Federal Register Vol. 81, No.75,

The Department of Energy is publishing this notice of proposed rulemaking (NOPR) in order to update and clarify DOE's policies and procedures for the denial and revocation of access authorizations.

10 CFR part 710 has not been substantively updated since 2001 (66 FR 47062, Sept. 11, 2001). Since that time, as the Department has gained operational experience under the current rule, revisions to update and clarify provisions in the rule are appropriate. The proposed rule would: (1) Accord primacy to the national Adjudicative Standards when determining eligibility for access authorization; (2) clarify that DOE can, in exigent circumstances, suspend an access authorization without recourse to certain administrative procedures; (3) permit individuals subject to criminal proceedings to suspend access authorization revocation proceedings under this part, subject to certain conditions; (4) limit the ability of the Appeal Panel to consider new evidence on appeal of a decision by the Department's Office of Hearings and Appeals or the Manager to deny or revoke access authorization; (5) introduce a one-year waiting period before an individual, previously the subject of denial or revocation of access authorization, may be reconsidered for access authorization; (6) add to part 710 the requirements of Presidential Policy Directive 19, which provides appeal rights to the Department's Office of Inspector General under certain circumstances; (7) revise, delete, and add definitions for certain terms used in the regulation; and (8) update references to DOE Offices and officials to reflect the current DOE organizational structure.

Laws, regulations and directives which may apply to part 710 include, but are not limited to: The Atomic Energy Act of 1954; Executive Order 13467 (73 FR 38103, June 30, 2008; Executive Order 12968 (60 FR 40245, August 2, 1995, as amended); Executive Order 13526 (75 FR 707, January 5, 2010); Executive Order 10865 (25 FR 1583, February 24, 1960, as amended); Executive Order 10450 (18 FR 2489, April 27, 1954, as amended); Presidential Policy Directive 19 (October 10, 2012).

DOE proposes to amend 10 CFR part 710 as follows:

The title of this part would be revised to delete the words “CRITERIA AND” to reflect the proposed deletion of the criteria in current § 710.8, and because the term “Procedures” adequately describes the content of the rule. Additionally, the heading, Subpart A, “General Criteria and Procedures for Determining Eligibility for Access to Classified Matter and Special Nuclear Material,” is proposed to be deleted. Previously, the entire body of this rule was denominated as Subpart A to Part 710. In this proposed revision, each existing undesignated subpart heading would be designated as an individual subpart, in accordance with the U.S. Government Printing Office's Document Drafting Handbook.

1. The current heading “GENERAL PROVISIONS” located above current § 710.1 would be revised to add “SUBPART A—” at the beginning.

2. Proposed § 710.1 “Purpose” would delete references to the specific types of individuals to which this part applies since this information is set forth in § 710.2; and would update the applicable legal authorities.

3. Proposed § 710.2 “Scope” would clarify that determining eligibility for an individual's access authorization would require application of the national Adjudicative Guidelines, and reference to “criteria” would be deleted.

4. Proposed § 710.3 “Reference” would delete the reference to the Atomic Energy Act and replace it with a reference to the Adjudicative Guidelines.

5. Proposed § 710.4 “Policy” would replace the phrase “criteria for determining eligibility for access authorization and” with “procedures” in paragraph (a) to reflect the proposed deletion of the criteria in current § 710.8. Current § 710.4(c) would be renumbered § 710.32(b)(1). Current § 710.4(d) would be renumbered § 710.32(b)(2). Current paragraphs (e) and (f) would be deleted since the situations addressed in those paragraphs are already covered in the current rule. Current paragraph (g) would be renumbered § 710.32(c).

6. In proposed § 710.5 “Definitions” a number of new or revised definitions are proposed. In addition, the terms contained in this section would be re-ordered so that they are listed in alphabetical order; current § 710.5(b) would be deleted as unnecessary.

The term “DOE Counsel” would be amended to delete the requirement that such an individual be subject to a favorably adjudicated background investigation. Instead, the requirement that such an individual must hold a DOE Q access authorization, the grant of which is predicated on a favorably adjudicated background investigation, would be added.

The term “Administrative Judge” is proposed to be amended in the same fashion and for the same reasons as the definition of “DOE Counsel,” and also to delete the requirement that this person be a “senior management official.”

The term “Director” would be added and defined as the Director, Office of Departmental Personnel Security, to reflect organizational changes within the DOE's personnel security program.

The terms “Local Director of Security” and “Manager” would be revised to reflect organizational changes throughout DOE.

The term “national security information” would be deleted as it does not appear anywhere in this rule.

7. The current heading “CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR ACCESS TO CLASSIFIED MATTER OR SPECIAL NUCLEAR MATERIAL” located above current § 710.6 would be revised to add “SUBPART B—” at the beginning, and to delete “CRITERIA AND” to reflect the deletion of the criteria in proposed § 710.8.

8. Proposed § 710.6 “Cooperation by the individual.”

(1) Proposed paragraph (a)(1) would revise the language for clarity but would not change it substantively.

(2) Proposed paragraph (a)(2) would update the reference to polygraph examinations to be consistent with the intent of 10 CFR part 709, and to update terms as in paragraph (a)(1), described above.

(3) Proposed paragraph (b) would reflect current DOE organizational structures.

(4) Proposed paragraph (c) would clarify the process by which an individual could appeal decisions taken by DOE under proposed paragraphs (a)(1) and (a)(2).

9. The proposed changes to § 710.7 “Application of the criteria” would remove references to the criteria and clarify that all determinations of eligibility for access authorization at DOE would be made in accordance with the national Adjudicative Guidelines. DOE has for several decades utilized the criteria currently in § 710.8 to determine eligibility for access authorization. When the national Adjudicative Guidelines were introduced in 1997, DOE began using them in conjunction with the criteria in § 710.8. The revision proposed today would make all access authorization determinations in reliance solely on the Adjudicative Guidelines. The current title “Application of the criteria” would be revised to replace “criteria” with “Adjudicative Guidelines.” Additionally, the current § 710.9(a) would be renumbered § 710.7(d) to clearly indicate how information obtained by DOE may be considered derogatory under the Adjudicative Guidelines and used to determine access authorization eligibility. The last sentence of the current § 710.7(a) would be moved to the beginning of proposed § 710.7(d) where it more logically fits.

10. Current § 710.8 “Criteria” would be removed in its entirety, since exclusive reliance on the national Adjudicative Guidelines for making access authorization eligibility determinations would render this section unnecessary.

11. The current § 710.9 “Action on derogatory information” would be renumbered § 710.8.

(1) Current paragraph (a) would be moved to proposed § 710.7(d) as indicated in the discussion of proposed § 710.7.

(2) Proposed paragraph (a)—currently paragraph (b)—would remove the specific reference to a DOE mental evaluation as an example of actions that can be taken to resolve derogatory information. Since a mental evaluation is just one of many actions DOE can take to resolve derogatory information, DOE proposes to delete the example to avoid any misperception that DOE is limited to this action.

(3) Current paragraph (e) would be renumbered as paragraph (d) and would be revised to reflect changes in the DOE organizational structure.

12. Current § 710.10 “Suspension of access authorization” would be renumbered § 710.9.

(1) Proposed paragraph (b) would clarify that the Department can take immediate action to suspend an individual's access authorization, without taking actions to investigate derogatory information, when there are immediate threats to the national security or to the safety and security of a DOE facility or employee. An individual whose access authorization has been suspended under these circumstances would be entitled to due process protections as set forth in part 710 before the Department makes a final decision on the individual's eligibility for access authorization.

(2) The current paragraph (b) would be renumbered as paragraph (c). Proposed paragraph (c) would clarify the responsibilities of the Manager upon the recommendation of a Local Director of Security that an individual's access authorization should be suspended.

(3) Proposed paragraph (e) has been added to reflect the requirements of Presidential Policy Directive 19, and would provide that a Federal employee who believes action to suspend his or her access authorization was taken as retaliation for having made a protected disclosure of information may appeal the decision to the Department's Office of the Inspector General.

13. The current heading, “ADMINISTRATIVE REVIEW,” located above current § 710.20, would be redesignated as Subpart C by adding, “SUBPART C—” at the beginning.

14. Section 710.20 “Purpose of administrative review” would remain unchanged except for an editorial revision to clarify that the procedures in proposed Subpart C “govern” and not just “establish methods for” the conduct of administrative review proceedings under this part.

15. Proposed § 710.21 “Notice to the individual”

(1) Proposed paragraph (b)(7) would clarify that the Administrative Judge has the option of conducting administrative review hearings via video teleconferencing. The use of video teleconferencing for this purpose has been piloted with successful results. Additionally, proposed paragraph (b)(7) would include information currently contained in § 710.34, “Attorney representation,” which is proposed to be deleted. The current § 710.34 addresses the responsibility of the individual to provide DOE with notice of representation by an attorney, so the substance of § 710.34 would fit better in proposed paragraph (b)(7) since it already addresses the individual's right to attorney representation.

(2) Proposed paragraph (b)(8) would clarify that in the event that an individual fails to file a timely written request for a hearing before an Administrative Judge, the Manager shall issue a final decision to revoke or deny an individual's access authorization.

(3) Current paragraphs (c)(1) and (c)(3) would be renumbered as paragraphs (b)(10) and (b)(11), respectively, for better flow.

(4) Proposed new paragraphs (b)(12)(i) through (iii) would address the rights of individuals who, at the time they receive a notification letter pursuant to proposed § 710.21, are the subject of criminal proceedings for a felony offense or for an offense which is punishable by more than a year in prison. The proposed addition would clarify that individuals in that situation have the right to decide whether to continue with or withdraw from the Administrative Review process. Under the current rule, the discretion to continue with the Administrative Review process resides with DOE. Under the proposed revision, the individual concerned would decide to either (1) proceed with Administrative Review, requiring him/her to participate fully in the process, or (2) withdraw from the Administrative Review process, resulting in the administrative withdrawal of the individual's access authorization. Once the individual's criminal law matter concludes, a request for access authorization could be resubmitted.

(5) Proposed new paragraph (c)(2), embodying the requirements of Presidential Policy Directive 19, would be added to provide that a Federal employee who believes action to deny or revoke access authorization under the Administrative Review process was taken as retaliation for having made a protected disclosure of information may appeal the decision to the Department's Office of the Inspector General.

16. Proposed § 710.22 “Initial Decision Process” would clarify, in paragraph (c)(4), that if the individual does not exercise his/her right to appeal the initial decision of a Manager to deny or revoke access authorization within 30 calendar days of that decision, the Manager's initial decision would become final action not subject to further review or appeal.

17. Proposed § 710.25 “Appointment of Administrative Judge; prehearing conference; commencement of hearings” would clarify the authority of the Administrative Judge to conduct hearings via video teleconferencing and shorten the time limit for the Administrative Judge to commence a hearing, from 90 days to 60 days from the date the individual's request for hearing is received by the Office of Hearings and Appeals. This proposed change reflects the DOE Office of Hearings and Appeals' current internal procedures for commencing a hearing.

18. Proposed § 710.27 “Administrative Judge's decision” would indicate that the Administrative Judge shall render a decision as to the granting or restoring of an individual's access authorization within 30 calendar days from the date of receipt of the hearing transcript. This proposed change reflects the DOE Office of Hearings and Appeals' current internal procedures for issuing a decision.

19. Proposed § 710.28 “Action on the Administrative Judge's decision” would clarify that an Administrative Judge's decision shall constitute final action not subject to review or further appeal if a written request for a review of the decision by the Appeal Panel is not filed within a timely manner with the Director. Additionally, proposed paragraph (c) would address the process by which the Department may appeal a decision by the Administrative Judge to grant or to continue an individual's access authorization, to comport with the process in current paragraph (b) which addresses how the individual may appeal a decision by the Administrative Judge to deny or revoke access authorization.

20. Proposed § 710.29 “Final appeal process” would reflect, in paragraph (e), that an appeal decision would be based solely upon information in the administrative record at the time of the Manager's decision or the Administrative Judge's initial decision. Consequently, current paragraphs (h), (i) and (j) would be deleted in their entirety. Paragraphs (a) through (d) would be revised to reflect the current Departmental organization and to more clearly describe the process by which an Appeal Panel is convened. Paragraph (f) would be revised to clarify that the Appeal Panel's decision is not subject to further review or appeal.

21. Current § 710.30 “New evidence” would be deleted to reflect that an appeal decision would be based solely upon information in the administrative record at the time of the Manager's decision or the Administrative Judge's initial decision.

22. Proposed § 710.30 “Action by the Secretary,” currently § 710.31 and renumbered § 710.30 in the proposed rule, would state that the Secretary's responsibilities could be delegated in accordance with Executive Orders 12968 and 10865. Also, references to current § 710.29(h) and (i) would be deleted since those sections are proposed to be deleted.

23. Proposed § 710.31 “Reconsideration of Access Eligibility.” This proposed section, which would be renumbered from § 710.32, would provide for a minimum of one year between a final decision to deny or revoke access authorization and the time when an individual may apply for reconsideration. Currently, part 710 contains no time limit and many individuals seek reconsideration within days of receiving a final decision denying or revoking the individual's access authorization. Further, individuals have been permitted to file a request for reconsideration repeatedly, even after previous reconsideration requests have been denied. A one-year time limit would convey clear expectations to the individual as to when a reconsideration request could be accepted and would reduce the undue burden on the Department of considering multiple close-in-time appeals. In addition, paragraph (d) would more clearly describe the reconsideration process.

24. The current heading, “TERMINATIONS,” located above current § 710.33 would be redesignated as Subpart D by adding, “SUBPART D—” at the beginning.

25. Proposed § 710.32 “Terminations.” This proposed section, would be renumbered from § 710.33. Proposed § 710.32(a), currently § 710.33, would clarify that if the procedures of this part are terminated after an unfavorable initial agency decision has been rendered, any subsequent requests for access authorization for an individual would be processed as a review of the decision by the Appeal Panel, unless a minimum of one year had elapsed. Proposed § 710.32(b)(1), currently § 710.4(c), would indicate that the type of criminal proceedings for which DOE may take action to terminate processing an access authorization application include felony offenses and offenses punishable by one year of imprisonment or longer. Currently, this threshold is six months; this proposed change to one year would be consistent with the one-year time frame in proposed § 710.21. Proposed § 710.32(b)(2) and § 710.32(c), would be renumbered from current § 710.4(d) and (g), respectively.

26. Current § 710.34 “Notice to individual” would be deleted. The substance of current § 710.34 would be added to proposed § 710.21.

27. Proposed § 710.33 “Time frames,” currently § 710.35, would be renumbered as § 710.33.

28. Proposed § 710.34 “Acting Officials,” currently § 710.36, would reflect organizational changes within the Department and permit the Deputy Associate Under Secretary for Environment, Health, Safety and Security greater flexibility to delegate his/her responsibilities under part 710. Currently, these responsibilities can only be exercised by persons in security-related Senior Executive Service positions. The proposed change would permit the Deputy Associate Under Secretary for Environment, Health, Safety and Security to delegate his/her authorities under part 710 to persons in senior security-related positions. It is expected that only persons in GS-15 or Senior Executive Service positions would meet this requirement. This proposed change would enhance the Department's ability to effectively manage the Administrative Review process prescribed by part 710.

The national Adjudicative Guidelines would be Appendix A.

The regulatory action proposed today has been determined not to be a “significant regulatory action” under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this proposed rule is not subject to review under the Executive Order by the Office of Information and Regulatory Affairs within the Office of Management and Budget.

DOE has also reviewed the proposed regulation pursuant to Executive Order 13563, issued on January 18, 2011 (76 FR 3281 (Jan. 21, 2011)). Executive Order 13563 is supplemental to and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, agencies are required by Executive Order 13563 to: (1) Propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.

DOE emphasizes as well that Executive Order 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. DOE believes that this NOPR is consistent with these principles, including the requirement that, to the extent permitted by law, agencies adopt a regulation only upon a reasoned determination that its benefits justify its costs and, in choosing among alternative regulatory approaches, those approaches maximize net benefits.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction.

With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this proposed regulation meet the relevant standards of Executive Order 12988.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” (67 FR 53461, August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of the General Counsel's Web site at http://www.gc.doe.gov.

This proposed rule would amend procedures that apply to the determination of eligibility of individuals for access to classified information and access to special nuclear material. The proposed rule applies to individuals, and would not apply to “small entities,” as that term is defined in the Regulatory Flexibility Act. As a result, if adopted, the proposed rule would not have a significant economic impact on a substantial number of small entities.

Accordingly, DOE certifies that the proposed rule would not have a significant economic impact on a substantial number of small entities, and, therefore, no regulatory flexibility analysis is required.

This proposed rule does not impose a collection of information requirement subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

DOE has concluded that promulgation of this proposed rule falls into a class of actions which would not individually or cumulatively have significant impact on the human environment, as determined by DOE's regulations (10 CFR part 1021, subpart D) implementing the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et seq.). Specifically, this proposed rule is categorically excluded from NEPA review because the amendments to the existing rule are strictly procedural (categorical exclusion A6). Therefore, this proposed rule does not require an environmental impact statement or environmental assessment pursuant to NEPA.

Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it does not preempt State law and, if adopted, would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires a Federal agency to perform a detailed assessment of costs and benefits of any rule imposing a Federal Mandate with costs to State, local or tribal governments, or to the private sector, of $100 million or more. This rulemaking does not impose a Federal mandate on State, local or tribal governments or on the private sector.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a Family Policymaking Assessment for any rule or policy that may affect family well being. The proposed rule, if adopted, will have no impact on family well-being. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy, or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution and use. This proposed rule is not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516, note) provides for agencies to review most disseminations of information to the public under implementing guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

The Office of the Secretary of Energy has approved issuance of this proposed rule.

For the reasons set out in the preamble, DOE is proposing to revise part 710 of title 10 of the Code of Federal Regulations as set forth below.

On January 6, 2016, Powerboat P1-USA, LLC notified the Coast Guard that it will conduct a series of high speed boat races on the St. Johns River near downtown Jacksonville, FL on June 3rd and 4th, 2016. COTP Jacksonville determined that the potential hazards associated with high speed boat races necessitate the establishment of a special local regulation.

The purpose of this rulemaking is to ensure the safety of life on the navigable waters of the United States by prohibiting all vessels and persons not participating in the event from entering the regulated area. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1233.

The COTP proposes to establish a special local regulation for the 3rd Annual Jacksonville Grand Prix of the Seas, a series of high-speed boat races. The regulated area includes the waters of the St. Johns River near downtown Jacksonville, FL and it will be enforced daily 9 a.m. to 5 p.m. on June 3rd and 4th, 2016. Approximately 10 high-speed race boats are anticipated to participate in the races. The regulated area would encompass an area, located just southeast of the Fuller-Warren Bridge that is approximately 2,730 yards long and approximately 1,215 yards wide. No vessel or person would be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

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

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

The Coast Guard has determined that this NPRM is not a significant regulatory action for the following reasons: (1) The special local regulation would be enforced for a total of only 16 hours over the course of two days; (2) although persons and vessels would not be able to enter, transit through, anchor in, or remain within the regulated area without authorization from the COTP Jacksonville or a designated representative, they would be able to operate in the surrounding area during the enforcement period; (3) persons and vessels would still be able to enter, transit through, anchor in, or remain within the regulated if authorized by the COTP Jacksonville or a designated representative; and (4) the Coast Guard would provide advance notification of the special local regulation to the local maritime community via Broadcast Notice to Mariners or by on-scene designated representative.

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a special local regulation that would prohibit persons and vessels from transiting through an approximated 2,730 yard by 1,215 yard regulated area during a two day racing event lasting eight hours daily. Normally such actions are categorically excluded from further review under paragraph 34(h) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

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

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

I. Table of Abbreviations ANPRM Advance notice of proposed rulemaking CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NM Nautical Miles VA Virginia II. Background, Purpose, and Legal Basis

Recreational, public, and commercial vessels use the Hampton Roads Anchorage Grounds. General regulations covering the anchorage of vessels in the port are set out in 33 CFR 110.168. Coast Guard regulations covering the rulemaking process are set out in 33 CFR subpart 1.05.

The Coast Guard held a meeting on February 20, 2015, with U.S. Navy and commercial maritime stakeholders to discuss solutions to enhance Port of Virginia waterway use. Attendance included Virginia Pilots Association, Virginia Maritime Association and local area pilots. Various courses of action were suggested by attendees as possible options to further enhance maritime commerce concurrently with U.S. Navy military requirements. This meeting provided valued insight toward developing a potential new anchorage ground that would facilitate the future growth of Port of Virginia.

The purpose of this ANPRM is to solicit comments on potential proposed rulemaking to help accommodate increase in both the number of commercial vessels and traffic density and to enhance navigation safety for vessels transiting the Hampton Roads area by creating a Federal commercial anchorage west of Cape Charles, VA on the Lower Chesapeake Bay. Current trends indicate that shipping companies will call on the Port of Virginia using larger, deeper-draft vessels. Our intent for any proposed rulemaking would be to facilitate the safety of the port anchorages by providing an anchorage of adequate size, depth, and capacity to accommodate commercial vessels calling on the Port of Virginia.

The legal basis and authorities for this advance notice of proposed rulemaking are found in 33 U.S.C. 471, 1221 through 1236; 33 CFR 1.05-1, Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to propose, establish, and define regulatory anchorages. The Coast Guard is now considering a proposed rulemaking to establish a new commercial anchorage area in the vicinity of the Port of Virginia, west of Cape Charles, VA.

The Coast Guard is considering a new deep-water anchorage ground for commercial vessels and to support projected growth in maritime commerce vessel traffic throughout the Port of Virginia. We are considering locating an anchorage ground in the Lower Chesapeake Bay, between Cape Charles and York Spit Channel. The anchorage ground under consideration is triangular in shape with an eastern boundary 7 nautical miles (NM) in length along the descending bank off Cape Charles, VA. The western boundary of the anchorage ground runs parallel with and 500 yards east of York Spit Channel for 6.3 NM, from lighted buoy 38 thence south to lighted buoy 30. The southern boundary of the anchorage is 5.4 NM in length measured along a line commencing 500 yards east of York Spit lighted buoy 30 thence eastward to a position approximately 1.5 miles from Cape Charles shoreline. The anchorages coordinates includes all waters of the Lower Chesapeake Bay bounded by a line connecting the following points: Latitude 37°17′33″ N., longitude 076°06′22″ W., thence southeast to latitude 37°11′29″ N., longitude 076°01′57″ W., thence west to latitude 37°11′29″ N., longitude 076°08′43″ W., thence northeast to point of origin. The approximate depths of the proposed new anchorage would be located in naturally deep water with charted depths ranging from 30 feet to 130 feet and the majority of the eastern part of the triangular anchorage having depths in excess of 60 feet. Current trends indicate that shipping companies will call on the Port of Virginia using larger, deeper draft vessels.

You may find a drawing with an illustration of the contemplated anchorage ground in the docket. Look for Illustration of Contemplated Anchorage “R.”

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

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

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

Documents mentioned in this ANPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

We plan to hold two public meetings to receive oral comments on this ANPRM and will announce the dates, times, and locations in a separate document published in the Federal Register. If you signed up for docket email alerts mentioned in the paragraph above, you will receive an email notice when the public meeting notice is published and placed in the docket.

Before the Coast Guard proposes specific regulations to amend and establish a new anchorage on the Lower Chesapeake Bay, the Coast Guard is requesting input from the public. The Coast Guard is particularly interested in receiving comments from all of those who have a stake in the viability of a Cape Charles alternative commercial deep-water anchorage ground for commercial vessels and all those port stake holders who contribute to the unique characteristics of the Port of Virginia. Please provide additional information not specifically solicited by this ANPRM if you believe it would be helpful in understanding the implications of creating a Federal anchorage west of Cape Charles. Please submit any comments or concerns you may have in accordance with the ADDRESSES section.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking II. Background, Purpose, and Legal Basis

On May 31, 2013 the Coast Guard published an NPRM in the Federal Register (78 FR 32608) entitled “Recurring Events in the Captain of the Port Duluth Zone.” The NPRM proposed to establish 8 permanent safety zones for annually recurring events in the Captain of the Port Duluth Zone under § 165.943. The NPRM was open for comment for 30 days.

On August 12, 2013 the Coast Guard published the Final Rule in the Federal Register (78 FR 48802) after receiving no comments on the NPRM. Through this proposed rule, the Coast Guard seeks to update § 165.943.

The legal basis for this proposed rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.

This proposed rule would update the locations of two safety zones (Cornucopia 4th of July Fireworks Display & Superior Man Triathlon), add three new permanent safety zones (City of Bayfield 4th of July Fireworks Display, Two Harbors 4th of July Fireworks Display, & Power Boat Championship Presented by TCPBA) for recurring safety zones, and modify the format of § 165.943 to list annual events and corresponding safety zones in table form. These changes are necessary to protect spectators, participants, and vessels from the hazards associated with annual marine events, and to improve the overall clarity and readability of the rule. These hazards related to the annual events include obstructions to the waterway that may result in marine casualties; explosive danger and flaming debris falling into the water from fireworks; and large congregations of vessels and waterborne spectators in the vicinity of the annual events.

This proposed rule will also arrange the safety zones listed in § 165.943 into a table sorted in ascending order of event date. This change in format is intended to improve clarity and readability and to reduce redundancy in the regulation.

Finally, this proposed rule clarifies that the enforcement dates and times for each safety zone listed in Table 165.943 is subject to change. While the events are anticipated to annually recur on certain dates, factors, to include inclement weather, may result in postponement. In the event of a postponement, the Coast Guard will issue a Notice of Enforcement with updated enforcement dates and times, and corresponding Broadcast Notice to Mariners for on scene notice.

The amendments to this proposed rule are necessary to ensure the safety of vessels and people during annual events taking place on or near federally maintained waterways in the Captain of the Port Duluth Zone. Although this proposed rule will be in effect year-round, the specific safety zones listed in Table 165.943 will only be enforced during a specified period of time when the event is on-going.

When a Notice of Enforcement for a particular safety zone is published, entry into, transiting through, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Duluth, or his or her designated representative. The Captain of the Port Duluth or his or her designated representative can be contacted via VHF Channel 16. All persons and vessels granted permission to enter the safety zone must comply with all instructions given by the Captain of the Port Duluth or his or her designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zones. The safety zones created by this proposed rule will be small and enforced for short periods of time. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port Duluth. Before the enforcement of these safety zones, the Coast Guard will issue local Broadcast Notice to Mariners so that vessel owners and operators may plan accordingly.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. An environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES. This proposed rule involves the establishment of safety zones and is therefore categorically excluded under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

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

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

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

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

On December 24, 2015, the Vermont National Guard notified the Coast Guard that they will be holding the 2016 Wings over Vermont Air Show on Lake Champlain along the shoreline of Burlington, VT from August 12, 2016 through August 14, 2016. The aeronautical box designed for the performers will measure 12,000 feet long and 4,770 feet wide and will be approximately 1,100 feet from shoreline. On water viewing locations will be placed both east and west of the air show box to control vessel traffic during the demonstration. Lake Champlain Transportation Company will redirect the ferry route around the aeronautical box so not to disrupt the safety zone during the enforcement period.

The purpose of this rulemaking is to ensure the safety of the spectator vessels and other traffic using the navigable waters near or around the designated aeronautical box. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The COTP proposes to establish a safety zone for the Wings over Vermont Air Show from 9 a.m. to 6 p.m. on August 12- 14, 2016 on Lake Champlain, along the shoreline of Burlington, VT. The safety zone would cover all navigable waters within an aeronautical box extending to and including the breakwater bounded by the following coordinates: 44°29′24″ N./073°14′44″ W.; 44°29′24″ N./073°14′03″ W.; 44°28′56″ N./073°14′03″ W.; 44°28′50″ N./073°13′48″ W.; 44°28′12″ N./073°13′33″ W.; 44°27′47″ N./073°14′03″ W.; 44°27′25″ N./073°14′03″ W.; 44°27′25″ N./073°14′44″ W. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 10 a.m. to 5 p.m. aerobatic displays. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

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

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

The Coast Guard has determined that this rule is not a significant regulatory action for the following reasons: The safety zone will be of limited duration and will only be in effect during a portion of three days, it will allow vessels to transit in waters directly adjacent to the safety zone, and coordinated efforts have been made to direct the ferry traffic around the safety zone so not to disrupt service on Lake Champlain. Additionally, maritime advisories will be posted in the Local Notice to Mariners and the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine Channel 16 prior to and during the entire duration of the enforcement period.

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting a portion of three days and would prohibit entry into without permission from the COTP. Normally such actions are categorically excluded from further review under paragraph 34 of figure 2-1 of Commandant Instruction M16475.1D. A preliminary environmental analysis checklist supporting this is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

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

Documents mentioned in this notice, and all public comments, are in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking PATCOM Patrol Commander §  Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

The Coast Guard is conducting this rulemaking under the authority of 33 U.S.C. 1231. Fireworks displays are held annually on a recurring basis on the navigable waters within the COTP San Francisco zone. Three of the annual fireworks events that require safety zones do not currently reflect the accurate location of the respective display sites. These safety zones are necessary to provide for the safety of the crew, spectators, participants of the event, participating vessels, and other users and vessels of the waterway from the hazards associated with firework displays. The effect of these proposed safety zones will be to restrict general navigation in the vicinity of the events, from the start of each event until the conclusion of that event. Except for the persons or vessels authorized by the COTP San Francisco or a designated representative, no person or vessel may enter or remain in the regulated area. These regulations are needed to keep spectators and vessels a safe distance away from the fireworks displays to ensure the safety of participants, spectators, and transiting vessels.

The Coast Guard has reviewed 33 CFR 165.1191for accuracy. The Coast Guard is proposing to amend Table 1 in § 1191 to update three events to reflect the current event locations. These events are listed numerically in Table 1 of this section: (7), (8), (22). The display locations currently listed have been deemed undesirable or hazardous by the event sponsors. The COTP San Francisco has determined that potential hazards associated with the current fireworks locations would be a safety concern for event crew, spectators, participants of the event, participating vessels, and other users and vessels of the waterway. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.1.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of each safety zone. Vessel traffic would be able to safely transit around each safety zone which would impact a small designated area of the COTP San Francisco zone for less than 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Local Notice to Mariner and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zones.

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zones lasting less than 1 hour that would prohibit entry within 1,000 feet of a fireworks barge. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

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

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

In § 165.1191, in Table 1 to § 165.1191, revise items 7, 8, and 22, to read as follows:

Table of Contents I. What are the actions EPA is proposing to take? II. What is the background for EPA's proposed actions? III. What are the criteria for redesignation? IV. Why is EPA proposing these actions? V. What is EPA's analysis of the redesignation request and January 19, 2016, SIP submission? VI. What is EPA's analysis of Tennessee's proposed NOX and VOC MVEBs for the Tennessee portion of the area? VII. What is the status of EPA's adequacy determination for the proposed NOX and VOC MVEBs the Tennessee portion of the area? VIII. What is the effect of EPA's proposed actions? IX. Proposed Actions. X. Statutory and Executive Order Reviews I. What are the actions EPA is proposing to take?

EPA is proposing to take the following four separate but related actions, one of which involves multiple elements: (1) To approve the base year emissions inventory for the 2008 8-hour ozone NAAQS for the Tennessee portion of the Area into the Tennessee SIP; (2) to determine that the Memphis, TN-MS-AR Area has attained the 2008 8-hour ozone NAAQS; 1 (3) to approve Tennessee's plan for maintaining the 2008 8-hour ozone NAAQS (maintenance plan), including the associated MVEBs for the Tennessee portion of the Memphis, TN-MS-AR Area, into the SIP; and (4) to redesignate the Tennessee portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the Tennessee portion of the Memphis, TN-MS-AR Area. The Memphis, TN-MS-AR Area consists of all of Shelby County in Tennessee, all of Crittenden County in Arkansas, and a portion of DeSoto County in Mississippi. Today's proposed actions are summarized below and described in greater detail throughout this notice of proposed rulemaking.

Based on the 2008 8-hour ozone nonattainment designation for the Memphis, TN-MS-AR Area, Tennessee was required to develop a nonattainment SIP revision addressing certain Clean Air Act (CAA or Act) requirements. Specifically, pursuant to CAA section 182(a)(3)(B) and section 182(a)(1), the state was required to submit a SIP revision addressing emissions statements and emissions inventory requirements, respectively, for its portion of the Area. EPA approved the emissions statements requirements for the Tennessee portion of the Area into the SIP in a separate action. See 80 FR 11974 (March 5, 2015). Today, EPA is proposing to determine that the base year emissions inventory, as submitted in the State's January 19, 2016, SIP revision, meets the requirements of section 182(a)(1) of the CAA and proposing to approve this emissions inventory into the SIP.

EPA is making the preliminary determination that the Memphis, TN-MS-AR Area has attained the 2008 8-hour ozone NAAQS based on recent air quality data and proposing to approve Tennessee's maintenance plan for its portion of the Memphis, TN-MS-AR Area as meeting the requirements of section 175A (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep the Memphis, TN-MS-AR Area in attainment of the 2008 8-hour ozone NAAQS through 2027. The maintenance plan includes 2027 MVEBs for NOX and VOC for the Tennessee portion of the Memphis, TN-MS-AR Area for transportation conformity purposes. EPA is proposing to approve these MVEBs and incorporate them into the Tennessee SIP.

EPA also proposes to determine that the Tennessee portion of the Memphis, TN-MS-AR Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, in this action, EPA is proposing to approve a request to change the legal designation of Shelby County, as found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS.

EPA is also notifying the public of the status of EPA's adequacy process for the 2027 NOX and VOC MVEBs for the Tennessee portion of the Memphis, TN-MS-AR Area. The Adequacy comment period began on January 27, 2016, with EPA's posting of the availability of Tennessee's submissions on EPA's Adequacy Web site (http://www3.epa.gov/otaq/stateresources/transconf/currsips.htm#shelby-cnty).

The Adequacy comment period for these MVEBs closed on February 26, 2016. No comments, adverse or otherwise, were received during the Adequacy comment period. Please see section VII of this proposed rulemaking for further explanation of this process and for more details on the MVEBs.

In summary, today's notice of proposed rulemaking is in response to Tennessee's January 19, 2016, redesignation request and associated SIP submission that address the specific issues summarized above and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the Tennessee portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS.

On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR part 50, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm. See 40 CFR 50.15. Ambient air quality monitoring data for the 3-year period must meet a data completeness requirement. The ambient air quality monitoring data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix P of part 50.

The Memphis, TN-MS-AR Area was designated nonattainment for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010 ambient air quality data. See 77 FR 30088. At the time of designation, the Memphis, TN-MS-AR Area was classified as a marginal nonattainment area for the 2008 8-hour ozone NAAQS. In the final implementation rule for the 2008 8-hour ozone NAAQS (SIP Implementation Rule),2 EPA established ozone nonattainment area attainment dates based on Table 1 of section 181(a) of the CAA. This established an attainment date three years after the July 20, 2012, effective date for areas classified as marginal areas for the 2008 8-hour ozone nonattainment designations. Therefore, the Memphis, TN-MS-AR Area's attainment date is July 20, 2015.

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation providing 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, 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). EPA has provided further guidance on processing redesignation requests in the following documents:

On January 19, 2016, the State of Tennessee, through TDEC, requested that EPA redesignate the Tennessee portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS and approve the associated SIP revision submitted on the same date. EPA's evaluation indicates that the entire Memphis, TN-MS-AR Area has attained the 2008 8-hour ozone NAAQS and that the Tennessee portion of the Memphis, TN-MS-AR Area meets the requirements for redesignation as set forth in CAA section 107(d)(3)(E), including the maintenance plan requirements under CAA section 175A and associated MVEBs. Also, based on Tennessee's January 19, 2016, submittal, EPA is proposing to determine that the base year emissions inventory, included in Tennessee's January 19, 2016, submittal, meets the requirements under CAA section 182(a)(1). Approval of the base year emissions inventory is a prerequisite to redesignating an ozone nonattainment area to attainment. As a result of these proposed findings, EPA is proposing to take the four related actions summarized in section I of this notice.

As stated above, in accordance with the CAA, EPA proposes in today's action to: (1) Approve the 2008 8-hour ozone NAAQS base year emissions inventory for the Tennessee portion of the Area into the Tennessee SIP; (2) determine that the Memphis, TN-MS-AR Area has attained the 2008 8-hour ozone NAAQS; (3) approve the 2008 8-hour ozone NAAQS maintenance plan, including the associated MVEBs, into the Tennessee SIP; and (4) redesignate the Tennessee portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS.

Section 182(a)(1) of the CAA requires states to submit a comprehensive, accurate, and current inventory of actual emissions from all sources of the relevant pollutant or pollutants in each ozone nonattainment area. The section 182(a)(1) base year emissions inventory is defined in the SIP Requirements Rule as “a comprehensive, accurate, current inventory of actual emissions from sources of VOC and NOX emitted within the boundaries of the nonattainment area as required by CAA section 182(a)(1).” See 40 CFR 51.1100(bb). The inventory year must be selected consistent with the baseline year for an RFP plan as required by 40 CFR 51.1110(b),3 and the inventory must include actual ozone season day emissions as defined in 40 CFR 51.1100(cc) 4 and contain data elements consistent with the detail required by 40 CFR part 51, subpart A. See 40 CFR 51.1115(a), (c), (e). In addition, the point source emissions included in the inventory must be reported according to the point source emissions thresholds of the Air Emissions Reporting Requirements (AERR) in 40 CFR part 51, subpart A. See 40 CFR 51.1115(d).

Tennessee selected 2011 as the year for the CAA section 182(a)(1) emissions inventory which is the year corresponding with the first triennial inventory under 40 CFR part 51, subpart A. The emissions inventory is based on data developed and submitted by TDEC and Shelby County Health Department to EPA's 2011 National Emissions Inventory (NEI), and it contains data elements consistent with the detail required by 40 CFR part 51, subpart A.5

Tennessee's emissions inventory for its portion of the Area provides 2011 emissions data for NOX and VOCs for the following general source categories: Point, area, non-road mobile, and on-road mobile. A detailed discussion of the inventory development is located in Attachment VII to Tennessee's January 19, 2016, SIP submittal which is provided in the docket for this action. Table 1, below, provides a summary of the emissions inventory.

The emissions inventory includes all anthropogenic VOC and NOXsources for Shelby County, Tennessee. NOx and VOC emissions were calculated for a typical summer July day, taking into account the seasonal adjustment factor for summer operations. More detail on the inventory emissions for individual sources categories is provided below and in Attachment VII to Tennessee's January 19, 2016, SIP submittal.

Point sources are large, stationary, identifiable sources of emissions that release pollutants into the atmosphere. The inventory contains point source emissions data for facilities located within Shelby County based on the Shelby County, Tennessee, Emissions Inventory Questionnaire (EIQ) which is an annual emissions inventory survey conducted by the Shelby County Health Department. Each facility was required to update the data through the EIQ with information for the requested year and return the updated data to Shelby County Health Department.

Area sources are small emission stationary sources which, due to their large number, collectively have significant emissions (e.g., dry cleaners, service stations). Emissions for these sources were estimated by multiplying an emission factor by such indicators of collective emissions activity as production, number of employees, or population. These emissions were estimated at the county level. Tennessee submitted an inventory that it developed for the NEI in accordance with the AERR. Tennessee developed its inventory according to the current EPA emissions inventory guidance for area sources.6

On-road mobile sources include vehicles used on roads for transportation of passengers or freight. Tennessee developed its on-road emissions inventory using EPA's Motor Vehicle Emissions Simulator (MOVES) model with input data from the Memphis Metropolitan Planning Organization (MPO).7 County level on-road modeling was conducted using county-specific vehicle population and other local data. Tennessee developed its inventory according to the current EPA emissions inventory guidance for on-road mobile sources using MOVES version 2014.

Non-road mobile sources include vehicles, engines, and equipment used for construction, agriculture, recreation, and other purposes that do not use roadways (e.g., lawn mowers, construction equipment, railroad locomotives, and aircraft). Tennessee calculated emissions for most of the non-road mobile sources using EPA's NONROAD2008a model 8 and developed its non-road mobile source inventory according to the current EPA emissions inventory guidance for non-road mobile sources.9

For the reasons discussed above, EPA has preliminarily determined that Tennessee's emissions inventory meets the requirements under CAA section 182(a)(1) and the SIP Requirements Rule for the 2008 8-hour ozone NAAQS. Approval of Tennessee's redesignation request is contingent upon EPA's final approval of the base year emissions inventory for the 2008 8-hour ozone NAAQS.

The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS. See CAA section 107(d)(3)(E)(i). For ozone, an area may be considered to be attaining the 2008 8-hour ozone NAAQS if it meets the 2008 8-hour ozone NAAQS, as determined in accordance with 40 CFR 50.15 and appendix P of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the NAAQS, the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year must not exceed 0.075 ppm. Based on the data handling and reporting convention described in 40 CFR part 50, appendix P, the NAAQS are attained if the design value is 0.075 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in EPA's Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

In this action, EPA is preliminarily determining that the Memphis, TN-MS-AR Area has attained the 2008 8-hour ozone NAAQS. EPA reviewed ozone monitoring data from monitoring stations in the Memphis, TN-MS-AR Area for the 2008 8-hour ozone NAAQS for 2012-2014, and the design values for each monitor in the Area are less than 0.075 ppm. These data have been quality-assured, are recorded in AQS, and indicate that the Area is attaining the 2008 8-hour ozone NAAQS. The fourth-highest 8-hour ozone values at each monitor for 2012, 2013, 2014, and the 3-year averages of these values (i.e., design values), are summarized in Table 2, below.

The 3-year design value for 2012-2014 for the Memphis, TN-MS-AR Area is 0.073 ppm,10 which meets the NAAQS. EPA has reviewed 2015 preliminary monitoring data for the Area and the preliminary data does not indicate a violation of the NAAQS.11 In today's action, EPA is proposing to determine that the Memphis, TN-MS-AR Area has attained the 2008 8-hour ozone NAAQS. EPA will not take final action to approve the redesignation if the 3-year design value exceeds the NAAQS prior to EPA finalizing the redesignation. As discussed in more detail below, Tennessee has committed to continue monitoring in this Area in accordance with 40 CFR part 58.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements 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 the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Tennessee has met all applicable SIP requirements for the Tennessee portion of the Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that Tennessee has met all 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) and proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii) contingent upon approval of the 182(a)(1) base year emissions inventory for the 2008 8-hour ozone NAAQS for the Tenessee portion of the Area. In making these determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.

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 (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, 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. 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, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation.

In addition, EPA believes other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not 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 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 2 of part D, which includes section 182 of the CAA, establishes specific requirements for ozone nonattainment areas depending on the area's nonattainment classification. As provided in subpart 2, a marginal ozone nonattainment area, such as the Memphis, TN-MS-AR Area, must submit an emissions inventory that complies with section 172(c)(3), but the specific requirements of section 182(a) apply in lieu of the demonstration of attainment (and contingency measures) required by section 172(c). See 42 U.S.C. 7511a(a). A thorough discussion of the requirements contained in sections 172(c) and 182 can be found in the General Preamble for Implementation of Title I (57 FR 13498).

Section 182(a) requirements. Section 182(a)(1) requires states to submit a comprehensive, accurate, and current inventory of actual emissions from sources of VOC and NOx emitted within the boundaries of the ozone nonattainment area. Tennessee provided an emissions inventory for the Tennessee portion of the Area to EPA in a January 19, 2016, SIP submission. Specifically, Tennessee addressed this requirement by submitting a 2011 base year emissions inventory for the Tennessee portion of the Area. EPA is proposing approval of Tennessee's 2011 base year emissions inventory in this action (see Section V.A. above). Tennessee's section 182(a)(1) inventory must be approved before EPA can take final action to approve the State's redesignation request for the Tennessee portion of the Area.

Under section 182(a)(2)(A), states with ozone nonattainment areas that were designated prior to the enactment of the 1990 CAA amendments were required to submit, within six months of classification, all rules and corrections to existing VOC RACT rules that were required under section 172(b)(3) of the CAA (and related guidance) prior to the 1990 CAA amendments. The Tennessee portion of the Memphis, TN-MS-AR Area is not subject to the section 182(a)(2) RACT “fix up” because the Area was designated as nonattainment after the enactment of the 1990 CAA amendments.

Section 182(a)(2)(B) requires each state with a marginal ozone nonattainment area that implemented, or was required to implement, an inspection and maintenance (I/M) program prior to the 1990 CAA amendments to submit a SIP revision providing for an I/M program no less stringent than that required prior to the 1990 amendments or already in the SIP at the time of the amendments, whichever is more stringent. The Tennessee portion of the Memphis, TN-MS-AR Area is not subject to the section 182(a)(2)(B) because it was designated as nonattainment after the enactment of the 1990 CAA amendments and did not have an I/M program in place for ozone prior to those amendments.

Regarding the permitting and offset requirements of section 182(a)(2)(C) and section 182(a)(4), Tennessee currently has a fully approved part D NSR program in place. However, EPA has determined that 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, because PSD requirements will apply after redesignation. 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.” Tennessee's PSD program will become applicable in the Memphis, TN-MS-AR Area upon redesignation to attainment.

Section 182(a)(3) requires states to submit periodic inventories and emissions statements. Section 182(a)(3)(A) requires states to submit a periodic inventory every three years. As discussed below in the section of this notice titled Verification of Continued Attainment, the State will continue to update its emissions inventory at least once every three years. Under section 182(a)(3)(B), each state with an ozone nonattainment area must submit a SIP revision requiring emissions statements to be submitted to the state by sources within that nonattainment area. Tennessee provided a SIP revision to EPA on January 5, 2015, addressing the section 182(a)(3)(B) emissions statements requirement, and on March 5, 2015, EPA published a direct final rule approving this SIP revision. See 80 FR 11974.

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 EPA promulgated pursuant to its authority under the CAA.

EPA interprets the conformity SIP requirements 12 as not applying for purposes of evaluating a redesignation request under section 107(d) because 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). Nonetheless, Tennessee has an approved conformity SIP for the Tennessee portion of the Memphis, TN-MS-AR Area. See 78 FR 29027 (May 17, 2013). Thus, EPA proposes that the Tennessee portion of the Memphis, TN-MS-AR Area has satisfied all applicable requirements for purposes of redesignation under section 110 and part D of title I of the CAA contingent upon approval of the 182(a)(1) base year emissions inventory.

EPA has fully approved the applicable Tennessee SIP for the Memphis, TN-MS-AR Area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation except for the 182(a)(1) base year emissions inventory. EPA may rely on prior SIP approvals in approving a redesignation request (see Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998); Wall, 265 F.3d 426) plus any additional measures it may approve in conjunction with a redesignation action (see 68 FR 25426 (May 12, 2003) and citations therein). Tennessee has adopted and submitted, and EPA has fully approved at various times, provisions addressing various SIP elements applicable for the ozone NAAQS. See 78 FR 14450 (March 6, 2013).

As indicated above, 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. With the exception of the emissions inventory requirement, which is addressed in this action, EPA has approved all part D requirements applicable for purposes of this redesignation. As noted above, EPA has approved Tennessee's emissions statements SIP revisions under CAA section 182(a)(3)(B). See 80 FR 11974 (March 5, 2015).

For redesignating a nonattainment area to attainment, the CAA requires 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)). EPA has preliminarily determined that Tennessee has demonstrated that the observed air quality improvement in the Memphis, TN-MS-AR Area is due to permanent and enforceable reductions in emissions resulting from federal measures and are not the result of weather conditions.13 EPA does not have any information to suggest that the decrease in ozone concentrations in the Memphis, TN-MS-AR Area is due to unusually favorable meteorological conditions.

Federal measures enacted in recent years have resulted in permanent emission reductions. The federal measures that have been implemented include the following:

Tier 2 vehicle and fuel standards. Implementation began in 2004 and requires all passenger vehicles in any manufacturer's fleet to meet an average standard of 0.07 grams of NOX per mile. Additionally, in January 2006, the sulfur content of gasoline was required to be on average 30 ppm which assists in lowering the NOX emissions. EPA expects that these standards will reduce NOX emissions from vehicles by approximately 74 percent by 2030, translating to nearly 3 million tons annually by 2030.14 15

Heavy-duty gasoline and diesel highway vehicle standards. EPA issued this rule in January 2001 (66 FR 5002). This rule includes standards limiting the sulfur content of diesel fuel, which went into effect in 2004. A second phase took effect in 2007, which further reduced the highway diesel fuel sulfur content to 15 ppm, leading to additional reductions in combustion NOX and VOC emissions. EPA expects that this rule will achieve a 95 percent reduction in NOX emissions from diesel trucks and buses and will reduce NOX emissions by 2.6 million tons by 2030 when the heavy-duty vehicle fleet is completely replaced with newer heavy-duty vehicles that comply with these emission standards.16

Large non-road diesel engines rule. This rule was promulgated in 2004 and was phased in between 2008 through 2014. This rule reduces the sulfur content in the nonroad diesel fuel and reduces NOX, VOC, particulate matter, and carbon monoxide emissions. These emission reductions are federally enforceable. EPA issued this rule in June 2004, which applies to diesel engines used in industries such as construction, agriculture, and mining. It is estimated that compliance with this rule will cut NOX emissions from non-road diesel engines by up to 90 percent nationwide.

Nonroad spark-ignition engines and recreational engines standards. The nonroad spark-ignition and recreational engine standards, effective in July 2003, regulate NOX, hydrocarbons, and carbon monoxide from groups of previously unregulated nonroad engines. These engine standards apply to large spark-ignition engines (e.g., forklifts and airport ground service equipment), recreational vehicles (e.g., off-highway motorcycles and all-terrain-vehicles), and recreational marine diesel engines sold in the United States and imported after the effective date of these standards. When all of the nonroad spark-ignition and recreational engine standards are fully implemented, an overall 72 percent reduction in hydrocarbons, 80 percent reduction in NOX, and 56 percent reduction in carbon monoxide emissions are expected by 2020. These controls reduce ambient concentrations of ozone, carbon monoxide, and fine particulate matter.

National program for greenhouse gas (GHG) emissions and fuel economy standards. The federal GHG and fuel economy standards apply to light-duty cars and trucks in model years 2012-2016 (phase 1) and 2017-2025 (phase 2). The final standards are projected to result in an average industry fleet-wide level of 163 grams/mile of carbon dioxide which is equivalent to 54.5 miles per gallon if achieved exclusively through fuel economy improvements. The fuel economy standards result in less fuel being consumed, and therefore less NOX emissions released.

EPA proposes to find that the improvements in air quality in the Memphis, TN-MS-AR Area are due to real, permanent and enforceable reductions in NOX and VOC emissions resulting from the federal measures discussed above.

For redesignating a nonattainment area to attainment, the CAA requires 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 Tennessee portion of the Memphis, TN-MS-AR Area to attainment for the 2008 8-hour ozone NAAQS, TDEC submitted a SIP revision to provide for the maintenance of the 2008 8-hour ozone NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA has made the preliminary determination that this maintenance plan meets the requirements for approval under section 175A of the CAA.

Section 175A of the CAA 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 which demonstrates that attainment will continue to be maintained for the remainder of the 20-year period following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 2008 8-hour ozone violations. The Calcagni Memorandum 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, EPA has preliminarily determined that Tennessee's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Tennessee SIP.

As discussed above, EPA is proposing to determine that the Memphis, TN-MS-AR Area has attained the 2008 8-hour ozone NAAQS based on quality-assured monitoring data for the 3-year period from 2012-2014, and is continuing to attain the standard based on preliminary 2015 data. Tennessee selected 2012 as the base year (i.e., attainment emissions inventory year) for developing a comprehensive emissions inventory for NOX and VOC, for which projected emissions could be developed for 2017, 2020, and 2027. The attainment inventory identifies a level of emissions in the Area that is sufficient to attain the 2008 8-hour ozone NAAQS. Tennessee began development of the attainment inventory by first generating a baseline emissions inventory for the State's portion of the Memphis, TN-MS-AR Area. The State projected summer day emission inventories using projected rates of growth in population, traffic, economic activity, and other parameters. In addition to comparing the final year of the plan (2027) to the base year (2012), Tennessee compared interim years to the baseline to demonstrate that these years are also expected to show continued maintenance of the 2008 8-hour ozone standard.

The emissions inventory is composed of four major types of sources: Point, area, on-road mobile, and non-road mobile. Complete descriptions of how the State developed these inventories are located in Attachment I of the January 19, 2016, SIP submittal.

Point source emissions are tabulated from data collected by direct on-site measurements of emissions or from mass balance calculations utilizing approved emission factors. The 2012 base year inventory contains point source emissions data for facilities located within Shelby County. Each facility was required to update the data through the EIQ with information for the requested year and return the updated data to Shelby County Health Department. The point source emissions inventory for Shelby County is located in the docket for today's action. For each projected year's inventory for 2017, 2020, and 2027, the State projected point source emissions using growth factors developed from the United States Department of Energy's 2014 Annual Energy Outlook (AEO) projections and the University of Tennessee, Data Center 2014 Econometric Model Forecast. A conservative value of 1 was substituted for all negative growth factors. Growth factors used for this analysis include fuel consumption, employment, and population changes.

Emissions for area sources were estimated by multiplying an emission factor by such indicators of collective emissions activity as production, number of employees, or population. These emissions were estimated at the county level. Tennessee used a similar method to that used to develop the 2011 emissions inventory. For each projected year's inventory, emission factors are used to determine area source emissions. Tennessee developed its inventory according to the current EPA emissions inventory guidance for area sources.17

Tennessee developed its 2012 on-road emissions inventory using EPA's MOVES2014 model with input data from the MPO.18 County level on-road modeling was conducted using county-specific vehicle population and other local data. Tennessee developed its inventory according to the current EPA emissions inventory guidance for on-road mobile sources using MOVES2014. The MOVES2014 model includes the VMT as an input file and can directly output the estimated emissions. For each projected year's inventory, Tennessee calculated the on-road mobile sources emissions by running the MOVES mobile model for the future year with the projected VMT to generate emissions that take into consideration expected federal tailpipe standards, fleet turnover, and new fuels.

Non-road mobile sources include non-road equipment, airport, commercial marine vessels, and locomotives. The majority of the non-road mobile emissions in the U.S. are from the non-road equipment segment (i.e., agricultural equipment, construction equipment, lawn and garden equipment, and recreational vehicles, such as boats and jet-skis). Tennessee calculated emissions for most of the non-road mobile sources using EPA's NONROAD2008a model within EPA's MOVES2014 model and developed its non-road mobile source inventory according to the current EPA emissions inventory guidance for non-road mobile sources.19

The maintenance plan associated with the redesignation request includes a maintenance demonstration that:

(i) Shows compliance with and maintenance of the 2008 8-hour ozone NAAQS by providing information to support the demonstration that current and future emissions of NOX and VOC remain at or below 2012 emissions levels.

(ii) Uses 2012 as the attainment year and includes future emissions inventory projections for 2017, 2020, and 2027.

(iii) Identifies an “out year” at least 10 years after the time necessary for EPA to review and approve the maintenance plan. Per 40 CFR part 93, NOX and VOC MVEBs were established for the last year (2027) of the maintenance plan (see section VI below).

(iv) Provides actual (2012) and projected emissions inventories, in tons per summer day (tpsd), for the Tennessee portion of the Memphis, TN-MS-AR Area, as shown in Tables 3 and 4, below.

Tables 3 and 4 summarize the 2012 and future projected emissions of NOX and VOC from the Tennessee portion of the Memphis, TN-MS-AR Area. In situations where local emissions are the primary contributor to nonattainment, such as the Memphis, TN-MS-AR Area if the future projected emissions in the nonattainment area remain at or below the baseline emissions in the nonattainment area, then the related ambient air quality standard should not be exceeded in the future. Tennessee has projected emissions as described previously and determined that emissions in the Tennessee portion of the Memphis, TN-MS-AR Area will remain below those in the attainment year inventory for the duration of the maintenance plan.

As discussed in section VI of this proposed rulemaking, a safety margin is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. Tennessee selected 2012 as the attainment emissions inventory year for the Tennessee portion of the Memphis, TN-MS-AR Area. Tennessee calculated safety margins in its submittal for 2027. The State has allocated a portion of the 2027 safety margin to the 2027 MVEBs for the Memphis, TN-MS-AR Area.

The State has decided to allocate a portion of the available safety margin to the 2027 MVEBs to allow for unanticipated growth in VMT, changes and uncertainty in vehicle mix assumptions, etc., that will influence the emission estimations. Tennessee has allocated 49.04 tpd of the NOX safety margin to the 2027 NOX MVEB and 13.19 tpd of the VOC safety margin to the 2027 VOC MVEB. After allocation of the available safety margin, the remaining safety margin is 11.38 tpd for NOX and 9.91 tpd for VOC. This allocation and the resulting available safety margin for the Tennessee portion of the Memphis, TN-MS-AR Area are discussed further in section VI of this proposed rulemaking along with the MVEBs to be used for transportation conformity proposes.

There currently are five monitors measuring ozone in the Memphis, TN-MS-AR Area, of which three are in the Tennessee portion of the Memphis, TN-MS-AR Area. Tennessee has committed to continue operation of the monitors in the Tennessee portion of the Memphis, TN-MS-AR Area in compliance with 40 CFR part 58 and has thus addressed the requirement for monitoring. Arkansas and Mississippi have made similar commitments in their maintenance plans. EPA approved Tennessee's monitoring plan on October 26, 2015. EPA approved Arkansas' monitoring plan on November 16, 2015, and approved Mississippi's monitoring plan on October 6, 2015.

TDEC has the legal authority to enforce and implement the maintenance plan for the Tennessee portion of the Area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future ozone attainment problems.

Additionally, under the AERR, TDEC is required to develop a comprehensive, annual, statewide emissions inventory every three years that is due twelve to eighteen months after the completion of the inventory year. Tennessee will update the AERR inventory every three years beginning no later than the 2015 emission season and will use the updated emissions inventory to track progress of the maintenance plan.

Section 175A of the CAA requires that a maintenance plan include such contingency measures as 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 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).

In the January 19, 2016, submittal, Tennesee commits to continuing existing programs and commits to implement programs and measures depending upon emission inventory and air quality monitoring results. The contingency plan included in the submittal includes a triggering mechanism to determine when contingency measures are needed and a process of developing and implementing appropriate control measures.

The primary trigger is activated when emissions or ambient air monitoring data indicates possible future ozone levels violating the 2008 8-hour ozone NAAQS but an actual violation of the 2008 8-hour ozone NAAQS has not yet occurred. This will occur if the certified triennial emissions inventory of VOCs or NOX (summer season tons per day) exceeds the 2012 base year attainment inventory by ten percent or more and any area monitor has recorded at least one exceedance of the ozone NAAQS according to certified data during the most recent monitoring season. The Shelby County Health Department will then conduct an investigation lasting no longer than three months into the possible causes. The results will be reported to EPA and TDEC. If the data is valid and not due to unusual circumstances, the Shelby County Health Department will seek to expand voluntary programs 20 and develop regulations as appropriate following consultation with EPA and TDEC. Proof of regulation adoption will be sent to EPA within nine months and implementation of regulations will occur within 18 to 24 months after monitoring data is certified. Possible contingency measures include, but are not limited to:

○ Programs or incentives to decrease motor vehicle use;

○ Programs to require additional emissions reductions on stationary sources;

○ Restrictions of certain roads or lanes for, or construction of such roads or lanes for use by, passenger buses or high-occupancy vehicles;

○ Employer-based transportation incentive plans; and

○ Additional programs for new construction of paths for use by pedestrian or non-motorized vehicles when economically feasible and in the public interest.

The secondary trigger is a violation of the 2008 8-hour ozone NAAQS (i.e., when the three-year average of the 4th highest values is equal to or greater than 0.076 ppm at a monitor in the Area). The trigger date will be when a monitored violation of the 2008 ozone NAAQS occurs in the nonattainment area according to certified data during the most recent monitoring season. The Shelby County Health Department will then conduct an investigation lasting no longer than three months into the possible causes. The results will be reported to TDEC and EPA. If the data is valid, further action is required, and the Shelby County Health Department will seek to expand voluntary programs and develop regulations for submission to the Shelby County Commission or Tennessee State Air Board. Proof of adoption of such regulations will be submitted to EPA within nine months after the end of the investigation. Control measures will be implemented within 18 to 24 months after verification of a monitored violation by certified data. In addition to the measures stated for the primary trigger, the following measures may also be implemented if there is a secondary trigger of a violation of the standard:

○ A RACT regulation for legacy major sources of NOX emissions in Shelby County; and

○ Adoption of all industrial and commercial VOC controls as provided in final EPA-approved Control Technology Guidelines through the date of the recorded violation.

EPA preliminarily concludes 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, EPA proposes to find that the maintenance plan SIP revision submitted by Tennessee for the State's portion of the Area meets the requirements of section 175A of the CAA and is approvable.

Under section 176(c) of the CAA, new transportation plans, programs, and projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the state's air quality plan that addresses pollution from cars and trucks. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS or any interim milestones. If a transportation plan does not conform, most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP. The regional emissions analysis is one, but not the only, requirement for implementing transportation conformity. Transportation conformity is a requirement for nonattainment and maintenance areas. Maintenance areas are areas that were previously nonattainment for a particular NAAQS but have since been redesignated to attainment with an approved maintenance plan for that NAAQS.

Under the CAA, states are required to submit, at various times, control strategy SIPs and maintenance plans for nonattainment areas. These control strategy SIPs (including RFP and attainment demonstration requirements) and maintenance plans create MVEBs for criteria pollutants and/or their precursors to address pollution from cars and trucks. Per 40 CFR part 93, a MVEB must be established for the last year of the maintenance plan. A state may adopt MVEBs for other years as well. The MVEB is the portion of the total allowable emissions in the maintenance demonstration that is allocated to highway and transit vehicle use and emissions. See 40 CFR 93.101. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, Transportation Conformity Rule (58 FR 62188). The preamble also describes how to establish the MVEB in the SIP and how to revise the MVEB.

After interagency consultation with the transportation partners for the Memphis TN-MS-AR Area, Tennessee has developed MVEBs for NOX and VOC for the Tennessee portion of the Area. Tennessee developed these MVEBs, as required, for the last year of its maintenance plan, 2027. The 2027 MVEBs reflect the total projected on-road emissions for 2027, plus an allocation from the available NOX and VOC safety margins. Under 40 CFR 93.101, the term “safety margin” is the difference between the attainment level (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. The safety margin can be allocated to the transportation sector; however, the total emissions must remain below the attainment level. The NOX and VOC MVEBs and allocation from the safety margin were developed in consultation with the transportation partners and were added to account for uncertainties in population growth, changes in model vehicle miles traveled, and new emission factor models. The NOX and VOC MVEBs for the Tennessee portion of the Area are identified in Table 6, below.

As mentioned above, Tennessee has chosen to allocate a portion of the available safety margin to the NOX and VOC MVEBs for the Tennessee portion of the Area. This allocation is 49.04 tpd and 13.19 tpd for NOX and VOC, respectively. Thus, the remaining safety margins for 2027 are 11.38 tpd and 9.91 tpd NOX and VOC, respectively.

Through this rulemaking, EPA is proposing to approve the MVEBs for NOX and VOC for 2027 for the Tennessee Portion of the Area because EPA has preliminarily determined that the Area maintains the 2008 8-hour ozone NAAQS with the emissions at the levels of the budgets. Once the MVEBs for the Tennessee Portion of the Area are approved or found adequate (whichever is completed first), they must be used for future conformity determinations.

When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA may affirmatively find the MVEB contained therein adequate for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB must be used by state and federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA.

EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). The process for determining adequacy consists of three basic steps: Public notification of a SIP submission, a public comment period, and EPA's adequacy determination. This process for determining the adequacy of submitted MVEBs for transportation conformity purposes was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” EPA adopted regulations to codify the adequacy process in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change,” on July 1, 2004 (69 FR 40004). Additional information on the adequacy process for transportation conformity purposes is available in the proposed rule entitled, “Transportation Conformity Rule Amendments: Response to Court Decision and Additional Rule Changes,” 68 FR 38974, 38984 (June 30, 2003).

As discussed earlier, Tennessee's maintenance plan includes NOX and VOC MVEBs for the Tennessee portion of the Memphis TN-MS-AR Area for 2027, the last year of the maintenance plan. EPA reviewed the NOX and VOC MVEBs through the adequacy process. The NOX and VOC MVEBs for the Tennessee portion of the area were open for public comment on EPA's adequacy Web site on January 27, 2016, found at: http://www3.epa.gov/otaq/stateresources/transconf/currsips.htm#shelby-cnty. The EPA public comment period on adequacy for the 2027 MVEBs for the Tennessee portion of the Area closed on February 26, 2016, and no comments, adverse or otherwise, were received.

EPA intends to make its determination on the adequacy of the 2027 MVEBs for the Tennessee portion of the Area for transportation conformity purposes in the near future by completing the adequacy process that was started on January 27, 2016. After EPA finds the 2027 MVEBs adequate or approves them, the new MVEBs for NOX and VOC must be used for future transportation conformity determinations. For required regional emissions analysis years for 2027 and beyond, the applicable budgets will be the new 2027 MVEBs established in the maintenance plan.

EPA's proposed actions establish the basis upon which EPA may take final action on the issues being proposed for approval today. Approval of Tennessee's redesignation request would change the legal designation of Shelby County, Tennessee, in the Memphis TN-MS-AR Area, found at 40 CFR part 81, from nonattainment to attainment for the 2008 8-hour ozone NAAQS. Approval of Tennessee's associated SIP revision would also incorporate a plan for maintaining the 2008 8-hour ozone NAAQS in the Tennessee portion of the Area through 2027 and a section 182(a)(1) base year emissions inventory into the Tennessee SIP for the Area. The maintenance plan establishes NOX and VOC MVEBs for 2027 for the Tennessee portion of the Area and includes contingency measures to remedy any future violations of the 2008 8-hour ozone NAAQS and procedures for evaluation of potential violations. Additionally, EPA is notifying the public of the status of EPA's adequacy determination for the newly-established NOX and VOC MVEBs for 2027 for the Tennessee portion of the Area.

EPA is proposing to take four separate but related actions regarding the redesignation request and associated SIP revision for the Tennessee portion of the Memphis TN-MS-AR Area for the 2008 8-hour ozone NAAQS. First, EPA is proposing to approve Tennessee's section 182(a)(1) base year emissions inventory for the 2008 8-hour ozone standard for the Tennessee portion of the Area into the SIP.

Second, EPA is proposing to determine that the Memphis, TN-MS-AR Area has attained the 2008 8-hour ozone NAAQS based on complete, quality-assured and certified monitoring data for the 2012-2014 monitoring period. Preliminary 2015 data in AQS indicates that the Area is continuing to attain the 2008 8-hour ozone NAAQS.

Third, EPA is proposing to approve the maintenance plan for the Tennessee portion of the Area, including the NOX and VOC MVEBs for 2027, into the Tennessee SIP (under CAA section 175A). The maintenance plan demonstrates that the Area will continue to maintain the 2008 8-hour ozone NAAQS.

Finally, EPA is proposing to approve Tennessee's redesignation request for the 2008 8-hour ozone NAAQS for the Tennessee portion of the Area contingent upon approval of the 182(a)(1) base year emissions inventory for the Tennessee portion of the Area.

As part of today's action, EPA is also describing the status of its adequacy determination for the NOX and VOC MVEBs for 2027 in accordance with 40 CFR 93.118(f)(1). Within 24 months from the effective date of EPA's adequacy determination for the MVEBs or the effective date for the final rule for this action, whichever is earlier, the transportation partners will need to demonstrate conformity to the new NOX and VOC MVEBs pursuant to 40 CFR 93.104(e)(3).

If finalized, approval of the redesignation request would change the official designation of Shelby County, Tennessee in the Tennessee portion of the Memphis TN-MS-AR Area for the 2008 8-hour ozone NAAQS from nonattainment to attainment, as found at 40 CFR part 81.

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 a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• 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

• Will not have disproportionate human health or environmental effects under Executive Order 12898 (59 FR 7629, February 16, 1994).

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

On June 17, 2015, the Department of Health and Human Services (HHS) published a proposed rule in the Federal Register (80 FR 34583) entitled, “340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation” that would set forth the calculation of the ceiling price and application of civil monetary penalties for section 340B of the Public Health Service Act (PHSA), which is referred to as the “340B Drug Pricing Program” or the “340B Program.” In light of the comments received, HHS is reopening the comment period for 30 days for the purpose of inviting public comments on several specific areas, summarized below. Comments may be submitted on any aspect of the proposed rule, not just those areas specifically addressed below. Commenters do not need to resubmit comments previously submitted, as all previous comments are currently under review and will be considered prior to the finalization of the proposed rule.

In the June 17, 2015, notice of proposed rulemaking (80 FR 34583), HHS proposed that when the calculation of the 340B ceiling price resulted in an amount less than $0.01, the ceiling price would be $0.01 per unit of measure (hereinafter, penny pricing). In the notice of proposed rulemaking (NPRM), we recognized that it was not reasonable for a manufacturer to set the ceiling price at $0.00 per unit of measure. HHS received a number of comments supporting and opposing the penny pricing proposal.

Commenters suggested a number of alternatives to penny pricing, including: The federal ceiling price, the most recent positive ceiling price from previous quarters, and nominal sales price. Some commenters stated that the federal ceiling price, which is the basis for prices paid by certain federal government programs, would be a viable alternative. Other commenters suggested that charging a ceiling price from previous quarters in which the ceiling price was greater than $0.00 would be reasonable. Finally, several commenters suggested that nominal pricing, which is a term used in the Medicaid Drug Rebate Program, would be more appropriate. Other commenters suggested that manufacturers should be able to utilize any other reasonable alternative.

Given these comments, HHS is considering whether any of these alternatives or other alternatives not raised by the commenters, alone or in combination, would be more appropriate than the penny pricing proposal and whether to revise the proposed regulatory text in 42 CFR 10.10(b). As the NPRM did not indicate that alternatives to the penny pricing proposal would be considered, and given the number of comments on this issue, HHS is reopening the comment period specifically to invite comments on whether we should adopt an alternative policy to penny pricing. By reopening the comment period as to this specific issue, all parties will have an opportunity to express their views on penny pricing and other alternatives prior to finalization of the proposed rule.

In the NPRM, HHS proposed that manufacturers estimate the ceiling price for a new covered outpatient drug as of the date the drug is first available for sale, and provide HRSA an estimated ceiling price for each of the first three quarters the drug is available for sale. HHS also proposed that, beginning with the fourth quarter the drug is available for sale, the manufacturer must calculate the ceiling price as described in proposed 42 CFR 10.10(a). Under the proposed rule, the actual ceiling price for the first three quarters must also be calculated and manufacturers would be required to provide a refund or credit to any covered entity which purchased the covered outpatient drug at a price greater than the calculated ceiling price. HHS proposed that any refunds or credits owed to a covered entity must be provided by the end of the fourth quarter. HHS received numerous comments supporting and opposing the various components of its proposal on new drug price estimation.

Several commenters supported a specific methodology for calculating new drug prices, which included setting the price of the new covered outpatient drug as wholesale acquisition cost (WAC) minus the applicable rebate percentage (i.e., 23.1 percent for most single-source and innovator drugs, 17.1 percent for clotting factors and drugs approved exclusively for pediatric indications, and 13 percent for generics and OTCs). Commenters argued that this price would eliminate the need to estimate the price for the first three quarters and would result in a reasonable ceiling price. We are seeking comment on this specific methodology for the estimation of a new covered outpatient drug pricing and at which quarter a manufacturer should refund or credit a covered entity if there is an overcharge.

Under section 340B(d)(1)(B)(vi) of the Public Health Service Act, the Secretary is charged with issuing civil monetary penalties for manufacturers who have “knowingly and intentionally” charged a covered entity a price that exceeds the 340B ceiling price. Although the knowing and intentional standard was included in the NPRM issued on June 17, 2015, “knowing and intentional” was not specifically defined. HHS received a number of comments urging HHS to further define these terms. Through this reopening of the NPRM comment period, we are seeking comment on the definition of the knowing and intentional standard for purposes of this civil monetary penalty authority. We believe that, by reopening the comment period as to this issue, all parties will have an opportunity to express their views on this definitional standard prior to finalization of the rule.

HHS is considering whether “knowing and intentional” should be further defined. If the terms are defined, possible definitions could be: (1) Actual knowledge by the manufacturer, its employees, or its agents of the instance of overcharge; (2) willful or purposeful acts by, or on behalf of, the manufacturer that lead to the instance of overcharge; (3) acting consciously and with awareness of the acts leading to the instance of overcharge; and/or (4) acting with a conscious desire or purpose to cause an overcharge or acting in a way practically certain to result in an overcharge. Manufacturers do not need to intend specifically to violate the 340B statute; but rather to have knowingly and intentionally overcharged the 340B covered entity.

HHS understands that this is difficult to demonstrate. As such, HHS is soliciting input on circumstances in which the requisite intent should and should not be inferred. In particular, HHS would like to solicit comment on the concept that manufacturers would not be considered to have the requisite intent in the following circumstances:

• The manufacturer made an inadvertent, unintentional, or unrecognized error in calculating the ceiling price;

• A manufacturer acted on a reasonable interpretation of agency guidance; or

• When a manufacturer has established alternative allocation procedures where there is an inadequate supply of product to meet market demand, as long as covered entities are able to purchase on the same terms as all other similarly-situated providers.

HHS welcomes comments regarding other situations where the requisite intent may or may not be demonstrated.

Because of the scope of the proposed rule, and since we have specifically requested the public's comments on various aspects of the rule, we believe that it is important to allow ample time for the public to consider these approaches to these specific policies in the proposed rule. Therefore, we have decided to reopen the comment period for an additional 30 days. HHS believes that a 30-day period is sufficient and balances the interests of encouraging public participation in the rulemaking process with the desire to not unnecessarily delay key decisions about rulemaking. This document announces the reopening of the comment period to end May 19, 2016.

Background

On November 30, 2011, we proposed to designate approximately 375,562 acres (ac) (151,985 hectares (ha)) of critical habitat for the southern Selkirk Mountains population of woodland caribou (Rangifer tarandus caribou) (76 FR 74018). On November 28, 2012, after considering comments we received from peer reviewers as well as from Federal agencies, State agencies, Tribes, and the general public on the proposed designation, we designated approximately 30,010 ac (12,145 ha) of critical habitat for the southern Selkirk Mountains population of woodland caribou (77 FR 71042).

On May 8, 2014, we proposed to amend the current listing of the southern Selkirk Mountains population of woodland caribou by defining the Southern Mountain Caribou DPS, which includes the currently listed southern Selkirk Mountains population of woodland caribou, as well as populations of mountain caribou in British Columbia (79 FR 26504), and listing the DPS as threatened. In the May 8, 2014, rule, we also proposed to reaffirm the approximately 30,010 ac (12,145 ha) designated as critical habitat on November 28, 2012 (77 FR 71042), for the southern Selkirk Mountains population of woodland caribou as critical habitat for the proposed Southern Mountain Caribou DPS. As we stated in our May 8, 2014, proposed rule (79 FR 26532), our regulations at 50 CFR 424.12(h) allow us to designate critical habitat only in the United States. Of the 15 populations of mountain caribou that make up the Southern Mountain caribou DPS, the southern Selkirk Mountains woodland caribou population is the only population that moves freely between the coterminous United States and Canada. We determined that critical habitat for the Southern Mountain caribou DPS corresponded exactly to the critical habitat identified for the southern Selkirk Mountains population of woodland caribou in our final rule published on November 28, 2012 (77 FR 71042). Further we determined that the specific area identified in the November 28, 2012, final rule met the definition of critical habitat for the Southern Mountain caribou DPS, and that there are no additional areas that meet the definition of critical habitat.

The May 8, 2014, proposed rule (79 FR 26504) had a 60-day public comment period, ending July 7, 2014. On June 10, 2014, we extended the public comment period an additional 30 days, ending on August 6, 2014, and announced the scheduling of two public hearings, which were held on June 25, 2014, and June 26, 2014 (79 FR 33169). On March 24, 2015, we reopened the public comment period for an additional 30 days, ending on April 23, 2015, to allow the public time to review new information received after the previous public comment period (80 FR 15545).

On March 23, 2015, the U.S. District Court for the District of Idaho ruled in Center for Biological Diversity v. Kelly, 93 F. Supp. 3d 1193 (D. Idaho, 2015), that we made a procedural error in not providing for public review and comment on certain aspects of the reasoning that we relied upon in making our November 28, 2012, final designation of critical habitat (77 FR 71042). The reopening of this comment period will provide all interested parties an opportunity to provide comment on the November 28, 2012, final designation of critical habitat, which we proposed to reaffirm in the May 8, 2014, proposed rule as the critical habitat for the Southern Mountain caribou DPS.

The primary factors that we considered in making changes from the November 30, 2011, proposed critical habitat designation (76 FR 74018) to the November 28, 2012, final critical habitat designation (77 FR 71042), which we proposed to reaffirm in the May 8, 2014, proposed rule include:

(1) A revised determination of the geographical area occupied by the southern Selkirk Mountains population of woodland caribou at the time of listing, based on comments we received, including those from peer reviewers, which caused us to reevaluate surveys conducted by Scott and Servheen (1984, 1985).

(2) Census monitoring that documented low numbers of individual caribou observed in the United States during those annual surveys.

(3) Caribou observations within the United States for several years that have consistently been limited to areas close to the United States-Canada border.

(4) Peer review comments received leading to a reanalysis of the appropriate elevational limit of critical habitat (see Kinley and Apps (2007)).

(5) Information and literature reporting the overall decline of the subspecies mountain caribou (Rangifer tarandus caribou) across its range, and in particular the decline of woodland caribou populations in the southern extent of their range, including the southern Selkirk Mountains population of woodland caribou.

(6) The applicability as well as the status of the recovery objectives identified in the 1994 Selkirk Mountains Woodland Caribou Recovery Plan (USFWS 1994).

(7) Information on areas currently conserved and managed for the conservation of woodland caribou in the Selkirk Mountains in British Columbia, Canada, as described in The Nature Conservancy (2011) and the 2009 update on the Mountain Caribou Recovery Implementation Plan provided to the Mountain Caribou Progress Board (DeGroot 2012, pers comm.) (see also MCRIP 2009). All documents cited above can be viewed on www.regulations.gov in the supplemental materials for Docket No. FWS-R1-ES-2012-0097.

We intend that any final action will be based on the best scientific data available, and be as accurate and complete as possible. Therefore, we are seeking written comments and information from appropriate Federal and State agencies, the scientific community, and any other interested party during this reopened comment period on our proposed rule that was published in the May 8, 2014, Federal Register (79 FR 26504). We are particularly interested in comments and information related to our November 28, 2012, final critical habitat designation, which we have proposed to reaffirm as critical habitat for the Southern Mountain caribou DPS. This information will be used to finalize the critical habitat designation for the Southern Mountain caribou DPS.

If you submitted comments or information on the proposed reaffirmation of the November 28, 2012, designation of critical habitat in the proposed amended listing rule (79 FR 26504, Docket No. FWS-R1-ES-2012-0097) during the initial comment period from May 8, 2014, to July 6, 2014, the extended comment period (79 FR 33169) from July 6, 2014, to August 6, 2014, or the additional comment period (80 FR 15545) from March 24, 2015, to April 23, 2015, please do not resubmit them. We have incorporated them into the public record as part of this comment period, and we will fully consider them in our final determination.

Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(2) of the Act directs that critical habitat determinations must be made “on the basis of the best scientific data available.”

You may submit your comments and materials concerning the May 8, 2014, proposed rule (79 FR 26504) by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES. If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.

Comments and materials we receive, as well as some supporting documentation we used in preparing the November 28, 2012, final critical habitat rule, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R1-ES-2012-0097, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).