraffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Raul Garza, Jr., Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: (817) 222-5874.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

    History

    On May 6, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E Airspace at Linton Municipal Airport, Linton, ND (81 FR 27356) Docket No. FAA-2016-5456. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment in support of the proposal was received from the National Business Aviation Association.

    Class E airspace designations are published in paragraph 6006 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 1,200 feet above the surface within a 125-mile radius of Linton Municipal Airport, Linton, ND, to facilitate vectoring of IFR aircraft under control of Minneapolis ARTCC. Controlled airspace is needed for the safety and management of IFR operations within the NAS.

    Class E airspace designations are published in Paragraph 6006 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for Part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, effective September 15, 2015, is amended as follows: Paragraph 6006 En Route Domestic Airspace Areas. AGL ND E6 Linton, ND [New] Linton Municipal Airport (Lat. 46°13′14″ N., long. 100°14′44″ W.)

    That airspace extending upward from 1,200 feet above the surface within a 125-mile radius of Linton Municipal Airport.

    Issued in Fort Worth, TX, on July 29, 2016. Robert W. Beck, Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2016-19011 Filed 8-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-5386; Airspace Docket No. 16-AGL-12] Establishment of Class E Airspace; Platte, SD AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action establishes Class E en route domestic airspace in the Platte, SD, area. Controlled airspace is necessary at Platte Municipal Airport to facilitate vectoring of Instrument Flight Rules (IFR) aircraft under control of Minneapolis Air Route Traffic Control Center (ARTCC). This action enhances the safety and management of IFR operations within the National Airspace System (NAS).

    DATES:

    Effective 0901 UTC, November 10, 2016. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at http://www.faa.gov/airtraffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Raul Garza, Jr., Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: (817) 222-5874.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

    History

    On May 6, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E Airspace in the Platte, SD area. (81 FR 27355) Docket No. FAA-2016-5386. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment in support of the proposal was received from the National Business Aviation Association.

    Class E airspace designations are published in paragraph 6006 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 1,200 feet above the surface within a 75-mile radius of Platte Municipal Airport, Platte, SD, to facilitate vectoring of IFR aircraft under control of Minneapolis ARTCC. Controlled airspace is needed for the safety and management of IFR operations within the NAS.

    Class E airspace designations are published in Paragraph 6006 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for Part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, effective September 15, 2015, is amended as follows: Paragraph 6006 En Route Domestic Airspace Areas. AGL SD E6 Platte, SD [New] Platte Municipal Airport (Lat. 43°24′17″ N., long. 098°49′50″ W.)

    That airspace extending upward from 1,200 feet above the surface within a 75-mile radius of Platte Municipal Airport.

    Issued in Fort Worth, TX, on July 29, 2016. Robert W. Beck, Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2016-18996 Filed 8-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-1074; Airspace Docket No. 16-ASO-3] Revocation of Class D Airspace; North, SC AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action removes Class D Airspace at North, SC, as the North Air Force Auxiliary Field Air Traffic Control Tower is no longer staffed, and the controlled Class D airspace area is no longer required.

    DATES:

    Effective 0901 UTC, November 10, 2016. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/airtraffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, P.O. Box 20636, Atlanta, Georgia 30320; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

    History

    On March 28, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to remove Class D airspace at North Air Force Auxiliary Field, North, SC., (81 FR 17111) FAA 2016-1074. No comments were received.

    Class D airspace designations are published in paragraphs 5000 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class D airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 removes Class D airspace at North Air Force Auxiliary Field, North, SC. The air traffic control tower is no longer in use. Therefore, the Class D airspace area is no longer necessary.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for Part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, effective September 15, 2015, is amended as follows: Paragraph 5000 Class D Airspace. ASO SC D North, SC [Removed] Issued in College Park, Georgia, on August 4, 2016. Joey L. Medders, Acting Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2016-19001 Filed 8-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-5387; Airspace Docket No. 16-AGL-13] Establishment of Class E Airspace; Harvey, ND AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action establishes Class E en route domestic airspace in the Harvey, ND, area for Harvey Municipal Airport. Controlled airspace is necessary to facilitate vectoring of Instrument Flight Rules (IFR) aircraft under control of Minneapolis Air Route Traffic Control Center (ARTCC). This action enhances the safety and efficiency of aircraft operations within the National Airspace System.

    DATES:

    Effective 0901 UTC, November 10, 2016. The Director of the Federal Register approves this incorporation by reference action under title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.9 and publication of conforming amendments.

    ADDRESSES:

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at http://www.faa.gov/airtraffic/publications/. For further information, you can contact the Airspace Policy Group, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: 202-267-8783. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Raul Garza, Jr., Central Service Center, Operations Support Group, Federal Aviation Administration, Southwest Region, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone: (817) 222-5874.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

    History

    On May 6, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E Airspace in the Harvey, ND area. (81 FR 27357) Docket No. FAA-2016-5387. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment in support of the proposal was received the National Business Aviation Association.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 1,200 feet above the surface within a 100-mile radius of Harvey Municipal Airport, Harvey, ND, to facilitate vectoring of IFR aircraft under control of Minneapolis ARTCC. Controlled airspace is needed for the safety and management of IFR operations in the National Airspace System.

    Class E airspace designations are published in Paragraph 6006 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for Part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g); 40103, 40113, 40120, E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, effective September 15, 2015, is amended as follows: Paragraph 6006 En Route Domestic Airspace Areas. AGL ND E6 Harvey, ND [New] Harvey Municipal Airport, ND (Lat. 47°47′28″ N., long. 099°55′54″ W.)

    That airspace extending upward from 1,200 feet above the surface within a 100-mile radius of Harvey Municipal Airport, excluding that airspace within Canada.

    Issued in Fort Worth, TX, on August 3, 2016. Vonnie L. Royal, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2016-19006 Filed 8-11-16; 8:45 am] BILLING CODE 4910-13-P
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 1 RIN 3038-AE48 Written Acknowledgment of Customer Funds From Federal Reserve Banks AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Commodity Futures Trading Commission (“CFTC” or “Commission”) is amending its regulations to revise or repeal certain provisions related to the requirement that a derivatives clearing organization (“DCO”) obtain from a Federal Reserve Bank acting as a depository for customer funds a written acknowledgment that the Federal Reserve Bank was informed that the customer funds deposited therein are those of customers and are being held in accordance with Section 4d of the Commodity Exchange Act (“CEA”).

    DATES:

    Effective August 12, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Eileen A. Donovan, Deputy Director, 202-418-5096, [email protected]; M. Laura Astrada, Associate Director, 202-418-7622, [email protected]; or Parisa Abadi, Attorney-Advisor, 202-418-6620, [email protected], in each case, at the Division of Clearing and Risk, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    On June 2, 2016, the Commission published for public comment in the Federal Register a proposed order that would exempt Federal Reserve Banks that provide customer accounts and other services to certain designated financial market utilities registered with the Commission from Sections 4d and 22 of the CEA.1 The proposed order would permit Federal Reserve Banks to hold money, securities, and property deposited into a customer account by certain designated financial market utilities in accordance with the standards to which Federal Reserve Banks are held.

    1 Notice of Proposed Order and Request for Comment on Proposal to Exempt, Pursuant to the Authority in Section 4(c) of the Commodity Exchange Act, the Federal Reserve Banks from Sections 4d and 22 of the Commodity Exchange Act, 81 FR 35337 (June 2, 2016).

    In response to the request for public comment, CME Group Inc. noted that the proposed order would be inconsistent with Regulation 1.20(g)(4)(ii).2 Commission Regulation 1.20(g)(4)(ii) requires that a DCO obtain from a Federal Reserve Bank acting as a depository for customer funds a written acknowledgment that the customer funds deposited therein are being held in accordance with Section 4d of the CEA; however, pursuant to the terms of the proposed order, the Federal Reserve Banks would be exempt from Section 4d. The Commission subsequently issued a final exemptive order that is substantively similar to the proposed order. In the Federal Register notice issuing the final exemptive order, the Commission noted that, in light of the comment, it had determined to repeal the written acknowledgment requirement with respect to customer accounts held with a Federal Reserve Bank 3 in a separate Federal Register notice. The final exemptive order will render these provisions inapplicable, as the Federal Reserve Banks will not be held to the requirements of Section 4d of the CEA. Therefore, the Commission is amending Regulation 1.20 to remove the acknowledgment letter requirement for customer funds deposited by a DCO with a Federal Reserve Bank. The Commission welcomes any comments and/or questions regarding this amendment.

    2 17 CFR 1.20(g)(4)(ii). Regulation 1.20(g)(4)(ii) provides that a DCO shall obtain from a Federal Reserve Bank only a written acknowledgment that: (A) The Federal Reserve Bank was informed that the customer funds deposited therein are those of customers and are being held in accordance with the provisions of section 4d of the Act and Commission regulations thereunder; and (B) The Federal Reserve Bank agrees to reply promptly and directly to any request from Commission staff for confirmation of account balances or provision of any other information regarding or related to an account. Id.

    3 Specifically, the Commission is revising paragraphs (g)(4)(i) and (g)(4)(ii) of Regulation 1.20, and repealing paragraphs (g)(4)(ii)(A) and (g)(4)(ii)(B) of Regulation 1.20.

    List of Subjects in 17 CFR Part 1

    Brokers, Commodity futures, Consumer protection, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR part 1 as follows:

    PART 1—GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT 1. The authority citation for part 1 continues to read as follows: Authority:

    7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6l, 6m, 6n, 6o, 6p, 6r, 6s, 7, 7a-1, 7a-2, 7b, 7b-3, 8, 9, 10a, 12, 12a, 12c, 13a, 13a-1, 16, 16a, 19, 21, 23, and 24 (2012).

    2. Amend § 1.20 by revising paragraphs (g)(4)(i) and (ii) to read as follows:
    § 1.20 Futures customer funds to be segregated and separately accounted for.

    (g) * * *

    (4) * * *

    (i) A derivatives clearing organization must obtain a written acknowledgment from each depository prior to or contemporaneously with the opening of a futures customer funds account; provided, however, that a derivatives clearing organization is not required to obtain a written acknowledgment from a Federal Reserve Bank with which it has opened a futures customer funds account.

    (ii) The written acknowledgment must be in the form as set out in appendix B to this part.

    Issued in Washington, DC, on August 8, 2016, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. Note:

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

    Appendices to Written Acknowledgment of Customer Funds From Federal Reserve Banks—Commission Voting Summary, Chairman's Statement, and Commissioner's Statement Appendix 1—Commission Voting Summary

    On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.

    Appendix 2—Statement of Chairman Timothy G. Massad

    Today, the Commission continues its work to ensure the resiliency of clearinghouses and protect customers in our markets. To provide the necessary context for these efforts, it is useful to look back at recent history.

    Most participants in our markets will recall what happened at the beginning of the financial crisis in September 2008, when the Reserve Fund—a money market fund—“broke the buck” following the bankruptcy of Lehman Brothers. Redemptions were suspended and investors were not able to make withdrawals. As a result, many futures commission merchants (FCMs) were not able to access customer funds invested in the Reserve Fund. Absent relief by the CFTC, many would have been undercapitalized, potentially ending up in bankruptcy. In addition, clearinghouses could not liquidate investments in the Reserve Fund. And there could have easily been a widespread run on money market funds, but for the emergency actions taken by the U.S. government.

    As a result of the crisis, as well as the collapse of MF Global, the CFTC and our self-regulatory organizations took a number of actions to better protect customer funds. We required customer funds to be strictly segregated and limited the ways they can be invested. We enhanced accounting and auditing procedures at FCMs, including by requiring daily verification from depositories of the amounts deposited by FCMs.

    Today, CFTC rules require that customer funds be invested in highly liquid assets and be convertible into cash within one business day without a material discount in value. Our rules also require that clearinghouses invest initial margin deposits in a manner that allows them to promptly liquidate any such investment.

    Over the last few years, the Securities and Exchange Commission (SEC) has also taken action in response to the lessons of the financial crisis, by adopting a number of measures to address the potential vulnerabilities of money market funds. One such recent reform, which takes effect in October of this year, sets forth the circumstances where prime money market funds are permitted, or in some circumstances required, to suspend redemptions in order to prevent the risk of investor runs.

    While we recognize the benefit of the SEC's new rule in preventing investor runs, a suspension of redemptions by a money market fund would mean investments in such funds are not accessible and cannot be promptly liquidated. Such an event could result in customers, FCMs, and clearinghouses being unable to access the funds necessary to satisfy margin obligations.

    Therefore, CFTC staff is today providing guidance making clear that Commission rules prohibit a clearing member from investing customer funds, or a clearinghouse from investing amounts deposited as initial margin, in such money market funds.

    Some industry participants have suggested we should interpret or revise our rules to permit investments of at least some customer monies in such money market funds unless and until redemptions are suspended. We have declined to do so, as it would be too late to protect customers at that point. Moreover, there are alternatives to prime funds, including certain government money markets funds or Treasury securities. In fact, investments in prime money market funds represent a relatively small portion of the total customer funds on deposit and the total initial margin deposits at clearinghouses. Some of our clearinghouses and FCMs do not have any investments in prime funds.

    Staff has been careful not to be overly restrictive, and therefore has issued no-action relief to allow FCMs to invest certain “excess” proprietary funds held in customer accounts in these money market funds. That is, our existing rules require FCMs to deposit their own funds (i.e., targeted residual interest) into customer accounts to make sure that there are sufficient funds in the segregated customer accounts to cover all obligations due to customers. FCMs frequently deposit an amount of their own funds that is in excess of the targeted residual interest amount required under our rules, and that excess amount can be withdrawn at any time. Indeed, if an FCM should default, customers—and the system as a whole—are better off if excess funds are on deposit, and we do not wish to incentivize FCMs to withdraw such excess funds from the segregated account. Therefore, the no action relief makes clear that FCMs can continue to invest their own funds in excess of their targeted residual interest in such money market funds, even though they cannot invest the customer funds—or any proprietary funds they are required to deposit—in this manner.

    Finally, the Commission is taking action today that will further ensure the safety of customer funds. We are issuing an order that will help make it possible for systemically important clearinghouses to deposit customer funds at Federal Reserve Banks. Our order makes clear that a Federal Reserve Bank that opens such an account would be subject to the same standards of liability that generally apply to it as a depository, rather than any potentially conflicting standard under the commodity laws.

    Although Federal Reserve accounts for customer funds held by systemically important clearinghouses do not exist today, they are allowed under the Dodd-Frank Act, and we have been working with the Board of Governors to facilitate them. The two clearinghouses designated as systemically important in our markets have been approved to open Federal Reserve Bank accounts for their proprietary funds. We hope that with today's action, accounts for customer funds can be opened soon. Doing so will help protect customer funds and enhance the resiliency of clearinghouses.

    I thank the dedicated CFTC staff and my fellow Commissioners for their work on these matters.

    Appendix 3—Concurring Statement of Commissioner Sharon Y. Bowen

    I am pleased to concur with the two Commission actions: the “Order Exempting the Federal Reserve Banks from Sections 4d and 22 of the Commodity Exchange Act” and “Written Acknowledgment of Customer Funds from Federal Reserve Banks.” I have long believed that, in order to protect customer funds, we need to keep that money at our central bank. In the event of a major market event, I, and I believe the rest of the American people, would feel much better knowing that investors' money is at the Federal Reserve instead of at multiple central counterparties. I am glad that our agency and the Federal Reserve have come to an agreement on an effective way to accomplish this.

    I am similarly pleased with the Division of Clearing and Risk's (DCR) “Staff Interpretation Regarding CFTC Part 39 In Light Of Revised SEC Rule 2a-7,” which clearly outlines the staff's understanding that, given the limitations that the Securities and Exchange Commission (SEC) has imposed on redemptions for prime money market funds, that they are no longer considered Rule 1.25 assets. This is the correct interpretation. The key feature in a Rule 1.25 asset is that it must be available quickly in times of crisis or illiquidity. And we know that funds are more likely to close the gates on redemptions when market dislocation happens. That is just the time when futures commission merchants (FCMs) and customers would need access to their money, and a multi-day delay can mean catastrophe for some businesses.

    For that very reason, I have concerns about the Division of Swap Dealer and Intermediary Oversight's (DSIO) “No-Action Relief With Respect to CFTC Regulation 1.25 Regarding Money Market Funds.” While the 4(c) exemption and the DCR interpretation are clearly customer protection initiatives, the DSIO no action letter is not. This no action letter would allow FCMs to keep money in segregated customer accounts that actually would not be readily available in a crisis. Thus, while it may appear that an FCM had considerable funds available to settle customer accounts during a market dislocation, in fact that would be only be an illusion; a portion of those funds could be locked down behind the prime money market funds' gates and therefore not actually be available when needed.

    I do not think that the staff of the Commission should be supporting this kind of “window dressing”—giving the impression of greater security than there actually is. If the funds are not suitable investments for customer funds, then they are not suitable for the additional capital that the FCMs put in those accounts to protect against potential shortfalls. Having lived through bankruptcies, such as MF Global and Peregrine, I have a healthy respect for the importance of having strong clearing members with a large cushion of funds that can be accessed when needed. This no action letter undermines that effort. Given the importance of this topic to the general public, we should at least have asked for comments or even held a roundtable before making this change. I therefore hope to reexamine this subject in the near future.

    [FR Doc. 2016-19211 Filed 8-11-16; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF LABOR Occupational Safety and Health Administration 29 CFR Part 1926 [Docket No. OSHA-2007-0026] RIN 1218-AB47 Confined Spaces in Construction; Approval of Collections of Information AGENCY:

    Occupational Safety and Health Administration (OSHA), Department of Labor.

    ACTION:

    Final rule.

    SUMMARY:

    This rule is a technical amendment revising OSHA's regulations to reflect the approval by the Office of Management and Budget (OMB) of the collections of information contained in OSHA's standard for Confined Spaces in Construction.

    DATES:

    Effective August 12, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Todd Owen, OSHA, Directorate of Standards and Guidance, Room N-3609, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210; telephone (202) 693-2222.

    SUPPLEMENTARY INFORMATION:

    OSHA published a final rule for Confined Spaces in Construction on May 4, 2015 (80 FR 25365) to provide new protections to employees working in confined spaces in construction. This new subpart replaced OSHA's general training requirement for work in confined spaces (29 CFR 1926.21(b)(6)) with a comprehensive standard. The new standard includes a permit program designed to protect employees from exposure to many hazards associated with work in confined spaces, including atmospheric and physical hazards. Those requirements contained collections of information approved by OMB under control number 1218-0258, which OSHA publicized in the Federal Register document announcing the new rule (see 80 FR 22514-22517). This technical amendment codifies the OMB control number for the Confined Spaces in Construction standard into § 1926.5, which is the central section in which OSHA displays its approved collections under the Paperwork Reduction Act.

    Additional opportunity for public comment on this rule is unnecessary because the public has already had the opportunity to comment on the collections of information and OMB has approved them. This revision of § 1926.5 is a purely technical step to increase public awareness of OMB's approval of the collections of information.

    Authority and Signature

    David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health, directed the preparation of this notice. The authority for this notice is the Paperwork Reduction Act of 1995 (44 U.S.C. 3506 et seq.) and Secretary of Labor's Order 1-2012 (77 FR 3912 (1/25/2012)).

    List of Subjects in 29 CFR Part 1926

    Occupational safety and health, Reporting and recordkeeping requirements.

    Signed at Washington, DC, on August 2, 2016. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.

    For the reasons stated in the preamble in this document, the Occupational Safety and Health Administration amends 29 CFR part 1926 as follows:

    PART 1926—SAFETY AND HEALTH REGULATIONS FOR CONSTRUCTION Subpart A—General 1. The authority citation for part 1926, subpart A, continues to read as follows: Authority:

    40 U.S.C. 3701 et seq.; 29 U.S.C. 653, 655, 657; Secretary of Labor's Order No. 12-71 (36 FR 8754), 8-76 (41 FR 25059), 9-83 (48 FR 35736), 1-90 (55 FR 9033), 6-96 (62 FR 111), 3-2000 (65 FR 50017), 5-2002 (67 FR 65008), or 5-2007 (72 FR 31160), 5-2007 (72 FR 31160), 4-2010 (75 FR 55355), or 1-2012 (77 FR 3912), as applicable; and 29 CFR part 1911.

    2. Amend § 1926.5 by adding to the table, in the proper numerical sequence, the entries for “1926.1203,” “1926.1204,” “1926.1205,” “1926.1206,” “1926.1207,” “1926.1208,” “1926.1209,” “1926.1210,” “1926.1211,” “1926.1212,” and “1926.1213” to read as follows:
    § 1926.5 OMB control numbers under the Paperwork Reduction Act. 29 CFR Citation OMB
  • Control No.
  • *    *    *    *    * 1926.1203 1218-0258 1926.1204 1218-0258 1926.1205 1218-0258 1926.1206 1218-0258 1926.1207 1218-0258 1926.1208 1218-0258 1926.1209 1218-0258 1926.1210 1218-0258 1926.1211 1218-0258 1926.1212 1218-0258 1926.1213 1218-0258 *    *    *    *    *
    [FR Doc. 2016-18965 Filed 8-11-16; 8:45 am] BILLING CODE 4510-26-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2016-0541] RIN 1625-AA08 Special Local Regulation; Allegheny River Mile 0.0-1.5; Pittsburgh, PA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a special local regulation for all waters of the Allegheny River mile 0.0-1.5. This special local regulation is necessary to provide safety for the participants in the “Pittsburgh Triathlon and Adventure Race” marine event. This rulemaking prohibits persons and vessels from being in the special local regulated area unless authorized by the Captain of the Port Pittsburgh or a designated representative.

    DATES:

    This rule is effective from 6 a.m. on August 13, 2016, through 9 a.m. on August 14, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0541 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email MST1 Jennifer Haggins, Marine Safety Unit Pittsburgh, U.S. Coast Guard, at telephone 412-221-0807, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    This annually recurring event and special local regulation is currently listed as the “Friends of the Riverfront Inc./Pittsburgh Triathlon and Adventure Races” under 33 CFR 100.801, Table 1, line no. 21, scheduled for two days during the last two weekends in July or first weekend of August. This year the event sponsor changed the date to the second weekend of August, and informed the Coast Guard of this date change on June 6. The event will consist of at least 400 swimmers and takes place on the Allegheny River. This temporary final rule reflects the date changes to the event. The Captain of the Port Pittsburgh (COTP) has determined that the special local regulation under 33 CFR 100.801 is still necessary to protect participants, spectators, and waterway users during this event.

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” It is impracticable to publish an NPRM because we must establish this special local regulation by August 13, 2016.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to establish a special local regulation to protect participants of the “Pittsburgh Triathlon and Adventure Race” beginning on August 13, 2016 to August 14, 2016.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Pittsburgh (COTP) has determined the need to protect participants during the “Pittsburgh Triathlon and Adventure Race” from 6 a.m. to 9 a.m. on August 13, 2016 and August 14, 2016. This rule is needed to protect personnel, vessels, and these navigable waters before, during, and after the scheduled event.

    IV. Discussion of the Rule

    The Captain of the Port Pittsburgh is establishing this special local regulated area from 6 a.m. to 9 a.m. on August 13, 2016 and August 14, 2016 for all waters of the Allegheny River mile 0.0-1.5. The duration of the special local regulated area is intended to ensure the safety of vessels, participants, spectators and other waterway users before, during, and after the scheduled event. No vessel or person is permitted to enter the special local regulated area without obtaining permission from the COTP or a designated representative. The regulatory text we are establishing appears at the end of this document.

    V. Regulatory Analyses

    We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulated area.

    This special local regulation restricts transit on the Allegheny River from mile 0.0-1.5 for a short duration of 3 hours each day. Vessel traffic will be informed about the special local regulated area through local notices to mariners. Moreover, the Coast Guard will issue Broadcast Notices to Mariners via VHF-FM marine channel 16 about the area and the rule allows vessels to seek permission to transit the area.

    B. Impact on Small Entities

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

    While some owners or operators of vessels intending to transit the special local regulated area may be small entities, for the reasons stated in section V.A above this rule will not have a significant economic impact on any vessel owner or operator.

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

    Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves special local regulated area that would prohibit entry to unauthorized vessels. It is categorically excluded from further review under paragraph 34(h) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 100

    Marine safety, Navigation (water), Reporting and recordkeeping requirements, and Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERWAYS 1. The authority citation for part 100 continues to read as follows: Authority:

    33 U.S.C. 1233.

    2. Add § 100.35T08-0541 to read as follows:
    § 100.35T08-0541 Special Local Regulation; Allegheny River Mile 0.0 to 1.5, Pittsburgh, PA.

    (a) Location. All waters of the Allegheny River beginning at mile marker 0.0 and ending at mile marker 1.5 at Pittsburgh, PA.

    (b) Periods of Enforcement. This rule will be enforced from 6 a.m. to 9 a.m. on August 13, 2016 and August 14, 2016. The COTP or a designated representative will inform the public through broadcast notice to mariners of the enforcement period for the special local regulation.

    (c) Regulations. (1) In accordance with the general regulations in § 100.801 of this part, entry into this area is prohibited unless authorized by the COTP or a designated representative.

    (2) Persons or vessels requiring entry into or passage through the area must request permission from the COTP or a designated representative. The COTP representative may be contacted at 412-221-0807.

    L. McClain, Jr., Commander, U.S. Coast Guard, Captain of the Port Pittsburgh.
    [FR Doc. 2016-19138 Filed 8-11-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0752] Drawbridge Operation Regulation; Rockaway Inlet, Queens, NY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Marine Parkway Bridge across the Rockaway Inlet, mile 3.0, at Queens, New York. This deviation is necessary to allow the bridge owner to replace span guide rollers, counterweight guide shoes and trunnion journal at the bridge.

    DATES:

    This deviation is effective from 7 a.m. on October 17, 2016 to 5 p.m. on October 28, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0752] 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.

    FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Judy Leung-Yee, Project Officer, First Coast Guard District, telephone (212) 514-4330, email [email protected].

    SUPPLEMENTARY INFORMATION:

    The Marine Parkway Bridge, mile 3.0, across the Rockaway Inlet, has a vertical clearance in the closed position of 55 feet at mean high water and 59 feet at mean low water. The existing bridge operating regulations are found at 33 CFR 117.795(a).

    The waterway is transited by commercial barge traffic of various sizes.

    The bridge owner, MTA Bridges and Tunnels, requested a temporary deviation from the normal operating schedule to replace span guide rollers, counterweight guide shoes and trunnion journal at the bridge.

    Under this temporary deviation, the Marine Parkway Bridge shall remain in the closed position from 7 a.m. on October 17, 2016 to 5 p.m. October 28, 2016.

    Vessels able to pass under the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass.

    The Coast Guard will inform the users of the waterways through our Local Notice and Broadcast to Mariners of the change in operating schedule for the bridge so that vessel operations can arrange their transits to minimize any impact caused by the temporary deviation. The Coast Guard notified various companies of the commercial oil and barge vessels and they have no objections to 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 effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: August 9, 2016. C.J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
    [FR Doc. 2016-19189 Filed 8-11-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 Drawbridge Operation Regulations CFR Correction In Title 33 of the Code of Federal Regulations, Parts 1 to 124, revised as of July 1, 2015, on page 639, in § 117.799, paragraph (j) is removed. [FR Doc. 2016-19344 Filed 8-11-16; 8:45 am] BILLING CODE 1505-01-D DEPARTMENT OF EDUCATION 34 CFR Chapter III [Docket ID ED-2016-OSERS-0018; CFDA Number: 84.160D.] Final Priority—Training of Interpreters for Individuals Who Are Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind Program AGENCY:

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

    ACTION:

    Final priority.

    SUMMARY:

    The Assistant Secretary for Special Education and Rehabilitative Services announces a final priority under the Training of Interpreters for Individuals Who Are Deaf or Hard of Hearing and Individuals Who Are Deaf-Blind Program. The Assistant Secretary may use this priority for competitions in fiscal year 2016 and later years. We take this action to provide training and technical assistance to better prepare novice interpreters to become highly qualified, nationally certified sign language interpreters.

    DATES:

    This priority is effective September 12, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Kristen Rhinehart-Fernandez, U.S. Department of Education, 400 Maryland Avenue SW., Room 5062, Potomac Center Plaza (PCP), Washington, DC 20202-2800. Telephone: (202) 245-6103 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: Under the Rehabilitation Act of 1973 (Rehabilitation Act), as amended by the Workforce Innovation and Opportunity Act (WIOA), the Rehabilitation Services Administration (RSA) makes grants to public and private nonprofit agencies and organizations, including institutions of higher education, to establish interpreter training programs or to provide financial assistance for ongoing interpreter training programs to train a sufficient number of qualified interpreters throughout the country. The grants are designed to train interpreters to effectively interpret and transliterate using spoken, visual, and tactile modes of communication; ensure the maintenance of the interpreting skills of qualified interpreters; and provide opportunities for interpreters to improve their skills in order to meet both the highest standards approved by certifying associations and the communication needs of individuals who are deaf or hard of hearing and individuals who are Deaf-blind.

    Program Authority:

    29 U.S.C. 772(f).

    Applicable Program Regulations: 34 CFR part 396.

    We published a notice of proposed priority (NPP) for this competition in the Federal Register on May 6, 2016 (81 FR 27375). That notice contained background information and our reasons for proposing the particular priority.

    Public Comment: In response to our invitation in the notice of proposed priority, 25 parties submitted comments on the proposed priority.

    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 proposed priority.

    Analysis of Comments and Changes: An analysis of the comments and of any changes in the priority since publication of the notice of proposed priority follows.

    Specialty Training Supported Through This Priority

    Comment: A number of commenters recommended continuing the specialty area training developed in prior grant cycles for deaf-blind interpreting, health care interpreting, legal interpreting, trilingual interpreting in American Sign Language (ASL)/English/Spanish, deaf self-advocacy training (DSAT), interpreting in a Vocational Rehabilitation (VR) setting, interpreting provided by deaf 1 interpreters, and video remote interpreting and video relay interpreting. The commenters stated that these specialty areas are growing or emerging practice areas and that prior grant cycles only laid the foundation for them. Therefore, commenters recommended the Department of Education (Department) support specialty training in eight specific areas that were funded in prior grant cycles.

    1 As used in this notice, the word “deaf” refers to (1) “deaf” and “Deaf” people, i.e., to the condition of deafness; (2) to “deaf, hard of hearing, and Deaf-Blind”; and (3) to individuals who are culturally Deaf and who use ASL. When we use “Deaf,” we refer only to the third group.

    First, commenters supported trilingual interpreting in ASL/English/Spanish and argued that there is still a critical need for more training for interpreters in Spanish-influenced settings. One commenter stated that existing training developed for ASL/English/Spanish is still in its very initial stages and, if continued, has the potential to develop model partnerships that could be replicated into a training process for other spoken languages.

    Second, commenters supported continued funding for training for deaf-blind interpreting. They indicated that deaf-blind consumers are one of the least well-served groups and there continues to be a critical need to increase the number of interpreters skilled in this area. For example, one commenter shared that there is a new movement occurring within the deaf-blind community around the concept of “pro-tactile,” which is altering the nature of communication, language, leadership, and interaction, and is one of the new areas in which interpreters need to be skilled to effectively work with individuals who are deaf-blind.

    Finally, one commenter stated that the importance of accessible and advanced training for interpreters in healthcare and legal settings is underscored in a report entitled “Preparing Interpreters for Tomorrow: Report on a Study of Emerging Trends in Interpreting and Implications for Interpreter Education.” This report was prepared by a current grantee under this program, the National Interpreter Education Center, Northeastern University, in January 2015. According to this report, interpreters and consumers continue to identify these two specialty areas as areas of priority training needs for interpreters.

    Discussion: We agree that there continues to be a critical need for more training in some of the specialty areas funded in the 2010-2016 grant cycle and in earlier cycles. For example, the U.S. Department of Labor predicts that “employment of interpreters and translators is expected to grow 42 percent from 2010 to 2020 and the demand for American Sign Language (ASL) interpreters is expected to grow rapidly. . . .” 2 Therefore, we have concluded that applications may be submitted for specialty training areas developed in the 2010-2016 grant cycles for deaf-blind interpreting, health care interpreting, legal interpreting, trilingual interpreting in ASL/English/Spanish, interpreting in a Vocational Rehabilitation (VR) setting, interpreting provided by Deaf interpreters, and video remote interpreting and video relay interpreting.

    2 Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2012-13 Edition, Interpreters and Translators, on the Internet at www.bls.gov/ooh/media-and-communication/interpreters-and-translators.htm (visited June 3, 2016).

    Specific to trilingual interpreting, we also believe there may be parts of the country where multiple languages are spoken by deaf individuals. Therefore, we are permitting applicants to address multiple language combinations in their proposals.

    However, we believe it would be an inefficient use of Federal resources to allocate funds to focus solely on replicating rather than scaling up or expanding existing training or to train interpreters where there is no need. Therefore, applicants proposing to provide training in existing specialty areas will be expected to describe how their proposed projects expand on, rather than replicate, existing training in these areas. Applications for training in existing specialty areas will also be expected to specify that they plan to serve areas of the country in which there are not enough interpreters to adequately meet the communication needs of deaf, hard-of-hearing, and deaf-blind consumers.

    Changes: We revised Specialty Area 2: Trilingual interpreting that immediately follows the application requirements in the priority to allow applicants to submit proposals for trilingual interpreting in ASL/English/Spanish. We added language to the priority requiring applicants that propose to continue existing training in trilingual interpreting for English/Spanish/ASL to provide evidence to support the demand for trilingual interpreters in English/Spanish/ASL and, to the extent possible, specify areas of the country in which there are not enough trilingual English/Spanish/ASL interpreters to adequate meet the communication needs of Deaf, hard-of-hearing, and Deaf-blind consumers. We also added language that applicants proposing to continue existing training in ASL/English/Spanish without improvement, update, or addition of new material will not be eligible for funding.

    We added language to Specialty Area 2 to allow applicants to propose multiple language combinations in their proposals. As such, in this specialty area, we will require applicants to propose a framework that will be used to provide trilingual interpreter training and to develop separate modules for each language in order to ensure the training content appropriately addresses the cultural nuances of each language.

    Additionally, we revised Specialty Area 3: Field-initiated projects to allow specialty area training for deaf-blind interpreting, health care interpreting, legal interpreting, interpreting in a Vocational Rehabilitation (VR) setting, interpreting provided by Deaf interpreters, and video remote interpreting and video relay interpreting. We added language requiring that applicants ensure that projects will improve, update, and develop new material for training in these specialty areas. We also added language requiring applicants to demonstrate the demand for interpreters in these specialty areas and, to the extent possible, specify areas of the country in which there are not enough interpreters to adequately meet the communication needs of deaf, hard-of-hearing, and deaf-blind consumers. Finally, we added language that applicants proposing to continue existing training in these areas without improvement, update, or addition of new material will not be eligible for funding.

    Comments: A number of commenters recommended the Department continue to fund DSAT, which was funded from 2010 to 2016 and in prior grant cycles. Commenters stated that, while the DSAT curriculum is complete and available online, further efforts are necessary to increase training opportunities and ultimately reach more deaf individuals. Some of these commenters also described DSAT's ability to improve the advocacy skills of a deaf person by helping to understand the role of the interpreter, the right to be provided interpreting services, and the impact interpreting services have on obtaining, maintaining, and advancing in competitive integrated employment as well as in other situations. Several commenters argued that those who have gone through the training can more effectively advocate not only for themselves but also for other deaf consumers including those who have dysfluent language. A commenter stated that DSAT directly ties into enhanced employment outcomes and creates jobs for deaf individuals as trainers and educators in a variety of settings, including secondary and post-secondary education, community-based agencies, and private practice. Finally, a commenter stated that the DSAT curriculum filled a significant gap experienced by educators, VR counselors, and community agency personnel, such as staff from centers for independent living and community rehabilitation programs.

    Discussion: We recognize and value DSAT for individuals who are deaf and hard of hearing and individuals who are deaf-blind, but the Department has determined not to continue funding for DSAT. We agree that it is important for deaf consumers to understand their basic legal rights and be equipped with knowledge and confidence in order to effectively communicate their preferred accommodations and make appropriate requests as they transition from secondary education to post-secondary settings and competitive integrated employment. For this program, however, every specialty area project must be focused specifically on interpreting, which DSAT is not. We believe that funding the specialty areas described in this notice will provide interpreters with critically needed skills.

    There are other vehicles funded by the Department that protect and advocate for individuals with disabilities, many of which teach self-advocacy skills. For example, the Client Assistance Program (CAP) is designed to advise and inform clients, client applicants, and other individuals with disabilities of all the available services and benefits under the Rehabilitation Act of 1973, as amended, and of the services and benefits available to them under Title I of the Americans with Disabilities Act (ADA). In addition, CAP grantees may assist and advocate for clients and client applicants about projects, programs, and services provided under the Rehabilitation Act. In providing assistance and advocacy under Title I of the Rehabilitation Act, a CAP agency may provide assistance and advocacy about services directly related to employment for the client or client applicant.

    The Department also funds Parent Training and Information Centers (PTI centers) authorized under the Individuals with Disabilities Education Act (IDEA). Each State has at least one PTI center to provide training and information to students with disabilities and their families about their rights and services under IDEA. In addition, RSA currently funds seven State and regional PTI centers under section 303(c) of the Rehabilitation Act. All of these PTI centers provide training and information to enable individuals and their families to participate more effectively in meeting the vocational, independent living, and rehabilitation needs of such individuals.

    Finally, the Centers for Independent Living authorized under title VII of the Rehabilitation Act and administered by the Department of Health and Human Services provide advocacy services for individuals with disabilities, and the modules developed on DSAT are among the tools they may use to teach deaf consumers to advocate for their rights. The existence of the programs described here, and their ability to use DSAT materials developed in previous grant cycles make it less necessary to continue to support DSAT through this competition.

    We also believe that there is sufficient demand in the market for DSAT to sustain the curriculum without Federal investment. Since the DSAT curriculum was unveiled in 2010, more than 2,000 deaf, hard of hearing, and deaf-blind consumers have attended a DSAT consumer training and more than 250 deaf, hard of hearing, and deaf-blind individuals have been trained as DSAT trainers. In 2013, the DSAT curriculum was expanded to include deaf-blind-specific adaptations, and 10 deaf-blind individuals undertook a rigorous four-day deaf-blind self advocacy training (DBSAT) train the trainer course in preparation to provide future DBSAT to their peers.

    We agree that the DSAT curriculum fills a significant gap experienced by educators, VR counselors, and community agency personnel, such as staff from centers for independent living and community rehabilitation programs. For example, as part of the Postsecondary Educational Programs Network (pepnet 2) Building State Capacity Summit, the team from Georgia recognized the value of the training materials and focused their five-year plan on improving self-advocacy and self-determination skills among deaf and hard of hearing high school and middle school students across the State. After piloting the project, they have worked closely with DSAT trainers to ensure that the curriculum addressed the needs of the population served. We expect that these and other strategies for using the existing DSAT materials will grow.

    Change: None.

    Comment: One commenter stated that the proposed priority is unnecessarily narrow and restrictive; needs greater input from more perspectives, especially those of the deaf communities to be served by the funding; and should embrace creativity and innovation. The commenter maintained that, while the emphasis on evidence and data that the proposed priority encourages is important, more evidence to support the proposed priority would have been useful as well.

    Discussion: We do not agree that the priority is narrow or restrictive. However, we agree that creativity, innovation, and input from multiple perspectives are important for this program. Accordingly, in addition to the specialty areas the Department specified in this priority, we are also seeking field-initiated projects. While only one report was cited as support in the background section of the notice of proposed priority for this program, we acknowledge there are other works of research in the field of interpreter training that are equally valid. Therefore, for each area of specialty training, applicants may consult and incorporate relevant studies and evidence into their proposals.

    Change: None.

    Eligibility Requirements

    Comments: A few commenters recommended the Department change the requirement in the priority that prevents applicants from submitting different proposals under more than one specialty area.

    Another commenter asked whether an application may focus on multiple specialty areas, such as dysfluent language competencies and trilingual interpreting. For example, the commenter stated that for many deaf refugees in the United States, ASL is their first readily accessible language, and it becomes their primary communication choice despite their recent acquisition of this language. These individuals could benefit from interpreters who trained as trilingual interpreters and are familiar with working with dysfluent individuals.

    Discussion: We agree that applicants should be able to submit different proposals for different specialty areas. However, the proposed components of the project (i.e., the competencies working interpreters must demonstrate in order to provide high-quality services in the identified specialty area, as well as the design, delivery of training, and evaluation) must be tailored to the specific specialty area. Applications proposing the same content for multiple specialty areas will not be considered.

    We also agree that applicants may submit proposals that focus on more than one specialty area. We regard these combined proposals as field-initiated topics that should be submitted under Specialty Area 3.

    However, as to the comment suggesting combining dysfluent language competencies and trilingual interpreting, we believe applicants could include trilingual interpreting as a secondary focus for working interpreters along with training in dysfluent language competencies. Applications for this combination should still be submitted under Specialty Area 1.

    Changes: We revised the specialty areas that immediately follow the application requirements in the priority in order to allow applicants to submit different proposals under more than one specialty area and to allow applicants to submit proposals that combine areas of specialty training. We added language directing proposals combining areas of specialty training to be submitted under Specialty Area 3: Field-initiated topics.

    Under Specialty Area 1, we added language allowing applicants to include trilingual interpreting as a secondary focus for working interpreters who may require both training as trilingual interpreters and gaining familiarity working with dysfluent individuals.

    Comment: One commenter recommended removing the proposed eligibility requirement for applicants under “Specialty Area 3: Field-initiated topics” in order to allow topics focused on interpreting for pre-K to grade 12 students. The commenter suggested that one way to address the increase in providing services to deaf individuals with idiosyncratic and dysfluent language is to ensure that educational interpreters working in pre-K to grade 12 have the training and supports they need to effectively serve students.

    Discussion: Programs that prepare working interpreters to work in pre-K to grade 12 are not eligible because the focus of this program is to prepare interpreters to work in VR settings. To that end, we chose to limit eligible applicants to those programs that provide training to interpreters in such settings. We acknowledge there is emphasis in the Workforce Innovation and Opportunity Act (WIOA) on providing services and support to transition-age youth. However, the Department has other resources to support programs preparing pre-K to grade 12 personnel. For example, the Department currently funds grant awards under the IDEA Personnel Preparation in Special Education, Early Intervention, and Related Services program to improve the quality and increase the number of personnel who are fully credentialed to serve children, including infants and toddlers, with disabilities, especially in areas of chronic personnel shortage, by supporting projects that prepare special education, early intervention, and related services personnel at the baccalaureate, master's, and specialist levels. More specifically, this program funds a specialty area to serve school-age children with low incidence disabilities by training personnel who serve children with low incidence disabilities, such as visual impairments, hearing impairments, and simultaneous visual and hearing impairments. Projects preparing educational interpreters are eligible under this focus area. For these reasons, we have chosen to limit applicants under this competition to those who train interpreters to work in VR settings.

    Change: None.

    Comments: Several commenters noted that the priority does not specify entities eligible to apply for funds, such as associate of the arts (AA) programs, associate in applied sciences (AAS) programs, baccalaureate degree ASL-English programs accredited by the Commission on Collegiate Interpreter Education (CCIE), and non-CCIE-accredited baccalaureate degree ASL-English programs. Many commenters recommended that eligible applicants be degree-granting institutions with a demonstrated track record of relationships with relevant stakeholders such as the National Association of the Deaf, Registry of Interpreters for the Deaf, Conference of Interpreter Trainings, and others, as appropriate.

    Discussion: Under the statute authorizing this program (section 302(f)(1)(A) of the Rehabilitation Act of 1973, as amended), eligible applicants are States and public or nonprofit agencies and organizations, including American Indian tribes and institutions of higher education, which includes CCIE-accredited and non-CCIE-accredited baccalaureate degree ASL-English programs. We do not believe further clarification in the priority is needed.

    As a technical matter, AA/AAS programs are eligible, but the focus of this program is to prepare working interpreters to work in VR settings. To that end, in order to be eligible, applicants must be able to provide training to working interpreters in such settings, and such applicants would typically be institutions granting baccalaureate degrees.

    Change: None.

    Working Interpreter

    Comments: Several commenters recommended expanding the proposed definition of “working interpreter.” One commenter noted that there may be a number of certified, qualified deaf interpreters who would otherwise be successful participants but do not possess a baccalaureate degree in ASL-English interpretation. Other commenters recommended aligning the definition of “working interpreter” with requirements established by the Registry of Interpreters for the Deaf (RID). One commenter indicated RID requires interpreters to possess a baccalaureate degree in order to be eligible for generalist certification, with certain limited exceptions. RID does not currently specify the type of degree a candidate must possess but instead recognizes that any baccalaureate degree represents a liberal arts education that sets a strong foundation of critical thinking and broad world view. Therefore, this commenter suggested the Department create an equivalency determination when the degree requirement would unnecessarily exclude underrepresented populations.

    For example, the commenter stated that equivalent alternative criteria that could be allowable in lieu of the educational requirements might include life experience, years of professional experience, and years of education (credit hours) not totaling a formal degree. The commenter noted that RID also accepts continuing education credits in addition to these other requirements in order to satisfy the educational equivalency requirements.

    Discussion: We agree that we should expand the definition of “working interpreter” to more closely align with RID requirements. This will avoid unnecessarily limiting the pool of qualified participants and promote participation within projects.

    Change: We amended the definition of “working interpreter” in the first paragraph of the final priority to include interpreters with a baccalaureate degree in ASL-English who possess a minimum of three years of relevant experience as an interpreter or equivalence such as relevant professional experience and years of education (credit hours) not equivalent to a formal degree.

    Credentials and Certifications

    Comments: Some commenters indicated that the priority does not mention credentials that participants must achieve upon successful completion of the training program. One commenter recommended the Department consider other available national-level credentials that are equivalent to credentials awarded by the RID. Another commenter suggested the Department consider State-level certification or licensure, such as the Board for Evaluation of Interpreters (BEI), for certification or licensure to offer interpreting services within the State. One commenter noted that the BEI testing options include basic, advanced, and master's level certification tests, as well as testing in legal interpreting, trilingual interpreting, a certified deaf interpreter test, and a soon-to-be-released medical interpreting test.

    Discussion: The priority does not designate a specific certification as a desired outcome for this program, nor does it require participants to achieve a designated certification upon successful completion in the program. However, applicants may choose to award continuing education credits or college or master's level credits to participants in the training program and we encourage applicants to consider doing so.

    We believe there is limited information available on the reliability and validity of assessments used by States to confer certifications and licensures. For example, in some cases, an individual pays a fee to receive a license to work as an interpreter in a State, regardless of skill or competency. In other cases, assessments, such as the BEI, are State specific, and there is no information about how the specific levels of skills and competencies they assess compare with the level of skills and competencies required to pass other State-level licensure tests.

    Applicants may use national and State-level licensures and certifications, as applicable, to assess participant progress in competency and skill level. Any proposed instruments must be valid and reliable and the applicant must submit a rationale to support the use of each instrument. However, the Department does not consider it appropriate at this time to require all applicants to adopt specific national or State-level certifications or licensures.

    Change: None.

    Comment: One commenter stated that the priority requires trainers to be certified or recognized in the specialty area of training, but does not believe there is enough data to determine whether there are enough trainers in specialty areas to meet this requirement.

    The commenter also does not believe there is data to indicate whether a sufficiently large pool of working interpreters that possess baccalaureate degrees in ASL-English and three years of interpreting experience who also possess competence in the proposed specialty training areas.

    This commenter recommended the Department include flexibility on the qualifications of trainers, as well in the definition of “working interpreter.”

    Discussion: We believe the priority provides sufficient flexibility on the qualifications of trainers. Under paragraph (b)(2) of the requirements for this program, applicants may identify and partner with trainers who are either certified or recognized in the specialty area through formal or informal certification. If certification is not available in the specialty area, applicants may provide evidence of relevant training and experience (e.g., provide a portfolio that includes training verification, video samples, letters of support from consumers and employers, etc.).

    As stated earlier, we have also amended the definition of “working interpreter” to include interpreters with a baccalaureate degree in ASL-English who possess a minimum of three years of relevant experience as an interpreter or equivalence such as relevant professional experience, and years of education (credit hours) not totaling a formal degree.

    Change: None.

    Project Requirements

    Comment: One commenter asked the Department to clarify the baseline numbers against which “increased” numbers will be measured for project outcomes (i.e. an increase in the number of interpreters who are trained to work with deaf consumers who require specialized interpreting and an increase in the number of interpreters trained in specialty areas who obtain or advance in employment in the areas for which they were prepared).

    Discussion: We intend for applicants to provide baseline data in their applications for the actual or estimated number of working interpreters currently trained in a specialty area. We acknowledge that baseline numbers may not be available to applicants proposing to develop training in topics that address new specialty areas. In those cases, we will accept zero as a baseline, provided that the applicants adequately explain the lack of data to establish a baseline. We also expect applicants to provide a target number of new working interpreters that will be trained in a specialty area.

    Change: We added a new paragraph (a)(2) to the requirements to clarify baseline and target data that must be included in the application.

    Comments: One commenter recommended that the Department clarify the purpose of the coordination and communication requirement in paragraph (c)(10)(iv)(B). For example, one commenter asked if this requirement allows applicants to interact with specific projects funded by the Department, such as the IDEA Personnel Development to Improve Services and Results for Children with Disabilities Program, which can support projects focused on K-12 interpreting.

    One commenter recommended interaction with other Department-funded projects and stated that dysfluent language evident in deaf adults can be traced, in part, to inadequate language models early in life. According to this commenter, coordination of interpreter education efforts between children and adults could be a key step to addressing dysfluency among future Deaf generations.

    Discussion: We intended for the language in requirement (c)(10)(iv)(B) to mean that grantees would communicate, coordinate, and collaborate with other Department-funded projects for the purposes of exchanging relevant information such as outcome data and promising practices, as well as disseminating training material and products developed under this program. Applicants may also communicate, coordinate, and collaborate with other Department-funded projects for the purposes of informing, improving, and strengthening training developed under this program. The priority does not require formal relationships (e.g., memoranda of understanding) with other Department-funded projects.

    We will not further specify how this communication, collaboration, or coordination will occur because we believe applicants are well suited to make this determination.

    Change: None.

    Comment: One commenter asked for clarification of the second paragraph under the proposed priority concerning whether pre-service training is an allowable project activity. The commenter suggested the Department consider allowing the development of content for pre-service training because it could have a positive long-term impact on the quality of interpreting.

    Discussion: Pre-service training is not the focus of this priority. The priority states that applicants may develop a new training program or stand-alone modules that could also be incorporated into an existing baccalaureate degree ASL-English program. Applicants are expected to develop and deliver training of sufficient scope, intensity, and duration for working interpreters to achieve increased skill, knowledge, and competence in a specialty area. However, applicants may consider a variety of resources (such as available pre-service training material) that may inform, support, or strengthen the development of training for English-ASL interpreter training in specialized areas. As a result of new training curricula established through this program, pre-service training modules could be developed as a “feeder” into existing baccalaureate degree ASL-English programs.

    Change: None.

    Comment: One commenter suggested that project timelines be proposed, but not required, in the priority. The commenter reasoned that the requirement to develop training materials and curricula in a single year and then implement them over the following four years is not unreasonable but noted that, with a focus on new specialty training areas, a complete curriculum could require two or more years to develop. The commenter also recommended that the timeline in each application be reviewed on its own merits. For example, an application to address training in a new specialty area may require more time, funding, and extended collaboration to fully develop a curriculum. On the other hand, an application that demonstrates the intention of building on, enhancing, or significantly revising a previously developed curriculum might be completed more quickly.

    Discussion: We agree that an application to address training in a new specialty area may require more time to fully develop a curriculum. Therefore, if applicants determine additional time may be necessary to fully develop a curriculum and obtain input and feedback from key partners, relevant stakeholders, and consumers, they must provide adequate justification in their application.

    Change: In the final priority we have added that applicants must provide adequate justification in their application if they determine additional time may be necessary to fully develop a curriculum and obtain input and feedback from key partners, relevant stakeholders, and consumers.

    Administration of the Grants

    Comment: One commenter suggested the Department award these projects as cooperative agreements rather than grants. Another commenter stated that implementing a cooperative agreement for this funding would be a positive strategy to monitor quality and achievement of proposed goals. This commenter further stated that providing transparent decision-making by RSA, with open and explicit rationales for funding choices and re-funding choices, is needed in order to insure that an evaluation is effectively conducted and that funds are awarded (or withheld) based on evidence of effective program management. This commenter urged the Department to require transparent reporting by, and evaluation of, the grantee that is easily and quickly accessible and that encourages public input at every evaluation point, in order to help insure that such evaluation is incorporated and integrated throughout.

    Discussion: The priority does not specify whether these projects would be awarded as cooperative agreements. The Department has flexibility to make this determination, and we will announce that decision in the notice inviting applications. As to the commenter's recommendation that the Department involve the public in reporting by grantees and evaluation of the projects, the Department already has established processes and procedures for monitoring project performance. Further, the Notice Inviting Applications will specify annual and final reporting requirements and performance measures.

    The Department is committed to transparency and will make available to the public abstracts of successful applications. Products produced as a result of these grants will be made available to the public through the National Clearinghouse of Rehabilitation Training Materials.

    Change: None.

    Final Priority: This notice contains one final priority.

    Interpreter Training in Specialty Areas.

    Final Priority: The purpose of this priority is to fund projects that provide training for English-American Sign Language (ASL) interpreter training in specialty areas. The training must be provided to working interpreters (e.g., interpreters with a baccalaureate degree in ASL-English who possess a minimum of three years of relevant experience as an interpreter or equivalence such as relevant professional experience, and years of education (credit hours) not totaling a formal degree) who need to develop a new skill area or enhance an existing skill area. Within this final priority, the Assistant Secretary intends to fund training in the following specialty areas: (1) Interpreting for consumers with dysfluent language competencies (e.g., individuals who use idiosyncratic signs or display limited first language competency in either spoken or sign language, due to delayed acquisition of the first language); (2) trilingual interpreting (e.g., language fluency in first, second, and third languages with one of the three languages being ASL); and (3) field-initiated topics.

    During the project, applicants must develop and deliver training of sufficient scope, intensity, and duration for working interpreters to achieve increased skill, knowledge, and competence in a specialty area. Applicants may develop a new training program or stand-alone modules that could also be incorporated into an existing baccalaureate degree ASL-English program. The training program or modules must be developed by the end of the first year of the project period and delivered in years two, three, four, and five of the project period. Applicants must provide adequate justification in their application if they determine additional time may be necessary to fully develop a curriculum and obtain input and feedback from key partners, relevant stakeholders, and consumers.

    The projects must be designed to achieve, at a minimum, the following outcomes:

    (a) An increase in the number of interpreters who are trained to work with deaf consumers who require specialized interpreting; and

    (b) An increase in the number of interpreters trained in specialty areas who obtain or advance in employment in the areas for which they were prepared.

    To be considered for funding, applicants must meet the requirements contained in this final priority, which are as follows:

    (a) Demonstrate, in the narrative section of the application under “Significance of the Project,” how the proposed project will address the need for sign language interpreters in a specialty area. To address this requirement, applicants must:

    (1) Present applicable data demonstrating the need for interpreters in the specialty area for which training will be developed by the project in at least three distinct, noncontiguous geographic areas, which may include the U.S. Territories;

    (2) Present baseline data for the number or estimated number of working interpreters currently trained in a specialty area. In the event that an applicant proposes training in a new specialty area that does not currently exist or for which there are no baseline data, the applicant should provide an adequate explanation of the lack of reliable data and may report zero as a baseline;

    (3) Explain how the project will increase the number of working interpreters in a specialty area who demonstrate the necessary competencies to meet the communication needs of individuals who are deaf, hard of hearing, or deaf-blind. To meet this requirement, the applicant must—

    (i) Identify competencies that working interpreters must demonstrate in order to provide high-quality services in the identified specialty area using practices that are promising or based on instruction supported by evidence and intervention, when available; and

    (ii) Demonstrate that the identified competencies are based on practices that are promising or supported by evidence that will result in effectively meeting the communication needs of individuals who are deaf, hard of hearing, or deaf-blind.

    (b) Demonstrate, in the narrative section of the application under “Quality of Project Design,” how the proposed project will—

    (1) Provide training in person or remotely to at least three distinct, noncontiguous geographic areas identified in paragraph (a)(1);

    (2) Identify and partner with trainers who are certified and recognized in the specialty area through formal or informal certification to develop and deliver the training. If certification is not available in the specialty area, provide evidence of relevant training and experience (e.g., provide a portfolio that includes training verification, video samples, letters of support from consumers and employers, etc.);

    (3) Be based on current research and make use of practices that are promising or supported by evidence. To meet this requirement, the applicant must describe—

    (i) How the proposed project will incorporate current research and practices that are promising or supported by evidence in the development and delivery of its products and services;

    (ii) How the proposed project will engage working interpreters with different learning styles; and

    (iii) How the proposed project will ensure that working interpreters interact with deaf individuals who have a range of communication skills, from those with limited language skills to those with high-level, professional language skills.

    (c) In the narrative section of the application under “Quality of Project Services,” the applicant must—

    (1) Demonstrate how the project will ensure equal access and treatment for eligible project participants who are members of groups who have traditionally been underrepresented based on race, color, national origin, gender, age, or disability;

    (2) Describe the criteria that will be used to identify high-quality applicants for participation in the program, including any pre-assessments that may be used to determine the skill, knowledge base, and competence of the working interpreter;

    (3) Describe the recruitment strategies the project will use to attract high-quality working interpreters, including specific strategies targeting high-quality participants from traditionally underrepresented groups (e.g., individuals with disabilities and individuals living in remote areas);

    (4) Describe how the project will ensure that all training activities and materials are fully accessible;

    (5) Describe the approach that will be used to enable more working interpreters to participate in and successfully complete the training program, specifically participants who need to work while in the program, have child care or elder care considerations, or live in geographically isolated areas. The approach must emphasize innovative instructional delivery methods, such as distance learning or block scheduling (a type of academic scheduling that offers students fewer classes per day for longer periods of time), which would allow working interpreters to more easily participate in the program;

    (6) Describe the approach that will be used to enable working interpreters to successfully complete the program or stand-alone modules, to include mentoring, monitoring, and accommodation support services;

    (7) Describe how the project will incorporate practices that are promising and supported by evidence for adult learners;

    (8) Demonstrate how the project is of sufficient scope, intensity, and duration to adequately prepare working interpreters in the identified specialty area of training. To address this requirement, the applicant must describe how—

    (i) The components of the proposed project will support working interpreters' acquisition and enhancement of the competencies identified in paragraph (a)(2)(i);

    (ii) The components of the project will allow working interpreters to apply their content knowledge in a practical setting;

    (iii) The proposed project will provide working interpreters with ongoing guidance and feedback; and

    (iv) The proposed project will provide ongoing induction opportunities and support working interpreters after completion of the specialty area program.

    (9) Demonstrate how the proposed project will actively engage representation from consumers, consumer organizations, and service providers, especially vocational rehabilitation (VR) agencies, interpreters, interpreter training programs, and individuals who are deaf and deaf-blind in the project, including project development, design, implementation, delivery of training, dissemination, sustainability planning, program evaluation, and other relevant areas as determined by the applicant;

    (10) Describe how the project will conduct dissemination and coordination activities. To meet this requirement, the applicant must—

    (i) Describe its plan for disseminating information to and coordinating with VR agencies, American Job Centers and other workforce partners regarding finding interpreters with the specialized interpreting skills needed; disseminating information to working interpreters about training available in the specialty area, and broadly disseminating successful strategies for preparing working interpreters in a specialty area;

    (ii) Describe its strategy for disseminating products developed during the project period. To meet this requirement the applicant must—

    (A) Develop and maintain a state-of-the-art archiving and dissemination system that is open and available to the public and provides a central location for later use of training materials, including curricula, audiovisual materials, Webinars, examples of emerging and promising practices, and any other relevant material;

    (B) Provide a minimum of three Webinars or video conferences over the course of the project. Applicants may determine the audience, content, and goals of this activity. For instance, applicants may consider disseminating information to working interpreters not enrolled in the program about training in a specialty area, as well as interacting with interpreter educators about the curriculum or training module design, challenges, solutions, and results achieved.

    Note:

    All products produced by the grantees must meet government- and industry-recognized standards for accessibility, including section 508 of the Rehabilitation Act.

    (iii) Describe its approach for incorporating the use of information technology (IT) into all aspects of the project. The approach must include establishing and maintaining a state-of-the-art IT platform that is sufficient to support Webinars, teleconferences, video conferences, and other virtual methods of dissemination of information.

    Note:

    In meeting the requirements mentioned in paragraphs (c)(10)(ii)(A) and (B) and (c)(10)(iii) above, projects may either develop new platforms or systems or may modify existing platforms or systems, so long as the requirements of this priority are met.

    (iv) Describe its approach for conducting coordination and collaboration activities. To meet this requirement, the applicant must—

    (A) Establish a community of practice 3 in the specialty area of training that focuses on project activities in this priority and acts as a vehicle for communication and exchange of information among participants in the program and other relevant stakeholders;

    3 A community of practice (CoP) is a group of people who work together to solve a persistent problem or to improve practice in an area that is important to them and who deepen their knowledge and expertise by interacting on an ongoing basis. CoPs exist in many forms, some large in scale that deal with complex problems, others small in scale that focus on a problem at a very specific level. For more information on communities of practice, see: www.tadnet.org/pages/510.

    (B) Communicate, collaborate, and coordinate with other relevant Department-funded projects, as applicable;

    (C) Maintain ongoing communication with the RSA project officer and other RSA staff as required; and

    (D) Communicate, collaborate, and coordinate, as appropriate, with key staff in State VR agencies, such as the State Coordinators for the Deaf; State and local partner programs; consumer organizations and associations, including those that represent individuals who are deaf, hard of hearing, deaf-blind, and late deafened; and relevant RSA partner organizations and associations.

    (d) In the narrative section of the application under “Quality of the Evaluation Plan,” include an evaluation plan for the project. To address this requirement, the evaluation plan must describe—

    (1) An approach, using pre- and post-assessments, for assessing the level of knowledge, skills, and competencies gained among participants;

    (2) An approach for assessing the application of knowledge, skills, and competencies after completion; and

    (3) An approach for incorporating oral and written feedback from trainers, from deaf consumers, and any feedback from mentoring sessions conducted with the participants;

    (4) Evaluation methodologies, including instruments, data collection methods, and analyses that will be used to evaluate the project;

    (5) Measures of progress in implementation, including the extent to which the project's activities and products have reached their target populations; intended outcomes or results of the project's activities in order to evaluate those activities; and how well the goals and objectives of the proposed project, as described in its logic model,4 have been met;

    4 A logic model communicates how the project will achieve its intended outcomes and provides a framework for both the formative and summative evaluations of the project.

    (6) How the evaluation plan will be implemented and revised, as needed, during the project. The applicant must designate at least one individual with sufficient dedicated time, experience in evaluation, and knowledge of the project to coordinate the design and implementation of the evaluation. For example, coordination with any identified partners in the application and RSA to make revisions post award to the logic model in order to reflect any changes or clarifications to the model and to the evaluation design and instrumentation with the logic model (e.g., designing instruments and developing quantitative or qualitative data collections that permit collecting of progress data and assessing project outcomes);

    (7) The standards and targets for determining effectiveness of the project;

    (8) How evaluation results will be used to examine the effectiveness of implementation and the progress toward achieving the intended outcomes; and

    (9) How the methods of evaluation will produce quantitative and qualitative data that demonstrate whether the project activities achieved their intended outcomes.

    (e) Demonstrate, in the narrative section of the application under “Adequacy of Project Resources,” how—

    (1) The proposed project will encourage applications for employment with the project from persons who are members of groups that have historically been underrepresented based on race, color, national origin, gender, age, or disability;

    (2) The proposed project personnel, consultants, and subcontractors have the qualifications and experience to provide training to working interpreters and to achieve the project's intended outcomes;

    (3) The applicant and any identified partners have adequate resources to carry out the proposed activities; and

    (4) The proposed costs are reasonable in relation to the anticipated results and benefits;

    (f) Demonstrate, in the narrative section of the application under “Quality of the Management Plan,” how—

    (1) The proposed management plan will ensure that the project's intended outcomes will be achieved on time and within budget. To address this requirement, the applicant must describe—

    (i) Clearly defined responsibilities for key project personnel, consultants, and subcontractors, as applicable; and

    (ii) Timelines and milestones for accomplishing the project tasks.

    (2) Key project personnel and any consultants and subcontractors will be allocated to the project and how these allocations are appropriate and adequate to achieve the project's intended outcomes, including an assurance that such personnel will have adequate availability to ensure timely communications with stakeholders and RSA;

    (3) The proposed management plan will ensure that the products and services provided are of high quality; and

    (4) The proposed project will benefit from a diversity of perspectives, especially relevant partners, groups, and organizations described throughout this notice, in its development and operation.

    (g) Address the following application requirements. The applicant must—

    (1) Include, in Appendix A, a logic model that depicts, at a minimum, the goals, activities, outputs, and intended outcomes of the proposed project;

    (2) Include, in Appendix A, person-loading charts and timelines, as applicable, to illustrate the management plan described in the narrative; and

    (3) Include, in the budget, attendance at a one-day intensive review meeting in Washington, DC, during the third quarter of the third year of the project period.

    Specialty Areas

    With this final priority, the Secretary intends to fund four national projects in the following specialty areas: (1) Interpreting for consumers with dysfluent language competencies (e.g., individuals who use idiosyncratic signs or display limited first language competency in either spoken or sign language, due to delayed acquisition of the first language); (2) trilingual interpreting (e.g., language fluency in first, second, and third languages with one of the three languages being ASL); and (3) field-initiated topics. Applicants must identify the specific focus area (1, 2, or 3) under which they are applying as part of the competition title on the application cover sheet (SF form 424, line 4).

    Applicants may submit proposals under one or more specialty area. Applications proposing the same content for different specialty areas will not be considered.

    Applicants may combine more than one specialty and these applications must be submitted under Specialty Area 3: Field-initiated topics.

    Specialty Area 1: Interpreting for Consumers With Dysfluent Language Competencies

    Interpreting for deaf and hard of hearing, and deaf-blind consumers with dysfluent language competencies include: (1) Those with limited, idiosyncratic, or differing levels of first and second language fluency in English and ASL); (2) those who have families using non-English spoken languages at home and have limited or no fluency in English and ASL; and (3) those with cognitive and physical disabilities that impact linguistic competencies. Under this specialty area, applicants may include trilingual interpreting as a secondary focus for working interpreters who may require both training as trilingual interpreters and gaining familiarity working with dysfluent individuals.

    Specialty Area 2: Trilingual Interpreting

    Trilingual interpreting is interpreting between three different languages; that is, two spoken languages such as English and Spanish, and ASL. This requires a working interpreter to be competent in three different languages and seamlessly facilitate communication between those languages in real time. RSA is seeking to fund similar projects in trilingual interpreting that includes languages that may be spoken in the United States. Applications may address multiple language combinations. In this instance, applicants must propose a framework that will be used to provide trilingual interpreter training. Applicants must develop separate modules for each language and ensure the training content appropriately addresses the cultural nuances of the language.

    Applicants that choose to focus on trilingual interpreting in English/Spanish/ASL must propose to improve, update, and develop new material to support existing specialty training in this area. Applicants must describe in their application specific improvements, updates, and new material to be developed and provide rationale for why this is needed. Applicants must provide evidence to support the demand for trilingual interpreters in English/Spanish/ASL and, to the extent possible, specify areas of the country in which there are not enough trilingual English/Spanish/ASL interpreters to adequate meet the communication needs of Deaf, hard-of-hearing, and Deaf-blind consumers.

    Trilingual interpreting in English/Spanish/ASL that proposes only to continue existing training developed during the 2010-2016 grant cycle or earlier cycles is not eligible under this priority.

    Specialty Area 3: Field-Initiated Topics

    Field-initiated topics that address the needs of working interpreters to acquire specialized knowledge and competencies. These topics may address new specialty areas that require development of training modules of sufficient intensity, duration, and scope of sequence to warrant funding of an entire grant. Proposed topics may also replace training in an established specialty area that is no longer relevant. For instance, applicants may propose new or updated training, such as interpreting in a VR setting given reauthorization of the Rehabilitation Act, as amended, by WIOA. Applicants may also propose new subsets of training in established specialty areas. For instance, in health care interpreting, mental health might be one permissible subset of training because it has its own unique challenges and complexities in terms of setting and deaf consumer needs. In addition, applicants must provide sufficient evidence to demonstrate the need for the proposed new specialty training project or to show that an existing specialty training project is not adequately meeting the training needs of interpreters in order to better meet the linguistic and communication needs of deaf, hard-of-hearing, and deaf-blind consumers.

    Applicants may also propose to enhance existing training developed in prior grant cycles for deaf-blind interpreting, health care interpreting, legal interpreting, interpreting in a VR setting, interpreting provided by Deaf interpreters, and video remote interpreting and video relay interpreting. In this instance, applicants must propose to improve, update, and develop new material to support existing specialty training in these areas. Applicants must describe in their application specific improvements, updates, and new material to be developed and provide rationale for why this is needed. Applicants must demonstrate the demand for interpreters in these existing specialty areas and, to the extent possible, specify areas of the country in which there are not enough trained interpreters to adequately meet the communication needs of deaf, hard-of-hearing, and deaf-blind consumers.

    Applications that propose only to continue existing training in these areas are not eligible for funding. Additional field-initiated topics not eligible under this final priority include topics focusing on educational interpreting for pre-k-12 and deaf self-advocacy training.

    Note:

    The Secretary intends to fund a total of four projects in FY 2016 that have been awarded at least eighty-percent of the maximum possible points, including at least one project from each of the three specialty areas. As a result, the Secretary may fund applications out of rank order.

    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)).

    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 this priority, we invite applications through a notice in the Federal Register.

    Paperwork Reduction Act of 1995

    As part of its continuing effort to reduce paperwork and respondent burden, the Department provides the general public and Federal agencies with an opportunity to comment on proposed and continuing collections of information in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: the public understands the Department's collection instructions, respondents can provide the requested data in the desired format, reporting burden (time and financial resources) is minimized, collection instruments are clearly understood, and the Department can properly assess the impact of collection requirements on respondents.

    This final priority contains information collection requirements that are approved by OMB under the National Interpreter Education program 1820-0018; this final priority does not affect the currently approved data collection.

    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 this final priority only on a reasoned determination that its benefits justify its 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.

    Through this priority, training will be provided to working interpreters for English-ASL interpreter training in specialty areas. These activities will help interpreters to more effectively meet the communication needs of individuals who are deaf or hard of hearing and individuals who are Deaf-blind. The training ultimately will improve the quality of VR services and the competitive integrated employment outcomes achieved by individuals with disabilities. This priority will promote the efficient and effective use of Federal funds.

    Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

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

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

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site, you can view this document, as well as all other documents of this Department published in the Federal Register, in text or 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: August 9, 2016. Sue Swenson, Acting Assistant Secretary for Special Education and Rehabilitative Services.
    [FR Doc. 2016-19273 Filed 8-11-16; 8:45 am] BILLING CODE 4000-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2012-0959; FRL-9948-11-Region 9] Revisions to the California State Implementation Plan, Sacramento Metropolitan Air Quality Management District AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is finalizing a partial approval and partial disapproval of revisions to the Sacramento Metropolitan Air Quality Management District (SMAQMD or District) portion of the California State Implementation Plan (SIP). This action was proposed in the Federal Register on January 15, 2016 and concerns the District's demonstration regarding Reasonably Available Control Technology (RACT) requirements for the 1997 8-hour ozone National Ambient Air Quality Standard (NAAQS). Under authority of the Clean Air Act (CAA or the Act), this action directs California to correct RACT deficiencies in the SMAQMD portion of the California SIP.

    DATES:

    This rule is effective on September 30, 2016.

    ADDRESSES:

    The EPA has established docket number 1 EPA-R09-OAR-2012-0959 for this action. Generally, documents in the docket for this action are available electronically at www.regulations.gov or in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94015-3901. While all documents in the docket are listed at www.regulations.gov, some information may be publicly available only at the hard copy location (e.g., copyrighted material, large maps), and some may not be publicly 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.

    1 Our proposal indicated that the docket number for this action was EPA-R09-2012-959. This final action corrects the docket number to “0959” to conform to numbering convention.

    FOR FURTHER INFORMATION CONTACT:

    James Shears, EPA Region IX, (213) 244-1810, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Proposed Action II. Public Comments and EPA Responses III. Final Action and CAA Consequences IV. Statutory and Executive Order Reviews I. Proposed Action

    On January 15, 2016 (81 FR 2136), the EPA proposed to partially approve and partially disapprove the following documents that were submitted for incorporation into the California SIP:

    Local agency Document Adopted Submitted SMAQMD Reasonably Available Control Technology (RACT) as Applicable to the 8-hour Ozone Standard, dated October 26, 2006 (“2006 RACT SIP”) 10/26/06 7/11/07 SMAQMD Reasonably Available Control Technology (RACT) Update as Applicable to the 8-Hour Ozone Standard, dated October 23, 2008 (“Updated RACT SIP”) 10/23/08 1/21/09

    We proposed to approve the 2006 RACT SIP and Updated RACT SIP with the exception of Rule 455, Pharmaceutical Manufacturing, and the municipal waste landfill category as satisfying the RACT requirements of CAA section 182(b)(2) and (f).

    Also under CAA section 110(k)(3), we proposed to disapprove those elements of the 2006 RACT SIP and Updated RACT SIP that pertain to Rule 455 and the municipal waste landfill category because we found that these elements did not meet all of the applicable CAA requirements. In particular, we found that Rule 455, Pharmaceuticals Manufacturing, (amended 11/29/83 and 9/5/96) lacks test methods, recordkeeping, and monitoring requirements that are necessary to support enforcement of the rule. See CAA section 110(a). We also found that the California SIP did not contain any provisions to implement RACT for volatile organic compounds (VOCs) at the Kiefer landfill, which is a major source of VOCs located within the Sacramento Metro area.

    SMAQMD's submittal also included a number of negative declarations. CAA Sections 182(b)(2) and (f) require that SIPs for ozone nonattainment areas classified as moderate or above implement RACT for any source covered by a Control Techniques Guidelines (CTG) document and any major stationary source of VOCs or nitrogen oxides (NOX). If an ozone nonattainment area does not have any stationary sources covered by a particular CTG, then the area may submit a negative declaration certifying that there are no such sources in the relevant nonattainment area in lieu of adopting RACT requirements for that category. We proposed approval of SMAQMD's negative declarations because we determined that they complied with relevant CAA requirements.

    Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the 2006 RACT SIP and Updated RACT SIP.

    II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

    III. Final Action and CAA Consequences A. Final Action

    For the reasons provided in our January 15, 2016 proposed rule, the EPA is partially approving and partially disapproving SMAQMD's 2006 RACT SIP and Updated RACT SIP under CAA section 110(k)(3). In particular, we are approving all elements of the 2006 RACT SIP and Updated RACT SIP, with the exception of elements pertaining to Rule 455, Pharmaceutical Manufacturing, and the municipal waste landfill category, as satisfying the RACT requirements of CAA section 182(b)(2) and (f). We are disapproving those elements of the 2006 RACT SIP and Updated RACT SIP that pertain to Rule 455 and the municipal waste landfill category because we have determined that they do not meet all of the applicable CAA requirements.

    B. CAA Consequences of Final Partial Disapproval

    The EPA is committed to working with the District and CARB to resolve the identified RACT deficiencies. We note that SMAQMD will not be required to submit a revised CAA section 182 RACT SIP demonstration for the 1997 8-hour ozone NAAQS if it submits for SIP approval, rules and/or permit provisions that implement RACT for the pharmaceutical manufacturing source category, as well as RACT for VOCs for the Kiefer landfill, and the EPA fully approves them into the SIP. On April 28, 2016, SMAQMD repealed Rule 455 and adopted amendments to Rule 464, Organic Chemical Manufacturing Operations to incorporate the pharmaceutical manufacturing requirements from Rule 455 along with other improvements to implement RACT into Rule 464. SMAQMD plans, in July 2016, to adopt the relevant portions of the Kiefer landfill permit into the SIP to implement RACT.

    Because we are finalizing a partial disapproval of the 2006 RACT SIP and Updated RACT SIP, the EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months of the effective date of this action. In addition, sanctions will be imposed under CAA section 179 and 40 CFR 52.31, unless the EPA approves subsequent SIP revisions that correct the rule deficiencies or issues an interim final determination that submitted revisions correct the deficiencies within 18 months of the effective date of this action.

    IV. Statutory and Executive Order Reviews

    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 CAA section 307(b)(1), petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 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

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

    Dated: May 19, 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)(382)(ii)(C) and (c)(475) to read as follows:
    § 52.220 Identification of plan—in part.

    (c) * * *

    (382) * * *

    (ii) * * *

    (C) Sacramento Metropolitan Air Quality Management District.

    (1) Reasonably Available Control Technology (RACT) as Applicable to the 8-Hour Ozone Standard, dated October 26, 2006, as adopted October 26, 2006, excluding the RACT determinations for:

    (i) Pharmaceutical Products Manufacturing Source Category; and

    (ii) Kiefer Landfill (RACT for volatile organic compounds).

    (475) A new plan for the following AQMD was submitted January 21, 2009 by the Governor's designee.

    (i) [Reserved]

    (ii) Additional Material.

    (A) Sacramento Metropolitan Air Quality Management District.

    (1) Reasonably Available Control Technology (RACT) Update as Applicable to the 8-Hour Ozone Standard, dated October 23, 2008, adopted October 23, 2008.

    3. Section 52.222 is amended by adding paragraph (a)(2)(iv) to read as follows:
    § 52.222 Negative declarations.

    (a) * * *

    (2) * * *

    (iv) Negative declarations for Sacramento Metropolitan Air Quality Management District.

    CTG Source category Negative declaration—CTG reference document Submitted
  • 7/11/07,
  • adopted
  • 10/26/06
  • Updated
  • submitted
  • 1/21/09,
  • adopted
  • 10/23/08
  • Aerospace Coating EPA-453/R-97-004 and 59 FR 29216 (6/06/94)—Control of Volatile Organic Compound Emissions from Coating Operations at Aerospace Manufacturing and Rework Operations X Automobile Coating EPA-450/2-77-008—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks X Dry Cleaning (Petroleum Solvent) EPA-450/3-82-009—Control of Volatile Organic Compound Emissions from Large Petroleum Dry Cleaners X Graphic Arts (Rotogravure) EPA-450/2-78-033—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume VIII: Graphic Arts-Rotogravure and Flexography X Large Appliance Coating EPA-450/2-77-034—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume V: Surface Coating of Large Appliances X Large Appliance Coating EPA-453/R-07-004—Control Techniques Guidelines for Large Appliance Coatings X Magnetic Wire Coating EPA-450/2-77-033—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume IV: Surface Coating for Insulation of Magnetic Wire X Metal Coil Coating EPA-450/2-77-008—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks X Natural Gas/Gasoline Processing EPA-450/2-83-007—Control of Volatile Organic Compound Equipment Leaks from Natural Gas/Gasoline Processing Plants X Paper and Fabric Coating EPA-450/2-77-008—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume II: Surface Coating of Cans, Coils, Paper, Fabrics, Automobiles, and Light-Duty Trucks X Resin Manufacturing (High-Density Polyethylene, Polypropylene, and Polystyrene) EPA-450/3-83-008—Control of Volatile Organic Compound Emissions from Manufacture of High-Density Polyethylene, Polypropylene, and Polystyrene Resins X Refineries EPA-450/2-77-025—Control of Refinery Vacuum Producing Systems, Wastewater Separators and Process Unit Turnarounds X EPA-450/2-78-036—Control of Volatile Organic Compound Leaks from Petroleum Refinery Equipment X Rubber Tire Manufacturing EPA-450/2-78-030—Control of Volatile Organic Emissions from Manufacture of Pneumatic Rubber Tires X Ship Coating 61 FR 44050—Control Techniques Guidelines for Shipbuilding and Ship Repair Operations (Surface Coating) X Wood Coating (Flat Wood Paneling) EPA-450/2-78-032—Control of Volatile Organic Emissions from Existing Stationary Sources, Volume VII: Factory Surface Coating of Flat Wood Paneling X Flat Wood Paneling Coatings EPA-453/R06-004—Control Techniques Guidelines for Flat Wood Paneling Coatings X Paper, Film and Foil EPA-453/R-07-004—Control Techniques Guidelines for Paper, Film, and Foil Coatings X
    4. Section 52.237 is amended by adding paragraph (b) to read as follows:
    § 52.237 Part D disapproval.

    (b) The following Reasonably Available Control Technology (RACT) determinations are disapproved because they do not meet the requirements of Part D of the Clean Air Act.

    (1) Sacramento Air Quality Management District.

    (i) RACT Determinations for the Pharmaceutical Products Manufacturing Source Category and the Kiefer Landfill (volatile organic compounds only), in the submittal titled “Reasonably Available Control Technology (RACT) as Applicable to the 8-Hour Ozone Standard,” dated October 26, 2006, as adopted on October 26, 2006 and submitted on July 11, 2007.

    (ii) [Reserved]

    (2) [Reserved]

    [FR Doc. 2016-18900 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2012-0985; FRL-9950-50-Region 6] Approval and Promulgation of Air Quality Implementation Plans; Texas; Interstate Transport of Air Pollution for the 2008 Ozone National Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is disapproving the portion of a Texas State Implementation Plan (SIP) submittal pertaining to interstate transport of air pollution which will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone National Ambient Air Quality Standard (NAAQS) in other states. Disapproval establishes a 2-year deadline for the EPA to promulgate a Federal Implementation Plan (FIP) for Texas to address the Clean Air Act (CAA) interstate transport requirements pertaining to significant contribution to nonattainment and interference with maintenance of the 2008 ozone NAAQS in other states, unless the EPA approves a SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for Texas.

    DATES:

    This rule is effective on September 12, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2012-0985. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

    FOR FURTHER INFORMATION CONTACT:

    Carl Young, 214-665-6645, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. Background

    This rulemaking addresses an infrastructure SIP submittal from the state of Texas addressing, among other things, the requirements of CAA section 110(a)(2)(D)(i)(I), also known as the good neighbor provision (or interstate transport prongs 1 and 2), with respect to the 2008 ozone NAAQS. The background for this action is discussed in detail in our April 11, 2016 proposal (81 FR 21290). In that action we proposed to disapprove the portion of the December 13, 2012 Texas SIP submittal pertaining to CAA section 110(a)(2)(D)(i)(I) which requires that the State prohibit any emissions activity within the state from emitting air pollutants which will significantly contribute to nonattainment (prong 1) or interfere with maintenance (prong 2) of the 2008 ozone NAAQS in other states.1 In proposing to disapprove the SIP submittal as to prongs 1 and 2 of the good neighbor provision, we noted several deficiencies in Texas' submittal: (1) Texas limited its discussion of data only to areas designated nonattainment in states that are geographically closest to Texas (Arizona, Arkansas, Colorado, Illinois, Indiana, Louisiana, Mississippi, Missouri, Tennessee, and Wisconsin); and (2) Texas did not give the “interfere with maintenance” clause of CAA section 110(a)(2)(D)(i)(I) independent significance because its analysis did not attempt to evaluate the potential impact of Texas emissions on areas that are currently measuring clean data, but that may have issues maintaining that air quality.2 Finally, the EPA explained that Texas and other states could no longer rely on the implementation of the Clean Air Interstate Rule (CAIR) to satisfy emission reduction obligations with respect to the 2008 ozone NAAQS (81 FR 21290, 21294-5). The EPA is finalizing its proposed disapproval in this action.

    1 In a separate action, we disapproved the portion of the SIP submittal pertaining to the CAA section 110(a)(2)(D)(i)(II) requirement to address the interstate transport of air pollution which will interfere with other states' programs for visibility protection (81 FR 296, January 5, 2016). We proposed to approve the other portions of the infrastructure SIP submittal on February 8, 2016 (81 FR 6483).

    2 In addition, the EPA cited at proposal certain technical information the agency had released in order to facilitate efforts to address interstate transport requirements for the 2008 ozone NAAQS, and that this information was used to support the proposed Cross-State Air Pollution Rule Update for the 2008 ozone NAAQS (CSAPR Update) (81 FR 21299, 21292). We noted that such information contradicts Texas' conclusions that its SIP contained adequate provisions to meet the CAA interstate transport requirements with respect to the 2008 ozone NAAQS. See Notice of Data Availability (NODA), 80 FR 46271, (August 4, 2015) and the proposed CSAPR Update, 80 FR 75706 (December 3, 2015). We also noted at proposal that the EPA technical information in the NODA and the proposed CSAPR Update accounted for the emission reductions resulting from controls listed in the SIP, implemented within the state, and nonetheless showed that Texas will contribute to downwind air quality problems. The CSAPR Update, however, is outside the scope of this action, and is irrelevant to the question of whether the Texas SIP should be disapproved.

    We received three comments during the comment period on our proposed SIP disapproval. The comments were submitted by the State of Texas (Texas Commission on Environmental Quality “TCEQ”), Luminant (a Texas electricity producer) and a member of the public. A synopsis of the comments and our responses are provided below.

    II. Response to Comments

    Comment: Comments were received from a member of the public that was supportive of the EPA's basis for its proposed action, but added that (1) the public can better understand how we are using the most current information if we clarify and explain how the projections and modeling discussed in the evaluation for our proposal are informed by recent ozone monitoring data, and (2) the commenter stated that the EPA took too long to propose action on the Texas SIP revision, noting that Texas would benefit from earlier review of its analysis by the EPA.

    Response: We agree with the commenter's conclusion that Texas's SIP submittal was inadequate to address the statutory interstate transport requirements with respect to the 2008 ozone NAAQS. With respect to the commenter's first concern, the projections and modeling released c in the August 4, 2015 NODA and the proposed CSAPR Update, which we also o recited in the EPA's proposed action on the Texas SIP submittal. In our CSAPR Update proposal, we explained how the CSAPR Update Rule proposed to use recent ozone monitoring data to inform our evaluation of interstate transport (80 FR 75706, 75724). We proposed to identify as nonattainment receptors those monitoring sites that (1) measured ozone concentrations that exceed the NAAQS based on monitoring data from years 2012-2014, and (2) are projected to exceed the NAAQS in 2017 based on an average design value.3 We proposed to identify maintenance receptors as those monitoring sites that have measured ozone concentrations that meet the NAAQS (clean data) based on monitoring data from years 2012-2014 and are projected to exceed the NAAQS in 2017 based on a maximum or average design value. We proposed this method of projecting from recent monitoring data to 2017 to identify maintenance receptors, since the monitoring sites of the proposed maintenance receptors currently meeting the NAAQS could be subject to conditions that may allow violations to reoccur and therefore may have future maintenance concerns. For more information about how the EPA identified 2017 nonattainment and maintenance receptors, please see pages 75723-75726 in the proposed CSAPR Update. (80 FR 75706). Today's rulemaking does not address which monitoring sites are identified as nonattainment and maintenance receptors with respect to interstate transport for the 2008 ozone NAAQS. Such determination, including more recent ozone monitoring data which will inform that analysis, will be addressed in the EPA's final CSAPR Update and are outside the scope of this final action. The EPA's disapproval is based on the inadequacies in the analysis provided in Texas's SIP submittal, as described in this document and in EPA's proposed action on that SIP.

    3 The design value for the 2008 ozone NAAQS is the 3-year average of the annual 4th highest daily maximum 8-hour ozone concentration at a monitoring site.

    With respect to the timeliness of the EPA's action on the Texas SIP submittal, CAA section 110(k)(2) requires the EPA to act on SIPs within one year after a submittal is determined to be complete. We determined that the Texas infrastructure SIP submittal, which includes transport, was complete on December 20, 2012. While the EPA generally agrees that prompt action on state SIP submittals can be beneficial to the states' planning efforts, in this case, the D.C. Circuit's decision in North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008) provided the holding that states must give the “interfere with maintenance” clause of CAA section 110(a)(2)(D)(i)(I) independent significance, which Texas failed to do.

    Comment: The TCEQ stated that it does not support the EPA's proposed disapproval of the state's interstate transport portion of its SIP submittal because the TCEQ's interstate transport analysis adequately addresses the requirements of CAA section 110(a)(2)(D)(i)(I). Specifically, TCEQ stated that the EPA failed to issue guidance in a timely manner for states to use in developing infrastructure and transport SIP revisions for the 2008 ozone NAAQS. TCEQ therefore contends that it is inappropriate for the EPA to conclude that the state's analysis of ozone contributions to other areas is incomplete when the EPA did not provide timely guidance stating what would constitute a complete analysis. TCEQ explained that its SIP revision was submitted on December 13, 2012 in order to meet the January 4, 2013 deadline by which the EPA was court-ordered to issue findings of failure to submit infrastructure SIPs for the 2008 ozone NAAQS. TCEQ notes that the EPA did not issue infrastructure SIP guidance until September 13, 2013, eight months following the January 2013 deadline, which did not contain any information on what would constitute an adequate interstate transport analysis. TCEQ further notes that the EPA did not provide information to states regarding interstate transport for the 2008 ozone NAAQS until 2015, through information provided in a January 22, 2015 memo, an August 4, 2015 NODA, and the December 3, 2015 CSAPR Update proposal, which was well after the state's SIP submittal. Therefore, as a result of the EPA's lack of timely transport guidance for the 2008 ozone standard and subsequent NODA regarding 2017 nonattainment and maintenance receptor linkages and contributions, TCEQ contends that it was forced to expend effort and resources to develop its SIP revision without knowing how the EPA would evaluate Texas' interstate transport obligation. Further, the EPA has routinely failed to issue timely guidance for SIP revisions and to even meet statutory SIP review deadlines in the CAA. As a result, the EPA has disrupted the SIP development process nationwide, undermining the states' ability to submit sufficient SIP revisions.

    Response: We disagree that Texas' December 13, 2012 SIP submittal containing the state's transport analysis adequately addressed the requirements of CAA section 110(a)(2)(D)(i)(I). Rather, the state's analysis was deficient to address the statutory requirements, as detailed in the proposal and in more detail in this document. CAA section 110(a)(2)(D)(i)(I) requires that for a new or revised standard, each SIP must contain adequate provisions to prohibit any emissions activity within the state from emitting air pollutants that will “contribute significantly to nonattainment” or “interfere with maintenance” of the applicable air quality standard in any other state—here being the 2008 ozone standard. (81 FR 21290-1, April 11, 2016). Texas submitted an analysis of monitoring data, wind patterns, emissions data and emissions controls and concluded that based on monitoring data, due to decreases in ozone design values and existing control measures, emissions from sources from within the state do not contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states. We find that Texas' analysis was not adequate because Texas limited its discussion of data only to areas designated nonattainment in states that are geographically closest to the state and we find this approach incomplete, (as detailed in our proposal), since the state did not consider other areas that were not formally designated as nonattainment. (81 FR 21292). Moreover, the state did not give the “interfere with maintenance” clause of CAA section 110(a)(2)(D)(i)(I) independent significance, consistent with the D.C. Circuit's decision in North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008), because its analysis did not attempt to evaluate the potential impact of Texas emissions on areas that are currently measuring clean data, but that may have issues maintaining that air quality. (81 FR 21292). As we noted at proposal the EPA's most recent technical information demonstrates that emissions from Texas do impact air quality in other states relative to the 2008 ozone NAAQS. (81 FR 21292-3). With regard to the timelines of EPA guidance, in EPA v. EME Homer City Generation, L.P., the Supreme Court clearly held that “nothing in the statute places the EPA under an obligation to provide specific metrics to States before they undertake to fulfill their good neighbor obligations.” 134 S. Ct. 1584, 1601 (2014).4 While we have taken a different approach in some prior rulemakings by providing states with an opportunity to submit a SIP after we quantified the states' budgets (e.g., the NOXSIP Call and CAIR 5 ), the CAA does not require such an approach. Regarding the commenter's contention that the EPA's alleged inability to review SIP submittals within the CAA timelines undermines the ability of states to submit sufficient SIPs, the State's ability to submit a sufficient SIP that meets the applicable requirements is unrelated to the EPA's timeline for review.

    4 “Nothing in the Act differentiates the Good Neighbor Provision from the several other matters a State must address in its SIP. Rather, the statute speaks without reservation: Once a NAAQS has been issued, a State `shall' propose a SIP within three years, § 7410(a)(1), and that SIP `shall' include, among other components, provisions adequate to satisfy the Good Neighbor Provision, § 7410(a)(2).” EPA v. EME Homer City Generation, L.P., 134 S. Ct. at 1600.

    5 For information on the NOX SIP call see 63 FR 57356 (October 27, 1998). For information on CAIR (the Clean Air Interstate Rule) see 70 FR 25162 (May 12, 2005).

    Comment: TCEQ and Luminant both state that the EPA's public notice on the proposed disapproval is not meaningful because they contend that the outcome was predetermined when the EPA proposed a FIP for Texas in the proposed CSAPR Update. They stated that at the time of the proposed FIP to update CSAPR, the EPA had taken no action on the previously submitted SIP submittal from Texas addressing interstate transport with respect to the 2008 ozone NAAQS. The commenters contend that the EPA should have evaluated the SIP submittal prior to proposing a CSAPR Update that included Texas. The commenters also stated that we had not satisfied the prerequisites of CAA section 110(c)(1) when we issued the proposed FIP for Texas in the proposed CSAPR Update. The commenters therefore contend that the proposed SIP disapproval is only a post hoc rationalization for the proposed CSAPR Update, and our approach is unlawful and impermissibly treads on cooperative federalism required under the CAA. Lastly, the commenters claim that had we reviewed the SIP revision before proposing the CSAPR Update for Texas, the state would have had the opportunity contemplated by the CAA to correct any problems with its SIP in a timely fashion and avoid the imposition of the FIP.

    Response: We disagree with the commenters that the proposed disapproval was predetermined when the EPA issued the proposed CSAPR Update that included a FIP for Texas. Our proposal to disapprove the Texas SIP provided proper notice and an opportunity for public comment, as legally required, and provided distinct bases for the proposed disapproval. Importantly, the proposed disapproval of the Texas SIP allowed an opportunity for submittal of any information that could have changed our proposed views concerning (1) the adequacy of the SIP submittal, and (2) the effect of Texas emissions on ozone levels in downwind states as demonstrated in the modeling and contribution information the EPA relied upon for its proposed disapproval. The EPA has not received any information demonstrating the identified inadequacies of the SIP submittal and the data showing the effect of Texas emissions in downwind states are inaccurate.

    Whether the EPA appropriately proposed the CSAPR Update is outside the scope of this action, and is irrelevant to the question of whether the Texas SIP should be disapproved. The bases for the disapproval are further explained in both the proposal and this final action, and do not rely upon the proposed CSAPR Update. As described in the proposal and earlier in this document, whether or not the EPA had proposed the CSAPR Update, Texas' SIP submittal failed to include an analysis that appropriately evaluated the impact of state emissions on areas in other states, regardless of current nonattainment designations and considering the ability of areas currently measuring clean data to maintain that standard. These deficiencies are completely independent of any analysis conducted to support the CSAPR Update proposal.

    Moreover, while the CSAPR Update proposal also relied upon the same modeling and contribution information to identify which states might be subject to a FIP in the final rulemaking, in the absence of an approvable SIP, the proposed disapproval of the Texas SIP did not rely upon the proposed findings in the CSAPR Update but rather cited, in addition to other deficiencies identified with the Texas SIP, technical data that was relevant to and informative for both proposals.

    Our actions are consistent with CAA section 110(c) prerequisites in promulgating a FIP. In our December 3, 2015 Federal Register notice, we proposed to include Texas in the CSAPR Update (80 FR 75706). In that proposal we recognized that we could not promulgate a FIP for any state, including Texas, in the final CSAPR Update unless we found that the state had failed to make an approvable SIP submittal (80 FR 75719-20). A proposed rulemaking does not constitute a promulgation of a rule by the EPA, and therefore the proposed CSAPR Update does not constitute a “predetermined outcome” of EPA's review of Texas' SIP submittal, as the commenters describe, nor a promulgated FIP under CAA section 110(c). Were the EPA to finalize an approval of Texas' SIP, the EPA would not finalize the proposed inclusion of Texas in any final CSAPR Update. However, for the reasons described earlier, the EPA is finalizing its disapproval of Texas' SIP. However, this final action does not promulgate a FIP nor make any final determination regarding whether and when the EPA will promulgate a FIP. The EPA will determine whether to issue a FIP in the context of the CSAPR Update in the rulemaking for that action, and thus any concerns regarding the EPA's authority to issue a FIP are appropriately raised only in the context of that rulemaking.

    Finally, the EPA disagrees with the commenters' claim that had we reviewed the SIP revision before proposing the CSAPR Update for Texas, the state would have had the opportunity contemplated by the CAA to correct any problems with its SIP in a timely fashion in order to avoid the imposition of the FIP. Contrary to commenters' assertions, CAA does not contemplate that a state have an opportunity to correct deficiencies with its SIP either before the EPA takes action to act on the SIP or before the EPA imposes a FIP after disapproval of a SIP. CAA section 110(c) provides that the EPA “shall promulgate a [FIP] at any time within two years after” the EPA either finds that a state has failed to make a required submittal or disapproves a SIP, in whole or in part. As the Supreme Court confirmed in EPA v. EME Homer City Generation. L.P., “EPA is not obliged to wait two years or postpone its action even a single day: The Act empowers the Agency to promulgate a FIP `at any time' within the two-year limit.” EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1600-01 (2014). The EPA notes, however, that states have the ability at any time, including before or after the imposition of a FIP, to submit an approvable SIP, which corrects any deficiency.

    Comment: TCEQ commented that we inappropriately stated that it should have considered possible contributions to downwind areas that are not designated nonattainment but may nonetheless measure exceedances of the NAAQS. TCEQ further stated that we fail to mention how Texas might have accomplished this theoretical exercise particularly without EPA guidance on how to develop its transport SIP and considering the EPA relies on nationwide modeling to determine potential exceedances in areas that are attaining the NAAQS that is not made available to states prior to the statutory due dates for state transport SIPs. The TCEQ concedes that the EPA may now consider the CSAPR schema to be appropriate guidance for transport regulation, but contends that it is still not possible for states to effectively respond with timely transport SIPs. The commenter again notes that the EPA did not explain what type of transport analysis would be considered satisfactory when the EPA issued SIP guidance in 2013.

    Response: Regardless of an air quality designation, any area may violate the NAAQS if upwind emissions affecting air quality are not adequately controlled. The EPA has routinely interpreted the obligation to prohibit emissions that “significantly contribute to nonattainment” of the NAAQS in downwind states to be independent of formal designations because exceedances can happen in any area.6 Nothing in the CAA limits States' obligations under the good neighbor provision to downwind areas that have been formally designated nonattainment. To the contrary, CAA section 110(a)(2)(D)(i)(I) requires States to prohibit emissions that “will contribute significantly to nonattainment in . . . any other State.” (emphasis added). The future tense demonstrates that Congress intended this requirement to be forward-looking and apply to areas that will be in nonattainment regardless of formal designation. An area with air quality that is projected to exceed the NAAQS would be in nonattainment, and thus not meeting public health-based standards, regardless of whether it has been formally designated as a nonattainment area. An upwind state cannot be relieved of its obligation to address interstate transport of air pollution merely because of a lack of formal designation. Thus, Texas should have considered possible contributions to downwind areas that are not designated nonattainment but may nonetheless measure exceedances of the NAAQS in considering whether Texas emissions significantly contribute to nonattainment in another state.

    6 See, e.g., Clean Air Interstate Rule, 70 FR 25162, 25265 (May 12, 2005) (“As to impacts, CAA section 110(a)(2)(D) refers only to prevention of `nonattainment' in other States, not to prevention of nonattainment in designated nonattainment areas or any similar formulation requiring that designations for downwind nonattainment areas must first have occurred.”); Cross-State Air Pollution Rule, 76 FR 48208, 48211 (Aug. 8, 2011) (evaluating nonattainment and maintenance concerns based on modeled projections); Brief for Respondents U.S. Environmental Protection Agency at 23-24, EME Homer City Generation, L.P. v. EPA, Case No. 11-1302 (D.C. Cir. Jan. 16, 2015), ECF No. 1532516 (defending the EPA's identification of air quality problems in CSAPR independent of area designations). Cf. Final Response to Petition from New Jersey Regarding SO2 Emissions From the Portland Generating Station, 76 FR 69052 (Nov. 7, 2011) (finding facility in violation of the prohibitions of CAA section 110(a)(2)(D)(i)(I) with respect to the 2010 SO2 NAAQS prior to issuance of designations for that standard).

    With respect to the “interfere with maintenance” requirement, the court in North Carolina v. EPA, (531 F.3d 896, D.C. Cir. 2008), was specifically concerned with areas not designated nonattainment when it rejected the view that “a state can never `interfere with maintenance' unless the EPA determines that at one point it `contribute[d] significantly to nonattainment.' ” 531 F.3d at 910. The court pointed out that areas barely attaining the standard due in part to emissions from upwind sources would have “no recourse” pursuant to such an interpretation. Id. Accordingly, and as described in the proposal, the court explained that the regulatory authority must give “independent significance” to the maintenance prong of CAA section 110(a)(2)(D)(i)(I) by separately identifying such downwind areas for purposes of defining states' obligations pursuant to the good neighbor provision. Thus, Texas should have considered the potential impact of its emissions on areas that are currently measuring clean data, but may have issues maintaining that air quality.

    Although the TCEQ questions how it could have completed such an analysis without explicit guidance from the EPA and before the EPA had conducted air quality modeling evaluating downwind air quality and contributions, as explained earlier, states bear the primary responsibility for demonstrating that their plans contain adequate provisions to address the statutory interstate transport provisions and the EPA is not required to issue guidance. In separate interstate transport actions, the EPA has reviewed and finalized action on interstate transport SIPs in states where air quality modeling was not available or where the total weight of evidence for finalizing action on the state's SIP was not solely based on air quality modeling, according to these standards.7 As evidenced by these actions, consideration of monitoring data is one valid way to evaluate potential interstate transport impacts, but it does not absolve a state from evaluating its downwind impact regardless of formal area designations and considering the requirements of both prongs of the good neighbor provision. As we noted above and as found by the Supreme Court in EME Homer City Generation, L.P., the lack of guidance does not relieve either the states of the obligation to submit SIPs that address CAA section 110(a)(2)(D)(i)(I) nor the EPA of the obligation to review such SIPs consistent with the statutory requirements of the good neighbor provision. For the 2015 ozone NAAQS, we plan to provide information pertaining to interstate transport of air pollution later this year.8 Interstate transport SIPs for the 2015 ozone NAAQS are due October 26, 2018. We plan to continue our ongoing dialogue with states to assist in developing an appropriate transport SIP.

    7 See, e.g., Air Quality State Implementation Plans; Approvals and Promulgations: Utah; Interstate Transport of Pollution for the 2006 PM2.5 NAAQS May 20, 2013 (78 FR 29314); Final Rule, 78 FR 48615 (August 9, 2013); Approval and Promulgation of Implementation Plans; State of California; Interstate Transport of Pollution; Significant Contribution to Nonattainment and Interference With Maintenance Requirements, Proposed Rule, 76 FR 146516, 14616-14626 (March 17, 2011); Final Rule, 76 FR 34872 (June 15, 2011); Approval and Promulgation of State Implementation Plans; State of Colorado; Interstate Transport of Pollution for the 2006 24-Hour PM2.5 NAAQS, Proposed Rule, 80 FR 27121, 27124-27125 (May 12, 2015); Final Rule, 80 FR 47862 (August 10, 2015).

    8 See pages 6-7 of the attachment to the October 1, 2015 EPA memorandum “Implementing the 2015 Ozone National Ambient Air Quality Standards” from Janet McCabe, Acting Assistant Administrator, Office of Air and Radiation to Regional Administrators, Regions 1-10, https://www.epa.gov/sites/production/files/2015-10/documents/implementation_memo.pdf.

    Comment: TCEQ and Luminant both state that in our CSAPR Update proposal the EPA did not give independent effect to both the “contribute significantly to nonattainment” and the “interfere with maintenance” requirements as nonattainment and maintenance receptors are treated exactly the same way as far as linkages to states are defined and emission budgets are set. Luminant also claims that the EPA would be in violation of the Supreme Court in EME Homer City Generation, L.P. if we impose the same “cost-effective controls” to address both interference with maintenance and significant contribution to nonattainment.

    Further, the comments state that because some states are linked to receptors in marginal nonattainment areas, the EPA is requiring emissions reductions from upwind states, including Texas, to assist states that do not have make emission reductions or institute control strategies of their own. Further, the comments claim that we have failed to identify any balance between local controls in areas with potential maintenance problems and reductions that it is requiring of states upwind that it models as contributing at least 1% of the relevant NAAQS to these areas with modeled, not monitored, issues.

    The commenters also disagree with the EPA's finding that the Texas SIP submittal did not give independent significance to the CAA “interfere with maintenance” requirement and contend that we have misconstrued that requirement by stating that TCEQ did not evaluate areas currently measuring clean data. Luminant contends that Texas' SIP does give independent significance to the “interfere with maintenance” clause. TCEQ claims that the EPA has not promulgated a rule that identifies a required or recommended methodology for the EPA or states to give independent consideration to possible contributions that may interfere with maintenance in downwind areas, and contend that it is arbitrary and capricious for the EPA to propose disapproval for failure to meet a standard or requirement that did not exist at the time the statutory obligation matured.

    Response: As described in the proposal, the EPA proposed disapproval in part because the Texas SIP submittal did not address the potential impact of Texas emissions on maintenance areas. Reiterating our position explained in the proposal, the D.C. Circuit in North Carolina explained that the regulatory authority must give “independent significance” to the maintenance prong of CAA section 110(a)(2)(D)(i)(I) by evaluating the impact of upwind state emissions on downwind areas that, while currently in attainment, are at risk of future nonattainment, considering historic variability. North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008). While one commenter contends that Texas evaluated the interference with maintenance prong and concluded monitoring data do not suggest that emissions from Texas contribute significantly to nonattainment or interfere with maintenance of the 2008 ozone NAAQS for areas in any other state, nothing in Texas' SIP submittal indicates that it performed any analysis to support its conclusion as the State limited its discussion of data only to certain areas designated nonattainment and did not consider whether those or any other areas might have trouble maintaining the standard even if they measured clean data. Thus, contrary to the commenter's assertion, Texas did not give independent meaning to the interference with maintenance prong by evaluating the impact of upwind state emissions on downwind areas that, while currently in attainment, are at risk of future nonattainment, as required by the statute and as clarified by the D.C. Circuit in North Carolina.

    The EPA disagrees with the commenter's assertion that this standard or requirement did not exist at the time the statutory obligation to submit a transport SIP matured. At the time Texas was obligated to submit a SIP addressing interstate transport requirements for the 2008 ozone NAAQS, CAA section 110(a)(2)(D)(i)(I) clearly required states to submit a plan containing adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will interfere with maintenance by any other state with respect to a particular NAAQS. This requirement has not changed since Texas' obligation to submit a transport SIP matured, and contrary to commenter's assertion, the EPA is not obligated to identify a required or recommended methodology for giving independent consideration to possible contributions that may interfere with maintenance in downwind areas prior to proposing action on a SIP addressing such statutory requirement. Nonetheless, the State's SIP made no attempt to evaluate the maintenance prong with respect to the 2008 ozone NAAQS aside from its conclusory assertion that the requirements were satisfied.

    To the extent the commenter has raised concerns with respect to the EPA's interpretation and application of the CAA, including the “interfere with maintenance” clause, in the context of the CSAPR Update rulemaking, such comments are appropriately raised and addressed in that rulemaking. The EPA is not finalizing in this rule any determinations regarding the identification of specific downwind maintenance receptors, the magnitude of Texas' contribution to those receptors, and the quantity of any emission reductions that might be necessary. Such determinations will be made in the context of the CSAPR Update rulemaking. To the extent that Luminant refers to the EPA's approach as not compliant with the Supreme Court's EME Homer City Generation, L.P. decision, this comment relates to the CSPAR Update rulemaking and not our action today. Thus, it is outside the scope of this action and would be more appropriately addressed in that separate rulemaking.

    Comment: TCEQ claims that the EPA has not demonstrated that a contribution by upwind states of 1% of the NAAQS will interfere with maintenance in identified maintenance areas. Further the TCEQ contends that the EPA has not demonstrated that a 1% of the NAAQS contribution to modeled emissions in maintenance areas is appropriate for linking an upwind state to a maintenance monitor. Further, they contend that EPA has not demonstrated that the amount of reductions necessary to cure a contribution to nonattainment is also appropriate to ensure that an upwind state is not interfering with maintenance. Lastly, TCEQ states that the 1% contribution threshold is arbitrary.

    Response: The EPA explained in the CSPAR Update proposal its reasoning for why we believe it appropriate to use the same approach used in CSAPR to establish a 1% air screening threshold for the evaluation of interstate transport requirements for the 2008 ozone NAAQS, including the interference with maintenance requirement. 81 FR 21292-94. The commenter does not explain its allegations that the 1% threshold is arbitrary nor does the commenter explain how the EPA has not demonstrated this threshold is appropriate to show interference by upwind states with maintenance in identified maintenance areas.

    Nonetheless, while the EPA cited the modeling conducted for the CSAPR Update as showing Texas may significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in downwind states, we did not propose to make a specific finding of contribution or to quantify any specific emissions reduction obligation. We did not rely upon a 1% contribution threshold for this action. Rather, the evaluation of whether emissions from Texas significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS downwind, relying upon the use of a 1% contribution threshold, and if so what reductions are necessary to address that contribution, is being conducted in the context of the CSAPR Update rulemaking. Accordingly, this comment relates to the CSPAR Update rulemaking and not our action today. Thus, it is outside the scope of this action and would be more appropriately addressed in that separate rulemaking. The EPA will consider timely-submitted comments regarding the EPA's air quality modeling and various associated legal and policy decisions in finalizing that rulemaking.

    Comment: TCEQ stated that it supports the use of ambient air quality monitoring data as the only valid basis for making nonattainment designations and identifying nonattainment and maintenance receptors and that it does not support the use of modeling as the basis for designations or identifying either nonattainment or maintenance receptors for transport. TCEQ contends that using modeling for these actions could result in major capital expenditures for industry to fix something that may not be a real problem, and claims that to base these actions on modeling is inconsistent with historical and present EPA policies. TCEQ also notes that the EPA does not redesignate an area to attainment when an area models attainment as part of an attainment demonstration, but rather uses monitoring data to verify attainment before redesignation.

    Response: While the EPA does rely on ambient air quality monitoring data to make decisions on ozone nonattainment designations and redesignations, the EPA has routinely based its determination of receptors for purposes of evaluating interstate ozone transport on air quality modeling projections.9 This is because, regardless of designation, any area may violate the NAAQS if upwind emissions affecting air quality are not adequately controlled, and areas currently measuring clean data may still violate the NAAQS if conditions change such that attainment with the NAAQS can no longer be maintained. Thus, the means by which the EPA makes decisions with respect to area designations is not relevant to our identification of receptors that should be evaluated for interstate transport of air pollution. In North Carolina v. EPA, the D.C. Circuit concluded that the EPA's reliance on future projections to identify such receptors was a reasonable application of the statute. North Carolina, 531 F.3d at 914. Nonetheless, while the EPA has relied upon modeling to identify downwind air quality problems, the EPA has also stated that states may consider other types of data when evaluating interstate transport in developing their SIPs. See Memorandum from William T. Harnett to Regional Air Division Directors, Regions I-X, “Guidance on SIP Elements Required Under [CAA] Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)”, September 25, 2009.10 Indeed, as described earlier, the EPA has regularly evaluated interstate transport SIPs in western states, where modeling has not typically been available, considering monitored data in a manner that is consistent with the standards described in this document.

    9 See CSAPR (76 FR 48208, August 8, 2011), CAIR (70 FR 25162, May 12, 2005) and the NOX SIP call (63 FR 57356, October 27, 1998).

    10https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20090925_harnett_section_110(a)_sip_2006_24-hr_pm2.5_naaqs.pdf.

    Comment: TCEQ stated that we failed to give comments on the adequacy of the State's interstate transport analysis during the State public comment period and that the lack of comments led the State to believe that the submitted analysis was adequate to show how Texas contributes to other states' ozone concentrations.

    Response: The EPA's authority and obligation under the Act is to review a SIP submittal and determine whether it meets the applicable requirements of the Act and regulations, regardless of whether we commented on a State's proposed SIP during its State rulemaking process. There is no requirement in the Act that the EPA must review, evaluate, and comment on a State's proposed SIP revision during the state rulemaking process, and no reasonable or legal basis for states to assume that the EPA's choosing to not provide comment on their analysis during the state public comment period constitutes the Agency's endorsement of such analysis.

    Comment: Luminant stated that the EPA needs to revise the CSAPR ozone season NOX budgets in accordance with the D.C. Circuit's remand in EME Homer City Generation, L.P. before the EPA can evaluate Texas' SIP submittal. See EME Homer City Generation, L.P. v EPA, 795 F.3d 118 (D.C. Cir. 2015). Luminant stated that, by failing to issue new budgets for the 1997 ozone NAAQS, we are in violation of the D.C. Circuit's specific remand instructions. The commenter contends that the EPA cannot rationally evaluate Texas' SIP submittal until we comply with the court's remand. The commenter specifically contends that the EPA must replace the CSAPR budgets with lawful budgets that do not require more control than necessary to comply with the 1997 ozone NAAQS, and that otherwise, the EPA has no basis to disapprove the Texas SIP submittal. By failing to establish lawful budgets, the commenter claims that the EPA does not have the information necessary to evaluate additional reductions associated with Texas' plan to comply with the 2008 ozone NAAQS.

    Response: The EPA has an independent statutory obligation to evaluate Texas' SIP submittal addressing the good neighbor provision with respect to the 2008 ozone NAAQS. The fact that the EPA has not yet completed its response to the D.C. Circuit's remand to address interstate transport with respect to the 1997 ozone NAAQS does not preclude either the state from addressing its own statutory obligation with respect to the 2008 ozone NAAQS pursuant to CAA section 110(a)(2)(D)(i)(I) or the EPA from fulfilling its statutory obligation to review the SIP submittal pursuant to CAA section 110(k). As noted earlier, the EPA has identified several deficiencies with the interstate transport analysis in the Texas SIP submittal that are unrelated to the CSAPR rulemakings either with respect to the 1997 or 2008 ozone standards.

    The EPA has proposed its intended response to address the D.C. Circuit's remand of the CSAPR ozone season NOX budgets in the context of the CSAPR Update, which is expected to be finalized later this year. The commenter does not explain how the EPA's finalization of this action with respect to the 1997 ozone standard would aid in the state's evaluation of transport with respect to the 2008 ozone standard. Nonetheless, should the commenter have any concerns about the EPA's approach to addressing the court's remand, the appropriate venue for the EPA's evaluation of those concerns is in the context of the CSAPR Update rulemaking. Any concerns are outside the scope of this rulemaking.

    Comment: Luminant stated that we must reopen the comment period for the CSAPR Update rulemaking. Luminant contends that comments previously submitted on the CSAPR Update proposal have limited utility because the EPA's rationale for disapproving Texas' SIP submittal was not known at the time those comments were submitted for that proposal.

    Response: As noted earlier, the EPA has identified several deficiencies with the interstate transport analysis in the Texas SIP submittal that are unrelated to the CSAPR Update rulemaking. Moreover, any request to reopen the public comment period on the CSAPR Update is not appropriately raised in this rulemaking.

    III. Final Action

    For the reasons described in the proposal and in this final action, the EPA is disapproving a portion of the December 13, 2012 SIP submittal from Texas seeking to address the required infrastructure element under CAA section 110(a)(2)(D)(i)(I) with respect to the State's significant contribution to nonattainment or interference with maintenance of the 2008 ozone NAAQS in other states, known as prongs 1 and 2 of the good neighbor provision.

    In a separate action, we disapproved the portion of the SIP submittal pertaining to the CAA section 110(a)(2)(D)(i)(II) requirement to address the interstate transport of air pollution which will interfere with other states' programs for visibility protection (81 FR 296, January 5, 2016). We proposed to approve the other portions of the infrastructure SIP submittal on February 8, 2016 (81 FR 6483). We expect to take final action on the other portions of the Texas infrastructure SIP at a later date.

    Pursuant to CAA section 110(c)(1), this disapproval establishes a 2-year deadline for the EPA to promulgate a FIP for Texas to address the requirements of CAA section 110(a)(2)(D)(i) with respect to the 2008 ozone NAAQS unless Texas submits and we approve a SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for Texas pursuant to CAA section 179 because this action does not pertain to a part D plan for nonattainment areas required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA section 110(k)(5).

    IV. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This final action is not a “significant regulatory action” and was therefore not submitted to the Office of Management and Budget for review.

    B. Paperwork Reduction Act (PRA)

    This final action does not impose an information collection burden under the PRA because it does not contain any information collection activities.

    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 merely disapproves a SIP submittal as not meeting certain CAA requirements.

    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 action does not apply on any Indian reservation land, any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. 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 merely disapproves a SIP submittal as not meeting certain CAA requirements.

    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

    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 the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action merely disapproves a SIP submittal as not meeting certain CAA requirements.

    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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 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 CAA section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Ozone.

    Dated: August 1, 2016. Ron Curry, Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart SS—Texas 2. Section 52.2275 is amended by adding paragraph (l) to read as follows:
    § 52.2275 Control strategy and regulations: Ozone.

    (l) The portion of the SIP submitted on December 13, 2012 addressing Clean Air Act section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS is disapproved.

    [FR Doc. 2016-19151 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2015-0397; FRL-9950-58-Region 10] Approval and Promulgation of Implementation Plans; Idaho: Stationary Source Permitting Revisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving, and incorporating by reference, revisions to the Idaho State Implementation Plan (SIP) submitted on May 21, 2015. In the submission, Idaho revised stationary source permitting rules, including the addition of facility-wide emission limits and nonmetallic mineral processing plant regulations. Idaho also added an alternative method for stationary sources to comply with sulfur content of fuels limits, and updated provisions to account for changes to federal air quality regulations. The EPA is approving the submitted revisions, with the exception of certain provisions that are inappropriate for SIP approval.

    DATES:

    This final rule is effective September 12, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2015-0397. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and is publicly available only in hard copy form. Publicly available docket materials are available at http://www.regulations.gov or at EPA Region 10, Office of Air and Waste, 1200 Sixth Avenue, Seattle, Washington 98101. The EPA requests that you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Kristin Hall, Air Planning Unit, Office of Air and Waste (AWT-150), Environmental Protection Agency—Region 10, 1200 Sixth Ave., Seattle, WA 98101; telephone number: (206) 553-6357; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

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

    On May 21, 2015, Idaho submitted revisions to the Idaho State Implementation Plan. On June 19, 2016, the EPA proposed to approve the submitted revisions, with the exception of certain provisions that are inappropriate for SIP approval (81 FR 37170). Please see our proposed rulemaking for further explanation and the basis for our finding. The public comment period for this proposal ended on July 11, 2016. We received no comments on the proposal.

    II. Final Action

    The EPA is approving, and incorporating by reference, the following revisions to the Idaho SIP submitted on May 21, 2015:

    • IDAPA 58.01.01.006 General Definitions, except .49, .50, .51, .66, .67, .68.b, .116 (renumbered from .114), and .118 (renumbered from .116) (State effective 4/11/2014);

    • IDAPA 58.01.01.011 Definitions for the Purposes of Sections 790 through 799 (State effective 3/15/2002);

    • IDAPA 58.01.01.107 Incorporations by Reference, except .03.f through .n, and with respect to .a, the incorporation by reference of 40 CFR 51.165 (State effective 4/11/2015);

    • IDAPA 58.01.01.157 Test Methods and Procedures (State effective 4/11/2015);

    • IDAPA 58.01.01.175 Procedures and Requirements for Permits Establishing a Facility Emissions Cap (State effective 4/11/2015);

    • IDAPA 58.01.01.176 Facility Emissions Cap, except for provisions relating to hazardous air pollutants (State effective 4/11/2015);

    • IDAPA 58.01.01.177 Application Procedures (State effective 4/11/2015);

    • IDAPA 58.01.01.178 Standard Contents of Permits Establishing a Facility Emissions Cap (State effective 4/11/2015);

    • IDAPA 58.01.01.179 Procedures for Issuing Permits Establishing a Facility Emissions Cap (State effective 4/11/2015);

    • IDAPA 58.01.01.180 Revisions to Permits Establishing a Facility Emissions Cap (State effective 4/11/2015);

    • IDAPA 58.01.01.181 Notice and Record-Keeping of Estimates of Ambient Concentrations (State effective 4/11/2015);

    • IDAPA 58.01.01.201 Permit to Construct Required (State effective 4/11/2006);

    • IDAPA 58.01.01.202 Application Procedures (State effective 4/11/2015);

    • IDAPA 58.01.01.401 Tier II Operating Permit, except .01.a and .04, (State effective 4/11/2006);

    • IDAPA 58.01.01.579 Baselines for Prevention of Significant Deterioration (State effective 4/11/2015);

    • IDAPA 58.01.01.725 Rules for Sulfur Content of Fuels (State effective 4/11/2015);

    • IDAPA 58.01.01.790 Rules for the Control of Nonmetallic Mineral Processing Plants (State effective 3/15/2002);

    • IDAPA 58.01.01.791 General Control Requirements, (State effective 3/15/2002);

    • IDAPA 58.01.01.793 Emissions Standards for Nonmetallic Mineral Processing Plants not Subject to 40 CFR 60, Subpart OOO (State effective 3/15/2002);

    • IDAPA 58.01.01.794 Permit Requirements, except .04 (State effective 4/11/2015);

    • IDAPA 58.01.01.795 Permit by Rule Requirements (State effective 3/15/2002);

    • IDAPA 58.01.01.796 Applicability (State effective 3/15/2002);

    • IDAPA 58.01.01.797 Registration for Permit by Rule (State effective 3/15/2002);

    • IDAPA 58.01.01.798 Electrical Generators (State effective 3/15/2002); and

    • IDAPA 58.01.01.799 Nonmetallic Mineral Processing Plan Fugitive Dust Best Management Practice (State effective 3/15/2002).

    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 as described in the amendments to 40 CFR part 52 set forth below. These materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 The EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and/or at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble).

    1 62 FR 27968 (May 22, 1997).

    IV. Statutory and Executive Orders Review

    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, the 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 this action does not involve technical standards; 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 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 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, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: July 25, 2016. Dennis J. McLerran, Regional Administrator, Region 10.

    For the reasons set forth in the preamble, 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 N—Idaho 2. In § 52.670, the table in paragraph (c) is amended by: a. Revising entries 006, 107, 157, 201, 202, 401, 579, and 725. b. Adding entries 011, 175, 176, 177, 178, 179, 180, 181, 790, 791, 793, 794, 795, 796, 797, 798, and 799 in numerical order.

    The revisions and additions read as follows:

    § 52.670 Identification of plan.

    (c) * * *

    EPA-Approved Idaho Regulations and Statutes State
  • citation
  • Title/subject State
  • effective
  • date
  • EPA
  • approval
  • date
  • Explanations
    Idaho Administrative Procedures Act (IDAPA) 58.01.01—Rules for the Control of Air Pollution in Idaho *         *         *         *         *         *         * 006 General Definitions 4/11/2015, 4/4/2013, 3/30/2007, 4/11/2006, 7/1/2002, 4/5/2000, 3/20/1997, 5/1/1994 8/12/2016, [Insert Federal Register citation] Except Section 006.49, 006.50, 006.51, 006.66, 006.67, 006.68.b, 006.116, and 006.118. *         *         *         *         *         *         * 011 Definitions for the Purposes of Sections 790 through 799 3/15/2002 8/12/2016, [Insert Federal Register citation] *         *         *         *         *         *         * 107 Incorporation by Reference 4/11/2015, 3/20/2014, 3/30/2007, 7/1/1997, 5/1/1994 8/12/2016, [Insert Federal Register citation] Except Section 107.03.f through 107.03.p. *         *         *         *         *         *         * 157 Test Methods and Procedures 4/11/2015 8/12/2016, [Insert Federal Register citation] *         *         *         *         *         *         * 175 Procedures and Requirements for Permits Establishing a Facility Emissions Cap 4/11/2015 8/12/2016, [Insert Federal Register citation] 176 Facility Emissions Cap 4/11/2015 8/12/2016, [Insert Federal Register citation] Except for provisions relating to hazardous air pollutants. 177 Application Procedures 4/11/2015 8/12/2016, [Insert Federal Register citation] 178 Standard Contents of Permits Establishing a Facility Emissions Cap 4/11/2015 8/12/2016, [Insert Federal Register citation] 179 Procedures for Issuing Permits Establishing a Facility Emissions Cap 4/11/2015 8/12/2016, [Insert Federal Register citation] 180 Revisions to Permits Establishing a Facility Emissions Cap 4/11/2015 8/12/2016, [Insert Federal Register citation] 181 Notice and Record-Keeping of Estimates of Ambient Concentrations 4/11/2015 8/12/2016, [Insert Federal Register citation] *         *         *         *         *         *         * 201 Permit to Construct Required 4/11/2006 8/12/2016, [Insert Federal Register citation] 202 Application Procedures 4/11/2015 8/12/2016, [Insert Federal Register citation] *         *         *         *         *         *         * 401 Tier II Operating Permit 4/11/2015 8/12/2016, [Insert Federal Register citation] Except Section 401.01.a and 401.04. *         *         *         *         *         *         * 579 Baselines for Prevention of Significant Deterioration 4/11/2015 8/12/2016, [Insert Federal Register citation] *         *         *         *         *         *         * 725 Rules for Sulfur Content of Fuels 4/11/2015 8/12/2016, [Insert Federal Register citation] *         *         *         *         *         *         * 790 Rules for the Control of Nonmetallic Mineral Processing Plants 3/15/2002 8/12/2016, [Insert Federal Register citation] 791 General Control Requirements 3/15/2002 8/12/2016, [Insert Federal Register citation] 793 Emissions Standards for Nonmetallic Mineral Processing Plants not Subject to 40 CFR 60, Subpart OOO 3/15/2002 8/12/2016, [Insert Federal Register citation] 794 Permit Requirements 4/11/2015 8/12/2016, [Insert Federal Register citation] Except Section 794.04. 795 Permit by Rule Requirements 3/15/2002 8/12/2016, [Insert Federal Register citation] 796 Applicability 3/15/2002 8/12/2016, [Insert Federal Register citation] 797 Registration for Permit by Rule 3/15/2002 8/12/2016, [Insert Federal Register citation] 798 Electrical Generators 3/15/2002 8/12/2016, [Insert Federal Register citation] 799 Nonmetallic Mineral Processing Plan Fugitive Dust Best Management Practice 3/15/2002 8/12/2016, [Insert Federal Register citation] *         *         *         *         *         *         *
    3. Section 52.683 is amended by revising paragraph (a) to read as follows:
    § 52.683 Significant deterioration of air quality.

    (a) The State of Idaho Rules for Control of Air Pollution in Idaho, specifically, IDAPA 58.01.01.005 through 007 (definitions), IDAPA 58.01.01.107.03.a, .b, .c (incorporations by reference), IDAPA 58.01.01.200 through 222 (permit to construct rules); IDAPA 58.01.01.510 through 516 (stack height rules); and IDAPA 58.01.01.575 through 581 (standards, increments and area designations) (except IDAPA 58.01.01.577), are approved as meeting the requirements of title I, part C, subpart 1 of the Clean Air Act for preventing significant deterioration of air quality.

    [FR Doc. 2016-19122 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0711; FRL-9949-84-Region 9] Approval and Promulgation of Implementation Plans; California; San Joaquin Valley; Revisions to Motor Vehicle Emissions Budgets for Ozone and Particulate Matter AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve and conditionally approve revisions to the State of California's State Implementation Plan (SIP) for the San Joaquin Valley (SJV) area. The revisions consist of an update to the Motor Vehicle Emissions Budgets (“budgets”) for nitrogen oxides (NOX) and volatile organic compounds (VOCs) for the 1997 8-hour ozone national ambient air quality standard (NAAQS or “standard”) for the SJV ozone nonattainment area and for NOX and coarse particulate matter (PM10) for the 1987 24-hour PM10 standard for the SJV PM10 maintenance area. The EPA is approving the SJV ozone revised budgets and conditionally approving the PM10 budgets in accordance with the requirements of the Clean Air Act (CAA or “Act”) and the EPA's regulations.

    DATES:

    This rule is effective on September 30, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID Number EPA-R09-OAR-2015-0711. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    John Ungvarsky, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region 9, (415) 972-3963, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Proposed Action II. Public Comments III. Final Action IV. Statutory and Executive Order Reviews I. Proposed Action

    On May 18, 2016 (81 FR 31212), the EPA proposed, under section 110(k)(3) of the Clean Air Act (CAA or “Act”), to approve a revision to the California SIP submitted by the California Air Resources Board (CARB) on November 13, 2015.1 The SIP submittal revises budgets applicable to control strategy or maintenance plans for the SJV for the 1997 8-hour ozone standard, 2006 24-hour PM2.5 standard, and the 1987 24-hour PM10 standard.2 In our May 18, 2016 action, we proposed to approve revised budgets for the 1997 8-hour ozone standard and the 2006 24-hour PM2.5 standard. We also proposed to conditionally approve revised budgets for the 1987 24-hour PM10 standard. CARB developed the revised budgets using EMFAC2014 and the travel activity projections provided by the SJV Metropolitan Planning Organizations (MPOs) consistent with the 2015 Federal Transportation Improvement Program (TIP). As such, the revised budgets reflect the most recent planning forecasts and are based on the most recent emission factor data and approved calculation methods.

    1 Letter, Richard W. Corey, Executive Officer, CARB to Jared Blumenfeld, Regional Administrator, EPA Region 9, November 13, 2015 with enclosures.

    2 For all three pollutants, the SJV nonattainment area includes all of seven counties, including Fresno, Kings, Madera, Merced, San Joaquin, Stanislaus, and Tulare counties, and the western half of Kern County. See the NAAQS-specific tables in 40 CFR 81.305.

    The EPA previously approved the SJV budgets for the 1997 8-hour ozone standard and the 24-hour PM10 standard. The ozone budgets were included in the EPA's approval of the SJV 2007 8-hour Ozone Plan (“2007 Ozone Plan”) at 77 FR 12652 (March 1, 2012), which established NOX and VOC 3 budgets for 2011, 2014, 2017, 2020, and 2023.4 The PM10 budgets were included in the EPA's approval of the 2007 PM10 Maintenance Plan and Request for Redesignation (“2007 PM10 Plan”) at 73 FR 66759 (November 12, 2008), which established direct PM10 and NOX budgets for 2005 and 2020.5 The SJV budgets for the 2006 24-hour PM2.5 standard were included in the EPA's proposed approval of the SJV 2012 PM2.5 Plan (“2012 PM2.5 Plan”) at 80 FR 1816 (January 13, 2015). The EPA found the 2017 PM2.5 budgets in the SJV 2012 PM2.5 Plan to be adequate at 81 FR 22194 (April 15, 2016), establishing direct PM2.5 and NOX budgets for 2017. As of May 2, 2016, these budgets must be used to determine conformity of transportation plans and TIPs to the control strategy plan for the SJV for the 2006 24-hour PM2.5 standard.6

    3 California plans sometimes use the term Reactive Organic Gases (ROG) for VOC. These terms are essentially synonymous. For simplicity, we use the term VOC herein to mean either VOC or ROG.

    4 The approved 2007 Ozone Plan includes the SJV 2007 Ozone Plan (as revised 2008 and 2011) and SJV-related portions of CARB's 2007 State Strategy (revised 2009 and 2011).

    5 The approved SIP includes the 2007 PM10 Maintenance Plan and Request for Redesignation, September 20, 2007, and technical corrections by CARB to the 2020 budgets for Merced, San Joaquin, Stanislaus and Tulare counties in the 2007 PM10 Plan. See May 13, 2008 letter to Wayne Nastri from James N. Goldstene.

    6 Also see letter, Elizabeth J. Adams, Deputy Director, Air Division, EPA Region 9, to Richard W. Corey, Executive Officer, CARB, April 1, 2016 with enclosures.

    In our May 18, 2016 proposed rule, we reviewed the revised budgets for the 1997 8-hour ozone standard in the November 13, 2015 submittal, evaluated them for compliance with statutory and regulatory requirements, and concluded that they meet all applicable requirements. More specifically, under CAA section 110(k)(3), we proposed to approve the revised VOC and NOX budgets in table 1 for 2017, 2020, and 2023 for the 1997 8-hour ozone standard. We determined that replacement of the current approved budgets with the revised VOC and NOX budgets would not interfere with the approved RFP and attainment demonstrations for the 1997 8-hour ozone standard in the SJV and emissions changes in non-motor vehicle emissions categories do not change the overall conclusions of the 2007 Ozone Plan.

    Table 1—San Joaquin Valley Revised Budgets Developed for the 1997 8-Hour Ozone Standard Using EMFAC2014 78 County subarea NOX
  • (tons per summer day)
  • 2017 2020 2023 VOC
  • (tons per summer day)
  • 2017 2020 2023
    Fresno 29.9 24.3 14.6 8.7 6.8 5.6 Kern (SJV) 26.8 22.4 12.9 6.9 5.7 4.8 Kings 5.5 4.7 2.7 1.4 1.1 0.9 Madera 5.5 4.5 2.7 2.0 1.6 1.3 Merced 10.3 8.5 5.1 2.7 2.1 1.7 San Joaquin 14.1 11.3 7.3 6.4 5.1 4.3 Stanislaus 11.3 9.2 5.8 4.1 3.2 2.7 Tulare 10.3 8.1 4.9 4.0 3.1 2.5

    7 The county-specific budgets are set forth in attachment A to CARB Resolution 15-50. Attachment A constitutes the SIP revision adopted by CARB on October 22, 2015 and submitted on November 13, 2015. CARB provided information and analysis supporting the SIP revision in a staff report titled Updated Transportation Conformity Budgets for the San Joaquin Valley Ozone, PM 2.5, and PM 10 State Implementation Plans, release date September 21, 2015.

    8 CARB calculated the revised budgets for the SJV plans by taking the sum of the county-by-county emissions results from EMFAC and rounding the SJV-wide total up to the nearest whole ton for NOX and to the nearest tenth of a ton for VOC and PM10; then re-allocating to the individual counties based on the ratio of each county's contribution to the total; and then rounding each county's emissions to the nearest tenth of a ton using the conventional rounding method.

    Second, under CAA section 110(k)(4), the EPA proposed to conditionally approve the revised direct PM10 and NOX budgets in table 2 for 2020 for the 24-hour PM10 standard. We determined that, when combined with implementation of the contingency plan in the SIP-approved 2007 PM10 Plan and fulfillment of the commitments in the State's April 29, 2016 letter, the revised direct PM10 and NOX budgets will allow the SJV to continue to demonstrate maintenance of the 24-hour PM10 standard. The contents of the State's April 29, 2016 letter are described in detail in our proposed rule on pages 31220 and 31221. In our proposal, we explained that if the conditional approval is finalized, CARB must adopt and submit the SIP revisions that it has committed to submit by June 1, 2017. The resulting impacts if CARB fails to comply with this commitment are explained below in section III of today's action.

    Table 2—San Joaquin Valley Revised 2020 Budgets for the PM10 Standard Developed Using EMFAC2014 910 County subarea Direct PM10
  • (tons per
  • annual day)
  • NOX
  • (tons per
  • annual day)
  • Fresno 7.0 25.4 Kern (SJV) 7.4 23.3 Kings 1.8 4.8 Madera 2.5 4.7 Merced 3.8 8.9 San Joaquin 4.6 11.9 Stanislaus 3.7 9.6 Tulare 3.4 8.4

    9 The county-specific budgets are set forth in attachment A to CARB Resolution 15-50. Attachment A constitutes the SIP revision adopted by CARB on October 22, 2015 and submitted on November 13, 2015. CARB provided information and analysis supporting the SIP revision in a staff report titled Updated Transportation Conformity Budgets for the San Joaquin Valley Ozone, PM 2.5, and PM 10 State Implementation Plans, release date September 21, 2015.

    10 CARB calculated the revised budgets for the SJV plans by taking the sum of the county-by-county emissions results from EMFAC and rounding the SJV-wide total up to the nearest whole ton for NOX and to the nearest tenth of a ton for VOC and PM10; then re-allocating to the individual counties based on the ratio of each county's contribution to the total; and then rounding each county's emissions to the nearest tenth of a ton using the conventional rounding method.

    Third, the EPA also proposed to approve the revised direct PM2.5 and NOX budgets for 2017 for the 2006 24-hour PM2.5 standard. We determined that: (1) Replacement of the current adequate budgets with the revised budgets would be consistent with our separate proposal finding that the 2012 PM2.5 Plan demonstrates RFP for year 2017; (2) emissions changes in non-motor vehicle emissions categories do not change the overall conclusion of the 2012 PM2.5 Plan; and (3) the revised budgets meet the adequacy criteria in 40 CFR 93.118(e)(4)(i)-(vi). Because the EPA has yet to finalize its approval of 2012 PM2.5 Plan, we are not able to finalize, in today's action, our approval of the revised direct PM2.5 and NOX budgets for 2017 in CARB's submittal dated November 13, 2015 for the 2006 24-hour PM2.5 standard. The EPA expects to take final action on the revised PM2.5 budgets for 2017 as part of its final action on the 2012 PM2.5 Plan for the 2006 24-hour PM2.5 standard.

    Lastly, on the effective date of today's action, the previously-approved budgets for the 1997 8-hour ozone standard and the 1987 24-hour PM10 standard would no longer be applicable for transportation conformity purposes, and the SJV MPOs and the U.S. Department of Transportation (DOT) must use the revised budgets for future transportation conformity determinations.

    Please see our May 18, 2016 proposed rule for more information concerning the background for this action and for a more detailed discussion of the rationale for approval of the revised budgets.

    II. Public Comments

    Our May 18, 2016 proposed rule provided a 30-day public comment period, which closed on June 17, 2016. We received no comments on our proposal during this period.

    III. Final Action

    For the reasons discussed in the May 18, 2016 proposed rule and summarized above, the EPA is approving, or conditionally approving, revised motor vehicle emissions budgets submitted on November 13, 2015 by CARB for the SJV area as a revision to the California SIP. More specifically, the EPA is approving, under CAA section 110(k)(3), revised VOC and NOX budgets shown in table 1 above for 2017, 2020, and 2023 for the 1997 8-hour ozone standard. The EPA is conditionally approving, under CAA section 110(k)(4), the revised direct PM10 and NOX budgets shown in table 2 above for 2020 for the 24-hour PM10 standard. CARB must adopt and submit the SIP revisions that it has committed to submit by June 1, 2017, as described in their April 29, 2016 letter. If CARB fails to comply with this commitment, the conditional approval will convert to a disapproval. Disapproval of the revised budgets for the 2007 PM10 Plan would reinstate the existing approved budgets as the budgets that must be used in transportation plan and TIP conformity determinations after the effective date of the disapproval. See 40 CFR 93.109(c)(1).11

    11 Because the submittal of the revised budgets is not a required submittal, disapproval would not trigger sanctions under CAA section 179(a)(2) but would nonetheless trigger a two-year clock for a federal implementation plan under CAA section 110(c). Disapproval would not trigger a transportation conformity freeze because the disapproval does not affect a control strategy implementation plan as defined in the transportation conformity rule. See 40 CFR 93.101 and 93.120(a).

    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, the EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves revisions to motor vehicle emission budgets as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:

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

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

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

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

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

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

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

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

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

    Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have Tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes.”

    Eight Indian tribes are located within the boundaries of the SJV air quality planning area for the 1997 8-hours ozone standard and 24-hour PM10 standard: The Big Sandy Rancheria of Mono Indians of California, the Cold Springs Rancheria of Mono Indians of California, the North Fork Rancheria of Mono Indians of California, the Picayune Rancheria of Chukchansi Indians of California, the Santa Rosa Rancheria of the Tachi Yokut Tribe, the Table Mountain Rancheria of California, the Tejon Indian Tribe, and the Tule River Indian Tribe of the Tule River Reservation.

    The EPA's approval into the SIP of the SJV revised budgets submitted by CARB would not have tribal implications 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. In those areas of Indian country, the SIP approvals do 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). Therefore, the EPA has concluded that the action will not have tribal implications for the purposes of Executive Order 13175, and will not impose substantial direct costs upon the tribes, nor will it preempt Tribal law. We note that none of the tribes located in the SJV has requested eligibility to administer programs under the CAA.

    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 October 11, 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, Incorporation by reference, Intergovernmental regulations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: July 8, 2016. Alexis Strauss, Acting Regional Administrator, EPA Region 9.

    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 paragraph (c)(476) to read as follows:
    § 52.220 Identification of plan—in part.

    (c) * * *

    (476) The following revision was submitted on November 13, 2015 by the Governor's designee.

    (i) [Reserved]

    (ii) Additional materials.

    (A) California Air Resources Board.

    (1) Attachment A to Resolution 15-50, “Updates to the Transportation Conformity Budgets for the San Joaquin Valley 2007 PM10, 2007 Ozone and 2012 PM2.5 SIPs,” Table A-1 (Updated Transportation Conformity Budgets for the 2008 Ozone Plan (Tons per summer day) and Table A-3 (Updated Transportation Conformity Budgets for the 2008 PM10 Maintenance Plan (Tons per annual day)).

    3. Subpart F is amended by adding § 52.248 to read as follows:
    § 52.248 Identification of plan—conditional approval.

    The EPA is conditionally approving a California State Implementation Plan (SIP) revision submitted on November 13, 2015 updating the motor vehicle emissions budgets for nitrogen oxides (NOX) and coarse particulate matter (PM10) for the 1987 24-hour PM10 standard for the San Joaquin Valley PM10 maintenance area. The conditional approval is based on a commitment from the State to submit a SIP revision that demonstrates full implementation of the contingency provisions of the 2007 PM10 Maintenance Plan and Request for Redesignation (September 20, 2007). If the State fails to meets its commitment by June 1, 2017, the approval is treated as a disapproval.

    [FR Doc. 2016-18898 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2015-0724; FRL-9950-52-Region 5] Air Plan Approval; Indiana; Abengoa Bioenergy of Indiana, Commissioner's Order AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a revision to the Indiana State Implementation Plan (SIP) submitted by the Indiana Department of Environmental Management (IDEM) on October 16, 2015. The submittal consists of an order issued by the Commissioner of IDEM (Commissioner's Order No. 2015-01) approving alternative control technology requirements for Abengoa Bioenergy of Indiana (Abengoa). These requirements include the use of a carbon adsorption/absorption hydrocarbon vapor recovery system with a minimum overall control efficiency of 98% to control volatile organic compound (VOC) emissions from the ethanol loading racks at Abengoa. A continuous emissions monitoring system (CEMS) must be used to monitor the carbon adsorption/absorption hydrocarbon vapor recovery system for breakthrough of VOC emissions. For the reasons discussed below, EPA is approving this submittal as a revision to Indiana's SIP.

    DATES:

    This direct final rule will be effective October 11, 2016, unless EPA receives adverse comments by September 12, 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-R05-OAR-2015-0724, 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, 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:

    Jenny Liljegren, Physical Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6832, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. What SIP revision is Indiana requesting and why? II. What action is EPA taking and why? III. Incorporation by Reference. IV. Statutory and Executive Order Reviews. I. What SIP revision is Indiana requesting and why?

    IDEM requested on October 16, 2015, that EPA approve as a revision to the SIP alternative control technology requirements for Abengoa. These requirements include the use of a carbon adsorption/absorption hydrocarbon vapor recovery system with a minimum overall control efficiency of 98% to control VOC emissions from the ethanol loading racks at Abengoa. A CEMS must be used to monitor the carbon adsorption/absorption hydrocarbon vapor recovery system for breakthrough of VOC emissions. These requirements are contained in Commissioner's Order No. 2015-01 issued by the IDEM Commissioner on September 8, 2015.

    In Abengoa's initial construction and operating permit issued by IDEM, the ethanol loading racks were subject to the statewide case-by-case Best Available Control Technology (statewide BACT) determination required under SIP-approved Title 326 Article 8 Rule 1-6 of the Indiana Administrative Code (326 IAC 8-1-6). The statewide BACT for Abengoa's ethanol loading racks was determined to be enclosed flares with a minimum overall control efficiency of 98%. Since then, Abengoa has modified its plant design, including the ethanol loading racks, and is now subject to a newer SIP-approved state rule, 326 IAC 8-5-6, Fuel Grade Ethanol Production at Dry Mills, which created an industry-specific statewide BACT standard and which replaced the statewide case-by-case BACT rule (326 IAC 8-1-6) for fuel grade ethanol production dry mills that have no wet milling operations. EPA approved this rule into the SIP on February 20, 2008 (73 FR 9201).

    The three VOC control options under 326 IAC 8-5-6 are: (1) A thermal oxidizer with a minimum overall control efficiency of 98% or resulting in a VOC concentration of not more than ten (10) parts per million (ppm), (2) a wet scrubber with a minimum overall control efficiency of 98% or resulting in a VOC concentration of not more than twenty (20) ppm, and (3) an enclosed flare with a minimum overall control efficiency of 98%. The VOC control options under 326 IAC 8-5-6 do not include a carbon adsorption/absorption hydrocarbon vapor recovery system. Abengoa has opted to use a carbon adsorption/absorption hydrocarbon vapor recovery system rather than one of the VOC control options under 326 IAC 8-5-6. However, like the VOC control options under 326 IAC 8-5-6, Abengoa's carbon adsorption/absorption system has a minimum overall control efficiency of 98%. IDEM considers the system Reasonably Available Control Technology (RACT) under SIP rule 326 IAC 8-1-5 (Petition for a site-specific reasonably available control technology (RACT) plan).

    As a result, pursuant to 326 IAC 8-1-5, Indiana has issued Commissioner's Order No. 2015-01 approving Abengoa's use of this system as an alternative site-specific RACT in lieu of the industry-specific statewide BACT options under 326 IAC 8-5-6. The carbon adsorption/absorption system will control VOC emissions at a minimum overall control efficiency of 98%, which is the same level of control of the industry-specific BACT options under 326 IAC 8-5-6; therefore, there will be no relaxation of the emission reduction requirements at Abengoa as a result of this SIP revision. As an added benefit, Abengoa's use of the carbon adsorption/absorption system is expected to result in fewer criteria air pollutant emissions, since, unlike enclosed flares, carbon adsorption/absorption does not involve the combustion of natural gas.

    It should be noted that Condition #3 of the “Conditions of Approval” in Commissioner's Order 2015-01 states: “The overall efficiency for the carbon adsorption/absorption hydrocarbon vapor recovery system (C-2101), including the capture efficiency and adsorption/absorption efficiency, shall be at least 98%. The Petitioner shall demonstrate compliance using methods approved by the department. Testing shall be conducted in accordance with the provisions of 326 IAC 3-6 (Source Sampling Procedures)”. IDEM has confirmed in an email to EPA dated June 6, 2016, that this provision requires testing using EPA Method 25 (40 CFR part 60, appendix A-7).

    II. What action is EPA taking and why?

    EPA is approving the requirements in Commissioner's Order No. 2015-01 as a revision to the Indiana SIP. This is based on EPA's finding that the 98% minimum overall control efficiency adsorption/absorption system with a CEMS qualifies as alternative site-specific RACT under 326 IAC 8-1-5 of the Indiana SIP for Abengoa's ethanol loading racks. EPA also finds that this system constitutes statewide BACT under 326 IAC 8-1-6 of the Indiana SIP in lieu of the industry-specific statewide BACT options under 326 IAC 8-5-6 of the Indiana SIP. There will be no relaxation of the emission reduction requirements at Abengoa as a result of this SIP revision. Since this is not a relaxation, section 110(l) of the Clean Air Act (CAA) is satisfied and no backsliding is occurring as a result of this SIP revision. As an added benefit, Abengoa's use of the carbon adsorption/absorption system is expected to result in fewer criteria air pollutant emissions, since, unlike enclosed flares, carbon adsorption/absorption does not involve the combustion of natural gas.

    We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the state plan if relevant adverse written comments are filed. This rule will be effective October 11, 2016 without further notice unless we receive relevant adverse written comments by September 12, 2016. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should 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. If we do not receive any comments, this action will be effective October 11, 2016.

    III. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Indiana Regulations described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 EPA has made, and will continue to make, these documents generally available through www.regulations.gov and/or at the EPA Region 5 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information.

    1 62 FR 27968 (May 22, 1997).

    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 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, 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 October 11, 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, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: August 1, 2016. Robert A. Kaplan, Acting Regional Administrator, Region 5.

    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.

    2. In § 52.770 the table in paragraph (d) is amended by adding a new entry for “Abengoa Bioenergy of Indiana” to the end of the table, to read as follows:
    § 52.770 Identification of plan.

    (d) * * *

    EPA-Approved Indiana Source-Specific Provisions CO date Title SIP rule EPA approval Explanation *         *         *         *         *         *         * 9/8/2015 Abengoa Bioenergy of Indiana N.A 8/12/2016, [Insert Federal Register citation] Alternative control technology requirements.
    [FR Doc. 2016-19032 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2015-0489; FRL-9950-19-Region 9] Revision to the California State Implementation Plan; San Joaquin Valley; Demonstration of Creditable Emission Reductions From Economic Incentive Programs AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is finalizing a limited approval and limited disapproval of a demonstration of creditable emission reductions submitted by California for approval into the San Joaquin Valley (SJV) portion of the California State Implementation Plan (SIP). This SIP submittal demonstrates that certain state incentive funding programs have achieved specified amounts of reductions in emissions of nitrogen oxides (NOX) and fine particulate matter (PM2.5) in the SJV area by 2014. The effect of this action would be to approve specific amounts of emission reductions for credit toward an emission reduction commitment in the California SIP. We are approving these emission reductions under the Clean Air Act (CAA or the Act).

    DATES:

    This rule is effective on September 30, 2016.

    ADDRESSES:

    The EPA has established docket number EPA-R09-OAR-2015-0489 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:

    Idalia Pérez, EPA Region IX, (415) 972 3248, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Proposed Action II. Public Comments and EPA Responses III. EPA Action IV. Statutory and Executive Order Reviews I. Proposed Action

    On August 24, 2015 (80 FR 51147), the EPA proposed to approve the “Report on Reductions Achieved from Incentive-based Emission Reduction Measures in the San Joaquin Valley” (Emission Reduction Report) and, based on California's documentation therein of actions taken by grantees in accordance with the identified incentive program guidelines, to approve 7.8 tpd of NOX emission reductions and 0.2 tpd of PM2.5 emission reductions for credit toward the State's 2014 emission reduction commitments in its 2008 plan to provide for attainment of the 1997 PM2.5 National Ambient Air Quality Standards (NAAQS) in the San Joaquin Valley (hereafter “2008 PM2.5 Plan”).1 The California Air Resources Board (CARB) adopted the Emission Reduction Report on October 24, 2014 and submitted it to EPA as a revision to the California SIP on November 17, 2014. We proposed to approve the Emission Reduction Report based on a determination that it satisfied the applicable CAA requirements. Our proposed action contains more information on the Emission Reduction Report and our evaluation.

    1 The 2014 emission reduction commitments are codified at 40 CFR 52.220(c)(356)(ii)(B)(2) and 52.220(c)(392)(ii)(A)(2). 76 FR 69896, 69926 (November 9, 2011).

    II. Public Comments and EPA Responses

    The EPA's proposed action provided a 30-day public comment period. During this period, we received comments from Adenike Adeyeye, Earthjustice, by email dated and received September 16, 2015. The comments and our responses are summarized below.

    Comment 1: Earthjustice asserts that the emission reductions identified in the Emission Reduction Report are not enforceable by the public and therefore should not be approved into the SIP. According to Earthjustice, the Carl Moyer program allows air districts to enter into emission reduction agreements with grant recipients, with CARB added to contracts as a third party with enforcement rights, but does not enable the public to enforce these emission reduction agreements entered into among CARB, the air district, and the grant recipient. Earthjustice argues that the EPA's enforceability criteria require that citizens have access to all emissions-related information obtained from participating sources and be able to file suit against a responsible entity for violations, and that the Emission Reduction Report does not meet these criteria.

    Response 1: We agree with the commenter's statement that the public cannot enforce the agreements entered into among CARB, an air district and a grant recipient but disagree with the commenter's suggestion that this renders the Emission Reduction Report inconsistent with the EPA's enforceability criteria. This Emission Reduction Report was submitted to demonstrate that that a portion of the emission reductions required under a previously approved SIP commitment have in fact been achieved—not to satisfy a future emission reduction requirement—and thus it does not need to provide a citizen enforcement mechanism.

    As we explained in our proposed rule, where a state relies on a discretionary economic incentive program (EIP) or other voluntary measure to satisfy an attainment planning requirement under the CAA (e.g., to demonstrate that specific amounts of emission reductions will occur by a future milestone date), the state must take responsibility for assuring that SIP emission reduction requirements are met through an enforceable commitment, which becomes federally enforceable upon approval into the SIP. 80 FR 51147, 51150. Thus, had CARB submitted the Emission Reduction Report to satisfy a future emission reduction requirement under the CAA, an enforceable state commitment to assure that the required emission reductions occur would be necessary to satisfy the Act's enforceability requirements. The purpose of the Emission Reduction Report, however, is to demonstrate that a portion of the emission reductions required under a previously-approved SIP commitment have in fact been achieved, not to satisfy a future emission reduction requirement. See id. at 51150-51151. Accordingly, it is not necessary to require the State to submit, as part of this particular SIP submission, additional commitments to achieve future emission reductions.

    The EPA evaluated the Emission Reduction Report in accordance with the Agency's guidance on discretionary EIPs. See 80 FR 51147, 51149-50 (citing, inter alia, U.S. EPA, “Improving Air Quality with Economic Incentive Programs,” January 2001 (hereafter “2001 EIP Guidance”)). A discretionary EIP uses market-based strategies to encourage the reduction of emissions from stationary, area, and/or mobile sources in an efficient manner. See 2001 EIP Guidance at 3. To qualify for approval as a discretionary EIP, emission reductions or actions leading to reductions must be enforceable either by the State or by the EPA, and the State must be directly responsible for ensuring that program elements are implemented. See id. at 157-158 (states may use the 2001 EIP Guidance where “[a]ctions and/or emission reductions by identifiable sources are enforceable by [the State] and/or by the EPA”).

    A “financial mechanism EIP” is an EIP that indirectly reduces emissions by increasing costs for high emitting activities—e.g., through subsidies targeted at promoting pollution-reducing activities or products. See 2001 EIP Guidance at 119-122. The EPA has identified several attributes that may make subsidy financial mechanism EIPs successful, including: (1) The relevant governmental body possesses legal authority to provide subsidies; (2) the subsidies address activities reasonably related to actual emissions or potential emissions; (3) where projected emission reductions are based on changes in behavior, methods for verifying that such reductions have taken place to the degree projected are generally accepted as unbiased and trustworthy; and (4) if needed, adequate penalty provisions are in place to ensure that the subsidy is used as expected. See 2001 EIP Guidance at 27 (“Attributes That Make Subsidy Financial Mechanism EIPs Successful”).

    As explained further in Response 2 below, the portions of the Proposition 1B: Goods Movement Emission Reduction Program (Prop 1B program) and Carl Moyer Memorial Air Quality Standards Attainment Program (Carl Moyer Program) guidelines discussed in the Emission Reduction Report are consistent with the EPA's recommendations for “financial mechanism EIPs” in the 2001 EIP Guidance. First, CARB and the District are directly responsible for ensuring that the Prop 1B program and Carl Moyer Program are implemented in accordance with State law. See 2010 Prop 1B guidelines at 1-4 (“Overview”) and 2011 Carl Moyer Program Guidelines at Chapter 1 (“Program Overview”). Second, the incentive programs discussed in the Emission Reduction Report address actions reasonably related to actual air pollutant emissions, e.g., by requiring grant recipients to purchase and operate newer, cleaner vehicles or equipment in place of older, more-polluting vehicles or equipment, subject to detailed contract requirements. Third, the relevant portions of the 2008 and 2010 Prop 1B guidelines and the 2005, 2008 and 2011 Carl Moyer Program Guidelines establish a number of methods for verifying that projected emission reductions have taken place through compliance with the terms and conditions of each funding contract. Finally, under the applicable guidelines, actions by grantees that lead to emission reductions are directly enforceable by the State and/or the District—e.g., CARB and/or the District may assess fiscal penalties and take certain corrective actions where contract violations are identified. Consistent with the EPA's recommendations for “financial mechanisms EIPs,” these provisions in the 2008 and 2010 Prop 1B guidelines and the 2005, 2008 and 2011 Carl Moyer Program Guidelines are adequate to ensure that program funds are used as expected—i.e., to reduce emissions from higher-polluting vehicles and equipment by replacing them with newer, lower-polluting equipment and vehicles. Based on our more detailed evaluations of 11 randomly selected projects from among those listed in the Emission Reduction Report, we find that the projects identified in the Emission Reduction Report were implemented as required under the applicable program guidelines and achieved the emission reductions projected for those projects, with the exception of one source category. See Response 2.

    In sum, although an enforceable state commitment would ordinarily be necessary for a SIP submission that relies on a discretionary EIP to satisfy CAA enforceability requirements, such a commitment is not necessary in this case because the Emission Reduction Report was not submitted to satisfy a future emission reduction requirement and, instead, demonstrates only that certain Prop 1B program and Carl Moyer Program incentive projects achieved specified amounts of emission reductions in the past. The portions of the Prop 1B program and Carl Moyer Program guidelines that apply to the identified incentive projects ensure that program funds are used as expected and that the EPA and citizens have access to all emissions-related information obtained from participating sources. Based on our review of the available project records for a subset of the projects identified in the Emission Reduction Report, we find that the identified projects achieved the necessary emission reductions, with the exception of one source category discussed further below. Therefore, it is not necessary for the Emission Reduction Report to provide a mechanism for citizen suits against a responsible entity.

    Comment 2: Earthjustice argues that, based on the information presented in the Emission Reduction Report, citizens cannot even obtain the information necessary to quantify and verify emission reductions. For example, Earthjustice states that the total project life for each stationary and portable farm engine funded through the Carl Moyer program varies from two years to ten years and that project life varies, in part, because emission reductions cannot be counted as surplus after the compliance date for a regulation applicable to that project. Earthjustice states that CARB is required to ensure that emission reductions from projects are no longer counted as SIP-creditable emission reductions after that compliance date but argues that “[n]either EPA nor the public has any way of knowing whether or not these projects were counted during only the years in which they were surplus because CARB does not provide enough information to determine a project's compliance date.”

    According to Earthjustice, to determine whether the stationary and portable farm engine projects were counted only for the years during which they could be considered surplus, one would need to know: What type of engine was used as a replacement; the horsepower of the engine used as a replacement; tier of the original agricultural engine; and fleetwide particulate matter (PM) levels.

    Response 2: We disagree with the commenter's claim that citizens cannot obtain the information necessary to quantify and verify emission reductions. As we explained in the technical support document supporting our proposed rule and as explained in further detail below, the emission reductions identified in the Emission Reduction Report can be independently verified and the public has access to emissions-related information due to several requirements in the 2008 and 2010 Prop 1B guidelines and the 2005, 2008 and 2011 Carl Moyer Program guidelines. See U.S. EPA Region 9, Air Division, “Technical Support Document for EPA's Notice of Proposed Rulemaking for the California State Implementation Plan, Report on Reductions Achieved from Incentive-Based Emission Reduction Measures in the San Joaquin Valley,” August 2015 (“Proposal TSD”) at 7-15. We discuss the relevant guideline provisions in more detail below.

    First, actions required of grantees under the applicable portions of the Prop 1B and Carl Moyer Program guidelines are independently verifiable through (1) pre-project and post-project on-site inspections (with photographic documentation) that the District and/or CARB must carry out pursuant to the applicable guidelines, and (2) documents that each grantee is required to maintain and/or submit to the District in accordance with detailed contract provisions. See generally 2008 Prop 1B guidelines at Section III.D (“Local Agency Project Implementation Requirements”), Section IV (“General Equipment Project Requirements”), and Appendix A, Section C (“Recordkeeping Requirements”) and Section D (“Annual Reporting Requirements”); 2010 Prop 1B guidelines at Section IV.A (“Project Implementation Requirements”), Section VI (“General Equipment Project Requirements”), and Appendix A, Section F (“Recordkeeping Requirements”) and Section G (“Annual Reporting Requirements”); 2005 Carl Moyer Guidelines, Part I, Chapter 2 (“Administration of the Carl Moyer Program”); 2008 Carl Moyer Guidelines, Part III (“Program Administration”) and 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 (“Program Administration”).

    For example, the 2008 and 2010 Prop 1B guidelines require, among other things, that (1) all project applications include documentation of current equipment and activity information (e.g. engine make, model, horsepower and fuel type, annual vehicle miles of travel (VMT) in California, and estimated percentage of annual VMT in trade corridors); (2) that the District conduct a “pre-inspection” of each application deemed eligible for funding, to verify information regarding the baseline engine, vehicle, or equipment; (3) that the District conduct a “post-inspection” of each funded project to record, among other things, identifiers and specifications for the new engine/equipment (e.g., Vehicle Identification Numbers (VIN) for new trucks, serial numbers for new engines), and verification that the new engine/equipment is operational and consistent with the old/replaced equipment, where applicable; and (4) that the District's pre-inspection and post-inspection project files include photographic documentation of each piece of equipment being inspected, including an engine serial number, visible distinguishing identification (e.g., a license plate), and a full view of the equipment. See 2008 Prop 1B guidelines at Section III.D.8 (“Equipment project pre-inspections'), Section III.D.14 (“Equipment project post-inspections”), Section IV.D (“Equipment Project Application Requirements”) and Appendix A, Section F (“Application Information”); 2010 Prop 1B guidelines at Section IV.A.10 (“Equipment project pre-inspections”), Section IV.A.16 (“Equipment project post-inspections”), Section VI.D (“Equipment Project Application Requirements”) and Appendix A, Section F (“Application Information”); see also Proposal TSD at 14-15.

    Similarly, the 2005, 2008 and 2011 Carl Moyer Program Guidelines require, among other things, that (1) all project applications include documentation of existing engine usage in previous years (e.g. miles traveled, hours operated, or fuel consumed per year); (2) that the District conduct a “pre-inspection” of each application deemed eligible for funding, to verify information regarding the baseline engine, vehicle, or equipment; (3) that the District conduct a “post-inspection” of each funded project to record, among other things, information regarding the new engines, vehicles/equipment, and retrofit devices as needed to provide a basis for emission calculations and to ensure contract enforceability; and (4) that the District's pre-inspection and post-project files include photographic documentation of the engine, vehicle, or equipment information, including a legible serial number and/or other identifying markings. See 2005 Carl Moyer Program Guidelines, Part I, Chapter 2 at Section V.D (“Project Applications”), Section IX.A (“Pre-Inspection”), and Section IX.B (“Post-Inspection”); 2008 Carl Moyer Program Guidelines, Part III, Part II at Section 26 (“Minimum Project Application Requirements”), Section 30 (“Project Pre-Inspections”), and Section 31 (“Post-Inspection”); 2011 Carl Moyer Program Guidelines, Part I, Chapter 3, at Section W (“Minimum Project Application Requirements”), Section AA (“Project Pre-Inspection”), and Section BB (“Project Post-Inspection”); see also Proposal TSD at 8-9.

    Second, the applicable portions of the 2008 and 2010 Prop 1B guidelines and the 2005, 2008 and 2011 Carl Moyer Program guidelines specifically define the required elements of each contract and the types of actions that constitute violations of such contracts. For example, under the 2008 and 2010 Prop 1B guidelines, each equipment project contract must include: (1) A unique “tracking number”; (2) the equipment owner's contact information; (3) the original application submitted by the equipment owner; (4) requirements for the equipment owner to submit reports to the local agency annually or biennially; (5) the equipment owner's agreement to allow ongoing evaluations and audits of equipment and documentation by the District, CARB, or their designated representative(s); and (6) requirements for the equipment owner to retain all records pertaining to the program (i.e., invoices, contracts, and correspondence) for at least two years after the equipment project ends or three years after final payment, whichever is later. See 2008 Prop 1B guidelines at Section III.D.10 (“Equipment project contracts”) and 2010 Prop 1B guidelines at Section IV.A.11 (“Equipment project contracts”); see also Proposal TSD at 14-15. Additionally, under the same guidelines, the following actions (among others) are specifically identified as contract violations: (1) Failure to meet the terms and conditions of an executed equipment project contract, including equipment operating conditions and geographic restrictions; (2) failure to allow for an electronic monitoring device or tampering with an installed device or data; (3) insufficient, incomplete, or faulty equipment project documentation; and (4) failure to provide required documentation or reports in a timely manner. See 2008 Prop 1B guidelines at Section IV.G (“Equipment Project Non-Performance”) and 2010 Prop 1B guidelines at VI.I (“Equipment Project Non-Performance”); see also Proposal TSD at 14-15.

    Similarly, under the 2005, 2008 and 2011 Carl Moyer Program Guidelines, each equipment project contract must include: (1) The name and contact information of the grantee; (2) specified timeframes for “project completion” (the date the project post-inspection confirms that the project has become operational) and “project implementation” (the project life used in the project cost-effectiveness calculation); (3) detailed information on both baseline and new vehicles, equipment, and/or engines, including documentation adequate to establish historical annual usage; (4) requirements for the grantee to maintain the vehicle, equipment and/or engine according to the manufacturer's specifications for the life of the project; (5) annual reporting requirements; (6) a provision authorizing the District, CARB, and their designees to conduct fiscal audits and to inspect the project engine, vehicle, and/or equipment and associated records during the contract term, and (7) requirements to maintain and retain project records for at least two years after contract expiration or three years after final project payment, whichever is later. See 2005 Carl Moyer Program Guidelines, Part I, Chapter 2 at Section VIII (“Minimum Contract Requirements”); 2008 Carl Moyer Program Guidelines, Part III, Part III at Section 29 (“Minimum Contract Requirements”); and 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at Section Z (“Minimum Contract Requirements”). Additionally, the 2011 Carl Moyer Program Guidelines explicitly require that each contract “specify that by executing the contract, the grantee understands and agrees to operate the vehicle, equipment, and/or engine according to the terms of the contract” and describe the potential repercussions to the grantee for non-compliance with contract requirements. See 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at Section Z.11 (“Repercussions for Non-Performance”) and Section FF (“Nonperforming Projects”); see also 2005 Carl Moyer Program Guidelines, Part I, Chapter 2 at Section VIII.G (“Repercussions for Nonperformance”); and 2008 Carl Moyer Program Guidelines, Part III, Part III at Section 35 (“Nonperforming Projects”). The 2011 Carl Moyer Program Guidelines also specifically identify types of actions on the part of the District that CARB may treat as violations of program requirements—e.g., misuse of Carl Moyer Program funds and insufficient, incomplete, or inaccurate project documentation. See 2011 Carl Moyer Program Guidelines at Section U (“Program Non-Performance”).

    Third, the applicable portions of the Prop 1B guidelines and Carl Moyer Program guidelines require that all grantees submit specific types of project records to the District and also require the District to maintain such records for specified periods of time. Specifically, as discussed above, under the 2008 Prop 1B guidelines, the 2010 Prop 1B guidelines, and the 2005, 2008 and 2011 Carl Moyer Program guidelines, each contract executed by the District must require the grantee to maintain project records for at least two years after contract expiration or three years after final project payment, whichever is later, and to submit annual or biennial reports to the District. See 2008 Prop 1B guidelines at Section III.D.10 (“Equipment project contracts”), 2010 Prop 1B guidelines at Section IV.A.11 (“Equipment project contracts”), 2005 Carl Moyer Program Guidelines, Part I, Chapter 2 at Section VIII (“Minimum Contract Requirements”); 2008 Carl Moyer Program Guidelines, Part III, Part III at Section 29 (“Minimum Contract Requirements”); and 2011 Carl Moyer Program Guidelines, Part I, Chapter 3 at Section Z (“Minimum Contract Requirements”); see also Proposal TSD at 8-9 and 14-15. Additionally, the 2008 Prop 1B guidelines require the District to retain all “program records” (e.g., invoices, contracts, and correspondence) for at least two years after the project ends or three years after final payment, whichever is later. See 2008 Prop 1B guidelines, Chapter II, Section D.10.b (“General Program provisions”). The 2010 Prop 1B guidelines require the District to retain “program records” for 35 years after the bond issuance date providing the funds for the grant, or to send all records to CARB by the end date of the grant agreement. See 2010 Prop 1B guidelines, Chapter II, Section E.10.b (“General Program provisions”). Under the Carl Moyer Program Guidelines, the District must keep each “project file” for a minimum of two years after the end of the contract term or a minimum of three years after final payment, whichever is later. See 2011 Carl Moyer Program Guidelines, Chapter 3, Section V (“ARB Audit of Air Districts”) at 3-25. A “project file” generally includes a copy of the application, a completed pre- and post-inspection form, and the annual reports submitted by the grantee. See id. at Section X.6, Section AA.4, Section BB.1.(G), and Section DD.3. These requirements of the Carl Moyer Program and Prop 1B guidelines ensure that grantees submit, and that the District maintains, project documents sufficient for the EPA and the public to verify the emission reductions attributed to these projects in the Emission Reduction Report.

    To demonstrate how the public can quantify and verify the emission reductions identified in the Emission Reduction Report, we randomly selected 0.5% of the projects in Appendix H of the Emission Reduction Report and requested that CARB provide to us the information necessary to verify the emission reduction calculations for these projects. From Appendix H.1, which lists the Carl Moyer projects included in the Emission Reduction Report, we randomly selected the projects identified in Table 1.

    Table 1—Selection of Carl Moyer Projects From the Emission Reduction Report Project No. Carl Moyer Guideline year Source category Technology Post
  • inspection
  • date
  • Project life 2014 NOX
  • (tpy)
  • 2014 PM2.5
  • (tpy)
  • G-0014-A 2008 Off-Road Equipment—Construction Retrofit 12/28/10 5 0.000 0.018 S-1301 2005 Off-Road Equipment—Mobile Agricultural Repower 10/16/09
  • 08/17/09
  • 7
  • 7
  • 2.610
  • 4.040
  • 0.092
  • 0.120
  • C-2570 2005 Stationary and Portable Agricultural Engines Repower 01/12/10
  • 01/12/10
  • 10
  • 5
  • 9.880
  • 7.070
  • 0.331
  • 0.129
  • C-14205 2011 Stationary and Portable Agricultural Engines Repower 04/25/14 10 1.570 0.055

    From Appendix H.2, which lists the Prop 1B Heavy Duty Diesel Truck Replacement projects included in the Emission Reduction Report, we randomly selected the projects identified in Table 2.

    Table 2—Selection of Prop 1B Projects From the Emission Reduction Report Equipment project ID Prop 1B Guideline year Contract term Post-
  • inspection
  • date
  • 2014 NOX
  • (lbs/yr)
  • 2014 PM2.5
  • (lbs/yr)
  • G08GMCT1_03079 2010 5 01/02/13 10281.31771 229.6259777 G08GMCT1_00642 2010 5 08/21/12 1724.9954 164.035448 G08GMCT1_02930 2010 5 07/25/13 0 0 G07GMCT3_01246 2008 5 06/01/10 8012.6276 235.703448 G07GMCT3_00301 2008 5 09/30/10 394.2153 22.0965876 G07GMCT3_00437 2008 5 01/01/11 3756.22742 110.4951004 G07GMCT3_00377 2008 5 03/04/11 2909.28645 92.691702

    We independently calculated the emission reductions for the selected projects using additional project information submitted by CARB at our request and found that the emission reduction calculations for all of the selected projects were replicable, with the exception of one project that was erroneously included in the Emission Reduction Report and accounted for 0 reductions. See U.S. EPA Region 9, Memorandum to File dated April 26, 2016, “Sample emission reduction calculations for selected Carl Moyer and Prop 1B projects,” Docket No. EPA-R09-OAR-2015-0489 and references therein. Additionally, at our request, CARB submitted the project application, grant agreement and documentation of destruction for one Carl Moyer Program project (Project Number C-2570, Stationary and Portable Agricultural Engines, Repower, 2005 Carl Moyer Guidelines) and one Prop 1B Program project (Equipment Project ID G07GMCT3_01246, Heavy Duty Diesel Truck Replacement, 2008 Prop 1B Guidelines). See email dated April 19, 2016, from Sylvia Vanderspek (CARB) to Jeanhee Hong (USEPA Region 9), including attachments. We evaluated the information contained in these project records to verify CARB's emission reduction calculations in the Emission Reduction Report.

    For Carl Moyer project C-2570, the project application contains information about the existing and new engine (including engine make, model year, horsepower, and tier), engine function and type (e.g., stationary or portable), the project life, the hours of operation, and percentage of usage in the San Joaquin Valley. See San Joaquin Unified Valley Air Pollution Control District (SJVUAPCD), Application C-2570, Heavy-Duty Engine Program Agricultural Pump Engine Component, Diesel Engine to Electric Motor Repower Option (“Carl Moyer Application C-2570”) at section 2, section 3 and accompanying table (“For Internal Use Only”)).2 The project agreement, which is the contract between the grantee and the SJVUAPCD, includes a description of the engines, a requirement to destroy the existing engine, the duration of the terms of the agreement, annual reporting requirements, a noncompliance provision for reporting, and provisions concerning District audits. See SJVUAPCD, Agreement C-2570, Heavy-Duty Engine Emission Reduction Incentive Program Funding Agreement (Electric Agricultural Pump Motor Repower), July 30, 2009 (“Carl Moyer Agreement C-2570”) at section 2, section 3, section 5, section 6, and section 21. Finally, pre- and post-inspection monitoring reports for project C-2570 include photographic evidence of engine information and destruction of the old engine. See Heavy-Duty Program Monitoring Report, pre-inspection and post inspection, project number C-2570 (“Carl Moyer Monitoring Reports C-2570”). Consistent with the requirements of the 2005 Carl Moyer Program guidelines at Part I, chapter 2, sections V.D, VIII, and IX, these project records contain all of the information necessary to verify whether project C-2570 was implemented as required and achieved the emission reductions calculated for this project.

    2 Personal information has been redacted from each document for privacy reasons.

    Similarly, for Prop 1B project G07GMCT3_01246, the project application contains information about the existing and new engine (including engine make, model year, gross vehicle weight rating (GVWR), Vehicle Identification Number (VIN), and horsepower), the annual vehicle-miles-traveled (VMT) for both the existing and new engine, and percentage of usage in the San Joaquin Valley. See SJVUAPCD, Application P-0442,3 Proposition 1B: Good Movement Emission Reduction Program Component, Truck Replacement (“Prop 1B Application G07GMCT3_01246”) at sections 2-4.4 The project agreement, which is the contract between the grantee and the SJVUAPCD, includes a description of the existing and new engines, a requirement to destroy the existing engine, the duration of the terms of the agreement, annual reporting requirements, nonperformance provisions, and provisions concerning District audits. See SJVUAPCD, Agreement P-0442-A, Proposition 1B: Goods Movement Emission Reduction Program Funding Agreement (Truck Replacement), March 16, 2010 (“Prop 1B Agreement G07GMCT3_01246”) at sections 2, 3, 5, 6.F, 7, 12, and 23. Finally, post-inspection monitoring reports for project G07GMCT3_01246 include photographic evidence of engine information and destruction of the old engine. See Proposition 1B Program Truck Replacement Option, Exist (Old) Truck Post-Monitoring Inspection, Project Number P-0442-A (“Prop 1B Monitoring Reports G07GMCT3_01246”). Consistent with the requirements of the 2008 Prop 1B Guidelines at sections III.D.10, III.D.14, IV.D and Appendix A, Section F, these project records contain all of the information necessary to verify whether Project G07GMCT3_01246 was implemented as required and achieved the emission reductions calculated for this project.

    3 These project documents are labeled with the District-only identification number “P-0442.” According to CARB, the Goods Movement Online Database (GMOD) includes both the District identifier (P-0442) and the CARB Equipment Project ID (G07GMCT3_01246). See email dated May 9, 2016, from Austin Hicks (CARB) to Idalia Pérez (USEPA Region 9), RE: “Prop 1B Application I Numbers” and Memorandum dated May 2, 2016, from Idalia Pérez (USEPA Region 9) to File, RE: “Call with ARB regarding questions on Prop 1B documentation.”

    4 Personal information has been redacted from each document for privacy reasons.

    Any member of the public can obtain project-related documents maintained by the State and/or District by submitting a request for such documents under the California Public Records Act. See Ca. Gov't Code §§ 6250-6276.48. Accordingly, the EPA and citizens can obtain the information necessary to quantify and verify the emission reductions identified in the Emission Reduction Report.

    We also disagree with Earthjustice's assertion that there is no way to verify whether the emission reductions attributed to the projects identified in the Emission Reduction Report are “surplus” to existing requirements. As an initial matter, we note that both the Carl Moyer Program guidelines and the Prop 1B guidelines generally require that funded projects achieve emission reductions not required by any federal, state or local regulation or other legal mandate. See 2005 Carl Moyer Guidelines, Part I, Section VIII.D; 2008 Carl Moyer Guidelines, Part III, Section (27)(i); 2011 Carl Moyer Guidelines, Part 1, Chapter 2; 2008 Prop 1B Guidelines, Section III.B.1 at 47; and 2010 Prop 1B Guidelines, Section III.B.1 at 57.

    Earthjustice highlights “stationary and portable farm engines” as a source category for which the project life varies from two to ten years and claims that there is no way to know whether or not these projects were counted for only the years in which their emission reductions were surplus. We assume the commenter intended to refer to the “Stationary and Portable Agricultural Engines” source category under the Carl Moyer Program. Two of the Carl Moyer projects that we randomly selected for evaluation (identified in Table 1) are within this source category (project numbers C-2570 and C-14205). According to CARB, these two projects were of the equipment type “Stationary Agricultural Irrigation Pump.” See email dated November 12, 2015, from Sylvia Vanderspek (CARB) to Andrew Steckel (USEPA Region 9). These engines are subject to CARB's Airborne Toxic Control Measure (ATCM) for Stationary Compression Ignition (CI) Engines in title 17, sections 93115—93115.15 of the California Code of Regulations (17 CCR §§ 93115—93115.15) (hereafter “Stationary Engine ATCM”). Table 7 of the Stationary Engine ATCM provides a summary of requirements for in-use noncertified stationary diesel-fueled engines used in agricultural operations and Table 8 of the Stationary Engine ATCM provides a summary of requirements for certified in-use Tier 1 and Tier 2 engines used in agricultural operations. See 17 CCR § 93115.8, Table 7 and Table 8.

    The emission reductions attributed to project C-14205 and project C-2570 engine #1 during the January 1-December 31, 2014 timeframe were surplus to the requirements of the Stationary Engine ATCM because they occurred before the earliest ATCM compliance deadline applicable to these engines, which was December 31, 2014. The emission reductions attributed to project C-2570 engine #2 during the January 1-December 31, 2014 timeframe, however, were not entirely surplus because that engine was required to comply with the Stationary Engine ATCM's NOX and PM2.5 emission limits for in-use noncertified stationary diesel-fueled engines used in agricultural operations by December 31, 2010.5 See Table 3.

    5 Because the existing uncertified engine for project C-2570 engine #2 was replaced with an electric unit, this project did achieve some surplus emission reductions beyond those required by the Stationary Engine ATCM.

    Table 3—Stationary Engine ATCM Compliance Deadlines Applicable to Carl Moyer Program Projects C-2570 and C-14205 Project No. Equipment identifier Fuel type Horsepower Existing engine certification Deadline for compliance with stationary engine ATCM 6 New engine Project life Post
  • inspection date
  • C-2570 1 Diesel 385 Tier 1 Standard Later of 12/31/14 or 12 years after the date of initial installation Electric 10 01/12/10 C-2570 2 Diesel 420 Uncontrolled (uncertified) 12/31/10 Electric 5 01/12/10 C-14205 1 Diesel 335 Tier 3 Standard N/A Electric 10 04/25/14 Source: Email dated December 3, 2015 from Austin Hicks (CARB) to Andrew Steckel (USEPA Region 9), RE: “Additional information request to support final action on ARB Incentive Report,” including attachments.

    6See 17 CCR § 93115.8, Table 7 and Table 8.

    Given this information, we have assumed conservatively that all emission reductions attributed to Carl Moyer Program projects in the “Stationary and Portable Agricultural Engines” source category in the Emission Reduction Report are not surplus and, therefore, are not creditable for SIP purposes at this time. Stationary and portable agricultural engine projects account for 2.829 tpd of the NOX emission reductions and 0.066 tpd of the direct PM2.5 emission reductions identified in the Emission Reduction Report as shown in Table 4. See Emission Reduction Report, Appendix H1 at pp. 8-29.

    Table 4—Emission Reductions From Carl Moyer Stationary and Portable Agricultural Engine Repower Projects Carl Moyer guideline year 2014 NOX
  • (tpd)
  • 2014 PM2.5
  • (tpd)
  • 2005 2.675 0.063 2008 0.132 0.002 2011 0.022 0.001 Total Reductions 2.829 0.066 Source: Emission Reduction Report, Appendix H1 at pp. 27-29.

    We are therefore subtracting these amounts from the total amounts of NOX and direct PM2.5 emission reductions identified in the Emission Reduction Report (7.8 tpd of NOX emission reductions and 0.2 tpd direct PM2.5 emission reductions), and crediting the Emission Reduction Report with only 4.971 tpd of NOX emission reductions and 0.134 tpd of direct PM2.5 emission reductions toward the State's 2014 emission reduction commitment in the 2008 PM2.5 Plan.

    Earthjustice argues that in order to determine whether these projects were counted only for the years during which they could be considered surplus, one would need to know the type of engine that was used as a replacement; the horsepower of the engine used as a replacement; the tier of the original agricultural engine; and fleetwide particulate matter (“PM”) levels. We agree that information about the type of engine that was used as a replacement, the horsepower of the new engine, and the tier of the original agricultural engine is necessary to determine whether the emission reductions attributed to a particular Carl Moyer project are surplus. As explained above, project documents that the District is required to maintain under the Carl Moyer and Prop 1B program guidelines, which CARB submitted to the EPA at our request, identify all of this information. With respect to fleetwide PM levels, we note that this information is not necessary to determine the ATCM compliance date applicable to a stationary agricultural engine, because the requirements of the Stationary Engine ATCM do not vary based on fleetwide PM levels. See generally 17 CCR §§ 93115-93115.15. Carl Moyer projects C-2570 and C-14205 are stationary agricultural engines subject to the Stationary Engine ATCM. See email dated November 12, 2015, from Sylvia Vanderspek (CARB) to Andrew Steckel (USEPA Region 9). Thus, information about fleetwide PM levels is not necessary to determine whether these projects achieved surplus emission reductions. We agree with Earthjustice that information concerning fleetwide PM levels is necessary to determine certain compliance dates under the ATCM for diesel particulate matter from portable engines. See 17 CCR § 93116.3. To the extent the commenter intended to argue that this information is necessary to determine whether a Carl Moyer project for a portable engine will achieve emission reductions that are surplus to existing requirements, we understand that CARB would provide such information upon request under the California Public Records Act and that the public can, therefore, verify whether the emission reductions attributed to any such project are surplus.

    Based on these reviews, we find that the Emission Reduction Report contains information adequate to enable the EPA and citizens to obtain emissions-related information necessary to quantify and verify the emission reductions attributed to the identified Carl Moyer Program and Prop 1B projects.

    Comment 3: Earthjustice states that incentive programs should not “be approved into the SIP as a replacement for emission reductions from regulations without fulfilling the four fundamental integrity elements” and urges the EPA to require that emission reductions be enforceable and quantifiable before approving them into the SIP.

    Response 3: This action does not incorporate any portion of the Prop 1B program or Carl Moyer Program, or any related guidelines, into the SIP. To the extent Earthjustice intended to state that the EPA should not approve emission reductions from the projects identified in the Emission Reduction Report for credit toward a SIP commitment unless the applicable incentive programs satisfy the EPA's integrity elements, we agree. As explained in our proposed rule and further in Responses 1 and 2 above, the portions of the Prop 1B program and Carl Moyer Program guidelines that apply to the projects identified in the Emission Reduction Report adequately address the EPA's recommended integrity elements for discretionary EIPs. Based on our review of project-specific documentation submitted by CARB at our request, however, we have found that the emission reductions attributed to one Carl Moyer Program project within the “Stationary and Portable Agricultural Engines” category were not entirely surplus to existing requirements and, therefore, are not creditable for SIP purposes at this time, or until properly adjusted to account for existing regulations. As a result, we have conservatively assumed that all of the Stationary and Portable Agricultural Engine Carl Moyer projects identified in the Emission Reduction Report are not SIP-creditable and subtracted the emission reductions attributed to these projects from the total amounts of NOX and direct PM2.5 emission reductions identified in the Emission Reduction Report. See Response 2. We find that, with this one exception, the Carl Moyer Program and Prop 1B projects identified in the Emission Reduction Report have achieved the NOX and PM2.5 emission reductions attributed to them in the Emission Reduction Report. We are therefore approving 4.971 tpd of NOX emission reductions and 0.134 tpd of PM2.5 emission reductions for credit toward the State's 2014 emission reduction commitment in the 2008 PM2.5 Plan.

    III. EPA Action

    Under sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a limited approval and limited disapproval of the Emission Reduction Report and crediting the incentive projects identified therein with 4.971 tpd of NOX reductions and 0.134 tpd of PM2.5 reductions toward the State's 2014 emission reduction commitments in the 2008 PM2.5 Plan. We are finalizing a limited approval of the Emission Reduction Report because it largely satisfies the applicable CAA requirements. We are simultaneously finalizing a limited disapproval of the Emission Reduction Report because the demonstration therein concerning the Carl Moyer Stationary and Portable Agricultural Engines source category does not satisfy CAA requirements for SIP credit. Our reasons for disapproving the submitted demonstration on this basis are explained in our responses to comments above.

    This limited disapproval does not trigger any sanctions clocks under CAA section 179(a) because the Emission Reduction Report was not submitted to address a requirement of part D, title I of the Act or in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (i.e., a “SIP Call”). The limited disapproval also does not trigger any obligation on the EPA to promulgate a federal implementation plan (FIP) because the disapproval does not create any deficiency in the SIP that must be corrected.

    IV. Statutory and Executive Order Reviews

    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 October 11, 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

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

    Dated: July 21, 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 paragraph (c)(477) to read as follows:
    § 52.220 Identification of plan.

    (c) * * *

    (477) The following plan revision was submitted on November 17, 2014 by the Governor's designee.

    (i) [Reserved]

    (ii) Additional Material.

    (A) California Air Resources Board.

    (1) “Report on Reductions Achieved from Incentive-based Emission Reduction Measures in the San Joaquin Valley,” adopted on October 24, 2014, including appendices F-H.

    [FR Doc. 2016-18903 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2013-0464; FRL-9950-49-Region 6] Approval and Promulgation of Air Quality Implementation Plans; Louisiana; Interstate Transport of Air Pollution for the 2008 Ozone National Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is disapproving the portion of a Louisiana State Implementation Plan (SIP) submittal pertaining to interstate transport of air pollution which will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone National Ambient Air Quality Standards (NAAQS) in other states. Disapproval will establish a 2-year deadline, under Clean Air Act (CAA) Section 110(c), for the EPA to promulgate a Federal Implementation Plan (FIP) for Louisiana to address the CAA interstate transport requirements pertaining to significant contribution to nonattainment and interference with maintenance of the 2008 ozone NAAQS in other states, unless the EPA approves a SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for Louisiana.

    DATES:

    This rule is effective on September 12, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2013-0464. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

    FOR FURTHER INFORMATION CONTACT:

    Sherry Fuerst 214-665-6454, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. Background

    This rulemaking addresses an infrastructure SIP submittal from the State of Louisiana addressing, among other things, the requirements of CAA section 110(a)(2)(D)(i)(I), also known as the good neighbor provision, with respect to the 2008 ozone NAAQS. The background for this action is discussed in detail in our June 7, 2016 proposal (81 FR 36496). In that action we proposed to disapprove the portion of the June 4, 2013 Louisiana SIP submittal pertaining to CAA 110(a)(2)(D)(i)(I) which requires that the State prohibit the interstate transport of air pollution which will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states.

    In proposing to disapprove the State's SIP submittal as to the good neighbor provision, we noted two specific deficiencies in the Louisiana submission. First, Louisiana cited the State's approved Clean Air Interstate Rule (CAIR) SIP as support for its conclusion that the State satisfied its section 110(a)(2)(D)(i)(I) obligation with respect to the 2008 ozone NAAQS. However, as explained in our proposal, CAIR was invalidated by the D.C. Circuit in North Carolina v. EPA, 531 F.3d 896 (2008). Even if Louisiana could rely on its CAIR SIP the modeling and rulemaking conducted for both CAIR, or its successor, the Cross-State Air Pollution Rule (CSAPR), 76 FR 48208 (August 8, 2011) addressed the 1997 ozone NAAQS, not the more stringent 2008 ozone NAAQS at issue in this action. Because the Louisiana submittal addressed by this action concerns the State's interstate transport obligations for a different and more stringent standard (the 2008 ozone NAAQS), we stated it is not sufficient to merely cite to older EPA or state implemented programs as evidence of compliance with the current 2008 ozone NAAQS. Second, the State's submittal lacked any technical analysis evaluating or demonstrating whether emissions in Louisiana impacts air quality in another state. As such, we proposed that the submittal did not provide us with a basis to agree with the State's conclusion that the State already has adequate provisions in the SIP to address CAA section 110(a)(2)(D)(i)(I) requirements for the 2008 ozone NAAQS. We did not receive any comments regarding our proposal.

    II. Final Action

    EPA is disapproving a portion of a June 4, 2013 SIP submittal from Louisiana pertaining to interstate transport of air pollution which will significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in other states. Disapproval will establish a 2-year deadline, under the CAA Section 110(c), for the EPA to promulgate a FIP for Louisiana to address the CAA interstate transport requirements pertaining to significant contribution to nonattainment and interference with maintenance of the 2008 ozone NAAQS in other states, unless the EPA approves a SIP that meets these requirements. Disapproval does not start a mandatory sanctions clock for Louisiana pursuant to CAA section 179 because this action does not pertain to a part D plan for nonattainment areas required under CAA section 110(a)(2)(I) or a SIP call pursuant to CAA section 110(k)(5).

    III. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This final action is not a “significant regulatory action” because it is not categorized as “significant” under section 3(f) of Executive Order 12866 and therefore was not submitted to the Office of Management and Budget for review.

    B. Paperwork Reduction Act (PRA)

    This final action does not impose an information collection burden under the PRA because it does not contain any information collection activities.

    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 merely disapprove a SIP submission as not meeting the CAA.

    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 action does not apply on any Indian reservation land, any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, or non-reservation areas of Indian country. 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 merely disapproves a SIP submission as not meeting the CAA.

    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

    This rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. This action merely disapproves a SIP submission as not meeting the CAA.

    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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 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, Incorporation by reference, and Ozone.

    Dated: July 29, 2016. Ron Curry, Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart T—Louisiana 2. Section 52.996 is revised to read as follows:
    § 52.996 Disapprovals.

    (a) The portion of the SIP submitted on June 4, 2013 addressing Clean Air Act section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS is disapproved.

    (b) [Reserved]

    [FR Doc. 2016-19148 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2014-0704; FRL-9950-54-Region 5] Wisconsin; Approval/Disapproval of Interstate Transport Requirements for the 2008 Ozone NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is partially approving and partially disapproving elements of State Implementation Plan (SIP) submission from Wisconsin regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) for the 2008 ozone National Ambient Air Quality Standards (NAAQS). The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. This action pertains specifically to infrastructure requirements concerning interstate transport provisions for which Wisconsin made a SIP submission that, among other things, certified that the existing SIP was sufficient to meet the interstate transport requirements for the 2008 ozone NAAQS.

    DATES:

    This final rule is effective on September 12, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2014-0704. 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., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either through www.regulations.gov or please contact the person identified in the “For Further Information Contact” section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Sarah Arra, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-9401, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. What is the background of this SIP submission?

    II. What action did EPA propose on the SIP submission?

    III. What is our response to comments received on the proposed rulemaking?

    IV. What action is EPA taking?

    V. Statutory and Executive Order Reviews.

    I. What is the background of this SIP submission?

    This rulemaking addresses CAA section 110(a)(2)(D)(i) requirements in an infrastructure SIP submission addressing the applicable infrastructure requirements with respect to the 2008 ozone NAAQS, submitted by the Wisconsin Department of Natural Resources (WDNR) on June 20, 2013, and clarified in a letter dated January 28, 2015.

    The requirement for states to make a SIP submission of this type arises out of CAA 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 “[e]ach such plan” submission must address. EPA commonly refers to such state plans as “infrastructure SIPs.”

    This rulemaking takes action on two CAA section 110(a)(2)(D)(i) requirements which apply to these submissions. In particular, section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS (“prong one”), or interfering with maintenance of the NAAQS (“prong two”), by any another state. Section 110(a)(2)(D)(i)(II) requires that infrastructure SIPs include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration (PSD) of air quality (“prong three”) and to protect visibility (“prong four”) in another state. This rulemaking addresses prongs one and two of this CAA section. The majority of the other infrastructure elements were approved in rulemakings on September 11, 2015 (80 FR 54725).

    II. What action did EPA propose on the SIP submission?

    The proposed rulemaking associated with today's final action was published on March 16, 2016 (81 FR 14025). In that action, EPA proposed to disapprove the Wisconsin SIP for the prong two requirement because the WDNR SIP submission did not provide an adequate technical analysis demonstrating that the state's SIP contained adequate provisions prohibiting emissions that will significantly contribute to nonattainment or interfere with the 2008 ozone NAAQS in any other state and because EPA's most recent modeling indicated that emissions from Wisconsin were projected to contribute to projected downwind maintenance receptors in another state. EPA also proposed to approve the Wisconsin SIP for the prong one requirement because, although WDNR did not provide information or analyses explaining why existing SIP provisions are adequate to prevent significant contribution to nonattainment in downwind states, EPA's independent modeling presented in the Notice of Data Availability and the Cross-State Air Pollution Update Rule indicated that Wisconsin emissions were not linked to any projected downwind nonattainment receptors. Therefore, EPA proposed to find that the Wisconsin SIP had adequate provisions to prevent such significant contribution to nonattainment for the 2008 ozone standard.

    III. What is our response to comments received on the proposed rulemaking?

    During the comment period, which ended on April 15, 2016, EPA did not receive any comments on the Wisconsin portion of the proposed notice. Comments pertaining to Ohio and Indiana are addressed in a June 15, 2016 rulemaking (81 FR 38957).

    IV. What action is EPA taking?

    EPA, as proposed, is approving prong one and disapproving prong two of a required infrastructure element with respect to CAA section 110(a)(2)(D)(i), interstate transport, for the 2008 ozone NAAQS. The approval is based on the June 20, 2013 SIP submission in which Wisconsin certified that the current SIP is sufficient to meet the CAA requirements. The disapproval portion of this action triggers an obligation under CAA section 110(c) for EPA to promulgate a Federal Implementation Plan (FIP) no later than two years from the effective date of this disapproval, if EPA has not approved a SIP revision or revisions addressing the deficiencies identified in this action. The disapproval in this action is not tied to attainment planning requirements and therefore does not start any sanction clocks.

    V. 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 rule does not impose an information collection burden under the provisions of the PRA.

    C. Regulatory Flexibility Act (RFA)

    The Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This action merely proposes to disapprove state law as not meeting Federal requirements and imposes no additional requirements 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. 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. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this rule.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks 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 EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children because it proposes to disapprove a state rule.

    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

    EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations.

    Congressional Review Act

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 11, 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

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone.

    Dated: August 1, 2016. Robert A. Kaplan, Acting Regional Administrator, Region 5.

    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.

    2. Section 52.2591 is amended by revising paragraph (g) to read as follows:
    § 52.2591 Section 110(a)(2) infrastructure requirements.

    (g) Approval—In a June 20, 2013, submission with a January 28, 2015, clarification, Wisconsin certified that the state has satisfied the infrastructure SIP requirements of section 110(a)(2)(A) through (H), and (J) through (M) for the 2008 ozone NAAQS. For 110(a)(2)(D)(i)(I), we are approving prong one and disapproving prong two. We are not taking action on the prevention of significant deterioration requirements related to section 110(a)(2)(C), (D)(i)(II), and (J) and the state board requirements of (E)(ii). We will address these requirements in a separate action.

    [FR Doc. 2016-19025 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-2000-0006; FRL-9950-62-Region 2] National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Jackson Steel Superfund Site AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Jackson Steel Superfund site (Site), located in the Village of Mineola, Nassau County, New York, contains a building formerly used as a metal-forming facility. The Site is bordered to the north by commercial spaces and single-family dwellings, to the east by a two-story apartment complex, to the south by a daycare center and to the west by an office building and restaurant.

    The Environmental Protection Agency (EPA) Region 2 is publishing this direct final Notice of Deletion (NOD) of the Site from the National Priorities List (NPL). The NPL, promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). This direct final deletion is being published by EPA with the concurrence of the State of New York, through the New York State Department of Environmental Conservation (NYSDEC), because EPA has determined that all appropriate response actions under CERCLA have been completed at the Site and that the soil on the Site and the groundwater beneath the Site no longer pose a threat to public health or the environment. Because elevated concentrations of volatile organic compounds (VOCs) are present under the slab of the vacant Jackson Steel building and the occupied daycare center, operation and maintenance of the subslab vapor intrusion mitigation systems under the daycare center, periodic vapor intrusion monitoring, and five-year reviews will continue. The deletion does not preclude future actions under Superfund.

    DATES:

    This direct final deletion will be effective September 26, 2016 unless EPA receives adverse comments by September 12, 2016. If adverse comments are received, EPA will publish a timely withdrawal of this direct final NOD in the Federal Register, informing the public that the deletion will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-2000-0006, by one of the following methods:

    Web site: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

    Email: [email protected]

    Fax: To the attention of Joel Singerman at 212-637-3966.

    Mail: To the attention of Joel Singerman, Chief, Central New York Remediation Section, Emergency and Remedial Response Division, U.S. Environmental Protection Agency, Region 2, 290 Broadway, 20th Floor, New York, NY 10007-1866.

    Hand Delivery: Superfund Records Center, 290 Broadway, 18th Floor, New York, NY 10007-1866 (telephone: 212-637-4308). Such deliveries are only accepted during the Record Center's normal hours of operation (Monday to Friday from 9:00 a.m. to 5:00 p.m.). Special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-2000-0006. EPA's policy is that all comments received will be included in the Docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be confidential business information (CBI) or other information for which disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or via email. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comments. If you send comments to EPA via email, your email address will be included as part of the comment that is placed in the Docket and made available on the Web site. If you submit electronic comments, EPA recommends that you include your name and other contact information in the body of your comments and with any disks or CD-ROMs that you submit. If EPA cannot read your comments because of technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comments fully. Electronic files should avoid the use of special characters and any form of encryption and should be free of any defects or viruses.

    Docket: All documents in the Docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information for which disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly-available Docket materials can be obtained either electronically at http://www.regulations.gov or in hard copy at:

    U.S. Environmental Protection Agency, Region 2, Superfund Records Center, 290 Broadway, 18th Floor, New York, NY 10007-1866. Phone: 212-637-4308. Hours: Monday to Friday: 9:00 a.m. to 5:00 p.m. Town of North Hempstead, 200 Plandome Road, Manhasset, NY 11030. Phone: (516) 489-5000. Hours: Monday-Friday, 8:15 a.m.-4:00 p.m. Garden City Public Library, 60 Seventh Street, Garden City, NY 11530. Phone: (516) 742-8405. Hours: Monday-Thursday: 9:30 a.m.-9:00 p.m.; Friday and Saturday: 9:30 a.m.-5:00 p.m.; Sat: 9:30 a.m.-5:00 p.m. and Sunday: 1:00 p.m.-5:00 p.m. Village of Mineola Hall, 155 Washington Avenue, Mineola, NY 11501. Phone: (516) 746-0750. Hours: Monday-Friday 8:30 a.m.-4:30 p.m.
    FOR FURTHER INFORMATION CONTACT:

    Joel Singerman, Chief, Central New York Remediation Section, by mail at Emergency and Remedial Response Division, U.S. Environmental Protection Agency, Region 2, 290 Broadway, 20th Floor, New York, NY 10007-1866; telephone at 212-637-4258; fax at 212-637-3966; or email at [email protected]

    SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Site Deletion V. Deletion Action I. Introduction

    EPA Region 2 is publishing this direct final NOD of the Site from the NPL. The NPL constitutes Appendix B of 40 CFR part 300, which is the NCP, which EPA promulgated pursuant to Section 105 of CERCLA, as amended. EPA maintains the NPL as the list of releases that appear to present a significant risk to public health, welfare, or the environment. The releases on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in Section 300.425(e)(3) of the NCP, a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions at the site warrant such actions.

    Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the Site from the NPL unless adverse comments are received during the public comment period.

    II. NPL Deletion Criteria

    The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

    i. Responsible parties or other parties have implemented all appropriate response actions required;

    ii. all appropriate Fund-financed responses under CERCLA have been implemented, and no further action by responsible parties is appropriate; or

    iii. the remedial investigation (RI) has shown that the release of hazardous substances poses no significant threat to public health or the environment and, therefore, taking of remedial measures is not appropriate.

    Pursuant to CERCLA Section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

    III. Deletion Procedures

    The following procedures apply to the deletion of the Site:

    (1) EPA consulted with the State of New York prior to developing this direct final NOD and the NOID also published today in the “Proposed Rules” section of the Federal Register.

    (2) EPA has provided the State with 30 working days for review of this notice and the parallel NOID prior to their publication today, and the State, through NYSDEC, has concurred on the deletion of the Site from the NPL.

    (3) Concurrent with the publication of this direct final NOD, a notice of the availability of the parallel NOID is being published in a major local newspaper, the Mineola American. The newspaper notice announces the 30-day public comment period concerning the NOID of the Site from the NPL.

    (4) EPA placed copies of documents supporting the proposed deletion in the Deletion Docket and made these items available for public inspection and copying at the Site information repositories identified above.

    (5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final NOD before its effective date and will prepare a response to comments. If appropriate, EPA may continue with the deletion process based on the NOID and the comments already received.

    The NPL is designed primarily for informational purposes and to assist EPA's management of sites. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for further response actions should future conditions warrant such actions.

    IV. Basis for Site Deletion

    The following information provides the Agency's rationale for deleting the Site from the NPL.

    Site Background and History

    The 1.5-acre Site (CERCLIS ID NYD001344456) contains a one-story, 43,000-square-foot building formerly used as a metal-forming facility and an approximately 10,000-square foot paved parking area. It is bordered to the north by commercial spaces and single-family dwellings, to the east by a two-story apartment complex, to the south by a daycare center, and to the west by an office building and restaurant.

    The property was used from the mid-1970s until 1991 as a “roll form metal shapes” manufacturing facility. Degreasers, including tetrachloroethylene (PCE), trichloroethylene, and 1,1,1-trichloroethane, were used at the facility until 1985. Sludges from degreasing equipment were stored in drums and in an on-property 275-gallon tank.

    The analytical results from samples collected by the Nassau County Department of Health (NCHD) in the early 1990s from within, around, and below three on-property dry wells indicated the presence of VOCs at depths down to 40 feet below the ground surface. VOCs were also detected in groundwater samples collected from monitoring wells located downgradient of the dry wells.

    Dumping of wastes into the dry wells and spills and leaks from drums storing various chemicals during the facility's operations are the likely sources of the contamination that was found at the Site.

    The Site was proposed for listing on the NPL on October 22, 1999 (40 CFR part 300 [FRL-6462-2]). The Site was listed on the NPL on February 4, 2000 (40 CFR part 300 [FRL-6532-7]).

    Following the commencement of RI-related field work in October 2001, because of concerns about the proximity of the Site to the daycare center, NCHD performed air sampling inside the daycare center building. The air samples detected PCE at levels below the New York State Department of Health's (NYSDOH's) guideline for indoor PCE exposure. Given the sensitivity of the population exposed (preschool children), NCHD collected additional samples in December 2001. At that time, indoor testing was also conducted inside the Jackson Steel building and the restaurant located adjacent to the Site. The results indicated that PCE levels in the indoor air of several rooms in the daycare center were above NYSDOH's guideline for PCE. As a result, in January 2002, a subslab depressurization system (i.e., vapor intrusion mitigation system) was installed by EPA. In addition, a ventilation system was installed by the daycare center's contractor. Samples collected to assess the effectiveness of the implemented measures showed that the PCE levels in the air were significantly below NYSDOH's guideline and below EPA's acceptable noncancer risk levels. Because elevated PCE levels were also detected in a billiards club that shared common walls with the Site building and the daycare center, EPA installed a vapor intrusion mitigation system under the concrete slab of this building, as well. The billiards club was subsequently occupied as a retail store, and recently the daycare center (the Learn and Play Daycare Center) expanded to occupy this space, as well. The vapor intrusion mitigation systems were replaced by the property owner's contractor in May 2016.

    The results of the RI, which was completed in 2002, indicated that VOCs, semi-volatile organic compounds, pesticides, and metals contamination were present in the surface soil, and VOC contamination was present at several subsurface soil locations. In addition, contamination was found in a trench and sumps located inside the building and dry wells located under the parking lot at the Site.

    Groundwater from the three hydrogeologic units underlying the site—the Upper Glacial Aquifer (upper aquifer), Magothy Confining Bed (a low permeability, clay layer separating the upper and deep aquifers), and the Magothy Aquifer (deep aquifer)—were also sampled. VOC contamination above state and federal standards was detected both in the Upper Glacial Aquifer and Magothy Aquifer.

    Based upon the results of the RI and a feasibility study, in September 2004, EPA selected a remedy for the Site in a Record of Decision (ROD). The ROD outlined the following remedial action objectives (RAOs):

    • Minimize or eliminate contaminant migration from contaminated soils and dry wells to the groundwater;

    • minimize or eliminate any contaminant migration from contaminated soils and groundwater to indoor air;

    • restore groundwater to levels which meet state and federal standards within a reasonable time frame;

    • mitigate the migration of the affected groundwater; and

    • reduce or eliminate any direct contact, ingestion, or inhalation threat associated with contaminated soils, soil vapor, contaminated surfaces in the on-property building, and groundwater.

    The selected remedy includes the following actions:

    • Decontamination of the Jackson Steel building floor;

    • in-situ soil vapor extraction (ISVE) to treat the contaminated subsurface soil;

    • excavation and off-Site disposal of the contaminated surface soil and contaminated material in on-Site sumps, a trench, and dry wells;

    • in-situ chemical oxidation (ISCO) to treat the contaminated groundwater in the Upper Glacial Aquifer;

    • extraction and treatment of the contaminated groundwater in the deep aquifer if confirmatory groundwater sampling indicates that the Site is a principal source of the groundwater contamination to the aquifer underlying the Site;

    • if it is determined that the Site is a principal source of the groundwater contamination to the deep aquifer underlying the Site, the selected remedy would be expanded, as necessary, to include off-property groundwater contamination; and

    • long-term groundwater monitoring.

    The soil cleanup objectives were established pursuant to New York State Technical and Administrative Guidance Memorandum (TAGM) No. 94-HWR-4046 objectives (Division Technical and Administrative Guidance Memorandum: Determination of Soil Cleanup Objectives and Cleanup Levels, Division of Hazardous Waste Remediation, January 24, 1994). As dictated by the TAGM objectives, the soil cleanup levels selected in the ROD were the more stringent cleanup level between a human-health protection value and a value based on protection of groundwater. The groundwater cleanup goals were the more stringent of the state or federal promulgated standards. EPA and New York State Department of Health promulgated health-based, protective Maximum Contaminant Levels (MCLs) that are enforceable standards for various drinking water contaminants. MCLs ensure that drinking water does not pose either a short- or long-term health risk.

    The building decontamination and the excavation of the contaminated surface soil and the contaminated material in the building sumps and trench and in the dry wells and their disposal were performed from 2005 to 2006. A total of 170 cubic yards of material was excavated and disposed of at an EPA-approved off-Site facility.

    Groundwater ISCO injections were performed between July and December 2005. Approximately, 15,000 gallons of iron-catalyzed sodium persulfate (with small amounts of buffering agents) and 600 gallons of hydrogen peroxide were injected into the aquifer through a network of 20 injection wells to treat the contamination in the Upper Glacial Aquifer.

    After a successful pilot test, an ISVE system consisting of nine ISVE wells and 11 vapor monitoring probes began operating in 2005.

    A supplemental groundwater investigation was conducted from 2005 to 2006 to determine the source of the Magothy Aquifer contamination underneath the Site and to establish whether there was a relationship between the contamination at the Site and the VOC contamination detected in nearby Village of Mineola Supply Well #4. Based on the results of the investigation, it was concluded that the Site was not a current source of contamination in the Magothy Aquifer. Therefore, EPA decided not to implement the Magothy Aquifer groundwater remedy. An Explanation of Significant Differences (ESD) was issued in 2007, documenting this decision.

    While the cleanup objectives for the Upper Glacial Aquifer and soil were met in 2006 and 2008, respectively, EPA continued to operate the ISVE system until 2013 because VOC vapors were still being recovered from underneath the Jackson Steel building. The operation of the ISVE system was discontinued when the levels of vapor removal became too low for the system to continue to be efficient.

    The aboveground ISVE infrastructure was removed by EPA in June 2013. From March to April 19, 2016, the groundwater monitoring wells, ISVE wells, vapor monitoring wells, ISCO injection wells, and ISCO monitoring wells, were decommissioned.

    Although EPA successfully remediated the soil and the groundwater aquifer immediately underlying the Site, residual levels of VOCs remain. VOCs, even at low levels, can migrate as vapors through the soil into buildings. This process, which is called vapor intrusion, can result in unacceptable human exposures to VOCs inside occupied buildings. This pathway is currently incomplete at the Site, because the building on the site is currently unoccupied, and subslab vapor intrusion mitigation systems prevent the migration of vapors into an adjacent occupied building.

    Because the residual levels of VOCs are expected to dissipate slowly, EPA concluded that preventing human exposure to VOCs at the occupied building will be needed for a number of years to ensure the protectiveness of the remedy. Therefore, the existing vapor intrusion mitigation systems will need to continue to operate, and additional actions, from monitoring to the installation of an additional vapor mitigation system, may be needed should the currently unoccupied building be occupied or replaced with another structure in the future. EPA determined that institutional controls (ICs) (i.e., property use restrictions) requiring the continued operation of the subslab vapor intrusion mitigation systems were needed. In addition, EPA determined that ICs requiring vapor intrusion sampling and/or mitigative measures were needed should the unoccupied Jackson Steel building be occupied or replaced with another structure in the future.

    EPA issued an ESD on June 20, 2016, documenting its determination to incorporate into the remedy ICs to prevent exposure through vapor intrusion. The ICs will remain in place until the residual VOCs fully dissipate in the subsurface. EPA noted in the ESD that a Vapor Intrusion Management Plan (VIMP) and Institutional Control Implementation and Assurance Plan (ICIAP) would be prepared to ensure that the ICs were appropriately implemented and maintained. In addition, in the ESD EPA noted that it would communicate directly with the Village of Mineola Superintendent of Buildings, requesting that EPA and NYSDEC be notified if the existing building is to be refurbished and used for human occupancy or demolished and a new structure constructed. The correspondence would also request that the Village not issue a Certificate of Occupancy until necessary vapor intrusion-related actions identified by EPA and NYSDEC are carried out.

    A VIMP and ICIAP were completed on June 20, 2016.

    On June 20, 2016, EPA sent a letter to the Village of Mineola Superintendent of Buildings, requesting that EPA and NYSDEC be notified if the existing building is to be refurbished and used for human occupancy or demolished and a new structure constructed and requested that the Village not issue a Certificate of Occupancy until necessary vapor intrusion-related actions identified by EPA and NYSDEC are carried out. Periodic reminders will be issued to the Village to help ensure the effectiveness of this measure.

    On July 27, 2016, notices were placed on the deed of the two parcels occupied by the daycare center and the parcel occupied by the Jackson Steel building. The notice on the deed of the daycare center requires that the subslab vapor intrusion mitigation systems be operated as long as elevated levels of vapors remain under the buildings on the property and the buildings are occupied. The notice on the deed of the Jackson Steel building alerts any potential purchaser, lessee, or other user of the property that EPA and NYSDEC must be notified if and when a determination is made that the existing building will be refurbished and used for human occupancy or demolished and a new structure constructed. EPA intends to effect an environmental easement on the Jackson Steel property in the future once a new owner takes control of the property.

    Five-Year Review

    It is the policy of EPA to conduct five-year reviews when remedial activities, including monitoring, will continue for more than five years. A five-year review that is required by policy is triggered by the date of the approval of the Preliminary Close-Out Report, which documents that EPA has determined that construction at a site has been completed. For this Site, the Preliminary Close-Out Report was approved on August 30, 2007.

    The first five-year review was completed in August 2012. The review concluded that the remedy was functioning as intended in the decision documents and was protecting human health and the environment.

    Subsequent to the 2012 five-year review, EPA determined that ICs were necessary to ensure the protectiveness of the remedy, as discussed above. Five-year reviews will be conducted as long as residual VOC levels remain that perpetuate the vapor intrusion concerns described in this ESD. The next five-year review will be conducted by August 2017.

    Community Involvement

    Public participation activities for the Site have been satisfied as required pursuant to CERCLA Sections 113(k) and 117, 42 U.S.C. 9613(k) and 9617. As part of the remedy selection process, the public was invited to comment on the proposed remedy. All other documents and information that EPA relied on or considered in recommending this deletion are available for the public to review at the information repositories identified above.

    Determination That the Site Meets the Criteria for Deletion From the NCP

    All of the cleanup requirements for the Site have been met, as described in the September 2006 groundwater Interim Groundwater Remedial Action Report, September 2008 soil Remedial Action Report, August 2007 Preliminary Close-Out Report, July 2016 Final Close-Out Report, and 2012 Five-Year Review report. The State of New York, in a July 29, 2016 letter, concurred with the proposed deletion of the Site from the NPL.

    The NCP specifies that EPA may delete a site from the NPL if “all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate.” 40 CFR 300.425(e)(1)(ii). EPA, with the concurrence of the State of New York, through NYSDEC, believes that this criterion for the deletion of the Site has been met in that that the soil on the Site and the groundwater beneath the Site no longer pose a threat to public health or the environment. Consequently, EPA is deleting the Site from the NPL. Documents supporting this action are available in the deletion docket at http://www.regulations.gov and at the Site information repositories.

    V. Deletion Action

    EPA, with the concurrence of the State of New York through NYSDEC, has determined that other than the ongoing operation and maintenance of the vapor intrusion mitigation systems at the daycare center, periodic vapor intrusion monitoring, insuring that the ICs are in place and effective, and five-year reviews, all appropriate responses under CERCLA have been completed at the Site. The soil and groundwater immediately underlying the Site no longer pose a threat to public health or the environment. Therefore, EPA is deleting the Site from the NPL. Periodic vapor intrusion monitoring and five-year reviews will still be required for the Site. The deletion does not preclude future action under CERCLA. Because EPA considers this action to be noncontroversial and routine, EPA is taking this action without prior publication. This action will be effective September 26, 2016 unless EPA receives adverse comments by September 12, 2016. If adverse comments are received within the 30-day public comment period of this action, EPA will publish a timely withdrawal of this direct final NOD before the effective date of the deletion and the deletion will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the NOID and the comments received. In such a case, there will be no additional opportunity to comment.

    List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

    Dated: August 2, 2016. Judith A. Enck, Regional Administrator, EPA, Region 2.

    For the reasons set out in this document, 40 CFR part 300 is amended as follows:

    PART 300—NATIONAL OIL AND HAZARDOUS SUBSTANCES POLLUTION CONTINGENCY PLAN 1. The authority citation for part 300 continues to read as follows: Authority:

    33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9675; E.O. 12777, 56 FR 54757, 3 CFR 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR 1987 Comp., p. 193.

    2. Table 1 of Appendix B to part 300 is amended by removing “Jackson Steel,” “Mineola/North Hempstead,” “NY.”
    [FR Doc. 2016-19130 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R8-ES-2015-0170; FFXES11130000-156-FF08E00000] RIN 1018-BA71 Endangered and Threatened Wildlife and Plants; Removing the San Miguel Island Fox, Santa Rosa Island Fox, and Santa Cruz Island Fox From the Federal List of Endangered and Threatened Wildlife, and Reclassifying the Santa Catalina Island Fox From Endangered to Threatened AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), are removing the San Miguel Island fox (Urocyon littoralis littoralis), Santa Rosa Island fox (U. l. santarosae), and Santa Cruz Island fox (U. l. santacruzae) from the Federal List of Endangered and Threatened Wildlife and are reclassifying the Santa Catalina Island fox (U. l. catalinae) from an endangered species to a threatened species. This action is based on a thorough review of the best available scientific and commercial information, which indicates that the threats to the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox have been eliminated or reduced to the point that each of the subspecies no longer meets the definition of an endangered species or a threatened species under the Endangered Species Act of 1973, as amended (Act), and that the threats to the Santa Catalina Island fox have been reduced to the point that the subspecies can be reclassified as a threatened species. We also announce the availability of a final post-delisting monitoring plan for the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox.

    DATES:

    This rule is effective September 12, 2016.

    ADDRESSES:

    This final rule is available on the Internet at http://www.regulations.gov and at the Ventura Fish and Wildlife Office's Web site at http://www.fws.gov/Ventura/. Comments, materials, and supporting documentation considered in this rulemaking are available on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2015-0170, and are available for public inspection by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003; by telephone 805-644-1766; or by facsimile 805-644-3958. The post-delisting monitoring plan for the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox is available on our Endangered Species Program's national Web site (http://endangered.fws.gov) and on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2015-0170.

    FOR FURTHER INFORMATION CONTACT:

    Stephen P. Henry, Field Supervisor, U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003; telephone 805-644-1766; facsimile 805-644-3958. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Previous Federal Actions

    On December 10, 2001, we published a proposal to list four subspecies of island foxes as endangered species (66 FR 63654). Please refer to this proposed rule for information on Federal actions prior to December 10, 2001. On March 5, 2004, we published a final rule listing the four subspecies of island foxes as endangered species (69 FR 10335). Please refer to the final Recovery Plan for Four Subspecies of Island Fox (Urocyon littoralis) (Service 2015, entire) for a detailed description of Federal actions concerning this species. We did not designate critical habitat for the four subspecies of island fox, as explained in our November 9, 2005, final critical habitat determination (70 FR 67924).

    We published a notice announcing the initiation of a review of the status of the San Miguel Island fox, Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox under section 4(c)(2) of the Act (16 U.S.C. 1531 et seq.) on March 9, 2015 (80 FR 12521), with the notice announcing the availability of the final recovery plan. On February 16, 2016, we published in the Federal Register a status review and proposed rule (81 FR 7723) to remove the San Miguel Island fox, Santa Rosa Island fox, and the Santa Cruz Island fox from the Federal List of Endangered and Threatened Wildlife, and to reclassify the Santa Catalina Island fox from an endangered species to a threatened species.

    Background

    Please refer to the final Recovery Plan for Four Subspecies of Island Fox (Urocyon littoralis) (Service 2015, entire) for a summary of background information on island fox taxonomy, life history, and distribution. We prepared the Recovery Plan by working with a Recovery Team that included public agency representatives, landowners, conservancies, zoological institutions, nonprofits, and academics. The Recovery Plan includes discussion of the following: species description and taxonomy, habitat use, social organization, reproduction, distribution and abundance, threats to the subspecies, and recovery strategies.

    Range of the Species

    The island fox (Urocyon littoralis), a diminutive relative of the gray fox (U. cinereoargenteus), is endemic to the California Channel Islands. Island foxes inhabit the six largest of the eight Channel Islands (San Miguel Island, Santa Rosa Island, Santa Cruz Island, Santa Catalina Island, San Nicolas Island, and San Clemente Island) and are recognized as distinct subspecies on each of the six islands. Both morphologic and genetic distinctions support the classification of separate subspecies of island foxes for each island (Collins 1993, entire; Gilbert et al. 1990, entire; Goldstein et al. 1999, entire; Wayne et al. 1991a, entire). We recognize the range of each subspecies to be the island that it inhabits. Islands inhabited by island foxes are owned by four major landowners: the National Park Service (NPS), the U.S. Navy, The Nature Conservancy (TNC), and the Santa Catalina Island Conservancy (CIC), all of whom have management authority for wildlife on their lands. NPS and TNC manage San Miguel Island, Santa Rosa Island, and Santa Cruz Island; in this rule, we reference these three islands as the northern Channel Islands CIC manages the majority of fox habitat on Santa Catalina Island, except the City of Avalon. Santa Catalina Island is the only island with a permanent human population. Human use of the three northern Channel Islands is restricted to visitors and NPS and TNC staff.

    Summary of Changes From the Proposed Rule

    We did not make substantive changes in this final rule based on the comments that we received during the public comment period, but we added text to clarify some information presented in the proposed rule, added new information to the climate change analysis, and revised population data to reflect information updated since the publication of the proposed rule. For example, peer reviewers recommended we include information about genetic variability present in the current island fox populations and new information about climate change. This information and other clarifications are incorporated into the final rule where appropriate, including in the Summary of Comments and Recommendations, below.

    Recovery and Recovery Plan Implementation

    Section 4(f) of the Act directs us to develop and implement recovery plans for the conservation and survival of endangered and threatened species unless we determine that such a plan will not promote the conservation of the species. We published a notice announcing the availability of the final recovery plan for the San Miguel Island fox, Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox on March 9, 2015 (80 FR 12521).

    The recovery plan (Service 2015, pp. 47-53) includes the recovery goals, recovery objectives, and recovery criteria that we outline below to reclassify the island fox subspecies from endangered species to threatened species and to remove island fox subspecies from the List of Endangered and Threatened Wildlife. Please see the February 16, 2016, proposed rule (81 FR 7723) for a detailed discussion of the recovery goal, objectives, and criteria and how they apply to the status of the San Miguel Island fox, Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox. The objectives and progress toward these objectives (measured by explicit criteria) are summarized below.

    Recovery Objectives

    Recovery objectives identify mechanisms for measuring progress toward and achieving the recovery goal of delisting for each subspecies.

    Recovery Objective 1: Each federally listed subspecies of island fox exhibits demographic characteristics consistent with long-term viability.

    Recovery Objective 2: Land managers are able to respond in a timely fashion to predation by nesting golden eagles (Aquila chrysaetos) or significant predation rates by transient golden eagles, to potential or incipient disease outbreaks, and to other identified threats using the best available technology.

    In order for any one of the four listed subspecies of island fox to be considered for downlisting from endangered to threatened status, recovery objective 1 should be met for that subspecies. In order for any one of the four listed subspecies of island fox to be considered for delisting, recovery objectives 1 and 2 should be met for that subspecies.

    Island fox recovery criteria are measurable standards for determining whether a subspecies has achieved its recovery objectives and may be considered for downlisting or delisting. Island fox recovery criteria in the recovery plan (Service 2015, pp. 50-55) are organized by factors under section 4(a)(1) of the Act to demonstrate how criteria indicate threats under that factor have been ameliorated. The following is a summary of the recovery criteria.

    To address recovery objective 1, the subspecies must be protected from other natural or manmade factors known to affect their continued existence. This is accomplished when the following has occurred:

    E/1: An island fox subspecies has no more than 5 percent risk of quasi-extinction over a 50-year period as determined by use of the population viability graphing/analysis tool found in appendix 2 of the recovery plan (Service 2015, pp. 131-136).

    To address recovery objective 2, the magnitude and imminence of disease and predation threats must be reduced. This is accomplished when the following has occurred:

    C/1: Golden eagle predation (applies only to the northern Channel Islands): The rate of golden eagle predation is reduced and maintained at a level no longer considered a threat to island fox recovery through development of a golden eagle management strategy, and the golden eagle prey base of mule deer (Odocoileus hemionus) and Roosevelt elk (Cervus canadensis roosevelti) is removed from Santa Rosa Island.

    C/2: Disease: A disease management strategy is developed, approved, and implemented that includes vaccination recommendations and a monitoring program that provides for timely detection of a potential epidemic, and an associated emergency response strategy as recommended by the appropriate subject-matter experts.

    Population monitoring has been implemented for each listed subspecies, and population viability analyses using the graphing/analysis tool found in appendix 2 of the recovery plan (Service 2015, pp. 131-136) indicate all subspecies have an acceptably small risk of extinction. The extinction risk has been less than 5 percent since 2008 for San Miguel, Santa Cruz, and Santa Catalina Islands, and since 2011 for Santa Rosa Island. As of 2015, island fox populations had increased to greater than 700 individuals on San Miguel Island, greater than 1,200 on Santa Rosa Island (Guglielmino and Coonan 2016, pp. 12, 18), greater than 2,100 on Santa Cruz Island (Boser 2016a, pers. comm.), and greater than 1,800 on Santa Catalina Island (King and Duncan 2016, p. 10). All populations with the exception of Santa Rosa Island are at or above their pre-decline population estimates (Coonan 2015a, pers. comm.; King and Duncan 2014, pp. 1, 10). On San Miguel Island, low reproductive effort coupled with declining survival suggests that the San Miguel Island subspecies has reached carrying capacity (the maximum population size of a species that the habitat can support) (Coonan 2015a, p. 8). We conclude, based on population viability analyses, that recovery objective 1 is achieved for all four island fox subspecies. Detailed results of the graphing/analysis tool through 2015 can be found in the supplementary material “Results of graphing/analysis tool to assess island fox recovery criterion E/1” (derived from Guglielmino and Coonan 2016, pp. 17, 22; Boser 2016b, pers. comm.; King and Duncan 2016, p. 13) on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2015-0170.

    To ensure that land managers are able to respond in a timely fashion to predation by golden eagles, a final golden eagle management strategy has been approved (NPS 2015a, entire), and is being implemented by NPS and TNC. The strategy outlines actions, many of which have already been implemented by NPS and TNC, including: Complete removal of all golden eagles; ongoing prevention of golden eagle nesting; and removal of all nonnative golden eagle prey, including deer and elk from Santa Rosa Island.

    To ensure that land managers are able to respond in a timely fashion to a potential or incipient disease outbreak, the epidemic response plans for northern Channel Islands foxes (Hudgens et al. 2013, entire) and Santa Catalina Island foxes (Hudgens et al. 2014, entire) are currently implemented by NPS, TNC, and CIC. These plans provide direction for monitoring, vaccination for canine distemper virus and rabies annually to a subset of each island fox population, and response if mortality is detected. Additionally, NPS and TNC are committed through signed conservation management agreements (CMAs) to monitor and conduct other management actions for detecting and appropriately responding to predation by golden eagles or a potential disease outbreak in the future, as recommended in the golden eagle management strategy and epidemic response plans (Service and NPS 2015; Service and TNC 2015). The golden eagle management strategy and epidemic response plans are found on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2015-0170 and on our Endangered Species Program's national Web site (http://endangered.fws.gov).

    With the golden eagle management strategy in place, complete removal of golden eagles and their nonnative prey-base from the northern Channel Islands (San Miguel, Santa Rosa, and Santa Cruz Islands), development and implementation of an epidemic response plan, and population levels consistent with long-term viability, recovery objectives 1 and 2, and the associated recovery criteria, are met for the San Miguel, Santa Rosa, and Santa Cruz Island foxes. With population levels consistent with long-term viability, recovery objective 1 is met for the Santa Catalina Island fox. However, objective 2 has not been met for the Santa Catalina Island fox because currently there are no assurances that current monitoring and management actions will continue in the future, and, because Santa Catalina Island has an elevated risk compared to the northern Channel Islands of introduced pathogens from the mainland, a disease outbreak could occur without detection or appropriate response to mediate the threat to the subspecies.

    Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered species or threatened species because of any one or a combination of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or human-made factors affecting its continued existence. A species may be reclassified or delisted on the same basis.

    A recovered species is one that no longer meets the Act's definition of an endangered species or a threatened species. Determining whether a species is recovered requires consideration of whether the species is endangered or threatened because of the five categories of threats specified in section 4(a)(1) of the Act. For species that are already listed as endangered or threatened species, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections.

    A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act does not define the term “foreseeable future.” The population viability analyses used to determine the risk of quasi-extinction (the population level below which extinction is likely due to demographic or genetic effects), which we define as a population size of less than or equal to 30 individuals for each subspecies, estimates risk over a 50-year period (Bakker et al. 2009, entire; Service 2015, p. 52). Therefore, we estimate 50 years to be the timeframe in which, given the amount and substance of the best available data, we can anticipate events or effects, or reliably extrapolate threat trends, concerning the future as it relates to the status of the four subspecies of island fox (San Miguel, Santa Rosa, Santa Cruz, and Santa Catalina Island foxes). Consequently, we have assessed the threats discussed in this rule with reference to this 50-year foreseeable future timeframe.

    The word “range” in the significant portion of its range phrase in the definition of endangered species and threatened species refers to the range in which a species currently exists. For the purposes of this analysis, we first evaluate the status of each subspecies throughout its range, which we consider to be the island that any given island fox subspecies inhabits. We then consider whether any of the subspecies are in danger of extinction or likely to become so in any significant portion of their ranges.

    Primary threats to island foxes identified in the March 5, 2004, listing rule (69 FR 10335) include predation by golden eagles, disease, and stochastic risks to small populations and lack of genetic variability. Since the listing, impacts of feral cat aggression, poisoning, and entrapment on Santa Catalina Island, and fire, drought, and global climate change for all four islands were identified as possible new threats. A thorough analysis and discussion of the current status of the San Miguel, Santa Rosa, Santa Cruz, and Santa Catalina Island foxes are found in the recovery plan (Service 2015, pp. 21-29) and proposed rule to remove the San Miguel Island fox, Santa Rosa Island fox, and the Santa Cruz Island fox from the Federal List of Endangered and Threatened Wildlife, and to reclassify the Santa Catalina Island fox from an endangered species to a threatened species (81 FR 7723; February 16, 2016). The following sections provide a summary of the past, current, and potential future threats impacting the San Miguel, Santa Rosa, Santa Cruz, and Santa Catalina Island foxes.

    Factor A: Present or Threatened Destruction, Modification, or Curtailment of Habitat or Range

    At the time of listing in 2004, habitat modification by nonnative grazing animals (i.e., feral sheep, goats, rabbits, cattle, horses, Roosevelt elk, mule deer, and pigs) and nonnative plant invasion was identified as a threat under Factor A impacting island foxes (69 FR 10335; March 5, 2004). The impacts of nonnative herbivores and nonnative plants resulted in conversion of native coastal sage scrub, chaparral, and oak woodlands to annual grasses. Annual grasslands constitute less preferred habitat for island foxes (Laughrin 1977, p. 22; Roemer and Wayne 2003, pp. 1,256-1,257) and do not provide cover from predators such as golden eagles (Roemer 1999, pp. 99, 190-191). Annual grasslands also offer fewer food resources to foxes, and the seeds of annual grasses can become lodged in the eyes of island foxes, causing damage or temporary blindness (Laughrin 1977, p. 41).

    Eradication programs on all islands have greatly reduced the number of nonnative herbivores on the islands and therefore the magnitude of impacts to the habitat and island foxes (Laughrin 1973, p. 14; Schoenherr et al. 1999, pp. 191-194; Parkes et al. 2010, p. 636; Jones et al. 2016, p. 2). Currently, impacts to island fox habitats are primarily attributed to continued modification by nonnative plant species, resulting in lower vegetation diversity, less diverse habitat structure, and reduced food availability.

    NPS guidance supports the continued management of island fox habitat to benefit northern Channel Islands subspecies of island foxes. Title 54 of the U.S. Code, section 100101, paragraph (a), states that the NPS “shall promote and regulate the use of the National Park System . . . to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” Specifically, in its management plan, Channel Islands National Park identified restoration and maintenance of natural ecosystems and processes as a priority; NPS staff would continue to eradicate, where feasible, nonnative flora and fauna from the islands.

    The majority of island fox habitat on all four islands is currently in some form of conservation ownership and management by NPS, TNC, or CIC. Therefore, we expect that habitat loss as a result of conversion due to development would be rare or limited. However, there is the potential for some development on privately owned lands that are not in conservation ownership. The island fox, as the species Urocyon littoralis (incorporating all six subspecies), is listed as threatened under the California Endangered Species Act (CESA), which provides a level of protection from possession or intentional killing of individual animals. CESA may also authorize take incidental to otherwise lawful activities, such as development on the privately owned TNC-managed lands on Santa Cruz Island and privately owned lands on Santa Catalina Island. For habitat conversion resulting from authorized development projects, minimization and mitigation of impacts resulting from authorized take are required under CESA and the environmental review process under the California Environmental Quality Act. Santa Catalina Island foxes are most likely to be impacted by the potential for land-use change on non-conserved lands, including development and recreational activities. CESA contributes to the conservation of the species by providing a mechanism to reduce or regulate some individual sources of mortality and to review and permit development projects that may impact island foxes and their habitat on private lands.

    While past and ongoing effects of habitat modification by nonnative grazing animals (i.e., feral sheep, cattle, Roosevelt elk, mule deer, and pigs), nonnative plant invasion, and land-use change on non-conserved lands may continue to have some negative effects on island foxes, nonnative animals and plants no longer result in significant habitat impacts that could affect the island fox subspecies at either the population or rangewide scales that we would consider a current threat to any of the subspecies of island fox. Additionally, given planned continued management by NPS and other land owners, we do not anticipate that nonnative animals and plants will have significant habitat impacts in the future.

    Factor B: Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    As stated in the listing rule (69 FR 10335; March 5, 2004), although island foxes were used in the past for their pelts by Native Americans (Collins 1991, p. 215), these activities no longer occur. Research scientists are currently engaged in recovery activities via Service-issued section 10(a)(1)(A) recovery permits. Researchers conducting studies on NPS property must have a valid Research and Collecting Permit through NPS. The State of California requires a Scientific Collecting Permit and Memorandum of Understanding to collect, capture, mark, or salvage species listed as threatened under CESA for scientific and educational purposes (Fish and Game Code section 1002; and title 14, sections 650 and 670.7). Currently, none of the four subspecies is being threatened by overutilization for any purposes, and we expect, even without the protections of the Act, research activities to be managed by the State and by land management agencies to ensure that such activities do not result in overutilization in the future.

    Factor C: Disease or Predation

    For Santa Catalina Island fox at the time of listing, a canine distemper virus (CDV) epidemic was considered the primary threat (69 FR 10335; March 5, 2004) to the subspecies. The listing rule also expressed some concern regarding the potential impacts of canine adenovirus and canine parvovirus. For the northern Channel Islands foxes (San Miguel, Santa Rosa, and Santa Cruz Island foxes) at the time of listing, golden eagle predation was the primary threat (69 FR 10335; March 5, 2004), but potential for disease was also a concern, particularly given the small population sizes at the time.

    Disease

    Santa Catalina Island: In the past, disease severely impacted the island fox population on Santa Catalina Island. The eastern subpopulation of the Santa Catalina Island fox was estimated to be 1,342 in 1990 (Roemer et al. 1994, p. 393). Subsequent surveys conducted in 1999 and 2000 indicated the eastern island fox subpopulation had declined by over 90 percent in 10 years due to CDV (Timm et al. 2000, p. 17), likely transmitted from a raccoon that arrived from the mainland (Timm et al. 2009, p. 339). After a captive-rearing and augmentation program was initiated, the eastern and western subpopulations were estimated to have reached 219 and 141 foxes in 2004, respectively (Schmidt et al. 2005, p. 11; King and Duncan 2011, p. 19). Population estimates have since greatly increased on Santa Catalina Island, surpassing the estimate from 1990, reaching a total of 1,812 individuals island-wide in 2015 (King and Duncan 2016, p. 10).

    In 2014, a final epidemic response plan was approved and is being implemented by CIC to detect and facilitate appropriate response to a potential future disease outbreak for Santa Catalina Island foxes (Hudgens et al. 2014, entire). CIC annually monitors sentinel foxes (unvaccinated, radio-collared foxes whose death will be detected by monitoring) inhabiting many areas of the island to facilitate early detection of a potential epidemic (King and Duncan 2011, p. 15). Island foxes have been and continue to be vaccinated against CDV and rabies (King 2015, pers. comm.). However, production of the CDV vaccine was discontinued and was not available in 2013. CIC vaccinated for both CDV and rabies in 2013 and 2014 with the last of the vaccine (King and Duncan 2015, pp. 13, 23). A new product was made available in 2015 (King and Duncan 2016, p. 9); however, the new vaccine does not appear to be as effective against CDV, and the authors suggest this is not an adequate replacement (King and Duncan 2016, p. 23). While foxes have been vaccinated and we expect vaccinations to continue as effective vaccines become available, efficacy and availability of vaccines will require ongoing evaluation by the Island Fox Conservation Working Group as part of implementing the epidemic response plan. The Island Fox Conservation Working Group is a multi-disciplinary group of experts, originally convened by NPS in 1999, to evaluate available island fox status information and develop strategies to recover the island fox populations to viable levels (Service 2015, p. 6).

    In addition, ear tumor prevalence in the Santa Catalina Island fox population remains an actively managed source of mortality (Vickers et al. 2011, pp. 9-10). This cancer can have an aggressive clinical course, with local invasion, tissue damage, and metastasis, leading to death (Munson et al. 2009, p. 1). Ear inflammation correlated with cancer incidence in Santa Catalina Island foxes is triggered by ear mite infestations (Munson et al. 2009, pp. 3-4), and the severity can be reduced through aracacide application (Vickers et al. 2011, pp. 9-10). Treatment with aracacide is now standard practice by CIC during trapping of Santa Catalina Island foxes (King and Duncan 2011, p. 3).

    While CIC is currently implementing ongoing monitoring and management, at this time there is no assurance of continued funding for long-term monitoring and management that could detect a novel disease outbreak and facilitate threat abatement, as recommended in the epidemic response plan. Lack of assurances for long-term monitoring and management for Santa Catalina Island fox is of particular concern because the island has a permanent human population, experiences heavy visitation, and has many points of access. The presence of a permanent human population on the island poses a greater risk of disease introduction than that for the northern Channel Islands. CIC manages the majority of fox habitat on the island but does not manage the City of Avalon, and, therefore, CIC does not control all potential avenues for introduction of possible disease vectors. Santa Catalina Island currently allows visitors and residents to own and transport pets, including domestic dogs and cats, to and from the island (King and Duncan 2011, p. 15), and dogs are frequently observed off-leash (Anderson 2012, pers. obs.; King 2012a, p. 1; Vissman and Anderson 2013 and 2014, pers. obs.; King 2015, p. 22). Transport of domestic and wild animals to and from Santa Catalina Island and their presence on the island increases the risk to island foxes of another disease outbreak. Additionally, with unrestricted access to the island by residents and visitors, there is the possibility of inadvertently transporting other animals that could carry disease; to date, four stowaway raccoons have been removed from the island, but a fifth observed in 2010 was not captured (King and Duncan 2011, p. 15). There is no quarantine period for transported pets, and proof of current vaccination is only required by the City of Avalon when licensing dogs (rabies only), and for CIC employees and lessees with pets living in company-owned housing (King and Duncan 2011, p. 15). Because access to the island by potentially unvaccinated or incompletely vaccinated domestic animals is not controlled or managed, there is a higher risk of disease introduction for Santa Catalina Island than for the three northern Channel Islands.

    CIC manages the majority of fox habitat on the island (but not the City of Avalon) and implements measures intended to control introduction of disease. CIC regulations require all nonnative animals entering CIC property be licensed; they also require that all dogs and cats entering CIC property be vaccinated against distemper and rabies, and be leashed at all times (CIC 2015, http://www.catalinaconservancy.org). However, enforcement of CIC regulations is labor-intensive and costly, because the island is large, there are many remote coves and beaches where private boats can anchor, and CIC does not have the funding or staff to patrol these areas regularly. CIC also conducts outreach and education of local authorities and the public to promote efforts to reduce the risk of disease introduction. However, because of unrestricted transport of domestic animals to the island, the City of Avalon's limited vaccination requirements, and limited enforcement ability of CIC, current measures to control introduction of diseases by domestic animals and stowaway wildlife on Santa Catalina Island, while providing some protection, are limited.

    Northern Channel Islands: Disease does not appear to be a significant mortality factor on the northern Channel Islands. Dogs and other pets are not permitted on the northern Channel Islands to reduce the risk of an introduced disease. Dogs are occasionally illegally brought onto the islands, but transport of domestic animals to the northern Channel Islands is much more limited than on Santa Catalina Island. Channel Islands National Park General Management Plan prohibits pets from all Park islands, except for guide dogs for visually impaired persons (NPS 2015b, pp. 468, 487).

    In 2013, a final epidemic response plan was approved and is being implemented by NPS and TNC to detect and facilitate appropriate response to a potential disease outbreak for the northern Channel Islands (Hudgens et al. 2013, entire). Infection by parasites continues to be suspected as the cause of mortality in several island foxes, but is not considered a significant mortality factor (Coonan et al. 2005b, p. 38; Coonan 2014, p. 6). Sentinel foxes are also monitored on the northern Channel Islands to facilitate early detection of a potential epidemic (Hudgens et al. 2013, entire), and foxes have been and continue to be vaccinated against CDV and rabies. Efficacy and availability of vaccines will require ongoing evaluation by the Island Fox Conservation Working Group as part of implementing the epidemic response plan. Also, the NPS identified island foxes as an ecosystem element in the Mediterranean Coast Network Vital Signs Monitoring Plan, for which they will conduct long-term annual population monitoring as part of NPS's long-term ecological monitoring program, regardless of the island fox's status under the Act (Cameron et al. 2005, p. 3-3). Both NPS and TNC have committed through signed CMAs (Service and NPS 2015; Service and TNC 2015) to carrying out monitoring and management actions in the future as recommended in the epidemic response plan for northern Channel Island foxes (Hudgens et al. 2013, entire).

    In summary, the possibility exists for domestic or wild animals carrying a disease or parasite to migrate or be transported to all the Channel Islands. The possibility is greater for Santa Catalina Island due to a permanent human population, heavy visitation, and many points of access. On all islands, an epidemic response plan is approved and being implemented (Hudgens et al. 2013 and 2014, entire), which includes that a subset of foxes are vaccinated when vaccines are available and monitored to detect and respond to a potential disease outbreak (Coonan 2010, pp. 24-29; see appendices 3 and 4 in recovery plan (Service 2015)). NPS and TNC have committed (Service and NPS 2015; Service and TNC 2015) to carrying out monitoring and management actions in the future as recommended in the epidemic response plan for northern Channel Island foxes (Hudgens et al. 2013, entire); therefore, we consider the potential threat of disease adequately controlled for the San Miguel, Santa Rosa, and Santa Cruz Island foxes now and in the future. We do not at this time have the assurance of continued implementation of the epidemic response plan on Santa Catalina Island. Disease was the main threat to Santa Catalina Island foxes at the time of listing in 2004, and given the increased risk of disease introduction and the lack of assurance for continued implementation of the epidemic response plan to detect and mitigate for future disease outbreaks, we still consider potential disease outbreaks to be a threat to the Santa Catalina Island fox now and in the future.

    Predation

    As identified in the 2004 listing rule, golden eagle predation was the primary cause for the decline of the northern Channel Islands fox subspecies and the primary reason for listing the species as endangered under the Act (69 FR 10335; March 5, 2004). Before golden eagles started using the northern Channel Islands in the 1990s, the only known predator of island foxes was the red-tailed hawk (Buteo jamaicensis), which preyed only occasionally on young island foxes (Laughrin 1973, pp. 10-11; Moore and Collins 1995, p. 4). Because of the lack of predators, island foxes did not evolve vigilance and were easy targets for golden eagles (Roemer et al. 2001, p. 316). Colonization of the northern Channel Islands by golden eagles was likely a combination of two factors: (1) Introduction of nonnative mammals on the northern Channel Islands, resulting in a historically unprecedented prey base for golden eagles (69 FR 10335, March 5, 2004, p. 10338); and (2) an open ecological niche created by the extirpation of bald eagles (Haliaeetus leucocephalus) from the islands as a result of dichlorodiphenyltrichloroethane (DDT) poisoning (Service 2004, p. 10343).

    In the 2004 listing rule, the Federal Bald and Golden Eagle Protection Act (BGEPA; 16 U.S.C. 668-668d) and the California Fish and Game Code, section 3511, were thought to have delayed or precluded the implementation of needed recovery actions for island foxes. The protections afforded to golden eagles by the BGEPA were thought to limit lethal management alternatives to protect island foxes. The California Fish and Game Code, section 3511, deemed golden eagles a fully protected species, which did not allow any take to be authorized. In 2003, California amended this law to allow authorization of the take of fully protected species for scientific research, including research on recovery for other imperiled species (Senate Bill 412).

    To address the unprecedented number of golden eagles and the effects they were having on island foxes, in August 1999, NPS and TNC initiated a nonlethal golden eagle removal program to protect island foxes on the northern Channel Islands. Between November 1999 and July 2006, 44 golden eagles, including 22 adults or near adults, were removed from Santa Rosa and Santa Cruz Islands and released in northeastern California (Latta et al. 2005, p. 348; Coonan et al. 2010, pp. 59-61). There has been no record of breeding golden eagles on the northern Channel Islands since that time.

    To ensure that golden eagles would be less likely to attempt to establish territories again on Santa Rosa and Santa Cruz Islands, TNC and NPS initiated a program in 2005 and 2011, respectively, to remove nonnative animals from those islands (Macdonald and Walker 2007, p. 20). The last known feral pig was removed from Santa Cruz Island in January 2007 (Parkes et al. 2010, p. 636). Nonnative mule deer and elk were removed from Santa Rosa Island as part of an agreement with the former owners of the island. All elk and all but a few deer were removed by 2015, resulting in an island that was essentially ungulate-free for the first time in over 150 years (Coonan 2015b, pers. comm.).

    The 2004 listing rule also identified the extirpation of bald eagles from the Channel Islands as a likely contributor to the colonization of the northern Channel Islands by golden eagles. Bald eagles aggressively defend their territories from golden eagles (69 FR 10335, March 5, 2004, pp. 10343-10344), and their presence on the islands likely would have discouraged dispersing golden eagles from establishing residence. Prior to listing, NPS, the Institute for Wildlife Studies, and TNC were actively engaged in the Montrose Settlements Restoration Program to reintroduce bald eagles to the Channel Islands, including Santa Catalina Island. The success of bald eagle reintroduction on the Channel Islands continues, with approximately 50 total resident bald eagles on the islands (Montrose Settlements Restoration Program 2015, p. 1).

    In summary, although golden eagle predation of island foxes may occasionally occur (Coonan et al. 2014a, p. 374), predation has been extensively reduced and is no longer resulting in significant impacts at the population scale. This reduction in predation by golden eagles is in direct response to the extensive removal of golden eagles from the northern Channel Islands, golden eagle prey being removed successfully from Santa Rosa and Santa Cruz Islands, and the successful reintroduction of bald eagles.

    Summary of Factor C

    To reduce the threat of disease, a subset of each island fox subspecies is protected from CDV and rabies through preventative vaccinations when available and through monitoring as recommended in epidemic response plans to detect and facilitate appropriate responses in the event of an epidemic. NPS and TNC are committed through signed conservation management agreements (CMAs) to monitor and conduct other management actions for detecting and appropriately responding to a potential disease outbreak in the future, as recommended in the epidemic response plans (Service and NPS 2015; Service and TNC 2015). Therefore, the best available data indicate potential disease outbreaks are no longer a threat to the Santa Rosa Island fox, San Miguel Island fox, and Santa Cruz Island fox now and in the future.

    Mortality due to disease was the primary reason for the decline and listing of Santa Catalina Island foxes. Currently, the epidemic response plan is being implemented on Santa Catalina Island, but the potential for an epidemic remains on Santa Catalina Island because of heavy visitation, many points of access, and few controls for pets and stowaway wild animals that could carry disease. In addition, there is no assurance of continued implementation of the epidemic response plan in the future on Santa Catalina Island to detect and mitigate for future disease outbreaks, and the new CDV vaccine may not be adequate. Efficacy and availability of vaccines will require ongoing evaluation by the Island Fox Conservation Working Group as part of implementing the epidemic response plan. Overall, the best available data indicate potential disease outbreaks to be a threat to the Santa Catalina Island fox now and in the future.

    Mortality due to golden eagle predation was the primary reason for the decline and listing of northern Channel Islands foxes (San Miguel, Santa Rosa, and Santa Cruz Island foxes). This threat has been substantially reduced by measures including the complete removal of golden eagles, eradication of golden eagles' nonnative prey, and reintroduction of bald eagles. Additionally, NPS and TNC are committed through signed CMAs to monitor and conduct other management actions for detecting and appropriately responding to predation by golden eagles in the future, as recommended in the golden eagle management strategy (Service and NPS 2015; Service and TNC 2015). Thus, given the recent golden eagle and prey-base eradication efforts and reintroduction of bald eagles to prevent golden eagle presence in the future, along with ongoing management commitments, we no longer consider predation by golden eagles to be a threat resulting in significant impacts at the population scale (e.g., result in a population decline) on the northern Channel Islands now or in the future.

    Factor D: The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether existing regulatory mechanisms are inadequate to address the threats to the four island fox subspecies discussed under other factors. Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require us to consider relevant Federal, State, and Tribal laws, regulations, and other such mechanisms that may minimize any of the threats we describe in the threats analyses under the other four factors, or otherwise enhance conservation of the species. We give strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations; an example would be State governmental actions enforced under a State statute or constitution, or Federal action under statute.

    For currently listed species, we consider the adequacy of existing regulatory mechanisms to address threats to the species absent the protections of the Act. Therefore, we examine whether other regulatory mechanisms would remain in place if the species were delisted, and the extent to which those mechanisms will continue to help ensure that future threats will be reduced or minimized.

    In our discussion under Factors A, B, C, and E, we evaluated the significance of the threat as mitigated by any such conservation efforts and existing regulatory mechanisms. Where threats exist, we analyze under Factor D the extent to which existing regulatory mechanisms are inadequate to address the specific threats to the species. Regulatory mechanisms, if they exist, may reduce or eliminate the impacts from one or more identified threats.

    As noted in our discussion under the other factors, conservation measures and existing regulatory mechanisms (such as continued implementation of the epidemic response plan and golden eagle management strategy) have reduced the primary threats of disease and predation by golden eagles on the northern Channel Islands and will continue to be controlled through appropriate management. Other previously identified threats affecting the San Miguel Island fox, Santa Rosa Island fox, Santa Cruz Island fox, and Santa Catalina Island fox, such as habitat modification by nonnative grazing animals and nonnative plant invasion and habitat conversion (Factor A), have been and are continuing to be controlled through appropriate management, and we anticipate that these efforts will continue in the future. Other sources of mortality are assessed under Factor E and found to not exert significant impacts on island foxes at either the population or rangewide scales, now or in the future. Consequently, we find that conservation measures along with existing regulatory mechanisms are adequate to address these specific threats.

    The remaining threat to island fox on Santa Catalina Island is the potential for a disease epidemic because of heavy visitation, many points of access, and few controls for pets and stowaway wild animals that could carry disease. In addition, we do not have the assurance of continued implementation of the epidemic response plan in the future on Santa Catalina Island to detect and mitigate for future disease outbreaks. Therefore, under Factor C, we still consider potential disease outbreaks to be a threat to the Santa Catalina Island fox at this time and in the future. Consequently, our analysis here examines how existing regulatory mechanisms address this remaining identified threat to the Santa Catalina Island fox.

    There are currently no regulations restricting transport of domestic animals to the island, and limited vaccination requirements for domestic animals owned by City of Avalon residents, thus providing the potential for introduction of disease to the island. CIC manages the majority of fox habitat on Santa Catalina Island, but not the City of Avalon; CIC regulations require all nonnative animals entering CIC property be licensed and that all dogs and cats be vaccinated against distemper and rabies (CIC 2015, entire). Reduction of the risk of disease introduction also occurs through CIC outreach and education of local authorities and the public. However, enforcement of CIC regulations is labor-intensive and costly because the island is large with many remote coves and beaches where private boats can anchor, and CIC does not have the funding or staff to patrol these areas regularly. Therefore, current measures to control introduction of diseases by domestic animals and stowaway wildlife on Santa Catalina Island, while providing some protection, are limited and thus do not fully address the threat of disease to Santa Catalina Island fox (see Factor C discussion, above).

    Summary of Factor D

    In summary, we have discussed that the threats previously facing the three northern Channel Islands subspecies of island fox have been removed or reduced and are being adequately managed; however, disease remains a threat to the Santa Catalina Island fox. In examining how existing regulatory mechanisms address this identified threat, we find current measures to control introduction of diseases by domestic animals and stowaway wildlife on Santa Catalina Island, while providing some protection, are limited in addressing the threat of potential disease outbreaks to Santa Catalina Island fox. Therefore, we still consider potential disease outbreaks to be a threat to the Santa Catalina Island fox now and in the future under Factor C, noting that this threat is not addressed by existing regulatory mechanisms.

    Factor E: Other Natural or Manmade Factors Affecting Its Continued Existence

    The 2004 listing rule identified stochastic risks to small populations and lack of genetic variability as threats to all four island fox subspecies under Factor E (69 FR 10335; March 5, 2004). Road mortalities were also discussed under Factor E in the 2004 listing rule. Since the time of listing, the impacts of feral cat aggression, poisoning, and entrapment on Santa Catalina Island, as well as fire, drought, and global climate change for all four islands, have been identified as possible new threats.

    Small Population Size

    Island endemics, such as island foxes, have a high extinction risk due to isolation and small total population sizes relative to mainland subspecies (MacArthur and Wilson 1967, entire), both of which make them more vulnerable, especially to stochastic events such as drought and wildfire (Miller et al. 2001, entire; Kohlman et al. 2005, entire). Each island fox subspecies is a single breeding population, with San Miguel Island being the smallest population, which makes their populations inherently small and thus they may become more vulnerable to extinction when the size of a breeding population declines. In addition to small population size and the associated increased probability of extinction, lower and reduced genetic variation may make an island species less adapted to existing pressures and less capable of adaptation to new threats. Thus, small population size and low genetic diversity can have synergistic effects with respect to population decline. During the period when the island fox populations were at their lowest, they were extremely vulnerable to extinction from stochastic events. The populations have now increased substantially, returning to historical population levels, and the threat of extinction from demographic stochasticity has accordingly been reduced.

    Genetic diversity in island fox populations is considered low due to the population bottlenecks they experienced during past extreme, low population numbers (Gilbert et al. 1990; Wayne et al. 1991; Goldstein et al. 1999; Gray et al. 2001, p. 8; Gray 2002, entire; Aguilar et al. 2004; Funk et al. 2016, p. 11; Wayne et al. 2016, p. 4). This low genetic diversity could compromise the ability of island foxes to respond to future environmental change. This lack of variability could be attributed either to extensive inbreeding or to bottlenecking resulting from low population densities (Funk et al. 2016, p. 11). However, island foxes have apparently existed for thousands of years with low effective population sizes (the number of individuals that can contribute genes equally to the next generation; low is defined as 150 to 1,000) and low genetic variability (Wayne et al. 1991a, p. 1,858; 1991b, entire). While additional genetic diversity was lost during the recent declines, island foxes appear to be tolerant of low genetic variation, occasional bottlenecks, and higher inbreeding because there is little evidence of inbreeding depression in island foxes (Coonan et al. 2010, pp. 13-15). Therefore, we do not consider reduced genetic diversity to be causing population-level effects at this time or expect it to in the future.

    Motor Vehicles

    The fearlessness of island foxes, coupled with relatively high vehicle traffic on Santa Catalina Island, results in multiple fox collisions each year. On the northern Channel Islands, vehicle use is limited, restricted to only land management personnel and researchers, and is expected to remain limited into the future. On Santa Catalina Island, 10 of the 21 fox mortalities in 2015 were caused by vehicle strikes (King and Duncan 2016, p. 18). The island-wide 25 mile per hour speed limit (CIC 2015, no page number) likely minimizes the number of vehicle strike mortalities that would otherwise occur. Even with current mortality of island foxes caused by various factors including vehicle strikes, the Santa Catalina Island fox population showed significant growth between 2002 and 2015, and has hovered around 1,800 individual foxes for the past 3 years. Given island fox population growth over the past 13 years during a time when the number of vehicles on the road has increased, we do not expect the population effect from vehicle mortality to increase in the future. Additionally, there is less than a 5 percent chance of the Santa Catalina Island fox subspecies going extinct given current and expected future conditions (King and Duncan 2016, pp. 12-13; Service 2015, pp. 167-168). Therefore, even though vehicle strikes remain the primary human-caused source of individual mortality on this island, mortality by motor vehicles is not considered a threat resulting in significant impacts at either the population or rangewide scales on Santa Catalina Island at this time or in the future.

    Interactions With Feral Cats and Domestic Dogs

    Feral cats and domestic dogs occur on Santa Catalina Island and may negatively affect foxes through interactions including direct aggression and competition for food and habitat resources (Laughrin 1978, pp. 5-6; Kovach and Dow 1981, p. 443). Direct aggression between Santa Catalina Island foxes and cats has been documented in the wild, primarily near public coves and campgrounds that provide food and shelter for feral cats (Guttilla 2007, p. 9). Researchers have routinely captured foxes that have severe injuries consistent with cat encounters (Guttilla 2007, p. 9). Aggressive exclusion of foxes by feral cats has also been observed. When cats move into fox habitat, foxes are no longer observed; when cats are no longer resident, foxes move back in to occupy the area (King 2013c, pers. comm.; Anderson 2013, pers. obs.).

    In the 2004 listing rule (69 FR 10335; March 5, 2004), we noted that California's Food and Agricultural Code 31752.5 prohibited lethal control of feral cats unless cats are held for a minimum of 6 days, which was thought to prevent CIC from taking steps to eradicate feral cats on Santa Catalina Island. In 2008, a Feral Animal Task Force was convened by the City of Avalon, with representatives of CIC and other island stakeholders, to address feral and free-ranging cats in the city and on the rest of the island, and most importantly, to draft legislation for consideration by the City Council for approval and incorporation into City ordinance. This task force is not currently active, however, and progress has stalled in initiating new feral cat control measures and enacting new legislation (King 2016, pers. comm.). Currently, the CIC practice regarding feral cats is consistent with that of the Catalina Island Humane Society: animals trapped accidentally during fox-trapping/monitoring are examined, and, if free from incurable and contagious disease, are spayed or neutered and released. Animals found to test positive for Feline Leukemia or Feline Immunodeficiency are humanely euthanized. Younger cats including kittens may be adopted from the Catalina Island Humane Society (CIC 2016, http://www.catalinaconservancy.org). Although competition and other negative interactions with feral cats can affect individual foxes, they are not currently resulting in significant impacts at either the population or rangewide scales.

    Instances of fox mortality from domestic dog attacks have been observed over the past decade (Gaffney 2011, p. 1; Munson and Gaffney 2011, p. 1; King and Duncan 2011, pp. 12-13; King and Duncan 2012, p. 14; King 2012a, p. 1; 2012b, p. 1; King 2015, p. 1). While mortality due to domestic dog attacks has been reported, it is limited in effect to individual foxes, and does not have significant impacts to island fox at either the population or rangewide scales now nor do we anticipate that it will in the future.

    We do not anticipate an increase in the number of feral cats and domestic dogs on Santa Catalina Island in the future. Because growth of the Santa Catalina Island fox population over the past 13 years occurred during a time when feral cats and foxes and domestic dogs and foxes have been interacting, we do not expect that interactions with feral cats or domestic dogs will result in negative population effects in the future. Overall, given the lack of significant impacts at either the population or rangewide scales, interactions with feral cats and domestic dogs are not considered a threat to the Santa Catalina Island fox now or in the future.

    Poisoning and Entrapment

    Other impacts to Santa Catalina Island foxes resulting from human interaction include mortality from poisoning and entrapment (Duncan and King 2012, p. 4; King and Duncan 2015, pp. 18, 20; Vickers 2012a, p. 2; Vickers 2012b, p. 1; King and Duncan 2015, p. 18). A Santa Catalina Island fox died in 2012 from rodenticide poisoning (Duncan and King 2012, p. 4), another was euthanized because of poisoning in 2014 (King and Duncan 2015, p. 18), and a third was sickened in 2014 by insecticide poisoning (King and Duncan 2015, p. 20). Entrapment of foxes may occur in areas where development projects are ongoing. Examples include: Two foxes falling into a power line pole construction pit (CIC 2009, http://www.catalinaconservancy.org); one fox drowning due to entanglement in a food container (Vickers 2012a p. 2); one fox death from being trapped in a recycling barrel (Vickers 2012b, p. 1); and two fox deaths in 2014 from drowning in water or sediment containers (King and Duncan 2015, p. 18). Types of human-caused harm other than vehicle strikes and domestic dog attacks in urbanized areas are varied, but they do not have a population-level impact at this time or in the future. Given the low numbers of foxes affected by poisoning or entrapment and the past and current population growth, we do not expect the population effect from poisoning or entrapment to increase in the future. Therefore, at this time, the best available information indicates neither poisoning nor entrapment is resulting in significant impacts at either the population or rangewide scales, and there is no indication that poisoning or entrapment on Santa Catalina Island will increase in the future.

    Fire

    On the northern Channel Islands, the frequency and intensity of wildland fire is less than on the adjacent mainland, because there are fewer ignition sources on the islands, and the typical maritime fog moisture inhibits fire spread. Natural lightning-strike fires are extremely rare; only three fires between 1836 and 1986 on the Channel Islands were started by lightning (Carroll et al. 1993, p. 77). On the northern Channel Islands, there are far fewer human-started fires than on the mainland or on Santa Catalina Island, as there are no permanent human occupants on the northern Channel Islands. Because of this, island foxes on the northern Channel Islands have experienced few large wildland fire events. The recent removal of nonnative grazers may increase fuel loads and thus the likelihood of larger fires; however, historically consistent cool and foggy conditions will continue to limit wildland fire spread, including in the future. Additionally, NPS adheres to a policy of total suppression on the Channel Islands, due to resource concerns (Kirkpatrick 2006, entire), reducing the chance that wildland fires will become large.

    Though not identified as a threat at the time of listing, Santa Catalina Island regularly experiences wildfires (CIC 2011) that could reduce food availability, alter the habitat, or directly result in the loss of individual foxes (Service 2004, p. 10347). Duncan and King's (2009, p. 384) findings indicate fire seasonality has an influence on fox survival; fires that occur when pups are young and most dependent on adults for mobility are most damaging. However, in general, the best available data indicate that neither the 2006 Empire Fire nor the 2007 Island Fire had significant effects to island fox at the population level (Duncan and King 2009, p. 384).

    In summary, wildfires are infrequent on the northern Channel Islands and more frequent on Santa Catalina Island. On all islands, while wildfire can result in mortality of individuals, especially juveniles depending on when the fires occur, the best available data indicate that wildfire does not pose significant impacts to the island fox at either the population or rangewide scales currently. In addition, there is no indication that fire frequency will increase in the future on the northern Channel Islands. On Santa Catalina Island, even given an increase in fire frequency since 1999, the island fox population has continued to increase (CIC 2016, http://www.catalinaconservancy.org). Therefore, we do not anticipate wildfire posing a significant population-level impact in the future.

    Drought

    The Channel Islands, as well as the rest of southern California, are currently in the midst of a drought that began in 2012, and, as of mid-April 2016, has not abated (United States Drought Monitor 2016, entire). Island foxes have endured many droughts during their 10,000-year persistence on the islands (California Department of Water Resources 2015, entire). Deep multi-year droughts have occurred on the Channel Islands about once every 2 decades since 1900 (Coonan 2015, unpubl. data). General drought conditions in the late 1920s and early 1930s, combined with overgrazing, denuded most vegetation, particularly on San Miguel Island, creating massive sand barrens, remnants of which are still evident today (Johnson 1980, entire). Even so, island foxes survived this period of soil erosion and episodic landscape stripping.

    The current drought is the first opportunity to study the effect of drought on island foxes, since foxes have recovered to historic numbers. On San Miguel Island, average adult weights declined in 2013 and 2014, to the lowest ever recorded, and fox reproduction was negligible in 2013 and 2014 (Coonan et al. 2014, p. 28; Coonan 2015b, p. 7; Coonan 2015, unpubl. data). During this time, mortality also increased, and many fox carcasses were emaciated (Coonan 2014, pp. 6-7). However, San Miguel Island fox numbers have remained at or above pre-decline levels (Friends of the Island Fox 2015, p. 3). On Santa Catalina Island, data indicate that decreasing precipitation may result in a reproductive decline; however, adults' weights were not similarly affected during this time (King and Duncan 2015, pp. 21-22). These effects were not seen on neighboring Santa Rosa Island, where foxes are not yet at carrying capacity or pre-decline levels. Fox weights increased on Santa Rosa Island in the drought years, reproduction was higher, and foxes had higher body condition scores than on San Miguel Island (Coonan 2015b, pp. 7-8). It is apparent that one response of island foxes to drought is to curtail reproduction, especially if the population is at carrying capacity (Coonan et al. 2010, p. 28; Coonan 2015a, pp. 6, 13). Given the past demonstrated ability of island foxes to survive pervasive drought, current healthy population numbers, and apparent ability to respond to drought by shifting resource allocation, we do not consider drought to be a threat to island foxes at this time or in the future.

    Global Climate Change

    Our analyses under the Act include consideration of ongoing and projected changes in climate. Scientific measurements spanning several decades demonstrate that changes in climate are occurring, and that the rate of change has increased since the 1950s. Examples include warming of the global climate system, and substantial increases in precipitation in some regions of the world and decreases in other regions (e.g., Solomon et al. 2007, pp. 35-54, 82-85; IPCC 2013b, pp. 3-29; IPCC 2014, pp. 1-32). Results of scientific analyses presented by the Intergovernmental Panel on Climate Change (IPCC) show that most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate and is “very likely” (defined by the IPCC as 90 percent or higher probability) due to the observed increase in greenhouse gas (GHG) concentrations in the atmosphere as a result of human activities, particularly carbon dioxide emissions from use of fossil fuels (Solomon et al. 2007, pp. 21-35; IPCC 2013b, pp. 11-12 and figures SPM.4 and SPM.5). Further confirmation of the role of GHGs comes from analyses by Huber and Knutti (2011, p. 4), who concluded it is extremely likely that approximately 75 percent of global warming since 1950 has been caused by human activities.

    Various changes in climate may have direct or indirect effects on species. These effects may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as threats in combination and interactions of climate with other variables (for example, habitat fragmentation) (IPCC 2014, pp. 4-11). Identifying likely effects often involves aspects of climate change vulnerability analysis. Vulnerability refers to the degree to which a species (or system) is susceptible to, and unable to cope with, adverse effects of climate change, including climate variability and extremes. Vulnerability is a function of the type, magnitude, and rate of climate change and variation to which a species is exposed, its sensitivity, and its adaptive capacity (Glick et al. 2011, pp. 19-22; IPCC 2014, p. 5). There is no single method for conducting such analyses that applies to all situations (Glick et al. 2011, p. 3). We use our expert judgment and appropriate analytical approaches to weigh relevant information, including uncertainty, in our consideration of the best scientific information available regarding various aspects of climate change.

    Statewide and regional probabilistic estimates of temperature and precipitation changes for California and the greater Los Angeles region were evaluated by Pierce et al. (2013, entire) and Sun et al. (2015, entire) using dynamic downscaled simulations. Pierce et al. (2013, p. 854) found that, averaging across all models and downscaling methods, the warmest Julys are likely to be far warmer than historical temperatures for California. Projections for changes in precipitation by the 2060s were less certain; they showed weak overall annual mean decreases in precipitation in the southern part of the State, but with an increase in summer rain (Pierce et al. 2013, p. 855). Sun et al. (2015, p. 4,625) found that temperatures in the greater Los Angeles region for two future time periods, midcentury (2041-60) and end of century (2081-2100), will almost certainly be outside the interannual variability range seen in the baseline (1981-2000), particularly during the summer and fall. However, in each scenario and time period, the coastal areas warm less than inland areas due to generally lower warming over the ocean and the land-sea breeze circulation, which introduces a marine influence in the coastal zone (Sun et al. 2015, pp. 4,621-4,622). This suggests that the Channel Islands, along with the mainland's highest elevations and a narrow swath near the coast, may be somewhat buffered from the more extreme effects of a warming climate.

    Probably the most potentially vulnerable aspect of island fox biology to climate change is indirect effects from affected invertebrates that are parasites and disease vectors. Invertebrates, because they are exothermic (cold-blooded), are particularly responsive to the effects of a warming climate that typically speeds development and enhances survival. For disease vectors such as mosquitos, survival may occur where it was previously too cold during the coolest nights of the year for overwintering. Invertebrates are also particularly well-suited to adapt to a changing climate because they have short generation times and a high reproductive output (Parmesan 2006, pp. 654-656). The warming climate typically has resulted in increased abundance and expanded ranges of parasites such as nematodes and ticks, as well as diseases they transmit (Parmesan 2006, pp. 650-651; Studer et al. 2010, p. 11). Climate change also produces ecological perturbations that result in altered parasite transmission dynamics, increasing the potential for host switching (Brooks and Hoberg 2007, p. 571). Moller's (2010, p. 1,158) analysis of parasites on avian hosts over a 37-year period suggests climate change predictions for parasite effects should be made with caution, but that climate can alter the composition of the parasite community and may cause changes in the virulence of parasites (Moller 2010, p. 1,158). Climate change may change and could potentially increase the parasites and disease vectors to which island foxes are exposed. However, we anticipate ongoing monitoring and management will detect any increase or changes in parasites or disease vectors that affect the population health of island foxes.

    Considering that island foxes are opportunistic feeders, and climate warming could increase the subspecies' insect prey base abundance, it is possible climate change could positively affect food quantity and quality. For example, increased consumption of insect species by mice associated with a warmer, drier climate on South African islands has been documented (Chown and Smith 1993, pp. 508-509). In addition, because island foxes have shown relative plasticity with regard to utilizing nonnative insects (Cypher et al. 2011, p. 13), most invasions of nonnative potential prey species are not likely to negatively affect island fox food resources. The only potential negative effect of climate change on the insect prey base of island foxes would be if increased storm intensity and frequency reduced prey abundance, as Roemer (1999, p. 187) hypothesized occurred on Santa Cruz Island in the mid-1990s.

    Global climate change has the potential to negatively and positively affect island fox populations. There is still uncertainty associated with predictions relative to the timing, location, and magnitude of future climate changes. Probably the most vulnerable aspect of island fox biology to climate change is indirect effects to the fox from affected invertebrates. Given the indications that the Channel Islands may be somewhat buffered from the more extreme effects of a warming climate and past demonstrated ability of island foxes to survive pervasive drought, current healthy population numbers, and the apparent ability of foxes to respond to changes in precipitation by shifting resource allocation, we do not consider changes in temperature or precipitation projected due to climate change to be a threat to island foxes at this time or in the future. While we cannot accurately predict the effects of climate change on island fox subspecies, because the foxes are generalists and exhibit plasticity with regards to prey and habitat use, we do not expect negative effects of such magnitude that would result in significant impacts at either the population or rangewide scales (e.g., cause major declines). We anticipate ongoing monitoring and management will detect any significant changes in population health and allow for management responses, including possible relisting.

    Summary of Factor E

    In summary, during the period when populations were at their lowest, the four subspecies of Channel Island foxes were extremely vulnerable to extinction from stochastic events. The populations have now increased substantially and the likelihood of extinction has accordingly been reduced. The combined effects of interactions with feral cats and domestic dogs, motor vehicle collisions, mortality due to wildfire, and other human-caused mortalities result in the deaths of multiple individuals throughout Santa Catalina Island on an annual basis, but they do not constitute a combined threat to the relatively large population at this time nor do we anticipate that they will in the future. Given the past demonstrated ability of island foxes to survive pervasive drought, their current healthy population numbers, and their apparent ability to respond to drought by shifting resource allocation, we do not consider drought to be a threat to island foxes at this time or in the future. While we cannot accurately predict the effects of climate change on island fox subspecies because the foxes are generalists and exhibit plasticity with regards to prey, habitat use, and resource allocation, we do not consider climate change to be a threat to island foxes now nor in the future.

    Overall Summary of Factors Affecting Island Foxes

    At time of listing in 2004 (69 FR 10335; March 5, 2004), predation by golden eagles was the primary threat to San Miguel, Santa Rosa, and Santa Cruz Island foxes, and disease was the primary threat to the Santa Catalina Island fox. The threat of predation by golden eagles on the northern Channel Islands has been significantly reduced since the time of listing. This reduction in predation by golden eagles is in direct response to the extensive removal of golden eagles from the northern Channel Islands, golden eagle prey being removed successfully from Santa Rosa and Santa Cruz Islands, and the successful reintroduction of bald eagles.

    Potential disease outbreaks continue to pose a threat to Santa Catalina Island foxes due to relatively uncontrolled movement of vectors from the mainland that carry diseases for which the population may not be vaccinated. The primary measures in place on all islands to reduce the threat of disease are vaccination of a subset of the fox population for CDV and rabies, and monitoring of population sentinels to detect the start of another epidemic and respond appropriately to mitigate the outbreak. While disease is currently controlled on Santa Catalina Island, we do not have assurance that monitoring and management of Santa Catalina Island foxes necessary to detect and mitigate an epidemic in Santa Catalina Island foxes will continue in the future.

    During the period when the island fox populations were at their lowest, they were extremely vulnerable to extinction from stochastic events. There will always be some inherent risk of extinction due to stochastic events because each island fox subspecies is a single breeding population. However, the populations have now increased substantially, show stable or increasing trends, and are returning to historical population levels, and the threat of extinction from demographic stochasticity has accordingly been reduced.

    Mortality due to motor vehicle strikes, habitat loss, feral cats, and domestic dogs results in loss of individuals, but these mortality factors are not resulting in significant impacts to island foxes at either the population or rangewide scales as documented by current population numbers and trends. When population numbers are healthy, island foxes respond to drought by shifting resource allocation; therefore, we do not consider drought to be a threat to island foxes at this time or in the future. The impacts of climate change are hard to predict. Some effects to island fox populations could be negative while others could be positive. Predicting likely future climate scenarios and understanding the complex effects of climate change are high priorities for island fox conservation planning. Climate change is not considered a threat now or in the future because of the past demonstrated ability of island foxes to survive pervasive drought, their current healthy population numbers, the indication that the Channel Islands may be somewhat buffered from the more extreme effects of a warming climate, and the apparent ability of foxes to respond to changes in precipitation by shifting resource allocation.

    When mortality mechanisms or other stressors occur together, one may exacerbate the effects of another, causing effects not accounted for when stressors are analyzed individually. Synergistic or cumulative effects may be observed in a short amount of time or may not be noticeable for years into the future, and could affect the long-term viability of island fox populations. For example, if a stressor hinders island fox survival and reproduction or affects the availability of habitat that supports island foxes, then the number of individuals the following year(s) will be reduced, increasing vulnerability to stochastic events like a disease epidemic or wildfire. The combined effects of interactions with feral cats and domestic dogs, motor vehicle collisions, mortality due to wildfire, and other human-caused mortalities result in the deaths of multiple individuals throughout Santa Catalina Island on an annual basis, but they do not constitute a combined threat to the relatively large population at this time nor do we anticipate that they will in the future. Another example is San Miguel Island where there have been combined effects of low reproductive output, dry climate, parasites, and low genetic variability. However, population estimates for the total San Miguel Island fox population likely represents carrying capacity for the island (Coonan 2014, p. 8), which has resulted in a general decline in reproductive effort as the population has increased. In addition, according to population viability analyses the San Miguel Island fox subspecies is at acceptably low risk of extinction (Guglielmino and Coonan 2016, p. 17) indicating that low reproductive output, dry climate, parasites, and low genetic variability do not constitute a combined threat to the population at this time nor do we anticipate that they will in the future. In conducting this analysis, we have considered whether the individual stressors identified for each island, considered in combination, result in a threat to the species. The combination of low mortality and robust population growth puts each island fox subspecies at acceptably low risk of extinction, according to population viability analyses. While synergistic or cumulative effects may occur when mortality mechanisms or other stressors occur together, given the robust populations and ongoing management and monitoring, these effects do not pose significant impacts to San Miguel, Santa Rosa, and Santa Cruz Island foxes at either the population or rangewide scales at this time nor do we anticipate that they will in the future. Synergistic or cumulative effects do not pose significant impacts to Santa Catalina Island fox at either the population or rangewide scales at this time given the robust populations and current ongoing management and monitoring, but could in the future if there are lapses in monitoring and management in the future.

    Determination

    An assessment of the need for a species' protection under the Act is based on whether a species is in danger of extinction or likely to become so because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or human-made factors affecting its continued existence. As required by section 4(a)(1) of the Act, we conducted a review of the status of these species and assessed the five factors to evaluate whether the San Miguel, Santa Rosa, Santa Cruz, and Santa Catalina Island foxes are in danger of extinction, or likely to become so in the foreseeable future throughout all or a significant portion of their ranges. We examined the best scientific and commercial information available regarding the past, present, and future threats faced by these subspecies. We also consulted with species experts and land management staff with NPS, TNC, and CIC, who are actively managing for the conservation of island foxes.

    In considering what factors might constitute threats, we must look beyond the mere exposure of the species to the factor to determine whether the exposure causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat and we then attempt to determine how significant the threat is. If the threat is significant, it may drive, or contribute to, the risk of extinction of the species such that the species warrants listing as an endangered species or threatened species as those terms are defined by the Act. This determination does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors are operative threats that act on the species to the point that the species meets the definition of an endangered species or threatened species under the Act.

    At the time of listing in 2004 (69 FR 10335; March 5, 2004), the Santa Catalina Island fox experienced a devastating CDV epidemic that resulted in an almost complete loss of the eastern subpopulation, which made up the majority of the island population. The precipitous decline of the northern Channel Island foxes (San Miguel, Santa Rosa, and Santa Cruz Island foxes) that led to their listing as endangered species was the result of depredation by golden eagles, facilitated by the presence of a nonnative, mammalian prey-base on the northern Channel Islands.

    As a result of concerted management efforts, golden eagle predation has been reduced to such a degree that it is no longer considered a threat to the northern island subspecies. Additional management efforts, including captive breeding and ongoing vaccinations for disease, have contributed to the substantial increase of all island fox populations. Although golden eagles will most likely continue to occasionally occur on the islands as transients, the removal of the nonnative prey-base and the constant presence of bald eagles are permanent, long-term deterrents to golden eagles establishing breeding territories and remaining on the northern Channel Islands. Ongoing management and monitoring are designed to detect any reemergence of threats and to take corrective actions should any threats be detected.

    Northern Channel Islands Subspecies

    Based on the information presented in this final rule and the proposed rule (81 FR 7723; February 16, 2016), the recovery criteria in the recovery plan have been achieved and the recovery objectives identified in the recovery plan have been met for the three northern Channel Island subspecies of island fox. San Miguel, Santa Rosa, and Santa Cruz Island fox abundance has increased steadily to the point where the number of individuals is again within the range of historical population estimates, save Santa Rosa Island where numbers are returning to historical population levels. Population viability analyses strongly indicate that the northern Channel Island foxes have an acceptably small risk of extinction and current population levels are consistent with long-term viability. Additionally, the primary threat (golden eagles) to northern Channel Island foxes has been controlled, and ongoing management and monitoring are in place to ensure that threats continue to be managed in the future. This information indicates that these three subspecies are no longer at immediate risk of extinction, nor are they likely to experience reemergence of threats and associated population declines in the future. We, therefore, conclude that the San Miguel, Santa Rosa, and Santa Cruz Island foxes are no longer experiencing significant impacts at either the population or rangewide scales. Thus, these island fox subspecies are no longer in danger of extinction throughout all of their ranges, nor are they likely to become so within the foreseeable future.

    Significant Portion of the Range

    Having determined that the San Miguel, Santa Rosa, and Santa Cruz Island foxes are not in danger of extinction, or likely to become so, throughout all of their ranges, we next consider whether there are any significant portions of their ranges in which the island foxes are in danger of extinction or likely to become so. Under the Act and our implementing regulations, a species may warrant listing if it is an endangered species or a threatened species. The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” On July 1, 2014, we published a final policy interpreting the phrase “significant portion of its range” (SPR) (79 FR 37578). The final policy states that (1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as an endangered species or a threatened species, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time the Service or the National Marine Fisheries Service makes any particular status determination; and (4) if a vertebrate species is endangered or threatened throughout an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

    The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered (or threatened) species and no SPR analysis will be required. Because we are reclassifying the listing status of the Santa Catalina Island fox as a threatened species under the Act (see Santa Catalina Island Fox, below), we are not conducting an SPR analysis for this subspecies. If the species is neither endangered nor threatened throughout all of its range, we determine whether the species is endangered or threatened throughout a significant portion of its range. If it is, we list the species as an endangered species or a threatened species, respectively; if it is not, we conclude that the species is neither an endangered species nor a threatened species.

    When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and either endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is endangered or threatened throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (i.e., the loss of that portion clearly would not be expected to increase the vulnerability to extinction of the entire species), those portions will not warrant further consideration.

    If we identify any portions that may be both (1) significant and (2) endangered or threatened, we engage in a more detailed analysis. As discussed above, to determine whether a portion of the range of a species is significant, we consider whether, under a hypothetical scenario, the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction or likely to become so in the foreseeable future throughout all of its range. This analysis considers the contribution of that portion to the viability of the species based on the conservation biology principles of redundancy, resiliency, and representation. (These concepts can similarly be expressed in terms of abundance, spatial distribution, productivity, and diversity.) The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species in that identified SPR is in danger of extinction or likely to become so. We must go through a separate analysis to determine whether the species is in danger of extinction or likely to become so in the SPR. To determine whether a species is endangered or threatened throughout an SPR, we will use the same standards and methodology that we use to determine if a species is endangered or threatened throughout its range.

    Depending on the biology of the species, its range, and the threats it faces, it may be more efficient to address either the significance question first, or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is “significant.”

    Applying the process described above, we evaluated the respective ranges of the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox to determine if any area could be considered a significant portion of any one of the subspecies' ranges. As mentioned above, one way to identify portions for further analyses is to identify areas that may be significant, such as any natural divisions within the range that might be of individual biological or conservation importance to the species. We conducted our review based on examination of the recovery plan (Service 2015; entire) and other relevant and more recent information on the biology and life history of the northern Channel Island foxes. Because each of the three northern Channel Island fox subspecies is a narrow endemic where the foxes on each island constitute a single population, we determined that there are no natural divisions or separate areas of the range of each subspecies that contribute separately to the conservation of that particular subspecies. In other words, for each subspecies of island fox, there is only one biologically defined portion, and there are no notably separate or distinct portions that contribute independently to the conservation (i.e., to the redundancy, resiliency, and representation) of the species. We also examined whether any portions might be endangered or threatened by examining whether threats might be geographically concentrated in some way. Although some of the factors we evaluated under Summary of Factors Affecting the Species, above, may continue to affect each of the subspecies, the factors affecting island foxes generally occur at similarly low levels throughout each of their ranges. The entire population of each subspecies is equally affected by threats and by the amelioration of such threats throughout their ranges. Based on our evaluation of the biology of the subspecies and current and potential threats to the island foxes, we conclude that no portion of the ranges of the three subspecies of the northern Channel Islands foxes warrants further consideration to determine if it is significant. In other words, threats have been sufficiently ameliorated, and all individuals and all portions of the range of each subspecies interact to such an extent that it is not reasonable to conclude that any portion of the range can have a different status than any other portion.

    We have carefully assessed the best scientific and commercial data available and determined that the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox are no longer in danger of extinction throughout all or significant portions of their ranges, nor are they likely to become so within the foreseeable future. As a consequence of this determination, we are removing the San Miguel, Santa Rosa, and Santa Cruz Island fox from the Federal List of Endangered and Threatened Wildlife.

    Santa Catalina Island Fox

    The Santa Catalina Island fox exhibits demographic characteristics consistent with long-term viability. The population has continued to increase over the past 11 years, reaching an estimated high of 1,852 individuals in 2013 (King and Duncan 2015, p. 11), then dropping slightly to 1,812 in 2015 (King and Duncan 2016, p. 10). Population viability analysis indicates the Santa Catalina Island fox population has an acceptably small risk of extinction—less than 5 percent since 2008. With population levels consistent with long-term viability, the intent of recovery objective 1 has been met for the Santa Catalina Island fox. However, objective 2 has not been met because we do not have assurance that the monitoring and management as prescribed in the epidemic response plan for Santa Catalina Island foxes will be funded and implemented in the future to ensure that the threat of disease continues to be managed. While population levels are currently consistent with long-term viability (indicating that the subspecies is no longer currently in danger of extinction), lack of adequate control of potential vectors along with lack of assured long-term monitoring could allow for lapses in management and monitoring and reemergence of disease that may cause epidemics and population declines before they can be detected and acted upon. We coordinated with CIC to determine their ability to enter into an agreement to provide assurances for long-term funding and a commitment for long-term implementation of the epidemic response plan. Though we do not have assurances of long-term funding that would allow them to commit to long-term implementation of the epidemic response plan, we recognize that CIC's efforts have significantly contributed to a reduction of impacts to the Santa Catalina Island fox and its habitat. As a result, we have determined that the Santa Catalina Island fox is no longer in danger of extinction throughout all of its range, but instead is threatened with becoming endangered in the foreseeable future throughout all of its range. Therefore, we are reclassifying the status of the Santa Catalina Island fox from an endangered species to a threatened species. Because we have determined the Santa Catalina Island fox is likely to become an endangered species in the foreseeable future throughout all of its range, no portion of its range can be significant for purposes of the definitions of endangered species or threatened species (see 79 FR 37578; July 1, 2014) (also see Significant Portion of the Range, above).

    Critical Habitat

    Section 4(a)(3)(A) of the Act, as amended, and implementing regulations (50 CFR 424.12) require that we designate critical habitat, to the maximum extent prudent and determinable, at the time a species is listed as endangered or threatened.

    On November 9, 2005 (70 FR 67924), we determined that habitat on Santa Catalina Island (as well as the other three islands occupied by the island fox described herein) did not meet the definition of critical habitat under the Act. We made this determination based on the island fox being a generalist in all aspects of its life history. We stated that foxes are opportunistic omnivores that eat a wide variety of plants and animals in whatever habitat they use, and as such, they use all habitat available on each of the islands (70 FR 67927). We were not aware at that time nor are we aware currently of any existing or anticipated threats to Santa Catalina Island habitats that would likely affect the Santa Catalina Island fox. Accordingly, we continue to conclude that there is no information to support a conclusion that any specific habitat on Santa Catalina Island is essential to the conservation of the Santa Catalina Island fox. Thus, we do not find any habitat on Santa Catalina Island that meets the definition of critical habitat in section 3(5)(A) of the Act. Because there continues to be no habitat that meets the definition of critical habitat for the Santa Catalina Island fox, there is none to designate.

    Effects of This Rule

    This final rule revises 50 CFR 17.11(h) by removing the San Miguel Island fox, Santa Rosa Island fox, and Santa Cruz Island fox from the Federal List of Endangered and Threatened Wildlife. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, no longer apply to these subspecies. Federal agencies are no longer required to consult with the Service under section 7 of the Act in to ensure that any action they authorize, fund, or carry out is not likely to jeopardize the continued existence of these subspecies.

    This rule also revises 50 CFR 17.11(h) to reclassify the Santa Catalina Island fox from an endangered species to a threatened species on the Federal List of Endangered and Threatened Wildlife. However, this reclassification does not change the protection afforded to this subspecies under the Act. Anyone taking, attempting to take, or otherwise possessing this species, or parts thereof, in violation of section 9 of the Act or its implementing regulations, is subject to a penalty under section 11 of the Act. Pursuant to section 7 of the Act, Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of the Santa Catalina Island fox. Whenever a species is listed as threatened, the Act allows promulgation of special rules under section 4(d) that modify the standard protections for threatened species found under section 9 of the Act and Service regulations at 50 CFR 17.31 (for wildlife) and 17.71 (for plants), when it is deemed necessary and advisable to provide for the conservation of the species. No special section 4(d) rules are proposed, or anticipated to be proposed, for Santa Catalina Island fox, because there is currently no conservation need to do so for this subspecies. Recovery actions directed at Santa Catalina Island fox will continue to be implemented, as funding allows, as outlined in the recovery plan for this species (Service 2015, entire).

    Future Conservation Measures

    Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been recovered and delisted. The purpose of this post-delisting monitoring (PDM) is to verify that a species remains secure from risk of extinction after the protections of the Act are removed, by developing a program that detects the failure of any delisted species to sustain itself. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing under section 4(b)(7) of the Act.

    Post-Delisting Monitoring Plan

    NPS and TNC have agreed to partner with us in the implementation of the post-delisting monitoring for the northern Channel Island foxes. The post-delisting monitoring is designed to verify that San Miguel, Santa Rosa, and Santa Cruz Island foxes remain secure from risk of extinction after their removal from the Federal List of Endangered and Threatened Wildlife by detecting changes in population trend and mortality/survival. Post-delisting monitoring for the northern Channel Island fox subspecies will be conducted as recommended in the epidemic response plan for northern Channel Island foxes (Hudgens et al. 2013, entire) and golden eagle management strategy (NPS 2015a, entire). These documents are available on the Internet at https://www.regulations.gov at Docket No. FWS-R8-ES-2015-0170, and the Ventura Fish and Wildlife Office's Web site at http://www.fws.gov/Ventura/.

    Although the Act has a minimum post-delisting monitoring requirement of 5 years, the post-delisting monitoring plan for northern Channel Island foxes includes a 10-year monitoring period to account for environmental variability (for example, extended drought) that may affect fox populations and to document the range of population fluctuation as fox populations reach carrying capacity. If a decline in abundance is observed or a substantial new threat arises, post-delisting monitoring may be extended or modified as described below.

    Island foxes will be monitored for both population size and trend, and for annual survival and cause-specific mortality, as specified by the epidemic response plan for northern Channel island foxes (Hudgens et al. 2013, entire) and the golden eagle management strategy (NPS 2015a, entire). Monitoring as recommended in these plans is currently being implemented. Population size and trend are estimated using capture-mark-recapture data from trapping foxes on grids (Rubin et al. 2007, p. 2-1; Coonan 2014, p. 2). Such monitoring has been implemented for island foxes since the late 1980s. The monitoring provides a continuous record of population fluctuation, including decline and recovery, upon which population viability analysis was used to develop island fox demographic recovery objectives (Bakker and Doak 2009, entire; Bakker et al. 2009, entire).

    Annual survival and cause-specific mortality of island foxes will be monitored, as they are now, via tracking of radio-collared foxes. Mortality checks will be conducted weekly on radio-collared foxes, and necropsies will be conducted on fox carcasses to determine the cause of mortality. A sample of at least 40 radio-collared foxes is maintained on each island, as that is the number of monitored foxes determined to be necessary to detect an annual predation rate of 2.5 percent (Rubin et al. 2007, p. 2-20). This level of radio-telemetry monitoring is part of the epidemic response plan and the golden eagle management strategy for island foxes on the northern Channel Islands (Hudgens et al. 2013, pp. 7-11).

    In cooperation with NPS and TNC, we will annually review the results of monitoring, which include annual estimated adult population size, annual adult survival, and identified causes of mortality. If there are apparent sharp declines in population size or survival, or if the information indicates the appearance of significant mortality causes, the data will be reviewed by the Island Fox Conservation Working Group for evaluation and assessment of threat level. Monitoring results may also reach thresholds which precipitate increased monitoring or implementation of management actions, as specified in the epidemic response plan and golden eagle management strategy. At the end of the 10-year post-delisting monitoring period, NPS, TNC, and the Service will determine whether monitoring should continue beyond the 10-year monitoring period.

    Summary of Comments and Recommendations

    In the proposed rule published on February 16, 2016 (81 FR 7723) in the Federal Register, we requested that all interested parties submit written comments on the proposal by April 18, 2016. We also contacted appropriate Federal and State agencies, Tribal entities, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing. All substantive information provided during comment periods has either been incorporated directly into this final determination or is addressed below.

    Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from three knowledgeable individuals with scientific expertise that included familiarity with the island fox and its habitat, biological needs, and threats. We received responses from all three of the peer reviewers.

    We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the status of the island fox. The peer reviewers generally concurred with our methods and conclusions, and provided new information and suggestions to improve the final rule. This information has been incorporated into the final rule as appropriate. The peer reviewer comments are addressed in the following summary.

    Comments From Peer Reviewers

    (1) Comment: Two peer reviewers requested further mention of lack of genetic diversity as an important consideration for island foxes. They stated that numerous studies have now shown that island fox populations lack genetic variation, an outcome of long-term small population sizes and bottlenecks, coupled with the pervasive effects of genetic drift. The peer reviewers stated that although the threats to island fox populations on the northern Channel Islands have either been reduced or addressed and the populations have recovered to approximately historic levels, the various subspecies lack genetic variation, which could compromise their ability to respond to future environmental change if managers do not respond to a potential decline in a timely manner.

    Our Response: We included the relevant scientific information presented by the peer reviewers related to lack of genetic variation in this final rule. We anticipate that ongoing monitoring and management as described in signed CMAs with NPS and TNC (Service and NPS 2015; Service and TNC 2015) will detect any significant changes in population health and allow for management responses, including possible relisting. If a decline is detected, we will act in concert with NPS and TNC in an expedient manner to uncover the agent of the decline and implement timely recovery actions as laid out in the golden eagle management strategy and epidemic response plans (Hudgens et al. 2013, entire; NPS 2015a, entire).

    (2) Comment: One peer reviewer requested more information about evaluation of recovery objective 1 and recovery criteria E/1. In particular, the peer reviewer asked if demographic characteristics included measures of genetic characteristics, as the same standards should not apply to populations that have lost much of their genetic variation.

    Our Response: Recovery objective 1 is that each federally listed subspecies of island fox exhibits demographic characteristics consistent with long-term viability. Recovery objective 1 is achieved when recovery criteria E/1 is met: an island fox subspecies has no more than 5 percent risk of quasi-extinction over a 50-year period; recovery criteria E/1 has been met. Recovery criteria E/1 is evaluated for each species using population viability models presented in Bakker et al. (2009) and appendix 2 of the recovery plan (Service 2015, pp. 135-140) that incorporate demographic information for each subspecies of island fox, which are influenced by genetics and the environment. Genetic variation is not one of the demographic characters that is measured, although we recognize that genetic variation has an influence on demographic characters.

    (3) Comment: One peer reviewer asked how the quasi-extinction number of 30 individuals was derived. The peer reviewer asserted that if extreme bottleneck events have occurred, it is highly possible that quasi-extinction levels of 30 individuals are not appropriate, and numbers this low could essentially extirpate any genetic variation left in the population.

    Our Response: Because short- to medium-term risk analysis is most important for island fox management, Bakker et al. (2009) ran each simulation for 50 years and used a quasi-extinction threshold of 30 foxes, set by the Service's island fox Recovery Team to further account for unidentified biological and sociopolitical uncertainties (Bakker et al. 2009, p. 92). We concur with the quasi-extinction level determined by the scientists on the island fox Recovery Team. However, we note that monitoring and management is designed to intervene well before a species would reach a quasi-extinction threshold. Quasi-extinction is not the threshold for action; rather, triggers for action would be if monitoring results indicate a sharp decline in population size or survival or the appearance of a significant mortality source. The intent is to avoid the quasi-extinction threshold by a wide margin by managing for a low risk of reaching such a threshold over a fairly long period of time.

    (4) Comment: One peer reviewer asked what it would take to delist the Santa Catalina Island subspecies.

    Our Response: The best available scientific data for Santa Catalina Island suggest that while Santa Catalina Island fox populations have increased to self-sustaining levels, potential disease epidemic remains an ongoing threat. Once disease and disease risk are controlled and managed to the point they are no longer a threat to the subspecies, and assuming no other stressors are resulting in significant impacts at either the population or rangewide scales, the Santa Catalina Island fox could be removed from the Federal List of Endangered and Threatened Wildlife (that is, delisted). Controlling the threat of disease would include assurances of long-term implementation of the epidemic response plan for Santa Catalina Island, which is currently being implemented by CIC. We coordinated with CIC to determine their ability to enter into an agreement to provide assurances, and they indicated they are currently unable to provide assurances for long-term funding and management. Though we do not have assurances of long-term funding that would allow them to commit to long-term implementation of the epidemic response plan, we recognize that CIC's efforts have significantly contributed to a reduction of impacts to the Santa Catalina Island fox and its habitat.

    Public Comments

    We requested written comments from the public on the proposed rule. To that end, we specifically sought comments concerning: (1) Additional information on the distribution, population size, and population trends of the San Miguel, Santa Rosa, Santa Cruz, and Santa Catalina Island foxes; (2) relevant information concerning any current or likely future threats (or lack thereof) to the island foxes; (3) current or planned activities within the range of the island foxes and their possible impacts; (4) regional climate change models and whether they are reliable and credible to use in assessing the effects of climate change on the island foxes and their habitats; and (5) our draft post-delisting monitoring plan.

    During the open comment period, which closed on April 18, 2016, we received 10 comment letters from organizations or individuals directly addressing the proposed removal of the San Miguel, Santa Rosa, and Santa Cruz Island fox from the Federal List of Endangered and Threatened Wildlife, or reclassification of the Santa Catalina Island fox from an endangered to a threatened species. Seven of these letters opposed the proposal, and three provided support. Two of these letters provided substantive comments (beyond a succinct expression of agreement or opposition) on the proposed rule, one of which supported and one of which opposed our proposal. Substantive information has been incorporated into the final rule as appropriate. The public comments are addressed in the following summary.

    Comments From the Public

    (5) Comment: One commenter suggested we conduct a more detailed analysis of the effects of global climate change and that we hold public meetings to develop a response plan for climate change.

    Our Response: We incorporated additional information into the climate change discussion in this rule based on new information that was provided by the peer reviewers. While we cannot accurately predict the effects of climate change on island fox subspecies, because the foxes are generalists and exhibit plasticity with regards to prey and habitat use, we do not expect negative effects of such magnitude that would result in significant impacts at either the population or rangewide scales (e.g., cause major population declines). However, we anticipate ongoing monitoring and management will detect any significant changes in population health and allow for management responses, including possible relisting; therefore, public meetings to develop a response plan were not planned.

    (6) Comment: One commenter expressed concern that if the northern Channel Islands subspecies are delisted, the disease and predator management programs may potentially be defunded.

    Our Response: The post-delisting monitoring is designed to verify that northern Channel Island foxes remain secure from risk of extinction after their removal from the Federal List of Endangered and Threatened Wildlife by detecting changes in population trend and mortality/survival. Post-delisting monitoring for the northern Channel Island fox subspecies will be conducted as recommended in the epidemic response plan for northern Channel Island foxes (Hudgens et al. 2013, entire) and golden eagle management strategy (NPS 2015a, entire). Funding and implementation of post-delisting monitoring is assured for 10 years by signed CMAs between the Service, NPS, and TNC (Service and NPS 2015; Service and TNC 2015). At the end of the 10-year post-delisting monitoring period, the Service, NPS, and TNC will determine whether monitoring should continue beyond the 10-year monitoring period. In addition, NPS identified island foxes as an ecosystem element for which they will conduct long-term annual population monitoring as part of Channel Island National Park's long-term ecological monitoring program, regardless of their status under the Act.

    (7) Comment: One commenter stated that the San Miguel Island fox population declined from 581 individuals in 2011 (Coonan and Gugliolmino 2011, p. 14) to 538 individuals in 2012 (Coonan 2013, p. 10), despite the high number of pups caught and low number of known mortalities. The commenter questioned the 2015 data presented in the proposed rule, which indicate that the San Miguel Island population rose by approximately 200 from 2014, despite less than a quarter of the number of captured pups compared to 2012 and more than triple the number of known mortalities. The commenter also pointed out that Santa Rosa Island foxes have yet to meet their carrying capacity, and so, given that population's limited size, delisting is inappropriate at this time.

    Our Response: The population estimates presented in this rule for the San Miguel Island fox are based on the best available scientific information as reported to the Service by NPS. San Miguel Island fox population estimates for the total population (both adults and juveniles) reveal that the subspecies has hovered around at least 550 foxes since 2010, and this likely represents carrying capacity for that island (Coonan 2014, p. 8). This is supported by the general decline in reproductive effort as the population has increased. On the San Miguel Island monitoring grids, only three pups were caught in 2013 and 2014, and only seven were caught in 2015, compared to 32 caught in 2012 (Guglielmino and Coonan 2016, p. 13). The low reproductive output is likely due both to high fox density and extended drought. Even given this, the overall combination of low mortality and robust population growth continues to put the San Miguel Island fox subspecies at acceptably low risk of extinction, according to population viability analyses (Guglielmino and Coonan 2016, p. 17). The San Miguel population reached this level of acceptable extinction risk in 2009, and even recent mortality due to drought has not moved the population away from acceptable extinction risk.

    Santa Rosa Island foxes have likely not reached carrying capacity. Carrying capacity is not a threshold for recovery or for healthy populations; rather, carrying capacity is the maximum number of individuals that the habitat can support. Most populations function below that threshold and still exhibit demographic characteristics for healthy, stable populations. Populations do not need to be at carrying capacity to have stable or increasing demographics consistent with long-term viability. On Santa Rosa Island, significant mortality during the early phase of reintroduction and again in 2010 prevented the Santa Rosa subspecies from attaining the level of biological recovery that the San Miguel and Santa Cruz Islands subspecies had attained by 2013. However, the predicted extinction risk (over the next 50 years) has been less than 5 percent since 2011 for Santa Rosa Island (Guglielmino and Coonan 2016, p. 22). As of 2015, all Roosevelt elk and mule deer have been removed from Santa Rosa Island, and the island fox population has increased to greater than 1,200 foxes (Coonan 2015b, pers. comm.; Guglielmino and Coonan 2016, p. 18). With the golden eagle management strategy in place, complete removal of golden eagles and their nonnative prey-base from the northern Channel Islands, development and implementation of an epidemic response plan, and population levels consistent with long-term viability, the intent of recovery objectives 1 and 2, and the associated recovery criteria, are met for the San Miguel, Santa Rosa, and Santa Cruz Island foxes.

    (8) Comment: One commenter presented information on Acanthocephalan parasites, which affect the gut of island foxes. The commenter stated that Acanthocephalans have been identified as a factor in the deaths of over 20 island foxes since 2013. In addition, the commenter pointed out that most of the foxes on San Miguel Island have become increasingly underweight and probably infected. The commenter expressed that the effect this parasite could have on the San Miguel population of island foxes is significant and there is too little information on this significant issue to proceed with the proposed delisting.

    Our Response: In 2013, necropsies of five radio-collared San Miguel Island foxes revealed substantial, and in several cases massive, parasitism by an unidentified Acanthocephalan (spiny-headed) parasite in the intestines (Coonan et al. 2014b, pp. 11, 12). Six of the 16 mortalities in 2014 through June 2015 had infection by an Acanthocephalan parasite, as did five in 2013 (Coonan 2015b, pp. 7, 8). The parasite burdens were associated with one or a combination of colitis, enteritis, and emaciation, and likely contributed to mortality of the individuals, but have not yet been determined as the cause of mortality (Coonan 2015b, p. 2). In 2015, the Island Fox Health Working Group discussed the impact of Acanthocephalans to island foxes on San Miguel Island and determined that no specific management action or treatment is recommended at this time, as cases are continuing, but do not appear to be increasing or causing a population decline (Coonan 2015b, p. 15). Continued monitoring of mortality causes will determine whether the parasite is a significant mortality source for San Miguel foxes, and requires management. Thus, at this time, the best available data indicate that although potential impacts from Acanthocephalan parasites may be impacting San Miguel Island fox individuals, there are no significant impacts at the population scale such that this parasite would be considered a threat to the subspecies. We anticipate that ongoing monitoring and management as described in signed CMAs with NPS and TNC (Service and NPS 2015; Service and TNC 2015) will detect any significant changes in population health and allow for management responses, including listing in the future if warranted.

    (9) Comment: One commenter presented information that the San Miguel Island fox population is aging and that there are problems in reproduction or survival of pups. Information was presented by the commenter that 73 percent of the collared foxes are 4 to 10 years old, while 47 percent are 6 to 10 years old. Only 27 percent of these foxes are young animals of 1 to 3 years old, which reflects 3 consecutive years of poor recruitment for the population, signifying poor birth years or poor pup survival. The commenter stated that such an age structure puts this population at risk, particularly given the small size of the population, dry climate, parasite issue, and low genetic diversity among the San Miguel Island foxes.

    Our Response: Population estimates for the total San Miguel Island fox population (both adults and juveniles) reveal that it has hovered around 550 foxes since 2010, and this likely represents carrying capacity for the island (Coonan 2014, p. 8). This is supported by the general decline in reproductive effort as the population has increased. During annual monitoring efforts, only three pups were caught in 2013 and 2014, and only seven were caught in 2015, compared to 32 caught in 2012 (Guglielmino and Coonan 2016, p. 13). The low reproductive output is likely due both to high fox density and extended drought, and is to be expected as the population hovers around carrying capacity and responds to extended drought. This does not in and of itself constitute a threat to the San Miguel Island fox population, and low reproductive effort has not been identified as a current threat to any island fox population.

    The combination of low mortality and the population at likely carrying capacity (i.e., 550 foxes since 2010 (Coonan 2014, p. 8)) puts the San Miguel Island fox subspecies at acceptably low risk of extinction, according to population viability analyses (Guglielmino and Coonan 2016, p. 17). We anticipate that ongoing monitoring and management as described in signed CMAs with NPS and TNC (Service and NPS 2015; Service and TNC 2015) will detect any significant changes in population health and allow for management responses, including listing in the future if warranted. If a significant decline is detected, we will act in concert with NPS and TNC in an expedient manner to uncover the agent of the decline and implement timely recovery actions as laid out in the golden eagle management strategy and epidemic response plans (Hudgens et al. 2013, entire; NPS 2015a, entire).

    Required Determinations National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing, delisting, or reclassification of a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov under Docket No. FWS-R8-ES-2015-0170 or upon request from the Ventura Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this final rule are staff members of the Ventura Fish and Wildlife Office in Ventura, California, in coordination with the Pacific Southwest Regional Office in Sacramento, California, and the Carlsbad Fish and Wildlife Office in Carlsbad, California.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless otherwise noted.

    2. Amend § 17.11(h), the List of Endangered and Threatened Wildlife, under MAMMALS, by: a. Removing the entries for “Fox, San Miguel Island”, “Fox, Santa Cruz Island”, and “Fox, Santa Rosa Island”; and b. Revising the entry for “Fox, Santa Catalina Island”.

    The revision reads as follows:

    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and applicable rules MAMMALS *         *         *         *         *         *         * Fox, Santa Catalina Island Urocyon littoralis catalinae Wherever found T 69 FR 10335; 3/5/2004
  • 81 FR [Insert Federal Register page where the document begins]; 8/12/2016
  • 50 CFR 17.95(a) CH
  • *         *         *         *         *         *         *
    § 17.95 [Amended]
    3. Amend § 17.95(a) by removing the entries for “San Miguel Island Fox (Urocyon littoralis littoralis)”, “Santa Cruz Island Fox (Urocyon littoralis santacruzae)”, and “Santa Rosa Island Fox (Urocyon littoralis santarosae)”. Dated: July 21, 2016. Stephen Guertin, Acting Director, Fish and Wildlife Service.
    [FR Doc. 2016-18778 Filed 8-11-16; 8:45 am] BILLING CODE 4333-15-P
    81 156 Friday, August 12, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. APHIS-2015-0091] RIN 0579-AE24 Importation of Orchids in Growing Media From the Republic of Korea Into the Continental United States AGENCY:

    Animal and Plant Health Inspection Service, Department of Agriculture.

    ACTION:

    Proposed rule.

    SUMMARY:

    We are proposing to amend the regulations governing the importation of plants for planting to add orchid plants of the genera Phalaenopsis and Cymbidium from the Republic of Korea to the list of plants that may be imported into the continental United States in an approved growing medium, subject to specified growing, inspection, and certification requirements. We are taking this action in response to a request from the Republic of Korea and after determining that the plants could be imported under certain conditions, without resulting in the introduction into, or the dissemination within, the United States of a plant pest or noxious weed.

    DATES:

    We will consider all comments that we receive on or before October 11, 2016.

    ADDRESSES:

    You may submit comments by either of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0091.

    Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS-2015-0091, Regulatory Analysis and Development, PPD, APHIS, Station 3A-03.8, 4700 River Road, Unit 118, Riverdale, MD 20737-1238.

    Supporting documents and any comments we receive on this docket may be viewed at http://www.regulations.gov/#!docketDetail;D=APHIS-2015-0091 or in our reading room, which is located in Room 1141 of the USDA South Building, 14th Street and Independence Avenue SW., Washington, DC. Normal reading room hours are 8 a.m. to 4:30 p.m., Monday through Friday, except holidays. To be sure someone is there to help you, please call (202) 799-7039 before coming.

    FOR FURTHER INFORMATION CONTACT:

    Mr. William Aley, Senior Regulatory Specialist, Plants for Planting Policy, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737; (301) 851-2130.

    SUPPLEMENTARY INFORMATION: Background

    The regulations in 7 CFR part 319 prohibit or restrict the importation into the United States of certain plants and plant products into the United States to prevent the introduction of plant pests and noxious weeds. The regulations in “Subpart—Plants for Planting,” §§ 319.37 through 319.37-14 (referred to below as the regulations) contain, among other things, prohibitions and restrictions on the importation of plants, plant parts, and seeds for propagation.

    Paragraph (a) of § 319.37-8 of the regulations requires, with certain exceptions, that plants offered for importation into the United States be free of sand, soil, earth, and other growing media. This requirement is intended to help prevent the introduction of plant pests that might be present in the growing media; the exceptions to the requirement take into account factors that mitigate that plant pest risk. Those exceptions, which are found in paragraphs (b) through (e) of § 319.37-8, consider either the origin of the plants and growing media (paragraph (b)), the nature of the growing media (paragraphs (c) and (d)), or the use of a combination of growing conditions, approved media, inspections, and other requirements (paragraph (e)).

    Paragraph (e) of § 319.37-8 provides conditions under which certain plants established in growing media may be imported into the United States. In addition to specifying the types of plants that may be imported, § 319.37-8(e) also:

    • Specifies the types of growing media that may be used;

    • Requires plants to be grown in accordance with written agreements between the Animal and Plant Health Inspection Service (APHIS) and the national plant protection organization (NPPO) of the country where the plants are grown and between the foreign NPPO and the grower;

    • Requires the plants to be rooted and grown in a greenhouse that meets certain requirements for pest exclusion and that is used only for plants being grown in compliance with § 319.37-8(e);

    • Restricts the source of the seeds or parent plants used to produce the plants, and requires grow-out or treatment of parent plants imported into the exporting country from another country;

    • Specifies the sources of water that may be used on the plants, the height of the benches on which the plants must be grown, and the conditions under which the plants must be stored and packaged; and

    • Requires that the plants be inspected in the greenhouse and found free of evidence of plant pests no more than 30 days prior to the exportation of the plants.

    A phytosanitary certificate issued by the NPPO of the country in which the plants were grown that declares that the above conditions have been met, must accompany the plants at the time of importation. These conditions have been used successfully to mitigate the risk of pest introduction associated with the importation into the United States of approved plants established in growing media.

    Currently, orchid plants of the genera Cymbidium and Phalaenopsis may only be imported into the United States from the Republic of Korea as bare root plants, in accordance with § 319.37-2. The NPPO of the Republic of Korea has requested that importation into the United States of those plants in growing media be allowed under the provisions of § 319.37-8.

    The regulations in § 319.37-8(g) provide that requests such as the one made by the NPPO of the Republic of Korea be evaluated by APHIS using a pest risk assessment (PRA) that uses specific pest risk evaluation standards that are based on pest risk analysis guidelines established by the International Plant Protection Convention of the United Nations' Food and Agriculture Organization. Such analyses are conducted to determine the plant pest risks associated with each requested plant article and to determine whether or not APHIS should propose to allow the requested plant article established in growing media to be imported into the United States. In accordance with § 319.37-8(g), APHIS has conducted the required PRA, which can be viewed online on the Regulations.gov Web site or in our reading room (see ADDRESSES above for instructions for accessing Regulations.gov).

    In the PRA, titled “Importation of Cymbidium spp. and Phalaenopsis spp. Orchid Plants in Approved Growing Media from Republic of Korea into the Continental United States,” APHIS identified that six quarantine pests present in the Republic of Korea could potentially follow the import pathway:

    Moths Spodoptera litura (Fabricius) Dichromothrips smithi (Zimmermann) Thrips palmi (Karny) Pseudococcus dendrobiorum (Williams) Slug Deroceras varians (Adams) Fungi Colletotrichum boninense (Moriwaki)

    The PRA identified P. dendrobiorum as having a medium pest risk potential of following the pathway on Cymbidium spp. and Phalaenopsis plants from the Republic of Korea. The remaining five plant pests (S. litura, D. smithi, T. palmi, D. varians, and C. boninense) were rated as having a high pest risk potential.

    However, the PRA acknowledged that the risk presented by these plant pests is consistent with pests associated with any propagative orchid materials. Further, it is important to note that those plant pest risks are present in the absence of the mitigative effects of the requirements in § 319.37-8(e), which are designed to establish and maintain a pest-free production environment and ensure the use of pest-free seeds or parent plants. Given that, the risk management document (RMD) concluded that the safeguards in § 319.37-8(e) would allow the safe importation of Cymbidium spp. and Phalaenopsis spp. plants from the Republic of Korea provided that the plants are established in an approved growing medium and meet all other applicable conditions of § 319.37-8(e). Based on the findings of the PRA and RMD, we have determined that the application of the measures required under § 319.37-8(e) will prevent the introduction or dissemination of plant pests into the United States.

    Accordingly, we are proposing to amend the regulations in § 319.37-8(e) by adding Cymbidium spp. and Phalaenopsis spp. plants from the Republic of Korea to the list of plants established in an approved growing medium that may be imported into the United States. The plants would have to be produced, handled, and imported in accordance with the requirements of § 319.37-8(e) and be accompanied at the time of importation by a phytosanitary certificate issued by the NPPO of the Republic of Korea that declares that those requirements have been met.

    Executive Order 12866 and Regulatory Flexibility Act

    This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

    In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. Copies of the full analysis are available by contacting the person listed under FOR FURTHER INFORMATION CONTACT or on the Regulations.gov Web site (see ADDRESSES above for instructions for accessing Regulations.gov).

    Orchids are the single largest group of potted flowering plants sold in the United States, comprising about $266 million of the $788 million in 2014 sales for this industry. In 2014, Phalaenopsis spp. comprised 57 percent of orchid sales. Although Cymbidium spp. are popular in other parts of the world, the quantity of potted Cymbidium spp. sold in the United States is small when compared to other varieties of orchids.

    The proposed rule would enable Korean exporters to provide higher-valued, mature potted plants directly to wholesalers and retailers. However, such a scenario is considered unlikely, given the technical challenges and marketing costs incurred when shipping finished plants in pots. A more likely scenario is for the Republic of Korea to export immature plants as bare root plants or in approved growing media to U.S. nurseries to grow and sell as finished plants.

    The United States imported more than 6,760 metric tons (MT) of live orchids valued at about $83 million in 2014, with Taiwan supplying almost 84 percent. The Republic of Korea expects to export to the United States from 2 to 5 million Phalaenopsis plants and about 1 million Cymbidium plants per year in approved growing media. This combined number of plants, 3 to 6 million, is estimated to equal more than 2,000 MT to 4,000 MT per year. This amount seems disproportionate to the Republic of Korea's history of orchid exports worldwide, which have declined from 2,936 MT in 2010 to 806 MT in 2014. The Republic of Korea exported only 1.3 MT of bare-rooted orchid plants to the United States in 2014.

    We expect the quantity of orchids in approved growing media imported from the Republic of Korea will also be limited because of the U.S. market's competitive environment. Import levels would depend on the ability of Korean producers and exporters to cover their production, transportation, and marketing costs given U.S. market prices. U.S. nurseries that purchased the Korean orchids in approved growing media would benefit from their improved quality and reduced production time in comparison to bare-rooted plants. The proposed rule would increase competition for U.S. producers and importers of immature Phalaenopsis spp. and Cymbidium spp. plants.

    U.S. orchid producers numbered 158 in 2012. Of those producers, it is unknown how many are small entities. Given the relatively small quantity of orchid plants in approved growing media that we expect to be imported from the Republic of Korea, the Administrator of the Animal and Plant Health Inspection Service has determined that this action, if promulgated, will not have a significant economic impact on a substantial number of small entities.

    Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

    National Environmental Policy Act

    To provide the public with documentation of APHIS' review and analysis of any potential environmental impacts associated with the proposed importation of Phalaenopsis spp. and Cymbidium spp. orchid varieties from the Republic of Korea into the continental United States, we have prepared an environmental assessment. The environmental assessment was prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 et seq.), (2) regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508), (3) United States Department of Agriculture (USDA) regulations implementing NEPA (7 CFR part 1b), and (4) APHIS' NEPA Implementing Procedures (7 CFR part 372).

    The environmental assessment may be viewed on the Regulations.gov Web site or in our reading room. Comments on the environmental assessment can be submitted following the instructions under ADDRESSES. (A link to Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this proposed rule.) In addition, copies may be obtained by calling or writing to the individual listed under FOR FURTHER INFORMATION CONTACT.

    Paperwork Reduction Act

    In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), reporting and recordkeeping requirements included in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB). Please send comments on the Information Collection Request (ICR) to OMB's Office of Information and Regulatory Affairs via email to [email protected], Attention: Desk Officer for APHIS, Washington, DC 20503. Please state that your comments refer to Docket No. APHIS-2015-0091. Please send a copy of your comments to the USDA using one of the methods described under ADDRESSES at the beginning of this document.

    APHIS is proposing to amend the regulations governing the importation of plants for planting to add orchid plants of the genera Phalaenopsis and Cymbidium from the Republic of Korea to the list of plants that can be imported into the continental United States in an approved growing medium, subject to specified growing, inspection, and certification requirements. APHIS is taking this action after determining that the plants could be imported under certain conditions, without resulting in the introduction into, or the dissemination within, the United States of a plant pest or noxious weed.

    Adding orchid plants of the genera Phalaenopsis and Cymbidium from the Republic of Korea to the list of plants that can be imported into the continental United States in growing media will require information collection activities, such as phytosanitary certificates, written agreements, and inspections.

    The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning these information collection activities. APHIS needs this outside input to help accomplish the following:

    (1) Evaluate whether the information collection is necessary for the proper performance of our agency's functions, including whether the information will have practical utility;

    (2) Evaluate the accuracy of our estimate of burden of the information collection, including the validity of the methodology and assumptions used;

    (3) Enhance the quality, utility, and clarity of the information to be collected; and

    (4) Minimize the burden of the information collection on those who are to respond, (such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission or responses).

    Estimate of burden: Public reporting burden for this collection of information is estimated to average 0.56 hours per response.

    Respondents: Importers, shippers, and the NPPO of the Republic of Korea.

    Estimated number of respondents: 3.

    Estimated number of responses per respondent: 139.

    Estimated annual number of responses: 416.

    Estimated total annual burden on respondents: 232.

    (Due to rounding, the total annual burden hours may not equal the product of the annual number of responses multiplied by the average reporting burden per response.)

    A copy of the information collection may be viewed on the Regulations.gov Web site or in our reading room. (A link to Regulations.gov and information on the location and hours of the reading room are provided under the heading ADDRESSES at the beginning of this proposed rule.) Copies can also be obtained from Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727. APHIS will respond to any ICR-related comments in the final rule. All comments will also become a matter of public record.

    E-Government Act Compliance

    APHIS is committed to compliance 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. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851-2727.

    List of Subjects in 7 CFR Part 319

    Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.

    Accordingly, we propose to amend 7 CFR part 319 as follows:

    PART 319—FOREIGN QUARANTINE NOTICES 1. The authority citation for part 319 continues to read as follows: Authority:

    7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.

    2. In § 319.37-8, paragraph (e) is amended as follows: a. In the introductory text, by adding a new entry for “Cymbidium spp, from the Republic of Korea” in alphabetical order and revising the entry for Phalaenopsis spp.; and b. By revising paragraph (e)(2)(xiii).

    The addition and revisions read as follows:

    § 319.37-8 Growing media.

    (e) * * *

    Cymbidium spp. from the Republic of Korea

    Phalaenopsis spp. from Taiwan, the People's Republic of China, and the Republic of Korea.

    (2) * * *

    (xiii) Plants for planting of Phalaenopsis spp. from the People's Republic of China and Phalaenopsis spp. and Cymbidium spp. from the Republic of Korea may only be imported into the continental United States, and may not be imported or moved into Hawaii or the territories of the United States.

    Done in Washington, DC, this 9th day of August 2016. Jere L. Dick, Acting Administrator, Animal and Plant Health Inspection Service.
    [FR Doc. 2016-19224 Filed 8-11-16; 8:45 am] BILLING CODE 3410-34-P
    DEPARTMENT OF ENERGY 10 CFR Part 820 [Docket No. EA-RM-16-PRDNA] RIN 1992-AA52 Procedural Rules for DOE Nuclear Activities AGENCY:

    Office of Enterprise Assessments, Office of Enforcement, Office of Nuclear Safety Enforcement, Department of Energy.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The U.S. Department of Energy (DOE) is proposing to amend its Procedural Rules for DOE Nuclear Activities to clarify that the Department may assess civil penalties against certain contractors and subcontractors for violations of the prohibition against retaliating against an employee who reports violations of law, mismanagement, waste, abuse, or dangerous/unsafe workplace conditions, among other protected activities, concerning nuclear safety (referred to as “whistleblowers”). Specifically, this proposed rule would clarify that the prohibition against whistleblower retaliation is a DOE Nuclear Safety Requirement to the extent that it concerns nuclear safety. The proposed rule would also explain the circumstances under which DOE would investigate alleged violations of this prohibition. The proposed rule would also delineate which DOE regulations are DOE Nuclear Safety Requirements.

    DATES:

    DOE will accept comments, data, and information regarding this notice of proposed rulemaking (NOPR) submitted on or before September 12, 2016.

    ADDRESSES:

    Any comments submitted must identify the NOPR for Procedural Rules for DOE Nuclear Activities and provide docket number EA-RM-16-PRDNA and/or regulatory information number (RIN) 1992-AA52. Comments may be submitted using any of the following methods:

    1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

    2. Email: [email protected] Include the docket number and/or RIN in the subject line of the message. Submit electronic comments in Microsoft Word, or PDF file format, and avoid the use of special characters or any form of encryption.

    3. Postal Mail: EA-10/Germantown Building, U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585-1290. If possible, please submit all items on a CD, in which case it is not necessary to include printed copies.

    As a result of potential delays in the receipt and processing of mail sent through the U.S. Postal Service, DOE encourages respondents to submit comments electronically to ensure timely receipt.

    For detailed instructions on submitting comments and additional information on the rulemaking process, see section III of this document (Public Participation).

    Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments received, and other supporting documents/materials, is available for review at http://www.regulations.gov. All documents in the docket are listed in the www.regulations.gov index. However, some documents listed in the index may not be publicly available, such as those containing information that is exempt from public disclosure. A link to the docket Web page can be found at: http://energy.gov/ea/office-enterprise-assessments. This Web page will contain a link to the docket for this proposed rulemaking on the www.regulations.gov site. The www.regulations.gov Web page contains simple instructions on how to access all documents, including public comments, in the docket. See section III for further information on how to submit comments through www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Steven Simonson, U.S. Department of Energy, Office of Enterprise Assessments/Germantown Building, 1000 Independence Ave. SW., Washington, DC 20585-1290. Phone: (301) 903-2816. Email: [email protected]

    K.C. Michaels, U.S. Department of Energy, Office of the General Counsel, 1000 Independence Ave. SW., Washington, DC 20585-0121. Phone: (202) 586-3430. Email: [email protected]

    SUPPLEMENTARY INFORMATION: Table of Contents I. Authority and Background II. Discussion of Proposed Amendment III. Public Participation IV. Procedural Issues and Regulatory Review I. Authority and Background

    Pursuant to the Atomic Energy Act of 1954 (AEA) (42 U.S.C. 2011 et seq.), DOE has issued regulations governing nuclear safety management (at 10 CFR part 830) and occupational radiation protection (at 10 CFR part 835). Section 234A of the AEA (42 U.S.C. 2282a) authorizes DOE to impose civil penalties for violations of these regulations. Specifically, section 234A authorizes civil penalties against contractors, subcontractors, and suppliers that are covered by an indemnification agreement under section 170.d. of the AEA (42 U.S.C. 2210(d)) (commonly known as the Price-Anderson Act) that violate DOE rules, regulations, or orders “related to nuclear safety.” DOE has issued Procedural Rules for DOE Nuclear Activities at 10 CFR part 820 (part 820), which establishes a process for imposing civil penalties under section 234A.

    Separate from part 820, DOE has also issued regulations at 10 CFR part 708 (part 708) that prohibit a contractor or subcontractor from retaliating against employees for reporting violations of law, mismanagement, waste, abuse, or dangerous/unsafe workplace conditions, participating in proceedings, or refusing to participate in an activity that may constitute a violation of law or cause a reasonable fear of injury (referred to as “whistleblowers”). These regulations establish an affirmative duty on the part of contractors not to retaliate against whistleblowers; and establish a process for an employee alleging retaliation to file a claim for reinstatement, transfer-preference, back-pay, and legal fees among other forms of relief.

    DOE is proposing to amend part 820 to clarify that DOE may impose civil penalties against a contractor or subcontractor for violating the prohibition against whistleblower retaliation found in part 708, to the extent it concerns nuclear safety. The proposed rule would not alter the existing procedures for imposing civil penalties, but would establish requirements specific to whistleblower retaliation concerning nuclear safety. The proposed rule would also provide, in the text of part 820, a list of all other DOE Nuclear Safety Requirements.

    II. Discussion of Proposed Amendment A. What are DOE Nuclear Safety Requirements and when may DOE impose civil penalties?

    The current version of part 820 includes a definition for “DOE Nuclear Safety Requirements,” and it states that DOE has authority to impose civil penalties for violations of any DOE Nuclear Safety Requirement set forth in the Code of Federal Regulations, Compliance Orders issued under subpart C to part 820, and any program, plan, or other provision required to implement one of these rules or orders.1 The rule does not identify the particular rules and regulations that DOE regards as DOE Nuclear Safety Requirements.

    1 The use of the word “order” in this context refers to Compliance Orders issued under subpart C to part 820, not to orders issued under the DOE Directives Program.

    DOE proposes to amend part 820 to update the definition of DOE Nuclear Safety Requirements, to add a new section to part 820, and to amend the guidance in appendix A to part 820—General Statement of Enforcement Policy. In particular, DOE proposes that the following are enforceable DOE Nuclear Safety Requirements to the extent they concern nuclear safety:

    10 CFR part 830 (nuclear safety management);

    10 CFR part 835 (occupational radiation protection);

    10 CFR 820.11 (information accuracy requirements);

    Compliance Orders issued pursuant to 10 CFR part 820, subpart C;

    10 CFR 708.43 (duty of contractors not to retaliate against whistleblowers).

    The lack of a definitive list of regulations included in the definition of DOE nuclear safety requirements in the text of part 820 has led to a question regarding the scope of DOE's authority to issue civil penalties for violations of these regulations, particularly the prohibition against whistleblower retaliation in part 708. To address this question, DOE proposes to amend part 820 to clarify that part 830, part 835, § 820.11, Compliance Orders issued pursuant to subpart C to part 820, and § 708.43 as it concerns nuclear safety each represent DOE Nuclear Safety Requirements and that DOE may assess civil penalties for violations of these rules. This amendment is consistent with the original intent in promulgating part 820, as evidenced by appendix A of this part, the preambles to previous rulemakings (e.g. 58 FR 43680, 43681 (Aug. 17, 1993)).

    DOE considers each of these provisions to be a DOE Nuclear Safety Requirement and has previously exercised enforcement activity on the basis of violations of these regulations. Parts 830 and 835 both have a clear connection to nuclear safety in that each regulation directly and explicitly governs the conduct of persons whose conduct may affect nuclear safety. Further, part 830 states explicitly that the requirements of part 830 are DOE Nuclear Safety Requirements and 10 CFR 830.5 provides that violations of part 830 may be enforced through civil penalties in accordance with part 820.

    Compliance Orders issued pursuant to subpart C to part 820 and § 820.11 also have a clear connection to nuclear safety. Subpart C allows the Secretary of Energy to order any person involved in a DOE nuclear activity to remediate a situation that violates or potentially violates the AEA, another statute relating to a DOE nuclear activity, or a DOE Nuclear Safety Requirement. Because the underlying violations would involve nuclear safety, Compliance Orders issued under subpart C govern conduct that relates to and may affect nuclear safety. Section 820.11 requires that information pertaining to a nuclear activity that is provided to or maintained for inspection by DOE must be complete and accurate in all respects and prohibits any person involved in a nuclear activity from concealing or destroying information concerning a violation of a DOE Nuclear Safety Requirement. If information regarding a nuclear activity is incomplete or inaccurate, this impedes DOE's ability to conclude that a contractor is adhering to proper safety precautions. Likewise, if a person willfully destroys information regarding a safety violation, it becomes less likely that the violation will be rectified.

    Section 708.43 establishes an affirmative duty on the part of DOE contractors (including subcontractors) not to retaliate against whistleblowers. Section 708.36 provides various forms of relief to whistleblower employees. Providing this relief is important, but the Department also has a strong interest in preventing whistleblower retaliation and ensuring that workers feel free to raise important safety concerns. DOE and its contractors rely to a significant extent on workers to bring attention to unsafe conditions. If workers witness any retaliation against an employee for raising a potential nuclear safety issue, it may contribute to a chilled work environment in which workers do not feel free to report such issues. Accordingly, § 708.43, as it applies to activities at DOE nuclear facilities that concern nuclear safety, constitutes a DOE Nuclear Safety Requirement.

    B. What is the effect of administrative and judicial whistleblower proceedings on DOE's enforcement process?

    An employee alleging retaliation by a DOE contractor or subcontractor has several different mechanisms to file a claim for relief, including filing a claim pursuant to part 708, with the DOE Office of the Inspector General, with the Department of Labor under 29 CFR part 24, or in federal or state court. For most of these mechanisms, a contractor employee may seek a “make whole” remedy including reinstatement, transfer-preference, back-pay, and legal fees, among other forms of compensation. DOE considers the imposition of civil penalties for whistleblower retaliation as a complementary process to these proceedings. Relief to contractor employees who have been found to suffer retaliation is important, but DOE also has a separate and strong interest in deterring future whistleblower retaliation in connection with nuclear safety issues. A “make whole” remedy to the employee may not be sufficiently punitive to deter future retaliation against whistleblowers. In these situations, separate enforcement with the possibility of imposing civil penalties would allow DOE to craft a remedy that is specifically designed to address these safety concerns.

    As a matter of regulatory concern, DOE recognizes that conducting enforcement proceedings concerning retaliation in parallel with administrative or judicial proceedings may lead to conflicting results. DOE's current enforcement policy explains that DOE will generally await the completion of an administrative proceeding before deciding whether to take action. DOE proposes to codify this policy into the regulatory text with respect to proceedings before DOE under part 708, the DOE Office of the Inspector General under 41 U.S.C. 4705 or 4712, the Department of Labor under 29 CFR part 24, or a federal or state court. Specifically, DOE proposes that it will not take any action under part 820 with respect to alleged retaliation until after the deadlines have passed for filing a claim under part 708 or 29 CFR part 24—i.e. 180 days after the alleged violation occurs.2 If an administrative or judicial proceeding is filed after DOE has already initiated any action under part 820, DOE will immediately suspend its activities under part 820 until the issuance of a final decision in the proceeding—including the exhaustion of appeals. In such instances, DOE will not take any action under part 820 until sixty days after a final decision in an administrative or judicial proceeding finds that a retaliation occurred.

    2 For a part 708 claim, the employee must file within 90 days after the employee knew or reasonably should have known about the alleged retaliation. For a claim under 29 CFR part 24, the employee must file within 180 days of an alleged violation prohibited by section 211 of the Energy Reorganization Act of 1974 (42 U.S.C. 5851). There is a three-year deadline for filing a complaint with the Inspector General under 41 U.S.C. 4712, but there is no explicit deadline under 41 U.S.C. 4705. Statutes of limitations before federal and state courts vary.

    DOE proposes that it will generally exercise enforcement discretion that is consistent with the final decision of an agency or court. If a final decision finds that retaliation occurred, DOE will consider whether that retaliation constitutes a violation of § 708.43, and if so, whether to take action under part 820. On the other hand, if a final decision finds that no retaliation occurred, DOE will not take any further action under part 820 with respect to the alleged retaliation unless DOE becomes aware of significant new information that was not available in the prior proceeding.

    DOE is aware that the various statutory and regulatory prohibitions against whistleblower retaliation are not identical. Section 708.43 prohibits retaliation against an employee who engages in one of a number of specified activities. It is conceivable that a contractor could retaliate against an employee for an action that is not protected under § 708.43, but that is protected under a different statutory or regulatory prohibition. Therefore, in the event that a final decision finds that a prohibited retaliation has taken place, DOE will make a determination of whether that retaliation also constitutes a violation of § 708.43 before pursuing remedial measures under part 820 against the contractor.

    C. What is DOE's enforcement policy regarding whistleblower retaliation?

    Section XIII to appendix A to part 820 currently sets forth DOE's Whistleblower Enforcement Policy. As mentioned in this preamble, this appendix is a general statement of policy and is not binding on DOE or its contractors. In addition to codifying DOE's existing policy to await the completion of administrative proceedings, as described in this preamble, DOE also proposes to codify two other statements of the enforcement policy into a new section of part 820 governing whistleblower enforcement. Specifically, DOE proposes to codify paragraphs d and e of section XIII, which provide that DOE may collect information gathered during administrative proceedings and give appropriate weight to that information in DOE's enforcement process, respectively. DOE also proposes to codify paragraph k of section XIII, which provides that the commencement of an administrative or judicial proceeding regarding an alleged retaliation does not prevent DOE from investigating violations of DOE Nuclear Safety Requirements other than § 708.43.

    Under this NOPR, DOE is also proposing amendments to section XIII of appendix A to conform with the proposed changes to the regulatory text of part 820.

    III. Public Participation

    DOE will accept comments, data, and information regarding this proposed rule submitted on or before the date provided in the DATES section at the beginning of this proposed rule. Interested parties may submit comments, data, and other information using any of the methods described in the ADDRESSES section at the beginning of this proposed rule. Please refer to specific proposed rule provisions, if possible.

    If you submit information that you believe to be exempt by law from public disclosure, you should submit one complete copy marked “confidential,” and one copy marked “non-confidential” with the information believed to be confidential deleted. DOE is responsible for the final determination with regard to disclosure or nondisclosure of the information and for treating it accordingly under the DOE Freedom of Information regulations at 10 CFR 1004.11. Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person that would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.

    It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

    DOE has determined that this rulemaking does not raise the kinds of substantial issues or impacts that, pursuant to 42 U.S.C. 7191, would require DOE to provide an opportunity for oral presentation of views, data and arguments. Therefore, DOE has not scheduled a public hearing on these proposed amendments to part 820.

    IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866

    This notice of proposed rulemaking has been determined not to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993). Accordingly, this notice of proposed rulemaking was not subject to review by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site (http://energy.gov/gc/office-general-counsel).

    DOE has reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The proposed rule would amend DOE's Procedural Rules for DOE Nuclear Activities to clarify that DOE may assess civil penalties against certain contractors and subcontractors for violations of the prohibition against retaliating against whistleblowers. While the amended part 820 would expose small entities that are contractors and subcontractors to potential liability for civil penalties, DOE does not expect that a substantial number of these entities will violate a DOE Nuclear Safety Requirement resulting in the imposition of a civil penalty. On this basis, DOE certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).

    C. Paperwork Reduction Act

    This proposed rule would not impose new information or record keeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

    D. National Environmental Policy Act

    DOE has determined that this proposed rule is covered under the Categorical Exclusion in DOE's National Environmental Policy Act regulations at paragraph A.5 of appendix A to subpart D, 10 CFR part 1021, which applies to rulemaking that interprets or amends an existing rule or regulation without changing the environmental effect of the rule or regulation that is being amended. The proposed rule would amend DOE's regulations on civil penalties with respect to certain DOE contractors and subcontractors in order to clarify that civil penalties are available for violations of the prohibition against whistleblower retaliation found in § 708.43 that concern nuclear safety. These proposed amendments are procedural and would not change the environmental effect of part 820. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

    E. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 et seq., requires each Federal agency, to the extent permitted by law, to prepare a detailed assessment of the effects of any Federal mandate in an agency rule that may result in costs to State, local, or tribal governments, or to the private sector, of $100 million or more (adjusted annually for inflation) in any one year. 2 U.S.C. 1532. While the proposed rule may expose DOE contractors and subcontractors to potential liability for civil penalties for retaliating against a whistleblower in connection with a protected activity relating to nuclear safety, DOE does not expect that these civil penalties will approach $100 million in any single year. Therefore, the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply.

    F. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations Act, 1999, 5 U.S.C. 601 note, requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family wellbeing. While this proposed rule would apply to individuals who may be members of a family, the rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

    G. Executive Order 13132

    Executive Order 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

    H. Executive Order 12988

    With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed rule meets the relevant standards of Executive Order 12988.

    I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001, 44 U.S.C. 3516 note, provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this notice of proposed rulemaking under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

    J. Executive Order 13211

    Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA) a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action has been determined to not be a significant regulatory action, and it would not have an adverse effect on the supply, distribution, or use of energy. Thus, this action is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

    K. Approval of the Office of the Secretary

    The Secretary of Energy has approved the publication of this proposed rule.

    List of Subjects in 10 CFR Part 820

    Administrative practice and procedure, Enforcement, Government contracts, Nuclear safety, Penalties, Whistleblowing.

    Issued in Washington, DC, on August 5, 2016. Glenn S. Podonsky, Director, Office of Enterprise Assessments.

    For the reasons stated in the preamble, DOE hereby proposes to amend part 820 of chapter III of title 10 of the Code of Federal Regulations as set forth below:

    PART 820—PROCEDURAL RULES FOR DOE NUCLEAR ACTIVITIES 1. The authority citation for part 820 continues to read as follows: Authority:

    42 U.S.C. 2201; 2282(a); 7191; 28 U.S.C. 2461 note; 50 U.S.C. 2410.

    2. Section 820.2 is amended by revising the definition for “DOE Nuclear Safety Requirements” to read as follows:
    § 820.2 Definitions.

    DOE Nuclear Safety Requirements means the set of rules, regulations, orders, and other requirements relating to nuclear safety adopted by DOE to govern the conduct of persons in connection with any DOE nuclear activity and includes any program, plan, or other provision required to implement these rules, regulations, orders, or other requirements. DOE Nuclear Safety Requirements include the following, to the extent that subject activities concern nuclear safety:

    (i) 10 CFR part 830;

    (ii) 10 CFR part 835;

    (iii) 10 CFR 820.11;

    (iv) Compliance Orders issued pursuant to 10 CFR part 820, subpart C; and

    (v) 10 CFR 708.43.

    3. Section 820.14 is added to subpart A to read as follows:
    § 820.14 Whistleblower protection.

    (a) Covered acts. An act of retaliation (as defined in 10 CFR 708.2) by a DOE contractor, prohibited by 10 CFR 708.43, that results from a DOE contractor employee's involvement in an activity listed in 10 CFR 708.5(a) through (c) may constitute a violation of a DOE Nuclear Safety Requirement if it concerns nuclear safety.

    (b) Commencement of investigation. The Director may not initiate an investigation or take any other action under this part with respect to an alleged act of retaliation by a DOE contractor until 180 days after an alleged violation of 10 CFR 708.43 occurs.

    (c) Administrative or judicial proceedings. The Director shall immediately suspend any ongoing activities under this part and suspend any time limits under this part when an administrative or judicial proceeding commences based on the same alleged act of retaliation. While an administrative or judicial proceeding, including appeals, is pending, the Director may not exercise any authority under this part based on an alleged violation of 10 CFR 708.43, including issuing enforcement letters, subpoenas, orders to compel attendance, Consent Orders, Preliminary Notices of Violation, or Final Notices of Violation. Once such a proceeding commences, the Director shall not conduct any activities under this part until sixty days after a final decision of an agency or court finds that a retaliation occurred.

    (d) Final decision. For the purposes of this section, a final decision of an agency or court includes any of the following:

    (1) A final agency decision pursuant to 10 CFR part 708;

    (2) A final decision or order of the Secretary of Labor pursuant to 29 CFR part 24;

    (3) A decision by the Secretary upon a report by the Inspector General;

    (4) A decision by a federal or state court.

    (e) Evidentiary record. If a final decision of an agency or court finds that retaliation occurred, the Director may obtain and use information collected as part of those proceedings. The Director has discretion to give appropriate weight to information obtained from these proceedings and to initiate and conduct further investigation if the Director deems necessary, particularly with regard to the relationship between the retaliation and nuclear safety.

    (f) Underlying nuclear safety requirements. Notwithstanding the commencement of an administrative or judicial proceeding based on an alleged act of retaliation, this section shall not prevent the Director from taking any action consistent with this part regarding compliance with DOE Nuclear Safety Requirements other than 10 CFR 708.43.

    4. Section 820.20 is amended by revising paragraphs (a) and (b) to read as follows:
    § 820.20 Purpose and scope.

    (a) Purpose. This subpart establishes the procedures for investigating the nature and extent of violations of DOE Nuclear Safety Requirements, for determining whether a violation of DOE Nuclear Safety Requirements has occurred, for imposing an appropriate remedy, and for adjudicating the assessment of a civil penalty.

    (b) Basis for civil penalties. DOE may assess civil penalties against any person subject to the provisions of this part who has entered into an agreement of indemnification under 42 U.S.C. 2210(d) (or any subcontractor or supplier thereto), unless exempted from civil penalties as provided in paragraph (c) of this section, on the basis of a violation of a DOE Nuclear Safety Requirement.

    5. Appendix A to part 820 is amended by revising section XIII to read as follows: Appendix A to Part 820—General Statement of Enforcement Policy XIII. Whistleblower Enforcement Policy

    a. DOE contractors may not retaliate against any employee because the employee has taken any actions listed in 10 CFR 708.5(a) through(c), including disclosing information, participating in proceedings, or refusing to participate in certain activities. DOE contractor employees may seek relief for allegations of retaliation through one of several mechanisms, including filing a complaint with DOE pursuant to 10 CFR part 708 (part 708), the Department of Labor (DOL) under sec. 211 of the Energy Reorganization Act (sec. 211), implemented in 29 CFR part 24, or the DOE Inspector General (IG).

    b. An act of retaliation by a DOE contractor, prohibited by 10 CFR 708.43, that results from a DOE contractor employee's involvement in an activity listed in 10 CFR 708.5(a) through (c), may constitute a violation of a DOE Nuclear Safety Requirement under 10 CFR part 820 if it concerns nuclear safety. To avoid the potential for inconsistency with one of the mechanisms available to an aggrieved DOE contractor employee alleging retaliation referenced in section XIII.a, the Director will not take any action under this part with respect to an alleged violation of 10 CFR 708.43 until a request for relief under one of these mechanisms, if any, has been fully adjudicated, including appeals. With respect to an alleged retaliation, the Director will generally only take action that is consistent with the findings of a final decision of an agency or court. If a final decision finds that retaliation occurred, the Department will consider whether that retaliation constitutes a violation of § 708.43, and if so, whether to take action under part 820. If a final decision finds that no retaliation occurred, the Director will generally not take any action under part 820 with respect to the alleged retaliation absent significant new information that was not available in the prior proceeding.

    c. DOE encourages its contractors to cooperate in resolving whistleblower complaints raised by contractor employees in a prompt and equitable manner. Accordingly, in considering what remedy is appropriate for an act of retaliation concerning nuclear safety, the Director will take into account the extent to which a contractor cooperated in proceedings for remedial relief.

    d. In considering what remedy is appropriate for an act of retaliation concerning nuclear safety, the Director will also consider the egregiousness of the particular case including the level of management involved in the alleged retaliation and the specificity of the acts of retaliation.

    e. When the Director undertakes an investigation of an allegation of DOE contractor retaliation against an employee under part 820, the Director will apprise persons interviewed and interested parties that the investigative activity is being taken pursuant to the nuclear safety procedures of part 820 and not pursuant to the procedures of part 708.

    [FR Doc. 2016-19103 Filed 8-11-16; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2014-1068; Airspace Docket No. 14-AWP-12] Proposed Amendment of Class E Airspace, Kahului, HI AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify Class E airspace designated as an extension to a Class C surface area, and modify Class E airspace extending upward from 700 feet above the surface at Kahului Airport, Kahului, HI. Due to changes to the available instrument flight procedures since the last review and advances in Global Positioning System (GPS) mapping accuracy, the FAA found airspace modifications are necessary to ensure the safety and management of Instrument Flight Rules (IFR) operations at the airport with a minimum amount of airspace restriction.

    DATES:

    Comments must be received on or before September 26, 2016.

    ADDRESSES:

    FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor Rm. W12-140, Washington, DC 20590; Telephone: 1-800-647-5527, or 202-366-9826. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.9Z at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

    FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

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

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2014-1068; Airspace Docket No. 14-AWP-12.” The postcard will be date/time stamped and returned to the commenter.

    Availability of NPRMs

    An electronic copy of this document and other recently published rulemaking documents may be accessed and downloaded through the Internet at http://www.regulations.gov.

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

    Availability and Summary of Documents Proposed for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 to modify the Kahului Airport, Kahului, HI, Class E airspace area designated as an extension to a Class C surface area. The current Class E surface area airspace extension to the north is not required and to the south is longer than required to support IFR operations to/from the airport. The proposed Class E surface airspace includes that area within 3 miles each side of the airport 203° bearing extending from the airport 5-mile radius to 7 miles southwest of the airport.

    This proposal would also modify the Class E airspace area extending upward from 700 feet above the surface by excluding that area extending beyond 12 miles from the coast, and would slightly expand the airspace northeast of the airport to within 3.6 miles each side of the 038° bearing from the airport extending from the 5-mile radius to 11.7 miles northeast of the airport. The airspace area would otherwise remain the same, except as noted above. The expanded Class E airspace area is necessary to contain IFR arrival operations descending below 1,500 feet above the surface, and IFR departure operations below 1,200 feet above the surface.

    This proposal would also remove reference to the Maui VORTAC from the airspace legal descriptions for the Class E3 airspace area designated as an extension to the Class C surface area, and the Class E5 airspace area extending upward from 700 feet above the surface. Changes to the available instrument flight procedures since the last review, advances in GPS mapping accuracy, and a reliance on precise geographic coordinates to define airport and airspace reference points have made the proposed airspace redesign necessary for the safety and management of Instrument Flight Rules (IFR) operations.

    Class E airspace designations are published in paragraphs 6003, and 6005, respectively, of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

    PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for 14 CFR part 71 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015, is amended as follows: Paragraph 6003 Class E Airspace Areas Designated as an Extension to a Class C Surface Area. AWP HI E3 Kahului, HI [Modified] Kahului Airport, HI (Lat. 20°53′55″ N., long. 156°25′50″ W.)

    That airspace extending upward from the surface within 3 miles each side of the Kahului Airport 203° bearing extending from the 5-mile radius of the airport to 7 miles southwest of the airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Pacific Chart Supplement.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AWP HI E5 Kahului, HI [Modified] Kahului Airport, HI (Lat. 20°53′55″ N., long. 156°25′50″ W.)

    That airspace extending upward from 700 feet above the surface within a 5-mile radius of Kahului Airport, and within 3.6 miles each side of the airport 038° bearing extending from the 5-mile radius of the airport to 11.7 miles northeast of the airport, and within 2 miles each side of the airport 065° bearing extending from the 5-mile radius of the airport to 10 miles northeast of the airport, and within 3 miles each side of the airport 203° bearing extending from the 5-mile radius of the airport to 10.3 miles southwest of the airport, and within the area bounded by the airport 318° bearing clockwise to the airport 013° bearing extending from the 5-mile radius of the airport to 8.5-miles northeast of the airport, excluding that airspace beyond 12 miles from the coast.

    Issued in Seattle, Washington, on August 1, 2016. Tracey Johnson, Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2016-19004 Filed 8-11-16; 8:45 am] BILLING CODE 4910-13-P
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 3 RIN 3038-AE49 Chief Compliance Officer Annual Report Requirements for Futures Commission Merchants, Swap Dealers, and Major Swap Participants; Amendments to Filing Dates AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Commodity Futures Trading Commission (“Commission” or “CFTC”) is proposing to amend certain provisions of its regulations concerning Chief Compliance Officers (“Proposal”). The regulation that is the subject of the Proposal addresses chief compliance officers (“CCOs”) of futures commission merchants (“FCMs”), swap dealers (“SDs”), and major swap participants (“MSPs”) (collectively, “Registrants”). The proposed amendments would: Codify existing no-action relief regarding the timing of when a Registrant must furnish its CCO annual report to the Commission; clarify filing requirements for Registrants located in a jurisdiction for which the Commission has issued a comparability determination; and delegate to the Director of the Division of Swap Dealer and Intermediary Oversight (“DSIO”) authority to grant extensions to the CCO annual report filing deadline.

    DATES:

    Comments must be received on or before September 12, 2016.

    ADDRESSES:

    You may submit comments, identified by RIN 3038-AE49, by any of the following methods:

    CFTC Web site: http://comments.cftc.gov. Follow the instructions for submitting comments through the Comments Online process on the Web site.

    Mail: Send to Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    Hand Delivery/Courier: Same as Mail, above.

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Please submit your comments using only one of these methods.

    All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that is exempt from disclosure under the Freedom of Information Act (“FOIA”),1 a petition for confidential treatment of the exempt information may be submitted according to the procedures set forth in § 145.9 of the Commission's regulations.2

    1 5 U.S.C. 552.

    2 17 CFR 145.9. The Commission's regulations are found at 17 CFR Chapter I and can be accessed through the Commission's Web site at www.cftc.gov.

    The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the FOIA.

    FOR FURTHER INFORMATION CONTACT:

    Eileen Flaherty, Director, 202-418-5326, [email protected]; Erik Remmler, Deputy Director, 202-418-7630, [email protected]; Laura Gardy, Associate Director, 202-418-7645, [email protected]; or Pamela M. Geraghty, Special Counsel, 202-418-5634, [email protected], Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    I. Background A. Commission Requirements for Submission of CCO Annual Reports

    Section 4s(k)(3) of the Commodity Exchange Act (“CEA”) requires CCOs for SDs and MSPs, in accordance with rules prescribed by the Commission, to prepare and sign an annual report (“CCO Annual Report”) describing, among other things, the SD's or MSP's compliance with the CEA and CFTC regulations.3 CEA section 4s(k)(3)(B) requires the CCO Annual Report to accompany each appropriate financial report of the SD or MSP required to be furnished to the Commission.4 CEA section 4d(d) requires CCOs of FCMs to “perform such duties and responsibilities” as are established by Commission regulation or rules of a registered futures association.5

    3 7 U.S.C. 6s(k)(3)(A)(i). The CEA can be accessed through the Commission's Web site.

    4 7 U.S.C. 6s(k)(3)(B)(i).

    5 7 U.S.C. 6d(d).

    Regulations 3.3(e) and (f) codify the duty to prepare and furnish to the Commission a CCO Annual Report for all Registrants.6 Regulation 3.3(e) requires the CCO Annual Report to cover the most recently completed fiscal year of the Registrant and specifies certain reporting elements for Registrants in describing their compliance with the CEA and Commission regulations. Regulation 3.3(f)(1) requires the furnishing of the CCO Annual Report to the board or senior officer prior to its submission to the Commission. Regulation 3.3(f)(2) currently requires the CCO Annual Report to be furnished to the Commission electronically not more than 60 days after a Registrant's fiscal year-end.

    6 17 CFR 3.3(e) and (f).

    B. Regulation 3.3(f)(2) Implementation Experience

    Since the adoption of the 60-day filing requirement, DSIO has continuously provided no-action relief for CCO Annual Reports submitted to the Commission within 90 days of a Registrant's fiscal year-end.7 The no-action letter currently in effect, CFTC Staff Letter No. 15-15, responds to a request for relief on behalf of FCM and SD firms, which stated that having an additional 30 days to file the CCO Annual Report allows each Registrant to conduct a more substantive and complete review of its compliance program.8

    7See CFTC Letter No. 13-84, Time-Limited No-Action Relief for Futures Commission Merchants, Swap Dealers, and Major Swap Participants from Compliance with the Timing Requirements of Commission Regulation 3.3(f)(2) Relating to Annual Reports by Chief Compliance Officers (Dec. 30, 2013), available at: http://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/13-84.pdf; CFTC Letter No. 14-154, Time-Limited No-Action Relief for Futures Commission Merchants, Swap Dealers, and Major Swap Participants from Compliance with the Timing Requirements of Commission Regulation 3.3(f)(2) Relating to Annual Reports by Chief Compliance Officers (Dec. 22, 2014), available at: http://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/14-154.pdf; and CFTC Letter No. 15-15, No-Action Relief for Futures Commission Merchants, Swap Dealers, and Major Swap Participants from Compliance with the Timing Requirements of Commission Regulation 3.3(f)(2) Relating to Annual Reports by Chief Compliance Officers (Mar. 27, 2015), available at: http://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/15-15.pdf (“CFTC Staff Letter No. 15-15”).

    8 FIA and ISDA Letter, Request for no-action relief concerning certain requirements of CFTC Rule 3.3 relating to the timing of the Annual Report (Mar. 10, 2015) (on file with the CFTC, available for inspection and copying).

    Recently, the U.S. Securities and Exchange Commission (“SEC”) adopted final rules corresponding to Regulation 3.3, and implementing a provision of Title VII of the Dodd-Frank Act the text of which is effectively identical to CEA section 4s(k)(3)(B).9 The SEC's corresponding rule requires that the equivalent chief compliance officer annual report for security-based swap dealers and major security-based swap participants be submitted to the SEC within 30 days following the deadline for filing each entity's annual financial report.10

    9 Business Conduct Standards for Security-Based Swap Dealers and Major Security-Based Swap Participants, 81 FR 29959 (May 13, 2016).

    10See id. at 30150.

    C. Application of Regulation 3.3(f)(2) to Entities Located in Certain Non-U.S. Jurisdictions

    In December 2013, the Commission issued comparability determinations deeming an SD or MSP located in Canada, the European Union, Hong Kong, Japan, or Switzerland (“Substituted Compliance Registrants”) to be in compliance with Regulation 3.3(e) if it complies with the applicable corresponding regulation in its home jurisdiction.11 Specifically, a Substituted Compliance Registrant may elect to furnish the Commission with the comparable annual reporting information (hereinafter, “Comparable Annual Report”) specified under the standards of its home jurisdiction. However, the Commission did not provide a comparability determination with respect to Regulation 3.3(f) regarding the timing of when the Comparable Annual Report must be furnished to the CFTC.12

    11See Comparability Determination for Canada: Certain Entity-Level Requirements, 78 FR 78839, 78843 (Dec. 27, 2013); Comparability Determination for the European Union: Certain Entity-Level Requirements, 78 FR 78923, 78928 (Dec. 27, 2013); Comparability Determination for Hong Kong: Certain Entity-Level Requirements, 78 FR 78852, 78856 (Dec. 27, 2013); Comparability Determination for Japan: Certain Entity-Level Requirements, 78 FR 78910, 78915 (Dec. 27, 2013); Comparability Determination for Switzerland: Certain Entity-Level Requirements, 78 FR 78899, 78903 (Dec. 27, 2013). It should be noted that while Australia was granted a determination of comparability for some entity-level requirements, it was not granted a determination of comparability with respect to the requirements of Regulation 3.3(e). See Comparability Determination for Australia: Certain Entity-Level Requirements, 78 FR 78864, 78869 (Dec. 27, 2013).

    12See note 11, supra.

    II. The Proposal A Proposed Amendments to Regulation 3.3(f)(2)

    The Commission is proposing to codify the current no-action relief by amending Regulation 3.3(f)(2). The amendments would permit an FCM to furnish its CCO Annual Report to the Commission not more than 30 days after submission of the Form 1-FR-FCM 13 or Financial Operational Combined Uniform Single Report (“FOCUS Report”). The Proposal would also permit an SD or MSP to furnish its CCO Annual Report to the Commission not more than 90 days after its fiscal year-end until such time as the Commission adopts and implements rules establishing the time for filing the annual financial condition report required under CEA section 4s(f). The Commission has proposed, but not yet adopted, a financial condition report requirement comprised of an annual audited financial report for SDs and MSPs.14 Once the Commission adopts and implements a financial condition report rule, like FCMs, an SD or MSP will have up to 30 days after the submission of its annual financial condition report to submit the CCO Annual Report to the Commission.

    13 The proposed amendment also makes a technical correction in Regulation 3.3(f)(2) by correcting the cross reference to the Commission regulation that requires the filing of Form 1-FR-FCM to Regulation 1.10(b)(1)(ii).

    14See Capital Requirements of Swap Dealers and Major Swap Participants, 76 FR 27802, 27838 (proposed May 12, 2011).

    Regulation 3.3(e) requires a broad and detailed assessment of each Registrant's compliance program over the preceding year as well as a discussion of planned changes and remedial steps to be taken for non-compliance matters. The Commission believes that providing up to 30 days after a Registrant's applicable financial reports are due would provide Registrants an appropriate amount of time to complete the in-depth review and analyses required by Regulation 3.3(e). As a policy matter, the Commission recognizes that the periodic self-evaluation that underlies each CCO Annual Report is a critical step in promoting an active and robust compliance culture within firms.

    In codifying the relief provided in CFTC Staff Letter No. 15-15, the Commission is clarifying that the statutory requirement for an SD or MSP's CCO Annual Report to “accompany each appropriate financial report” allows for the CCO Annual Report to be furnished to the Commission not more than 30 days after the submission of a Registrant's annual financial report.15 The Commission recognizes the separate and distinct nature and purposes of the two reports, and believes that allowing Registrants to submit their CCO Annual Reports not more than 30 days after their financial reports are due satisfies the statutory requirement that the CCO Annual Report “accompany” the other financial report. This is also consistent with the SEC's approach in its corresponding rule for delivery of chief compliance officer annual reports by security-based swap dealers and major security-based swap participants.16

    15 The Proposal would remove the obligation of Registrants to file their CCO Annual Reports “simultaneously” with the applicable FCM financial report or financial condition report.

    16 In the adopting release, the SEC addresses the statutory language that links the filing of the CCO Annual Report with the filing of appropriate financial reports by stating, “The Commission is interpreting `accompany' in Section 15F(k)(3)(B)(i) to mean follow within 30 days.” 81 FR 29959, 30059, n.1238.

    B. Registrants Located in Substituted Compliance Jurisdictions

    The Commission is also proposing to amend Regulation 3.3(f) to address the timing of the filing requirement for Comparable Annual Reports. If the requirements of the Substituted Compliance Registrant's home jurisdiction identify a specific date by which the Comparable Annual Reports must be completed, then the Commission is proposing that Comparable Annual Reports may be furnished to the Commission electronically up to 15 days after the date on which the Comparable Annual Report must be completed.17 The additional 15 days would allow time for translation of the report text into English. If the Substituted Compliance Registrant's home jurisdiction does not establish a specifically identifiable completion date, then the Substituted Compliance Registrant must comply with the standard time frames provided in Regulation 3.3(f), as amended. A specifically identifiable completion date would be a date that can be clearly identified such as a specific calendar date or a set number of days after the Substituted Compliance Registrant's fiscal year-end. A home jurisdiction requirement to complete the Comparable Annual Report only if some event occurs or upon request, or which does not specify a deadline, is not considered comparable to the Commission's annual delivery requirement.

    17 While each of the jurisdictions that have been granted a comparability determination with respect to Regulation 3.3(e) requires Substituted Compliance Registrants to produce and complete comparable annual reporting information, there is variation among the foreign jurisdictions as to whether and/or when a Comparable Annual Report must be furnished to the home regulator. Therefore, the Commission is using the date on which the Comparable Annual Report must be completed as the benchmark for determining when the Comparable Annual Report must be furnished to the Commission.

    C. Proposed Amendments Regarding a Delegation From the Commission to the Division

    Pursuant to Regulation 3.3(f)(5), Registrants may request from the Commission an extension of time to furnish their CCO Annual Reports if the failure to timely furnish the report could not be avoided absent “unreasonable effort or expense.” The rule provides the Commission with discretion in granting such extensions. To expedite review and consideration of requests for extensions, the Commission is proposing to delegate to the Director of DSIO, or such other employee(s) that the Director may designate, the authority to grant extensions of time subject to the same standard set forth in Regulation 3.3(f)(5). The Commission notes that the exercise of such delegated authority would need to be consistent with Regulation 3.3(f)(5) and therefore would be limited to unique facts and circumstances that clearly demonstrate that the inability to timely furnish the report to the Commission could not have been eliminated absent unreasonable effort or expense. The Commission believes that such delegation is prudent given that the decision to provide an extension requires consideration of specific facts and circumstances and often this consideration needs to occur within a relatively short period of time. As is the case with existing delegations to staff, the Commission would continue to reserve the right to perform the functions described in Regulation 3.3(f)(5) itself at any time.18

    18 In addition, notwithstanding any such delegation, in any case in which a Commission employee delegated authority under this section believes it is appropriate, the employee may submit the question to the Commission for its consideration.

    The Commission requests comment on the appropriateness of the proposed delegation and whether additional procedural detail is necessary.

    D. Request for Comment

    The Commission seeks comments regarding the following matters:

    • Given the current filing requirements for the Form 1-FR-FCM and FOCUS Reports, and the anticipated filing requirements for the financial condition report, is it appropriate to permit FCMs, SDs, and MSPs an additional 30-days to furnish their CCO Annual Report to the Commission? Are there any practical or policy reasons for not permitting the additional 30 days?

    • Does codifying the relief granted in CFTC Staff Letter No. 15-15 sufficiently address Registrants' concerns?

    • Should the Commission provide any further clarification of the requirements of Regulation 3.3(f) as they apply to entities located in jurisdictions for which comparability determinations have been issued?

    III. Related Matters A. Regulatory Flexibility Act

    The Regulatory Flexibility Act 19 (“RFA”) requires that agencies consider whether the rules they propose will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis reflecting the impact. Section 3.3(f)(2), as proposed, amends the filing deadline for CCO Annual Reports of FCMs, SDs, and MSPs and clarifies the filing deadline for Comparable Annual Reports. The proposed amendments would affect FCMs, SDs, and MSPs that are required to be registered with the Commission. The Commission has previously established certain definitions of “small entities” to be used in evaluating the impact of its regulations on small entities in accordance with the RFA, and has previously determined that FCMs, SDs, and MSPs are not small entities for purposes of the RFA.20 Therefore, the Commission believes that the amendments to Regulation 3.3 would not have a significant economic impact on a substantial number of small entities. Accordingly, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the proposed amendments will not have a significant economic impact on a substantial number of small entities.

    19 5 U.S.C. 601 et seq.

    20See Policy Statement and Establishment of Definitions of “Small Entities” for Purposes of the Regulatory Flexibility Act, 47 FR 18618, 18619 (Apr. 30, 1982) (FCMs); Further Definition of “Swap Dealer,” “Security-Based Swap Dealer,” “Major Swap Participant,” “Major Security-Based Swap Participant” and “Eligible Contract Participant,” 77 FR 30596, 30701 (May 23, 2012) (SDs and MSPs).

    B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (“PRA”) 21 provides that a federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number issued by the Office of Management and Budget (“OMB”). The collection of information related to this proposed rule is OMB control number 3038-0080—Annual Report for Chief Compliance Officer of Registrants. The Commission believes that this proposed rule will not impose any new information collection requirements that require approval of OMB under the PRA. As a general matter, the proposed rule would allow Registrants up to 90 days after the end of their fiscal years, and certain Substituted Compliance Registrants with up to 15 days after the date on which the Comparable Annual Report must be completed under the requirements of their home jurisdiction, to file the CCO Annual Report and Comparable Annual Reports, respectively. As such, this proposed rule does not, by itself, impose any new burden or any new information collection requirements in addition to those that already exist in connection with the preparation and delivery of the CCO Annual Report pursuant to part 3 of the Commission's regulations.

    21 44 U.S.C. 3501 et seq.

    C. Cost-Benefit Considerations 1. Background

    As discussed above, the Commission is proposing amendments to the filing requirements for CCO Annual Reports in Regulation 3.3 that would: (1) Increase the amount of time registrants have to file their CCO Annual Reports with the Commission; and (2) clarify the filing requirements for Comparable Annual Reports. The baseline for this cost and benefit consideration is existing Regulation 3.3. Although CFTC Staff Letter No. 15-15, as discussed above, currently offers no-action relief that is substantially similar to the relief that the proposed amendments would grant Registrants, as a no-action letter, it only represents the position of the issuing Division or Office and cannot bind the Commission or other Commission staff.22 Consequently, the Commission believes that CFTC Staff Letter No. 15-15 should not set or affect the baseline against which the Commission considers the costs and benefits of the proposal.

    22See 17 CFR 140.99(a)(2). See also CFTC Staff Letter No. 15-15 at 4.

    2. Costs

    The Commission received no comments during the rulemaking process for Regulation 3.3 regarding costs associated with the timing of the filing deadline for the CCO Annual Report. The proposed amendment does not change the report contents or require any additional actions to be taken by Registrants. The additional 30 days (or up to 15 days after the date on which a Comparable Annual Report must be completed under applicable home jurisdiction standards that allow more time) provided by the proposal lengthens the time before senior management or the board of the Registrants and the Commission may receive the CCO Annual Reports. The additional time to furnish the reports should not materially impact regulatory oversight given that the purpose of the reports is to provide a status update for the Registrant's compliance activities over the course of the preceding fiscal year and planned changes for the coming year. The reports generally do not serve to address crisis situations for which immediacy is critical. Therefore, the additional time allowed will not materially impact the usefulness of the information in the reports.23 The Commission has no other information available to it that would indicate that changing the filing deadline would measurably change the cost to prepare the CCO Annual Reports. Accordingly, the Commission preliminarily believes that the proposal would not impose any additional costs on any other market participants, the markets themselves, or the general public. The Commission invites comment regarding the nature of, and the extent to which, costs associated with the CCO Annual Reports could change as a result of the adoption of the proposal and, to the extent they can be quantified, monetary and other numerical estimates thereof.

    23 The CCO Annual Report must contain a description of material non-compliance events that occurred over the review period. However, reporting on those events in the CCO Annual Report provides transparency regarding the effectiveness of the implementation of the compliance program over the preceding year for management and the CFTC.

    3. Benefits

    The Commission believes that the proposal would provide relief for Registrants from time pressures in preparing and filing their CCO Annual Reports. The additional time provided will allow Registrants to more carefully complete their internal processes used to develop the broad variety of information needed for the reports resulting in more accurate and complete reports. The Commission invites comment regarding the nature and extent of these and any other benefits that could result from adoption of the proposal—including benefits to other market participants, the market itself, or the general public—and, to the extent they can be quantified, monetary and other numerical estimates thereof.

    4. Section 15(a) Factors

    Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.24 Section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The Commission considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors.

    24 7 U.S.C. 19(a).

    a. Protection of Market Participants and the Public

    The Commission recognizes that there are trade-offs between reducing regulatory burdens and ensuring that the Commission has sufficient, timely information to fulfill its regulatory mission. The proposed amendments to Regulation 3.3 are intended to reduce some of the regulatory burdens on Registrants. While the amendment will delay the time by which the Commission will receive the CCO Annual Reports, the delay is relatively short given that the information in the reports looks back over the entire year-long reporting period and identifies planned improvements for the coming year. Accordingly, the Commission preliminarily believes that the short delay will not affect the protection of market participants and the public.

    b. Efficiency, Competitiveness, and Financial Integrity of Markets

    The Commission believes that the proposed amendments to Regulation 3.3 could improve allocational efficiency for participants in the market by reducing the burden of preparing the CCO Annual Report in a shorter time-frame, thereby allowing them to allocate compliance resources more efficiently over the report preparation period. The Commission preliminarily believes that the proposed amendments to Regulation 3.3 will not have any market efficiency, competitiveness, or market integrity impacts because the reports address internal compliance programs of each Registrant and are not publicly available.

    c. Price Discovery

    The Commission preliminarily believes that the proposed amendments to Regulation 3.3 would not impact on price discovery. Given the fact that the proposed amendments affect only the timing of when the CCO Annual Reports are filed with the Commission and the CCO Annual Reports generally would not contain trade information or be available to the public, the proposed amendments would not affect price discovery.

    d. Sound Risk Management Practices

    The Commission preliminarily believes that the proposed amendments would not have a meaningful effect on the risk management practices of Registrants. While the CCO Annual Reports may discuss certain risk management aspects related to the compliance programs of the Registrants, the proposal would only amend the timing of delivery of the reports to the Commission, not the contents of the reports. As described above under subsection 4.a, the short delay in delivery of the reports provided for by the proposal is not significant given the nature of the information included in the report and allowing additional time to prepare the CCO Annual Reports might allow the Registrants to prepare better reports that more effectively address the information contained therein.

    e. Other Public Interest Considerations

    The Commission has not identified any other public interest considerations for this rulemaking.

    5. Request for Comment

    The Commission invites comment on all aspects of its preliminary consideration of the costs and benefits associated with the proposal and the five factors the Commission is required to consider under CEA section 15(a). In addressing these areas and any other aspect of the Commission's preliminary cost-benefit considerations, the Commission encourages commenters to submit any data or other information they may have quantifying and/or qualifying the costs and benefits of the proposal.

    List of Subjects in 17 CFR Part 3

    Administrative practice and procedure, Brokers, Commodity futures, Major swap participants, Reporting and recordkeeping requirements, Swap dealers.

    For the reasons stated in the preamble, the Commodity Futures Trading Commission proposes to amend 17 CFR part 3 as follows:

    PART 3—REGISTRATION 1. The authority citation for part 3 is revised to read as follows: Authority:

    5 U.S.C. 552, 552b; 7 U.S.C. 1a, 2, 6a, 6b, 6b-1, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 6s, 8, 9, 9a, 12, 12a, 13b, 13c, 16a, 18, 19, 21, 23, as amended by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (Jul. 21, 2010).

    2. Amend § 3.3 as follows: a. Revise paragraph (f)(2); and b. Add paragraph (h).

    The revision and addition to read as follows:

    § 3.3 Chief compliance officer.

    (f) * * *

    (2)(i) Except as provided in paragraph (f)(2)(ii) of this section, the annual report shall be furnished electronically to the Commission not more than 30 days after the submission of Form 1-FR-FCM, as required under § 1.10(b)(1)(ii) of this chapter, the Financial and Operational Combined Uniform Single Report, as required under § 1.10(h) of this chapter, or the financial condition report, as required under section 4s(f) of the Act, as applicable. Until such time as the Commission adopts and implements a regulation establishing the time for filing the financial condition report, a swap dealer or major swap participant shall furnish the annual report electronically to the Commission not more than 90 days after the end of its fiscal year.

    (ii) The annual report of a swap dealer or major swap participant that is eligible to comply with a substituted compliance regime for paragraph (e) of this section pursuant to a comparability determination of the Commission may be furnished to the Commission electronically up to 15 days after the date on which the comparable annual report must be completed under the requirements of the applicable substituted compliance regime. If the substituted compliance regime does not specify a date by which the comparable annual report must be completed, then the annual report shall be furnished to the Commission by the date specified in paragraph (f)(2)(i) of this section.

    (h) Delegation of Authority. The Commission hereby delegates to the Director of the Division of Swap Dealer and Intermediary Oversight, or such other employee or employees as the Director may designate from time to time, the authority to grant extensions of time, as set forth in paragraph (f)(5) of this section. Notwithstanding such delegation, in any case in which a Commission employee delegated authority under this paragraph believes it appropriate, he or she may submit to the Commission for its consideration the question of whether an extension of time should be granted. The delegation of authority in this paragraph shall not prohibit the Commission, at its election, from exercising the authority set forth in paragraph (f)(5) of this section.

    Issued in Washington, DC, on August 8, 2016, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. Note:

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

    Appendix to Chief Compliance Officer Annual Report Requirements for Futures Commission Merchants, Swap Dealers, and Major Swap Participants; Amendments to Filing Dates—Commission Voting Summary

    On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.

    [FR Doc. 2016-19231 Filed 8-11-16; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF THE INTERIOR Bureau of Safety and Environmental Enforcement 30 CFR Part 250 [Docket ID: BSEE-2016-0004; 16XE1700DX EEEE500000 EX1SF0000.DAQ000] RIN 1014-AA32 Oil and Gas and Sulfur Operations in the Outer Continental Shelf—Decommissioning Costs for Pipelines AGENCY:

    Bureau of Safety and Environmental Enforcement, Department of the Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Bureau of Safety and Environmental Enforcement (BSEE) proposes to amend the regulations requiring lessees and owners of operating rights to submit summaries of actual decommissioning expenditures incurred for certain decommissioning activities related to oil and gas and sulfur operations on the Outer Continental Shelf (OCS). The proposed rule would expand the scope of the current regulations to require lessees, owners of operating rights, and right-of-way (ROW) holders to submit summaries of actual expenditures incurred for pipeline decommissioning activities.

    DATES:

    Submit comments by September 12, 2016. BSEE may not fully consider comments received after this date. You may submit comments to the Office of Management and Budget (OMB) on the information collection burden in this proposed rule by September 12, 2016.

    ADDRESSES:

    You may submit comments on this proposed rulemaking by any of the following methods. Please use the Regulation Identifier Number (RIN) 1014-AA32 as an identifier in your message. BSEE may post all submitted comments on a public Web site.

    1. Submit comments electronically via the Federal eRulemaking Portal: http://www.regulations.gov. In the entry titled “Enter Keyword or ID,” enter BSEE-2016-0004, then click “Search.” Follow the instructions to submit public comments and view supporting and related materials available for this proposed rulemaking.

    2. Mail or hand-carry comments to the Department of the Interior (DOI); Bureau of Safety and Environmental Enforcement; Attention: Regulations and Standards Branch; 45600 Woodland Road, Sterling, VA 20166, VAE-ORP. Please reference “Decommissioning Costs for Pipelines, 1014-AA32” in your comments and include your name and return address.

    3. Comments on the information collection contained in this proposed rule should be submitted separately from those on the substance of the proposed rule. Send comments on the information collection burden in this proposed rule to: OMB, Interior Desk Officer 1014-AA32, 202-395-5806 (fax); or email: [email protected] Please send a copy of your comments to BSEE using one of the methods previously described.

    FOR FURTHER INFORMATION CONTACT:

    Betty Cox, Regulatory Analyst, Regulations and Standards Branch, [email protected], (703) 787-1616.

    SUPPLEMENTARY INFORMATION:

    BSEE's Functions and Authority

    BSEE promotes safety, protects the environment, and conserves natural resources through vigorous regulatory oversight and enforcement of certain activities on the OCS. BSEE derives its authority primarily from the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. 1331-1356a. Congress enacted OCSLA in 1953, codifying Federal control over the OCS and authorizing the Secretary of the Interior (Secretary) to regulate oil and natural gas exploration, development, and production operations on the OCS. The Secretary has authorized BSEE to perform certain of these functions, including overseeing decommissioning. (See 30 CFR 250.101; 30 CFR part 250, subpart Q.) To carry out its responsibilities, BSEE regulates exploration, development, and production of oil and natural gas to enhance safety and environmental protection in a way that reflects advancements in technology and new information. BSEE also conducts onsite inspections to ensure compliance with regulations, lease terms, and approved plans or permits. Detailed information concerning BSEE's regulations and guidance for the offshore industry may be found on BSEE's Web site at: www.bsee.gov/Regulations-and-Guidance/index.

    Public Participation and Availability of Comments

    BSEE encourages you to participate in this proposed rulemaking by submitting written comments, as discussed in the ADDRESSES and DATES sections of this proposed rule. This proposed rule provides 30 days for public comment for the following reasons. The need for submission of actual decommissioning cost information for plugging wells, removing platforms, and clearing of sites was explained in a proposed rule published on May 27, 2009 (74 FR 25177) and a final rule published on December 4, 2015 (80 FR75806). That final rule addressed and responded to all of the relevant comments submitted on the proposed rule. This proposed rule would extend the existing requirements for submitting summaries of actual decommissioning costs (30 CFR 250.1704(i) and (j)) to pipelines. The reasons for this proposed rule, as discussed in the Background and Purpose of Proposed Amendment sections of this notice are effectively the same for pipelines as the reasons discussed in the December 4, 2016 rule for the reporting of decommissioning costs for other facilities. BSEE does not expect that public comments on this proposed rule are likely to raise any significant issues that were not raised in the earlier decommissioning cost reporting rulemaking. Moreover, the affected stakeholders in the oil and gas industry are already familiar with the terms and requirements of the existing decommissioning cost reporting rule, which would apply without change to pipelines under this proposed rule. Accordingly, BSEE has determined that 30 days provides a reasonable and adequate opportunity for the public to comment on this proposed rule.

    Before including your address, phone number, email address, or other personal identifying information in your comment on this proposed rule, however, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

    Background

    Among its responsibilities, BSEE regulates certain types of oil and gas pipelines used on the OCS. (See 30 CFR 250.1000-250.1019). In general, BSEE regulates pipelines or pipeline segments on the OCS that are operated by oil and gas producers, as opposed to pipelines operated by transporters. Specifically, BSEE regulates producer-operated pipelines that: (1) Extend upstream (generally seaward) from each point on the OCS at which operating responsibility transfers from a producing operator to a transporting operator; (2) extend upstream (generally seaward) from the last valve (including associated safety equipment) on the last OCS production facility and that do not connect to a transporter-operated pipeline on the OCS before crossing into State waters; or (3) connect production facilities on the OCS. (See § 250.1001.) BSEE also regulates transporter-operated pipelines that DOI and the U.S. Department of Transportation (DOT) have agreed are to be regulated as DOI pipelines as well as all other OCS pipelines not subject to DOT regulation.1 (See id.)

    1 BSEE-regulated pipelines are also referred to as “DOI pipelines.” See 30 CFR 250.1001. Pipelines subject to DOT regulations are commonly referred to as “DOT pipelines,” see id., and are regulated by the DOT Pipeline and Hazardous Materials Safety Administration (PHMSA).

    Pipelines regulated by BSEE generally fall within two categories: (1) “lease term” pipelines (i.e., pipelines owned and operated by a lessee or operator and located entirely within the boundaries of a single lease, unitized leases, or the contiguous leases of that lessee or operator); or (2) ROW pipelines (i.e., OCS pipelines owned and operated by an entity other than the lessee or operator of the lease(s), unit, or contiguous leases in which the pipeline is contained, as well as pipelines that cross unleased areas).2 Among other things, BSEE approves the installation, modification, and decommissioning of all lease term and ROW pipelines, and the modification or relinquishment of all pipeline ROW grants on the OCS. BSEE's regulations for decommissioning pipelines are found at 30 CFR 250.1700 through 250.1704 and 250.1750 through 250.1754.

    2 ROW pipelines also include all DOI pipelines not defined as lease term pipelines. See 30 CFR 250.1001 for definitions of lease term pipelines and ROW pipelines.

    As of August 1, 2016, BSEE regulates 4,842 active pipeline segments 3 (totaling approximately 20,837 miles) and 1,553 out-of-service pipeline segments (totaling approximately 2,249 miles). In addition, BSEE has regulatory authority over 8,832 decommissioned pipeline segments, as well as 825 pipeline segments that have been approved for decommissioning.

    3 BSEE assigns pipeline segment numbers as specific pipeline identifiers.

    BSEE's requirements for decommissioning a pipeline are found at §§ 250.1750-250.1754. Pursuant to § 250.1751, requirements for decommissioning a pipeline in place include: pigging (to remove any residual hydrocarbons from the pipeline), unless the Regional Supervisor determines that pigging is not practical; flushing and filling the pipeline with seawater; cutting and plugging the ends of the pipeline; and burying the ends at least 3 feet below the seafloor or covering the ends with protective concrete mats, if required by the Regional Supervisor. Section 250.1751(g) also requires removal of all valves and other fittings that could unduly interfere with other uses of the OCS.

    In addition, under § 250.1754, BSEE has the authority to require that lessees, owners of operating rights, and ROW holders remove pipelines previously decommissioned in place if and when the Regional Supervisor determines that the pipeline is an obstruction.

    BSEE's requirements for decommissioning by removing all or part of a pipeline are found at § 250.1752 and include, in part, pigging and flushing the pipeline (unless the Regional Supervisor determines that pigging is not practical) before removal.

    Purpose of Proposed Amendment

    In 2009, BSEE's predecessor agency, the Minerals Management Service (MMS), proposed new reporting requirements related to lease term pipelines when MMS approves a lease assignment. (See 74 FR 25177 (May 27, 2009).) MMS also proposed to require the submission of information on expenditures for decommissioning of wells, platforms and other facilities and for site clearance. (See id.)

    In a final rule published on December 4, 2015, BSEE amended its regulations to require lessees and owners of operating rights to submit summaries of actual decommissioning expenditures for certain required decommissioning activities within 120 days after completion of each such activity. (See 80 FR 75806.) Specifically, the final rule required reporting of summaries of expenditures for plugging wells, removing platforms and other facilities, and clearing obstructions from sites. In addition, the final rule authorized BSEE to require additional supporting information regarding specific decommissioning costs on a case-by-case basis. The final rule was codified at 30 CFR 250.1704(h) and (i).

    Effective July 28, 2016, BSEE's Well Control final rule revised paragraph (g) in § 250.1704, added a new paragraph (h), and redesignated existing paragraphs (h) and (i) as paragraphs (i) and (j), respectively. (See 81 FR 25888 (April 29, 2016).) The Well Control rule did not, however, affect the substance of those decommissioning cost reporting provisions.

    On April 27, 2016, BSEE issued a Notice to Lessees and Operators (NTL), No. 2016-N03, Reporting Requirements for Decommissioning Expenditures on the OCS, providing guidance and clarification regarding the submission of the decommissioning cost summaries required by § 250.1704(i).

    BSEE did not include reporting of expenditures for pipeline decommissioning in the December 2015 final rule because the 2009 proposed rule did not expressly refer to pipeline decommissioning expenditures. BSEE has determined, however, that accurate information about expenditures incurred for pipeline decommissioning activities is needed to better estimate future decommissioning costs for those activities.

    As BSEE explained in the December 2015 final rule, with regard to expenditures for other types of decommissioning activities under § 250.1704(i), summaries of actual decommissioning expenditures will help BSEE better estimate future decommissioning costs. (See 80 FR 75806.) For the same reason, summaries of actual pipeline decommissioning expenditures will help BSEE better estimate future decommissioning costs. In addition, BSEE will share its decommissioning cost estimates with the Bureau of Ocean Energy Management (BOEM) for use in setting necessary financial assurance levels to (1) minimize the possibility that the government will incur future financial liability for decommissioning pipelines where the responsible party has failed to carry out the required decommissioning; and (2) enhance the accuracy of financial assurance requirements necessary to cover future decommissioning liabilities.

    Accordingly, BSEE proposes to expand the scope of § 250.1704(i) to require that lessees, owners of operating rights, and pipeline ROW holders submit certified summaries of actual expenditures for decommissioning of pipelines.4 This proposal would also authorize Regional Supervisors, under § 250.1704(j), to require the submission of additional information, on a case-by-case basis, to support summaries of pipeline decommissioning expenditures submitted under § 250.1704(i). This proposal rule would not otherwise revise the existing decommissioning cost reporting provisions.

    4 BSEE recognizes that a designated operator may submit the required summary of decommissioning costs on behalf of a lessee.

    Procedural Matters Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O.) 12866 provides that OMB, Office of Information and Regulatory Affairs (OIRA), will review all significant rules. BSEE has determined that this proposed rule would not be a significant regulatory action as defined by section 3(f) of E.O. 12866 because:

    —It is not expected to have an annual effect on the economy of $100 million or more; —It would not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; —It would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; —It would not materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights or obligations of their recipients; and —It would not raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.

    Accordingly, BSEE has not prepared an economic analysis beyond the analysis required under the Paperwork Reduction Act, and OIRA has not reviewed this proposed rule.

    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. E.O. 13563 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. It also emphasizes 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. BSEE developed this proposed rule in a manner consistent with these requirements.

    Regulatory Flexibility Act (RFA)

    BSEE certifies that this proposed rule would not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq.). This proposed rule would potentially affect offshore lessees, owners of operating rights and other operators, and pipeline ROW holders who perform decommissioning activities under 30 CFR part 250, subpart Q. In the December 2015 final rule, using the Small Business Administration's North American Industry Classification System (NAICS) codes 211111 (Crude Petroleum and Natural Gas Extraction) and 213111 (Drilling Oil and Gas Wells), we estimated that a substantial number, about 90 of the 130 active companies potentially affected by that rule (i.e., lessees and operators), would be considered small entities. (See 80 FR 75808.) However, we concluded that the final rule would not have a significant economic effect on those small entities because the cost of requiring decommissioning cost summaries is not significant. (See id.)

    This proposed rule could affect some additional companies (i.e., ROW holders that were not covered by the December 2015 final rule as lessees or owners of operating rights) that would be required to submit pipeline decommissioning cost summaries. Using more recent information than was available to us when we published the December 2015 final rule, we estimate that the proposal to require reporting of pipeline decommissioning costs could affect approximately 111 lessees, owners of operating rights, and ROW holders that currently own or control DOI pipelines, including many companies already covered by the December 2015 final rule. Of these 111 potentially affected entities, we estimate that a substantial number (66 companies) are small entities. Therefore, this proposed rule would affect a substantial number of small entities.

    However, the proposed rule would not impose significant economic impacts on the potentially affected small entities. The proposed requirement to submit pipeline decommissioning cost summaries would not result in significant additional costs or burdens for any affected entity. As indicated in the Paperwork Reduction Act section of this document, the annual burden of the proposed rule is estimated to be only 500 hours in total for all affected entities (whether or not small) to prepare and submit their pipeline decommissioning summaries. Accordingly, since the changes reflected in the proposed rule would not have a significant economic effect on a substantial number of small entities, the RFA does not require BSEE to prepare a regulatory flexibility analysis for this proposed rule.

    Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This proposed rule is not a major rule under the SBREFA (5 U.S.C. 804(2)). This rule would not:

    —Have an annual effect on the economy of $100 million or more; —Cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or —Have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

    Your comments are important. The Small Business and Agriculture Regulatory Enforcement Ombudsman and 10 Regional Fairness Boards were established to receive comments from small businesses about Federal agency enforcement actions. The Ombudsman will annually evaluate the enforcement activities and rate each agency's responsiveness to small business. If you wish to comment on the actions of BSEE, call 1-888-734-3247. You may comment to the Small Business Administration (SBA) without fear of retaliation. Allegations of discrimination/retaliation filed with the SBA will be investigated for appropriate action.

    Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose an unfunded mandate on State, Tribal, or local governments or the private sector of more than $100 million per year. The proposed rule also would not have a significant or unique effect on State, Tribal, or local governments or the private sector. Thus, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

    Takings Implication Assessment (E.O. 12630)

    Under the criteria in E.O. 12630, this proposed rule would not effect a taking or otherwise have takings implications. This proposed rule is not a governmental action capable of interference with constitutionally protected property rights. Therefore, a Takings Implication Assessment is not required.

    Federalism (E.O. 13132)

    Under the criteria in E.O. 13132, this proposed rule would not have federalism implications. This proposed rule would not have a substantial direct effect on the States or the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this proposed rule would not affect that role. Accordingly, a federalism summary impact statement is not required.

    Civil Justice Reform (E.O. 12988)

    This proposed rule complies with the requirements of E.O. 12988, Civil Justice Reform (February 7, 1996). Specifically, this rule:

    —Meets the criteria of section 3(a) of E.O. 12988 requiring that all regulations be reviewed to eliminate drafting errors and ambiguity and be written to minimize litigation; and —Meets the criteria of section 3(b)(2) of E.O. 12988 requiring that all regulations be written in clear language and contain clear legal standards. Consultation With Indian Tribal Governments (E.O. 13175)

    We have evaluated this proposed rule under the Department's tribal consultation policy and under the criteria in E.O. 13175 and have determined that it would have no substantial direct effects on federally recognized Indian tribes. As a result, consultation under the Department's tribal consultation policy is not required.

    Paperwork Reduction Act (PRA)

    This proposed rule contains an information collection (IC) that will be submitted to the OMB for review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). As part of our continuing effort to reduce paperwork and respondent burdens, BSEE invites the public and other Federal agencies to comment on any aspect of the reporting and recordkeeping burden. If you wish to comment on the IC aspects of this proposed rule, you may send your comments directly to OMB and send a copy of your comments to the Regulations and Standards Branch (for more information, see the DATES and ADDRESSES section of this document). Please refer to Decommissioning Costs for Pipelines, 1014-AA32, in your comments. BSEE specifically requests comments concerning the need for the information, its practical utility, the accuracy of the agency's burden estimate, and ways to minimize the burden. You may obtain a copy of the supporting statement for the new collection of information by contacting the Bureau's Information Collection Clearance Officer at (703) 787-1607. To see a copy of the entire IC request submitted to OMB, go to http://www.reginfo.gov (select Information Collection Review, Currently Under Review).

    The title of the collection of information for this proposed rule is 30 CFR part 250, subpart Q, Decommissioning Costs for Pipelines. As with the other decommissioning expenditure information currently required to be submitted to BSEE under § 250.1704(i), summaries of actual pipeline decommissioning expenditures will help BSEE to better estimate future decommissioning costs for OCS pipelines. BOEM will then use BSEE's future pipeline decommissioning cost estimates to set necessary financial assurance levels to minimize or eliminate the possibility that the government will incur liability for future pipeline decommissioning.

    Potential respondents comprise Federal OCS oil, gas, and sulfur lessees, owners of operating rights, and pipeline ROW holders. Responses to this collection are mandatory. The frequency of response is on occasion. The IC does not include questions of a sensitive nature. BSEE will protect confidential commercial and proprietary information according to FOIA (5 U.S.C. 552) and its implementing regulations (43 CFR part 2), and 30 CFR 250.197 (Data and information to be made available to the public or for limited inspection), and 30 CFR part 252 (OCS Oil and Gas Information Program).

    Once the requirements of this proposed rulemaking have been codified, BSEE will consolidate these additional burden hours into the primary collection for 30 CFR part 250, subpart Q, under OMB Control Number 1014-0010 (expiration 10/31/16; 29,437 burden hours and $2,152,644 non-hour cost burdens). There are no non-hour cost burdens associated with this proposed rulemaking. The following table is a breakdown of the burden estimate:

    Burden Table Citation 30 CFR 250 Reporting and recordkeeping requirements Hour burden Average number of
  • annual responses
  • Annual burden hours
    250.1704(i) Submit to the Regional Supervisor a complete summary of expenditures incurred within 120 days after completion of each decommissioning activity (including permanently plugging any well, removal of any platform or facility, decommissioning of pipelines, etc.) 1 500 pipeline summaries 500 250.1704(i) Submit certified statement attesting to accuracy of the summary for expenditures incurred Exempt from the PRA under 5 CFR 1320.3(i)(1). 0 Total 500 responses 500

    An agency may not conduct or sponsor and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act of 1969 (NEPA)

    This proposed rule meets the criteria set forth in 516 Departmental Manual (DM) 15.4C(1) for a categorical exclusion because it involves modification of existing regulations, the impacts of which would be limited to administrative or economic effects with minimal environmental impacts.

    We have also analyzed this proposed rule to determine if it meets any of the extraordinary circumstances set forth in 43 CFR 46.215 that would require an environmental assessment or an environmental impact statement for actions otherwise eligible for a categorical exclusion. We have concluded that this proposed rule would not meet any of the criteria for extraordinary circumstances.

    Data Quality Act

    In developing this proposed rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (44 U.S.C. 3516 et seq.,

    Public Law 106-554, app. C § 515, 114 Stat. 2763, 2763A-153-154).

    Effects on the Nation's Energy Supply (E.O. 13211)

    This proposed rule would not be a significant energy action under E.O. 13211 because:

    —It is not a significant regulatory action under E.O. 12866; —It is not likely to have a significant adverse effect on the supply, distribution or use of energy; and —It has not been designated as a significant energy action by the Administrator of OIRA. Clarity of This Regulation (E.O. 12866 and E.O. 12988)

    We are required by E.O. 12866 and E.O. 12988, and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    —Be logically organized; —Use the active voice to address readers directly; —Use clear language rather than jargon; —Be divided into short sections and sentences; and —Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help us meet these requirements, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, and the sections where you feel lists or tables would be useful.

    List of Subjects in 30 CFR Part 250

    Administrative practice and procedure, Continental Shelf, Environmental impact statements, Environmental protection, Government contracts, Investigations, Oil and gas exploration, Penalties, Reporting and recordkeeping requirements, Sulfur.

    Janice M. Schneider, Assistant Secretary, Land and Minerals Management.

    For the reasons stated in the preamble, BSEE proposes to amend 30 CFR part 250 as follows:

    PART 250—OIL AND GAS AND SULFUR OPERATIONS IN THE OUTER CONTINENTAL SHELF 1. The authority citation for part 250 continues to read as follows: Authority:

    30 U.S.C. 1751, 31 U.S.C. 9701, 33 U.S.C. 1321(j)(1)(C), 43 U.S.C. 1334.

    2. Amend § 250.1704 by revising paragraphs (i) and (j) in the table to read as follows:
    § 250.1704 What decommissioning applications and reports must I submit and when must I submit them? Decommissioning applications and reports When to submit Instructions *         *         *         *         *         *         * (i) A certified summary of expenditures for permanently plugging any well, removal of any platform or other facility, clearance of any site after wells have been plugged or platforms or facilities removed, and decommissioning of pipelines Within 120 days after completion of each decommissioning activity specified in this paragraph Submit to the Regional Supervisor a complete summary of expenditures actually incurred for each decommissioning activity (including, but not limited to, the use of rigs, vessels, equipment, supplies and materials; transportation of any kind; personnel; and services). Include in, or attach to, the summary a certified statement by an authorized representative of your company attesting to the truth, accuracy and completeness of the summary. The Regional Supervisor may provide specific instructions or guidance regarding how to submit the certified summary. (j) If requested by the Regional Supervisor, additional information in support of any decommissioning activity expenditures included in a summary submitted under paragraph (i) of this section Within a reasonable time as determined by the Regional Supervisor The Regional Supervisor will review the summary and may provide specific instructions or guidance regarding the submission of additional information (including, but not limited to, copies of contracts and invoices), if requested, to complete or otherwise support the summary.
    [FR Doc. 2016-19057 Filed 8-11-16; 8:45 am] BILLING CODE 4310-VH-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 4 RIN 2900-AP27 Schedule for Rating Disabilities; Skin Conditions AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) proposes to amend the portion of the VA Schedule for Rating Disabilities (VASRD or Rating Schedule) that addresses skin conditions. The purpose of these changes is to incorporate medical advances that have occurred since the last review, update current medical terminology, and provide clear evaluation criteria. The proposed rule reflects advances in medical knowledge, recommendations from the Skin Disorders Work Group, which is comprised of subject matter experts from both the Veterans Benefits Administration and the Veterans Health Administration, and comments from experts and the public gathered as part of a public forum. The public forum, focusing on revisions to the skin conditions section of the VASRD, was held in January 2012.

    DATES:

    Comment Date: Comments must be received by VA on or before October 11, 2016.

    Applicability Date: The provisions of this rulemaking shall apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after the effective date of the final rule. The Secretary does not intend for the provisions of this rulemaking to apply to claims that have been certified for appeal to the Board of Veterans' Appeals or are pending before the Board of Veterans' Appeals, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit.

    ADDRESSES:

    Written comments may be submitted through www.Regulations.gov; by mail or hand-delivery to Director, Regulation Policy and Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. (This is not a toll free number.) Comments should indicate that they are submitted in response to “RIN 2900-AP27-Schedule for Rating Disabilities; Skin Conditions.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at www.Regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Gary Reynolds, M.D., Regulations Staff (211C), Compensation Service, Veterans Benefits Administration, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420, (202) 461-9700. (This is not a toll-free number.)

    SUPPLEMENTARY INFORMATION:

    The National Defense Authorization Act For Fiscal Year 2004, sec. 1501-07, Public Law 108-136, 117 Stat. 1392, established the Veterans' Disability Benefits Commission (Commission). Section 1502 of Public Law 108-136 mandated the Commission to study ways to improve the disability compensation system for disabled military veterans. The Commission consulted with the Institute of Medicine (IOM) to review the medical aspects of the current disability compensation policies for veterans. In 2007, the IOM released its report titled, “A 21st Century System for Evaluating Veterans for Disability Benefits.”

    The IOM Report was notable in several respects. The IOM observed, in part, that the VASRD was inadequate at times because it contained obsolete information and did not sufficiently integrate current and accepted diagnostic procedures. In addition, the IOM observed that the current body system organization of the VASRD does not reflect current knowledge of the relationships between conditions and comorbidities. Institute of Medicine, Committee on Medical Evaluation of Veterans for Disability Compensation, “A 21st Century System for Evaluating Veterans for Disability Benefits,” 113 (Michael McGeary et al. eds. 2007).

    Following release of the IOM report, VA created a Skin Disorders Work Group (Work Group). The goals adopted by the Work Group were to: 1) improve and update the criteria that VA uses to assign levels of disability after service connection is granted; 2) improve the level of fairness in adjudication of benefits related to service connected disabilities of Veterans; and 3) invite public participation. The Work Group was led by co-chairs from the Veterans Health Administration (VHA) and Veterans Benefits Administration (VBA). The workgroup was comprised of subject matter experts (SMEs) from within VA, DoD, and medical academia. In addition, members from several Veterans Service Organizations (VSOs) were invited to participate as representatives from the public. The Work Group held a public forum in New York City during January 2012, where several SMEs gave presentations focused on their particular area(s) of expertise.

    After the public forum, the Work Group met periodically to continue the revision efforts. Participants from VBA, VHA, medical academia, and VSO representatives continued work within their areas of expertise. The regulation drafting phase began in September 2013, and continues through the publication of this proposed rule. The rule VA proposes is consistent with updating and improving criteria by using validated severity ratings specific to the skin for each of the disability rating levels. As discussed in more detail below, the newly adopted classifications are derived from current medical practice.

    Schedule of Ratings—Skin Conditions General Rating Formula for Skin Disorders

    Section 4.118 currently lists 30 diagnostic codes (DCs) encompassing conditions involving injury or disease of the skin. VA proposes to revise these codes, through addition, removal, or other revisions, to reflect current medical science, terminology, and functional impairment.

    VA would delete the current introductory paragraph to § 4.118. VA added the current paragraph to explain the applicability of the 2008 amendments to § 4.118, DCs 7800, 7801, 7802, 7804, and 7805. This rulemaking would make further amendments and would render outdated the current introductory paragraph. VA would add an applicability date paragraph to the dates section to explain this rulemaking's applicability. The existing provisions in § 4.118 concerning review of ratings and effective dates merely reflect generally applicable principles that need not be restated in the rating schedule.

    VA would add a new introductory paragraph to state that, for the purposes of § 4.118, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. On March 1, 2016, the United States Court of Appeals for Veterans Claims (Veterans Court) found it “unambiguous” that the “use of a topical corticosteroid is systemic therapy within the meaning of Diagnostic Code 7806.” Johnson v. McDonald, 27 Vet. App. 497, 502, 504 (2016). Under this holding, repeated localized application of topical corticosteroid could entitle a veteran to a disability rating as high as sixty percent, even if the affected area is very small. Johnson creates a dramatic disconnect between the severity of the veteran's disability and the corresponding rating. Therefore, VA is amending § 4.118 to clearly provide that VA does not intend for treatment administered through the skin (topical therapy) to constitute systemic therapy. VA notes that it is possible for topical treatments to have systemic effects if administered on a large enough scale. However, in these situations, a veteran can obtain a higher rating due to the percentage of the body affected, not the mode of administration for his or her treatment. For example, if more than 40 percent of a veteran's body is covered in eczema and a veteran treats all affected areas with topical corticosteroid, the veteran will be entitled to a 60 percent rating due to the percentage of the body affected, not because he is taking systemic therapy.

    VA proposes a General Rating Formula to evaluate several of the skin disorders: dermatitis or eczema (DC 7806), discoid lupus erythematosus (DC 7809), dermatophytosis (DC 7813), bullous disorders (DC 7815), psoriasis (DC 7816), infections of the skin not listed elsewhere (DC 7820), cutaneous manifestations of collagen-vascular diseases not listed elsewhere (DC 7821), papulosquamous disorders not listed elsewhere (DC 7822), and diseases of keratinization (DC 7824). Individually, each of the above referenced conditions involves similar superficial components of the skin. The severity of impairment for each condition increases as more skin is involved. All of the conditions have treatments which are applied directly to the skin, as well as taken systemically (e.g., by mouth). There are still more similarities with regard to which treatments are used, treatment dosages given, treatment routes of administration, and treatment duration. As a result, VA concluded it would be more efficient to rate under the same formula, rather than to prescribe individual rating criteria.

    Similar to how these DCs are currently evaluated, this General Rating Formula accounts for percentages of areas affected, both of the entire body and exposed areas, as well as the level of treatment required. The percentage evaluations assigned under the General Rating Formula mirror the percentage evaluations currently assigned for these DCs. Specifically, VA proposes a 60 percent evaluation when at least one of the following is present: More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; Constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs required per 12-month period. VA proposes a 30 percent evaluation when at least one of the following is present: 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; Systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, per 12-month period. VA proposes a 10 percent evaluation when at least one of the following is present: At least 5 percent, but less than 20 percent of the entire body affected, or; At least 5 percent, but less than 20 percent of exposed areas affected, or; Intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs required for a total duration of less than six weeks per 12-month period. VA proposes a zero percent evaluation when no more than topical therapy is required per 12-month period and at least one of the following is present: Less than 5 percent of the entire body affected, or; Less than 5 percent of exposed areas affected.

    Additionally, VA proposes to maintain the current rating instruction for DCs 7806, 7809, 7813-7816, and 7820-7822 which allows for evaluation under disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability, in lieu of using the General Rating Formula. This rating instruction does not apply to current or new DC 7824, and therefore, VA proposes to add a clarifying sentence to that effect to this instruction.

    As for the expanded list of systemic therapies identified in the General Rating Formula, VA notes that the current VASRD lists only “corticosteroids or other immunosuppressive drugs” as examples of systemic therapy. However, since the last review and update of the schedule of disability ratings for the skin, a number of new systemic therapies have surfaced that are used to treat the conditions covered under the General Rating Formula. These include phototherapy, retinoids, biologics, photochemotherapy, and PUVA (e.g., ultraviolet therapy). See, e.g., Jennifer D. Peterson, MD, et al., “A Comprehensive Management Guide for Atopic Dermatitis,” 18:6 Dermatology Nursing, 531-42 (2006); “Psoriasis Medications,” WebMD, http://www.webmd.com/skin-problems-and-treatments/psoriasis/psoriasis-medications (last visited Aug. 25, 2015). To ensure consistent evaluation of these conditions, VA proposes to add these systemic therapies to the list of enumerated treatments.

    In addition to creating the General Rating Formula and applying it to DCs 7806, 7809, 7813, 7815, 7816, 7820, 7821, 7822, and 7824, VA proposes to amend certain individual DCs within § 4.118. The particular changes affecting each DC immediately follow.

    Diagnostic Codes 7801 and 7802

    Each of these DCs pertains to types of scars which are, in part, characterized as “nonlinear.” To broaden application of these DCs, VA proposes to remove the reference to “nonlinear” from each DC title. In addition, VA proposes to include a more descriptive reference to whether the scar involves underlying soft tissue damage in place of the current terms “superficial” and “deep”—to assist rating personnel. This latter proposed change eliminates the need for current note (1) in each DC, as well as the last sentence in note (2) in each DC; therefore, VA proposes removal of those items.

    Currently, if a scar runs in two or more separate areas of the body, note (2) for DCs 7801 and 7802 is intended to allow for the assignment of a separate evaluation for each affected zone and then to combine those evaluations under 38 CFR 4.25. See 73 FR 54708, 54709, Sept. 23, 2008. Although VA has been applying note (2) in this way, VA finds that the note could be written more clearly. Therefore, VA proposes to rewrite note (2) in a clearer and more concise manner and to add a new note (1) to be placed under both DCs 7801 and 7802 that would define the zones of the body. Specifically, note (1) would define the six zones of the body as each extremity, the anterior trunk, and the posterior trunk. VA also proposes to move the statement that the midaxillary line is what divides the anterior and posterior trunk from note (2) to note (1).

    Additionally, VA proposes to add language to note (2) to allow for an alternative evaluation. Specifically, VA proposes to allow for a single evaluation under DCs 7801 and 7802 if adding the entire affected zones of the body together would result in a higher evaluation. VA proposes this additional evaluation method in order to accurately reflect the level of disability present. In some circumstances, combining the scars from different zones under § 4.25 results in a lower compensation level than if the total scar area was added together without regard to the zone involved. For example, under DC 7801, if there is a single scar of 6 square inches total equally affecting both the anterior and posterior trunk, a compensable rating would not be warranted because the area affecting each zone would be less than 6 square inches total (e.g., 3 square inches on the anterior trunk and 3 square inches on the posterior trunk). However, when adding these scar segments together to consider the total square area (6 square inches), a 10 percent evaluation would be warranted. Similarly, under DC 7802, there may be scars in separate zones that are not each 144 square inches, but which add up to 144 square inches total. For example, a veteran may have a 100 square inch scar on the anterior trunk and a 100 square inch scar on the posterior trunk, which would not warrant a compensable rating under DC 7802. However, an evaluation of 10 percent would be warranted by adding the affected zones together for both scars, as they total to 200 square inches together.

    Diagnostic Code 7803

    This DC was deleted in October 2008. See 73 FR at 54710. However, several criteria reference this code. VA proposes to delete any and all references to DC 7803.

    Diagnostic Code 7805

    VA proposes to remove the reference to “linear” scars from DC 7805. The result of this change is that this DC applies to both linear and non-linear scars. As discussed above, VA proposes to remove the reference to “nonlinear” scars from DCs 7801 and 7802, expanding application of these codes to linear scars. Thus, the reference to linear scars should be removed from DC 7805 to avoid confusion by rating personnel.

    Diagnostic Codes 7809 and 7821

    VA proposes to retitle both DC 7809 and DC 7821 using current medical terminology. Current DC 7809 refers to “Discoid lupus erythematosus or subacute cutaneous lupus erythematosus.” VA proposes to remove the listed condition “subacute cutaneous lupus erythematosus” from DC 7809 and add it to DC 7821. The proposed DC 7809 will read as “Discoid lupus erythematosus. Current DC 7809 also provides that a rating under DC 7809 should not be combined with a rating under DC 6350. In order to maintain this provision, we would add a note to DC 7809. The rationale for transferring subacute cutaneous lupus erythematosus from DC 7809 to DC 7821 is that subacute cutaneous lupus erythematosus is a distinctly different condition which is more analogous to collagen-vascular diseases not listed elsewhere (e.g., DC 7821) than it is to discoid lupus erythematosus. See Jean L. Bolognia, John L. Jorrizo, et al. eds., “Dermatology,” 618-20 (3d ed. 2012). The proposed DC 7821 will read as “Cutaneous manifestations of collagen-vascular diseases not listed elsewhere (including scleroderma, calcinosis cutis, subacute cutaneous lupus erythematosus, and dermatomyositis).” There is no change in the evaluation criteria; both conditions would be rated under the General Rating Formula.

    Diagnostic Code 7813

    Current DC 7813 describes a number of variations of dermatophytosis, including tinea corporis, tinea capitis, tinea pedis, tinea barbae, tinea unguium, and tinea cruris. To update this DC title with current medical terminology, VA proposes to add “tinea versicolor” to this list as well as a parenthetical for tinea unguium—onychomycosis as these are also common variations of dermatophytosis seen in the veteran population. Id. at 1251-84. As previously discussed above, VA intends to rate conditions covered by DC 7813 under the General Rating Formula, which provides for similar evaluation criteria as are currently in effect.

    Diagnostic Codes 7815 and 7816

    Current medical practice indicates conditions rated under DC 7815 (bullous disorders) and DC 7816 (psoriasis) can affect additional areas beyond the skin (bullous disorders can affect mucosa of the ocular, oral, gastrointestinal, respiratory, and genitourinary tracts; psoriasis can affect oral mucosa, nails and the joints). Id. at 142, 148-55, 472-73, 482, and 487-89. Therefore, in addition to rating these conditions under the General Rating Formula, VA proposes a note for each of these DCs. The note to DC 7815 would instruct the rater to rate complications and residuals of mucosal involvement (ocular, oral, gastrointestinal, respiratory, and genitourinary) separately under the appropriate diagnostic code. The note to DC 7816 would instruct the rater to rate complications such as psoriatic arthritis and other clinical manifestations (oral mucosa, nails) under the appropriate diagnostic code.

    Diagnostic Code 7817

    VA proposes to retitle DC 7817, currently “Exfoliative dermatitis (erythroderma),” as “Erythroderma.” Erythroderma is the nomenclature being used in current medical practice. Id. at 171-81. In addition, it proposes to update the rating criteria to reflect up-to-date medical understanding of this condition. VA would also slightly reorganize the presentation of criteria for ease of field use. Currently, this condition is evaluated based upon level of involvement of the skin, presence of systemic manifestations, and the level of treatment required. VA does not propose any changes to the level of involvement of the skin, presence of systemic manifestations, or the level of treatment required. However, similar to the changes proposed in the General Rating Formula, the new rating criteria for DC 7817 would reflect additional systemic treatments appropriate for this condition. Currently, DC 7817 includes corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, or electron beam therapy. VA proposes to add biologics to this list as several biological therapies have been approved for treatment of skin disorders in recent years. See M. Viguier, et al., “Efficacy and Safety of Biologics in Erythrodermic Psoriasis,” The British J. of Dermatology 167(2): 417-23 (2012). VA proposes that inclusion of this type of systemic therapy in the rating criteria would ensure consistent and accurate evaluations.

    In addition to expanding the list of systemic therapies listed, VA proposes to include a criterion which considers an individual's level of response to treatment for both the 60 percent and 100 percent evaluations. Under the new criteria, VA would provide a 100 percent rating when the veteran is not currently undergoing treatment due to a documented history of treatment failure with 2 or more treatment regimens and a 60 percent rating when the veteran is not currently undergoing treatment due to a documented history of treatment failure with 1 treatment regimen. Historically, there have been a significant number of veterans with this disorder who fail to respond to treatment (frequently, the condition is related to an underlying malignancy that is not treated successfully, hence the treatment failure).

    To assist rating personnel in applying the new rating criteria, VA proposes to add a note to DC 7817 which defines “treatment failure.” Modeled after a formula developed to study the efficacy of treatment in erythrodermic cutaneous T-cell lymphoma, VA proposes to define “treatment failure” as either disease progression or less than a 25 percent reduction in the extent and severity of disease after four weeks of prescribed therapy, as documented by medical records. See Zackheim HS, Kashani-Sabet M, et al., “Low-dose methotrexate to treat erythrodermic cutaneous T-cell lymphoma: Results in twenty-nine patients,” J. Am. Acad. of Dermatology 34(4):626-31 (1996); see also Bolognia, supra at 181 (erythroderma usually improves within two to six weeks of initiation).

    Diagnostic Code 7822

    VA proposes to update the description in this code to reflect current medical practice. Specifically, the condition mycosis fungoides is added to the list of papulosquamous disorders. See Bolognia, 2019-2027. Currently, mycosis fungoides is not listed in the rating schedule and has caused confusion among VA rating specialists on how to account for this condition, leaving VA rating specialists to invoke § 4.20, analogous ratings. This approach could lead to inconsistent ratings for this condition. Therefore, adding mycosis fungoides under DC 7822 would eliminate the need for an analogous rating and provide a consistent basis for evaluating this condition.

    Diagnostic Code 7825

    Chronic urticaria, also known as chronic hives, is defined as continuous urticaria at least twice per week off treatment for a period of six weeks or more. See Bolognia at 295. It can be caused by a number of mechanisms (physical stimulus, or touch; autoimmune causes; pseudoallergenic, infection-related; vasculitis-related; and, idiopathic, or unknown). Id. at 296. Chronic urticaria is currently evaluated based on the frequency of “episodes” or “debilitating episodes” and type of treatment. Regarding “episodes” or “debilitating episodes,” VA believes this term is non-specific and not helpful to rating personnel in evaluating this condition. Therefore, VA proposes to replace this term with “documented urticarial attacks.” Furthermore, VA proposes to revise all of the rating criteria to indicate both a minimum specified frequency of documented urticarial attacks within a 12 month period and the type of treatment required. VA proposes this approach to the criteria to introduce greater objectivity within the evaluation criteria based on current medical practice. VA acknowledges that an urticarial attack generally results in debilitation; however, this change makes it clear that the acute period of debilitation must be related to the service-connected skin disease itself rather than another condition.

    Regarding the current 30 percent and 60 percent criteria, VA proposes to include examples of common “immunosuppressive therapy,” to include, but not limited to, cyclosporine or steroids. See Bolognia, supra at 300-05. For clarity and consistency, VA would replace the phrase occurring “at least four times during the past 12-month period” in the 30 and 60 percent criteria with “four or more times per 12-month period.”

    VA also proposes to add two new sets of criteria under the 10 percent evaluation; the revised criteria would allow a 10 percent evaluation to be assigned in more circumstances based upon an individual's level of response to treatment. A 10 percent evaluation would be assigned if there are recurrent documented urticarial attacks occurring one to three times during the past 12-month period and intermittent systemic immunosuppressive therapy is required for control. VA would also assign a 10 percent evaluation if there are recurrent documented urticarial attacks occurring four or more times during the past 12-month period and treatment with antihistamines or sympathomimetics (including, but not limited to an epipen or intramuscular epinephrine) is required or, if there are no recurrent documented urticarial attacks, but continuous systemic immunosuppressive therapy medication is required for control (including, but not limited to, cyclosporine, steroids). VA also proposes to reorganize how the various criteria are presented for ease of field use.

    VA believes that a 10 percent evaluation is appropriate in each of these cases because the treatment measures may impose slight disability upon the individual. For example, long term treatment with antihistamines can result in drowsiness (even the non-sedating kinds) and autonomic nervous system dysfunction (e.g., urinary retention). Id. at 303. Similarly, continuous use of systemic medications may result in disabling effects, such as drowsiness with doxepin or weight gain, and increased risk of diabetes with long-term steroid use. See Manuchair Ebadi, “Desk Reference of Clinical Pharmacology,” 101, 113, 329, and 582 (2d ed. 2008); see also “Chronic hives (urticaria),” Mayo Clinic (Sept. 17, 2011), http://www.mayoclinic.org/diseases-conditions/chronic-hives/basics/treatment/con-20031634 (last visited Apr. 23, 2014).

    Diagnostic Code 7826

    Similar to DC 7825, VA proposes to update the criteria under current DC 7826, “Vasculitis, primary cutaneous.” First, VA proposes to replace the term “debilitating episodes,” which is a non-specific term not defined in the VASRD with the term “documented vasculitic episodes.” This change in terminology is more consistent with current medical practice. Next, VA proposes to modify the criteria to specify the minimum frequency of documented vasculitic episodes, the type of treatment required and the effectiveness of that treatment. In turn, increased disability would be reflected in objective terms (e.g., increased frequency of vasculitic episodes, more intensive treatment or lack of treatment effectiveness). VA also proposes to reorganize how the various criteria are presented for ease of field use. These modifications incorporate current medical knowledge, enhance objectivity and are easier for rating personnel to utilize.

    For the 60 percent level of compensation, VA proposes to remove the phrase “occurring at least four times during the past 12 month period” and replace the term “recurrent” with “persistent” and the term “despite” with the phrase “refractory to.” The phrase removal and term replacements are to more clearly differentiate between the 60 percent and 30 percent compensation levels. For the 30 percent evaluation, VA proposes to replace the phrase “. . . at least four times during the past 12-month period . . .” with the phrase “four or more times per 12-month period” to clearly delineate the minimal frequency requirement and ease of field use. For the 10 percent evaluation, VA proposes to replace the phrase “one to three times during the past 12-month period” with “one to three times per 12-month period” for ease of field use. Additionally for the 10 percent evaluation, VA proposes to add that the absence of recurrent documented vasculitic episodes but requiring continuous systemic medication for control would also warrant compensation. This proposed revision allows a 10 percent evaluation to be assigned in more circumstances, namely, when the disorder is controlled through the use of systemic medications, but there may be slight disabling effects as a result of such medication. See Ebadi, supra; see also “Vasculitis,” Mayo Clinic (Oct. 8, 2011), http://www.mayoclinic.org/diseases-conditions/vasculitis/basics/treatment/con-20026049 (last visited Apr. 23, 2014).

    Diagnostic Code 7827

    VA proposes to revise and update the criteria for DC 7827, “Erythema multiforme; Toxic epidermal necrolysis.” First, each evaluation level would reference the presence of mucosal (leading to impaired mastication, that is, chewing), palmar (leading to impaired handgrip), or plantar involvement (leading to impaired ambulation, that is, walking). See Bolognia, supra at 320, 322, and 326-32. The mucosal, palmar, and/or plantar findings would be restricted to the past 12-month period for all evaluation levels. For clarity and consistency, VA would replace the phrase occurring “at least four times during the past 12-month period” in the 30 and 60 percent criteria with “four or more times per 12-month period.” For a 60 percent evaluation, recurrent mucosal, palmar, or plantar involvement impairing mastication, use of hands, or ambulation occurring four or more times per 12-month period despite ongoing immunosuppresive therapy would be required. For a 30 percent evaluation, recurrent mucosal, palmar, or plantar involvement not impairing mastication, use of hands, or ambulation occurring four or more times per 12-month period, and requiring intermittent systemic therapy would be required.

    A 10 percent evaluation would be assigned for the following circumstances: (1) One to three episodes of mucosal, palmar, or plantar involvement not impairing mastication, use of hands, or ambulation occurring per 12-month period AND requiring intermittent systemic therapy, or (2) without recurrent episodes, but requiring continuous systemic medication for control. This allows a 10 percent evaluation to be assigned in more circumstances, based upon the level of response to treatment. Lastly, VA proposes to add a note at the end of DC 7827 defining, for the purposes of DC 7827 only, that systemic therapy may consist of one or more of the following treatment agents: Immunosuppressives, antihistamines, or sympathomimetics. See Ebadi, supra; see also Victor Cohen, PharmD, et al., “Toxic Epidermal Necrolysis Treatment & Management,” MEDSCAPE REFERENCE (Mar. 3, 2014), http://emedicine.medscape.com/article/229698-treatment#a1156 (last visited Apr. 23, 2014).

    Diagnostic Code 7828

    VA proposes to update DC 7828, “Acne,” by removing the reference to “superficial cysts” in the zero percent rating criteria. This update is proposed based upon current medical terminology as the term “superficial cysts” is no longer used in the medical community. See Bolognia, supra at 547-50 and 555-58.

    Diagnostic Code 7829

    Current DC 7829 instructs rating personnel to evaluate chloracne based, in part, on either the presence of deep or superficial acne. The current evaluation criteria instructs that either a 10 or 30 percent evaluation should be assigned depending upon whether more or less than 40 percent of the face and neck are involved; VA does not propose changes to these criteria. However, a 10 percent evaluation is also assigned when there is “deep acne other than on the face and neck.” VA proposes to clarify that a 10 percent evaluation should only be assigned when deep acne affects non-intertriginous areas of the body other than the face and neck or less than 40 percent of the face and neck. Intertriginous areas of the body include the axilla of the arm, the anogenital region, and skin folds of the breast or between digits. Samuel T. Selden, MD, “Intertrigo,”Medscape Reference (Mar. 27, 2012), http://emedicine.medscape.com/article/1087691-overview (last visited Apr. 23, 2014). Deep acne affecting these areas of the body results in greater functional impairment to the individual because these represent more sensitive areas of the body. Therefore, VA proposes to assign a higher 20 percent evaluation when deep acne affects the intertriginous areas of the body.

    Additionally, for reasons previously discussed in DC 7828, VA proposes to remove the term “superficial cysts” from the rating criteria under the zero percent evaluation. See Bolognia, supra at 547-50 and 555-58.

    Technical Amendments

    VA also proposes several technical amendments. We would update Appendix A, B, and C of part 4 to reflect the above noted proposed amendments.

    Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess the 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 effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, 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 set forth in the Executive Order.”

    The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

    Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This proposed rule would directly affect only individuals and would not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

    Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This proposed rule would have no such effect on State, local, and tribal governments, or on the private sector.

    Paperwork Reduction Act

    This proposed rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.104, Pension for Non-Service-Connected Disability for Veterans; 64.109, Veterans Compensation for Service-Connected Disability; and 64.110, Veterans Dependency and Indemnity Compensation for Service-Connected Death.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on August 1, 2016, for publication.

    List of Subjects in 38 CFR Part 4

    Disability benefits, Pensions, Veterans.

    Dated: August 1, 2016. Jeffrey Martin, Office Program Manager, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs.

    For the reasons set out in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 4, subpart B as follows:

    PART 4—SCHEDULE FOR RATING DISABILITIES Subpart B—Disability Ratings 1. The authority citation for part 4 continues to read as follows: Authority:

    38 U.S.C. 1155, unless otherwise noted.

    2. Amend § 4.118 by: a. Revising the introductory paragraph; b. Revising the entries for diagnostic codes 7801, 7802, and 7805; c. Adding an entry for “General Rating Formula For The Skin For DCs 7806, 7809, 7813-7816, 7820-7822, And 7824”, to appear after the entry for diagnostic code 7805; d. Revising entries for diagnostic codes 7806, 7809, 7813, 7815, 7816, 7817, 7820, 7821, 7822, 7824, 7825, 7826, 7827, 7828, and 7829.

    The revisions and additions read as follows:

    § 4.118 Schedule of ratings-skin.

    For the purposes of this section, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin. For the purposes of this section, topical therapy is treatment that is administered through the skin.

    Rating *         *         *         *         *         *         * 7801 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage: Area or areas of 144 square inches (929 sq. cm.) or greater 40 Area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) 30 Area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) 20 Area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) 10 Note (1): For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk
  • Note (2): A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code
  • 7802 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage: Area or areas of 144 square inches (929 sq. cm.) or greater 10 Note (1): For the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk Note (2): A separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code *         *         *         *         *         *         * 7805 Scars, other; and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804: Evaluate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code General Rating Formula For The Skin For DCs 7806, 7809, 7813-7816, 7820-7822, And 7824: At least one of the following More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; 60 Constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs required per 12-month period At least one of the following 30 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; Systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, per 12-month period At least one of the following 10 At least 5 percent, but less than 20 percent of the entire body affected, or; At least 5 percent, but less than 20 percent of exposed areas affected, or; Intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA or other immunosuppressive drugs required for a total duration of less than six weeks per 12-month period No more than topical therapy required per 12-month period and at least one of the following 0 Less than 5 percent of the entire body affected, or; Less than 5 percent of exposed areas affected Or rate as disfigurement of the head, face or neck (DC 7800) or scars (DCs 7801, 7802, 7804, or 7805), depending upon the predominant disability. This rating instruction does not apply to DC 7824 7806 Dermatitis or eczema.
  • Evaluate under the General Rating Formula for the Skin.
  • *         *         *         *         *         *         * 7809 Discoid lupus erythematosus. Evaluate under the General Rating Formula for the Skin Note: Do not combine with ratings under DC 6350 *         *         *         *         *         *         * 7813 Dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium (onychomycosis); of inguinal area (jock itch), tinea cruris; tinea versicolor) Evaluate under the General Rating Formula for the Skin 7815 Bullous disorders (including pemphigus vulgaris, pemphigus foliaceous, bullous pemphigoid, dermatitis herpetiformis, epidermolysis bullosa acquisita, benign chronic familial pemphigus (Hailey-Hailey), and porphyria cutanea tarda) Evaluate under the General Rating Formula for the Skin Note: Rate complications and residuals of mucosal involvement (ocular, oral, gastrointestinal, respiratory, and genitourinary) separately under the appropriate diagnostic code 7816 Psoriasis Evaluate under the General Rating Formula for the Skin Note: Rate complications such as psoriatic arthritis and other clinical manifestations (oral mucosa, nails) under the appropriate diagnostic code 7817 Erythroderma: Generalized involvement of the skin with systemic manifestations (such as fever, weight loss, and hypoproteinemia) AND one of the following: Constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light); UVB (ultraviolet-B light) treatments, biologics, or electron beam therapy required per 12-month period, or No current treatment due to a documented history of treatment failure with 2 or more treatment regimens 100 Generalized involvement of the skin without systemic manifestations and one of the following: Constant or near-constant systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light); UVB (ultraviolet-B light) treatments, biologics, or electron beam therapy required per 12-month period, or No current treatment due to a documented history of treatment failure with 1 treatment regimen 60 Any extent of involvement of the skin, and any of the following therapies required for a total duration of six weeks or more, but not constantly, per 12-month period: Systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, biologics, or electron beam therapy 30 Any extent of involvement of the skin, and any of the following therapies required for a total duration of less than six weeks per 12-month period: Systemic therapy such as therapeutic doses of corticosteroids, immunosuppressive retinoids, PUVA (psoralen with long-wave ultraviolet-A light) or UVB (ultraviolet-B light) treatments, biologics, or electron beam therapy 10 Any extent of involvement of the skin, and; no more than topical therapy required per 12-month period 0 Note: Treatment failure is defined as either disease progression, or less than a 25 percent reduction in the extent and severity of disease after four weeks of prescribed therapy, as documented by medical records *         *         *         *         *         *         * 7820 Infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases). Evaluate under the General Rating Formula for the Skin 7821 Cutaneous manifestations of collagen-vascular diseases not listed elsewhere (including scleroderma, calcinosis cutis, subacute cutaneous lupus erythematosus, and dermatomyositis) Evaluate under the General Rating Formula for the Skin 7822 Papulosquamous disorders not listed elsewhere (including lichen planus, large or small plaque parapsoriasis, pityriasis lichenoides et varioliformis acuta (PLEVA), lymphomatoid papulosus, mycosis fungoides, and pityriasis rubra pilaris (PRP)) Evaluate under the General Rating Formula for the Skin *         *         *         *         *         *         * 7824 Diseases of keratinization (including icthyoses, Darier's disease, and palmoplantar keratoderma). Evaluate under the General Rating Formula for the Skin 7825 Urticaria: Recurrent documented urticarial attacks occurring four or more times per 12-month period despite continuous immunosuppressive therapy (including, but not limited to, cyclosporine and steroids) 60 Recurrent documented urticarial attacks occurring four or more times per 12-month period and requiring intermittent systemic immunosuppressive therapy (including, but not limited to, cyclosporine and steroids) for control 30 At least one of the following 10 Recurrent documented urticarial attacks occurring one to three times per 12-month period, and requiring intermittent systemic immunosuppressive therapy for control, or Recurrent documented urticarial attacks occurring four or more times per 12-month period, and requiring treatment with antihistamines or sympathomimetics (including, but not limited to an epipen or intramuscular epinephrine), or Without recurrent documented urticarial attacks, but requiring continuous systemic immunosuppressive therapy medication (including, but not limited to, cyclosporine and steroids) for control 7826 Vasculitis, primary cutaneous: Persistent documented vasculitis episodes refractory to continuous immunosuppressive therapy 60 All of the following 30 Recurrent documented vasculitic episodes occurring four or more times per 12-month period, and Requiring intermittent systemic immunosuppressive therapy for control At least one of the following 10 Recurrent documented vasculitic episodes occurring one to three times per 12-month period, and requiring intermittent systemic immunosuppressive therapy for control, or Without recurrent documented vasculitic episodes but requiring continuous systemic medication for control Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7804, or 7805), depending upon the predominant disability 7827 Erythema multiforme; Toxic epidermal necrolysis: Recurrent mucosal, palmar, or plantar involvement impairing mastication, use of hands, or ambulation occurring four or more times per 12-month period despite ongoing immunosuppresive therapy 60 All of the following 30 Recurrent mucosal, palmar, or plantar involvement not impairing mastication, use of hands, or ambulation occurring four or more times per 12-month period, and Requiring intermittent systemic therapy At least one of the following 10 One to three episodes of mucosal, palmar, or plantar involvement not impairing mastication, use of hands, or ambulation occurring per 12-month period AND requiring intermittent systemic therapy, or Without recurrent episodes, but requiring continuous systemic medication for control Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7804, or 7805), depending upon the predominant disability Note: For the purposes of this DC only, systemic therapy may consist of one or more of the following treatment agents: Immunosuppressives, antihistamines, or sympathomimetics 7828 Acne: Deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck 30 Deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck, or; deep acne other than on the face and neck 10 Superficial acne (comedones, papules, pustules) of any extent 0 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7804, or 7805), depending upon the predominant disability 7829 Chloracne: Deep acne (deep inflamed nodules and pus-filled cysts) affecting 40 percent or more of the face and neck 30 Deep acne (deep inflamed nodules and pus-filled cysts) affecting the intertriginous areas (the axilla of the arm, the anogenital region, skin folds of the breasts or between digits) 20 Deep acne (deep inflamed nodules and pus-filled cysts) affecting less than 40 percent of the face and neck; or, deep acne affecting non-intertriginous areas of the body (other than the face and neck) 10 Superficial acne (comedones, papules, pustules) of any extent 0 Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7804, or 7805), depending upon the predominant disability *         *         *         *         *         *         *
    (Authority: 38 U.S.C. 1155)
    3. Amend appendix A to part 4, under the entry Sec. 4.118, by: a. Revising the entries for diagnostic codes 7801, 7802, 7805, 7806, 7809, 7813, 7815, 7816, and 7817; b. Removing the entry for 7820-7833; c. Adding entries for diagnostic codes 7820, 7821, 7822, 7823, 7824, 7825, 7826, 7827, 7828, 7829, 7830, 7831, 7832, and 7833.

    The revisions and additions read as follows:

    Appendix A to Part 4—Table of Amendments and Effective Dates Since 1946 Section Diagnostic
  • Code No.
  • *         *         *         *         *         *         * 4.118 7801 Criterion July 6, 1950; criterion August 30, 2002; criterion October 23, 2008; title, note 1, note 2 [effective date of final rule]. 7802 Criterion September 22, 1978; criterion August 30, 2002; criterion October 23, 2008; title, note 1, note 2 [effective date of final rule]. *         *         *         *         *         *         * 7805 Criterion October 23, 2008; title [effective date of final rule].
  • General Rating Formula for DCs 7806, 7809, 7813—7816, 7820—7822, and 7824 added [effective date of final rule].
  • 7806 Criterion September 9, 1975; evaluation August 30, 2002; criterion [effective date of final rule]. *         *         *         *         *         *         * 7809 Criterion August 30, 2002; title, criterion [effective date of final rule]. *         *         *         *         *         *         * 7813 Criterion August 30, 2002; title, criterion [effective date of final rule]. *         *         *         *         *         *         * 7815 Evaluation August 30, 2002; criterion, note [effective date of final rule]. 7816 Evaluation August 30, 2002; criterion, note [effective date of final rule]. 7817 Evaluation August 30, 2002; title, criterion, note [effective date of final rule]. *         *         *         *         *         *         * 7820 Added August 30, 2002; criterion [effective date of final rule]. 7821 Added August 30, 2002; title, criterion [effective date of final rule]. 7822 Added August 30, 2002; title, criterion [effective date of final rule]. 7823 Added August 30, 2002; title, criterion [effective date of final rule]. 7824 Added August 30, 2002; criterion [effective date of final rule]. 7825 Added August 30, 2002; criterion [effective date of final rule]. 7826 Added August 30, 2002; criterion [effective date of final rule]. 7827 Added August 30, 2002; criterion [effective date of final rule]. 7828 Added August 30, 2002; criterion [effective date of final rule]. 7829 Added August 30, 2002; criterion [effective date of final rule]. 7830 Added August 30, 2002; title, criterion [effective date of final rule]. 7831 Added August 30, 2002; title, criterion [effective date of final rule]. 7832 Added August 30, 2002; title, criterion [effective date of final rule]. 7833 Added August 30, 2002; title, criterion [effective date of final rule]. *         *         *         *         *         *         *
    4. Amend appendix B to part 4, under the center heading The Skin,, by revising the entries for diagnostic codes 7801, 7802, 7805, 7809, 7813, 7817, 7821, and 7822 to read as follows: Appendix B to Part 4—Numerical Index of Disabilities Diagnostic
  • Code No.
  • *         *         *         *         *         *         * THE SKIN *         *         *         *         *         *         * 7801 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck that are associated with underlying soft tissue damage. 7802 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck that are not associated with underlying soft tissue damage. *         *         *         *         *         *         * 7805 Scars, other; and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804. *         *         *         *         *         *         * 7809 Discoid lupus erythematosus. *         *         *         *         *         *         * 7813 Dermatophytosis. *         *         *         *         *         *         * 7817 Erythroderma. *         *         *         *         *         *         * 7821 Cutaneous manifestations of collagen-vascular diseases not listed elsewhere (including scleroderma, calcinosis cutis, subacute cutaneous lupus erythematosus, and dermatomyositis). 7822 Papulosquamous disorders not listed elsewhere. *         *         *         *         *         *         *
    5. Amend appendix C to part 4 by: a. Removing the entry “Cutaneous manifestations of collagen-vascular diseases” and add in its place an entry for “Cutaneous manifestations of collagen-vascular diseases not listed elsewhere (including scleroderma, calcinosis cutis, subacute cutaneous lupus erythematosus, and dermatomyositis)”; b. Adding in alphabetical order entries for “Discoid lupus erythematosus”, and “Erythroderma”; and c. Revising the entries under “Scars.”

    The additions and revisions read as follows:

    Appendix C to Part 4—Alphabetical Index of Disabilities Diagnostic
  • Code No.
  • *         *         *         *         *         *         * Cutaneous manifestations of collagen-vascular diseases not listed elsewhere (including scleroderma, calcinosis cutis, subacute cutaneous lupus erythematosus, and dermatomyositis) 7821 *         *         *         *         *         *         * Discoid lupus erythematosus 7809 *         *         *         *         *         *         * Erythroderma 7817 *         *         *         *         *         *         * Scars: Burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck 7800 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck that are associated with underlying soft tissue damage 7801 Burn scar(s) or scar(s) due to other causes, not of the head, face, or neck that are not associated with underlying soft tissue damage 7802 Retina 6011 Scars, other; and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804 7805 Unstable or painful 7804 *         *         *         *         *         *         *
    [FR Doc. 2016-18695 Filed 8-11-16; 8:45 am] BILLING CODE 8320-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2016-0394, FRL-9950-55-Region 10] Approval and Promulgation of Implementation Plans; Washington: Updates to Incorporation by Reference and Miscellaneous Revisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to approve State Implementation Plan revisions submitted by the Washington State Department of Ecology (Ecology) on July 11, 2016. The revisions update the incorporation by reference of Federal provisions cited in Ecology's general air quality regulations. The revisions also reflect changes to the primary and secondary National Ambient Air Quality Standards (NAAQS) for ozone, promulgated since Ecology's last update. Ecology also made minor corrections to typographical errors and non-substantive edits for clarity, such as standardizing the citation format.

    DATES:

    Comments must be received on or before September 12, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2016-0394 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:

    Jeff Hunt, Air Planning Unit, Office of Air and Waste (AWT-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave, Suite 900, Seattle, WA 98101; telephone number: (206) 553-0256; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

    Table of Contents I. Background II. Analysis of Rule Updates III. Proposed Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background

    Section 110 of the Clean Air Act (CAA) governs the process by which a state submits air quality requirements to the EPA for approval into the State Implementation Plan (SIP). The SIP is a state's plan to implement, maintain and enforce the NAAQS. Ecology's general air quality regulations are set forth at Chapter 173-400 of the Washington Administrative Code (WAC). The EPA last approved changes to Chapter 173-400 WAC on April 29, 2015, which incorporates by reference certain Federal regulations, as of July 1, 2012 (80 FR 23721). Washington also adopts and implements changes to the NAAQS under Chapter 173-476 WAC, which the EPA last approved on March 4, 2014 (79 FR 12078). On July 11, 2016, Washington submitted a request to update Chapters 173-400 and 173-476 WAC in the SIP, with revised Federal citations as of January 1, 2016.

    II. Analysis of Rule Updates Chapter 173-400 WAC

    In order to streamline updates to Chapter 173-400 WAC and the Washington SIP, Ecology created a new section, WAC 173-400-025 Adoption of Federal Rules, which states, “Federal rules mentioned in this rule are adopted as they exist on January 1, 2016. Adopted or adopted by reference means the federal rule applies as if it was copied into this rule.” As part of this process, Ecology modified other sections of Chapter 173-400 WAC to remove citations to specific Federal regulation adoption dates, in order to rely on WAC 173-400-025. Ecology also corrected minor typographical errors, standardized references, and consistently formatted Federal citations. A redline/strikeout of the changes is included in the State's submittal, contained in the docket for this action. We reviewed these changes and are proposing to approve the revisions.

    One outcome of Ecology's update to Chapter 173-400 WAC relates to the Prevention of Significant Deterioration (PSD) permitting program for major stationary sources in attainment and unclassifiable areas. The Washington SIP, at WAC 173-400-720(4)(a)(vi), generally incorporates by reference the Federal PSD regulations contained in 40 CFR 52.21, with certain exceptions (80 FR 23721, April 29, 2015). As part of our April 29, 2015 final action on WAC 173-400-720(4)(a)(vi) we excluded the incorporation by reference of 40 CFR 52.21(b)(49)(v), 40 CFR 52.21(i)(5)(i), and 40 CFR 52.21(k)(2), as the Federal rules existed on July 1, 2012. These citations relate to Federal greenhouse gas, and fine particulate matter significant monitoring concentration and significant impact level provisions vacated by Federal courts after July 1, 2012 (see our proposed rulemaking for a full discussion, 80 FR 838, January 7, 2015, at page 842). After the court vacated the provisions, the EPA removed the provisions from 40 CFR 52.21 on December 9, 2013 (78 FR 73698) and August 19, 2015 (80 FR 50199). Ecology's revised incorporation by reference of these Federal regulations as of January 1, 2016, captures the EPA's removal of the vacated provisions. We are proposing to fully approve WAC 173-400-720(4)(a)(vi) because it meets current Federal requirements and is consistent with the court decisions. All other exceptions to our approval of Chapter 173-400 WAC remain unchanged since our April 29, 2015 final action.

    Ecology also requested that the EPA update the Chapter 173-400 WAC citations for the Benton Clean Air Agency (BCAA) jurisdiction consistent with the exceptions noted in our November 17, 2015 final approval (80 FR 71695). As discussed in the proposed rulemaking for that action, BCAA does not implement WAC provisions related to the PSD program under WAC 173-400-116 and 173-400-700 through 173-400-750 (80 FR 55280, September 15, 2015, at page 55283). Also, as described in the proposed rulemaking for that action, BCAA local requirements contained in Regulation I, section 4.02 apply in lieu of the WAC provisions contained in WAC 173-400-040(4), WAC 173-400-040(9)(a), and WAC 173-400-040(9)(b). The EPA is therefore proposing to approve the update to Chapter 173-400 WAC for BCAA's jurisdiction consistent with the exceptions noted above. The EPA is also proposing to revise the visibility protection Federal Implementation Plan contained in 40 CFR 52.2498 to reflect the approval of WAC 173-400-117 Special Protection Requirements for Federal Class I Areas for sources within BCAA's jurisdiction.

    Chapter 173-476 WAC

    The EPA last approved changes to Chapter 173-476 WAC on March 4, 2014, which contained all promulgated Federal NAAQS in existence at that time (79 FR 12078). In 2015, the EPA revised 40 CFR part 50 to include revised primary and secondary 8-hour ambient air quality standards for ozone at 0.070 parts per million (80 FR 65292, Oct. 26, 2015). Ecology's revision to Chapter 173-476 includes this update to the ozone standards and the interpretation method contained in 40 CFR part 50, Appendix U. We are proposing to approve the revisions to Chapter 173-476 WAC as meeting current Federal requirements.

    III. Proposed Action

    We are proposing to approve and incorporate by reference in the Washington SIP at 40 CFR 52.2470(c) the following revisions to Chapters 173-400 and 173-476 WAC as shown in the table below.

    State citation Title/subject State
  • effective date
  • Explanations
    40 CFR 52.2470(c), TABLE 1—REGULATIONS APPROVED STATEWIDE Washington Administrative Code, Chapter 173-476—Ambient Air Quality Standards 173-476-020 Applicability 07/01/16 173-476-150 Ambient Air Quality Standard for Ozone 07/01/16 173-476-900 Appendix A. Table of Standards 07/01/16 40 CFR 52.2470(c), TABLE 2—ADDITIONAL REGULATIONS APPROVED FOR WASHINGTON DEPARTMENT OF ECOLOGY (ECOLOGY) DIRECT JURISDICTION Washington Administrative Code, Chapter 173-400—General Regulations for Air Pollution Sources 173-400-025 Adoption of Federal Rules 07/01/16 173-400-040 General Standards for maximum Emissions 07/01/16 Except: 173-400-040(2)(c); 173-400-040(2)(d); 173-400-040(3); 173-400-040(5); 173-400-040(7), second paragraph. 173-400-050 Emission Standards for Combustion and Incineration Units 07/01/16 Except: 173-400-050(2) and 173-400-050(4) through (6). 173-400-060 Emission Standards for General Process Units 07/01/16 173-400-070 Emission Standards for Certain Source Categories 07/01/16 Except: 173-400-070(7); 173-400-070(8). 173-400-105 Records, Monitoring, and Reporting 07/01/16 173-400-111 Processing Notice of Construction Applications for Sources, Stationary Sources and Portable Sources 07/01/16 Except: 173-400-111(3)(h); The part of 173-400-111(8)(a)(v) that says, • “and 173-460-040,”; 173-400-111(9). 173-400-116 Increment Protection 07/01/16 173-400-171 Public Notice and Opportunity for Public Comment 07/01/16 Except: The part of 173-400-171(3)(b) that says, • “or any increase in emissions of a toxic air pollutant above the acceptable source impact level for that toxic air pollutant as regulated under chapter 173-460 WAC”; 173-400-171(12). 173-400-710 Definitions 07/01/16 173-400-720 Prevention of Significant Deterioration (PSD) 07/01/16 Except: 173-400-720(4)(a)(i through iv) and 173-400-720(4)(b)(iii)(C). 173-400-730 Prevention of Significant Deterioration Application Processing Procedures 07/01/16 173-400-740 PSD Permitting Public Involvement Requirements 07/01/16 173-400-810 Major Stationary Source and Major Modification Definitions 07/01/16 173-400-830 Permitting Requirements 07/01/16 173-400-840 Emission Offset Requirements 07/01/16 173-400-850 Actual Emissions Plantwide Applicability Limitation (PAL) 07/01/16 40 CFR 52.2470(c), TABLE 4—ADDITIONAL REGULATIONS APPROVED FOR BENTON CLEAN AIR AGENCY (BCAA) JURISDICTION 173-400-025 Adoption of Federal Rules 07/01/16 173-400-040 General Standards for Maximum Emissions 07/01/16 Except: 173-400-040(2)(c); 173-400-040(2)(d); 173-400-040(3); 173-400-040(4); 173-400-040(5); 173-400-040(7), second paragraph; 173-400-040(9)(a); 173-400-040(9)(b). 173-400-050 Emission Standards for Combustion and Incineration Units 07/01/16 Except: 173-400-050(2) and 173-400-050(4) through (6). 173-400-060 Emission Standards for General Process Units 07/01/16 173-400-070 Emission Standards for Certain Source Categories 07/01/16 Except:
  • 173-400-070(7); 173-400-070(8).
  • 173-400-105 Records, Monitoring, and Reporting. 07/01/16 173-400-111 Processing Notice of Construction Applications for Sources, Stationary Sources and Portable Sources 07/01/16 Except: 173-400-111(3)(h); The part of 173-400-111(8)(a)(v) that says,
  • • “and 173-460-040,”;
  • 173-400-111(9).
  • 173-400-171 Public Notice and Opportunity for Public Comment 07/01/16 Except: The part of 173-400-171(3)(b) that says,
  • • “or any increase in emissions of a toxic air pollutant above the acceptable source impact level for that toxic air pollutant as regulated under chapter 173-460 WAC”; 173-400-171(12).
  • 173-400-810 Major Stationary Source and Major Modification Definitions 07/01/16 173-400-830 Permitting Requirements 07/01/16 173-400-840 Emission Offset Requirements 07/01/16 173-400-850 Actual Emissions Plantwide Applicability Limitation (PAL) 07/01/16

    We are also proposing to approve, but not incorporate by reference, the revised version of WAC 173-400-260 Conflict of Interest, state effective July 1, 2016. Consistent with prior actions on the Washington SIP, the EPA reviews and approves state and local clean air agency submissions to ensure they provide adequate enforcement authority and other general authority to implement and enforce the SIP. However, regulations describing such agency enforcement and other general authority are typically not incorporated by reference so as to avoid potential conflict with the EPA's independent authorities. Therefore, we propose to approve, WAC 173-400-260 into the Washington SIP, but not incorporate the provision by reference.

    IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the regulations in the table in section III above. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 10 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    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, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

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

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

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

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

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

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

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

    The SIP is not approved to apply on any Indian reservation land in Washington except as specifically noted below and is also not approved to apply 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). Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area. Consistent with EPA policy, the EPA provided a consultation opportunity to the Puyallup Tribe in a letter dated July 13, 2016.

    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.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: August 1, 2016. Michelle L. Pirzadeh, Acting Regional Administrator, Region 10.
    [FR Doc. 2016-19031 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2016-0366; FRL-9950-36-Region 8] Approval and Promulgation of State Implementation Plan Revisions to Primary Air Quality Standards, Minor Source Baseline Date, Incorporation by Reference, and 2008 Ozone NAAQS Infrastructure Requirements for CAA Section 110(a)(2)(C) and (D)(i)(II); Wyoming AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of Wyoming on May 28, 2015 and November 6, 2015. The amendments update the version of the Code of Federal Regulations (CFR) incorporated by reference into the rules of the State of Wyoming for Chapter 2, Section 12; Chapter 3, General Emission Standards, Section 9; and Chapter 6, Prevention of Significant Deterioration, Section 4. The May 28, 2015 submittal updates a citation to a Federal Register article (i.e., Federal Register notice) under the definition of “tpy CO2 equivalent emissions (CO2e),” and lists a new minor source baseline date for fine particulate. The State also proposes to update the primary air quality standards for particulate matter (PM2.5) to reflect federal updates that went into effect in January 2013. The updated primary PM2.5 standard is 12 micrograms per cubic meter (µg/m3) annual arithmetic mean concentration, which is lowered from its previous level of 15 µg/m3. The EPA is also proposing approval of portions of the State's February 6, 2014 2008 ozone National Ambient Air Quality Standards (NAAQS) infrastructure certification regarding prevention of significant deterioration (PSD) and the good neighbor provision. The EPA is not taking action on the Chapter 6, Permitting Requirements, Section 14 portion of the May 24, 2012 submittal because it has been superseded by a November 6, 2015 submittal (81 FR 35271). The EPA is not taking action on a May 24, 2012 submittal or a March 8, 2013 submittal because they have been superseded by the May 28, 2015 submittal.

    DATES:

    Written comments must be received on or before September 12, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R08-OAR-2016-0366, 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:

    Jody Ostendorf, Air Program, U.S. Environmental Protection Agency (EPA), Region 8, Mail Code 8P-AR, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-7814, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information What should I consider as I prepare my comments for the EPA?

    1. Submitting Confidential Business Information (CBI). Do not submit CBI to the EPA through http://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.

    2. Tips for preparing your comments. When submitting comments, remember to:

    • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register volume, date, and page number); • Follow directions and organize your comments; • Explain why you agree or disagree; • Suggest alternatives and substitute language for your requested changes; • Describe any assumptions and provide any technical information and/or data that you used; • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced; • Provide specific examples to illustrate your concerns, and suggest alternatives; • Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and, • Make sure to submit your comments by the comment period deadline identified. II. Analysis of the State Submittals

    In this proposed rulemaking, we are proposing to approve three submittals into Wyoming's SIP.

    May 28, 2015 Submittals

    The first May 28, 2015 submittal updates Chapter 3, General Emission Standards, Section 9, Incorporation by reference, to adopt by reference the July 1, 2013 Code of Federal Regulations. This submittal supersedes previously submitted updates to Section 9, Incorporation by reference. The EPA proposes to approve this submittal.

    The second May 28, 2015 submittal updates Chapter 6, Section 4, Prevention of significant deterioration (PSD) program. The submittal updates a citation to a Federal Register article (i.e., Federal Register notice) under the definition of “tpy CO2 equivalent emissions (CO2e).” The article is available for public inspection and can be obtained online at http://www.thefederalregister.org/fdsys/pkg/FR-2013-11-29/pdf/2013-27996.pdf or at a cost from the Department of Environmental Quality, Division of Air Quality, Cheyenne Office. Contact information for the Cheyenne Office can be obtained at: http://deq.state.wy.us. The EPA is proposing to approve this update.

    The submittal also lists a new minor source baseline date of December 12, 2012 for fine particulate for Sweetwater County. On October 20, 2010, the EPA published a final rulemaking titled “Prevention of Significant Deterioration (PSD) for PM2.5—Increments, Significant Impact Levels (SILs) and Significant Monitoring Concentration” (75 FR 64864). This rulemaking revised 40 CFR 51.166(b)(14)(ii) (Definition of Minor Source Baseline Date) to add a trigger date of October 20, 2011 for PM2.5. A minor source baseline date means the earliest date after the trigger date on which a major stationary source or a major modification subject to 40 CFR 52.21, or 40 CFR 51.166, submits a complete permit application under the relevant PSD regulations. The EPA is proposing to approve Sweetwater County's minor source baseline date of December 12, 2012.

    The submittal also proposed to update Chapter 6, Section 14, Incorporation by reference, to adopt by reference from the July 1, 2013 CFR. This submittal and previously submitted updates to Section 14, Incorporation by reference have been superseded by a November 6, 2015 rulemaking (81 FR 35271). The EPA is not acting on any updates to Chapter 6, Section 14, Incorporation by reference.

    November 6, 2015 Submittal

    The November 6, 2015 submittal proposes to revise Chapter 2, Section 2, Ambient standards for particulate matter, which establishes standards of ambient air quality for particulate matter as necessary to protect public health and welfare. This revision updates the primary ambient air quality standards for PM2.5 to reflect federal updates that went into effect in January 2013. The updated primary PM2.5 standard is 12 µg/m3 annual arithmetic mean concentration, which is lowered from its previous level of 15 µg/m3. The EPA proposes to approve this revision.

    The submittal also proposes to update Chapter 12, Incorporation by reference, to adopt by reference the July 1, 2014 CFR. This submittal supersedes previously submitted updates to the Chapter 12, Incorporation by reference. The EPA proposes to approve this submittal.

    February 6, 2014, 2008 Ozone NAAQS Infrastructure Certification

    On March 12, 2008, the EPA promulgated a new NAAQS for ozone, revising the levels of the primary and secondary 8-hour ozone standards from 0.08 parts per million (ppm) to 0.075 ppm (73 FR 16436, March 27, 2008).

    Under Sections 110(a)(1) and (2) of the CAA, states are required to submit infrastructure SIPs to ensure their SIPs provide for implementation, maintenance and enforcement of the NAAQS. These submissions must contain any revisions needed for meeting the applicable SIP requirements of Section 110(a)(2), or certifications that their existing SIP already meet those requirements. The EPA is acting upon the certification from Wyoming that addresses the infrastructure requirements of CAA Sections 110(a)(1) and 110(a)(2)(C) and (D)(i)(II) prong 3 for the 2008 ozone NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA Section 110(a)(1). Pursuant to Section 110(a)(1), states must make SIP submissions “within three 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),” 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 the EPA taking any action other than promulgating a new or revised NAAQS.

    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, substantive program provisions, and both authority and substantive programs. The EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action 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 the EPA's policies addressing such excess emissions; (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 the EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of the EPA's “Final NSR Improvement Rule,” 67 FR 80186, Dec. 31, 2002, as amended by 72 FR 32526, June 13, 2007 (“NSR Reform”).

    CAA Section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of Section 110(a)(1) and are therefore not addressed in this action. These elements relate to part D of Title I of the CAA, and submissions to satisfy them are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the same time nonattainment area plan requirements are due under Section 172. The two elements are: (1) Section 110(a)(2)(C) to the extent it refers to permit programs (known as “nonattainment NSR”) required under part D; and (2) Section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure elements related to the nonattainment NSR portion of Section 110(a)(2)(C) or related to 110(a)(2)(I). Furthermore, the EPA interprets the CAA Section 110(a)(2)(J) provision on visibility as not being triggered by a new NAAQS because the visibility requirements in part C, title 1 of the CAA are not changed by a new NAAQS.

    In this action, the EPA is addressing 110(a)(2)(C), programs for enforcement of control measures and for construction or modification of stationary sources, and 110(a)(2)(D)(i)(II) element 3 for the 2008 ozone NAAQS. The EPA is addressing all other elements for the 2008 ozone NAAQS in a separate rulemaking.

    The Wyoming Department of Environmental Quality (Department or WDEQ) submitted certification of Wyoming's infrastructure SIP for the 2008 ozone NAAQS on February 6, 2014. Wyoming's infrastructure certification demonstrates how the State, where applicable, has plans in place that meet the requirements of Section 110 for the 2008 ozone NAAQS. The Wyoming Air Quality Standards and Regulations (WAQSR) referenced in the State's submittal are publicly available at http://soswy.state.wy.us/Rules/default.aspx. Air pollution control regulations and statutes that have been previously approved by the EPA and incorporated into the Wyoming SIP can be found at 40 CFR 52.2620.

    1. Program for enforcement of control measures: Section 110(a)(2)(C) requires SIPs to “include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that [NAAQS] are achieved, including a permit program as required in parts C and D.”

    To generally meet the requirements of Section 110(a)(2)(C), the State is required to have SIP-approved PSD, nonattainment NSR, and minor NSR permitting programs that are adequate to implement the 2008 ozone NAAQS. As explained elsewhere in this action, the EPA is not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D of the Act. The EPA is evaluating the State's PSD program as required by part C of the Act, and the State's minor NSR program as required by Section 110(a)(2)(C).

    Enforcement of Control Measures Requirement

    Wyoming's Rule (02) II, Legal Authority, which the EPA approved into Wyoming's SIP,1 allows the State to enforce applicable laws, regulations, and standards; to seek injunctive relief; and to provide authority to prevent construction, modification, or operation of any stationary source at any location where emissions from such source will prevent the attainment or maintenance of a national standard or interfere with prevention of significant deterioration requirements.

    1See 40 CFR 52.2620(e), Rule No. (02) II; 41 FR 36652 (Aug. 31, 1976) (approving Wyoming's revisions to its SIP).

    PSD Requirements

    With respect to Element (C), the EPA interprets the CAA to require each state to make an infrastructure SIP submission for a new or revised NAAQS demonstrating that the air agency has a complete PSD permitting program meeting the current requirements for all regulated NSR pollutants. The requirements of Element D(i)(II) may also be satisfied by demonstrating the air agency has a complete PSD permitting program that correctly addresses all regulated NSR pollutants. Wyoming has shown that it currently has a PSD program in place that covers all regulated NSR pollutants, including greenhouse gases (GHGs).

    On July 25, 2011 (76 FR 44265), we approved a revision to the Wyoming PSD program that addressed the PSD requirements of the Phase 2 Ozone Implementation Rule promulgated on November 29, 2005 (70 FR 71612). As a result, the approved Wyoming PSD program meets the current requirements for ozone.

    With respect to GHG's, on June 23, 2014, the United States Supreme Court addressed the application of PSD permitting requirements to GHG emissions. Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427 (2014). The Supreme Court held that the EPA may not treat GHGs as an air pollutant for purposes of determining whether a source is a major source required to obtain a PSD permit. The Court also held that the EPA could continue to require that PSD permits, otherwise required based on emissions of pollutants other than GHGs (anyway sources) contain limitations on GHG emissions based on the application of Best Available Control Technology (BACT).

    In accordance with the Supreme Court decision, on April 10, 2015, the U.S. Court of Appeals for the District of Columbia Circuit (the D.C. Circuit) in Coalition for Responsible Regulation v. EPA, 606 F. App'x. 6, at *7-8 (D.C. Cir. April 10, 2015), issued an amended judgment vacating the regulations that implemented Step 2 of the EPA's PSD and Title V Greenhouse Gas Tailoring Rule, but not the regulations that implement Step 1 of that rule. Step 1 of the Tailoring Rule covers sources that are required to obtain a PSD permit based on emissions of pollutants other than GHGs. Step 2 applied to sources that emitted only GHGs above the thresholds triggering the requirement to obtain a PSD permit. The amended judgment preserves, without the need for additional rulemaking by the EPA, the application of the BACT requirement to GHG emissions from Step 1 or “anyway” sources.2 With respect to Step 2 sources, the D.C. Circuit's amended judgment vacated the regulations at issue in the litigation, including 40 CFR 51.166(b)(48)(v), “to the extent they require a stationary source to obtain a PSD permit if greenhouse gases are the only pollutant (i) that the source emits or has the potential to emit above the applicable major source thresholds, or (ii) for which there is a significant emission increase from a modification.”

    2See 77 FR 41066 (July 12, 2012) (rulemaking for definition of “anyway” sources).

    The EPA is planning to take additional steps to revise the federal PSD rules in light of the Supreme Court and subsequent D.C. Circuit opinion. Some states have begun to revise their existing SIP-approved PSD programs in light of these court decisions, and some states may prefer not to initiate this process until they have more information about the planned revisions to the EPA's PSD regulations. The EPA is not expecting states to have revised their PSD programs in anticipation of the EPA's planned actions to revise its PSD program rules in response to the court decisions.

    At present, the EPA has determined that Wyoming's SIP is sufficient to satisfy Elements (C) and (D)(i)(II) prong 3 with respect to GHGs. This is because the PSD permitting program previously approved by the EPA into the SIP continues to require that PSD permits issued to “anyway sources” contain limitations on GHG emissions based on the application of BACT. The EPA most recently approved revisions to Wyoming's PSD program on December 6, 2013 (78 FR 73445). The approved Utah PSD permitting program still contains some provisions regarding Step 2 sources that are no longer necessary in light of the Supreme Court decision and D.C. Circuit amended judgment. Nevertheless, the presence of these provisions in the previously-approved plan does not render the infrastructure SIP submission inadequate to satisfy Elements (C) and (D)(i)(II). The SIP contains the PSD requirements for applying the BACT requirement to greenhouse gas emissions from “anyway sources” that are necessary at this time. The application of those requirements is not impeded by the presence of other previously-approved provisions regarding the permitting of Step 2 sources. Accordingly, the Supreme Court decision and subsequent D.C. Circuit judgment do not prevent the EPA's approval of Wyoming's infrastructure SIP as to the requirements of Elements (C) and (D)(i)(II) prong 3.

    Finally, we evaluate the PSD program with respect to current requirements for PM2.5. In particular, on May 16, 2008, the EPA promulgated the rule, “Implementation of the New Source Review Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5)” (73 FR 28321) (2008 Implementation Rule). On October 20, 2010 the EPA promulgated the rule, “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)” (75 FR 64864). The EPA regards adoption of these PM2.5 rules as a necessary requirement when assessing a PSD program for the purposes of Element (C).

    On January 4, 2013, the U.S. Court of Appeals, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir.), issued a judgment that remanded the EPA's 2007 and 2008 rules implementing the 1997 PM2.5 NAAQS. The court ordered the EPA to “repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” Id. at 437. Subpart 4 of part D, Title 1 of the CAA establishes additional provisions for particulate matter nonattainment areas.

    The 2008 Implementation Rule addressed by Natural Resources Defense Council, “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM2.5),” (73 FR 28321, May 16, 2008), promulgated NSR requirements for implementation of PM2.5 in nonattainment areas (nonattainment NSR) and attainment/unclassifiable areas (PSD). As the requirements of Subpart 4 only pertain to nonattainment areas, the EPA does not consider the portions of the 2008 Implementation Rule that address requirements for PM2.5 attainment and unclassifiable areas to be affected by the court's opinion. Moreover, the EPA does not anticipate the need to revise any PSD requirements promulgated in the 2008 Implementation Rule in order to comply with the court's decision. Accordingly, the EPA's proposed approval of Wyoming's infrastructure SIP as to Elements (C) or (D)(i)(II) prong 3 with respect to the PSD requirements promulgated by the 2008 Implementation rule does not conflict with the court's opinion.

    The court's decision with respect to the nonattainment NSR requirements promulgated by the 2008 Implementation Rule also does not affect the EPA's action on the present infrastructure action. The EPA interprets the Act to exclude nonattainment area requirements, including requirements associated with a nonattainment NSR program, from infrastructure SIP submissions due three years after adoption or revision of a NAAQS. Instead, these elements are typically referred to as nonattainment SIP or attainment plan elements, which would be due by the dates statutorily prescribed under subpart 2 through 5 under part D, extending as far as 10 years following designations for some elements.

    The second PSD requirement for PM2.5 is contained in the EPA's October 20, 2010 rule, “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)” (75 FR 64864). The EPA regards adoption of the PM2.5 increments as a necessary requirement when assessing a PSD program for the purposes of Element (C). On July 25, 2011 (76 FR 44265), the EPA approved SIP revisions that revised Wyoming's PSD program which incorporated the 2008 Implementation Rule. The EPA approved revisions to reflect the 2010 PM2.5 Increment Rule on December 6, 2013 (78 FR 73445). Therefore, Wyoming's SIP approved PSD program meets current requirements for PM2.5. As a result, the EPA is proposing to approve Wyoming's infrastructure SIP for the 2008 ozone NAAQS with respect to the requirement in Section 110(a)(2)(C) to include a permit program in the SIP as required by part C of the Act.

    Minor NSR

    The State has a SIP-approved minor NSR program, adopted under Section 110(a)(2)(C) of the Act. The minor NSR program is found in Chapter 6, Section 2 of the WAQSR. The EPA previously approved Wyoming's minor NSR program into the SIP (at that time as Chapter 1, Section 21), and has subsequently approved revisions to the program, and at those times there were no objections to the provisions of this program. (See, for example, 47 FR 5892, February 9, 1982). Since then, the State and the EPA have relied on the State's existing minor NSR program to assure that new and modified sources not captured by the major NSR permitting program do not interfere with attainment and maintenance of the NAAQS.

    The EPA is proposing to approve Wyoming's infrastructure SIP for the 2008 ozone NAAQS with respect to the general requirement in Section 110(a)(2)(C) to include a program in the SIP that regulates the enforcement, modification, and construction of any stationary source as necessary to assure that the NAAQS are achieved.

    2. Interstate Transport: CAA Section 110(a)(2)(D)(i)(I) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from emitting any air pollutant in amounts that will contribute significantly to nonattainment, or interfere with maintenance, of the NAAQS in another state (known as the “good neighbor” provision). The two provisions of this section are referred to as prong 1 (significant contribution to nonattainment) and prong 2 (interfere with maintenance). Section 110(a)(2)(D)(i)(II) requires SIPs to contain adequate provisions to prohibit emissions that will interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality (prong 3) or to protect visibility (prong 4). In this action, the EPA is addressing prong 3 with regard to the 2008 ozone NAAQS. The EPA will address all other transport prongs in a separate rulemaking.

    With regard to the PSD portion of CAA Section 110(a)(2)(D)(i)(II), this requirement may be met by a state's confirmation in an infrastructure SIP submission that new major sources and major modifications in the state are subject to a comprehensive EPA approved PSD permitting program in the SIP that applies to all regulated new source review (NSR) pollutants and that satisfies the requirements of the EPA's PSD implementation rules.3 As noted in the discussion for infrastructure Element (C) earlier in this notice, the EPA is proposing to approve CAA Section 110(a)(2) Element (C) for Utah's infrastructure SIP for the 2008 ozone NAAQS with respect to PSD requirements. As discussed in detail in that section, Wyoming's SIP meets the current PSD-related requirements of Section 110(a)(2)(C).

    3 See EPA's “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and (2),” September 13, 2013, at 31.

    In-state sources not subject to PSD for a particular NAAQS because they are in a nonattainment area for that standard may also have the potential to interfere with PSD in an attainment or unclassifiable area of another state.4 One way a state may satisfy prong 3 with respect to these sources is by citing an air agency's EPA-approved nonattainment NSR provisions addressing any pollutants for which the state has designated nonattainment areas. Wyoming has a SIP-approved nonattainment NSR program which ensures regulation of major sources and major modifications in nonattainment areas, and therefore satisfies prong 3 with regard to this requirement.5

    4 Id. at 31.

    5 See WAQSR Chapter 6, Section 13.

    The EPA is proposing to approve the infrastructure SIP submission with regard to the requirements of prong 3 of Section 110(a)(2)(D)(i)(II) for the 2008 Ozone NAAQS.

    III. What action is the EPA taking today?

    The EPA is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of Wyoming on May 28, 2015 and November 6, 2015. The amendments update the version of the CFR incorporated by reference into the rules of the State of Wyoming for Chapter 2, Ambient Standards for Particulate Matter, Section 12; and Chapter 3, General Emission Standards, Section 9. The EPA is also proposing to approve updates to a citation to a Federal Register article (i.e., Federal Register notice) under the definition of “tpy CO2 equivalent emissions (CO2e),” and a new minor source baseline date for fine particulate for Sweetwater County of December 12, 2012 into WAQSR Chapter 6, Section 4. The EPA proposes to approve an update to the primary air quality standards for particulate matter (PM)2.5 that reflects federal updates that went into effect in January 2013 into WAQSR Chapter 2, Section 2. The EPA proposes to approve infrastructure elements (C) and (D)(i)(II)prong for the 2008 ozone NAAQS from the State's February 6, 2014 certification. Finally, the EPA is not taking action on the Chapter 6, Permitting Requirements, Section 14 portion of the May 24, 2012 submittal, the March 8, 2013 submittal, or the May 28, 2015 submittal because they have been superseded by a November 6, 2015 submittal (81 FR 35271).

    IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Administrative Rules of Wyoming pertaining to General Emission Standards, Prevention of Significant Deterioration and Ambient Standards for PM2.5, as discussed in Section II. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or at the EPA Region 8 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    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).

    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.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: July 28, 2016. Shaun L. McGrath, Regional Administrator, Region 8.
    [FR Doc. 2016-18869 Filed 8-11-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2016-0016; FRL-9950-37-Region 8] Approval and Promulgation of Air Quality Implementation Plans; State of Colorado; Motor Vehicle Inspection and Maintenance, Clean Screen Program and the Low Emitter Index, On-Board Diagnostics, and Associated Revisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing approval of three State Implementation Plan (SIP) revisions submitted by the State of Colorado. The revisions involve amendments to Colorado's Regulation Number 11 “Motor Vehicle Emissions Inspection Program.” The revisions address the implementation of the Low Emitter Index component of Regulation No. 11's Clean Screen Program, the implementation of the On-Board Diagnostics component of Regulation No. 11, and several other associated revisions. The EPA is proposing approval of these SIP revisions in accordance with the requirements of section 110 of the Clean Air Act (CAA).

    DATES:

    Written comments must be received on or before September 12, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R08-OAR-2016-0016 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:

    Tim Russ, Air Program, EPA, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-6479, [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. General Information II. Background III. What was the State's process? IV. EPA's Evaluation of the State's 2007 Revisions to the Low Emitter Index, Part A, Part C, Part F, and Appendix A V. EPA's Evaluation of the State's 2012 Revisions to the On-Board Diagnostics Test, the Seven Model Year Emissions Test Exemption, the Gas Cap Retest, Part A, Part B, Part C, Part F, and Part G VI. EPA's Evaluation of the State's 2013 Revisions to Part A, Part C, Appendix A, and Appendix B VII. Conclusion VIII. Consideration of Section 110(l) of the Clean Air Act IX. Proposed Action X. Incorporation by Reference XI. Statutory and Executive Order Reviews I. General Information

    What should I consider as I prepare my comments for the EPA?

    1. Submitting Confidential Business Information (CBI). Do not submit CBI to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to 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.

    2. Tips for preparing your comments. When submitting comments, remember to:

    • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register volume, date, and page number);

    • Follow directions and organize your comments;

    • Explain why you agree or disagree;

    • Suggest alternatives and substitute language for your requested changes;

    • Describe any assumptions and provide any technical information and/or data that you used;

    • If you estimate potential costs or burdens, explain how you arrived at your estimate in

    sufficient detail to allow for it to be reproduced;

    • Provide specific examples to illustrate your concerns, and suggest alternatives;

    • Explain your views as clearly as possible, avoiding the use of profanity or personal threats; and,

    • Make sure to submit your comments by the comment period deadline identified.

    II. Background

    In this action, the EPA is proposing approval of SIP revisions to Regulation No. 11 contained in three submittals from Colorado. The State's submittals were dated June 11, 2008, March 15, 2013, and March 3, 2014. Much of the content of the revisions involved minor updates to several sections of Regulation No. 11 and deletion of obsolete language. The following background discussion involves those revisions of greater significance:

    a.) Colorado's 2007 Revisions to Regulation No. 11 for the Implementation of the Low Emitter Index (LEI) Portion of the Clean Screen Program Contained in Regulation No. 11

    Colorado's Regulation No. 11 (hereafter “Reg. No. 11”) addresses the implementation of the State's motor vehicle inspection and maintenance (I/M) program. The I/M program consists of an “enhanced” component that utilizes a dynamometer-based EPA IM240 test for 1982 and newer light-duty gasoline vehicles 1 and a two-speed idle test (TSI) 2 for 1981 and older light-duty gasoline vehicles. To improve motorist convenience and reduce program implementation costs, the State also administers a remote sensing-based “Clean Screen” program component of the I/M program. Remote sensing is a method for measuring vehicle emissions, while simultaneously photographing the license plate, when a vehicle passes through infrared or ultraviolet beams of light. Owners of vehicles meeting the Clean Screen criteria are notified by the County Clerk that their vehicles have passed the motor vehicle inspection process and are exempt from their next regularly scheduled IM240 test.

    1 See 40 CFR part 51, subpart S for a complete description of EPA's IM240 test. The IM240 test is essentially an enhanced motor vehicle emissions test to measure mass tailpipe emissions while the vehicle follows a computer generated driving cycle trace for 240 seconds and while the vehicle is on a dynamometer.

    2 See 40 CFR part 51, subpart S for a complete description of EPA's two-speed idle test. The two-speed idle test essentially measures the mass tailpipe emissions of a stationary vehicle; one reading is at a normal idle of approximately 700 to 800 engine revolutions per minute (RPM) and one reading at 2,500 RPM.

    The Clean Screen program component of Colorado's Reg. No. 11 was originally approved, for implementation in the Metro-Denver area, with the EPA's approval of the original Denver carbon monoxide (CO) redesignation to attainment and the maintenance plan (see: 66 FR 64751, December 14, 2001). The Clean Screen criteria that was approved in 2001 by the EPA (see: 66 FR 64751, December 14, 2001) required two valid passing remote sensing readings on different days or from different sensors, that met the applicable emissions reading requirements in Part F of Reg. No. 11, within a twelve-month period in order to clean-screen a vehicle.

    Colorado revised Reg. No. 11 to expand the definition and requirements for a “clean-screened vehicle” to also include vehicles identified as low emitting vehicles in the state-determined Low Emitting Index (LEI) which have one passing remote sensing reading, prior to the vehicle's registration renewal date. As part of the LEI process, the Colorado Department of Public Health and Environment (CDPHE), Air Pollution Control Division (hereinafter, the “Division”) develops an LEI on or before July 1st of each year. The LEI is based on a tabulation of the previous calendar year's IM240 inspection program results for specific make, model, and model year vehicles that passed IM240 vehicle inspections the previous year at a minimum rate of a 98%.

    By a letter dated June 11, 2008, the Governor of Colorado submitted the above 2007 Reg. No. 11 LEI revisions and other minor revisions involving changes/additions to the definitions in Reg. No. 11and the addition of Attachment 1 to the Technical Specifications in Appendix A. These SIP revisions are discussed in further detail below in section IV.

    b.) Colorado's 2012 Revisions to Regulation No. 11 for the Implementation of the On-Board Diagnostics Test Requirements Contained in Regulation No. 11 and the Seven Model Year I/M Test Exemption

    As noted above, Colorado's Reg. No. 11 addresses the implementation of a motor vehicle I/M program that consists of a an “enhanced” component IM240 test for 1982 and newer light-duty vehicles and a TSI test for 1981 and older light-duty gas vehicles. In addition, and beginning in January 2015, Colorado also began implementing an On-Board Diagnostics (OBD) test for certain model year vehicles. An OBD I/M test essentially means the electronic retrieval, by connecting to the computer port data link connector (DLC) in the vehicle with an OBD test analyzer, of information from a vehicle's computer system. The electronic information retrieved addresses items such as stored readiness status, diagnostic trouble codes (DTC), malfunction indicator light (MIL) illumination and other data from a vehicle's OBD system. Electronically interrogating a vehicle's OBD system allows for the determination of whether any emission related DTCs are present and if the MIL is commanded on. Should these aspects of an OBD test be present, that would indicate the existence of an emissions related malfunction with the vehicle being tested.

    In addition, Colorado also extended the Reg. No. 11 exemption from I/M testing for new vehicles from four years to seven years. This revision was based on Colorado's gathering of emissions testing information over a period of several years which demonstrated that historically new and newer vehicles typically did not fail the IM240 or OBD emissions test within the first seven years of the vehicle's life.

    By a letter dated March 15, 2013, the Governor of Colorado submitted the above 2012 Reg. No. 11 OBD test requirements, the seven year test exemption, and other minor revisions. These SIP revisions are discussed in further detail below in section V.

    c.) Colorado's 2013 Revisions to Regulation No. 11, Appendix A, Incorporation by Reference of Technical Materials, the Addition of New Technical Information/Requirements, and Minor Revisions to Appendix B

    Colorado further revised Reg. No. 11 by updating Appendix A and Appendix B to remove text and incorporate by reference certain Attachments to Appendix A, to add new language to Appendix A, and to add new language and remove obsolete language in Appendix B.

    Appendix A was revised to remove the text of three technical document attachments and to note that the documents are available at CDPHE's Emissions Technical Center Procedures Manual. The technical documents are incorporated by reference into Reg. No. 11. Appendix A. The technical documents that are incorporated by reference into Reg. No. 11 are: Attachment I “PDF 1000 Scanner,” Attachment II “Thermal Transfer Printer,” and Attachment III “Colorado Automobile Dealers Transient Mode Test Analyzer System.” Appendix A was also revised by adding Attachment V “Specifications for Colorado On-Board Diagnostic (OBD) Stand-Alone Analyzer.”

    Appendix B, which is entitled “Standards and Specifications for Calibration/Span Gas Suppliers,” was revised with updated language in Section 1 “Definitions,” Section 2 “Basic & Enhanced Idle Air Program/Technical Requirements,” Section 3, “Calibration/Span Gas Approval & Labeling,” Section 4 “Cylinder Tracking & Recall,” Section 5 “Enhanced IM & IG 240 Air Program/Technical Requirements,” Section 6 “Colorado Approval Process,” and Section 7 “Blender Facility Requirements & Documentation.” Obsolete language was also removed from Appendix B.

    By a letter dated March 3, 2014, the Governor of Colorado submitted the above 2013 Reg. No. 11 revisions to Appendix A and Appendix B. These SIP revisions are discussed in further detail below in section VI.

    III. What was the State's process?

    Section 110(a)(2) of the CAA requires that a state provide reasonable notice and public hearing before adopting a SIP revision and submitting it to us.

    a.) The State's June 11, 2008 SIP Submittal

    On June 21, 2007 the Colorado Air Quality Control Commission (AQCC) conducted a public hearing to consider the adoption of revisions and additions to the Colorado SIP. The revisions affecting the SIP involved Reg. No. 11, the Clean Screen sections of Reg. No. 11, the LEI portion of the Clean Screen program, and associated revisions. After reviewing written comments, dated April 17, 2007, received from Rocky Mountain Clean Air Action and after conducting a public hearing, the AQCC adopted the proposed revisions to Reg. No. 11 on June 21, 2007. The SIP revisions became State effective on August 30, 2007.

    We evaluated the State's June 11, 2008 submittal for Reg. No. 11 of the SIP and determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. By a letter dated October 14, 2008, we advised James B. Martin, Executive Director of the CDPHE, that the SIP revisions submittal was deemed to have met the minimum “completeness” criteria found in 40 CFR part 51, Appendix V.

    b.) The State's March 15, 2013 SIP Submittal

    On December 20, 2012, the AQCC conducted a public hearing to consider the adoption of revisions and additions to the Colorado SIP. The revisions affecting the SIP involved Reg. No. 11, the OBD program, the seven model year exemption from I/M testing, and associated revisions. After reviewing one supportive email written comment, dated December 16, 2012, received from Bob Armott and after conducting a public hearing, the AQCC adopted the proposed revisions to Reg. No. 11 on December 20, 2012. The SIP revisions became State effective on February 15, 2013.

    We evaluated the State's March 15, 2013 submittal for Reg. No. 11 of the SIP and determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. By operation of law under section 110(k)(1)(B) of the CAA, the State's March 15, 2013 submittal was deemed complete on September 15, 2013.

    c.) The State's March 3, 2014 SIP Submittal

    On November 21, 2013, the AQCC conducted a public hearing to consider the adoption of revisions and additions to the Colorado SIP. The revisions affecting the SIP included updating Appendix A and Appendix B to Reg. No. 11 to remove text, incorporate by reference certain Attachments to Appendix A, to add new language to Appendix A, and to add new language and remove obsolete language in Appendix B. After conducting a public hearing, which did not have any public comments, the AQCC adopted the proposed revisions to Reg. No. 11 on November 21, 2013. The SIP revisions became State effective on December 30, 2013.

    We evaluated the State's March 3, 2014 submittal for Reg. No. 11 of the SIP and determined that the State met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA. By operation of law under section 110(k)(1)(B) of the CAA, the State's March 3, 2014 submittal was deemed complete on September 3, 2014.

    IV. EPA's Evaluation of the State's 2007 Revisions to the Low Emitter Index, Part A, Part C, Part F, and Appendix A a.) Evaluation of the Clean Screen Program and LEI Component

    We approved the Clean Screen program component of Colorado's Reg. No. 11, for implementation in the Metro-Denver area with our approval of the original Denver carbon monoxide (CO) redesignation to attainment and the associated maintenance plan (see: 66 FR 64751, December 14, 2001). Additional discussion of the Clean Screen program was provided in our August 22, 2001 proposed rule (66 FR 44097). In evaluating the Clean Screen program for the maintenance plan, the State used EPA's MOBILE5b motor vehicle emissions calculation model and the MOBILE model's remote sensing program credit utility dated 1996 3 and revised in 1998.4 Further discussion is also provided in the State's Technical Support Document (TSD) for the 2001 CO redesignation to attainment, which is part of the EPA's final rule hard copy docket, and is also available from the State on-line at: http://www.colorado.gov/airquality/tech_doc_repository.aspx?action=open&file=codenfnl.pdf).

    3 “User Guide and Description For Interim Remote Sensing Program Utility,” EPA/AA/AMD/EIG/96-01, dated September, 1996.

    4 “Program User Guide for Interim Vehicle Clean Screening Credit Utility,” Draft Report, EPA420-P-98-007, dated May, 1998.

    For the Reg. No. 11 revisions that we approved on December 14, 2001, the State used the above tools and other data to evaluate the Clean Screen program for its implementation in the Metro-Denver area. Based on this evaluation and the review of information for the additional implementation of a Clean Screen program in Fort Collins (located in Larimer County, Colorado) and Greeley (located in Weld County, Colorado), the state concluded there would be an approximate 4% disbenefit for CO emissions and a 7% disbenefit for hydrocarbon (HC) emissions if it was assumed that 35% of the eligible vehicles were clean-screened.5

    5 “Revised Final Economic Impact Analysis for Inspection and Maintenance per C.R.S. 25-7-110.5(4)(I), Cost Effectiveness Economic Impact Analysis, 2/1/99.”

    We note that the version of Reg. No. 11 that the EPA approved on December 14, 2001 included the Clean Screen criteria which required an eligible vehicle for inspection to have at least two consecutive passing remote sensing emissions readings performed on different days, or at different approved Clean Screen inspection sites, prior to its registration renewal date.

    With the 2007 Reg. No. 11 revisions, the AQCC adopted modifications as proposed by the Division that expanded the Clean Screen criteria to also include vehicles with one passing remote sensing reading prior to its registration date and that the vehicle is identified as a low emitter on the LEI. To address the LEI criteria of this revised Clean Screen process, the Division develops a low emitting vehicle index on or before July 1st of each year based on a tabulation of the previous calendar year's IM240 inspection program results for specified make, model and model year vehicles. This LEI is comprised of specific make, model and model year vehicles that passed IM240 vehicle inspections the previous year at a minimum of a 98% rate. However, in developing the LEI, the Division may use passing criteria greater than 98% if necessary to ensure that the use of the LEI is equivalent or better than the use of a second remote sensing measurement in terms of air quality benefits. This process is more fully detailed in the CPDHE May, 2007 document entitled “Development and Evaluation of Colorado's Low Emitter Index.”

    To assess the State's Clean Screen program and its LEI component, the EPA reviewed the available CDPHE Clean Screen annual reports for 2009,6 2011,7 2012,8 and 2013.9 The annual reports detailed the overall effectiveness of the Clean Screen program and also contained the results of the random 2% sampling for the LEI component. This sampling procedure involved retaining 2% of the vehicles which had been shown to pass one measurement with RSD equipment and been on the LEI index, and then requiring them to take an IM240 test for comparison. The data, including fleet coverage and emissions reduction retention, are presented below in Tables 1 and 2:

    6 “The Colorado Remote Sensing Program January-December, 2009,” Colorado Department of Public Health and Environment, July, 2010.

    7 “The Colorado Remote Sensing Program January-December, 2011,” Colorado Department of Public Health and Environment, November, 2012.

    8 “The Colorado Remote Sensing Program January-December, 2012,” Colorado Department of Public Health and Environment, December, 2013.

    9 “The Colorado Remote Sensing Program January-December, 2013,” Colorado Department of Public Health and Environment, September, 2014.

    Table 1—Total Vehicles Inspected and Vehicles Clean-Screened Year of clean screen report Total vehicles inspected Vehicles that were clean-screened Percent of total vehicles that were clean-screened
  • (%)
  • 2009 899,646 199,344 22.0 2011 1,156,949 246,768 21.3 2012 1,150,562 248,224 21.6 2013 1,184,875 233,760 19.7
    Table 2—Estimated Clean Screen Disbenefit—Based on Retained Emission Reductions Year of clean screen report Retained HC emission
  • reductions
  • (%)
  • Retained CO emission
  • reductions
  • (%)
  • Retained NOX* emission reductions
  • (%)
  • 2009 94.6 98.1 92.9 2011 96.1 98.1 97.3 2012 94.8 97.1 93.9 2013 97.3 96.7 97.6 Average Clean Screen Disbenefit 4.3 2.5 4.6 * Nitrogen Oxides.

    The data from the State's Clean Screen reports, as excerpted and presented in the above tables, demonstrate that the disbenefit from the Clean Screen program and its LEI component continue to be within the original estimates from the Reg. No. 11 revisions that we approved on December 14, 2001. Although those original 2001 disbenefit estimates (4% for CO, 7% for HC, and assuming 35% clean-screened vehicles) were prepared with then current tools, the Clean Screen program and LEI component continue to perform within those estimates. Also, from the above four years of Clean Screen annual reports that we evaluated, the State's Reg. No. 11 revisions original estimate of 35% of the fleet being clean-screened has not been achieved. Based on the four referenced Clean Screen reports, we note that 22% or less of the eligible vehicles have been clean-screened. Therefore, the actual emission reduction disbenefit has been less than predicted, as more vehicles have then been required to go through the IM240 test.

    b.) The Sections of Reg. No. 11 That Were Revised With the State's June 11, 2008 Submittal Were as Follows:

    1.) Part A, section II: Modify definition number 15 “Clean Screened Vehicle” to reflect the addition of the LEI; modify definition number 17 “Colorado '4” to clarify the use of the BAR 90 test analyzer systems for use after 1994; and add a new definition “Low Emitting Vehicle Index.” Renumber definitions number 18 and higher.

    2.) Part C, section XII: Modify section XIIA.3 regarding the requirements and procedures to clean screen an eligible vehicle and add section XIIE.4 regarding low emitting vehicles and the LEI.

    3.) Part F, section VI: Renumber section VI.B as VI.C; add new section VI.B.1 which requires the development of the LEI each year; add new section VI.B.2 which establishes the 98% minimum passing criteria for the LEI; and add new section VI.B.3 which allows the Division to use a greater than 98% passing criteria if needed to equate to a second RSD reading.

    4.) Appendix A, Technical Specifications, Attachment 1: Sections of Attachment 1 of the Technical Specifications contain the specifications for the PDF 1000 Scanner; some sections were unreadable and a full, retyped PDF 1000 Scanner section was provided.

    5.) Appendix A, Technical Specifications, Attachment 2: Sections of Attachment 2 of the Technical Specifications contain the specifications for the Thermal Transfer Printer; some sections were unreadable and a full, retyped Thermal Transfer Printer section was provided.

    The EPA notes that Part F, section III.A.2 of Reg. No. 11 was also provided with the State's June 11, 2008 submittal. This section contains IM240 test light duty vehicle emissions cutpoints for 1996 and newer vehicles (all in grams per mile). The CO, HC, and NOX entries for calendar year 2006 are incorrect as the State had previously provided an August 8, 2006 SIP revision submittal to remove these 2006 cutpoints (i.e., HC 0.6, CO 10.0, and NOX 1.5). The EPA approved the removal of these 2006 cutpoints on December 20, 2012 (77 FR 75388).

    V. EPA's Evaluation of the State's 2012 Revisions to the On-Board Diagnostics Test, the Seven Model Year Emissions Test Exemption, the Gas Cap Retest, Part A, Part B, Part C, Part F, and Part G a.) Evaluation of the OBD Test Provisions

    As we noted above, beginning in January 2015, Colorado began implementing an OBD test for certain model year vehicles. An OBD I/M test essentially means the electronic retrieval, by connecting to the computer port DLC in the vehicle with an OBD test analyzer, of information from a vehicle's computer system addressing items such as stored readiness status, DTCs, MIL illumination and other information from a vehicle's OBD system. Electronically interrogating a vehicle's OBD system allows for the determination if any emission related DTCs are present and if the MIL is commanded on. Should these aspects of an OBD test be present, that would indicate the existence of an emissions related malfunction with the vehicle being tested. More detailed information on OBD I/M testing is found in 40 CFR 85, Subpart W and at the EPA's Office of Transportation and Air Quality (OTAQ) Web site at: http://www3.epa.gov/obd/regtech/inspection.htm. In addition, further information is provided in the EPA's OBD rulemaking actions of April 5, 2001 (66 FR 18156), December 20, 2005 (70 FR 75403), and the EPA's document addressing performing OBD system checks as part of an I/M program.10

    10 “Performing Onboard Diagnostic System Checks as Part of a Vehicle Inspection and Maintenance Program,” EPA-420-R-01-015, dated June, 2001.

    The EPA has reviewed the OBD information in the State's Administrative documentation with its March 15, 2013 submittal, the OBD I/M test procedures contained in the Reg. No. 11 revisions to Part A, Part B, Part C, and Part F, all as detailed further below, and has concluded these revisions meet the requirements of 40 CFR 85, Subpart W for OBD I/M testing and the above cited EPA final rules.

    We note the Colorado OBD test provisions that were adopted in 2012 are applicable to a portion of the vehicles that are subject to an I/M test. The Reg. No. 11 revisions of 2012 also increased the new vehicle model year exemption from four to seven years, required OBD testing for the next four years (two inspection cycles for the 8th through 11th years), and required I/M 240 testing to commence with the third inspection cycle. In addition, the Reg. No. 11 revisions of 2012 allowed OBD testing for OBD equipped vehicles that were otherwise hard to test with the IM240 procedures (for example, too short of a wheelbase for the dynamometer treadmills, vehicles with very large or small wheel/tire combinations, and certain all-wheel-drive vehicles with very sensitive traction control systems), eliminated the visual inspection for 1996 and newer vehicles (because of OBD testing), and required a full emissions retest for vehicles initially failing the gas cap test. The 2012 Reg. No. 11 revisions retained other aspects of the I/M program including the use of Clean Screen technology to clean screen vehicles and annual TSI testing for 1981 and older vehicles.

    In consideration of the OBD testing component of the I/M program and the extension from four years to seven years to exempt new vehicles from I/M testing (discussed further below), the State prepared an estimated emissions benefit for the implementation of both the OBD testing and extended test exemption for seven years. This estimated emissions benefit information is contained in the Administrative Documentation, that is part of the State's March 15, 2013 SIP submittal, and is provided in the section entitled “SIP Emission Reduction Equivalency Demonstration.” The information notes that the Division conducted modeling of the 2012 revisions using the then current I/M program, as implemented in the seven Metro-Denver counties area, and the new program (OBD plus the seven-year testing exemption) as fully implemented in 2017. The year 2017 was selected as that would reflect the full completion of a two-year OBD inspection cycle on applicable vehicles. The Division's results are provided below in Table 3:

    Table 3—Seven County Metro-Denver Area I/M Program Estimated Reductions in 2017 TGH * NOX CO Current I/M Program 6.008 tpd ** 4.849 tpd 68.843 tpd. Revised I/M Program 6.052 5.004 64.916. *Total Gaseous Hydrocarbons. **tons per day (tpd).

    As shown in Table 3 above, implementation of the Reg. No. 11 provisions of the OBD component and the seven-year exemption from I/M testing were estimated to result in a small increase in CO emissions and a slight reduction in ozone precursor emissions (NOX and TGH).

    The EPA has evaluated this negligible increase in estimated CO emissions and has concluded it will not have a detrimental effect on the most recently-approved revised Metro-Denver CO maintenance plan (72 FR 46148, August 17, 2007).11 Our evaluation considered the negligible increase in CO emissions of four tpd to the CO mobile sources emission inventory data in the Metro-Denver maintenance plan for the projected 2015 mobile source CO emissions of 1,416 tpd and the maintenance plan's final maintenance year of 2021 projected mobile source CO emissions of 1,372.10 tpd. The four tpd emissions would be 0.28% of the 2015 CO mobile source emissions and 0.29% of the 2021 CO mobile source emissions. In addition, we also reviewed state-certified and EPA-reviewed ambient CO air quality monitoring data that are located in the EPA's Air Quality System (AQS) database. We reviewed data from 2007 through 2015. We did not find any exceedances or violations of the CO National Ambient Air Quality Standards (NAAQS). Therefore, the Metro-Denver CO maintenance area continues to demonstrate maintenance of the CO NAAQS.

    11 “Approval and Promulgation of Air Quality Implementation Plans; State of Colorado; Revised Denver and Longmont Carbon Monoxide Maintenance Plans, and Approval of Related Revisions,” 72 FR 46148, dated August 17, 2007.

    We do note that the slight reduction in ozone precursor emissions of NOX and TGH will be beneficial as the Metro-Denver/North Front Range (NFR) 2008 8-hour ozone NAAQS nonattainment area continues to work towards attainment of that NAAQS. Additional information regarding the Metro Denver/NFR ozone nonattainment area and its status can be found in the EPA's 2008 ozone NAAQS proposed SIP Requirements rule (80 FR 51992, August 27, 2015) 12 and final rule (81 FR 26697, May 4, 2016).13

    12 “Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of Several Areas Classified as Marginal for the 2008 Ozone National Ambient Air Quality Standards,” 80 FR 51992, dated August 27, 2015.

    13 “Determinations of Attainment by the Attainment Date, Extensions of the Attainment Date, and Reclassification of Several Areas Classified as Marginal for the 2008 Ozone National Ambient Air Quality Standards,” 81 FR 26697, dated May 4, 2016.

    b.) Evaluation of the Extension of the I/M Test Exemption From Four to Seven Years

    Included with the March 15, 2013 Reg. No. 11 SIP revision submittal were revised provisions to increase the I/M test exemption for newer vehicles from the EPA-approved four-year exemption to seven years. Additional information and rationale were provided by the Division in the “Air Quality Control Commission Regulation Number 11 Motor Vehicle Emissions Detailed Issue Statement” which was part of the SIP submittal's Administrative Documentation.

    The Division's AQCC issue statement noted that the revision to Reg. No. 11, to increase new vehicle model year exemptions from four years to seven years, was allowed by Colorado law which authorizes the AQCC to extend the duration for which new vehicles are exempt from I/M testing; 42-4-310(1)(a)(II)(C) and 42-4-306(8)(b), Colorado Revised Statute (C.R.S.)

    The Division noted that the revision to extend the new vehicle model year exemption results in an overall cost savings and increased convenience to the public for tests not performed. In addition, the Division stated that the population of vehicles in this age group, and their vehicle miles traveled, are relatively high; however, since they are relatively new vehicles, their emissions are lower than those of older vehicles.

    The Division concluded that increasing the duration of the new vehicle exemption increases emissions from the entire fleet. However, the EPA notes that with this particular revision to Reg. No. 11, the State simultaneously included revisions to Reg. No. 11 to initiate OBD testing requirements for applicable vehicles. As discussed above and as presented in Table 3 above, the net result of the implementation of both the seven-year extended exemption for I/M test and OBD testing showed a negligible increase of CO emissions and a slight decrease in NOX and TGH emissions. Based on our above analysis of the Metro-Denver CO maintenance plan and relevant ambient CO air quality monitoring data, the EPA finds that the increase in the new vehicle seven-year I/M test exemption will not have an adverse effect on the approved revised Metro-Denver CO maintenance plan (72 FR 46148, August 17, 2007). We also find that the emissions from the revised seven-year I/M test exemption are offset by the additional reduction in ozone precursor emissions of NOX and TGH realized through the State's implementation of OBD testing that covers the Metro-Denver/NFR 2008 8-hour ozone NAAQS nonattainment area.

    c.) Gas Cap Full Retest Clarification and Other Minor Non-Substantive Revisions

    There was a clarification to the gas cap test requirements and several other minor revisions included with the March 15, 2013 Reg. No. 11 SIP revision submittal.

    The state revised Reg. No. 11 to clarify that, in accordance with federal law, a full I/M retest is required after a test failure due to the lack of a gas cap or a faulty gas cap. The EPA notes that missing or malfunctioning gas caps automatically cause a test failure and require replacement of the cap and then a full emissions retest. The full retest is necessary because the gas cap seals and pressurizes the entire fuel evaporative emissions control system. If other components of the evaporative system are functio