Please refer to Docket ID NRC-2011-0012 when contacting the NRC about the availability of information regarding this document. You may access information related to this document, which the NRC possesses and is publicly-available, by the following methods:

• Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for Docket ID NRC-2011-0012.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may access publicly-available documents online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html . To begin the search, select “ ADAMS Public Documents ” and then select “ Begin Web-based ADAMS Search .” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-(800) 397-4209, (301) 415-4737, or by email to pdr.resource@nrc.gov . The ADAMS accession number for each document referenced in this document is provided the first time that a document is referenced.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Please include Docket ID NRC-2011-0012 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.

The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed. The NRC posts all comment submissions at http://www.regulations.gov as well as entering the comment submissions into ADAMS, and the NRC does not edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information in their comment submissions that they do not want to be publicly disclosed. Your request should state that the NRC will not edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.

The Commission's licensing requirements for the disposal of LLW in near-surface [approximately the uppermost 30 meters (100 feet)] facilities reside in Title 10 of the Code of Federal Regulations (10 CFR) Part 61, “Licensing Requirements for Land Disposal of Radioactive Waste.” These regulations were published in the Federal Register on December 27, 1982 (47 FR 57446). The rule applies to any near-surface LLW disposal technology, including shallow-land burial, engineered land disposal methods such as below-ground vaults, earth-mounded concrete bunkers, and augured holes. The regulations emphasize an integrated systems approach to the disposal of commercial LLW, including site selection, disposal facility design and operation, minimum waste form requirements, and disposal facility closure. To lessen the burden on society over the long periods of time contemplated for the control of the radioactive material, and thus lessen reliance on institutional controls, 10 CFR Part 61 emphasizes passive rather than active systems to limit and retard releases to the environment.

Development of the 10 CFR Part 61 regulation in the early 1980s was based on several assumptions as to the types of wastes likely to go into a commercial LLW disposal facility. To better understand what the likely inventory of wastes available for disposal might be, the NRC conducted a survey of existing LLW generators. The survey, documented in Chapter 3 of NUREG-0782, Draft 10 CFR Part 61 Environmental Impact Statement (DEIS), “Licensing Requirements for Land Disposal of Radioactive Waste” (ADAMS Accession No. ML052590347)—revealed that there were about 37 distinct commercial waste streams consisting of about 25 radionuclides of potential regulatory interest. The specific waste streams in question were representative of the types of commercial LLW being generated at the time. Waste streams associated with the U.S. Department of Energy's (DOE's) nuclear defense complex were not considered as part of the survey, since disposal of those wastes, at that time, was to be conducted at the DOE-operated sites. Over the last several years there have been a number of developments that have called into question some of the key assumptions made in connection with the earlier 10 CFR Part 61 DEIS, including:

• The emergence of potential LLW streams that were not considered in the original 10 CFR Part 61 rulemaking, including large quantities of depleted uranium (DU), and possibly incidental wastes associated with the commercial reprocessing of spent nuclear fuel;

• The DOE's increasing use of commercial facilities for the disposal of defense-related LLW streams; and

• Extensive international operational experience in the management of LLW and intermediate-level radioactive wastes that did not exist at the time 10 CFR Part 61 was promulgated.

The developments previously described will need to be considered if the staff undertakes a revision of 10 CFR Part 61. Waste from the Nation's defense programs has been managed by DOE and is not subject to regulation under 10 CFR Part 61. Instead, DOE has relied on Order 435.1 to specify the disposal requirements for this waste. The current version of this Order has been in place for about 11 years and applies to management of radioactive waste within the DOE complex. Like 10 CFR Part 61, Order 435.1 places a heavy emphasis on performance assessment as part of its radioactive waste management decision-making. The DOE recently started a comprehensive revision of Order 435.1, which it plans to complete sometime in 2012.

In a March 18, 2009, staff requirements memorandum (SRM) SRM-SECY-08-0147, 1 the Commission directed the NRC staff to proceed with a 10 CFR Part 61 rulemaking to specify a requirement for a site-specific analysis for the disposal of large quantities of DU including the technical requirements for such an analysis, and to develop a guidance document for public comment that outlines the parameters and assumptions to be used in conducting such site-specific analyses. In a second SRM, SRM SECY-10-0043, 2 the staff was also directed to include blended LLW streams as part of this rulemaking initiative. Following the solicitation of early public input in 2009 (74 FR 30175; Docket ID NRC-2009-0257), the NRC staff subsequently developed a technical basis document for the rulemaking amendment (ADAMS Accession No. ML111040419), shared it with the NRC Agreement States, and proceeded to develop a proposed rulemaking package. In connection with the rulemaking effort, the NRC staff also proposed a two-tier approach for evaluating compliance with 10 CFR Part 61's overall system performance objectives: An assessment that extends to 20,000 years as well as an assessment that extends beyond 20,000 years to the time of peak dose. In May 2011, the NRC staff sought public feedback (76 FR 24831) on the preliminary proposed rulemaking language (ADAMS Accession No. ML111150205), as well as the technical basis for the time of compliance recommendation (ADAMS Accession No. ML111030586) after these materials were made publicly available. (See http://www.nrc.gov/about-nrc/regulatory/rulemaking/potential-rulemaking/uw-streams.html .) Later in 2011, the staff also briefed the Advisory Committee on Reactor Safeguards (ACRS) on the preliminary proposed rulemaking language for which a Committee Letter Report dated September 22, 2011 (ADAMS Accession No. ML11256A191) was issued to the Commission.

More recently, in a SRM, dated January 19, 2012, 3 the Commission provided additional direction to the NRC staff concerning this particular rulemaking. Specifically, the NRC staff was directed to amend the existing draft rulemaking to include the following:

• Allowing licensees the flexibility to use ICRP dose methodologies in a site-specific performance assessment for the disposal of all radioactive waste.

• A two tiered approach that establishes a compliance period that covers the reasonably foreseeable future and a longer period of performance that is not a priori and is established to evaluate the performance of the site over longer timeframes. The period of performance is developed based on the candidate site characteristics (waste package, waste form, disposal technology, cover technology and geo-hydrology) and the peak dose to a designated receptor

• Flexibility for disposal facilities to establish site-specific waste acceptance criteria based on the results of the site's performance assessment and intruder assessment.

• A compatibility category for the elements of the revised rule that establish the requirements for site-specific performance assessments and the development of the site-specific waste acceptance criteria that ensures alignment between the States and Federal government on safety fundamentals, while providing the States with the flexibility to determine how to implement these safety requirements.

In the January 2012 SRM, the Commission also directed the NRC staff to engage stakeholders and other members of the interested public to discuss and finalize the NRC's approach to address the matters raised by the Commission. The Commission also noted that it would reserve judgment on the regulatory form these elements should take in any final rule following NRC staff evaluation of stakeholder input. Accordingly, the NRC staff plans to hold a series of three public meetings in March, May, and July 2012 on the proposed revisions to 10 CFR Part 61. After completion of the public outreach campaign, the staff will prepare an amended technical basis document and commence with the rulemaking. Changes will also need to be made to any 10 CFR Part 61 performance assessment companion guidance document to address the recent June 2012 direction. The completion date for submittal of a revised rulemaking package is currently July 19, 2013.

The Commission also directed the staff to gather information on the options presented in SECY-10-0165, dated December 27, 2010, 4 concerning the staff's approach to a risk-informing 10 CFR Part 61. Previously, the NRC staff sponsored an earlier workshop on SECY-10-0165, on March 4, 2011 (76 FR 10810). The staff intends to seek the public's views on earlier stakeholder comments received as well as other proposals for a risk-informed revision of 10 CFR Part 61.

The NRC staff has also conducted other activities related to 10 CFR Part 61. These include revisions to the Commission's LLW Volume Reduction Policy Statement (76 FR 50500; August 15, 2011); and the Concentration Averaging Branch Technical Position (76 FR 4739; January 26, 2011). Through the course of those stakeholder interactions, the staff received comments and suggestions relevant to the more comprehensive revision of 10 CFR Part 61. For example, stakeholders have recommended changes that would lengthen the period of institutional controls and allow a site-specific intruder assessment. Some stakeholders have questioned basic fundamental tenets of 10 CFR Part 61 including the need to protect the inadvertent intruder. The staff intends to seek the public's views on these and other stakeholder comments.

The purpose of this public meeting is to gather information from stakeholders and other interested members of the public concerning the rulemaking proposals identified by the Commission in its January 2012 SRM. This overall approach is consistent with NRC's openness policy and is consistent with the type of public outreach initiative originally used by the NRC staff to develop 10 CFR Part 61. The March 2, 2012, public meeting will be organized into three parts. In the first part, the NRC staff will seek public feedback on the pros and cons of the four technical issues specifically identified by the Commission in its January 2012 SRM. In the second part, the staff will identify other technical issues identified by stakeholders bearing on the 10 CFR Part 61 rule and seek public feedback on the merits of these (additional) changes that have been suggested in connection with other on-going LLW regulatory initiatives. In the third session, the staff will seek public feedback on the options proposed in SECY-10-0165 and accept other proposals for a comprehensive revision of 10 CFR Part 61.

The public meeting will be held on March 2, 2012, from 8 a.m. to 4 p.m. at the Marriott Renaissance Phoenix Downtown Hotel, 50 East Adams Street, Phoenix, Arizona 85004. Pre-registration for this meeting is not necessary. Members of the public choosing to participate in this meeting remotely can do so in one of two ways—online, or via a telephone (audio) connection. Instructions for remote participation in this meeting follow.

Interested members of the public can also participate in this meeting via webinar. The webinar meeting registration link can be found at: https://www1.gotomeeting.com/register/191710105 . After registering, instructions for joining the webinar (including a teleconference number and pass code) will be provided via email. All participants will be in “listen-only” mode during the presentation. Participants will have a chance to pose questions either orally after the presentation or in writing during the webinar.

To receive a call back, provide your phone number when you join the meeting, or call the following number and enter the access code:

Call-in toll-free number (US/Canada): 1-888-942-8392, access code: 8568781.

The agenda for the public meeting will be noticed no fewer than ten (10) days prior to the meeting on the NRC's Public Meeting Schedule Web site at http://www.nrc.gov/public-involve/public-meetings/index.cfm . Subsequent public meetings are tentatively planned for Dallas, Texas, on May 15, 2012 and late July in Rockville, Maryland.

Comments may be sent to the address listed in the ADDRESSES section of this document.

Questions about participation in the public meetings should be directed to the points of contact listed in the FOR FURTHER INFORMATION CONTACT section of this document.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0145; Directorate Identifier 2011-NM-066-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On September 4, 2003, we issued AD 2003-18-10, amendment 39-13301 (68 FR 53503, September 11, 2003), for certain The Boeing Company Model 767-200, -300, -300F, and -400ER series airplanes. That AD requires revising Subsection B, Section 9, of Boeing 767 Maintenance Planning Data (MPD) Document D622T001-9, titled “Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs),” to incorporate Revision October 2002; and Appendix B of Boeing 767 MPD Document D622T001, Revision December 2002. That AD resulted from analysis of data that identified specific initial inspection thresholds and repetitive inspection intervals for certain principal structural elements (PSEs) to be added to the airworthiness limitation instructions (ALI). We issued that AD to ensure that fatigue cracking of various PSEs is detected and corrected; such fatigue cracking could adversely affect the structural integrity of these airplanes.

Since we issued AD 2003-18-10 (68 FR 53503, September 11, 2003), a re-evaluation of certain doors and flaps was done based on their fatigue-critical nature. These items were classified as PSEs and have been included in the revised MPD Document.

We reviewed Subsection B, Airworthiness Limitations—Structural Inspections, of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D622T001-9, Revision July 2011, of the Boeing 767 Maintenance Planning Data (MPD) Document. This service information describes procedures for an additional critical fatigue inspection.

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

This proposed AD would retain certain requirements of AD 2003-18-10 (68 FR 53503, September 11, 2003). This proposed AD would revise the Airworthiness Limitations Section of the Maintenance Planning Data (MPD) Document 767 Airworthiness Limitations Instructions (ALI) which adds a critical fatigue inspection and revises the applicability to include additional airplane line numbers.

This proposed AD would retain certain requirements of AD 2003-18-10 (68 FR 53503, September 11, 2003). Since AD 2003-18-10 was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, the corresponding paragraph identifiers have changed in this proposed AD, as listed in the following table:

We estimate that this proposed AD affects 417 airplanes of U.S. registry.

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0147; Directorate Identifier 2011-NM-067-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On September 19, 2002, we issued AD 2002-19-11, Amendment 39-12891 (67 FR 61478, October 1, 2002), for certain Model 767-200 and -300 series airplanes powered by Pratt & Whitney JT9D series engines. The existing AD requires replacement of the existing deactivation pin, aft cascade pin bushing, and pin insert on each thrust reverser half, with new, improved components. The existing AD resulted from reports that the pin insert for the deactivation pin was not able to withstand the load of a powered deployment and could fail on some airplanes. We issued that AD to prevent failure of the thrust reverser deactivation pins, which could fail to prevent a deployment of a deactivated thrust reverser in flight and consequent reduced controllability of the airplane.

Since we issued AD 2002-19-11, Amendment 39-12891 (67 FR 61478, October 1, 2002), we received reports indicating that certain airplanes require installation of a new bushing and pin with increased load carrying capability, and all airplanes powered by Pratt & Whitney JT9D series engines require installation of a new bracket for stowing the deactivation pin. Specifically, we have been advised that the part number (P/N) 315T3222-3 bushing could not be replaced by the P/N 315T3222-10 bushing due to inadequate edge margin on the early thrust reverser configuration.

AD 2002-19-11, Amendment 39-12891 (67 FR 61478, October 1, 2002), refers to Boeing Alert Service Bulletin 767-78A0089, Revision 1, dated May 30, 2002, as the appropriate source of service information for the required actions. Boeing has since revised this service information. We reviewed Boeing Alert Service Bulletin 767-78A0089, Revision 5, dated June 9, 2009, which identifies additional work that needs to be performed on specifically configured Group 2 airplanes for doing a dye penetrant inspection for cracking of the rivet holes of the bushing plate; repair or replacement of the bushing plate with a new or serviceable bushing plate if necessary; and replacing any existing P/N 315T3222-3 or P/N 315T3222-10 bushing and deactivation pin with a new P/N 315T3221-1 bushing and new P/N 315T1604-6 deactivation pin to provide adequate edge margin. Boeing Alert Service Bulletin 767-78A0089, Revision 5, dated June 9, 2009, also identifies additional work for installing a new or serviceable stowage bracket for the deactivation pins on all airplanes powered by Pratt & Whitney JT9D series engines.

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

This proposed AD would retain all requirements of AD 2002-19-11, Amendment 39-12891 (67 FR 61478, October 1, 2002). This proposed AD would also require accomplishing the actions specified in the service information described previously.

Since AD 2002-19-11, Amendment 39-12891 (67 FR 61478, October 1, 2002), was issued, the AD format has been revised, and certain paragraphs have been rearranged. As a result, paragraphs (a) and (b) of AD 2002-19-11 Amendment 39-12891 (67 FR 61478, October 1, 2002), have been re-identified as paragraphs (g) and (h) in this proposed AD.

We estimate that this proposed AD affects 23 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions (repair or replacement of bushing plate) specified in this proposed AD.

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

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

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

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0144; Directorate Identifier 2011-NM-152-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2011-0124, dated June 30, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Airbus has issued Mandatory Service Bulletins A300-28-0089, A300-28-6106, and A310-28-2173, all including Inspection Findings—Reporting Sheet, all Revision 01, all dated April 15, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

Based on the service information, we estimate that this proposed AD would affect about 221 products of U.S. registry. We also estimate that it would take up to 12 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $225,420, or $1,020 per product.

In addition, we estimate that any necessary follow-on actions would take about 1 work-hour. We have no way of determining the number of products that may need these actions.

We have received no definitive data that would enable us to provide cost estimates for certain parts required for the on-condition actions (replacing fuel pump canister hood halves) specified in this proposed AD.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0149; Directorate Identifier 2011-NM-255-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We received a report indicating that, on the affected airplanes, scribe lines may have been inadvertently made in the overlapped skin in lap joints if a sharp tool was used to remove the maskant from the aluminum skin panels during assembly of the affected lap joints. During fatigue testing of Model 777 airplanes, lap joint cracks were found, and analysis indicated that those cracks initiated at scribe lines that were made during production when maskant was removed from the affected skin panels. Such fatigue cracking, if not detected and corrected, could grow large and cause sudden decompression and the inability to sustain limit flight and pressure loads.

We reviewed Boeing Alert Service Bulletin 777-53A0043, dated November 9, 2011. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for Docket No. FAA-2012-0149.

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

This proposed AD would require repetitive external phased-array ultrasonic inspections to detect cracks of the affected fuselage skin lap splices in Sections 41, 43, and 44, as applicable, and repair if necessary.

Boeing Alert Service Bulletin 777-53A0043, dated November 9, 2011, specifies that one way to install a repair is to use “other approved methods.” However, this proposed AD requires that the repair be done using a method approved in accordance with the procedures specified in paragraph (i) of this proposed AD.

We estimate that this proposed AD affects 46 airplanes of U.S. registry.

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

We have received no definitive data that would enable us to provide cost estimates for the on-condition repair.

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

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

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

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

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2012-0146; Directorate Identifier 2011-NM-115-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

Transport Canada Civil Aviation (TCCA), has issued Canadian Airworthiness Directive CF-2011-11, dated May 25, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Bombardier, Inc. has issued Service Bulletin 605-24-005, dated January 31, 2011; and Bombardier Service Bulletin 605-35-001, Revision 01, dated February 28, 2011. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

This proposed AD differs from the MCAI and/or service information as follows: The MCAI and service information do not specify corrective actions if damaged wiring is found; this proposed AD requires repairing or replacing any damaged wiring. This proposed AD also includes serial numbers (S/N) 5824 and subsequent in the applicability. Those airplanes are included in paragraph (j) of the proposed AD, which prohibits the installation of certain regulators.

Based on the service information, we estimate that this proposed AD would affect about 72 products of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $6,120, or $85 per product.

In addition, we estimate that certain follow-on actions (wiring protection) would take about 2 work-hours and require parts costing $0, for a cost of $170 per product. We have no way of determining the number of products that may need these actions.

We have received no definitive data that would enable us to provide cost estimates for certain other on-condition actions (repairing or replacing damaged wiring) specified in this proposed AD.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

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

The notice of proposed rulemaking that is the subject of these corrections are under section 6038 of the Internal Revenue Code.

As published, the notice of proposed rulemaking (REG-130302-10), contains errors which may prove to be misleading and are in need of clarification.

Accordingly, the publication of the notice of proposed rulemaking (REG-130302-10), which was the subject of FR Doc. 2011-32254, is corrected as follows:

1. On page 78594, column 2 in the preamble, under the caption FOR FURTHER INFORMATION CONTACT , the language “Concerning the proposed regulations, Joseph S. Henderson, (202) 622-3880; concerning submission of comments and/or requests for a hearing, Richard.A.Hurst@irscounsel.treas.gov , (202) 622-7180 (not a toll-free numbers).” Is corrected to read “Concerning the proposed regulations, Joseph S. Henderson, (202) 622-3880; concerning submission of comments and/or requests for a hearing, Oluwafunmilayo (Funmi) Taylor, at (202) 622-7180 (not toll-free numbers).”.

2. On page 78596, column 1, in the preamble, under the caption “Explanation of Provisions”, paragraph B. 2., line three, the language “or executor is a bank, financial” is corrected to read “is a bank, financial”.

3. On page 78596, column 1, in the preamble, under the caption “Explanation of Provisions”, paragraph B.2., the fourth line from the bottom of the first full paragraph, the language “under sections 671 through 679 and the” is corrected to read “under sections 671 through 678 and the”.

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.

On July 8, 2011, the West Virginia Department of Environmental Protection submitted a SIP revision pertaining to amendments of Legislative Rule 45CSR8— Ambient Air Quality Standards. EPA had approved a previous revision of Legislative Rule 45CSR8 on February 10, 2009 (74 FR 6552).

Amendments to 45CSR8 consist of revisions to section 45-8-1—General, subpart 1.6—Former Rules, in which the effective and filed dates were revised to represent the most recent changes to the NAAQS and the addition of subpart 1.5—Incorporation by Reference to section 45-8-1 to incorporate by reference 40 CFR part 50—National Primary and Secondary Ambient Air Quality Standards and 40 CFR part 53—Ambient Air Monitoring Reference and Equivalent Methods, effective June 1, 2010. The previous version of 45CSR8 merely stated EPA standards for the NAAQS and the revised version incorporates by reference the NAAQS and monitoring reference and equivalency methods. Also, other amendments to 45CSR8 include the addition of section 45-8-3—Adoption of Standards and the removal of section 45-8-2—Anti-Degradation Policy, section 45-8-4—Ambient Air Quality Standards, section 45-8-5—Methods of Measurement, and section 45-8-6—Reference Conditions.

EPA is proposing to approve the West Virginia SIP revision regarding the incorporation by reference of the NAAQS for sulfur dioxide, particulate matter, carbon monoxide, ozone, nitrogen dioxide, and lead into 45CSR8—Ambient Air Quality Standards, which was submitted on July 12, 2011. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

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

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

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

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

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

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

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

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

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

In addition, the proposed approval of the West Virginia SIP revision regarding the incorporation by reference of the NAAQS for sulfur dioxide, particulate matter, carbon monoxide, ozone, nitrogen dioxide, and lead into 45CSR8-Ambient Air Quality Standards, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

When submitting comments, remember to:

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

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

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

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

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

6. Provide specific examples to illustrate your concerns, and suggest alternatives.

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

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

EPA is proposing to approve into the Wisconsin SIP several new and revised VOC rules which set out RACT requirements for categories of VOC sources in two ozone nonattainment areas. These rules correspond to and are consistent with the source categories and control recommendations in the CTGs issued by EPA in 2006 and 2007, as well as EPA RACT guidance for earlier CTGs and source categories not covered by a CTG. Wisconsin adopted new or revised rules for industrial cleaning solvents, flat wood paneling coatings, flexible packaging printing materials, lithographic printing materials, letterpress printing materials, paper, film and foil coatings, metal furniture coatings, large appliance coatings, industrial wastewater collection and treatment operations, and reactor processes and distillation operations in the synthetic organic chemical manufacturing industry (SOCMI).

The primary purpose of these rules is to satisfy the requirement in section 182(b) of the Act that VOC RACT rules be adopted in nonattainment areas for the source categories covered by the CTG documents issued by EPA in 2006 and 2007. These rule revisions also include previously required SOCMI air oxidation, distillation and reactor regulations as well as an industrial wastewater rule that is required because industrial wastewater is a major non-CTG category for which RACT rules are required. The Milwaukee-Racine and Sheboygan 8-hour ozone nonattainment areas are classified as moderate nonattainment for the 8-hour ozone national ambient air quality standard. See 40 CFR 81.31 and 81.314. According to EPA policy, Wisconsin does not need to adopt rules for the source categories covered by the CTGs issued on September 30, 2008, because it submitted a complete 8-hour ozone redesignation request (on September 11, 2009) before September 30, 2009, the date upon which rules consistent with these CTGs were required (according to section 182(b)) to be adopted and submitted as SIP revisions.

Section 182(b)(2) of the Act requires that, for areas classified as moderate or above for ozone nonattainment, states must revise their SIPs to adopt RACT requirements for VOC sources that are covered by CTGs. RACT is defined as the lowest emissions limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility (44 FR 53762; September 17, 1979). CTGs are documents issued by EPA to provide states with the EPA's recommendation on how to control the emissions of VOC from a specific type of product or source category in an ozone nonattainment area. A CTG provides information on determining RACT for a source category, including recommendations on control options and enforcement provisions for the category.

EPA has reviewed Wisconsin's new and revised VOC rules for the source categories covered by the 2006 and 2007 CTGs, as well as corrections to rules that were required to be submitted to EPA on September 15, 2006, and proposes to find that these rules are consistent with the control measures, definitions, recordkeeping and test methods in these CTGs and applicable EPA RACT guidance at www.epa.gov/ttn/naaqs/ozone/ozonetech/#ref . Therefore EPA is proposing to approve these rules as meeting the RACT requirements in the Act. A brief discussion of these rules follows.

A reference to digital printing has been added to Wisconsin's printing regulations. This definition of “digital printing” is approvable because it is a necessary update to the definition and accurately describes digital printing.

This new rule applies to sources that have potential VOC emissions greater than or equal to 100 tons per year from industrial wastewater operations and any other non-CTG source category without a final CTG, such as batch operations. The VOC emissions from industrial wastewater collection and treatment processes evaporate from the waste stream when exposed to the ambient air. Consequently, the VOC RACT requirements consist of implementing technologies and work practice standards that combine to substantially suppress the exposure of the VOC-laden waste stream to the ambient air. More specifically, the requirements include:

(1) Oil-water separators must be provided with either a floating cover equipped with seals or a fixed cover, equipped with a closed vent system vented to a pollution control device;

(2) Each surface impoundment must: (1) Be equipped with a cover or closed vent system which routs the VOCs to a control device or (2) be equipped with a floating flexible membrane cover;

(3) All process drains must be equipped with (1) a water seal or a tightly fitting cap or plug or (2) a cover, and if the cover is vented, the vapors must be routed to a process or through a closed vent system to a control device; and

(4) All junction boxes must be equipped with a tightly fitting solid cover or vented to a process or to a control device.

Also, several definitions have been added to NR 419.02 to clarify the requirements in NR 419.045. These definitions are approvable because they are necessary for implementation of the wastewater rule and they accurately describe the terms that are being defined.

This rule is based on and is consistent with EPA's 1992 draft CTG “Control of VOC Emissions from Industrial Wastewater” and EPA's 1994 “Industrial Wastewater Act.”

NR 420.02 (31) —The definition of “Reid vapor pressure” was amended to refer to the appropriate ASTM method.

As discussed previously, Wisconsin is required to develop industrial cleaning solvent regulations consistent with EPA's 2006 Industrial Cleaning Solvent CTG. Some of these cleaning solvent requirements are contained within source category specific rules and some are contained within a general cleaning solvent regulation (NR 423.037).

Wisconsin has adopted similar cleaning solvent requirements for synthetic resin manufacturing (NR 421.05) and coatings manufacturing (NR 421.06). These requirements are based on the (California) Bay Area Air Quality Management District's rules, which are referenced in EPA's CTG. These requirements apply to cleaning mixing vats, high dispersion mills, grinding mills, tote tanks and roller mills and consist of four options: (1) The solvent or solvent solution used must either contain less than 1.67 pounds VOC per gallon or have a VOC composite partial vapor pressure of less than or equal to 8 millimeters (mm) of mercury (Hg) and the solvent or solvent solution must be collected and stored in closed containers, or (2) several work practices must be implemented, including storing all VOC-containing cleaning materials in closed containers, or (3) the emissions from equipment cleaning must be collected and vented to an emission control system with an overall control efficiency of 80 percent or more on a mass basis, or (4) no more than 60 gallons of virgin solvent per month may be used. In addition, the owner or operator of a facility engaged in wipe cleaning may not use open containers for the storage of solvent or solvent solution used for cleaning or for the storage or disposal of any material impregnated with solvent or solvent solution used for cleaning. Records of the volume of virgin solvent used per month, VOC content in pounds of VOC per gallon or VOC composite pressure are required, if applicable to the option chosen for achieving compliance.

In addition, accurate definitions of “tote tank” and “wipe cleaning” have been added to properly implement these rules.

These cleaning solvent requirements are therefore approvable because they are consistent with EPA guidance and require adequate recordkeeping.

Wisconsin has also adopted SOCMI air oxidation, distillation and reactor regulations in NR 421.07. NR 421.07(1)(a)(intro) specifies that these SOCMI requirements apply to any facility that is located in the Milwaukee-Racine and Sheboygan areas that operates a SOCMI air oxidation unit, distillation operation, or reactor process, as those activities are defined in NR 440.675(2)(c), 440.686(2)(e) and 440.705(2)(o), respectively, to produce any chemical as a product, coproduct, byproduct or intermediate that is listed in the CTGs for these categories.

Affected facilities must comply with subsections (a), (b), or (c), from NR 440.675(3), NR 440.686(3), and NR 440.705(3) for each vent stream.

(a) Reduce emissions of total organic compounds (TOC) (minus methane and ethane) by 98 weight-percent or to a TOC (minus methane and ethane) concentration of 20 parts per million by volume (ppmv) on a dry basis corrected to 3% oxygen, whichever is less stringent. If a boiler or process heater is used to comply with this paragraph, then the vent stream shall be introduced into the flame zone of the boiler or process heater; or

(b) Combust the emissions in a flare that complies with the flare requirements in EPA's new source performance standards; or

(c) Maintain a total resource effectiveness (TRE) index value greater than 1.0 without use of VOC emission control devices. TRE is a measure of the supplemental total resource requirement (or cost-effectiveness) per unit reduction of TOC associated with an individual vent stream, based on vent stream flow rate, emission rate of TOC, net heating value and corrosion properties, whether or not the vent stream is halogenated.

Wisconsin's SOCMI applicability criteria and control requirements are consistent with EPA's CTGs and are therefore approvable.

NR 422.02—Definitions —Wisconsin has added several definitions that are needed to properly implement its coating and printing rules. These definitions are necessary and accurate and are therefore approvable.

Wisconsin has amended its can coating rules to incorporate the industrial solvent cleaning requirements from the industrial solvent cleaning CTG. These requirements apply to any can coating facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.

With the exception of cleaning of heptane-containing end sealant application equipment lines (at 5.8 pounds VOC/gallon) and cleaning of metal can identification ink application equipment (at 7.4 pounds VOC/gallon), cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon, as specified in the CTG. Based upon information submitted by the Can Manufacturers Institute, EPA agrees that the higher limits represent RACT. In lieu of complying with these VOC content limits, an alternative limit of 8 mm Hg (and 10 mm Hg for heptane-containing end sealant application equipment lines) is consistent with the CTG.

The CTG also references the solvent cleaning requirements in the South Coast Air Quality Management District's (SCAQMD)—in the Los Angeles area—solvent cleaning rules. These rules are therefore considered to satisfy RACT. Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's can coating rule are therefore approvable.

Wisconsin has amended its coil coating rules to incorporate the industrial solvent cleaning requirements from the industrial solvent cleaning CTG. These requirements apply to any coil coating facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.

As specified in the CTG, cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon. In lieu of complying with this VOC content limit, an alternative limit of 8 mm Hg is also consistent with the CTG.

The CTG also references the solvent cleaning requirements in the SCAQMD solvent cleaning rules. Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's coil coating rule are therefore approvable.

This section has been added to be consistent with EPA's 2007 CTG for Paper, Film, and Foil Coatings. Wisconsin's VOC content limits are 0.20 pounds VOC/pound of solids applied for pressure sensitive tape and label surface coatings, and 0.40 pounds VOC/pound solids applied for all other paper coatings, which are consistent with the CTG. When compliance is achieved by the use of add-on control, the required overall control efficiency of 90 percent is also consistent with the CTG. Wisconsin's paper coating rule also contains work practices to minimize VOC emissions from mixing operations, storage tanks, and other containers, and handling operations for coatings, thinners, cleaning materials and waste materials. The requirements in this section are approvable because they are consistent with the subject CTG.

Wisconsin has amended its fabric and vinyl coating rules to incorporate the industrial solvent cleaning requirements from the industrial solvent cleaning CTG. These requirements apply to any fabric and vinyl coating facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.

As specified in the CTG, cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon. In lieu of complying with this VOC content limit, an alternative limit of 8 mm Hg is also consistent with the CTG.

The CTG also references the solvent cleaning requirements in the SCAQMD solvent cleaning rules. Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's fabric and vinyl coating rule are therefore approvable.

This section has been amended to include the cleaning material work practices in EPA's 2008 CTG for Miscellaneous Metals and Plastic Parts Coating. These work practices include storing all VOC-containing cleaning materials and shop towels used for cleaning in closed containers and minimizing emissions of VOC during cleaning of coating application, storage, mixing, and conveying equipment by ensuring that cleaning is performed without atomizing any VOC-containing cleaning material and that the used material is captured and contained. These work practices satisfy Wisconsin's requirement to have acceptable cleaning solvent requirements for plastic parts coating operations and are approvable.

This section has been amended to include the cleaning material work practices in EPA's 2008 CTG for Automobile and Light-Duty Truck Assembly Coatings. A subject facility must develop and implement a work practice plan to minimize VOC emissions from cleaning and purging of equipment associated with all coating operations. This plan must specify practices and procedures for vehicle body wiping, coating line purging, flushing of coating systems, cleaning of spray booth grates, walls and equipment as well as external spray booth areas. These work practices satisfy Wisconsin's requirement to have acceptable cleaning solvent requirements for automobile and light-duty truck assembly coatings operations and are approvable.

Wisconsin has amended its automobile refinishing operations rules to incorporate the industrial solvent cleaning requirements from the industrial solvent cleaning CTG. These requirements apply to any automobile refinishing facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.

As specified in the CTG, cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon. In lieu of complying with this VOC content limit, an alternative limit of 8 mm Hg is also consistent with the CTG.

The CTG also references the solvent cleaning requirements in the SCAQMD solvent cleaning rules. Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's automobile refinishing rule are therefore approvable.

This section has been added to be consistent with EPA's 2007 CTG for Metal Furniture Coatings. Wisconsin's VOC content limits, e.g. 2.3 pounds VOC/gallon for general, one component coatings, are consistent with the CTG. When compliance is achieved by the use of add-on control, the required overall control efficiency of 90 percent is also consistent with the CTG. Wisconsin's metal furniture coating rule also contains work practices to minimize VOC emissions from mixing operations, storage tanks, and other containers, and handling operations for coatings, thinners, cleaning materials and waste materials. The requirements in this section are approvable because they are consistent with the subject CTG.

This section has been added to be consistent with EPA's 2007 CTG for Large Appliance Coatings. Wisconsin's VOC content limits, e.g. 2.3 pounds VOC/gallon for general, one component coatings, are consistent with the CTG. When compliance is achieved by the use of add-on control, the required overall control efficiency of 90 percent is also consistent with the CTG. Wisconsin's large appliance coating rule also contains work practices to minimize VOC emissions from mixing operations, storage tanks, and other containers, and handling operations for coatings, thinners, cleaning materials and waste materials. The requirements in this section are approvable because they are consistent with the subject CTG.

Wisconsin's wood furniture coating rule has been amended to include cleaning material work practices that are consistent with EPA's 1996 CTG for the Control of VOC Emissions from Wood Furniture Manufacturing Operations. The 25 tons per year potential applicability cutoff has been revised to include the emissions from any related cleaning activities. These cleaning material work practices include storing VOC containing materials in closed containers, collecting all VOC-containing cleaning material used to clean spray guns and spray gun lines in a container and keeping the container covered except when adding or removing material, controlling emissions of VOC containing material from washoff operations and using strippable spray booth materials containing no more than 0.8 pounds of VOC per pound of solids. These work practices are consistent with the wood furniture CTG and are approvable.

Wisconsin's adhesives rule has been amended to include cleaning material work practices that are consistent with EPA's 2008 CTG for Miscellaneous Industrial Adhesives. These work practices include storing all VOC-containing cleaning materials in closed containers and minimizing emissions of VOC during cleaning of coating application, storage, mixing, and conveying equipment by ensuring that cleaning is performed without atomizing any VOC containing cleaning material and that the used material is captured and contained. An applicability cutoff of three tons on a 12 consecutive month rolling basis has also been added. These work practices are consistent with the miscellaneous industrial adhesives CTG and are approvable.

This section has been added to be consistent with EPA's 2006 CTG for Flat Wood Paneling Coatings. Wisconsin's VOC content limit is 2.1 pounds VOC/gallon, which is consistent with the CTG. When compliance is achieved by the use of add-on control, the required overall control efficiency of 90 percent is also consistent with the CTG. Wisconsin's flat wood paneling rule also contains work practices to minimize VOC emissions from mixing operations, storage tanks, and other containers, and handling operations for coatings, thinners, cleaning materials and waste materials. The requirements in this section are approvable because they are consistent with the subject CTG.

Wisconsin has amended its graphic arts rule to incorporate the industrial solvent cleaning requirements from the industrial solvent cleaning CTG. These requirements apply to any (non-flexible packaging) graphic arts facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.

As specified in the CTG, cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon—except for a 0.83 pounds VOC/gallon limit for cleaning of publication rotogravure ink application equipment and a 5.4 pounds VOC/gallon limit for cleaning of ultraviolet ink application equipment. The latter two limits are based on the SCAQMD's Rule 1171, discussed above. In lieu of complying with these VOC content limits, an alternative limit of 8 mm Hg is also consistent with the CTG. Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's graphic arts rule are therefore approvable.

These regulations have been revised based on and are consistent with EPA's 2006 CTG for Flexible Packaging Printing Materials. Subject printing lines may comply by meeting limits of 0.8 pounds VOC per pound of solids applied or 0.16 pounds VOC per pound of ink and coatings applied. Alternatively, compliance can be achieved by the use of add-on control achieving an overall reduction in VOM emissions ranging from 65 percent to 80 percent, depending upon when the printing line and control device were constructed. Work practices to reduce emissions from the use of VOM containing cleaning materials are also required. These work practices require that solvents used in cleaning operations be stored in covered containers and that VOC-containing cleaning material be conveyed in closed containers or pipes. The requirements in this section are approvable because they are consistent with the subject CTG.

These regulations are based on and are consistent with EPA's 2006 CTG for Lithographic Printing. The control requirements for cleaning materials and fountain solutions apply if the combined emissions of VOC exceed three tons on a 12 consecutive month rolling basis. The add-on control requirements for heatset web offset printing operations apply if the potential emissions of VOC from a lithographic press dryer equal or exceed 25 tons per year. The fountain solution is subject to a percent VOC limit, based upon the temperature and whether or not the fountain solution contains alcohol. The cleaning materials (blanket or roller wash) must not exceed 30 percent by weight (nor equal or exceed 70 percent by weight for ultraviolet ink application equipment) VOC or the VOC composite partial pressure must be less than or equal to 10 mm Hg. An add-on control device on a subject heatset dryer must achieve a 90 percent or 95 percent reduction of VOC emissions, depending on the installation date of the add-on control device, or alternatively can comply by not exceeding an outlet concentration of 20 ppmv, as carbon. Recordkeeping requirements are also specified to establish compliance with the applicable limits. The requirements in this section are approvable because they are consistent with the subject CTG.

These regulations are based on and are consistent with EPA's 2006 CTG for Letterpress Printing. The control requirements for cleaning materials apply if the combined emissions of VOC exceed three tons on a 12 consecutive month rolling basis. The add-on control requirements for heatset web letterpress printing operations apply if the potential emissions of VOC from a lithographic press dryer equal or exceed 25 tons per year. The cleaning materials (blanket or roller wash) must not equal or exceed 70 percent by weight VOC or the VOC composite partial pressure must be less than 10 mm Hg. An add-on control device on a subject heatset dryer must achieve a 90 percent or 95 percent reduction of VOM emissions, depending on the installation date of the add-on control device. Recordkeeping requirements are also specified to establish compliance with the applicable limits. The requirements in this section are approvable because they are consistent with the subject CTG.

Wisconsin has amended its screen printing rules to incorporate the industrial solvent cleaning requirements in the CTG for Industrial Cleaning Solvents. These requirements apply to any screen printing facility with VOC emissions from all industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.

As specified in the CTG, cleaning solvent must not exceed a VOC content limit of 0.42 pounds VOC/gallon. However, the CTG also references the solvent cleaning requirements in the SCAQMD solvent cleaning rules. As a result of SCAQMD limits that were in place at the time that EPA's CTG was issued, Wisconsin has adopted 4.2 pounds VOC/gallon limits for repair or maintenance cleaning and cleaning of ink application equipment. In lieu of complying with these VOC content limits, an alternative limit of 8 mm Hg is also consistent with the CTG.

Wisconsin has included several cleaning device and method requirements as well as storage and disposal requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's screen printing rule are therefore approvable.

This section has been amended to include the cleaning material work practices in EPA's 2008 CTG for Miscellaneous Metals and Plastic Parts Coating. These work practices include storing all VOC-containing cleaning materials and shop towels used for cleaning in closed containers and minimizing emissions of VOC during cleaning of coating application, storage, mixing, and conveying equipment by ensuring that cleaning is performed without atomizing any VOC-containing cleaning material and that the used material is captured and contained. These work practices satisfy Wisconsin's requirement to have acceptable cleaning solvent requirements for miscellaneous metal parts and products coating operations and are approvable.

This section (a subset of miscellaneous metals) has been amended to include the cleaning material work practices in EPA's 2008 CTG for Miscellaneous Metals and Plastic Parts Coating. These work practices include storing all VOC-containing cleaning materials and shop towels used for cleaning in closed containers and minimizing emissions of VOC during cleaning of coating application, storage, mixing, and conveying equipment by ensuring that cleaning is performed without atomizing any VOC-containing cleaning material and that the used material is captured and contained. These work practices satisfy Wisconsin's requirement to have acceptable cleaning solvent requirements for miscellaneous metal parts and products coating operations and are approvable.

Wisconsin has added definitions of “Flexible magnetic data storage disc” and “Rigid magnetic data storage disc” because these terms are used in its industrial cleaning operations rule. These terms are accurately defined and are therefore approvable.

Wisconsin has added an industrial solvent cleaning rule to incorporate the industrial solvent cleaning requirements, from the industrial solvent cleaning CTG, for those source categories whose rules do not contain such solvent cleaning requirements. These requirements apply to any such facility having actual VOC emissions from industrial cleaning operations which equal or exceed three tons per year on a 12 consecutive month rolling basis.

As specified in the CTG, cleaning solvents must not exceed a VOC content limit of 0.42 pounds VOC/gallon as well as several specialty cleaning limits based on limits in SCAQMD's Rule 1171 that were in place at the time that EPA's CTG was issued. In lieu of complying with these VOC content limits, an alternative limit of 8 mm Hg is also consistent with the CTG.

Wisconsin has included several cleaning device and method requirements as well as storage, disposal and transport requirements from the SCAQMD's Rule 1171. Wisconsin's rule also has adequate recordkeeping requirements. The additions to Wisconsin's graphic arts rule are therefore approvable.

Wisconsin amended its recordkeeping requirements for exempt sources (in NR 439.04(4)) to include the VOC emissions from cleaning operations, when necessary, in addition to the VOC emissions from coating or printing lines. Wisconsin also added a requirement that the maximum theoretical emissions be determined from the dryer of each heatset web lithographic or letterpress printing press. A requirement for detailed records of solvent use in solvent cleaning activities was also added.

Wisconsin added monitoring and recordkeeping requirements (in NR 439.04(6)) for when add-on control equipment is used to comply with solvent cleaning requirements.

The recordkeeping requirements in NR 439.04, as amended, along with the recordkeeping requirements in the coating and printing rules in NR 422 adequately establish the applicability and compliance requirements of the rules and are therefore approvable.

Wisconsin has also updated its Incorporation by Reference Chapter, including CFR appendices, National Technical Information Service, other government organizations, the American Society for Testing and Materials and other private organizations.

Under the Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

EPA allows and encourages local authorities to tailor SIP programs, including new source review permitting programs, to account for that community's particular needs provided that the SIP is not less stringent than the Act's requirements. See generally CAA Section 116, 42 U.S.C. 7416; Train v. Natural Res. Defense Council, 421 U.S. 60, 79 (1975); Union Electric Co. v. EPA, 427 U.S. 246, 250 (1976). The District's nonattainment permitting rules contained in District Regulation XIII went through numerous public workshops and stakeholder meetings prior to adoption in December 1995. The California Air Resources Board (CARB) submitted Regulation XIII along with supporting regulations and documents to EPA Region 9 on August 28, 1996. On December 4, 1996, EPA Region 9 published a direct final approval of Regulation XIII in the Federal Register . 61 FR 64291 (December 4, 1996) (Codified at 40 CFR 52.220(c)(240)(i)( 1 )).

When EPA approved Regulation XIII, we noted that Rule 1304 exempted certain major sources from obtaining offsets and Rule 1309.1 allowed the District to provide offsets for specific “priority” projects. We approved these rules because the District committed to demonstrating on an annual basis that it was providing an amount of offsets that was equivalent to the amount required to offset Federal new and modified major sources. 1 EPA did not require the District to codify its internal NSR tracking system in rule language as a condition of full approval of Regulation XIII. From 1997 through 2005, the District submitted annual equivalency reports to its Board for approval and provided copies to EPA Region 9. 2 The District's Board meetings at which the annual reports were approved were open to the public.

EPA informed the District beginning in 2002 that if it was significantly expanding the sources that were allowed to obtain offsets from the internal NSR tracking system through a new offset budget rule (Rule 1309.2—Offset Budget), the tracking system's transparency should be improved. Proposed SCAQMD NSR Offset Tracking System, Oct. 14, 2005, (2005 Proposed Tracking System) at p.1. In 2004-2005, the District drafted regulatory language, now revised and adopted as Rule 1315, to establish NSR program equivalency with the Federal NSR offset requirements for major sources and demonstrate annually that the District provided sufficient offsets for Federal major sources and modifications that were (1) otherwise exempt from offset requirements under Rule 1304 or (2) allocated offsets pursuant to Rule 1309.1. Proposed Rule 1315(a), Preliminary Draft, Adopted Sept. 8, 2006.

In our discussions during 2002-2003, EPA also noted that the District's use of the negative NSR balances and other pre-1990 era offsets to fund the NSR tracking system would be inconsistent with Federal requirements unless the District had sufficient records for those offsets. Staff Report: Proposed Rule 1315—Federal New Source Review Tracking System, dated January 7, 2011, at pp. 6-7 (2011 Staff Report); 2005 Proposed Tracking System at pp. 1-2. The District concluded that it did not readily have sufficient documentation for many of the offsets it had collected from the negative NSR balances and other pre-1990 era offsets. Proposed SCAMQD NSR Offset Tracking System, Oct. 14, 2005 at p. 2.

The District responded to EPA's request by eliminating any offsets originating before 1990 without documentation on October 14, 2005. 2005 Proposed Tracking System, at pp. 12-13. Unlike many areas, the District requires almost all Federal minor sources to obtain a permit and offset any emission increases up to the sources' permitted emissions level. Rule 1303(b)(2).

The adjustments the District made in October 2005 to the existing NSR tracking system significantly decreased the balance of available offsets for most pollutants. For example, this adjustment reduced the internal NSR tracking system balance for PM 10 (particulate matter with an aerodynamic diameter less than or equal to 10 micrometers) by 92% (from 34.5 to 2.67 tons per day). 2011 Staff Report, at p. 9; 2005 Proposed Tracking System, at Table 1. The District informed EPA Region 9 that it had previously credited the offsets from minor orphan shutdowns for State purposes. The District had not needed to credit those minor orphan shutdowns for its Federal accounts because the offsets from the negative NSR balances were far greater than the amount needed to demonstrate equivalency with Federal offset requirements for Rule 1304 exempt sources and Rule 1309.1 priority reserve sources. (2005 Proposed Tracking System), at p. 3.

EPA and the District had further discussions about the changes to the NSR tracking system resulting in a revised letter to EPA dated February 23, 2006. SCAQMD's Revised NSR Offset Tracking System, Feb. 23, 2006. The revisions primarily resolved issues EPA raised regarding the District's method of reporting the offset account balances and the remedy if a shortfall was projected. SCAQMD Letter from Dr. Barry Wallerstein to Deborah Jordan, Feb. 24, 2006. EPA responded by letter on April 11, 2006, indicating that the District's proposed NSR Offset Tracking System funded with emission reductions from minor and major orphan shutdowns and other sources (i.e. credits to the system) appeared to be sufficient for EPA to propose approval of Rule 1315. EPA Letter from Deborah Jordan to Dr. Barry Wallerstein, April 11, 2006. Both the October 2005 Proposed SCAQMD NSR Offset Tracking System and February 23, 2006 Revised NSR Offset Tracking System appended tables prepared by the SCAQMD called the “Federal Running Balances.” Revised NSR Offset Tracking System, Feb. 23, 2006, Attachment 1. The Federal Running Balances table contains details concerning the credits added and debits subtracted from the NSR offset tracking system.

The District adopted Rule 1315's regulatory language codifying how it will account for, or “track”, the emission reductions that it adds into its Offset Accounts as credits and those which it subtracts as debits to provide offsets for the construction of certain Federal major sources or modifications exempted from offset requirements pursuant to Rule 1304 or for which the District provided offsets pursuant to Rule 1309.1. SCAQMD Governing Board Resolution for the Re-adoption of Rule 1315—Federal New Source Review Tracking System, dated Feb. 4, 2011. EPA is now proposing to approve Rule 1315 as a SIP revision.

Rule 1315 which the District, through CARB, submitted to EPA consists of the regulatory text the District adopted on February 4, 2011, along with supporting documentation including a Staff Report dated January 7, 2011. EPA received the SIP submittal for Rule 1315 from CARB on March 2, 2011, and a supplemental submittal on February 7, 2012. On March 25, 2011, we found that the submittal of District Rule 1315 met the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

The Rule contains a section describing its purpose and a definitions section. Rule 1315(a) and (b). Rule 1315(c), Offset Accounts for Federal NSR Equivalency, contains provisions for quantifying, crediting and debiting the offset accounts. Rule 1315(c)(1), District Offset Accounts for Federal Nonattainment Air Contaminants, provides that all pre-1990 offsets were removed at the end of 2005 and sets forth the initial District Offset Account Balances in Table A. Rule 1315(c)(2) provides that the District shall debit its Offsets Accounts for emissions increases at Federal new and modified major sources that are not required to provide Emission Reduction Credits (ERCs) based on Rules 1304 (Exemptions) and 1309.1 (Priority Reserve). Rule 1315(c)(3)(A) contains a list of the emission reductions the District can add to its Offset Accounts and 1315(c)(3)(B) establishes how the District will quantify the actual emissions reductions for that list. Rule 1315(c)(4) specifies how the District will discount each Offset Account annually to ensure the reductions will be surplus to all CAA requirements at the time an offset is used. Rule 1315(c)(5) specifies the steps the District will take to calculate annually a Preliminary Determination of Equivalence and Final Determination of Equivalence. In Rule 1315(c)(6), the District sets forth how the credits and debits meet each of the Federal requirements for offsets. The remaining provisions in Rule 1315 establish the methods for reporting the annual Preliminary and Final Equivalency demonstrations, projecting future Offset Account balances and methods to remedy any balance shortfalls. Rule 1315 provides that it will expire on January 1, 2031.

The South Coast Air Basin is an extreme nonattainment area for ozone and a serious nonattainment area for PM 10. The Coachella Valley Air Basin is a severe nonattainment area for ozone and a serious nonattainment area for PM 10. Oxides of nitrogen (NO X ) and volatile organic compounds (VOC) are both ozone precursors and are therefore treated as ozone nonattainment pollutants. Sulfur dioxide (SO 2 ) emissions are PM 10 precursors and are therefore also treated as a PM 10 nonattainment pollutant. While the District is classified as nonattainment for PM 2.5 (particulate matter with an aerodynamic diameter less than or equal to 2.5 micrometers) and portions of the District as nonattainment for lead, Rule 1315 does not apply to these pollutants. The District was redesignated to attainment for carbon monoxide (CO) on May 11, 2007 (72 FR 26718), but CO is included in the tracking system because of its past nonattainment status.

As required by CAA § 110(a)(2)(C), SIPs are required to include provisions to comply with CAA Part D for nonattainment pollutants. Among the Part D requirements, § 173(a)(1)(A) requires new and modified major stationary sources to provide offsetting emission reductions. Section 173(c) requires the offsetting emission reductions to be quantifiable, surplus, permanent, and enforceable. See 40 CFR 51.165(a)(3)(ii)(c)( i ); 40 CFR part 51, appendix S. This proposal will refer to those requirements as the “federal integrity criteria”.

EPA is proposing to approve Rule 1315 because the rule ensures that the emission reductions in the District's Offset Accounts meet the Federal integrity criteria. See Rule 1315(c). Rule 1315 also demonstrates that the District's offset tracking system provides an equivalent quantity of offsets for those major sources and modifications that are not required to provide such offsets pursuant to District Rules 1304 and 1309.1. EPA's analysis of how the credits and debits tracked in Rule 1315 meet the Federal integrity criteria is summarized below and set forth in more detail in the Technical Support Document (TSD).

EPA is proposing to approve Rule 1315 because the emission reductions that the District credits and debits to its Offset Accounts meet the requirement to be quantifiable emissions reductions. The District meets this requirement by demonstrating that the credits and debits are actual and quantifiable reductions of emissions. To quantify the reductions of emissions from orphan shutdown sources, the District determines the permitted emissions level and then applies an 80% actual emissions factor. Rule 1315(c)(3)(B)(i); Staff Report at p. 17 (“AQMD proposes to use an average discount factor to account for the difference between potential and actual emissions.”). The vast majority of emission reductions credited to the Offset Accounts are from orphan shutdowns, which occur when the owner/operator of a stationary source that has been shut down does not apply for an Emission Reduction Credit (ERC) under Rule 1309 (Emission Reduction Credits and Short Term Credits). Staff Report at p. 17. The information that is available to the District when a source is shut down and the operating permit is inactivated are the source's permitted emissions, which represent its potential to emit rather than its actual emissions. Under Rule 1315, the District makes an adjustment to the permitted (i.e. potential) emissions by applying an 80% actual emissions factor before crediting these emissions to the Offset Accounts. See Rule 1315(c)(3)(B)(i); Staff Report at p. 17.

The District has justified its determination that reducing the permitted (i.e. potential) emissions by 20% and crediting the remaining 80% is an adequate representation of actual emissions based on several considerations. The District has historically implemented an 80% actual emissions factor for estimating actual emission reductions in its Regulation XIII annual reports following concurrence by the California Air Resources Board. Staff Report at 17. The District also provided a Federal Reserve Statistical Release Report examining historical industrial production and capacity utilization. While certain short term cycles may reflect greater or lower utilization, the District's justification for selecting an 80% factor over the long term is supported by this data. Id. The District's method of quantifying actual emission reductions is also supported by the inherent structure of the District's NSR program. Every stationary source that is operated in the District with permitted emissions exceeding 4 tons per year (tpy) of ozone precursors or PM 10 (including precursors) is required to obtain ERCs to offset the entire amount of its permitted emissions. The cost of obtaining the ERCs to offset permitted emissions provides “a strong incentive to keep [each source's] potential emissions in line with actual emissions during times of high production”. Staff Report at 17.

For exempt and priority reserve sources that obtain their offsets from the District, the District limits the amount of offsets provided by including permit conditions that limit operations to actual operating scenarios. The District has shown that fifty to eighty percent of the very small exempt sources (emitting < 4 tpy of most pollutants) have permits emissions limits that are less than one-half of the exemption threshold (i.e. permitted emissions are less than 2 tpy). Table 5 of Staff Report, p 18. This information supports finding that the District is permitting sources at close to the source's actual emissions and that an 80% actual emissions factor adequately reflects actual reductions from orphan shutdown sources.

For the reasons provided by the District, EPA is proposing to approve Rule 1315 as ensuring that the emission reductions it credits to its Offset Accounts pursuant to Rule 1315(c)(3)(B)(i) meet the requirement to be actual emission reductions based on crediting only 80% of permitted emission levels.

Rule 1315(c)(4) ensures that any offsets debited from the District Offset Accounts are properly adjusted to be surplus at the time they are used as required by the Federal integrity criteria. Specifically, the rule requires that the balance of credits in the Offset Accounts for each pollutant be reduced annually to account for any newly adopted rules that control these pollutants, ensuring that the debits used as offsets are surplus at the time they are used. Rule 1315(c)(4) (providing that the District discount the Offset Account balances annually “based on the percentage reduction in overall permitted emissions projected to be achieved as a result of implementation of control requirements that became effective during the previous calendar year for each specific nonattainment contaminant within the District.”) EPA is proposing to find that Rule 1315 ensures that the offsets the District debits from its Offset Accounts meet the Federal integrity criterion to be surplus.

The emission reductions credited to the District's Offset Accounts are all permanent reductions at the time they are credited to the accounts because the permit for the emission source has either been retired or revised to include conditions that limit the emissions to levels lower than they are otherwise required to be limited through the use of federally enforceable permit conditions. The debits are permanent because Rule 1315 requires the District to subtract those offsets from the District's Offset Account balances. Rule 1315(c)(5)(B). The District must provide its Preliminary and Final Determinations of Equivalency annually to ensure there is a positive balance in each Offset Account. Rule 1315 also contains an equivalency backstop provision if any Offset Account has a shortfall. Rule 1315(f). EPA is proposing to find that Rule 1315 assures that the emission reductions in the District's Offset Accounts meet the requirement for permanent reductions.

The emission reductions credited to the District's Offset Accounts for orphan shutdowns or orphan reductions are all enforceable reductions at the time they are credited to the accounts because the permit for the emission source has either been retired, which means the source is no longer allowed to operate/emit those pollutants, or revised to include conditions that limit the emissions to levels lower than they are otherwise required to be limited through the use of federally enforceable permit conditions. This ensures that the emissions will be permanently retired or reduced. Rule 1315(b)(4) & (5) and (c)(3)(A)(i) & (ii). For each of the other types of credits listed in Rule 1315 (c)(3)(A), the credits are based on ERCs that have been generated pursuant to Rule 1309, which also requires that the emission reductions meet each of the Federal integrity criterion, including the requirement to be enforceable emission reductions. Therefore, EPA is proposing to find Rule 1315 meets the Federal integrity criterion for enforceable reductions.

40 CFR 51.165(a)(3)(i)(C) provides:

Rule 1315 is being submitted by the District to demonstrate equivalency with the Part D requirements for ozone and PM 10 (and their precursor emissions). To evaluate Rule 1315's compliance with the base year requirement for using offsets from emissions units being shut down or curtailed, EPA has determined that the most appropriate attainment demonstrations to review are the District's approved PM 10 and 8-hour ozone Plans. Approval and Promulgation of [SIPs] for Air Quality Planning Purposes; California—South Coast and Coachella, 70 FR 69081 (Nov. 14, 2005) (2003 Plan); Approval of Air Quality Implementation Plans; California; South Coast; Attainment Plan for 1997 8-hour Ozone Standards, EPA-R09-OAR-2011-0622 (Signed Dec. 15, 2011) (2007 Plan). The District's PM 10 Plan was adopted in 2003 and relies on a 1997 base year emission inventory. 2003 Plans, Chapter 3 & Appendix III. For ozone, the Plan was adopted in 2007 and relies on a 2002 base year emission inventory. 2007 Plan, Chapter 3 & Appendix III.

In accordance with the base year requirements specified in 40 CFR 51.165, the District estimated that 3.1 tons per day (tpd) of pre-2002 base year VOC emission reductions may be needed to satisfy offset demand. 2007 Plan Appendix III. For ozone precursors, the District added 27 and 2 tons per day for VOC and NO X , respectively, as growth. 3 This amount includes the 3.1 tpd of pre-2002 base year VOC emission reductions. While this is not the total amount of pre-2002 base year emission reductions available as debits pursuant to Rule 1315, the District has demonstrated that this amount represents the highest amount of pre-2002 credits that are expected to be used as offsets prior to attainment of the ozone standard. 2007 Plan Appendix III, pgs 28-34. The District used a similar approach for the 2003 Plan as it pertains to PM 10 and SO X emissions. See the TSD for additional details. This approach is consistent with EPA guidance that states must include pre-base year credits to the “extent that the State expects that such credits will be used for offsets * * *”. 57 FR 13498

Therefore, even if the District Offset Accounts rely on pre-base year emission reductions as offsets, the District's Plans have adequately added pre-base year emissions explicitly into the appropriate projected planning inventories. For these reasons, EPA is proposing to approve Rule 1315.

Under section 110(l) of the CAA, EPA may not approve any SIP revision that would interfere with attainment, reasonable further progress (RFP) or any other CAA requirement. EPA's incorporation of Rule 1315 into the SIP will not interfere with attainment or RFP because the rule provides a regulatory mechanism setting forth the internal offset accounting system that the District has been relying on. In addition, the District does not rely on the offsets in the District's Offset Accounts for attainment or RFP in the District's most recent attainment demonstrations for ozone or PM 10 .

This SIP revision also does not interfere with any other CAA requirement. Rule 1315 provides regulatory language detailing how the District will quantify and add credits and subtract debits from its Offset Accounts. Our proposal to approve Rule l315 is based on finding the rule ensures the credits and debits meet the Federal integrity criteria and that the District system overall is equivalent to the requirements of Section 173.

Because EPA has determined Rule 1315 fulfills all relevant requirements, we are proposing to fully approve it as described in section 110(k)(3) of the Act. We will accept comments from the public on this proposal for the next 30 days. After considering the information and views submitted to us during the comment period, we will take final action on this SIP submittal.

Rule 1315 has been under development at the District and the interested public has been involved in its development for the last several years, including state litigation concerning the Rule. Therefore, EPA does not anticipate extending the public comment period beyond 30 days absent extraordinary or compelling circumstances.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:

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

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

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

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

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

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

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

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

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

In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

Additional information on submitting comments: To expedite review of your comments by agency staff, you are encouraged to send a separate copy of your comments, in addition to the copy you submit to the official docket, to Carole Cook, U.S. EPA, Office of Atmospheric Programs, Climate Change Division, Mail Code 6207-J, Washington, DC 20460, telephone (202) 343-9263, email address: GHGReportingRule@epa.gov.

Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of this proposal, memoranda to the docket, and all other related information will also be available through the WWW on the EPA's Greenhouse Gas Reporting Rule Web site at http://www.epa.gov/climatechange/.

Acronyms and Abbreviations. The following acronyms and abbreviations are used in this document.

Organization of This Document. The following outline is provided to aid in locating information in this preamble. Section I of this preamble provides general information on the Greenhouse Gas Reporting Program and preparing comments on this action. Sections II and III discuss the CBI re-proposal, and Section IV discusses the proposed amendments to the best available monitoring provisions. Section V discusses statutes and executive orders applicable to this action.

The EPA is re-proposing confidentiality determinations for the data elements in subpart I of 40 CFR part 98 of the Mandatory Reporting of Greenhouse Gases Rule (hereinafter referred to as “Part 98”). Subpart I of Part 98 requires monitoring and reporting of greenhouse gas (GHG) emissions from electronics manufacturing. The electronics manufacturing source category (hereinafter referred to as “subpart I”) includes facilities that have annual emissions equal to or greater than 25,000 mtCO 2 e.

The proposed confidentiality determinations in this notice cover all of the data elements that are currently in subpart I except for those that are in the “Inputs to Emission Equations” data category. The covered data elements and their proposed data category assignments are listed by data category in the memorandum entitled “Proposed Data Category Assignments for Subpart I” in Docket EPA-HQ-OAR-2011-0028.

This action also proposes amendments to provisions in subpart I regarding the calculation and reporting of emissions from facilities that use best available monitoring methods (BAMM). Following the December 1, 2010 publication finalizing subpart I in the “Mandatory Reporting of Greenhouse Gases: Additional Sources of Fluorinated GHGs” rule (75 FR 74774, hereinafter referred to as the “final subpart I rule”), industry members requested reconsideration of several provisions in the final subpart I rule. This action responds to a petition for reconsideration of the specific subpart I provisions that require facilities that have been granted extensions to use BAMM to recalculate their emissions for the time period for which BAMM was granted at a later date, after they have begun following all applicable monitoring requirements of subpart I.

In today's notice, the EPA is not taking any action on other issues raised by the petitioners. Although we are not seeking comment on those issues at this time, the EPA reserves the right to further consider those issues at a later time.

This proposal affects entities that are required to submit annual GHG reports under subpart I of Part 98. The Administrator determined that this action is subject to the provisions of Clean Air Act (CAA) section 307(d). See CAA section 307(d)(1)(V) (the provisions of CAA section 307(d) apply to “such other actions as the Administrator may determine”). Part 98 and this action affect owners and operators of electronics manufacturing facilities. Affected categories and entities include those listed in Table 1 of this preamble.

Table 1 of this preamble lists the types of entities that potentially could be affected by the reporting requirements under the subpart covered by this proposal. However, this list is not intended to be exhaustive, but rather provides a guide for readers regarding facilities likely to be affected by this action. Other types of facilities not listed in the table could also be subject to reporting requirements. To determine whether you are affected by this action, you should carefully examine the applicability criteria found in 40 CFR part 98, subpart A as well as 40 CFR part 98, subpart I. If you have questions regarding the applicability of this action to a particular facility, consult the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

The EPA is proposing rule amendments under its existing CAA authority, specifically authorities provided in CAA section 114. As stated in the preamble to the 2009 final rule (74 FR 56260) and the Response to Comments on the Proposed Rule, Volume 9, Legal Issues, CAA section 114 provides the EPA broad authority to obtain the information in Part 98, including those in subpart I, because such data would inform and are relevant to the EPA's carrying out a wide variety of CAA provisions. As discussed in the preamble to the initial proposed Part 98 (74 FR 16448, April 10, 2009), CAA section 114(a)(1) authorizes the Administrator to require emissions sources, persons subject to the CAA, manufacturers of control or process equipment, or persons whom the Administrator believes may have necessary information to monitor and report emissions and provide such other information the Administrator requests for the purposes of carrying out any provision of the CAA.

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

Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. Send or deliver information identified as CBI to only the mail or hand/courier delivery address listed above, attention: Docket ID No. EPA-HQ-OAR-2011-0028.

If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the FOR FURTHER INFORMATION CONTACT section.

When submitting comments, remember to:

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

Follow directions. The EPA may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.

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

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

If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow us to reproduce your estimate.

Provide specific examples to illustrate your concerns and suggest alternatives.

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

Make sure to submit your information and comments by the comment period deadline identified in the preceding section titled DATES . To ensure proper receipt by the EPA, be sure to identify the docket ID number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

To expedite review of your comments by agency staff, you are encouraged to send a separate copy of your comments, in addition to the copy you submit to the official docket, to Carole Cook, U.S. EPA, Office of Atmospheric Programs, Climate Change Division, Mail Code 6207-J, Washington, DC 20460, telephone (202) 343-9263, email GHGReportingCBI@epa.gov. You are also encouraged to send a separate copy of your CBI information to Carole Cook at the provided mailing address in the FOR FURTHER INFORMATION CONTACT section. Please do not send CBI to the electronic docket or by email.

On October 30, 2009, the EPA published the Mandatory GHG Reporting Rule, 40 CFR part 98, for collecting information regarding GHGs from a broad range of industry sectors (74 FR 56260). Under Part 98 and its subsequent amendments, certain facilities and suppliers above specified thresholds are required to report GHG information to the EPA annually. For facilities, this includes those that directly emit GHGs (“direct emitters”) and those that geologically sequester or otherwise inject carbon dioxide (CO 2 ) underground. The data to be reported consists of GHG emission and supply information as well as other data, including information necessary to characterize, quantify, and verify the reported emissions and supplied quantities. In the preamble to Part 98, we stated, “Through a notice and comment process, we will establish those data elements that are `emissions data' and therefore [under CAA section 114(c)] will not be afforded the protections of CBI. As part of that exercise, in response to requests provided in comments, we may identify classes of information that are not emissions data and are CBI (74 FR 56287, October 30, 2009).”

The EPA proposed confidentiality determinations for Part 98 data elements, including data elements contained in subpart I in the July 7, 2010 proposed CBI determination proposal (75 FR 39094, hereafter referred to as the “July 7, 2010 CBI proposal”). The data reporting requirements for subpart I were finalized on December 1, 2010 (75 FR 74774) as an amendment to Part 98. As explained in more detail in Section II.C of this preamble, many data elements were added or changed following proposal of the subpart I reporting requirements. Further, in a separate action, the EPA is finalizing amendments to subpart I, which revise one data element and add two new data elements. See “Greenhouse Gas Reporting Program: Electronics Manufacturing (Subpart I): Revisions to Heat Transfer Fluid Provisions” (hereinafter referred to as the “Subpart I Heat Transfer Fluid Provisions final rule”). In light of the above, today we are re-proposing for public comment the confidentiality determinations for the data elements in subpart I to reflect the finalized new and revised data elements in this subpart.

On May 26, 2011, the EPA published the final CBI determinations for the data elements in 34 Part 98 subparts, except for those data elements that were assigned to the “Inputs to Emission Equations” data category (76 FR 30782, hereinafter referred to as the “Final CBI Rule”). That final rule did not include CBI determinations for subpart I.

The Final CBI Rule: (1) Created and finalized 22 data categories for Part 98 data elements; (2) assigned data elements in 34 subparts to appropriate data categories; (3) for 16 data categories, issued category-based final CBI determinations for all data elements assigned to the category; and (4) for the other five data categories (excluding the inputs to emission equations category), determined that the data elements assigned to those categories are not “emission data” but made individual final CBI determination for those data elements. The EPA also did not make categorical determinations regarding the CBI status of these five categories. The EPA did not make final confidentiality determinations for the data elements assigned to the “Inputs to Emission Equations” data category.

The EPA finalized subpart I reporting requirements on December 1, 2010 (75 FR 74774). The final subpart I rule substantively revised data reporting elements and added new data reporting elements relative to the July 7, 2010 CBI proposal. In addition, in a separate action, the EPA is finalizing amendments to subpart I, which revises one data reporting element and adds two new data reporting elements. Today's re-proposal addresses the subpart I data elements as finalized, including the amendments discussed above. 1

In the July 7, 2010 CBI Proposal, the EPA proposed CBI determinations for the data elements in then-proposed subpart I because the EPA initially did not anticipate any significant change to these data elements when finalizing the subpart I reporting requirements. In light of the changes described in section II.A of this preamble to the subpart I data elements since the July 7, 2010 CBI proposal, the EPA is re-proposing the confidentiality determinations for the data elements in subpart I.

Because this is a re-proposal, the agency is not responding to previous comments submitted on the July 7, 2010 CBI proposal relative to the data elements in this subpart. Although we considered those comments when developing this re-proposal, we encourage you to resubmit all relevant comments to ensure full consideration by the EPA in this rulemaking. In resubmitting previous comments, please make any necessary changes to clarify that you are addressing the re-proposal and add details as requested in Section III.E of this preamble.

In a separate action, the EPA is finalizing technical revisions, clarifications, and other amendments to subpart I of Part 98 in the Subpart I Heat Transfer Fluid Provisions final rule.

The Subpart I Heat Transfer Fluid Provisions final rule is revising one and adding two subpart I data elements that are not inputs. Accordingly, we are making data category assignments to these three new and revised elements as finalized in the Subpart I Heat Transfer Fluid Provisions final rule. The revised data element includes a wording change from “each fluorinated GHG used” to “each fluorinated heat transfer fluid used.” The two new data elements require a facility to report (1) the date on which the facility began monitoring emissions of fluorinated heat transfer fluids (HTFs) and (2) whether the emission estimate includes emissions from all applications or only from the applications specified in the definition of fluorinated heat transfer fluids. The re-proposal addresses the data elements we are finalizing in the Subpart I Heat Transfer Fluid Provisions final rule, published as a separate action.

We propose to assign each of the data elements in subpart I, a direct emitter subpart, to one of 11 direct emitter data categories created in the Final CBI Rule. For eight of the 11 direct emitter categories, the EPA has made categorical confidentiality determinations, finalized in the Final CBI rule. For these eight categories, the EPA is proposing to apply the same categorical confidentiality determinations (made in the Final CBI rule) to the subpart I reporting elements assigned to each of these categories.

In the Final CBI Rule, for two of the 11 data categories, the EPA did not make categorical confidentiality determinations, but rather made confidentiality determinations on an element-by-element basis. We are therefore following the same approach in this action for the subpart I reporting elements assigned to these two data categories. For three data elements within these two data categories, the EPA is proposing to make no CBI determination and, instead, make a case-by-case determination for actual data reported in these elements, as described in more detail in Section III.D of this preamble.

Lastly, in the Final CBI Rule, for the final data category, “Inputs to Emission Equations,” the EPA did not make a final confidentiality determination and indicated that this issue would be addressed in a future action. Please note that in the August 25, 2011 Final Deferral, the EPA has already assigned certain subpart I data elements to the inputs data category. We are not proposing to assign any additional data elements to the inputs data category in this action. Please see the following Web site for further information on this topic: http://www.epa.gov/climatechange/emissions/CBI.html.

Table 2 of this preamble summarizes the confidentiality determinations that were made in the Final CBI Rule for the following direct emitter data categories created in that notice excluding the “Inputs to Emission Equations” data category as final determinations for that category have not yet been made.

Today's action provides affected businesses subject to Part 98, other stakeholders, and the general public an opportunity to provide comment on several aspects of this proposal. For the CBI component of this rulemaking, we are soliciting comment on the following specific issues.

First, we seek comment on the proposed data category assignment for each of these data elements. If you believe that the EPA has improperly assigned certain data elements in this subpart to one of the data categories, please provide specific comments identifying which data elements may be mis-assigned along with a detailed explanation of why you believe them to be incorrectly assigned and in which data category you believe they would best belong.

Second, we seek comment on our proposal to apply the categorical confidentiality determinations (made in the Final CBI Rule for eight direct emitter data categories) to the data elements in subpart I that are assigned to those categories.

Third, for those data elements assigned to the two direct emitter data categories without categorical CBI determinations, we seek comment on the individual confidentiality determinations we are proposing for these data elements. If you comment on this issue, please provide specific comment along with detailed rationale and supporting information on whether such data element does or does not qualify as CBI.

For subpart I, the EPA proposes to assign each data element to one of 10 non-inputs direct emitter data categories. Please see the memorandum entitled “Proposed Data Category Assignments for Subpart I” in the docket: EPA-HQ-OAR-2011-0028 for a list of the data elements in these subparts and their proposed category assignment. As noted previously, the EPA made categorical confidentiality determinations for eight direct emitter data categories and the EPA proposes to apply those final determinations to the data elements assigned to those categories in this rulemaking. For the data elements in the two direct emitter data categories that do not have categorical confidentiality determinations, we are proposing to make confidentiality determinations on an individual data element basis. 2

The following two direct emitter data categories do not have category-based CBI determinations: “Unit/Process `Static' Characteristics That are Not Inputs to Emission Equations” and “Unit/Process Operating Characteristics That are Not Inputs to Emission Equations.” In Section III.D of this preamble, the data elements in these two data categories that are part of the annual GHG report submission and part of the subpart I BAMM use extension requests are identified in a table. For all data elements in these two data categories, the EPA states in the table the reasons for proposing to determine that each does or does not qualify as CBI under CAA section 114(c). These data elements are also listed individually by data category and proposed confidentiality determination in the memorandum entitled “Proposed Data Category Assignments for Subpart I” in Docket EPA-HQ-OAR-2011-0028. For three data elements, the EPA is proposing to make no CBI determination and, instead, make a case-by-case determination for actual data reported in these elements, as described in more detail in the table in Section III.D of this preamble. The EPA is specifically soliciting comments on the CBI proposals for data elements in these two data categories.

As described in Section III.C of this preamble, the EPA is proposing confidentiality determinations on an element-by-element basis for those that we are proposing to assign to the “Unit/Process `Static' Characteristics That are Not Inputs to Emission Equations” and “Unit/Process Operating Characteristics That are Not Inputs to Emission Equations” data categories. In this section, the EPA presents in Table 3 and Table 4 of this preamble the data elements that we are proposing to assign to those two data categories and the reasons for proposing to determine that each does or does not qualify as CBI under CAA section 114(c), or the reason that we are not making a CBI determination.

The electronics manufacturing industry uses multiple long-lived fluorinated greenhouse gases (fluorinated GHGs), as well as nitrous oxide (N 2 O) during manufacturing of electronic devices, including, but not limited to, liquid crystal displays, microelectro-mechanical systems, photovoltaic cells, and semiconductors. Fluorinated GHGs are used mainly for plasma etching of silicon materials, cleaning deposition tool chambers, and wafer cleaning, but may be used in other types of electronics manufacturing processes. Besides dielectric film etching and chamber cleaning, much smaller quantities of fluorinated GHGs are used to etch polysilicon films and refractory metal films like tungsten. Additionally, some electronics manufacturing equipment may employ fluorinated GHG liquids as HTFs. Nitrous oxide may be the oxidizer of choice during deposition of silicon oxide films in manufacturing electronic devices.

These electronic manufacturing steps are performed in carefully controlled process chambers containing the silicon wafers and the fluorinated GHGs or N 2 O. Producing a finished wafer with multiple electronic devices (e.g., computer chips) may require depositing and etching 50 or more individual layers of material. The conditions under which the individual steps are performed, the ability of a facility to produce certain electronic features, and the ability of a facility to produce a certain number of devices with a minimum number of defects at a certain cost per unit, among other variables, affect the overall efficiency of the manufacturing process, and thus contribute to the business's profitability. These processes, therefore, are a factor in the competitive standing of a particular facility in this industry.

The EPA is proposing to assign 16 subpart I data elements to the “Unit/Process `Static' Characteristics That are Not Inputs to Emission Equations” data category because they are basic characteristics of abatement devices and tools that do not vary with time or with the operations of the process (and are not inputs to emission equations). These 16 data elements are shown in Table 3 of this preamble along with their proposed confidentiality determination and the associated justification for the determination:

The EPA is proposing to assign 23 subpart I data elements to the “Unit/process Operating Characteristics That Are Not Inputs to Emission Equations” data category because they are characteristics of the abatement systems and other equipment, the facility conditions, and the products manufactured that vary over time with changes in operations and processes (and are not inputs to emission equations). Thirteen of these data elements are part of extension requests for the use of BAMM and generally relate to the reasons for a request and expected dates of compliance. Ten are part of the annual GHG report for 40 CFR part 98, subpart I. These 23 data elements are shown in Table 4 of this preamble along with their proposed confidentiality determination and the associated justification for the determination:

We seek comment on the proposed confidentiality status of data elements in two direct emitter data categories (“Unit/Process `Static' Characteristics That are Not Inputs to Emission Equations” and “Unit/Process Operating Characteristics That are Not Inputs to Emission Equations”). By proposing confidentiality determinations prior to data reporting through this proposal and rulemaking process, we provide potential reporters an opportunity to submit comments identifying data they consider sensitive and the rationales and supporting documentation, same as those they would otherwise submit for case-by-case confidentiality determinations. We will evaluate claims of confidentiality before finalizing the confidentiality determinations. Please note that this will be reporters' only opportunity to substantiate your confidentiality claim. Upon finalization of this rule, the EPA will release or withhold subpart I data in accordance with 40 CFR 2.301, which contains special provisions governing the treatment of 40 CFR part 98 data for which confidentiality determinations have been made through rulemaking.

Please consider the following instructions in submitting comments on the data elements in subpart I.

Please identify each individual data element you do or do not consider to be CBI or emission data in your comments. Please explain specifically how the public release of that particular data element would or would not cause a competitive disadvantage to a facility. Discuss how this data element may be different from or similar to data that are already publicly available. Please submit information identifying any publicly available sources of information containing the specific data elements in question, since data that are already available through other sources would not be CBI. In your comments, please identify the manner and location in which each specific data element you identify is available, including a citation. If the data are physically published, such as in a book, industry trade publication, or federal agency publication, provide the title, volume number (if applicable), author(s), publisher, publication date, and ISBN or other identifier. For data published on a Web site, provide the address of the Web site and the date you last visited the Web site and identify the Web site publisher and content author.

If your concern is that competitors could use a particular input to discern sensitive information, specifically describe the pathway by which this could occur and explain how the discerned information would negatively affect your competitive position. Describe any unique process or aspect of your facility that would be revealed if the particular data element you consider sensitive were made publicly available. If the data element you identify would cause harm only when used in combination with other publicly available data, then describe the other data, identify the public source(s) of these data, and explain how the combination of data could be used to cause competitive harm. Describe the measures currently taken to keep the data confidential. Avoid conclusory and unsubstantiated statements, or general assertions regarding potential harm. Please be as specific as possible in your comments and include all information necessary for the EPA to evaluate your comments.

Following the publication of the final subpart I rule in the Federal Register, an industry association requested reconsideration of numerous provisions in the final rule. The proposed amendments in this action are in response to the request for reconsideration of the specific provision that requires facilities that have been granted extensions to use best available monitoring methods (BAMM) to recalculate their emissions for the time period for which BAMM was used at a later date using methods that are fully compliant with subpart I. The other amendments that have been made to date are also related to the reconsideration petition.

As mentioned above in Section II.C of this preamble, the EPA is finalizing technical corrections and revisions regarding the definition of fluorinated HTFs and the provisions to estimate and report emissions of fluorinated HTFs in a separate action.

As finalized in December 2010, subpart I allowed facilities to use BAMM without going through an application process until July 1, 2011. In 2011, the EPA published other amendments to subpart I, including several related to the BAMM provisions. On June 22, 2011, the EPA extended the period in subpart I for using the BAMM provisions without going through an application process to September 30, 2011 (76 FR 36339). Under the September 27, 2011 amendments to subpart I, this initial BAMM period was extended through December 31, 2011. Facilities were given until October 17, 2011 to apply for an extension beyond this initial period. Under subpart I, facilities could apply to use BAMM after December 31, 2011 for any parameter for which it is not reasonably feasible to acquire, install, or operate a required piece of monitoring equipment in a facility, or to procure necessary measurement services (40 CFR 94(a)(1)).

Also on September 27, 2011, the EPA amended the calculation and monitoring provisions for large semiconductor manufacturing facilities that fabricate devices on wafers measuring 300 millimeters or less in diameter (76 FR 59542). The large semiconductor manufacturing facilities are those that have an annual manufacturing capacity of greater than 10,500 square meters of substrate. For reporting years 2011, 2012, and 2013, these amendments allow the large semiconductor facilities the option to calculate emissions using default emission factors already contained in subpart I, instead of using recipe-specific utilization and by-product formation rates for the plasma etching process type.

The EPA is proposing to amend subpart I to remove the requirement that facilities that are granted an extension to use BAMM must recalculate and resubmit the emissions estimate for the BAMM extension period. Currently, subpart I requires facilities, after the end of the period for which they have been granted a BAMM extension, to recalculate and resubmit all emissions after they have begun following all applicable monitoring methods of subpart I. The September 27, 2011 amendments did not alter the BAMM recalculation provisions in subpart I.

Under 40 CFR 98.94(a)(2) and (3), a facility granted an extension “through December 31, 2011”, per the original schedule in the rule, must include recalculated 2011 emissions in its 2012 emission report due in 2013, unless it receives an additional extension. Under 40 CFR 98.94(a)(4), a facility granted an extension beyond December 31, 2011, must include recalculated 2012 emissions in its 2013 emission report due in March 2014. Under 40 CFR 98.94(a)(2) and (a)(4), facilities are not required to verify their 2011 and 2012 BAMM engineering model for apportioning gas consumption in their recalculated report.

The petitioners have noted that in the case of subpart I, the requirement for facilities to recalculate emissions in full compliance with subpart I would require them to implement data collection at a level of detail that is not currently feasible for all facilities using the BAMM provisions.

Industry members that are applying for BAMM extensions have noted that, although they have systems to track data that are pertinent to processing of wafers and determining tool capacities and manufacturing efficiency, those systems are not currently designed to apportion gas usage to any particular recipe or tool, or to produce the apportioning factors required by the rule. They have also noted that they will not have the systems in place (including hardware and software upgrades) to collect the data needed to develop heel factors, and to track abatement system up-time according to subpart I.

The petitioners also noted that the compliance schedule for subpart I does not provide adequate time for facilities using BAMM to implement the data collection needed to recalculate emissions at a later date. The final subpart I was published on December 1, 2010, and became effective on January 1, 2011. On January 1, 2011, a facility would have needed some method in place to track the chemicals, the flow stabilization times, reactor pressure, individual gas flow rates, and applied radio frequency power.

After considering these requests, the EPA is proposing to remove the requirements to recalculate and resubmit all emission estimates for subpart I. The EPA has determined that there may be significant burden imposed by a broad recalculation requirement for subpart I. In addition, the EPA's ongoing consideration of potential further revisions to the calculation and monitoring requirements complicates the recalculation requirement. For example, while the agency may want to evaluate the feasibility of a recalculation requirement for any new methodologies, we do not believe the automatic imposition of a recalculation requirement is appropriate at this time. Finally, it is important to note, the majority of the other subparts of Part 98 with specific BAMM provisions do not require facilities to recalculate or resubmit emission estimates after the BAMM period has been completed. We have, therefore, concluded that it is not necessary to require facilities that have been granted extensions to use best available monitoring methods to recalculate their emissions for the time period for which BAMM was used at a later date using calculation methods in subpart I.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action, which is proposing to (1) assign subpart I data reporting elements into data categories; (2) determine CBI status for the remaining data elements for which determinations have not yet been made; and (3) amend reporting methodologies in subpart I that would reduce the data collection and submittal burden for certain facilities, is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

As previously mentioned, this action proposes confidentiality determinations and proposes amended reporting methodologies in subpart I that would reduce the data collection burden for certain facilities. This action does not increase the reporting burden. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in subpart I, under 40 CFR part 98, under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) documents prepared by the EPA have been assigned OMB control number 2060-0650 for subpart I. The OMB control numbers for the EPA's regulations in 40 CFR are listed at 40 CFR part 9.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this re-proposal on small entities, “small entity” is defined as: (1) A small business as defined by the Small Business Administration's regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

This action proposes confidentiality determinations and proposes amended reporting methodologies in subpart I that would reduce the data collection burden for certain facilities. After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. The small entities directly regulated by this proposed rule are facilities included in NAICS codes for Semiconductor and Related Device Manufacturing (334413) and Other Computer Peripheral Equipment Manufacturing (334119). As shown in Tables 5-13 and 5-14 of the Economic Impact Analysis for the Mandatory Reporting of Greenhouse Gas Emissions Final Rule (74 FR 56260, October 30, 2009) available in docket number EPA-HQ-OAR-2008-0508, the average ratio of annualized reporting program costs to receipts of establishments owned by model small enterprises was less than 1% for industries presumed likely to have small businesses covered by the reporting program.

The EPA took several steps to reduce the impact of Part 98 on small entities. For example, the EPA determined appropriate thresholds that reduced the number of small businesses reporting. For some source categories, the EPA developed tiered methods that are simpler and less burdensome. In addition, the EPA conducted several meetings with industry associations to discuss regulatory options and the corresponding burden on industry, such as recordkeeping and reporting. Finally, the EPA continues to conduct significant outreach on the mandatory GHG reporting rule and maintains an “open door” policy for stakeholders to help inform the EPA's understanding of key issues for the industries.

We continue to be interested in the potential impacts of this action on small entities and welcome comments on issues related to such effects.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, requires federal agencies, unless otherwise prohibited by law, to assess the effects of their regulatory actions on state, local, and tribal governments and the private sector. Federal agencies must also develop a plan to provide notice to small governments that might be significantly or uniquely affected by any regulatory requirements. The plan must enable officials of affected small governments to have meaningful and timely input in the development of the EPA regulatory proposals with significant federal intergovernmental mandates and must inform, educate, and advise small governments on compliance with the regulatory requirements.

This action, which is proposing confidentiality determinations and amended reporting methodologies in subpart I that would reduce the data collection burden for certain facilities, does not contain a federal mandate that may result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or the private sector in any one year. This action does not increase the reporting burden. Thus, this action is not subject to the requirements of sections 202 or 205 of the UMRA.

In developing Part 98, the EPA consulted with small governments pursuant to a plan established under section 203 of the UMRA to address impacts of regulatory requirements in the rule that might significantly or uniquely affect small governments. For a summary of the EPA's consultations with state and/or local officials or other representatives of state and/or local governments in developing Part 98, see Section VIII.D of the preamble to the final rule (74 FR 56370, October 30, 2009).

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, as specified in Executive Order 13132. However, for a more detailed discussion about how Part 98 relates to existing state programs, please see Section II of the preamble to the final rule (74 FR 56266, October 30, 2009).

This action, which is proposing confidentiality determinations and amended reporting methodologies in subpart I that would reduce the data collection burden, would only apply to certain electronics manufacturers. No state or local government facilities are known to be engaged in the activities that would be affected by the provisions in this proposed rule. This action also does not limit the power of states or localities to collect GHG data and/or regulate GHG emissions. Thus, Executive Order 13132 does not apply to this action.

In the spirit of Executive Order 13132, and consistent with the EPA policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed action from state and local officials. For a summary of the EPA's consultation with state and local organizations and representatives in developing Part 98, see Section VIII.E of the preamble to the final rule (74 FR 56371, October 30, 2009).

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action, which proposes confidentiality determinations and proposes amended reporting methodologies in subpart I that would reduce the data collection burden for certain facilities, does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). No tribal facilities are known to be engaged in the activities affected by this action. Thus, Executive Order 13175 does not apply to this action. For a summary of the EPA's consultations with tribal governments and representatives, see Section VIII.F of the preamble to the final rule (74 FR 56371, October 30, 2009). The EPA specifically solicits additional comment on this proposed action from tribal officials.

The EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action, which is proposing to (1) assign subpart I data reporting elements into data categories; (2) determine CBI status for the remaining data elements for which determinations have not yet been made; and (3) amend reporting methodologies in subpart I that would reduce the data collection and submittal burden for certain facilities, is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

This action, which is proposing to (1) assign subpart I data reporting elements into data categories; (2) determine CBI status for the remaining data elements for which determinations have not yet been made; and (3) amend reporting methodologies in subpart I that would reduce the data collection and submittal burden for certain facilities, is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355 (May 22, 2001)). It is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action does not increase the reporting burden. The proposed rule amendments in this action do not impose any significant changes to the current reporting requirements contained in 40 CFR part 98, subpart I; rather, the proposed amendments to the reporting requirements would only affect certain electronics manufacturers. Therefore, this action is not subject to Executive Order 13211.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113 (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs the EPA to provide Congress, through OMB, explanations when the agency decides not to use available and applicable voluntary consensus standards.

This action, which is proposing to (1) assign subpart I data reporting elements into data categories; (2) determine CBI status for the remaining data elements for which determinations have not yet been made; and (3) amend reporting methodologies in subpart I that would reduce the data collection and submittal burden for certain facilities, does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

The EPA has determined that this action, which is proposing to (1) assign subpart I data reporting elements into data categories; (2) determine CBI status for the remaining data elements for which determinations have not yet been made; and (3) amend reporting methodologies in subpart I that would reduce the data collection and submittal burden for certain facilities, will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This action addresses only reporting and recordkeeping procedures.

For the reasons set out in the preamble, title 40, chapter I, of the Code of Federal Regulations is proposed to be amended as follows:

This document proposes to reinstate the maximum observed constituent concentrations for several listed hazardous wastes that were inadvertently removed from the regulations by a November 8, 2000 final rule. The listed hazardous wastes and the respective reportable quantities are included in the regulations for Hazardous Substances and Reportable Quantities. We have published a direct final rule to reinstate the maximum observed constituent concentrations in the “Rules and Regulations” section of this Federal Register because we view this as a noncontroversial action and anticipate no adverse comment. We have explained our reasons for this action in the preamble to the direct final rule.

If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, however, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

This proposed rule would reinstate the maximum observed constituent concentrations for listed hazardous wastes K169, K170, K171, and K172 to the table found in 40 CFR 302.6(b)(1)(iii). A November 8, 2000 final rule (Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Chlorinated Aliphatics Production Wastes; Land Disposal Restriction for Newly Identified Wastes; CERCLA Hazardous Substance Designation and Reportable Quantities; Final Rule) inadvertently removed the maximum observed constituent concentrations for those listed hazardous wastes from the table in that section when it was amended to include the maximum observed constituent concentrations for listed hazardous wastes K174 and K175. ( See 65 FR 67132.) The maximum observed constituent concentrations were included in the 40 CFR 302.6 regulations to allow generators, transporters, and disposal facilities handling these wastes to calculate reportable quantities (RQs) using the mixture rule  1 developed in connection with the Clean Water Act section 311 regulations. The listed hazardous wastes K169, K170, K171, and K172 and their respective RQs are included in Table 302.4—List of Hazardous Substances and Reportable Quantities and Appendix A to section 302.4—Sequential CAS Registry Number List of CERCLA Hazardous Substances of Title 40 of the Code of Federal Regulations. However, the aforementioned Table 302.4 and Appendix A do not contain the maximum observed constituent concentrations. Section 302.6 is the only source of these maximum observed constituent concentrations contained in 40 CFR 302—Designation, Reportable Quantities, and Notification.

For a complete discussion of all of the administrative requirements applicable to this action, see the direct final rule in the Rules and Regulations section of this Federal Register .

For the reasons set out, title 40, chapter I of the Code of Federal Regulations is proposed to be amended as follows:

This action is directed to the public in general. This action may, however, be of interest to you if you manufacture, process, import, or distribute in commerce fishing tackle containing lead. Since other entities may also be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

EPA has established a record for this petition response under docket identification (ID) number EPA-HQ-OPPT-2012-0135. All documents in the docket are listed in the docket index available at http://www.regulations.gov. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically at http://www.regulations.gov, or, if only available in hard copy, at the OPPT Docket. The OPPT Docket is located in the EPA Docket Center (EPA/DC) at Rm. 3334, EPA West Bldg., 1301 Constitution Ave. NW., Washington, DC. The EPA/DC Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number of the EPA/DC Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Docket visitors are required to show photographic identification, pass through a metal detector, and sign the EPA visitor log. All visitor bags are processed through an X-ray machine and subject to search. Visitors will be provided an EPA/DC badge that must be visible at all times in the building and returned upon departure.

Under TSCA section 21 (15 U.S.C. 2620), any person can petition EPA to initiate a rulemaking proceeding for the issuance, amendment, or repeal of a rule under TSCA section 4, 6, or 8 or an order under TSCA section 5(e) or 6(b)(2). A TSCA section 21 petition must set forth the facts that are claimed to establish the necessity for the action requested. EPA is required to grant or deny the petition within 90 days of its filing. If EPA grants the petition, the Agency must promptly commence an appropriate proceeding. If EPA denies the petition, the Agency must publish its reasons for the denial in the Federal Register . A petitioner may commence a civil action in a U.S. district court to compel initiation of the requested rulemaking proceeding within 60 days of either a denial or the expiration of the 90-day period if EPA fails to respond within 90 days.

Section 21(b)(1) of TSCA requires that the petition “set forth the facts which it is claimed establish that it is necessary” to issue the rule or order requested. 15 U.S.C. 2620(b)(1). Thus, TSCA section 21 implicitly incorporates the statutory standards that apply to the requested actions. In addition, TSCA section 21 establishes standards a court must use to decide whether to order EPA to initiate rulemaking in the event of a lawsuit filed by the petitioner after denial of a TSCA section 21 petition. 15 U.S.C. 2620(b)(4)(B). Accordingly, EPA has relied on the standards in TSCA section 21 and in the provisions under which actions have been requested to evaluate this petition.

On November 17, 2011, the Center for Biological Diversity, the Loon Lake Loon Association, and Project Gutpile petitioned EPA to “evaluate the unreasonable risk of injury to the environment from fishing tackle containing lead (including fishing weights, sinkers, lures, jigs, and/or other tackle) of various sizes and uses that are ingested by wildlife resulting in lead exposure” and to “initiate a proceeding for the issuance of a rulemaking under section 6(a) of TSCA to adequately protect against such risks” (Ref. 1, p. 27). The petition expressly states that this petition “asks the EPA to initiate a rulemaking for regulations that adequately protect wildlife against the unreasonable risk of injury from lead fishing tackle * * *. This petition does not request a specific regulatory alternative. It is the obligation of the EPA to determine the least burdensome alternative that adequately addresses the unreasonable risk of injury” (Ref. 1, p. 8). As such, the petition does not actually identify a rule to be issued, amended, or repealed.

This is not the first time EPA has been petitioned to take action with respect to fishing tackle containing lead. On August 3, 2010, the Center for Biological Diversity, American Bird Conservancy, Association of Avian Veterinarians, Project Gutpile, and Public Employees for Environmental Responsibility filed a petition under TSCA section 21 requesting that EPA prohibit under TSCA section 6(a) the manufacture, processing, and distribution in commerce of lead fishing gear (Ref. 2). In particular, the 2010 petitioners requested a nationwide, uniform ban on the manufacture, processing, and distribution in commerce of lead for use in all fishing gear, regardless of size, including sinkers, jigs, and other tackle. EPA denied the petition on November 4, 2010 (Ref. 2). The comments that EPA received from states and a state organization about the 2010 petition highlighted the geographic focus of state controls on lead fishing tackle (Ref. 2). Several state fish and game agencies submitted comments, all supporting denial of the petition (Ref. 2).

Additionally, on October 20, 1992, the Environmental Defense Fund, Federation of Fly Fishers, Trumpeter Swan Society, and North American Loon Fund petitioned EPA under section 21 of TSCA and the Administrative Procedure Act to initiate rulemaking procedures under section 6(a) of TSCA to require that the sale of lead fishing sinkers be accompanied by an appropriate label or notice warning that such products are toxic to wildlife (Ref. 3). EPA granted the petition and, ultimately, in 1994, EPA proposed a rule under section 6(a) of TSCA to prohibit the manufacturing, processing, and distribution in commerce in the United States, of certain smaller size fishing sinkers containing lead and zinc, and mixed with other substances, including those made of brass (59 FR 11122, March 9, 1994). EPA received comments from many states or state agencies in response to the 1994 proposal; the majority of these comments argued that Federal action was not warranted. That proposal has not been finalized and in 2005 EPA indicated its intent to withdraw the proposal (70 FR 27625, May 16, 2005). Given limited resources and competing priorities, EPA has not yet formally withdrawn the proposal but is currently taking steps to do so.

On February 14, 2012, EPA denied the November 2011 petition. A copy of the Agency's response, which consists of a letter to the petitioners, is available in the docket for this petition. EPA's reasons for denying the petition are provided in Unit IV.B.

In denying the petitioners' request, EPA determined that the petitioners did not demonstrate that Federal action is necessary based, in part, on the fact that the petitioners' supporting data indicate that the issue of wildlife exposure to fishing tackle containing lead has a regional or local geographic context coupled with the fact that the states where risk of injury appears to be greatest (based on documented incidences) are largely the states that have taken action to address the risks posed by lead fishing tackle. While several species of waterfowl are included, the most extensive information provided in the petition pertains to the ingestion by loons of fishing tackle containing lead and indicates that common loons are known to ingest lead objects more frequently than other species of water birds sampled across the United States. For loons, most of the documented cases of lead tackle ingestion cited in the petition are for the time period between 1987 and 2002 and are confined to northern states, all of which are located on or near the northern border of the United States. The U.S. Fish and Wildlife Service report cited in the petition also indicates that loon populations are stable or increasing in all of these northern states where lead tackle ingestion by loons has been documented, with the exception of Washington. While such examples suggest harm to wildlife, and waterfowl in particular, they do not, in and of themselves, demonstrate that Federal rulemaking under section 6(a) of TSCA is necessary.

Indeed, as evidenced by the petition, since 2000, a number of states have established regulations that ban or restrict the use of lead tackle. In addition, a number of other states have created state education and/or fishing tackle exchange programs. In light of the emergence and expansion of these programs and other activities over the past decade coupled with a paucity of data on bird mortality attributable to lead tackle ingestion during this same timeframe, the petition does not suffice to establish that a Federal action under section 6(a) of TSCA as requested by the petitioners is necessary to adequately protect wildlife.

Specifically, since 2000, Maine, Massachusetts, New Hampshire, New York, Vermont, and Washington have banned or limited the use of fishing sinkers. Maine, New York, and Vermont have banned the sale of lead fishing sinkers of less than one-half ounce. Two states, Massachusetts and New Hampshire, have expanded the scope of water bodies covered by use prohibitions over time. In Massachusetts, the use of all lead sinkers was initially prohibited in the Quabbin and Wachusett Reservoirs, the loons' primary habitat in the state. The Massachusetts regulations expanded the use prohibitions, effective in 2012, to include additional tackle—lead weights, and lead fishing jigs of less than one ounce—and to encompass all inland waters. In New Hampshire, initial use prohibitions for fishing sinkers and jigs were expanded from lakes and ponds to all waters of the state in 2006. In 2011, Washington State began to regulate fishing tackle containing lead by approving measures to prohibit the use of fishing tackle containing lead at lakes with nesting common loons. EPA also notes that other states (e.g., Minnesota and Wisconsin) have voluntary education or outreach programs, including efforts to discourage the use of fishing tackle containing lead, to raise awareness of lead poisoning in wildlife, and events to exchange fishing tackle containing lead for lead-free alternatives.

Thus, the trend is that states are being responsive to the harms attributed to fishing tackle containing lead by implementing regulatory and voluntary programs.

For example, EPA notes that among the states where the petition cites documented cases of lead tackle ingestion by loons, five of the states regulate the use or sale of fishing tackle containing lead and have been doing so since at least 2006. Further, EPA notes that two states with voluntary programs are among the same states. In other words, the states where ingestion of fishing tackle containing lead is best linked to loon mortality have responded with regulatory or voluntary programs. In some cases, these programs have expanded over time. The petition does not demonstrate that these state and local efforts are ineffective or have failed to reduce the exposure and risks presented to waterfowl in particular. In light of these state actions, EPA concludes that the petition does not demonstrate that action under TSCA section 6(a) is necessary to adequately protect wildlife.

EPA also notes that when Federal actions have been taken to address the use of lead fishing tackle in federally managed lands and water bodies across the nation, they have been limited to specific, localized National Wildlife Refuges, not the entire National Wildlife Refuge System. For example, use of fishing tackle containing lead is prohibited in several wildlife refuges, including in states with breeding loon populations such as Rachel Carson National Wildlife Refuge in Maine, Seney National Wildlife Refuge in Michigan, and Red Rock Lakes National Wildlife Refuge in Montana.

Moreover, EPA recognizes that state and local natural resource agencies consider geographic context in their resource assessments, and manage these resources based on evaluations of local impacts on fish and wildlife resources and habitats. EPA also is cognizant that these state and local agencies historically have made such evaluations while considering the societal benefits of traditional fishing practices. This perspective is supported by the vast majority of comments received from states and members of the general public on the petition submitted on August 3, 2010 (Ref. 2) and the section 6(a) rule proposed by EPA on March 9, 1994 (59 FR 11122).

In response to the petition submitted on August 3, 2010, EPA received comments from states and a state organization that highlight the geographic focus of state controls on lead fishing tackle. According to the Association of Fish and Wildlife Agencies, “the exposure to certain migratory birds (primarily loons, and to a lesser extent, swans) and related impacts to populations of those birds is localized, and where impacts have been substantiated to be significant, state fish and wildlife agencies have acted to regulate the use of lead sinkers and jigs. In the northeast, five states have enacted restrictions (e.g., ban in certain bodies of water; ban on certain weights and sizes) on the use of lead fishing tackle where studies have identified lead toxicosis as a contributing factor to declining loon populations. Some states are also offering a fishing tackle exchange program (non-lead for lead products). States have thus demonstrated a responsible exercise of their authority to regulate or restrict lead fishing tackle under circumstances of exposure where it contributes to decline in loon populations” (Ref. 2).

All state agencies that commented on the 2010 petition supported the denial of the petition and provided several reasons why Federal action is unwarranted (Ref. 2). These comments assert that mortality from ingestion of lead fishing tackle is rare and is primarily limited to some areas of the country, that states are already working closely with the U.S. Fish and Wildlife Service on education and exchange programs, and that where there have been impacts on loons and trumpeter swans, states have already taken action. These states contend that, because policy development is biologically, socially, and economically complex, these impacts are best addressed by geographically targeted actions that the states are undertaking. As noted by these commenters, states in the northern part of the country, where the majority of the impacts on loons in particular have been observed, have taken action to limit or ban the use of lead sinkers or have implemented tackle exchange programs.

In addition, comments received on the 2010 petition from Members of Congress, representing two different states (e.g., Arkansas and Wisconsin), also opposed Federal action on lead fishing tackle (Ref. 2). A Representative from Wisconsin opposed a prohibition on lead fishing tackle in favor of voluntary education and outreach programs (Ref 2).

These comments were consistent with the comments EPA received in response to the 1994 proposal. In their comments on the 1994 proposed rule, numerous state fish and wildlife management agencies from across the U.S. commented that they did not believe that the data as a whole (e.g., exposure information, limited incidents of lead toxicity linked to tackle, number of specific species likely to be affected, geographic nature of the issue), support the need for a nationwide ban on fishing tackle containing lead. Many of these states also strongly expressed their opinion that they, as state fish and wildlife agencies, have the best knowledge of the status of bird populations in their states and are therefore best suited to identify if their wildlife resources are impacted, and to determine what the most appropriate management actions should be, if any. In total, the vast majority of these comments opposed the prohibitions in the 1994 proposed rule.

These comments and the actions taken by states reinforce EPA's conclusion that petitioners have not shown that Federal action under TSCA section 6(a) is necessary to protect wildlife resources at this time.

EPA also recognizes that the market for fishing tackle and equipment continues to change and that the prevalence of non-lead alternatives in the marketplace continues to increase. While fishing tackle containing lead may still constitute the largest percentage of the market, the availability of lead-free alternatives has increased in the last decade (Ref. 2). New non-lead products have entered the market, and the market share of lead sinkers has decreased (Ref. 2). With improvements in technology, changes in consumer preferences, state-level restrictions, and increased market competition, the market for lead fishing sinkers is expected to continue to decrease while the market for substitutes such as limestone, steel, and tungsten fishing sinkers is expected to continue to increase. (Ref. 2). In light of these trends, the petition does not demonstrate that rulemaking is necessary under TSCA section 6(a).

In sum, EPA is not persuaded that the action requested by the petitioners is necessary given the mix of regulatory and education actions states agencies and the Federal Government already are taking to address the impact of lead fishing tackle on local environments. The risk described by the petitioners does appear to be more prevalent in some geographic areas than others, and the trend over the past decade has been for increasing state and localized Federal activity regarding lead in fishing tackle. Therefore, EPA concludes that the petition does not demonstrate that action under TSCA section 6(a) is necessary in light of these state and Federal actions.

Furthermore, for the same reasons stated in this unit, while the petition does provide evidence of exposure and a risk to waterfowl in some areas of the United States, it does not provide a basis for finding that the risk presented is an unreasonable risk. “The finding of unreasonable risk is a judgment under which the decision-maker determines that the risk of health or environmental injury from the chemical substance or mixture outweighs the burden to society of potential regulations” (59 FR 11122, 11138). Again, the risk described by the petitioners appears to be more prevalent in some geographic areas than others, and the trend over the past decade has been for increasing state and localized Federal activity regarding lead in fishing tackle. Given the mix of regulatory and educational actions state agencies and the Federal Government already are taking to address the impact of lead fishing tackle on local environments, and the other considerations described in Unit IV.B., the petition does not demonstrate that exposure from lead fishing tackle presents an unreasonable risk.

Finally, although EPA proposed to make a finding that lead fishing tackle presented an unreasonable risk in 1994, the Agency did not finalize that rule and indicated its intent to withdraw the proposal in 2005 (70 FR 27625). The Agency's view that the proposal should be withdrawn is buttressed by the emergence and continued expansion of state and local programs in the states that appear to be most affected. Likewise, other data and information (e.g., incidents of lead tackle ingestion and mortality in certain species of waterfowl) that supported that proposal are clearly outdated. To the extent that petitioners rely on that proposal, their reliance is unpersuasive.

For these reasons, EPA denied the petitioners' request.

The following is a list of the documents that are specifically referenced in this notice and placed in the docket that was established under docket ID number EPA-HQ-OPPT-2012-0135. For information on accessing the docket, refer to Unit I.B.

On November 4, 1988, Congress enacted the Health Omnibus Programs Extension of 1988, Public Law (Pub. L.) 100-607, Title VI of which amended the Public Health Service (PHS) Act by adding section 487A (42 U.S.C. 288-1) entitled Loan Repayment Program for Research with Respect to Acquired Immune Deficiency Syndrome. Subsequently, in the NIH Revitalization Act of 1993 (Pub. L. 103-43), Congress enacted the Loan Repayment Program for Research with Respect to Contraception and Infertility (section 487B; 42 U.S.C. 288-2); the Loan Repayment Program for Research Generally (section 487C; 42 U.S.C. 288-3); and the Loan Repayment Program for Clinical Researchers from Disadvantaged Backgrounds (section 487E; 42 U.S.C. 288-5). The Children's Health Act of 2000 (Pub. L. 106-310), which was enacted on October 17, 2000, added the Pediatric Research Loan Repayment Program (section 487F;  1 42 U.S.C. 288-6). On November 13, 2000, the Clinical Research Enhancement Act, contained in the Public Health Improvement Act of 2000 (Pub. L. 106-505), enacted the Loan Repayment Program for Clinical Research (section 487F;  2 42 U.S.C. 288-5a). On November 22, 2000, the Minority Health and Health Disparities Research and Education Act of 2000 (Pub. L. 106-525) enacted the Loan Repayment Program for Health Disparities Research (section 485G, redesignated 464z-5;  3 42 U.S.C. 285t-2).

Sections 487A, 487B, 487C, 487E, and 487F of the PHS Act authorize the Secretary of Health and Human Services, and section 464z-5 authorizes the Director, National Institute on Minority Health and Health Disparities (NIMHD), to enter into contracts with qualified health professionals under which such professionals agree to conduct research in consideration of the Federal Government agreeing to repay, for each year of such service, not more than $35,000 of the principal and interest of the qualified educational loans of such professionals. In return for these loan repayments, applicants must agree to participate in qualifying research for an initial period of not less than two years (or a minimum of three years for the General Research LRP) as one of the following:

(a) An NIH employee (for Intramural LRPs), or

(b) A health professional engaged in qualifying research supported by a domestic nonprofit foundation, nonprofit professional association, or other nonprofit institution (e.g., university), or a U.S. or other government agency (Federal, State or local).

The purpose of the LRP programs is to recruit and retain highly qualified health professionals as biomedical and behavioral researchers. LRP programs offer educational loan repayment for participants who agree, by written contract, to engage in qualifying domestic nonprofit-supported research at a qualifying non-NIH institution, or as an NIH employee, for a minimum of two years (or three years for the Intramural General Research LRP).

Currently, the Clinical Research LRP for Individuals from Disadvantaged Backgrounds and the Contraception and Infertility Research LRP are governed by their own individual regulations while the other LRPs are without regulations. We propose to consolidate the regulations into a single set of regulations governing all the LRPs.

More specifically, we propose to rescind the current regulations codified at 42 CFR Part 68a, entitled, National Institutes of Health Clinical Research Loan Repayment Program for Individuals from Disadvantaged Backgrounds (CR-LRP), and 42 CFR Part 68c, entitled, National Institute of Child Health and Human Development Contraception and Infertility Research Loan Repayment Program, and issue a new consolidated set of regulations at 42 CFR part 68, entitled, National Institutes of Health Loan Repayment Programs (LRPs), to govern each of the eight individual NIH Loan Repayment Programs, the three that are for researchers employed by the NIH ( Intramural LRPs ) and the five that are for non-NIH scientists ( Extramural LRPs ). The three Intramural LRPs include the AIDS Research LRP, General Research LRP, and Clinical Research LRP for Individuals from Disadvantaged Backgrounds. The five Extramural LRPs include the Contraception and Infertility Research LRP, Clinical Research LRP for Individuals from Disadvantaged Backgrounds, Clinical Research LRP, Pediatric Research LRP, and Health Disparities Research LRP.

The purpose of this Notice of Proposed Rulemaking (NPRM) is to invite public comment on the proposed actions. We provide the following as public information.

We have examined the impacts of this rule as required by Executive Order 12866, Regulatory Planning and Review (September 30, 1993), Executive Order 13563, Improving Regulation and Regulatory Review (January 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), and Executive Order 13132 on Federalism (August 4, 1999).

Executive Order 12866, Regulatory Planning and Review, directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety and other advantages, distributive impacts, and equity). A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any one year). Based on our analysis, we believe that the proposed rulemaking does not constitute an economically significant regulatory action.

The Regulatory Flexibility Act requires agencies to analyze regulatory options that would minimize any significant impact of the rule on small entities. For the purpose of this analysis, small entities include small business concerns as defined by the Small Business Administration (SBA), usually businesses with fewer than 500 employees. Applicants who are eligible to apply for the loan repayment awards are individuals, not small entities. The Secretary certifies that this rule will not have a significant impact on a significant number of small entities.

Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement that includes an assessment of anticipated costs and benefits before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal organizations, in the aggregate, or by the private sector, of “$100,000,000 or more (adjusted annually for inflation with base year of 1995) in any one year.” The current inflation-adjusted threshold is approximately $145.5 million. The Secretary certifies that this rule does not mandate any spending by State, local or tribal government in the aggregate or by the private sector. Participation in the NIH loan repayment programs is voluntary and not mandated.

Executive Order 13132, Federalism, requires that Federal agencies consult with State and local government officials in the development of regulatory policies with federalism implications. We reviewed the rule as required under the Order, and determined that it does not have “federalism implications” because it will not have substantial direct effect on the States, the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Accordingly, under E.O. 13132, no further Agency action or analysis is required.

This proposed rule does not contain any new information collection requirements that are subject to Office of Management and Budget (OMB) approval under the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35). More specifically, § 68.6 is a reporting requirement, but the specifics of the burden are determined in the approved application forms used by the NIH Loan Repayment Programs and have been approved under OMB No. 0925-0361, Expiration Date: June 30, 2014. Additionally, § 68.3(c), § 68.3(e), § 68.11(c), § 68.14(c), § 68.14(d), and § 68.16(a) are reporting requirements and/or recordkeeping requirements, but they are also covered under OMB No. 0925-0361.

The Catalog of Federal Domestic Assistance numbered programs affected by the proposed regulations are:

For reasons presented in the preamble, it is proposed to amend title 42 of the Code of Federal Regulations by rescinding the current regulations at parts 68a and 68c, and adding Part 68 that encompasses all NIH Loan Repayment Programs, as set forth below.

I. Background

DoD, GSA, and NASA are proposing to revise the FAR to implement a policy that imposes on any foreign person that receives a specified Federal procurement payment a tax equal to 2 percent of the amount of such specified Federal procurement payment. Additionally, the law stipulates that no funds are to be disbursed to any foreign contractor in order to reimburse the tax imposed (26 U.S.C. 5000C Note).

The James Zadroga 9/11 Health and Compensation Act of 2010 (Pub. L. 111-347) was signed into law and effective on January 2, 2011. Section 301 of the law amends the Internal Revenue Code of 1986 by adding a new Section 5000C, Imposition of tax on certain foreign procurements (26 U.S.C. 5000C). This new section imposes on any foreign person that receives a specified Federal procurement payment a tax equal to 2 percent of the amount of such specified Federal procurement payment. Additionally, the law stipulates that no funds are to be disbursed to any foreign contractor in order to reimburse the tax imposed (26 U.S.C. 5000C Note).

To comply with the law, the FAR Council is proposing to amend FAR 31.205-41 to inform the Government and contractors that the costs of the 2 percent tax are not allowable, and at FAR 52.229-3, 52.229-4, 52.229-6 and 52.229-7, to provide that the costs for the 2 percent tax are not included in foreign fixed-price contracts and foreign fixed-price contracts with foreign governments. The law states that it “shall be applied in a manner consistent with international agreements.” The law states that the 2 percent excise tax is applied to foreign persons that receive Federal procurement payments pursuant to a contract with the Government of the United States for the provision of goods, if such goods are manufactured or produced in a covered country, or for the provision of services if those services are provided in a covered country. “Covered country” means a country that is not a country that is party to an international procurement agreement with the United States. “Foreign person” means any person (including any individual, partnership, corporation, or other form of association) other than a United States person. The law applies to contracts entered into on or after January 2, 2011. The procedures for withholding this 2 percent tax are being handled in a separate FAR case.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The change may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601, et seq. The Initial Regulatory Flexibility Analysis (IRFA) is summarized as follows:

The Regulatory Secretariat has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2011-011) in correspondence.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 31 and 52 as set forth below:

1. The authority citation for 48 CFR parts 31 and 52 continues to read as follows:

The New England Fishery Management Council (Council) is responsible for developing management measures for skate fisheries in the northeastern U.S. through the Northeast Skate Complex Fishery Management Plan (Skate FMP). Seven skate species are managed under the Skate FMP: Winter, little, thorny, barndoor, smooth, clearnose, and rosette. The Council's Scientific and Statistical Committee (SSC) reviews the best available information on the status of skate populations and makes recommendations on acceptable biological catch (ABC) for the skate complex (all seven species). This recommendation is then used as the basis for catch limits and other management measures for the skate fisheries.

Amendment 3 to the Skate FMP was implemented in July 2010 (75 FR 34049, June 16, 2010). It instituted an annual catch limit (ACL) and accountability measures (AMs) for the skate fishery, created an annual review and specifications process, and set fishery specifications for the 2010-2011 fishing years (through April 30, 2012). The ACL was set equal to the ABC recommendation of the SSC (41,080 metric tons (mt)). Amendment 3 also implemented an annual catch target (ACT), which is 75 percent of the ACL, and annual total allowable landings (TALs) for the skate wing and bait fisheries (TAL = ACT—dead discards and state landings), three seasonal quotas for the bait fishery, and possession limits in each fishery. Skate wing possession limits were subsequently modified by Framework Adjustment 1 (76 FR 28328, May 17, 2011).

In June 2011, the SSC gave the Council a new recommendation for skate ABC to be used for the 2012-2013 fishing years (50,435 mt). The proposed specifications reflect the best available scientific information on skates. The ABC is calculated by multiplying the median catch/biomass ratio by the most recent 3-year average skate biomass from the NMFS bottom trawl survey. A calibration workshop was conducted in early 2011 to determine the best method to calibrate skate survey biomass between the new survey vessel, Henry B. Bigelow, and the retired vessel, Albatross IV. The workshop resulted in minor updates to skate overfishing definitions (described below). Significant increases in the survey biomass of little and winter skates through autumn 2010 supported increases in the ABC recommendation. Additionally, new research on the discard mortality of winter and little skates in trawl gear indicates that the assumed discard mortality rate of 50 percent is too high, and that the dead discard portion of the catch has been overestimated in the past. Updates to estimates on state waters and transfer at sea landings were also incorporated.

In light of the significant increase in ABC, the Council requested that NMFS implement the revised catch limits through a Secretarial emergency action for the remainder of the 2011 fishing year. NMFS reviewed the Council's request and published a final rule on November 28, 2011, implementing increases in ABC, ACL, ACT, and TALs (76 FR 66856, October 28, 2011). The emergency action provided an otherwise unavailable economic opportunity by allowing the fishery to harvest more skates and have a longer fishing season during the 2011 fishing year. This also helped avoid the detrimental economic impacts that would have been associated with possibly closing the skate fisheries in the absence of the emergency action. These proposed specifications are intended to replace the measures implemented by the 2011 emergency action (which expire April 30, 2012), but are similar to the emergency action measures in most cases.

Based on the June 2011ABC recommendation from the SSC, the Council proposed the following specifications for the skate fishery for the 2012-2013 fishing years:

1. That the skate ABC and ACL be specified at 50,435 mt;

2. That the ACT be specified at 37,826 mt;

3. That the TAL be specified at 23,365 mt (the skate wing fishery would be allocated 66.5 percent of the TAL (15,538 mt) and the skate bait fishery would be allocated 33.5 percent of the TAL (7,827 mt));

4. That the skate bait possession limit be increased from 20,000 lb (9,072 kg) to 25,000 lb (11,340 kg) whole weight per trip for vessels carrying a valid Skate Bait Letter of Authorization; and,

5. That the skate wing possession limits be reduced from 2,600 lb (1,179 kg) to 2,200 lb (998 kg) wing weight per trip for Season I (May 1 through August 31), and decreased from 4,100 lb (1,860 kg) to 3,600 lb (1,633 kg) wing weight per trip for Season II (September 1 through April 30).

As described in the 2011 emergency action, the Council-recommended TAL uses an inappropriately low estimate of state water landings that must be deducted from the ACT (3 percent of total landings). More recent analyses using a more accurate definition of state water landings indicate that the 2007-2009 average state water landings were approximately 6.7 percent of total landings. Therefore, this action proposes to use the same TAL specified in the emergency action (21,561 mt), rather than the slightly higher TAL proposed by the Council and described above. This would effectively keep the skate TALs and associated quotas at status quo levels through the 2013 fishing year (Table 1). This TAL is 56 percent greater than the 2010 and initial 2011 TAL (no action alternative), continuing higher allowable harvest levels for skates.

This rule proposes minor reductions to the skate wing possession limits in an effort to avoid implementation of the incidental skate wing possession limit (i.e., closure of the directed skate wing fishery) before the end of the fishing year. The possession limit analysis used by the Council was based on skate landing rates in 2010 and early 2011 when landing rates were particularly high. However, landing rates have slowed during 2011, and the wing fishery is not currently projected to harvest 100 percent of its 2011 TAL. Therefore, there may not be justification to reduce the skate wing possession limits for the 2012-2013 fishing years. This rule proposes to increase the skate bait possession limit because the bait fishery consistently under-harvested its quotas in 2010 and 2011. NMFS is requesting comment on whether or not these proposed possession limit changes should be implemented.

Based upon the results of the trawl survey vessel calibration, this rule proposes to update stock status determination criteria for skates. These updates include refinement of the survey strata used for determining the stock status of each skate species, as described in the EA for this action (see the ADDRESSES section of this proposed rule for how to obtain copies of the EA). The updates of stock status determination criteria also adjust the overfishing definition for clearnose skate. Overfishing would be deemed to be occurring if the 3-year moving average biomass of clearnose skate declines by 40 percent or more (compared to the current threshold of 30 percent), reflecting the higher coefficients of variation (i.e., variability in catch between individual survey tows) for this species with the new trawl survey vessel.

The specifications in this proposed rule also apply previously unaccounted for skate bait transfers at sea against the skate bait fishery quotas. Analysis indicates that bait transfers at sea, on average, represent approximately 18 percent of total skate landings, and need to be considered when monitoring catch. Finally, in order to be consistent with the requirements of Amendment 3, this rule also proposes to remove a reference to Northeast multispecies sectors in the skate wing possession limit regulations found at § 648.322 (b). The skate wing possession limits were not intended to apply to sector vessels, and this reference should have been removed from the Amendment 3 final rule. This rule does not propose changes to any other regulations implemented by Amendment 3 or Framework Adjustment 1 (including inseason TAL triggers or incidental possession limits).

The proposed specifications are expected to maintain positive economic impacts for the fishery, such as the increases in skate revenues that resulted from implementation of the emergency rule, while also maintaining the conservation objectives of the Skate FMP. Although the landings of skate wings are expected to remain high under the proposed specifications, overall catch of skates will not likely be significantly affected due to the nature of the skate wing fishery, which is primarily an incidental fishery within the groundfish and monkfish fisheries. Under the no action alternative with lower quotas, once the possession limit trigger is reached, skates that are caught in these primary fisheries above the incidental possession limit of 500 lb (227 kg) would be discarded. This proposed rule would enable fishermen to continue to retain and land for sale those skates that would otherwise have to be discarded.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Skate FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

The Office of Management and Budget has determined that this proposed rule is not significant for the purposes of Executive Order 12866.

The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of this action, why it is being considered, and the legal basis for this action are contained at the beginning of this section of the preamble and in the SUMMARY of this proposed rule. A summary of the IRFA follows. A copy of the complete IRFA analysis is available from the Council (see ADDRESSES ).

The Small Business Administration (SBA) considers commercial fishing entities (NAICS code 114111) to be small entities if they have no more than $4 million in annual sales, while the size standard for charter/party operators (NAICS code 487210) is $7 million in sales. All of the entities (fishing vessels) affected by this action are considered small entities under the SBA size standards for small fishing businesses. Although multiple vessels may be owned by a single owner, available tracking of ownership is not readily available to reliably ascertain affiliated entities. Therefore, for the purposes of this analysis, each permitted vessel is treated as a single small entity and is determined to be a small entity under the RFA. Accordingly, there are no differential impacts between large and small entities under this rule. Information on costs in the fishery is not readily available, and individual vessel profitability cannot be determined directly; therefore, expected changes in gross revenues were used as a proxy for profitability.

This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.

The proposed increase in the skate ACL and TALs would impact vessels that hold Federal open access commercial skate permits that participate in the skate fishery. According to the Framework 1 final rule and Final Regulatory Flexibility Analysis (76 FR 28328, May 17, 2011), as of December 31, 2010, the maximum number of small fishing entities (as defined by the SBA) that may be affected by this action is 2,607 entities (number of skate permit holders). However, during fishing year 2010, only 601 vessels landed any amount of skate.

The purpose of annual fishery specifications is to ensure that management measures accurately reflect the best available scientific information. The proposed action represents the maximum catch limits that could be implemented under the approved Skate FMP and regulations. Alternatives with higher catch limits, that might provide increased fishing opportunities, were not considered because such alternatives would be inconsistent with the Magnuson-Stevens Act and the Skate FMP. Any other alternatives would provide fewer fishing opportunities than the proposed action; therefore, the IRFA analyzes only the proposed action and the no action alternative.

The purpose of the proposed action is to maintain the increased skate catch and landing limits of the emergency rule, thereby providing economic benefits to the fishery by continuing to extend the duration of the fishing season. This contrasts with the negative economic impacts that would be associated with the lower catch limits and potential fishery closures that would occur under the no action alternative. The proposed action is expected to maximize the short-term profitability for the skate fishery by continuing higher levels of landings for fishing years 2012 and 2013. It is also expected to minimize potential long-term economic impacts by implementing catch levels that are sustainable and that contribute to stock rebuilding. Therefore, the economic impacts resulting from the proposed action as compared to the no action alternative are positive.

The proposed action is almost certain to result in greater revenue from skate landings. Based on recent landing information, the skate fishery is able to land close to the full amount of skates allowable under the quotas. The estimated potential revenue from the sale of skates under the proposed catch limits is approximately $9.8 million per year, compared to $5.8 million if this action were not implemented. However, vessels that participate in the skate fishery derive most (an average of 96 percent) of their revenues from other fisheries (e.g., groundfish, monkfish). In fishing year 2010, the average total revenue (from all species combined) for the 601 vessels that landed skates was $234,389, of which an average of $17,042 was derived from skates. Therefore alterations to catch limits of other species would be expected to result in greater impacts on total fishing revenues than would alterations in skate catch limits. The proportion of revenue derived from skates may change over time, as skate prices have begun increasing in recent years, and more vessels have been deriving a greater proportion of their income from skates.

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows:

Electronic Access

This proposed rule is accessible via the Internet at the Office of the Federal Register's Web site at http://www.gpo.gov/fdsys/search/home.action. Background information and documents are available at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/.

The regulations at 50 CFR 660.50(d) establish the process by which the tribes with treaty fishing rights in the area covered by the Pacific Coast Groundfish Fishery Management Plan (FMP) request new allocations or regulations specific to the tribes, in writing, during the biennial harvest specifications and management measures process. The regulations state that “the Secretary will develop tribal allocations and regulations under this paragraph in consultation with the affected tribe(s) and, insofar as possible, with tribal consensus.” These procedures employed by NOAA in implementing tribal treaty rights under the FMP, in place since May 31, 1996, were designed to provide a framework process by which NOAA Fisheries can accommodate tribal treaty rights by setting aside appropriate amounts of fish in conjunction with the Pacific Fishery Management Council (Council) process for determining harvest specifications and management measures. The Council's groundfish fisheries require a high degree of coordination among the tribal, state, and federal co-managers in order to rebuild overfished species and prevent overfishing, while allowing fishermen opportunities to sustainably harvest over 90 species of groundfish managed under the FMP.

Since 1996, NMFS has been allocating a portion of the U.S. TAC (called Optimum Yield (OY) or Annual Catch Limit (ACL) prior to 2012) of Pacific whiting to the tribal fishery following the process established in 50 CFR 660.50(d). The tribal allocation is subtracted from the U.S. Pacific whiting TAC before allocation to the non-tribal sectors.

To date, only the Makah Tribe has prosecuted a tribal fishery for Pacific whiting. The Makah Tribe has annually harvested a whiting allocation every year since 1996 using midwater trawl gear. Since 1999, the tribal allocation has been made in consideration of their participation in the fishery. In 2008 the Quileute Tribe and Quinault Indian Nation expressed an interest in commencing participation in the whiting fishery. Tribal allocations for 2009-2011 were based on discussions with all three tribes regarding their intent for those fishing years. The table below provides a history of U.S. OYs/ACLs and the annual tribal allocation in metric tons (mt).

Prior to publication of the regulations for the 2011-2012 harvest specification biennial cycle, all three tribes mentioned above indicated their intent to participate at some point during this biennium. The Quinault Nation indicated that they were interested in entering the fishery in 2011, and both the Quileute and Makah Tribes indicated they intended to fish in both 2011 and 2012. Only the Makah tribe participated in the fishery in 2011. Based on exchanges with the tribes during November 2011, and again in January 2012, it appears that only the Makah tribe will participate in the Pacific whiting fishery in 2012.

Since 2008, NMFS and the co-managers, including the States of Washington and Oregon, as well as the Treaty tribes, have been involved in a process designed to determine the long-term tribal allocation for Pacific whiting. At the September 2008 Council meeting, NOAA, the states and the Quinault, Quileute, and Makah tribes met and agreed on a process in which NOAA would provide to the tribes and states of Washington and Oregon a summary of the current scientific information regarding whiting, receive comment on the information and possible analyses that might be undertaken, and then prepare analyses of the information to be used by the co-managers (affected tribes, affected states, and NMFS) in developing a tribal allocation for use in 2010 and beyond. The goal was agreement among the co-managers on a long-term tribal allocation for incorporation into the Council's planning process for the 2010 season. An additional purpose was to provide the tribes the time and information to develop an inter-tribal allocation or other necessary management agreement. In 2009, NMFS shared a preliminary report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. The co-managers met in 2009 and discussed this preliminary information.

In 2010, NMFS finalized the report summarizing scientific information available on the migration and distribution of Pacific whiting on the west coast. In addition, NMFS responded in writing to requests from the tribes for clarifications on the paper and requests for additional information. NMFS also met with each of the tribes in the fall of 2010 to discuss the report and to discuss a process for negotiation of the long-term tribal allocation of Pacific whiting.

In 2011, NMFS again met individually with the Makah, Quileute, and Quinault tribes to discuss these matters. Due to the detailed nature of the evaluation of the scientific information, and the need to negotiate a long-term tribal allocation following completion of the evaluation, the process is continuing and will not be completed prior to the 2012 Pacific whiting fishery; thus the tribal allocation of whiting for 2012 will not reflect a negotiated long-term tribal allocation. Instead, it is an interim allocation not intended to set precedent for future allocations.

It is necessary to propose a range for the tribal allocation, rather than a specific allocation amount, because the specific allocation depends on the amount of the coastwide TAC (United States plus Canada) and corresponding U.S. TAC for 2012 (73.88% of the coastwide TAC). The Joint Management Committee (JMC), which is established pursuant to the _ Agreement between the Government of the United States of America and the Government of Canada on Pacific Hake/Whiting _ (the Agreement) , is anticipated to recommend the coastwide and corresponding U.S./Canada TACs no later than March 25, 2012.

In the final Environmental Impact Statement (FEIS) addressing the groundfish fishery for the 2011 and 2012 harvest specifications and management measures, a range of 50 to 150 percent of the 2010 coastwide harvest level was analyzed.

The Council adopted a coastwide Overfishing Limit (OFL) of 973,700 mt for 2011 fisheries using the model-averaged results as recommended by the Council's Scientific and Statistical Committee (SSC). The Council recommended a coastwide harvest level of 393,751 mt for 2011 fisheries. Consistent with the terms of the Agreement, the U.S. allocation of the coastwide harvest level is 73.88 percent, which equated to 290,903 mt for 2011.

In order for the public to have an understanding of the potential tribal whiting allocation in 2012, NMFS is using the range of potential TACs analyzed in the 2011 FEIS to project a range of potential tribal allocations for 2012. Application of this range for 2011 resulted in a potential U.S. TAC of between 96,969 mt and 290,903 mt.

As described above, based on exchanges with the tribes during November 2011, and more recently in January, 2012, it appears that only the Makah tribe will participate in the Pacific whiting fishery in 2012, and they have requested 17.5% of the U.S. TAC. Application of this percentage to the range of U.S. TACs results in a tribal allocation of between 16,970 and 50,908 mt for 2012. NMFS believes that the current scientific information regarding the distribution and abundance of the coastal Pacific whiting stock suggests that 17.5 percent of the U.S. TAC is within the range of the tribal treaty right to Pacific whiting.

As described earlier, NOAA Fisheries proposes this rule as an interim allocation for the 2012 tribal Pacific whiting fishery. As with past allocations, this proposed rule is not intended to establish any precedent for future whiting seasons or for the long-term tribal allocation of whiting.

The proposed rule would be implemented under authority of Section 305(d) of the Magnuson-Stevens Act, which gives the Secretary responsibility to “carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act.” With this proposed rule, NMFS, acting on behalf of the Secretary, would ensure that the FMP is implemented in a manner consistent with treaty rights of four Northwest tribes to fish in their “usual and accustomed grounds and stations” in common with non-tribal citizens. United States v . Washington, 384 F. Supp. 313 (W.D. 1974).

NMFS proposes to reinstate its regulatory authority to reapportion whiting from the tribal allocation to the non-tribal fishery when the tribes participating in the fishery will not take the entire tribal allocation during the fishing year. From 1997 through 2010, 50 CFR 660.323(c) provided authority to NMFS to undertake such reapportionment. For 2011, the regulatory provisions regarding reapportionment of tribal whiting allocation to the non-tribal fishery were eliminated when regulations implementing Amendment 21 were adopted in support of the trawl rationalization program. Revisions to the groundfish regulations at § 660.55 defined how “off the top” set-asides for all species, including the tribal allocation of Pacific whiting, would be dealt with. The new provisions did not allow flexibility to return the “off the top” set asides, including those for Pacific whiting, to other sectors of the fishery. Following implementation of the catch share program, the Council had additional discussions about reapportionment of the tribal allocation of Pacific whiting. The Council recommended that NMFS reinstate reapportionment provisions in order to promote full utilization of the Pacific whiting resource. NMFS is taking action at this time to reinstate similar reapportionment provisions, recognizing that modifications are needed to fit within the new regulatory structure implemented for the IFQ fishery.

By September 15 of the fishing year, the Regional Administrator will consider, based on discussions with tribal representatives, the tribal harvests to date and catch projections for the remainder of the year relative to the tribal allocation as specified at § 660.50 of Pacific whiting. That portion of the tribal allocation the Regional Administrator determines will not be used by the end of the fishing year may be made available for harvest by the other sectors of the trawl fishery, on September 15 or as soon as practicable thereafter. Based on the same factors described above, the Regional Administrator may reapportion whiting again at a later date to ensure full utilization of the resource. Any reapportionment of Pacific whiting from the tribal to the non-tribal sectors will be distributed in a manner consistent with the initial allocation of Pacific whiting among the non-tribal sectors, with 34 percent to the catcher-processor sector, 24 percent to the mothership sector, and 42 percent to the shorebased sector.

Current regulations at 50 CFR 660.140(d)(3)(ii)(B)(3) require that all Quota Pounds (QP) or Individual Bycatch Quota (IBQ) pounds from a Quota Share (QS) account must be transferred to one or more vessel accounts by September 1 of each year. This effectively closes QS accounts for the year.

If the Regional Administrator makes a decision to reapportion Pacific whiting from the tribal to the non-tribal fishery after September 1 in any year, the following actions will be taken.

NMFS will credit QS accounts with additional Pacific whiting quota pounds proportionally, based on the whiting QS percent for a particular QS permit owner and the amount of the sector reapportionment. The QS account transfer function will be reactivated by NMFS for a period of 30 days to allow permit holders to transfer only Pacific whiting QP to vessel accounts. After 30 days, the transfer function in QS accounts will again be deactivated. If an additional reapportionment of Pacific whiting occurs, the same procedures will be followed.

NMFS has preliminarily determined that the management measures for the 2012 Pacific whiting tribal fishery are consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making the final determination, will take into account the data, views, and comments received during the comment period.

The Office of Management and Budget has determined that this proposed rule is not significant for purposes of Executive Order 12866.

An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES ).

Under the RFA, the term “small entities” includes small businesses, small organizations, and small governmental jurisdictions. The SBA has established size criteria for all different industry sectors in the US, including fish harvesting and fish processing businesses. A business involved in fish harvesting is a small business if it is independently owned and operated and not dominant in its field of operation (including its affiliates) and if it has combined annual receipts less than $4.0 million for all its affiliated operations worldwide. A seafood processor is a small business if it is independently owned and operated, not dominant in its field of operation, and employs 500 or fewer persons at all its affiliated operations worldwide. A business involved in both the harvesting and processing of seafood products is a small business if it meets the $4.0 million criterion for fish harvesting operations. A wholesale business servicing the fishing industry is a small business if it employs 100 or fewer persons at all its affiliated operations worldwide. For marinas and charter/party boats, a small business is a business with annual receipts less than $7.0 million. For nonprofit organizations, the RFA defines a small organization as any nonprofit enterprise that is independently owned and operated and is not dominant in its field. The RFA defines small governmental jurisdictions as governments of cities, counties, towns, townships, villages, school districts, or special districts with populations of less than 50,000.

Over the past five years (2007 to 2011), the total whiting fishery (tribal and non-tribal) has averaged landings of 197,000 mt annually, worth $36 million in terms of ex-vessel revenues. As the U.S. OY/ACL has been highly variable during this time, so have landings. During this period, landings have ranged from 121,000 mt (2009) to 248,000 mt (2008). Landings for 2011 are estimated to be about 197,000 mt. Ex-vessel revenues have also varied. Annual ex-vessel revenues have ranged from $14 million (2009) to $58 million (2008). Ex-vessel revenues in 2011 were about $46 million. As landings have varied, so have prices. These prices are largely determined by the world market for groundfish as most of the whiting harvested is exported. Ex-vessel prices have ranged from $116 per mt (2009) to $236 per mt (2008). Average ex-vessel price for whiting in 2011 was $232 per mt. Note that the use of ex-vessel values does not take into account the wholesale or export value of the fishery or the costs of harvesting and processing whiting into a finished product. NMFS does not have sufficient information to make a complete assessment of these values.

The Pacific whiting fishery harvests almost exclusively Pacific whiting. While bycatch of other species occurs, the fishery is constrained by bycatch limits on key overfished species. This is a high-volume fishery with low ex-vessel prices per pound. This fishery has seasonal aspects based on the distribution of whiting off the west coast. The whiting fishery has four components. The shorebased fishery delivers their catch to processing facilities on land. Most of these vessels also deliver other groundfish species to shorebased plants. This fishery is managed under an individual fishing quota system. In the mothership sector, catcher vessels deliver to floating processors called motherships. This fishery is managed under a single mothership co-op—the Whiting Mothership Cooperative. The catcher-processor fleet consists of vessels that both catch the fish and process it aboard. This fishery is also managed under a co-op—the Pacific Whiting Conservation Cooperative.

The fourth component of the fishery is the tribal fishery. Since 1996, there has been a tribal allocation of the U.S. whiting TAC. There are three tribes associated with the whiting fishery: Makah, Quileute, and Quinault.

There are two key features of this rule making: establishing the 2012 interim tribal allocation and reinstatement of regulatory authority to reapportion whiting from the tribal to the non-tribal fishery. The alternatives are “No-Action” vs. the “Proposed Action”. The proposed allocation, based on discussions with the tribes is for NMFS to allocate 17.5 percent of the U.S. total allowable catch for 2012. NMFS did not consider a broader range of alternatives to the proposed allocation. The tribal allocation is based primarily on the requests of the tribes. These requests reflect the level of participation in the fishery that will allow them to exercise their treaty right to fish for whiting. Consideration of amounts lower than the tribal requests is not appropriate in this instance. As a matter of policy, NMFS has historically supported the harvest levels requested by the tribes. Based on the information available to NMFS, the tribal request is within their tribal treaty rights, and the participating tribe has historically shown an ability to harvest the amount of whiting requested. A higher allocation would be, arguably, within the scope of the treaty right. However, a higher allocation would unnecessarily limit the non-tribal fishery. A no action alternative was considered, but the regulatory framework provides for a tribal allocation on an annual basis only. Therefore, no action would result in no allocation of Pacific whiting to the tribal sector in 2012, which would be inconsistent with NMFS' responsibility to manage the fishery consistent with the tribes' treaty rights. Given that there is a tribal request for allocation in 2012, this alternative received no further consideration.

There are two alternatives associated with reinstating the authority to reapportion unused Pacific whiting from the tribal fishery to the non-tribal fishery. The “No-Action” alternative is the authority not reinstated. The “Proposed” Alternative would be to reinstate the authority.

NMFS has reviewed analyses of fish ticket data and limited entry permit data, available employment data provided by processors, information on Tribal fleets, and industry responses to a 2010 survey on ownership and has developed the following estimates for the whiting fishery. There are four affected components of this fishery-Shorebased whiting, mothership whiting, catcher-processor, and tribal. In the shorebased whiting fishery, quota shares of whiting were allocated to 138 entities including ten shoreside processing companies. These entities can fish the quota pounds associated with their quota shares, transfer their quota pounds to other to fish, or choose not to fish their quota pounds. Whiting is landed as bycatch in other fisheries or as a target catch in the whiting fishery. To analyze the number of participants primarily affected by this rule making, targeted whiting trips are defined as landings that contained 5,000 pounds or more of whiting. During 2011, 62 vessels landed a total of about 200 million pounds of whiting. Of these vessels, only 26 vessels had landings greater than 5,000 pounds. Thirteen of these 26 vessels are “small” entities. These 26 vessels delivered their catch to 10 processing companies. These 10 processing companies, either through ownership or affiliation, can be organized into to 6 entities. Four of these 6 entities are “small” entities. There are 37 limited entry permits that have mothership whiting catch history assignments. During 2011, these 37 permits pooled their whiting catch history assignments into a single mothership fishery co-op. Approximately half of these vessels are “small” entities. Vessels in the mothership co-op deliver their catch to mothership processors. There are 6 mothership processing companies; three or which are “small” entities. The catcher-processor fleet has ten limited entry permits and 10 vessels, owned by three companies. These three companies are considered “large” companies mainly because of their operations off Alaska. The tribal fleet is comprised of 5 vessels considered to be “small” entities, while the 3 tribal governments, based on population sizes, are considered “small” entities.

The expected effect of the “Proposed” alternative relative to the “No Action” alternative is to allow unharvested tribal allocations of whiting to be fished by the non-tribal fleets, benefitting both large and small entities. With the implementation of Amendments 20 and 21, the ability to reapportion whiting from tribal to the non-tribal fishery was eliminated for 2011. Pending markets, available bycatch, and the ability of tribal fleets to develop the capacity to harvest the tribal allocation there may be uncaught whiting in the tribal fishery because there is no regulatory mechanism to transfer uncaught whiting to the non-tribal fishery. For 2010, the tribes were initially allocated 49,939 mt. As tribal harvests were projected to be about 16,000 mt, in September 2010 and October 2010, NMFS reapportioned a total of 16,000 mt of whiting from the tribal allocation to the non-tribal shorebased, mothership, and catcher processor sectors. Unlike 2010, for 2011, NMFS was not authorized to reapportion unharvested tribal whiting to the non-tribal sectors. Tribal harvests as of October 7, 2011 were about 19 percent of the 66,908 mt allocation indicating that about 54,000 tons of the tribal allocation would go unfished. This rulemaking would reinstate the regulatory authority to reapportion whiting from the tribal to the non-tribal fishery. If NMFS was authorized in 2011 to reapportion half or more of the 54,000 mt unfished tribal allocation, the ex-vessel revenues could have increased by as much as $6.0 million.

This proposed rule would directly regulate which entities can harvest whiting. This rule would allocate fish between tribal harvesters (harvest vessels are small entities, tribes are small jurisdictions) to non-tribal harvesters (a mixture of small and large businesses). Tribal fisheries are a mixture of activities that are similar to the activities that non-tribal fisheries undertake. Tribal harvests are delivered to both shoreside plants and motherships for processing. These processing facilities also process fish harvested by non-tribal fisheries.

NMFS believes this proposed rule would not adversely affect small entities and is likely to be beneficial to both small and large entities as it allows unharvested tribal fish to be harvested by non-tribal harvesters. Nonetheless, NMFS has prepared this IRFA and is requesting comments on this conclusion.

There are no reporting, recordkeeping or other compliance requirements in the proposed rule.

No Federal rules have been identified that duplicate, overlap, or conflict with this action.

NMFS issued Biological Opinions under the ESA on August 10, 1990, November 26, 1991, August 28, 1992, September 27, 1993, May 14, 1996, and December 15, 1999 pertaining to the effects of the Pacific Coast groundfish FMP fisheries on Chinook salmon (Puget Sound, Snake River spring/summer, Snake River fall, upper Columbia River spring, lower Columbia River, upper Willamette River, Sacramento River winter, Central Valley spring, California coastal), coho salmon (Central California coastal, southern Oregon/northern California coastal), chum salmon (Hood Canal summer, Columbia River), sockeye salmon (Snake River, Ozette Lake), and steelhead (upper, middle and lower Columbia River, Snake River Basin, upper Willamette River, central California coast, California Central Valley, south/central California, northern California, southern California). These biological opinions have concluded that implementation of the FMP for the Pacific Coast groundfish fishery was not expected to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS, or result in the destruction or adverse modification of critical habitat.

NMFS issued a Supplemental Biological Opinion on March 11, 2006 concluding that neither the higher observed bycatch of Chinook in the 2005 whiting fishery nor new data regarding salmon bycatch in the groundfish bottom trawl fishery required a reconsideration of its prior “no jeopardy” conclusion. NMFS also reaffirmed its prior determination that implementation of the Groundfish PCGFMP is not likely to jeopardize the continued existence of any of the affected ESUs. Lower Columbia River coho (70 FR 37160, June 28, 2005) and Oregon Coastal coho (73 FR 7816, February 11, 2008) were recently relisted as threatened under the ESA. The 1999 biological opinion concluded that the bycatch of salmonids in the Pacific whiting fishery were almost entirely Chinook salmon, with little or no bycatch of coho, chum, sockeye, and steelhead.

NMFS has reinitiated consultation on the fishery to address newly listed species including Pacific eulachon and green sturgeon, and other non-salmonid listed species (marine mammals, sea birds, and turtles). NMFS will be completing a consultation on listed marine species for the 2012 groundfish fishery by the end of January 2012, and expects that consultation on seabirds will be completed prior to late summer of 2012. Further, NMFS has concluded that take of any marine species that will be covered by the opinion to be issued in early 2012 is very unlikely to occur prior to completion of that opinion, and that take of listed seabirds is unlikely to occur in 2012. Marine Mammal Protection Act (MMPA)

Impacts resulting from fishing activities proposed in this rule are discussed in the FEIS for the 2011-12 groundfish fishery specifications and management measures. As discussed above, NMFS does not anticipate incidental take of ESA-listed marine mammals prior to the completion of the 2012 ESA consultation covering these species. NMFS expects to complete the process leading to any necessary authorization of incidental taking under MMPA section 101(a)(5)(E) concurrent with the 2012 biological opinion.

Pursuant to Executive Order 13175, this proposed rule was developed after meaningful consultation and collaboration with tribal officials from the area covered by the FMP. Consistent with the Magnuson-Stevens Act at 16 U.S.C. 1852(b)(5), one of the voting members of the Pacific Council is a representative of an Indian tribe with federally recognized fishing rights from the area of the Council's jurisdiction. In addition, NMFS has coordinated specifically with the tribes interested in the whiting fishery regarding the issues addressed by this rule.

For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows: