Title III of the Energy Policy and Conservation Act, 42 U.S.C. 6291, et seq., (EPCA) sets forth a variety of provisions designed to improve the energy efficiency of products and commercial equipment. (All references to EPCA refer to the statute as amended through the American Energy Manufacturing Technical Corrections Act (AEMTCA 2012), Pub. L. 112-210 (December 18, 2012)). Part C of Title III (42 U.S.C. 6311-6317), which was subsequently redesignated as Part A-1 for editorial reasons, establishes an energy conservation program for certain industrial equipment, which includes compressors, the subject of today's notice. (42 U.S.C. 6311(2)(B)(i))

Section 341 of EPCA, 42 U.S.C. 6312, provides a general statement of purpose to improve the efficiency of electric motors and pumps and certain other industrial equipment to conserve the energy resources of the Nation. Accordingly, section 341 further provides that the Secretary of Energy may, by rule, classify certain equipment as covered equipment if he determines that to do so is necessary to carry out the purposes of Part A-1 of EPCA. In considering whether to establish energy conservation standards for commercial air compressors, DOE issued a Proposed Determination of Coverage and has proposed to determine that commercial and industrial air compressors are covered equipment (77 FR 76972 (December 31, 2012)). DOE received comments from interested parties, which are available in docket number EERE-2013-BT-STD-0040, and have been considered in developing this Framework Document. 1 Also see http://www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx/ruleid/58.

DOE has prepared the Framework Document to explain the relevant issues, analyses, and processes it anticipates using when considering new energy conservation standards for commercial and industrial air compressors. The focus of the public meeting noted above will be to discuss the information presented and issues identified in the Framework Document. At the public meeting, DOE will make presentations and invite discussion on the process as it applies to commercial and industrial air compressors. DOE will also solicit comments, data, and information from participants and other interested parties.

DOE is planning to conduct in-depth technical analyses in the following areas: (1) Engineering; (2) energy use; (3) equipment price; (4) life-cycle cost and payback period; (5) national impacts; (6) manufacturer impacts; (7) emission impacts; (8) utility impacts; (9) employment impacts; and (10) regulatory impacts. DOE will also conduct several other analyses that support those previously listed, including the market and technology assessment, the screening analysis (which contributes to the engineering analysis), and the shipments analysis (which contributes to the national impact analysis).

Public Partiticaption: DOE encourages those who wish to participate in the public meeting to obtain the Framework Document and to be prepared to discuss its contents. A copy of the Framework Document is available at: http://www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx/ruleid/58.

Public meeting participants need not limit their comments to the issues identified in the Framework Document. DOE is also interested in comments on other relevant issues that participants believe would affect energy conservation standards for these products, applicable test procedures, or the preliminary determination on the scope of coverage. DOE invites all interested parties, whether or not they participate in the public meeting, to submit in writing by March 24, 2014, comments and information on matters addressed in the Framework Document and on other matters relevant to DOE's consideration of coverage of and standards for commercial and industrial air compressors.

The public meeting will be conducted in an informal, facilitated, conference style. There shall be no discussion of proprietary information, costs or prices, market shares, or other commercial matters regulated by U.S. antitrust laws. A court reporter will record the proceedings of the public meeting, after which a transcript will be available for purchase from the court reporter and placed on the DOE Web site at: http://www1.eere.energy.gov/buildings/appliance_standards/rulemaking.aspx/ruleid/58.

After the public meeting and the close of the comment period on the Framework Document, DOE will collect data, conduct the analyses as discussed in the Framework Document and at the public meeting, and review the public comments it receives.

DOE considers public participation to be a very important part of the process for determining whether to establish energy conservation standards and, if so, in setting those new standards. DOE actively encourages the participation and interaction of the public during the comment period at each stage of its process. Beginning with the Framework Document, and during each subsequent public meeting and comment period, interactions with and among members of the public provide a balanced discussion of the issues to assist DOE in its efforts to ascertain whether to set standards for commercial and industrial air compressors. Accordingly, anyone who wishes to participate in the public meeting, receive meeting materials, or be added to the DOE mailing list to receive future notices and information about this effort should contact Ms. Brenda Edwards at (202) 586-2945, or via email at Brenda.Edwards@ee.doe.gov.

Comments Invited

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

Communications should identify both docket numbers (FAA Docket No. FAA-2013-0996 and Airspace Docket No. 12-AAL-9) and be submitted in triplicate to the Docket Management System (see ADDRESSES section for address and phone number). You may also submit comments through the Internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2013-0996 and Airspace Docket No. 12-AAL-9”. The postcard will be date/time stamped and returned to the commenter.

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

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

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 1601 Lind Avenue SW., Renton, WA 98057.

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

The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface and establishing Class E airspace extending upward from 1,200 feet above the surface at Ugnu-Kuparuk Airport, Kuparuk, AK, to provide for the safety and management of aircraft departing and arriving under IFR operations at the airport. Class E airspace extending upward from 700 feet above the surface would be modified to within a 6.5mileradius of the airport, with a segment extending from the 6.5-mile radius of the airport to 9.5-miles east of the airport. Controlled airspace west of the airport would be removed as it is no longer required for aircraft arriving and departing under IFR operations. A segment of Class E airspace extending upward from 1,200 feet above the surface would be established within a 20-mile radius of the airport to allow aircraft to transition to the overlying airways. This would enhance the safety and management of aircraft operations at the airport. This action would also make an adjustment to the geographic coordinates of the airport.

Class E airspace designations are published in paragraph 6005, of FAA Order 7400.9X, dated August 7, 2013, and effective September 15, 2013, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in this Order.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority for the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify controlled airspace at Ugnu-Kuparuk Airport, Kuparuk, AK.

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

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

In this action, EPA is proposing to make a determination that the Macon Area is continuing to attain the 1997 annual PM 2.5 NAAQS  1 and to take additional actions related to Georgia's request to redesignate the Macon Area, which are summarized as follows and described in greater detail throughout this notice of proposed rulemaking: (1) To redesignate the Macon Area to attainment for the 1997 annual PM 2.5 NAAQS; and (2) to approve, under section 175A of the Clean Air Act (CAA or Act), Georgia's 1997 annual PM 2.5 NAAQS maintenance plan, including the associated MVEBs, for the Macon Area into the Georgia SIP.

First, EPA proposes to determine that the Macon Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. In this action, EPA is proposing to approve a request to change the legal designation of Bibb County and a portion of Monroe County from nonattainment to attainment for the 1997 annual PM 2.5 NAAQS.

Second, EPA is proposing to approve Georgia's 1997 annual PM 2.5 NAAQS maintenance plan for the Macon Area (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to help keep the Macon Area in attainment of the 1997 annual PM 2.5 NAAQS through 2023. As explained in Section V, EPA is also proposing to approve that attainment can be maintained through 2024. The maintenance plan that EPA is proposing to approve today includes on-road MVEBs for the mobile source contribution of direct PM 2.5 and NO X to the air quality problem in the Macon Area for transportation conformity purposes. EPA is proposing to approve (into the Georgia SIP) the 2023 MVEBs that are included as part of Georgia's maintenance plan for the 1997 annual PM 2.5 NAAQS.

Further, EPA proposes to make the determination that the Macon Area is continuing to attain the 1997 annual PM 2.5 NAAQS and that all other redesignation criteria have been met for the Macon Area. The bases for EPA's determination for the Area are discussed in greater detail below.

EPA is also notifying the public of the status of EPA's adequacy process for the 2023 MVEBs for PM 2.5 and NO X for the Macon Area. Please see section VIII of this proposed rulemaking for further explanation of this process and for more details.

Today's notice of proposed rulemaking is in response to Georgia's June 21, 2012, SIP revision, which requests redesignation of the Macon Area to attainment for the 1997 annual PM 2.5 NAAQS and addresses the specific issues summarized above and the necessary elements for redesignation described in section 107(d)(3)(E) of the CAA.

Fine particle pollution can be emitted directly or formed secondarily in the atmosphere. The main precursors of secondary PM 2.5 are sulfur dioxide (SO 2 ), NO X , ammonia, and volatile organic compounds (VOC). See, e.g., 72 FR 20586 at 20589. Sulfates are a type of secondary particle formed from SO 2 emissions of power plants and industrial facilities. Nitrates, another common type of secondary particle, are formed from NO X emissions of power plants, automobiles, and other combustion sources.

On July 18, 1997, EPA promulgated the first air quality standards for PM 2.5 . EPA promulgated an annual standard at a level of 15 micrograms per cubic meter (μg/m 3 ), based on a 3-year average of annual mean PM 2.5 concentrations. In the same rulemaking, EPA promulgated a 24-hour standard of 65 μg/m 3 , based on a 3-year average of the 98th percentile of 24-hour concentrations. On October 17, 2006, at 71 FR 61144, EPA retained the annual average NAAQS at 15 μg/m 3 but revised the 24-hour NAAQS to 35 μg/m 3 , based again on the 3-year average of the 98th percentile of 24-hour concentrations. 2 Under EPA regulations at 40 CFR Part 50, the primary and secondary 1997 annual PM 2.5 NAAQS are attained when the annual arithmetic mean concentration, as determined in accordance with 40 CFR Part 50, Appendix N, is less than or equal to 15.0 μg/m 3 at all relevant monitoring sites in the subject area over a 3-year period.

On January 5, 2005, at 70 FR 944, and supplemented on April 14, 2005, at 70 FR 19844, EPA designated the Macon Area as nonattainment for the annual 1997 PM 2.5 NAAQS. In that action, EPA defined the 1997 PM 2.5 Macon Area to include Bibb County and a portion of Monroe County in Georgia. On November 13, 2009, at 74 FR 58688, EPA promulgated designations for the 24-hour standard established in 2006, designating the Macon Area as attainment for that NAAQS. That action clarified that the Macon Area was classified unclassifiable/attainment for the 1997 24-hour PM 2.5 NAAQS. EPA did not promulgate designations for the 2006 annual PM 2.5 NAAQS because that NAAQS was essentially identical to the 1997 annual PM 2.5 NAAQS. Therefore, the Macon Area is designated nonattainment for the annual PM 2.5 NAAQS promulgated in 1997, and today's action only addresses this designation.

All 1997 PM 2.5 NAAQS areas were designated under subpart 1 of title I, part D, of the CAA. Subpart 1 contains the general requirements for nonattainment areas for any pollutant governed by a NAAQS and is less prescriptive than the other subparts of title I, part D. On April 25, 2007, at 72 FR 20586, EPA promulgated its Clean Air Fine Particle Implementation Rule, codified at 40 CFR Part 51, subpart Z, in which the Agency provided guidance for state and tribal plans to implement the 1997 PM 2.5 annual NAAQS. This rule, at 40 CFR 51.1004(c), specifies some of the regulatory results of attaining the NAAQS, as discussed below. The D.C. Circuit remanded the Clean Air Fine Particle Implementation Rule and the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM 2.5 )” final rule (73 FR 28321, May 16, 2008) (collectively, “1997 PM 2.5 Implementation Rule”) to EPA on January 4, 2013, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013). The court found that EPA erred in implementing the 1997 PM 2.5 NAAQS pursuant to the general implementation provisions of subpart 1 of Part D of Title I of the CAA, rather than the particulate-matter-specific provisions of subpart 4 of Part D of Title I. The effect of the court's ruling on this proposed redesignation action is discussed in detail in Section VI of this notice.

The 3-year ambient air quality data for 2007-2009 indicated no violations of the 1997 PM 2.5 annual NAAQS for the Macon Area. As a result, on June 21, 2012, Georgia requested redesignation of the Macon Area to attainment for the 1997 annual PM 2.5 NAAQS. The redesignation request includes three years of complete, quality-assured ambient air quality data for the 1997 annual PM 2.5 NAAQS for 2007-2009, indicating that the 1997 PM 2.5 NAAQS had been achieved for the Macon Area. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient, complete, quality-assured data is available for the Administrator to determine that the area has attained the standard and the area meets the other CAA redesignation requirements in section 107(d)(3)(E). The Macon Area design value based on data from 2007 through 2009 is 13.5 ug/m 3 , which demonstrates attainment of the standard. While annual PM 2.5 concentrations are dependent on a variety of conditions, the overall improvement in annual PM 2.5 concentrations in the Macon Area can be attributed to the reduction of pollutant emissions, as discussed in more detail in section V of this proposed rulemaking.

The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation provided the following criteria are met: (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and (5) the state containing such area has met all requirements applicable to the area under section 110 and part D of title I of the CAA.

EPA has provided guidance on redesignation in the General Preamble for the Implementation of title I of the CAA Amendments of 1990 (April 16, 1992, 57 FR 13498, and supplemented on April 28, 1992, 57 FR 18070) and has provided further guidance on processing redesignation requests in the following documents:

On June 21, 2012, GA EPD requested the redesignation of the Macon Area to attainment for the 1997 annual PM 2.5 NAAQS. The Macon Area has attained the 1997 annual PM 2.5 NAAQS, and EPA's preliminary evaluation indicates that the Area has met the requirements for redesignation set forth in section 107(d)(3)(E), including the maintenance plan requirements under section 175A of the CAA. EPA is also announcing the status of its adequacy determination for direct PM 2.5 and NO X MVEBs for the Macon Area.

As stated above, in accordance with the CAA, EPA proposes in today's action to: (1) Redesignate the Macon Area to attainment for the 1997 annual PM 2.5 NAAQS; and (2) approve into the Georgia SIP the 1997 annual PM 2.5 NAAQS maintenance plan, including the associated MVEBs, for the Macon Area. Further, EPA proposes to make the determination that the Macon Area is continuing to attain the 1997 annual PM 2.5 NAAQS and that all other redesignation criteria have been met for the Macon Area. The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS (CAA section 107(d)(3)(E)(i)). EPA is proposing to determine that the Macon Area continues to attain the 1997 annual PM 2.5 NAAQS since the September 8, 2011, attainment determination. For PM 2.5 , an area may be considered to be attaining the 1997 annual PM 2.5 NAAQS if it meets the 1997 annual PM 2.5 NAAQS, as determined in accordance with 40 CFR 50.13 and Appendix N of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain these NAAQS, the 3-year average of the annual arithmetic mean concentration, as determined in accordance with 40 CFR Part 50, Appendix N, must be less than or equal to 15.0 μg/m 3 at all relevant monitoring sites in the subject area over a 3-year period. The relevant data must be collected and quality-assured in accordance with 40 CFR Part 58 and recorded in the EPA Air Quality System (AQS) database. The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment. On June 2, 2011, at 76 FR 31858, EPA determined that the Macon Area was attaining the 1997 annual PM 2.5 NAAQS. For that action, EPA reviewed PM 2.5 monitoring data from monitoring stations in the Macon Area for the 1997 annual PM 2.5 NAAQS for 2007-2009. These data have been quality-assured and are recorded in AQS. On September 8, 2011, at 76 FR 55774, EPA finalized a determination that the Macon Area attained the 1997 annual PM 2.5 NAAQS by the applicable attainment date of April 5, 2010. EPA has reviewed more recent data which indicates that the Macon Area continues to attain the 1997 annual PM 2.5 NAAQS beyond the submitted 3-year attainment period of 2007-2009. The most recent year available with complete, quality-assured and certified ambient air monitoring is 2012, during which the Area recorded an annual average PM 2.5 concentration of 13.1 μg/m 3 . EPA has also reviewed the available data in AQS for 2013 which, although not yet complete or certified, indicates the Area continues to attain the 1997 annual PM 2.5 NAAQS. As summarized in Table 1 below, the 3-year average of annual arithmetic mean concentrations (i.e., design values) for the years 2009, 2010, 2011, and 2012 for the Macon Area are below the 1997 annual PM 2.5 NAAQS.

As discussed above, the design value for an area is the highest 3-year average annual mean concentration recorded at any monitor in the area for a 3-year period. Therefore, the 3-year design value for the period on which Georgia based its redesignation request (2007-2009) for the Macon Area is 13.5 μg/m 3 , which meets the NAAQS as described above. Additional details can be found in EPA's final clean data determination for the Macon Area (76 FR 31858, June 2, 2011). If the Area does not continue to attain before EPA finalizes the redesignation, EPA will not go forward with the redesignation. As discussed in more detail below, GA EPD has committed to continue monitoring in this Area in accordance with 40 CFR Part 58.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the state has met all applicable requirements under section 110 and part D of title I of the CAA (CAA section 107(d)(3)(E)(v)) and that the state has a fully approved SIP under section 110(k) for the area (CAA section 107(d)(3)(E)(ii)). EPA proposes to find that Georgia has met all applicable SIP requirements for the Macon Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that the Georgia SIP satisfies the criterion that it meets applicable SIP requirements for purposes of redesignation under part D of title I of the CAA (requirements specific to 1997 annual PM 2.5 nonattainment areas) in accordance with section 107(d)(3)(E)(v). Further, EPA proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were applicable prior to submittal of the complete redesignation request.

General SIP requirements. Section 110(a)(2) of title I of the CAA delineates the general requirements for a SIP, which include enforceable emissions limitations and other control measures, means, or techniques; provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality; and programs to enforce the limitations. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements include, but are not limited to, the following: Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and provisions for the implementation of part D requirements (Nonattainment New Source Review (NNSR) permit programs); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable requirements for purposes of redesignation. However, as discussed later in this notice, addressing pollutant transport from other states is an important part of an area's maintenance demonstration.

In addition, EPA believes that other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purposes of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001).

On June 15, 2012 (77 FR 35909) and February 20, 2013 (78 FR 11805), EPA proposed approval on a submittal from Georgia, addressing “infrastructure SIP” elements required under the CAA section 110(a)(2) for the 1997 annual PM 2.5 NAAQS. 3 However, these are statewide requirements that are not a consequence of the nonattainment status of the Macon Area. As stated above, EPA believes that section 110 elements not linked to an area's nonattainment status are not applicable for purposes of redesignation. Therefore, notwithstanding the fact that EPA has not yet completed rulemaking on Georgia's submittal for the PM 2.5 infrastructure SIP elements of section 110(a)(2), EPA believes that it has approved all SIP elements that must be approved as a prerequisite for redesignating the Macon Area to attainment.

Title I, Part D, subpart 1 applicable SIP requirements. EPA proposes to determine that the Georgia SIP meets the applicable SIP requirements for the Macon Area for purposes of redesignation under part D of the CAA. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. All areas that were designated nonattainment for the 1997 annual PM 2.5 NAAQS were designated under subpart 1 of the CAA. For purposes of evaluating this redesignation request, the applicable part D, subpart 1 SIP requirements are contained in sections 172(c)(1)-(9) and in section 176. A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of title I (57 FR 13498, April 16, 1992). Section VI of this proposed rulemaking notice discusses the relationship between this proposed redesignation action and subpart 4 of Part D.

Subpart 1 Section 172 Requirements . Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all reasonably available control measures (RACM) as expeditiously as practicable and to provide for attainment of the NAAQS. EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in each area as components of the area's attainment demonstration. Under section 172, states with nonattainment areas must submit plans providing for timely attainment and meeting a variety of other requirements. However, pursuant to 40 CFR 51.1004(c), EPA's final determination that the Macon Area is attaining the annual PM 2.5 standard suspended Georgia's obligation to submit most of the attainment planning requirements that would otherwise apply. Specifically, the determination of attainment suspended Georgia's obligation to submit an attainment demonstration and planning SIPs to provide for reasonable further progress (RFP), RACM, and contingency measures under section 172(c)(9).

The General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992) also discusses the evaluation of section 172 requirements in the context of EPA's consideration of a redesignation request. The General Preamble sets forth EPA's view of applicable requirements for purposes of evaluating redesignation requests when an area is attaining a standard.

Because attainment has been reached in the Macon Area, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements for an attainment demonstration and RACM are no longer considered to be applicable for purposes of redesignation as long as the Area continues to attain the standard until redesignation. See also 40 CFR 51.1004(c).

Pursuant to section 172(c)(2), nonattainment plans must contain provisions that require reasonable further progress toward attainment. This requirement is not relevant for purposes of redesignation because EPA has determined that the Macon Area has monitored attainment of the 1997 annual PM 2.5 NAAQS. See General Preamble, 57 FR 13564. See also 40 CFR 51.1004(c). In addition, because the Macon Area has attained the 1997 annual PM 2.5 NAAQS and is no longer subject to a RFP requirement, the requirement to submit the section 172(c)(9) contingency measures is not applicable for purposes of redesignation. Id.

Section 172(c)(3) requires submission and approval of a comprehensive, accurate, and current inventory of actual emissions. On March 2, 2012, EPA approved Georgia's 2002 base-year emissions inventory for the Macon Area as part of the SIP revision submitted by GA EPD to provide for attainment of the 1997 PM 2.5 NAAQS in the Area. See 77 FR 12724. No comments, adverse or otherwise, were received on EPA's proposed approval of the emissions inventory for the Macon Area.

Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources to be allowed in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Georgia has demonstrated that the Macon Area will be able to maintain the NAAQS without part D NSR in effect, and therefore, Georgia need not have fully approved part D NSR programs prior to approval of the redesignation request. Georgia's PSD program will become effective in the Macon Area upon redesignation to attainment.

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

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, EPA believes that the Georgia SIP meets the requirements of section 110(a)(2) applicable for purposes of redesignation.

176 Conformity Requirements. Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that federally-supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally-supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with federal conformity regulations relating to consultation, enforcement and enforceability that EPA promulgated pursuant to its authority under the CAA.

EPA believes that it is reasonable to interpret the conformity SIP requirements 4 as not applying for purposes of evaluating the redesignation request under section 107(d) because state conformity rules are still required after redesignation and federal conformity rules apply where state rules have been approved. See Wall v. EPA, 265 F.3d 426 (upholding this interpretation) (6th Cir. 2001); see also 60 FR 62748 (December 7, 1995, Tampa, Florida). Thus, the Macon Area has satisfied all applicable requirements for purposes of redesignation under section 110 and part D of the CAA.

EPA has fully approved the applicable Georgia SIP for the Macon Area for the 1997 annual PM 2.5 nonattainment area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (see Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984 (6th Cir. 1998); Wall, 265 F.3d 426) plus any additional measures it may approve in conjunction with a redesignation action (see 68 FR 25426 (May 12, 2003) and citations therein). Following passage of the CAA of 1970, Georgia has adopted and submitted, and EPA has fully approved at various times, provisions addressing the various SIP elements applicable for the 1997 annual PM 2.5 NAAQS in the Macon Area (e.g., 77 FR 35909, June 15, 2012).

As indicated above, EPA believes that the section 110 elements not connected with nonattainment plan submissions and not linked to an area's nonattainment status are not applicable requirements for purposes of redesignation. In addition, EPA believes that since the part D subpart 1 requirements did not become due prior to submission of the redesignation request, they are also not applicable requirements for purposes of redesignation. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004); 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis-East St. Louis Area to attainment of the 1-hour ozone NAAQS). EPA has previously approved all part D subpart 1 requirements applicable for purposes of this redesignation. See Section VI of this notice for a discussion of the relationship between part D subpart 4 and this action.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable federal air pollution control regulations and other permanent and enforceable reductions (CAA section 107(d)(3)(E)(iii)). EPA believes that Georgia has demonstrated that the observed air quality improvement in the Macon Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, federal measures, and other state adopted measures.

Fine particulate matter, or PM 2.5 , refers to airborne particles less than or equal to 2.5 micrometers in diameter. Although treated as a single pollutant, fine particles come from many different sources and are composed of many different compounds. In the Macon Area, one of the largest components of PM 2.5 is sulfate, which is formed through various chemical reactions from the precursor SO 2 . The other major component of PM 2.5 is organic carbon, which originates predominantly from biogenic emission sources. Nitrate, which is formed from the precursor NO X , is also a component of PM 2.5 . Crustal materials from windblown dust and elemental carbon from combustion sources are less significant contributors to total PM 2.5 .

State and federal measures enacted in recent years have resulted in permanent emission reductions in particulate matter and its precursors. Most of these emission reductions are enforceable through regulations. A few non-regulatory measures also result in emission reductions. The federal measures that have been implemented include:

Tier 2 vehicle standards and low-sulfur gasoline. In addition to requiring NO X controls, the Tier 2 rule reduced the allowable sulfur content of gasoline to 30 parts per million (ppm) starting in January of 2006. Most gasoline sold prior to this had a sulfur content of approximately 300 ppm.

Heavy-duty gasoline and diesel highway vehicle standards and Ultra Low-Sulfur Diesel Rule. On October 6, 2000, the U.S. EPA promulgated a rule to reduce NO X and VOC emissions from heavy-duty gasoline and diesel highway vehicles that began to take effect in 2004. 65 FR 59896. A second phase of standards and testing procedures began in 2007 to reduce particulate matter from heavy-duty highway engines, and reduce highway diesel fuel sulfur content to 15 ppm since the sulfur in fuel damages high efficiency catalytic exhaust emission control devices. The total program should achieve a 90 percent reduction PM emissions and a 95 percent reduction in NO X emission for new engines using low-sulfur diesel, compared to existing engines using higher-content sulfur diesel.

Nonroad large spark-ignition engines and recreational engines standards. The nonroad spark-ignition and recreational engine standards, effective in July 2003, regulate NO X , hydrocarbons, and carbon monoxide from groups of previously unregulated nonroad engines. These engine standards apply to large spark- ignition engines (e.g., forklifts and airport ground service equipment), recreational vehicles (e.g., off-highway motorcycles and all-terrain-vehicles), and recreational marine diesel engines sold in the United States and imported after the effective date of these standards.

When all of the nonroad spark-ignition and recreational engine standards are fully implemented, an overall 72 percent reduction in hydrocarbons, 80 percent reduction in NO X , and 56 percent reduction in carbon monoxide emissions are expected by 2020. These controls will help reduce ambient concentrations of ozone, carbon monoxide, and fine particulate matter.

Large nonroad diesel engine standards. Promulgated in 2004, this rule is being phased in between 2008 and 2014. This rule will reduce sulfur content in nonroad diesel fuel and, when fully implemented, will reduce NO X and direct PM 2.5 emissions by over 90 percent from these engines.

Reciprocating Internal Combustion Engine standard. Promulgated in 2010, this rule regulates emissions of air toxics from existing diesel powered stationary reciprocating internal combustion engines that meet specific site rating, age, and size criteria. When all of the reciprocating internal combustion engine standards are fully implemented in 2013, EPA estimates that PM 2.5 emissions from these engines will be reduced by approximately 2,800 tons per year (tpy).

Category 3 Marine Diesel Engine standard. Promulgated in 2010, this rule establishes more stringent exhaust emission standards for new large marine diesel engines with per cylinder displacement at or above 30 liters (commonly referred to as Category 3 compression-ignition marine engines) as part of a coordinated strategy to address emissions from all ships that affect U.S. air quality. Near-term standards for newly built engines will apply beginning in 2011, and long-term standards requiring an 80 percent reduction in NO X emissions will begin in 2016.

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

CAIR and CSAPR. EPA recently promulgated the Cross-State Air Pollution Rule (CSAPR) (76 FR 48208, August 8, 2011), to replace the Clean Air Interstate (CAIR), which has been in place since 2005. See 76 FR 59517. CAIR requires significant reductions in emissions of SO 2 and NO X from electric generating units (EGUs) to limit the interstate transport of these pollutants and the ozone and fine particulate matter they form in the atmosphere. See 76 FR 70093. The D.C. Circuit initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR, North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008).

On December 30, 2011, the D.C. Circuit issued an order addressing the status of CSAPR and CAIR in response to motions filed by numerous parties seeking a stay of CSAPR pending judicial review. In that order, the court stayed CSAPR pending resolution of the petitions for review of that rule in EME Homer City Generation, L.P. v. EPA (No. 11-1302 and consolidated cases). The court also indicated that EPA was expected to continue to administer CAIR in the interim until judicial review of CSAPR was completed.

On August 21, 2012, the D.C. Circuit issued a decision to vacate CSAPR. In that decision, it also ordered EPA to continue administering CAIR “pending . . . development of a valid replacement.” EME Homer City, 696 F.3d at 38. The D.C. Circuit denied all petitions for rehearing on January 24, 2013. EPA and other parties have filed petitions for certiorari to the U.S. Supreme Court on March 29, 2013, to review the D.C. Circuit's decision in EME Homer City, and on June 24, 2013, the U.S. Supreme Court granted the United States' petition asking the Court to review the D.C. Circuit's decision on CSAPR. Nonetheless, EPA intends to continue to act in accordance with the EME Homer City opinion.

In light of these unique circumstances and for the reasons explained below, EPA proposes to approve the redesignation request and the related SIP revision for Bibb and a portion of Monroe County in Georgia, including Georgia's plan for maintaining attainment of the 1997 annual PM 2.5 NAAQS in the Macon Area. To the extent that attainment is due to emission reductions associated with CAIR, EPA is here determining that those reductions are sufficiently permanent and enforceable for purposes of CAA sections 107(d)(3)(E)(iii) and 175A. The air quality modeling analysis conducted for CSAPR demonstrates that the Macon Area would be able to maintain the 1997 annual PM 2.5 NAAQS even in the absence of either CAIR or CSAPR. See “Air Quality Modeling Final Rule Technical Support Document,” App. B, B-39. This modeling is available in the docket for this proposed redesignation action. Nothing in the D.C. Circuit's August 2012 decision disturbs or calls into question that conclusion or the validity of the air quality analysis on which it is based.

In addition, as directed by the D.C. Circuit, CAIR remains in place and enforceable until substituted by a valid replacement rule. EPA approved a modification to Georgia's SIP on October 9, 2007, that addressed the requirements of CAIR for the purpose of reducing SO 2 and NO X emissions ( see 72 FR 57202), and Georgia's SIP submittal for redesignation request lists CAIR as a control measure. CAIR was thus in place and getting emission reductions when the Macon Area began monitoring attainment of the 1997 Annual PM 2.5 NAAQS. The quality-assured, certified monitoring data used to demonstrate the area's attainment of the 1997 Annual PM 2.5 NAAQS by the April 5, 2010 attainment deadline was also impacted by CAIR.

To the extent that Georgia is relying on CAIR in its maintenance plan, the recent directive from the D.C. Circuit in EME Homer City ensures that the reductions associated with CAIR will be permanent and enforceable for the necessary time period. EPA has been ordered by the Court to develop a new rule to address interstate transport to replace CSAPR and the opinion makes clear that after promulgating that new rule EPA must provide states an opportunity to draft and submit SIPs to implement that rule. Thus, CAIR will remain in place until EPA has promulgated a final rule through a notice-and-comment rulemaking process, States have had an opportunity to draft and submit SIPs, EPA has reviewed the SIPs to determine if they can be approved, and EPA has taken action on the SIPs, including promulgating a FIP if appropriate. The Court's clear instruction to EPA that it must continue to administer CAIR until a valid replacement exists provides an additional backstop: By definition, any rule that replaces CAIR and meets the Court's direction would require upwind states to have SIPs that eliminate significant contributions to downwind nonattainment and prevent interference with maintenance in downwind areas.

Further, in vacating CSAPR and requiring EPA to continue administering CAIR, the D.C. Circuit emphasized that the consequences of vacating CAIR “might be more severe now in light of the reliance interests accumulated over the intervening four years.” EME Homer City, 696 F.3d at 38. The accumulated reliance interests include the interests of states who reasonably assumed they could rely on reductions associated with CAIR which brought certain nonattainment areas into attainment with the NAAQS. If EPA were prevented from relying on reductions associated with CAIR in redesignation actions, states would be forced to impose additional, redundant reductions on top of those achieved by CAIR. EPA believes this is precisely the type of irrational result the court sought to avoid by ordering EPA to continue administering CAIR. For these reasons also, EPA believes it is appropriate to allow states to rely on CAIR, and the existing emissions reductions achieved by CAIR, as sufficiently permanent and enforceable for purposes such as redesignation. Following promulgation of the replacement rule, EPA will review SIPs as appropriate to identify whether there are any issues that need to be addressed.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA (CAA section 107(d)(3)(E)(iv)). In conjunction with its request to redesignate the Macon Area to attainment for the 1997 annual PM 2.5 NAAQS, GA EPD submitted a SIP revision to provide for the maintenance of the 1997 annual PM 2.5 NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA believes that this maintenance plan meets the requirements for approval under section 175A of the CAA.

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, GA EPD must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, as EPA deems necessary, to assure prompt correction of any future 1997 annual PM 2.5 NAAQS violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: the attainment emissions inventory, maintenance demonstration, monitoring, verification of continued attainment, and a contingency plan. As is discussed below, EPA finds that GA EPD's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Georgia SIP.

The Macon Area attained the 1997 annual PM 2.5 NAAQS based on monitoring data for the 3-year period from 2007-2009. GA EPD has selected 2007 as the attainment emission inventory year. The attainment inventory identifies a level of emissions in the Area that is sufficient to attain the 1997 annual PM 2.5 NAAQS. GA EPD began development of the attainment inventory by first generating a baseline emissions inventory for the Macon Area. As noted above, the year 2007 was chosen as the base year for developing a comprehensive emissions inventory for direct PM 2.5 and the PM 2.5 precursors SO 2 and NO X . Emissions projections to support maintenance through 2023 have been prepared for the years 2017 and 2023. In addition, emissions have been calculated by interpolation for the years 2014 and 2020. The projected inventory included with the maintenance plan estimates emissions forward to 2023, which satisfies the 10-year interval required in section 175(A) of the CAA.

The emissions inventories are composed of four major types of sources: Point, area, on-road mobile, and non-road mobile. The 2007 inventory, with the exception of on-road emissions, was prepared for Georgia by the contractor for the Southeastern Modeling, Analysis, and Planning (SEMAP) project. Under the SEMAP project, emissions estimates are reported by county and source classification code. The SEMAP emissions inventories were developed using data from a number of sources, including state and local agencies and EPA's National Emissions Inventory (NEI). The Georgia Department of Transportation developed the 2007 inventory of on-road mobile emissions.

The 2007 SO 2 , NO X , and PM 2.5 emissions for the Macon Area, as well as the emissions for other years, were developed consistent with EPA guidance and are summarized in Table 2 through 6 of the following subsection discussing the maintenance demonstration.

Section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the Area “for at least 10 years after the redesignation.” EPA has interpreted this as a showing of maintenance “for a period of ten years following redesignation.” Calcagni Memorandum, p. 9. Where the emissions inventory method of showing maintenance is used, the purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory. Calcagni Memorandum, pp. 9-10.

As discussed in detail in the subsection below, Georgia's maintenance plan submission expressly documents that the Area's emissions inventories will remain below the attainment year inventories through 2023. Projected emissions inventory levels in 2023 are well below the attainment year inventory levels, and it is highly improbable that they will suddenly increase and exceed attainment year inventory levels in 2024. In addition, for the reasons set forth below, EPA believes that the Georgia's submission, in conjunction with additional supporting information, further demonstrates that the Area will continue to maintain the 1997 Annual PM 2.5 NAAQS at least through 2024. Thus, if EPA finalizes its proposed approval of the redesignation request and maintenance plans in 2014, the approval will be based upon this showing, in accordance with section 175A, and EPA's analysis described herein, that the Georgia's maintenance plan provides for maintenance for at least ten years after redesignation.

The June 21, 2012, final submittal includes a maintenance plan for the Macon Area. This demonstration:

The State's submittal credits Georgia Rule 391-3-1-.02(2)(sss) as requiring flue gas desulfurization (FGD) and selective catalytic reduction (SCR) controls on the majority of coal-fired electric generating units (EGUs) in the State. The submittal also credits Georgia Rule 391-3-1-.02(2)(uuu) as requiring a 95 percent reduction in SO 2 emissions from the majority of Georgia's coal-fired EGUs, with the requirement being phased in from 2010 through 2016. Within the Macon Area, this rule requires a 95 percent reduction of SO 2 emissions from all four EGUs at Plant Scherer, which is being phased in on individual units between 2011 and 2015. The rule also requires SO 2 emission reductions from other coal-fired EGUs in Georgia.

EPA has not approved Georgia Rules 391-3-1-.02(2)(sss) and 391-3-1-.02(2)(uuu) into Georgia's SIP, and therefore, these rules are not federally enforceable. However, CAIR was one measure that led to air quality improvement in the Macon Area. As discussed above, EPA is interpreting CAA section 107(d)(3)(E)(iii)'s requirement that emission reductions be due to permanent and federally enforceable measures to include CAIR, because of the D.C. Circuit's directive to leave CAIR in place until it is replaced by a new rule. Although modeling completed as part of the CSAPR rulemaking showed that the Area would continue to maintain the standard even in the absence of CAIR or CSAPR, to the extent that the Area's maintenance of the standard relies on CAIR, EPA is proposing to find CAIR may be relied upon under CAA section 175A as well. Unlike the state-only rules discussed above, CAIR was approved into Georgia's SIP. Although the state-only rules have more specific unit control requirements than the provisions of CAIR, the State implemented them in response to CAIR and they require emission reductions in NO X and SO 2 consistent with CAIR's original schedule starting in 2009. Since the controls are already in the process of being installed to comply with both CAIR and these state-only rules, EPA regards the emission estimates based on the installation and operation of these controls to be both an accurate projection of how CAIR will continue to be implemented in the Macon Area and an appropriate basis upon which to project the emission inventory.

I. General Authorities, Impetus for Rulemaking, and Existing Rules

LSC's current appropriation restrictions, including those governing the assistance that may be provided to aliens, were enacted in 1996 and have been reincorporated annually with amendments. Section 504(a)(11) of the FY 1996 LSC appropriation prohibits the Corporation from providing funds to any person or entity (recipient) that provides legal assistance to aliens other than those covered by statutory exceptions. Sec. 504(a)(11), Public Law 104-134, Title V, 110 Stat. 1321, 1321-54 (1996).

In subsequent years, Congress expanded eligibility to discrete categories of aliens. In 1997, Congress passed the Kennedy Amendment, which allowed LSC recipients to use non-LSC funds to provide related legal assistance to aliens who were battered or subjected to extreme cruelty in the United States by family members. Sec. 502(a)(2)(C), Public Law 104-208, Div. A, Title V, 110 Stat. 3009, 3009-60 (1996). Congress limited the type of assistance that recipients could provide to “legal assistance directly related to the prevention of, or obtaining relief from, the battery or cruelty described in” regulations issued pursuant to VAWA (hereinafter “related assistance”). Sec. 502(b)(2), Public Law 104-208, Div. A, Title V, 110 Stat. 3009-60. Congress renewed the Kennedy Amendment in the FY 1998 reincorporation and modification of the LSC appropriation restrictions. Sec. 502(a)(2)(C), Public Law 105-119, Title V, 111 Stat. 2440, 2511 (1997). Thereafter, LSC's annual appropriation has incorporated the FY 1998 restrictions by reference. See, e.g., Public Law 113-6, Div. B, Title IV, 127 Stat. 198, 268 (2013) (LSC FY 2013 appropriation). The next expansions of eligibility came through the passage of the Victims of Trafficking and Violence Protection Act of 2000 (TVPA) and its progeny. Public Law 106-386, 114 Stat. 1464 (2000) (22 U.S.C. 7101 note). Through the TVPA, Congress directed the Board of Directors of LSC, along with Federal benefits granting agencies, to “expand benefits and services to victims of severe forms of trafficking in persons in the United States, without regard to the immigration status of such victims.” Sec. 107(b)(1)(B), Public Law 106-386, 114 Stat. 1475 (22 U.S.C. 7105(b)(1)(B)). Congress passed the Trafficking Victims Protection Reauthorization Act (TVPRA) in 2003, which made certain family members of victims of severe forms of trafficking (“derivative T-visa holders”) eligible to receive legal services from LSC-funded recipients. Sec. 4(a)(2)(B)(i), Public Law 108-193, 117 Stat. 2875, 2877 (2003) (22 U.S.C. 7105(b)(1)(B)).

In January 2006, Congress passed the Violence Against Women and Department of Justice Reauthorization Act of 2005 (VAWA 2005). VAWA 2005 further amended section 502(a)(2)(C) of the FY 1998 LSC appropriation to expand the categories of aliens to whom recipients may provide related assistance by adding aliens who (1) are victims of sexual assault or trafficking in the United States; or (2) qualify for U-visas under section 101(a)(15)(U) of the Immigration and Nationality Act (INA). Sec. 104, Public Law 109-162, 119 Stat. 2960, 2978 (2006). The U-visa provision of the INA allows aliens who are victims of one or more of the crimes listed therein and who may assist in law enforcement investigations or prosecutions related to such crimes, or who are family members of such victims, to remain in the United States for a limited period. 8 U.S.C. 1101(a)(15)(U). Additionally, VAWA 2005 removed the Kennedy Amendment's restriction on the use of LSC funds to provide representation to aliens who are eligible for services under VAWA 2005. Sec. 104(a)(1)(A), Public Law 109-162, 119 Stat. 2979-80. The amended text of section 502 is not codified, but the pertinent portion is available at http://www.lsc.gov/about/lsc-act-other-laws/violence-against-women-act-public-law-109-162-2006.

The final expansion of eligibility occurred in 2007. The FY 2008 LSC appropriation amended section 504(a)(11) of the FY 1996 LSC appropriation to extend eligibility for assistance to forestry workers admitted to the United States under the H-2B temporary worker provision in section 101(a)(15)(H)(ii)(b) of the INA. Sec. 540, Public Law 110-161, Div. B, Title V, 121 Stat. 1844, 1924 (2007).

LSC last revised Part 1626 in 1997. After the alienage restrictions were enacted in 1996, LSC adopted an interim rule to implement the restrictions. 61 FR 45750, Aug. 29, 1996. While this rule was pending for comment, Congress passed the Kennedy Amendment. LSC subsequently revised Part 1626 to implement the Kennedy Amendment. 62 FR 19409, Apr. 21, 1997, amended by 62 FR 45755, Aug. 29, 1997. In 2003, LSC added a list of documents establishing the eligibility of aliens for legal assistance from LSC grant recipients as an appendix to Part 1626. 68 FR 55540, Sept. 26, 2003. The appendix has not been changed since 2003.

After 1997, LSC apprised recipients through program letters of certain statutory changes expanding alien eligibility for legal assistance provided by LSC-funded recipients. Program Letter 02-5 (May 15, 2002) (TVPA); Program Letter 05-2 (Oct. 6, 2005) (TVPRA; superseded Program Letter 02-5); Program Letter 06-2 (Feb. 21, 2006) (VAWA 2005). The final rule would incorporate the policies set forth in Program Letters 05-2 and 06-2. Both letters will be superseded upon publication of the final rule and will be removed from the “Current Program Letters” page of LSC's Web site.

As a result of the numerous amendments to the alien eligibility provisions of the FY 1996 LSC appropriation, the Corporation determined that rulemaking to update Part 1626 was appropriate. On April 14, 2013, the Operations and Regulations Committee (the Committee) of the LSC Board of Directors (the Board) recommended that the Board authorize rulemaking to conform Part 1626 to statutory authorizations. On April 16, 2013, the Board authorized the initiation of rulemaking.

Pursuant to the LSC Rulemaking Protocol, LSC staff prepared a proposed rule amending Part 1626 with an explanatory rulemaking options paper. On July 22, 2013, the Committee recommended that the Board approve the proposed rule for notice and comment rulemaking. On July 23, 2013, the Board approved the proposed rule for publication in the Federal Register for notice and comment. LSC published the notice of proposed rulemaking (the NPRM) in the Federal Register on August 21, 2013. 78 FR 51696, Aug. 21, 2013. The comment period remained open for sixty days and closed on October 21, 2013.

On January 23, 2014, the Committee considered the draft final rule for publication. After hearing from staff and stakeholders about changes to section 1626.4(c) in the final rule and the possible consequences of those changes, the Committee voted to recommend delaying final consideration of the rule pending an opportunity for public comment on those changes. On January 25, 2014, the Board voted to proceed with a further notice of proposed rulemaking. LSC is seeking comment on only that section of the final rule and does not anticipate revising the rest of the rule.

All of the comments and related memos submitted to the LSC Board regarding this rulemaking are available in the open rulemaking section of LSC's Web site at http://www.lsc.gov/about/regulations-rules/open-rulemaking. After the effective date of the rule, those materials will appear in the closed rulemaking section at http://www.lsc.gov/about/regulations-rules/closed-rulemaking

LSC received fifteen comments in response to the NPRM. Eight comments were submitted by LSC-funded recipients, four were submitted by non-LSC funded non-profit organizations, and three were submitted by individuals. All of the comments are posted on the rulemaking page of LSC's Web site: www.lsc.gov/about/regulations-rules. Most commenters supported the revisions to conform Part 1626 to the statutes expanding eligibility for legal services to certain crime victims, victims of severe forms of trafficking, and H-2B forestry workers. LSC received the greatest number of comments in response to the three issues the Corporation specifically sought comment on: The distinction between the VAWA 2005 and TVPA definitions of “trafficking,” the geographic location of the predicate activity for eligibility, and the geographic location of the victim.

In the final rule, definitions that the proposed rule placed in section 1626.4(c) would be moved to section 1626.2. As a result, paragraphs (d) through (g) of section 1626.4 would be relabeled as paragraphs (c) through (f). In the following discussion of the comments and the changes to the proposed rule, the relabeled paragraphs will be referred to by the number to be used in the final rule, except where the proposed rule is explicitly referenced.

LSC received seven comments in response to this request. Of the seven, one observed a trend of linking the VAWA and INA definitions of trafficking to the TVPA term “severe forms of trafficking” and suggested that the term “severe forms of trafficking” should control all uses of the term “trafficking.” The other six commenters generally agreed that the VAWA 2005 term “trafficking” differs from the term “severe forms of trafficking” used in the TVPA and the INA. All six of those commenters believed that “trafficking” as used in VAWA 2005 is a broader term than the TVPA's “severe forms of trafficking.” This belief applied to both the plain term “trafficking” in VAWA 2005 and the qualifying crime of trafficking for purposes of U-visa eligibility under section 101(a)(15)(U) of the INA. One commenter noted that “the term `trafficking' was included in the U-visa provisions to cover forms of human trafficking” in which persons were being trafficked, but would have difficulty meeting the “severe forms of trafficking” standard to obtain eligibility for benefits under the TVPA. By making trafficking a crime for which individuals could qualify for related legal assistance or a U-visa, the commenter continued, Congress extended “protection and help [to] both the trafficking victims who could meet the severe forms test and those who could not.”

Commenters differed, however, in how they believed LSC should account for the difference in definitions. Five commenters recommended that LSC adopt VAWA 2005's broader term “trafficking” over the TVPA's “severe forms of trafficking.” A sixth commenter asserted that in determining eligibility, “a LSC funded organization should be able to rely on the applicable state statute which would make the applicant eligible for a U visa or the federal statute which defines `severe form of trafficking,' whichever is broader. Moreover, LSC funded organizations should be able to rely on any evidence that supports the applicable definition in a particular case.”

In order to qualify for a U-visa, an alien must be a victim of at least one of the types of criminal activity listed in section 101(a)(15)(U)(iii) of the INA. The listed crimes, which include “trafficking,” must “violate[ ] the laws of the United States or occur[ ] in the United States (including in Indian country and military installations) or the territories and possessions of the United States[.]” 8 U.S.C. 1101(a)(15)(U)(i)(IV). Neither the INA nor VAWA 2005 defines the term “trafficking.”

The TVPA also fails to define “trafficking,” although it does define and use the terms “severe forms of trafficking in persons” and “sex trafficking.” 22 U.S.C. 7102. The TVPA defines “sex trafficking” as “the recruitment, harboring, transportation, provision, or obtaining of a person for the purpose of a commercial sex act.” 22 U.S.C. 7102(9). “Severe forms of trafficking in persons” means (a) “sex trafficking in which a commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such act has not attained 18 years of age;” or (b) “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” 22 U.S.C. 7102(8). The TVPA does not reference state, tribal, or territorial laws that criminalize trafficking.

LSC agrees with the commenters that the VAWA term “trafficking,” incorporating as it does crimes that would constitute trafficking if they violated state or federal law, is broader than both “sex trafficking” and “severe forms of trafficking in persons” as defined in the TVPA. Indeed, “trafficking” as used in VAWA 2005 would include both sex trafficking and severe forms of trafficking in persons, as both are defined as crimes by a federal law, the TVPA. For purposes of eligibility for services under section 1626.4, LSC would retain the proposed definitions of “victim of trafficking” and “victim of severe forms of trafficking” with minor revisions to track the relevant statutes more closely. The reason for using these definitions is that victims of trafficking under VAWA 2005 and victims of severe forms of trafficking under the TVPA are eligible for differing types of legal assistance. Trafficking victims eligible under VAWA may receive legal assistance related to battery, cruelty, sexual assault, or trafficking and other specified crimes, while victims of severe forms of trafficking under the TVPA may receive any legal assistance that is not otherwise restricted and is within the recipient's priorities. It is therefore important to retain the distinction between the two in order to ensure that individuals receive the legal assistance that is appropriate for their basis of eligibility.

LSC also sought comment on the types of evidence that recipients should rely on to distinguish between victims of trafficking under VAWA 2005 and victims of severe forms of trafficking under the TVPA. Only one commenter responded to this request, stating that the organization was unclear about what kind of information LSC sought. The commenter also stated that “recipients should be able to rely on the definition in the statute that is applicable to the crime involved and evidence that meets that definition.” In response to this comment, LSC would revise proposed section 1626.4(e), renumbered as section 1626.4(d) in the final rule, to separate the evidence that may be presented by individuals eligible for legal assistance under VAWA 2005 from forms of evidence that may be presented by victims of severe forms of trafficking under the TVPA. For individuals who claim eligibility based on being a victim of trafficking under VAWA 2005, section 1626.4(d)(2) would incorporate the list used in proposed section 1626.4(e). LSC notes that this list is nonexclusive, and that recipients may accept other types of credible evidence. Evidence may also include an application for a U-visa or evidence that the individual was granted a U-visa.

Section 1626.4(d)(3) would set forth the types of evidence that are unique to victims of severe forms of trafficking. These forms of evidence include a certification letter issued by the U.S. Department of Health and Human Services (HHS) or, in the case of a minor victim of severe forms of trafficking, an interim or final eligibility letter issued by HHS. Recipients may also call the HHS trafficking verification line at (202) 401-5510 or (866) 401-5510 to confirm that HHS has issued an alien a certification letter. HHS is the only federal agency authorized to certify victims of severe forms of trafficking to receive public benefits or to issue eligibility letters to minors. It is important to note that minors do not need to have an eligibility letter to be eligible for services. Recipients only need to determine that a minor meets the definition of a victim of severe forms of trafficking in 22 U.S.C. 7105(b)(1)(C).

LSC proposed to interpret the VAWA 2005 phrase “victim of trafficking in the United States” and the TVPA phrase “victim of severe forms of trafficking in the United States” to require that an alien be trafficked into or experience trafficking within the United States to be eligible for legal assistance from LSC-funded recipients. LSC believed that this interpretation was necessary because LSC read the qualifier “in the United States” to apply to the activity of trafficking, rather than to the victim of trafficking.

With regard to the geographical restriction as it applied to trafficking under VAWA 2005, LSC received eight comments. One commenter simply stated that LSC's interpretation was correct. Seven commenters disagreed with LSC's proposed interpretation, arguing in all instances that “in the United States” modified “victim of trafficking” or “victim of severe forms of trafficking,” rather than just “trafficking.” Of the commenters who disagreed with LSC's interpretation, four linked the VAWA 2005 language to the language in section 7105(b)(1)(B) of the TVPA authorizing LSC and federal benefits granting agencies to expand benefits and services to “victims of severe forms of trafficking in the United States[.]” These commenters understood the phrase “in the United States” to “refer to the location of the victim, rather than the location of the abuse,” and relied on the heading of section 7105(b), “Victims in the United States,” in support of their reading. One commenter noted that trafficking is a qualifying crime for U-visa eligibility, and that section 101(a)(15)(U) of the INA does not require that an alien have been a victim of one of the qualifying crimes within the United States to be eligible to receive a U-visa. Two commenters noted that VAWA 2005 authorizes the use of LSC funds to provide legal assistance to both “victims of sexual assault or trafficking in the United States” and aliens who qualify for a U-visa, which they asserted meant that even if LSC's interpretation were correct, LSC-funded recipients could still provide assistance to aliens who were victims of sexual assault or trafficking outside the United States because both crimes are qualifying crimes under section 101(a)(15)(U)(iii). The last commenter opposing LSC's interpretation observed that the VAWA 2005 amendments to section 502 made that section “internally inconsistent.” The commenter remarked that VAWA 2005 created two categories of eligibility—one for victims of battery, extreme cruelty, sexual assault, or trafficking “in the United States,” and one for aliens qualified for U-visa status, which specifically contemplates that qualifying crimes are those that “violated the laws of the United States or occurred in the United States (including in Indian country and military installations) or the territories and possessions of the United States[.]” 8 U.S.C. 1101(a)(15)(U)(i)(IV). Because trafficking is a qualifying crime for U-visa eligibility, the commenter continued, VAWA 2005 appears to treat trafficking inconsistently. Finally, the commenter noted that by treating trafficking as requiring activity to occur in the United States, but not placing the same requirement on sexual assault and domestic violence, which are also qualifying crimes for U-visa eligibility, the regulation is unnecessarily internally inconsistent.

The same seven commenters likewise opposed LSC's proposed interpretation of the TVPA term “victims of severe forms of trafficking in the United States.” Most of the commenters pointed to the plain language of the TVPA and the INA in support of their argument. First, they noted that the TVPA definition of “severe form of trafficking in persons” does not include a geographical limitation to trafficking activities that occur in the United States. Second, they assert that the title of section 107(b) of the TVPA, “Victims in the United States,” makes clear that it is the victims, rather than the activities, that must be in the United States. 22 U.S.C. 7105(b). Finally, they relied on the INA criteria for T-visa eligibility. In order to qualify for a T-visa, an alien must be a victim of a severe form of trafficking in persons; must be willing to cooperate with law enforcement, unable to cooperate due to physical or psychological trauma, or be under the age of 18; and must be “physically present in the United States . . . on account of such trafficking, including physical presence on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking[.]” 8 U.S.C. 1101(a)(15)(T).

LSC has considered all comments and has reviewed the relevant section of the INA, section 101(a)(15)(T). Section 101(a)(15)(T)(i)(II) requires that to qualify for a T visa, an alien must be a victim of severe forms of trafficking and be “physically present in the United States, American Samoa, or the Commonwealth of the Northern Mariana Islands, or at a port of entry thereto, on account of such trafficking, including physical presence on account of the alien having been allowed entry into the United States for participation in investigative or judicial processes associated with an act or a perpetrator of trafficking[.]” 8 U.S.C. 1101(a)(15)(T)(i)(II). The United States Citizenship and Immigration Service's (USCIS) information page for T nonimmigrant status reflects this language in a simplified form, stating that in order to be eligible for a T-visa, an alien must be “in the United States, American Samoa, the Commonwealth of the Northern Mariana Islands, or at a port of entry due to trafficking [.]” Victims of Human Trafficking: T Nonimmigrant Status, www.uscis.gov/humanitarian/victims-human-trafficking-other-crimes/victims-human-trafficking-t-nonimmigrant-status (emphasis added). The INA clearly requires that a victim of severe forms of trafficking be present in the United States as a result of trafficking activity in order to qualify for immigration relief, but it does not require that the trafficking itself occur within the United States.

It would be inconsistent with the plain language of the INA, VAWA 2005, and the TVPA and its progeny to require that an alien have been trafficked into or within the United States to qualify for legal assistance from an LSC-funded recipient. For this reason, and for the reasons stated by the commenters, LSC would revise the language in proposed section 1626.4(d)(1) to remove the requirement that an alien have been subjected to trafficking activity in the United States in order to be eligible to receive legal assistance from an LSC recipient.

LSC would also make two technical amendments to proposed section 1626.4(d). The first would rename proposed section 1626.4(d) “Relationship to the United States,” and section 1626.4(d)(1) “Relation of activity to the United States.” LSC would make these changes to reflect that although the criminal activity giving rise to eligibility under VAWA does not need to occur in the United States, the crime must have violated the laws of the United States. The second change would restate in section 1626.4(d)(1) the language from section 101(a)(15)(U)(i)(IV) of the INA that a listed crime must have violated the laws of the United States or occurred within the United States in order to be a qualifying crime for purposes of U-visa eligibility.

LSC proposed that aliens eligible to receive legal assistance under one of the anti-abuse statutes would be eligible for such assistance regardless of whether they were present in the United States. LSC reasoned that the anti-abuse statutes, viewed collectively, did not require an alien to be present in the United States to be eligible to receive legal assistance. LSC received eight comments on this issue. Seven commenters agreed with LSC's proposed position. One commenter opposed.

The seven commenters responding in support of LSC's position generally noted that the position was consistent with section 101(a)(15)(U) of the INA, which contemplates that an alien who qualifies for U-visa relief may have been a victim of a qualifying crime that occurred outside the United States. One commenter pointed out that Congress amended VAWA to allow eligible victims to file petitions for relief from outside the United States. Another commenter remarked that victims of abuse may find themselves outside the United States for reasons related to the abuse if suffered here, and that the legal assistance provided by an LSC-funded recipient may be essential to ensuring that the victims are able to petition successfully for legal status.

The commenter opposing LSC's proposal first argued that LSC is improperly “tying the removal of geographical presence in with the new applicability of assistance to aliens receiving U visas.” The commenter believed that the ability of aliens who were victims of qualifying crimes that occurred outside the United States to apply for U-visa relief from outside the United States “has no bearing on territorial requirements for individuals receiving assistance from the VAWA amendments.” Secondly, the commenter argued that allowing recipients to represent aliens not present in the United States would significantly increase the case work of LSC recipients and would likely lead to the expenditure of scarce resources in pursuit of frivolous petitions for immigration relief. None of the LSC recipients who commented on the NPRM indicated that they were unable to serve adequately aliens eligible under the anti-abuse statutes or were otherwise compromising their representation of other eligible clients.

LSC continues to believe that the proposed language is consistent with USCIS's interpretation of the U-visa provisions and with Congressional intent in removing the requirement that an alien have been a victim of battery, extreme cruelty, or sexual abuse in the United States. As discussed in the preceding section, however, the VAWA 2005 amendment to section 502(a)(2)(C) of the FY 1998 LSC appropriation is internally inconsistent with respect to whether victims of trafficking must be in the United States in order to be eligible for benefits. This is because the U-visa provision of the INA, which includes trafficking as a qualifying crime, contemplates that the trafficking may occur outside the United States, see 8 U.S.C. 1101(a)(15)(U)(i)(IV) (“the criminal activity described in clause (iii) violated the laws of the United States or occurred in the United States . . . .”), while the amendment to section 502(a)(C) uses the phrase “victim of . . . trafficking in the United States.” Sec. 104(a), Public Law 109-162, 119 Stat. 2960, 2979.

Because the modifier “in the United States” must be given some meaning, LSC is interpreting the VAWA 2005 term “victim of . . . trafficking in the United States” to mean that an alien who is seeking legal assistance as a victim of trafficking under VAWA does not need to show that the trafficking activity occurred in the United States, but must be present in the United States to be eligible for assistance. This reading is consistent with the reading that LSC is applying to the term “victim of severe forms of trafficking in the United States” in the TVPA.

Section 101(a)(15)(T)(i)(II) of the INA, discussed above, requires a victim of severe forms of trafficking to be present in the United States on account of such trafficking in order to be eligible for a T-visa. “On account of such trafficking” includes, but is not limited to, having been allowed entry to assist law enforcement in the investigation and prosecution of an act or perpetrator of trafficking. 8 U.S.C. 1101(a)(15)(T)(i)(II). LSC believes that this language also includes a victim of severe forms of trafficking abroad who flees into the United States to escape the trafficking. Under these circumstances, the victim is in the United States “on account of such trafficking,” and would be eligible for LSC-funded legal assistance.

Based on the comments received and the subsequent review of the INA, LSC would modify the language in proposed section 1626.4(d), renumbered as section 1626.4(c), to reflect the distinction between eligibility for victims of trafficking who qualify for a U-visa and those who are eligible under VAWA or under the TVPA. LSC would add subsection 1626.4(c)(2), “Relationship of alien to the United States,” to describe the circumstances under which an alien must be present in the United States to be eligible for legal assistance under the anti-abuse statutes. Section 1626.4(c)(2)(i) would state that victims of battery, extreme cruelty, or sexual abuse, or who are qualified for a U-visa, do not need to be present in the United States to receive legal assistance from LSC-funded recipients. Section 1626.4(c)(2)(ii) would address victims of severe forms of trafficking, who must be present in the United States on account of such trafficking to be eligible for LSC-funded legal assistance. Finally, Section 1626.4(c)(2)(iii) would address victims of trafficking under VAWA, who only need to be present in the United States to be eligible for assistance.

During the Committee meeting on January 23, 2014, LSC heard concerns from stakeholders. Two primary concerns were identified regarding the modified language in Section 1626.4(c)(2). The first concern was that the distinctions between victims of trafficking under VAWA, aliens qualified for a U-visa on the basis of trafficking, and victims of severe forms of trafficking under the TVPA in the final rule could have unintended consequences. The second concern was that the explicit reference to a presence requirement for victims of trafficking and severe forms of trafficking could be interpreted as precluding recipients from continuing to provide legal assistance to client victims of trafficking in the event the client left the United States after the commencement of services.

With respect to the first concern, stakeholders stated that while they had supported the language in the proposed rule, which did not contain a presence requirement for aliens eligible under any of the anti-abuse statutes, they were concerned that the field had not been given an opportunity to react to the language requiring that certain victims of trafficking be present in the United States to be eligible for LSC-funded legal assistance. They requested an additional opportunity to comment on the changes to Section 1626.4(c).

LSC believes that the distinctions drawn in Section 1626.4(c) are consistent with the interpretations of VAWA, the INA, and the TVPA that the agencies responsible for administering those statutes have adopted. However, LSC understands that these interpretations may not be the only reasonable interpretations. As a result of the discussion, the Committee recommended postponing consideration of the final rule to provide an opportunity for public comment on the changes to Section 1626.4(c). The comment period will be open for thirty days and run concurrently with the comment period for the proposed program letter to replace the Appendix to Part 1626.

LSC seeks comments regarding the interpretation of the phrase “in the United States” as it applies to the eligibility for services of victims of trafficking under VAWA and victims of severe forms of trafficking under the TVPA. LSC specifically requests comments on the application of the term that LSC has proposed in Section 1626.4(c)(2). Additionally, LSC specifically requests comments about whether the term “in the United States” as used in the VAWA amendments to section 502 of the FY 1996 LSC appropriation act applies solely to the qualifying crime of trafficking; to the qualifying crimes of battery, extreme cruelty, sexual assault, and trafficking; or to victims of the qualifying crimes, regardless of whether the crime itself occurred in the United States.

With respect to the second concern, Section 1626.4(c) would apply to the initial determination of an alien's eligibility for legal assistance under the anti-abuse statutes. Once services have commenced, a client's subsequent departure from the United States does not necessarily render the client ineligible to continue receiving services. Consistent with the Corporation's longstanding policy, the specific circumstances presented by the client's situation will determine whether representation may continue if the client is absent from the United States. LSC determined in Program Letter 2000-2 that temporary absence from the United States does not change eligibility for aliens covered by the Section 1626.5 presence requirement. Similarly, LSC determined that the H-2A presence requirement does not require a client to continue to be in the United States beyond the H-2A employment in order to continue receiving legal assistance. See LSC Board of Directors Meeting, November 20, 1999, 49, http://go.usa.gov/B3D9 (implementing the recommendations of the Erlenborn Commission Report, http://go.usa.gov/B3Tj ).

Comments not directed at a specific question or section of the regulations are discussed below.

LSC received comments during the open comment period and during the January 23, 2014 Committee meeting pertaining to the criteria that LSC established for determining the eligibility of victims of trafficking for legal assistance by LSC-funded entities and the inclusion or exclusion from eligibility of certain categories of aliens. LSC is addressing each of those comments in the discussion of the section giving rise to the comments. As an overall policy, LSC has drafted the regulation to give effect to Congress's intent that certain categories of aliens should be eligible to receive legal services from LSC recipients. In some cases, such as for victims of qualifying crimes under VAWA or H-2 visa holders, those services are limited to assistance related to the basis for eligibility. LSC's policy is to permit LSC recipients to provide all categories of eligible aliens with procedural assistance in the form of legal services to pursue the substantive rights, such as immigration relief, that Congress has given them.

One commenter expressed concern that the regulatory language used to expand eligibility to the categories of aliens covered by VAWA 2005 was too weak. The commenter stated that VAWA 2005 and its subsequent reauthorization acts generally contain provisions requiring DHS to issue regulations and entities receiving funding through VAWA 2005 to take certain actions within prescribed time limits after passage of the statute. The commenter recommended that LSC revise the final rule to require that recipients

• Include in their next funding or renewal of funding applications a copy of their written plans for implementing the changes called for in the final rule;

• Identify and consult with domestic violence, sexual assault, and victim services programs working to serve immigrant crime victims in the recipient's service area; and

• Submit with each funding application a copy of the recipient's plan implementing section 1626.4, including a statement of the work the recipient has done to conduct outreach to, consult with, and collaborate with victim services providers with expertise providing assistance to underserved populations.

VAWA 2005 amended section 502 of the FY 1996 LSC appropriation to authorize LSC recipients to provide legal assistance, using LSC funds or non-LSC funds, to alien victims of battery, extreme cruelty, sexual assault, or trafficking in the United States, and aliens qualified for a U-visa. VAWA 2005 does not require LSC to undertake any actions to implement the expanded authority, nor does it require LSC funding recipients to provide legal assistance to the new categories of eligible aliens. Because VAWA 2005 places no obligations on either LSC or its recipients and contains no timeframes within which they must take action, LSC would not place implementation requirements on its recipients.

One commenter recommended that LSC should publish an interlineated statute showing the changes to section 502 of the FY 1996 LSC appropriation made by VAWA 2005 and republish an updated version each time it is amended. LSC publishes interlineated versions of the relevant statutes on the LSC Web site ( http://www.lsc.gov/about/lsc-act-other-laws/lsc-appropriations-acts-committee-reports ) and updates the page as necessary to reflect changes to the statutes. LSC believes that its practice of posting the interlineated statutes on its Web site addresses the commenter's recommendation and is sufficient to address changes to the laws affecting LSC and its recipients until the Corporation can undertake any necessary rulemaking.

One commenter noted that the NPRM incorrectly referred to the “Customs and Immigration Service,” rather than the agency's proper name, “Citizenship and Immigration Service.” The references would be corrected.

Four commenters recommended that LSC extend the comment period to allow other interested organizations the opportunity to comment. The commenters were three LSC-funded recipients and one national non-profit. Commenters stated that they had learned of the rulemaking shortly before the close of the comment period and that they believed the complex nature of the issues raised by the rulemaking required additional time to develop proper responses.

LSC does not believe an extension of the comment period for the August 21, 2013 NPRM is warranted. The comment period was open for sixty days, and recipients were advised of the rulemaking via email the day the NPRM was published in the Federal Register . For the three specific questions on which LSC sought comment, commenters overwhelmingly reached the same conclusion. On the other issues for which comments were received, commenters generally made the same recommendation. None of the four commenters requesting an extension identified any specific issue they intended to address if given additional time to respond. For these reasons, LSC does not believe it is necessary to reopen the comment period; however, as discussed previously, LSC is seeking public comments on revisions to Section 1626.4(c) only.

1. Comment: One commenter stated that the list of anti-abuse statutes in section 1626.2(f) was incomplete. The commenter recommended adding the battered spouse waiver in the Immigration and Nationality Act (INA), 8 U.S.C. 1186a(c)(4)(C), the 2013 VAWA reauthorization, and the 2005, 2008, and 2013 reauthorizations of the TVPA to the list.

Response: As a matter of law, LSC does not have the authority to extend eligibility for legal assistance provided by LSC-funded recipients to aliens eligible for the battered spouse waiver under 8 U.S.C. 1186a(c)(4)(C). Of the statutes reauthorizing VAWA and the TVPA, only the 2005 VAWA reauthorization and the TVPRA of 2003 affected the eligibility of certain aliens to receive legal assistance from LSC-funded providers. LSC will revise the references to VAWA and the TVPA to indicate that LSC considers those statutes, as amended, as the anti-abuse statutes.

LSC would make several changes to section 1626.2. In the final rule, LSC would move the definitions of “battered or extreme cruelty,” “victim of sexual assault or trafficking,” “victim of severe forms of trafficking,” and “qualifies for immigration relief” to section 1626.2 from proposed section 1626.4(c) to consolidate definitions in Part 1626 for ease of reference and delete proposed section 1626.4(c). LSC believes that removing the definitions from the operational text of section 1626.4 will improve the readability and comprehensibility of the rule.

With respect to the definition of “battered or extreme cruelty,” LSC would reinstate the definition used in existing subsection 1626.2(f) in the final rule. LSC determined that the cross-reference to agency regulations defining the term did not clarify or add anything to the existing definition and could result in confusion if agencies differed in their definitions of the term.

The Corporation would also insert a definition for the term “certification.” “Certification” is a term created by the TVPA and is defined at 22 U.S.C. 7105(b)(1)(E). Certification refers to the determination made by the Secretary of HHS that an individual was subjected to severe forms of trafficking, is willing to provide all reasonable assistance to law enforcement in the investigation or prosecution of a trafficker, and has either filed a bona fide application for a T-visa that has not been rejected or has been granted continued presence to assist law enforcement by DHS.

In the final rule, LSC would make a technical amendment to the definition of “victim of sexual assault.” In the NPRM, proposed section 1626.4(c)(2)(i) defined “a victim of sexual assault” as an individual “subjected to any conduct included in the definition of sexual assault or sexual abuse in VAWA, including but not limited to sexual abuse, aggravated sexual abuse, abusive sexual contact, or sexual abuse of a minor or ward[.]” However, the term “sexual abuse” is not defined in VAWA, and the VAWA definition of “sexual assault” does not track the examples provided in the proposed definition. To avoid confusion, LSC would revise the definition to remove the reference to a definition of “sexual abuse” in VAWA and adopt by incorporation the VAWA definition of “sexual assault.”

Finally, LSC would alphabetize the definitions in section 1626.2 for ease of reference.

LSC received no comments on the proposed technical corrections to this section.

As stated earlier in this preamble, LSC would delete proposed section 1626.4(c) and move the definitions contained therein to section 1626.2. Proposed subsections 1626.4(d) through (g) will be renumbered as subsections 1626.4(c) through (f) in the final rule.

Paragraph (a)(2) would incorporate the policies established in Program Letter 02-5 and Program Letter 05-2. Individuals eligible for legal assistance under the TVPA and the 2003 TVPRA include individuals applying for certification as victims of severe forms of trafficking and certain family members seeking immigration relief under section 101(a)(15)(T)(ii) of the INA (8 U.S.C. 1101(a)(15)(T)(ii)).

1. Comment: One commenter suggested that LSC include within “related legal assistance” assistance ensuring that clients are protected by the privacy and confidentiality provisions of VAWA 2005 and are able to access the protections and benefits of education laws, including access to post-secondary educational grants and loans. According to the commenter, “a significant component of effective representation of sexual assault victims and domestic violence victims in many cultural communities is ensuring privacy and confidentiality.” Additionally, “access to educational benefits and remedies under education laws to address the subsequent problems that stem from the abuse and accommodations sexual assault survivors may need in the educational context” is an integral part of helping immigrant victims of sexual assault to move on with their lives, to stay in school, and to settle successfully in the United States.

By email dated November 25, 2013, LSC sought additional information from the commenter explaining the types of related legal assistance the commenter believed LSC recipients could provide in the context of VAWA confidentiality and privacy provisions. The commenter responded by email on December 13, 2013 with examples of assistance. The examples included “preventing discovery of shelter records or mental health records of a victim in a custody, protection order, or criminal court proceeding,” “assistance with change of identity for crime victims who are witnesses eligible to participate in victim protection programs,” and keeping information about the victim's immigration status and information contained in a victim's application for immigration relief under VAWA, 8 U.S.C. 1101(a)(15)(T), or 8 U.S.C. 1101(a)(15)(U), out of a family court case.

Response: LSC would retain the language in the proposed rule. LSC intended the examples of “related legal assistance,” including the list in the parenthetical, to be illustrative rather than exhaustive. LSC understands that there may be types of assistance, including assistance protecting confidentiality and privacy rights or ensuring access to education, that may constitute “related legal assistance.” The key factor for recipients to consider in determining whether a requested service is “related legal assistance” is the connection between the assistance and the purposes for which assistance can be given: escaping abuse, ameliorating the effects of the abuse, or preventing future abuse. To the extent that ensuring clients are protected by the privacy and confidentiality provisions of VAWA and the protections and benefits of education laws is necessary to help the clients escape, ameliorate the effects of, or prevent future abuse, legal assistance to secure those protections and benefits would constitute “related legal assistance.”

As stated in the discussion of section 1626.2, LSC would delete this section and move the definitions to section 1626.2.

1. Comment: LSC received four comments regarding the types of evidence that recipients may consider in support of a showing that an alien is eligible for legal assistance under one of the anti-abuse statutes. All of the comments supported the use of the list of evidentiary types taken directly from VAWA.

Response: LSC would retain the proposed text of section 1626.4(e) with respect to types of evidentiary support.

2. Comment: One commenter recommended that LSC revise proposed paragraphs (e) and (f) to “clearly state that where programs may represent individuals without regard to their citizenship or immigration status . . . programs are not required to inquire into the citizenship or immigration status of these clients.” Another commenter similarly suggested that LSC should include language in the final rule shifting the eligibility focus at intake from citizenship or eligible alien status to victimization.

Response: LSC would retain the language of the proposed rule. VAWA 2005 authorizes, rather than requires, LSC funds to be used to represent victims of battery, extreme cruelty, sexual assault, and trafficking, or aliens who are qualified for a U-visa. Recipients are responsible for setting their own priorities and may choose not to prioritize the types of assistance that are authorized under VAWA 2005. LSC believes that recipients should retain the discretion to conduct their intake processes in the ways that they determine are the most effective at identifying clients who are eligible for services and whose cases are within the recipients' priority areas.

LSC reminds recipients that Advisory Opinion AO-2009-1008 addressed the question whether recipients must determine the immigration status of aliens who qualify for assistance under one of the anti-abuse statutes. In that opinion, the Office of Legal Affairs stated that once a recipient determined that an individual has a legal need that would qualify for the exceptions of the anti-abuse statutes to the alienage requirement, the recipient does not need to inquire into the citizenship or immigration status of that individual. The final rule does not affect the validity of the conclusion stated in AO-2009-1008.

3. Comment: Two commenters recommended revising the examples of changes in eligibility in section 1626.4(e). One recommended including examples of when an alien's eligibility for legal assistance may change from eligibility under an anti-abuse statute to eligibility by reason of the alien's immigration status and vice versa in the preamble to the final rule. The other recommended removing or revising the examples in section 1626.4. The commenter believed that the examples provided in proposed section 1626.4(e) were “problematic” because they suggested that an individual whose application for status was rejected would subsequently be deemed ineligible to receive legal assistance under the anti-abuse statutes or they were too vague about which component of the Department of Homeland Security (DHS) made the determination of ineligibility and at which stage of review the determination of ineligibility was made. The commenter also opined that the requirement in the draft rule and in Program Letter 06-2 that recipients terminate representation of an individual once DHS issued a final denial of the individual's petition for a U-visa is without basis in law. The commenter reasoned that the VAWA 2005 amendment to section 502 of the FY 1996 LSC appropriation based eligibility for services on an individual's “qualifying” for a U-visa, which the commenter stated “arguably applies when there is a need for corrected documents or there is after-acquired evidence.”

Response: LSC would remove the examples from the text of the regulation. However, LSC wishes to clarify two points in response to the comments. The existing regulation defines “rejected” as “an application that has been denied by DHS and is not subject to further administrative appeal. In the example of the “final denial” of a petition for a U-visa, LSC did not intend to create ambiguity and should have used the regulatory term “rejected.”

With respect to subsequent eligibility, LSC did not intend the examples to suggest that an individual whose application for status was rejected because of insufficient or incomplete evidence would be ineligible for related legal assistance at a later date if the individual returned with additional evidence that he or she was a victim of battery or extreme cruelty, sexual assault, trafficking, or one of the qualifying crimes for a U-visa. The example was intended only to explain how an individual's eligibility for services may change when the application in connection with which the individual qualified for services is rejected.

LSC is sensitive to the difficulties that alien victims of abuse may have in developing and documenting credible evidence of the abuse. For purposes of eligibility, however, LSC's policy is that once the petition for a U-visa upon which an individual was determined to be eligible for services has been rejected and no further avenues of appeal are available for that petition, the individual must be deemed not qualified for a U-visa and the recipient must terminate representation consistent with applicable rules of professional responsibility unless there is another basis upon which the alien can be found eligible. The individual may be found eligible for services based on qualifying for a U-visa at a later time if the individual can provide additional evidence supporting his or her claim for eligibility.

LSC would remove the statement at the end of proposed section 1626.4(e) that recipient staff should review the evidence presented at intake to support an individual's basis for eligibility under the anti-abuse statutes. Upon further consideration, LSC determined that this sentence was unduly prescriptive about how recipients assess eligibility and appeared to set up a different rule for reviewing eligibility under the anti-abuse statutes. Recipients should have mechanisms in place for evaluating a client's continued eligibility for services, regardless of the basis of eligibility

1. Comment: Two commenters opposed the requirement in proposed paragraphs (f)(1) and (f)(2) that if an alien provides a visa or visa application as evidence to support his eligibility for legal services under the anti-abuse statutes, the recipient must keep a copy of the document in its files. One commenter noted that the requirement was a change in LSC policy, which currently does not require applicants to keep copies of immigration documents to prove alien eligibility. The other commenter stated that such a requirement is contrary to “motivations and the direction of the evolution of federal VAWA confidentiality law.” The commenter described the confidentiality provisions of VAWA as protecting not only the information contained within a VAWA, T, or U visa application, but also as preventing a third party from obtaining information about the existence of such applications except in certain carefully circumscribed cases.

Response: LSC agrees with these comments. In the final rule, LSC would replace proposed subparagraph (f) with language substantially similar to existing subsection (b): “Recipients are not required by § 1626.12 to maintain records regarding the immigration status of clients represented pursuant to this section.” The Corporation would include a sentence in the final rule stating that if an alien presents an immigration document as evidence of eligibility under the anti-abuse statutes, recipients shall document eligibility under the anti-abuse statutes by making a note in the client's file stating that the recipient has seen the visa or the application for a visa that supports the recipient's claim for eligibility and identifying the type of document, the applicant's alien registration number (“A number”), the date of the document, and the date of the review. The note should be signed by the staff member who reviewed the document. LSC understands the confidentiality concerns that this approach may raise; however, recipients must be able to document the basis for an individual's eligibility. In the event an alien presents an immigration document, LSC believes that documenting the basis for eligibility by recording the type of immigration document presented is reasonable and accommodates the commenters' concern.

Because LSC would delete paragraph (c), this subsection would be relocated to paragraph (f). No other changes would be made to this subsection.

1. Comment: LSC received four comments regarding proposed section 1626.5(e). The proposed change to this section updated the reference to withholding of removal under section 243(h) of the INA to section 241(b)(3) of the INA to reflect the transfer of the provision from one section of the INA to the other. The comments were substantially similar in their recommendation and rationale. The commenters recommended that persons granted withholding of deportation under prior section 243(h) of the INA should not be removed from the regulation because some persons are still subject to deportation proceedings or orders of deportation and cannot obtain withholding of removal under section 241(b)(3) of the INA.

Response: LSC made this change to the rule to reflect an update to the INA. Further research showed that Congress intended individuals with orders of exclusion or deportation to be treated the same as individuals with orders of removal. In the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Congress recharacterized the actions of deportation (expulsion from the United States) and exclusion (barring from entry into the United States) into a single action—removal. Sec. 304, Public Law 104-208, Div. C, Tit. III, 110 Stat. 3009-589 (1996) (8 U.S.C. 1229a) (establishing “removal proceedings” as the proceedings in which an immigration judge would decide the admissibility or deportability of an alien); see also 8 U.S.C. 1229(e)(2) (defining “removable” to mean that an alien is either inadmissible under section 212 of the INA or deportable under section 237 of the INA); Sec. 308, Public Law 104-208, Div. C, Tit. III, 110 Stat. 3009-614-3009-625 (amending various sections of the INA to change references to “deportation” or “exclusion” to “removal”). Section 309(d)(2) of IIRIRA explicitly states that for carrying out the purposes of the INA, “any reference in law to an order of removal shall be deemed to include a reference to an order of exclusion and deportation or an order of deportation.” Sec. 309(d)(2), Public Law 104-208, Div. C, Tit. III, 110 Stat. 3009-627 (8 U.S.C. 1101 note).

LSC does not believe that, when Congress passed IIRIRA, it intended to bar individuals granted withholding of deportation under prior section 243(h) of the INA from continued eligibility for legal services from an LSC-funded recipient. Rather, the various provisions in IIRIRA consolidating “deportation” and “exclusion” under the umbrella of “removal,” combined with the deeming provision in section 309(d)(2), suggest that Congress intended the rights, remedies, and obligations attending deportation and exclusion to carry over to removal. Consequently, LSC would accept the comment and would revise section 1626.5(e) to restore the references to individuals who received withholding of deportation under prior INA section 243(h).

2. Comment: The same four commenters recommended that LSC include in section 1626.5 “withholding of removal under the Convention Against Torture (CAT)” and “deferral of removal under CAT” as bases for eligibility. Their reasons for the recommendation were twofold. First, withholding and deferral of removal under the CAT are “extremely similar” to withholding of deportation or removal under either prior section 243(h) or current section 241(b) of the INA because each type of withholding is intended to prevent an individual from being involuntarily returned to a country where his or her life or freedom would be endangered. The second reason was a practical one—that individuals may not have documentation specifying which type of withholding of removal they have received. The commenters stated that USCIS uses the same code for all three types of withholding.

Response: LSC is sensitive to the fact that individuals who have obtained withholding of removal under the CAT may need legal assistance in much the same way that individuals who have received withholding of removal under section 243(h) of the INA or deportation under prior section 241(b) of the INA do. However, Congress has not authorized LSC to extend eligibility to individuals who have obtained withholding of removal under the CAT. Because LSC has neither the authority nor the discretion to extend eligibility for LSC-funded legal assistance to these individuals, LSC would retain the text from the proposed rule.

LSC would make a technical amendment to section 1626.5(c). The first sentence of the section states that an alien who has been granted asylum by the Attorney General under Section 208 of the INA is eligible for assistance. LSC would insert the phrase “or the Secretary of DHS” to reflect the fact that Section 208 of the INA, 8 U.S.C. 1158, has been amended to give the Secretary of DHS the authority to grant asylum, in addition to the Attorney General. Sec. 101(a)(1), (2), Public Law 109-13; 119 Stat. 231, 302 (2005).

No comments were received on the proposed changes to this section.

LSC received comments on the proposal to remove the appendix to Part 1626 and publish the contents as a program letter or equivalent document, which will be discussed in the section on the appendix. LSC received no comments on the other proposed changes to this section.

No comments were received on the proposed changes to this section.

1. Comment: LSC received two comments in response to the proposed revisions to section 1626.11. LSC proposed to amend section 1626.11 to add H-2B forestry workers as a new category of aliens eligible for legal assistance from LSC-funded recipients, consistent with the FY 2008 LSC appropriation's amendment to section 504(a)(11)(E) of the FY 1996 LSC appropriation. Both comments supported the amendment, stating that the ability to represent H-2A agricultural and H-2B forestry workers enables recipients to engage more fully in investigating and enforcing labor laws, particularly wage and conditions laws. One commenter recommended that Congress should act to expand eligibility for LSC-funded legal assistance to “all low-income workers, regardless of their immigration status.”

Response: LSC appreciates the comments in support of the revisions to section 1626.11.

LSC would make technical amendments to sections 1626.11(a) and (b) in the final rule. The original version of section 1626.11 stated that agricultural workers “admitted under the provisions of 8 U.S.C. 1101(a)(15)(h)(ii)” were eligible for legal assistance related to certain issues arising under the workers' employment contracts. 53 FR 40194, 40196, Oct. 19, 1988 (NPRM); 54 FR 18109, 18112, Apr. 27, 1989 (final rule). This language omitted the full relevant text of the statute that made nonimmigrant workers “admitted to, or permitted to remain in the United States under, ” 8 U.S.C. 1101(a)(15)(h)(ii)(A) eligible for legal services. Sec. 305, Public Law 99-603, 100 Stat. 3359, 3434 (1986) (emphasis added). Congress used the same “admitted to, or permitted to remain in” language when it expanded eligibility to H-2B forestry workers. Sec. 540, Public Law 110-161, Div. B, Title V, 121 Stat. 1844, 1924 (2007). This same omission was made in the NPRM for this rule. 78 FR 51696, 51704, Aug. 21, 2013. The omission of this language was an oversight and LSC would amend sections 1626.11(a) and (b) to include it.

1. Comment: LSC received seven comments in response to the proposal to remove the appendix to Part 1626 and instead publish the list of documents establishing alien eligibility as program letters or equivalent policy documents. Six commenters supported the proposal, and one commenter objected. The six commenters supporting the proposal agreed with LSC's assessment that the frequently changing nature of immigration documents and forms requires a more flexible means of disseminating up-to-date information to LSC recipients than the rulemaking procedure allows. One of the comments in support, however, recommended that LSC publish the initial program letter for public comment and establish a comment and feedback procedure for issuance of subsequent program letters. The desire for notice and comment was reflected in the one comment opposing the proposal. The commenter opposing the removal of the appendix asserted that experienced immigration practitioners are often in the best position to understand fully the types of documentation that can adequately demonstrate an eligible alien status. The commenter stated that because rulemaking is the only way to ensure an opportunity for public comment and obtaining public comment is consistent with LSC's policy of engaging in open dialogue with its stakeholders, LSC should continue publishing the list of documentary evidence as the Appendix to Part 1626.

Response: LSC agrees that practitioner input is essential to ensuring that the list of documents and other evidence of alien eligibility is complete, accurate, and useful. As stated in the preamble to the NPRM, LSC is publishing the initial program letter replacing the Appendix to Part 1626 under the LSC Rulemaking Protocol. The Rulemaking Protocol requires the Corporation to provide a comment period of at least thirty days for any regulatory changes that occur through notice and comment rulemaking. 67 FR 69762, 69764, Nov. 19, 2002. LSC does not intend that removal of the list of documents from the regulation will limit the ability of recipients to provide input into future versions of the list.

The program letter replacing the Appendix to Part 1626 is being published for public comment along with this FNPRM. The comment period will be open for thirty days from the date of publication in the Federal Register .

For the reasons discussed in the preamble, the Legal Services Corporation proposes to revise 45 CFR part 1626 to read as follows:

We will accept written comments and information during this reopened comment period on our proposed designation of critical habitat for the spring pygmy sunfish that was published in the Federal Register on October 2, 2012 (77 FR 60180), and the revision to the proposed boundaries of Unit 1 described in our April 29, 2013, publication (78 FR 25033). We will consider information and recommendations we receive from all interested parties. We intend that any final action resulting from this proposal will be based on the best scientific and commercial data available and be as accurate and as effective as possible.

We request comments or information from the public or from any interested party on any aspect of the proposed designation of critical habitat. However, we particularly seek 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 the 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) Information on whether the benefits of the exclusion of lands covered by existing CCAAs (Belle Mina Farms Ltd., McDonald Farm, Horton Farm), or any other particular area, outweigh the benefits of inclusion under section 4(b)(2) of the Act.

(3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed critical habitat.

If you submitted comments or information on the proposed rule (77 FR 60180) during the initial comment period from October 2, 2012, to December 3, 2012, or during the second comment period from April 29, 2013, to May 29, 2013 (78 FR 25033), please do not resubmit them. We have incorporated them into the public record as part of the previous two comment periods, and we will fully consider them in the preparation of our final determination.

You may submit your comments and materials concerning the proposed critical habitat rule by one of the methods listed in the ADDRESSES section. We request that you send comments only by the methods described in the ADDRESSES section.

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 rule, are available for public inspection on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0010, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the spring pygmy sunfish in this document. For more information on previous Federal actions concerning the spring pygmy sunfish, or information regarding its biology, status, distribution, and habitat, refer to the proposed rule published in the Federal Register on October 2, 2012 (77 FR 60180), and the April 29, 2013, publication reopening the comment period and announcing the availability of a draft economic analysis (78 FR 25033), both of which are available online at http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0010 or by mail from the Mississippi Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

In our October 2, 2012, proposed rule (77 FR 60180), we proposed to list the spring pygmy sunfish as threatened and to designate two critical habitat units, totaling approximately 8 stream miles (mi) (12.9 kilometers (km)) and 1,617 acres (ac) (654.4 hectares (ha)) spring system habitat and adjacent upland buffer in Limestone County, Alabama. On April 29, 2013 (78 FR 25033), we re-opened the comment period on our proposal for 30 days to allow public comment on the amended required determinations section of the proposal, the draft economic analysis, and a proposed size reduction in critical habitat based on information we received during the original public comment period. Specifically, we proposed to reduce the size of Unit 1 by 67.6 ac (27.6 ha), resulting in a revised proposed critical habitat designation totaling approximately 8 stream mi (12.9 km) and 1,549.4 ac (627.02 ha). In that document, we also announced that we would prepare separate final rules for the proposed listing and the proposed critical habitat designation. On October 2, 2013, we published a final rule designating the spring pygmy sunfish as a threatened species under the Act (78 FR 60766).

We have worked with key landowners over the years on the conservation of this species and its habitat on their lands. In June 2012, we entered into a CCAA with Belle Mina Farms Ltd. The CCAA provides conservation benefits to the sunfish in 24 percent of the habitat occupied by the species. On October 1, 2013, we published a notice of availability in the Federal Register (78 FR 60307) and requested comments on issuance of enhancement of survival permits and associated CCAAs for the spring pygmy sunfish for two additional landowners: Mr. Albert C. McDonald of Greenbriar Enterprises LLC (applicant McDonald Farm) and Ms. Katherine H. Garrett of Greenbrier Enterprises LLC (applicant Horton Farm). In November 2013, following the close of the comment period on October 31, 2013, and after review by the Service of all comments, the Service and the landowners signed the CCAAs. Conservation measures set forth in these CCAAs are similar to those in the Belle Mina Farms Ltd. CCAA and provide protection for 19 percent of the species' habitat within the middle reach of the Beaverdam Spring/Creek system. Specific information on the contents of the McDonald and Horton Farms CCAAs can be found in our October 1, 2013 (78 FR 60307), notice of availability and at http://www.fws.gov/mississippiES/.

In our October 2, 2012, proposed rule, we presented information on the Belle Mina Farms Ltd. CCAA, and specifically requested comments on the benefits of including or excluding these lands from critical habitat designation. Since the McDonald and Horton Farms CCAAs were executed after the close of both earlier comment periods on the proposed critical habitat designation, we are again reopening the comment period to ensure that the public has an adequate opportunity to review and comment on the benefits of including or excluding the lands covered by the McDonald and Horton Farms CCAAs from the designation of critical habitat for this species. As a reference, we have included a map below showing the location of lands covered by all three CCAAs in relation to the proposed critical habitat boundaries for Unit 1. Except for the overlay with the CCAA areas, the boundaries of Unit 1 shown in the map below are not changed from what we proposed in the April 29, 2013, publication (78 FR 25033). We intend to issue a final critical habitat determination in 2014.

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 the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.

When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of the spring pygmy sunfish, the benefits of critical habitat include public awareness of the presence of the species and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for this species 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 are considering excluding all areas covered by the Belle Mina Farms Ltd., McDonald Farm, and Horton Farm CCAAs based on our partnerships with the landowners and the conservation benefits that these agreements afford the sunfish. However, the final decision on whether to exclude any areas will be based on the best scientific and commercial data available at the time of the final designation, including information obtained during the comment periods and information about the economic impact of designation.

The primary authors of this notice are the staff members of the Mississippi Ecological Services Field Office and the Regional Office-Ecological Services Program, Southeast 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. ).

Background

On February 4, 2013, we published a proposed rule (78 FR 7864) to list the distinct population segment of the North American wolverine occurring in the contiguous United States as threatened, under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq. ). For a description of previous Federal actions concerning the distinct population segment of the North American wolverine ( Gulo gulo luscus ) occurring in the contiguous United States, please refer to the February 4, 2013, proposed rule. The proposed listing rule opened a 90-day comment period, ending May 6, 2013. In addition to the original comment period associated with the publication of the proposed rule, we held three public information workshops in conjunction with three public hearings in March 2013: March 13 in Boise, Idaho; March 19 in Lakewood, Colorado; and March 27 in Helena, Montana. On October 31, 2013, we reopened the comment period for 30 days to allow additional comment on scientific issues raised by two peer reviewers and several State wildlife agencies (78 FR 65248). The second comment period closed on December 2, 2013.

Section 4(b)(6) of the Act requires that we take one of three actions within 1 year of a proposed listing: (1) Finalize the proposed listing; (2) withdraw the proposed listing; or (3) extend the final determination by not more than 6 months, if there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the determination.

Since the publication of the proposed rule, there has been substantial disagreement regarding the interpretation of the habitat requirements for wolverines and the available climate change information used to determine the extent of threats to the species. Differing interpretations of the available climate change information have led to a significant disagreement regarding the current status of the species. In particular, some commenters and peer reviewers raised questions regarding:

(1) The interpretation of scientific literature in the proposed rulemaking and scientific literature that may not have been readily available for our use in our analysis to define habitat parameters. Specifically, some commenters and peer reviewers questioned the basis for defining wolverine habitat based on persistent spring snow used by Copeland et al. (2010). Some peer reviewers and commenters suggested that other methods of habitat definition or other dates used to define habitat based on persistent snow are more scientifically defensible and would yield very different results.

(2) Commenters suggested that McKelvey et al. (2011) used an invalid habitat model developed by Copeland et al. (2010) to project future climate impacts to wolverine habitat, and for that reason, the commenters believe projections in McKelvey et al. (2011) are also invalid.

(3) Commenters also asserted that there is high uncertainty with projections made using downscaled global climate modeling, which we used to analyze the impacts of climate change on wolverine habitat and ecology.

As a result of these comments and peer reviews, there is substantial disagreement regarding the sufficiency or accuracy of the available data relevant to our listing determination. Therefore, in consideration of these disagreements, we have determined that a 6-month extension of the final determination of this rulemaking is necessary, and we are hereby extending the final determination for 6 months in order to solicit information that will help to clarify these issues and fully analyze this information.

As noted in the proposed listing rule (78 FR 7864), we were previously required by statutory deadline to make a final decision on the wolverine listing no later than February 4, 2014. Therefore, with this 6-month extension, we will make a final determination on the proposed rule no later than August 4, 2014. In conjunction with the proposed rule to list the wolverine, we also proposed a special rule under section 4(d) of the Act that would tailor the prohibitions of the Act to specifically address the threats to wolverines (78 FR 7864), and, in a separate rule, we proposed the establishment of a nonessential experimental population area for the wolverine in the southern Rocky Mountains of Colorado, southern Wyoming, and northern New Mexico (78 FR 7890). Because these rules are contingent on a wolverine listing, our final decisions for these rules will also be delayed until we make a final listing determination for the distinct population segment.

We will accept written comments and information during this reopened comment period on our proposed listing (and special 4(d) rule) for the distinct population segment of the North American wolverine occurring in the contiguous United States that was published in the Federal Register on February 4, 2013 (78 FR 7864). We will consider information and recommendations from all interested parties. We intend that any final action resulting from the proposal be as accurate as possible and based on the best available scientific and commercial data.

We are particularly interested in new information and comments regarding:

(1) Whether there is scientific information in addition to that considered in our proposed rule that may be useful in our analysis.

(2) Whether persistent spring snow represents a reasonable estimate of wolverine habitat.

(3) The use of projected amounts and distribution of persistent spring snow to assess the potential impacts of climate change on wolverine habitat.

(4) The use of information generated by downscaled global climate models as a basis to then project and evaluate the impacts of climate change on wolverine habitat.

(5) The potential effects on wolverine from the projected changes in its habitat related to climate change.

If you previously submitted comments or information on the proposed rule during the two previously open comment periods, please do not resubmit them. We have incorporated them into the public record, and we will fully consider them in the preparation of our final determination. Our final determination concerning the proposed listing will take into consideration all written comments and any additional information we receive.

You may submit your comments and materials concerning the proposed rule 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 rule, will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R6-ES-2012-0107, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Montana Ecological Services Office (see FOR FURTHER INFORMATION CONTACT ). You may obtain copies of the proposed rule on the Internet at http://www.regulations.gov at Docket No. FWS-R6-ES-2012-0107, or by mail from the Montana Ecological Services Office (see FOR FURTHER INFORMATION CONTACT ).

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 Eastern Pacific Ocean (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. sections 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 by consensus adopted the Multiannual Program for the Conservation of Tuna in the Eastern Pacific Ocean during 2014-2016 (Resolution C-13-01). Resolution C-13-01 is very similar to the tuna conservation measure adopted by the IATTC in 2011 (Resolution C-11-01, Resolution on a Multiannual Program for the Conservation of Tuna in the Eastern Pacific Ocean in 2011-2013). Both resolutions include a bigeye tuna annual catch limit applicable to longline vessels greater than 24 meters in overall length, a time/area closures, and a full catch retention program applicable to purse seine vessels greater than 182 metric tons in carrying capacity. For purposes of domestic implementation, NOAA treats the registered length that appears on the vessels' Coast Guard Certificate of Documentation as the “overall length.” NMFS implemented Resolution C-11-01 through regulations codified at 50 CFR part 300, subpart C (see final rule 76 FR 68332, November 4, 2011). Resolution C-13-01 includes exemptions when a purse seine vessel is rendered unable to return to sea due to “force majeure” (i.e., for purposes of this Resolution this means disabled by mechanical and/or structural failure, fire, or explosion) for at least a period equivalent to the 62-day annual closure period.

The main objectives of Resolution C-13-01 are to ensure that the fishing mortality of yellowfin tuna ( Thunnus albacares ) does not increase and to reduce the fishing mortality of bigeye tuna in the Convention Area from 2014 through 2016. The measures are based in part on the recommendations and analysis of IATTC scientific staff, as well as the 2013 updates to stock assessments for bigeye tuna and yellowfin tuna, both completed by IATTC staff. A full assessment of yellowfin tuna is planned for 2014.

Resolution C-13-01 requires the United States to restrict catch of bigeye tuna in the longline fishery and effort in the purse seine fishery in the Convention Area in each of the years 2014, 2015, and 2016. This proposed rule would extend existing management measures so that they apply in 2014 through 2016. The measures would include the following: (1) a 500 metric ton bigeye tuna calendar year catch limit for longline vessels greater than 24 meters in overall length; and (2) time/area closures for purse seine vessels of class sizes 4 to 6 (greater than 182 metric tons carrying capacity). Resolution C-13-01 also includes provisions for 2014 through 2016 requiring purse seine vessels class sizes 4 to 6 to first retain on board, and then land all bigeye, yellowfin, and skipjack ( Katsuwonus pelamis ) tuna caught, except fish unfit for human consumption for reasons other than size. A single exception to this full catch retention program is on the final set of a trip, when there may be insufficient well space remaining to accommodate all of the tuna caught in that set. Resolution C-11-01 included the same catch retention provisions, which have been implemented by NMFS to apply indefinitely (see 50 CFR 300.25(e)) because NMFS expected it to be included in future IATTC tuna conservation and management resolutions. If the IATTC removes the measure in the future, NMFS will remove the regulation. Thus, further regulatory action is not needed to implement the catch retention provisions of Resolution C-13-01.

This proposed rule would continue the purse seine closure period of 62 days in the years 2014, 2015, and 2016. Therefore, this proposed rule would prohibit purse seine vessels subject to these requirements from fishing in the Convention Area for a period of 62 days in 2014, 62 days in 2015, and 62 days in 2016. This proposed rule would also continue giving applicable purse seine vessel owners the ability to choose between the two possible closure periods for 2014, 2015, and 2016. These closures would be in one of two periods in each year as follows:

2014—29 July to 28 September, or from 18 November to 18 January 2015.

2015—29 July to 28 September, or from 18 November to 18 January 2016.

2016—29 July to 28 September, or from 18 November to 18 January 2017.

Under the proposed rule, a vessel's owner, manager, or association representative would be required to provide the West Coast Regional Administrator, via fax to (562) 980-4047 or email to RegionalAdministrator.WCRHMS@noaa.gov , by July 1 of each fishing year (2014, 2015, and 2016) with the following information: (1) name and official number of fishing vessel; (2) the closure period the vessel will adhere to in that year; and (3) the vessel owner or managing owner's name and signature. If a vessel owner fails to notify the Regional Administrator of his or her choice by the July 1 deadline, the vessel would be subject to the later closure period (November 18 to January 18 of the following calendar year) by default.

Under the proposed rule, a purse seine vessel owner could request an exemption to the 62-day closure described in the paragraph above due to force majeure, in which a vessel is rendered unable to return to sea for a period of at least 62 days. Force majeure would be defined in the proposed rule as a situation in which a vessel is disabled due to mechanical and/or structural failure, fire, or explosion. To place a request for exemption due to force majeure, the vessel operator would be required to contact the NMFS West Coast Region Sustainable Fisheries Division Assistant Regional Administrator, via email or fax, and provide evidence necessary to demonstrate that the vessel did not proceed to sea for at least 62 days and that the facts on which the request for exemption is based were due to force majeure. A request for reconsideration of initial denial of the request may be made within 10 days to the West Coast Regional Administrator. If the request is accepted, the purse seine vessel owner may observe a reduced closure period of 30 consecutive days.

The proposed rule would also continue the high seas time/area closure for tuna purse seine vessels class sizes 4 to 6 during 2014 through 2016. The area consists of the area bounded at the east and west by 96° and 110° W. longitude and bounded at the north and south by 4° N. and 3° S. latitude. The high seas time/area closure was originally adopted by the IATTC under Resolution C-09-01 and has been in place in NMFS regulations at 50 CFR 300.25(f) since 2009.

In addition, this proposed rule would extend from 2014 through 2016 the annual bigeye tuna catch limit of 500 metric tons in the Convention Area for U.S. longline vessels over 24 meters in overall length. This catch limit has been in place since 2007 in NMFS regulations at 50 CFR 300.25(b) and had never been reached until 2013; the U.S. fishery for bigeye tuna by longline vessels greater than 24 meters was closed on November 11, 2013 after NMFS forecasted that the limit was going to be reached (see 78 FR 65887, November 4, 2013 and 78 FR 70002, November 22, 2013). Between 2008 and 2012 an average of 317 metric tons (range 199 to 407 metric tons) of bigeye tuna was caught annually in the Convention Area by U.S. longline vessels greater than 24 meters in overall length. The members of the IATTC agreed to continue the bigeye tuna catch limits in the Convention Area after review and analysis of the most recent bigeye and yellowfin tuna stock assessments.

The NMFS Assistant Administrator has determined that this proposed rule is consistent with the Tuna Conventions Act and other applicable laws, subject to further consideration after public comment.

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

Pursuant to the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The rationale for the certification is as follows:

The purpose of Resolution C-13-01 is to prevent overfishing by restricting the catch of bigeye tuna in the longline fishery and to restrict fishing effort in the purse seine fishery for bigeye, yellowfin, and skipjack tuna in the Convention Area (eastern Pacific Ocean) in each of the years 2014, 2015, and 2016. Resolution C-13-01 includes provisions for a force majeure exemption to the purse seine closure periods that were first adopted in Resolution C-12-01 (Amendment to Resolution C-11-01 on Tuna Conservation) in 2012. This proposed rule would: (1) Implement a 500 metric ton calendar year catch limit on bigeye tuna caught by longline vessels over 24 meters in length in the Convention Area from 2014 through 2016; and (2) prohibit purse seine vessels of class size 4 to 6 (greater than 182 metric tons in carrying capacity) from fishing for yellowfin, bigeye, and skipjack tunas in the Convention Area for a period of 62 days in each of the years 2014, 2015, and 2016. Purse seine vessels of class size 4 (between 182 and 272 metric tons carrying capacity) would be able to make a single fishing trip of up to 30 days duration during the closed period, provided that the vessel carries an observer of the On-Board Observer Program of the Agreement on the International Dolphin Conservation Program. In the event of a force majeure (a situation in which vessels are disabled by mechanical and/or structural failure, fire, or explosion) rendering a purse seine vessel unable to proceed to sea outside of a closure period for at least 62 days (the prescribed closure period), the vessel owner may request an exemption from the closure period and if the request is accepted by the IATTC, the purse seine vessel owner may observe a reduced closure period of 30 consecutive days. This proposed rule would also close the fishery for yellowfin, bigeye, and skipjack tuna within the area of 96° and 110° W and between 4° N and 3° S to purse seine vessels of class sizes 4 to 6 from 0000 hours UTC (Coordinated Universal Time) on September 29 to 2400 hours UTC on October 29, in years 2014, 2015, and 2016.

There are only slight adjustments being made to the existing tuna conservation measures, which were implemented (see 76 FR 68332, November 4, 2011) as a result of the adoption of Resolution C-11-01 in 2011 and expire at the end of 2013. The proposed adjustments would be the following: (1) Extend the effective period of the current regulations in 2014 through 2016; and (2) provide purse seine owners with greater flexibility by allowing for an exemption to the closure periods due to force majeure. The proposed rule would extend regulations currently in place, including the 500 metric ton catch limit and 62-day closure period; because these regulations are currently in force, extending them would neither reduce the profitability of the fishery nor require any additional compliance effort or expense by affected vessels. As a result, environmental and socioeconomic impacts are expected to be minimal.

The absence of the proposed action would allow U.S. fisheries to target bigeye, yellowfin, and skipjack tunas unrestricted (except for existing permit requirements) in the Convention Area. This may contribute to overfishing or overfished conditions of tuna resources. Alternatively, the implementation of Resolution C-13-01 will result in the sharing of sustainable benefits from Pacific tuna fishery resources among the IATTC member and Cooperating non-member countries.

The Small Business Administration (SBA) revised its small business size standards for several industries in a final rule effective July 22, 2013 (see 78 FR 37398, June 20, 2013). 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. Id. at 37400 (Table 1).

NMFS has reviewed the analyses prepared for this action in light of the new size standards. The new standards could result in a few more entities being considered small. However, NMFS does not think that the new size standards affect its decision to certify this action.

The small entities that would be affected by the proposed action are purse seine vessels of class size 4 to 6 and longline vessels over 24 meters in length overall. The U.S. Small Business Administration (SBA) defines small businesses engaged in fishing as those vessels with annual revenues of or below $19 million from finfish fishing. The average revenue per vessel for the U.S. Hawaii-based longline fleet in 2011 and for the U.S. purse seine fleet in each year 2010 through 2012 was below $19 million; there is effort in the West Coast-based longline fleet, however, its revenue cannot be reported due to confidentiality concerns. Therefore, all of these vessels are considered small businesses under the RFA.

Estimates of ex-vessel revenues in the U.S. purse seine fishery in the Convention Area since 2005, which would be indicative of current conditions, are confidential and may not be publicly disclosed because of the small number of vessels in the fishery. Since 2004, an average of only two U.S. purse seine vessels class sizes 4 to 6 have made landings of catch each year in the Convention Area. From 2005 through 2008, fewer than three vessels made landings in the Convention Area, thus the landings and revenue data from these years are confidential and cannot be released. Currently there are four class size 6 vessels and no class size 5 and 4 vessels likely to be affected by the rule in the near future. Two vessels transited through the Convention Area in 2010, but did not fish. Only three and two class size 6 vessels fished tunas in Convention Area in 2011 and 2012, respectively.

In 2012, the U.S. Hawaii-based longline fleet consisted of 129 vessels permitted under the Fishery Management Plan for Pelagics in the Western Pacific Region. However, relatively few are large-scale longline vessels (vessels over 24 meters in overall length). From 2008 through 2012, 29 large-scale longline vessels, on average, annually reported catches of bigeye tuna in the Convention Area (combining shallow-sets and deep-sets). In 2011, when there were 28 large-scale longline vessels fishing in the Convention Area, the Hawaii-based longline fleet landed about 26.11 million pounds or 11,846 metric tons of pelagic species for an ex-vessel value of about $78 million. Bigeye and yellowfin tuna represented about 47 percent and eight percent of the total longline landings, respectively. The total revenue represents average gross revenue per vessel of about $604,651.

NMFS considers all entities subject to this action to be small entities as defined by the revised size standards because average annual revenue from fishing per vessel for all vessels in all fleets operating in the Convention Area has been below $19 million. Because each affected vessel is a small business, this proposed action has an equal effect on all of these small entities, and therefore will impact all these small entities in the same manner. Based on the analysis above, the proposed action, if adopted, will not have an adverse or disproportional economic impact on these small business entities. Because the proposed action would not have a significant impact on a substantial number of small entities, an Initial Regulatory Flexibility Analysis is not required and none has been prepared. NMFS solicits public comment on the analyses in light of the new size standards.

This proposed rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) that has been approved by the Office of Management and Budget (OMB) under control number 0648-0387. Public reporting burden for a request for exemption due to force majeure is estimated to average 1 hour per response (less than one response per year is expected). Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSES ) and by email to OIRA_Submission@ omb.eop.gov, or fax to (202) 395-7285.

Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

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