Federal Register Vol. 81, No.37,

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On March 8, 2012, Lufthansa Technik AG applied for a supplemental type certificate for large, non-structural glass panels in the passenger compartment in a Boeing Model 747-8 airplane. The Model 747-8 airplane is a derivative of the Boeing Model 747-400 airplane currently approved under type certificate no. A20WE. The airplane, as modified by Lufthansa Technik AG, is a four-engine, jet-transport airplane that will have a maximum takeoff weight of 970,000 lbs, capacity for 24 crewmembers, and taxi, takeoff, and landing seating for 143 passengers.

The certification basis for the Boeing Model 747-8 airplane, as defined in type certificate no. A20WE, is title 14, Code of Federal Regulations (14 CFR) part 25 as amended by amendments 25-1 through 25-120, with exceptions for structures and systems that were unchanged from the 747-400 design.

Under the provisions of § 21.101, Lufthansa Technik AG must show that the Model 747-8 airplane, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

The regulations listed in the type certificate are commonly referred to as the “original type certification basis.”

In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 747-8 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model 747-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

Lufthansa Technik AG is modifying a Boeing Model 747-8 airplane to install a head-of-state interior arrangement. This airplane, as modified, will have a novel or unusual design feature associated with the installation of large, non-structural glass panels in the cabin area of an executive interior occupied by passengers and crew. The installation of these glass items in the passenger compartment, which can be occupied during taxi, takeoff, and landing, is a novel or unusual design feature with respect to the material being installed. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature.

The use of glass has resulted in trade-offs between the one unique characteristic of glass—its capability for undistorted or controlled light transmittance, or transparency—and the negative aspects of the material, such as extreme notch-sensitivity, low fracture resistance, low modulus of elasticity, and highly variable properties. While reasonably strong, glass is nonetheless not a desirable material for traditional airplane applications because it is heavy (about the same density as aluminum), and when it fails, it breaks into extremely sharp fragments that have the potential for injury and have been known to be lethal. Thus the use of glass traditionally has been limited to windshields, and instrument and display transparencies. The regulations for certification of transport-category airplanes only address, thus only recognize, the use of glass in windshield or window applications. These regulations do address the adverse properties of glass, but even so, pilots are occasionally injured from shattered glass windshields. FAA policy allows glass on instruments and display transparencies.

Other installations of large, non-structural glass items have included the following:

• Glass panels integrated onto a stairway handrail closeout.

• Glass panels mounted in doors to allow visibility through the door when desired.

• Glass doors on some galley compartments containing small amounts of service items.

No specific regulations address the design and installation of large glass components in airplane passenger cabins. Existing requirements, such as §§ 25.561, 25.562, 25.601, 25.603, 25.613, 25.775, and 25.789, in the Boeing Model 747-8 airplane certification basis applicable to this supplemental type certificate project, provide some design standards appropriate for large glass component installations. However, additional design standards for non-structural glass augmenting the existing design are needed to complement the existing requirements. The addition of glass involved in this installation, and the potentially unsafe conditions caused by damage to such components from external sources, necessitate assuring that adequate safety standards are applied to the design and installation of the feature in Boeing Model 747-8 airplanes.

For purposes of these special conditions, a large glass component is defined as a glass component weighing 4 kg (9 lbs) or more. Groupings of glass items that individually weigh less than 4 kg, but collectively weigh 4 kg or more, also would need to be included. The proposed special conditions also apply when showing compliance with the applicable performance standards in the regulations for the installation of these components. For example, heat-release and smoke-density testing must not result in fragmentation of the component.

These proposed special conditions will reduce the hazards from breakage, or from these panels' potential separation from the cabin interior. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to Boeing Model 747-8 series airplanes. Should Lufthansa Technik AG apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A20WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

For large glass components installed in a cabin occupied by passengers or crew who are not otherwise protected from the injurious effects of failure of the glass installations, the Lufthansa Technik AG glass installations on this Boeing 747-8 airplane must meet the following conditions:

1. Material: The glass used must be tempered or otherwise treated to ensure that when fractured, it breaks into small pieces with relatively dull edges. This must be demonstrated by testing to failure.

2. Fragmentation: The glass-component installation must control the fragmentation of the glass to minimize the danger from flying glass shards or pieces. This must be demonstrated by impact and puncture testing to failure.

3. Component Strength: The glass component must be strong enough to meet the load requirements for all flight and landing loads, including any of the applicable emergency-landing conditions in subparts C & D of 14 CFR part 25. In addition, glass components that are located such that they are not protected from contact with cabin occupants must not fail due to abusive loading, such as impact from occupants stumbling into, leaning against, sitting on, or performing other intentional or unintentional forceful contact with the glass component. The effect of design details such as geometric discontinuities or surface finish, e.g., embossing, etching, etc., must be assessed.

4. Component Retention: The glass component, as installed in the airplane, must not come free of its restraint or mounting system in the event of an emergency landing. Both the directional loading and rebound conditions must be assessed. The effect of design details such as geometric discontinuities or surface finish, e.g., embossing, etching, etc., must be assessed.

5. Instructions for Continued Airworthiness: The instructions for continued airworthiness must reflect the method used to fasten the panel to the cabin interior and must ensure the reliability of the methods used, e.g., life limit of adhesives, or clamp connection. The applicant must define any inspection methods and intervals based upon adhesion data from the manufacturer of the adhesive, or upon actual adhesion-test data, if necessary.

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

On May 10, 2011, L-3 Communications Integrated Systems applied for a supplemental type certificate for large, non-structural glass panels in the passenger compartment in Boeing Model 747-8 airplanes. The Model 747-8 airplane is a derivative of the Boeing Model 747-400 airplane currently approved under type certificate no. A20WE. The airplane, as modified by L-3 Communications Integrated Systems, is a four-engine, jet-transport airplane that will have a maximum takeoff weight of 970,000 lbs, capacity for 24 crewmembers, and taxi, takeoff, and landing seating for 143 passengers.

The certification basis for the Boeing Model 747-8 airplane, as defined in type certificate no. A20WE, is title 14, Code of Federal Regulations (14 CFR) part 25 as amended by amendments 25-1 through 25-120, with exceptions for structures and systems that were unchanged from the 747-400 design.

Under the provisions of § 21.101, L-3 Communications Integrated Systems must show that the Model 747-8 airplane, as changed, continues to meet the applicable provisions of the regulations listed in type certificate no. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

The regulations listed in the type certificate are commonly referred to as the “original type certification basis.”

In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 747-8 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Model 747-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

L-3 Communications Integrated Systems is modifying a Boeing Model 747-8 airplane to install a head-of-state interior arrangement. This airplane, as modified, will have a novel or unusual design feature associated with the installation of large, non-structural glass panels in the cabin area of an executive interior occupied by passengers and crew. The installation of these glass items in the passenger compartment, which can be occupied during taxi, takeoff, and landing, is a novel or unusual design feature with respect to the material being installed. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature.

The use of glass has resulted in trade-offs between the one unique characteristic of glass—its capability for undistorted or controlled light transmittance, or transparency—and the negative aspects of the material, such as extreme notch-sensitivity, low fracture resistance, low modulus of elasticity, and highly variable properties. While reasonably strong, glass is nonetheless not a desirable material for traditional airplane applications because it is heavy (about the same density as aluminum), and when it fails, it breaks into extremely sharp fragments that have the potential for injury and have been known to be lethal. Thus the use of glass traditionally has been limited to windshields, and instrument or display transparencies. The regulations only address, and thus only recognize, the use of glass in windshield or window applications. These regulations do address the adverse properties of glass, but even so, pilots are occasionally injured from shattered glass windshields. FAA policy allows glass on instruments and display transparencies.

Other installations of large, non-structural glass items have included the following:

• Glass panels integrated onto a stairway handrail closeout.

• Glass panels mounted in doors to allow visibility through the door when desired.

• Glass doors on some galley compartments containing small amounts of service items.

No specific regulations address the design and installation of large glass components in airplane passenger cabins. Existing requirements, such as §§ 25.561, 25.562, 25.601, 25.603, 25.613, 25.775, and 25.789, in the Boeing Model 747-8 airplane certification basis applicable to this supplemental type certificate project, provide some design standards appropriate for large glass component installations. However, additional design standards for non-structural glass augmenting the existing design are needed to complement the existing requirements. The addition of glass involved in this installation, and the potentially unsafe conditions caused by damage to such components from external sources, necessitate assuring that adequate safety standards are applied to the design and installation of the feature in Boeing Model 747-8 airplanes.

For purposes of these special conditions, a large glass component is defined as a glass component weighing 4 kg (9 lbs) or more. Groupings of glass items that individually weigh less than 4 kg, but collectively weigh 4 kg or more, also would need to be included. The proposed special conditions also apply when showing compliance with the applicable performance standards in the regulations for the installation of these components. For example, heat-release and smoke-density testing must not result in fragmentation of the component.

These proposed special conditions will reduce the hazards from breakage, or from these panels' potential separation from the cabin interior. These proposed special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to Boeing Model 747-8 series airplanes. Should L-3 Communications Integrated Systems apply at a later date for a supplemental type certificate to modify any other model included on type certificate no. A20WE to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

The authority citation for these special conditions is as follows:

For large glass components installed in a cabin occupied by passengers or crew who are not otherwise protected from the injurious effects of failure of the glass installations, the L-3 Communications Integrated Systems glass installations on this Boeing 747-8 airplane must meet the following conditions:

1. Material: The glass used must be tempered or otherwise treated to ensure that when fractured, it breaks into small pieces with relatively dull edges. This must be demonstrated by testing to failure.

2. Fragmentation: The glass-component installation must control the fragmentation of the glass to minimize the danger from flying glass shards or pieces. This must be demonstrated by impact and puncture testing to failure.

3. Component Strength: The glass component must be strong enough to meet the load requirements for all flight and landing loads, including any of the applicable emergency-landing conditions in subparts C & D of 14 CFR part 25. In addition, glass components that are located such that they are not protected from contact with cabin occupants must not fail due to abusive loading, such as impact from occupants stumbling into, leaning against, sitting on, or performing other intentional or unintentional forceful contact with the glass component. The effect of design details such as geometric discontinuities or surface finish, e.g., embossing, etching, etc., must be assessed.

4. Component Retention: The glass component, as installed in the airplane, must not come free of its restraint or mounting system in the event of an emergency landing. Both the directional loading and rebound conditions must be assessed. The effect of design details such as geometric discontinuities or surface finish, e.g., embossing, etching, etc., must be assessed.

5. Instructions for Continued Airworthiness: The instructions for continued airworthiness must reflect the method used to fasten the panel to the cabin interior and must ensure the reliability of the methods used, e.g., life limit of adhesives, or clamp connection. The applicant must define any inspection methods and intervals based upon adhesion data from the manufacturer of the adhesive, or upon actual adhesion-test data, if necessary.

We proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with a notice of proposed rulemaking (NPRM) for a new AD for certain The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. The NPRM published in the Federal Register on March 22, 2011 (76 FR 15864) (“the NPRM”). For certain airplanes, the NPRM would have required a one-time inspection for damage of the hydraulic actuator rod ends and actuator attach fittings on the thrust reversers, and repair or replacement if necessary. For all airplanes, the NPRM would have required repetitive inspections for damage of the hydraulic actuator rod ends, attach bolts, and nuts; repetitive inspections for damage of fitting assemblies, wear spacers, and actuator attach fittings on the thrust reverser; repetitive measurements of the wear spacer; and corrective actions if necessary.

The NPRM was prompted by reports of in-service damage of the attachment fittings for the thrust reverser actuator. The proposed actions were intended to detect and correct such damage, which could result in actuator attach fitting failure, loss of the thrust reverser auto restow function, and consequent loss of control of the airplane.

Since we issued the NPRM, the manufacturer has notified us that an assumption regarding a failure mode of the attachment fittings for the thrust reverser actuator used in the original safety assessment was incorrect. It was originally assumed that all hydraulic actuators attached to the thrust reverser have the failure mode (failure of the hydraulic actuator rod end or attach fitting due to severe wear-out) addressed in the NPRM. Based on field reports and design review, the manufacturer found that certain hydraulic actuators do not have this failure mode. Based on this new manufacturer finding, a new safety analysis was conducted and we determined that this issue is no longer a safety concern.

Upon further consideration, we have determined that the safety concern identified in the NPRM does not affect The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes identified in the NPRM. Accordingly, the NPRM is withdrawn.

Withdrawal of the NPRM does not preclude the FAA from issuing another related action or commit the FAA to any course of action in the future.

Since this action only withdraws an NPRM, it is neither a proposed nor a final rule and therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

Accordingly, we withdraw the NPRM, Docket No. FAA-2011-0254, Directorate Identifier 2010-NM-180-AD, which was published in the Federal Register on March 22, 2011 (76 FR 15864).

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-3703; Directorate Identifier 2015-NM-115-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

Structural fatigue damage is progressive. It begins as minute cracks, and those cracks grow under the action of repeated stresses. This can happen because of normal operational conditions and design attributes, or because of isolated situations or incidents such as material defects, poor fabrication quality, or corrosion pits, dings, or scratches. Fatigue damage can occur locally, in small areas or structural design details, or globally. Global fatigue damage is general degradation of large areas of structure with similar structural details and stress levels. Multiple-site damage is global damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Global damage can also occur in multiple elements such as adjacent frames or stringers. Multiple-site-damage and multiple-element-damage cracks are typically too small initially to be reliably detected with normal inspection methods. Without intervention, these cracks will grow, and eventually compromise the structural integrity of the airplane, in a condition known as WFD. As an airplane ages, WFD will likely occur, and will certainly occur if the airplane is operated long enough without any intervention.

The FAA's WFD final rule (75 FR 69746, November 15, 2010) became effective on January 14, 2011. The WFD rule requires certain actions to prevent structural failure due to WFD throughout the operational life of certain existing transport category airplanes and all of these airplanes that will be certificated in the future. For existing and future airplanes subject to the WFD rule, the rule requires that DAHs establish a limit of validity (LOV) of the engineering data that support the structural maintenance program. Operators affected by the WFD rule may not fly an airplane beyond its LOV, unless an extended LOV is approved.

The WFD rule (75 FR 69746, November 15, 2010) does not require identifying and developing maintenance actions if the DAHs can show that such actions are not necessary to prevent WFD before the airplane reaches the LOV. Many LOVs, however, do depend on accomplishment of future maintenance actions. As stated in the WFD rule, any maintenance actions necessary to reach the LOV will be mandated by ADs through separate rulemaking actions.

In the context of WFD, this action is necessary to enable DAHs to propose LOVs that allow operators the longest operational lives for their airplanes, and still ensure that WFD will not occur. This approach allows for an implementation strategy that provides flexibility to DAHs in determining the timing of service information development (with FAA approval), while providing operators with certainty regarding the LOV applicable to their airplanes.

We have received an evaluation by the DAH indicating that the skin lap splice is subject to WFD. As a result of WFD analysis, the stringer S-2R skin lap splice from station (STA) 368 to STA 434 requires additional supplemental inspection beyond the inspections specified in the Boeing Model 767 airplane maintenance planning document. This condition, if not corrected, could result in cracking of the skin lap splice, which could grow and result in possible rapid decompression and reduced structural integrity of the airplane.

We reviewed Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014. The service information describes procedures for a detailed inspection and a surface HFEC inspection at section 41, stringer S-2R skin lap splice from STA 368 to STA 434, for any cracking, and repair. 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.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3703.”

The phrase “corrective actions” is used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

We estimate that this proposed AD affects 356 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

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

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

(3) Will not affect intrastate aviation in Alaska, and

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

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-3702; Directorate Identifier 2015-NM-103-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On November 19, 2013, we issued AD 2013-24-12, Amendment 39-17686 (78 FR 71989, December 2, 2013) (“AD 2013-24-12”), for all The Boeing Company Model 747-8 and 747-8F airplanes. AD 2013-24-12 requires repetitive ultrasonic or dye penetrant inspections for cracking of the barrel nuts and bolts, as applicable, on each forward engine mount, and related investigative and corrective actions if necessary. AD 2013-24-12 resulted from a report of cracked barrel nuts found on a forward engine mount. We issued AD 2013-24-12 to detect and correct cracked barrel nuts on a forward engine mount, which could result in reduced load capacity of the forward engine mount, separation of an engine under power from the airplane, and consequent loss of control of the airplane.

The preamble to AD 2013-24-12 explains that we considered the requirements “interim action” and were considering further rulemaking. We now have determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination.

We reviewed the following service information:

• Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015. The service information describes procedures for inspecting for cracked bolts and barrel nuts on the forward engine mounts, replacing cracked bolts and barrel nuts, and sending the inspection results and cracked parts to Boeing.

• Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015. The service information describes procedures for installing new barrel nuts, inspecting the barrel nuts at the forward engine mount to determine the part number (P/N), inspecting for gaps of the strut bulkhead and forward engine mount, and doing applicable related investigative and corrective actions.

• 747-8/-8F Airworthiness Limitation (AWL), Document Number D011U721-02-01, dated September 2015, which includes a limitation for Structurally Significant Item (SSI) 54-50-003c, which describes procedures for structural inspections.

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.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would retain all requirements of AD 2013-24-12. This proposed AD would also require accomplishing the actions specified in Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, described previously, except as discussed under “Differences Between Proposed AD and Service Information.” For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3702.

The phrase “related investigative actions” is used in this proposed AD. “Related investigative actions” are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

The phrase “corrective actions” is used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

• In accordance with a method that we approve; or

• Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

We estimate that this proposed AD affects 7 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We have received no definitive data that would enable us to provide cost estimates for the bootstrap installation specified in this proposed AD. We estimate the following costs to do other necessary related investigative and corrective actions that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these actions:

According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

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 Office of Management and Budget (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.

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

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

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

For the reasons discussed above, I certify that the proposed regulation:

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

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

(3) Will not affect intrastate aviation in Alaska, and

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

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-3701; Directorate Identifier 2015-NM-015-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

On November 26, 2013, we issued AD 2013-25-08, Amendment 39-17704 (78 FR 78694, December 27, 2013) (“AD 2013-25-08”). AD 2013-25-08 requires actions intended to address an unsafe condition on all Airbus Model A330-200 and -300 series airplanes; and Model A340-200 and -300 series airplanes.

Since we issued AD 2013-25-08, which superseded AD 2009-24-09 Amendment 39-16068 (74 FR 62208, November 27, 2009), the European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0009, dated January 16, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition. The MCAI states:

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-2016-3701.

Airbus has issued Service Bulletin A330-29-3125, Revision 01, including Appendixes 01 and 02, dated July 30, 2015; and Service Bulletin A340-29-4096, Revision 01, including Appendixes 01 and 02, dated July 30, 2015. This service information describes procedures for modifying the green, blue, and yellow high pressure hydraulic manifolds by replacing each check valve having part number (P/N) CAR401 with an improved check valve having P/N CAR402. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

Paragraph (t)(1)(iii) of this proposed AD states that AMOC ANM-116-14-429 is not approved as an AMOC for the corresponding provisions of this AD. This AMOC defines a terminating action when Airbus Modification 203972 is introduced in production or when the Airbus Service Bulletin A330-29-3125, dated August 8, 2014, is embodied in service. This proposed AD will exclude from the applicability airplanes with Airbus Modification 203972 and will mandate actions in accordance with Airbus Service Bulletin A330-29-3125, Revision 01, including Appendixes 01 and 02, dated July 30, 2015.

We estimate that this proposed AD affects 88 airplanes of U.S. registry.

The actions required by AD 2013-25-08, and retained in this proposed AD take about 10 work-hours per product, 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 2013-25-08 is $850 per product.

We also estimate that it would take about 32 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $239,360, or $2,720 per product.

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD. We have no way of determining the number of aircraft that might need these actions.

According to the manufacturer, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all available costs in our cost estimate.

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Final and temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend the Income Tax Regulations (26 CFR part 1) relating to section 42 and serve as the text for these proposed regulations.

Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on their impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the “ADDRESSES” heading. The Treasury Department and the IRS request comments on all aspects of the proposed rules. All comments will be available at www.regulations.gov or upon request. A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

The principal authors of these regulations are Jian H. Grant and Martha M. Garcia, Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and the Treasury Department participated in their development.

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

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

Swim events, fireworks displays, and marine events are held on an annual recurring basis on the navigable waters within the Coast Guard Sector Northern New England COTP Zone. In the past, the Coast Guard has established special local regulations, regulated areas, and safety zones for these annual recurring events on a case by case basis to ensure the protection of the maritime public and event participants from the hazards associated with these events. As mentioned above, the Coast Guard has not received public comments or concerns regarding the impact to waterway traffic from the Coast Guard's regulations associated with these annually recurring events. In the past year, events were assessed for their likelihood to recur in subsequent years or to discontinue, and were added to or deleted from the tables accordingly. In addition, minor changes to existing events were made to ensure the accuracy of event details.

The purpose of this rulemaking is to reduce administrative overhead, expedite public notification of events, and ensure the protection of the maritime public during marine events in the Sector Northern New England area. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The proposed rule would update the tables of annual recurring events in the existing regulation for the Coast Guard Sector Northern New England COTP Zone. The tables provide the event name, sponsor, and type, as well as approximate times, dates, and locations of the events. Advanced public notification of specific times, dates, regulated areas, and enforcement periods for each event will be provided through appropriate means, which may include, but are not limited to, the Local Notice to Mariners, Broadcast Notice to Mariners, or a Notice of Enforcement published in the Federal Register at least 30 days prior to the event date. If an event does not have a date and time listed in this regulation, then the precise dates and times of the enforcement period for that event will be announced through a Local Notice to Mariners and, if time permits, a Notice of Enforcement in the Federal Register.

We developed this proposed rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protestors.

E.O.s 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. E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This NPRM has not been designated a “significant regulatory action,” under E.O. 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget.

We expect the economic impact of this proposed rule to be minimal. Although this regulation may have some impact on the public, the potential impact will be minimized for the following reason: the Coast Guard is only modifying an existing regulation to account for new information.

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves water activities including swimming events and fireworks displays and maybe categorically excluded from further review under paragraph 34(g) (Safety Zones) and (34)(h) (Special Local Regulations) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist supporting this is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. Documents mentioned in this notice, and all public comments, are in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR parts 100 and 165 as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

Stage II and onboard refueling vapor recovery (ORVR) are two types of emission control systems that capture fuel vapors from vehicle gas tanks during refueling. Stage II systems are specifically installed at gasoline dispensing facilities (GDF) and capture the refueling fuel vapors at the gasoline pump nozzle. The system carries the vapors back to the underground storage tank at the GDF to prevent the vapors from escaping to the atmosphere. ORVR systems are carbon canisters installed directly on automobiles to capture the fuel vapors evacuated from the gasoline tank before they reach the nozzle. The fuel vapors captured in the carbon canisters are then combusted in the engine when the automobile is in operation.

Both Stage II and ORVR were required by the 1990 Amendments to the CAA under sections 182(b)(3) and 202(a)(6), respectively. In some areas, Stage II has been in place for over 25 years. It was not, however, widely implemented by the states until the early to mid-1990s as a result of the CAA requirements for “moderate,” “serious,” “severe,” and “extreme” ozone nonattainment areas, classified under section 181 of the CAA, and for states in the Northeast Ozone Transport Region (OTR) under section 184(b)(2) of the CAA.

Under section 202(a)(6) of the CAA, Congress required EPA to promulgate regulations for ORVR for light-duty vehicles (passenger cars). EPA adopted these requirements in 1994, at which point moderate ozone nonattainment areas were no longer subject to the section 182(b)(3) Stage II requirement. See 59 FR 16262 (April 6, 1994). However, some moderate areas retained Stage II requirements to provide a control method to comply with rate-of-progress emission reduction targets. ORVR equipment has been phased in for new passenger vehicles beginning with model year 1998, and starting in 2001 for light-duty trucks and most heavy-duty gasoline-powered vehicles. ORVR equipment has been installed on nearly all new gasoline-powered light-duty vehicles, light-duty trucks and heavy-duty vehicles since 2006. During the phase-in of ORVR controls, Stage II has provided volatile organic compound (VOC) reductions in ozone nonattainment areas and certain attainment areas of the OTR. Under section 202(a)(6) of the CAA, Congress recognized that ORVR and Stage II could eventually become largely redundant technologies, and provided authority to the EPA to allow states to remove Stage II from their SIPs after EPA finds that ORVR is in widespread use. On May 16, 2012, EPA determined that ORVR was in widespread nationwide use for control of gasoline emissions during refueling of vehicles at GDFs (77 FR 28772).

In 2012, more than 75 percent of gasoline refueling nationwide occurred with ORVR-equipped vehicles, so Stage II programs have become largely redundant control systems and Stage II systems achieve an ever declining emissions benefit as more ORVR-equipped vehicles continue to enter the on-road motor vehicle fleet.1

On that date, EPA also exercised its authority under section 202(a)(6) of the CAA to waive certain Federal statutory requirements for Stage II at GDFs. This decision exempted all new ozone nonattainment areas classified serious or above from the requirement to adopt Stage II control programs. Similarly, any state currently implementing Stage II programs was authorized to submit SIP revisions that, once approved by EPA, would allow for the phase-out of Stage II control systems.

To assist states in the development of SIP revisions to remove Stage II requirements from their SIPs, EPA issued its “Guidance on Removing Stage II Gasoline Vapor Control Programs from State Implementation Plans and Assessing Comparable Measures” (EPA-457/B-12-001) on August 7, 2012. In that document, EPA provided both technical and policy recommendations to states and local areas on how to develop and submit and approvable SIP revision seeking to phase out an existing Stage II program.

Indiana originally submitted a SIP revision request to EPA on February 25, 1994, to satisfy the requirements of section 182(b)(3) of the CAA. The submission applied to Clark and Floyd counties Indiana as part of the Louisville, Kentucky ozone nonattainment area and Lake and Porter counties Indian as part of the Chicago ozone nonattainment area. EPA fully approved Indiana's Stage II program on April 28, 1994 (59 FR 10111), including the program's legal authority and administrative requirements found in Section 8-4-6 of Title 326 of the Indiana Administrative Code (326 IAC).

In January 2013, IDEM issued a Nonrule Policy Document, Air-036 (NPD), addressing EPA's May 16, 2012 determination. In the NPD, IDEM stated that it would not enforce the requirements for Stage II at new and modified GDFs in Clark, Floyd, Lake and Porter counties. At the same time Indiana also initiated a rulemaking process to revise its SIP to remove Stage II requirements for all facilities in Clark, Floyd, Lake and Porter counties. As part of that process, Indiana completed a state-specific analysis following EPA's recommended methodology. In that analysis, Indiana concluded that, during calendar year 2016, ORVR would be in widespread use in Indiana and that there would no remaining emissions reduction benefit from Stage II requirements beyond the benefits from ORVR.

On April 27, 2015 and September 10, 2015, IDEM submitted rules as SIP revision requests of amendments to 326 IAC 8-4-6 and 326 IAC 8-4-1. These amendments would remove Stage II requirements from the Indiana ozone SIP and allow GDFs currently implementing Stage II in the four program counties to decommission their systems. To support the removal of the Stage II requirements, the revised rules included copies of 326 IAC 8-4-1 and 326 IAC 8-4-6, as published in the Indiana Register on March 4, 2015; a summary of state-specific calculations based on EPA guidance used to calculate program benefits and demonstrate widespread use of ORVR in Indiana; and a section 110(l) demonstration that includes offset emission documentation that addresses the 2013-2015 period, when Stage II requirements were waived in Indiana but widespread use of ORVR had not yet occurred.

Revisions to SIP-approved control measures must meet the requirements of section 110(l) of the CAA in order to be approved by EPA. Section 110(l) states:

“The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act.”

EPA evaluates each section 110(l) non-interference demonstration on a case-by-case basis considering the circumstances of each SIP revision. EPA interprets section 110(l) to apply to all requirements of the CAA and to all areas of the country, whether attainment, nonattainment, unclassifiable, or maintenance for one or more of the six criteria pollutants. EPA also interprets section 110(l) to require a demonstration addressing all criteria pollutants whose emissions and/or ambient concentrations may change as a result of the SIP revision. The degree of analysis focused on any particular national ambient air quality standards (NAAQS) in a non-interference demonstration varies depending on the nature of the emissions associated with the proposed SIP revision.

In the absence of an attainment demonstration, to demonstrate no interference with any applicable NAAQS or requirement of the CAA under section 110(l), EPA believes it is appropriate to allow states to substitute equivalent emissions reductions to compensate for any change to a SIP-approved program, as long as actual emissions in the air are not increased. “Equivalent” emissions reductions mean reductions which are equal to or greater than those reductions achieved by the control measure approved in the SIP. To show that compensating emissions reductions are equivalent, modeling or adequate justification must be provided. The compensating, equivalent reductions must represent actual, new emissions reductions achieved in a contemporaneous time frame to the change of the existing SIP control measure, in order to preserve the status quo level of emissions in the air. In addition to being contemporaneous, the equivalent emissions reductions must also be permanent, enforceable, quantifiable, and surplus to be approved into the SIP.

The implementation of the Stage II program in Indiana has resulted in reductions of VOC emissions. VOCs contribute to the formation of ground-level ozone. Thus the potential increase in VOC needs to be offset with equivalent (or greater) emissions reductions from another control measure in order to demonstrate non-interference with the 8-hour ozone NAAQS. The Indiana Stage II SIP revision includes a 110(l) demonstration for both areas that uses equivalent emissions reductions to compensate for emission reduction losses between 2013 and 2015 resulting from the removal of Stage II systems at a number of GDFs before ORVR is in widespread use as allowed by Indiana's NPD. IDEM has calculated that by 2016, ORVR will be in widespread use in both areas and the absence of the Indiana Stage II program after 2016 would not result in a net VOC emissions increase compared to the continued utilization of this emissions control technology. The emission reduction losses resulting from removing Stage II before 2016 are transitional and relatively small since ORVR-equipped vehicles will continue to phase into the fleet over the coming years. IDEM's calculation indicates a maximum potential loss of 0.02317 tons per summer day (tpsd) in Lake and Porter counties and 0.00408 tpsd in Clark and Floyd counties from 2013 through 2015.

For Lake and Porter Counties, IDEM is proposing the use of VOC emission reductions associated with the shutdown of the State Line Energy Generating Plant (State Line Energy) formerly located in Lake County, Indiana to offset the 0.02317 tpsd increase in those counties. State Line ceased operations in March 31, 2012 and its operating permit has been revoked. The expiration and revocation of this source's permit enables the state to use the VOC emission credits associated with this facility for other purposes under the SIP and makes such credits permanent and enforceable. Using the last three full years of operations (2009-2011) State Line Energy averaged 0.215 tpsd of VOC of emissions offsets. Table 1 shows the increase of emissions associated with the removal of Stage II systems at facilities in Lake and Porter counties, as well as offset emissions associated with State Line Energy. In the table, the number of facilities removing Stage II equipment for 2013 represents the actual number of facilities that sought an exemption from implementing the Stage II requirements. For 2014 and 2015, the number of facilities removing Stage II equipment is a conservative estimate.2

As illustrated in Table 1, and documented in Indiana's SIP revision, for Lake and Porter counties, for each year prior to the widespread use of ORVR in Indiana (2016), the VOC emissions increase associated with the removal of Stage II systems is more than offset by the VOC emission reductions attributed to the permanent closure of the State Line Energy facility.

For Clark and Floyd counties, IDEM is proposing the use of offsets generated by the Architectural and Industrial Maintenance (AIM) coatings rule adopted by Indiana at 326 IAC 8-14. Indiana's AIM coatings rule goes above and beyond the Federal AIM rule by adopting a rule that is similar to the Ozone Transport Commission (OTC) model rule. According to a 2006 Lake Michigan Air Directors Consortium (LADCO) white paper, the OTC model rule provides a 31% to 48.4% (depending on the AIM coatings category) reduction in VOC emissions compared to uncontrolled 2002 base case emissions while the Federal AIM rule alone only provides a 20% reduction compared to base case.

The Indiana AIM rule was approved into the SIP on August 30, 2012 (77 FR 52606). Indiana was not required to adopt an AIM coatings rule but did so as a multi-state effort to help reduce ozone levels at the regional level. Indiana did not adopt the AIM rule to comply with any Indiana SIP planning requirements and has not taken credit for it in air quality plans, nor has it been included in maintenance year horizons or rate of further progress (RFP) inventories. Therefore, these SIP approved AIM limits can be used as offsets for other purposes, such as this SIP revision. Offsets of 0.234 tpsd of VOC are available based on calculations derived using the 2011 National Emissions Inventory data. Table 2 shows the increase of VOC emission associated with the removal of Stage II systems at facilities in Clark and Floyd between 2013 and 2015, as well as offset emissions associated with AIM coatings. In the table, the number of facilities removing Stage II equipment for 2013 represents the actual number of facilities that have sought an exemption from implementing the Stage II requirements. For 2014 and 2015, the number of facilities removing Stage II equipment is a conservative estimate.

As illustrated in Table 2, and documented in Indiana's SIP revision, for Clark and Floyd counties, for each year prior to the widespread use of ORVR in Indiana (2016), the VOC emissions increase associated with the removal of Stage II systems is more than offset by the VOC emission reductions attributed to reductions in AIM coatings emissions. For both the Clark and Floyd counties and Lake and Porter counties analyses, Indiana is requesting to use only the portion of the emissions offsets necessary to offset the emissions increase due to the removal of Stage II systems before Indiana's 2016 widespread use timeframe. Indiana retains the right to utilize any remaining emissions offsets in the future.

Based on the use of permanent, enforceable, contemporaneous, surplus emissions reductions achieved through the shutdown of the previously permitted State Line Energy facility in Lake and Porter counties and the offsets from VOC reductions in AIM coatings emissions in Clark and Floyd counties, EPA believes that the removal of the Indiana Stage II program does not interfere with southeast Indiana's ability to demonstrate compliance with the 8-hour ozone NAAQS.

EPA also examined whether the removal of Stage II program requirements in both areas will interfere with attainment of other air quality standards. Lake and Porter counties are designated attainment for all standards other than ozone, including sulfur dioxide and nitrogen dioxide. Clark and Floyd counties are designated attainment for all standards other than ozone and particulate matter.3 EPA has no reason to believe that the removal of the Stage II program in Indiana will cause the areas to become nonattainment for any of these pollutants. In addition, EPA believes that removing the Stage II program requirements in Indiana will not interfere with the areas' ability to meet any other CAA requirement.

Based on the above discussion and the state's section 110(l) demonstration, EPA believes that removal of the Stage II program will not interfere with attainment or maintenance of any of the NAAQS in both the Chicago and Louisville, Kentucky ozone nonattainment areas and would not interfere with any other applicable requirement of the CAA, and thus, are approvable under CAA section 110(l).

EPA is proposing to approve, as a revision to the Indiana ozone SIP, regulations submitted by IDEM on April 27, 2015 and September 10, 2015. EPA finds that the revisions will not interfere with any applicable CAA requirement.

In this rulemaking, 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, EPA is proposing to incorporate by reference Indiana rules 326 IAC 8-4-1 “Applicability” and 326 IAC 8-4-6 “Gasoline dispensing facilities”, effective March 5, 2015. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and/or at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

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).

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

On January 27, 2016, and February 5, 2016, IDEM submitted for parallel processing draft revisions to its SIP consisting of orders issued by IDEM's Commissioner that establish more stringent SO2 emissions limits than those currently contained in the SIP for A.B. Brown and Clifty Creek. IDEM established these SO2 emissions limits to enable the areas near A.B. Brown and Clifty Creek to qualify in the future for being designated “attainment” of the 2010 primary SO2 NAAQS. Under a Federal consent decree, EPA is required to designate, under the 2010 SO2 NAAQS, certain areas in the United States including the areas near A.B. Brown and Clifty Creek by July 2, 2016. The history of the 2010 SO2 NAAQS and the consent decree is explained below in order to provide a more detailed explanation of the context for IDEM's request for EPA approval of these SO2 limits into the SIP.

On June 3, 2010, pursuant to section 109 of the Clean Air Act (CAA), EPA revised the primary (health-based) SO2 NAAQS by establishing a new one-hour standard codified at 40 CFR 50.17 (75 FR 35520). Pursuant to section 107(d) of the CAA, EPA must designate areas as either “unclassifiable,” “attainment,” or “nonattainment” for the 2010 one-hour SO2 primary NAAQS. Under Section 107(d) of the CAA, a nonattainment area is any area that does not meet the NAAQS or that contributes to a violation in a nearby area. An attainment area is any area, other than a nonattainment area, that meets the NAAQS. Unclassifiable areas are those that cannot be classified on the basis of available information as meeting or not meeting the NAAQS.

On August 5, 2013, EPA published a final rule establishing air quality designations for 29 areas in the United States for the 2010 SO2 NAAQS, based on recorded air quality monitoring data from 2009-2011 that showed violations of the NAAQS (78 FR 47191). In that rulemaking, EPA committed to address, in separate future actions, the designations for all other areas for which EPA was not yet prepared to issue designations.

Following the initial August 5, 2013, designations, three lawsuits were filed against EPA in different U.S. District Courts, alleging EPA had failed to perform a nondiscretionary duty under the CAA by not designating all portions of the country by the June 2013 deadline. In an effort intended to resolve the litigation in one of those cases, plaintiffs Sierra Club and the Natural Resources Defense Council and EPA filed a proposed consent decree with the U.S. District Court for the Northern District of California. On March 2, 2015, the court entered the consent decree and issued an enforceable order for EPA to complete the area designations according to the court-ordered schedule.1

By no later than July 2, 2016, (16 months from the court's order), EPA must designate two groups of areas: (1) Areas that have newly monitored violations of the 2010 SO2 NAAQS and (2) areas that contain any stationary sources that had not been announced as of March 2, 2015, for retirement and that according to the EPA's Air Markets Database emitted in 2012 either (i) more than 16,000 tons of SO2 or (ii) more than 2,600 tons of SO2 with an annual average emission rate of at least 0.45 pounds (lbs) of SO2 per million British thermal units (MMBTU). In the consent decree, “announced for retirement” means any stationary source with a coal-fired unit that as of January 1, 2010, had a capacity of over 5 megawatts and otherwise meets the emissions criteria is excluded from the July 2, 2016, deadline if it had announced through a company public announcement, public utilities commission filing, consent decree, public legal settlement, final state or federal permit filing, or other similar means of communication, by March 2, 2015, that it will cease burning coal at that unit.

A.B. Brown and Clifty Creek each meet the second criterion for the July 2, 2016, deadline. That is, neither has been “announced for retirement” and both emitted in 2012 either (i) more than 16,000 tons of SO2 or (ii) more than 2,600 tons of SO2 with an annual average emission rate of at least 0.45 lbs of SO2 per MMBTU. Specifically, A.B. Brown emitted 7,091 tons of SO2 in 2012 and had an emissions rate of 0.521 lbs SO2/MMBTU in 2012. Clifty Creek emitted 52,839 tons of SO2 in 2012 and had an emissions rate of 1.767 lbs SO2/MMBTU in 2012. In absence of new SO2 emissions limits, A.B. Brown and Clifty Creek cannot demonstrate modeled attainment of the 2010 SO2 NAAQS in accordance with EPA's Draft SO 2 NAAQS Designations Modeling Technical Assistance Document. 2 Therefore, IDEM conducted air dispersion modeling using the American Meteorological Society/Environmental Protection Agency Regulatory Model (AERMOD) version 15181 in accordance with appendix W of part 51 of chapter 40 of the Code of Federal Regulations (CFR) to determine new, more stringent SO2 emissions limits for A.B. Brown and Clifty Creek that should result in the areas near these generating stations showing modeled attainment of the 2010 SO2 NAAQS.

IDEM has requested that EPA approve Commissioner's Order 2016-01 for A.B. Brown and Commissioner's Order 2016-02 for Clifty Creek into Indiana's SIP. EPA's approval of the new SO2 emissions limits contained in these orders into Indiana's SIP would make these SO2 emissions limits federally enforceable. Once these SO2 emissions limits have become federally enforceable, IDEM intends to use them to demonstrate AERMOD-modeled attainment for the 2010 SO2 NAAQS for the areas near A.B. Brown and Clifty Creek. To be clear, the purpose of this rulemaking is to take action on IDEM's request to approve these SO2 emissions limits into the Indiana SIP and thereby make them federally enforceable. The purpose of this rulemaking is not to take action on whether these SO2 emissions limits are adequate for EPA to designate attainment of the 2010 SO2 NAAQS for the areas near A.B. Brown and Clifty Creek. EPA intends to designate the areas near the sources that meet the criteria for the first phase of the consent decree designations, including the areas near A.B. Brown and Clifty Creek, under a separate rulemaking.

EPA cannot take final action to approve the orders into Indiana's SIP until the state completes its public comment process and submits the final orders to EPA as SIP revision requests. In the meantime, Indiana requested that EPA “parallel process” the SIP revision to expedite action on the Commissioner's orders. Under this procedure, the state submitted a copy of the proposed revisions to EPA before completing its public comment process. EPA is publishing this proposed rulemaking in the Federal Register and is soliciting public comment in approximately the same timeframe during which the state is soliciting public comment. After Indiana submits the final SIP revision request, EPA will prepare a final rulemaking for the SIP revision. If changes are made to the SIP revision after EPA's proposed rulemaking, such changes must be acknowledged in EPA's final rulemaking. If the changes are significant, then EPA may need to repropose the rulemaking.

For A.B. Brown, Indiana issued Commissioner's Order 2016-01 on January 11, 2016, with a compliance date of April 19, 2016. This order established two new limits for A.B. Brown: One limit for Unit 1 when running alone and one limit for Units 1 and 2 when running simultaneously. The emissions limits are 0.855 lbs of SO2 per MMBTU for coal-fired boiler Unit 1 operating alone and 0.426 lbs of SO2 per MMBTU for Units 1 and 2 operating simultaneously. These limits supplement a limit contained in a February 22, 1979, Prevention of Significant Deterioration (PSD) permit of 0.69 pounds per MMBTU for coal-fired boiler Unit 2. Note that the limit on Unit 1 emissions alone (0.855 lbs per MMBTU) is higher (less restrictive) than the limit on combined emissions from Units 1 and 2 (0.426 lbs per MMBTU). Because Unit 2 has more impact per pound of emissions than Unit 1 due to dispersion characteristics, the plant can emit more and still not cause violations of the 2010 SO2 NAAQS when only Unit 1 is operating than when both Units 1 and 2 are operating.

For Clifty Creek, Indiana issued Commissioner's Order 2016-02 on February 1, 2016, with a compliance date of April 19, 2016. This order established a combined emission limit for the six coal-fired boilers (Units No. 1 through No. 6) located at Clifty Creek of 2,624.5 lbs of SO2 per hour as a 720 operating hour rolling average when any of Units No.1 through No. 6, or any combination thereof, is operating.

EPA is evaluating this revision on the basis of whether it strengthens Indiana's SIP. Prior to Commissioner's Order 2016-01, A.B. Brown had an SO2 emissions limit in its operating permit of 6.0 lbs SO2 per MMBTU for coal-fired boiler Unit 1. Prior to Commissioner's Order 2016-02 Clifty Creek had an SO2 emissions limit in its operating permit for Units 1 through 6 not to exceed 7.52 lbs of SO2 per MMBTU on a thirty (30) day rolling weighted average. The new SO2 emissions limits established by IDEM in Commissioner's Order 2016-01 and Commissioner's Order 2016-02 for A.B. Brown and Clifty Creek, respectively, are more stringent than the previous limits and will therefore strengthen Indiana's SIP.

The adequacy of these limits for providing for attainment is not a prerequisite for approval of these limits. Nevertheless, the purpose of these limits is to provide for attainment, and EPA is working with Indiana to assure a proper analysis of the adequacy of these limits for this purpose. If these limits become SIP-approved and thereby federally enforceable in a timely fashion, formal evaluation of the adequacy of these limits to provide for attainment will be conducted as part of the process of rulemaking on the 2010 SO2 NAAQS designation for these areas.

EPA is proposing to approve the SO2 emissions limits in Commissioner's Order 2016-01 and Commissioner's Order 2016-02 into the Indiana SIP. EPA confirms that the SO2 emissions limits for A. B. Brown (Commissioner's Order 2016-01) and Clifty Creek (Commissioner's Order 2016-02) are more stringent than the previous SO2 emissions limits for these sources. By approving these Commissioner's orders into the Indiana SIP, these SO2 emissions limits will become federally enforceable and strengthen the Indiana SIP.

In this rule, 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, EPA is proposing to incorporate by reference Commissioner's Order No. 2016-01 issued to Vectren's A. B. Brown Generating Station, effective January 11, 2016, and Commissioner's Order No. 2016-02 issued to Indiana-Kentucky Electric Corporation's Clifty Creek Generating Station, effective February 1, 2016. EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under 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).

In the final rules section of this Federal Register, EPA is approving the state's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial revision amendment and anticipates no relevant adverse comments to this action. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the rules section of this Federal Register.

Table of Contents I. Background and Overview II. What Elements are Required Under Sections 110(a)(1) and (2)? III. What is EPA's Approach to the Review of Infrastructure SIP Submissions? IV. What is EPA's Analysis of How North Carolina Addressed the Elements of the Sections 110(a)(1) and (2) “Infrastructure” Provisions? V. Proposed Action VI. Statutory and Executive Order Reviews I. Background and Overview

On June 22, 2010 (75 FR 35520), EPA promulgated a revised primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour SO2 NAAQS to EPA no later than June 22, 2013.1

Today's action is proposing to approve portions of North Carolina's infrastructure SIP submission for the applicable requirements of the 2010 1-hour SO2 NAAQS. With respect to North Carolina's infrastructure SIP submission related to provisions pertaining to the PSD permitting requirements for major sources of sections 110(a)(2)(C) and (J), the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1 through 4), and the state board requirements of section 110(E)(ii), EPA is not proposing any action at this time regarding these requirements. For the aspects of North Carolina's submittal proposed for approval today, EPA notes that the Agency is not approving any specific rule, but rather proposing that North Carolina's already approved SIP meets certain CAA requirements.

Section 110(a) of the CAA requires states to submit SIPs to provide for the implementation, maintenance, and enforcement of a new or revised NAAQS within three years following the promulgation of such NAAQS, or within such shorter period as EPA may prescribe. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains.

More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned above, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. The requirements that are the subject of this proposed rulemaking are summarized below and in EPA's September 13, 2013, memorandum entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act sections 110(a)(1) and 110(a)(2).” 2

EPA is acting upon the SIP submission from North Carolina that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO2 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 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 has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions.5 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the Act, which specifically address nonattainment SIP requirements.6 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated.7 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.8 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission.9

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS.10

This document proposes to take action on the requirements associated with conducting Method 303 training courses. Method 303 is an air pollution test method used to determine the presence of visible emissions (VE) from coke ovens. We have published a direct final rule approving the revisions to Method 303 in the “Rules and Regulations” section of this issue of the Federal Register because we view this as a non-controversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble of the direct final rule.

If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule, and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule.

We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

This action applies to you if you are a potential provider of Method 303 training services, someone seeking training to conduct Method 303, or a facility subject to Method 303.

Method 303 is applicable for the determination of VE from the following by-product coke oven battery sources: Charging systems during charging; doors, topside port lids, and offtake systems on operating coke ovens; and collecting mains. This method is also applicable for qualifying observers for visually determining the presence of VE. This action adds language that further clarifies the criteria used by the EPA to determine the competency of Method 303 training providers, but does not change the requirements for conducting the test method.

The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This rulemaking does not relax the control measures on sources regulated by the proposed rule and, therefore, will not cause emissions increases from these sources.

This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA. This action better defines the requirements associated with conducting Method 303 training courses and does not impose additional regulatory requirements on sources.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action better defines the requirements associated with conducting Method 303 training courses and does not impose additional regulatory requirements on sources.

This action does not contain an unfunded mandate of $100 million or more for as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. This action adds additional language that clarifies the criteria used by the EPA to determine the competency of training providers, but does not change the requirements for conducting the test method.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This action clarifies the criteria used by the EPA to determine the competency of training providers, but does not change the requirements for conducting the test method.

This action does not have tribal implications, as specified in Executive Order 13175. This action clarifies the criteria used by the EPA to determine the competency of training providers, but does not change the requirements for conducting the test method. Thus, Executive Order 13175 does not apply to this action.

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 concern an environmental health risk or safety risk.

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

This rulemaking does not involve technical standards.

The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The results of this evaluation are contained in the SUPPLEMENTARY INFORMATION section of the preamble titled “III. Environmental Justice.”

For the reasons stated in the preamble, the EPA proposes to amend title 40, chapter I of the Code of Federal Regulations as follows:

The revisions and additions read as follows.

On July 16, 2015, LSC management (Management) presented the Committee with a Justification Memorandum recommending publication of an advance notice of proposed rulemaking (ANPRM) to seek public comment on possible revisions to 45 CFR part 1630—Cost Standards and Procedures, and LSC's Property Acquisition and Management Manual (PAMM). Management stated that collecting input from LSC funding recipients through an ANPRM would aid LSC significantly in determining the scope of the rulemaking and in developing a more accurate understanding of the potential costs and benefits of certain revisions. The Committee voted to recommend that the Board approve Management's recommendation and authorize LSC to open rulemaking for Part 1630 and the PAMM. On July 18, 2015, the LSC Board authorized rulemaking and approved the preparation of an ANPRM to revise Part 1630 and the PAMM. On October 9, 2015, LSC published an ANPRM seeking public comment on the proposed changes to Part 1630 and the PAMM. 80 FR 61142, Oct. 9, 2015. The comment period closed on December 8, 2015.

LSC received comments from the National Legal Aid and Defender Association (NLADA), Colorado Legal Services (CLS), and the Northwest Justice Project (NJP). The comments generally expressed concerns about the following: The disparity and potential conflict between LSC's proposed changes and the requirements imposed by recipients' other funders; expanding the prior approval requirements of 45 CFR 1630.5 and Section 3 of the PAMM to include aggregate purchases exceeding a certain dollar threshold; and the proposal to regulate the awarding of service contracts and the disposition of real and personal property by organizations that receive LSC funds. Additionally, NLADA recommended that LSC engage its grantees in additional discussions about the impact that the proposed changes would have on the grantees' operations before drafting a proposed rule.

LSC's Rulemaking Protocol contemplates using rulemaking workshops or negotiated rulemaking when one of those vehicles is appropriate to help LSC gather additional information before drafting a proposed rule. LSC believes that rulemaking workshops will provide an opportunity for LSC funding recipients to more effectively share their views on LSC's proposed changes to part 1630 and the PAMM and to elaborate on the comments received in response to the ANPRM. On January 28, 2016, the Committee voted to approve rulemaking workshops for LSC's rulemaking on Part 1630 and the PAMM.

The following three topics will be addressed during the Workshops. Each Workshop will focus on one of the topics and may use any or all of the potential items for discussion to direct the discussion.

Topic 1: Requirements of Other Funders. How do LSC's proposed changes to its cost standards and procedures and property acquisition and disposition requirements interact with the requirements imposed by recipients' other funders, including the requirements governing intellectual property created using various sources of funding?

Potential Items for Discussion on Topic 1:

• Generally, do other funders require recipients to provide notice and/or seek prior approval for the acquisition and disposition of real property and personal property? If so, what processes and documentation do the funders require?

• Do LSC's proposed changes to Part 1630 and the PAMM directly conflict with the requirements of other funders? If so, how?

• Do other funders require recipients to seek prior approval for procurements of goods and services? If so, what procedures must recipients follow to seek approval?

• Do other funders require recipients to seek prior approval for purchases of single items above a certain threshold amount? If so, what is that threshold amount?

• Do other funders require recipients to seek prior approval for purchases of multiple items when the aggregate cost of the items exceeds a certain dollar threshold? If so, what is that threshold amount?

• How can LSC structure its prior approval process to more closely align with the requirements imposed by other funders?

• What are the requirements of other funders with respect to the use and ownership of products, data, or intellectual property developed with their funds? For example, do other funders reserve rights in intellectual property developed with their funds, or require recipients to display the funder's identity on products such as Web sites or brochures?

• How do LSC's cost standards compare and interact with cost standards imposed by recipients' other funders?

Topic 2: LSC's Proposals. In the ANPRM, LSC proposed to regulate services contracts. LSC also proposed to require recipients to seek prior approval of aggregate purchases of personal property, acquisitions of personal and real property purchased or leased using LSC funds, and disposal of real or personal property purchased or leased using LSC funds.

Potential Items for Discussion on Topic 2:

• What are the administrative costs (in terms of dollars, time, and resources) of obtaining prior approval from LSC with respect to property acquisition and disposition? How can LSC revise its prior approval process to lessen these administrative costs?

• How can LSC clarify when recipients must seek prior approval to acquire and dispose of real and personal property?

• If LSC raises the threshold amount at which single purchases of personal property require prior approval, what other changes, if any, should LSC make to part 1630 to accompany this increase?

• Should LSC adopt a separate and distinct prior approval threshold amount for aggregate purchases of personal property?

• If LSC proposes to require prior approval for purchases of multiple items whose aggregate value exceeds a certain dollar amount threshold, should LSC limit the types of purchases subject to this prior approval requirement? For example, should LSC require recipients to seek prior approval for purchases of multiple computers, printers, or pieces of furniture exceeding a certain dollar amount, but not require recipients to seek prior approval for multiple purchases of units of printer paper or similar office supplies?

• Should LSC require recipients to seek instructions for disposition of real or personal property if the fair market value of the property exceeds a certain dollar threshold? If so, what should the threshold be?

• Should LSC require recipients to seek disposition instructions from LSC before disposing of personal or real property acquired with LSC funds? If so, what factors should LSC consider when establishing such instructions?

Topic 3: Establishing Standards based on the Office of Management and Budget's (OMB) Uniform Guidance. LSC proposed to establish minimum standards for recipients' procurement policies based on the OMB Uniform Guidance. LSC also proposed to revise part 1630 for consistency with the Uniform Guidance, where appropriate.

Potential Items for Discussion on Topic 3:

• Generally, what are the existing procurement policies that recipients currently have in place to maintain internal controls regarding purchases and compliance with LSC's rules in part 1630 and the PAMM?

• Do recipients have different procurement policies for real property, personal property, and services?

• Should LSC establish minimum standards for procurement policies for recipients to use for acquisitions of personal property when the acquisition costs exceed a certain threshold amount?

• What changes would recipients have to make to their policies if LSC adopted minimum standards for recipients' procurement policies based on OMB's Uniform Guidance in 2 CFR part 200? If LSC were to model its revised procurement standards based on the standards in the OMB Uniform Guidance, would LSC's policy conflict with the requirements of other funders?

Rulemaking workshops enable LSC to meet with interested parties to discuss, but not negotiate, proposed LSC rules and regulations. Workshops for part 1630 and the PAMM will consist of three publicly noticed meetings of the Committee with the participation of Management, invited stakeholder representatives, and other interested and well-informed parties to discuss the three topics outlined above. During the Workshops, the panelists and participants will hold open discussions, moderated by a member of the Committee (or other person designated by the Committee chair), to share ideas regarding how to revise Part 1630 and the PAMM.

LSC will host three Rulemaking Workshops at its headquarters, 3333 K Street NW., Washington, DC 20007. The first Workshop will be held on April 20, 2016, and will focus on the first topic for discussion. The second workshop will be held on May 18, 2016 and will focus on the second topic for discussion. The third Workshop will be held on June 15, 2016 and will focus on the third topic for discussion. LSC will consider accommodating panelists who are unable to attend in person electronically via telephone or webinar. LSC will publish additional details regarding the time, webinar and call-in information, and agenda for each Workshop at least one week prior to the scheduled date of the Workshop.

The Workshops will be in the form of a panel discussion consisting of Committee members, LSC staff members, Office of Inspector General (OIG) staff members, and a select number of interested stakeholders selected by LSC. LSC will select participants for each workshop to participate as members of the Workshop panel. LSC will seek to select panelists to create diversity in terms of organizational size, service area and geographic location, funding sources, and percentage of funding received from LSC. Some participants may be selected to participate in more than one workshop. Interested persons should submit an expression of interest according to the instructions outlined below.

LSC is inviting expressions of interest in participating on Workshop panels from its grantees and other stakeholders with relevant experience. LSC is particularly interested receiving expressions of interest from Executive Directors and accounting and finance personnel of LSC funding recipients. Panelists should have experience in handling procurements for LSC funding recipients and applying LSC's cost standards and procedures. Additionally, LSC is interested in receiving expressions of interest from other funders of civil legal aid programs, including private foundations and federal, state, and local governments, to participate in the first workshop. Persons interested in participating as panelists should submit expressions of interest including, at a minimum: (1) A brief biographical statement, (2) a brief statement of relevant experience in applying and/or implementing the requirements of part 1630 and the PAMM, and (3) the specific workshop(s) in which the prospective panelist is interested in attending.

Expressions of interest in participating as a panelist should be submitted, in writing, to Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation; via email to [email protected]; via fax to 202-337-6519; or by mail or courier/hand delivery 3333 K Street NW., Washington, DC 20007. Expressions of interest must be received by LSC by 5:30 p.m. EST on the date provided in the DATES section. LSC will select panelists shortly after the deadline and will inform all those who expressed interest whether or not they have been selected.

Prior to each meeting, those selected as panelists will be asked to register with LSC to ensure that sufficient arrangements can be made for their participation. Panelists are expected to cover their own expenses (travel, lodging, etc.). LSC may consider providing financial assistance to a panelist for whom travel costs would represent a significant hardship and barrier to participation. Any such person should so note in his/her expression of interest for LSC's consideration. LSC will also consider allowing interested applicants who cannot attend the Workshops in person to participate on the panel remotely.

In addition to the panel, LSC encourages observation and participation by all interested individuals and organizations. The Workshops will be open to public observation, and portions of the Workshop will be open for public comment from in-person, webinar, and telephone participants. The meeting agenda will include opportunities for individuals in attendance who are not members of the panel to participate in person, by webinar, or via telephone, as well as incorporating previously submitted written comments by those unable to attend. LSC will transcribe the meetings and make the webinar available on its Web site.

Through this notice, LSC is also opening a written comment period. LSC welcomes written comments during the comment period and will consider the comments received in the rulemaking process. Written comments received prior to the Workshops may be addressed in the Workshops. Written comments are requested by the following dates:

1. April 8, 2016 for LSC to consider including in the first Workshop discussion.

2. May 6, 2016 for LSC to consider including in the second Workshop discussion.

3. June 3, 2016 for LSC to consider including in the third Workshop discussion. All other written comments must be received by July 15, 2016. Written comments submitted to LSC must be in .pdf format (if submitted electronically) and sent to [email protected]. If delivered via facsimile, mail, or courier/hand delivery, please address the comments to: Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K St. NW., Washington, DC 20007; (202) 337-6519 (fax). LSC will not consider comments sent by any method or received after the end of the comment period.

Information received in response to this Notice of Rulemaking Workshops and Request for Expressions of Interest in Participation in the Rulemaking Workshops may be published or summarized by LSC without acknowledgement of or permission from you or your organization. Furthermore, your responses may be releasable to the public under the LSC's adoption of the Freedom of Information Act (FOIA), 42 U.S.C. 2996d, and the LSC FOIA regulation, 45 CFR part 1602. LSC, at its discretion, may request individual commenters to elaborate on information in their written comments.

Section 303(a) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) (16 U.S.C. 1853(a)) describes 15 required provisions of any fishery management plan (FMP) prepared by a regional fishery management council or the Secretary of Commerce with respect to any fishery (hereafter “Council” includes the regional fishery management councils and the Secretary of Commerce, as appropriate (see 16 U.S.C. 1854(c) and (g)). This proposed rule focuses on section 303(a)(11), which requires that all FMPs establish a standardized reporting methodology to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality. The section 303(a)(11) standardized reporting methodology is commonly referred to as a “Standardized Bycatch Reporting Methodology” (SBRM), and this proposed rule defines, interprets, and provides guidance on the basic requirements for the SBRM.

Section 303(a)(11) was added to the MSA by the Sustainable Fisheries Act of 1996 (SFA). All FMPs have been amended to reflect the SBRM requirement. The SFA also added a definition for “bycatch” (section 3(2), 16 U.S.C. 1802(2)) and National Standard 9 (section 301(a)(9), 16 U.S.C. 1851(a)(9)). The MSA defines “bycatch” as fish which are harvested in a fishery, but which are not sold or kept for personal use, and as including economic discards and regulatory discards. The definition of bycatch does not include fish released alive under a recreational catch and release fishery management program. The MSA does not define “standardized reporting methodology” or any of the words contained within the phrase. Similar to section 303(a)(11), National Standard 9 (16 U.S.C. 1851(a)(9)) requires that conservation and management measures “shall, to the extent practicable, (A) minimize bycatch and (B) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.” However, National Standard 9 does not address SBRM. NMFS has never issued regulations that set forth the agency's interpretation of the SBRM provision.

To implement the 1996 SFA Amendments, NMFS developed advisory guidelines for National Standard 9 (guidelines) in 1998, and further amended the guidelines in 2008. The guidelines provide several clarifications about bycatch requirements under the MSA, but do not directly address SBRM. For example, the guidelines explain that “bycatch” includes the discard of whole fish at sea but does not include legally-retained fish kept for personal, tribal or cultural use (50 CFR 600.350(c)). In addition, to facilitate the evaluation of conservation and management measures consistent with National Standard 9, the guidelines call for the development of a database on bycatch and bycatch mortality in the fishery to the extent practicable. The guidelines note that, to comply with National Standard 9 and MSA sections 303(a)(11) (SBRM) and (12) (catch and release), a review and, where necessary, improvement of data collection methods, data sources and applications must be initiated for each fishery to assess bycatch and bycatch mortality. See 50 CFR 600.350(d)(1).

In 2004, NMFS published Evaluating Bycatch: A National Approach to Standardized Bycatch Monitoring Programs (NOAA Technical Memorandum NMFS-F/SPO-66, October 2004, hereafter referred to as Evaluating Bycatch), a report that was prepared by the agency's National Working Group on Bycatch (available at http://www.nmfs.noaa.gov/by_catch/SPO_final_rev_12204.pdf). The report discusses regional bycatch and fisheries issues, the advantages and disadvantages of different reporting/monitoring measures, and precision goals for bycatch estimates. See Evaluating Bycatch at Chapters 3, 4, and 5. However, Evaluating Bycatch addresses more than bycatch as defined under the MSA; it also addresses interactions with species protected under the Endangered Species Act and Marine Mammal Protection Act. The report also acknowledges that its goals “may in some instances exceed minimum statutory requirements.” See Evaluating Bycatch at Appendix 5. In summary, the report does not provide the agency's interpretation of the basic requirements of complying with MSA section 303(a)(11).

This proposed rule, which is promulgated pursuant to MSA section 305(d) (16 U.S.C. 1855(d)), is intended to establish national requirements and guidance for establishing and reviewing SBRMs under section 303(a)(11) of the MSA. This rule solely addresses reporting methodology requirements pertaining to “bycatch” as defined under the MSA. (See the Background subheading for a definition.) The Endangered Species Act and the Marine Mammal Protection Act create additional, important bycatch-related responsibilities for NOAA Fisheries, but discussion of such responsibilities is beyond the scope of this proposed rule. As explained below, there are several reasons why NMFS is undertaking this rulemaking.

NMFS has never issued regulations that set forth the basic requirements of the SBRM provision of section 303(a)(11). Although the National Standard 9 guidelines and Evaluating Bycatch discuss the SBRM provision, neither provides an interpretation of, or purports to set forth the basic requirements for complying with, the provision. In the absence of a national SBRM regulation, some Councils appear to have adopted the recommendations in Evaluating Bycatch as though they set forth mandatory requirements for a bycatch reporting methodology. Others have not followed the recommendations in Evaluating Bycatch, or have adopted only some of them. NMFS believes that the apparent confusion regarding the applicability of the recommendations in Evaluating Bycatch necessitates clear guidance regarding what the SBRM provision requires, what is needed for fishery conservation and management, and what is feasible to implement.

In addition, since the 1996 SFA amendments, there have been legal challenges to the SBRMs established in some FMPs. Court decisions have focused largely on the specific allegations and records before the courts, and have addressed only certain aspects of the SBRM provision and the agency's implementation of that provision. Therefore, NMFS believes that a comprehensive analysis of the MSA requirements in section 303(a)(11) through a rulemaking action is necessary in order to prevent inconsistent implementation of the provision, on a region-by-region basis in response to fact-specific litigation.

Finally, public concern about bycatch and public expectations for accessing bycatch information and estimates continues to grow, while concerns from the regulated community about the costs for fishery monitoring and reporting requirements also continues to increase. NMFS intends to address some of these concerns in this action.

As described in detail below, this proposed rule explains the purpose of a standardized bycatch reporting methodology (SBRM), and clarifies the activities associated with the phrase “standardized reporting methodology” and the meaning of the term “standardized.” This action would require that a standardized reporting methodology be appropriate for a particular fishery, and would provide required and discretionary factors for the Councils to consider when establishing or reviewing a methodology. Recognizing that there may be a future need to adjust how an SBRM is implemented, NMFS also proposes requirements for an adjustment process, if a Council is interested in exploring such a process. Finally, this proposed rule would provide for periodic review of existing SBRMs.

Proposed section 600.1600 states that the purpose of a standardized reporting methodology is to inform the assessment of the amount and type of bycatch occurring in the fishery for use in developing conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality. See 16 U.S.C. 1853(a)(11). The text refers to “inform[ing]” assessment of bycatch, as the data resulting from an SBRM are used along with other information for bycatch assessment and estimation purposes. (See Activities Associated with an SBRM, below, for further explanation.) Proposed section 600.1610(a)(2)(i) requires that the data resulting from the methodology be useful, in conjunction with other relevant sources of data, in meeting the purpose of the methodology as described in section 600.1600 and fishery-specific bycatch objectives. (See Considerations for Establishing or Reviewing an SBRM, below, for an explanation of other required and discretionary factors.)

An SBRM could include one or a combination of data collection and reporting programs, such as observer programs, electronic monitoring and reporting technologies, and self-reported mechanisms (e.g., recreational sampling, and industry-reported catch and discards). Proposed section 600.1605(a) defines “standardized reporting methodology” with reference to the collection, recording, and reporting of bycatch data in a fishery, which is connected to, but distinct from the methods used to assess bycatch and the development of measures to minimize bycatch or bycatch mortality. NMFS believes that it is important to distinguish between methods to collect and report bycatch data in a fishery with actions to assess and minimize bycatch. This distinction will help clarify the key policy choices and objectives associated with establishing a reporting methodology, so as not to confuse those choices with statistical and technical approaches for estimating bycatch that are inherently scientific and data dependent or the policy choices associated with developing measures to minimize bycatch.

The distinction between data collecting, reporting, etc., and developing management measures is reflected in part in the fact that section 303(a)(11) requires the establishment of SBRMs, and separately, section 303(a)(11) and National Standard 9 requires that FMPs include conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality. As a practical matter, there are multiple steps leading to the development of conservation and management measures that address bycatch. First, bycatch data are collected, recorded, and reported pursuant to an SBRM. The 2011 U.S. National Bycatch Report (NOAA Technical Memorandum NMFS-F/SPO-117E) describes how data from SBRMs are used in combination with other information, such as fishing effort, fishery independent data, and other data (pages 90, 155, 219, 319, 350, and 373), to develop total estimates of bycatch by fishery. Second, bycatch data from an SBRM, as well as other information about the fishery, are used to assess (e.g. evaluate or estimate) the amount and type of bycatch in a fishery. A variety of different models can be used to estimate bycatch. The models and combination of data used to estimate bycatch vary from region to region and across fisheries, depending on a variety of factors, including the characteristics of the fishery and the data available to manage the fishery. The resulting estimates are often provided in Stock Assessment and Fishery Evaluation (SAFE) reports. Finally, bycatch data and estimates are used to inform a Council in the development of conservation and management measures to minimize bycatch and bycatch mortality to the extent practicable. (This information may also be used by Councils for other purposes, such as for in-season or post-season management of a fishery, and for stock assessments.)

One source of confusion in Evaluating Bycatch is that the report conflates the collection and reporting of bycatch data with the assessment of such data when the report states that “the combination of data collection and analyses that is used to estimate bycatch in a fishery constitutes the SBRM for the fishery” (Appendix 5). NMFS does not believe that the estimation methods must be included in an FMP as part of the standardized reporting methodology. However, neither this rule nor the statute precludes discussion of those estimation methods in an FMP.

While defining “standardized reporting methodology” as something different than bycatch assessment and management measures, NMFS recognizes the interconnectedness of these steps. This proposed rule addresses the interrelation between these steps by explaining the purpose of SBRM (proposed section 600.1600) and requiring that data resulting from the methodology be useful, in conjunction with other relevant sources of data, in meeting the purpose of the SBRM and fishery-specific bycatch objectives (proposed section 600.1610((a)(2)(i)). (See Purpose of an SBRM, above.)

The proposed rule also clarifies that “standardized” does not mean that reporting methodologies must be standardized at a regional or national level. Proposed section 600.1605(a) explains that a standardized reporting methodology may vary from one fishery to another (including among fisheries managed in the same FMP). However, the methodology must provide a consistent approach for collecting, recording, and reporting bycatch data within a fishery. For example, a reporting methodology that relies on self-reported logbook data may be appropriate for one fishery, while at-sea observer coverage may be more appropriate for other fisheries. As long as the reporting methodology for a fishery provides for a consistent approach for collecting, recording, and reporting bycatch data for all the participants in that fishery, then the methodology would be considered “standardized” under the proposed rule's definition.

This proposed rule acknowledges that whether a methodology is appropriate for a fishery will depend on the specific circumstances of the fishery. This proposed rule frames policy choices associated with establishing an SBRM by providing “required factors” for establishing or reviewing an SBRM (proposed section 600.1610(a)(2)(i)), and by recommending additional factors that may be considered by the Councils (proposed section 600.1610(a)(2)(ii)).

Proposed section 600.1610(a)(2)(i) states that data resulting from the methodology must be useful, in conjunction with other relevant sources of data, in meeting the purpose of the methodology as described in section 600.1600 and fishery-specific bycatch objectives. This requies a Council, when establishing or reviewing a methodology, to consider the conservation and management objectives of the fishery with respect to bycatch, the data quality associated with the methodology, and information about the characteristics of bycatch in the fishery, when available (such as the amount of bycatch occurring in the fishery, the importance or bycatch in estimating the total mortality of fish stocks, and the importance of bycatch to related ecosystems). Because data resulting from an SBRM will be used, along with other relevant information, to inform the assessment of the amount and type of bycatch occurring in a fishery, a Council should consult with its scientific and statistical committee, advisory panels, and the NOAA science centers, as appropriate, on data elements, reporting frequency, and other design and methodology factors (proposed section 600.1610(b)). Another required consideration when establishing or reviewing a methodology is its feasibility, from cost, technical, and operational perspectives. In addition, the proposed rule requires that each SBRM be designed to be implemented within available funding.

The proposed rule also recognizes that other factors may be relevant to establishing an SBRM. Therefore, proposed section 600.1610(a)(2)(ii) provides that Councils may also consider the overall magnitude and/or economic impact of the fishery, and the scientific methods and techniques available to collect and report bycatch data that could improve the quality of the bycatch estimates.

NMFS recognizes that a court decision held that operational constraints (such as funding) are not an excuse for failing to “establish” an SBRM. (See Oceana v. Locke, 670 F.3d 1238 (D.C. Cir. 2011).) However, NMFS does not believe that this court decision stands for the proposition that costs cannot be taken into consideration at all when developing or revising an SBRM. The case did not discuss National Standard 7, which explicitly requires that conservation and management measures (which would include data collection, recording, and reporting requirements employed under an SBRM) “where practicable, minimize costs and unnecessary duplication” (section 301(a)(7), 16 U.S.C. 1851(a)(7)). If the Council proposes an FMP or FMP amendment with an SBRM that is not designed to be implemented within available funding or that is not feasible, NMFS may need to disapprove or partially disapprove that FMP amendment. Therefore, this proposed rule provides that Councils must consider feasibility when establishing or reviewing an SBRM.

Proposed section 600.1610(a)(2)(i) requires that data resulting from the methodology be useful, in conjunction with other relevant sources of data, in meeting the purpose of the methodology as described in section 600.1600 and fishery-specific bycatch objectives. However, proposed section 600.1610(a)(2)(i) does not include specific standards regarding the precision or accuracy of bycatch estimates, as NMFS does not believe that section 303(a)(11) requires that an SBRM produce data that will generate estimates to a particular standard of statistical accuracy or precision. (See also 50 CFR 600.350(d)(2), recognizing under National Standard 9 Guidelines that “[d]ue to limitations on the information available, fishery managers may not be able to generate precise estimates of bycatch and bycatch mortality or other effects” for measures under consideration.) As explained above, other sources of data—beyond data from an SBRM—are used in bycatch assessments. In addition, different fisheries have different bycatch issues and concerns. This proposed rule recognizes the diversity of fisheries across the country and provides for a fishery-specific evaluation of the factors outlined in proposed section 600.1610(a)(2), while still ensuring that SBRMs will produce data that will be useful in meeting the statutory purpose of SBRMs. Based on its evaluation of the factors, a Council may determine that different levels of uncertainty are acceptable for different fisheries. For example, although an increase in observer coverage levels in a fishery would reduce uncertainty of bycatch estimates, such an increase may not be feasible from a cost or safety standpoint, may not be necessary to assess bycatch in the fishery, or may not be useful in developing conservation and management measures for bycatch in that fishery. The proposed rule would allow a Council to evaluate whether an incremental improvement in data quality is justified in light of the purpose of SBRM and other factors outlined in sections 600.1610(a)(2)(i) and (ii).

Some courts have addressed bycatch estimates or the quality of data in the context of particular FMPs or amendments. (See, e.g., NRDC v. Evans, 168 F.Supp.2d 1149, 1154 (N.D. Cal. 2001), asserting that NMFS failed to address the SBRM requirement and its “duty to obtain accurate bycatch data”; and Oceana v. Evans, 384 F.Supp.2d 203, 234-235 (D.D.C. 2005), finding that NMFS failed to analyze what type of program would “succeed in producing the statistically reliable estimates of bycatch needed to better manage the fishery” and to address an accuracy concern in a scientific study.) However, these opinions were based on the specific records before the courts, and did not engage in comprehensive statutory construction of the SBRM provision. NMFS believes that the approach of this proposed rule is consistent with MSA section 303(a)(11) and will ensure that SBRMs are developed consistent with the statutory purpose for SBRMs (proposed section 600.1600), while allowing Councils to address the unique circumstances of particular fisheries.

NMFS clarifies that the Evaluating Bycatch report should not be treated as the agency's interpretation of the SRBM provision; that is the purpose of this proposed rule. A Council may continue to use the Evaluating Bycatch report, as explained below. NMFS notes that the Evaluating Bycatch report discusses accuracy and precision in the context of bycatch estimates from observer data. (See Evaluating Bycatch at 35-39.) The report describes the accuracy of an estimate as “the difference between the mean of the sample and the true population value,” and the precision of an estimate as “essentially how repeatable an observation would be if a number of independent trials were to be conducted.” (Id. at 38.) To address these issues, the Evaluating Bycatch report provided “precision goals” expressed as “coefficient of variation” (CV), which is the ratio of the square root of the variance of the bycatch estimate (i.e. the standard error) to the estimate itself. The lower the CV, the more precise (and less uncertain) is the bycatch estimate. (Id. at 35.) The report makes clear that there are a variety of situations in which precision goals for bycatch estimates may not be useful to consider when designing bycatch data collection and reporting methods, and in which achieving such goals may not be feasible. The report lists numerous caveats for using precision goals in the context of bycatch reporting/monitoring programs. (Id. at Executive Summary, 58.)

While observer programs may be included as part of an SBRM, the MSA does not require their inclusion in every SBRM. (See 16 U.S.C. 1853(a)(11), (b)(8).) Moreover, under this proposed rule, bycatch estimation is not included in the definition of standardized reporting methodology. If a Council finds that it would be helpful to consider CV goals for bycatch estimates when it designs an SBRM, this proposed rule would not preclude that. A Council may continue to use the Evaluating Bycatch report for information on CV goals, considerations for observer programs, etc., as appropriate, although NMFS advises Councils to take into consideration that Evaluating Bycatch is over a decade old, and that technologies and science have evolved considerably since its publication in 2004.

To document that an SBRM is “established,” proposed section 1600.1610(a)(1) requires that every FMP contain a description of the required bycatch data collection, recording, and reporting procedures that constitute the SBRM for each fishery managed under it. The description must also provide a statement explaining why the methodology is appropriate for the fishery as guided by mandatory and discretionary factors described in proposed section 1600.1610(a)(2). The explanation required by proposed section 1600.1610(a)(1) must be based on a thorough analysis of all the factors evaluated in establishing a standardized reporting methodology. The explanation must be contained in the FMP, but it may incorporate by reference analyses in FMPs, FMP amendments, Stock Assessment and Fishery Evaluation (SAFE) reports or other documents. The description and explanation of the SBRM will clarify for the public and interested stakeholders the policy choices that the Council considered in establishing the SBRM.

With this proposed rule, NMFS also seeks to ensure that the Councils have sufficient flexibility to adjust implementation of an established SBRM in a way that is clear to the public, but that does not necessarily require an FMP amendment. This proposed rule provides that, if a Council anticipates that adjustments will be necessary to implement the methodology, the Council may, consistent with the requirements of the MSA and other applicable law, consider adopting a process in an FMP to adjust implementation of the methodology. A Council may consider adopting such a process based on factors, which include, but are not limited to, available funding, management contingencies, or scientific priorities. If such a process is adopted, the FMP must describe the process by which the Councils or NMFS plan to implement the desired adjustments to an SBRM. (See proposed section 600.1610(c)). Such adjustments may include fine tuning the intensity, focus, or frequency of the required data collection procedures specified in the FMP. Such a process could reflect existing annual or multi-year processes already in use by a Council, such as framework adjustments or annual specifications. The process must clearly describe considerations that will drive those adjustments. The need for such a process may be particularly relevant to SBRMs that are heavily dependent on the use of observers to collect bycatch data. NMFS also believes that there may be instances in which changes to the underlying conservation and management objectives for the fishery, funding, available technology, or other factors may trigger a complete review and possible revision of the SBRM. It is important that the public understands, upfront, the limits of applying such adjustments under an established SBRM and how the Council will determine that a reevaluation of the established methodology is warranted. With this proposed rule, NMFS seeks to clarify how an SBRM can be “established” and “standardized” while still providing necessary flexibility to implement the SBRM.

Proposed section 600.1610(d) provides that all FMPs must be consistent with this rule within 5 years of finalizing the rule. To verify consistency with this rule, Councils should conduct a review of their existing SBRMs. The review should provide information to determine whether or not an FMP needs to be amended. The analysis and conclusions from the review should be documented but do not need to be contained in an FMP.

There are several potential outcomes of the review. A review could find that there are FMPs with existing SBRMs that are consistent with this rule, in which case no FMP amendments are necessary. Other FMPs may define SBRMs more expansively than the definition in this proposed rule. For example, they may contain components that are consistent with this proposed rule, along with additional components that are not precluded by this rule, but are not minimally required. Those FMPs may not require further amendments. Still other FMPs may describe procedures or activities that comprise an SBRM but do not explain them in a manner consistent with this rule. In such cases, an FMP amendment may be warranted.

After the initial review, Councils should periodically review standardized reporting methodologies to verify continued compliance with the MSA and this rule. Such a review should be conducted at least once every 5 years. Proposed section 600.1610(d) is consistent with the review and improvement of data collection methods, data sources, and applications described under the National Standard 9 guidelines at 50 CFR 600.350(d)(1).

NMFS has made a preliminary determination to apply a Categorical Exclusion to this action under the National Environmental Policy Act due to the procedural nature of this action. If and when the provisions of this proposed rule are applied to specific FMPs, the Councils and/or the Secretary would prepare an Environmental Impact Statement (EIS) or Environmental Assessment (EA), as appropriate. NMFS solicits comments on this preliminary determination to use a categorical exclusion.

Pursuant to section 305(d) of the Magnuson-Stevens Act (16 U.S.C. 1855(d)), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the other provisions of the Magnuson-Stevens Act and other applicable laws, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows.

The purpose of the action is to articulate an interpretation of the basic requirements of the SBRM provision of section 303(a)(11) of the MSA through a rulemaking to promote transparency and consistency. Key components of the proposed rule include:

(1) A definition of “standardized reporting methodology” as applicable only to the definition of “bycatch” in the MSA and pertaining only to data collection, reporting and recording activities (not bycatch assessment and estimation);

(2) clarified procedures for establishing, documenting, and reviewing SBRMs under the MSA; and

(3) an option for adaptable implementation to allow for operational flexibility.

The proposed rule defines a standardized reporting methodology as an established procedure or procedures used to collect, record, and report bycatch data in a fishery or subset of a fishery. It would clarify that the purpose of the methodology is to provide data that will inform the assessment of the amount and type of bycatch occurring in a fishery for use in developing conservation and management measures that, to the extent practicable, minimize bycatch and bycatch mortality. However, the phrase “standardized reporting methodology” in section 303(a)(11) refers only to bycatch data collection, recording, and reporting procedures.

The action proposes a set of factors to help frame policy choices in establishing or reviewing an SBRM. Data resulting from the methodology must be useful, in conjunction with other relevant sources of data, in meeting the purpose of the SBRM and fishery-specific bycatch objectives. This would require Councils to consider conservation and management objectives related to bycatch for a fishery, the quality of the data associated with the methodology, and information about the characteristics of bycatch in the fishery, when available (such as the amount of bycatch occurring in the fishery, the importance of bycatch in estimating the total mortality of fish stocks, and the importance of bycatch to related ecosystems). The proposed rule also would require that an SBRM be feasible and designed to be implemented with available funding, and addresses the need for an SBRM to be adaptable in response to changes in funding levels or other circumstances. Finally, the proposed rule provides that existing SBRMs should be reviewed at least once every five years. The proposed rule does not require that an SBRM be designed to achieve a particular performance standard or precision goal.

Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” The Small Business Administration (SBA) has established size standards for all major industry sectors in the United States, including commercial finfish harvesters (NAICS code 114111), commercial shellfish harvesters (NAICS code 114112), other commercial marine harvesters (NAICS code 114119), for-hire businesses (NAICS code 487210), marinas (NAICS code 713930), seafood dealers/wholesalers (NAICS code 424460), and seafood processors (NAICS code 311710). A business primarily involved in finfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide. For commercial shellfish harvesters, the other qualifiers apply, and the receipts threshold is $5.5 million. For other commercial marine harvesters, for-hire businesses, and marinas, the other qualifiers apply, and the receipts threshold is $7.5 million. A business primarily involved in seafood processing is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual employment not in excess of 500 employees for all its affiliated operations worldwide. For seafood dealers/wholesalers, the other qualifiers apply, and the employment threshold is 100 employees. A small organization is any not-for-profit enterprise that is independently owned and operated and is not dominant in its field. Small governmental jurisdictions are governments of cities, counties, towns, townships, villages, school districts, or special districts, with populations of less than 50,000.

All FMPs have established SBRMs according to the requirements in 303(a)(11). This proposed rule would provide national guidance and improved clarity about implementing the existing requirements. The proposed rule would provide the Councils and the Secretary a five-year period within which to review FMPs to make any necessary amendments.

Because the proposed rule would clarify existing requirements for FMPs and is procedural in nature, it would not directly regulate a particular fishery and will not directly alter the behavior of any entities operating in federally managed fisheries. Thus, no direct economic effects on commercial harvesting businesses, for-hire businesses, marinas, seafood dealers/wholesalers, or seafood processors are expected to result from this action. Therefore, no small entities would be directly affected by this rule.

As a result of the information above, a reduction in profits for a substantial number of small entities is not expected. Because this action, if implemented, is not expected to have a significant adverse economic effect on the profits of a substantial number of small entities, an initial regulatory flexibility analysis is not required and none has been prepared.

No duplicative, overlapping, or conflicting Federal rules have been identified. This rule would not establish any new reporting or record-keeping requirements.

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 600 as follows: