We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2013-1071; Directorate Identifier 2013-NM-204-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We have received reports of latently failed fuel shutoff valves discovered during fuel filter replacement. Deficiencies in the valve actuator design have resulted in latent failures of the fuel shutoff valve to the engine. This condition, if not detected and corrected, could result in latent failures of the fuel shutoff valve to the engine, which could result in the inability to shut off fuel to the engine and, in case of certain engine fires, an uncontrollable fire that could lead to wing failure.

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

This proposed AD would require revising the maintenance or inspection program to include a new airworthiness limitation.

This proposed AD would require revisions to certain operator maintenance documents to include new inspections. Compliance with these inspections is required by section 91.403(c) of the Federal Aviation Regulations (14 CFR 91.403(c)). For airplanes that have been previously modified, altered, or repaired in the areas addressed by these inspections, an operator might not be able to accomplish the inspections described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval of an alternative method of compliance (AMOC) in accordance with the provisions of paragraph (i) of this proposed AD. The request should include a description of changes to the proposed inspections that will ensure the continued operational safety of the airplane.

We consider this proposed AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this proposed AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.

We estimate that this proposed AD affects 190 airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

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

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2013-0164; Directorate Identifier 2013-NE-10-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

On July 10, 2013, we issued AD 2013-14-08, Amendment 39-17513 (78 FR 42677, July 17, 2013), (“AD 2013-14-08”), for all Austro Engine GmbH model E4 engines. AD 2013-14-08 requires removing from service certain P/N waste gate controllers. AD 2013-14-08 resulted from several reports of power loss events due to fracture of the waste gate controller lever. We issued AD 2013-14-08 to prevent failure of the waste gate controller lever, which could lead to damage to one or more engines, loss of thrust control, and damage to the airplane.

Since we issued AD 2013-14-08, we received notification of additional waste gate controller P/Ns that require removal from service. Also since we issued AD 2013-14-08, the European Aviation Safety Agency (EASA) has issued AD 2013-0213, dated September 13, 2013, which requires removal and replacement of affected waste gate controllers. We also changed the unsafe condition statement in AD 2013-14-08 to clarify the relationship between the unsafe condition and the engine.

We reviewed Austro Engine Mandatory Service Bulletin (MSB) No. MSB-E4-007/6, Revision 6, dated September 18, 2013. The service information describes procedures for removal and installation of the waste gate controllers.

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

This proposed AD would retain all of the requirements of AD 2013-14-08. This proposed AD would expand the applicability by adding additional P/Ns of affected waste gate controllers.

We estimate that this proposed AD would affect 128 engines installed on airplanes of U.S. registry. We also estimate that it would take about 0.5 hours per engine to comply with this proposed AD. The average labor rate is $85 per hour. Required parts cost about $231 per engine. Based on these figures, we estimate the total cost of this proposed AD to U.S. operators to be $35,008.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

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

Any final order will be published in the Federal Register and may not be effective prior to February 10, 2014.

Section 201 of the CSA, 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance into Schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid imminent hazard to the public safety. 21 U.S.C. 811(h). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling for up to one year. 21 U.S.C. 811(h)(2).

Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 811(h)(1); 21 CFR part 1308. The Attorney General has delegated his authority under 21 U.S.C. 811 to the Administrator of the DEA, who in turn has delegated her authority to the Deputy Administrator of the DEA. 28 CFR 0.100, 0.104, Appendix to Subpart R of Part 0, Sec. 12.

Section 201(h)(4) of the CSA (21 U.S.C. 811(h)(4)) requires the Deputy Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance into Schedule I of the CSA. 1 As PB-22, 5F- PB-22, AB-FUBINACA, and ADB-PINACA are not currently listed in any schedule under the CSA, the DEA believes that the conditions of 21 U.S.C. 811(h)(1) have been satisfied. Any comments submitted by the Assistant Secretary in response to the notice transmitted to the Assistant Secretary on November 7, 2013, shall be taken into consideration before a final order is published. 21 U.S.C. 811(h)(4).

To make a finding that placing a substance temporarily into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Deputy Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA, 21 U.S.C. 811(c): the substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).

A substance meeting the statutory requirements for temporary scheduling may only be placed in Schedule I. 21 U.S.C. 811(h)(1). Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1). Available data and information for PB-22, 5F-PB-22, AB-FUBINACA, and ADB-PINACA indicate that these four synthetic cannabinoids have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision.

Synthetic cannabinoids are a large family of compounds that are functionally (biologically) similar to delta9-tetrahydrocannabinol (THC), the main active ingredient in marijuana. Synthetic cannabinoids, however, are not organic but are chemicals created in a laboratory. Two of the synthetic cannabinoids currently controlled (CP-47,497 and cannabicyclohexanol) were first synthesized in the early 1980's for research purposes in the investigation of the cannabinoid system. JWH-018, JWH-073, and JWH-200 (temporarily scheduled on March 1, 2011 at 76 FR 11075 and permanently scheduled on July 9, 2012, by Section 1152 of the Food and Drug Administration Safety and Innovation Act (FDASIA), Pub. L. 112-144) were synthesized in the mid-1990s and studied to further advance the understanding of drug-receptor interactions regarding the cannabinoid system. Synthesized as research tools, no other known legitimate uses have been identified for these five synthetic cannabinoids.

According to forensic laboratory reports, the initial appearance of synthetic cannabinoids in herbal incense products in the United States occurred in November 2008 when U.S. Customs and Border Protection (CBP) first encountered products using brand names such as “Spice.” Prior to appearing on the U.S. market, synthetic cannabinoids were marketed in herbal incense products in several European countries. After experiencing numerous health-related incidents, some European countries banned these products/chemicals. According to CBP, a number of the synthetic cannabinoids appeared to originate from foreign sources.

Detailed chemical analyses by DEA and other agencies have found synthetic cannabinoids applied on plant material in herbal incense products marketed to the general public. Product analyses have found variations in both the type of synthetic cannabinoid and the amount of the substance found on the plant material.

The vast majority of cannabinoids are manufactured in Asia by individuals who are not bound by any manufacturing requirements or quality control standards. The bulk products are smuggled into the United States typically as misbranded imports. These chemicals are generally found in powder form or are dissolved in solvents, such as acetone, before being applied to the plant material comprising the “herbal incense” products. After local distributors apply the drug to the leafy material, they package it for retail distribution, ignoring any control mechanisms to prevent contamination or to ensure a consistent, uniform concentration of drug in each package. According to Internet discussion boards and law enforcement encounters, spraying or mixing the synthetic cannabinoids on plant material provides a vehicle for the most common route of administration- smoking (using a pipe, a water pipe, or rolling the drug-spiked plant material in cigarette papers). They are sold under hundreds of different brand names, including “Spice,” “K2,” “Blaze,” “Red X Dawn,” “Paradise,” “Demon,” “Black Magic,” “Spike,” “Mr. Nice Guy,” “Ninja,” “Zohai,” “Dream,” “Genie,” “Sence,” “Smoke,” “Skunk,” “Serenity,” “Yucatan,” “Fire,” and “Crazy Clown.”

Law enforcement personnel have encountered dosage form and packaging operations in residential neighborhoods, garages, and warehouses. Throughout this process, there is no concern for preventing contamination of the product, consistent dosage, or the adverse health consequences that may occur from ingesting the drug. As proposed in the scientific literature, the risk of adverse health effects is further increased by the fact that similarly labeled products vary in the composition and concentration of synthetic cannabinoids applied on the plant material.

There is an incorrect assumption that these products are safe. Numerous states, local jurisdictions, and the international community have controlled many synthetic cannabinoids. These substances have no accepted medical use in the United States and have been reported to produce adverse health effects in those who abuse them.

PB-22, 5F-PB-22, AB-FUBINACA and ADB-PINACA are synthetic cannabinoids that have pharmacological effects similar to the Schedule I hallucinogen delta-9-tetrahydrocannabinol (THC). PB-22 and 5F-PB-22 were not reported in the scientific literature prior to their appearance on the illicit drug market. First appearing in a 2009 patent filed by the pharmaceutical manufacturer Pfizer, AB-FUBINACA was most recently reported in the scientific literature as a component of so-called “herbal products” purchased via the Internet in July 2012. ADB-PINACA was first encountered by law enforcement following reports of serious adverse events in Georgia and Colorado in August and September 2013, respectively.

From January through November 2013, according to the System to Retrieve Information from Drug Evidence (STRIDE) 2 there were 189 reports involving PB-22, 155 reports involving 5F-PB-22, and 42 reports involving AB-FUBINACA (Queried on December 18, 2013). From January through November 2013, the National Forensic Laboratory Information System (NFLIS) 3 registered 1,092 reports containing PB-22 in 29 states, 1,058 reports containing 5F-PB-22 in 25 states, 458 reports containing AB-FUBINACA in 17 states and 9 reports containing ADB-PINACA in one state (Queried on December 18, 2013). No reports in NFLIS or STRIDE were identified for PB-22 or 5F-PB-22 prior to February 2013. No reports in NFLIS or STRIDE were identified for AB-FUBINACA prior to June 2013 or for ADB-PINACA prior to August 2013.

Synthetic cannabinoids have been developed over the last 30 years as tools for investigating the cannabinoid system. Synthetic cannabinoids intended for illicit use were first reported in the United States in a November 2008 encounter, where a shipment of “Spice” was seized and analyzed by CBP in Dayton, Ohio. Additionally around the same time, in December 2008, JWH-018 and cannabicyclohexanol (CP-47,497 C8 homologue) were identified by German forensic laboratories. Since the initial identification of JWH-018, many additional synthetic cannabinoids have been found applied on plant material and encountered as designer drug products. The majority of the substances encountered on the illicit market have not been tested beyond preliminary pre-clinical laboratory screens before clandestine operators apply them on plant material.

JWH-018 was the first synthetic cannabinoid to be identified as a product adulterant in Germany in 2008. This substance was initially synthesized as a research tool to investigate the cannabinoid system. Since then, numerous other synthetic cannabinoids have been identified as product adulterants and law enforcement has seized bulk amounts of these substances. The first synthetic cannabinoids identified as being abused included JWH-018, JWH-200, JWH-073, CP-47,497 and CP-47,497 C8 homologue, followed shortly thereafter by new generations of synthetic cannabinoids that included AM2201 and others, and eventually UR-144, XLR11 and AKB48. JWH-018, JWH-073, JWH-200, CP-47,497, and CP-47,497 C8 were temporarily scheduled on March 1, 2011 (76 FR 11075), and later permanently placed in Schedule I by Section 1152 of FDASIA on July 9, 2012. Section 1152 of FDASIA amended the CSA by placing cannabimimetic agents and 26 specific substances (including 15 synthetic cannabinoids, 2 synthetic cathinones, and 9 synthetic phenethylamines of the 2C-series) in Schedule I. UR-144, XLR11 and AKB-48 were temporarily scheduled on May 16, 2013 (78 FR 28735). The most recent synthetic cannabinoids emerging as drugs of abuse include PB-22, 5F-PB-22, AB-FUBINACA, and ADB-PINACA. These four synthetic cannabinoids, along with UR-144, XLR11 and AKB-48, were not included among the 15 specific named synthetic cannabinoids, and do not fall under the definition of cannabimimetic agents, under FDASIA.

Synthetic cannabinoid products are marketed directly to adolescents and youth who appear to be the primary abusers of synthetic cannabinoids and synthetic cannabinoid-containing products. This is supported by law enforcement encounters and reports from emergency rooms; however, all age groups have been reported by media as abusing these substances and related products.

According to recent testimony given by the Deputy Director of the Office of National Drug Control Policy (ONDCP) to the United States Senate Caucus on International Narcotics Control (September 25, 2013), current drug testing misses significant populations of synthetic cannabinoid users. This testimony describes a study showing that in a sample of men 30 years old or younger within the District of Columbia parole and probation system, 39 percent of those who cleanly passed a traditional drug screen tested positive for synthetic cannabinoids. The study continued that between one-quarter and one-third of young men who were tested in the Washington, DC criminal justice system had positive test results for synthetic cannabinoids, regardless of whether they had failed or passed a traditional drug screen.

Recently, increased exposure incidents have been documented by poison control centers in the United States as the abuse of synthetic cannabinoids has been associated with both acute and long-term public health and safety concerns. From January through November 2013, according to STRIDE there were 189 reports involving PB-22; 155 reports involving 5F-PB-22; and 42 reports involving AB-FUBINACA (Queried on December 18, 2013). From January through November 2013, NFLIS registered 1,092 reports containing PB-22 in 29 states (Arkansas, Arizona, Colorado, Connecticut, Florida, Georgia, Hawaii, Iowa, Kansas, Kentucky, Louisiana, Maryland, Minnesota, Missouri, North Dakota, Nebraska, New Hampshire, New Jersey, New Mexico, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Utah, Virginia, Wisconsin and Wyoming); 1,058 reports containing 5F-PB-22 in 25 states (Arkansas, Arizona, Colorado, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Minnesota, Missouri, North Dakota, New Jersey, New Mexico, Nevada, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin and Wyoming); 458 reports containing AB-FUBINACA in 17 states (Arizona, Colorado, Florida, Georgia, Iowa, Indiana, Kansas, Louisiana, Minnesota, Missouri, North Dakota, New Jersey, Nevada, Ohio, Oklahoma, Pennsylvania and Texas); and 9 reports containing ADB-PINACA in one state (Colorado) (Queried on December 18, 2013). No reports in NFLIS or STRIDE were identified for PB-22 or 5F-PB-22 prior to February 2013. No reports in NFLIS or STRIDE were identified for AB-FUBINACA prior to June 2013 or for ADB-PINACA prior to August 2013.

ADB-PINACA was first encountered in the United States following reports of serious adverse events in Georgia on August 23, 2013. Reports of ADB-PINACA were not found in the scientific literature prior to its emergence on the designer drug market. The Georgia Bureau of Investigation (GBI) reported on September 12, 2013 that ADB-PINACA was detected in “herbal incense” products sold under the brand name “Crazy Clown.” It was later confirmed by the Centers for Disease Control and Prevention (CDC) as the substance responsible for severe adverse events in at least 22 persons who consumed the product. In addition, on August 30, 2013, the Colorado Department of Public Health and Environment (CDPHE) was notified by several hospitals of an increase in the number of patients visiting their emergency departments (EDs) with altered mental status after using synthetic marijuana. On September 8, 2013, CDPHE, with the assistance of CDC, began an epidemiologic investigation whereby 221 cases of severe illness due to ingestion of a synthetic cannabinoid were identified. Those that presented at emergency rooms in the Denver, Colorado area around September 1, 2013, had symptoms similar to those found in the August 2013 Georgia incident. Laboratory analysis of samples from the Colorado incident confirmed that the substance abused in the “herbal incense” products was ADB-PINACA.

The American Association of Poison Control Centers (AAPCC) reported receiving over 2,436 calls from January to November 2013, regarding exposures to products purportedly containing synthetic cannabinoids, although the data provided does not generally include biological sample testing that would confirm to which cannabinoids the user was exposed. A majority of these exposure incidents resulted in individuals seeking medical attention at health care facilities.

The earliest reported encounter of PB-22 was by Finnish Customs (Tulli) in Helsinki who intercepted a consignment of 54 kilograms en route from China to Russia on October 27, 2012. From January through November 2013, CBP shared information related to synthetic cannabinoid shipments encountered at United States Ports of Entry and intended for destinations within the United States: PB-22—25 encounters involving 69.6 kg; 5F-PB-22—23 encounters involving 32.9 kg; and AB-FUBINACA—9 encounters involving 16.1 kg. The DEA has reported multiple encounters of large quantities of PB-22, 5F-PB-22 and/or AB-FUBINACA that have been confirmed by forensic laboratories (STRIDE).

In late August 2013, local law enforcement in Brunswick, Georgia reported that 22 persons ranging in age from 16 to 57 presented to emergency departments with severe adverse reactions after consuming a synthetic product called “Crazy Clown.” Adverse effects included the inability to stand, foaming at the mouth, violence towards police and paramedics and memory lapse. The substance responsible for these effects was later identified by the GBI as ADB-PINACA. In early September 2013, 221 patients presented to emergency departments in Colorado after having adverse reactions to a synthetic product labeled as “Black Mamba.” Adverse effects included having no gag reflex, inability to breathe on their own, hallucinations and psychotic episodes as described by nurses and attending physicians. The substance in the product consumed was identified as ADB-PINACA. In addition to the incidents in Georgia and Colorado, ADB-PINACA was also identified in exhibits of plant material labeled “10X” and “20X” submitted to a laboratory in Illinois on October 7, 2013.

Health warnings have been issued by numerous state public health departments and poison control centers describing adverse health effects associated with smoking (inhaling) synthetic cannabinoid products including, agitation, vomiting, tachycardia, elevated blood pressure, seizures, hallucinations, and non-responsiveness.

Medical examiner and postmortem toxicology reports demonstrate the involvement of 5F-PB-22 in the death of at least five individuals. These reports demonstrated that 5F-PB-22 was qualitatively identified in the blood and/or urine of all five of the deceased individuals. In addition, 5F-PB-22 intoxication was the sole cause of death in one case, while a second case stated that the cause of death was a fatal cardiac arrhythmia and/or fatal seizure in association with the use of 5F-PB-22.

Since abusers obtain these drugs through unknown sources, the identity, purity, and quantity of these substances is uncertain and inconsistent, thus posing significant adverse health risks to users. There are no recognized therapeutic uses of these substances in the United States.

Based on the above summarized data and information, the continued uncontrolled manufacture, distribution, importation, exportation, and abuse of PB-22, 5F-PB-22, AB-FUBINACA and ADB-PINACA pose an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for these synthetic cannabinoids in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in Schedule I. Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for PB-22, 5F-PB-22, AB-FUBINACA, and ADB-PINACA indicate that these four synthetic cannabinoids have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h), the Deputy Administrator, through a letter dated November 7, 2013, notified the Assistant Secretary of the DEA's intention to temporarily place these four synthetic cannabinoids in Schedule I.

This notice of intent initiates an expedited temporary scheduling action and provides the 30-day notice pursuant to section 201(h) of the CSA, 21 U.S.C. 811(h). In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Deputy Administrator considered available data and information, herein set forth the grounds for his determination that it is necessary to temporarily schedule four synthetic cannabinoids, quinolin-8-yl 1-pentyl-1 H -indole-3-carboxylate (PB-22; QUPIC); quinolin-8-yl 1-(5-fluoropentyl)-1 H -indole-3-carboxylate (5-fluoro-PB-22; 5F-PB-22); N -(1-amino-3-methyl-1-oxobutan-2-yl)-1-(4-fluorobenzyl)-1 H -indazole-3-carboxamide (AB-FUBINACA); and N -(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-pentyl-1 H -indazole-3-carboxamide (ADB-PINACA), in Schedule I of the CSA, and finds that placement of these synthetic cannabinoids into Schedule I of the CSA is warranted in order to avoid an imminent hazard to the public safety.

Because the Deputy Administrator hereby finds that it is necessary to temporarily place these synthetic cannabinoids into Schedule I to avoid an imminent hazard to the public safety, any subsequent final order temporarily scheduling these substances will be effective on the date of publication in the Federal Register , and will be in effect for a period of two years, with a possible extension of one additional year, pending completion of the regular (permanent) scheduling process. 21 U.S.C. 811(h)(1) and (2). It is the intention of the Deputy Administrator to issue such a final order as soon as possible after the expiration of 30 days from the date of publication of this notice. PB-22, 5F-PB-22, AB-FUBINACA and ADB-PINACA will then be subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, possession, importation, exportation, research, and conduct of instructional activities of a Schedule I controlled substance.

The CSA sets forth specific criteria for scheduling a drug or other substance. Regular scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The regular scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the regular scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6).

Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for an expedited temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in Schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the Federal Register of the intention to issue such order and the grounds upon which such order is to be issued, and (2) the date that notice of the proposed temporary scheduling order is transmitted to the Assistant Secretary. 21 U.S.C. 811(h)(1).

Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of section 553 of the Administrative Procedure Act (APA), 5 U.S.C. 553, do not apply to this notice of intent. In the alternative, even assuming that this notice of intent might be subject to section 553 of the APA, the Deputy Administrator finds that there is good cause to forgo the notice and comment requirements of section 553, as any further delays in the process for issuance of temporary scheduling orders would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety.

Although the DEA believes this notice of intent to issue a temporary scheduling order is not subject to the notice and comment requirements of section 553 of the APA, the DEA notes that in accordance with 21 U.S.C. 811(h)(4), the Deputy Administrator will take into consideration any comments submitted by the Assistant Secretary with regard to the proposed temporary scheduling order.

Further, the DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act (RFA). The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by section 553 of the APA or any other law to publish a general notice of proposed rulemaking.

Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget (OMB).

This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Under the authority vested in the Attorney General by section 201(h) of the CSA, 21 U.S.C. 811(h), and delegated to the Deputy Administrator of the DEA by Department of Justice regulations (28 CFR 0.100, Appendix to Subpart R of Part 0), the Deputy Administrator hereby proposes that 21 CFR part 1308 be amended as follows:

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

If you submit a comment, please include the docket number for this rulemaking (USCG-2013-1057), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. We recommend that you include your name and a mailing address, an email address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov and insert “USCG-2013-1057” in the “Search” box. Click on “Submit a Comment” in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope.

We will consider all comments and material received during the comment period and may change this proposed rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov and insert “USCG-2013-1057 in the “Search” box. Click “Search.” Click the “Open Docket Folder” in the “Actions” column. If you do not have access to the internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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

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

The legal basis for this rulemaking is 43 U.S.C. 1333(d)(1), which authorizes the Secretary of the Department in which the Coast Guard is operating to promulgate and enforce necessary and reasonable regulations relating to the promotion of safety of life and property on Outer Continental Shelf (OCS) units and adjacent waters. The Secretary's authority is delegated to the Coast Guard by Department of Homeland Security Delegation No. 0170.1 (90).

The purpose of this notice of proposed rulemaking (NPRM) is to propose changes to Coast Guard regulations to improve the Coast Guard's ability to capture data on casualties that occur on the U.S. OCS. That data is essential to analyze the effectiveness of current Coast Guard regulations on OCS safety and for any future improvements to those regulations.

In 33 CFR subchapter N (33 CFR parts 140-147), the Coast Guard regulates OCS facilities, vessels, and other units engaged in OCS activities (collectively, “OCS units”) on the U.S. OCS. See 33 CFR 140.3. The U.S. OCS includes “all submerged lands lying seaward and outside of the area of `lands beneath navigable waters' as defined in section 2(a) of the Submerged Lands Act (43 U.S.C. 1301(a)) and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” 33 CFR 140.10. OCS activity is defined as “any offshore activity associated with exploration for, or development or production of, the minerals of the Outer Continental Shelf.” 33 CFR 140.10. Subchapter N applies to offshore activity conducted by U.S.- or foreign-flag OCS units. 1

Under 33 CFR 146.30, the owner, operator, and person in charge of an OCS facility (other than a mobile offshore drilling unit (MODU), see 33 CFR 146.1) must report to the Coast Guard as soon as possible any casualties involving death, injury to five or more persons in a single incident, incapacitation of any person for more than 72 hours, damage to primary lifesaving or firefighting equipment, and certain other property damage in excess of $25,000. Under 33 CFR 146.35, the initial notice of casualty report required in § 146.30 must be followed up in writing with, among other information, a description of the factors that may have contributed to the casualty, including any “alcohol or drug involvement as specified in the vessel casualty reporting requirements of 46 CFR 4.05-12.” 33 CFR 146.35(a)(7).

Under 33 CFR 146.303, the owner, operator, or person in charge of a vessel  2 (including a MODU) engaged in OCS activities must report to the Coast Guard as soon as possible casualties involving death, injury to five or more persons in a single incident, or the incapacitation of any person for more than 72 hours.

The Coast Guard also has existing marine casualty reporting regulations in 46 CFR part 4. Part 4 applies to any marine casualty that “occurs upon the navigable waters of the United States, its territories or possessions” or that involves “any United States vessel wherever such casualty or accident occurs.” 46 CFR 4.03-1(a). Generally, the navigable waters of the United States cover the U.S. territorial seas and internal waters, and not the waters of the U.S. OCS. 33 CFR 2.36(a). 3 Thus, part 4 applies to U.S.-flag OCS vessels, but, in general, does not apply to foreign-flag OCS vessels operating on the U.S. OCS. 4 Nor does part 4 apply to OCS facilities or other OCS units.

Under 46 CFR 4.05-1, “immediately after the addressing of resultant safety concerns,” a vessel's “owner, agent, master, operator, or person in charge” must report to the Coast Guard most casualties involving grounding, allision, loss of propulsion or vessel maneuverability, impacts to vessel seaworthiness or fitness for service or route, loss of life, injury requiring professional medical treatment, property damage in excess of $25,000, or “significant harm to the environment” as defined in 46 CFR 4.03-65. The initial report under § 4.05-1 must be followed within 5 days by a written report that must discuss any alcohol or drug involvement. See 46 CFR 4.05-10(a), 4.05-12(a).

Table 1 highlights the relative Coast Guard marine casualty reporting requirements of 33 CFR part 146 and 46 CFR part 4. (Please note that the Department of the Interior's Bureau of Safety and Environmental Enforcement (BSEE) also requires OCS lessees and right-of-way holders to report incidents addressed in BSEE regulations at 30 CFR 250.188. The BSEE's regulations cover only those OCS units that are permanently or semi-permanently attached to the seabed or subsoil of the OCS, not vessels. The Coast Guard and the BSEE work together to ensure that duplicative reporting is not required.)

The effective formulation of Coast Guard policy to maintain a safe working environment on the U.S. OCS requires collecting and analyzing casualty data. However, our data collection is compromised because, today, there is a disparity between the general marine casualty reporting provisions of 46 CFR part 4 and the casualty reporting provisions of 33 CFR part 146, which apply only to OCS activities. Currently, foreign-flag OCS units must report casualties only under 33 CFR part 146, whereas U.S.-flag OCS units are subject to 33 CFR part 146 and also to the broader reporting requirements of 46 CFR part 4. We are concerned that some marine casualties on the U.S. OCS go unreported because, at present, much of the OCS activity on the U.S. OCS is conducted by foreign-flag OCS units.

To illustrate the difference in how U.S.- and foreign-flag OCS units are required to report casualties, consider dynamic positioning (DP) systems. OCS vessels increasingly use DP which, through the use of global positioning systems, operates vessel thrusters, steering, and main propulsion to keep the unit, albeit still underway, in a desired location, unanchored, while it engages in OCS activity. If a U.S.-flag OCS vessel loses its primary and backup DP capability so that it can no longer maintain its location, the loss is a reportable marine casualty because it reduces the vessel's maneuverability. See 46 CFR 4.05-1(a)(3). 5 However, the same incident on a foreign-flag OCS vessel is not reportable under 33 CFR 146.303 unless it results in death, multiple injuries, or an individual's lengthy incapacitation. This disparity between the reporting requirements of 33 CFR part 146 and 46 CFR part 4 prevents the Coast Guard from collecting data on many incidents that have significant safety implications for the U.S. OCS environment and the lives of U.S. citizens and resident aliens working there.

In April 2010, explosions on the Deepwater Horizon, a foreign-flag MODU, in Gulf of Mexico-U.S. OCS waters led to fire, the sinking of the MODU, 11 deaths, and the largest oil spill in U.S. history. In 2008, the Deepwater Horizon had two separate incidents involving flooding and total loss of power that a U.S.-flag MODU would have been required to report under 46 CFR 4.05-1, but which, under 33 CFR 146.303, did not constitute reportable marine casualties and were not investigated by the MODU's flag state or by the Coast Guard. Following the 2010 incident, Coast Guard investigators concluded that the casualty reporting requirements for foreign-flag OCS units found in 33 CFR part 146 were “insufficient,” and that, had the 2008 incidents been investigated, important contributing factors in the 2010 disaster could have been brought to light and remedied. The investigators recommended that the Coast Guard “revise the current marine casualty reporting requirements and drug testing requirements for foreign-flag MODUs operating on the OCS and make them consistent with the requirements for U.S.-flag MODUs.”  6

We do not suggest that the proposed rule by itself would have prevented the Deepwater Horizon disaster, but the proposed rule is in line with the investigators' recommendation. It would also place all OCS units, whether U.S flag. or foreign flag, on the same regulatory footing with respect to casualty reporting, thereby increasing the likelihood that we will have more complete casualty data for incidents occurring on the U.S. OCS.

We propose the following regulatory amendments.

In 33 CFR, proposed § 140.50 would effectively transfer marine casualty reporting requirements for OCS units from 33 CFR subchapter N to 46 CFR part 4. Section 140.50 would also refer regulated parties to other Coast Guard regulations that must be followed in the event an incident occurs that involves a “commercial diving operation,” a “hazardous condition,” or an “occurrence which poses an imminent threat of oil pollution.” We propose removing existing 33 CFR 146.30, 146.35, 146.40, 146.45, 146.301, and 146.303, all of which address marine casualties and accidents.

We propose amending 46 CFR 4.01-1 to state that, in general and with respect to the OCS, part 4 applies to all OCS units, not just OCS vessels.

In 46 CFR 4.03-1, we propose deleting the introductory language and modifying the existing language of paragraph (a) and the introductory language of paragraph of (b), for greater clarity, but without substantive change. We also propose adding a new paragraph (a)(3) so that the term “marine casualty or accident” specifically includes casualties or accidents involving OCS units engaged in OCS activities.

We propose adding 46 CFR 4.03-8 to define “OCS unit” as it is defined in 33 CFR 140.10, modified only to reflect the definitions of “OCS activity” and “OCS facility” found in § 140.10. Because 46 CFR part 4 currently lacks a general definition for “vessel,” we propose adding new 46 CFR 4.03-9 to define “vessel” as it is defined in 1 U.S.C. 3 and 46 U.S.C. 2101 and to explain that, for the purposes of part 4, “vessel” includes OCS units unless regulatory text specifically excludes them.

We propose adding 46 CFR 4.05-1(a)(9)-(a)(11) to require notice in the event of any marine casualty listed in 46 CFR 4.03-1(a). As we propose in 33 CFR 140.50, we would also refer regulated parties to other Coast Guard regulations that must be followed in the event an incident occurs that involves a “commercial diving operation,” a “hazardous condition,” or an “occurrence which poses an imminent threat of oil pollution.”

Finally, we propose amending 46 CFR 109.411 so that MODUs, like other OCS units, would be subject to the marine casualty and accident provisions of 46 CFR part 4, except insofar as existing 46 CFR 109.415 provides MODU-specific record retention requirements in the event of a casualty.

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

Executive Orders 13563 (“Improving Regulation and Regulatory Review”) and 12866 (“Regulatory Planning and Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget (OMB) has not reviewed it under that Order. Nonetheless, we developed an analysis of the costs and benefits of the proposed rule to ascertain its probable impacts on industry. We consider all estimates and analysis in this Regulatory Analysis to be preliminary and subject to change in consideration of public comments. A preliminary regulatory assessment follows:

The proposed rule would amend current Coast Guard regulations under which foreign-flag OCS units are subject only to the relatively limited marine casualty reporting requirements of 33 CFR subchapter N, while U.S.-flag OCS units are subject to the broader reporting requirements of 46 CFR part 4. The proposed amendments would place both U.S.- and foreign-flag OCS units under the 46 CFR part 4 reporting requirements.

A breakdown of the affected population appears below.

All of the units affected by this proposed rule are foreign-flag. No U.S.-flag OCS units are affected by this proposed rule because they are currently covered by these requirements.

The proposed rule would require owners, operators, masters, or persons in charge of foreign-flag OCS units and U.S. OCS units, engaged in OCS activities, to provide timely notification by telephone or radio, or via third party, and complete the associated marine casualty reporting forms: Form CG-2692 and, as appropriate, Forms CG-2692A (Barge Addendum) and CG-2692B (Report of Required Chemical Drug and Alcohol Testing Following a Serious Marine Incident). The instructions on Form CG-2692 currently state that vessels need to report, “A. All accidental groundings and any intentional grounding which also meets any of the other reporting criteria or creates a hazard to navigation, the environment, or the safety of the vessel; B. Loss of main propulsion or primary steering, or an associated component or control system, the loss of which causes a reduction of the maneuvering capabilities of the vessel. Loss means that systems, component parts, subsystems, or control systems do not perform the specified or required function; C. An occurrence materially and adversely affecting the vessel's seaworthiness or fitness for service or route including but not limited to fire, flooding, failure or damage to fixed fire extinguishing systems, lifesaving equipment or bilge pumping systems; D. Loss of life; E. An injury that requires professional medical treatment (beyond first aid) and, if a crewmember on a commercial vessel, that renders the individual unfit to perform routine duties; F. An occurrence not meeting any of the above criteria but resulting in damage to property in excess of $25,000. Damage cost includes the cost of labor and material to restore the property to the condition which existed prior to the casualty, but it does not include the cost of salvage, cleaning, gas freeing, drydocking or demurrage.” The instructions also state for MODUs, “3. MODUs are vessels and are required to report an accident that results in any of the events listed by Instruction 2-A through 2-F for vessels.” The instructions continue for OCS facilities: “4. All OCS facilities (except mobile offshore drilling units) engaged in mineral exploration, development or production activities on the Outer Continental Shelf of the U.S. are required by 33 CFR 146.30 to report accidents resulting in: A. Death; B. Injury to 5 or more persons in a single incident; C. Injury causing any person to be incapacitated for more than 72 hours; D. Damage affecting the usefulness of primary lifesaving or fire fighting equipment; E. Damage to the facility in excess of $25,000 resulting from a collision by a vessel; F. Damage to a floating OCS facility in excess of $25,000. 5. Foreign vessels engaged in mineral exploration, development or production on the U.S. Outer Continental Shelf, other than vessels already required to report by Instructions 2 and 3 above, are required by 33 CFR 146.303 to report casualties that result in any of the following: A. Death; B. Injury to 5 or more persons in a single incident; C. Injury causing any person to be incapacitated for more than 72 hours.” Finally, Form CG-2692 has instructions for foreign vessels, “5. Foreign vessels engaged in mineral exploration, development or production on the U.S. Outer Continental Shelf, other than vessels already required to report by Instructions 2 and 3 above, are required by 33 CFR 146.303 to report casualties that result in any of the following: A. Death; B. Injury to 5 or more persons in a single incident; C. Injury causing any person to be incapacitated for more than 72 hours.”

Under this proposed rule, Form CG-2692 would require both U.S.-flag and foreign-flag OCS units to report casualties beyond those required by existing regulatory requirements, which at present are limited to the relatively narrow casualty reporting requirements of 33 CFR part 146, instead of the broader reporting requirements of 46 CFR part 4 that apply to U.S.-flag OCS units. This NPRM proposes extending the 46 CFR part 4 requirements to foreign-flag OCS units. All U.S.-flag OCS vessels already comply with these requirements. The Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) database contains 45 casualty incident reports from foreign-flag OCS units in 1 year, demonstrating some level of current compliance with the proposed requirements. However, experience with the Deepwater Horizon MODU in 2008 (before the 2010 casualty resulting in the loss of that MODU) indicates that not all foreign-flag OCS units are voluntarily reporting casualties. The proposed requirements are expected to result in a greater level of reporting by owners, operators, masters, or persons in charge of foreign-flag OCS units.

To estimate the greater level of reporting and associated costs that would be expected by owners, operators, masters, or persons in charge of foreign-flag OCS units under the proposed rule, we compared the relative number of reports from foreign-flag OCS units under other requirements to the number of reports from U.S.-flag OCS units. We extrapolated the ratio of reporting between U.S.- and foreign-flag MODUs under current regulations to project the level of additional reporting for foreign-flag MODUs under the proposal. We collected data from MISLE for all Forms CG-2692 received by the Coast Guard in 1 year. We have 391 forms reported by foreign-flag MODUs and 239 forms reported by U.S.-flag MODUs. Foreign-flag OCS units reported 346 incidents that are required to be reported by current regulations, and 45 reports for incidents voluntarily reported that would be required under the proposed rule. U.S.-flag OCS units reported 239 incidents, with 199 incidents of the same category as the 346 reported by foreign-flag OCS units, and 40 incidents of the same category as the 45 voluntary reports by foreign-flag OCS units. The foreign-flag OCS units reported approximately 63 percent of the current required reports (63 percent = [346/(346 + 199) × 100]). If we assume the ratio would remain the same for reports of incidents that would be required in the proposed regulation, foreign-flag OCS units would report approximately 70 incidents per year (70 = 40 × 346/199), or 25 more than the 45 per year currently being reported voluntarily. 11

We assume the industry time needed to complete Form CG-2692 is 1 hour, based on ICR 1625-0001. Form CG-2692 is a machine-writable PDF form that can be transmitted by email, fax, or letter. The Coast Guard estimates that the cost to complete Form CG-2692 is $27. 12

At a unit cost of $27, the 1-year industry cost for this proposed rule is $675 (= $27 × 25). The 10-year undiscounted industry cost is $6,750. The 10-year discounted industry cost is approximately $5,758 at a 3-percent discount rate, and $4,741 at a 7-percent discount rate.

We estimate that the government will incur costs to process these reports. We estimate that the average hourly wage rate is $42 dollars. 13 We estimate that the time to process the report is 1 hour. The 1-year cost for the government is approximately $1,050 (= $42 per hour × 1 hour × 25 reports). The 10-year undiscounted government cost is approximately $10,500. The 10-year discounted government cost is approximately $8,957 at a 3-percent discount rate, and $7,375 at a 7-percent discount rate.

The total private sector and government 10-year undiscounted cost for the proposed rule is approximately $17,250. Annualized costs (private sector and government) are approximately $1,725 at both 3- and 7-percent discount rates.

The requirements for chemical testing following a serious marine incident (as defined in 46 CFR 4.03-2) would be extended to foreign-flag OCS units engaged in OCS activities. The Coast Guard has identified two serious marine incidents in 2010, seven in 2011, and two in 2012 involving foreign-flag OCS units engaged in OCS activities. We do not expect that serious marine incidents, because of their nature, go unreported by owners, operators, masters, or persons in charge of foreign-flag OCS units. After each of these incidents, the owner, operator, master, or person in charge voluntarily submitted the required chemical testing of the involved crew members to the Coast Guard. We know that foreign-flag OCS units engaged in OCS activities currently report serious marine incidents and conduct post-incident chemical tests, and we expect that behavior to continue. Therefore, the Coast Guard estimates that industry would not incur additional costs to comply with the chemical testing provisions of this proposed rule.

The proposed rule addresses the Coast Guard's concern that incidents involving foreign-flag OCS units are underreported. These incidents may not be “serious marine incidents” as defined in 46 CFR 4.03-2; nevertheless, it may be important for the Coast Guard to be aware of them. After the 2010 Deepwater Horizon incident—a serious marine incident in which 11 persons died and which resulted in an oil spill of national significance—the Coast Guard discovered that the Deepwater Horizon had two prior marine casualties in 2008, neither of which were “serious marine incidents” but which nevertheless pointed to problems with the Deepwater Horizon's safety and ability to respond to safety incidents. These two prior casualities in 2008 were not reported to the Coast Guard. This proposed rule would extend the marine casualty reporting requirements of 46 CFR part 4 to foreign-flag OCS units that currently are subject only to the relatively limited reporting requirements of 33 CFR part 146, essentially aligning the regulations with the current instructions of associated Forms CG-2692, CG-2692A and CG-2692B. The benefits of compliance would be improved maritime domain awareness. We have long recognized that provision of adequate maritime safety, security, and environmental protection requires timely reporting of casualties to provide the Coast Guard and other stakeholders with information needed to plan contingencies, evaluate risk, conduct trend analysis, and provide timely information.

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

The proposed rule would not impact any U.S. entities. We estimate that 25 foreign-flag OCS units could incur an annual cost of $27. For these annual costs to have a significant economic impact on these entities, the foreign-flag OCS units would need to have annual revenues less than $2,700 per year.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule, if promulgated, will not have a significant economic impact on a substantial number of small entities.

We are interested in the potential impacts from this proposed rule on small businesses and we request public comment on these potential impacts. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment to the Docket Management Facility at the address under ADDRESSES . In your comment, explain why, how, and to what degree you think this proposed rule would have an economic impact on you.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its potential effects on them, if any, and participate in the rulemaking. If you believe this proposed rule would affect your small business, organization, or governmental jurisdiction, and you have questions concerning its provisions or options for compliance, please submit a comment to the Docket Management Facility at the address under ADDRESSES . The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard. Small businesses may also send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This proposed rule would call for no new collection of information (COI) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) but would increase the number of affected facilities and the burden for an existing COI number 1625-0001, as described below.

Title: Marine Casualty Information & Periodic Chemical Drug and Alcohol Testing of Commercial Vessel Personnel

OMB Control Number: 1625-0001

Summary of the Collection of Information:

This proposed rule would require responses such as the preparation of written notification in the form of a CG-2692, Report of Marine Accident, Injury, or Death, and the maintenance of records. The collection of information would aid the regulated public in assuring safe practices.

Need for Information: We need this information to determine whether an entity is meeting the regulatory requirements.

Proposed Use of Information: We would use this information to capture data on casualties that occur on the U.S. OCS.

Description of the Respondents: The respondents are owners and operators of foreign-flag units engaged in OCS activities.

Number of Respondents: This collection of information applies to owners and operators of foreign-flag units engaged in OCS activities. We estimate the maximum number of respondents affected by this proposed rule to be 25 per year.

Frequency of Response: The development of the notification is only required if a marine casualty occurs as defined in these parts.

Burden of Response: We estimate that the development of the notification would take a given owner/operator 1 hour to complete the CG-2692.

Estimate of Total Annual Burden: We estimate the number of responses would increase by 25 per year. Therefore, the proposed rule would increase the annual burden by 25 hours.

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), we will submit a copy of this proposed rule to the Office of Management and Budget (OMB) for its review of the collection of information.

We ask for public comment on the proposed collection of information to help us determine how useful the information is; whether it can help us perform our functions better; whether it is readily available elsewhere; how accurate our estimate of the burden of collection is; how valid our methods for determining burden are; how we can improve the quality, usefulness, and clarity of the information; and how we can minimize the burden of collection.

If you submit comments on the collection of information, submit them both to OMB and to the Docket Management Facility where indicated under ADDRESSES , by the date under DATES .

You need not respond to a collection of information unless it displays a currently valid control number from OMB. Before the Coast Guard could enforce the collection of information requirements in this proposed rule, OMB would need to approve the Coast Guard's request to collect this information.

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

Congress specifically granted the authority to regulate artificial islands, installations, and other devices permanently or temporarily attached to the Outer Continental Shelf (OCS) and in the waters adjacent thereto as it relates to the safety of life to the Secretary of the Department in which the Coast Guard is operating. 43 U.S.C. 1333(d)(1) states that the Secretary “shall have the authority to promulgate and enforce such reasonable regulations with respect to lights and other warning devices, safety equipment, and other matters relating to the promotion of safety of life and property on the artificial islands, installations, and other devices . . . as he may deem necessary.” As this proposed rule would improve the Coast Guard's ability to collect and analyze casualty data for incidents on the OCS in order to maintain and improve safety of life on OCS installations, it falls within the scope of authority Congress granted exclusively to the Secretary. This authority has been delegated to the Coast Guard and is exercised in this rulemaking, and the States may not regulate within this category of marine casualty reporting. Therefore, the rule is consistent with the principles of federalism and preemption requirements in Executive Order 13132.

While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process.

Therefore, the Coast Guard invites State and local governments and their representative national organizations to indicate their desire for participation and consultation in this rulemaking process by submitting comments to this NPRM. In accordance with Executive Order 13132, the Coast Guard will provide a federalism impact statement to document: (1) The extent of the Coast Guard's consultation with State and local officials who submit comments to this proposed rule; (2) a summary of the nature of any concerns raised by State or local governments and the Coast Guard's position thereon; and (3) a statement of the extent to which the concerns of State and local officials have been met. We will also report to the Office of Management and Budget any written communications with the States.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any 1 year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

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

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

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

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under the “Public Participation and Request for Comments” section of this preamble. This rule is likely to be categorically excluded under section 2.B.2, figure 2-1, paragraphs (34)(a) and (d) of the Instruction. This proposed rule involves regulations which are editorial and regulations concerning documentation and equipping of vessels. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR parts 140 and 146 and 46 CFR parts 4 and 109 as follows:

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

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

To submit your comment online, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this document. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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

We plan to hold two public meetings. The first meeting will be on January 22, 2014 at noon at Port Authority Guam, 1026 Cabras Highway, Piti, Guam. The second meeting will be on January 22, 2014 at 6 p.m. at Port Authority Guam, 1026 Cabras Highway, Piti, Guam. We plan to post the minutes and a written summary of the meeting, including all comments made at the meeting, in the docket. For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact the person named in the FOR FURTHER INFORMATION CONTACT section, above.

Navigational regulations of Apra Harbor have been in place in various forms dating back to the era of U.S. Navy administration of Guam. Some of the regulations predate the promulgation of the Ports and Waterways Safety Act of 1972, were initially included in 33 CFR Parts 127 and 128, and subsequently re-codified in 33 CFR Part 165 on July 8, 1982 as part of a regulatory reorganization effort. The regulations in part 165 were subsequently amended in 1986, 1990, 1996, 1998 and 2003. Between 1972 and 2003 four Regulated Navigation Areas, three Security Zones and two Safety Zones were created and/or amended. One of the Security Zones was subsequently deleted, another changed to a Safety Zone, and an additional safety zone created.

Apra Harbor safety zones regulations in 33 CFR 165.1401 were last amended in 1990 (55 FR 18725, May 4, 1990). These zones were established as security zones in 1972 (37 FR 10800, 31 May 1972); amended in 1975 (40 FR 1016, Jan. 6, 1975); codified in 33 CFR 127.1401 (a) and (b) in 1982 as part of a regulatory reorganization effort (47 FR 29569, 29667, July 8, 1982); and were subsequently disestablished and re-established as safety zones in 1990 (55 FR 18725, May 4, 1990).

Apra Outer Harbor regulated navigation area regulations in 33 CFR 165.1402 were established by 33 CFR part 165 (47 FR 29660, July 8, 1982), and amended in 1996, and subsequently again in 1998 (63 FR 35533, June 30, 1998).

Apra Outer Harbor regulated navigation area regulations in 33 CFR 165.1404 were first established in 33 CFR part 128 in 1972 (37 FR 10800, May 31, 1972). They were moved to 33 CFR part 165 in 1982 (47 FR 29569, July 8, 1982), and amended in 1996 (61 FR 33660, June 28, 1996; and subsequently in 1998 (63 FR 35524, June 30, 1998].

Apra Harbor Security Zone C in 33 CFR 165.1404 was promulgated in 1990 (55 FR 18724, May 4, 1990).

Regulated Navigation Areas and Security Zones regulations in 33 CFR 165.1405 regarding; Designated Escorted Vessels-Philippine Sea and Apra Harbor Guam (including Cabras Island Channel) were established in 2003 (68 FR 4383, Jan. 29, 2003).

The legal basis for this rulemaking is the Coast Guard's authority to establish regulated navigation areas and other limited access areas: 33 U.S.C 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-6,160.5; Pub L. 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1.

Currently there are four Regulated Navigation Areas (RNA), one Security Zone and two Safety Zones within and approaching Apra Harbor. These regulations, included in 33 CFR 165.1401, 165.1402, 165.1404 and 165.1405, while intended to improve the safety and security of Apra Harbor and the mariners operating therein, are potentially confusing, overlapping, and do not adequately address current needs. The purpose of this ANPRM is to solicit comments on how to revise and simplify the current rules, taking into account relevant safety and security navigational requirements for the waters of Apra Harbor (including approaches). This proposed rulemaking will create a regulatory scheme that ensures the needs of all stakeholders are addressed in a concise, understandable format.

As noted, the regulatory scheme in Apra Harbor does not meet current needs. A thorough review and consolidation of the Regulated Navigation Areas and Limited Access Areas (Safety or Security Zones) will simplify harbor transit communication, lessen confusion regarding harbor transit requirements, and address current safety and security concerns of all stakeholders.

A Regulated Navigation Area is a water area within a defined boundary for which regulations for vessels navigating within the area have been established. See 33 CFR 165.10.

A Safety Zone is a water area, shore area, or water and shore area to which, for safety or environmental purposes, access is limited to authorized persons, vehicles, or vessels. It may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. See 33 CFR 165.20.

A Security Zone is an area of land, water, or land and water which is so designated by the Captain of the Port or District Commander for such time as necessary to prevent damage or injury to any vessel or waterfront facility, to safeguard ports, harbors, territories, or waters of the United States or to secure the observance of the rights and obligations of the United States. See 33 CFR 165.30.

The Coast Guard is considering:

• Consolidating the existing four RNAs, (33 CFR 165.1405(a)(1), (a)(2), (a)(4) and 165.1402(a)), into one Regulated Navigational Area that addresses the waters of the Apra Harbor Channel entrance and all waters of the Apra Harbor outer harbor.

• Expanding the radius of the existing Kilo Wharf Safety Zone (33 CFR 165.1401(b)) into a series of two or three safety zone radius options based upon the volume and type of cargo transferred at Kilo Wharf, thereby optimizing harbor operations viability and personal safety.

• Removing Hotel Wharf Safety Zones A and B (33 CFR 165.1405.1(a) and (b)) due to obsolescence.

• Retaining Security Zone C, Buoy 702 (33 CFR 165.1404). This zone surrounds a permanent mooring buoy reserved for specific vessels.

Public participation is requested to assist in determining the optimal way forward. The Coast Guard is seeking to identify what problems mariners and the public are experiencing with the current regulatory scheme, including but not limited to: The impacts of existing safety and security zones; suggestions for regulatory amendment to improve navigation while assuring safety concerns are adequately addressed; and potential impacts if the Kilo Wharf Safety Zone is amended to include a flexible expansion capability during periods of increased munitions cargo volume operations. The Coast Guard also seeks to determine the viability of alternative vessel transit and cargo operations methodologies (e.g., night vs. daylight cargo transfers, or alteration of charter operator schedules or locations).

Again, the Coast Guard seeks input for aid in developing a proposed rule. Please submit any comments or concerns you may have in accordance with the “submitting comments” section above.

This document is issued under the authority of 5 U.S.C. 552(a); 33 CFR 1.05-1, and 1.05-30.

Under Title VIII of the Alaska National Interest Lands Conservation Act (ANILCA) (16 U.S.C. 3111-3126), the Secretary of the Interior and the Secretary of Agriculture (Secretaries) jointly implement the Federal Subsistence Management Program. This program provides a preference for take of fish and wildlife resources for subsistence uses on Federal public lands and waters in Alaska. The Secretaries published temporary regulations to carry out this program in the Federal Register on June 29, 1990 (55 FR 27114), and final regulations were published in the Federal Register on May 29, 1992 (57 FR 22940). The Program has subsequently amended these regulations a number of times. Because this program is a joint effort between Interior and Agriculture, these regulations are located in two titles of the Code of Federal Regulations (CFR): Title 36, “Parks, Forests, and Public Property,” and Title 50, “Wildlife and Fisheries,” at 36 CFR 242.1-28 and 50 CFR 100.1-28, respectively. The regulations contain subparts as follows: Subpart A, General Provisions; Subpart B, Program Structure; Subpart C, Board Determinations; and Subpart D, Subsistence Taking of Fish and Wildlife.

Consistent with subpart B of these regulations, the Secretaries established a Federal Subsistence Board to administer the Federal Subsistence Management Program. The Board comprises:

• A Chair appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture;

• The Alaska Regional Director, U.S. Fish and Wildlife Service;

• The Alaska Regional Director, U.S. National Park Service;

• The Alaska State Director, U.S. Bureau of Land Management;

• The Alaska Regional Director, U.S. Bureau of Indian Affairs;

• The Alaska Regional Forester, U.S. Forest Service; and

• Two public members appointed by the Secretary of the Interior with concurrence of the Secretary of Agriculture.

Through the Board, these agencies and public members participate in the development of regulations for subparts C and D, which, among other things, set forth program eligibility and specific harvest seasons and limits.

In administering the program, the Secretaries divided Alaska into 10 subsistence resource regions, each of which is represented by a Regional Advisory Council. The Regional Advisory Councils provide a forum for rural residents with personal knowledge of local conditions and resource requirements to have a meaningful role in the subsistence management of fish and wildlife on Federal public lands in Alaska. The Regional Advisory Council members represent varied geographical, cultural, and user interests within each region.

The Federal Subsistence Regional Advisory Councils have a substantial role in reviewing this proposed rule and making recommendations for the final rule. The Federal Subsistence Board, through the Federal Subsistence Regional Advisory Councils, will hold public meetings on this proposed rule at the following locations in Alaska, on the following dates:

During April 2014, the written proposals to change the subpart D, take of fish and shellfish, regulations and subpart C, customary and traditional use, determinations, will be compiled and distributed for public review. During the 30-day public comment period, which is presently scheduled to end on May 23, 2014, written public comments will be accepted on the distributed proposals.

The Board, through the Regional Advisory Councils, will hold a second series of public meetings in August through October 2014, to receive comments on specific proposals and to develop recommendations to the Board at the following locations in Alaska, on the following dates:

A notice will be published of specific dates, times, and meeting locations in local and statewide newspapers prior to both series of meetings. Locations and dates may change based on weather or local circumstances. The amount of work on each Regional Advisory Council's agenda determines the length of each Regional Advisory Council meeting.

The Board will discuss and evaluate proposed changes to the subsistence management regulations during a public meeting scheduled to be held in Anchorage, Alaska, in January 2015. The Federal Subsistence Regional Advisory Council Chairs, or their designated representatives, will present their respective Councils' recommendations at the Board meeting. Additional oral testimony may be provided on specific proposals before the Board at that time. At that public meeting, the Board will deliberate and take final action on proposals received that request changes to this proposed rule.

Proposals to the Board to modify the general fish and wildlife regulations, fish and shellfish harvest regulations, and customary and traditional use determinations must include the following information:

a. Name, address, and telephone number of the requestor;

b. Each section and/or paragraph designation in this proposed rule for which changes are suggested, if applicable;

c. A description of the regulatory change(s) desired;

d. A statement explaining why each change is necessary;

e. Proposed wording changes; and

f. Any additional information that you believe will help the Board in evaluating the proposed change.

The Board immediately rejects proposals that fail to include the above information, or proposals that are beyond the scope of authorities in § ___.24, subpart C (the regulations governing customary and traditional use determinations), and §§ ___.25, ___.27, and ___.28, subpart D (the general and specific regulations governing the subsistence take of fish and shellfish). If a proposal needs clarification, prior to being distributed for public review, the proponent may be contacted, and the proposal could be revised based on their input. Once distributed for public review, no additional changes may be made as part of the original submission. During the January 2015 meeting, the Board may defer review and action on some proposals to allow time for cooperative planning efforts, or to acquire additional needed information. The Board may elect to defer taking action on any given proposal if the workload of staff, Regional Advisory Councils, or the Board becomes excessive. These deferrals may be based on recommendations by the affected Regional Advisory Council(s) or staff members, or on the basis of the Board's intention to do least harm to the subsistence user and the resource involved. A proponent of a proposal may withdraw the proposal provided it has not been considered, and a recommendation has not been made, by a Regional Advisory Council. The Board may consider and act on alternatives that address the intent of a proposal while differing in approach.

As expressed in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” the Federal officials that have been delegated authority by the Secretaries are committed to honoring the unique government-to-government political relationship that exists between the Federal Government and Federally Recognized Indian Tribes (Tribes) as listed in 75 FR 60810 (October 1, 2010). Consultation with Alaska Native corporations is based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.”

The Alaska National Interest Lands Conservation Act does not provide specific rights to Tribes for the subsistence taking of wildlife, fish, and shellfish. However, because tribal members are affected by subsistence fishing, hunting, and trapping regulations, the Secretaries, through the Board, will provide Federally recognized Tribes and Alaska Native corporations an opportunity to consult on this proposed rule.

The Board will engage in outreach efforts for this proposed rule, including a notification letter, to ensure that Tribes and Alaska Native corporations are advised of the mechanisms by which they can participate. The Board provides a variety of opportunities for consultation: Proposing changes to the existing rule; commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process. The Board will commit to efficiently and adequately providing an opportunity to Tribes and Alaska Native corporations for consultation in regard to subsistence rulemaking.

The Board will consider Tribes' and Alaska Native corporations' information, input, and recommendations, and address their concerns as much as practicable.

Subpart C and D regulations are subject to periodic review and revision. The Board currently completes the process of revising subsistence take of fish and shellfish regulations in odd-numbered years and wildlife regulations in even-numbered years; public proposal and review processes take place during the preceding year. The Board also addresses customary and traditional use determinations during the applicable cycle.

The text of three final rules form the text of this proposed rule for the 2013-15 subparts C and D regulations:

The text of the proposed amendments to 36 CFR 242.24 and 242.25 and 50 CFR 100.24 and 100.25 is the final rule for the 2012-2014 regulatory period for wildlife (77 FR 35482; June 13, 2012).

The text of the proposed amendments to 36 CFR 242.27 and 50 CFR 100.27 is the final rule for the 2013-15 regulatory period for fish and shellfish (78 FR 19107; March 29, 2013).

The text of the proposed amendments to 36 CFR 242.28 and 50 CFR 100.28 is the final rule for the 2011-13 regulatory period for fish and shellfish (76 FR 12564; March 8, 2011).

These regulations will remain in effect until subsequent Board action changes elements as a result of the public review process outlined above in this document.

A Draft Environmental Impact Statement that described four alternatives for developing a Federal Subsistence Management Program was distributed for public comment on October 7, 1991. The Final Environmental Impact Statement (FEIS) was published on February 28, 1992. The Record of Decision (ROD) on Subsistence Management for Federal Public Lands in Alaska was signed April 6, 1992. The selected alternative in the FEIS (Alternative IV) defined the administrative framework of an annual regulatory cycle for subsistence regulations.

A 1997 environmental assessment dealt with the expansion of Federal jurisdiction over fisheries and is available at the office listed under FOR FURTHER INFORMATION CONTACT . The Secretary of the Interior, with concurrence of the Secretary of Agriculture, determined that expansion of Federal jurisdiction does not constitute a major Federal action significantly affecting the human environment and, therefore, signed a Finding of No Significant Impact.

An ANILCA § 810 analysis was completed as part of the FEIS process on the Federal Subsistence Management Program. The intent of all Federal subsistence regulations is to accord subsistence uses of fish and wildlife on public lands a priority over the taking of fish and wildlife on such lands for other purposes, unless restriction is necessary to conserve healthy fish and wildlife populations. The final § 810 analysis determination appeared in the April 6, 1992, ROD and concluded that the Federal Subsistence Management Program, under Alternative IV with an annual process for setting subsistence regulations, may have some local impacts on subsistence uses, but will not likely restrict subsistence uses significantly.

During the subsequent environmental assessment process for extending fisheries jurisdiction, an evaluation of the effects of this rule was conducted in accordance with § 810. That evaluation also supported the Secretaries' determination that the rule will not reach the “may significantly restrict” threshold that would require notice and hearings under ANILCA § 810(a).

An agency may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. This proposed rule does not contain any new collections of information that require OMB approval. OMB has reviewed and approved the collections of information associated with the subsistence regulations at 36 CFR 242 and 50 CFR 100, and assigned OMB Control Number 1018-0075, which expires February 29, 2016.

The Office of Management and Budget (OMB) has determined that this proposed rule is not significant and has not reviewed this rule under Executive Order 12866. OMB bases its determination upon the following four criteria:

(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government.

(b) Whether the rule will create inconsistencies with other agencies' actions.

(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients.

(d) Whether the rule raises novel legal or policy issues.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires preparation of flexibility analyses for rules that will have a significant effect on a substantial number of small entities, which include small businesses, organizations, or governmental jurisdictions. In general, the resources to be harvested under this rule are already being harvested and consumed by the local harvester and do not result in an additional dollar benefit to the economy. However, we estimate that two million pounds of meat are harvested by subsistence users annually and, if given an estimated dollar value of $3.00 per pound, this amount would equate to about $6 million in food value statewide. Based upon the amounts and values cited above, the Departments certify that this rulemaking will not have a significant economic effect on a substantial number of small entities within the meaning of the Regulatory Flexibility Act.

Under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et seq.), this rule is not a major rule. It does not have an effect on the economy of $100 million or more, will not cause a major increase in costs or prices for consumers, and does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

Title VIII of ANILCA requires the Secretaries to administer a subsistence priority on public lands. The scope of this program is limited by definition to certain public lands. Likewise, these regulations have no potential takings of private property implications as defined by Executive Order 12630.

The Secretaries have determined and certify pursuant to the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State governments or private entities. The implementation of this rule is by Federal agencies and there is no cost imposed on any State or local entities or tribal governments.

The Secretaries have determined that these regulations meet the applicable standards provided in §§ 3(a) and 3(b)(2) of Executive Order 12988, regarding civil justice reform.

In accordance with Executive Order 13132, the proposed rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Assessment. Title VIII of ANILCA precludes the State from exercising subsistence management authority over fish and wildlife resources on Federal lands unless it meets certain requirements.

The Alaska National Interest Lands Conservation Act, Title VIII, does not provide specific rights to tribes for the subsistence taking of wildlife, fish, and shellfish. However, the Secretaries, through the Board, will provide Federally recognized Tribes and Alaska Native corporations an opportunity to consult on this proposed rule. Consultation with Alaska Native corporations are based on Public Law 108-199, div. H, Sec. 161, Jan. 23, 2004, 118 Stat. 452, as amended by Public Law 108-447, div. H, title V, Sec. 518, Dec. 8, 2004, 118 Stat. 3267, which provides that: “The Director of the Office of Management and Budget and all Federal agencies shall hereafter consult with Alaska Native corporations on the same basis as Indian tribes under Executive Order No. 13175.”

The Secretaries, through the Board, will provide a variety of opportunities for consultation: commenting on proposed changes to the existing rule; engaging in dialogue at the Regional Council meetings; engaging in dialogue at the Board's meetings; and providing input in person, by mail, email, or phone at any time during the rulemaking process.

This Executive Order requires agencies to prepare Statements of Energy Effects when undertaking certain actions. However, this proposed rule is not a significant regulatory action under E.O. 13211, affecting energy supply, distribution, or use, and no Statement of Energy Effects is required.

Theo Matuskowitz drafted these regulations under the guidance of Gene Peltola of the Office of Subsistence Management, Alaska Regional Office, U.S. Fish and Wildlife Service, Anchorage, Alaska. Additional assistance was provided by:

• Daniel Sharp, Alaska State Office, Bureau of Land Management;

• Clarence Summers, Alaska Regional Office, National Park Service;

• Dr. Glenn Chen, Alaska Regional Office, Bureau of Indian Affairs;

• Jerry Berg and Jack Lorrigan, Alaska Regional Office, U.S. Fish and Wildlife Service; and

• Steve Kessler, Alaska Regional Office, U.S. Forest Service.

For the reasons set out in the preamble, the Federal Subsistence Board proposes to amend 36 CFR part 242 and 50 CFR part 100 for the 2015-16 and 2016-17 regulatory years.

The text of the proposed amendments to 36 CFR 242.24 and 242.25 and 50 CFR 100.24 and 100.25 is the final rule for the 2012-2014 regulatory period for wildlife (77 FR 35482; June 13, 2012).

The text of the proposed amendments to 36 CFR 242.27 and 50 CFR 100.27 is the final rule for the 2013-15 regulatory period for fish and shellfish (78 FR 19107; March 29, 2013).

The text of the proposed amendments to 36 CFR 242.28 and 50 CFR 100.28 is the final rule for the 2011-13 regulatory period for fish and shellfish (76 FR 12564; March 8, 2011).

Throughout this document wherever “we”, “us” or “our” is used, it is intended to refer to the EPA. Information is organized as follows:

Section 110 of the Clean Air Act (CAA) specifies the general requirements for states to submit SIPs to attain and maintain the National Ambient Air Quality Standards (NAAQS) and the EPA's actions regarding approval of those SIPs. On May 9, 2013, the State of Idaho submitted a SIP revision to the EPA to account for regulatory changes adopted by Idaho on several different dates. Idaho incorporates by reference (IBR) various portions of Federal regulations codified in the Code of Federal Regulations (CFR) into the Rules for the Control of Air Pollution in Idaho (IDAPA 58.01.01). Idaho then submits parts of IDAPA 58.01.01 to the EPA for approval into the Federally-approved Idaho SIP (generally those provisions that relate to the criteria pollutants regulated under section 110 of the CAA for which the EPA has promulgated NAAQS or other specific requirements of section 110). To ensure that its rules remain consistent with the EPA requirements, Idaho generally updates the IBR citations in IDAPA 58.01.01 on an annual basis and submits a SIP revision to reflect any changes made to the Federal regulations during that year. Idaho's current SIP includes the approved incorporation by reference of specific Federal regulations, revised as of July 1, 2010, at IDAPA 58.01.01.107 “Incorporation by Reference.”

On May 9, 2013, Idaho submitted several state dockets (rulemakings) for approval by the EPA. We note that the dockets also include revisions to Idaho's regulations relating to its title V operating permits program, hazardous air pollutants (referred to as “toxic air pollutants” in Idaho regulations), and other air quality-related requirements that do not implement section 110 of the CAA. Idaho submitted the revisions to these regulations for information purposes only, in order to provide a complete record of the rule revisions in each of the identified dockets. In the cover letter to the May 9, 2013, submittal Idaho specifically stated that the identified provisions were not being submitted to update Idaho's SIP. Below, we describe the rule changes submitted to the EPA for approval and provide our analysis of the revisions.

Docket 58-0101-1101 “PM 2.5 PSD IBR” revises IDAPA 58.01.01.107.03 “Documents Incorporated by Reference” to add the EPA final rule for Prevention of Significant Deterioration for Particulate Matter Less than 2.5 Micrometers (PM 2.5 )—Increments, Significant Impact Levels and Significant Monitoring Concentration (2010 PSD PM 2.5 Implementation Rule) (October 20, 2010, 75 FR 64864) codified at 40 CFR parts 51 and 52. Idaho incorporated these Federal requirements by reference separately from its annual IBR update because the EPA's final rule became effective after the State's annual IBR update in 2010, but before its annual IBR update in 2011. Although Idaho requested approval of this docket, it has been superseded by the annual IBR updates for 2011 and 2012, described below. Therefore, we are acting on only the most recently adopted and submitted version of Idaho's regulations (namely, the 2012 Federal Rule IBR Update). Further action on this docket is not necessary because this version of the regulations is no longer in effect.

Docket 58-0101-1103 “2011 Federal Rule IBR” revises IDAPA 58.01.01.107.03 “Documents Incorporated by Reference” to update the citation dates for specific provisions incorporated by reference into the Idaho SIP as of July 1, 2011. Although Idaho requested approval of this docket, it has been superseded by the annual IBR update for 2012, described below. Therefore, we are acting on only the most recently adopted and submitted version of Idaho's regulations (namely, the 2012 Federal Rule IBR Update). Further action on this docket is not necessary because this version of the regulations is no longer in effect.

Docket 58-0101-1201 “Housekeeping Revisions” revises IDAPA 58.01.01.006 “General Definitions” to clarify the definition of “Modification” with respect to the use of an alternative fuel or raw material, if the stationary source is specifically designed to accommodate such fuel or raw material before January 6, 1975 and use of such fuel or raw material is not specifically prohibited in a permit. The EPA is proposing to approve this revision because it has been clarified by adding the specific date of January 6, 1975, and aligns with the Federal definition of “major modification” at 40 CFR 51.166(b)(2)(i).

Docket 58-0101-1201 also revises the definition of “Significant” at IDAPA 58.01.01.006 “General Definitions” to include PM 2.5 . Specifically, the revision defines a net emissions increase or the potential of a source to emit PM 2.5 as “significant” if the rate of emissions would equal or exceed 10 tons per year of direct PM 2.5 emissions; or, with respect to specific precursors to PM 2.5 , 40 tons per year of sulfur dioxide emissions, or 40 tons per year of nitrogen oxides emissions. The EPA is proposing to approve this revised definition because it is the same as the Federal definition of significant at 40 CFR 51.166(b)(23)(i).

Docket 58-0101-1201 also revises the definition of “Significant Contribution” in IDAPA 58.01.01.006 “General Definitions” to include an increase in ambient concentrations of PM 2.5 which would exceed 0.3 micrograms per cubic meter, annual average, and 1.2 micrograms per cubic meter, twenty-four hour average. The EPA is proposing to approve this revision because it adopts the Federal “significant impact levels” for PM 2.5 as set forth in 40 CFR 51.165(b)(2) and, as a definition, has a legal affect only as otherwise provided in regulations. As discussed in Section II.B.2 below, certain Federal regulations related to significant impact levels were recently vacated by a court. However, 40 CFR 51.165(b)(2) was not vacated and remains in effect. Please see Section II.B.2 for a detailed discussion.

It is important to note that since we most recently approved revisions to IDAPA 58.01.01.006 “General Definitions,” new definitions have been added at paragraphs (49), (50), (51), (66), (67), (114), and (116). As a result, the paragraphs in this section have been renumbered. We are not at this time acting on these new definitions because they were not part of the submittal, but we are proposing to approve the renumbering of the section to reflect the current paragraph numbers for “Modification” (68), “Significant” (106), and “Significant Contribution” (107), and for all previously approved definitions in this section.

The docket also makes minor changes to IDAPA 58.01.01.220 “General Exemption Criteria for Permit to Construct Exemptions” and IDAPA 58.01.01.222 “Category II Exemptions” to clarify the applicability of these provisions. The revision to IDAPA 58.01.01.220 is approvable because it makes clear that an exemption under IDAPA 58.01.01.220 may be used by Category I sources if they meet the criteria in both IDAPA 58.01.01.221 and 223. Similarly, an exemption under IDAPA 58.01.01.220 may be used by Category II sources if they meet the criteria in both IDAPA 58.01.01.222 and 223. The revision to IDAPA 58.01.01.222 “Category II Exemptions” is approvable because it clarifies the additional criteria that a pilot plant in subparagraph (01)(e) must meet in order to satisfy the exemption criteria. Therefore, we are proposing to approve the submitted revisions to IDAPA 58.01.01.220 and IDAPA 58.01.01.222.

Finally, this docket revises IDAPA 58.01.01.792 “Emissions Standards for Nonmetallic Mineral Processing Plants Subject to 40 CFR 60 Subpart OOO” and IDAPA 58.01.01.794 “Permit Requirements” as they relate to nonmetallic mineral processing plant. Idaho submitted a previous version of IDAPA 58.01.01.792 and 58.01.01.794 to the EPA as a SIP revision, but the EPA has not yet taken action on that SIP revision. See 75 FR 72719 (November 26, 2010). The EPA intends to take action on both submitted revisions to IDAPA 58.01.01.792 and 58.01.01.794 in a separate rulemaking.

Docket 58-0101-1203 “2012 Federal Rule IBR Update” revises IDAPA 58.01.01.107 “Incorporations by Reference” in several ways. First, the revision updates to July 1, 2012 the citation dates of specific provisions incorporated by reference in IDAPA 58.01.01.107.03 “Documents Incorporated by Reference.” Second, the revision repeals certain provisions that are no longer necessary to incorporate by reference. Finally, the revision adds the incorporation by reference of 40 CFR part 70 (State Operating Programs) and renumbers the subparagraphs in the rule.

Subparagraph (a) of IDAPA 58.01.01.107.03 incorporates by reference the Requirements for Preparation, Adoption, and Submittal of Implementation Plans, 40 CFR part 51, with the exception of certain visibility-related provisions, revised as of July 1, 2012. Idaho's update to the incorporation by reference of 40 CFR part 51 includes nonattainment NSR requirements at 40 CFR 51.165. For the reasons discussed in Section II.B.1 below, the EPA is proposing to grant limited approval, as SIP strengthening, to the portion of Idaho's submittal that incorporates by reference updates to the Federal nonattainment NSR requirements at 40 CFR 51.165.

Subparagraphs (b) through (e) and (o) as renumbered, incorporate by reference the following provisions revised as of July 1, 2012: (b) National Primary and Secondary Ambient Air Quality Standards, 40 CFR part 50; (c) Approval and Promulgation of Implementation Plans, 40 CFR part 52, including the Federal PSD permitting rules at 40 CFR 52.21; (d) Ambient Air Monitoring Reference and Equivalent Methods, 40 CFR part 53; (e) Ambient Air Quality Surveillance, 40 CFR part 58; and (o) Determining Conformity of Federal Actions to State or Federal Implementation Plans, 40 CFR part 93, Subpart A, Sections 93.100 through 93.129, although certain subsections are specifically excluded from the State's incorporation by reference. These provisions relate to the criteria pollutants regulated under section 110 of title I of the CAA or other specific requirements of section 110 and, with the exceptions discussed in Section II.B.2 below, make the Idaho SIP consistent with Federal law. The EPA is proposing to approve the revisions to IDAPA 58.01.01.107.03 (b) through (e) and (o) as renumbered, with the following exceptions. We are proposing to disapprove Idaho's incorporation by reference of two provisions of the Federal PSD permitting rules at 40 CFR 52.21 revised by the 2010 PSD PM 2.5 Implementation Rule (October 20, 2010, 75 FR 64864). Provisions of this rule were recently vacated by a court, as discussed in Section II.B.2 below. We are also proposing to take no action on Idaho's incorporation by reference of a provision of 40 CFR 52.21 revised by the Biogenic Carbon Dioxide (CO 2 ) Deferral Rule that is currently the subject of a judicial challenge, as described in Section II.B.3 below (July 20, 2011, 76 FR 43490).

This docket also repealed subparagraphs (o), (p), and (q) (prior to renumbering) of IDAPA 58.01.01.107.03. Subparagraph (o) incorporated by reference the final rule for Primary National Ambient Air Quality Standards for Sulfur Dioxide, now codified at 40 CFR part 50, 40 CFR part 53, and 40 CFR part 58. Subparagraph (p) incorporated by reference the final rule for Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, now codified at 40 CFR part 51, 40 CFR part 52, and 40 CFR part 70. Subparagraph (q) incorporated by reference the 2010 PSD PM 2.5 Implementation Rule, now codified at 40 CFR part 51 and 40 CFR part 52. Idaho's annual IBR update has since captured the CFR changes made by these three Federal rules, and Idaho has therefore repealed these subparagraphs. We are proposing to approve the repeal of IDAPA 58.01.01.107.03 subparagraphs (o), (p), and (q) (prior to renumbering).

Subparagraphs (f) through (m) of IDAPA 58.01.01.107.03 as renumbered, incorporate by reference the following provisions as of July 1, 2012: (f) Standards of Performance for New Stationary Sources, 40 CFR part 60; (g) National Emission Standards for Hazardous Air Pollutants, 40 CFR part 61; (h) National Emission Standards for Hazardous Air Pollutants for Source Categories, 40 CFR part 63; (i) Compliance Assurance Monitoring, 40 CFR part 64; (j) State Operating Permit Programs, 40 CFR part 70; (k) Permits, 40 CFR part 72; (l) Sulfur Dioxide Allowance System, 40 CFR part 73; and (m) Protection of Stratospheric Ozone, 40 CFR part 82. Consistent with past approvals of the Idaho SIP, we are proposing to not approve the portion of the May 9, 2013, submittal that revises IDAPA 58.01.01.107.03(f) through (m) as renumbered, because these provisions implement other CAA requirements that are not requirements of a SIP under section 110 of the CAA.

On January 4, 2013, the U.S. Court of Appeals in the District of Columbia, in Natural Resources Defense Council (NRDC) v. EPA, 706 F.3d 428 (DC Cir.), issued a decision that remanded the EPA's 2007 and 2008 rules implementing the 1997 PM 2.5 NAAQS. Relevant here, the EPA's 2008 implementation rule addressed by the Court decision, “Implementation of New Source Review (NSR) Program for Particulate Matter Less Than 2.5 Micrometers (PM 2.5 )” (the 2008 NSR PM 2.5 Rule), 1 promulgated NSR requirements for implementation of PM 2.5 in both nonattainment areas (nonattainment NSR) and attainment/unclassifiable areas (PSD). The Court concluded that the EPA had improperly based the implementation rule for the 1997 PM 2.5 NAAQS solely upon the requirements of part D, subpart 1 of the CAA, and had failed to address the requirements of part D, subpart 4, which establishes additional provisions for particulate matter nonattainment areas. The Court ordered the EPA to “repromulgate these rules pursuant to Subpart 4 consistent with this opinion.” Id. at 437. As a result of the Court's decision, the EPA withdrew its guidance for implementing the 2006 PM 2.5 NAAQS 2 because the guidance was based largely on the remanded rule promulgated to implement the 1997 PM 2.5 NAAQS. 3 The EPA is currently engaged in rulemaking to address the remand from the Court.

In the interim, however, states and the EPA still need to proceed with implementation of the PM 2.5 NAAQS in a timely and effective fashion in order to meet statutory obligations under the CAA and to assure the protection of public health intended by those NAAQS. In light of the Court's remand of the 2008 NSR PM 2.5 Rule, the EPA is not prepared at this time to grant full approval to Idaho's incorporation by reference into the Idaho SIP of the Federal nonattainment NSR requirements at 40 CFR 51.165, but instead proposes to grant limited approval, as SIP strengthening, of this aspect of Idaho's submittal.

The EPA is in the process of evaluating the requirements of subpart 4 as they pertain to nonattainment NSR. In particular, subpart 4 includes section 189(e) of the CAA, which requires the control of major stationary sources of PM 10 precursors (and hence under the Court decision, PM 2.5 precursors) “except where the Administrator determines that such sources do not contribute significantly to PM 10 levels which exceed the standard in the area.” The evaluation of which precursors need to be controlled to achieve the standard in a particular area is typically conducted in the context of the State's preparing and the EPA's reviewing of an area's attainment plan SIP. In this case, there is only one designated PM 2.5 nonattainment area in Idaho, the portion of Franklin County which is part of the cross border Logan, Utah-Idaho nonattainment area for the 2006 24-hour PM 2.5 NAAQS. Idaho submitted an attainment plan for this area in Idaho (referred to here as “Franklin County”) on December 14, 2012. On December 26, 2013, the EPA proposed limited approval of the road sanding and woodstove control measures in this plan (78 FR 78315).

In light of the Court's decision in NRDC v. EPA, and the need to evaluate Idaho's submittal for Franklin County in conjunction with the SIP submittal for the Utah portion of the Logan Utah-Idaho nonattainment area, the EPA is not proposing to make a determination regarding whether Idaho's December 2012 SIP submittal for Franklin County satisfies all of the statutory nonattainment planning requirements for the 2006 PM 2.5 NAAQS. For similar reasons, and because the EPA is not evaluating in this action Idaho's analysis as to which precursors need to be controlled in the Idaho portion of the Logan Utah-Idaho nonattainment area, the EPA cannot approve as fully complying with the CAA a nonattainment NSR SIP that may address only a subset of the scientific precursors recognized by the EPA. On the other hand, while we have not yet determined if Idaho's submittal for Franklin County contains all of the elements necessary to satisfy the CAA requirements for PM 2.5 nonattainment areas when evaluated under subpart 4, the revisions proposed in this action to 40 CFR 51.165 (including without limitation the regulation of PM 10 and PM 2.5 condensable emissions) represent a strengthening of the currently approved Idaho SIP. Therefore, the EPA is proposing to grant limited approval of the nonattainment NSR provisions in Idaho's 2012 IBR Update.

Because the EPA has not yet proposed revisions to the nonattainment NSR permitting requirements in response to the remand, the EPA is not evaluating at this time whether Idaho's submittal for Franklin County will require additional revisions to satisfy the subpart 4 requirements. Once the EPA repromulgates the Federal PM 2.5 regulations with respect to nonattainment NSR permitting in response to the NRDC v. EPA remand, the EPA will consider whether a limited disapproval should also be finalized. 4

As discussed above in Section II.A.4, IDAPA 58.01.01.107.03(c) incorporates by reference the Federal PSD permitting rules at 40 CFR 52.21. The current Idaho SIP incorporates 40 CFR 52.21 by reference as of July 1, 2010. Docket Number 58-0101-1203 updates the incorporation by reference date of the PSD permitting rules to July 1, 2012, and thus includes revisions to 40 CFR 52.21(i) (relating to the significant monitoring concentration (SMC)) and 40 CFR 52.21(k) (relating to the significant impact level (SIL)) that added a SMC and SIL for PM 2.5 as part of the 2010 PSD PM 2.5 Implementation Rule.

On January 22, 2013, the U.S. Court of Appeals for the District of Columbia, in Sierra Club v. EPA, 703 F.3d 458 (D.C. Cir. 2013), issued, with respect to the SMC, a judgment that, inter alia, vacated the provisions adding the PM 2.5 SMC to the Federal regulations at 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c). In its decision, the Court held that the EPA did not have the authority to use SMCs to exempt permit applicants from the statutory requirement in section 165(e)(2) of the CAA that ambient monitoring data for PM 2.5 be included in all PSD permit applications. Thus, although the PM 2.5 SMC was not a required element of a state's PSD program, where a state PSD program contains such a provision and allows issuance of new permits without requiring ambient PM 2.5 monitoring data, such application of the vacated SMC would be inconsistent with the Court's opinion and the requirements of section 165(e)(2) of the CAA.

At the EPA's request, the decision also vacated and remanded to the EPA for further consideration the portions of the 2010 PSD PM 2.5 Implementation Rule that revised 40 CFR 51.166 and 40 CFR 52.21 related to SILs for PM 2.5 . The EPA requested this vacatur and remand of two of the three provisions in the EPA regulations that contain SILs for PM 2.5 because the wording of these two SIL provisions (40 CFR 51.166(k)(2) and 40 CFR 52.21(k)(2)) is inconsistent with the explanation of when and how SILs should be used by permitting authorities that we provided in the preamble to the Federal Register publication when we promulgated these provisions. The third SIL provision (40 CFR 51.165(b)(2)) was not vacated and remains in effect. We also note that the Court's decision does not affect the PSD increments for PM 2.5 promulgated as part of the 2010 PSD PM 2.5 Implementation Rule. The EPA recently amended its regulations to remove the vacated PM 2.5 SILs and SMC provisions from the PSD regulations (December 9, 2013, 78 FR 73698). The EPA will initiate a separate rulemaking in the future regarding the PM 2.5 SILs that will address the Court's remand. In the meantime, the EPA is advising states to begin preparations to remove the vacated provisions from state PSD regulations.

In response to the vacatur of the EPA regulations as they relate to the PM 2.5 SMC and the PM 2.5 SILs, Idaho submitted a letter to the EPA, dated October 18, 2013, clarifying that it will not apply either the PM 2.5 SMC provisions at 40 CFR 52.21(i)(5)(i)(c) or the PM 2.5 SIL provisions at 40 CFR 52.21(k)(2) in Idaho's implementation of the PSD program. In addition, the October 18, 2013 letter states that Idaho intends to remove the vacated provisions to ensure consistency with Federal law as soon as practicable. Therefore, we are proposing to partially disapprove the Idaho submittal with respect to the incorporation by reference at IDAPA 58.01.01.107.03(c) of the vacated provisions of 40 CFR 52.21 (namely, 40 CFR 52.21(i)(5)(i)(c) and 40 CFR 52.21(k)(2)).

In 2011, the EPA revised the definition of “subject to regulation” at 40 CFR 52.21(b)(49)(ii)( a ) to defer for three years (until July 21, 2014) PSD permitting requirements to CO 2 emissions from bioenergy and other biogenic stationary sources (Deferral for CO 2 Emissions from Bioenergy and Other Biogenic Sources under the Prevention of Significant Deterioration (PSD) and Title V Programs; Final Rule (July 20, 2011, 76 FR 43490) (Biogenic CO 2 Deferral Rule). Idaho's update to incorporate by reference the EPA's PSD permitting rules as of July 1, 2012, includes this revision to 40 CFR 52.21(b)(49)(ii)( a ). On July 12, 2013, the U.S. Court of Appeals for the District of Columbia, in Center for Biological Diversity v. EPA, No. 11-1101 (D.C. Cir. July 12, 2013), vacated the Biogenic CO 2 Deferral Rule. At this time, the Court has not issued the mandate in this case and the vacatur is therefore not in effect. In light of this situation, we are proposing to take no action on Idaho's incorporation by reference of the revision to 40 CFR 52.21(b)(49)(ii)( a ) at this time.

The EPA is proposing to approve all other aspects of Idaho's incorporation by reference of 40 CFR 52.21 as of July 1, 2012 in IDAPA 58.01.01.107.03(c), other than those discussed in Sections II.B.2 and II.B.3 of this proposal.

The EPA is proposing to partially approve the May 9, 2013, submittal from Idaho to update the incorporation by reference of Federal air quality regulations into the SIP and make minor edits and clarifications. Specifically, we are proposing to approve the revisions to IDAPA 58.01.01.107.03 “Incorporations by Reference,” except as noted below; IDAPA 58.01.01.006 “General Definitions;” IDAPA 58.01.01.220 “General Exemption Criteria for Permit to Construct Exemptions;” and IDAPA 58.01.01.222 “Category II Exemption.” The EPA is proposing to grant limited approval, as SIP strengthening, to a portion of the submittal that incorporates by reference updates to the Federal nonattainment NSR requirements at 40 CFR 51.165 that have been recently remanded to the EPA by a court.

We are proposing to partially disapprove the revision to IDAPA 58.01.01.107.03(c) as it relates to the incorporation by reference of specific vacated provisions at 40 CFR 52.21 (namely, 40 CFR 52.21(i)(5)(i)(c) and 40 CFR 52.21(k)(2)). We are proposing to take no action on the revision to IDAPA 58.01.01.107.03(c) as it relates to the incorporation by reference of the vacated revision to 40 CFR 52.21(b)(49)(ii)( a ). Upon final action, the Idaho SIP would incorporate by reference specific Federal regulations as of July 1, 2012.

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

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

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

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

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

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

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

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

• is not subject to the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because this action does not involve technical standards; and

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

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

To ensure proper receipt by EPA, it is important that you identify Docket Control Number EPA-R06-OPPT-2013-0398 in the subject line on the first page of your response.

This action is directed to the public in general, to entities offering Lead Safe Renovation courses, and to firms and individuals engaged in renovation and remodeling activities of pre-1978 housing and child-occupied facilities in the State of Oklahoma. Individuals and firms falling under the North American Industrial Classification System (NAICS) codes 231118, 238210, 238220, 238320, 531120, 531210, 53131, e.g., General Building Contractors/Operative Builders, Renovation Firms, Individual Contractors, and Special Trade Contractors like Carpenters, Painters, Drywall Workers and Plumbers, “Home Improvement” Contractors, as well as Property Management Firms and some Landlords are also affected by these rules. This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed here could also be affected. The NAICS codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

1. Electronically: you may obtain electronic copies of this document, and certain other related documents that might be available electronically, from the EPA Internet Home Page at http://www.epa.gov/ or from http://www.regulations.gov/ . You can also go directly to the Federal Register listings at http://www.gpoaccess.gov/fr/ .

2. In person: you may read this document, and certain other related documents, by visiting the Oklahoma Department of Environmental Quality, Central Records, 707 North Robinson Street, Oklahoma City, Oklahoma 73102. You should arrange your visit to the ODEQ office by contacting Rhonda Craig, 405-702-0152, or by email at Rhonda.Craig@deq.ok.gov . You may also read this document, and certain other related documents, by visiting the United States Environmental Protection Agency, Region 6 Office, 1445 Ross Avenue, Ste 700, Dallas, TX 75202. You should arrange your visit to the EPA office by contacting the technical person listed under FOR FURTHER INFORMATION CONTACT . Also, EPA has established an official record for this action under Docket Control Number EPA-R06-OPPT-2013-0398. The official record consists of the documents specifically referenced in this action, this notice, the State of Oklahoma 402(c)(3) and 406(b) program authorization applications, documents related to EPA's offer to consult with any affected Tribes in Oklahoma, any public comments received during an applicable comment period, and other information related to this action.

You may submit comments through the mail, in person, or electronically. To ensure proper receipt by EPA, it is important that you identify Docket Identification Number EPA-R06-OPPT-2013-0398 in the subject line on the first page of your response.

Submit your comments, by one of the following methods:

1. http://www.regulations.gov : Follow the on-line instructions for submitting comments.

2. By mail: Submit your comments and hearing requests to: Cindy Parker, Toxics Section, 6PD-T, United States Environmental Protection Agency, 1445 Ross Avenue, Ste 1200, Dallas, Texas 75202-2733.

3. By person or courier: Deliver your comments and hearing requests to: Cindy Parker, Toxics Section, Multimedia Planning and Permitting Division, United States Environmental Protection Agency, 1445 Ross Avenue, Ste 700, Dallas, Texas 75202-2733. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 to 4:30, excluding federal holidays.

4. By fax: 214-665-6655.

5. By email: You may submit your comments and hearing requests electronically by email to: parker.cindy@epa.gov, or mail your computer disk to the address identified above. Do not submit any information electronically that you consider Confidential Business Information (CBI). Electronic comments must be submitted as an ASCII file avoiding the use of special characters and any form of encryption. Comments and data will also be accepted on standard disks in Microsoft Word or ASCII file format.

Instructions: Direct your comments to Docket ID Number EPA-R06-OPPT-2013-0398. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters or any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm .

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy.

Do not submit this information to EPA through regulations.gov or email. Clearly mark on each page the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM that you mail to EPA as CBI, and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked as CBI will not be disclosed except in accordance with procedures set forth in 40 CFR Part 2. If you have any questions about CBI or the procedures for claiming CBI, please consult the technical person identified under FOR FURTHER INFORMATION CONTACT .

You may find the following suggestions helpful for preparing your comments.

1. Explain your views as clearly as possible.

2. Describe any assumptions that you use.

3. Provide copies of any technical information and/or data you use that support your views.

4. If you estimate potential burden or costs, explain how you arrive at the estimate that you provide.

5. Provide specific examples to illustrate your concerns.

6. Offer alternative ways to improve the notice or collection activity.

7. Make sure to submit your comments by the deadline in this notice.

8. To ensure proper receipt by EPA, identify the Docket Control Number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.

EPA is announcing that the State of Oklahoma on March 25, 2013, was deemed authorized under section 404(a) of TSCA, 15 U.S.C. 2684(a) and 40 CFR 745.324(d)(2), to administer and enforce requirements for a renovation, repair and painting program in accordance with section 402(c)(3) of TSCA, 15 U.S.C. 2682(c)(3), and a lead-based paint pre-renovation education program in accordance with section 406(b) of TSCA, 15 U.S.C. 2686(b). This notice also announces that EPA is seeking comment on Oklahoma's self-certification. The 402(c)(3) program ensures that training providers are accredited to teach renovation classes, that individuals performing renovation activities are properly trained and certified as renovators, that firms are certified as renovation firms, and that specific work practices are followed during renovation activities. The 406(b) program ensures that owners and occupants of target housing are provided information concerning potential hazards of lead-based paint exposure before certain renovations are begun.

On March 25, 2013, Oklahoma submitted an application under section 404 of TSCA requesting authorization to administer and enforce requirements for a renovation, repair and painting program in accordance with section 402(c)(3) of TSCA, and a pre-renovation education program in accordance with section 406(b) of TSCA, and submitted a self-certification that these programs are at least as protective as the federal programs and provide for adequate enforcement. Therefore, pursuant to section 404(a) of TSCA, and 40 CFR 745.324(d)(2), the Oklahoma renovation program and pre-renovation education program are deemed authorized as of the date of submission and until such time as the Agency disapproves the program application or withdraws program authorization. Pursuant to section 404(b) of TSCA and 40 CFR 745.324(e)(2), EPA is providing notice and an opportunity for public comment on Oklahoma's self-certification. The authorization of the Oklahoma 402(c)(3) and 406(b) programs, which were deemed authorized by EPA on March 25, 2013, will continue without further notice unless EPA, based on its own review and/or comments received during the comment period, disapproves one or both of these Oklahoma program applications. Oklahoma is not authorized to carry out its RRP or PRE programs in “Indian Country”, as defined in 18 USC 1151. Therefore, this action has no effect on Indian country. EPA retains the authority to implement and administer the RRP and PRE programs on these lands.

In accordance with the EPA policy on Consultation and Coordination with Indian Tribes, EPA Region 6 has offered government-to-government consultation to all Tribes within the State of Oklahoma. Any requested consultations will be conducted in accordance with the policy and completed by the date of the end of the public comment period February 24, 2014. Tribal consultation will be conducted in accordance with the EPA policy on Consultation and Coordination with Indian Tribes ( www.epa.gov/tribal/consultation/consult-policy.htm ).

On October 28, 1992, the Housing and Community Development Act of 1992, Public Law 102-550, became law. Title X of that statute was the Residential Lead-Based Paint Hazard Reduction Act of 1992. That Act amended TSCA (15 U.S.C. 2601 et seq.) by adding Title IV (15 U.S.C. 2681-2692), entitled “Lead Exposure Reduction.” On April 22, 2008, EPA promulgated the final TSCA section 402(c)(3) regulations governing renovation activities. See 73 FR 21692. These regulations require that in order to do renovation activities for compensation, renovators must first be properly trained and certified, must be associated with a certified renovation firm, and must follow specific work practice standards, including recordkeeping requirements. In addition, the rule prescribes requirements for the training and certification of dust sampling technicians. On June 1, 1998, EPA promulgated the final TSCA section 406(b) regulations governing pre-renovation education requirements in target housing. See 63 FR 29908. This program ensures that owners and occupants of target housing are provided information concerning potential hazards of lead-based paint exposure before certain renovations are begun on that housing. In addition to providing general information on the health hazards associated with exposure to lead, EPA developed the lead hazard information pamphlet. This pamphlet advises owners and occupants to take appropriate precautions to avoid exposure to lead-contaminated dust and debris that are sometimes generated during renovations. EPA believes that regulation of renovation activities and the distribution of the pamphlet will help to reduce the exposures that cause serious lead poisonings, especially in children under age 6, who are particularly susceptible to the hazards of lead.

Under section 404 of TSCA, a state may seek authorization from EPA to administer and enforce its own pre-renovation education program or renovation, repair and painting program in lieu of the federal programs. The regulations governing the authorization of a state program under both sections 402 and 406 of TSCA are codified at 40 CFR Part 745, subpart Q. States that choose to apply for program authorization must submit a complete application to the appropriate regional EPA office for review. Those applications will be reviewed by EPA within 180 days of receipt of the complete application. To receive EPA approval, a state must demonstrate that its program is at least as protective of human health and the environment as the federal program, and provides for adequate enforcement, as required by Section 404(b) of TSCA. EPA's regulations at 40 CFR Part 745, subpart Q, provide the detailed requirements a state program must meet in order to obtain EPA approval. A state may choose to certify that its own pre-renovation education program or renovation, repair and painting program meets the requirements for EPA approval, by submitting a letter signed by the Governor or Attorney General stating that the program is at least as protective of human health and the environment as the federal program and provides for adequate enforcement. Upon submission of such a certification letter, the program is deemed authorized pursuant to TSCA section 404(a) and 40 CFR 745.324(d)(2). This authorization becomes ineffective, however, if EPA disapproves the application or withdraws the program authorization.

A. The following excerpt is from the renovation, repair and painting program description submitted in Oklahoma's self-certification application:

The Oklahoma Department of Environmental Quality (DEQ) submits this application with the intent of self-certifying for authorization of the federal Renovation, Repair and Painting (RRP) program, along with the Pre-Renovation Education program. The Department of Environmental Quality (DEQ) currently administers a comprehensive lead-based paint (LBP) management program in Oklahoma with the authority of the “Oklahoma LBP Management Act” (Act), 27A Okla Stat. (O.S.) § 2-12-101 et seq. The LBP Management Rules, Okla. Admin. Code (OAC) 252:110-1-1 et seq. (Chapter 110) were adopted to fulfill the mandates of the Act. The Chapter 110 rules establish mechanisms for certification of individuals and firms, accreditation of training providers, and implementation of performance standards for LBP services. Chapter 110 was updated, and a new Subchapter 15 was added in 2012 to allow the DEQ to seek delegation of the RRP program.

In general, the RRP provisions in 40 CFR Part 745 Subpart E were incorporated by reference into the Oklahoma Administrative Code. The items not incorporated by reference are those that are otherwise mandated by the Act, or that were modified to blend the RRP program into the existing state program. The differences are minor and all concern the accreditation of training providers.

The LBP/RRP program is administered by the Air Quality Division of the DEQ. The point of contact for this program is Randall Ward, Environmental Programs Manager, who can be reached by mail at Oklahoma Department of Environmental Quality, Air Quality Division, P.O. Box 1677, 707 N. Robinson, Oklahoma City, OK 73101-1677, by telephone at (405) 702-4128 or by fax at (405) 702-4101.

Public rulemaking hearings for the adoption of the RRP program were held in conjunction with approval of the revised Chapter 110 rules, and the rules were affirmatively approved by the Oklahoma State Legislature and the Governor on May 1, 2012. Public hearings were noticed in accordance with the Oklahoma Administrative Procedures Act, and were held on January 19, 2011; July 20, 2011; and October 5, 2011 before the Oklahoma Air Quality Council. The rules were approved by the Council on October 5, 2011, and after another public hearing on February 24, 2012 were approved by Oklahoma Environmental Quality Board.

The Air Quality Division (AQD) has existed (within the Oklahoma State Department of Health and later within the DEQ) since 1971. The LBP Program is administered by the AQD and staffed by the Technical Resources and Projects Section. The various LBP program duties (enforcement, compliance, inspections, certification, accreditation, public education) are accomplished through the efforts of three full-time equivalent employees.

For both LBP activity training and the RRP training, the Oklahoma LBP Management Rules (Rules) incorporate by reference the federal accreditation requirements in 40 CFR 745.225, except for those subsections that address application dates, accreditation deadlines, accredited training courses, programs that offer only refresher courses, renewal timelines, and renewal deadlines. In addition to providing the various dates, timelines and deadlines not incorporated by reference from the federal rule, the Rules limit accreditation to educational institutions and government agencies that offer ongoing and continuous LBP training programs. In addition to the incorporations by reference, Oklahoma rules provide for provisional accreditation, OAC 252:110-9-5. A stakeholder task force strongly recommended an on-site evaluation of the training prior to issuing final accreditation in order to ensure that the training organization operates according to the information given in the accreditation application. Provisional accreditation allows the training facility to provide training under the conditions outlined in OAC 252:110-9-5. EPA rules do not provide for an on-site evaluation of the training program prior to the issuance of final accreditation. Therefore, Oklahoma's provisional accreditation is essentially equivalent to EPA's final accreditation. DEQ further ensures quality training by requiring an on-site evaluation before final accreditation is issued.

Refresher courses can be accredited only if the training program has received accreditation for the initial discipline-specific training course. Programs that have been accredited by another state or agency must apply for and receive accreditation from DEQ before conducting or advertising a training course in Oklahoma. An accredited training program must notify the DEQ of course offerings, significant changes in the program, course cancellations, and personnel changes. Annual renewal is required and is based on documented implementation of compliance updates as well as satisfactory course and instructor evaluations.

The Oklahoma RRP program is identical to the federal program except for the accreditation requirements.

Program information (applications, regulations, statutes, lists of certified contractors, educational materials, etc.) is mailed to customers upon request. Increasingly, most of this information can be obtained through the Internet. The LBP Program pages are contained in the “Air Quality” subset of the DEQ Home Page ( http://www.deq.state.ok.us ). As program resources allow, and dependent on public demand, public outreach and education activities are performed.

The federal program for accreditation of LBP training providers is established in 40 CFR 745.225. DEQ incorporated this federal rule by reference in OAC 252:110-5-1(2) with the following exceptions.

These federal rules permit a training program to offer refresher courses only. Per the eligibility requirements established in OAC 252:110-9-1, “Training programs shall not receive accreditation for a refresher course if they do not also receive accreditation for the discipline-specific initial training course.” This section also limits accreditation to “educational institutions and government agencies”.

Under the federal RRP program as incorporated by reference in the Oklahoma regulations, individuals receive their certification by completing courses at accredited training providers. RRP firms are certified by the state using the federal procedure except for the transition period from EPA to Oklahoma delegation. In that period, EPA certified firms may transfer their certification to Oklahoma without payment of fees until the certification expires.

The Oklahoma RRP program will rely heavily upon DEQ's Complaints system. Since 1993 the state-wide complaints program has allowed citizens access to a toll-free hotline and local Environmental Program Specialists who can provide assistance and information. The complaints system is also important to the LBP activities programs as it allows industry competitors access to an anonymous reporting system.

Although the DEQ prefers education and compliance assistance for small businesses, the LBP/RRP program is fully supported by the DEQ's enforcement authority. DEQ has the statutory authority to perform inspections, pursue enforcement actions, and assess penalties.

State law (27A O.S. § 2-3-501) grants the authority for duly authorized representatives of the DEQ to enter, through consent or warrant, any private or public property where lead-based paint activities or training may occur to conduct inspections, take samples, and review records. Further, the Oklahoma LBP Management Act grants DEQ the power to enforce the rules, collect samples for enforcement purposes, and otherwise exercise the incidental powers necessary for enforcement. See 27A O.S. § 2-12-202(B). DEQ has further addressed the issue of entrance for inspection purposes in OAC 252:110-7-3(c), whereby holders of DEQ issued “authorizations” (such as certifications and accreditations) have a duty to allow DEQ representatives the right to inspect.

All environmental programs administered by DEQ are designed to focus agency efforts on assisting the regulated community with the common goal of compliance with environmental regulations. Article III, Part 5 of the “Oklahoma Environmental Quality Code,” (27A O.S. § 2-1-102, et seq. ), provides for the general enforcement of the DEQ rules, permits, and orders and extends to all programs administered by the DEQ (27A O.S. § 2-3-506(D)). The aforementioned remedies are in addition to those found in other Oklahoma law, including criminal statutes contained in Title 21 of the Oklahoma Statutes. The civil enforcement remedies include:

Notices of Violation. 27A O.S. § 2-3-502(A).

The DEQ may issue Administrative Compliance Orders, which may include administrative penalties for past violations and stipulated penalties for violations of Orders, and which may specify compliance requirements and schedules and/or corrective action (27A O.S. § 2-3-502(B)). After notice and opportunity for an administrative hearing, the DEQ may revoke, modify or suspend the holder's license in part or in whole (27A O.S. § 2-3-502(D)). The DEQ may also seek injunctive relief to compel compliance with or prevent violation of any section of the Code or any license or order issued pursuant thereto (27A O.S. § 2-3-504(A)(4)). Violations may be punished by monetary penalties assessed in administrative proceedings (27A O.S. § 2-3-502(K)), or in civil proceedings (27A O.S. § 2-3-504(A)(2)), not to exceed $10,000.00 per day of noncompliance.

The DEQ may request either the Attorney General or the district attorney of the appropriate district court of Oklahoma to criminally prosecute anyone who violates the Code, rules promulgated thereunder, or orders issued, or conditions of permits, licenses, certificates or other authorizations prescribed pursuant thereto (27A O.S. § 2-3-504(I)). Such violations are misdemeanors, punishable by a fine of not less than $200.00 for each violation and not more than $10,000.00 for each violation and/or by imprisonment in the county jail for not more than six months (27A O.S. § 2-3-504(A)(1)). In addition, anyone who knowingly makes a false statement in, or omits material data from, any application for a permit, license, certificate or other authorization, or any notice, analyses or report required by the Code, rules promulgated thereunder, or permit, license, certificate or other authorization issued pursuant thereto, or who knowingly alters any sample may be guilty of a misdemeanor and subject to a fine of not more than $5,000.00 for each such violation (27A O.S. § 2-3-505). Criminal sanctions may also be imposed pursuant to Oklahoma's Penal Code. For example, persons who make false statements when advertising a service can be guilty of a misdemeanor under 21 O.S. § 1502. Whether a violation will be recommended for criminal prosecution is a case-by-case decision to be based upon the willfulness and severity of the violation as well as the effect on human health and the environment.

B. The following summary is an excerpt from Oklahoma's renovation, repair and painting program self-certification application:

Because the Oklahoma Lead-Based Paint program already included EPA-approved training provider elements that are considerably more stringent than the federal program, Oklahoma chose to maintain that portion of the Lead-Based Paint program for use with the new RRP program. The differences include: Requirements that only educational institutions and government agencies may become accredited; providers must offer on-going programs that include both initial and refresher training; and requirements for inspections, annual reviews, and renewal. Fees for training providers were also modified so that the annual renewal would not lead to a fee increase over the EPA program.

During the public hearings before the Air Quality Council, concerns were raised that the DEQ RRP program would cause financial hardship on renovation firms and training providers that were already approved by EPA at the time of delegation approval and might have several years left before they were required to renew under the EPA program. In response, the proposed rules were amended to include transition language exempting EPA-approved firms and training providers from fees until the expiration of their EPA-approval.

The Oklahoma RRP program will utilize the existing accreditation structure of inspections and close review to ensure a quality training system. The existing DEQ enforcement system will also apply to the RRP program, but for the RRP firms and their work practices, much of the enforcement will come through the DEQ complaint system. The complaint system uses a toll-free state wide number, strict timelines for response and investigation, and referral to the various DEQ divisions for expert follow-up. The DEQ complaint system is well-established and has proven effective in all programs, including the Oklahoma LBP activities program. The activities program provides a network of individuals and firms throughout the state that also self-monitor to assist in compliance.

Section 404(b) of TSCA makes it unlawful for any person to violate, or fail or refuse to comply with, any requirement of an approved state program. Therefore, EPA reserves the right to exercise its enforcement authority under TSCA against a violation of, or a failure or refusal to comply with, any requirement of an authorized state program.

Pursuant to section 404(c) of TSCA, the EPA Administrator may withdraw authorization of a State or Indian tribal renovation, repair and painting program, and/or a lead-based paint pre-renovation education program, after notice and opportunity for corrective action, if the program is not being administered or enforced in compliance with standards, regulations, and other requirements established under the authorization. The procedures U.S. EPA will follow for the withdrawal of an authorization are found at 40 CFR 745.324(I).

The National Childhood Vaccine Injury Act of 1986, Title III of Public Law 99-660, as amended (42 U.S.C. 300aa-10 et seq.), established the National Vaccine Injury Compensation Program (VICP) for persons found to be injured by vaccines. The Secretary has taken the necessary initial steps to propose to amend the Vaccine Injury Table to add intussusception as an injury associated with rotavirus vaccines.

The NPRM was published in the Federal Register , July 24, 2013: 78 FR 44512. The public comment period closes January 21, 2014.

A public hearing will be held during the 180-day public comment period. This hearing is to provide an open forum for the presentation of information and views concerning all aspects of the NPRM by interested persons.

In preparing a final regulation, the Secretary will consider the administrative record of this hearing along with all other written comments received during the comment period specified in the NPRM. Individuals or representatives of interested organizations are invited to participate in the public hearing in accord with the schedule and procedures set forth below.

The hearing will be held on January 13, 2014, beginning at 10:30 a.m. and ending at 12 p.m. (EDT) in Conference Room 10-65 in the Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857. Upon entering the Parklawn Building, persons who wish to attend the hearing will be required to call Ms. Andrea Herzog at (301) 443-6634 to be escorted to Conference Room 10-65.

The public can also join the meeting via audio conference call:

The presiding officer representing the Secretary, HHS will be Dr. Vito Caserta, Acting Director, Division of Vaccine Injury Compensation, Healthcare Systems Bureau (HSB), Health Resources and Services Administration.

Persons who wish to participate are requested to file a notice of participation with the Department of Health and Human Services (HHS) on or before January 9, 2014. The notice should be mailed to the Division of Vaccine Injury Compensation, HSB, Room 11C-26, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857 or emailed to aherzog@hrsa.gov. To ensure timely handling, any outer envelope or the subject line of an email should be clearly marked “VICP NPRM Hearing.” The notice of participation should contain the interested person's name, address, email address, telephone number, any business or organizational affiliation of the person desiring to make a presentation, a brief summary of the presentation, and the approximate time requested for the presentation. Groups that have similar interests should consolidate their comments as part of one presentation. Time available for the hearing will be allocated among the persons who properly file notices of participation. If time permits, interested parties attending the hearing who did not submit notice of participation in advance will be allowed to make an oral presentation at the conclusion of the hearing.

Persons who find that there is insufficient time to submit the required information in writing may give oral notice of participation by calling Andrea Herzog, Division of Vaccine Injury Compensation, at (301) 443-6634, no later than January 9, 2014.

After reviewing the notices of participation and accompanying information, HHS will schedule each appearance and notify each participant by mail, email, or telephone of the time allotted to the person(s) and the approximate time the person's oral presentation is scheduled to begin.

Written comments and transcripts of the hearing will be made available for public inspection as soon as they have been prepared, on weekdays (federal holidays excepted) between the hours of 8:30 a.m. and 5 p.m. (EDT) at the Division of Vaccine Injury Compensation, Room 11C-26, Parklawn Building, 5600 Fishers Lane, Rockville, Maryland 20857.

We will accept written comments and information during this reopened comment period on our proposed rule to list the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog as endangered species, and the Yosemite toad as a threatened species, that was published in the Federal Register on April 25, 2013 (78 FR 24472). We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

(1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species, and regulations that may be addressing those threats.

(2) Additional information concerning the historical and current status, range, distribution, and population size of these species, including the locations of any additional populations of these species.

(3) Any information on the biological or ecological requirements of these species, and ongoing conservation measures for these species and their habitats.

(4) The factors that are the basis for making a listing determination for a species under section 4(a) of the Act (16 U.S.C. 1531 et seq. ), which are:

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

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

(c) Disease or predation;

(d) The inadequacy of existing regulatory mechanisms; or

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

(5) Land use designations and current or planned activities in the areas occupied by the species, and possible impacts of these activities on these species.

(6) Information on the projected and reasonably likely impacts of climate change on the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad.

(7) Input on whether we should retain the northern and southern DPSs of the mountain yellow-legged frog in the final rule or should we combine the two DPSs into one listed entity for the species.

We will also accept written comments and information during this reopened comment period on our proposed designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad, which was published in the Federal Register on April, 25, 2013 (78 FR 24516), our DEA of the proposed designation, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

(1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq. ), including whether there are threats to these species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.

(2) Specific information on:

(a) The amount and distribution of Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and Yosemite toad, and their habitats;

(b) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species;

(c) Where these features are currently found;

(d) Whether any of these features may require special management considerations or protection;

(e) Which areas currently occupied contain features essential to the conservation of these species should be included in the designation, and why; and

(f) Which areas not currently occupied are essential for the conservation of these species, and why.

(3) Land use designations and current or planned activities in the areas occupied by the species or proposed to be designated as critical habitat, and possible impacts of these activities on these species and their proposed critical habitats.

(4) Information on the projected and reasonably likely impacts of climate change on the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad, and on their proposed critical habitats and whether the critical habitat may adequately account for these potential effects. We also seek information on special management considerations or protection that may be needed in the proposed critical habitat areas, including management for the potential effects of climate change.

(5) Any probable economic, national security, or other relevant impacts that may result from designating any area as critical habitat that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.

(6) Information on the extent to which the description of probable economic impacts in the DEA is complete and accurate, and specifically:

(a) Whether there are incremental costs of critical habitat designation (for example, costs attributable solely to the designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad) that have not been appropriately identified or considered in our economic analysis, including costs associated with future administrative costs or project modifications that may be required by Federal agencies related to section 7 consultation under the Act; and

(b) Whether there are additional project modifications that may result from the designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad, and what those potential project modifications might represent.

(7) The likelihood of adverse social reactions to the designation of critical habitat as discussed in the DEA and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed critical habitat designation.

(8) Whether any specific areas proposed for critical habitat designation should be considered for exclusion under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any specific area outweigh the benefits of including that area under section 4(b)(2) of the Act.

(9) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.

If you submitted comments or information on the proposed rule (78 FR 24516) during either of the previous comment periods from April 25, 2013, to June 24, 1013, or July 19, 2013, to November 18, 2013, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning critical habitat will take into consideration all written comments and any additional information we receive during the comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

You may submit your comments and materials concerning the proposed rules or DEA by one of the methods listed in ADDRESSES . We request that you send comments only by the methods described in ADDRESSES .

If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

Comments and materials we receive, as well as supporting documentation we used in preparing the proposed listing, proposed critical habitat, and DEA, will be available for public inspection on http://www.regulations.gov at Docket Number FWS-R8-ES-2012-0100 for the proposed listing and Docket Number FWS-R8-ES-2012-0074 for the proposed critical habitat, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ). You may obtain copies of the proposed rule to designate critical habitat and the DEA on the Internet at http://www.regulations.gov at Docket Number FWS-R8-ES-2012-0100 for the proposed listing and Docket Number FWS-R8-ES-2012-0074 for the proposed critical habitat, or by mail from the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT section).

It is our intent to discuss only those topics directly relevant to the designation of critical habitat for Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad in this document. For more information on previous Federal actions concerning the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad, refer to the proposed designation of critical habitat published in the Federal Register on April 25, 2013 (78 FR 24516). For more information on the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad or its habitat, refer to the proposed listing rule published in the Federal Register on April 25, 2013 (78 FR 24472). Both are available online at http://www.regulations.gov (at Docket Number FWS-R8-ES-2012-0074 for the listing and Docket Number FWS-R8-ES-2012-0100 for the critical habitat designation) or from the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT ).

On April 24, 2013, we published a proposed rule to designate critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad (78 FR 24516). We proposed to designate approximately 447,341 hectares (1,105,400 acres) as critical habitat for the Sierra Nevada yellow-legged frog in Butte, Plumas, Lassen, Sierra, Nevada, Placer, El Dorado, Amador, Calaveras, Alpine, Mariposa, Mono, Madera, Tuolumne, Fresno, and Inyo Counties, California as critical habitat; approximately 89,637 hectares (221,498 acres) as critical habitat for the northern DPS mountain yellow-legged frog in Fresno and Tulare Counties, California; and approximately 303,889 hectares (750,926 acres) as critical habitat for Yosemite toad in Alpine, Tuolumne, Mono, Mariposa, Madera, Fresno, and Inyo Counties, California. That proposal had an initial 60-day comment period, ending June 24, 2013; however, we reopened the comment period from July 19, 2013, to November 18, 2013 (78 FR 45122). We anticipate submitting for publication in the Federal Register a final critical habitat designation for Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad on or before April 25, 2014, if we finalize our proposed rule to list the species under the Act.

Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.

Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.

When considering the benefits of inclusion for an area, we consider among other factors, the additional regulatory benefits that an area would receive through the analysis under section 7 of the Act addressing the destruction or adverse modification of critical habitat as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of identifying areas containing essential features that aid in the recovery of the listed species, and any ancillary benefits triggered by existing local, State or Federal laws as a result of the critical habitat designation.

When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to incentivize or result in conservation; the continuation, strengthening, or encouragement of partnerships; and the implementation of a management plan. In the case of the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad, the benefits of critical habitat include public awareness of the presence of these species, and the importance of habitat protection. Where a Federal nexus exists, critical habitat would benefit the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad though increased habitat protection due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies. We have not proposed to exclude any areas from critical habitat.

The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed critical habitat designation for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. The DEA separates conservation measures into two distinct categories according to “without critical habitat” and “with critical habitat” scenarios. The “without critical habitat” scenario represents the baseline for the analysis, considering protections otherwise afforded to the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad (e.g., under the Federal listing and other Federal, State, and local regulations). The “with critical habitat” scenario describes the incremental impacts specifically due to designation of critical habitat for the species. In other words, these incremental conservation measures and associated economic impacts would not occur but for the designation of critical habitat. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the DEA, but economic impacts associated with these measures are not quantified. Economic impacts are only quantified for conservation measures implemented specifically due to the designation of critical habitat (i.e., incremental impacts). For a further description of the methodology of the analysis, see Chapter 2, “Framework for the Analysis,” of the DEA.

The DEA provides estimated costs of the foreseeable potential economic impacts of the proposed critical habitat designation for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad over the next 17 years. This timeframe was determined to be the appropriate period for analysis because planning information is not available for most activities to forecast activity levels for projects beyond a 17-year timeframe. The DEA identifies potential incremental costs as a result of the proposed critical habitat designation. These incremental costs are associated with the designation of critical habitat and are above those baseline costs attributed to listing.

The DEA quantifies economic impacts of the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad conservation efforts associated with the following categories of activity: (1) Fish stocking/persistence; (2) dams and water diversions; (3) grazing; (4) fuels management; (5) timber harvests; (6) recreation; and (7) habitat and species management.

The DEA concludes that incremental impacts resulting from the critical habitat designation are limited to the administrative costs of considering adverse modification in section 7 consultation. Estimating the impact of a regulation on future outcomes is inherently uncertain, as well as estimating the timing and duration of the administrative costs associated with section 7 consultation. Due to the uncertainty in the specifics of how Federal agencies will fulfill their section 7 requirements, cost estimates were calculated for a low-end scenario (single range-wide consultation) and a high-end scenario (project-by-project consultation). The DEA estimates total potential incremental economic impacts in areas proposed as critical habitat over the next 17 years (2014 to 2030) to be approximately $630,000 ($60,000 annualized) under the low-end scenario and approximately $1.5 million ($140,000 annualized) under the high-end scenario. These impact estimates are in present-value terms and apply a 7 percent discount rate (Industrial Economics Incorporated 2013, p. 4-1).

Under the low-end scenario, costs related to dams and water diversions represent approximately 75 percent of overall incremental impacts, while costs for grazing and timber harvest activities represent approximately 8 and 5 percent of forecast impacts, respectively. In the high-end scenario, costs related to timber harvest activities represent approximately 49 percent of overall incremental impacts, with dams and water diversion activities representing 32 percent, and grazing activities representing 15 percent.

As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rules and our amended required determinations. We may revise the proposed rules or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of the species.

In our April 25, 2013, proposed rule (78 FR 24516), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ), the National Environmental Policy Act (42 U.S.C. 4321 et seq. ), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA data, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), E.O. 12630 (Takings), and E.O. 13211 (Energy, Supply, Distribution, and Use).

Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA; 5 U.S.C. 801 et seq. ), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effects of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of the agency certifies the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the RFA to require Federal agencies to provide a certification statement of the factual basis for certifying that the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking.

According to the Small Business Administration, small entities include small organizations such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.

To determine if the proposed designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as fish stocking, dams and water diversions, grazing, fuels management, timber harvest activities, and recreation. In order to determine whether it is appropriate for our agency to certify that this proposed rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation does not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. If the proposed listing is made final, in areas where the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, or the Yosemite toad is present, Federal agencies will be required to consult with us under section 7(a)(2) of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into that consultation process.

In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. Because the Service, the National Park Service, and the U.S. Forest Service are the only entities with expected direct compliance costs related to fish stocking, grazing, fuels management, and recreation, and these agencies are not considered small entities, this rule will not result in any impact to small entities regarding these activities. This rule has the potential to impact four small entities that operate dams and water diversion for power generation, and the impact is expected to range from 0.0003 to 0.01 percent of the entities' reported annual revenues. This rule also has the potential to impact small entities engaged in timber harvest activities on Federal lands. Given the limited information available to specifically determine which small entities may be impacted, we conservatively estimate that approximately 358 small entities associated with timber harvest activities may be impacted by this rule. While there is insufficient information to accurately quantify the impact to these small entities, we anticipate that approximately 4 percent of these entities will be impacted in any given year, and that the magnitude of impact will be small, as it is limited to the minor administrative costs of consultation. Please refer to the DEA of the proposed critical habitat designation for a more detailed discussion of potential economic impacts.

The Service's current understanding of the requirements under the RFA, as amended, and following recent court decisions, is that Federal agencies are only required to evaluate the potential incremental impacts of rulemaking on those entities directly regulated by the rulemaking itself, and therefore, not required to evaluate the potential impacts to indirectly regulated entities. The regulatory mechanism through which critical habitat protections are realized is section 7 of the Act, which requires Federal agencies, in consultation with the Service, to ensure that any action authorized, funded, or carried by the Agency is not likely to adversely modify critical habitat. Therefore, under these circumstances only Federal action agencies are directly subject to the specific regulatory requirement (avoiding destruction and adverse modification) imposed by critical habitat designation. Under these circumstances, it is our position that only Federal action agencies will be directly regulated by this designation. Federal Agencies are not small entities and, to this end, there is no requirement under the RFA to evaluate the potential impacts to entities not directly regulated. Therefore, because no small entities are directly regulated by this rulemaking, the Service certifies that, if promulgated, the proposed critical habitat designation will not have a significant economic impact on a substantial number of small entities.

In summary, we have considered whether the proposed designation would result in a significant economic impact on a substantial number of small entities. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed critical habitat designation would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.

In accordance with E.O. 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we have analyzed the potential takings implications of designating critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad in a takings implications assessment. As discussed above, the designation of critical habitat affects only Federal actions. Although private parties that receive Federal funding, assistance, or require approval or authorization from a Federal agency for an action may be indirectly impacted by the designation of critical habitat, the legally binding duty to avoid destruction or adverse modification of critical habitat rests squarely on the Federal agency. The economic analysis found that no significant economic impacts are likely to result from the designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad. Because the Act's critical habitat protection requirements apply only to Federal agency actions, few conflicts between critical habitat and private property rights should result from this designation. Based on information contained in the DEA and described within this document, it is not likely that economic impacts to a property owner would be of a sufficient magnitude to support a takings action. Therefore, the takings implications assessment concludes that this designation of critical habitat for the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad does not pose significant takings implications for lands within or affected by the designation.

Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. OMB has provided guidance for implementing this Executive Order that outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration. The DEA finds that impacts to the energy industry from this rule are expected to be limited to additional administrative costs. Thus, based on information in the DEA, energy-related impacts associated with the Sierra Nevada yellow-legged frog, the northern DPS of the mountain yellow-legged frog, and the Yosemite toad within critical habitat are not expected. As such, the designation of critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and no Statement of Energy Effects is required.

The primary authors of this document are the staff members of the Sacramento Fish and Wildlife Office, Pacific Southwest Region, U.S. Fish and Wildlife Service.

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

The United States is a member of the IATTC, which was established under the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission. The full text of the 1949 Convention is available at: http://www.iattc.org/PDFFiles/IATTC_convention_1949.pdf.

The IATTC facilitates scientific research into, as well as conservation and management of, highly migratory species of fish in the IATTC Convention Area (defined as the waters of the EPO). Since 1998, conservation resolutions adopted by the IATTC have further defined the Convention Area as the area bounded by the coast of the Americas, the 50° N. and 50° S. parallels, and the 150° W. meridian. The IATTC has maintained a scientific research and fishery monitoring program for many years, and regularly assesses the status of tuna and billfish stocks in the EPO to determine appropriate catch limits and other measures deemed necessary to prevent overexploitation of these stocks and to promote sustainable fisheries. Current IATTC member countries include: Belize, Canada, China, Chinese Taipei (Taiwan), Colombia, Costa Rica, Ecuador, El Salvador, the European Union, France, Guatemala, Japan, Kiribati, the Republic of Korea, Mexico, Nicaragua, Panama, Peru, the United States, Vanuatu, and Venezuela. Bolivia, Honduras, Indonesia and the Cook Islands are cooperating non-members.

As a Contracting Party to the 1949 Convention and a member of the IATTC, the United States is legally bound to implement IATTC resolutions. The Tuna Conventions Act (16 U.S.C. 951-962 and 971 et seq. ) directs the Secretary of Commerce, after approval by the Secretary of State, to promulgate such regulations as may be necessary to implement resolutions adopted by the IATTC. The Secretary's authority to promulgate such regulations has been delegated to NMFS.

At its 85th Meeting, in June 2013, the IATTC adopted Resolution C-13-02, “Measures for the Conservation and Management of Bluefin Tuna in the Eastern Pacific Ocean,” which is the subject of this rulemaking; it was approved by the Secretary of State, thereby prompting implementation by NMFS.

The main objective of Resolution C-13-02 is to conserve Pacific bluefin tuna ( Thunnus orientalis ) by setting limits on the commercial catch of Pacific bluefin tuna in the IATTC Convention Area for 2014. Recognizing the need to reduce fishing mortality of Pacific bluefin tuna throughout its pan-Pacific range, the IATTC first adopted catch limits for Pacific bluefin tuna in the EPO for calendar years 2012 and 2013 with Resolution C-12-09. NMFS implemented the resolution via rulemaking for the United States in 2013 (see final rule at 78 FR 33240, June 4, 2013). As with Resolution C-12-09, Resolution C-13-02 includes two catch limits: (1) A Commission-wide limit for all commercial fishing vessels of all IATTC member countries and cooperating non-member countries (collectively known as CPCs) fishing in the EPO and (2) a catch limit of 500 metric tons for commercial vessels of each CPC with a historical record of Pacific bluefin catch from the EPO—such as the United States—to allow these nations some opportunity to catch Pacific bluefin tuna, notwithstanding the shared Commission-wide catch limit. For 2014, the Commission-wide catch limit is 5,000 metric tons and the catch limit for each CPC with a history of Pacific bluefin tuna catch is 500 metric tons.

Resolution C-13-02 reaffirms “. . . that it is necessary to take precautionary management measures throughout the range of the resource to contribute to the stability of the stock of Pacific bluefin tuna.” In 2011, NMFS determined overfishing is occurring on Pacific bluefin tuna (76 FR 28422, May 17, 2011). Based on the results of a 2012 stock assessment conducted by the International Scientific Committee for Tuna and Tuna-like Species in the North Pacific Ocean (ISC), NMFS determined Pacific bluefin tuna was not only experiencing overfishing but was also overfished (78 FR 41033, July 9, 2013). In 2012, the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (WCPFC) adopted a conservation and management measure for Pacific bluefin tuna to ensure that the level of fishing mortality does not increase (CMM 2012-06). The WCPFC met in December 2013 and adopted a resolution called Conservation and Management Measure for Pacific Bluefin tuna (CMM-2013-09) and the IATTC will convene in the summer of 2014 to discuss the future management of Pacific bluefin tuna. Future conservation measures for Pacific bluefin tuna are expected to be based in part on information and advice from the ISC and the IATTC's scientific staff.

While Pacific bluefin tuna catch by U.S. commercial vessels fishing in the EPO exceeded 1,000 metric tons in the early 1990's, catches have remained below 500 metric tons for more than a decade. The U.S. commercial catch of Pacific bluefin tuna for the years 1999 to 2012 in the EPO can be found in Table 1 below. The average annual Pacific bluefin tuna catch as determined by landings receipts of U.S. commercial vessels fishing in the EPO from 2007 to 2011 represents only two percent of the average annual landings for all fleets fishing in the EPO during that period (for information on Pacific bluefin tuna harvests in the EPO, see: http://isc.ac.affrc.go.jp/pdf/ISC12pdf/ISC12_Plenary_Report-FINAL.pdf ).

Under this proposed rule, once Pacific bluefin tuna catch limits have been reached, NMFS will prohibit any further targeting, retaining on board, transshipping, or landing of Pacific bluefin tuna in the Convention Area, because these activities can be effectively verified for enforcement purposes. Therefore, targeting, retaining on board, transshipping, or landing of Pacific bluefin tuna by all U.S. commercial vessels in the IATTC Convention Area shall be prohibited for the remainder of 2014 when the Commission-wide commercial catch limit of 5,000 metric tons of Pacific bluefin tuna is reached, and the 500 metric tons commercial catch limit of Pacific bluefin tuna is reached by the U.S. fleet. If the U.S. commercial fishing fleet has not caught 500 metric tons of Pacific bluefin tuna in the Convention Area in 2014 when the Commission-wide 5,000 metric tons catch limit is reached, then the U.S. commercial fleet may continue to target, retain, transship, or land Pacific bluefin tuna until the 500 metric ton limit is reached. The U.S. commercial fleet may continue to target, retain, transship, or land more than the 500 metric tons of Pacific bluefin tuna in 2014 unless and until the Commission-wide catch limit of 5,000 metric tons is reached.

To ensure that the total catch of Pacific bluefin tuna taken from the IATTC Convention Area does not exceed the Commission-wide catch limit for 2014, NMFS will report U.S. catch to the IATTC Director on a monthly basis. The IATTC Director will inform CPCs when 50 percent of the Commission-wide limit is reached. The Director will likewise send similar notices when 60, 70, and 80 percent of the Commission-wide limit is reached. When 90 percent is reached, the Director will send the corresponding notice to all CPCs, with a projection of when the 5,000 metric ton Commission-wide limit will be reached, at which time CPCs are expected to take the necessary internal measures to avoid exceeding the limit. NMFS will provide updates on Commission-wide and U.S. catches to the public via the highly migratory and coastal pelagic species listservs and the West Coast Region Web site: http://www.westcoast.fisheries.noaa.gov/fisheries/migratory_species/bluefin_tuna_harvest_status.html. Additionally, NMFS will report preliminarily estimated Pacific bluefin tuna catch between monthly intervals if and when catches approach the limits to help participants in the U.S. commercial fishery plan for the possibility of the catch limit being reached.

When NMFS is informed that the 5,000 metric ton Commission-wide limit has been met (based on information provided by the IATTC Director) and that the 500 metric ton catch limit is expected to be reached before the end of 2014 (based on landings receipts, data submitted in logbooks, and other available fishery information), NMFS will publish a notice in the Federal Register announcing that the targeting, retaining, transshipping or landing for Pacific bluefin tuna will be prohibited on a specified effective date through December 31, 2014. Upon that effective date, a commercial fishing vessel of the United States may not be used to target, retain on board, transship, or land Pacific bluefin tuna captured in the Convention Area during the period specified in the announcement, with the exception that any Pacific bluefin tuna already on board a fishing vessel on the effective date may be retained on board, transshipped, and/or landed, to the extent authorized by applicable laws and regulations, provided that they are landed within 14 days after the effective date. NMFS anticipates limits to catches of Pacific bluefin tuna in the EPO to be included in future resolutions by the IATTC.

The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Tuna Conventions Act and other applicable laws. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. Additionally, while there are no new collection-of-information requirements associated with this action that are subject to the Paperwork Reduction Act, existing collection-of-information requirements associated with the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species still apply. These requirements have been approved by the Office of Management and Budget under Control Number 0648-0204. The initial regulatory flexibility analysis is summarized in the following paragraphs.

The main objective of this proposed rule is to establish catch limits to contribute to the conservation of the Pacific bluefin tuna stock. This rule would apply to owners and operators of U.S. commercial fishing vessels that catch Pacific bluefin tuna in the IATTC Convention Area. Each vessel that would be affected is considered a small business according to the Small Business Administration's revised size standards (78 FR 37398, June 20, 2013), which increased the size standard for Finfish Fishing from $ 4.0 to 19.0 million, Shellfish Fishing from $ 4.0 to 5.0 million, and Other Marine Fishing from $4.0 to 7.0 million. Pacific bluefin tuna do not serve as the primary target species for any U.S. commercial vessels, but rather are incidentally or opportunistically caught by U.S. commercial vessels fishing in the EPO. Therefore, the action is not expected to have a significant or disproportional economic impact on these small business entities.

NMFS will publish a notice in the Federal Register announcing that restrictions will be effective from the dates specified through the end of the calendar year. NMFS will take reasonable actions to inform vessel owners in advance of publishing, in a Federal Register announcement, the effective date for the restrictions on targeting, retaining, transshipping, or landing Pacific bluefin tuna captured in the IATTC Convention Area. In the event that the limit on Pacific bluefin tuna catch is reached in 2014, it will be the responsibility of the commercial vessel owner to ensure that no further targeting of Pacific bluefin tuna occurs, and that no more Pacific bluefin tuna are retained on board, transshipped, or landed after the specified dates published in the Federal Register notice announcing that the annual limit is expected to be reached.

While this proposed rule does not mandate any new “reporting” or “recordkeeping” requirements for the public, some compliance costs may be associated with the regulations if the restrictions on targeting, retaining, transshipping, or landing Pacific bluefin tuna captured in the IATTC Convention Area becomes effective in 2014 as a result of the commercial catch limits being reached. The Pacific bluefin tuna commercial catch limits are not expected to result in closing fishing of Pacific bluefin tuna in the Convention Area to U.S. commercial vessels because annual U.S. catches of Pacific bluefin tuna have not reached 500 metric tons in more than a decade. In the event of a closure under this rule, the cost of compliance would be de minimis. Compliance costs could consist of returning incidentally caught bluefin tuna to the ocean, forgoing associated profits, and potentially losing fishing opportunity if bluefin are available to the U.S. fleet during the time a closure is in place.

The U.S. catch of Pacific bluefin tuna in the EPO represents a relatively minor component of the overall catch of Pacific bluefin tuna from the EPO. The average annual U.S. catch of Pacific bluefin tuna was 113 metric tons for 1999 through 2012. Table 1 (above) illustrates U.S. commercial catch of bluefin tuna in the EPO for the years 1999 to 2012. Pacific bluefin tuna is commercially caught by U.S. vessels fishing in the EPO on an irregular basis. Most of the landings are made by small coastal purse seine vessels operating in the Southern California Bight with limited additional landings made by the drift gillnet fleet that targets swordfish and thresher shark. Lesser amounts of Pacific bluefin tuna are caught by surface hook and line and longline gear (typically less than .05 metric tons per year for these gear types combined). The number of purse seine vessels that have landed tuna in California averaged 197 annually from 1981 through 1990. However, from 2000 to 2013, six small purse seiners have been registered with the IATTC to target Pacific bluefin tuna in the Convention Area each year. The landings data suggests that they opportunistically targeted Pacific bluefin tuna in alternate years since 2001. The decline in the number of domestic vessels is correlated in part with the relocation of large cannery operations.

NMFS compared the effects of the Pacific bluefin tuna restrictions imposed by this rule to a no action alternative. Under the no action alternative, there would be no limit on U.S. commercial catches of Pacific bluefin tuna in the IATTC Convention Area. It is unlikely that any benefit to U.S. commercial fisheries would be gained from not implementing Resolution C-13-02 as recent trends in Pacific bluefin tuna catch data indicate that it is unlikely that the U.S. catch limit will be reached. However, failing to adopt this rule would result in the United States not satisfying its international obligations as a member of the IATTC. Furthermore, implementing Resolution C-13-02 could benefit the conservation of Pacific bluefin tuna by limiting catches if the fish were to become abundantly available to U.S. commercial vessels fishing in the EPO in 2014.

For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows:

This rule proposes specifications, which are the combined suite of commercial and recreational catch levels established for one or more fishing years. The specification process also allows for the modification of a select number of management measures, such as closure thresholds, gear restrictions, and possession limits. The Council's process for establishing specifications relies on provisions within the Atlantic Mackerel, Squid, and Butterfish (MSB) Fishery Management Plan (FMP) and its implementing regulations, as well as requirements established by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Specifically, section 302(g)(1)(B) of the Magnuson-Stevens Act states that the Scientific and Statistical Committee (SSC) for each Regional Fishery Management Council shall provide its Council ongoing scientific advice for fishery management decisions, including recommendations for acceptable biological catch (ABC), preventing overfishing, maximum sustainable yield, and achieving rebuilding targets. The ABC is a level of catch that accounts for the scientific uncertainty in the estimate of the stock's defined overfishing level (OFL). The Council's SSC met on May 15 and 16, 2013, confirming 2014 specifications for Illex squid, longfin squid, and Atlantic mackerel (mackerel) and recommending ABCs for the 2014 butterfish specifications. As previously mentioned, NMFS set the specifications for longfin squid and Illex squid for 3 years in 2012 (77 FR 51858; August 27, 2012) and for mackerel in 2013 (78 FR 3346; January 16, 2013). Information on these specifications are not included in this action and can be found in the final rules for those actions, as referenced above.

The MSB FMP's implementing regulations require the involvement of a monitoring committee in the specification process for each species. The monitoring committees' role has largely been to recommend any reduction in catch limits from the SSC-recommended ABCs to offset management uncertainty, and to recommend other management measures (e.g., gear and/or possession restrictions) needed for the efficient management of the fisheries. The MSB Monitoring Committee met on May 28, 2013, to discuss specification related recommendations for the 2014 butterfish fishery, changes in management measures in the squid and butterfish fisheries, and the establishment of the river herring/shad (RH/S) cap in the mackerel fishery.

Following the SSC and MSB Monitoring Committee meetings, the Council considered the committees' recommendations and public comments at its June 2013, meeting in Eatontown, NJ, and made their specification recommendations. The Council submitted these recommendations, along with the required analyses, for agency review on August 15, 2013, with final submission on December 18, 2013. NMFS must review the Council's recommendations to ensure that they comply with the FMP and applicable law, and conduct notice-and-comment rulemaking to propose and implement the final recommendations.

The MSB regulations require the specification of annual catch limits (ACL) and accountability measure (AM) provisions for mackerel and butterfish (both squid species are exempt from the ACL/AM requirements because they have a life cycle of less than 1 year). In addition, the regulations require the specification of domestic annual harvest (DAH), domestic annual processing (DAP), and total allowable level of foreign fishing (TALFF), along with joint venture processing for (JVP) and commercial and recreational annual catch totals (ACT) for mackerel, the butterfish mortality cap in the longfin squid fishery, and initial optimum yield (IOY) for both squid species.

Table 1 outlines all of the proposed butterfish specifications for the 2014 fishing year, which are further explained below.

Most recent assessments of the butterfish resource do not provide conclusive advice on the status of the butterfish resource in order to make a determination of whether or not the stock is overfished. A new assessment is underway and expected to be finalized in January 2014. To address this, NOAA's Northeast Fisheries Science Center (NEFSC) expanded its fall trawl survey data (i.e., the survey that best samples butterfish) to a range of total swept area biomass based on ranges of reasonable assumptions regarding catchability, and also investigated likely fishing mortalities from various catch levels. The results of this strongly supported that a catch of 9,100 mt would be extremely unlikely to cause overfishing if the 2014 biomass of butterfish is similar to butterfish biomass over 2006-2012.

Additional NEFSC analysis examined the range of probable fishing mortalities that would result from relatively conservative assumptions about butterfish biomass. This analysis suggested that catches of 18,200 mt would only lead to overfishing under the most extreme assumptions (i.e., assuming that the entire Atlantic butterfish stock falls within the bounds of the NEFSC's fall trawl survey area, and that the survey catches 100 percent of the butterfish in each sample location). The SSC therefore adopted 18,200 mt as a proxy OFL and recommended an ABC of 9,100 mt (50 percent of the OFL, and an 8-percent increase from the 2013 ABC). The relatively large 50-percent buffer accounts for uncertainty in the evaluation of fishing mortality associated with the catch levels. A detailed summary of the SSC's rationale for its 2014 butterfish ABC recommendation is available in its May 2013 Report (available, along with other materials from the SSC discussion, at: http://www.mafmc.org/ssc-meeting-documents ).

The Council recommended setting the butterfish ACL equal to the ABC, and establishing a 10-percent buffer between ACL and ACT for management uncertainty, which would result in an ACT of 8,190 mt. From this amount, the Council recommended setting the DAH and DAP at 3,200 mt and the butterfish discard cap in the longfin fishery at 3,884 mt. The remaining 1,106 mt of the ACT allows for discards in other fisheries to minimize the likelihood of an ACL overage. Since up to 3 percent of the ACL for butterfish may be set aside for scientific research, the Council recommended setting aside up to 2 percent of the butterfish ACT (i.e., 164 mt). This allocation would be accounted for within the 1,106-mt unallocated portion of the ACT that covers butterfish discards in other fisheries.

NMFS proposes specifications, consistent with the Council's recommendation, that would set the butterfish ABC/ACL at 9,100 mt, the ACT at 8,190 mt, the DAH and DAP at 3,200 mt, and the butterfish mortality cap on the longfin squid fishery at 3,884 mt. Additionally, consistent with MSB regulations, NMFS is proposing zero TALFF for butterfish in 2014. Butterfish TALFF is only specified to address bycatch by foreign fleets targeting mackerel TALFF. Because no mackerel TALFF was allocated for the 2013-2015 fishing years, butterfish TALFF is also proposed to be set at zero for 2014.

Consistent with 2013, NMFS proposes that the 2014 butterfish mortality cap be allocated by Trimester, as follows:

This action also proposes to increase the butterfish possession limit in Phase 3 of the directed butterfish fishery. Currently, NMFS manages the directed butterfish fishery in three phases. Table 3 shows the phases and possession limits, and the fishery moves from Phase 1, to Phase 2, and to Phase 3 when catch reaches specified thresholds throughout the year. When NMFS projects the butterfish harvest to reach the catch threshold for Phase 3, the trip limit for all limited access permit holders is currently reduced to 500 lb (0.23 mt) to avoid quota overages, but the incidental trip limit remains at 600 lb (0.27 mt). This action would increase the Phase 3 possession limit from 500 lb (0.23 mt) to 600 lb (0.27 mt) to allow for consistency with the current incidental butterfish trip limit.

Consistent with 2013, NMFS proposes the following quota thresholds to reduce the trip limits for Phases 2 and 3 (Tables 4 and 5):

This action proposes a river herring and shad (RH/S) catch cap in the mackerel fishery. In order to limit RH/S catch, Amendment 14 to the FMP (proposed rule published August 29, 2013, 78 FR 53404; partial approval by Secretary on November 7, 2013) includes the provision to allow the Council to set a RH/S cap. However, the actual value of the cap must be set through annual specifications. As such, this action proposes the Council's recommended RH/S catch cap of 236 mt. This amount represents the estimated median amount of RH/S that would have been caught, had the commercial mackerel fishery landed its current quota of 33,821 mt for each year during 2005-2012 based on analysis of observer and landings. RH/S caught on all trips that land 20,000 lb (9.07 mt) or more of mackerel would count against the cap. Once NMFS estimates that directed mackerel trips have caught 95 percent of the 236-mt RH/S cap, then the directed mackerel fishery would close, and NMFS would institute a 20,000-lb mackerel trip limit, as currently occurs if the directed mackerel fishery closes. The improved reporting and monitoring requirements proposed in Amendment 14 would enable monitoring of the RH/S cap. This proposed RH/S cap amount should create a strong incentive for the fleet to avoid RH/S, would allow for the possibility of the full mackerel quota to be caught if the fleet can avoid RH/S, and would likely reduce RH/S catches over time, compared to what would occur without a cap, given recent data.

This action proposes to increase the Trimester II longfin squid post-closure possession limit for longfin squid/butterfish moratorium permit holders from 2,500 lb (1.13 mt) to 15,000 lb (6.80 mt) for vessels targeting Illex squid if they are fishing seaward of the Illex mesh exemption line and have more than 10,000 lb (4.54 mt) of Illex onboard. In recent years, fishermen are reporting that, to remain in compliance with longfin squid regulations, they sometimes have to discard large quantities of longfin squid while Illex fishing during longfin squid Trimester II after that trimester closes (i.e., from July 10-August 31 in 2012). Increasing the longfin squid possession limit to accommodate the multi-day nature of Illex fishing trips would reduce the potential for high levels of regulatory discarding of longfin on such trips. Requiring a minimal Illex possession requirement of 15,000 lb (6.80 mt) should help ensure that vessels are actually Illex fishing when they utilize this provision, and restricting the proposed possession limit increase to areas beyond the Illex mesh exemption line should help prevent vessels returning from Illex fishing from targeting longfin squid in inshore areas after a Trimester II closure. This action does not propose changes for the post-closure possession limit for longfin squid during Trimesters I (January 1-April 30) or III (September 1-December 31). The post-closure possession limit for longfin squid would remain 2,500 lb (1.13 mt) during those Trimesters.

This proposed rule also contains minor corrections to existing regulations, and would reinstate regulations that were inadvertently deleted in previous rulemakings. NMFS proposes these adjustments under the authority of section 305(d) to the Magnuson-Stevens Act, which provides that the Secretary of Commerce may promulgate regulations necessary to ensure that amendments to an FMP are carried out in accordance with the FMP and the Magnuson-Stevens Act. These adjustments, which are identified and described below, are necessary to clarify current regulations or the intent of the FMP and would not change the intent of any regulations.

NMFS proposes to clarify the coordinates at § 648.23(a)(3) to more accurately define the Illex exemption line. Most significantly, this action proposes to create a southern boundary for the exemption by extending the southernmost point eastward until it intersects with the boundary of the Exclusive Economic Zone. In addition, this rule proposes to reinstate the coordinates for the MSB bottom trawling restricted areas (i.e., Oceanographer Canyon and Lydonia Canyon) at § 648.23(a)(4), which were inadvertently deleted in previous rulemaking.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Atlantic Mackerel, Squid, and Butterfish FMP; other provisions of the Magnuson-Stevens Act; and other applicable law, subject to further consideration after public comment.

This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from the Council or NMFS (see ADDRESSES ) or via the Internet at http://www.nero.noaa.gov.

This action proposes 2014 specifications for butterfish, along with management measures for the longfin squid, butterfish, and mackerel fisheries. A complete description of the reasons why this action is being considered, and the objectives of and legal basis for this action, are contained in the preamble to this proposed rule and are not repeated here.

On June 20, 2013, the Small Business Administration (SBA) issued a final rule revising the small business size standards for several industries effective July 22, 2013 (78 FR 37398). The rule increased the size standard for Finfish Fishing from $4.0 to $19.0 million, Shellfish Fishing from $4.0 to $5.0 million, and Other Marine Fishing from $4.0 to $7.0 million. NMFS has reviewed the analyses prepared for this action in light of the new size standards. Under the former, lower size standards, all entities subject to this action were considered small entities, thus they all would continue to be considered small under the new standards.

The proposed measures in the 2014 MSB Specifications and Management Measures could affect any vessel holding an active Federal permit to fish for Atlantic mackerel, longfin squid, Illex squid, or butterfish. Having different size standards for different types of marine fishing activities creates difficulties in categorizing businesses that participate in more than one of these activities. For now, the short-term approach is to classify a business entity into the SBA defined categories based on which activity produced the highest gross revenue. In this case, Atlantic mackerel is the only species with significant recreational fishing, and in 2012, the charter boat industry harvested only 10,000 lb (4.54 mt). Based on these assumptions, the finfish size standard would apply, and the business is considered large, only if revenues are greater than $19 million. As such, all of the potentially affected businesses are considered small entities under the standards described in NMFS guidelines, because they have gross receipts that do not exceed $19 million annually. Based on permit data for 2013, 2,441 commercial or charter vessels possessed MSB permits for the 2013 fishing year, and similar numbers of vessels are expected to have MSB permits for 2014. Many vessels participate in more than one of these fisheries; therefore, permit numbers are not additive.

Although it is possible that some entities, based on rules of affiliation, would qualify as large business entities, due to lack of reliable ownership affiliation data NMFS cannot apply the business size standard at this time. NMFS is currently compiling data on vessel ownership that should permit a more refined assessment and determination of the number of large and small entities for future actions. For this action, since available data are not adequate to identify affiliated vessels, each operating unit is considered a small entity for purposes of the RFA, and, therefore, there is no differential impact between small and large entities. Therefore, there are no disproportionate economic impacts on small entities. Section 6.7 in Amendment 14 describes the vessels, key ports, and revenue information for the MSB fisheries; therefore, that information is not repeated here.

There are no new reporting or recordkeeping requirements contained in any of the alternatives considered for this action. In addition, there are no Federal rules that duplicate, overlap, or conflict with this proposed rule.

The proposed RH/S catch cap in the mackerel fishery has the potential to limit the fishery from achieving its full mackerel quota if the RH/S encounter rates are high, but it is very unlikely that the fishery would close before exceeding the levels of landings experienced since 2010, when landings have been less than 11,000 mt. Limiting catches of river herring and shad has the potential to benefit those species, although the extent of this benefit is unknown because overall abundance information for these species is not available.

The butterfish DAH proposed in this action (3,200 mt) represents a 24-percent increase over the 2013 DAH (2,570 mt). The proposed increase in the DAH has the potential to slightly increase revenue for permitted vessels.

In addition, this action proposes a slightly higher trip limit in Phase 3 of the directed butterfish fishery, in order to simplify the regulations and have this limit match the incidental trip limit of 600 lb (0.27 mt). This increase should also have positive economic impacts on the fishery.

The only proposed adjustment to the longfin squid fishery is an increase to the Trimester II longfin squid post-closure possession limit for longfin squid/butterfish moratorium permit holders from 2,500 lb (1.13 mt) to 15,000 lb (6.80 mt) for vessels targeting Illex. This measure should reduce regulatory discarding and provide a small amount of additional revenue; thus, it would have positive economic impacts to the Illex fishery.

The Council analysis evaluated four alternatives to the proposed specifications for butterfish. Of the three the Council did not select, two alternatives would have resulted in lower 2014 specifications. The first of these is the No Action alternative (status quo), which would have set the butterfish ABC at 8,400 mt and resulted in an ACT of 7,560 mt, a DAH and DAP of 2,570 mt, and a butterfish mortality cap at 3,884 mt. The other alternative (the most restrictive) would have set the ABC at 25 percent lower than the proposed alternative (6,825 mt), resulting in an ACT of 6,143 mt, a DAH and DAP of 2,400 mt, and a butterfish mortality cap at 2,913 mt. These alternatives could generate the lowest revenues of all of the considered alternatives. The fourth alternative (the least restrictive) would have set the ABC at 25 percent higher than the proposed alternative (11,375 mt), resulting in an ACT of 10,238 mt, a DAH and DAP of 5,248 mt, and a butterfish mortality cap at 3,884 mt. This alternative could generate increased revenue if more butterfish became available to the fishery. These three alternatives were not selected because they were all inconsistent with the ABC recommended by the SSC.

The Council considered four alternatives for the RH/S catch cap in the mackerel fishery. Aside from the No Action (status quo) alternative, which would not have implemented a catch cap in the fishery because there is currently no cap in place, the Council considered one alternative that would have set the RH/S catch cap at 119 mt (most restrictive) and one alternative that would have set the RH/S catch cap at 456 mt (least restrictive). If the catch cap were set at 119 mt, there would be the greatest likelihood that the cap level could restrict mackerel fishing, whereas setting the RH/S cap at 456 mt would be the least likely to be restrictive. Any cap would be more likely to close the fishery compared to no cap (status quo), the proposed alternative (RH/S cap of 236 mt) would most likely assist in the recovery of RH/S stocks while allowing the mackerel fishery to continue, assuming low RH/S catch rates.

With regards to matching Phase 3 and the incidental trip limits in the butterfish fishery, the Council considered two other alternatives in addition to the proposed alternative (i.e., increasing the Phase 3 trip limit from 500 lb (0.23 mt) to 600 lb (0.27 mt), to match the incidental limit). One alternative was the No Action alternative, which would have unnecessarily continued the regulatory confusion by requiring two different possession limits based on permit type. The other alternative would have lowered the incidental limit to 500 lb (0.23 mt) to match the current Phase 3 limit, which potentially could have the effect of converting currently retained butterfish catch into discards. The proposed alternative would resolve this confusion over different trip limits, while continuing to discourage directed fishing.

The Council considered three alternatives related to the post-closure possession limit of longfin squid in the Illex fishery. The most restrictive alternative considered was the No Action (status quo) alternative, which would continue the current longfin squid trip limit of 2,500 lb (1.13 mt) in Trimester 3. The proposed alternative, which would increase the possession limit to 15,000 lb (6.80 mt), is the least restrictive alternative. The other alternative considered would have increased the longfin squid possession limit to 10,000 lb (4.54 mt). Compared to the other two alternatives, the status quo alternative would continue to result in high levels of regulatory discards of longfin squid and would result in lower revenues than the other alternatives considered. Although the other two alternatives would both result in previously discarded longfin squid being landed, the proposed alternative with its higher possession limit would result in the highest potential revenue.

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