Federal Register Vol. 82, No.119,

Pursuant to the Atomic Energy Act of 1954, as amended, (the AEA), the DOE owns and leases defense nuclear and other facilities in various locations in the United States. These facilities are operated by contractors with DOE oversight or are operated by DOE. These facilities are involved in (among other activities) researching, testing, producing, disassembling, or transporting nuclear materials. Compromise of these DOE facilities could severely damage national security. To guard against such compromise, DOE established the Human Reliability Program (HRP). The HRP is designed to ensure that individuals who occupy positions affording unescorted access to certain nuclear materials, facilities and programs meet the highest standards of reliability as well as physical and mental suitability, through a system of continuous evaluation of those individuals. The purpose of this continuous evaluation is to identify in a timely manner individuals whose judgment may be impaired by physical or mental/personality disorders; the use of illegal drugs or the abuse of legal drugs or other substances; the abuse of alcohol; or any other condition or circumstance that may represent a reliability, safety or security concern. If any of these conditions or circumstances is identified, the HRP provides for an administrative process, including the opportunity for a certification review hearing that results in either the revocation or reinstatement of the individual's HRP certification.

The part 712 regulation has not been comprehensively updated since it was promulgated in 2004. Two technical amendments to the regulation were made in 2011 and 2013. In 2011, the part 712 regulation was amended to designate the appropriate Undersecretary as the person with the authority to issue a final written decision to recertify or revoke the certification of an individual in the HRP. 76 FR 12271 (Mar. 7, 2011). In 2013, the part 712 regulation was amended to eliminate references to obsolete provisions and to reflect organizational changes within the DOE. 78 FR 56132 (Sep. 12, 2013).

In the 12 years since the HRP regulation was first promulgated, it has become apparent that certain additional updates are necessary in the sections pertaining to security concerns and the process related to certification review hearings.

The paramount intent of the HRP is to protect national security via the identification of individuals whose judgment and reliability may be impaired by any condition or circumstance that raises safety and/or security concerns. The existing regulation contains language that could be erroneously interpreted to mean that security concerns fall solely under the purview of 10 CFR part 710, which is the DOE regulation pertaining to personnel security clearances. The part 710 regulations contain procedures that are intended to identify and mitigate security concerns as they pertain to individuals who hold security clearances. However, compliance with the part 710 does not equate to being certified in the HRP, and in fact, the parts 710 and 712 regulations represent two distinct programs. While an employee can have a security clearance without being certified in the HRP, no employee can participate in the HRP without a security clearance. A general requirement in the existing HRP regulation, which remains in the proposed revision, is that an employee must maintain a security clearance and specifically a “Q” clearance. See 10 CFR 712.11(a)(1).

Because the HRP-certified individuals must meet the highest standards of reliability and physical and mental suitability, the procedures for considering security concerns under part 710 are not adequate to address all security and safety concerns in the context of the HRP. For example, under part 710, the DOE personnel who adjudicate security clearances are not permitted to review the requirements of the individual's job when considering whether to grant, suspend, and/or revoke his security clearance. However, in determining whether to grant HRP certification under part 712, the individual's job and duties are important factors to be considered. In addition, the denial or revocation of HRP certification under part 712 may be based on safety issues that are not relevant to adjudication under 10 CFR part 710, even if the same underlying facts raised security concerns that were fully resolved and/or mitigated for security clearance purposes. As such, we are proposing to revise the part 712 regulation to clarify that security concerns are not to be reviewed solely under the part 710 regulations, but rather can also be reviewed under part 712, utilizing the predictive judgments of the HRP personnel with specific expertise in assessing both safety and security risks.

The proposed part 712 revisions fill a void in the existing regulation by setting forth the evidentiary burden that an individual must meet at a certification review hearing. In addition, in order to provide greater structure to the hearing process, the proposed regulation adopts some of the procedures that are currently applied in the context of administrative review hearings under part 710. Although the content of part 710 hearings is somewhat different from that of part 712 hearings, the process for conducting both types of hearings is similar, which is reflected in the procedures we propose to adopt. Finally, the proposed revisions provide that the Administrative Judge who presides over the certification review hearing must prepare a written decision, rather than a written recommendation, to be provided to the individual and the Manager and which may be appealed by either party.

DOE is publishing this notice of proposed rulemaking (NOPR) to update and clarify the policies and procedures, to include the definition of terms used, that apply to HRP certification. The proposed revisions would update and add to some of the definitions. Additionally, the proposed rule would: (1) Identify the evidentiary burden applicable to an individual requesting a certification review hearing; (2) clarify that a security concern is reviewable under HRP separate from a review pursuant to 10 CFR part 710; (3) eliminate obsolete references; and (4) clarify the processes and procedures during the removal, revocation, hearing, and appeal stages.

The proposed changes to part 712 are summarized below in the order in which they appear:

1. The proposed changes to § 712.2 “Applicability” would add the National Nuclear Security Administration (NNSA) to clarify that part 712 applies to both the DOE and the NNSA and delete the last sentence regarding the grandfathering of positions. The last sentence of this section is obsolete because it is no longer necessary to grandfather individuals in from the Personnel Assurance Program (PAP) or the Personnel Security Assurance Program (PSAP). When part 712 was enacted in 2004, it was necessary to include such language since the HRP combined both the PAP and PSAP.

2. In proposed § 712.3 “Definitions,” three new definitions are proposed, a number of current definitions are modified, and one definition is deleted. The proposed rule would add the new definitions: “Case Chronology,” “Evaluative Report,” and “Restoration.” The proposed new definitions “Case Chronology” and “Evaluative Report” relate to new provisions in proposed § 712.19 that are intended to provide clarity and consistency among the programmatic elements administering the HRP. The proposed new definition “Restoration” would provide clarity as to the specific actions that must be taken to return an individual to HRP duties after a cognizant Under Secretary or his/her designee restores an individual's HRP certification. The proposed rule would modify the definitions: “Contractors,” “Designated Physician,” “Designated Psychologist,” “Recertification,” “Reinstatement,” “Safety concern,” “Security concern,” and “Site Occupational Medical Director (SOMD).” The title “Director, Office of Health and Safety” is changed to “Associate Under Secretary for Environment, Health, Safety and Security.”

3. In proposed § 712.10 “Designation of HRP positions,” current § 712.10(b) is modified to replace the title “Chief Health, Safety and Security Officer” with “Associate Under Secretary for Environment, Health, Safety and Security.”

4. In proposed § 712.11 “General requirements for HRP certification,” current § 712.11(a) is modified to delete the word “certification” since it is clear that the requirements set forth in this section relate to requirements for HRP certification or recertification. Current § 712.11(a)(1) is modified to delete the language “based on a background investigation” because it is unnecessary to specify the basis for an access authorization and may preclude other authorized means for DOE to grant an access authorization. Current § 712.11(a)(2) is deleted, as the requirement for an annual security review is already set forth in proposed § 712.11(a)(4), current § 712.11(a)(5). Current § 712.11(a)(5)(i), (ii), and (iii) are deleted and relocated, in substance, to proposed § 712.16(e) and (b), because they fall more logically under the section that describes the personnel security review. Current § 712.11(a)(7) is deleted in the entirety because the requirement for a psychological examination is already captured by the requirement for a medical assessment described in proposed § 712.11(a)(4), current § 712.11(a)(5). The psychological examination is a necessary part of the medical assessment, as is described in proposed § 712.14(f). Proposed § 712.11(a)(6), currently § 712.11(a)(8), deletes the language “in accordance with DOE policies implementing Executive Order 12564 or the relevant provisions of 10 CFR part 707 for DOE contractors, and DOE Order 3792.3, `Drug-Free Federal Workplace Testing Implementation Program,' for DOE employees,” as this is already addressed in proposed § 712.15(b), the subsection that deals with drug testing. Proposed § 712.11(a)(7), currently § 712.11(a)(9), deletes the language “using an evidential-grade breath alcohol device, as listed without asterisks on the Conforming Products List of Evidential Breath Measurement Devices published by the NHTSA (49 CFR part 40),” as this is already addressed in proposed § 712.15(c), the subsection that deals with alcohol testing. Current § 712.11(b)(1) and (2) are merged and redesignated as proposed § 712.11(c), as these paragraphs both concern the requirements applicable to an individual whose position becomes an HRP position after he or she has already begun employment. Current § 712.11(c) and (d) are redesignated as proposed § 712.11(d) and (e), respectively. Current § 712.11(e) is deleted in the entirety as its content concerning drug and alcohol testing is already addressed in proposed § 712.15. Proposed § 712.11(f) is added to emphasize that national security and safety are the paramount concerns of the HRP. This mirrors a similar provision under DOE's security clearance regulations at 10 CFR part 710.

5. In proposed § 712.12 “HRP implementation,” the deadlines for HRP implementation specified in § 712.12(a) and (b)(1) are deleted, since they occurred over a decade ago and are now obsolete. Current § 712.12(b)(2) is deleted in the entirety, as the HRP management official's responsibilities with respect to temporary removal and reinstatement are already addressed in proposed § 712.19. Current § 712.12(c)(1) is modified to replace the title “Chief Health, Safety and Security Officer” with “Associate Under Secretary for Environment, Health, Safety and Security.” Current § 712.12(d) is deleted in the entirety as the role of the cognizant Under Secretary with respect to final decisions is already addressed in proposed § 712.24. Current § 712.12(e), (f), (g), and (h) are redesignated as proposed § 712.12(d), (e), (f), and (g), respectively. Current § 712.12(e), and proposed as § 712.12(d), is modified to replace the title “Director, Office of Security” with “Associate Under Secretary for Environment, Health, Safety and Security.” Current § 712.12(f)(1), and proposed as § 712.12(e)(1), is modified to replace the title “Director, Office of Security” with “Director, Office of Corporate Security, Strategy Analysis and Special Operations.” Current § 712.12(h)(3) is relocated to proposed § 712.25(a), as it fits more logically under the section that describes the individual's responsibility to cooperate.

6. In proposed § 712.13 “Supervisory review,” proposed § 712.13(b) is modified to clarify that the annual reviews and evaluations by supervisors of HRP-certified individuals are based on any and all information within the supervisor's personal knowledge related to the individual that he or she supervises. Current § 712.13(c) is modified to include an additional type of behavior and/or concern that would indicate a concern for HRP certification. The new proposed language would cover any unusual conduct or circumstance that would tend to show the individual is not reliable. The provisions in current § 712.13(d) that deal with temporary removal are deleted, as those procedures are already addressed in proposed §§ 712.14 and 712.19. The provisions of current § 712.13(d) concerning immediate removal are replaced with the substance of current § 712.19(a) and § 712.13(e), which identify the circumstances under which immediate removal is required. The provisions of current § 712.13(e) that identifies the circumstance under which immediate removal is required are relocated to proposed § 712.13(d), with the clarification that the requirement to immediately remove applies to all individuals and not just Federal employees. Additionally, proposed § 712.13(e) deletes language mandating a certain personnel action, such as a temporary reassignment, when an individual is immediately removed. Current § 712.13(f) is deleted in its entirety and its substance is relocated and merged with current § 712.15(c), the paragraph that deals with alcohol testing. Proposed § 712.13(f) is added to specify the actions to be taken in connection with an immediate removal. This language, which can be found at current § 712.19(a), fits more logically in § 712.13, which addresses the role of the supervisor. Proposed § 712.13(f) is modified from the language in current § 712.19(a) to eliminate the requirement by the supervisor to notify the individual of the immediate removal. Instead, notification to the individual is to be provided by the management official upon temporary removal consistent with proposed § 712.19.

7. In proposed § 712.14 “Medical assessment,” the last sentence of current § 712.14(c) describing the responsibilities of the Designated Physician or SOMD when a security concern is identified is deleted, as these responsibilities are already addressed in proposed § 712.19. Current § 712.14(f)(1) and (f)(3) are modified to replace the titles “Director, Office of Health and Safety” with “Associate Under Secretary for Environment, Health, Safety and Security.” Current § 712.14(h) is modified to delete “for concurrence” in the second to last sentence as the responsibilities of the Designated Physician, Designated Psychologist, and the SOMD to make a written recommendation as to reinstating or removing a medical restriction are already set forth clearly and the terms “for concurrence” is not necessary. Additionally, current § 712.14(j) would delete “required” and add in its place “recommended” to clarify that the determination to temporarily remove an individual from HRP duties would be made by the management official upon the recommendation of the Designated Physician, Designated Psychologist, or the SOMD.

8. In proposed § 712.15 “Management evaluation,” proposed § 712.15(a) is modified to clarify that the HRP management official must act in accordance with the procedures for temporary removal, set forth in proposed § 712.19, upon the identification of a safety or a security concern with respect to an HRP-certified individual. Additionally, proposed § 712.15(a) is modified to delete any requirement that the supervisor temporarily reassign an individual to non-HRP duties upon immediate removal. Proposed § 712.15(b) is modified to clarify that if an HRP-certified individual refuses to submit to a drug test, or if the individual submits to the test but the results are not favorable, the supervisor must immediately remove the individual from HRP and take the actions specified in proposed § 712.13(f). Proposed § 712.15(c) is modified to incorporate the substance of current § 712.13(f), which deals with alcohol testing, as discussed in this preamble and to clarify that if an HRP-certified individual's test result is at or above a certain level, then the supervisor should take actions consistent with § 712.13(f).

9. The title of proposed § 712.16 is changed from “DOE security review” to “Security review.” Proposed § 712.16(a) is modified to eliminate the requirement that the security review be initiated only after the medical assessment and management evaluations are completed. Proposed § 712.16(b) is modified to incorporate the content of current § 712.11(a)(5)(ii) and (iii), with the exception of the last clause of paragraph (a)(5)(iii) which is deleted. Additionally proposed § 712.16(b) is modified to delete the reference to the 10 CFR part 710 criteria since the criteria were eliminated in a recent proposed amendment to 10 CFR part 710. The last sentence of current § 712.16(b) is deleted to clarify that security concerns may be addressed by HRP officials in accordance with HRP reliability standards, in addition to security clearance adjudicators under 10 CFR part 710. Proposed § 712.16(c) is added to clarify that HRP determinations are to be made independently of security clearance determinations under 10 CFR part 710. Current § 712.16(c) is redesignated as proposed § 712.16(d) and modified to clarify that medical personnel may share information from the personnel security file only as permitted by the Privacy Act of 1974. Proposed § 712.16(e) incorporates the content of current § 712.11(a)(5)(i), as described in this preamble, and is modified to clarify that when the DOE personnel security review is not completed within the required 12-month time period for recertification, the HRP certifying official's decision to recertify or temporarily remove an individual in the HRP is an interim decision pending the completion of the security review.

10. In proposed § 712.17 “Instructional requirements,” proposed § 712.17(b)(1) is modified to clarify the type of medical conditions that need to be reported by each individual in the HRP.

11. The title of proposed § 712.19 is modified to “Actions related to Removal, Revocation and/or Reinstatement.” Current § 712.19(a) is relocated to proposed § 712.13(f), as described in this preamble, under the section that describes the roles and responsibilities of the supervisor. Proposed § 712.19(a) incorporates the substance of current § 712.19(c)(1) and sets forth additional circumstances under which the HRP management official must temporarily remove an individual from HRP. These circumstances include when the HRP management official has identified a concern during the management evaluation (as set forth in proposed § 712.15), when the individual has been immediately removed by the supervisor (in accordance with proposed § 712.13), or when temporary removal has been recommended by a medical professional associated with the HRP (under proposed § 712.14). Language is added to current § 712.19(b) which requires the HRP management official to notify the individual, in writing, that s/he is temporarily removed. Current § 712.19(c)(2) is redesignated as proposed § 712.19(c) and is modified with the deletion of the last sentence. Current § 712.19(c)(3) is redesignated as proposed § 712.19(d) and is modified to require that the HRP management official obtain a recommendation from an HRP medical professional if temporary removal was based on a concern that is medical-related, and to delete the requirement that the management official prepare a written report of the evaluation. Current § 712.19(c)(4) is redesignated as proposed § 712.19(e) and is modified to clarify the actions to be taken by the HRP management official upon determining that an individual who was temporarily removed continues to meet the requirements for HRP certification. Current § 712.19(c)(5) is redesignated as proposed § 712.19(f) and is modified to state that if the HRP management official makes a determination that an individual does not meet HRP certification requirements, then a case chronology that explains why the individual does not meet the requirement for certification must be prepared for the HRP certifying official and, further, that the HRP management official's determination must be based on one or more of the types of behaviors and conditions identified in proposed § 712.13(c). Proposed § 712.19(f)(1) is modified to clarify that the individual must be notified if his or her HRP certification is reinstated by the HRP certifying official. Proposed § 712.19(f)(3) is modified to clarify the process to be followed should an HRP certifying official recommend revocation of an individual's certification in the HRP, including the preparation of an evaluative report and a role for the appropriate DOE or NNSA counsel, as well as a course of action to be followed if the HRP certifying official is the same person as the Manager. Current § 712.19(d) is redesignated as proposed § 712.19(g) and is modified to replace the phrase “written report” with the proposed concepts “case chronology” and “evaluative report” and to clarify the requirement that the individual be notified if his or her HRP certification is reinstated by the Manager. Current § 712.19(e) is merged with current § 712.19(g), as both paragraphs deal with actions to be taken upon a decision to revoke, and is redesignated as proposed § 712.19(h). Current § 712.19(f) is redesignated as proposed § 712.19(i) and is modified to reflect that the HRP certifying official, in addition to the Manager, can direct that an individual take certain actions to attempt to resolve HRP concerns and to clarify the process to be followed once those actions have been completed.

12. In proposed § 712.20, “Request for reconsideration or certification review hearing,” proposed § 712.20 is modified to delete paragraph (a)(1) and relocate the substance to proposed new paragraph (d) and to further clarify that a failure to take action in response to the Manager's decision to revoke HRP certification means that the Manager's decision becomes a final agency decision. Proposed § 712.20(b) is modified to clarify that a “final decision” refers to a “final agency decision” and to delete the final sentence, so as not to unreasonably limit the information relied upon by the Manager in issuing a final decision.

13. Proposed § 712.21 clarifies the process for appointing DOE counsel when an individual requests a certification review hearing. This requirement and language is consistent with the procedures that pertain to administrative review hearings under 10 CFR part 710. Proposed § 712.21(a) is modified to replace the reference to the local Chief Counsel and the General Counsel with a general description requiring appointment of counsel so that this regulation will not be outdated if there is a change to titles and organizations in DOE.

14. Current § 712.21 is redesignated as proposed § 712.22 in accordance with the addition of proposed § 712.21. The term “hearing officer” is replaced throughout this section, and wherever it appears in this part, with “Administrative Judge” for the reasons set forth in 78 FR 52389 (Aug. 23, 2013). Proposed § 712.22(a) is modified to specify who is responsible for appointing an Administrative Judge. Proposed § 712.22(d) is added to establish the individual's burden at a certification review hearing. For purposes of due process, it is critical that the individual whose HRP certification has been revoked fully understand the nature and scope of evidence that he or she must present. “Specifically, the individual must present evidence to show that the revocation decision was either clearly erroneous or that extraordinary circumstances warrant recertification into HRP. The individual cannot satisfy this burden upon a showing that DOE's security or safety concerns have been mitigated during the time since the decision was made to revoke. Rather, the individual must point to a clear factual error underlying that decision or to some circumstance that is so extraordinary that it warrants reversal of the decision. This is a more burdensome standard to meet than the standard applicable to security clearance hearings under 10 CFR part 710, but it is consistent with the objective that HRP-certified individuals meet the highest standards of reliability as well as physical and mental suitability. Proposed § 712.22(e) is added to clarify the DOE counsel's role at the certification review hearing, which is consistent with the DOE counsel's role in administrative review hearings under 10 CFR part 710.

Current § 712.22(e) is redesignated as proposed § 712.22(f) in accordance with the addition of proposed § 712.22(e). Proposed § 712.22(f)(1), (2) and (7) and § 712.22(g) and (h) are added to clarify the responsibilities and authority of the Administrative Judges who perform certification review hearings. The added language is consistent with the responsibilities and authorities of the Administrative Judges who perform administrative review hearings under 10 CFR part 710. Proposed § 712.22(i) is added to clarify the Administrative Judge's responsibility to prepare a decision, and what the decision must contain. Proposed § 712.22(i) also directs the Administrative Judge to ensure that any doubt as to an individual's certification shall be resolved against the individual in favor of national security and/or safety. This direction to err on the side of security and safety is consistent with a similar provision in 10 CFR part 710 and Executive Order 12968 (Aug. 4, 1995).

15. Current § 712.22 is redesignated as proposed § 712.23 in accordance with the addition of proposed § 712.21. The title is modified to reflect that a decision, not a recommendation, is issued by the Administrative Judge at the conclusion of the hearing. The position of “Chief Health Safety and Security Officer” is replaced through this section, and wherever it appears in this part, with “Associate Under Secretary for Environment, Health, Safety, and Security” to reflect organizational changes within the Department. The first sentence of proposed § 712.23(a) is modified to state simply that the Administrative Judge's decision be forwarded to the Associate Under Secretary for Environment, Health, Safety and Security, as the contents of this decision are already described in proposed § 712.22(i). Further, the term “must” is replaced with “should” in order to clarify that issuance of the decision within 30 calendar days is an aspiration rather than a requirement. In addition, the proposed § 712.23 would no longer require the Associate Under Secretary for Environment, Health, Safety, and Security to make a recommendation to recertify or revoke the certification of an individual in the HRP. Instead, a new proposed paragraph (b) requires the Associate Under Secretary for Environment, Health, Safety, and Security to notify the individual and the Manager of the Administrative Judge's decision and the appeal procedures available, and to provide them a copy of the Administrative Judge's decision and the administrative record. A new proposed paragraph (c) provides the individual and the Manager the right to file a written request for further review of the Administrative Judge's decision with the cognizant Under Secretary. A new proposed paragraph (d) requires the Manager to provide the individual with a copy of any request for further review filed by the Manager. A new proposed paragraph (e) requires the request for review to include a statement identifying the issues on which the cognizant Under Secretary should focus. A new proposed paragraph (f) clarifies that the Administrative Judge's decisions become final if neither the individual nor the Manager files a written request for review of the decision. The provisions of proposed § 712.23 are generally consistent with the procedures for notification and appeal of an Administrative Judge's decision in a security clearance hearing under 10 CFR part 710.

16. Current § 712.23 is redesignated as proposed § 712.24 in accordance with the addition of proposed § 712.21. A new proposed paragraph (a) would require the Associate Under Secretary for Environment, Health, Safety, and Security to forward the request for review, the Administrative Judge's decision and the administrative record to the cognizant Under Secretary. Proposed paragraph (b) would delete the 20-working day requirement in order to ensure that the cognizant Under Secretary has sufficient time to render a final decision. Proposed paragraph (b) is further modified to allow the cognizant Under Secretary to delegate the authority to issue a final decision, and to require that final decisions expressly state whether the individual's certification is revoked or restored, in order to avoid any possible confusion. A new proposed paragraph (c) would clarify that the cognizant Under Secretary's decision shall be based only on evidence and information in the administrative record at the time of the Administrative Judge's decision.

17. Proposed § 712.25 is added to require HRP candidates and HRP-certified individuals to cooperate in all aspects of the HRP process. Proposed § 712.25(a), in addition to incorporating current § 712.12(h)(3), as described above, specifies that failure to cooperate may result in a determination not to grant HRP certification, for candidates, or revocation, for HRP-certified individuals. Proposed § 712.25(b) establishes a process by which an HRP-certified individual whose certification was revoked for failure to cooperate may request that the Manager reconsider this decision. This reconsideration process is modelled after a similar process set forth in DOE's security clearance regulations at 10 CFR part 710.

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.

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.

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.energy.gov/gc/office-general-counsel.

This proposed rule would amend procedures that apply to the certification of individuals in the HRP. 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.

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 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.

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 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.

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 Office of the Secretary of Energy has approved the publication of this proposed rule.

For the reasons stated in the preamble, DOE proposes to amend part 712 of title 10 of the Code of Federal Regulations to read as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D airspace at Spirit of St. Louis Airport, St. Louis, MO; Class E airspace designated as a surface area at Cape Girardeau Regional Airport and Spirit of St. Louis Airport; Class E airspace designated as an extension at Cape Girardeau Regional Airport; and Class E airspace extending upward from 700 feet above the surface at Cape Girardeau Regional Airport, Spirit of St. Louis Airport, and Macon-Fower Memorial Airport, Macon, MO.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-9559/Airspace Docket No. 16-ACE-11.” The postcard will be date/time stamped and returned to the commenter.

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

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

This document proposes to amend FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

Cancellation of standard instrument approach procedures prompted the FAA to conduct a review of the airspace at the Spirit of St. Louis Airport, Cape Girardeau Regional Airport, and Macon-Fower Memorial Airport. Controlled airspace is necessary for the safety and management of the standard instrument approach procedures for IFR operations at these airports.

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying:

Class D airspace at Cape Girardeau Regional Airport (formerly Cape Girardeau Municipal Airport) by updating the name of the airport to coincide with the FAA's aeronautical database;

Class D airspace to within a 4.4-mile radius (increased from a 4.3-mile radius) at Spirit of St. Louis Airport, St. Louis, MO, and adding an extension within 1 mile each side of the 079° bearing from the airport extending from the 4.4-mile radius to 4.6 miles east of the airport, and adjusting the extension west of the airport to within 1 mile each side of the 259° bearing (previously 258°) from the airport extending from the 4.4-mile radius to 4.6 miles west of the airport;

Class E airspace designated as a surface area at Cape Girardeau Regional Airport (formerly Cape Girardeau Municipal Airport) by adding the vertical limits from the surface to and including 2,800 feet, adding the part time language to the description, and updating the name of the airport to coincide with the FAA's aeronautical database;

Class E airspace designated as a surface area to within a 4.4-mile radius (increased from a 4.3-mile radius) at Spirit of St. Louis Airport, St. Louis, MO, adding an extension to within 1 mile each side of the 079° bearing from the airport extending from the 4.4-mile radius to 4.6 miles east of the airport, and adding an extension within 1 mile each side of the 259° bearing from the airport extending from the 4.4-mile radius to 4.6 miles west of the airport;

Class E airspace designated as an extension to Class E surface are at Cape Girardeau Regional Airport (formerly Cape Girardeau Municipal Airport), Cape Girardeau, MO, by adding an extension 1 mile each side of the 023° bearing from the airport from the 4.1-mile radius of the airport to 4.4 miles to the north of the airport, adjusting the extension to the east of the airport to within 1 mile (decreased from 2.6 miles) each side of the 108° bearing from the Cape Girardeau Regional Localizer (previously the Cape Girardeau VOR/DME) from the 4.1-mile radius to 4.4 miles east of the airport, adjusting the extension to the south of the airport to within 2.4 miles (previously 2.6 miles) each side of the 196° (previously 194°) radial of the Cape Girardeau VOR/DME from the 4.1-mile radius of the airport extending to 7.2 miles (increased from 5.7 miles), adjusting the extension west of the airport to within 1 mile (decreased from 2.6 miles) each side of the 287° (previously 279°) radial from the Cape Girardeau VOR/DME from the 4.1-mile radius to 4.4 miles (decreased from 7.4 miles) west of the airport, and updating the name of the airport to coincide with the FAA's aeronautical database;

Class E airspace areas extending upward from 700 feet above the surface:

At Cape Girardeau Regional Airport, Cape Girardeau, MO, by adding an extension to the north of the airport within 2 miles each side of the 203° bearing from the airport from the 6.6-mile radius of the airport to 7.3 miles, adjusting the extension to the east to within 3.8 miles (increased from 2.5 miles) each side of the 108° bearing from the Cape Girardeau Localizer (previously from the Cape Girardeau VOR/DME) extending from the 6.6-mile radius to 14 miles (increased from 8.7 miles), adjusting the extension to the south of the airport to within 2.4 miles (reduced from 3 miles) each sided of the 196° radial (previously 194°) from the Cape Girardeau VOR/DME from the 6.6-mile radius to 7.2 miles (decreased from 10 miles) south of the airport, adding an extension within 1.9 miles each side of the 023° bearing from the airport from the 6.6-mile radius of the airport to 7.5 miles south of the airport, adjusting the extension to the west of the airport to within 2 miles (decreased from 3 miles) each side of the 280° (previously 279°) bearing from the airport (previously the Cape Girardeau VOR/DME) extending from the 6.6-mile radius to 7.4 miles (decreased from 8.7 miles) west of the airport, and updating the name of the airport to coincide with the FAA's aeronautical database;

Within a 6.9-mile radius (increased from a 6.8-mile radius) of the Spirit of St. Louis Airport, St. Louis, MO, adding an extension 4.2 miles north and 6.4 miles south of the 259° bearing from the Spirit of St. Louis Localizer extending from the 6.6-mile radius of the airport to 11.3 miles east of the Spirit of St. Louis Localizer, adding an extension within 2.5 miles each side of the 079° bearing from the airport from the 6.9-mile radius to 8.1 miles east of the airport, adjusting the extension to the west of the airport to within 3.9 miles each side of the 259° (from 258°) bearing from the airport extending from the 6.9 mile radius to 10.6 miles west of the airport, removing an extension west of the airport referencing the Foristell VORTAC, removing the Foristell VORTAC from the description, and updating the geographic coordinates for St. Louis Regional Airport, Alton/St. Louis, MO, and the OBLIO LOM to coincide with the FAA's aeronautical database;

And within a 6.7-mile radius (increased from a 6.5-mile radius) of Macon-Fower Memorial Airport, Macon, MO, and updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database. The duplicate airspace designation listed as Macon-Fower, MO, in FAA Order 7400.11A, would be removed.

This action also would make an editorial change in the airspace description for Class D, Class E surface area, and Class E extension airspace, replacing Airport/Facility Directory with the current term Chart Supplement.

Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11A, dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

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

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

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

E.O. 13777 establishes two main goals 1 for Federal agencies in furtherance of alleviating unnecessary burdens placed on the American people:

(1) Improve implementation of the regulatory reform initiatives and policies specified in section 2 of E.O. 13771 [E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs); E.O. 12866 (Regulatory Planning and Review), as amended; Section 6 of E.O. 13563 (Improving Regulation and Regulatory Review) regarding retrospective review; and termination, consistent with applicable law, of programs and activities that derive from or implement E.O.s, guidance documents, policy memoranda, rule interpretations, and similar documents, or relevant portions thereof, that have been rescinded]; and

(2) Identify regulations for repeal, replacement, or modification considering, at a minimum, those regulations that:

• Eliminate jobs, or inhibit job creation;

• Are outdated, unnecessary, or ineffective;

• Impose costs that exceed benefits;

• Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

• Rely, in part or in whole, on data or methods that are not publicly available or insufficiently transparent to meet the standard for reproducibility; or

• Derive from or implement E.O.s or other Presidential directives that have been subsequently rescinded or substantially modified.2

To lead regulatory reform efforts at Interior, the Acting Chief of Staff established Interior's Regulatory Reform Task Force on March 15, 2017, pursuant to E.O. 13777. The Task Force is closely examining all regulatory actions that are currently in process and identifying potential deregulatory actions to ensure compliance with regulatory reform goals. Interior and the Task Force welcome public input on regulatory and deregulatory actions that could quantifiably lessen the burden on the American public.

A cornerstone of the Task Force's review of Interior's regulatory burden on the American public has been its thoughtful approach to Interior's regulatory portfolio. The regulatory portfolio includes significant regulations subject to retrospective review under Section 6 of E.O. 13563, meaning that they are periodically reviewed to determine whether they may be outmoded, ineffective, insufficient, or excessively burdensome. The Task Force is rolling these efforts into the larger regulatory reform effort to change or repeal unduly burdensome rules, as appropriate. The Task Force is also taking a holistic approach to ensure that each individual regulatory action it pursues and Interior's future regulatory portfolio as a whole advance the goal of alleviating unnecessary regulatory burdens placed on the American people, consistent with the law. The Task Force is accomplishing this by examining each regulatory action for alignment with the priorities of the Administration, the goals and requirements of applicable Executive Orders issued by the President, and Secretary's Orders issued by the Secretary of the Interior. This deliberate approach ensures that each semi-annual regulatory agenda published under E.O. 12866 will list only those regulations that the Department has a relatively high degree of confidence will move forward within the coming 12 months. With the publication of each semi-annual regulatory agenda, the public will have the opportunity to provide feedback, which the Task Force will consider as part of the regulatory reform effort. For individual regulations, the Task Force also intends to make greater use of advance notices of proposed rulemaking (ANPRMs), where possible, to solicit input on the front end as to how any given regulatory action could be tailored to reduce or eliminate burden.

Part of the regulatory reform effort underway in Interior includes implementing the requirement known colloquially as the “two-for-one” requirement. This requirement was established by President Trump in E.O. 13771, and detailed in Office of Management and Budget (OMB) Interim Guidance issued February 2, 2017, and OMB Guidance of April 5, 2017. These documents require Federal agencies to: (1) Issue two “deregulatory” actions for each new significant regulatory action that imposes costs; and (2) fully offset the total incremental cost of such new significant regulatory action. Interior is in the process of reviewing existing regulations (significant and non-significant) to identify actions that can be repealed. The cost savings associated with to-be-repealed actions will offset the costs of any new significant regulations that are necessary for promulgation; to account for these offsets, bureaus are working to quantify undue burden, where possible.

The Task Force has also taken initial steps toward deregulatory actions, using specific rule rescissions already identified through various means as a starting point for a more widespread reduction in regulatory actions. For example, the Task Force's review will encompass actions that were initiated by the previous Administration and subject to repeal under the Congressional Review Act (CRA). The President approved a joint resolution of disapproval for the following regulations under the CRA:

• The Bureau of Land Management's (BLM) Resource Management Planning; 43 CFR part 1600;

• The U.S. Fish and Wildlife Services' Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska; 50 CFR parts 32 and 36; and

• The Office of Surface Mining, Reclamation and Enforcement's (OSMRE) Stream Protection Rule; 30 CFR parts 700, 701, 773, 774, 777, 779, 780, 783, 784, 785, 800, 816, 817, 824, and 827.

Through Secretary's Order No. 3349, American Energy Independence (Mar. 29, 2017), Interior announced its intention to review all existing actions that potentially burden the development or utilization of domestically produced energy resources and suspend, revise, or rescind such agency actions as soon as practicable. Interior's review will also give particular attention to the four Interior rules related to United States oil and gas development that are identified in section 7 of E.O. 13783 (Promoting Energy Independence and Economic Growth). Specifically, Secretary's Order 3349 provides that:

• BLM will proceed expeditiously with a proposed rule to rescind the final rule entitled “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands,” 80 FR 16128 (March 26, 2015).

• The National Park Service will review the final rule entitled “General Provisions and Non-Federal Oil and Gas Rights,” 81 FR 77972 (November 4, 2016);

• The U.S. Fish and Wildlife Service will review the final rule entitled “Management of Non Federal Oil and Gas Rights,” 81 FR 79948 (November 14, 2016); and

• The BLM will review the final rule entitled “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” 81 FR 83008 (November 18, 2016).

The Office of Natural Resources Revenue has already taken the following actions in accordance with this objective:

• Published a proposed rule to repeal the “Consolidated Federal Oil & Gas and Federal & Indian Coal Valuation Rule” published on July 1, 2016 (81 FR 43338). See 82 FR 16323 (April 4, 2017).

• Published an Advance Notice of Proposed Rulemaking (ANPRM) on April 4, 2017 (82 FR 16325) seeking comments on whether revisions are needed to the regulations governing valuation, for royalty purposes, of oil and gas produced from Federal onshore and offshore leases and coal produced from Federal and Indian lands, and if revisions are appropriate, what specific revisions merit consideration.

Interior is also reviewing regulations to determine whether any require revision or rescission based on the mitigation policy review, climate change policy review, and review of other actions affecting energy development required by E.O. 13783.

Interior's review also gives particular attention to the three Interior rules related to offshore energy that are identified in sections 7, 8, and 11 of E.O. 13795 (Implementing an America-First Offshore Energy Strategy). To implement E.O. 13795, Interior issued Secretary's Order 3350, America-First Offshore Energy, which provides deadlines for review of the rules identified in the E.O. Specifically, the Secretary's Order directs the Bureau of Safety and Environmental Enforcement and the Bureau of Ocean Energy Management to review:

• The proposed rule “Offshore Air Quality Control, Reporting, and Compliance” published on April 5, 2016. See 81 FR 19717;

• The final rule “Oil and Gas and Sulfur Operations in the Outer Continental Shelf—Blowout Preventer Systems and Well Control,” published on April 29, 2016. See 81 FR 25887.

• The final rule “Oil and Gas and Sulfur Operations on the Outer Continental Shelf—Requirements for Exploratory Drilling on the Arctic Outer Continental Shelf,” published on July 15, 2016. See 81 FR 46478.

Secretary's Order 3350 also requires identifying other rules that have been adopted or are in the process of being developed that relate to the above rules.

As it identifies any other potential deregulatory actions and their cost savings, the Task Force will consider input from the public as guidance for prioritizing its efforts. In the coming months, the Task Force will be working with the affected bureaus to calculate the cost savings from any repeal, replacement, or modification.

Interior is seeking public input on how it can best meet the above goals and, specifically, where redundancies and inefficient processes can be eliminated, while ensuring that Interior continues to fulfill our legal obligations, resource stewardship, and Tribal trust responsibilities and minimizes the risk of lengthy and costly appeals and litigation. E.O. 13777 requires the Regulatory Reform Task Force, in performing the evaluation of regulations to seek input and other assistance, as permitted by law, from entities significantly affected by Federal regulations, including State, local, and Tribal governments, small businesses, consumers, non-governmental organizations, and trade associations. See § 3(e), E.O. 13777. To comply with this requirement and promote transparency in regulatory reform efforts, Interior has established a Regulations.gov docket to provide the public with the ability to provide comments on regulatory reform on an ongoing basis. Interior encourages the public, and particularly anyone significantly affected by regulations, to provide input and assistance in identifying regulations for repeal, replacement, or modification that:

• Eliminate jobs, or inhibit job creation;

• Are outdated, unnecessary, or ineffective;

• Impose costs that exceed benefits;

• Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

• Rely, in part or in whole, on data or methods that are not publicly available or insufficiently transparent to meet the standard for reproducibility; or

• Derive from or implement E.O.s or other Presidential directives that have been subsequently rescinded or substantially modified.

Periodically, Interior will review the written input to determine whether additional regulations should be targeted for review and considered for suspension, revision, or rescission.

To measure future progress, Interior will incorporate performance indicators for the regulatory reform initiative into Interior's annual performance plan under the Government Performance and Results Act. OMB has issued guidance regarding the appropriate performance indicators and established deadlines for setting targets for each of those indicators in the Fiscal Year (FY) 2018 and FY 2019 annual performance plans.

This notice is published pursuant to E.O. 13777, 82 FR 12285 (February 24, 2017).

On February 24, 2017, President Trump signed Executive Order 13777, “Enforcing the Regulatory Reform Agenda,” which established a Federal policy “to alleviate unnecessary regulatory burdens” on the American people. Section 3(a) of the Executive Order directs Federal agencies to establish a Regulatory Reform Task Force (Task Force). One of the duties of the Task Force is to evaluate existing regulations and “make recommendations to the agency head regarding their repeal, replacement, or modification.” The Executive Order further asks that each Task Force “attempt to identify regulations that:

(i) Eliminate jobs, or inhibit job creation;

(ii) Are outdated, unnecessary, or ineffective;

(iii) Impose costs that exceed benefits;

(iv) Create a serious inconsistency or otherwise interfere with regulatory reform initiatives and policies;

(v) Are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note), or the guidance issued pursuant to that provision, in particular those regulations that rely in whole or in part on data, information, or methods that are not publicly available or that are insufficiently transparent to meet the standard for reproducibility; or

(vi) Derive from or implement Executive Orders or other Presidential directives that have been subsequently rescinded or substantially modified.”

Section 3(e) of the Executive order calls on the Task Force to “seek input and other assistance, as permitted by law, from entities significantly affected by Federal regulations, including State, local, and tribal governments, small businesses, consumers, non-governmental organizations, and trade associations” on regulations that meet some or all of the criteria above. A “regulation” for this purpose “means an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or to describe the procedure or practice requirements of an agency . . . .” See Executive Order 13771, section 4.

Through this announcement, the Department is soliciting such input from the public to inform its Task Force's evaluation of existing regulations and guidance that have a policy impact. The Department's regulations are codified in subtitles A and B of title 34 of the Code of Federal Regulations (CFR), which are available in electronic format at www.ecfr.gov/cgi-bin/text-idx?SID=0717200349ac02b730b4600ba4a5ed05&mc=true&tpl=/ecfrbrowse/Title34/34tab_02.tpl. A list of the Department's significant guidance documents is available at: www2.ed.gov/policy/gen/guid/significant-guidance.html. Other Department guidance may be accessed at www.ed.gov by program office. The Department requests that commenters be as specific as possible by: Providing a Federal Register (FR) or CFR citation when referencing a specific regulation or, where practicable, a link when referencing a particular guidance document; including any supporting data or other applicable information; providing specific suggestions regarding repeal, replacement, or modification; and explaining with specificity why the referenced regulation or guidance should be repealed, replaced, or modified. Wherever possible, please list the citations to the specific regulatory sections or titles of guidance documents to which your comments pertain in a subject line or otherwise at the beginning of your comments. We are particularly interested in regulatory provisions that you find unduly costly or unnecessarily burdensome. Although we will not respond to individual comments, the Department values public feedback and will give careful consideration to all input that we receive. Individual program offices of the Department will also be conducting outreach on this same topic.

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

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

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

On June 1, 2017, EPA published in the Federal Register a proposal to approve portions of the State of Delaware's SIP submittal to address the infrastructure requirements for the 2012 PM2.5 NAAQS. 82 FR 25211. Comments on the proposed rule were required to be received by July 3, 2017. We are extending the comment period until July 24, 2017. This action will allow interested persons additional time to prepare and submit comments. EPA is also announcing the availability in the docket of the TSD EPA prepared for this proposed rulemaking which includes EPA's analysis supporting approval of portions of Delaware's December 14, 2015 infrastructure SIP submission for the 2012 PM2.5 NAAQS. The TSD is available in the docket for this rulemaking and online at www.regulations.gov.

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

The EPA promulgated a revision to the long-term strategy of the Nevada Visibility FIP on February 8, 2002, to regulate air pollutant emissions from MGS (“MGS FIP”).1 The requirements of the MGS FIP were based on a consent decree between the owners of MGS and the Grand Canyon Trust, the Sierra Club, and the National Parks Conservation Association. The MGS FIP addressed concerns raised by the Department of Interior regarding MGS's contribution to visibility impairment at the Grand Canyon National Park due to sulfur dioxide emissions.

On December 31, 2005, MGS ceased operations. On June 10, 2009, the owners of MGS announced their decision to decommission and dismantle MGS, and subsequently submitted a request to the NDEP to terminate its Class I Air Quality Operating Permit, No. AP4911-0774, FIN A0013. The NDEP, on April 9, 2010, granted the owners' request on the basis that MGS had ceased all operations related to electricity generation from burning coal and that MGS had received a new operating permit establishing the emission reduction credits for the permanent shutdown and dismantling of the main steam boilers. MGS was subsequently demolished on March 11, 2011, as acknowledged in separate EPA rulemakings.2 On March 25, 2016, the NDEP submitted a request to us asking that we rescind the MGS FIP.3

The provisions of Clean Air Act section 307(d) apply to EPA's action to revise the MGS FIP by rescinding it, and this rulemaking is being conducted in accordance with those provisions.

The proposed action relies on documents, information, and data that are listed in the index on http://www.regulations.gov under docket number EPA-R09-OAR-2017-0271. Publicly available docket materials are available either electronically at http://www.regulations.gov or in hard copy at the Planning Office of the Air Division, AIR-2, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105. The EPA requests that you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 9:00-5:00 PDT, excluding federal holidays.

Based on our review of the information submitted with the March 25, 2016 letter from NDEP, we are proposing to grant NDEP's request to rescind the MGS FIP and update the Code of Federal Regulations to remove any references to MGS because MGS has been decommissioned and demolished.

The EPA solicits comments on any issues associated with rescinding the MGS FIP. In addition, if anyone contacts the EPA by July 7, 2017 requesting to speak at a public hearing, the EPA will schedule a public hearing and announce the hearing in the Federal Register. Contact Krishna Viswanathan at the phone number or email address provided above to request a hearing or to find out if a hearing will be held.

The EPA is proposing to rescind a FIP that is no longer applicable because the subject facility has been decommissioned and demolished. Therefore, the EPA considers this proposed action to have no potential disproportionately high and adverse effects on minority, low-income, or indigenous populations.

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

I certify that this proposed action will not have a significant economic impact on a substantial number of small entities. This action will not impose any requirements on small entities because the rule merely rescinds a FIP covering a generating station that has been decommissioned and demolished.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This action merely rescinds a FIP covering a generating station that has been decommissioned and demolished.

This action does not have tribal implications, as specified in Executive Order 13175. This proposed action 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. This action merely rescinds a FIP covering a generating station that has been decommissioned and demolished. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets EO 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it merely rescinds a FIP covering a generating station that has been decommissioned and demolished.

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

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires federal agencies to evaluate existing technical standards when developing a new regulation. To comply with NTTAA, the EPA must consider and use “voluntary consensus standards” (VCS) if available and applicable when developing programs and policies unless doing so would be inconsistent with applicable law or otherwise impractical.

The EPA believes that VCS are inapplicable to this action. Today's action does not require the public to perform activities conducive to the use of VCS because it merely rescinds a FIP covering a generating station that has been decommissioned and demolished.

The EPA believes that this proposed rule will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. Because this proposed rule merely rescinds a FIP covering a generating station that has been decommissioned and demolished, this proposal will not cause any emissions increases.

Chapter I, Title 40, of the Code of Federal Regulations is proposed to be amended as follows:

This supplementary information section is arranged as follows:

The first air quality standards for PM2.5 were promulgated on July 18, 1997, at 62 FR 38652. Fine particulate pollution can be emitted directly from a source (primary PM2.5) or formed secondarily through chemical reactions in the atmosphere involving precursor pollutants emitted from a variety of sources (secondary PM2.5). EPA promulgated an annual standard at a level of 15 micrograms per cubic meter (µg/m3) of ambient air, based on a three-year average of the annual mean PM2.5 concentrations at each monitoring site. See 40 CFR 50.13.

On January 5, 2005, at 70 FR 944, EPA published air quality area designations for the 1997 annual PM2.5 standard based on air quality data for calendar years 2001-2003. In that rulemaking, EPA designated the Cincinnati-Hamilton area, which includes Lawrenceburg Township, Dearborn County, Indiana, as nonattainment for the 1997 annual PM2.5 standard.

On December 23, 2011, EPA approved the redesignation of the Ohio and Indiana portions of the Cincinnati-Hamilton area to attainment of the annual PM2.5 standard (76 FR 80253). On July 14, 2015, the United States Court of Appeals for the Sixth Circuit (Sixth Circuit) issued an opinion in Sierra Club v. EPA, 793 F.3d 656 (6th Cir. 2015), vacating EPA's redesignation of the Indiana and Ohio portions of the Cincinnati-Hamilton area to attainment for the 1997 PM2.5 NAAQS. The basis for the Court's decision is that EPA had not approved reasonably available control measures (RACM) or reasonably available control technology (RACT) for the area into the SIP, as required by part D, subpart 1, of the CAA.1

Additionally, in this proposed redesignation, EPA takes into account two decisions of the United States Court of Appeals for the District of Columbia Circuit. On August 21, 2012, in EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), the D.C. Circuit vacated and remanded the Cross State Air Pollution Rule (CSAPR) and ordered EPA to continue administering the Clean Air Interstate Rule (CAIR) “pending . . . development of a valid replacement.” EME Homer City at 38. The D.C. Circuit denied all petitions for rehearing in the case on January 24, 2013.

In the second decision, on January 4, 2013, the D.C. Circuit issued its decision with regard to the challenge by the Natural Resources Defense Council (NRDC) to the EPA's 2007 PM2.5 Implementation Rule. In NRDC v. EPA, the court held that EPA erred in implementing the 1997 PM2.5 NAAQS pursuant only to the general implementation requirements of part D of the CAA, subpart 1, rather than also to the implementation requirements specific to particulate matter (PM10) in subpart 4, part D of title I of the CAA (“subpart 4”). The court reasoned that the plain meaning of the CAA requires implementation of the 1997 PM2.5 NAAQS under subpart 4 because PM2.5 particles fall within the statutory definition of PM10 and thus implementation of the PM2.5 NAAQS is subject to the same statutory requirements as the PM10 NAAQS. The court remanded the rule and instructed the EPA “to repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 2013).

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

EPA is proposing to redesignate the Cincinnati-Hamilton area to attainment of the 1997 annual PM2.5 NAAQS, and is proposing to approve updates to Indiana's maintenance plan and emissions inventory for the area. The rationale for these proposed actions follow.

In accordance with section 179(c) of the CAA, 42 U.S.C. 7509(c) and 40 CFR 51.1004(c), EPA is proposing to determine that the Cincinnati-Hamilton area has attained the 1997 annual PM2.5 NAAQS. This proposed determination is based upon complete, quality-assured, and certified ambient air monitoring data for the 2013-2015 monitoring period that shows this area has monitored attainment of the 1997 PM2.5 NAAQS.

Under EPA's regulations at 40 CFR 50.7, the annual primary and secondary PM2.5 standards are met when the annual arithmetic mean concentration, as determined in accordance with 40 CFR part 50, appendix N, is less than or equal to 15.0 µg/m3 at all relevant monitoring sites in the area.

EPA has reviewed the ambient air quality monitoring data in the Cincinnati-Hamilton area, consistent with the provisions of 40 CFR part 50, appendix T. EPA's review focused on data recorded in the EPA Air Quality System (AQS) database for the Cincinnati-Hamilton area for PM2.5 nonattainment area from 2013-2015.

The Cincinnati-Hamilton area has nine monitors located in Butler (OH), Hamilton (OH), and Campbell (KY) Counties that reported design values from 2013-2015 for PM2.5 that ranged from 9.5 to 11.2 μg/m3 for the 1997 annual standard. The data are summarized shown in Table 1 below.

All monitors in the Cincinnati-Hamilton area recorded complete data in accordance with criteria set forth by EPA in 40 CFR part 50 appendix N, where a complete year of air quality data comprises four calendar quarters, with each quarter containing data from at least 75% capture of the scheduled sampling days. Data available are considered to be sufficient for comparison to the NAAQS if three consecutive complete years of data exist. State certified data for 2013-2015 show the area continues to attain the standard.

EPA has found that the Cincinnati-Hamilton area has attained the 1997 annual PM2.5 NAAQS by the attainment date.

EPA has determined that Indiana has met all currently applicable SIP requirements for purposes of redesignation for the Cincinnati-Hamilton area under section 110 of the CAA (general SIP requirements). EPA is also proposing to find that the Indiana submittal meets all SIP requirements currently applicable for purposes of redesignation under part D of title I of the CAA, in accordance with section 107(d)(3)(E)(v). In addition, we are proposing to find that all applicable requirements of the Indiana SIP for purposes of redesignation have been approved, in accordance with section 107(d)(3)(E)(ii). As discussed below, EPA previously approved Indiana's 2005 emissions inventory as meeting the section 172(c)(3) comprehensive emissions inventory requirement.

In making these proposed determinations, we have ascertained which SIP requirements are applicable for purposes of redesignation, and concluded that the Indiana SIP includes measures meeting those requirements and that they are fully approved under section 110(k) of the CAA.

Section 110(a) of title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a state must have been adopted by the state after reasonable public notice and hearing, and, among other things, must: Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor ambient air quality; provide for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; include provisions for the implementation of part C, Prevention of Significant Deterioration (PSD) and part D, New Source Review (NSR) permit programs; include criteria for stationary source emission control measures, monitoring, and reporting; include provisions for air quality modeling; and provide for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. EPA believes that the requirements linked with a particular nonattainment area's designation 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, we believe that these requirements should not be construed to be applicable requirements for purposes of redesignation.

Further, we believe that the other section 110 elements described above that are not connected with nonattainment plan submissions and not linked with an area's attainment status are also not applicable requirements for purposes of redesignation. A state remains subject to these requirements after an area is redesignated to attainment. We conclude that only the section 110 and part D requirements that are linked with a particular area's designation are the relevant measures which we may consider in evaluating a redesignation request. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996) and (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio 1-hour ozone redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania 1-hour ozone redesignation (66 FR 50399, October 19, 2001).

We previously reviewed the Indiana SIP and have concluded that it meets the general SIP requirements under section 110 of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of Indiana's SIP addressing section 110 requirements (including provisions addressing particulate matter), at 40 CFR 52.776.

On December 5, 2007, September 9, 2008, March 23, 2011, and April 7, 2011 Indiana made submittals addressing “infrastructure SIP” elements required under CAA section 110(a)(2). EPA approved elements of Indiana's submittals on July 13, 2011, at 76 FR 41075.

The requirements of section 110(a)(2), however, are statewide requirements that are not linked to the PM2.5 nonattainment status of the Cincinnati-Hamilton area. Therefore, EPA believes that these SIP elements are not applicable requirements for purposes of review of the state's PM2.5 redesignation request.

EPA has determined that, upon approval of the base year emissions inventories discussed in section III.6 of this rulemaking, the Indiana SIP will meet the SIP requirements for the Cincinnati-Hamilton area applicable for purposes of redesignation under part D of the CAA. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. Subpart 4 of part D, found in section 189 of the CAA, sets forth nonattainment requirements applicable for particulate matter nonattainment areas.

For purposes of evaluating this redesignation request, the applicable section 172 SIP requirements for the Cincinnati-Hamilton area are contained in sections 172(c)(1)-(9). A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).

Under section 172, states with nonattainment areas must submit plans providing for timely attainment and meeting a variety of other requirements. However, pursuant to 40 CFR 51.1004(c), EPA's determination that the area has attained the 1997 annual PM2.5 standard suspends the requirement to submit certain planning SIPs related to attainment, including: Attainment demonstration requirements, the RFP and attainment demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) of the CAA, and the requirement for contingency measures of section 172(c)(9) of the CAA.

As a result, the only remaining requirements under section 172 to be considered are the emissions inventory requirement under section 172(c)(3), and the RACM/RACT requirement of section 172(c)(1) per the Sixth Circuit decision.

Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all RACM as expeditiously as practicable and to provide for attainment of the primary NAAQS. EPA has long interpreted that subpart 1 nonattainment planning requirements, including RACM, are not “applicable for purposes of section 107(d)(3)(E)(ii) and (v) when an area is attaining the NAAQS, and, therefore, need not be approved into the SIP before EPA can redesignate the area. See 76 FR 80258.”

EPA previously redesignated the Cincinnati-Hamilton area to attainment for the 1997 annual PM2.5 standard, predicated in part on a finding that the RACM/RACT requirement (interpreted as reflecting those reasonable measures needed to attain the standard) was not an applicable requirement for purposes of redesignation for areas already meeting the standard.

As previously discussed, on July 14, 2015, the United States Court of Appeals for the Sixth Circuit issued an opinion in Sierra Club v. EPA, vacating EPA's redesignation of the Indiana and Ohio portions of the Cincinnati-Hamilton area to attainment for the 1997 PM2.5 NAAQS on the basis that EPA had not approved subpart 1 RACM for the area into the SIP. The Sixth Circuit vacated the redesignation of the Ohio and Indiana portion of the area based on its view that RACM/RACT must be considered an applicable requirement for designation purposes. Consistent with that ruling, this requirement was satisfied with EPA approval of Indiana's RACM/RACT analysis on August 25, 2016 (81 FR 58402).

No SIP provisions applicable for redesignation of the Cincinnati-Hamilton area are currently disapproved, conditionally approved, or partially approved. Indiana currently has a fully approved SIP for all requirements, as applicable for purposes of redesignation under the Sixth Circuit's Sierra Club decision.

The reasonable further progress (RFP) requirement under section 172(c)(2) is defined as progress that must be made toward attainment. This requirement is not relevant for purposes of the Cincinnati-Hamilton redesignation because the area has monitored attainment of the 1997 annual PM2.5 NAAQS. (General Preamble, 57 FR 13564). See also 40 CFR 51.918. The requirement to submit the section 172(c)(9) contingency measures is similarly not applicable for purposes of redesignation. Id.

Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. Indiana submitted a 2005 base year emissions inventory in the required attainment plan, and also updated the emissions inventory with VOCs and ammonia emissions from 2007. EPA previously approved the 2005 base year emissions inventory on October 19, 2011 (76 FR 64825), and is proposing to approve the emissions inventory for VOCs and ammonia.

Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA approved Indiana's current NSR program on October 7, 1994 (59 FR 51108), but has not approved updates since that time. Nonetheless, since PSD requirements will apply after redesignation, the area need not have a fully-approved NSR program for purposes of redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A 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.” Indiana has demonstrated that the Cincinnati-Hamilton area will be able to maintain the standard without part D NSR in effect; therefore, the state need not have a fully approved part D NSR program prior to approval of the redesignation request. The state's PSD program will become effective in the Cincinnati-Hamilton area upon redesignation to attainment. See rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).

Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the standard. Because attainment has been reached, no additional measures are needed to provide for attainment.

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, we have found that Indiana's SIP meets the applicable requirements of section 110(a)(2) for purposes of redesignation.

Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway projects, conform to the air quality planning goals in the applicable SIPs. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under Title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). State transportation conformity regulations must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability, which EPA promulgated pursuant to CAA requirements.

EPA approved Indiana's transportation conformity SIPs on March 2, 2015 (80 FR 11134). In April 2010, EPA promulgated changes to 40 CFR 51.851, eliminating the requirement for states to maintain a general conformity SIP. EPA confirms that Indiana has met the applicable conformity requirements under section 176.

On January 4, 2013, in NRDC v. EPA, the D.C. Circuit remanded to EPA the “Final Clean Air Fine Particle Implementation Rule” (72 FR 20586, April 25, 2007) and the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” final rule (73 FR 28321, May 16, 2008) (collectively, “1997 PM2.5 Implementation Rule”). 706 F.3d 428 (D.C. Cir. 2013). The Court found that EPA erred in implementing the 1997 PM2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of part D of title I of the CAA, rather than the particulate-matter-specific provisions of subpart 4 of part D of title I.

EPA has longstanding general guidance that interprets the 1990 amendments to the CAA, making recommendations to states for meeting the statutory requirements for SIPs for nonattainment areas. See, “State Implementation Plans; General Preamble for the Implementation of Title I of the Clear Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992) (the “General Preamble”). In the General Preamble, EPA discussed the relationship of subpart 1 and subpart 4 SIP requirements, and pointed out that subpart 1 requirements were, to an extent, “subsumed by, or integrally related to, the more specific PM-10 requirements.” 57 FR 13538 (April 16, 1992). The subpart 1 requirements include, among other things, provisions for attainment demonstrations, RACM, RFP, emissions inventories, and contingency measures.

For the purposes of this redesignation, in order to identify any additional requirements which would apply under subpart 4, we are considering the Cincinnati-Hamilton area to be a “moderate” PM2.5 nonattainment area. Under section 188 of the CAA, all areas designated nonattainment areas under subpart 4 would initially be classified by operation of law as “moderate” nonattainment areas, and would remain moderate nonattainment areas unless and until EPA reclassifies the area as a “serious” nonattainment area. Accordingly, EPA believes that it is appropriate to limit the evaluation of the potential impact of subpart 4 requirements to those that would be applicable to moderate nonattainment areas.

Section 189(a) and (c) of subpart 4 applies to moderate nonattainment areas and includes the following: (1) An approved permit program for construction of new and modified major stationary sources (section 189(a)(1)(A)); (2) an attainment demonstration (section 189(a)(1)(B)); (3) provisions for RACM (section 189(a)(1)(C)); and (4) quantitative milestones demonstrating RFP toward attainment by the applicable attainment date (section 189(c)).

The permit requirements of subpart 4, as contained in section 189(a)(1)(A), refer to and apply the subpart 1 permit provisions requirements of sections 172 and 173 to PM10, without adding to them. Consequently, EPA believes that section 189(a)(1)(A) does not itself impose for redesignation purposes any additional requirements for moderate areas beyond those contained in subpart 1.2 In any event, in the context of redesignation, EPA has long relied on the interpretation that a fully approved nonattainment new source review program is not considered an applicable requirement for redesignation, provided the area can maintain the standard with a PSD program after redesignation. A 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.” See also rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).

With respect to the specific attainment planning requirements under subpart 4,3 when EPA evaluates a redesignation request under subpart 1 and/or 4, any area that is attaining the PM2.5 standard is viewed as having satisfied the attainment planning requirements for these subparts. For redesignations, EPA has for many years interpreted attainment-linked requirements as not applicable for areas attaining the standard. In the General Preamble, EPA stated that:

“General Preamble for the Interpretation of Title I of the CAA Amendments of 1990”; (57 FR 13498, 13564, April 16, 1992).

The General Preamble also explained that

Id.

EPA similarly stated in its September 4, 1992, memorandum entitled “Procedures for Processing Requests to Redesignate Areas to Attainment” (Calcagni memorandum) that, “[t]he requirements for reasonable further progress and other measures needed for attainment will not apply for redesignations because they only have meaning for areas not attaining the standard.”

Elsewhere in this action, EPA proposes to determine that the area has attained the 1997 annual PM2.5 standard. Under its longstanding interpretation, EPA is proposing to determine here that the area meets the attainment-related planning requirements of subparts 1 and 4.

Thus, as explained more fully below, EPA is proposing to conclude that the requirements to submit an attainment demonstration under 189(a)(1)(B), a RACM determination under sections 172(c)(1) and 189(a)(1)(c), a RFP demonstration under section 189(c)(1), and contingency measure requirements under section 172(c)(9) are satisfied for purposes of evaluating the redesignation request.

CAA section 189(e) specifically provides that control requirements for major stationary sources of direct PM10 shall also apply to PM10 precursors from those sources, except where EPA determines that major stationary sources of such precursors “do not contribute significantly to PM10 levels which exceed the standard in the area.”

For a number of reasons, EPA believes that this proposed redesignation of the Cincinnati-Hamilton area is consistent with the Court's decision on this aspect of subpart 4. First, while the Court, citing section 189(e), stated that “for a PM10 area governed by subpart 4, a precursor is `presumptively regulated,' ” the Court expressly declined to decide the specific challenge to EPA's 1997 PM2.5 implementation rule provisions regarding ammonia and VOCs as precursors. The Court had no occasion to reach whether and how it was substantively necessary to regulate any specific precursor in a particular PM2.5 nonattainment area, and did not address what might be necessary for purposes of acting upon a redesignation request.

The Cincinnati-Hamilton area has attained the standard without any specific additional controls of VOCs and ammonia emissions from any sources in the area.

Precursors in subpart 4 are specifically regulated under the provisions of section 189(e), which requires, with important exceptions, control requirements for major stationary sources of PM10 precursors.4 As explained below, we do not believe that any additional controls of ammonia and VOCs are required in the context of this redesignation.

In the General Preamble, EPA discusses its approach to implementing section 189(e). See 57 FR 13538-13542. With regard to precursor regulation under section 189(e), the General Preamble explicitly stated that control of VOCs under other CAA requirements may suffice to relieve a state from the need to adopt precursor controls under section 189(e) (57 FR 13542). EPA proposes to determine that Indiana has met the provisions of section 189(e) with respect to ammonia and VOCs as precursors. This proposed supplemental determination is based on our findings that: (1) The Cincinnati-Hamilton area contains no major stationary sources of ammonia, and (2) existing major stationary sources of VOCs are adequately controlled under other provisions of the CAA regulating the ozone NAAQS.5 In the alternative, EPA proposes to determine that, under the express exception provisions of section 189(e), and in the context of the redesignation of the area, which is attaining the 1997 annual PM2.5 standard, at present ammonia and VOCs precursors from major stationary sources do not cause PM2.5 levels to exceed the 1997 PM2.5 standard in the Cincinnati-Hamilton area. See 57 FR 13539-42.

EPA notes that its 1997 PM2.5 implementation rule provisions in 40 CFR 51.1002 were not directed at evaluation of PM2.5 precursors in the context of redesignation, but at SIP plans and control measures required to bring a nonattainment area into attainment of the 1997 annual PM2.5 NAAQS. By contrast, redesignation to attainment primarily requires the area to have already attained due to permanent and enforceable emission reductions, and to demonstrate that controls in place can continue to maintain the standard. Thus, even if we regard the Court's January 4, 2013, decision as calling for “presumptive regulation” of ammonia and VOCs for PM2.5 under the attainment planning provisions of subpart 4, those provisions do not require additional controls of these precursors for an area that already qualifies for redesignation. Nor does EPA believe that requiring Indiana to address precursors differently than it has already would result in a different redesignation outcome.

Although, as EPA has emphasized, its consideration here of precursor requirements under subpart 4 is in the context of a redesignation to attainment, EPA's existing interpretation of subpart 4 requirements with respect to precursors in attainment plans for PM10 contemplates that states may develop attainment plans that regulate only those precursors that are necessary for purposes of attainment in the area in question, i.e., states may determine that only certain precursors need be regulated for attainment and control purposes.6 Courts have upheld this approach to the requirements of subpart 4 for PM10.7 EPA believes that application of this approach to PM2.5 precursors under subpart 4 is reasonable. Because the Cincinnati-Hamilton area has already attained the 1997 annual PM2.5 NAAQS with its current approach to regulation of PM2.5 precursors, EPA believes that, in the context of this redesignation, there is no need to revisit the attainment control strategy with respect to the treatment of precursors. Even if the Court's decision is construed to impose an obligation to consider additional precursors under subpart 4 in evaluating this redesignation request, it would not affect EPA's approval here of Indiana's request for redesignation of the Cincinnati-Hamilton area. Moreover, the state has shown, and EPA is proposing to determine, that attainment in this area is due to permanent and enforceable emissions reductions on all precursors necessary to provide for continued attainment. It follows that no further control of additional precursors is necessary. Accordingly, EPA does not view the January 4, 2013, Court decision as precluding redesignation of the Cincinnati-Hamilton area to attainment for the 1997 PM2.5 NAAQS at this time.

EPA concludes that the area has met all applicable requirements for purposes of redesignation in accordance with section 107(d)(3)(E)(ii) and (v).

Upon final approval of Indiana's comprehensive VOCs and ammonia emissions inventories, EPA will have fully approved the Indiana SIP for the Cincinnati-Hamilton area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (See page 3 of the Calcagni memorandum; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25413, 25426 (May 12, 2003). Since the passage of the CAA of 1970, Indiana has adopted and submitted, and EPA has fully approved, provisions addressing various required SIP elements under particulate matter standards. In this action, EPA is approving Indiana's VOCs and ammonia comprehensive emissions inventories for the Cincinnati-Hamilton area as meeting the requirement of section 172(c)(3) of the CAA.

EPA believes that Indiana has demonstrated that the observed air quality improvement in the Cincinnati-Hamilton area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIPs, Federal measures, and other state-adopted measures.

In making this demonstration, Indiana has calculated the change in emissions between 2005, one of the years used to designate the area as nonattainment, and 2008, one of the years the Cincinnati-Hamilton area monitored attainment. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that the Cincinnati-Hamilton area and contributing areas have implemented, as discussed below. Additional permanent and enforceable measures and shutdowns after 2008 have also been promulgated and are included below.

The following is a discussion of permanent and enforceable measures that have been implemented in the area:

Reductions in direct emissions of PM2.5 and in emissions of PM2.5 precursors have occurred statewide and in upwind areas as a result of Federal emission control measures, with additional emission reductions expected to occur in the future. Federal emission control measures include the following:

Tier 2 Emission Standards for Vehicles and Gasoline Sulfur Standards. EPA finalized this Federal rule in February 2000. These emission control requirements result in lower NOX and SO2 emissions from new cars and light duty trucks, including sport utility vehicles. Emission standards established under EPA's rules became effective between 2004 and 2009. EPA has estimated that, emissions of NOX from new vehicles have decreased by the following percentages: Passenger cars (light duty vehicles)—77 percent; light duty trucks, minivans, and sports utility vehicles—86 percent; and, larger sports utility vehicles, vans, and heavier trucks—69 to 95 percent. EPA expects fleet-wide average emissions to decline by similar percentages as new vehicles replace older vehicles. The Tier 2 standards also reduced the sulfur content of gasoline by up to 90 percent. VOCs emissions reductions will be approximately 12 percent for passenger cars; 18 percent for smaller SUVs, light trucks, and minivans; and 15 percent for larger SUVs, vans, and heavier trucks.

Heavy-Duty Diesel Engine Rule. EPA issued this rule in July 2000. This rule, which was phased in between 2004 and 2007, includes standards limiting the sulfur content of diesel fuel. This rule is estimated to reduce NOX emissions from diesel trucks and buses by approximately 40 percent. The level of sulfur in highway diesel fuel is also estimated to have dropped by 97 percent by mid-2006 due to this rule.

Non-road Diesel Rule. In May 2004, EPA promulgated a new rule for large non-road diesel engines, such as those used in construction, agriculture, and mining equipment, to be phased in between 2008 and 2014. Prior to 2006, non-road diesel fuel averaged approximately 3,000 parts per million (ppm) sulfur. This rule limited non-road diesel sulfur content to 15 ppm by 2010. It is estimated that compliance with this rule has cut emissions from non-road diesel engines by more than 90%. This rule achieved some emission reductions by 2008 and was fully implemented by 2010. The reduction in fuel sulfur content also yielded an immediate reduction in sulfate particle emissions from all diesel vehicles.

Given the significance of sulfates and nitrates in the Cincinnati-Hamilton area, the area's air quality is strongly affected by regulated emissions from power plants.

NO X SIP Call. On October 27, 1998 (63 FR 57356), EPA issued a NOX SIP Call requiring the District of Columbia and 22 states to reduce emissions of NOX. Affected states were required to comply with Phase I of the SIP Call beginning in 2004, and Phase II beginning in 2007. Emission reductions resulting from regulations developed in response to the NOX SIP Call are permanent and enforceable.

CAIR and CSAPR. EPA proposed CAIR on January 30, 2004, at 69 FR 4566, promulgated CAIR on May 12, 2005, at 70 FR 25162, and promulgated associated Federal Implementation Plans (FIPs) on April 28, 2006, at 71 FR 25328, in order to reduce SO2 and NOX emissions and improve air quality in many areas across the Eastern United States. However, on July 11, 2008, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit or Court) issued its decision to vacate and remand both CAIR and the associated CAIR FIPs in their entirety (North Carolina v. EPA, 531 F.3d 836 (D.C. Cir. 2008)). EPA petitioned for a rehearing, and the Court issued an order remanding CAIR and the CAIR FIPs to EPA without vacatur (North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008)). The Court, thereby, left CAIR in place in order to “temporarily preserve the environmental values covered by CAIR” until EPA replaced it with a rule consistent with the Court's opinion (id. at 1178). The Court directed EPA to “remedy CAIR's flaws” consistent with the July 11, 2008, opinion, but declined to impose a schedule on EPA for completing this action (id).

On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace CAIR and, thus, to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS. CSAPR requires substantial reductions of SO2 and NOX emissions from electric generating units (EGUs) in 28 states in the eastern United States. As a general matter, because CSAPR is CAIR's replacement, emissions reductions associated with CAIR will for most areas be made permanent and enforceable through implementation of CSAPR.

Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on August 21, 2012, the court issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the D.C. Circuit to resolve remaining issues in accordance with the high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014).

On remand, the D.C. Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the CSAPR budgets as to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015) (EME Homer City II). The litigation over CSAPR ultimately delayed implementation of that rule for three years, from January 1, 2012, when CSAPR's cap-and-trade programs were originally scheduled to replace the CAIR cap-and-trade programs, to January 1, 2015. CSAPR's Phase 2 budgets were originally promulgated to begin on January 1, 2014, and began January 1, 2017. As part of the remand, the D.C. Circuit found the Ohio 2014 NOX budget was invalid, stating that based on EPA's own data, Ohio made no contribution to downwind states' nonattainment. On September 7, 2016, EPA promulgated the CSAPR Update Rule (81 FR 74504) which established permanent and enforceable reduction through revised NOX ozone season budgets for Indiana.

Because the emission reduction requirements of CAIR were enforceable through the 2011 control period, and because CSAPR has been promulgated to address the requirements previously addressed by CAIR and will achieve similar or greater reductions once finalized, EPA has determined that the EGU emission reductions that helped lead to attainment in the Cincinnati-Hamilton area can now be considered permanent and enforceable and that the requirement of CAA section 107(d)(3)(E)(iii) has been met.

As a result of a settlement with EPA to resolve violations of the CAA's NSR requirements, American Electrical Power (AEP) permanently retired its Tanners Creek Generating Station (i.e., all four coal-fired EGUs) located in Lawrenceburg Township, Dearborn County on June 1, 2015.

The 2005 emissions inventory for NOX, direct PM2.5, and SO2 has been codified at 40 CFR 52.776. The 2005 inventory represents a year the Cincinnati-Hamilton area was not attaining the standard. The emissions inventory for 2008, one of the years the Cincinnati-Hamilton area monitored attainment of the standard, was grown from the 2005 emissions inventory to represent a base year for maintenance purposes.

Point source emissions information was compiled from the Indiana Department of Environmental Management (IDEM) annual emissions statement database and from EPA's Clean Air Market's acid rain database. These emissions reflect Indiana's NOX emission budgets resulting from EPA's NOX SIP call. The 2008 emissions from EGUs reflect Indiana's emission caps under CAIR.

Area source emissions for the Cincinnati-Hamilton area for 2005 were taken from periodic emissions inventories.8 These 2005 area source emission estimates were extrapolated to 2008. Source growth factors were supplied by the Lake Michigan Air Directors Consortium (LADCO). These growth factors were based on the U.S. Department of Commerce Bureau of Economic Analysis (BEA) growth factors, with some updated local information.

Non-road mobile source emissions were extrapolated from non-road mobile source emissions reported in EPA's 2005 National Emissions Inventory (NEI). Contractors were employed by LADCO to estimate emissions for commercial marine vessels and railroads.

On-road mobile source emissions were calculated using EPA's mobile source emission factor model, MOVES2010, and data extracted from the region's travel-demand model. These emissions were then interpolated as needed to determine the 2008 base year values.

All emissions estimates discussed below were documented in the submittals and appendices to Indiana's redesignation request submittal of August 19, 2016. For these data and additional emissions inventory data, the reader is referred to EPA's digital docket for this rule, http://www.regulations.gov, for docket number EPA-R05-OAR-2016-0513, which includes a digital copy of Indiana's submittal.

Emissions data in tons per year (tpy) for the Cincinnati-Hamilton area are shown in Tables 2, 3, and 4 below.

This action would implement the management measures in Framework Adjustment 56 to the Northeast Multispecies Fishery Management Plan (FMP). The Council deemed the proposed regulations consistent with, and necessary to implement, Framework 56 in an April 13, 2017, letter from Council Chairman John F. Quinn to Regional Administrator John Bullard. Under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), we are required to publish proposed rules for comment after preliminarily determining whether they are consistent with applicable law. The Magnuson-Stevens Act permits us to approve, partially approve, or disapprove measures proposed by the Council based on whether the measures are consistent with the fishery management plan, plan amendment, the Magnuson-Stevens Act and its National Standards, and other applicable law. Otherwise, we must defer to the Council's policy choices. Some regulations authorize the Regional Administrator to make determinations or implement specifications using procedures consistent with the Administrative Procedure Act. The Magnuson-Stevens Act also authorizes the Regional Administrator to put in place regulations that are necessary to ensure the proper administration of FMP goals and objectives. We are seeking comment on the Council's proposed measures in Framework 56 and whether they are consistent with the Magnuson-Stevens Act and its National Standards, and other applicable law. Through Framework 56, the Council proposes to:

• Set 2017 specifications for three shared U.S./Canada stocks (Eastern Georges Bank (GB) cod, Eastern GB haddock, and GB yellowtail flounder);

• Set 2017-2019 specifications for witch flounder;

• Establish an allocation of northern windowpane flounder for the scallop fishery;

• Revise catch thresholds for implementing the scallop fishery's accountability measures for GB yellowtail flounder and northern windowpane flounder; and

• Increase the GB haddock allocation for the midwater trawl fishery.

This action also proposes a number of other measures that are not part of Framework 56, but that may be considered and implemented under our authority specified in the FMP. We are proposing these measures in conjunction with the Framework 56 proposed measures for expediency purposes, and because these measures are related to the catch limits proposed as part of Framework 56. The additional measures proposed in this action are listed below.

• Management measures necessary to implement sector operations plans—This action proposes annual catch entitlements for 19 sectors for fishing year 2017 based on final fishing year 2017 sector rosters.

• Management measures for the common pool fishery—This action proposes to adjust the fishing year 2017 trip limit for witch flounder for the common pool fishery, related to the proposed change to the witch flounder specifications in this action.

• 2017 Accountability measures for windowpane flounder—This action describes accountability measures for northern and southern windowpane flounder that are implemented due to overages of fishing year 2015 catch limits for both stocks. We informed the New England Council of these accountability measures at its September 2016 meeting, and in our September 27, 2016, letter to New England Council Executive Director Thomas Nies, and in our October 7, 2016, letter to Mid-Atlantic Council Executive Director Chris Moore. Given the potential negative economic impact of these measures this year, we are seeking public comment on these type of measures in similar circumstances for the future through this proposed rule.

The Northeast Fisheries Science Center conducted a witch flounder benchmark assessment in 2016. The final report for the benchmark assessment is available on the NEFSC Web site: http://www.nefsc.noaa.gov/publications/crd/crd1703/. The assessment peer review panel rejected the 2016 benchmark assessment model for witch flounder. An important source of uncertainty for this assessment is a major retrospective pattern, which causes the model to underestimate fishing mortality and overestimate stock biomass and recruitment. The assessment was unable to identify the cause of the retrospective pattern. The model had other diagnostic issues in addition to the retrospective pattern that indicated the model was a poor fit to the underlying data. There was also an inconsistency between model-based catchability estimates for the Northeast Fishery Science Center trawl surveys and a recent gear catchability experiment. Biomass estimates from the catchability experiment were about four times higher than the biomass estimates from the model at the end of the time series.

As part of the review process, the peer review panel evaluated the previous witch flounder benchmark assessment, originally conducted in 2008 and updated in 2012 and 2015. The 2008 benchmark assessment and its updates all supported determinations that the witch flounder stock was overfished, and that overfishing was occurring. The 2016 peer review panel updated the 2008 benchmark as part of its review, and ultimately rejected the update because it showed a large, unexplained retrospective patterns similar to the 2016 benchmark assessment model. The panel recommended that none of these assessments should be used as a basis for determining witch flounder stock status.

Given the lack of an assessment model, the peer review panel examined an alternative approach that used swept-area biomass estimates to generate catch advice. The panel did not have sufficient time to use this approach to fully develop alternative status determination criteria. However, the panel provided recommendations to prevent overfishing. The panel also concluded that stock biomass is at historical low levels based on relative biomass estimates from the alternative approach. In addition, the fishery landings and survey catch indicate truncation of age structure and a reduction in the number of old fish in the population. These are both indicators of poor stock condition. We discuss additional details about the 2016 benchmark assessment results, and the proposed 2017-2019 catch limits for witch flounder, in section “4. Catch Limits.”

We approved the existing status determination criteria for witch flounder in Amendment 16 to the Northeast Multispecies FMP (75 FR 18261; April 9, 2010). The existing criteria state that the witch flounder stock is subject to overfishing if the fishing mortality rate (F) is above the F at 40 percent of maximum spawning potential. The witch flounder stock is overfished if spawning stock biomass falls below 1/2 of the target, which is also calculated using F at 40 percent of maximum spawning potential. This definition was based on the benchmark assessments reviewed during the 3rd Groundfish Assessment Review Meeting (GARM III), completed in August 2008, and is the same as the status determination criteria currently in place for most of the Northeast multispecies stocks with age-based assessments.

The Council relied on the advice from the assessment peer review panel and its Scientific and Statistical Committee (SSC) to recommend changing the status determination criteria for witch flounder to unknown. If the status determination criteria are changed to unknown, however, there would be no measurable and objective standards in place against which to judge the status of the witch flounder stock. We propose disapproving the Council's recommendation, and maintaining the existing criteria until a valid assessment model is available to use for setting new catch limits or for generating new criteria. This is new guidance to the Council, provided after it took final action on Framework 56, and is different than the approach the Council has taken, and that we have approved, for recommending status determination criteria for other groundfish stocks with rejected assessments (e.g., GB yellowtail flounder).

Status determination relative to model-based reference points is no longer possible for witch flounder, and we recognize that we do not have fishing mortality and biomass estimates to compare to the existing status determination criteria. In conjunction with the 2017 assessment updates, we will work with the Council to use updated fishery information to develop fishing mortality and biomass estimates and new status determination criteria for this stock.

The witch flounder stock was previously listed as subject to overfishing and overfished. Despite the rejection of the recent stock assessments for stock status purposes and lack of numerical estimates of stock size, there is qualitative information in the assessment that supports continuing to list the status as overfished, but changing the overfishing status from subject to overfishing to unknown. The conclusion that the stock is at historical low levels and other signs of poor stock condition, provide reliable indicators that support this stock remaining listed as overfished. Unlike the overfished status, for which we have reliable indicators of stock condition, we do not have reliable indicators for the overfishing status. While we cannot specify an overfishing status determination criterion for this stock, catch for the last five years has been below the ACL. The lack of reliable indicators, the rejection of the recent stock assessment, and the fact that catch has remained below the ACL, support changing the overfishing status of this stock to unknown.

In the meantime, we are proposing an acceptable biological catch (ABC) as recommended by the Council, and catch data shows this ABC is expected to prevent overfishing. The limits set from this recommendation are based on historic catch rates and other data that are expected to maintain or improve current biomass levels. There is currently a rebuilding plan in place for witch flounder that has an end date of 2017. We were waiting for the results of the 2016 assessment update, as well as the revisions to the National Standard 1 Guidelines, to provide guidance to the Council regarding how to proceed with the rebuilding plan. Prior to the 2016 assessment, and based on the results of the 2015 assessment update, which found that 2014 spawning stock biomass was at 22 percent of the biomass target, and that the stock was not expected to reach the 2017 rebuilding target even in the absence of fishing mortality, we were anticipating that we would need to notify the Council that it was necessary to revise the rebuilding plan. Although a quantitative status determination relative to the 2016 benchmark assessment results is not possible, there are indications that the stock is still in poor condition, and will continue to need conservative management measures to promote stock growth. Based on what we know of the stock's condition, the proposed catch limits are designed to maintain or improve current biomass levels. We are finalizing our guidance regarding any necessary adjustments to the rebuilding plan and will advise the Council on the next steps prior to the fall 2017 groundfish assessment updates. Additionally, at whatever point the stock assessment for witch flounder can provide biomass estimates, these estimates can be used to evaluate progress towards the rebuilding targets.

Eastern GB cod, eastern GB haddock, and GB yellowtail flounder are jointly managed with Canada under the United States/Canada Resource Sharing Understanding. Each year, the Transboundary Management Guidance Committee (TMGC), which is a government-industry committee made up of representatives from the U.S. and Canada, recommends a shared quota for each stock based on the most recent stock information and the TMGC's harvest strategy. The TMGC's harvest strategy for setting catch levels is to maintain a low to neutral risk (less than 50 percent) of exceeding the fishing mortality limit for each stock. The harvest strategy also specifies that when stock conditions are poor, fishing mortality should be further reduced to promote stock rebuilding. The shared quotas are allocated between the U.S. and Canada based on a formula that considers historical catch (10-percent weighting) and the current resource distribution (90-percent weighting).

For GB yellowtail flounder, the SSC also recommends an ABC for the stock, which is typically used to inform the U.S. TMGC's discussions with Canada for the annual shared quota. Although the stock is jointly managed with Canada, and the TMGC recommends annual shared quotas, the United States may not set catch limits that would exceed the SSC's recommendation. The SSC does not recommend ABCs for eastern GB cod and haddock because they are management units of the total GB cod and haddock stocks. The SSC recommends overall ABCs for the total GB cod and haddock stocks. The shared U.S./Canada quota for eastern GB cod and haddock is accounted for in these overall ABCs, and must be consistent with the SSC's recommendation for the total GB stocks.

The Transboundary Resources Assessment Committee (TRAC) conducted assessments for the three transboundary stocks in July 2016, and detailed summaries of these assessments can be found at: http://www.nefsc.noaa.gov/saw/trac/. The TMGC met in September 2016 to recommend shared quotas for 2017 based on the updated assessments, and the Council adopted the TMGC's recommendations in Framework 56. The proposed 2017 shared U.S./Canada quotas, and each country's allocation, are listed in Table 1.

The Council's proposed 2017 U.S. quota for eastern GB haddock would be a 95-percent increase compared to 2016. This increase is due to an increase in the shared U.S./Canada quota, as well as an increase in the amount of the quota that is allocated to the United States. The proposed 2017 U.S. quota for eastern GB cod would also be a small increase from 2016 (6 percent). The Council's proposed U.S. quota for GB yellowtail flounder would be a 23-percent decrease compared to 2016. The decrease is in response to continued poor stock condition and a decrease in the U.S. share of the quota. For a more detailed discussion of the TMGC's 2017 catch advice, see the TMGC's guidance document under the “Resources” tab at: http://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies/index.html.

The regulations implementing the U.S./Canada Resource Sharing Understanding require that any overages of the U.S. quota for eastern GB cod, eastern GB haddock, or GB yellowtail flounder be deducted from the U.S. quota in the following fishing year. If catch information for fishing year 2016 indicates that the U.S. fishery exceeded its quota for any of the shared stocks, we will reduce the respective U.S. quotas for fishing year 2017 in a future management action, as soon as possible. If any fishery that is allocated a portion of the U.S. quota exceeds its allocation and causes an overage of the overall U.S. quota, the overage reduction would only be applied to that fishery's allocation in the following fishing year. This ensures that catch by one component of the fishery does not negatively affect another component of the fishery.

The catch limits proposed by the Council in this action can be found in Tables 2 through 9. A brief summary of how these catch limits were developed is provided below. More details on the proposed catch limits for each groundfish stock can be found in Appendix III to the Framework 56 Environmental Assessment (see ADDRESSES for information on how to get this document).

Last year, Framework 55 (81 FR 26412; May 2, 2016) adopted fishing year 2016-2018 catch limits for all groundfish stocks, except for the U.S./Canada stocks, which must be set every year. As discussed in section “2. Status Determination Criteria for Witch Flounder,” the Northeast Fisheries Science Center conducted a benchmark assessment for witch flounder in December 2016. The Council considered the results of the witch flounder benchmark assessment at its January 2017 meeting, and included revised catch limits in Framework 56. This rule proposes to implement fishing year 2017-2019 catch limits for witch flounder based on the recent stock assessment and consistent with the recommendations of the Council's SSC. This rule also proposes to incorporate shared U.S./Canada quotas (see section “3. Fishing Year 2017 Shared U.S./Canada Quotas). For most stocks, other than GB cod, GB haddock, GB yellowtail flounder, and witch flounder, catch limits included in this action are identical to those previously implemented in Framework 55, and became effective on May 1, 2017. There are changes to the northern windowpane flounder catch limits related to the proposed allocation of northern windowpane flounder to the scallop fishery (see section “5. Allocation of Northern Windowpane Flounder to the Scallop Fishery”). There are also minor changes to the catch limits for GB winter flounder and white hake due to revised estimates of Canadian catch. Table 2 details the percent change in the 2017 catch limit compared to fishing year 2016.

The overfishing limit (OFL) serves as the maximum amount of fish that can be caught in a year without resulting in overfishing. The OFL for each stock is calculated using the estimated stock size and FMSY (i.e., the fishing mortality rate that, if applied over the long term, would result in maximum sustainable yield). The OFL does not account for scientific uncertainty, so the SSC typically recommends an ABC that is lower than the OFL in order to account for this uncertainty. Usually, the greater the amount of scientific uncertainty, the lower the ABC is set compared to the OFL. For GB cod, GB haddock, and GB yellowtail flounder, the total ABC is then reduced by the amount of the Canadian quota (see Table 3 for the Canadian share of these stocks). Additionally, although GB winter flounder, white hake, and Atlantic halibut are not jointly managed with Canada, there is some Canadian catch of these stocks. Because the total ABC must account for all sources of fishing mortality, expected Canadian catch of GB winter flounder (87 mt), white hake (42 mt), and Atlantic halibut (34 mt) is deducted from the total ABC. The U.S. ABC is the amount available to the U.S. fishery after accounting for Canadian catch. Additional details about the Council's proposed ABC for witch flounder is provided below.

As discussed under section “2. Status Determination Criteria for Witch Flounder,” both the 2016 witch flounder benchmark assessment and the previous benchmark assessment were rejected, and could not be used as a basis for catch advice. In the absence of an assessment model, the peer review panel recommended catch advice for witch flounder based on a swept-area biomass approach. The swept-area biomass approach is entirely different from the age-based assessment approaches used to generate past biomass estimates and catch limits. The swept-area biomass approach indicates that biomass declined from the 1960s to the mid-1990s, increased in the early 2000s, and declined until 2005. Since 2005, stock size appears to have been low relative to the 1960s, but relatively stable. The swept-area biomass approach generates an ABC of 878 mt by applying the mean exploitation rate from 2007 to 2015 to the 3-year moving average of exploitable biomass estimates from the spring and fall NOAA Fisheries trawl surveys.

The SSC met on January 17, 2017, to review the results of the recent benchmark assessment. The SSC's final report for its witch flounder ABC recommendation is available here: http://s3.amazonaws.com/nefmc.org/1_SSC_response_witchflounder_Jan2016_FINAL.pdf. The SSC agreed that the swept-area biomass approach results were the best available, and based on this approach, recommended an OFL of unknown, and an ABC of 878 mt. The Council discussed the SSC's recommendations on January 25, 2017, and recommended a constant ABC of 878 mt for fishing years 2017-2019. The 878 mt ABC recommendation represents a 91-percent increase over the 2016 ABC (460 mt). The higher catch limit recommendation should not be viewed as a simple increase. Rather, the swept-area biomass approach is entirely different from the age-based assessment approaches used to generate past catch limits.

The Northeast Fisheries Science center will conduct an assessment update for witch flounder in fall of 2017, in time to re-specify witch flounder catch limits for fishing year 2018, if necessary. Updated catch and assessment information may provide support for adjusting the ABC for future fishing years. Thus, although the Council proposes a 3-year constant ABC, the catch limits adopted may only be in place for 1 year.

The U.S. ABC for each stock is divided among the various fishery components to account for all sources of fishing mortality. First, an estimate of catch expected from state waters and the “other” sub-component (i.e., non-groundfish fisheries) is deducted from the U.S. ABC. These sub-components are not subject to specific catch controls by the FMP. As a result, the state waters and other sub-components are not allocations, and these components of the fishery are not subject to accountability measures if the catch limits are exceeded. After the state and other sub-components are deducted, the remaining portion of the U.S. ABC is distributed to the fishery components that receive an allocation for the stock. Components of the fishery that receive an allocation are subject to accountability measures if they exceed their respective catch limit during the fishing year.

Once the U.S. ABC is divided, sub-annual catch limits (sub-ACLs) are set by reducing the amount of the ABC distributed to each component of the fishery to account for management uncertainty. Management uncertainty is the likelihood that management measures will result in a level of catch greater than expected. For each stock and fishery component, management uncertainty is estimated using the following criteria: Enforceability and precision of management measures, adequacy of catch monitoring, latent effort, and catch of groundfish in non-groundfish fisheries. The total ACL is the sum of all of the sub-ACLs and ACL sub-components, and is the catch limit for a particular year after accounting for both scientific and management uncertainty. Landings and discards from all fisheries (commercial and recreational groundfish fisheries, state waters, and non-groundfish fisheries) are counted against the ACL for each stock. Tables 3 to 5 summarize the proposed catch limits for fishing years 2017, 2018, and 2019.

For stocks allocated to sectors, the commercial groundfish sub-ACL is further divided into the non-sector (common pool) sub-ACL and the sector sub-ACL, based on the total vessel enrollment in sectors and the cumulative Potential Sector Contributions (PSCs) associated with those sectors. The sector and common pool sub-ACLs proposed in this action are based on fishing year 2017 PSCs and finalized fishing year 2017 sector rosters. Sector specific allocations for each stock can be found in this rule in section “8. Sector Measures for Fishing Year 2017.”

The common pool sub-ACL for each stock (except for SNE/MA winter flounder, northern windowpane flounder, southern windowpane flounder, ocean pout, Atlantic wolffish, and Atlantic halibut) is further divided into trimester total allowable catches (TACs). The distribution of the common pool sub-ACLs into trimesters was adopted in Amendment 16 to the FMP. Once we project that 90 percent of the trimester TAC is caught for a stock, the trimester TAC area for that stock is closed for the remainder of the trimester to all common pool vessels fishing with gear capable of catching the pertinent stock. Any uncaught portion of the TAC in Trimester 1 or Trimester 2 will be carried forward to the next trimester. Overages of the Trimester 1 or Trimester 2 TAC will be deducted from the Trimester 3 TAC. Any overages of the total common pool sub-ACL will be deducted from the following fishing year's common pool sub-ACL for that stock. Uncaught portions of the Trimester 3 TAC may not be carried over into the following fishing year. Table 6 summarizes the common pool trimester TACs proposed in this action.

Incidental catch TACs are also specified for certain stocks of concern (i.e., stocks that are overfished or subject to overfishing) for common pool vessels fishing in the special management programs (i.e., special access programs (SAPs) and the Regular B Days-at-Sea (DAS) Program), in order to limit the catch of these stocks under each program. Tables 7 through 9 summarize the proposed Incidental Catch TACs for each stock and the distribution of these TACs to each special management program.

Overall fishing effort by both common pool and sector vessels in the Closed Area I Hook Gear Haddock SAP is controlled by an overall TAC for GB haddock, which is the target species for this SAP. The maximum amount of GB haddock that may be caught in any fishing year is based on the amount allocated to this SAP for the 2004 fishing year (1,130 mt), and adjusted according to the growth or decline of the western GB haddock biomass in relationship to its size in 2004. Based on this formula, the Council's proposed GB Haddock TAC for this SAP is 10,709 mt for fishing year 2017. Once this overall TAC is caught, the Closed Area I Hook Gear Haddock SAP will be closed to all groundfish vessels for the remainder of the fishing year.

Framework 53 established a mechanism for setting default catch limits in the event a future management action is delayed. If final catch limits have not been implemented by the start of a fishing year on May 1, then default catch limits are set at 35 percent of the previous year's catch limit, effective until July 31 of that fishing year. If this value exceeds the Council's recommendation for the upcoming fishing year, the default catch limits will be reduced to an amount equal to the Council's recommendation for the upcoming fishing year. Because groundfish vessels are not able to fish if final catch limits have not been implemented, this measure was established to prevent disruption to the groundfish fishery. Additional description of the default catch limit mechanism is provided in the preamble to the Framework 53 final rule (80 FR 25110; May 1, 2015). The default catch limits for 2019 were presented in the Framework 55 Final Rule (81 FR 26412; May 2, 2016) and are not repeated here.