Pursuant to the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq. ) and DOE Organization Act of 1977 (42 U.S.C. 7101 et seq. ), DOE owns and leases defense nuclear and other facilities in various locations in the United States. These facilities are operated by contractors (including subcontractors at all tiers) with DOE oversight or are operated by DOE. Protection of the DOE facilities is provided by armed and unarmed PF personnel employed by Federal Government contractors. These PF personnel are required to perform both routine and emergency duties, which include patrolling DOE sites, manning security posts, protecting government and contractor employees, property, and sensitive and classified information, training for potential crisis or emergency situations, and responding to security incidents. PF personnel are required to meet various job-related minimum medical and physical readiness qualification standards designed to ensure they are capable of performing all essential functions of normal and emergency PF duties without posing a direct threat to themselves or others.

DOE has developed the proposed modifications to 10 CFR part 1046 to update training and qualification criteria, clarify remediation requirements, ensure compliance with the Privacy Act (5 U.S.C. 552a) and DOE regulations implementing the Privacy Act (10 CFR part 1008), and ensure that medical and readiness qualifications for DOE PF personnel established in these regulations are in compliance with the ADA as amended by the ADAAA. The ADA, as amended by the ADAAA, and its implementing regulations provide that an individual with a disability is qualified for a position if he or she satisfies the skill, experience, education and other job-related requirements of the position and can perform the “essential functions” of the position with or without reasonable accommodation. An employer must make “reasonable accommodation” to the known physical or mental limitations of a qualified individual with a disability, unless the employer can demonstrate that a particular accommodation would impose “undue hardship” on the operation of its business. Further, an employer may require, as a qualification standard, that an individual not pose a “direct threat” to that individual or others. This rule proposes the minimum medical and physical readiness performance standards for PF personnel, and the criteria required to develop, record, and communicate a medical opinion of each individual's ability to perform, with or without accommodation, all essential functions of normal and emergency PF duties without posing a direct threat to that individual or to others.

The proposed modifications to 10 CFR part 1046 are described in the Section by Section Analysis in section II below.

The heading for this part would be revised to Protective Force Personnel Medical, Physical Readiness, Training and Access Authorization Standards. The revision is intended to more accurately reflect the contents of the regulation.

1. Proposed changes for § 1046.1, Purpose, would revise the language of this section for clarity, but would not change it substantively.

2. Proposed changes for § 1046.2, Scope, would revise for clarity, but would not change it substantively except to provide the process for Department-approved exemptions from the requirements of these regulations. Language has been added to indicate that part 1046 would encourage the use of a single physician to fill multiple roles as required by this part and title. In addition, the requirements of part 1046 could be fulfilled in the course of compliance with other DOE regulations. This is intended to facilitate efficiency, avoid duplicative examinations and testing, and the appropriate sharing of medical information related to PF personnel.

3. Proposed changes for § 1046.3, Definitions, would add the following.

The terms “direct threat” and “essential functions of the job” would be defined consistent with the definitions of these terms in the ADAAA.

The terms “defensive combative standard” and “offensive combative standard” would be replaced with “basic readiness standard” (BRS) and “advanced readiness standard” (ARS) personnel to better identify the requirements of these standards. Additionally, a new physical readiness standard which identifies requirements for personnel staffing stationary posts, the “fixed post readiness standard” (FPRS) has been added.

The terms “guard” and “security inspector” would be replaced with “security officer” (SO) and “security police officer” (SPO) to conform to current usage for the names of these positions. The term “PF personnel” would also be added to encompass SOs, SPOs and special response team (SRT)-qualified personnel.

The term “Designated Physician” and its definition would be updated.

The term “field organization” would be replaced with “field element” to conform to current usage.

The term “applicants” as pertains to PF personnel would be added as a result of the use of this term in proposed section 1046.11.

The term “corrective devices” as pertains to reasonable accommodation would be added as a result of the use of this term in proposed section 1046.13.

The term “emergency conditions” as an aspect of PF personnel performance requirements would be added due to the use of this term in proposed section 1046.17.

The terms “medical certification” and “medical certification disqualification” would be added as a result of the use of these terms in proposed sections 1046.13, 1046.14, and 1046.15.

The term “medical examination” is added and its related requirements would be described in section 1046.13.

The terms “Chief Medical Officer,” “Site Occupational Medical Director” (SOMD), and “Physical Protection Medical Director” (PPMD) would be added to section 1046.3 and related requirements would be described in the new proposed section 1046.4.

The term “semi-structured interviews” associated with examining PF personnel would be added to section 1046.3 and related provisions provided in section 1046.13.

The terms “Independent Review” and “Final Review” would be added to section 1046.3 and the process associated with medical certification would also be added to section 1046.15 in this proposed update of the regulations.

The term “medical condition” is outdated and would therefore no longer be used in the regulations.

4. Proposed changes for § 1046.4 to include addressing the PPMD.

DOE proposes to delete the existing section 1046.4, Use of Number and Gender, as unnecessary. Standard rules of construction acknowledge that words in the singular also include the plural and words in the masculine also include the feminine, and vice versa, as the use may require. The new section 1046.4 proposes the required qualifications of the PPMD and the responsibilities of the PPMD to oversee site physical protection medical activities and to nominate and evaluate the performance of the Designated Physician. The required qualifications for Designated Physicians to be nominated are also proposed in this section. This section would also enhance DOE oversight of the PPMD and Designated Physicians DOE facilities.

5. Proposed changes for § 1046.5 Designated Physician.

This new section proposes the roles and responsibilities for the position of Designated Physician. Among other duties, the Designated Physician would be responsible for the medical examination of SOs and SPOs and would determine whether portions of each certification examination could be performed by other qualified personnel.

1. Proposed changes for § 1046.11 Essential functions of PF personnel

This new section proposes the essential functions for SOs, SPOs and SRT-qualified PF personnel. Specific requirements for FPRS, BRS, and ARS SPO personnel are proposed.

2. Proposed changes for § 1046.12 Medical, physical readiness, and training requirements for PF personnel.

This section proposes to establish the medical certification requirements for PF personnel to support their meeting the physical readiness qualification requirements proposed in section 1046.16; to have the required knowledge, skills and abilities; and to meet the requirements of a physical training program as proposed in section 1046.17.

3. Proposed changes for § 1046.13 Medical certification standards and procedures.

This section proposes to update language in the existing Appendix A to Subpart B and require all applicant and incumbent PF personnel to satisfy the applicable medical certification standards; proposes the medical standards for SOs and SPOs; and proposes that Field Elements may develop more stringent medical qualification requirements or additional medical or physical tests, in collaboration with the PPMD, where special assignment duties may require such additional testing.

The required frequency of medical certification would remain unchanged. Incumbent SOs would be reexamined by the Designated Physician every two years (24 months) after beginning work. Incumbent SPOs would be reexamined by the Designated Physician every 12 months. The recertification requirement for both SOs and SPOs would be clarified to require recertification within thirty days of the 24-month or 12-month anniversary of the previous qualification. In addition, this section proposes that the medical examination include a review by the Designated Physician of essential functions of the position, as provided by PF management and a requirement that a semi-structured interview with a psychologist who meets standards established by DOE be conducted for SOs and SPOs, as part of the initial medical evaluation and periodically thereafter. The proposed changes in this section also will allow the Designated Physician to require any other medical examination, test, consultation or evaluation he/she deems necessary.

There are several changes proposed by DOE for compliance purposes with the ADA, as amended by the ADAAA, which does not permit blanket medical disqualification standards based on the presence of a particular medical condition. Individuals must be evaluated on a case-by-case basis to determine their ability to perform the essential functions of the job without posing a direct threat to themselves or others. Moreover, the ADAAA requires employers to make “reasonable accommodations” for individuals with disabilities unless it creates an undue hardship for the employer. Language has been added to paragraph (a) referring to “essential functions” as set forth in section 1046.11 and “direct threat.” The section would also require, consistent with ADAAA, that each member of the PF be medically certified as able to perform the essential functions of that individual's job. Finally, as a result of the proposed 1046.13, the reference to waivers of medical qualification standards would be deleted from the existing section 1046.11, because each individual will be evaluated on a case-by-case basis to determine the individual's ability to perform the essential functions of the individual's specific position. This section also adds a requirement for a health status exit review for all employees leaving PF service.

This section also amends the language regarding the use of corrective devices and reasonable accommodations that must be made to modify emergency and protective equipment to be compatible with these devices. Paragraph (g)(3) proposes that a determination regarding the compatibility of such devices with emergency and protective equipment be made by a designated supervisor in conjunction with the Designated Physician. Paragraph (g)(4) proposes to require that management personnel take reasonable steps to accommodate protective equipment for individuals with corrective devices.

The ability of PF personnel to engage in physical training and testing without undue risk, and to safely and efficiently perform essential job functions, with or without reasonable accommodation, without posing a direct threat to their own or others' safety, depends on the ability of those individuals to meet physical and medical standards (medical certification). Failure to comply with these medical standards will result in denial of medical certification for employment.

• § 1046.14 Medical certification disqualification.

This new section proposes the process for medical certification disqualification. Such disqualification is the determination by the PPMD that an individual, with or without reasonable accommodation, is unable to perform the essential functions of an SO or SPO job position, including the required physical fitness training and physical readiness qualifications (for SPOs), without creating a direct threat to that individual or others.

A new provision has been added that would require responsible employers to offer an SPO medical removal if the Designated Physician determines in a written medical opinion that it is medically appropriate to remove the SPO from PF duties as a result of injuries sustained while engaging in required physical fitness or training activities ( e.g., preparing for or participating in a physical readiness standard qualification attempt). The provision would require that the Designated Physician's determination, approved by the PPMD, be based on an examining physician's recommendation or any other signs or symptoms that the PPMD deems medically sufficient to remove an SPO.

• § 1046.15 Review of medical certification disqualification.

This new section would permit an individual denied medical certification for employment in a particular position to request in writing that an Independent Review of his/her case be conducted. If the Independent Review of an individual's case results in an unfavorable decision from the Office of Health, Safety and Security, the individual would be able to petition the DOE Office of Hearings and Appeals for a Final Review. Procedures for the proposed review process are described in detail in this section.

• § 1046.16 SPO physical readiness qualification program requirements.

This section proposes the program requirements (FPRS, BRS, and ARS) for individual SPO fitness assessments, physical readiness maintenance, remedial physical fitness training, and safety. The FPRS level is proposed to be added, which would be required to be physically demonstrated every year but would not require a running standard. These changes would result in an overall 90 percent reduction in exposure to potential injuries associated with physical readiness qualification running tests for the population of BRS and ARS SPOs. While the previous physical readiness running standards would be retained for the BRS and ARS levels, the number of officers annually asked to demonstrate that readiness would be reduced. Greater reliance would be placed on medical evaluation to determine physical readiness of BRS and ARS SPOs. In addition to the medical evaluation process, which is analogous to that used as the physical readiness evaluation by law enforcement agencies, the DOE evaluation program would be validated by testing of randomly selected BRS and ARS SPOs.

• § 1046.17 Training standards and procedures.

DOE proposes to modify the language of this section from the existing section 1046.15, incorporating standards currently set forth in Appendix B to Subpart B, and DOE Order 473.3, Protection Program Operations, https://www.directives.doe.gov/directives/current-directives/473.3-BOrder/view . Specific training requirements and knowledge, skills, and abilities would be replaced with the requirement that PF personnel and their supervisors possess the knowledge, skills and abilities necessary to protect DOE security interests. The knowledge, skills and abilities that would be required would be developed based on the applicable Job Analysis (JA) or Mission Essential Task List (METL). This proposal would ensure that training requirements comport readily to existing conditions and essential job functions as dictated by the site-specific JA or METL.

Firearms qualification requirements would be modified regarding how SPOs are required to qualify with the individually-issued and primary weapons required by their duty assignment ( i.e., specialty weapon, long gun and/or handgun). These requirements would also require that to operate post-assigned site-specific specialized or crew-served weapons, the SPO must be trained and demonstrate proficiency in the safe use of such weapons in a tactical environment.

DOE also proposes to clarify the procedure for developing site-specific and/or specialized courses of fire.

• § 1046.18 Access authorization.

The language of this section would be modified from the existing 1046.14 rule for clarity and to eliminate the requirement for all armed PF members to have a minimum “L” access authorization. The revised provision would instead require that, at a minimum, a favorably adjudicated background investigation including national agency check with local agency and credit check (NACLC) be conducted to ensure the individual's suitability for arming. A “Q” access authorization would continue to be required under certain circumstances.

• § 1046.19 Medical/fitness for duty status reporting requirements.

This new section proposes to restate the reporting requirements for PF personnel but has not changed substantially from the requirements in Appendix A of the existing rule. The section would clarify the requirement that PF personnel advise their supervisors when they have an unspecified change in their health status that might impair their ability to perform job duties. PF personnel would also be required to provide a detailed report identifying the change to the Designated Physician. This section would also require PF personnel to advise their supervisors when a corrective device is not functioning properly.

In addition, this section would restate the requirement that management report to the Designated Physician any physical, behavioral, or health changes or deterioration in work performance in PF personnel under their jurisdiction. The section contains new language requiring the Designated Physician to be informed of all anticipated job transfers involving either upward or downward recategorization ( e.g., from SO to armed status, from armed status to SO, or from PF to other assignments).

• § 1046.20 Medical record maintenance requirements.

This section proposes to clarify record retention and confidentiality requirements contained in Appendix A, section C, of the existing version of the rule. This rule would substitute language on the inability to perform the essential functions of the job for the term “disqualifying defects.” Language has been added to make it clear that access to medical information developed pursuant to the requirements of this part can be appropriately shared to satisfy the requirements of other parts of this or other titles. Thus duplicative testing or examinations can be avoided. Additionally, a more explicit discussion of medical records confidentiality has been added for consistency with the requirements of the Privacy Act and DOE's implementing regulations.

• § 1046.21 Materials incorporated by reference.

This section lists the industry standards proposed to be incorporated by reference in DOE's PF regulations.

• Appendix A to Subpart B of Part 1046— Medical and Physical Fitness Qualifications Standards and Appendix B to Subpart B of Part 1046— Training Qualification for Security Skills and Knowledge.

These Appendices have been removed and necessary elements have been incorporated into the rule for clarity and completeness, as described in the preceding discussion.

This action does not constitute a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735).

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

DOE has reviewed today's proposed rule under the Regulatory Flexibility Act and certifies that, if adopted, the rule would not have a significant impact on a substantial number of small entities. This proposed action would amend an existing rule which establishes medical and physical training requirements and standards for DOE PF personnel. The rule would affect approximately twenty private firms ( e.g., integrated Management and Operating contractors, security services contractors and subcontractors) at the Department's facilities around the United States. Some of those firms which provide protective services are classified under NAICS Code 561612, Security Guards and Patrol Services. To be classified as a small business, they must have average annual receipts of $18.5 million or less. Some of the private firms affected by these standards and requirements would be classified as small businesses.

The proposed rule would update the medical certification and physical readiness requirements for PF personnel and require PF contractors to make reasonable accommodations to modify emergency and protective equipment for qualified individuals. The rule would also set forth the essential functions that PF personnel would be required to meet, with or without such reasonable accommodation. Medical certification and physical readiness requirements are currently set forth in Appendix A to subpart B of 10 CFR part 1046, and the proposed updates, which are applicable to individual PF personnel rather than their employer, are not expected to impose a significant cost impact. While these essential functions for PF personnel have not previously been specified by regulation, DOE has determined that PF personnel must already be able to perform these functions to adequately perform their job responsibilities. In addition, while the reasonable accommodation provisions are not currently specified by the current regulation, such accommodations are already required by the ADA, as amended by the ADAAA.

The rule also proposes a process for review of a medical certification disqualification and for medical removal protection benefits in certain circumstances. The proposed review process would be conducted by the DOE Office of Health Safety and Security (independent review) and the DOE Office of Hearings and Appeals (final review), and as such are therefore not expected to result in a significant impact on affected small businesses. Any medical removal protection benefits would be reduced to the extent worker's compensation is provided and will be reimbursable to the contractor under the applicable contract with DOE.

The rule would also update the training standards and procedures for PF officers, and makes minor updates to existing reporting and records maintenance requirements. The training standards and procedures are currently set forth at Appendix B to subpart B of 10 CFR part 1046. The proposed updates, intended to tailor training requirements to existing conditions and essential job functions specified in a site-specific JA or METL, are not expected to result in significant increases in costs to meet these requirements. Medical records are maintained by the designated physician and the evaluating psychologist, and the proposed updates would require PF personnel management to develop plans to ensure the confidentiality of medical information. Such confidentiality is already required by other existing regulations. 1

Because these standards and requirements are primarily clarifications and updates to existing standards and requirements, DOE does not believe that the impact on these firms would be significant. DOE seeks comment on its estimate of the number of small entities and the expected impacts of today's proposed rule. DOE emphasizes that these firms are under contract to DOE either directly or indirectly, so any costs incurred while meeting the standards and requirements proposed in this rule would be invoiced and may be reimbursable in accordance with the terms of the contract and applicable law.

For the above reasons, DOE certifies that the proposed rule, if adopted, will not have a significant economic impact on a substantial number of small entities.

No new information collection requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., are imposed by this regulatory action.

This proposed rule amends existing policies and procedures establishing medical and physical readiness standards for DOE PF personnel and has no significant environmental impact. Consequently, the Department has determined that this rule is covered under Categorical Exclusion A-5, of Appendix A to Subpart D, 10 CFR part 1021, which applies to a rulemaking that addresses amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” (64 FR 43255, August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to develop a formal process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have “federalism implications.” Policies that have federalism implications are defined in the Executive Order to include regulations that 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.” On March 7, 2011, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations (65 FR 13735, March 14, 2000).

DOE has examined the proposed and revised rule and has determined that it does not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

Section 3 of Executive Order 12988, (61 FR 4729, February 7, 1996), instructs each agency to adhere to certain requirements in promulgating new regulations. These requirements, set forth in section 3(a) and (b), include eliminating drafting errors and needless ambiguity, drafting the regulations to minimize litigation, providing clear and certain legal standards for affected legal conduct, and promoting simplification and burden reduction. Agencies are also instructed to make every reasonable effort to ensure that the regulation describes any administrative proceeding to be available prior to judicial review and any provisions for the exhaustion of administrative remedies. The Department has determined that this regulatory action meets the requirements of section 3(a) and (b) of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory action on state, local and tribal governments and the private sector. For proposed regulatory actions likely to result in a rule that may cause expenditures by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish estimates of the resulting costs, benefits, and other effects on the national economy. UMRA also requires Federal agencies to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate.” In addition, UMRA requires an agency plan for giving notice and opportunity for timely input to small governments that may be affected before establishing a requirement that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA (62 FR 12820, March 18, 1997). (This policy is also available at http://www.gc.doe.gov ). Today's proposed rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply. While the rule would require certain private sector employers and employees ( i.e., DOE security contractors and certain PF personnel employed by them) to meet certain job-related medical and physical training standards and requirements, the impact is not likely to result in the expenditure of $100 million or more in any year. In addition, any costs incurred by employers in meeting these requirements would be invoiced and may be reimbursable in accordance with the terms of the contract and applicable law.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” (66 FR 28355, May 22, 2001) requires Federal agencies to prepare and submit to the Office of Information and Regulatory Affairs (OIRA), Office of Management and Budget, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to the promulgation of a final rule, and that: (1) Is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternates to the action and their expected benefits on energy supply, distribution, and use.

This proposed rule is not a significant energy action, nor has it been designated as such by the Administrator of OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule or policy that may affect family well-being. Today's proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

DOE encourages the maximum level of public participation in this rulemaking. Interested persons are encouraged to participate in the public hearings at the times and places indicated at the beginning of this proposed rulemaking.

DOE has established a period of thirty days following publication of this proposed rulemaking for persons and organizations to comment. All public comments, hearing transcripts, and other docket material will be available for review and copying at the DOE offices at each of the hearing sites. The docket material will be filed under “DOE-HQ-2012-0002.”

Interested persons are invited to participate in this proceeding by submitting written data, views or arguments with respect to the subjects set forth in this proposed rulemaking. Instructions for submitting written comments are set forth at the beginning of this notice and below. Where possible, comments should identify the specific section they address.

Comments should be labeled both on the envelope and on the documents, “Docket No. DOE-HQ-2012-0002” and must be received by the date specified at the beginning of this proposed rulemaking. All comments and other relevant information received by the date specified at the beginning of this proposed rulemaking will be considered by DOE in the subsequent stages of the rulemaking process.

Pursuant to the provisions of 10 CFR part 1004, any person submitting information or data that is believed to be confidential and exempt by law from public disclosure should submit one complete copy of the document and three copies, if possible, from which the information believed to be confidential has been deleted. DOE will make its own determination with regard to the confidential status of the information or data and treat it according to its determination.

The dates, times and places of the public hearings are indicated at the beginning of this proposed rulemaking. DOE invites any person or organization who has an interest in these proceedings to make a request to make an oral presentation at one of the public hearings. Requests can be phoned in advance to the telephone number indicated at the beginning of this proposed rulemaking. The person making the request should provide a telephone number where he or she may be contacted.

DOE reserves the right to schedule the presentations, and to establish the procedures governing the conduct of the hearings. Each presentation is limited to ten minutes.

A DOE official will be designated to preside at the hearings and ask questions. The hearings will not be judicial or evidentiary-type hearings, but will be conducted in accordance with section 501 of the DOE Organization Act, 42 U.S.C. 7191. At the conclusion of all initial oral statements, each person who has made an oral statement will be given the opportunity to make a rebuttal or clarifying statement, subject to time limitations. Any further procedural rules regarding proper conduct of the hearings will be announced by the presiding official.

Transcripts of the hearings will be made and the entire record of this rulemaking, including the transcripts, will be retained by DOE and made available for inspection as provided at the beginning of this proposed rulemaking. Any person may also purchase a copy of a transcript from the transcribing reporter.

For the reasons set out in the preamble, the Department of Energy (DOE) proposes to amend Chapter X of Title 10 of the Code of Federal Regulations by revising part 1046 to read 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-2012-0188; Directorate Identifier 2011-NM-120-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 2011-0096, dated May 25, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

BAE SYSTEMS (Operations) Limited has issued Alert Service Bulletin J41-A57-029, dated May 6, 2011; and Subject 57-00-00, Wings General, of Chapter 57, Wings, of the Jetstream Series 4100 Structural Repair Manual, Volume 1, Revision 30, dated April 15, 2007. 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 3 products of U.S. registry. We also estimate that it would take about 25 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 $6,375, or $2,125 per product.

We have received no definitive data that would enable us to provide a cost estimates for the on-condition actions (repairing cracks, corrosion, and defects) specified in this 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 that this AD:

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 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:

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-2012-0189; Directorate Identifier 2011-NM-133-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 2011-0097, dated May 25, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The corrective actions include repairing or replacing the sidewall with a new sidewall. You may obtain further information by examining the MCAI in the AD docket.

BAE SYSTEMS (OPERATIONS) LIMITED has issued Inspection Service Bulletin ISB.53-229, Revision 1, dated November 22, 2010. 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 specifies not installing certain sidewalls after the installation of a new sidewall is done. This proposed AD does not allow installation of certain sidewalls as of the effective date of this proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 1 product of U.S. registry. We also estimate that it would take about 2 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 $170.

In addition, we estimate that any necessary follow-on actions would take about 2 work-hours and require parts costing $8,850, for a cost of $9,020 per product. We have no way of determining the number of products that may need these actions.

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.

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:

Under the Federal Food, Drug, and Cosmetic Act (section 409(b)(5) (21 U.S.C. 348(b)(5))), notice is given that a food additive petition (FAP 2A4788) has been filed by Abbott Laboratories, 3300 Stelzer Rd., Columbus, OH 43219. The petition proposes to amend § 172.380 (21 CFR 172.380) to provide for the safe use of vitamin D 3 as a nutrient supplement in meal replacement beverages and meal replacement bars that are not intended for special dietary use in reducing or maintaining body weight and for use in foods that are sole sources of nutrition for enteral tube feeding.

The Agency has determined under 21 CFR 25.32(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0052), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2012-0052” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert “USCG-2012-0052” and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES . Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

Leaders from around the world will gather in Chicago this spring for two diplomatic summits hosted by President Obama. Specifically, the G8 and NATO will hold summits and certain associated events in Chicago from May 16, 2012, through May 24, 2012. G8 (Group of Eight) was founded in 1975. The G8 is a group of eight countries that has served in recent years as a forum for the leaders of the world's largest markets to discuss critical issues of the day ranging from the global economy to pressing security challenges. Meanwhile, NATO was founded in 1949 and includes the United States and twenty seven other countries. Today, NATO is the hub of an international global security network.

Considering the international, economical, and political objectives of G8 and NATO along with the high concentration of dignitaries and political figures, the G8/NATO Summit is expected to draw significant domestic and international media interest and also attract a large number of protesters. Consequently, the Captain of the Port, Sector Lake Michigan (COTP), has determined that the implementation of four separate security zones is necessary to mitigate the threat of violence and ensure the safety and security of those who attend, participate, and visit the G8/NATO Summit and any associated events.

To alleviate the safety and security concerns presented by the international, economical, and political implications of G8 and NATO; the high concentration of dignitaries and political figures; the expected interest of domestic and international media; and the anticipated presence of protesters; the Captain of the Port, Sector Lake Michigan, has determined that it is necessary to establish four separately enforceable security zones. These zones will allow for the closure of four specific areas on and around the waterfront along both Chicago Harbor and the Chicago River.

The four proposed temporary security zones will encompass:

(1) Security Zone A—This zone will encompass all U.S. navigable waters, facilities, and shoreline within the arc of a circle with a 2000-yard radius of the Burnham park hoist ramp with its center point located in the approximate position 41°51′37″ N, 087°36′44″ W. [DATUM: NAD 83].

(2) Security Zone B—This zone will encompass all U.S. navigable waters, facilities, and shoreline within the arc of a circle with a 2000-yard radius of the outermost tip of the Chicago lock with its center point located in the approximate position 41°53′19″ N, 087°36′17″ W. [DATUM: NAD 83].

(3) Security Zone C—This zone will encompass all U.S. navigable waters of the Chicago River between the Western Gate of the Chicago Controlling Works Lock which is located in approximate position 41°53′18″ N, 087°36′28″ W. [DATUM: NAD 83] and the juncture of the north and south branches of the Chicago River which is located in approximate position 41°53′11″ N, 087°38′15″ W. [DATUM: NAD 83]

(4) Security Zone D—This zone will encompass all U.S. navigable waters of the Chicago River between Mile Marker 322.0, which is in the vicinity of the Loomis Street coal storage terminal slip, and Mile Marker 326.4, which is in the vicinity of the Chicago Tribune Wharf. [DATUM: NAD 83]

These proposed security zones would be effective and enforced between 8 a.m. on May 16, 2012, and 8 a.m. on May 24, 2012.

In accordance with 33 CFR 165.33, no person or vessel, regardless of the mode of propulsion, may enter or remain in any one of the security zones established in this proposed rule without first obtaining permission from the Captain of the Port Sector Lake Michigan. The Captain of the Port Sector Lake Michigan, at his or her discretion, may permit persons and vessels to enter the security zones addressed in this proposed rule.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this proposed rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. Each security zone has been designed to allow as much free transit of vessels as possible while also preserving the security of the G8/NATO Summit. Thus, vessels may still transit portions of the affected waterways not implicated by the proposed security zones. Also, under certain conditions, vessels may still transit through a security zone when permitted by the Captain of the Port, Sector Lake Michigan. Moreover, the COTP retains the discretion to suspend enforcement of any or all of these proposed security zones when he deems necessary. On the whole, the Coast Guard expects insignificant adverse impact to mariners from the activation of these security zones.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would affect the following entities, some of which might be small entities: the owners and operators of vessels, regardless of the mode of propulsion, intending to transit or anchor in the security zones established in this proposed rule. These security zones would not have a significant economic impact on a substantial number of small entities for the same reasons discussed above in the Regulatory Planning and Review section.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If this proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the Waterways Management Department, Coast Guard Marine Safety Unit Chicago, Willowbrook, IL at (630) 986-2155. The Coast Guard will not retaliate against small entities that question or object to this rule or any policy or action of the Coast Guard.

This proposed rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed temporary rule under that Order and have determined that it does not have implications for federalism.

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

This proposed temporary rule will not affect the taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

This proposed temporary rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed temporary rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This proposed temporary rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.

This proposed temporary rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed temporary rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed temporary rule under Commandant Instruction M16475.lD and Department of Homeland Security Management Directive 5100.1, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed temporary rule involves the establishing of security zones and therefore, is categorically excluded under paragraph 34(g) of the Instruction. A preliminary environmental analysis check list supporting this preliminary determination is available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed temporary rule.

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

Many of our nation's veterans must travel great distances in order to obtain health care at a VA hospital or medical center. To improve veterans' access to VA health care, VA established community-based outpatient clinics (CBOCs) located in local communities. VA has continued its efforts to improve veterans' access to VA medical care by establishing “telehealth” services. Telehealth allows VA to provide certain medical care without requiring the veteran to be physically present with the examining or treating medical professional. Telehealth helps ensure that veterans are able to get their care in a timely and convenient manner, by reducing burdens on the patient as well as appropriately reducing the utilization of VA resources without sacrificing the quality of care provided. The benefits of using this technology include increased access to specialist consultations, improved access to primary and ambulatory care, reduced waiting times, and decreased veteran travel.

VA provides various telehealth services, including clinical video telehealth and in-home video telehealth care. Clinical video telehealth, as the name implies, occurs between two clinical settings, such as two VA Medical Centers (VAMCs), a VAMC and a CBOC, or two CBOCs. Clinical video telehealth may also connect patient and provider between VAMCs and VA Centers of Specialized Care, such as those established for Spinal Cord Injury (SCI), Traumatic Brain Injury (TBI) and Multiple Sclerosis (MS). Clinical video telehealth uses real-time interactive video conferencing, sometimes with supportive peripheral devices, such as a camera to closely examine skin. This allows a specialist located in another facility to assess and treat a veteran by providing care remotely.

Like clinical video telehealth, in-home video telehealth care is used to connect a veteran to a VA health care professional using real-time videoconferencing, and other equipment as necessary, as a means to replicate aspects of face-to-face assessment and care delivery that do not require the health care professional to make an examination requiring physical contact. However, in-home video telehealth care is provided in a veteran's home, eliminating the need for the veteran to travel to a clinical setting. Using telehealth capabilities, a VA clinician can assess elements of a patient's care, such as wound management, psychiatric or psychotherapeutic care, exercise plans, and medication management. The clinician may also monitor patient self-care by reviewing vital signs and evaluating the patient's appearance on video.

Prior to this proposed rulemaking, veterans have been required to pay a copayment for in-home video telehealth care. We believe that VA has authority by statute to discontinue charging copayments for these services.

Generally, VA calculates the amount of a copayment based on the complexity of care provided and the resources needed to provide that care. In addition, VA may exempt certain care from the copayment requirement in an effort to make health care more accessible to veterans, or to encourage veterans to become more actively involved in their medical care, and thereby improve health care outcomes (which, in turn, lowers overall health care costs). VA proposes to make in-home video telehealth care exempt from copayments because it is not used to provide complex care and its use significantly reduces impact on VA resources compared to an in-person, outpatient visit. It also reduces any potential negative impact on the veteran's health that might be incurred if the veteran were required to travel to a VA hospital or medical center to obtain the care that would be provided via in-home video telehealth. VA also wants to encourage veterans to use the in-home video telehealth care option when their provider finds it appropriate because we believe that it would help ensure that veterans comply with outpatient treatment plans by regularly following up with physicians and medical professionals, taking medication in appropriate doses on a regular basis, and generally being more engaged with their VA health care providers.

As previously stated in this rulemaking, in-home video telehealth allows a VA clinician to assess the elements of a veteran's care, while the veteran remains at home. Conversely, clinical video telehealth assess the veteran's medical condition in a clinical setting using resources and technology that allows a medical specialist, who may be hundreds of miles away, to interact with the veteran and provide the level of care needed to treat the medical condition. VA would not exempt clinical video telehealth services from the copayment requirement because the type of care a veteran receives in clinical video telehealth requires not just the use of CBOC's technological resources, but also patient interaction between the attending physician that may be hundreds of miles away, and the medical staff in the CBOC. The attending medical staff in the CBOC follows the attending physician's instructions in the placement of the adapted equipment that is used in clinical video telehealth in order to assess the veteran's medical condition, to include the set up of the conference, use of the teleconference room, etc. All of these additional services provide a veteran a higher level of care than the level of care that the veteran receives through in-home video telehealth.

Paragraph (e) of § 17.108 contains a list of services that are not subject to copayment requirements for inpatient hospital care or outpatient medical care.

Based on the rationale set forth in this preamble, VA proposes to amend § 17.108(e) by adding a new paragraph (e)(16) to include in-home video telehealth care as exempt from copayment requirements.

Concurrent with this proposed rule, we also are publishing a separate, substantively identical direct final rule in the “Rules and Regulations” section of this Federal Register . The simultaneous publication of these documents will speed notice and comment rulemaking under section 553 of the Administrative Procedure Act should we have to withdraw the direct final rule due to receipt of significant adverse comments.

For purposes of the direct final rulemaking, a significant adverse comment is one that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or why it would be ineffective or unacceptable without change. If significant adverse comments are received, VA will publish a notice of receipt of significant adverse comments in the Federal Register withdrawing the direct final rule.

Under direct final rule procedures, unless significant adverse comments are received within the comment period, the regulation will become effective on the date specified above. After the close of the comment period, VA will publish a document in the Federal Register indicating that no adverse comments were received and confirming the date on which the final rule will become effective. VA will also publish a notice withdrawing this proposed rule.

In the event the direct final rule is withdrawn because of significant adverse comments, VA can proceed with the rulemaking by addressing the comments received and publishing a final rule. The comment period for the proposed rule runs concurrently with that of the direct final rule. Any comments received under the direct final rule will be treated as comments regarding the proposed rule. VA will consider such comments in developing a subsequent final rule. Likewise, significant adverse comments submitted to the proposed rule will be considered as comments regarding the direct final rule.

The Code of Federal Regulations, as proposed to be revised by this proposed rulemaking, would represent the exclusive legal authority on this subject. No contrary rules or procedures would be authorized. All VA guidance would be read to conform with this rulemaking if possible or, if not possible, such guidance would be superseded by this rulemaking.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this proposed regulatory amendment would not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This rulemaking would not directly affect any small entities. Only VA beneficiaries would be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), this amendment would be exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined and it has been determined not to be a significant regulatory action under Executive Order 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any given year. This proposed rule would have no such effect on State, local, or tribal governments, or on the private sector.

The Catalog of Federal Domestic Assistance program number and title for this proposed rule are as follows: 64.007 Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; and 64.022, Veterans Home Based Primary Care.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. John R. Gingrich, Chief of Staff, Department of Veterans Affairs, approved this document on February 28, 2012, for publication.

For the reasons set forth in the preamble, we propose to amend 38 CFR part 17 as follows:

Throughout this document wherever “we”, “us” or “our” are used, we mean EPA. Information is organized as follows:

EPA is proposing to partially approve the State Implementation Plan (SIP) submittal from the State of Washington to demonstrate that the SIP meets the requirements of section 110(a)(1) and (2) of the Clean Air Act (CAA) for the National Ambient Air Quality Standards (NAAQS) promulgated for ozone on July 18, 1997. EPA is proposing to find that the current Washington SIP, as codified at 40 CFR Part 52 Subpart WW meets the following 110(a)(2) infrastructure elements for the 1997 8-hour ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), except for those infrastructure requirements which relate to regulations for preventing significant deterioration (PSD) of air quality, as explained in this Notice. PSD permits are implemented in Washington under a Federal Implementation Plan as specified at 40 CFR 52.2497.

Section 110(a)(1) of the CAA requires that each state, after a new or revised NAAQS is promulgated, review their SIPs to ensure that they meet the requirements of the “infrastructure” elements of section 110(a)(2). The State of Washington submitted a certification to EPA dated January 24, 2012, certifying that Washington's SIP meets the infrastructure obligations for the 1997 8-hour ozone NAAQS. The certification included an analysis of Washington's SIP as it relates to each section of the infrastructure requirements with regard to the 1997 8-hour ozone NAAQS. This action does not address the requirements of 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS which were previously addressed and approved by EPA on January 13, 2009 (74 FR 1501).

On July 18, 1997, EPA promulgated a new NAAQS for ozone. EPA revised the ozone NAAQS to provide an 8-hour averaging period which replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856).

The CAA requires SIPs meeting the requirements of sections 110(a)(1) and (2) be submitted by states within 3 years after promulgation of a new or revised standard. Sections 110(a)(1) and (2) require states to address basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards, so-called “infrastructure” requirements. States were required to submit such SIPs for the 1997 8-hour ozone NAAQS to EPA no later than June 2000. However, intervening litigation over the 1997 8-hour ozone standard created uncertainty about how to proceed, and many states did not provide the required infrastructure SIP submissions for the newly promulgated standard.

To help states meet this statutory requirement for the 1997 8-hour ozone NAAQS, EPA issued guidance to address infrastructure SIP elements under section 110(a)(1) and (2). 1 The 2007 Guidance provides that, to the extent an existing SIP already meets the section 110(a)(2) requirements, states need only to certify that fact via a letter to EPA. Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's federally approved SIP already contains. In the case of the 1997 8-hour ozone NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous ozone standards.

Section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. These requirements include SIP infrastructure elements such as modeling, monitoring, and emissions inventories that are designed to assure attainment and maintenance of the NAAQS. The requirements, with their corresponding CAA subsection, are listed below:

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement of control measures.

• 110(a)(2)(D): Interstate transport.

• 110(a)(2)(E): Adequate resources.

• 110(a)(2)(F): Stationary source monitoring system.

• 110(a)(2)(G): Emergency power.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(I): Areas designated nonattainment and meet the applicable requirements of part D.

• 110(a)(2)(J): Consultation with government officials; public notification; and Prevention of Significant Deterioration (PSD) and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

EPA's 2007 Guidance clarified that two elements identified in section 110(a)(2) are not governed by the 3 year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within 3 years after promulgation of a new or revised NAAQS, but rather due at the time the nonattainment area plan requirements are due pursuant to CAA section 172. These requirements are: (i) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA, and (ii) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. As a result, this action does not address infrastructure elements related to section 110(a)(2)(C) with respect to nonattainment new source review (NSR) or 110(a)(2)(I). This action also does not address the requirements of 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS which EPA previously found to be adequate on January 13, 2009 (74 FR 1501). Furthermore, EPA interprets the section 110(a)(2)(J) provision on visibility as not being triggered by a new NAAQS because the visibility requirements in part C are not changed by a new NAAQS.

EPA is proposing to disapprove Washington's SIP for those infrastructure elements discussed herein which relate to the major source PSD regulation. Washington's SIP does not currently include EPA-approved provisions for PSD regulation. Instead PSD regulations are implemented by means of a FIP in Washington which incorporates the requirements of 40 CFR 52.21. See 40 CFR 52.2497. To the extent that Washington's SIP does not include federally-approvable or approved PSD regulations, Washington's SIP must be disapproved for those infrastructure elements which relate to PSD regulation. However, because these major source PSD regulations are implemented in the state by means of the FIP, neither Washington nor EPA have additional SIP or FIP obligations arising out of this proposed disapproval.

EPA is currently acting upon SIPs that address the infrastructure requirements of CAA section 110(a)(1) and (2) for ozone and PM 2.5 NAAQS for various states across the country. Commenters on EPA's recent proposals for some states raised concerns about EPA statements that it was not addressing certain substantive issues in the context of acting on those infrastructure SIP submissions. 2 The commenters specifically raised concerns involving provisions in existing SIPs and with EPA's statements in other proposals that it would address two issues separately and not as part of actions on the infrastructure SIP submissions: (i) Existing provisions related to excess emissions during periods of start-up, shutdown, or malfunction at sources, that may be contrary to the CAA and EPA's policies addressing such excess emissions (“SSM”); and (ii) existing provisions related to “director's variance” or “director's discretion” that purport to permit revisions to SIP approved emissions limits with limited public process or without requiring further approval by EPA, that may be contrary to the CAA (“director's discretion”). EPA notes that there are two other substantive issues for which EPA likewise stated in other proposals that it would address the issues separately: (i) Existing provisions for minor source new source review programs that may be inconsistent with the requirements of the CAA and EPA's regulations that pertain to such programs (“minor source NSR”); and (ii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80,186 (December 31, 2002), as amended by 72 FR 32,526 (June 13, 2007) (“NSR Reform”). In light of the comments, EPA believes that its statements in various proposed actions on infrastructure SIPs with respect to these four individual issues should be explained in greater depth. It is important to emphasize that EPA is taking the same position with respect to these four substantive issues in this action on the infrastructure SIP for the 1997 8-hour ozone NAAQS submittal from Washington. 3

EPA intended the statements in the other proposals concerning these four issues merely to be informational, and to provide general notice of the potential existence of provisions within the existing SIPs of some states that might require future corrective action. EPA did not want states, regulated entities, or members of the public to be under the misconception that the Agency's approval of the infrastructure SIP submission of a given state should be interpreted as a reapproval of certain types of provisions that might exist buried in the larger existing SIP for such state. Thus, for example, EPA explicitly noted that the Agency believes that some states may have existing SIP approved SSM provisions that are contrary to the CAA and EPA policy, but that “in this rulemaking, EPA is not proposing to approve or disapprove any existing State provisions with regard to excess emissions during SSM of operations at facilities.” EPA further explained, for informational purposes, that “EPA plans to address such State regulations in the future.” EPA made similar statements, for similar reasons, with respect to the director's discretion, minor source NSR, and NSR Reform issues. EPA's objective was to make clear that approval of an infrastructure SIP for these ozone and PM 2.5 NAAQS should not be construed as explicit or implicit reapproval of any existing provisions that relate to these four substantive issues. EPA is reiterating that position in this action on the 1997 8-hour ozone infrastructure SIP for Washington.

Unfortunately, the commenters and others evidently interpreted these statements to mean that EPA considered action upon the SSM provisions and the other three substantive issues to be integral parts of acting on an infrastructure SIP submission, and therefore that EPA was merely postponing taking final action on the issues in the context of the infrastructure SIPs. This was not EPA's intention. To the contrary, EPA only meant to convey its awareness of the potential for certain types of deficiencies in existing SIPs, and to prevent any misunderstanding that it was reapproving any such existing provisions. EPA's intention was to convey its position that the statute does not require that infrastructure SIPs address these specific substantive issues in existing SIPs and that these issues may be dealt with separately, outside the context of acting on the infrastructure SIP submission of a state. To be clear, EPA did not mean to imply that it was not taking a full final agency action on the infrastructure SIP submission with respect to any substantive issue that EPA considers to be a required part of acting on such submissions under section 110(k) or under section 110(c). Given the confusion evidently resulting from EPA's statements in those other proposals, however, we want to explain more fully the Agency's reasons for concluding that these four potential substantive issues in existing SIPs may be addressed separately from actions on infrastructure SIP submissions.

The requirement for the SIP submissions at issue arises out of CAA section 110(a)(1). That provision requires that states must make a SIP submission “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof)” and that these SIPS are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must meet. EPA has historically referred to these particular submissions that states must make after the promulgation of a new or revised NAAQS as “infrastructure SIPs.” This specific term does not appear in the statute, but EPA uses the term to distinguish this particular type of SIP submission designed to address basic structural requirements of a SIP from other types of SIP submissions designed to address other different requirements, such as “nonattainment SIP” submissions required to address the nonattainment planning requirements of part D, “regional haze SIP” submissions required to address the visibility protection requirements of CAA section 169A, new source review permitting program submissions required to address the requirements of part D, and a host of other specific types of SIP submissions that address other specific matters.

Although section 110(a)(1) addresses the timing and general requirements for these infrastructure SIPs, and section 110(a)(2) provides more details concerning the required contents of these infrastructure SIPs, EPA believes that many of the specific statutory provisions are facially ambiguous. In particular, the list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive provisions, and some of which pertain to requirements for both authority and substantive provisions. 4 Some of the elements of section 110(a)(2) are relatively straightforward, but others clearly require interpretation by EPA through rulemaking, or recommendations through guidance, in order to give specific meaning for a particular NAAQS. 5

Notwithstanding that section 110(a)(2) provides that “each” SIP submission must meet the list of requirements therein, EPA has long noted that this literal reading of the statute is internally inconsistent, insofar as section 110(a)(2)(I) pertains to nonattainment SIP requirements that could not be met on the schedule provided for these SIP submissions in section 110(a)(1). 6 This illustrates that EPA must determine which provisions of section 110(a)(2) may be applicable for a given infrastructure SIP submission. Similarly, EPA has previously decided that it could take action on different parts of the larger, general “infrastructure SIP” for a given NAAQS without concurrent action on all subsections, such as section 110(a)(2)(D)(i), because the Agency bifurcated the action on these latter “interstate transport” provisions within section 110(a)(2) and worked with states to address each of the four prongs of section 110(a)(2)(D)(i) with substantive administrative actions proceeding on different tracks with different schedules. 7 This illustrates that EPA may conclude that subdividing the applicable requirements of section 110(a)(2) into separate SIP actions may sometimes be appropriate for a given NAAQS where a specific substantive action is necessitated, beyond a mere submission addressing basic structural aspects of the state's SIP. Finally, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS and the attendant infrastructure SIP submission for that NAAQS. For example, the monitoring requirements that might be necessary for purposes of section 110(a)(2)(B) for one NAAQS could be very different than what might be necessary for a different pollutant. Thus, the content of an infrastructure SIP submission to meet this element from a state might be very different for an entirely new NAAQS, versus a minor revision to an existing NAAQS. 8

Similarly, EPA notes that other types of SIP submissions required under the statute also must meet the requirements of section 110(a)(2), and this also demonstrates the need to identify the applicable elements for other SIP submissions. For example, nonattainment SIPs required by part D likewise have to meet the relevant subsections of section 110(a)(2) such as section 110(a)(2)(A) or (E). By contrast, it is clear that nonattainment SIPs would not need to meet the portion of section 110(a)(2)(C) that pertains to part C, i.e., the PSD requirements applicable in attainment areas. Nonattainment SIPs required by part D also would not need to address the requirements of section 110(a)(2)(G) with respect to emergency episodes, as such requirements would not be limited to nonattainment areas. As this example illustrates, each type of SIP submission may implicate some subsections of section 110(a)(2) and not others.

Given the potential for ambiguity of the statutory language of section 110(a)(1) and (2), EPA believes that it is appropriate for EPA to interpret that language in the context of acting on the infrastructure SIPs for a given NAAQS. Because of the inherent ambiguity of the list of requirements in section 110(a)(2), EPA has adopted an approach in which it reviews infrastructure SIPs against this list of elements “as applicable.” In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the purpose of the submission or the NAAQS in question, would meet each of the requirements, or meet each of them in the same way. EPA elected to use guidance to make recommendations for infrastructure SIPs for these ozone and PM 2.5 NAAQS.

On October 2, 2007, EPA issued guidance making recommendations for the infrastructure SIP submissions for both the 1997 8-hour ozone NAAQS and the 1997 PM 2.5 NAAQS. 9 Within this guidance document, EPA described the duty of states to make these submissions to meet what the Agency characterized as the “infrastructure” elements for SIPs, which it further described as the “basic SIP requirements, including emissions inventories, monitoring, and modeling to assure attainment and maintenance of the standards.”  10 As further identification of these basic structural SIP requirements, “attachment A” to the guidance document included a short description of the various elements of section 110(a)(2) and additional information about the types of issues that EPA considered germane in the context of such infrastructure SIPs. EPA emphasized that the description of the basic requirements listed on attachment A was not intended “to constitute an interpretation of” the requirements, and was merely a “brief description of the required elements.”  11 EPA also stated its belief that with one exception, these requirements were “relatively self explanatory, and past experience with SIPs for other NAAQS should enable States to meet these requirements with assistance from EPA Regions.”  12 For the one exception to that general assumption, however, i.e., how states should proceed with respect to the requirements of section 110(a)(2)(G) for the 1997 PM 2.5 NAAQS, EPA gave much more specific recommendations. But for other infrastructure SIP submittals, and for certain elements of the submittals for the 1997 PM 2.5 NAAQS, EPA assumed that each State would work with its corresponding EPA regional office to refine the scope of a State's submittal based on an assessment of how the requirements of section 110(a)(2) should reasonably apply to the basic structure of the State's SIP for the NAAQS in question.

On September 25, 2009, EPA issued guidance to make recommendations to states with respect to the infrastructure SIPs for the 2006 PM 2.5 NAAQS. 13 In the 2009 Guidance, EPA addressed a number of additional issues that were not germane to the infrastructure SIPs for the 1997 8-hour ozone and 1997 PM 2.5 NAAQS, but were germane to these SIP submissions for the 2006 PM 2.5 NAAQS, e.g., the requirements of section 110(a)(2)(D)(i) that EPA had bifurcated from the other infrastructure elements for those specific 1997 ozone and PM 2.5 NAAQS. Significantly, neither the 2007 Guidance nor the 2009 Guidance explicitly referred to the SSM, director's discretion, minor source NSR, or NSR Reform issues as among specific substantive issues EPA expected states to address in the context of the infrastructure SIPs, nor did EPA give any more specific recommendations with respect to how states might address such issues even if they elected to do so. The SSM and director's discretion issues implicate section 110(a)(2)(A), and the minor source NSR and NSR Reform issues implicate section 110(a)(2)(C). In the 2007 Guidance and the 2009 Guidance, however, EPA did not indicate to states that it intended to interpret these provisions as requiring a substantive submission to address these specific issues in existing SIP provisions in the context of the infrastructure SIPs for these NAAQS. Instead, EPA's 2007 Guidance merely indicated its belief that the states should make submissions in which they established that they have the basic SIP structure necessary to implement, maintain, and enforce the NAAQS. EPA believes that states can establish that they have the basic SIP structure, notwithstanding that there may be potential deficiencies within the existing SIP. Thus, EPA's proposals for other states mentioned these issues not because the Agency considers them issues that must be addressed in the context of an infrastructure SIP as required by section 110(a)(1) and (2), but rather because EPA wanted to be clear that it considers these potential existing SIP problems as separate from the pending infrastructure SIP actions. The same holds true for this action on the 1997 8-hour ozone infrastructure SIP for Washington.

EPA believes that this approach to the infrastructure SIP requirement is reasonable, because it would not be feasible to read section 110(a)(1) and (2) to require a top to bottom, stem to stern, review of each and every provision of an existing SIP merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts that, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA considers the overall effectiveness of the SIP. To the contrary, EPA believes that a better approach is for EPA to determine which specific SIP elements from section 110(a)(2) are applicable to an infrastructure SIP for a given NAAQS, and to focus attention on those elements that are most likely to need a specific SIP revision in light of the new or revised NAAQS. Thus, for example, EPA's 2007 Guidance specifically directed states to focus on the requirements of section 110(a)(2)(G) for the 1997 PM 2.5 NAAQS because of the absence of underlying EPA regulations for emergency episodes for this NAAQS and an anticipated absence of relevant provisions in existing SIPs.

Finally, EPA believes that its approach is a reasonable reading of section 110(a)(1) and (2) because the statute provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the Agency to take appropriate tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or otherwise to comply with the CAA. 14 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 15 Significantly, EPA's determination that an action on the infrastructure SIP is not the appropriate time and place to address all potential existing SIP problems does not preclude the Agency's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on the infrastructure SIP, EPA believes that section 110(a)(2)(A) may be among the statutory bases that the Agency cites in the course of addressing the issue in a subsequent action. 16

The Washington SIP submittal lists specific provisions of the Revised Code of Washington (RCW) including Chapter 70.94 RCW Washington Clean Air Act; Chapter 43.21 RCW Department of Ecology; Chapter 34.05 RCW Administrative Procedure Act; Chapter 42.30 RCW Open Public Meetings Act; Chapter 42.17 RCW Public Disclosure Act; and the Washington Administrative Code (WAC) Chapters 173-400 through -492 as codified in the SIP at 40 CFR part 52 Subpart WW.

Section 110(a)(2) requires SIPs to include enforceable emission limits and other control measures, means or techniques, schedules for compliance and other related matters. EPA notes that the specific nonattainment area plan requirements of Section 110(a)(2)(I) are subject to the timing requirement of Section 172, not the timing requirement of Section 110(a)(1).

Washington's submittal: The Washington SIP submittal lists the emissions limitation regulations of WAC Chapters 173-400 through -492 as codified in 40 CFR 52.2470. These regulations are (in parenthesis: state adopted date; EPA approval date; and FR citation):

• WAC 173-400 General Regulations for Air Pollution Sources (3/22/91; 6/2/95; 60 FR 28726)

• WAC 173-405 Kraft Pulping Mills (3/22/91; 1/15/93; 58 FR 4578)

• WAC 173-410 Sulfite Pulping Mills (3/22/91; 1/15/93; 58 FR 4578)

• WAC 173-415 Primary Aluminum Plants (3/22/91; 1/15/93; 58 FR 4578)

• WAC 173-425 Open Burning (10/18/90; 1/15/93; 58 FR 4578)

• WAC 173-433 Solid Fuel Burning Device Standards (various dates from 12/16/87 to 10/18/90; 1/15/93; 58 FR 4578)

• WAC 173-434 Solid Waste Incinerator Facilities (various dates from 12/16/87 to 1/22/04; 1/15/93; 58 FR 4578)

• WAC 173-490 Emission Standards and Controls for Sources Emitting Volatile Organic Compounds (3/22/91; 9/10/93; 58 FR 37426)

As part of the federally approved SIP codified in 40 CFR Part 52 Subpart WW, Washington State has an air quality permitting program for minor sources. As discussed previously, major sources are subject to regulation under the PSD permitting program implemented by means of a FIP which incorporates the PSD program specified at 40 CFR 52.21 (See 40 CFR 52.2497).

Under the Washington Clean Air Act general authority to adopt enforceable emission standards and limitations and other measures necessary for the attainment and maintenance of NAAQS is contained in RCW 70.94.331, Powers and Duties of Department. The following sections of the statute address various components of the state's emissions control measures and permitting program:

• RCW 70.94.152 Notice May be Required of Construction of Proposed New Contaminant Source—Submission of Plans—Approval, Disapproval—Emission Control—“De Minimis New Sources” Defined

• RCW 70.94.153 Existing Stationary Source—Replacement or Substantial Alteration of Emission Control Technology

• RCW 70.94.161 Operating Permits for Air Contaminant Sources—Generally—Fees, Report to Legislature

• RCW 70.94.162 Annual Fees from Operating Permit Program

• RCW 70.94.380 Emission Control Requirements

• RCW 70.94.395 Air Contaminant Sources—Regulation by Department; Authorities May be More Stringent—Hearing—Standards

• RCW 70.94.430 Penalties

• RCW 70.94.431 Civil Penalties—Excusable Excess Emissions

• RCW 70.94.850 Emission Credits Banking Program—Amount of Credit

EPA analysis: EPA finds that Washington's rules as codified in 40 CFR 52.2470, Subpart WW define and reference emissions limits and significant emissions rates for air pollutants including NO X and VOCs, which are precursors to ozone. Washington has no areas designated nonattainment for the 1997 8-hour ozone NAAQS.

Some of the rules listed above were approved into the SIP under part D because certain areas in Washington were historically nonattainment under the 1-hour ozone standard and required maintenance plans to ensure on-going compliance with the 1997 8-hour ozone standard. As a result, Washington regulates ozone and its precursors through its SIP-approved minor source permitting program and ozone maintenance plans. EPA does not consider SIP requirements triggered by the nonattainment area mandates in part D of Title I of the CAA to be governed by the submission deadline of section 110(a)(1), and EPA is not proposing to find the SIP to be adequate for purposes of CAA Part D requirements in this action. Nevertheless, Washington has referenced some SIP provisions originally submitted in response to part D in its submittal documenting its compliance with the infrastructure requirements of section 110(a)(1) and (2). Washington has over time updated the elements of its SIP addressing the ozone NAAQS, and the provisions reviewed here are a weave of SIP revisions submitted in response to the infrastructure requirements of section 110(a)(2) and the nonattainment requirements of part D.

For the purposes of this action, EPA is reviewing any rules originally submitted in response to part D solely for the purposes of determining whether they support a finding that the state has met the basic infrastructure requirements under section 110(a)(2). EPA is proposing to approve Washington's SIP as meeting the requirements of section 110(a)(2)(A) for the 1997 8-hour ozone NAAQS.

In this action, EPA is not proposing to approve or disapprove any existing state provisions with regard to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. EPA believes that a number of states may have SSM provisions that are contrary to the Clean Air Act and existing EPA guidance  17 and the Agency plans to address such state regulations in the future. In the meantime, EPA encourages any state having a deficient SSM provision to take steps to correct it as soon as possible.

In this action, EPA is not proposing to approve or disapprove any existing state rules relating to director's discretion or variance provisions. EPA believes that a number of states may have such provisions that are contrary to the Clean Air Act and existing EPA guidance (52 FR 45109), November 24, 1987, and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision that is contrary to the Clean Air Act and EPA guidance to take steps to correct the deficiency as soon as possible.

Section 110(a)(2)(B) requires SIPs to include provisions to provide for establishment and operation of ambient air quality monitors, collecting and analyzing ambient air quality data, and making these data available to EPA upon request.

Washington's submittal: Washington references RCW 70.94.331(5) which requires Ecology to provide for or conduct surveillance program that: monitors the quality of the ambient atmosphere, monitors the concentrations and movements of air contaminants, and determines the quantity of emissions to the atmosphere. The regulations implementing this provision are contained in WAC 173-400-105 Records, Monitoring and Reporting as codified in the SIP at 40 CFR 52.2470, Subpart WW.

EPA analysis: In accordance with EPA's air quality monitoring requirements of 40 CFR part 58 states are required to submit annual network reviews to determine if the network achieved its required air monitoring objectives and if it should be modified (e.g., termination, relocation or establishment of monitoring stations) to meet those objectives. Washington's most recent annual network review was approved by EPA on December 7, 2011, and is available to the public on the Ecology Web site at http://www.ecy.wa.gov/biblio/1102017.html. This plan includes, among other things, the locations for the ozone monitoring network. In addition, Washington sends real time air monitoring information for ozone, particulate matter, and carbon monoxide to EPA's AIRNow Web page at http://www.airnow.gov and also provides the information on the Ecology Web site at https://fortress.wa.gov/ecy/enviwa/Default.ltr.aspx. Based on the foregoing, EPA proposes to approve the Washington's SIP as meeting the requirements of CAA Section 110(a)(2)(B) for the 1997 8-hour ozone NAAQS.

Section 110(a)(2)(C) requires states to include a program providing for enforcement of all SIP measures and the regulation of construction of new or modified stationary sources, including a program to meet PSD and nonattainment NSR requirements.

Washington's submittal: Washington State cites the following regulatory provisions contained in the SIP which provide for the enforcement of the measures described in subparagraph (A). As discussed previously, Washington State has an EPA-approved air quality permitting program for minor sources. For major sources, EPA has a FIP in place to implement the PSD program.

• WAC 173-400-230 Regulatory Actions (state adopted date 3/20/93; EPA approval date 6/2/95; 60 FR 28726)

• WAC 173-400-240 Criminal Penalties (state adopted date 3/22/91; EPA approval date 6/2/95; 60 FR 28726)

Ecology's enforcement powers are derived from the statutory provisions in Chapter 70.94 RCW:

• RCW 70.94.141 Air Pollution Control Authority—Powers and Duties of Activated Authority

• RCW 70.94.200 Investigation of Conditions by Control Officer or Department—Entering Private, Public Property

• RCW 70.94.211 Enforcement Actions by Air Authority—Notice to Violators

• RCW 70.94.332 Enforcement Actions by Department—Notice to Violators

• RCW 70.94.425 Restraining Orders—Injunctions

• RCW 70.94.430 Penalties

• RCW 70.94.431 Civil Penalties—Excusable Excess Emissions

• RCW 70.94.435 Additional Means for Enforcement of Chapter

EPA analysis: To generally meet the requirements of section 110(a)(2)(C), the state is required to have a minor NSR permitting program adequate to implement the 1997 8-hour ozone NAAQS. For major sources a FIP is in place to implement the PSD program. Because the SIP does not contain approved PSD permitting provisions, EPA is proposing to disapprove that aspect of the SIP. However, as explained previously, EPA need not take any additional action related to the section 110(a)(2) provisions that are contingent upon adequate PSD permitting provisions in the SIP because these requirements are currently addressed by a FIP. Also, as discussed above, in this action EPA is not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D of the CAA, nor does Washington have nonattainment areas for the 1997 8-hour ozone NAAQS.

EPA believes Washington code provides Ecology with the authority to enforce the air quality laws, regulations, permits, and orders promulgated pursuant to WAC Chapters 173-400 through -492 as codified in the SIP at 40 CFR 52.2470, Subpart WW. Ecology staffs and maintains an enforcement program to ensure compliance with SIP requirements. The Ecology director may issue a restraining order for polluting activities that constitute or will constitute a violation under the SIP approved provisions of WAC 173-400-230(4). Enforcement cases may be referred to the state Attorney General's Office for civil or criminal enforcement. Therefore, EPA is proposing to approve the Washington SIP as meeting the requirements of 110(a)(2)(C) related to enforcement for the 1997 8-hour ozone NAAQS.

In this action, EPA is not proposing to approve or disapprove the state's existing minor NSR program itself to the extent that it is inconsistent with EPA's regulations governing this program, such as the SSM and director's discretion provisions discussed with respect to 110(a)(2)(A). EPA believes that a number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. EPA intends to work with states to reconcile state minor NSR programs with EPA's regulatory provisions for the program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs, and EPA believes it may be time to revisit the regulatory requirements for this program to give the states an appropriate level of flexibility to design a program that meets their particular air quality concerns, while assuring reasonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources.

Section 110(a)(2)(D) requires SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance of the NAAQS in another state, or from interfering with measures required to prevent significant deterioration of air quality or to protect visibility in another state. As noted above, this action does not address the requirements of 110(a)(2)(D(i) for the 1997 8-hour ozone NAAQS which were previously approved by EPA on January 13, 2009 (74 FR 1501).

Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with the applicable requirements of sections 126 and 115 (relating to interstate and international pollution abatement). Specifically, section 126(a) requires new or modified major sources to notify neighboring states of potential impacts from the source.

EPA analysis: The notification requirements of CAA section 126(a) pertain only to major proposed new or modified sources. As previously discussed, the major source PSD program in Washington is implemented under a FIP and is therefore not part of this action. The state has no pending obligations under section 115 or 126(b) of the Act. Because the PSD permitting program is implemented pursuant to a FIP, EPA is proposing to disapprove the Washington SIP because it does not meet the requirements of CAA section 110(a)(2)(D)(ii) for the 1997 8-hour ozone NAAQS. However, these requirements are adequately satisfied by the FIP and thus no additional action by Washington or EPA is needed to satisfy this infrastructure requirement for the 1997 8-hour ozone NAAQS.

Section 110(a)(2)(E) requires states to provide (i) necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of Federal or state law from carrying out the SIP or portion thereof), (ii) requires that the state comply with the requirements respecting state boards under section 128 and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the state has responsibility for ensuring adequate implementation of such SIP provision.

Washington's submittal: Ecology cites the following:

Chapter 43.21A RCW provides authority for the director to employ personnel necessary for administration of this chapter. Chapters 43.21A and 70.94 RCW provide for Ecology's rule-making authority. Ecology's Air Quality Program is funded through the following funding sources: the state General Fund, section 105 of the CAA grant program, Air Operating Permit Account (permit fees from large industrial sources), and Air Pollution Control Account (permit fees for burning and annual fees for small industrial air pollution sources).

The SIP-approved provisions of WACs 173-400-220 Requirements for Board Members and 173-400-260 Conflict of Interest (state adopted date 3/22/91; EPA approval date 6/2/95; 60 FR 28726) provide that no state board or body which approves operating permits or enforcement orders, either in the first instance or upon appeal, shall be constituted of less than a majority of members who represent the public interest and who do not derive a significant portion of their income from persons subject to operating permits. State law also provides that any potential conflicts of interest by members of such board or body or the head of any executive agency with similar powers be adequately disclosed. See RCW 34.05.425 Administrative Procedure Act; RCW 42.17 Public Disclosure Act; RCW 70.94.100 Composition of Local Air Authorities' Board; Conflict of Interest Requirements.

Ecology works with other organizations and agencies and may enter into agreements allowing for implementation of the air pollution controls by another agency. However, RCW 70.94.370 states that no provision of this chapter or any recommendation of the state board or of any local or regional air pollution program is a limitation on the power of a state agency in the enforcement, or administration of any provision of law which it is specifically permitted or required to enforce or administer.

EPA analysis: Regarding adequate personnel, funding and authority, EPA believes the Washington SIP meets the requirements of this element. Washington receives sections 103 and 105 grant funds from EPA and provides state matching funds necessary to carry out SIP requirements. Regarding the state board requirements under section 128, EPA approved WAC 173-400-220 Requirements for Board Members and WAC 173-400-260 Conflict of Interest as meeting the section 128 requirements on June 2, 1995 (60 FR 28726). Finally, regarding state responsibility and oversight of local and regional entities, RCW 70.94.370 provides Ecology with adequate authority to carry out SIP obligations with respect to the 1997 8-hour ozone NAAQS. Therefore EPA is proposing to approve the Washington SIP as meeting the requirements of CAA Section 110(a)(2)(E) for the 1997 8-hour ozone NAAQS.

Section 110(a)(2)(F) requires (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to the CAA, which reports shall be available at reasonable times for public inspection.

Washington's submittal: Washington's SIP submittal refers to the following SIP approved regulatory provisions:

• WAC 173-400-105 Records, Monitoring, and Reporting (state adopted date 9/20/93; EPA approval date 6/2/95; 60 FR 28726)

• WAC 173-400-110 New Source Review (NSR) (state adopted date 3/22/91; EPA approval date 6/2/95; 60 FR 28726)

• WAC 173-400-112 Requirements for New Sources in Nonattainment Areas (state adopted date 3/22/91; EPA approval date 6/2/95; 60 FR 28726)

• WAC 173-400-113 Requirements for New Sources in Attainment or Unclassifiable Areas (state adopted date 3/22/91; EPA approval date 6/2/95; 60 FR 28726)

EPA analysis: The provisions cited by the Washington SIP submittal provide for monitoring, recordkeeping and reporting requirements for sources. As note previously, Washington State has an EPA-approved air quality permitting program for minor sources. A FIP implements the PSD program requirements for major sources. EPA proposes to approve the Washington SIP as meeting the requirements of CAA Section 110(a)(2)(F) for the 1997 8-hour ozone NAAQS, with the exception of those aspects of the infrastructure requirements which relate to PSD permitting. EPA proposes disapprove that aspect of the SIP because the PSD provisions continue to be implemented by a FIP. Accordingly, no additional action is needed by Washington or EPA in response to this proposed disapproval.

Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIPs.

Washington's submittal: The Washington submittal cites the emergency episode regulations of WAC 173-435 approved into the SIP by EPA on January 15, 1993 (58 FR 4578). The significant harm level for ozone under the SIP approved WAC 173-435 is identical to the level contained in the current Federal regulations at 40 CFR 51.151.

EPA analysis: As noted in EPA's October 2, 2007 guidance, the significant harm level for the 8-hour ozone NAAQS shall remain unchanged at 0.60 ppm ozone, 2 hour average, as indicated in 40 CFR 51.151. EPA believes that the existing ozone-related provisions of 40 CFR 51 Subpart H remain appropriate. Washington's regulations discussed above, which have previously been approved by EPA into the SIP on January 15, 1993 (58 FR 4578) continue to be consistent with the requirements of 40 CFR 51.151. Accordingly, EPA proposes to find that the Washington SIP is adequate for purposes of CAA section 110(a)(2)(G) for the 1997 8-hour ozone NAAQS.

Section 110(a)(2)(H) requires that SIPs provide for revision of such plan (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii), except as provided in paragraph 110(a)(3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under the CAA.

Washington's submittal: Washington's SIP submittal refers to RCW 70.94 which gives Ecology the authority to promulgate rules and regulations to maintain and protect Washington's air quality and to comply with the federal requirements, including revisions of NAAQS, SIPs, and responding to EPA's findings.

EPA analysis: RCW 70.94.510 specifically requires Ecology to cooperate with the federal government in order to insure the coordination of the provisions of the federal and state clean air acts. EPA proposes to approve the Washington SIP as meeting the requirements of section 110(a)(2)(H) for the 1997 8-hour ozone NAAQS.

EPA analysis: There are two elements identified in section 110(a)(2) not governed by the 3 year submission deadline of section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within 3 years after promulgation of a new or revised NAAQS, but rather due at the time of the nonattainment area plan requirements pursuant to section 172. These requirements are: (i) Submissions required by section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D Title I of the CAA, and (ii) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, Title I of the CAA. As a result, this action does not address infrastructure elements related to section 110(a)(2)(C) with respect to nonattainment NSR or section 110(a)(2)(I).

Section 110(a)(2)(J) requires states to provide a process for consultation with local governments and Federal Land Managers carrying out NAAQS implementation requirements pursuant to Section 121 relating to consultation. Section 110(a)(2)(J) further requires states to notify the public if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. Lastly, section 110(a)(2)(J) requires states to meet applicable requirements of part C related to prevention of significant deterioration and visibility protection.

Washington's submittal: Washington's SIP submittal refers to a number of laws and regulations relating to consultation and public notification:

• WAC 173-400-171 Public Involvement (state effective date 9/20/93; EPA approval date 6/2/95; 60 FR 28726).

• WAC 173-435-050 Emergency Episode Plan (state effective date 1/3/89; EPA approval date 1/15/93; 58 FR 4578).

• RCW 70.94.141 Washington Clean Air Act, Air Pollution Control Authority—Powers and Duties of Activated Authority.

• RCW 70.94.240 Washington Clean Air Act, Air Pollution Control Advisory Council.

• RCW 34.05 Administrative Procedure Act.

• RCW 42.30 Open Public Meetings Act.

EPA analysis: Under the SIP approved provisions of WAC 173-400-171 Public Involvement, Ecology routinely coordinates with local governments, states, federal land managers, and other stakeholders on air quality issues and provides notice to appropriate agencies related to permitting actions. Washington regularly participates in regional planning processes including the Western Regional Air Partnership which is a voluntary partnership of states, tribes, federal land managers, local air agencies, and the U.S. EPA whose purpose is to understand current and evolving regional air quality issues in the West. Therefore EPA proposes to approve the Washington SIP as meeting the requirements of CAA Section 110(a)(2)(J) for consultation with government officials.

Washington sends real time air monitoring information for ozone, particulate matter, and carbon monoxide to EPA's AIRNow Web page at http://www.airnow.gov and also provides the information on Ecology's Web site at https://fortress.wa.gov/ecy/enviwa/Default.ltr.aspx . Therefore, EPA is proposing to approve the Washington SIP as meeting the requirements of CAA Section 110(a)(2)(J) for public notification.

Turning to the requirement in section 110(a)(2)(J) that the SIP meet the applicable requirements of part C of title I of the CAA, EPA has evaluated this requirement with respect to PSD permitting. As previously discussed, the major source PSD permitting program in Washington is implemented by means of a FIP. Therefore, EPA proposes to find that Washington's SIP must be disapproved with respect to the requirements of 110(a)(2)(J) because PSD provisions are not part of Washington's SIP. However, because the PSD provisions are adequately addressed by the FIP that is in place, no further action is needed by Washington or EPA in response to this proposed disapproval.

With regard to the applicable requirements for visibility protection, EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the CAA. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus we find that there is no new visibility obligation triggered under section 110(a)(2)(J) when a new NAAQS becomes effective.

Section 110(a)(2)(K) requires that SIPs provide for (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a national ambient air quality standard, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.

Washington's submittal: Washington's SIP submittal refers to the SIP-approved minor source NSR permitting provisions in WAC 173-400-110, -112, and -113 (State adopted date 3/22/91; EPA approval date 6/2/95; 60 FR 28726), which models pollutant concentrations in the ambient air based on EPA's guidance and latest methodologies and techniques specified in 40 CFR 51, Appendix W (Guideline on Air Quality Models). Ecology also cites the Washington Clean Air Act (specifically RCW 70.94.011 Declaration of Public Policies and Purpose and RCW 70.94.510 Policy to Cooperate with Federal Government) which directs Ecology to cooperate with the federal government in order to coordinate and implement federal and state clean air acts, which would include the submission of data related to air quality modeling to the Administrator.

EPA analysis: Washington models estimates of ambient concentrations based on 40 CFR part 51 Appendix W (Guidelines on Air Quality Models). Any change or substitution from models specified in 40 CFR part 51, Appendix W is subject to notice and opportunity for public comment. While Washington has no nonattainment areas for the 1997 8-hour ozone NAAQS, modeling was used to support maintenance plans and redesignation to attainment requests for the historical nonattainment areas of Puget Sound and Vancouver approved by EPA on September 26, 1996 (61 FR 50438) and May 19, 1997 (62 FR 27204), respectively. Modeling data has been provided to EPA in this context. Based on the foregoing, EPA proposes to approve Washington's SIP as meeting the requirements of CAA Section 110(a)(2)(K) for the 1997 8-hour ozone NAAQS.

Section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees to cover the cost of reviewing, approving, implementing, and enforcing a permit, until such time as the SIP fee requirement is superseded by EPA's approval of the state's Title V operating permit program.

Washington's submittal: Washington's SIP submittal refers to RCW 70.94.162, Annual Fees from Operating Permit Program Source to Cover Cost of Program, which provides Ecology authority to establish a schedule of fees for permits based upon the costs of filing and investigating applications, issuing or denying permits, carrying out Title V requirements, and determining compliance. Washington's submittal also refers to WAC 173-455, Air Quality Fee Regulation, which requires payment of permit fees based on a specified table of sources and fee schedule.

EPA analysis: On August 13, 2001 (66 FR 42439), EPA fully approved Washington's Title V program. As part of the approval process, Washington's Title V program included a demonstration the state will collect a fee from Title V sources above the presumptive minimum in accordance with 40 CFR 70.9(b)(2)(i). Therefore, EPA proposes to find that Washington has satisfied the requirements of CAA Section 110(a)(2)(L) for the 1997 8-hour ozone NAAQS.

Section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

Washington's submittal: Washington's SIP submittal refers to the following laws and regulations:

• WAC 173-400-171 Public Involvement (state effective date 9/20/93; EPA approval date 6/2/95; 60 FR 28726).

• RCW 34.05 Administrative Procedure Act.

• RCW 42.30 Open Public Meetings Act.

• RCW 70.94.240 Washington Clean Air Act, Air Pollution Control Advisory Council.

EPA analysis: As discussed in the narrative relating to 110(a)(2)(J), Ecology routinely coordinates with local governments and other stakeholders on air quality issues. The public involvement regulations cited in Washington's submittal were previously approved into Washington's federally-approved SIP on June 2, 1995 (60 FR 28726). Therefore, EPA proposes to find that Washington's SIP meets the requirements of CAA Section 110(a)(2)(M) for the 1997 8-hour ozone NAAQS.

This proposed SIP approval does not extend to sources or activities located in “Indian Country” as defined in 18 U.S.C. 1151. 18 Consistent with previous Federal program approvals or delegations, EPA will continue to implement the Act in Indian Country because Washington did not adequately demonstrate authority over sources and activities located within the exterior boundaries of Indian reservations and other areas of Indian Country. The one exception is within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area. Therefore, EPA's proposed SIP approval applies to sources and activities on nontrust lands within the 1873 Survey Area.

EPA is proposing to approve the following section 110(a)(2) infrastructure elements for Washington for the 1997 ozone NAAQS: (A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), (M), except for those portions of (C), (D)(ii), and (J) which relate to PSD and are addressed by the FIP codified at 40 CFR 52.2497. Therefore, EPA proposes to disapprove the SIP as inadequate for these PSD-related requirements, but no additional action is required by the state or EPA pursuant to this proposed disapproval because the requirements are adequately addressed by the FIP. EPA is also taking no action on infrastructure elements (D)(i) and (I) for the 1997 ozone NAAQS. This action is being taken under section 110 of the CAA.

Washington's Regulatory Reform Act of 1995, codified at Chapter 43.05 Revised Code of Washington (RCW), precludes “regulatory agencies”, as defined in RCW 43.05.010, from assessing civil penalties under certain circumstances. EPA has determined that Chapter 43.05 of the RCW, often referred to as “House Bill 1010,” conflicts with the requirements of CAA section 110(a)(2)(A) and (C) and 40 CFR 51.230(b) and (e). Based on this determination, Ecology has determined that Chapter 43.05 RCW does not apply to the requirements of Chapter 173-422 WAC. See 66 FR 35115, 35120 (July 3, 2001). The restriction on the issuance of civil penalties in Chapter 43.05 RCW does not apply to local air pollution control authorities in Washington because local air pollution control authorities are not “regulatory agencies” within the meaning of that statute. See 66 FR 35115, 35120 (July 3, 2001).

In addition, EPA is relying on the State's interpretation of another technical assistance law, RCW 43.21A.085 and .087, to conclude that the law does not impinge on the State's authority to administer Federal Clean Air Act programs. The Washington Attorney Generals' Office has concluded that RCW 43.21A.085 and .087 do not conflict with Federal authorization requirements because these provisions implement a discretionary program. EPA understands from the State's interpretation that technical assistance visits conducted by the State will not be conducted under the authority of RCW 43.21A.085 and .087. See 66 FR 16, 20 (January 2, 2001); 59 FR 42552, 42555 (August 18, 1994).

Under the CAA, 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 CAA. Accordingly, this proposed action merely approves the state's law as meeting Federal requirements and does not impose additional requirements beyond those imposed by the state's 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, 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 Washington  19 and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

For additional information, please see the immediate final rule published in the “Rules and Regulations”section of this Federal Register .

Under the Act (16 U.S.C. 1531 et seq. ), we maintain Lists of Endangered and Threatened Wildlife and Plants (which we collectively refer to as the List) in the Code of Federal Regulations (CFR) at 50 CFR 17.11 (for animals) and 17.12 (for plants). Section 4(c)(2)(A) of the Act requires us to review each listed species' status at least once every 5 years. Then, under section 4(c)(2)(B), we determine whether to remove any species from the List (delist), to reclassify it from endangered to threatened, to reclassify it from threatened to endangered, or to conclude that the current listing is appropriate. Any change in Federal classification requires a separate rulemaking process.

We use the following definitions, from 50 CFR 424.02, in our analysis of classification status:

(A) Species includes any species or subspecies of fish, wildlife, or plant, and any distinct population segment of any species of vertebrate, that interbreeds when mature;

(B) Endangered species means any species that is in danger of extinction throughout all or a significant portion of its range; and

(C) Threatened species means any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

Our regulations at 50 CFR 424.21 require that we publish a notice in the Federal Register announcing those species under active review.

This notice announces our active review of the 46 species listed in Table 1.

A 5-year review considers all new information available at the time of the review. In conducting these reviews, we consider the best scientific and commercial data that has become available since the listing determination or most recent status review, such as:

(A) Species biology including, but not limited to, population trends, distribution, abundance, demographics, and genetics;

(B) Habitat conditions including, but not limited to, amount, distribution, and suitability;

(C) Conservation measures that have been implemented that benefit the species;

(D) Threat status and trends (see five factors under heading “How Do We Determine Whether a Species is Endangered or Threatened?”); and

(E) Other new information, data, or corrections including, but not limited to, taxonomic or nomenclatural changes, identification of erroneous information contained in the List, and improved analytical methods.

Section 4(a)(1) of the Act requires that we determine whether a species is endangered or threatened based on one or more of the five following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

Under section 4(b)(1) of the Act, we must base our assessment of these factors solely on the best scientific and commercial data available.

For each species under review, if we find new information that indicates a change in classification may be warranted, we may propose, through formal rulemaking, to:

(A) Reclassify the species from threatened to endangered (uplist);

(B) Reclassify the species from endangered to threatened (downlist); or

(C) Remove the species from the List (delist).

If we determine that a change in classification is not warranted, then no formal rulemaking is required; the species remains on the List under its current status.

To ensure that a 5-year review is complete and based on the best available scientific and commercial information, we request new information from all sources. See “What Information Do We Consider in Our Review?” for specific criteria. If you submit information, please support it with documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources.

If you wish to provide information for any species listed above, please submit your comments and materials to the appropriate contact in either the Idaho or Pacific Islands Fish and Wildlife Office (see ADDRESSES section).

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Comments and materials received will be available for public inspection, by appointment, during normal business hours at the offices where the comments are submitted.

A list of all completed and currently active 5-year reviews addressing species for which the Pacific Region of the Service has lead responsibility is available at: http://www.fws.gov/pacific/ecoservices/endangered/recovery/5year.html.

This document is published under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

I. Why do we conduct 5-year reviews?

Under the Act (16 U.S.C. 1531 et seq. ), we maintain lists of endangered and threatened wildlife and plants (which we refer to collectively as the list) at 50 CFR 17.11 (for animals) and 17.12 (for plants). Section 4(c)(2)(A) of the ESA requires us to review the status of each listed species at least once every 5 years. Then, under section 4(c)(2)(B), we determine whether to remove the species from the list (delist), reclassify it from endangered to threatened, or reclassify it from threatened to endangered. Any change in Federal classification requires a separate rulemaking process.

In classifying a species, we use the following definitions from 50 CFR 424.02:

(A) Species includes any species or subspecies of fish, wildlife, or plant, or any distinct population segment of any species or vertebrate, that interbreeds when mature;

(B) Endangered species means any species that is in danger of extinction throughout all or a significant portion of its range; and

(C) Threatened specie s means any species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.

We must support delisting a species by the best scientific and commercial data available, and we only consider delisting if data substantiate that the species is neither endangered nor threatened for one or more of the following reason (50 CFR 424.11 (d)):

(A) The species is extinct;

(B) The species is recovered; or

(C) The original data available when the species was listed, or the interpretation of such data, were in error.

The regulations in 50 CFR 424.21 require that we publish a notice in the Federal Register announcing those species currently under active review.

We are initiating 5-year status reviews of the species in the following table.

We consider all new information available at the time we conduct a 5-year review. We consider the best scientific and commercial data that have become available since the current listing determination or most recent status review, such as:

(A) Species biology, including but not limited to, population trends, distribution, abundance, demographics, and genetics;

(B) Habitat conditions, including but not limited to, amount, distribution, and suitability;

(C) Conservation measures that have been implemented that benefit the species;

(D) Threat status and trends (see five factors under heading, “How Do We Determine Whether a Species is Endangered or Threatened?”); and

(E) Other new information, data, or corrections, including but not limited to, taxonomic or nomenclatural changes, identification of erroneous information contained in the List, and improved analytical methods.

We specifically request data from any systematic surveys, as well as any studies or analysis of data that may show any of the following:

(A) Population size or trends;

(B) Species biology or ecology;

(C) The effects of current land management on population distribution and abundance;

(D) Current habitat conditions;

(E) Recent conservation measures that have been implemented to benefit the species;

(F) Current distribution of populations;

(G) Evaluation of threats faced by the species in relation to the five listing factors (as defined below and in section 4(a)(1) of the Act); or

(H) The species' status as judged against the definition of endangered or threatened.

Section 4(a)(1) of the Act requires that we determine whether a species is endangered or threatened based on one or more of the five following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or man-made factors affecting its continued existence.

Under section 4(b)(1) of the Act, we must base our assessment of these factors solely on the best scientific and commercial data available.

For each species under review, if we find new information indicating that a change in classification may be warranted, we may propose a rule that could do one of the following:

(A) Reclassify the species from threatened to endangered (uplist);

(B) Reclassify the species from endangered to threatened (downlist); or

(C) Remove the species from the List (delist).

If we determine that a change in classification is not warranted, then the species will remain on the list under its current status.

To ensure that a 5-year review is complete and based on the best available scientific and commercial information, we request new information from all sources. See “What Information Do We Consider in Our Review?” for specific criteria. If you submit information, support it with documentation such as maps, bibliographic references, methods used to gather and analyze the data, and/or copies of any pertinent publications, reports, or letters by knowledgeable sources.

Submit your information and materials to the appropriate U.S. Fish and Wildlife Office listed under “VIII., Contacts.”

Before including your address, phone number, electronic mail address, or other personal identifying information in your submission, you should be aware that you entire submission—including your personal identifying information—may be made publicly available at any time. Although you can request that personal information be withheld from public review, we cannot guarantee that we will be able to do so. Materials received will be available for public inspection, by appointment, during normal business hours at the offices where the information is submitted.

We publish this document under the authority of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) requires that each regional fishery management council submit any fishery management plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that NMFS, upon receiving a fishery management plan amendment, immediately publish a notice in the Federal Register announcing that the amendment is available for public review and comment. This notice announces that proposed Amendment 97 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) is available for public review and comment.

The groundfish fisheries in the exclusive economic zone (EEZ) of the BSAI are managed under the FMP. The FMP was prepared by the North Pacific Fishery Management Council (Council) under the Magnuson-Stevens Act. The EA/RIR/IRFA prepared for this action contains a complete description of the alternatives and a comparative analysis of the potential impacts of the alternatives (see ADDRESSES for availability). All of the directly regulated entities would be expected to benefit from this action relative to the status quo because the proposed amendment would enable vessel owners to replace aging vessels with newer, larger, safer, and more efficient vessels.

Amendment 97 would amend FMP provisions related to vessel replacement in the Amendment 80 Program. In June 2006, the Council adopted Amendment 80 to the FMP, which was implemented with a final rule published in 2007 and was fully effective starting with the 2008 fishing year (72 FR 52668, September 14, 2007). Among other measures, Amendment 80 authorized the allocation of specified groundfish species to harvesting cooperatives and established a catch share program for trawl catcher/processors that are not authorized to conduct directed fishing for pollock under the American Fisheries Act of 1998 (AFA) (Pub. L. 105-227, Title II of Division C), or non-AFA trawl catcher/processors. Non-AFA trawl catcher/processors are also referred to as Amendment 80 vessels or the Amendment 80 sector. Amendment 80 was intended to meet a number of policy objectives that included improving retention and utilization of fishery resources by the Amendment 80 sector, reducing potential bycatch reduction costs, encouraging fishing practices with lower discard rates, and promoting opportunities for the sector to increase the value of harvested species.

Regulations implementing Amendment 80 limit participation in the Amendment 80 sector to non-AFA trawl catcher/processors that qualified under the definition of the non-AFA trawl catcher processor subsector as defined by section 219(a)(7) of the BSAI Catcher Processor Capacity Reduction Program (CRP), contained within the Department of Commerce and Related Agencies Appropriations Act, 2005 (Pub. L. 108-447). The regulations list the 28 non-AFA trawl catcher/processors that meet the criteria laid out in section 219(a)(7) of the CRP. In developing the regulations for Amendment 80, NMFS determined that the language of the CRP prohibited vessels that did not meet the criteria from participating in the Amendment 80 sector. Therefore, only listed vessels were permitted to fish in the Amendment 80 sector and non-qualifying vessels could not be used as replacement vessels. Arctic Sole Seafoods, Inc., the owner of an original qualifying Amendment 80 vessel that was lost, submitted comments on the proposed rule specifically addressing the restriction of participation in the Amendment 80 sector to the listed vessels and the lack of a replacement vessel provision in the regulations. NMFS maintained that Congress had established the eligibility requirements for participation in the Amendment 80 sector through the CRP and the non-AFA trawl catcher/processor subsector, and that section 219(a)(7) limited participation to the vessels that met the qualifying criteria. NMFS further explained that it could not provide replacement language in the regulations because Congress did not authorize such action. After publication of the final rule, Arctic Sole Seafoods, Inc. challenged NMFS's statutory interpretation of section 219(a)(7), contending that the lack of replacement vessel language was arbitrary and capricious.

On May 19, 2008, the U.S. District Court for the Western District of Washington (Court) issued a decision invalidating those regulatory provisions that limit the vessels used in the Amendment 80 Program to only those vessels meeting the qualification criteria in section 219(a)(7) of the CRP. In Arctic Sole Seafoods, Inc. v. Gutierrez, 622 F.Supp.2d 1050 (W.D. Wash. 2008), the Court found the statutory language of the CRP ambiguous as to whether replacement of qualifying vessels with non-qualifying vessels was permissible, and found the agency's interpretation of the statute to be arbitrary and capricious. The Court concluded that the inability to replace qualifying vessels with non-qualifying vessels would ultimately result in the elimination of the sector through vessel attrition, and that Congress had not intended such an outcome in the CRP. The Court ordered that “[t]o the extent that [regulations] restrict access to the BSAI non-pollock groundfish fishery to qualifying vessels without allowing a qualified owner to replace a lost qualifying vessel with a single substitute vessel, the regulations must be set aside. * * *”

After receiving the Court's decision, NMFS developed an interim policy for vessel replacement in the Amendment 80 sector consistent with the Court's decision. In October 2008, NMFS provided the Council with an overview of the Court Order, the necessary amendments to the FMP to implement the Court Order, possible alternatives the Council could consider with regard to vessel replacement, and a discussion of other aspects of the Amendment 80 Program that may be affected by vessel replacement, such as the application of Gulf of Alaska (GOA) sideboards to replacement vessels and the assignment of quota share (QS) permits to replacement vessels.

The Council and NMFS recognized the need to clarify the conditions under which an Amendment 80 vessel may be replaced and that any vessel replacement provisions must be consistent with the Court Order, the Capacity Reduction Program, and the Magnuson-Stevens Act. Over the course of several meetings, the Council considered an analysis prepared for the action and public comments regarding the action. At its June 2010 meeting, the Council selected its preferred alternative for vessel replacement and recommended that it be submitted for Secretarial review as Amendment 97 to the FMP.

If approved, Amendment 97 would allow the owner of an Amendment 80 vessel to replace that vessel for any reason and at any time. The Council determined that Amendment 97 is necessary to provide for the replacement of Amendment 80 vessels in a manner that promotes the objectives of Amendment 80, the CRP, and the Magnuson-Stevens Act, to promote safety-at-sea by providing Amendment 80 vessel owners the opportunity to replace aging vessels with newer, larger, more efficient vessels and requiring replacement vessels to meet certain Coast Guard safety standards, and to facilitate the sector's ability to increase its processing capabilities to improve the sector's retention and utilization of groundfish catch.

Amendment 97 would make several modifications to the FMP applicable to replacement vessels and replaced vessels. For replacement vessels, Amendment 97 would authorize Amendment 80 vessel owners to replace an Amendment 80 vessel for any reason and at any time. Amendment 97 would require that up to one replacement vessel be used at any given time and would restrict the length of Amendment 80 replacement vessels to no longer than 295 ft (89.0 m) length overall. The Council considered several length limits, including no length limit, before recommending that NMFS implement a 295 ft (89.9 m) maximum length overall (MLOA) limit for all Amendment 80 replacement vessels. The Council recognized that larger vessels can include facilities able to store large quantities of fish and are able to make value added products like surimi, fillets, and fishmeal in onboard fishmeal plants. The Council also determined that the proposed 295 ft (89.9 m) MLOA would provide equal advantages to each participant in the Amendment 80 sector while improving the ability of the Council and NMFS to analyze and predict the maximum fishery impacts of the Amendment 80 fleet in future actions. If approved, Amendment 97 is intended to demonstrate to the United States Maritime Administration (MARAD) that the Council recommended and NMFS approved conservation and management measures allowing vessels that exceed the limits set forth in 46 U.S.C. 12113 to participate in certain North Pacific fisheries under the Council's jurisdiction and therefore are eligible to receive a certificate of documentation consistent with 46 U.S.C. 12113 and MARAD regulations at 46 CFR 356.47.

Under Amendment 97, vessel owners that choose to remove an Amendment 80 vessel would have the option of either assigning their Amendment 80 QS permit to a replacement vessel or permanently assigning their Amendment 80 QS permit to the License Limitation Program (LLP) license derived from the originally qualifying Amendment 80 vessel. Under this second option, the holder of an Amendment 80 LLP/QS license could then assign the license to a vessel authorized to participate in the Amendment 80 sector. Amendment 97 would prohibit the use of a replacement vessel in an Amendment 80 fishery unless an Amendment 80 QS permit or an Amendment 80 LLP/QS license has been assigned to that vessel. Additionally, Amendment 97 would permit a person holding an Amendment 80 QS permit associated with a vessel that is permanently ineligible to re-enter United States fisheries to replace the vessel associated with the QS permit.

With an exception for the F/V GOLDEN FLEECE, Amendment 97 would extend to a replacement vessel all Gulf of Alaska (GOA) sideboard measures that are applicable to the originally qualifying Amendment 80 vessel being replaced. Additionally, Amendment 97 would extend to a replacement vessel authorization to conduct directed fishing for GOA flatfish species if the originally qualifying Amendment 80 vessel being replaced was authorized to conduct directed fishing for GOA flatfish species. This action would ensure that any vessel that replaces an Amendment 80 vessel eligible to conduct directed fishing for flatfish in the GOA will continue to be allowed to conduct directed fishing in the GOA flatfish fishery. The Council did not recommend any measures to address the potential expansion of the harvest by Amendment 80 replacement vessels in GOA flatfish fisheries because the Council determined that halibut prohibited species catch limits applicable to Amendment 80 replacement vessels adequately constrain harvest and because the annual harvest limits for many GOA flatfish species have not been fully harvested. Depending on the length overall of any replacement vessel for the F/V GOLDEN FLEECE, Amendment 97 would either extend the current sideboard measures applicable to the F/V GOLDEN FLEECE or would impose the sideboard measures applicable to other Amendment 80 vessels. These provisions would continue to recognize the special standing that this vessel has received under Amendment 80 and its implementing regulations.

Amendment 97 would require all Amendment 80 replacement vessels to meet contemporary vessel construction standards in order to improve safety-at-sea for these vessels. Under Amendment 97, vessel owners applying to NMFS to replace their vessel would have to submit documentation demonstrating that their replacement vessel meets U.S. Coast Guard requirements applicable to catcher/processor vessels operating in the Amendment 80 sector or, if unable to meet these requirements, is enrolled in the U.S. Coast Guard Alternative Compliance and Safety Agreement (ACSA) program. Amendment 97 would allow Amendment 80 vessels currently participating in the Amendment 80 program to replace other Amendment 80 vessels. However, in order to be used as an Amendment 80 replacement vessel, the currently participating Amendment 80 vessel would have to demonstrate compliance with the U.S. Coast Guard requirements or participate in the ACSA program.

Amendment 97 would restrict the use of replaced vessels that are not used as Amendment 80 replacement vessels. For replaced vessels that are not assigned to an Amendment 80 fishery, e.g., that are not used as Amendment 80 replacement vessels, Amendment 97 would establish a catch limit of zero metric tons for all BSAI and GOA groundfish fisheries. A catch limit of zero metric tons for all BSAI and GOA groundfish fisheries would effectively prohibit the vessel from being used to fish in any BSAI or GOA groundfish fishery. This provision would prevent the use of replaced vessels that have substantial fishing capacity from entering into other BSAI or GOA fisheries. The Council was concerned about the highly destabilizing effect of increased fishing capacity and the resulting rapid pace of harvest if replaced vessels entered other BSAI and GOA fisheries.

Finally, Amendment 97 would amend the FMP to provide a brief summary of Amendment 93 to the FMP. This summary was inadvertently omitted from Amendment 93. To correct this omission, Amendment 97 would insert a brief summary of Amendment 93 in Appendix A to the FMP.

Public comments are being solicited on proposed Amendment 97 to the FMP through the end of the comment period (see DATES ). NMFS intends to publish in the Federal Register and seek public comment on a proposed rule that would implement Amendment 97, following NMFS' evaluation of the proposed rule under the Magnuson-Stevens Act. Public comments on the proposed rule must be received by the end of the comment period on Amendment 97 to be considered in the approval/disapproval decision on Amendment 97. All comments received by the end of the comment period on Amendment 97, whether specifically directed to the FMP amendment or the proposed rule, will be considered in the FMP amendment approval/disapproval decision.

Comments received after that date will not be considered in the approval/disapproval decision on the amendment. To be considered, comments must be received, not just postmarked or otherwise transmitted, by the last day of the comment period.