Federal Register Vol. 81, No.44,

This proposal is issued under Marketing Order No. 989, as amended (7 CFR part 989), regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This proposal is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

Section 1504 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill)(Pub. L. 110-246) amended section 18c(17) of the Act, which in turn required the addition of supplemental rules of practice to 7 CFR part 900 (73 FR 49307; August 21, 2008). The additional supplemental rules of practice authorize the use of informal rulemaking (5 U.S.C. 553) to amend Federal fruit, vegetable, and nut marketing agreements and orders. USDA may use informal rulemaking to amend marketing orders based on the nature and complexity of the proposed amendments, the potential regulatory and economic impacts on affected entities, and any other relevant matters.

AMS has considered these factors and has determined that the amendment proposals are not unduly complex and the nature of the proposed amendments is appropriate for utilizing the informal rulemaking process to amend the order.

The proposed amendments were unanimously recommended by the Committee following deliberations at a public meeting held on October 2, 2014.

A proposed rule soliciting comments on the proposed amendments was issued on October 15, 2015, and published in the Federal Register on October 16, 2015 (80 FR 62506). Two comments were received. One comment was in support of the amendments. The second comment asked questions about one of the proposals. These comments will be addressed later in this document. AMS will conduct a producer referendum to determine support for the proposed amendments. If appropriate, a final rule will then be issued to effectuate the amendments favored by producers in the referendum.

The Committee's proposed amendments would amend the order by: (1) Authorizing the Committee to borrow from a commercial lending institution during times of cash shortage to help ensure continuity of operations during the first half of the year before assessment income is received, and (2) Establishing a monetary reserve equal to one year's budgeted expenses.

Section 989.80 of the order, Assessments, authorizes the Committee to collect assessments from handlers to administer the program.

This proposal would provide the Committee with authority to borrow from a commercial lending institution during times of cash shortages. Since inception of the marketing order, the Committee has occasionally used the order's volume regulation provisions to pool a portion of the annual raisin crop to assure orderly marketing. These pooled raisins, designated by the Committee as reserve raisins, were sold and released to handlers throughout the crop year. In managing the pooled raisins for the best return to growers, the Committee pooled the cash received from the handlers until equity payments were distributed to the growers. The Committee borrowed funds (with interest) from this reserve raisin pool during times of assessment shortages to temporarily cover expenses, generally during the early part of the new crop year.

Volume regulation has not been in effect under the marketing order since 2010, and the Committee has been returning equity payments to the growers who contributed raisins to the 2009 reserve raisin pool. Therefore, funds from the reserve raisin pool are no longer available for the Committee to use during times of cash shortages. The Committee's proposed amendment to the order would allow it to borrow from a commercial lending institution when no other funding is available. This would assist the Committee in bridging finances from the end of one fiscal year through the first quarter of the new fiscal year, before assessments on the new crop are received.

Additionally, the Committee has received grants from the Foreign Agricultural Service's (FAS) Market Access Program (MAP) since 1995 to conduct market expansion and development activities in various international markets. Under MAP, participants must first use their own resources for activities and request reimbursement from FAS. Sometimes there is a time-lag between submission of reimbursement requests and receipt of payments, which causes budgeting issues. Having authority to borrow from a commercial lending institution would help to ensure continuity of operations when this occurs.

Therefore, for the reasons stated above, it is proposed that § 989.80, Assessments, be amended by adding a sentence in paragraph (c) that would provide the Committee with authority to borrow from a commercial lending institution.

Section 989.81 of the order, Accounting, authorizes the Committee to credit or refund unexpended assessment funds from the crop year back to the handlers from whom they were collected. Currently, the order doesn't allow the Committee to retain handler assessments from prior crop years.

This proposal would allow the Committee to establish a monetary reserve equal to one year's operational expenses as averaged over the past six years. Reserve funds could be used for specific administrative and overhead expenses such as staff wages, salaries and related benefits, office rent, utilities, postage, insurance, legal expenses, and audit costs; to cover deficits incurred during any period when assessment income is less than expenses; to defray expenses incurred during any period when any or all provisions of the order are suspended; liquidation of the order; and other expenses recommended by the Committee and approved by the Secretary. Reserve funds could not be used for promotional expenses during any crop year prior to the time that assessment income is sufficient to cover such expenses.

As previously stated in Proposal #1, the Committee borrowed cash from the reserve raisin pool and repaid it with interest when handler assessment cash shortages occurred in the past. This practice helped the Committee to bridge finances from one fiscal crop year to the next until assessment income for the new crop year was received. This option is no longer available.

For the reasons stated above, it is proposed that § 989.81, Accounting, be amended to allow the Committee to retain excess assessment funds for the purpose of establishing a monetary reserve equal to one year's budgeted expenses as averaged over the past six years. Such excess funds could only be used for specific administrative and operational expenses as outlined in the order.

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

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 3,000 producers of California raisins and approximately 28 handlers subject to regulation under the marketing order. The Small Business Administration defines small agricultural producers as those having annual receipts of less than $750,000 and defines small agricultural service firms as those whose annual receipts are less than $7,000,000 (13 CFR 121.201).

Based upon information provided by the Committee, it may be concluded that a majority of producers and approximately 18 handlers of California raisins may be classified as small entities.

The amendments proposed by the Committee would authorize the Committee to borrow from commercial lending institutions and to establish a monetary reserve fund equal to one year's budgeted expenses. This would help to ensure proper management and funding of the program.

The Committee reviewed and identified a yearly budget that would be necessary to continue program operations in the absence of a reserve pool. Based on this budget, the Committee believes a monetary reserve of approximately $2 million would be sufficient to continue operations. The anticipated $2 million to be accumulated in a monetary reserve would not be accrued in one crop year. It would be spread over several years, depending on expenses, assessment revenue, and excess handler assessments accrued in each crop year. For example: If excess annual handler assessments amount to $400,000, it would take five years to accrue $2 million. Currently, the average excess handler assessments paid yearly over the last six years has been $861,622. During the time in which the monetary reserve fund would be accumulated, the Committee would seek funding from a commercial lending institution as previously explained in Proposal #1.

While this action would result in a temporary increase in handler costs, these costs would be uniform on all handlers and proportional to the size of their businesses. However, these costs are expected to be offset by the benefits derived from operation of the order. Additionally, these costs would help to ensure that the Committee has sufficient funds to meet its financial obligations. Such stability is expected to allow the Committee to conduct programs that would benefit all entities, regardless of size. California raisin producers should see an improved business environment and a more sustainable business model because of the improved business efficiency.

Alternatives were considered to these proposals, including making no changes at this time. However, the Committee believes it would be beneficial to have the means and funds necessary to effectively administer the program.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Antoinette Carter at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178, “Vegetable and Specialty Crops.” No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

These proposed amendments would impose no additional reporting or recordkeeping requirements on either small or large California raisin handlers.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

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

The Committee's meeting was widely publicized throughout the California raisin production area. All interested persons were invited to attend the meeting and encouraged to participate in Committee deliberations on all issues. Like all Committee meetings, the October 2, 2014, meeting was public, and all entities, both large and small, were encouraged to express their views on these proposals.

A proposed rule concerning this action was published in the Federal Register on October 16, 2015 (80 FR 62506). Copies of the rule were mailed or sent via facsimile to all Committee members. Finally, the rule was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending December 15, 2015, was provided to allow interested persons to respond to the proposal.

Two comments were received. One comment was in support of the proposal. The second comment stated that the term “commercial lending institution” is vague and asked for the name of the institution and clarification regarding what constitutes a shortage. The comment also stated that the lending arrangement should be discussed openly. To clarify, as used in this proposal, a shortage would exist when the Committee's cash flow needs exceed the amount of cash available from handler assessments. Regarding open discussion, the Committee establishes a budget and assessment rate annually in meetings that are open to the public. During these meetings, the Committee would discuss any shortages and any available commercial lending opportunities. No changes have been made to the proposed amendments as a result of the comments received.

The findings and conclusions and general findings and determinations included in the proposed rule set forth in the October 16, 2015, issue of the Federal Register are hereby approved and adopted.

Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling of Raisins Produced from Grapes Grown in California.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions. It is hereby ordered, that this entire rule be published in the Federal Register.

It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR part 900.400-407) to determine whether the annexed order amending the order regulating the handling of Raisins Produced from Grapes Grown in California is approved by growers, as defined under the terms of the order, who during a representative period were engaged in the production of raisins in the production area. The representative period for the conduct of such referendum is hereby determined to be August 1, 2014, through July 31, 2015.

The agents of the Secretary to conduct such referendum are designated to be Maria Stobbe and Andrea Ricci, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (559) 487-5901, or Email: [email protected] or [email protected], respectively.

The findings hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of the marketing order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

1. The marketing order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

2. The marketing order, as amended, and as hereby proposed to be further amended, regulates the handling of raisins produced from grapes grown in California in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing order;

3. The marketing order, as amended, and as hereby proposed to be further amended, is limited in application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

4. The marketing order, as amended, and as hereby proposed to be further amended, prescribe, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of raisins produced in the production area; and

5. All handling of raisins produced in the production area as defined in the marketing order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

It is therefore ordered, that on and after the effective date hereof, all handling of raisins produced from grapes grown in California shall be in conformity to, and in compliance with, the terms and conditions of the said order as hereby proposed to be amended as follows:

The provisions of the proposed marketing order amending the order contained in the proposed rule issued by the Administrator on October 15, 2015, and published in the Federal Register (80 FR 62506) on October 16, 2015, will be and are the terms and provisions of this order amending the order and are set forth in full herein.

On June 18, 2012, the NRC received a petition for rulemaking filed jointly by the NRDC and Mr. Paul Blanch (ADAMS Accession No. ML12177A377). The petitioners requested that the NRC amend its regulations in parts 50, 52, 54, and 100 of title 10 of the Code of Federal Regulations (10 CFR) to clearly and unequivocally require the environmental qualification of all safety-related cables, wires, splices, connections and other ancillary electrical equipment that may be subjected to submergence and/or moisture intrusion during normal operating conditions, severe weather, seasonal flooding, and seismic events, and post-accident conditions, both inside and outside of a reactor's containment building.

The petition was docketed by the NRC on June 22, 2012, and was assigned Docket No. PRM-50-106. On September 27, 2012 (77 FR 59345), the NRC published a notice of receipt in the Federal Register. The NRC did not request public comment on PRM-50-106.

The petitioners raised three issues in support of their request that the NRC amend the regulations related to environmental qualification of electrical equipment at nuclear power plants. The three issues and the NRC's responses to each issue are presented in this section.

Issue 1: Through the issuance of Generic Letter (GL) 82-09, “Environmental Qualification of Safety-Related Electrical Equipment,” dated April 20, 1982 (ADAMS Accession No. ML031080281), the NRC staff limited the scope of § 50.49 based on the location of the electrical equipment.

The petitioners stated that as a result of the accident at Three Mile Island, the NRC strengthened the regulatory requirements for electrical equipment by, among other things, revising § 50.49(e) to add paragraph (6) to address the possibility of electrical equipment submergence. The petitioners asserted that § 50.49(e)(6), as written, did not limit or restrict its applicability based upon the location of the equipment, but that the NRC staff limited this applicability through a question and answer (Q&A) set in GL 82-09:

Q. For equipment qualification purposes, what are the staff requirements concerning submergence of equipment outside containment?

A. The staff requires that the licensee submit documentation on the qualification of safety-related equipment that could be submerged due to a high energy line break outside containment.

The petitioners asserted that the problem with this excerpt from GL 82-09 is that safety-related cables and wires outside containment are routinely submerged in water not only during high energy line breaks (HELBs), but also during a reactor's normal operation. The petitioners argued that the 1979 Three Mile Island accident and laboratory testing have shown that moisture intrusion and submergence of electrical cables and wires significantly increase the probability of failure, which also causes the failure of connected components such as emergency core cooling system motors and pumps, valves, controls, and instrumentation. The petitioners asserted that the safety implications from the failure of a safety-related cable inside containment submerged by an accident, outside containment submerged by a high energy line break, or outside containment submerged by nature, are identical—the safety function is lost.

NRC Response to Issue 1: The regulations at § 50.49, “Environmental qualification of electric equipment important to safety for nuclear power plants,” are applicable to electrical equipment located outside containment as well as inside. The January 21, 1983, Federal Register notice of the final § 50.49 rule (48 FR 2730) made this clear by noting that nuclear power plant equipment important to safety must be able to perform its safety functions throughout its installed life, and that this requirement applies to equipment inside as well as outside containment. (See 48 FR 2731.) The Q&A referenced by the petitioners is itself premised on the applicability of § 50.49 to important to safety electrical equipment outside of containment. Regardless of its location inside or outside containment, if any important to safety electrical equipment is near enough to a high energy line (e.g., steam line, feedwater, blow-down, charging, or letdown lines) that the equipment's performance could be adversely affected by a rupture of that line, § 50.49 requires that the equipment be qualified to withstand any environmental conditions that may result from such an event. Section 50.49 was established to impose additional requirements beyond those established by § 50.65, “Requirements for monitoring the effectiveness of maintenance at nuclear power plants;” 10 CFR part 50, appendix A, “General Design Criteria [GDC] For Nuclear Power Plants;” 1 and 10 CFR part 50, appendix B, “Quality Assurance Criteria for Nuclear Power Plants and Fuel Processing Plants.” The additional requirements in § 50.49 apply to important to safety electrical equipment that could be subject to postulated design basis events (DBEs) that could affect: (1) The integrity of the reactor coolant pressure boundary; (2) the capability to shut the reactor down safely and keep it safe; or (3) the capability to prevent or mitigate accidents that could result in potential offsite exposures comparable to NRC emergency planning guidelines. As the cited GL 82-09 Q&A indicates, a HELB was the most probable such DBE involving submergence outside of containment for which the NRC staff believed that a power reactor's important to safety electrical equipment must be environmentally qualified.

The NRC agrees with the petitioners that safety-related cables and other electrical equipment must be fully able to function, not only within an operating environment affected by a HELB under § 50.49, but also over the entire length of its system, even those portions not exposed to a HELB. Criterion 18 of 10 CFR part 50, appendix A, requires that electric power systems important to safety be designed so that important areas and features permit appropriate periodic inspection and testing. Example areas and features specified are the following: wiring, insulation, connections, and switchboards. Criterion 18 also requires the systems to be designed with a capability to test periodically the operability and functional performance of the components of the systems and the operability of the system as a whole.

As the petitioners rightly point out, designing the entirety of an electrical safety system for inspectability and testability is essential because “[i]t matters little if the portion of a safety-related cable inside [or] outside containment in a high energy line break area survive[s] if another portion of that same cable routed underground fails due to submergence.” It is also important to note that the NRC's design and qualification requirements for underground or inaccessible wires, cables, and ancillary equipment are inspected and enforced. The NRC's inspection procedures direct that inspections of electrical equipment at risk of flooding or exposure to moisture be conducted annually.

The NRC disagrees with the petitioners' assertion that GL 82-09 has restricted the applicability of § 50.49 regulatory requirements for safety-related equipment according to its location. Generic letters do not have the legal authority of a final rule promulgated after due public notice and comment, as was § 50.49. The Q&A in GL 82-09 does not exempt any safety-related equipment that could be submerged, inside or outside containment, from the environmental qualifications (EQ) requirements of § 50.49. The purpose of the GL 82-09 Q&A cited by the petitioners was simply to clarify that under § 50.49, licensees must submit information on the EQ of important to safety equipment that could be submerged due to a high energy line break outside containment. The applicability of § 50.49 is not limited to a HELB, although after more than 30 years of operating experience and risk analysis, a HELB remains the most probable DBE involving submergence outside containment that meets the § 50.49 criteria for the subset of DBEs that could result in a severe accident. The clarifying Q&A was important because the GL was providing information in the event of a HELB, not describing the entire universe of postulated DBEs to which § 50.49 could apply.

Issue 2: Safety-related cable subject to submergence, condensation, or moisture located in a “mild environment” should not be exempted from the environmental qualification requirements of § 50.49.

The petitioners argued that rulemaking is necessary to ensure that electrical cables and wires will be properly qualified for environmental conditions they may experience during normal operation (i.e., a mild environment) as well as in an accident. The petitioners claimed the need for rulemaking and clarification of § 50.49 to address cables that may be exposed to non-mild environments during normal, abnormal, and accident conditions. The petitioners noted that electrical cables and wires “are prone to accelerated failure rates when submerged in water or exposed to high humidity unless designed and qualified for these environmental conditions.” The petitioners stated that the NRC prioritized the inspection of cable penetrations after the 1979 Three Mile Island accident based on the probability of their impairment, mostly due to submergence and moisture. The petitioners argued that “[i]f these conditions cause a high probability of impairment following an accident, then it is logical to assume that these conditions produce a similar outcome in the absence of or prior to an accident as well.” In support of their case for a rulemaking to address this impairment, the petitioners also referenced a 1996 study by the U.S. Department of Energy (DOE) (ADAMS Accession No. ML031140264) and three studies by the Electric Power Research Institute (EPRI), “Plant Support Engineering: Life Cycle Management Planning Sourcebooks: Medium-Voltage (MV) Cables and Accessories (Terminations and Splices),” EPRI Product ID: 1013187; “Plant Support Engineering: Aging Management Program Development Guidance for AC and DC Low-Voltage Power Cable Systems for Nuclear Power Plants,” EPRI Product ID: 1020804; and “Plant Support Engineering: Aging Management Program Guidance for Medium-Voltage Cable Systems for Nuclear Power Plants,” EPRI Product ID: 1020805. The EPRI documents are available for download from www.EPRI.com.

Also in support of their request for rulemaking to extend § 50.49 requirements to electrical equipment in mild environments, the petitioners contended that the NRC's requirements state only that safety systems should remain functional and do not provide conditions or acceptance criteria for degraded cables.

NRC Response to Issue 2: The NRC agrees that § 50.49 does not apply to reactor cables and electrical equipment exposed to mild environments. This section of the rule applies EQ requirements only to important to safety cables and electrical equipment that may be exposed to non-mild environments during accident conditions. The purpose of the final § 50.49 rule (48 FR 2730; January 21, 1983) was to codify accepted industry standards and NRC guidance for the EQ of safety-related electrical equipment, and non-safety-related equipment relied on by safety-related equipment, that must perform a safety function under DBE conditions.

The NRC disagrees with the petitioners' assertion that § 50.49 should be amended to extend EQ requirements to important to safety cables and electrical equipment exposed to submergence or moisture intrusion in mild environments. The existing rule specifically exempts from these requirements equipment exposed only to a “mild environment,” which is defined in § 50.49(c) as an environment that would at no time be significantly more severe than the environment that would occur during normal plant operation, including anticipated operational occurrences.

All important to safety equipment whether in mild or non-mild environments is subject to the requirements for monitoring the effectiveness of maintanence under the maintenance rule (§ 50.65). Furthermore, all important to safety equipment at plants with construction permits issued after May 21, 1971, is also subject to the design and quality requirements in 10 CFR part 50, appendix A. In addition to the above requirements, all safety-related equipment is also subject to the quality assurance requirements of 10 CFR part 50, appendix B. Therefore, equipment in mild environments exposed to submergence, condensation, and moisture intrusion, the kind of degradation of concern to the petitioners, is subject to several existing requirements. For important to safety equipment that could be subject to environmental conditions that may result as a consequence of a DBE, § 50.49 establishes additional requirements beyond those stipulated in § 50.65; 10 CFR part 50, appendix A; and 10 CFR part 50, appendix B.

The maintenance rule (§ 50.65) establishes requirements for monitoring the effectiveness of maintenance at nuclear power plants. Under § 50.65(a)(1), licensees are required to monitor the condition or performance of structures, systems, or components (SSCs) in a manner providing reasonable assurance that the intended SSC functions can be fulfilled. Section 50.65(b) describes the types of SSCs subject to its requirements. The maintenance rule (§ 50.65) applies to safety and non-safety SSCs that includes the following: SSCs used in the plant's emergency operating procedures or relied upon to mitigate accidents or transient unsafe conditions; SSCs whose failure could prevent safety-related SSCs from fulfilling their safety-related function; or SSCs whose failure could cause a reactor scram (unplanned action to stop the fission reaction) or the actuation of a safety-related system. With this scope, the maintenance rule (§ 50.65) already covers the equipment specified in the petition (i.e., all safety-related cables, wires, splices, connections, and other ancillary electrical equipment that may be subjected to submergence and/or moisture intrusion). Section 50.65 covers this equipment under any normal or unusual operating or post-accident conditions, whether these conditions include severe weather, seasonal flooding, or seismic events, or whether the SSCs are inside or outside of containment. The rule also covers the petitioners' specified systems and components whether or not they are exposed to submergence in water, condensation, wetting, and other environmental stresses during routine operation and infrequent events (e.g., flooding).

In its April 2012 Regulatory Guide (RG) 1.218, “Condition-Monitoring Techniques for Electric Cables Used In Nuclear Power Plants” (ADAMS Accession No. ML103510447), the NRC described a programmatic approach and acceptable techniques for monitoring the condition of electric cable systems and their operating environments. As authority for this guidance, RG 1.218 cited 10 CFR part 50, Criterion XI, “Test Control,” of appendix B. Criterion XI specifies that power reactor licensees must have a program to assure that all testing required to show that SSCs will perform satisfactorily in service is identified and performed.

The test program must include, as appropriate, operational tests of SSCs during nuclear power plant operation. Test procedures must include provisions for assuring that all prerequisites for the given test have been met, that adequate test instrumentation is available and used, and that the test is performed under suitable environmental conditions. Test results under Criterion XI must also be “documented and evaluated” to ensure that this Criterion's requirements have been satisfied. It is important to note that Criterion XI is only one of 18 criteria that are applicable to a quality assurance program for the electrical equipment at issue in this petition. Appendix B criteria establish quality assurance requirements for the design, manufacture, construction, and operation of all safety-related equipment, and all activities affecting its functions, including not only testing, but designing, purchasing, fabricating, handling, shipping, storing, cleaning, installing, inspecting, operating, maintaining, repairing, and modifying this equipment. Criterion XVI, “Corrective Action,” also requires licensees to have measures assuring that conditions adverse to quality are promptly identified and corrected. Examples of such conditions are the following: failures, malfunctions, deficiencies, deviations, defective material and equipment, and nonconformances. For significant conditions adverse to quality, including the potential failure of electrical equipment to function as designed, licensees must determine the cause of the condition and “assure” that corrective action is taken to preclude a repetition of the adverse condition. The identified condition, its cause, and the corrective action taken to prevent its recurrence must also be documented and the appropriate levels of management informed. In addition, for important to safety cables and electrical equipment located in an area meeting the definition of a mild environment in § 50.49, 10 CFR part 50, appendix A, GDC 4 requires that this equipment be designed to manage the conditions it will experience during normal operation, maintenance, testing, and postulated accidents.

The NRC does not agree that its existing regulations do not require sufficient protection of important to safety electrical equipment against expected or potential environmental conditions it experiences during its period of service. Regardless of whether a cable, switch, or other piece of electrical equipment must be environmentally qualified under § 50.49, it must meet maintenance, design, and quality assurance requirements established by § 50.65; 10 CFR part 50, appendix A; and 10 CFR part 50, appendix B (for safety-related equipment), to provide adequate protection for public health and safety. And regardless of whether the equipment is environmentally qualified, it is subject to the same degree of NRC oversight in the form of inspections and enforcement. A rulemaking to require the environmental qualification of all electrical equipment exposed only to mild environments is, therefore, unnecessary.

Moreover, the 1996 DOE study and three EPRI studies cited by the petitioners are well known to the NRC and do not constitute significant new information justifying a rulemaking. The NRC recognized the concern regarding the reliability of low-voltage power cable systems at reactors that the petitioner references and acted accordingly. Among other things, the NRC has revised its inspection procedures to ensure annual inspections of underground bunkers and manholes in a continuing repeated cycle beginning with those containing the most risk-significant cables. The NRC also issued RG 1.218, describing a programmatic approach and acceptable techniques for monitoring the condition of electric cable systems and their operating environments.

The NRC disagrees with the petitioners' contention that the NRC's requirements do not provide conditions or acceptance criteria for degraded cables. Any requirement for safety-related systems to remain functional for a specified operating life is a design requirement, and any failure of the equipment before the end of that operating life would be a violation of that design requirement. Therefore, taken together, GDC 2, 4, and 18 in 10 CFR part 50, appendix A, the maintenance requirements under § 50.65, and the quality assurance testing requirements in 10 CFR part 50, appendix B, Criterion XI, effectively provide an enforceable acceptance criterion for the continued use of cables or any other electrical equipment degrading during normal operation. Criterion XI states that the measured rate of degradation must not impair the equipment's ability to function in an emergency, even if the emergency were to occur on the last day of the performance period specified in the equipment's design requirement.

Guidance for the implementation of this criterion is provided in the August 25, 2009, NRC staff regulatory resolution issue protocol, “Cable Performance Issues at Nuclear Power Plants” (ADAMS Accession No. ML092220419), which the petitioners cited as documentation of the NRC's requirements on cable and wire submergence issues. The NRC staff position in that protocol is: (1) Licensees should monitor cables within the scope of the maintenance rule (§ 50.65) at an appropriate frequency to demonstrate that they can perform their design functions when called upon; and (2) cables must be designed to fulfill their intended design function in the environment to which they are subject. Under the protocol, if cables have been exposed to conditions for which they are not designed or qualified, the licensee must demonstrate, through adequate testing or condition monitoring, that the cables can perform their intended design function for the duration of the qualified period specified in the license.

The NRC also inspects underground cables through established inspection procedures. In particular, Inspection Procedure (IP) Attachment 71111.06, “Flood Protection Measures” (ADAMS Accession No. ML11244A012), specifically directs NRC inspectors to perform an annual review of cables located in underground bunkers or manholes. The IP Attachment directs inspectors to select bunkers or manholes subject to flooding that contain multiple train or multiple risk-significant cables, and inspect those that contain more risk-significant cables before inspecting those with less risk-significant cables. The IP notes that inspectors should rotate through the bunkers or manholes until all are inspected; and then the cycle should be recommenced. The IP Attachment also clarifies that these inspections may be in addition to those for the aging management programs of plants with renewed licenses. Where “significant moisture” is identified at such plants, inspectors are to verify that the licensee takes action to keep the cables dry and assess cable degradation in accordance with the licensee's aging management program.

Issue 3: Although GDC 2 and 4 of the NRC's regulations require that cables be able to perform their design function when subjected to anticipated environmental conditions, the NRC does not apply these and other GDC to the 57 plants with construction permits issued before May 21, 1971, the effective date of the GDC rule (36 FR 3256; February 20, 1971).

Citing the August 25, 2009, NRC staff regulatory issue resolution protocol, “Cable Performance Issues at Nuclear Power Plants,” the petitioners asserted that this statement defined the NRC's governing regulations on submerged cable performance as explicitly including GDC 2 and GDC 4. The GDC 2 requires reactor SSCs that are important to safety be designed to withstand the effects of natural phenomena without loss of capability to perform their safety functions. The GDC 4 requires that these SSCs be designed to accommodate the effects of and be compatible with the environmental conditions associated with normal operation, maintenance, testing, and postulated accidents.

The petition stated that although these GDC may contain appropriate regulatory requirements for the qualification of electrical cables and wires, the NRC has determined that these requirements are not to be applied to the majority of reactors. The petitioners noted that, at the time the petition was submitted, at least 57 of the nation`s 104 operating reactors had construction permits that were issued prior to the effective date of the GDC rule, and that the Commission, through guidance to the NRC staff, has determined that the GDC do not need to be applied to these 57 reactors.

NRC Response to Issue 3: The NRC disagrees with the petitioners' suggestion that the 57 plants that received construction permits prior to May 21, 1971, are not operating safely with appropriately qualified important to safety equipment. In 1992, after more than 15 years of analysis, the NRC staff recommended that the Commission retain the current policy that no exemptions from or specific backfits for the GDC are required for plants with construction permits issued before that date. In its September 18, 1992, Staff Requirements Memorandum (SRM) (ADAMS Accession No. ML003763736), the Commission endorsed the NRC staff's recommendation not to apply the GDC to plants with construction permits issued prior to the effective date of the GDC rule. This recommendation was based on the documented results of the NRC staff's evaluations of representative designs of 10 of the 57 plants against the design requirements of a 1975 Standard Review Plan for reactor license applications based on the approved GDC.

The SRM explained that at the time the GDC were promulgated, the Commission had stressed that they were not new requirements and were promulgated to articulate more clearly the licensing requirements and practice in effect at that time. The Commission stated that while compliance with the intent of the GDC is important, each plant licensed before the GDC were formally adopted was evaluated on a plant-specific basis, determined to be safe, and licensed by the NRC. Furthermore, the Commission determined that existing regulatory processes were sufficient to ensure that plants continue to be safe and comply with the intent of the GDC. As the petitioners also noted, the Commission went on to say that backfitting these 57 plants to meet the GDC would provide little or no safety benefit while requiring an extensive commitment of resources. The petitioners have not provided any significant, new, or previously unconsidered information to justify a new rulemaking or to reverse this NRC position.

The NRC is denying PRM-50-106 because:

(1) The NRC disagrees with the petitioners' assertion that GL 82-09 has restricted the applicability of § 50.49 regulatory requirements for safety-related equipment according to its location. This regulation is applicable to electrical equipment located outside containment as well as inside.

(2) Section 50.49 explicitly excludes important to safety electrical equipment subject only to mild environments. The petitioners have not provided significant new information sufficient to justify a change to this rule. A rulemaking to require the environmental qualification of all electrical equipment exposed only to mild environments is unnecessary because existing NRC regulations require sufficient protection of important to safety electrical equipment against expected or potential environmental conditions it experiences during its period of service.

(3) With regard to the reactors that received construction permits prior to May 21, 1971, the Commission determined in response to SECY-92-223, “Resolution of Deviations Identified During the Systematic Evaluation Program” (ADAMS Accession No. ML12256B290) that these plants are operating safely with appropriately qualified important to safety equipment, and that no specific backfits of the GDC to these plants were required. The petitioners have not provided any significant, new, or previously unconsidered information justifying a rulemaking to apply the GDC to the 57 reactors that received construction permits prior to May 21, 1971.

For the reasons cited in this document, the NRC is denying PRM-50-106. The NRC is denying this petition because the current regulations already address environmental qualification in both mild and design basis event conditions of electrical equipment located both inside and outside of the containment building that is important to safety, and the petitioners did not provide significant new or previously unconsidered information sufficient to justify rulemaking.

On December 29, 2015, the U.S. Department of Energy (DOE) published a notice of proposed rulemaking in the Federal Register proposing that a person importing into the United States any covered product or equipment subject to an applicable energy conservation standard provide, prior to importation, a certification of admissibility to the DOE. (80 FR 81199) The comment period ended February 12, 2016. On February 17, 2016, after receiving several requests for additional time to prepare and submit comments, DOE reopened the comment period until February 29, 2016 (81 FR 8022). At a public meeting held on February 19, 2016, DOE again received requests for additional time to prepare and submit comments. DOE is reopening the period for submitting comments.

DOE will accept comments, data, and information in response to the NOPR received no later than March 14, 2016. DOE will consider any comments in response to the NOPR received by midnight of March 14, 2016, and deems any comments received by that time to be timely submitted.

Any comments submitted must identify the NOPR for Import Data Collection, and provide docket number EERE-2015-BT-CE-0019 and/or regulatory information number (RIN) number 1990-AA44. Comments may be submitted using any of the following methods:

1. Federal eRulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.

2. Email: [email protected]. Include the docket number and/or RIN in the subject line of the message.

3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, Mailstop EE-5B, 1000 Independence Avenue SW., Washington, DC 20585-0121. If possible, please submit all items on a CD. It is not necessary to include printed copies.

4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, Building Technologies Program, 950 L'Enfant Plaza SW., Suite 600, Washington, DC 20024. Telephone: (202) 586-2945. If possible, please submit all items on a CD. It is not necessary to include printed copies.

Docket: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at regulations.gov. All documents in the docket are listed in the regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available.

A link to the docket Web page can be found at: http://www.regulations.gov/#!docketDetail;D=EERE-2015-BT-CE-0019. This Web page will contain a link to the docket for this notice on the regulations.gov site. The regulations.gov Web page will contain simple instructions on how to access all documents, including public comments, in the docket.

For further information on how to submit a comment, review other public comments and the docket, or to request a public meeting, contact Ms. Brenda Edwards at (202) 586-2945 or by email: [email protected].

On February 2, 2016, DOE published a proposed rule in the Federal Register (81 FR 5383) to provide a process for the timely coordination of Federal authorizations for proposed transmission facilities pursuant to section 216(h) of the FPA (16 U.S.C. 824p(h)). The rule would establish an early pre-application process (the Integrated Interagency Pre-application (IIP) process) in support of this coordination and the selection of a NEPA lead agency. The proposed regulations provide a framework for DOE to facilitate early cooperation and exchange of environmental information required to site qualified electric transmission facilities. These activities would occur prior to an applicant filing a request for authorization with Federal permitting agencies. The proposed regulations also provide an opportunity for non-Federal agencies (tribal, state, or local governments) to coordinate separate non-Federal permitting and environmental reviews with those of the Federal permitting agencies. This document announces the public workshop described in the proposed rule.

Members of the public are welcome to pre-register for the webinar if they would like to make oral statements during the specified period for public comment. To pre-register to provide public comments, please email [email protected]. In the email, please indicate your name, organization (if appropriate), citizenship, and contact information. If you would like to receive further information on the proposed rule or IIP process, please include your email address in your pre-registration email.

An audio recording and written transcript of the public workshop, and any comments that DOE receives during the workshop, will be made available after the webinar on the DOE Web site at http://energy.gov/oe/downloads/notice-proposed-rulemaking-integrated-interagency-pre-application-process-iip-electric. You may request a hardcopy of the workshop transcript or comments be sent to you via postal mail by contacting DOE's Office of Electricity Delivery and Energy Reliability.

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-2016-3992; Directorate Identifier 2015-NM-075-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.

This proposed AD was prompted by a report that a captain's seat moved uncommanded during a landing rollout due to a failure in the seat horizontal actuator. Investigation found press fit clutch pins in the actuator could migrate loose when subjected to repeated dynamic impact loading from clutch re-engagement when the manual horizontal control lever is released with the seat still moving on the tracks. The clutch pins can migrate loose, overturn, and force clutch plate separation, resulting in degraded or failed seat locking.

We are proposing this AD to prevent a seat actuator clutch failure, which could result in a loss of seat locking and uncommanded motion of the captain's or first officer's seat; uncommanded seat movement could result in reduced controllability of the airplane.

We reviewed Boeing Alert Service Bulletin B787-81205-SB250054-00, Issue 001, dated December 19, 2014. This service information provides procedures for installation of new captain and first officer seat assemblies, a test of the captain and first officer seat assemblies, and corrective action if necessary. 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. 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-2016-3992.

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 18 airplanes of U.S. registry.

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

We estimate the following costs to do any necessary corrective actions that would be required based on the results of the proposed operational tests. We have no way of determining the number of aircraft that might need these actions:

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-2016-3993; Directorate Identifier 2015-NM-065-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.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015-0081, dated May 7, 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-2016-3993.

Airbus has issued Airbus Service Bulletin A300-27-6070, dated February 17, 2015; and Airbus Service Bulletin A310-27-2106, dated February 17, 2015. This service information describes procedures for inspection and replacement of the THSA.

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.

In most ADs, we adopt a compliance time allowing a specified amount of time after the AD's effective date. In this case, however, EASA has already issued regulations that require operators to replace certain THSAs to address an identified unsafe condition by certain dates, but before exceeding certain flight cycle limits corresponding to each date. To provide for coordinated implementation of EASA's regulations and this proposed AD, we are using the same compliance dates in this proposed AD.

This AD proposes the replacement of the NBB disks at an interval of 14,600 flight cycles to take full benefit of the THSA published life limits. The replacement of the THSA NBB disks having already accumulated more than 14,600 flight cycles will start with the oldest THSA. A different grace period for NBB disks replacement has been defined depending on the flight cycles accumulated on the THSA NBB disks.

We estimate that this proposed AD affects 152 airplanes of U.S. registry.

We also estimate that it would take about 27 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $590,000 per product. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $90,028,840, or $592,295 per product.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2015-3085/Airspace Docket No. 15-ASW-2.” The postcard will be date/time stamped and returned to the commenter.

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

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

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

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

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending the Class E airspace area at Little Rock Air Force Base (AFB), AR. The air traffic control tower at Dennis F. Cantrell Field, Conway, AR, has closed, and approaches cancelled. This action would remove Dennis F. Cantrell Field, from the airspace designation and description for Little Rock AFB, as they are no longer needed to define its boundaries. Additionally, geographic coordinates for Little Rock AFB, would be changed from (lat. 34°54′59″ N., long. 92°08′47″ W.) to (lat. 34°55′03″ N., long. 92°08′42″ W.) and Saline County Airport, Benton, AR, coordinates would be changed from (lat. 34°33′23″ N., long. 92°36′25″ W.) to (lat. 34°35′25″ N., long. 92°28′46″ W.). These minor adjustments would reflect the current information in the FAA's aeronautical database.

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

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

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

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure in the western U.S. to preserve the safe and efficient flow of air traffic within the National Airspace System.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2016-3193 and Airspace Docket No. 15-AAL-3) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2016-3193 and Airspace Docket No. 15-AAL-3.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the Internet at http://www.regulations.gov.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Western Service Center, Operations Support Group, Federal Aviation Administration, 1601 Lind Ave SW., Renton, WA 98057.

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

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

On September 24, 1975, the FAA published a final rule that extended V-506 between Kotzebue and Barrow Alaska (40 FR 43885). Terrain in the vicinity limited the Minimum Enroute Altitude (MEA) to 10,000 feet for a large portion of this route, between the fixes SHOKK and MEADE on current charts. Due to this MEA, the airspace floor designated in the legal description was set at 9,500 feet for this section. In 2005, Anchorage Center requested a review for a lower GNSS MEA, and the FAA was able to apply a lower GNSS MEA of 8,000 feet. However, this action did not uncover the fact that controlled airspace did not exist to encompass the new MEA. On September 24, 2015, the FAA issued NOTAM FDC 5/6054 that made the GNSS MEA between SHOKK and MEADE unavailable.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify Federal airway V-506 in Alaska that would lower the floor of controlled airspace north of Kotzebue, AK. The current legal description after Kotzebue, AK, of “Kotzebue, AK; Hotham, AK, NDB; 69 miles 12 AGL, 124 miles 95 MSL, 98 miles 12 AGL, Barrow, AK.” would be changed to read “Kotzebue, AK; Hotham, AK, NDB; 69 miles 12 AGL, 124 miles 75 MSL, 98 miles 12 AGL, Barrow, AK.”. The 124 mile section starting 69 miles north of the Hotham, AK NDB would be lowered from 9,500 feet to 7,500 feet. This airspace would support the GNSS MEA of 8,000 feet by providing a 500 foot buffer consistent with guidance found in FAA Order 7400.2, Procedures for Handling Airspace Matters. This expansion of airspace would provide instrument flight rules (IFR) users maximum use of V-506.

Alaskan VOR federal airways are published in paragraph 6010(b) of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. V-506 would be subsequently published in the Order.

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

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-0526/Airspace Docket No. 16-ASW-3.” The postcard will be date/time stamped and returned to the commenter.

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

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

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

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

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface at Taos Regional Airport, Taos, NM. Airspace reconfiguration is necessary due to the decommissioning of the NDB and cancellation of the NDB approaches at Taos Regional Airport. Advances in GPS capabilities would ensure the safety and management of IFR operations at the airport.

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

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

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

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

A trade association representing jewelry industry members, Jewelers Vigilance Committee (“JVC”), requests a 60-day extension of the comment deadline. JVC explains that the FRN poses many questions that may require consumer research, metallurgical testing, and other information developed through experts. JVC states that additional time is therefore needed for the committees it has convened to coordinate their work, perform the necessary analysis, and develop meaningful consumer research and other expert information.

Given the complexity and range of issues raised in the FRN, including the request for consumer perception evidence, the Commission believes that allowing additional time for filing comments would help facilitate the creation of a more complete record. Moreover, this brief extension would not harm consumers because the current Guides remain in effect during the review process. Therefore, the Commission has decided to extend the comment period to June 3, 2016.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before June 3, 2016. Write “Jewelry Guides, 16 CFR part 23, Project No. G711001” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the Commission tries to remove individuals' home contact information from comments before placing them on the Commission Web site. Because your comment will be made public, you are solely responsible for making sure that your comment does not include any sensitive personal information, such as anyone's Social Security number, date of birth, driver's license number or other state identification number or foreign country equivalent, passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure that your comment does not include any sensitive health information, such as medical records or other individually-identifiable health information. In addition, do not include any “trade secret or any commercial or financial information which . . . is privileged or confidential,” as discussed in Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, do not include competitively sensitive information such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

If you want the Commission to give your comment confidential treatment, you must file it in paper form, with a request for confidential treatment, and you must follow the procedure explained in FTC Rule 4.9(c), 16 CFR 4.9(c).2 Your comment will be kept confidential only if the FTC General Counsel, in his or her sole discretion, grants your request in accordance with the law and the public interest.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. Accordingly, we encourage you to submit your comments online. To make sure that the Commission considers your online comment, you must file it at https://ftcpublic.commentworks.com/ftc/jewelryguidesreview by following the instructions on the web-based form. If this Notice appears at http://www.regulations.gov, you also may file a comment through that Web site.

If you file your comment on paper, write “Jewelry Guides, 16 CFR part 23, Project No. G711001” on your comment and on the envelope, and mail it to the following address: Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW., Suite CC-5610 (Annex O), Washington, DC 20580, or deliver your comment to the following address: Federal Trade Commission, Office of the Secretary, Constitution Center, 400 7th Street SW., 5th Floor, Suite 5610 (Annex O), Washington, DC 20024. If possible, submit your paper comment to the Commission by courier or overnight service.

Visit the Commission Web site at http://www.ftc.gov to read this Notice and the news release describing it. The FTC Act and other laws that the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments that it receives on or before June 3, 2016. You can find more information, including routine uses permitted by the Privacy Act, in the Commission's privacy policy at http://www.ftc.gov/ftc/privacy.htm.

This proposed rule provides components of the DoD with policies to support the intent of the Compact, which is to aid the transition of school-age children in military families between school districts. The intent of the program is to ensure children are enrolled immediately in their new school, placed in the appropriate academic program, and are able to graduate on time.

Each state joining the compact agrees to address specific school transition issues in a consistent way and minimize school disruptions for military children transferring from one state school system to another. The compact consists of general policies in four key areas: Eligibility, enrollment, placement and graduation.

As of August 2014, 50 states have passed legislation to become members of the compact, including most of those with large numbers of military residents. The Department of Defense Education Activity cannot be a member of the compact but is complying with its provisions in both overseas and domestic schools. In return, the compact member states have agreed to treat students coming from a DoDEA school as though they were transferring from a member state. The compact has provisions for member states to facilitate enrollment in the following areas:

• Education records. When a family leaves a school district in a member state, the parents may receive a set of unofficial records to carry to the new school in another member state. It will include all the information the new school needs to enroll and place the child until they receive the official records. In addition, the compact requires all sending school districts within member states to send official transcripts within 10 days of a request from the receiving state school district.

• Immunizations. If a child transferring to a member state needs additional immunizations, he or she may enroll and begin school. Parents then have 30 days to see that the child gets the required immunizations. If further immunizations are required, they must be started within 30 calendar days of enrollment. Tuberculosis testing is not covered under the compact since the TB test is not an immunization but rather a health screening.

• Kindergarten and first grade entrance age. If the entrance age requirement in the new school system is different, transitioning children may continue in the same grade if they have already started kindergarten or first grade where the family was previously stationed. This provision also allows children to move up to first or second grade, regardless of age requirements, if they have completed kindergarten or first grade in another state.

Students from military families often miss appropriate placement in required classes, advanced placement and special-needs programs while awaiting evaluation at the new school. The compact requires cooperation in the following areas:

• Course and education program placement. A receiving school district in a member state must initially honor placement of a student based on his or her enrollment in the sending state, provided the new school has a similar or equivalent program. The receiving school may evaluate the student after placement to ensure it is appropriate, but the school may not put children into “holding classes” while they await assessment. The receiving school may allow the student to attend similar education courses in other schools within the district if the receiving school does not offer such courses.

• Special education services. Students covered by the Individuals with Disabilities Education Act receive the same services (although not necessarily identical programs) identified in the individual education plan from the sending state. This is a parallel requirement under federal law.

• Placement flexibility. School districts are encouraged to determine if course or program prerequisites can be waived for students who have completed similar coursework in the sending school district. This process allows students to take advanced courses rather than repeat similar basic courses.

• Absence related to deployment activities. Students in member states may request additional, excused absences to visit with their parent or legal guardian immediately before, during and after deployment. Schools have flexibility in approving absences if there are competing circumstances such as state testing or if the student already has excessive absences.

The compact asks school districts in member states to examine their rules for eligibility to allow children of military parents to have the continuity they need.

• Enrollment. When a child of a deployed parent is staying with a non-custodial parent, a relative or a friend who is officially acting in place of the parents and lives outside of the home school district, the child may continue to attend his or her own school as long as the care provider ensures transportation to school. The compact also stipulates that a power of attorney for guardianship is sufficient for enrollment and all other actions requiring parental participation or consent.

• Extracurricular participation. When children transfer to a new school, their participation in extracurricular activities is facilitated—provided they're eligible—even if application deadlines and tryouts have passed. Schools must make reasonable accommodations but are not required to hold spaces open for military-related transferees.

School transitions can be especially challenging for high school students. The compact requires school districts to make the following accommodations to facilitate on-time graduation:

• Course waivers. School districts in member states may waive courses required for graduation if similar coursework has been completed in another school. Such waivers are not mandatory under the compact, but a school district must show reasonable justification to deny a waiver.

• Exit exams. Under the compact, a school district may accept the sending state's exit exams, achievement tests or other tests required for graduation instead of requiring the student to meet the testing requirements of the receiving state. States have flexibility to determine what tests they will accept or require the student to take.

• Transfers during senior year. If a student moves during the senior year and the receiving state is unable to make the necessary accommodations for required courses and exit exams, the two school districts must work together to obtain a diploma from the sending school so the student can graduate on time.

The compact does not address the quality of education or require a state to change any of its standards or education criteria. The Military Interstate Children's Compact Commission (MIC3) has created a variety of downloadable brochures, webinars and other resources to help parents and educators learn more about the Compact—See more at: http://www.mic3.net.

If a family has a concern about a provision of the compact as it relates to a child, it's best to contact the school first. Each installation has a school liaison to help work with schools to get questions answered or to provide information on next steps to take if concerns cannot be successfully resolved.

The legal authorities for this rule clarify the definition of children in military families covered by this rule, cover the protections afforded these children, and provide the authority for establishing the policies included in this rule for the DoD Education Activity:

(1) 10 U.S. Code 2164—Department of Defense Domestic Dependent Elementary and Secondary Schools. This citation states the Secretary of Defense may issue directives that the Secretary considers necessary for the effective operation of the school or the entire school system, outside of the authority given to the School Boards selected to oversee these schools.

(2) 20 U.S. Code—Education, Chapter 25A—Overseas Defense Dependents' Education § 921—Defense Dependents' Education System, and § 932—Definitions. This citation provides the scope of the authority of the Secretary of Defense to define programs and activities to provide a free public education through secondary school for dependents in overseas areas.

The major provisions of this regulatory action include designating DoD liaisons to State Councils of member states of the Compact, designating the DoD ex-officio member to the Compact Commission, implementing the relevant school transition policies established in the Compact within the DoDEA school system, and establishing a committee within DoDEA to advise on compliance by DoDEA school.

(1) As required by the Compact, states establish Councils to oversee the implementation of the Compact within the state. The Compact prescribes membership of the State Council, which may include a representative from the military community within the state. Since this individual represents the interests of the military community to the State Council, the military representative can only fulfill a liaison role on the Council and must be designated by DoD. This rule defines the role for the military representative (§ 89.7(a)), along with the process (§ 89.7(b)) for coordinating the requests from State Commissioners and designating these military representatives.

(2) The Compact allows DoD to send an ex-officio representative to the Commission meetings, and also requires the DoD ex-officio representative to participate on the Executive Committee of the Commission. This rule provides guidelines for the DoD ex-officio representative (§ 89.7(d)).

(3) This rule establishes policies for DoDEA governing the transition of school age children in military families (§ 89.8 of this rule), which are equivalent to the following policies included in the Compact: Article IV—records and enrollment, Article V—placement and attendance, Article VI—eligibility for enrollment, and Article VII—graduation.

(4) This rule establishes a committee to advise DoDEA on compliance with provisions in § 89.8. The DoDEA Committee also provides input to the ex-officio member of the Commission on issues arising from DoDEA school interactions with member States of the Compact, and acts as a counterpart to State Councils of member States. Policies for assigning a representative from the Military Departments to this committee are included in § 89.7(c).

There are no provisions in this proposed rule which are expected to increase costs for members of the public. Requirements included in this rule may require action to be taken by state education departments and local education agencies as a result of requirements of the state laws.

The cost to the Department are summarized below:

• (Military representative attending State Council meetings. State Council meetings are generally held at a central location for the state, and are expected to be held at least once per year. The military representative would be required, while on duty and at government expense, to travel to and attend the meeting. A meeting would be expected to demand an average of 1.5 days (travel and meeting time), which would cost an approximate average of $564 1 in opportunity labor cost. Additionally, intrastate travel and per diem is expected to cost an approximate average of $334.2 States vary with regards to the number of military representatives they have requested to attend; however, the estimated number of military representatives is 77.3 Applying the approximate average costs per year provides $43,430 in opportunity labor costs and $25,720 in travel and per diem.

• Identifying, nominating and designating a military representative. DOD estimates approximately 76 hours 4 of administrative time to coordinate nominations per year, plus approximately 76 hours 5 to process, review, coordinate, sign and distribute the designation letters. The opportunity labor cost of coordination would be approximately $4,560 6 and completing the designation letter, with accompanying documents, would be $4,400 7 per year.

• Ex-officio representation to the Military Interstate Child Compact Commission (MIC3). This individual participates in the annual conference, executive committee meeting and other standing committee meetings and would cost DOD approximately $8,460 per year.8

Additionally, this proposed rule will direct DoDEA to transition children under specific policies. These are the same policies that are included in the Compact, Articles IV-VII, which have been shown to be cost-neutral (and perhaps a cost-benefit) when implemented by local education agencies within the states that are members of the Compact.9 Essentially, schools are responsible for transitioning children, and the proposed rules, based upon the transition policies included in the Compact, provide a consistent approach that schools apply in member states to the Compact. Hence, there is less variability and uncertainty in the process. Applying these policies within DoDEA is expected to produce similar results, since these policies would apply to all children within the DoDEA school system (therefore applying a consistent policy regardless of the child), and many of these proposed policies represent the existing procedures used in DoDEA schools to transition students. The DoD committee to oversee the implementation of this rule within DoDEA is expected to cost approximately $3,250 per year 10 to administer and conduct meetings.

The benefits derived from DoD's participation in the Compact accrue to Service members and their families, particularly the 707,000 school-age children educated by local education agencies and DoDEA.11 These benefits have not necessarily been quantified, but can be described in qualitative terms. Military moves are stressful for the entire family, and transitioning to a new school creates stresses because of uncertainty. Military children are confronted with unknown academic and social challenges, and their parents must overcome new administrative requirements to enroll them. The provisions included in the Compact provide relief for some of the administrative requirements faced by parents and the academic issues regularly experienced by military children who generally attend six-to-nine different schools between kindergarten and 12th grade.12 The goal of the Compact is to replace the widely varying treatment of transitioning military students with a comprehensive approach that provides a uniform policy in every school district in every state that chooses to join. Through more uniform transition policies, military children have an opportunity to assimilate into their classes, extra-curricular activities and new social circles more quickly. Additionally the Compact recognizes the difficulties military children may have with being separated from a parent due to a military deployment, allowing for liberal absences for children to be with the deploying/returning parents.

The Compact Articles IV-VII were developed as a result of input from 17 representative national and state stakeholders who were asked to participate in a working group sponsored by the Council of State Governments, National Center for Interstate Compacts.13 The majority of their recommendations came from work that had previously been presented in studies, such as the Military Child Education Coalition's Secondary Education Transition Study, conducted for the U.S. Army in 2001, and the subsequent Memoranda of Agreement signed by nine school districts which addressed “the timely transfer of records, systems to ease student transition during the first 2 weeks of enrollment, practices that foster access to extracurricular programs, procedures to lessen the adverse impact of moves of juniors and seniors, [and] variations in school calendars and schedules,” among other recommendations.14

Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This rule has been determined to be a significant regulatory action, although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4) requires agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2014, that threshold is approximately $141 million. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

The Department of Defense certifies that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.

This rule does not impose reporting and record keeping requirements under the Paperwork Reduction Act of 1995.

This rule was analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). It has been determined that it does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. This rule has no substantial effect on the States, or on the current Federal-State relationship, or on the current distribution of power and responsibilities among the various local officials. Nothing in this rule preempts any State law or regulation. Therefore, DoD did not consult with State and local officials because it was not necessary.

Accordingly 32 CFR part 89 is proposed to be added to read as follows:

The legal basis for the rule is 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; and Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to define regulatory safety zones.

The Captain of the Port (COTP) Ohio Valley is proposing to establish, amend, and update its current list of recurring safety zone regulations.

These safety zones are proposed to be added, amended, and updated to the list of annually recurring safety zones under 33 CFR 165.801 in Table no. 1 for annual safety zones in the COTP Ohio Valley zone. The Coast Guard will address all comments accordingly, whether through response, additional revision to the regulation, or otherwise. Additionally, these recurring events are provided to the public through local avenues and planned by the local communities.

The current list of annual and recurring safety zones occurring in Sector Ohio Valley's AOR is published under 33 CFR part 165.801. That most recent list was created August 18, 2015 through the rulemaking 80 FR 49911, which finalized the interim rule published April 22, 2014, 79 FR 22398, which received no adverse comments. The August 18, 2015 rulemaking established 33 CFR 165.801 creating the current comprehensive list of recurring safety zones.

The Coast Guard is amending and updating the safety zone regulations under 33 CFR part 165 to include the most up to date list of recurring safety zones for events held on or around navigable waters within Sector Ohio Valley's AOR. These events include air shows, fireworks displays, and other marine related events requiring a limited access area restricting vessel traffic for safety purposes. The current list under 33 CFR 165.801 requires amending to provide new information on existing safety zones, updating to include new safety zones expected to recur annually or biannually, and to remove safety zones that are no longer required. Issuing individual regulations for each new safety zone, amendment, or removal of an existing safety zone creates unnecessary administrative costs and burdens. This single proposed rulemaking will considerably reduce administrative overhead and provides the public with notice through publication in the Federal Register of the upcoming recurring safety zone regulations.

The Coast Guard encourages the public to participate in this proposed rulemaking through the comment process so that any necessary changes can be identified and implemented in a timely and efficient manner.

33 CFR part 165 contains regulations establishing limited access areas to restrict vessel traffic for the safety of persons and property. Section 165.801 establishes recurring safety zones to restrict vessel transit into and through specified areas to protect spectators, mariners, and other persons and property from potential hazards presented during certain events taking place in Sector Ohio Valley's AOR. This section requires amendment from time to time to properly reflect the recurring safety zone regulations in Sector Ohio Valley's AOR. This proposed rule amends and updates Section 165.801 replacing the current Table 1 for Sector Ohio Valley.

Additionally, this proposed rule adds 13 new recurring safety zones and removes 6 safety zones.

Thirteen new recurring safety zones are proposed to be added under the new Table 1 of § 165.801 for Sector Ohio Valley, as follows:

This proposed rule removes the following 6 safety zone regulations from the existing Table 1 Part of § 165.801 for Sector Ohio Valley, as follows:

On July 16, 2015, the Commonwealth of Virginia (Virginia) through the Virginia Department of Environmental Quality (VADEQ) submitted a revision to the Commonwealth's SIP to satisfy the requirements of section 110(a)(2) of the CAA for the 2012 PM2.5 NAAQS.

On July 18, 1997, the EPA promulgated a new 24-hour and a new annual NAAQS for PM2.5 (62 FR 38652). On October 17, 2006, the EPA revised the standards for PM2.5, tightening the 24-hour PM2.5 standard from 65 micrograms per cubic meter (μg/m3) to 35 μg/m3, and retaining the annual PM2.5 standard at 15 μg/m3 (71 FR 61144). Subsequently, on December 14, 2012, the EPA revised the level of the health based (primary) annual PM2.5 standard to 12 μg/m3. See 78 FR 3086 (January 15, 2013).1

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. 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 affect the content of the submission. The content of such SIP submission 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 earlier, 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.

On July 16, 2015, the VADEQ provided a SIP revision to satisfy certain section 110(a)(2) requirements of the CAA for the 2012 PM2.5 NAAQS.2 This revision addressed the following CAA infrastructure elements which EPA is proposing to approve: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). A detailed summary of EPA's review and rationale for finding Virginia's submittal addresses these requirements in section 110(a)(2) may be found in the technical support document (TSD) for this rulemaking action which is available on line at www.regulations.gov, Docket ID Number EPA-R03-OAR-2015-0838.

This rulemaking action does not include any proposed action on section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA and Virginia's July 16, 2015 SIP submittal did not address this element. Virginia's obligations under section 110(a)(2)(I) will be addressed in a separate process if applicable or necessary for the 2012 PM2.5 NAAQS. This rulemaking action also does not include proposed action on requirements under section 110(a)(2)(D)(i)(I) of the CAA because Virginia's submittal did not include any provisions for this element; therefore, EPA will take later, separate action on section 110(a)(2)(D)(i)(I) for the 2012 PM2.5 NAAQS for Virginia. Finally, at this time, EPA is not proposing action on the portion of Virginia's July 16, 2015 infrastructure SIP submittal addressing section 110(a)(2)(D)(i)(II) for visibility protection for the 2012 PM2.5 NAAQS. Although Virginia's submittal referred to a July 16, 2015 regional haze SIP revision submittal to address requirements in section 110(a)(2)(D)(i)(II) for visibility protection for the 2012 PM2.5 NAAQS, EPA intends to take separate rulemaking action on the July 16, 2015 regional haze SIP revision and on the portion of the July 16, 2015 infrastructure SIP submission for section 110(a)(2)(D)(i)(II) (visibility protection) as explained in the TSD. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

EPA is acting upon the SIP submission from Virginia that addresses the infrastructure requirements of section 110(a)(1) and (2) of the CAA for the 2012 PM2.5 NAAQS. The requirement for states to make a SIP submission of this type arises out of section 110(a)(1) of the CAA. 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) of the CAA 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 section 110(a)(1) and (2) as infrastructure SIP submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of section 169A of the CAA, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) of the CAA 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.3 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the CAA, which specifically address nonattainment SIP requirements.4 Section 110(a)(2)(I) of the CAA 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) of the CAA 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) of the CAA allows up to two years or in some cases three years, for such designations to be promulgated.5 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action.6 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.7

Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example 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.8

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

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

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements.9 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance).10 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) of the CAA that are relevant in the context of infrastructure SIP submissions.11 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

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

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focus upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including greenhouse gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

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

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

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

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

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

EPA is proposing to approve the following elements of Virginia's July 16, 2015 infrastructure SIP revision for the 2012 PM2.5 NAAQS: Section 110(a)(2)(A), (B), (C), (D)(i)(II) (prevention of significant deterioration), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Virginia's July 16, 2015 SIP revision provides the basic program elements specified in section 110(a)(2) of the CAA necessary to implement, maintain, and enforce the 2012 PM2.5 NAAQS. This proposed rulemaking action does not include action on section 110(a)(2)(I) which pertains to the nonattainment planning requirements of part D, title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process where necessary and applicable. Additionally, this proposed rulemaking action does not include rulemaking action on section 110(a)(2)(D)(i)(I) (interstate transport of emissions) or (D)(i)(II) (visibility protection) for the 2012 PM2.5 NAAQS. EPA will take later, separate action on Virginia's requirements for section 110(a)(2)(D)(i)(I) and (D)(i)(II) (visibility protection) for the 2012 PM2.5 NAAQS.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counter-parts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

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 proposed action:

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

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

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

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

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

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

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

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

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

In addition, this proposed rule, which satisfies certain infrastructure requirements of section 110(a)(2) of the CAA for the 2012 PM2.5 NAAQS for the Commonwealth of Virginia, is not being approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 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 will 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 submittal as a direct final rule without prior proposal because EPA views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives 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 rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information see the direct final rule, which is located in the Rules section of this Federal Register.

In the Final Rules section of this Federal Register, EPA is approving IEPA's SIP revision as a direct final rule without prior proposal because EPA views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives 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 rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that, if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information see the direct final rule, which is located in the Rules section of this Federal Register.

1. Submitting Confidential Business Information (CBI). Do not submit CBI to the EPA through www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to the EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember to:

• Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).

• Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

• Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

• Describe any assumptions and provide any technical information and/or data that you used.

• If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

• Provide specific examples to illustrate your concerns and suggest alternatives.

• Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

• Make sure to submit your comments by the comment period deadline identified.

On June 2, 2010, the EPA revised the primary SO2 NAAQS, establishing a new 1-hour SO2 standard of 75 parts per billion (ppb). See 75 FR 35520 (June 2, 2010). Under the EPA's regulations at 40 CFR part 50, the 2010 1-hour SO2 NAAQS is met at a monitoring site when the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations is less than or equal to 75 ppb (based on the rounding convention in 40 CFR part 50, appendix T). See 40 CFR 50.17. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. A year meets data completeness requirements when all 4 quarters are complete, and a quarter is complete when at least 75 percent of the sampling days for each quarter have complete data. A sampling day has complete data if 75 percent of the hourly concentration values, including state-flagged data affected by exceptional events which have been approved for exclusion by the Administrator, are reported.1

Upon promulgation of a new or revised NAAQS, the CAA requires the EPA to designate as nonattainment any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the NAAQS.2 At the time the EPA conducted the initial round of designations for the 2010 1-hour SO2 primary NAAQS,3 Billings contained an SO2 monitor (Coburn Road) which registered violations of the standard based on the three most recent years of complete, quality assured, and certified ambient air quality data. In a letter to the EPA, Montana Governor Brian Schweitzer requested that all 56 counties in Montana be designated as attainment or unclassifiable. The EPA responded to Montana's initial designations request in a February 6, 2013 letter in which the EPA disagreed with Montana's request to classify Yellowstone County (which includes Billings) as unclassifiable for the 2010 1-hour SO2 standard and presented the case that all of Yellowstone County should be designated as nonattainment. In an April 3, 2013 letter to the EPA, Montana reiterated its request that Yellowstone County be designated unclassifiable, but requested an alternative nonattainment area boundary consisting of only a small portion of Billings if the EPA determined that a nonattainment designation was appropriate. The EPA agreed with the State's technical rationale for reducing the nonattainment area to a small portion of Billings which included only one source of SO2: The PPL Corette Power Plant.4 The EPA found that Montana's technical analysis demonstrated that the PPL Corette plant was the key contributor to the 2010 SO2 NAAQS violations at the Coburn Road monitor. The EPA, therefore, designated the area recommended by Montana as nonattainment for the 2010 SO2 NAAQS on August 5, 2013, (effective October 4, 2013) using 2009-2011 ambient air quality data, leaving the remaining portion of Billings and Yellowstone County undesignated and subject to future analysis and designation. See 78 FR 47191 (August 5, 2013). This nonattainment designation established an attainment date five years after the October 4, 2013, effective date for areas classified as nonattainment for the 2010 1-hour SO2 NAAQS.5 Therefore, the Billings SO2 nonattainment area's attainment date is October 4, 2018. The Montana Department of Environmental Quality (MDEQ) was also required to submit an attainment SIP to EPA within 18 months following the October 4, 2013 effective date of designation, or by April 6, 2015.6

On January 16, 2015, MDEQ submitted a request for the EPA to determine that the Billings SO2 nonattainment area has attained the 2010 SO2 NAAQS per the EPA's “clean data policy” (Billings 2010 SO2 Clean Data Request).7 The clean data policy represents the EPA's interpretation that certain planning-related requirements of part D of the Act, such as the attainment demonstration, reasonably available control measures (RACM), and reasonable further progress (RFP), are suspended for areas that are in fact attaining the NAAQS. The clean data policy will be explained further in Section IV of this proposed rulemaking. A determination of attainment, or clean data determination, does not constitute a formal redesignation to attainment. If EPA subsequently determines that an area is no longer attaining the standard, those requirements that were suspended by the clean data determination are once again due.

On April 10, 2015, James Parker of PPL Montana sent a letter to Ed Warner of MDEQ notifying him that the PPL Corette Plant was officially retired on March 18, 2015, and had consumed its last coal on March 3, 2015. On May 13, 2015, Gordon Criswell of PPL Montana sent a letter to MDEQ requesting a revocation of the Montana Air Quality Permit (MAQP) #2953-00 and Title V Operating Permit #OP2953-08. On May 21, 2015, David Klemp of MDEQ sent a letter to Mr. Criswell informing him that MDEQ was revoking both permits, as PPL had requested, effective immediately.

On December 14, 2015, the State submitted to the EPA a request for redesignation of the Billings 2010 SO2 nonattainment area to attainment and a SIP revision containing a maintenance plan for the area.

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation of a nonattainment area provided that: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area for purposes of redesignation under section 110 and part D of the CAA.

On April 16, 1992, the EPA provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). The EPA has provided further guidance on processing redesignation requests in several guidance documents. For the purposes of this action, the EPA will be referencing two of these documents: (1) The September 4, 1992 Memorandum from John Calcagni titled “Procedures for Processing Requests to Redesignate Areas to Attainment,” (hereafter referred to as the “Calcagni Memo”); and (2) The April 23, 2014 Memorandum from Stephen D. Page titled “Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions,” (hereafter referred to as “2010 SO2 NAA Guidance”).

EPA's evaluation of Montana's redesignation request and maintenance plan was based on consideration of the five redesignation criteria provided under CAA section 107(d)(3)(E).

For redesignating a nonattainment area to attainment, the CAA requires the EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). The two primary methods for evaluating ambient air quality impacted by SO2 emissions are through dispersion modeling and air quality monitoring. For SO2, an area may in some circumstances be considered to be attaining the 2010 1-hour SO2 NAAQS if it meets the NAAQS as determined in accordance with 40 CFR 50.17 and Appendix T of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the NAAQS based on monitoring, the 3-year average of the annual 99th percentile (fourth highest value) of 1-hour daily maximum concentrations measured at each monitor within an area must be less than or equal to 75 ppb. The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in the EPA Air Quality System (AQS). The EPA's determination of attainment can be based on monitoring data alone, without the need for dispersion modeling analyses, if the air agency provides an analysis demonstrating that the monitor(s) for the affected area is located in the area of maximum ambient concentration of SO2.8

In this action, the EPA is determining that the Billings SO2 nonattainment area is attaining the 2010 1-hour SO2 NAAQS. The EPA reviewed SO2 monitoring data from the lone monitoring station inside the Billings SO2 nonattainment area, the Coburn Road station. The Coburn Road monitor data have been quality-assured, are recorded in AQS, and indicate that the area is attaining the 2010 1-hour SO2 NAAQS. The fourth-highest 1-hour SO2 values at the Coburn Road monitor for the 3-year averages of these values (i.e., design values), are summarized in Table 1, below.

As shown, the 3-year design value for 2012-2014 at the Coburn Road monitor meets the 2010 SO2 NAAQS. Further, the EPA expects the SO2 emissions at this monitor to decrease significantly following the shutdown of the PPL Corette facility. Since the facility last operated on March 3, 2015, the values at the Coburn Road monitor have not exceeded 19 ppb SO2. This trend is anticipated to be permanent, as the State indicated in its analysis that SO2 emissions have since 2010 consistently decreased to levels well below the NAAQS during times when PPL Corette was not operating.9

As part of Montana's redesignation request, the State submitted information to support a showing that the Coburn Road monitor was sited in the area of maximum ambient SO2 concentration within the Billings SO2 nonattainment area in accordance with the 2010 SO2 NAA Guidance. This showing included data from historical monitors near the Coburn Road monitor which consistently showed lower values than those at Coburn Road. The EPA has reviewed Montana's information regarding this showing, but finds that it is no longer applicable to the current SO2 emissions mix in the Billings SO2 nonattainment area because the sole SO2 source in the area (PPL Corette) has shut down. The EPA does not find it necessary to require the State to conduct new modeling or exploratory monitoring as recommended by EPA's May 2013 Draft Monitoring Technical Assistance Document (TAD)10 to determine the point of maximum concentration in the nonattainment area because the source of concern in the area has shut down and been dismantled, resulting in SO2 concentrations well below the standard.

In this action, the EPA is proposing to determine that the Billings SO2 nonattainment area is attaining the 2010 1-hour SO2 NAAQS, and therefore meets the requirements of CAA section 107(d)(3)(E)(i). If the 3-year design value exceeds the NAAQS prior to the EPA taking action in response to the State's request, the EPA will not take final action to approve the redesignation request.11 As discussed in more detail below, Montana has committed to continue monitoring in this area in accordance with 40 CFR part 58.

As noted, Montana separately submitted to the EPA a request for a determination of clean data for the Billings SO2 nonattainment area on January 16, 2015. The clean data policy represents the EPA's interpretation that certain requirements of part D of title I of the Act are suspended for areas that are currently attaining the NAAQS. The requirements that are suspended in an area attaining the standard include the requirements to submit an “attainment SIP” that provides for: Attainment of the NAAQS; implementation of all RACM; RFP; and implementation of contingency measures for failure to meet deadlines for RFP and attainment. In the 2010 SO2 NAA guidance, the EPA explained our intention to apply the EPA's clean data policy to the 2010 SO2 primary NAAQS.12 Because EPA's analysis in determining whether an area has attained under the clean data policy is the same as its analysis under the first redesignation criterion, EPA is also here proposing that the Billings SO2 nonattainment area qualifies for a determination of attainment under the clean data policy, based on the 2012-2014 monitoring data from the Coburn Road monitor. In the event that EPA does not finalize the proposed redesignation, EPA may choose to separately finalize the clean data determination, thereby suspending Montana's obligation to submit the attainment planning-related requirements for the area for as long as the area continues to attain the standard. As with its analysis that the area has attained under the redesignation requirements, for purposes of the clean data determination, the EPA is not requiring Montana to demonstrate that the monitor is located in the area of maximum concentration in accordance with the 2010 SO2 NAA Guidance due to the unique circumstances associated with the PPL Corette shutdown.13

For redesignating a nonattainment area to attainment under a NAAQS, the CAA requires the EPA to determine that the state has met all applicable requirements for that NAAQS under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for that NAAQS for the area (CAA section 107(d)(3)(E)(ii)). The EPA proposes to find that Montana has met all applicable SIP requirements for the Billings SO2 nonattainment area for the 2010 SO2 NAAQS under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, the EPA proposes to find that the Montana SIP satisfies the criterion that it meets applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v). Further, the EPA proposes to determine that the SIP is fully approved with respect to all requirements applicable for the 2010 SO2 NAAQS for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these determinations, the EPA ascertained which requirements are applicable to the Billings SO2 nonattainment area and, if applicable, that they are fully approved under section 110(k).

General SIP requirements. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements include, but are not limited to, the following: Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and provisions for the implementation of part D requirements (New Source Review (NSR) permit programs); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, the EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. The EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, the EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.

In addition, the EPA believes other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with the EPA's existing policy on applicability (i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 2008); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7,1996); and Tampa, Florida, final rulemaking at (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001).

Title I, Part D, applicable SIP requirements. Section 172(c) of the CAA sets forth the basic requirements of attainment plans for nonattainment areas that are required to submit them pursuant to section 172(b). Subpart 5 of part D, which includes section 191 and 192 of the CAA, establishes requirements for SO2, nitrogen dioxide and lead nonattainment areas. A thorough discussion of the requirements contained in sections 172(c) can be found in the General Preamble for Implementation of Title I (57 FR 13498).

Subpart 5 Section 172 Requirements. Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all RACM as expeditiously as practicable and to provide for attainment of the NAAQS. The EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in each area as components of the area's attainment demonstration. Under section 172, states with nonattainment areas must submit plans providing for timely attainment and meeting a variety of other requirements.

The EPA's longstanding interpretation of the nonattainment planning requirements of section 172 is that once an area is attaining the NAAQS, those requirements are not “applicable” for purposes of CAA section 107(d)(3)(E)(ii) and therefore need not be approved into the SIP before the EPA can redesignate the area. In the 1992 General Preamble for Implementation of Title I, the EPA set forth its interpretation of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard. See 57 FR 13498, 13564 (April 16, 1992). The EPA noted that the requirements for RFP and other measures designed to provide for attainment do not apply in evaluating redesignation requests because those nonattainment planning requirements “have no meaning” for an area that has already attained the standard. Id. This interpretation was also set forth in the Calcagni Memo. The EPA's understanding of section 172 also forms the basis of its Clean Data Policy, which was articulated with regard to SO2 in the 2010 SO2 NAA Guidance, and suspends a state's obligation to submit most of the attainment planning requirements that would otherwise apply, including an attainment demonstration and planning SIPs to provide for RFP, RACM, and contingency measures under section 172(c)(9). Courts have upheld the EPA's interpretation of section 172(c)(1) for “reasonably available” control measures and control technology as meaning only those controls that advance attainment, which precludes the need to require additional measures where an area is already attaining. NRDC v. EPA, 571 F.3d 1245, 1252 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d 155, 162 (D.C. Cir. 2002); Sierra Club v. EPA, 314 F.3d 735, 744 (5th Cir. 2002); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). But see Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015).

Therefore, because attainment has been reached in the Billings SO2 nonattainment area, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements for an attainment demonstration and RACM are not part of the “applicable implementation plan” required to have been approved prior to redesignation per CAA section 107(d)(3)(E)(ii). The other section 172 requirements that are designed to help an area achieve attainment—the section 172(c)(2) requirement that nonattainment plans contain provisions promoting reasonable further progress, the requirement to submit the section 172(c)(9) contingency measures, and the section 172(c)(6) requirement for the SIP to contain control measures necessary to provide for attainment of the NAAQS—are also not required to be approved as part of the “applicable implementation plan” for purposes of satisfying CAA section 107(d)(3)(E)(ii).

Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. The requirement for an emission inventory can be satisfied by meeting the inventory requirements of the maintenance plan.14 MDEQ submitted an emissions inventory as part of the maintenance plan for the Billings SO2 nonattainment area, and this inventory will be discussed further in the maintenance plan portion of this proposed action.

Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. The EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” MDEQ has demonstrated that the Billings SO2 nonattainment area will be able to maintain the NAAQS without part D NSR in effect, and therefore Montana need not have fully approved part D NSR programs prior to approval of the redesignation request. Montana's PSD program will become effective in the Billings SO2 nonattainment area upon redesignation to attainment.

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, the EPA believes the Montana SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.

Section 176 Conformity Requirements. Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with federal conformity regulations relating to consultation, enforcement, and enforceability that the EPA promulgated pursuant to its authority under the CAA.

Montana has an approved general conformity SIP for the Billings area. See 67 FR 62392 (October 7, 2002). Moreover, the EPA interprets the conformity SIP requirements as not applying for purposes of evaluating a redesignation request under section 107(d) because, like other requirements listed above, state conformity rules are still required after redesignation and federal conformity rules apply where state rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding this interpretation); see also 60 FR 62748 (December 7, 1995) (redesignation of Tampa, Florida).

For these reasons, the EPA proposes to find that Montana has satisfied all applicable requirements for purposes of redesignation of the Billings SO2 nonattainment area under section 110 and part D of title I of the CAA.

The EPA has fully approved the applicable Montana SIP for the Billings Area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. As indicated above, the EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions nor linked to an area's nonattainment status are not applicable requirements for purposes of redesignation. The EPA has approved all part D requirements applicable under the 2010 SO2 NAAQS, as identified above, for purposes of this redesignation.

For redesignating a nonattainment area to attainment, the CAA requires the EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, applicable federal air pollution control regulations, and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). The EPA proposes to find that Montana has demonstrated that the observed air quality improvement in the Billings SO2 nonattainment area is due to permanent and enforceable reductions in emissions. Specifically, the EPA considers the shutdown of the PPL Corette Plant, identified as the key contributor to the SO2 NAAQS violations at the Coburn Road monitor,15 to be both permanent and enforceable. The EPA notes that the Corette facility was still operating (though not continuously) 16 during the 2012-2014 period during which the 2010 SO2 NAAQS was attained in the Billings nonattainment area. Given the well-established correlation of much lower SO2 emissions at the Coburn Road monitor during periods when Corette has not operated, EPA anticipates that the SO2 NAAQS will only attain by a greater margin following the facility's shutdown. As stated in the Calcagni Memo, “Emission reductions from source shutdowns can be considered permanent and enforceable to the extent that those shutdowns have been reflected in the SIP and all applicable permits have been modified accordingly.” 17 MDEQ revoked PPL's Title V (operating) and NSR permits for the Corette facility.18 Further, the PPL Corette facility has been dismantled, making its future operation impossible and thus displaying the permanence of the emissions reductions in the nonattainment area. Any new sources that may come into being within the area would be required to demonstrate that their new SO2 emissions would not interfere with attainment and maintenance of the 2010 SO2 NAAQS. Therefore, the EPA is proposing to find that the air quality improvement in the Billings SO2 nonattainment area is due to permanent and enforceable reductions in emissions.

To redesignate a nonattainment area to attainment, the CAA requires the EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the Billings SO2 nonattainment area to attainment for the 2010 1-hour SO2 NAAQS, MDEQ submitted a SIP revision to provide for the maintenance of the 2010 1-hour SO2 NAAQS for at least 10 years after the effective date of redesignation to attainment. The EPA is proposing to find that this maintenance plan for the area meets the requirements for approval under section 175A of the CAA.

CAA section 175A sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as the EPA deems necessary to assure prompt correction of any future 2010 1-hour SO2 violations. The Calcagni Memo provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed more fully below, the EPA is proposing to determine that Montana's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Montana SIP.

As part of a state's maintenance plan for a 2010 SO2 nonattainment area, the air agency should develop an attainment inventory to identify the level of emissions in the affected area which is sufficient to attain and maintain the SO2 NAAQS.19 Montana selected 2014 as the base year (i.e., attainment emissions inventory year) for developing an emissions inventory for SO2 in the nonattainment area through 2024. In 2014, the final full calendar year in which PPL Corette was permitted to operate prior to the March 2015 shutdown, the facility emitted 1,433 tons of SO2. 20

In 2014, the Coburn Road monitor reported exceedances of the 2010 SO2 NAAQS on eight different days, giving the monitor a 99th percentile (4th highest 1-hour daily maximum concentration) of 93 ppb. Regardless, the 2014 emissions level of 1,433 tons of SO2 is the lowest level of any year in the attaining 2012 to 2014 period, making it the most conservative option for the purposes of ensuring future maintenance of the NAAQS (see Table 2). The EPA has therefore determined that this is a level sufficient to attain the 2010 1-hour SO2 NAAQS, and is proposing to find that the attainment inventory submitted as part of Montana's maintenance plan meets the “Attainment Emissions Inventory” requirement.

The EPA notes that the permanent shutdown of PPL Corette has left the Billings SO2 nonattainment area with no sources of SO2, and the maintenance plan for the area contains an emissions inventory (in the “Maintenance Demonstration” section) which projects a level of zero SO2 emissions in the nonattainment area for each year from 2016 through 2024. The EPA therefore does not anticipate emissions activity in the 2010 SO2 nonattainment area that will approach 1,433 tons of SO2.

An air agency may generally demonstrate maintenance of the NAAQS by either showing that future emissions of SO2 will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS.21 Montana has demonstrated maintenance by showing that future year emissions (through “out year” 2024) of SO2 in the maintenance area are expected to remain at zero following the PPL Corette shutdown. The State's projected emissions inventory 22 has been reproduced as Table 3, below:

The EPA considers the inventory projection of zero emissions sufficient to attain and maintain the SO2 NAAQS. The EPA is therefore also proposing to find that the State's “Maintenance Demonstration” requirement is met based on this projected emissions inventory.

Montana has committed to continue operating the Coburn Road monitor at its current location in the Billings SO2 nonattainment area. The State also committed to operating the monitor in accordance with the requirements of 40 CFR part 58, and have thus addressed the requirement for monitoring. The EPA approved Montana's monitoring plan on January 13, 2015. The EPA is proposing to find that Montana's maintenance plan meets the “Monitoring Network” requirement.

Each air agency should ensure that it has the legal authority to implement and enforce all measures necessary to attain and maintain the 2010 SO2 NAAQS. The air agency's submittal should indicate how it will track the progress of the maintenance plan for the area either through air quality monitoring or modeling.23

The State of Montana has the legal authority to enforce and implement the maintenance plan for the Billings 2010 SO2 nonattainment area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future SO2 attainment problems.24 As noted, the State will track the progress of the maintenance plan by continuing to operate the Coburn Road monitor. For these reasons, the EPA is proposing to find that Montana's maintenance plan meets the “Verification of Continued Attainment” requirement.

Section 175A of the CAA requires that a maintenance plan include such contingency measures as the EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation, and a time limit for action by the state. A state should also identify specific indicators to be used to determine when the contingency measures need to be implemented. The maintenance plan must also include a requirement that a state will implement all measures with respect to control of the pollutant that were contained in the SIP before redesignation of the area to attainment in accordance with section 175A(d).

The contingency plan includes a triggering mechanism to determine when contingency measures are needed and a process of developing and implementing appropriate control measures. The State listed two types of triggers of its contingency plan. The first, a “warning level response,” will be triggered by a 99th percentile of 1-hour daily maximum SO2 values greater than 65 ppb in a single calendar year. The second, an “action level response,” is triggered when such a value exceeds 70 ppb in a single calendar year.

If the warning level response is triggered, the State must conduct a study to determine whether the SO2 values near the level of the 2010 SO2 NAAQS (75 ppb) are the result of a trend, and if so, what control measures are necessary to reverse that trend. The implementation of the control measures stemming from a warning level response will take place no later than 18 months after the end of the calendar year in which a determination requiring control measures was made. If the action level response is triggered and is not found to be due to an exceptional event as defined at 40 CFR part 50.1(j), the State will work with the entity or entities believed to be responsible for the high levels of SO2 to evaluate control measures necessary to ensure future attainment of the NAAQS. Montana must submit to the EPA its analysis demonstrating that the proposed control measures are adequate to ensure continued maintenance of the 2010 SO2 NAAQS in the area or to return the area to attainment of the NAAQS. The implementation of the control measures stemming from an action level response will take place no later than 18 months after the end of the calendar year in which the action level response was prompted. Montana noted that, since the only source in the nonattainment area has shut down, it is not possible at this time to develop specific contingency measures until the cause of the elevated concentrations is known. The EPA is proposing to find that Montana's maintenance plan meets the “Contingency Measures” requirement.

The EPA has concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: The attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. Therefore, the EPA proposes to find that the maintenance plan SIP revision submitted by Montana for the Billings 2010 SO2 nonattainment area meets the requirements of section 175A of the CAA and is approvable.

The EPA is proposing to take the following four separate but related actions: (1) Determine that the Billings SO2 nonattainment area is attaining the 2010 1-hour SO2 NAAQS; (2) Approve Montana's plan for maintaining the 2010 1-hour SO2 NAAQS (maintenance plan); (3) Redesignate the Billings SO2 nonattainment area to attainment for the 2010 1-hour SO2 NAAQS; and (4) determine that the Billings SO2 nonattainment area has clean monitoring data. Section IV of this notice provides a discussion of each of these proposed actions.

The EPA proposes to determine that the Billings SO2 nonattainment area has attained the 2010 1-hour SO2 standard by the October 4, 2018, required attainment date. This determination is based on complete, quality-assured, and certified monitoring data for the 2012-2014 monitoring period. The EPA is also proposing to approve the maintenance plan under the 2010 NAAQS for the Billings SO2 nonattainment area into the Montana SIP (under CAA section 175A). The maintenance plan demonstrates that the area will continue to maintain the 2010 1-hour SO2 NAAQS, and includes a process to develop contingency measures to remedy any future violations of the 2010 1-hour SO2 NAAQS and procedures for evaluation of potential violations.

Additionally, the EPA is proposing to determine that the Billings SO2 nonattainment area has met the criteria under CAA section 107(d)(3)(E) for redesignation from nonattainment to attainment for the 2010 1-hour SO2 NAAQS. On this basis, the EPA is proposing to approve Montana's redesignation request for the area. Final approval of Montana's redesignation request would change the legal designation of the portion of Yellowstone County designated nonattainment at 40 CFR part 81.327 to attainment for the 2010 1-hour SO2 NAAQS.

The EPA is also proposing to determine that the Billings SO2 nonattainment area has attaining monitoring data for the 2010 SO2 primary NAAQS based on the most recent complete three-year period (2012-2014) design value period that meets the clean data policy. As noted elsewhere, in the event that EPA does not finalize the proposed redesignation, EPA may choose to separately finalize the clean data determination, thereby suspending the attainment planning-related requirements for the area.

In this action, the EPA is not proposing to take any action on the Billings/Laurel SO2 area that was the subject of a SIP Call (67 FR 22168, May 2, 2002) and for which EPA promulgated a FIP (77 FR 21418, April 21, 2008) under the prior 24-hour SO2 primary NAAQS and the still-current SO2 secondary NAAQS. EPA is also not proposing any action to revoke the prior (1971) SO2 primary NAAQS in either the 2010 Billings SO2 nonattainment area or the larger Billings/Laurel area addressed by the May 2, 2002 SIP Call.

In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the Billings SO2 Redesignation and Maintenance Plan for action which are identified within this notice of proposed rulemaking. The 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 rule's preamble for more information).

Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, these proposed actions merely propose to approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law. For this reason, these proposed actions:

• Are not significant regulatory actions 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);

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

• Are 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.);

• Do 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);

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Are 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

• Do 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 does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed 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).

Under its general statutory rulemaking authority, FRA promulgates and enforces rules as part of a comprehensive regulatory program to address all areas of railroad safety. See 49 U.S.C. 20103 and 49 CFR 1.89. To provide for safety at public highway-rail grade crossings (public grade crossings), FRA has issued specific regulations in 49 CFR part 222 that generally require locomotive horn use at such crossings except within authorized quiet zones established under the regulations. Congress mandated these regulations in Public Law 103-440, codified as Section 20153 to title 49 of the United States Code. This statute required the Secretary of Transportation (whose authority in this area had been delegated to the Federal Railroad Administrator) to issue regulations on the use of locomotive horns at public grade crossings, but gave the Secretary the authority to make reasonable exceptions.

Consistent with Executive Order 13563 (“Improving Regulation and Regulatory Review”) and Executive Order 13610 (“Identifying and Reducing Regulatory Burdens”), FRA continually reviews its regulations and revises them as needed to: (1) Ensure the regulatory burden is not excessive; (2) clarify the application of existing requirements and remove requirements that are no longer necessary; and (3) keep pace with emerging technology, changing operational realities, and safety concerns. Therefore, through this Notice of Safety Inquiry, FRA seeks to gather input from the rail industry and State and local authorities on any regulatory burdens associated with 49 CFR part 222, while still maintaining the highest level of safety at our Nation's public grade crossings.

Executive Order 13563 requires agencies to periodically conduct retrospective analyses of their existing rules to identify requirements that may be outmoded, ineffective, insufficient, or excessively burdensome and to modify, streamline, expand, or repeal any problematic regulatory provisions identified during the review. Additionally, Executive Order 13610 requires agencies to take continuing steps to reassess regulatory requirements, and where appropriate, to streamline, improve, or eliminate those requirements. In particular, Executive Order 13610 emphasizes that agencies should prioritize “initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burdens.” Therefore, FRA is specifically interested in receiving comments on how the agency can reduce the regulatory burden on the regulated community and the public in a way that would provide monetary savings or reduce paperwork burdens without negatively impacting safety at public grade crossings.

FRA began the rulemaking process for 49 CFR part 222 on January 13, 2000, when it published a Notice of Proposed Rulemaking (NPRM) in the Federal Register addressing the use of locomotive horns at public grade crossings. The rulemaking was mandated by 49 U.S.C. 20153, which required the Secretary of Transportation to issue regulations that required the use of locomotive horns at public grade crossings, but gave the Secretary the authority to make reasonable exceptions. FRA received approximately 3,000 comments in response to the NPRM.

Due to the substantial and wide-ranging public interest in the NPRM, FRA conducted a series of twelve public hearings throughout the United States. More than 350 people testified at these hearings.

On December 18, 2003, FRA published an Interim Final Rule in the Federal Register (68 FR 70586). FRA could have proceeded directly to the final rule stage of the rulemaking. However, FRA chose to issue an interim final rule instead in order to give the public an opportunity to comment on changes that had been made to the rule since the NPRM. In addition, FRA held another public hearing in Washington, DC on February 4, 2004. By the close of the extended comment period, over 1,400 comments had been filed with the agency regarding the Interim Final Rule.

FRA then published a final rule in the Federal Register on April 27, 2005 (70 FR 21844). After the final rule was published, FRA received several petitions for reconsideration and associated letters in support of the petitions. In addition, the Association of American Railroads (AAR) submitted a petition for an Emergency Order. On August 17, 2006, FRA published amendments in the Federal Register which amended and clarified the final rule in response to the petitions for reconsideration (71 FR 47614). FRA denied AAR's petition for an Emergency Order.

Since 2006, FRA has not issued any substantive revisions to 49 CFR part 222. Therefore, FRA is soliciting public comments on any needed revisions to the regulations as part of its retrospective review.

FRA regulations require that engineers sound their locomotive horns while approaching public grade crossings until the lead locomotive fully occupies the crossing. See 49 CFR 222.21(a). In general, the regulations require locomotive engineers to begin to sound the train horn for a minimum of 15 seconds, and a maximum of 20 seconds, in advance of public grade crossings. See 49 CFR 222.21(b)(2). Engineers must also sound the train horn in a standardized pattern of two long, one short and one long blast and the horn must continue to sound until the lead locomotive or train car occupies the grade crossing. See 49 CFR 222.21(a). Additionally, the minimum sound level for the locomotive horn is 96 dB(A), while the maximum sound level is 110 dB(A). See 49 CFR 229.129(a).

Research and years of experience show that the use of train horns, flashing lights, and gates—in concert—at grade crossings are extremely effective in preventing accidents and their resulting injuries and deaths. The use of the locomotive horn while trains are approaching public highway-rail grade crossings provides an important safety warning to pedestrians and motorists who are on or approaching the crossings. FRA conducted a nationwide study that showed there is a 66.8-percent increase in crossing collisions at crossings equipped with automatic warning devices consisting of flashing lights and gates when train horns are not routinely sounded.

FRA regulations authorize only public authorities to establish quiet zones. See 49 CFR 222.37(a). At a minimum, new quiet zones must be at least one-half mile in length and contain at least one public grade crossing (i.e., a location where a public highway, road, or street crosses one or more railroad tracks at grade). See definition of “quiet zone” in 49 CFR 222.9 and 222.35(a). Every public grade crossing in a quiet zone must be equipped at a minimum with active grade crossing warning devices consisting of flashing lights and gates. See 49 CFR 222.35(b).

If a public authority wants to establish a new quiet zone that will include a pedestrian crossing, a private highway-rail grade crossing that allows access to the public, or a private highway-rail grade crossing that provides access to an active industrial or commercial site, a diagnostic team (made up of representatives from the railroad, relevant State agencies, the public authority, and FRA, if possible) must evaluate the pedestrian or private highway-rail grade crossing and the crossing must be equipped or treated in accordance with the diagnostic team recommendations. See 49 CFR 222.25(b)(1) and 222.27(b). In addition, FRA has interpreted 49 CFR part 222 to require that any private highway-rail grade crossing or pedestrian crossing in a quiet zone must be located either between the public grade crossings that serve as quiet zone endpoints or within one-quarter mile of the quiet zone endpoints.

Public authorities can establish quiet zones through either the public authority designation process or the public authority application process to FRA. See 49 CFR 222.39(a) and (b), respectively. Because the absence of routine horn sounding at public grade crossings increases the risk of a crossing collision, in most circumstances the regulations require public authorities seeking to establish quiet zones to mitigate additional risk. Public authorities that wish to reduce existing risk levels within the proposed quiet zone can implement certain specified pre-approved crossing improvements (i.e., Supplementary Safety Measures (SSMs)) to reduce the proposed quiet zone's risk level to an acceptable level. These improvements include: Roadway medians or channelization devices to discourage motorists from driving around a lowered crossing gate; a four-quadrant gate system to block all lanes of highway traffic; converting a two-way street into a one-way street and installing crossing gates, and permanent or temporary (nighttime) closure of the crossing to highway traffic. See Appendix A to 49 CFR part 222. Public authorities that rely exclusively on SSMs to reduce existing risk levels within the proposed quiet zone to an acceptable level can establish quiet zones through the public authority designation process (i.e., without specific FRA approval). See 49 CFR 222.39(a). However, public authorities that want to implement Alternative Safety Measures (ASMs), i.e., modified SSMs or certain specified non-engineering crossing improvements, within a proposed quiet zone must apply for FRA approval of the effectiveness rate (i.e., the amount of risk that is mitigated by deployment of a safety measure at a crossing) that will be assigned to the crossing improvement(s).

As an alternative, communities may also choose to silence routine locomotive horn sounding through the installation of wayside horns at public grade crossings. Wayside horns are train-activated stationary acoustic devices at grade crossings that are directed at highway traffic as a one-for-one substitute for train horns.

During the new quiet zone establishment process, the regulations require public authorities to provide a Notice of Intent to the railroads that operate within the quiet zone, and to the State agencies responsible for highway and grade crossing safety, to solicit comments on the proposed quiet zone. See 49 CFR 222.43(a). However, a quiet zone may not take effect until all the necessary safety measures have been installed and are operational. See 49 CFR 222.43(d)(2). The regulations also require the public authority to provide a Notice of Quiet Zone Establishment to all affected parties before the quiet zone is established, including all railroads that operate over crossings within the proposed quiet zone, State agencies responsible for highway and grade crossing safety, and FRA. See 49 CFR 222.43(a)(3). The Notice of Quiet Zone Establishment must provide the date when the quiet zone will take effect, which cannot be less than 21 days after the date on which the Notice of Quiet Zone Establishment is mailed. See 49 CFR 222.43(d).

While FRA solicits discussion and comments on all of 49 CFR part 222, we particularly encourage comments on the following questions:

• How can FRA decrease the barriers local communities encounter when establishing a quiet zone?

• Should 49 CFR part 222 allow greater variances in highway-rail configurations when determining safety calculations for local communities establishing quiet zones? If so, what variances would be appropriate?

• Should FRA amend Appendix A to 49 CFR part 222 to include common alternative grade crossing safety measures and emerging grade crossing safety technologies? If so, what measures and technologies would be appropriate?

• What further actions can FRA take to mitigate train horn noise impacts for local communities while not decreasing safety for motorists and pedestrians?

• How can FRA change how train horns are sounded at grade crossings while not decreasing safety for motorists and pedestrians?

• Should railroads be required to file an official opinion of support or opposition to the establishment of a new quiet zone?

• Should train speed be a factor that is considered when establishing a new quiet zone?

• Should there be an online process for submitting quiet zone notices, applications, and required paperwork, in whole or in part?

• Should FRA be a required recipient of the Notice of Intent to establish a quiet zone?

• Should FRA provide additional guidance on how to measure the length of a quiet zone? If so, what guidance would be helpful?

• Should FRA develop a process to address modifications to grade crossings within an existing quiet zone? If so, please describe what process would be helpful?