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

Communications should identify both docket numbers (FAA Docket No. FAA-2013-0504 and Airspace Docket No. 13-AEA-3) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2013-0504 and Airspace Docket No. 13-AEA-3.” The postcard will be date/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., College Park, GA 30337.

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

The Lake Henry, PA (LHY) VORTAC facility is currently out of service. A determination has been made to permanently decommission the facility due to projected signal degradation from a planned power line nearby. Additionally, the LHY VORTAC is not on the list of VORs planned for retention in the VOR Minimum Operational Network (MON). As a result, the ATS routes that utilize the LHY VORTAC must be amended. The affected routes are: Jet route J-36 and VOR Federal airways V-58, V-93, V-106, V-126, V-149, V-153, and V-408. With the decommissioning of the LHY VORTAC, ground-based navigation aid (NAVAID) coverage is insufficient to enable the continuity of all the airways. Therefore, the proposed modifications to VOR Federal airways V-58, V-93, V-106, V-126, V-149, and V-408 would result in a gap in the route structures. Route segments supported by other NAVAIDs would be retained. Each of these airways would have an RNAV T-route overlying its original track. A portion of J-36 would also be deleted and replaced by Q-436. Although not directly affected by the LHY VORTAC decommissioning, J-68 would be amended to support the transition to RNAV and reduce chart clutter as noted below.

The FAA also plans to establish a new Waypoint (WP)/Intersection (INT), named LAAYK, within 0.01 seconds of latitude of the LHY VORTAC's position. The LAAYK WP (defined by lat. 41°28′33″ N., long. 075°28′57″ W.; or the intersection of the Wilkes-Barre, PA 037°T/047°M and Sparta, NJ 300°T/311°M radials) would be utilized in a number of the routes described in this proposal.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to amend jet routes J-36 and J-68; VOR Federal airways V-58, V-93, V-106, V-126, V-149, V-408; and RNAV routes T-212, T-291 and T-295. The FAA also proposes to establish new RNAV routes Q-436, Q-438, Q-440, T-216, T-218 and T-221. In addition, VOR Federal airways V-153 and V-449 would be cancelled. The scheduled decommissioning of the LHY VORTAC facility has made this action necessary.

The proposed route changes are outlined below.

J-36: J-36 currently extends between Mullan Pass, ID (MLP) and Sparta, NJ (SAX). The FAA proposes to eliminate the part of the route between Flint, MI (FNT) and SAX. A new RNAV route, Q-436, is proposed, as described below, that would replace the cancelled segment. Most aircraft utilizing J-36 are RNAV equipped, so replacing the above J-36 segment with an RNAV route would further the transition to an RNAV route structure and support the NextGen initiative.

J-68: J-68 currently extends between Gopher, MN (GEP) and Dunkirk, NY (DKK); and then between Hancock, NY (HNK) and Nantucket, MA (ACK). Although J-68 is not directly affected by the planned LHY VORTAC decommissioning, the FAA proposes to cancel that part of J-68 that extends between FNT and DKK. J-68 overlies J-36 between FNT and DKK. The proposed Q-436, Q-438 and Q-440 (see below), as well as other jet routes, provide alternative routings through the area. Therefore cancelling the segments of J-68 between FNT and DKK would support the transition to RNAV and reduce chart clutter. The portion of J-68 between Hancock, NY and Nantucket, MA would be retained as currently published.

Q-436: This proposed new route would extend between the EMMMA, MI, fix and the COATE, NJ, fix (approximately 8 NM NW of Sparta). Q-436 would replace the cancelled segments of J-36 and that part of J-68 that extends between FNT and DKK. The proposed routing of Q-436 from the COATE, NJ, INT/WP to a point southeast of DKK is an exact overlay of the segments of J-36 proposed for cancellation (see above). From this point Q-436 would continue westbound to provide a more direct routing for aircraft transiting from the New York area landing in Chicago, IL.

Q-438 and Q-440: During the development of Q-436, two additional Q-routes (Q-438 and Q-440) were designed to segregate Chicago O'Hare arrivals from other westbound traffic. Q-438 would extend between the RUBYY, MI, WP and the RAAKK, NY, WP. Q-440 would extend between the SLLAP, MI, WP and the RAAKK, NY, WP. From a point southeast of DKK, Q-438 and Q-440 would diverge from Q-436 to provide segregation between Chicago arrivals and aircraft overflying the Chicago area. Although not directly related to the LHY VORTAC decommissioning, these additional Q-routes would reduce ATC sector complexity, allow overflight aircraft to be cleared to their cruising altitude more expeditiously and provide a more direct routing to destinations west of Chicago; therefore, they are included in this proposed rule.

V-58: V-58 currently extends between the intersection of the Franklin, PA, (FKL) 175° and Clarion, PA, (CAV) 222° radials and ACK. The V-58 segments between Williamsport, PA (FQM) and the HELON, NY, intersection (formed by the intersection of the Sparta, NJ, 018° and Kingston, NY, 270° radials) would be removed. Following this gap, the airway would resume its current track between HELON and ACK.

V-93: V-93 currently extends between Patuxent River, MD (PXT), and the United States/Canadian border, (near Princeton, ME [PNN]). As proposed, V-93 would extend between PXT and the new LAAYK INT. The segments between LAAYK, PA, and HELON, NY, would be deleted. The route would then resume its current track between HELON, NY, and the United States/Canadian Border.

V-106: V-106 currently extends between Johnstown, PA (JST), and Kennebunk, ME (ENE). V-106 would be realigned to the LAAYK INT in lieu of LHY and that portion of the airway between LAAYK and Barnes, MA (BAF) would be deleted. Following that gap, the airway would resume its currently published track between BAF and ENE. This change is proposed because other routings are available via other conventional airways (V-34 from WEETS, NY, to Pawling, NY (PWL) then V-405 to BAF). The change would also reduce chart clutter. As described below, T-212 would replace the deleted segments of V-106.

V-126: V-126 currently extends between the intersection of the Peotone, IL (EON), 053° and Knox, IN (OXI), 297° radials and Sparta, NJ. That portion of V-126 between Stonyfork, PA (SFK) and Sparta would be deleted. The proposed RNAV route T-218 would overlay the airway.

V-149: V-149 currently extends between the intersection of the Allentown, PA (FJC), 147° and Solberg, NJ (SBJ), 227° radials, through the FJC VORTAC and LHY VORTAC, then on to Binghamton, NY (CFB). V-149 would be modified by replacing the LHY VORTAC with the new LAAYK INT (formed by radials from the CFB and FJC VORTACs). In addition, V-149 currently utilizes the FJC 147°(M) radial to define the segment between the MAZIE fix and FJC. This radial is currently charted as “unusable.” Therefore, the FAA also proposes to remove that segment of V-149 between the MAZIE fix and FJC. The proposed T-221 would overlie this removed segment as described below.

V-153: V-153 currently extends between Lake Henry, PA, and Syracuse, NY (SYR). The FAA is proposing to remove V-153 in its entirety based on other available route alternatives and minimal usage by air traffic.

V-408: V-408 currently extends between the intersection of the Martinsburg, WV (MRB), 058° and Modena, PA (MXE), 258° radials and the intersection of the Lake Henry, PA, 056° and Barnes, MA, 265° radials (i.e., the SAGES fix). As proposed, V-408 would terminate at Allentown, PA, and the segments between Allentown and SAGES would be deleted. The deleted portion would be replaced by a proposed extension of T-295, described below.

V-449: V-449 currently extends between Milton, PA (MIP), and Albany, NY (ALB). The FAA proposes to remove V-449 in its entirety. With the LHY decommissioning, the remainder of the airway will not pass flight inspection. A proposed extension of T-291 would replace this airway, as described below.

T-212: T-212 currently extends between the WEARD, NY, fix and the Putnam, CT, VOR/DME (PUT). The FAA proposes to extend T-212 to the west by adding segments between the existing RASHE, PA, fix (formed by the intersection of radials from the Selinsgrove, PA, and the Philipsburg, PA, VORTACs) and WEARD. As proposed, T-212 would replace the cancelled segment of V-106 between the LAAYK and WEETS fixes.

T-216: T-216 is a proposed new route that would extend between the Philipsburg, PA, VORTAC (PSB) and the Nantucket, MA, VOR/DME (ACK). T-216 would overlie V-58 between PSB and ACK, and would also replace the cancelled portion of V-93 between the LAAYK INT and the HELON fix.

T-218: T-218 is a proposed new route that would extend between the Stonyfork, PA (SFK), VOR/DME and the Sparta, NJ, VORTAC (SAX). T-218 would replace V-126 between SFK and SAX.

T-221: T-221 is a proposed new route that would extend between the MAZIE, PA, fix and the Albany, NY, VORTAC (ALB). T-221 would overlie V-149 between the MAZIE fix and Binghamton, NY (CFB).

T-291: is a newly established route to become effective August 22, 2013 (78 FR 29615, May 21, 2013), extending between the LOUIE, MD, fix and the Harrisburg, PA, VORTAC (HAR). After T-291 becomes effective, this proposal would further extend the route northward between HAR and ALB. The extended route would overlie V-31 to Selinsgrove, PA (SEG), then proceed direct to MIP, and from MIP it would replace V-449 by way of the LAAYK WP, terminating at ALB.

T-295: T-295 is a newly established route to become effective August 22, 2013 (78 FR 29615, May 21, 2013), extending between the LOUIE, MD, fix and the Lancaster, PA, VORTAC (LRP). After T-295 becomes effective, this proposal would further extend the route northward to the Princeton, ME, VOR/DME (PNN). T-295 would overlie V-93 from LRP through Wilkes-Barre, PA (LVZ), to the LAAYK WP and then would replace V-408 from LAAYK to the SAGES, NY, INT/WP where it would turn and overlie V-292 until the SASHA, MA, INT/WP. T-295 would then continue northbound overlying V-93 to PNN.

Where new navigation aid radials are cited in a proposed route description, below, both True and Magnetic degrees are shown. Otherwise, only True degrees are stated.

Jet routes are published in paragraph 2004; high altitude RNAV routes (Q) are published in paragraph 2006; VOR Federal airways are published in paragraph 6010(a); and low altitude RNAV routes (T) are published in paragraph 6011, respectively, of FAA Order 7400.9W dated August 8, 2012, and effective September 15, 2012, which is incorporated by reference in 14 CFR 71.1. The jet routes, Q routes, VOR Federal airways and T routes listed in this document would be subsequently published in the Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the route structure as necessary to preserve the safe and efficient flow of air traffic and to advance the use of Performance Based Navigation technology.

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

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

I. Introduction

Section 111 of the Copyright Act (“Act”), title 17 of the United States Code (“Section 111”), provides cable operators with a statutory license to retransmit a performance or display of a work embodied in a primary transmission made by a television station licensed by the Federal Communications Commission (“FCC”). Cable system statutory licensees are required to file Statements of Account (“SOAs”) and pay royalty fees to the Copyright Office. SOAs contain information on a cable operator's channel line-ups and gross receipts for the sale of cable service to the public. Payments made under the cable statutory license are remitted semi-annually to the Office, which invests the royalties in United States Treasury securities pending distribution of the funds to those copyright owners who are entitled to receive a share of the fees.

Since 2007, the Copyright Office has been implementing plans to reengineer the workflow of its Licensing Division (“Division”) for the administration, processing, and recordkeeping of electronically filed SOAs and related documents. The goals of this ongoing effort are manifold: (1) To facilitate the timely processing of SOAs; (2) to enable the Division to better manage its royalty investment accounts; (3) to expedite the availability of SOAs and other records for public inspection; and (4) to better control costs for those who participate in the statutory licensing system.

One of the key reengineering efforts is to digitize the royalty fee collections process. The Office is in the process of configuring and deploying a commercial off the shelf (“COTS”) computer software package as part of an overall business process reengineering effort. The COTS package will support the development of an efficient electronic system for filing, managing, and retrieving Statements of Account, royalty payments, notices, amendments, and other documents related to the work of the Licensing Division. The COTS package will provide the Office with the capability to automate the reengineered processes and provide a platform for managing stakeholders' needs online. The Office has named the new electronic filing system “eLi” (“eLi” or “Electronic Licensing”).

Central to the success of eLi is the establishment of a robust identity authentication system for the preparation and electronic filing of SOAs. This authentication will be accomplished through an electronic signature process. An authentication system for electronic filings is necessary because: (1) It establishes the identity of the individual(s) preparing the form; (2) it establishes the identity of the individual charged with the responsibility of certifying and signing the SOA during a secure online session; (3) it creates an electronically signed record in a format that accurately reflects the information provided by the cable system as submitted at the time of the electronic signing; and (4) it helps protect digital documents from tampering. In establishing eLi, the Office must revise its regulations to allow for the use of electronic signatures as the means of verifying the identity of the individual signing the SOA 1 and linking that individual to a specific electronic record.2 The Office requests comments on proposed regulations governing the electronic signature process for filing cable Statements of Account.

Today, cable companies may utilize a number of employees in the preparation of an SOA. The Office's regulations, however, require that the document be signed by a person of authority, i.e., an owner, partner, or officer of the company who, by signing, certifies that the information in the SOA is complete and accurate. 37 CFR 201.17(3)(14). For eLi filings, the Office seeks to adopt an identity authentication method that will identify each person involved in the preparation of the SOA, authenticate the identity of the person certifying the statement by his or her electronic signature on the document, and secure the information provided in the certified document.

The Office of Management and Budget (“OMB”) manual, E-Authentication Guidance for Federal Agencies, [OMB 04-04], describes the four levels of identity assurance currently used for electronic transactions filed with the federal government that require authentication. In choosing which assurance level is appropriate to authenticate a particular kind of electronic government transaction, the agency must consider the risk factors involved and the level of security required for that transaction. Under the OMB framework, Level 1 provides the lowest security assurance and Level 4 provides the highest, with Levels 2 and 3 providing a mix of security and ease of access to protected documents.

Level 1 authentication methods do not require identity proofing, but they must provide some assurance that the party who electronically signed a protected document is the same individual who transmitted it. Level 1 methods allow a wide range of available authentication technologies to be employed and permit the use of any token methods of Levels 2, 3, or 4. Successful authentication requires that the electronic signer prove, through a secure authentication protocol, that he or she controls the token. The method does not permit plain text passwords to be transmitted across a network, nor does it require cryptographic methods that block offline analysis by eavesdroppers. Thus, at Level 1, long-term shared authentication secrets may be revealed to verifiers.3

Level 2 provides single factor remote network authentication. Successful level 2 authentication requires that the individual prove, through a secure authentication protocol that utilizes approved cryptology, that he or she controls an access token, such as a password or a PIN number. This kind of authentication method is designed to prevent security threats such as eavesdropper and online guessing attacks. However, the single authentication token is vulnerable to compromise via replay, on-line guessing, and verifier impersonation.4

Level 3 identity authentication will provide appropriate security for authentication of electronic signatures on Statements of Account. Level 3 provides multi-factor remote network authentication. At this level, identity proofing procedures require verification of identifying materials and information. Level 3 authentication is based on proof of possession of a key or a one-time password through a cryptographic protocol. As the second step, it requires cryptographic strength mechanisms that protect the primary authentication token (secret key, private key or one-time password).5

Level 4 authentication generally applies only to those systems managing access to highly sensitive information. Level 4 is structured to provide the highest practical remote network authentication assurance. Level 4 authentication is based on proof of possession of a key through a cryptographic protocol. Only “hard” cryptographic tokens are allowed. Level 4 also requires strong cryptographic authentication of all parties and all sensitive data transfers between the parties.6

The Copyright Office has conducted an internal assessment of the protocols necessary to secure and certify electronically filed Statements of Accounts. The Office notes that SOAs are made readily available to the public for inspection, and has concluded that once filed, cable system SOAs and related documents do not contain highly sensitive or confidential information. Based upon these findings, the Office has determined that it need not implement the most exacting security protocol for the authentication of the electronic signatures, meaning that Level 4 would be unnecessarily burdensome, given the low security risk. At the same time, the Office has determined that it is necessary to implement an authentication mechanism that guarantees that a particular individual has performed a certain task. Unfortunately, neither Level 1 nor Level 2 authentication will provide sufficient “proof” to link an individual to a specific filing.

The Office does believe that Level 3 authentication methods are well suited for the authentication of electronic signatures on SOAs and related documents. Level 3 methods are utilized by financial institutions 7 and government agencies 8 that have found level 3 methods to provide sufficient security for their work products and operating environments. The Office believes that a two-step authentication process will provide the necessary balance between ensuring the security of the information provided by the cable operator in the SOA while allowing remote authentication of the identity of the individual who has legitimate access to sign and certify the SOA. “Two-factor” authentication, integral in the Level 3 security framework, provides the required level of confidence necessary to establish in a consistent and secure manner the connection between the signing individual and his/her action as it relates to electronically filed SOAs. Moreover, this level of identity authentication provides safeguards against fraud consistent with the criminal provisions under title 18 of the United States Code.9

There are different methods for implementing a “two-factor” Level 3 authentication process, and each has its strengths and weaknesses. In this category are key fobs,10 digital certificates,11 USB tokens,12 smart cards,13 biometrics,14 out of band options, and virtual tokens. After considering cost factors, ease of use, infrastructure constraints, and the level of security provided, the Office expects to pursue either an out of band option or a virtual token option for digital authentication purposes. The Office's proposal is guided by the knowledge that banks, insurance companies, and federal agencies (i.e., the Internal Revenue Service) have implemented these two methods and have found them to be effective.

Virtual tokens. A virtual token is a hash 15 of unique system characteristics paired with the standard username and password. Virtual tokens work by sharing the token generation process between a Web site and the individual's computer. They have the advantage of not requiring the distribution of additional hardware or software. In addition, since the user's computer communicates directly with the authenticating Web site, virtual tokens are resistant to “man-in-the-middle attacks” 16 and similar forms of online fraud. In most respects, virtual tokens function like the fob (physical) token noted above, but without the added costs. Some of the benefits of a virtual token authentication method are that the measure is simple to implement, its software is easy to configure, and neither the Office nor the user would require special equipment. However, a key drawback to using virtual tokens for identity authentication related to SOA forms is that with this method, authentication can only be implemented from previously identified computers connected at a specific site.

Out of Band (Email/SMS). Out of band authentication is a security confirmation system that provides an added layer of protection to validate certain transactions. It uses a separate, discrete pathway (“out of band”) to authenticate an individual's identity while performing online transactions. It can be performed either by text messaging or by email. When a user logs into a particular Web site, a numeric code is sent via Short Messaging Service (“SMS”) to either a cell phone or email address on record. Upon receiving the code, the user must to enter it on a secure Web page to verify his authenticity.

Some of the benefits of out of band authentication techniques are: (1) They are easy to implement; (2) the software is simple to configure; and (3) they do not require specialized equipment. Another key benefit of out of band authentication is that unlike virtual tokens, out of band options do not require a participant to use the same computer at the same location, and therefore are more practical for some operators who have several different individuals working on a particular SOA. Out of band security is tied to a specific user but is not tied to a specific computer at a particular physical site. Because of this flexibility, the Office believes that the out of band option may be a more workable approach to implementing electronic signatures for most operators.

The SOA signature authorization method adopted by the Office must also comply with the Federal Information Processing Standards (“FIPS”). FIPS are standards developed by the United States federal government for use in computer systems by all non-military government agencies and by government contractors.17 The levels of the digital authentication discussed above, which are known as cryptographic modules, are outlined in FIPS 140.2. Based on the Office's understanding of virtual tokens and out of band methods, the Office tentatively concludes that these Level 3 authentication methods conform to FIPS.

Access to eLi will be predicated on security-based user roles that allow each cable operator to control who has the authority to prepare various elements of the SOA. Cable operators have advised the Office that under the filing system currently in place, often the person who signs/certifies the paper SOA is not the same person or persons charged with doing other preliminary tasks related to the preparation of the SOA and the issuance of the required royalty payment. Under either of the proposed Level 3 electronic identity authentication systems, each person needing access to the document during the preparation phase would be able to gain access to the body of the SOA document, while the system would only give electronic access to the certification page of the SOA to the person of authority who was pre-designated by the cable operator to be the signer. Regardless which authentication method is ultimately chosen, “approval” of an SOA will mean the simultaneous certification and signing of the document by the appropriate official.

The Office envisions that the digital authentication and signing process would work with either a virtual token or an out of band system. In closely evaluating the two systems, we concluded that the out of band option would be the more practical one, and propose adopting that option. Under either Level 3 option, the person(s) responsible for preparing an SOA on behalf of a cable system would be able to log onto eLi using a previously established user name and password, and the system would authenticate each one as a “preparer.” The same procedure would be followed by any reviewer of the “draft” SOA, such as a company officer or attorney.

After the preparers and reviewers have produced a completed version of the body of the SOA in eLi, the person charged with signing and certifying the document on behalf of the cable system would follow a different procedure to electronically approve and sign the document. The signer could be a person who prepared the document or could be someone else with statutory authority to sign it. Like others with access to the SOA, he or she would log onto eLi using a previously established user name and password, and the system would “identify” him or her as the signer authorized to complete the certification process. ELi would then send the signer a code that provides access for a virtual token or out of band authentication of the signer's identity.18 Once the signer has successfully completed the authentication process, he or she would then follow a procedure to obtain, electronically approve, and electronically sign the final version of the SOA.

The Copyright Office anticipates that the system will display a “notice of consent to electronic records,” and the signer would have to “accept” the terms of the notice of consent. Once accepted, the system would display the SOA for approval. The signer would have the opportunity to review the SOA, enter an “S-signature” 19 and his title, and then complete the transaction by entering a “key” to indicate that the SOA is being electronically signed.

ELi is being designed to save the details about the electronic signature process for each SOA filed. It will use the electronic “key” to generate hash from the contents of the electronically filed SOA. The hash of the SOA will help ensure that the approved SOA is not changed after approval. The electronically-signed document will identify the signer of the document, the date the document was signed, and the information provided at the time of submission.

To effectuate the process for electronic identity authentication as a part of eLi, the Office proposes new regulations governing the electronic signing and certification process. Currently, Section 201.17(e)(14) provides that each Statement of Account filed under Section 111 shall contain the handwritten signature of the owner of the cable system or a duly authorized agent of the owner, if the owner is not a partnership or a corporation; or a partner, if the owner is a partnership; or an officer of the corporation, if the owner is a corporation. The signature must be accompanied by (1) the printed or typewritten name of the person signing the SOA; (2) the date of signature; (3) if the owner of the cable system is a partnership or a corporation, the title or official position held in the partnership or corporation by the person signing the SOA; (4) certification of the capacity of the person signing; and (5) a declaration of the veracity of the statements of fact contained in the SOA and the good faith of the person signing in making such statement of fact.

Under eLi, an electronic signature will be substituted for the handwritten signature, and the other requirements will remain in place for filing a SOA. ELi will include a two step authentication procedure to identify the person completing the certification process. As explained above, the person with authority to certify the accuracy of the information in and sign the SOA will access the certification Section of the SOA using the two step authentication process, approve the form, provide his or her title or official position in the organization, and sign the form using an electronic “S-signature.” This process will also apply to the filing of SOA amendments.

The proposed Section will be placed at the end of Section 201.17(e) as a new Section (e)(15), because the electronic signatures on an electronically filed SOA will be considered part of the contents of the SOA. Proposed Section 201.17(e)(15) sets forth the purpose and scope of the new authentication and signature protocol. The regulation addresses the criteria under which the Office will consider electronic records and electronic signatures to be trustworthy, reliable, and generally equivalent to handwritten signatures executed on paper. The regulation applies to SOA records and related documents 20 in electronic form that are created, modified, maintained, archived, retrieved, or transmitted, under any records requirements set forth in Section 201.17. Where electronic signatures meet the other requirements of Sections 201.17(d) and (e), the Office will consider the electronic signatures to be equivalent to full handwritten signatures, initials, and other general signings required by Copyright Office regulations. Electronic records that meet the requirements of this regulation may be used in lieu of paper records unless paper records are specifically required.

Proposed Section 201.17(e)(15)(i) would codify terms and definitions pertinent to electronic document authentication and electronic signatures on SOAs. The Office has created six new definitions:

(A) “Authentication” is a cryptographic or other secure electronic technique that allows the Copyright Office to authenticate the identity of an individual who signs and certifies a Statement of Account or related documents and to determine that the Statement or related documents were not altered, changed, or modified during their transmission to the Copyright Office.

An “electronic signature” is a signature based upon cryptographic methods of originator authentication, computed by using a set of rules and a set of parameters such that the identity of the signer and the integrity of the data can be verified.

A “handwritten signature” is the scripted name or legal mark of an individual handwritten by that individual on a document or other writing and executed or adopted with the present intention to authenticate the signed document or other writing.

A “password,” is confidential authentication information composed of a string of characters.

The term “token” refers to an item necessary for user identification when used for the authentication of a signature.

Proposed Section 201.17(e)(15)(iv) sets forth the functional requirements for tying the signer with the electronically filed SOAs. The Office proposes that electronically signed electronic records shall contain information that clearly indicates the following: (1) The printed name of the signer; (2) the date and time the signature was executed; and (3) the title of the signee.

The proposed regulation also specifies that each electronic signature is unique to one individual and shall not be reused by, or reassigned to, anyone else within the cable system.

Proposed Section 201.17(e)(15)(v) establishes authentication components and controls for a Level 3 authentication protocol. Level 3 authentication requires at least a two factor authentication process and is based on proof of possession of a cryptographic key. Typically, a key may be used only during a limited time period, i.e., up to 30 minutes. Each SOA must contain the signature of the appropriate certifying official. In some instances, one person will be responsible for signing multiple cable SOAs. The proposed system will allow a signing official to use a single electronic signature that automatically applies multiple signature time stamps to a batch of SOAs submitted by the multiple system operator (“MSO”) during a single session, as explained below. In this way, a series of SOA submissions and electronic signings are made with one “signing” executed and initiated by the individual during one continuous period of controlled system access while the key remains valid. If the key's validity expires before all of the multiple SOAs are electronically signed with time stamps, a new key may be requested to complete the certification and signing process. Section (e)(15)(iii) provides that if the signing individual executes one or more electronic signings that are not performed during a single, continuous period of controlled system access, the signer must reinitiate the authentication process to proceed with the signing.

Proposed Section 201.17(e)(15)(vi) addresses the submission of multiple SOAs by the same cable operator in one group or “batch” filing. The Office proposes that eLi be configured to enable a cable operator to choose to file multiple SOAs with a single “submit” key. The single electronic signature by the appropriate individual would be automatically applied to all SOAs in the batch with a separate recognizable electronic signature stamp and time stamp for each individual SOA comprising the batch. The proposed rule specifically states that batch or bulk filings of electronically filed Statements of Account would be permitted so long as the cable operator complies with paragraphs (3) and (4) of the regulation.

The shift from a paper filing system to an electronic filing system necessitates an examination of existing rules to see what needs to be changed to facilitate the transition. The Office has identified the following regulations as being in need of updating. There may be other rules that may be affected by the switch to electronic filing, but it is difficult to predict all conceivable changes at this time.

Section 201.17(c)(2) establishes rules regarding accounting periods and the depositing of royalties under the cable statutory license. This rule needs to be updated to reflect the advent of electronic filing. The rule contains a reference SOAs being “physically received,” which implies that a hard copy version of SOAs must be submitted to the Office. An update is necessary to remove the term “physically” from the regulation, to reduce any confusion.

Section 201.17(d)(1) explains where the public may obtain a physical copy of the Statement of Account form. This reference has been in the Office's regulations since 1978, but is irrelevant in an e-filing environment. During the transition to all-electronic filing, the Office proposes to retain this portion of the regulation to accommodate any remitters who may need to use the current SOA forms rather than immediately file on the new online filing system. The SOA forms are currently available either at www.copyright.gov or by contacting the Licensing Division at: Library of Congress, U. S. Copyright Office, Licensing Division, 101 Independence Avenue SE., Washington, DC 20557-6400. The Office proposes amending the regulation to reflect this different procedure for obtaining hard copy SOA forms, and anticipates that such forms will ultimately be phased out.

Section 201.17(e)(14) sets forth the handwritten signature requirements for cable systems filing hard copy Statements of Account. The Office understands, as explained above, that even after the transition to an e-filing system, there will for some time remain certain instances in which cable operators will need to file physical versions of the SOA forms. For example, paper filings may still be necessary where cable operators must back-file SOAs for accounting periods that ended before eLi becomes operational (i.e., covering an accounting period such as January 1-June 30, 2011). The Office anticipates that there will be very few instances in which this mode of filing will still be warranted. Nevertheless, the Office proposes to maintain the current handwritten signature requirements, but modify Section 201.17(e)(14) to include a reference to the new electronic signature requirements.

Current Section 201.17(l) requires cable operators to file an original and one copy of a Statement of Account with the Licensing Division. The Office proposes to retain this requirement to address those limited instances where paper filings are still necessary. However, the Office plans to amend this rule to clarify that when a licensee files a SOA via eLi, only one electronic form need be filed with the Licensing Division because digital copies can easily be made if the situation so warrants. This will reduce unnecessary filings and work burdens.

Current Section 217.17(m) outlines the procedures to be followed by a cable operator who seeks to correct a SOA, submit a supplemental royalty fee payment for deposit, or request a refund of royalty fees already paid. Section 217.17(m)(3)(iii)(B) outlines the procedure to be followed where the operator's calculation of the royalty fee payable for a particular accounting period was incorrect, and the amount deposited in the Copyright Office for that period was either too high or too low. The regulation requires the cable operator to submit an affidavit or statement that indicates that the corrected information is signed and certified as made in good faith under penalty of perjury. The affidavit or statement must describe the reasons why the royalty fee was improperly calculated and include a detailed analysis of the proper royalty calculations. The Licensing Division has accepted under this provision amended SOAs that have been signed and certified by the appropriate party in Space O of the statement, because the certification language in Space O is the equivalent of a sworn affidavit or statement in accordance with Section 1746 of title 28 of the United States Code.

The Office posits that it would be appropriate to retain this provision for requests to correct the royalty calculations made in SOAs that were not filed and signed electronically, so long as such statements are still accepted by the Office. However, the Office proposes to amend the regulation to codify the Division's current practice of accepting the filing of a signed and certified amended SOA in lieu of the sworn affidavit or statement required by the regulation, so long as the amended statement (with any pertinent attachments), describes the reasons why the royalty fee was improperly calculated and includes a detailed analysis of the proper royalty calculations.

The Office has also determined that for SOAs that were originally filed and signed under the eLi system, the electronic signature verification process will satisfy the signature and certification requirements set out in the current Section 201.17(m)(3)(iii). As with paper submissions, the Office would require that electronic amended Statements of Account include, either on the amended statement itself or in an attached document, an explanation of why the royalty fee was improperly calculated and a detailed analysis of the proper royalty calculations.

The Office hereby seeks comment from the public on issues raised in this Notice related to the authentication of electronically filed Statements of Accounts, the establishment of proposed rules for electronic signatures, and the concomitant rule changes necessary to implement the new proposed regulations. If an interested party identifies any additional pertinent issues related to the authentication of electronic signatures on SOA forms that have been filed on eLi, the Office encourages the party to bring those matters to its attention.

For the reasons set forth in the preamble, the Copyright Office proposes to amend part 201 of title 37 of the Code of Federal Regulations as follows:

The revisions and addition read as follows:

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

When submitting comments, remember to:

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

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

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

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

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

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

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

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

On April 16, 2012, the Ohio Environmental Protection Agency (OEPA) submitted a request to EPA to redesignate the Ohio portion of the Wheeling, West Virginia-Ohio nonattainment area (Belmont County, Ohio) to attainment for the 1997 annual PM2.5 NAAQS, and for EPA approval of Ohio's state implementation plan (SIP) revision containing an emissions inventory and a maintenance plan for the area.

On December 2, 2011, EPA published a notice of final rulemaking determining that the air quality in the Wheeling area has met the 1997 annual PM2.5 standard (76 FR 75464). On November 30, 2012, EPA published a proposed rulemaking determining further that the Ohio portion of the area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA (77 FR 71371). In that rulemaking EPA proposed several related actions. First, EPA proposed to approve the request from OEPA to change the legal designation of the Ohio portion of the Wheeling area from nonattainment to attainment for the 1997 annual PM2.5 NAAQS. EPA also proposed to approve Ohio's PM2.5 maintenance plan for the Ohio portion of the Wheeling area as a revision to the Ohio SIP because the plan meets the requirements of section 175A of the CAA. In addition, EPA proposed to approve 2006 emissions inventories for primary PM2.5, NOX, and SO2, documented in Ohio's April 16, 2012, PM2.5 redesignation request submittal as satisfying the requirement in section 172(c)(3) of the CAA for a comprehensive, current emission inventory. Finally, EPA proposed a finding of insignificance of motor vehicle emissions for the Ohio portion of the Wheeling area (such that no motor vehicle emission budgets for emissions of directly emitted PM2.5 and NOX are necessary). EPA did not receive adverse comments on the proposed rulemaking.

Today, EPA is issuing a supplement to its November 30, 2012, proposed rulemaking. This supplemental proposal addresses two separate issues which affect the proposed redesignation and which have arisen since the issuance of the proposal: A recent decision of the D.C. Circuit, and Ohio's supplemental submission of comprehensive ammonia and VOC emissions inventories.

On January 4, 2013, in Natural Resources Defense Council v. EPA, the D.C. Circuit remanded to EPA the “Final Clean Air Fine Particle Implementation Rule” (72 FR 20586, April 25, 2007) and the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” final rule (73 FR 28321, May 16, 2008). 706 F.3d 428 (D.C. Cir. 2013). In a supplemental submission to EPA on April 30, 2013, Ohio submitted 2007/2008 ammonia and VOC emissions inventories to supplement the emissions inventories that had previously been submitted.

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

In this portion of EPA's supplemental proposal, EPA is soliciting comment on the limited issue of the effect of the Court's January 4, 2013, ruling on the proposed redesignation of the Ohio portion of the Wheeling area to attainment for the 1997 annual PM2.5 standard. As explained below, EPA is proposing to determine that the Court's January 4, 2013, decision does not prevent EPA from redesignating the Ohio portion of the Wheeling area to attainment, because even in light of the Court's decision, redesignation for this area is appropriate under the CAA and EPA's longstanding interpretations of the CAA's provisions regarding redesignation. First, EPA explains its longstanding interpretation that requirements that are imposed, or that become due, after a complete redesignation request is submitted for an area that is attaining the standard, are not applicable for purposes of evaluating a redesignation request. Second, EPA shows that, even if EPA applies the subpart 4 requirements to the Ohio portion of the Wheeling area redesignation request and disregards the provisions of its 1997 PM2.5 implementation rule recently remanded by the Court, the state's request for redesignation of this area still qualifies for approval. EPA's discussion takes into account the effect of the Court's ruling on the area's maintenance plan, which EPA views as approvable when subpart 4 requirements are considered.

With respect to the 1997 PM2.5 Implementation Rule, the Court's January 4, 2013, ruling rejected EPA's reasons for implementing the PM2.5 NAAQS solely in accordance with the provisions of subpart 1, and remanded that matter to EPA, so that it could address implementation of the 1997 PM2.5 NAAQS under subpart 4 of part D of the CAA, in addition to subpart 1. For the purposes of evaluating Ohio's redesignation request for the Ohio portion of the Wheeling area, to the extent that implementation under subpart 4 would impose additional requirements for areas designated nonattainment, EPA believes that those requirements are not “applicable” for the purposes of CAA section 107(d)(3)(E), and thus EPA is not required to consider subpart 4 requirements with respect to the Ohio portion of the Wheeling area redesignation. Under its longstanding interpretation of the CAA, EPA has interpreted section 107(d)(3)(E) to mean, as a threshold matter, that the part D provisions which are “applicable” and which must be approved in order for EPA to redesignate an area include only those which came due prior to a state's submittal of a complete redesignation request. See “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (Calcagni memorandum). See also “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or after November 15, 1992,” Memorandum from Michael Shapiro, Acting Assistant Administrator, Air and Radiation, September 17, 1993 (Shapiro memorandum); Final Redesignation of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 1995); Final Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-27, May 12, 2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking applying this interpretation and expressly rejecting Sierra Club's view that the meaning of “applicable” under the statute is “whatever should have been in the plan at the time of attainment rather than whatever actually was in the plan and already implemented or due at the time of attainment”).1 In this case, at the time that Ohio submitted its redesignation request, requirements under subpart 4 were not due, and indeed, were not yet known to apply.

EPA's view that, for purposes of evaluating the Ohio portion of the Wheeling area's redesignation, the subpart 4 requirements were not due at the time Ohio submitted the redesignation request is in keeping with the EPA's interpretation of subpart 2 requirements for subpart 1 ozone areas redesignated subsequent to the D.C. Circuit's decision in South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). In South Coast, the Court found that EPA was not permitted to implement the 1997 8-hour ozone standard solely under subpart 1, and held that EPA was required under the statute to implement the standard under the ozone-specific requirements of subpart 2 as well. Subsequent to the South Coast decision, in evaluating and acting upon redesignation requests for the 1997 8-hour ozone standard that were submitted to EPA for areas under subpart 1, EPA applied its longstanding interpretation of the CAA that “applicable requirements”, for purposes of evaluating a redesignation, are those that had been due at the time the redesignation request was submitted. See, e.g., Proposed Redesignation of Manitowoc County and Door County Nonattainment Areas (75 FR 22047, 22050, April 27, 2010). In those actions, EPA therefore did not consider subpart 2 requirements to be “applicable” for the purposes of evaluating whether the area should be redesignated under section 107(d)(3)(E).

EPA's interpretation derives from the provisions of CAA section 107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be redesignated, a state must meet “all requirements `applicable' to the area under section 110 and part D”. Section 107(d)(3)(E)(ii) provides that the EPA must have fully approved the “applicable” SIP for the area seeking redesignation. These two sections read together support EPA's interpretation of “applicable” as only those requirements that came due prior to submission of a complete redesignation request. First, holding states to an ongoing obligation to adopt new CAA requirements that arose after the state submitted its redesignation request, in order to be redesignated, would make it problematic or impossible for EPA to act on redesignation requests in accordance with the 18-month deadline Congress set for EPA action in section 107(d)(3)(D). If “applicable requirements” were interpreted to be a continuing flow of requirements with no reasonable limitation, states, after submitting a redesignation request, would be forced continuously to make additional SIP submissions that in turn would require EPA to undertake further notice-and-comment rulemaking actions to act on those submissions. This would create a regime of unceasing rulemaking that would delay action on the redesignation request beyond the 18-month timeframe provided by the Act for this purpose.

Second, a fundamental premise for redesignating a nonattainment area to attainment is that the area has attained the relevant NAAQS due to emission reductions from existing controls. Thus, an area for which a redesignation request has been submitted would have already attained the NAAQS as a result of satisfying statutory requirements that came due prior to the submission of the request. Absent a showing that unadopted and unimplemented requirements are necessary for future maintenance, it is reasonable to view the requirements applicable for purposes of evaluating the redesignation request as including only those SIP requirements that have already come due. These are the requirements that led to attainment of the NAAQS. To require, for redesignation approval, that a state also satisfy additional SIP requirements coming due after the state submits its complete redesignation request, and while EPA is reviewing it, would compel the state to do more than is necessary to attain the NAAQS, without a showing that the additional requirements are necessary for maintenance.

In the context of the Ohio portion of the Wheeling area's redesignation, the timing and nature of the Court's January 4, 2013, decision in NRDC v. EPA compound the consequences of imposing requirements that come due after the redesignation request is submitted. While Ohio submitted its redesignation request on April 16, 2012, and EPA proposed to approve it on November 30, 2012, the Court did not issue its decision remanding EPA's 1997 PM2.5 implementation rule concerning the applicability of the provisions of subpart 4 until January 4, 2013.

To require Ohio's fully-completed and long-pending redesignation request to comply now with requirements of subpart 4 would be to give retroactive effect to such requirements when the state had no notice that it was required to meet them. The DC Circuit recognized the inequity of this type of retroactive impact in Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002),2 where it upheld the District Court's ruling refusing to make retroactive EPA's determination that the St. Louis area did not meet its attainment deadline. In that case, petitioners urged the Court to make EPA's nonattainment determination effective as of the date that the statute required, rather than the later date on which EPA actually made the determination. The Court rejected this view, stating that applying it “would likely impose large costs on States, which would face fines and suits for not implementing air pollution prevention plans . . . even though they were not on notice at the time.” Id. at 68. Similarly, it would be unreasonable to penalize Ohio by rejecting its redesignation request for an area that is already attaining the 1997 PM2.5 standard and that met all applicable requirements known to be in effect at the time of the request. For EPA now to reject the redesignation request solely because the state did not expressly address subpart 4 requirements of which it had no notice, would inflict the same unfairness condemned by the Court in Sierra Club v. Whitman.

Even if EPA were to take the view that the Court's January 4, 2013, decision requires that, in the context of pending redesignations, subpart 4 requirements were due and in effect at the time the state submitted its redesignation request, EPA proposes to determine that the Ohio portion of the Wheeling area still qualifies for redesignation to attainment. As explained below, EPA believes that the redesignation request for the Ohio portion of the Wheeling area, though not expressed in terms of subpart 4 requirements, substantively meets the requirements of that subpart for purposes of redesignating the area to attainment.

With respect to evaluating the relevant substantive requirements of subpart 4 for purposes of redesignating the Ohio portion of the Wheeling area, EPA notes that subpart 4 incorporates components of subpart 1 of part D, which contains general air quality planning requirements for areas designated as nonattainment. See Section 172(c). Subpart 4 itself contains specific planning and scheduling requirements for PM10 3 nonattainment areas, and under the Court's January 4, 2013, decision in NRDC v. EPA, these same statutory requirements also apply for PM2.5 nonattainment areas. EPA has longstanding general guidance that interprets the 1990 amendments to the CAA, making recommendations to states for meeting the statutory requirements for SIPs for nonattainment areas. See, “State Implementation Plans; General Preamble for the Implementation of Title I of the Clear Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992) (the “General Preamble”). In the General Preamble, EPA discussed the relationship of subpart 1 and subpart 4 SIP requirements, and pointed out that subpart 1 requirements were to an extent “subsumed by, or integrally related to, the more specific PM-10 requirements.” 57 FR 13538 (April 16, 1992). EPA's previously published proposal for this redesignation action addressed how the Wheeling area meets the requirements for redesignation under subpart 1. These subpart 1 requirements include, among other things, provisions for attainment demonstrations, reasonably available control measures (RACM), reasonable further progress (RFP), emissions inventories, and contingency measures.

For the purposes of this redesignation, in order to identify any additional requirements which would apply under subpart 4, we are considering the Ohio portion of the Wheeling area to be a “moderate” PM2.5 nonattainment area. Under section 188 of the CAA, all areas designated nonattainment areas under subpart 4 would initially be classified by operation of law as “moderate” nonattainment areas, and would remain moderate nonattainment areas unless and until EPA reclassifies the area as a “serious” nonattainment area.4 Accordingly, EPA believes that it is appropriate to limit the evaluation of the potential impact of subpart 4 requirements to those that would be applicable to moderate nonattainment areas. Sections 189(a) and (c) of subpart 4 apply to moderate nonattainment areas and include the following: (1) An approved permit program for construction of new and modified major stationary sources (section 189(a)(1)(A)); (2) an attainment demonstration (section 189(a)(1)(B)); (3) provisions for RACM (section 189(a)(1)(C)); and (4) quantitative milestones demonstrating RFP toward attainment by the applicable attainment date (section 189(c)).

The permit requirements of subpart 4, as contained in section 189(a)(1)(A), refer to and apply the subpart 1 permit provisions requirements of sections 172 and 173 to PM10, without adding to them. Consequently, EPA believes that section 189(a)(1)(A) does not itself impose for redesignation purposes any additional requirements for moderate areas beyond those contained in subpart 1.5 In any event, in the context of redesignation, EPA has long relied on the interpretation that a fully approved nonattainment new source review program is not considered an applicable requirement for redesignation, provided the area can maintain the standard with a prevention of significant deterioration (PSD) program after redesignation. A detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” See also rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).

With respect to the specific attainment planning requirements under subpart 4,6 when EPA evaluates a redesignation request under either subpart 1 and/or 4, any area that is attaining the PM2.5 standard is viewed as having satisfied the attainment planning requirements for these subparts. For redesignations, EPA has for many years interpreted attainment-linked requirements as not applicable for areas attaining the standard. In the General Preamble, EPA stated that:

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

When submitting comments, remember to:

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

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

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

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

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

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

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

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

On February 29, 2012, the Ohio Environmental Protection Agency (OEPA) submitted a request to EPA to redesignate the Ohio portion of the Parkersburg-Marietta, West Virginia-Ohio nonattainment area (Washington County, Ohio) to attainment for the 1997 annual PM2.5 NAAQS, and for EPA approval of Ohio's state implementation plan (SIP) revision containing an emissions inventory and a maintenance plan for the area.

On December 2, 2011, EPA published a notice of final rulemaking determining that air quality in the Parkersburg-Marietta area has met the 1997 annual PM2.5 standard (76 FR 75464). On November 30, 2012, EPA published a proposed rulemaking determining further that the Ohio portion of the area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA (77 FR 71383). In that rulemaking EPA proposed several related actions. First, EPA proposed to approve the request from OEPA to change the legal designation of the Ohio portion of the Parkersburg-Marietta area from nonattainment to attainment for the 1997 annual PM2.5 NAAQS. EPA also proposed to approve Ohio's PM2.5 maintenance plan for the Ohio portion of the Parkersburg-Marietta area as a revision to the Ohio SIP because the plan meets the requirements of section 175A of the CAA. In addition, EPA proposed to approve 2006 emissions inventories for primary PM2.5, NOX, and SO2, documented in Ohio's February 29, 2012, PM2.5 redesignation request submittal as satisfying the requirement in section 172(c)(3) of the CAA for a comprehensive, current emission inventory. Finally, EPA proposed a finding of insignificance of motor vehicle emissions for the Ohio portion of the Parkersburg-Marietta area (such that no motor vehicle emission budgets for emissions of directly emitted PM2.5 and NOX are necessary). EPA did not receive adverse comments on the proposed rulemaking.

Today, EPA is issuing a supplement to its November 30, 2012, proposed rulemaking. This supplemental proposal addresses two separate issues which affect the proposed redesignation and which have arisen since the issuance of the proposal: a recent decision of the D.C. Circuit, and the State of Ohio's supplemental submission of comprehensive ammonia and VOC emissions inventories.

On January 4, 2013, in Natural Resources Defense Council v. EPA, the D.C. Circuit remanded to EPA the “Final Clean Air Fine Particle Implementation Rule” (72 FR 20586, April 25, 2007) and the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM2.5)” final rule (73 FR 28321, May 16, 2008). 706 F.3d 428 (D.C. Cir. 2013). In a supplemental submission to EPA on April 30, 2013, Ohio submitted 2007/2008 ammonia and VOC emissions inventories to supplement the emissions inventories that had previously been submitted.

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

In this portion of EPA's supplemental proposal, EPA is soliciting comment on the limited issue of the effect of the Court's January 4, 2013, ruling on the proposed redesignation of the Ohio portion of the Parkersburg-Marietta area to attainment for the 1997 annual PM2.5 standard. As explained below, EPA is proposing to determine that the Court's January 4, 2013, decision does not prevent EPA from redesignating the Ohio portion of the Parkersburg-Marietta area to attainment, because even in light of the Court's decision, redesignation for this area is appropriate under the CAA and EPA's longstanding interpretations of the CAA's provisions regarding redesignation. First, EPA explains its longstanding interpretation that requirements that are imposed, or that become due, after a complete redesignation request is submitted for an area that is attaining the standard, are not applicable for purposes of evaluating a redesignation request. Second, EPA shows that, even if EPA applies the subpart 4 requirements to the Ohio portion of the Parkersburg-Marietta area redesignation request and disregards the provisions of its 1997 PM2.5 implementation rule recently remanded by the Court, the state's request for redesignation of this area still qualifies for approval. EPA's discussion takes into account the effect of the Court's ruling on the area's maintenance plan, which EPA views as approvable when subpart 4 requirements are considered.

With respect to the 1997 PM2.5 Implementation Rule, the Court's January 4, 2013, ruling rejected EPA's reasons for implementing the PM2.5 NAAQS solely in accordance with the provisions of subpart 1, and remanded that matter to EPA, so that it could address implementation of the 1997 PM2.5 NAAQS under subpart 4 of part D of the CAA, in addition to subpart 1. For the purposes of evaluating Ohio's redesignation request for the Ohio portion of the Parkersburg-Marietta area, to the extent that implementation under subpart 4 would impose additional requirements for areas designated nonattainment, EPA believes that those requirements are not “applicable” for the purposes of CAA section 107(d)(3)(E), and thus EPA is not required to consider subpart 4 requirements with respect to the Ohio portion of the Parkersburg-Marietta area redesignation. Under its longstanding interpretation of the CAA, EPA has interpreted section 107(d)(3)(E) to mean, as a threshold matter, that the part D provisions which are “applicable” and which must be approved in order for EPA to redesignate an area include only those which came due prior to a state's submittal of a complete redesignation request. See “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (Calcagni memorandum). See also “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or after November 15, 1992,” Memorandum from Michael Shapiro, Acting Assistant Administrator, Air and Radiation, September 17, 1993 (Shapiro memorandum); Final Redesignation of Detroit-Ann Arbor, (60 FR 12459, 12465-66, March 7, 1995); Final Redesignation of St. Louis, Missouri, (68 FR 25418, 25424-27, May 12, 2003); Sierra Club v. EPA, 375 F.3d 537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking applying this interpretation and expressly rejecting Sierra Club's view that the meaning of “applicable” under the statute is “whatever should have been in the plan at the time of attainment rather than whatever actually was in the plan and already implemented or due at the time of attainment”).1 In this case, at the time that Ohio submitted its redesignation request, requirements under subpart 4 were not due, and indeed, were not yet known to apply.

EPA's view that, for purposes of evaluating the Ohio portion of the Parkersburg-Marietta area's redesignation, the subpart 4 requirements were not due at the time Ohio submitted the redesignation request is in keeping with the EPA's interpretation of subpart 2 requirements for subpart 1 ozone areas redesignated subsequent to the D.C. Circuit's decision in South Coast Air Quality Mgmt. Dist. v. EPA, 472 F.3d 882 (D.C. Cir. 2006). In South Coast, the Court found that EPA was not permitted to implement the 1997 8-hour ozone standard solely under subpart 1, and held that EPA was required under the statute to implement the standard under the ozone-specific requirements of subpart 2 as well. Subsequent to the South Coast decision, in evaluating and acting upon redesignation requests for the 1997 8-hour ozone standard that were submitted to EPA for areas under subpart 1, EPA applied its longstanding interpretation of the CAA that “applicable requirements”, for purposes of evaluating a redesignation, are those that had been due at the time the redesignation request was submitted. See, e.g., Proposed Redesignation of Manitowoc County and Door County Nonattainment Areas (75 FR 22047, 22050, April 27, 2010). In those actions, EPA therefore did not consider subpart 2 requirements to be “applicable” for the purposes of evaluating whether the area should be redesignated under section 107(d)(3)(E).

EPA's interpretation derives from the provisions of CAA section 107(d)(3). Section 107(d)(3)(E)(v) states that, for an area to be redesignated, a state must meet “all requirements `applicable' to the area under section 110 and part D”. Section 107(d)(3)(E)(ii) provides that the EPA must have fully approved the “applicable” SIP for the area seeking redesignation. These two sections read together support EPA's interpretation of “applicable” as only those requirements that came due prior to submission of a complete redesignation request. First, holding states to an ongoing obligation to adopt new CAA requirements that arose after the state submitted its redesignation request, in order to be redesignated, would make it problematic or impossible for EPA to act on redesignation requests in accordance with the 18-month deadline Congress set for EPA action in section 107(d)(3)(D). If “applicable requirements” were interpreted to be a continuing flow of requirements with no reasonable limitation, states, after submitting a redesignation request, would be forced continuously to make additional SIP submissions that in turn would require EPA to undertake further notice-and-comment rulemaking actions to act on those submissions. This would create a regime of unceasing rulemaking that would delay action on the redesignation request beyond the 18-month timeframe provided by the Act for this purpose.

Second, a fundamental premise for redesignating a nonattainment area to attainment is that the area has attained the relevant NAAQS due to emission reductions from existing controls. Thus, an area for which a redesignation request has been submitted would have already attained the NAAQS as a result of satisfying statutory requirements that came due prior to the submission of the request. Absent a showing that unadopted and unimplemented requirements are necessary for future maintenance, it is reasonable to view the requirements applicable for purposes of evaluating the redesignation request as including only those SIP requirements that have already come due. These are the requirements that led to attainment of the NAAQS. To require, for redesignation approval, that a state also satisfy additional SIP requirements coming due after the state submits its complete redesignation request, and while EPA is reviewing it, would compel the state to do more than is necessary to attain the NAAQS, without a showing that the additional requirements are necessary for maintenance.

In the context of the Ohio portion of the Parkersburg-Marietta area's redesignation, the timing and nature of the Court's January 4, 2013, decision in NRDC v. EPA compound the consequences of imposing requirements that come due after the redesignation request is submitted. While Ohio submitted its redesignation request on February 29, 2012, and EPA proposed to approve it on November 30, 2012, the Court did not issue its decision remanding EPA's 1997 PM2.5 implementation rule concerning the applicability of the provisions of subpart 4 until January 4, 2013.

To require Ohio's fully-completed and long-pending redesignation request to comply now with requirements of subpart 4 would be to give retroactive effect to such requirements when the state had no notice that it was required to meet them. The D.C. Circuit recognized the inequity of this type of retroactive impact in Sierra Club v. Whitman, 285 F.3d 63 (D.C. Cir. 2002),2 where it upheld the District Court's ruling refusing to make retroactive EPA's determination that the St. Louis area did not meet its attainment deadline. In that case, petitioners urged the Court to make EPA's nonattainment determination effective as of the date that the statute required, rather than the later date on which EPA actually made the determination. The Court rejected this view, stating that applying it “would likely impose large costs on States, which would face fines and suits for not implementing air pollution prevention plans . . . even though they were not on notice at the time.” Id. at 68. Similarly, it would be unreasonable to penalize Ohio by rejecting its redesignation request for an area that is already attaining the 1997 PM2.5 standard and that met all applicable requirements known to be in effect at the time of the request. For EPA now to reject the redesignation request solely because the state did not expressly address subpart 4 requirements of which it had no notice, would inflict the same unfairness condemned by the Court in Sierra Club v. Whitman.

Even if EPA were to take the view that the Court's January 4, 2013, decision requires that, in the context of pending redesignations, subpart 4 requirements were due and in effect at the time the state submitted its redesignation request, EPA proposes to determine that the Ohio portion of the Parkersburg-Marietta area still qualifies for redesignation to attainment. As explained below, EPA believes that the redesignation request for the Ohio portion of the Parkersburg-Marietta area, though not expressed in terms of subpart 4 requirements, substantively meets the requirements of that subpart for purposes of redesignating the area to attainment.

With respect to evaluating the relevant substantive requirements of subpart 4 for purposes of redesignating the Ohio portion of the Parkersburg-Marietta area, EPA notes that subpart 4 incorporates components of subpart 1 of part D, which contains general air quality planning requirements for areas designated as nonattainment. See Section 172(c). Subpart 4 itself contains specific planning and scheduling requirements for PM10 3 nonattainment areas, and under the Court's January 4, 2013, decision in NRDC v. EPA, these same statutory requirements also apply for PM2.5 nonattainment areas. EPA has longstanding general guidance that interprets the 1990 amendments to the CAA, making recommendations to states for meeting the statutory requirements for SIPs for nonattainment areas. See, “State Implementation Plans; General Preamble for the Implementation of Title I of the Clear Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992) (the “General Preamble”). In the General Preamble, EPA discussed the relationship of subpart 1 and subpart 4 SIP requirements, and pointed out that subpart 1 requirements were to an extent “subsumed by, or integrally related to, the more specific PM-10 requirements.” 57 FR 13538 (April 16, 1992). EPA's previously published proposal for this redesignation action addressed how the Parkersburg-Marietta area meets the requirements for redesignation under subpart 1. These subpart 1 requirements include, among other things, provisions for attainment demonstrations, reasonably available control measures (RACM), reasonable further progress (RFP), emissions inventories, and contingency measures.

For the purposes of this redesignation, in order to identify any additional requirements which would apply under subpart 4, we are considering the Ohio portion of the Parkersburg-Marietta area to be a “moderate” PM2.5 nonattainment area. Under section 188 of the CAA, all areas designated nonattainment areas under subpart 4 would initially be classified by operation of law as “moderate” nonattainment areas, and would remain moderate nonattainment areas unless and until EPA reclassifies the area as a “serious” nonattainment area.4 Accordingly, EPA believes that it is appropriate to limit the evaluation of the potential impact of subpart 4 requirements to those that would be applicable to moderate nonattainment areas. Sections 189(a) and (c) of subpart 4 apply to moderate nonattainment areas and include the following: (1) An approved permit program for construction of new and modified major stationary sources (section 189(a)(1)(A)); (2) an attainment demonstration (section 189(a)(1)(B)); (3) provisions for RACM (section 189(a)(1)(C)); and (4) quantitative milestones demonstrating RFP toward attainment by the applicable attainment date (section 189(c)).

The permit requirements of subpart 4, as contained in section 189(a)(1)(A), refer to and apply the subpart 1 permit provisions requirements of sections 172 and 173 to PM10, without adding to them. Consequently, EPA believes that section 189(a)(1)(A) does not itself impose for redesignation purposes any additional requirements for moderate areas beyond those contained in subpart 1.5 In any event, in the context of redesignation, EPA has long relied on the interpretation that a fully approved nonattainment new source review program is not considered an applicable requirement for redesignation, provided the area can maintain the standard with a prevention of significant deterioration (PSD) program after redesignation. A detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” See also rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).

With respect to the specific attainment planning requirements under subpart 4,6 when EPA evaluates a redesignation request under either subpart 1 and/or 4, any area that is attaining the PM2.5 standard is viewed as having satisfied the attainment planning requirements for these subparts. For redesignations, EPA has for many years interpreted attainment-linked requirements as not applicable for areas attaining the standard. In the General Preamble, EPA stated that:

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

The General Preamble also explained that

Id.

EPA similarly stated in its 1992 Calcagni memorandum that, “The requirements for reasonable further progress and other measures needed for attainment will not apply for redesignations because they only have meaning for areas not attaining the standard.”

It is evident that even if we were to consider the Court's January 4, 2013, decision in NRDC v. EPA to mean that attainment-related requirements specific to subpart 4 should be imposed retroactively 7 and thus are now past due, those requirements do not apply to an area that is attaining the 1997 PM2.5 standard, for the purpose of evaluating a pending request to redesignate the area to attainment. EPA has consistently enunciated this interpretation of applicable requirements under section 107(d)(3)(E) since the General Preamble was published more than twenty years ago. Courts have recognized the scope of EPA's authority to interpret “applicable requirements” in the redesignation context. See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004).

Moreover, even outside the context of redesignations, EPA has viewed the obligations to submit attainment-related SIP planning requirements of subpart 4 as inapplicable for areas that EPA determines are attaining the standard. EPA's prior “Clean Data Policy” rulemakings for the PM10 NAAQS, also governed by the requirements of subpart 4, explain EPA's reasoning. They describe the effects of a determination of attainment on the attainment-related SIP planning requirements of subpart 4. See “Determination of Attainment for Coso Junction Nonattainment Area,” (75 FR 27944, May 19, 2010). See also Coso Junction proposed PM10 redesignation, (75 FR 36023, 36027, June 24, 2010); Proposed and Final Determinations of Attainment for San Joaquin Nonattainment Area (71 FR 40952, 40954-55, July 19, 2006; and 71 FR 63641, 63643-47 October 30, 2006). In short, EPA in this context has also long concluded that to require states to meet superfluous SIP planning requirements is not necessary and not required by the CAA, so long as those areas continue to attain the relevant NAAQS.

In its November 30, 2012, proposal for this action, EPA proposed to determine that the Ohio portion of the Parkersburg-Marietta area has attained the 1997 PM2.5 standard and therefore meets the attainment-related plan requirements of subpart 1. Under its longstanding interpretation, EPA is proposing to determine here that the area also meets the attainment-related plan requirements of subpart 4.

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

The D.C. Circuit, in NRDC v. EPA, remanded to EPA the two rules at issue in the case with instructions to EPA to re-promulgate them consistent with the requirements of subpart 4. The Court's opinion raises the issue of the appropriate approach to addressing PM2.5 precursors in this and future EPA actions. While past implementation of subpart 4 for PM10 has allowed for control of PM10 precursors such as NOX from major stationary, mobile, and area sources in order to attain the standard as expeditiously as practicable, CAA section 189(e) specifically provides that control requirements for major stationary sources of direct PM10 shall also apply to PM10 precursors from those sources, except where EPA determines that major stationary sources of such precursors “do not contribute significantly to PM10 levels which exceed the standard in the area.”

EPA's 1997 PM2.5 implementation rule, remanded by the DC Circuit, contained rebuttable presumptions concerning certain PM2.5 precursors applicable to attainment plans and control measures related to those plans. Specifically, in 40 CFR 51.1002, EPA provided, among other things, that a state was “not required to address VOC [and ammonia] as . . . PM2.5 attainment plan precursor[s] and to evaluate sources of VOC [and ammonia] emissions in the State for control measures.” EPA intended these to be rebuttable presumptions. EPA established these presumptions at the time because of uncertainties regarding the emission inventories for these pollutants and the effectiveness of specific control measures in various regions of the country in reducing PM2.5 concentrations. EPA also left open the possibility for such regulation of VOC and ammonia in specific areas where that was necessary.

The Court in its January 4, 2013, decision made reference to both section 189(e) and 40 CFR 51. 1002, and stated that, “In light of our disposition, we need not address the petitioners' challenge to the presumptions in [40 CFR 51.1002] that volatile organic compounds and ammonia are not PM2.5 precursors, as subpart 4 expressly governs precursor presumptions.” NRDC v. EPA, at 27, n.10.

Elsewhere in the Court's opinion, however, the Court observed:

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

However, even if EPA takes the view that the requirements of subpart 4 were deemed applicable at the time the state submitted the redesignation request, and disregards the implementation rule's rebuttable presumptions regarding ammonia and VOC as PM2.5 precursors, the regulatory consequence would be to consider the need for regulation of all precursors from any sources in the area to demonstrate attainment and to apply the section 189(e) provisions to major stationary sources of precursors. In the case of the Ohio portion of the Parkersburg-Marietta area, EPA believes that doing so would not affect the approvability of the proposed redesignation of the area for the 1997 PM2.5 standard. The entire Parkersburg-Marietta area has attained the standard without any specific additional controls of VOC and ammonia emissions from any sources in the area.

Precursors in subpart 4 are specifically regulated under the provisions of section 189(e), which requires, with important exceptions, control requirements for major stationary sources of PM10 precursors.8 Under subpart 1 and EPA's prior implementation rule, all major stationary sources of PM2.5 precursors were subject to regulation, with the exception of ammonia and VOC. Thus we must address here whether additional controls of ammonia and VOC from major stationary sources are required under section 189(e) of subpart 4 in order to redesignate the Ohio portion of the Parkersburg-Marietta area for the 1997 PM2.5 standard. As explained below, we do not believe that any additional controls of ammonia and VOC are required in the context of this redesignation.

In the General Preamble, EPA discusses its approach to implementing section 189(e). See 57 FR 13538-13542. With regard to precursor regulation under section 189(e), the General Preamble explicitly stated that control of VOCs under other Act requirements may suffice to relieve a state from the need to adopt precursor controls under section 189(e). 57 FR 13542. EPA in this supplemental proposal proposes to determine that the Ohio SIP has met the provisions of section 189(e) with respect to ammonia and VOCs as precursors. This proposed supplemental determination is based on our findings that (1) the Ohio portion of the Parkersburg-Marietta area contains no major stationary sources of ammonia, and (2) existing major stationary sources of VOC are adequately controlled under other provisions of the CAA regulating the ozone NAAQS.9 In the alternative, EPA proposes to determine that, under the express exception provisions of section 189(e), and in the context of the redesignation of the Ohio portion of the Parkersburg-Marietta area, which is attaining the 1997 annual PM2.5 standard, at present ammonia and VOC precursors from major stationary sources do not contribute significantly to levels exceeding the 1997 PM2.5 standard in the area. See 57 FR 13539-13542.

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

Although, as EPA has emphasized, its consideration here of precursor requirements under subpart 4 is in the context of a redesignation to attainment, EPA's existing interpretation of subpart 4 requirements with respect to precursors in attainment plans for PM10 contemplates that states may develop attainment plans that regulate only those precursors that are necessary for purposes of attainment in the area in question, i.e., states may determine that only certain precursors need be regulated for attainment and control purposes.10 Courts have upheld this approach to the requirements of subpart 4 for PM10.11 EPA believes that application of this approach to PM2.5 precursors under subpart 4 is reasonable. Because the Parkersburg-Marietta area has already attained the 1997 PM2.5 NAAQS with its current approach to regulation of PM2.5 precursors, EPA believes that it is reasonable to conclude in the context of this redesignation that there is no need to revisit the attainment control strategy with respect to the treatment of precursors. Even if the Court's decision is construed to impose an obligation, in evaluating this redesignation request, to consider additional precursors under subpart 4, it would not affect EPA's approval here of Ohio's request for redesignation of the Ohio portion of the Parkersburg-Marietta area. In the context of a redesignation, the area has shown that it has attained the standard. Moreover, the state has shown and EPA has proposed to determine that attainment in this area is due to permanent and enforceable emissions reductions on all precursors necessary to provide for continued attainment. It follows logically that no further control of additional precursors is necessary. Accordingly, EPA does not view the January 4, 2013, decision of the Court as precluding redesignation of the Ohio portion of the Parkersburg-Marietta area to attainment for the 1997 PM2.5 NAAQS at this time.

In sum, even if Ohio were required to address precursors for the Ohio portion of the Parkersburg-Marietta area under subpart 4 rather than under subpart 1, as interpreted in EPA's remanded PM2.5 implementation rule, EPA would still conclude that the area had met all applicable requirements for purposes of redesignation in accordance with section 107(d)(3(E)(ii) and (v).

With regard to the redesignation of the Ohio portion of the Parkersburg-Marietta area, in evaluating the effect of the Court's remand of EPA's implementation rule, which included presumptions against consideration of VOC and ammonia as PM2.5 precursors, EPA in this supplemental proposal is also considering the impact of the decision on the maintenance plan required under sections 175A and 107(d)(3)(E)(iv). To begin with, EPA notes that the area has attained the 1997 PM2.5 standard and that the state has shown that attainment of that standard is due to permanent and enforceable emission reductions.

In its prior proposal notice for this action, EPA proposed to determine that the state's maintenance plan shows continued maintenance of the standard by tracking the levels of the precursors whose control brought about attainment of the 1997 PM2.5 standard in the Ohio portion of the Parkersburg-Marietta area. EPA therefore believes that the only additional consideration related to the maintenance plan requirements that results from the Court's January 4, 2013, decision is that of assessing the potential role of VOC and ammonia in demonstrating continued maintenance in this area. As explained below, based upon documentation provided by the state and supporting information, EPA believes that the maintenance plan for the Ohio portion of the Parkersburg-Marietta area need not include any additional emission reductions of VOC or ammonia in order to provide for continued maintenance of the standard.

First, as noted above in EPA's discussion of section 189(e), VOC emission levels in this area have historically been well controlled under SIP requirements related to ozone and other pollutants. Second, total ammonia emissions throughout the Ohio portion of the Parkersburg-Marietta area are very low, estimated to be less than 1,300 tons per year. See Table 4 below. This amount of ammonia emissions is especially small in comparison to the total amounts of SO2, NOX, and even direct PM2.5 emissions from sources in the area. Third, as described below, available information shows that VOC is expected to decrease over the maintenance period so as not to interfere with or undermine the state's maintenance demonstration.

Ohio's maintenance plan shows that emissions of direct PM2.5, SO2, and NOX are projected to decrease by 22.34 tons per year (tpy), 101,435.07 tpy, and 15,948.43 tpy, respectively, over the maintenance period. See Tables 1-3 below. In addition, emissions inventories used in the regulatory impact analysis (RIA) for the 2012 PM2.5 NAAQS show that VOC emissions are projected to decrease by 968.82 tpy, and that ammonia emissions will increase by 87.45 tpy, between 2007 and 2020. See Table 4 below. While the RIA emissions inventories are only projected out to 2020, there is no reason to believe that the downward trend of VOC emissions would not continue through 2022. While ammonia emissions are projected to increase, given that the Parkersburg-Marietta area is already attaining the 1997 PM2.5 NAAQS even with the current level of emissions from sources in the area, the downward trend of emissions from VOC inventories would be consistent with continued attainment and even a small increase in ammonia emissions would not cause a violation of the NAAQS. Indeed, projected emissions reductions for the precursors that the state is addressing for purposes of the 1997 PM2.5 NAAQS indicate that the area should continue to attain the NAAQS following the precursor control strategy that the state has already elected to pursue. Even if VOC emissions were to increase unexpectedly, and ammonia emissions were to increase further between 2020 and 2022, the overall emissions reductions projected in direct PM2.5, SO2, and NOX would be sufficient to offset any increases. For these reasons, EPA believes that local emissions of all of the potential PM2.5 precursors will not increase to the extent that they will cause monitored PM2.5 levels to violate the 1997 PM2.5 standard during the maintenance period.

In addition, available air quality modeling analyses show continued maintenance of the standard during the maintenance period. The current air quality design value for the area is 12.3 micrograms per cubic meter (µg/m3) (based on 2009-11 air quality data), which is well below the 1997 annual PM2.5 NAAQS of 15 µg/m3. Moreover, the modeling analysis conducted for the RIA for the 2012 PM2.5 NAAQS indicates that the design value for this area is expected to significantly decline through 2020. In the RIA analysis, the 2020 modeled design value for the Parkersburg-Marietta area is 9.2 µg/m3. Given that all precursor emissions except ammonia are projected to decrease through 2022, it is reasonable to conclude that monitored PM2.5 levels in this area will also continue to decrease through 2022.

Thus, EPA believes that there is ample justification to conclude that the Ohio portion of the Parkersburg-Marietta area should be redesignated, even taking into consideration the emissions of other precursors potentially relevant to PM2.5. After consideration of the D.C. Circuit's January 4, 2013, decision, and for the reasons set forth in this supplemental notice, EPA continues to propose approval of Ohio's maintenance plan and its request to redesignate the Ohio portion of the Parkersburg-Marietta area to attainment for the 1997 PM2.5 annual standard.

In this supplemental proposal EPA also addresses the State of Ohio's supplemental submission that provides additional information concerning ammonia and VOC emissions in the Parkersburg-Marietta area in order to meet the emissions inventory requirement of CAA section 172(c)(3). Section 172(c)(3) of the CAA requires states to submit a comprehensive, accurate, and current emissions inventory for a nonattainment area. For purposes of the PM2.5 NAAQS, this emissions inventory should address not only direct emissions of PM2.5, but also emissions of all precursors with the potential to participate in PM2.5 formation, i.e., SO2, NOX, VOC and ammonia.

In the November 30, 2012, proposed rule, EPA proposed to approve the emissions inventory information for direct PM2.5, NOX, and SO2 submitted by OEPA as meeting the emissions inventory requirement for the Parkersburg-Marietta area. On April 30, 2013, OEPA supplemented its submittal with 2007/2008 emissions inventories for ammonia and VOC. The additional emissions inventory information provided by the state addresses emissions of VOC and ammonia from the general source categories of point sources, area sources, on-road mobile sources, and non-road mobile sources. The state-submitted emissions inventories were based upon information generated by the Lake Michigan Air Directors Consortium (LADCO) in conjunction with its member states and are presented in Table 5 below.

LADCO ran the EMS model using data provided by Ohio to generate point source emissions estimates. The point source data was obtained from Ohio's source facility emissions reporting.

For area sources, LADCO ran the EMS model using the 2008 National Emissions Inventory (NEI) data provided by Ohio. LADCO followed Eastern Regional Technical Advisory Committee (ERTAC) recommendations on area sources when preparing the data. Agricultural ammonia emissions were not taken from NEI; instead emissions were based on Carnegie Mellon University's Ammonia Emission Inventory for the Continental United States (CMU). Specifically, the CMU 2002 annual emissions were grown to reflect 2007 conditions. A process-based ammonia emissions model developed for LADCO was then used to develop temporal factors to reflect the impact of average meteorology on livestock emissions.

Non-road mobile source emissions were generated using the NMIM2008 emissions model. LADCO also accounted for three other non-road categories not covered by the NMIM model (commercial marine vessels, aircraft, and railroads). Marine emissions were based on reports prepared by Environ entitled “LADCO Nonroad Emissions Inventory Project for Locomotive, Commercial Marine, and Recreational Marine Emission Sources, Final Report, December 2004” and “LADCO 2005 Commercial Marine Emissions, Draft, March 2, 2007.” Aircraft emissions were provided by Ohio and calculated using AP-42 emission factors and landing and take-off data provided by the Federal Aviation Administration. Rail emissions were based on the 2008 inventory developed by ERTAC.

On-road mobile source emissions were generated using EPA's MOVES2010a emissions model.

EPA notes that the emissions inventory developed by LADCO is documented in “Regional Air Quality Analyses for Ozone, PM2.5, and Regional Haze: Base C Emissions Inventory” (September 12, 2011).

EPA has concluded that the 2007/2008 ammonia and VOC emissions inventories provided by Ohio are complete and as accurate as possible given the input data available for the relevant source categories. EPA also believes that these inventories provide information about VOC and ammonia as PM2.5 precursors in the context of evaluating redesignation of the Ohio portion of the Parkersburg-Marietta area under subpart 4. Therefore, we are proposing to approve the ammonia and VOC emissions inventories submitted by Ohio, in conjunction with the NOX, direct PM2.5, and SO2 emissions inventories that EPA previously proposed to approve, as fully meeting the comprehensive inventory requirement of section 172(c)(3) of the CAA for the Ohio portion of the Parkersburg-Marietta area for the 1997 annual PM2.5 standard. Since EPA's prior proposal addressed other precursor emissions inventories, EPA in this supplemental proposal is seeking comment only with respect to the additional inventories for VOC and ammonia that Ohio has submitted.

After fully considering the D.C. Circuit's decision in the NRDC v. EPA on EPA's 1997 PM2.5 Implementation rule, EPA in this supplemental notice is providing supplemental rationale for its action, published November 12, 2012, which proposed to redesignate the Ohio portion of the Parkersburg-Marietta area to attainment for the 1997 annual PM2.5 NAAQS, to approve the associated maintenance plan, and to approve the state's emission inventory. EPA is concluding that the D.C. Circuit decision regarding the applicability of the requirements of subpart 4 of part D of title I of the CAA does not change the applicable requirements for redesignation of the Parkersburg area to attainment of the 1997 PM2.5 NAAQS. In addition, in this supplemental notice, EPA is addressing an enhanced 2007/2008 inventory that now addresses ammonia and VOC emissions, in conjunction with the NOX, direct PM2.5 and SO2 inventories that EPA previously proposed to approve, thus providing additional basis for EPA's prior proposal that Ohio has met the comprehensive emissions inventory requirements of section 172(c)(3) of the CAA for this area. EPA is seeking comment only on the issues raised in its supplemental proposals, and is not re-opening comment on other issues addressed in its prior proposal.

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

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

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

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

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

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

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

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

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

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

In addition, this proposed rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because a determination of attainment is an action that affects the status of a geographical area and does not impose any new regulatory requirements on tribes, impact any existing sources of air pollution on tribal lands, nor impair the maintenance of ozone national ambient air quality standards in tribal lands.

This is a synopsis of the Wireline Competition Bureau's Public Notice in WC Docket No. 10-90; DA 13-1396, released June 17, 2013, as well as information posted online in the Wireline Competition Bureau's Virtual Workshop. The complete text of the Public Notice is available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. These documents may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via the Internet at http://www.bcpiweb.com. In addition, the Virtual Workshop may be accessed via the Internet at http://www.fcc.gov/blog/wcb-cost-model-virtual-workshop-2012.

1. On Tuesday, October 9, 2012, the Wireline Competition Bureau (Bureau) announced the commencement of a virtual workshop to solicit input and facilitate discussion on topics related to the development and adoption of the forward-looking cost model for Connect America Phase II. To date, the Bureau has sought comment on 26 different topics in the virtual workshop.

2. The Bureau adds two new virtual workshop discussion topics, entitled “Community Anchor Institutions” and “Business Locations.” Responses should be submitted in the virtual workshop no later than July 15, 2013. Parties can participate in the virtual workshop by visiting the Connect America Fund Web page, http://www.fcc.gov/encyclopedia/connecting-america, and following the link to the virtual workshop.

3. Comments from the virtual workshop will be included in the official public record of this proceeding. The Bureau will not rely on anonymous comments posted during the workshop in reaching decisions regarding the model. Participants should be aware that identifying information from parties that post material in the virtual workshop will be publicly available for inspection upon request, even though such information may not be posted in the workshop forums.

4. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Bureau prepared an Initial Regulatory Flexibility Analysis (IRFA), included as part of the Model Design PN, 77 FR 38804, June 29, 2012, of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in these Public Notices and the information posted online in the Virtual Workshops. We have reviewed the IRFA and have determined that is does not need to be supplemented.

5. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

6. Comments and Replies. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415 and 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121, May 1, 1998.

Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th Street SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington DC 20554.

7. Virtual Workshop. In addition to the usual methods for filing electronic comments, the Commission is allowing comments in this proceeding to be filed by posting comments at http://www.fcc.gov/blog/wcb-cost-model-virtual-workshop-2012. Persons wishing to examine the record in this proceeding are encouraged to examine the record on ECFS and the Virtual Workshop. Although Virtual Workshop commenters may choose to provide identifying information or may comment anonymously, anonymous comments will not be part of the record in this proceeding and accordingly will not be relied on by the Commission in reaching its conclusions in this rulemaking. The Commission will not rely on anonymous postings in reaching conclusions in this matter because of the difficulty in verifying the accuracy of information in anonymous postings. Should posters provide identifying information, they should be aware that although such information will not be posted on the blog, it will be publicly available for inspection upon request.

8. People with Disabilities. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

9. Availability of Documents. Comments, reply comments, and ex parte submissions will be publicly available online via ECFS. These documents will also be available for public inspection during regular business hours in the FCC Reference Information Center, which is located in Room CY-A257 at FCC Headquarters, 445 12th Street SW., Washington, DC 20554. The Reference Information Center is open to the public Monday through Thursday from 8:00 a.m. to 4:30 p.m. and Friday from 8:00 a.m. to 11:30 a.m.

This document requests comment on the agency's plan to upgrade the U.S. New Car Assessment Program (NCAP) to include recommendations to motor vehicle consumers on vehicle models that contain rearview video systems that can substantially enhance the driver's ability to avoid a backover crash. The plan substitutes the rearview video systems for electronic stability control (ESC) as a recommended crash avoidance technology on www.safercar.gov. As ESC is now required equipment on vehicles with a gross vehicle weight rating (GVWR) of 10,000 pounds or less, the agency believes that it is no longer necessary to include ESC as a recommended technology to consumers. NCAP provides comparative information on the safety performance and features of new vehicles to assist consumers with their vehicle purchasing decisions. The program was most recently upgraded for model year 2011 to include (among other changes) recommended crash avoidance technologies. By including rearview video systems as a recommended technology in NCAP, the agency believes that it can help educate consumers on the important safety benefits of these systems and support the provision of this important safety technology to the American public before the effective date (for all vehicles 1 ) of any final rule resulting from the agency's current rulemaking to amend the requirements of Federal motor vehicle safety standard (FMVSS) No. 111.2

Pursuant to the Cameron Gulbransen Kids Transportation Safety Act of 2007 (“K.T. Safety Act”),3 the agency is conducting a rulemaking to amend FMVSS No. 111.4 The agency would like to emphasize that any change to NCAP to encourage the installation of rearview video systems to assist drivers in avoiding backover crashes is separate from the agency's consideration of appropriate amendments to FMVSS No. 111. Any update to NCAP as a result of this request for comment is not a resolution to the rulemaking action to amend FMVSS No. 111, it does not replace the agency's efforts in that area, nor is it an alternative to completing the rulemaking process to amend FMVSS No. 111. However, the agency believes that it is appropriate to conduct this separate action to consider incorporating rearview video systems into NCAP.

The agency believes that there will be significant advantages in incorporating rearview video systems into NCAP at this point in time. In doing so, the agency believes that consumers will receive important information regarding the safety risks associated with backovers and the available vehicle models with an effective countermeasure that can assist the driver in avoiding backover crashes. As an added benefit, the agency believes that including rearview video systems in NCAP will afford manufacturers recognition for designing and installing these systems that can help drivers avoid backover crashes and incentivize further installation of these systems. By adding rearview video systems into NCAP at this time, the agency believes that the aforementioned advantages can be realized not only prior to the promulgation of a final rule to amend FMVSS No. 111 but also during any phase-in period following the final rule's promulgation.

Beyond issuing star ratings based on the crashworthiness of vehicle models, NCAP currently already offers additional information to consumers regarding “Recommended Advanced Technology Features” through its Web site (www.safercar.gov). For each vehicle make/model, the Web site currently shows (in addition to a list of safety features) the model's five-star crashworthiness ratings and whether the vehicle model is equipped with any of three advanced crash avoidance safety technologies that NHTSA currently recommends to consumers.5 The agency selected three advanced crash avoidance technologies to recommend to consumers starting in model year 2011 because those technologies (1) address a major crash problem, (2) have information to project their potential safety benefit, and (3) are able to be tested by available performance tests and procedures that can ensure an acceptable level of performance.6

At this point, the agency believes it is appropriate to include rearview video systems as opposed to ESC as a recommended crash avoidance technology on www.safercar.gov. While NCAP recommended ESC to consumers before ESC became required equipment on vehicles with a GVWR of 10,000 pounds or less, FMVSS No. 126 now requires ESC on all of those vehicles.7 For that reason, there is no reason to continue ESC as a “Recommended Advanced Technology Feature” in NCAP. Having considered the available information on rearview video systems, the agency believes that such systems that provide drivers visual access to the area directly behind their vehicles that are associated with the highest crash risk meet the aforementioned criteria for incorporation into NCAP. In other words, rearview video systems address a major safety problem (backover crashes), the available information strongly indicates that they are effective in assisting drivers at avoiding backover crashes, and performance/test criteria are available to ensure that such systems perform adequately to address the backover safety problem.

As evidenced by the decision by Congress to pass the K.T. Safety Act, backover crashes constitute a major safety problem. Backover crashes cause a significant number of fatalities and injuries each year because drivers cannot see the area behind the vehicle where pedestrians can be located. The currently available information indicates that vehicles with a GVWR of 10,000 lbs. or less alone are involved in approximately 202 fatalities and 14,000 injuries per year.8 Further, the research summarized in the NPRM to amend FMVSS No. 111 indicates that rearview video systems (which afford drivers a view of the area behind the vehicle) are effective in helping drivers avoid a backover crash. Thus, the agency believes that backover crashes are a major safety problem that can be reduced through an increased proliferation of rearview video systems.

As the available information indicates that such systems meet the agency's criteria for incorporation into NCAP as a recommended advanced crash avoidance technology, the agency is issuing this document to request comment on this planned update to the program. The agency believes that, through NCAP, the agency can help educate motor vehicle consumers on the important safety benefits that can be realized through rearview video systems and help support the proliferation of this important safety technology.

We note that the agency is currently also considering other updates to NCAP. On April 5, 2013, the agency published a request for comment in the Federal Register on a large variety of potential updates to NCAP (including various crash avoidance and crashworthiness technologies such as automatic collision notification systems, automatic braking systems, improved test dummies, testing for rear seat occupants, etc.).9 While each technology being considered by NHTSA is at a different state of development, the agency believes that the available information on rearview video systems is such that the agency can quickly implement the relevant changes to NCAP to begin offering consumers important information about the backover safety problem and the available countermeasures. The agency believes that updating NCAP to include rearview video systems is an appropriate change that can be accomplished relatively quickly without any impact on the agency's plans to implement additional technologies that are under consideration in the April, 2013 request for comment.

In order to accomplish the goals outlined above as quickly as possible, the agency plans to use a two-phase approach to incorporate this change into NCAP. As described above, the agency provides information for each vehicle model on www.safercar.gov concerning the vehicle's five-star crashworthiness ratings, stating whether the vehicle model has a “Recommended Advanced Technology Feature,” and listing the major safety features available on the vehicle model. By leveraging these different sections of the Web site, the agency believes it can quickly inform consumers of the availability of this important safety technology through the following two phases.

• Phase 1: The agency would immediately begin to list rearview video systems in the “safety feature” section for each vehicle model on www.safercar.gov that has this safety feature available.

• Phase 2: As soon as the agency is able to verify that the vehicle model has a rearview video system meeting certain basic criteria (as further discussed below) the agency would recognize those vehicle models as having a “Recommended Advanced Technology Feature” on the www.safercar.gov Web site.

The agency believes that this two-phase approach minimizes the amount of time that is needed for the agency to begin providing information in the short term. At the same time, the agency believes that this approach would maximize the usefulness of the information available to consumers in the long run. In order to recommend rearview video systems as a technology to consumers that can help drivers avoid backover crashes, the agency would establish certain basic criteria that these rearview video systems installed in participating vehicle models must meet. Thus, under this approach, the agency would be able to begin providing information to consumers quickly under Phase 1 and follow up with additional information in Phase 2.10

We note that the advanced crash avoidance technologies that are currently recommended by NHTSA through NCAP (as “Recommended Advanced Technology Features”) are shown on www.safercar.gov and not included on the Monroney label.11 Our plan to update NCAP to adopt rearview video systems as a recommended technology feature is, at least initially, likewise to show the technology on that Web site and not on the vehicle's Monroney label. We are considering whether to incorporate additional advanced crash avoidance technologies into NCAP. When we have determined which additional technologies will be incorporated, we will consider whether we should initiate a rulemaking to determine whether and how the incorporated advanced technologies should be included on the Monroney label.

In order to recommend rearview video systems to the motor vehicle consumer, the agency would need to ensure that such systems are designed to address the backover safety problem (and not merely designed as a convenience feature aimed at assisting drivers in parking maneuvers). The agency believes that, due to the nature of NCAP as a consumer information program, the agency needs to ensure that the criteria for recommending a rearview video system to consumers appropriately distinguishes systems designed to assist drivers in avoiding backover crashes and does not misrepresent the capabilities of systems designed to assist drivers conducting parking maneuvers. Towards this end, the agency believes that three basic criteria are necessary. To be designed for the purpose addressing the backover safety problem, the agency believes that the rearview video system (at a minimum) needs to:

(1) Show a visual image of a minimum area behind the vehicle that is associated with the greatest crash risk,

(2) Show this area at a sufficient size so as to enable the driver to make judgments about the objects behind the vehicle, and

(3) Show this area quickly enough to provide the driver with the relevant information before he/she begins the backing maneuver.

Thus, for purposes of incorporating rearview video systems into NCAP as a recommended technology, the agency would (in Phase 2) recommend to consumers vehicle models with rearview video systems that meet field of view, image size, and response time 12 criteria that were proposed in the agency's NPRM to amend FMVSS No. 111. We believe that adopting these criteria from the FMVSS No. 111 NPRM appropriately ensures that the systems recommended by NCAP will be designed for the purpose of avoiding backover crashes. Further, these criteria from the FMVSS No. 111 NPRM have been developed for the purpose of providing an objective method for determining whether a rearview video system can address the safety problem.

Finally, the agency believes that these three criteria strike an appropriate balance between the agency's interest in recommending to consumers vehicles with systems that are designed to address a major safety problem (as opposed to assisting drivers in conducting parking maneuvers) and the agency's interest in avoiding the establishment of too many criteria that may discourage manufacturer participation in this aspect of NCAP.

The field of view and image size requirements from the FMVSS No. 111 NPRM are designed to ensure that rearview video systems afford drivers visual access to a 20-foot by 10-foot zone directly behind the vehicle. They further ensure that the image displayed to the driver is large enough to enable the driver to make judgments about the objects in the image and avoid a crash with those objects. The agency believes that these criteria apply to the most basic functions that the rearview video system needs to perform in order to address the backover safety problem. As discussed in the NPRM to amend FMVSS No. 111, we believe that the field of view criterion for a 20-foot by 10-foot zone 13 directly behind the vehicle covers the areas behind the vehicle that are associated with the greatest backover crash risk.14 Further, the available research indicates that the image size criterion (that the test objects contained in the rearview image subtend to a visual angle of at least 5 minutes of arc 15 ) will help ensure that drivers are able to make judgments about the objects contained in the rearview image.16 By including these two criteria in our assessment of whether a particular vehicle model's rearview video system is listed as a “Recommended Advanced Technology Feature,” the agency believes that rearview video systems that are recommended to consumers will be designed to reasonably assist drivers in avoiding backover crashes. The agency plans to utilize the test procedures proposed in the NPRM to evaluate conformity with these criteria for the purposes of NCAP.17

In addition, the response time requirement from the NPRM to amend FMVSS No. 111 is designed to ensure that the rearview image (meeting the criteria above) is shown to the driver in a timely fashion. The agency believes that this requirement is especially important because, regardless of the quality of the image shown to the driver, if the image is not shown before a driver begins a backing maneuver, then it is unlikely that the rearview video system will be able to assist the driver in avoiding a backover crash. Thus, we plan to adopt the 2.0 second response time requirement from the proposal to amend FMVSS No. 111 as a criterion for rearview video systems in NCAP.18 As in the proposal to amend FMVSS No. 111, the agency plans to evaluate conformity with this criterion based on the time that the vehicle is shifted into reverse. In other words, the NCAP criterion would state that the rearview image must be displayed within 2.0 seconds after the vehicle transmission is shifted into reverse. As the agency explained in the FMVSS No. 111 NPRM, we believe the 2.0-second limit is appropriate given the amount of time necessary for rearview video systems to conduct the necessary system checks and the activation times that are achievable by liquid crystal displays.19

However, in response to the proposal, the agency received various comments from vehicle manufacturers stating that (depending on the initialization process of the vehicle tested) the response time of the rearview image can be delayed significantly if the vehicle is shifted into reverse immediately after starting the engine. The manufacturers further suggested that the agency adopt a vehicle initialization test procedure to condition the vehicle prior to testing for the 2.0-second response time. The agency recognizes that, for assessing conformity with the NCAP criteria, it is important to establish the state of the vehicle prior to testing for response time. Thus, in order to address the manufacturers' concerns, we plan to include the following vehicle conditioning procedure when assessing conformity with the NCAP response time criterion.

Immediately after the vehicle is conditioned in accordance with the above procedure, the agency would select the reverse gear in the vehicle and measure the 2.0-second response time. We believe that this conditioning procedure will provide additional certainty to manufacturers regarding the conditions under which the agency would assess conformity with the NCAP 2.0-second response time criterion. Further we believe that this method will still ensure that the rearview image is available to the driver at a time that is appropriate for a driver relying on it to avoid a backover crash. Our naturalistic driving data 21 indicate that approximately 90% of the time drivers do not select the reverse gear to begin the backing maneuver less than 4.25 seconds after opening the vehicle's door. In other words, only approximately 10% of the time drivers enter their vehicle and select the reverse gear in less than 4.25 seconds. Thus, we believe that the vehicle conditioning procedure shown above reasonably approximates the real world conditions under which drivers would use these systems and that a vehicle conforming to the 2.0 second criteria under those test conditions would have the rearview image available for the driver in a timely fashion.

This document requests comments on the agency's plan to incorporate rearview video systems into NCAP. However, this document is not intended to solicit comments concerning our proposed rule to amend FMVSS No. 111. The comment period on that proposed rule closed on April 18, 2011.

Your comments must be written and in English. To ensure that your comments are filed correctly in the docket, please include the docket number of this document in your comments.

Your comments must not be more than 15 pages long (49 CFR 553.21). NHTSA established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

Please submit one copy (two copies if submitting by mail or hand delivery) of your comments, including the attachments, to the docket following the instructions given above under ADDRESSES. Please note, if you are submitting comments electronically as a PDF (Adobe) file, we ask that the documents submitted be scanned using an Optical Character Recognition (OCR) process, thus allowing the agency to search and copy certain portions of your submissions.

If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Office of the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you may submit a copy (two copies if submitting by mail or hand delivery), from which you have deleted the claimed confidential business information, to the docket by one of the methods given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in NHTSA's confidential business information regulation (49 CFR Part 512).

NHTSA will consider all comments received before the close of business on the comment closing date indicated above under DATES. To the extent possible, the agency will also consider comments received after that date.

You may read the comments received at the address given above under Comments. The hours of the docket are indicated above in the same location. You may also see the comments on the Internet, identified by the docket number at the heading of this notice, at http://www.regulations.gov.

Please note that, even after the comment closing date, NHTSA will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, the agency recommends that you periodically check the docket for new material.

Anyone is able to search the electronic form of all 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 DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78) or you may visit http://www.dot.gov/privacy.html.

Section 4 of the ESA provides for both NMFS and the U.S. Fish and Wildlife Service (FWS) to make determinations as to the endangered or threatened status of “species” in response to petitions or on their own initiative. In accordance with the ESA, we (NMFS) make determinations as to the threatened or endangered status of species by regulation. These regulations provide the text for each species listing and include the content required by the ESA Section 4(c)(1). We enumerate and maintain a list of species under our jurisdiction which we have determined to be threatened or endangered at 50 CFR 223.102 (threatened species) and 50 CFR 224.101 (endangered species) (hereafter referred to as the “NMFS Lists”). The FWS maintains two master lists of all threatened and endangered species, i.e., both species under NMFS' jurisdiction and species under FWS' jurisdiction (the “FWS Lists”) at 50 CFR 17.11 (threatened and endangered animals) and 50 CFR 17.12 (threatened and endangered plants). The term “species” for listing purposes under the ESA includes the following entities: species, subspecies, and, for vertebrates only, “distinct population segments (DPSs).” Pacific salmon are listed as “evolutionarily significant units (ESUs),” which are essentially equivalent to DPSs for the purpose of the ESA. For West Coast salmon and steelhead, many of the ESU and DPS descriptions include fish originating from specific artificial propagation programs (e.g., hatcheries) that, along with their naturally-produced counterparts, are included as part of the listed species.

We recently completed a 5-year review of the status of ESA-listed salmon ESUs and steelhead DPSs in California (76 FR 50447, August 15, 2011; and 76 FR 76386, December 7, 2011) and in Oregon, Idaho, and Washington (76 FR 50448; August 15, 2011). The ESA requires this regular review of listed species to determine whether a species should be delisted, reclassified, or whether the current classification should be retained (16 U.S.C. 1533(c)(2)). As a result of our review, we identified several errors, omissions, and updates that warrant revising the NMFS and FWS Lists for the sake of accuracy and improved readability. We also identified cross-referencing errors in our regulations at 50 CFR 223. In addition, we are taking advantage of this proposed rule to correct or clarify text and update the list formats for all species under NMFS' jurisdiction.

Below we summarize the proposed revisions. In the regulatory text at the end of this Federal Register notice are (1) tables with the revised format depicting the NMFS Lists with the full text of the species' descriptions that we propose to update with this notice, and (2) the full text of proposed corrections and clarifications to our regulations at 50 CFR 223. After considering public comments on these proposed revisions, we will finalize this proposed rule and then coordinate with the FWS to ensure that the changes are reflected in the FWS Lists at 50 CFR 17.11 and 17.12.

Endangered Species Table: For consistency, we propose to combine the separate tables and paragraphs in 50 CFR 224.101 into one table, as we have done for the threatened species table at 50 CFR 223.102.

Introductory Text: We propose adding text to both 50 CFR parts 223 and 224 introducing the table format for the NMFS Lists and explaining the categories of information presented in the tables. This will make the NMFS regulations more consistent with the FWS regulations and will aid the reader in understanding the information presented.

Order of Species' Names: We propose to reorder the species' entries alphabetically in both NMFS Lists based on the species' common name and to remove the numbering system currently used in the NMFS table of threatened species. For example, the current entry in the threatened species list at 50 CFR 223.102, “(a)(23) Puget Sound steelhead DPS,” will be identified as “Steelhead (Puget Sound DPS)” and will come after “Salmon” but before “Sturgeon.” This will make it easier to search our lists for species of interest and is consistent with the format of the FWS Lists. If the species has no common name, it will be listed alphabetically based on its scientific name. The numbering has not provided a benefit and has made it more complicated to add or delist species.

ESA Rules: In the NMFS Lists, we propose to add a new “ESA rules” column similar to the “Special rules” column used in the FWS Lists. This new column will provide a cross-reference to ESA rules applicable to the species, such as protective regulations for threatened species.

Citations for Listing Determinations: Currently, the column entitled “Citation(s) for listing determination(s)” provides, for some species, a cite to the first page of the Federal Register notice containing the listing determination and, for other species, a cite to the page containing the regulatory text for that species. We are standardizing the information provided in this column so that all citations identify the first page of the relevant Federal Register notice.

Critical Habitat Citations: In both NMFS Lists, we propose to change the entries under the “Citation(s) for critical habitat designation(s)” column to refer to the specific section in 50 CFR 226 (instead of the Federal Register notice) where the critical habitat description is found. Doing so will provide a more direct reference to the applicable regulatory text and maps designating critical habitat and ensure that citations track the most up-to-date descriptions of designated areas. We also propose to shorten the column heading to “Critical habitat.”

Description of Listed Entity: In both NMFS Lists, we propose to change the “Where listed” column to “Description of listed entity.” As currently used, the “Where listed” column contains both substantive information, for example, descriptions of ESUs/DPSs, and non-substantive information, such as the range where the species may normally be found. To avoid confusion, the “Description of listed entity” column will now include only information that is necessary to identify the listed entity that constitutes the “species” for purposes of the ESA. Accordingly, the “Description of listed entity” column will explain whether the listed entity is an entire taxonomic species, a subspecies, or a DPS and will provide a description for DPSs. Information regarding the general geographic range of a listed species may still be found in the Federal Register notice designating that species for listing and referenced in the “Citations for listing determination(s)” column. Additionally, we have standardized the descriptions for each species. For example, current DPS descriptions use varying terminology, such as “spawned in,” “from,” or “hatched in,” to indicate that animals born within a given geographic area comprise the DPS. We propose standardizing our terminology by consistently using the phrase “originating from,” to describe the composition of such DPSs, unless different wording is necessary for accuracy. One specific change for listed steelhead populations is to clarify that steelhead DPSs include “all naturally spawned anadromous O. mykiss (steelhead) originating below natural and manmade impassable barriers.”

Below we summarize the primary proposed revisions to the descriptions of our endangered species listed in 50 CFR 224.101. Based on our recently completed 5-year reviews of the status of ESA-listed salmon ESUs and steelhead DPSs in California, Oregon, Idaho, and Washington (see http://www.nmfs.noaa.gov/pr/listing/reviews.htm and http://www.nwr.noaa.gov for status review documents), some of the descriptions of our endangered species must be revised to take into account the addition or termination of specific artificial propagation programs which contribute individuals to that ESU or DPS. These are identified as “key changes.” The addition or termination of these artificial propagation programs does not constitute a listing or delisting of an ESU or DPS, but simply a revision to reflect the actual current composition of the listed ESU or DPS. Other changes to the descriptions include standardization of terminology to improve consistency and accuracy in our listings. Where a “key change” is not indicated for a specific revised listing description, then the only change to the description is for standardization of terminology.

We propose to revise this description to read: “Naturally spawned winter-run Chinook salmon originating from the Sacramento River and its tributaries. Also, winter-run Chinook salmon from one artificial propagation program: the Livingston Stone National Fish Hatchery.” The key change proposed for this ESU is: One artificial propagation program has been terminated (the captive broodstock program maintained at Livingston Stone National Fish Hatchery and the University of California Bodega Marine Laboratory) and is being removed from the list of artificial propagation programs that are part of this ESU.

We propose to revise this description to read: “Naturally spawned spring-run Chinook salmon originating from Columbia River tributaries upstream of the Rock Island Dam and downstream of Chief Joseph Dam (excluding the Okanogan River subbasin). Also, spring-run Chinook salmon from six artificial propagation programs: The Twisp River Program; Chewuch River Program; Methow Program; Winthrop National Fish Hatchery Program; Chiwawa River Program; and the White River Program.”

We propose to revise this description to read: “Naturally spawned anadromous and residual sockeye salmon originating from the Snake River basin. Also, sockeye salmon from one artificial propagation program: The Redfish Lake Captive Broodstock Program.”

Below we summarize the primary proposed revisions to the descriptions of our threatened species listed in 50 CFR 223.102. Based on our recently completed 5-year reviews of the status of ESA-listed salmon ESUs and steelhead DPSs in California, Oregon, Idaho, and Washington (see http://www.nmfs.noaa.gov/pr/listing/reviews.htm and http://www.nwr.noaa.gov for status review documents), some of the descriptions of our threatened species must be revised to take into account the addition or termination of specific artificial propagation programs which contribute individuals to that ESU or DPS. These are identified as “key changes.” The addition or termination of these artificial propagation programs does not constitute a listing or delisting of an ESU or DPS, but simply a revision to the composition of the listed ESU or DPS. Other changes to the descriptions include standardization of terminology to improve consistency and accuracy in our listings. Where a “key change” is not indicated for a specific revised listing description, then the only change to the description is for standardization of terminology.

We propose to revise this description to read: “Eulachon originating from the Skeena River in British Columbia south to and including the Mad River in northern California.” This is consistent with the description of this DPS provided in our original listing determination (75 FR 13012), however the description was inadvertently omitted from the current NMFS list in the CFR.

We propose to revise this description to read: “Naturally spawned Chinook salmon originating from rivers and streams south of the Klamath River to and including the Russian River.” The key changes proposed for this ESU include: Seven artificial propagation programs have been terminated (the Humboldt Fish Action Council (Freshwater Creek), Yager Creek, Redwood Creek, Hollow Tree, Van Arsdale Fish Station, Mattole Salmon Group, and Mad River Hatchery fall-run Chinook hatchery programs) and are being removed from the list of artificial propagation programs that are part of this ESU.

We propose to revise this description to read: “Naturally spawned Chinook salmon originating from the Columbia River and its tributaries downstream of a transitional point east of the Hood and White Salmon Rivers, and any such fish originating from the Willamette River and its tributaries below Willamette Falls. Not included in this ESU are: (1) Spring-run Chinook salmon originating from the Clackamas River; (2) fall-run Chinook salmon originating from Upper Columbia River Bright hatchery stocks that spawn in the mainstem Columbia River below Bonneville Dam and in other tributaries upstream from the dam to the Hood and White Salmon Rivers; (3) spring-run Chinook salmon originating from the Round Butte Hatchery (Deschutes River, Oregon) and spawning in the Hood River; (4) spring-run Chinook salmon originating from the Carson National Fish Hatchery and spawning in the Wind River; and (5) naturally spawning Chinook salmon originating from the Rogue River Fall Chinook Program. This ESU does include Chinook salmon from 20 artificial propagation programs: The Sea Resources Tule Chinook Program; Big Creek Tule Chinook Program; Astoria High School Salmon-Trout Enhancement Program (STEP) Tule Chinook Program; Warrenton High School STEP Tule Chinook Program; Cowlitz Tule Chinook Program; North Fork Toutle Tule Chinook Program; Kalama Tule Chinook Program; Washougal River Tule Chinook Program; Spring Creek National Fish Hatchery (NFH) Tule Chinook Program; Cowlitz Spring Chinook Programs in the Upper Cowlitz River and the Cispus River; Friends of the Cowlitz Spring Chinook Program; Kalama River Spring Chinook Program; Lewis River Spring Chinook Program; Fish First Spring Chinook Program; Sandy River Hatchery (Oregon Department of Fish and Wildlife Stock #11); Deep River Net Pens Tule Fall Chinook Program; Klaskanine Hatchery Tule Fall Chinook Program; Bonneville Hatchery Tule Fall Chinook Program; and the Little White Salmon NFH Tule Fall Chinook Program.” The key changes proposed for this ESU include: (1) The Elochoman River Tule Chinook Program has been terminated (the last adult returns will be in 2013) and is being removed from the list of artificial propagation programs that are part of this ESU; (2) four new programs (Deep River Net Pens Tule Fall Chinook, Klaskanine Hatchery Tule Fall Chinook, Bonneville Hatchery Tule Fall Chinook, and Little White Salmon National Fish Hatchery Tule Fall Chinook programs) are now considered part of this ESU; and (3) clarifications—first reported at the time of listing (64 FR 14308; March 24, 1999)—about the status of non-ESU Chinook salmon that are known to spawn within the range of the Lower Columbia River ESU.

We propose to revise this description to read: “Naturally spawned Chinook salmon originating from rivers flowing into Puget Sound from the Elwha River (inclusive) eastward, including rivers in Hood Canal, South Sound, North Sound and the Strait of Georgia. Also, Chinook salmon from 27 artificial propagation programs: The Kendall Creek Hatchery Program; Marblemount Hatchery Program (spring yearlings, spring subyearlings, and summer-run); Harvey Creek Hatchery Program (summer-run and fall-run); Whitehorse Springs Pond Program; Wallace River Hatchery Program (yearlings and subyearlings); Tulalip Bay Program; Issaquah Hatchery Program; Soos Creek Hatchery Program; Icy Creek Hatchery Program; Keta Creek Hatchery Program; White River Hatchery Program; White Acclimation Pond Program; Hupp Springs Hatchery Program; Voights Creek Hatchery Program; Diru Creek Program; Clear Creek Program; Kalama Creek Program; George Adams Hatchery Program; Rick's Pond Hatchery Program; Hamma Hamma Hatchery Program; Dungeness/Hurd Creek Hatchery Program; Elwha Channel Hatchery Program; and the Skookum Creek Hatchery Spring-run Program.” The key changes proposed for this ESU include: (1) The Marblemount Hatchery fall Chinook program has been terminated (the last adult returns will be in 2013) and is being removed from the list of artificial propagation programs that are part of this ESU; and (2) two new programs (Skookum Creek Hatchery spring-run Chinook and Harvey Creek Hatchery fall-run Chinook) are now considered part of this ESU.

We propose to revise this description to read: “Naturally spawned fall-run Chinook salmon originating from the mainstem Snake River below Hells Canyon Dam and from the Tucannon River, Grande Ronde River, Imnaha River, Salmon River, and Clearwater River subbasins. Also, fall-run Chinook salmon from four artificial propagation programs: The Lyons Ferry Hatchery Program; Fall Chinook Acclimation Ponds Program; Nez Perce Tribal Hatchery Program; and the Oxbow Hatchery Program.”

We propose to revise this description to read: “Naturally spawned spring/summer-run Chinook salmon originating from the mainstem Snake River and the Tucannon River, Grande Ronde River, Imnaha River, and Salmon River subbasins. Also, spring/summer-run Chinook salmon from 11 artificial propagation programs: The Tucannon River Program; Lostine River Program; Catherine Creek Program; Lookingglass Hatchery Program; Upper Grande Ronde Program; Imnaha River Program; Big Sheep Creek Program; McCall Hatchery Program; Johnson Creek Artificial Propagation Enhancement Program; Pahsimeroi Hatchery Program; and the Sawtooth Hatchery Program.” The key changes proposed for this ESU include: (1) Three artificial propagation programs (Lemhi River Captive Rearing Experiment Program, East Fork Captive Rearing Experiment Program, and West Fork Yankee Fork Captive Rearing Experiment Program) have been terminated (the last adult returns were in 2009) and are being removed from the list of programs that are part of this ESU; and (2) three captive broodstock programs (Tucannon River, Lostine River, and Catherine Creek) are transitioning to naturally returning fish but will remain as artificial propagation programs that are part of the ESU.

We propose to revise this description to read: “Naturally spawned spring-run Chinook salmon originating from the Clackamas River and from the Willamette River and its tributaries above Willamette Falls. Also, spring-run Chinook salmon from six artificial propagation programs: The McKenzie River Hatchery Program (Oregon Department of Fish and Wildlife (ODFW) Stock #23); Marion Forks Hatchery/North Fork Santiam River Program (ODFW Stock #21); South Santiam Hatchery Program (ODFW Stock #24) in the South Fork Santiam River and Mollala River; Willamette Hatchery Program (ODFW Stock #22); and the Clackamas Hatchery Program (ODFW Stock #19).” The key changes proposed for this ESU include: (1) The South Santiam Hatchery Program (ODFW Stock #24) in the Calapooia River has been terminated (the last adult returns were in 2008) and is being removed from the list of artificial propagation programs that are part of this ESU; and (2) two hatchery stock identification numbers (ODFW Stocks #23 and #24) were incorrectly identified in the NMFS regulations and are now correctly assigned to the appropriate artificial propagation programs.

We propose to revise this description to read: “Naturally spawned chum salmon originating from the Columbia River and its tributaries in Washington and Oregon. Also, chum salmon from three artificial propagation programs: The Chinook River Program (Sea Resources Hatchery); Grays River Program; and the Washougal River Hatchery/Duncan Creek Hatchery Program.”

We propose to revise this description to read: “Naturally spawned summer-run chum salmon originating from Hood Canal and its tributaries as well as from Olympic Peninsula rivers between Hood Canal and Dungeness Bay (inclusive). Also, summer-run chum salmon from four artificial propagation programs: The Hamma Hamma Fish Hatchery Program; Lilliwaup Creek Fish Hatchery Program; Tahuya River Program; and the Jimmycomelately Creek Fish Hatchery Program.” The key changes proposed for this ESU include: (1) Four artificial propagation programs (Quilcene National Fish Hatchery, Big Beef Creek Fish Hatchery, Salmon Creek Fish Hatchery, and Chimacum Creek Fish Hatchery) have been terminated (the last adult returns were in 2008) and are being removed from the list of programs that are part of this ESU; and (2) the Union River program (originally part of a combined Union River/Tahuya River program) has been terminated leaving just the Tahuya River program as part of the ESU.

We propose to revise this description to read: “Naturally spawned coho salmon originating from the Columbia River and its tributaries downstream from the Big White Salmon and Hood Rivers (inclusive) and any such fish originating from the Willamette River and its tributaries below Willamette Falls. Also, coho salmon from 23 artificial propagation programs: The Grays River Program; Sea Resources Hatchery Program; Peterson Coho Project; Big Creek Hatchery Program (Oregon Department of Fish and Wildlife (ODFW) Stock #13); Astoria High School Salmon-Trout Enhancement Program (STEP) Coho Program; Warrenton High School STEP Coho Program; Cathlamet High School Future Farmers of America Type-N Coho Program; Cowlitz Type-N Coho Program in the Upper and Lower Cowlitz Rivers; Cowlitz Game and Anglers Coho Program; Friends of the Cowlitz Coho Program; North Fork Toutle River Hatchery Program; Kalama River Type-N Coho Program; Kalama River Type-S Coho Program; Lewis River Type-N Coho Program; Lewis River Type-S Coho Program; Fish First Wild Coho Program; Fish First Type-N Coho Program; Syverson Project Type-N Coho Program; Washougal River Type-N Coho Program; Eagle Creek National Fish Hatchery Program; Sandy Hatchery Program (ODFW Stock #11); and the Bonneville/Cascade/Oxbow Complex (ODFW Stock #14) Hatchery Program.” The key changes proposed for this ESU include: (1) The Elochoman Type-S and Type-N Coho programs have been terminated (the last adult returns were in 2010) and are being removed from the list of artificial propagation programs that are part of this ESU; and (2) one program (Washougal River Type-N Coho Program) was inadvertently omitted from the list of artificial propagation programs and is now being identified as part of this ESU.

We propose to revise this description to read: “Naturally spawned coho salmon originating from coastal rivers south of the Columbia River and north of Cape Blanco. Also, coho salmon from one artificial propagation program: The Cow Creek Hatchery Program (Oregon Department of Fish and Wildlife Stock #18).” The key change proposed for this ESU is a correction to the stock identification number for the Cow Creek Hatchery Program.

We propose to revise this description to read: “Naturally spawned anadromous O. mykiss (steelhead) originating below natural and manmade impassable barriers from the Sacramento and San Joaquin Rivers and their tributaries; excludes such fish originating from San Francisco and San Pablo Bays and their tributaries. This DPS does include steelhead from two artificial propagation programs: The Coleman National Fish Hatchery Program, and the Feather River Fish Hatchery Program.” The key change proposed for this DPS involves identifying two artificial propagation programs that are part of this DPS (the Coleman National Fish Hatchery Program and the Feather River Fish Hatchery Program) that were identified in the Federal Register notice (71 FR 834; January 5, 2006) but were inadvertently omitted from the current NMFS List in the CFR.

We propose to revise this description to read: “Naturally spawned anadromous O. mykiss (steelhead) originating below natural and manmade impassable barriers from the Russian River to and including Aptos Creek, and all drainages of San Francisco and San Pablo Bays eastward to Chips Island at the confluence of the Sacramento and San Joaquin rivers. Also, steelhead from two artificial propagation programs: The Don Clausen Fish Hatchery Program, and the Kingfisher Flat Hatchery Program (Monterey Bay Salmon and Trout Project).” The key change proposed for this DPS involves identifying two artificial propagation programs that are part of this DPS (the Don Clausen Fish Hatchery Program, and the Kingfisher Flat Hatchery Program (Monterey Bay Salmon and Trout Project) that were identified in the Federal Register notice (71 FR 834; January 5, 2006) but were inadvertently omitted from the current NMFS List in the CFR.

We propose to revise this description to read: “Naturally spawned anadromous O. mykiss (steelhead) originating below natural and manmade impassable barriers from rivers between the Cowlitz and Wind Rivers (inclusive) and the Willamette and Hood Rivers (inclusive); excludes such fish originating from the upper Willamette River basin above Willamette Falls. This DPS does include steelhead from seven artificial propagation programs: The Cowlitz Trout Hatchery Late Winter-run Program (Lower Cowlitz); Kalama River Wild Winter-run and Summer-run Programs; Clackamas Hatchery Late Winter-run Program (Oregon Department of Fish and Wildlife (ODFW) Stock #122); Sandy Hatchery Late Winter-run Program (ODFW Stock #11); Hood River Winter-run Program (ODFW Stock #50); and the Lewis River Wild Late-run Winter Steelhead Program.” The key changes proposed for this DPS include identifying artificial propagation programs that are part of this DPS that were identified in the Federal Register notice (71 FR 834; January 5, 2006) but were inadvertently omitted from the current NMFS List in the CFR. Also, based on our recent 5-year review of ESA-listed salmonids (76 FR 50448; August 15, 2011), the following programs are now being included as part of this DPS: The Cowlitz Trout Hatchery Late Winter-run Program (Lower Cowlitz); Kalama River Wild Winter-run and Summer-run Programs; Clackamas Hatchery Late Winter-run Program (Oregon Department of Fish and Wildlife (ODFW) Stock #122); Sandy Hatchery Late Winter-run Program (ODFW Stock #11); Hood River Winter-run Program (ODFW Stock #50); and the Lewis River Wild Late-run Winter Steelhead Program.

We propose to revise this description to read: “Naturally spawned anadromous O. mykiss (steelhead) originating below natural and manmade impassable barriers from the Columbia River and its tributaries upstream of the Wind and Hood Rivers (exclusive) to and including the Yakima River; excludes such fish originating from the Snake River basin. This DPS does include steelhead from seven artificial propagation programs: The Touchet River Endemic Program; Yakima River Kelt Reconditioning Program (in Satus Creek, Toppenish Creek, Naches River, and Upper Yakima River); Umatilla River Program (Oregon Department of Fish and Wildlife (ODFW) Stock #91); and the Deschutes River Program (ODFW Stock #66). This DPS does not include steelhead that are designated as part of an experimental population.” The key changes proposed for this DPS include identifying artificial propagation programs that are part of this DPS that were identified in the Federal Register notice (71 FR 834; January 5, 2006) but were inadvertently omitted from the current NMFS List in the CFR. Also, based on our recent 5-year review of ESA-listed salmonids (76 FR 50448; August 15, 2011), the following programs are now being included as part of this DPS: The Touchet River Endemic Program; Yakima River Kelt Reconditioning Program (in Satus Creek, Toppenish Creek, Naches River, and Upper Yakima River); Umatilla River Program (Oregon Department of Fish and Wildlife (ODFW) Stock #91); and the Deschutes River Program (ODFW Stock #66).

We recently designated a nonessential experimental population of Middle Columbia River steelhead (78 FR 2893, Jan. 15, 2013). We propose to add an entry for this experimental population onto the NMFS list to provide the public with a description of this experimental population, a citation to the Federal Register notice, and indicate ESA rules that apply to this population. We propose to add the description: “Middle Columbia River steelhead only when, and at such times as, they are found above Butte Dam.”

We propose to revise this description to read: “Naturally spawned anadromous O. mykiss (steelhead) originating below natural and manmade impassable barriers from rivers flowing into Puget Sound from the Elwha River (inclusive) eastward, including rivers in Hood Canal, South Sound, North Sound and the Strait of Georgia. Also, steelhead from six artificial propagation programs: The Green River Natural Program; White River Winter Steelhead Supplementation Program; Hood Canal Steelhead Supplementation Off-station Projects in the Dewatto, Skokomish, and Duckabush Rivers; and the Lower Elwha Fish Hatchery Wild Steelhead Recovery Program.” The key changes proposed for this DPS include: (1) The Hamma Hamma River Hatchery program has been terminated (the last adult returns were in 2010) and is being removed from the list of artificial propagation programs that are part of this DPS; and (2) five new programs (the White River Winter Steelhead Supplementation Program, three Hood Canal Steelhead Supplementation off-station projects (Dewatto River, Skokomish River, and Duckabush River), and the Lower Elwha Fish Hatchery Wild Steelhead Recovery Program) are now considered part of this DPS.

We propose to revise this description to read: “Naturally spawned anadromous O. mykiss (steelhead) originating below natural and manmade impassable barriers from the Snake River basin. Also, steelhead from six artificial propagation programs: The Tucannon River Program; Dworshak National Fish Hatchery Program; Lolo Creek Program; North Fork Clearwater Program; East Fork Salmon River Program; and the Little Sheep Creek/Imnaha River Hatchery Program (Oregon Department of Fish and Wildlife Stock #29).” The key changes proposed for this DPS include identifying artificial propagation programs that are part of this DPS that were identified in the Federal Register notice (71 FR 834; January 5, 2006) but were inadvertently omitted from the current NMFS List in the CFR. Also, based on our recent 5-year review of ESA-listed salmonids (76 FR 50448; August 15, 2011), the following programs are now being included as part of this DPS: The Tucannon River Program; Dworshak National Fish Hatchery Program; Lolo Creek Program; North Fork Clearwater Program; East Fork Salmon River Program; and the Little Sheep Creek/Imnaha River Hatchery Program (Oregon Department of Fish and Wildlife Stock #29).

We propose to revise this description to read: “Naturally spawned anadromous O. mykiss (steelhead) originating below natural and manmade impassable barriers from the Columbia River and its tributaries upstream of the Yakima River to the U.S.-Canada border. Also, steelhead from six artificial propagation programs: The Wenatchee River Program; Wells Hatchery Program (in the Methow and Okanogan Rivers); Winthrop National Fish Hatchery Program; Omak Creek Program; and the Ringold Hatchery Program.”

We propose to revise this description to read: “Naturally spawned anadromous winter-run O. mykiss (steelhead) originating below natural and manmade impassable barriers from the Willamette River and its tributaries upstream of Willamette Falls to and including the Calapooia River.”

During our review of the NMFS Lists we discovered minor errors in our regulations at 50 CFR 223, which specify the protections afforded under ESA section 4(d) to various threatened species. We are proposing to make the following revisions to correct these errors:

(1) We propose to correct the grammar in our regulations at 50 CFR 223.101(a) and 50 CFR 223.201(b)(1). In 50 CFR 223.101(a) we are replacing the word “governing” with “govern” and in 50 CFR 223.201(b)(1) we are removing the phrase ” in accordance with the”, which was added in error.

(2) Due to an oversight that occurred when we revised our NMFS List of threatened species in 2006 (71 FR 38270; July 6, 2006), our regulations at 50 CFR 223.203 incorrectly refer to the “Marine Mammals” portion of our NMFS List at 50 CFR 223.102(a) when, instead, they should have referred to “Fishes” at 50 CFR 223.102(c). However, as we have proposed to discontinue numbering species in the threatened lists and instead sort all threatened species in the table alphabetically, all future references to the numbered salmonid listings at 50 CFR 223.102(c) will be changed to reference the entire NMFS List at “223.102.” Furthermore, we propose to modify the text in 50 CFR 223.203 to clarify that the regulations are specific to threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus), and not applicable to other anadromous fishes (e.g., eulachon). Therefore, we propose to change the current language in the regulations from “threatened species of salmonids listed” to “threatened West Coast salmon ESUs and steelhead DPSs (of the genus Oncorhynchus) listed”;

(3) Our regulations at 50 CFR 223.208 currently refer to corals listed as threatened at “223.102(d)”; however, for the reasons previously described in this notice, we propose to discontinue numbering the species in our NMFS Lists, and therefore propose to change these regulations to refer to the entire NMFS List at “223.102.” Similarly, our regulations at 50 CFR 223.210 and 50 CFR 223.211 currently refer to the Southern DPS of North American green sturgeon listed at “223.102(c)(1)” and the Southern DPS of spotted seal listed at “223.102(a)(3),” respectively. We propose to change these regulations to refer to the entire threatened NMFS List at “223.102.”

Copies of previous Federal Register notices and related reference materials are available on the Internet at http://www.nmfs.noaa.gov/pr/listing/reviews.htm, http://www.nwr.noaa.gov, or upon request (see FOR FURTHER INFORMATION CONTACT section above).

This proposed rule simply updates sections 223 and 224 of the CFR with information that has already been approved or involves format changes, none of which could result in economic impacts. Therefore, the economic analysis requirements of the Regulatory Flexibility Act and Executive Order 12866 are not applicable.

In accordance with Executive Order 13132, we determined that this proposed rule does not have significant Federalism effects and that a Federalism assessment is not required. The proposed revisions may have some benefit to state and local resource agencies in that the ESA-listed species addressed in this rulemaking are more clearly and consistently described.

The Department of Commerce has determined that this proposed rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988. In keeping with that Order, we are proposing revisions to our descriptions of ESA-listed species that will improve the clarity and general draftsmanship of our regulations.

This proposed rule does not contain new or revised information collection requirements for which Office of Management and Budget (OMB) approval is required under the Paperwork Reduction Act. This proposed rule will not impose recordkeeping or reporting requirements on state or local governments, individuals, businesses, or organizations. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

This proposed rule clarifies and updates the descriptions of species under NMFS' jurisdiction that are currently listed as threatened or endangered under the ESA and thus primarily administrative in nature. As such, NMFS has determined this proposed rule is categorically excluded from further NEPA review by NOAA Administrative Order 216-6, paragraph 6.03c.3(i). No extraordinary circumstances concerning this action exist. Therefore, NMFS will not prepare an Environmental Assessment or Environmental Impacts statement for the rule.

Executive Order 13084 requires that if NMFS issues a regulation that significantly or uniquely affects the communities of Indian tribal governments and imposes substantial direct compliance costs on those communities, NMFS must consult with those governments or the Federal government must provide the funds necessary to pay the direct compliance costs incurred by the tribal governments. This proposed rule does not impose substantial direct compliance costs on Indian tribal governments or communities. Accordingly, the requirements of section 3(b) of E.O. 13084 do not apply to this final rule. Nonetheless, during our 5-year review of salmon and steelhead we solicited information from the tribes, met with several tribal governments and associated tribal fisheries commissions, and provided the opportunity for all interested tribes to comment on the proposed changes to the species' status and descriptions and discuss any concerns they may have. We will continue to inform potentially affected tribal governments, solicit their input, and coordinate on future management actions pertaining to the listed species addressed in this proposed rule.

For the reasons set out in the preamble, 50 CFR part 223 is proposed to be amended as follows: