In accordance with the Privacy Act of 1974, the Department of Homeland Security proposes to update and expand an existing Department of Homeland Security SORN titled, U.S. Customs and Border Protection, DHS/CBP-006—Automated Targeting System (ATS) 72 FR 43650, August 6, 2007.

The SORN published elsewhere in the Federal Register is being updated and expanded to inform the public about changes to the Automated Targeting System (ATS) categories of individuals, categories of records, routine uses, access provisions, and sources of data. DHS/CBP is updating and expanding the categories of individuals, categories of records and sources of records stored in ATS because it has certain data that it must ingest for performance purposes. The Privacy Impact Assessment (PIA), which DHS will publish on its Web site ( http://www.dhs.gov/privacy ) concurrently with the publication of the SORN in the Federal Register , provides a full discussion of the functional capabilities of ATS and its modules. DHS and CBP have previously exempted portions of ATS from the access, amendment, and public accounting provisions of the Privacy Act because it is a law enforcement system. DHS and CBP, however, will consider each request for access to records maintained in ATS to determine whether or not information may be released. DHS and CBP further note that despite the exemption taken on this system of records they are providing access and amendment to passenger name records (PNR) collected by CBP pursuant to its statutory authority, 49 U.S.C. 44909, as implemented by 19 CFR 122.49d; Importer Security Filing (10+2 documentation) information; and any records that were ingested by ATS where the source system of records already provides access and/or amendment under the Privacy Act.

ATS provides the following basic functionalities to support the CBP officer in identifying individuals and cargo that need additional review across the different means or modes of travel to and from the United States:

• Comparison: ATS compares information on travelers and cargo coming into and going out of the country against law enforcement and intelligence databases to identify individuals and cargo requiring additional scrutiny. For example, ATS compares information on individuals (identified as passengers, travelers, crewmembers, or persons appearing on documents supporting the movement of cargo) trying to enter the country or trying to enter merchandise into the country against the Terrorist Screening Database (TSDB), which ATS ingests from the DHS Watchlist Service (WLS), and outstanding wants and warrants.

• Rules: ATS compares existing information on individuals and cargo entering and exiting the country with patterns identified as requiring additional scrutiny. The patterns are based on CBP officer experience, analysis of trends of suspicious activity, and raw intelligence corroborating those trends. For example, ATS might compare information on cargo entering the country against a set of scenario-based targeting rules that indicate a particular type of fish rarely is imported from a given country.

• Federated Query: ATS allows users to search data across many different databases and correlates it across the various systems to provide a person centric view of all data responsive to a query about the person's identity from the selected data bases.

In order to do the above, ATS pulls data from many different source systems. In some instances ATS is the official record for the information, while in other instances ATS ingests and maintains the information in order to improve the functionality of the system or provides a pointer to the information in the underlying system. Below is a summary:

• Official Record: ATS maintains the official record for Passenger Name Records (PNR) collected by CBP pursuant to its statutory authority, 49 U.S.C. 44909, as implemented by 19 CFR 122.49d; for Importer Security Filing (10+2 documentation) information, which provides advanced information about cargo and related persons and entities for risk assessment and targeting purposes; for results of Cargo Enforcement Exams; for the combination of license plate, Department of Motor Vehicle (DMV) registration data and biographical data associated with a border crossing; for law enforcement and/or intelligence data, reports, and projects developed by CBP analysts that may include public source and/or classified information; and information obtained through memorandum of understanding or other arrangements because the information is relevant to the border security mission of the Department.

• Ingestion of Data: ATS maintains copies of key elements of certain CBP databases in order to minimize the processing time for searches on the operational systems and to act as a backup for certain operational systems, including, but not limited to: Automated Commercial Environment (ACE), Automated Commercial System (ACS), Automated Export System (AES), Advance Passenger Information System (APIS), Border Crossing Information (BCI), Consular Electronic Application Center (CEAC), Enforcement Integrated Database (EID) [which includes the Enforcement Case Tracking System (ENFORCE)], Electronic System for Travel Authorization (ESTA), Global Enrollment System (GES), Non-Immigrant Information System (NIIS), historical National Security Entry-Exit Registration System (NSEERS), Seized Asset and Case Tracking System (SEACATS), U.S. Immigration and Customs Enforcement (ICE) Student Exchange and Visitor Information System (SEVIS), Social Security Administration (SSA) Master Death File, TECS, Terrorist Screening Database (TSDB) through the DHS Watchlist Service (WLS), and WebIDENT. If additional data is ingested and that additional data does not require amendment of the categories of individuals or categories of records in the SORN, the PIA for ATS will be updated to reflect that information. The updated PIA can be found at www.dhs.gov/privacy.

• Pointer System: ATS accesses and uses additional databases without ingesting the data, including, but not limited to: CBP Border Patrol Enforcement Tracking System (BPETS), Department of State Consular Consolidated Database (CCD), commercial data aggregators, CBP's Enterprise Geospatial Information Services (eGIS), DHS/USVISIT IDENT, National Law Enforcement Telecommunications System (Nlets), DOJ's National Crime Information Center (NCIC), the results of queries in the FBI's Interstate Identification Index (III), and the National Insurance Crime Bureau's (NICB's) private database of stolen vehicles. If additional data is ingested and that additional data does not require amendment of the categories of individuals or categories of records in the SORN, the PIA for ATS will be updated to reflect that information. The updated PIA can be found at www.dhs.gov/privacy .

DHS/CBP has reorganized the ATS routine uses to provide greater uniformity across DHS systems. Consistent with DHS's information sharing mission, information stored in ATS may be shared with other DHS components, as well as appropriate Federal, State, local, tribal, foreign, or international government agencies. This sharing will only take place after DHS determines that the recipient has a need to know the information to carry out functions consistent with the routine uses set forth in the SORN.

DHS has exempted the system from the notification, access, amendment, and certain accounting provisions of the Privacy Act of 1974 because of the law enforcement nature of ATS. Despite the exemptions taken on this system of records, CBP and DHS are not exempting the following records from the access and amendment provisions of the Privacy Act: passenger name records (PNR) collected by CBP pursuant to its statutory authority, 49 U.S.C. 44909, as implemented by 19 CFR 122.49d; Importer Security Filing (10+2 documentation) information; and any records that were ingested by ATS where the source system of records already provides access and/or amendment under the Privacy Act. A traveler may obtain access to his or her PNR and request amendment as appropriate, but records concerning the targeting rules, the responses to rules, case events, law enforcement and/or intelligence data, reports, projects developed by CBP analysts that may include public source and/or classified information, information obtained through memorandum of understanding or other arrangements because the information is relevant to the border security mission of the Department, or records exempted from access by the system from which ATS ingested or accessed the information, will not be accessible to the individual.

The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. As a matter of policy ( Privacy Policy Guidance Memorandum 2007-1, most recently updated January 7, 2009), DHS extends administrative Privacy Act protections to all persons, regardless of citizenship, where systems of records maintains information on both U.S. citizens and lawful permanent residents, as well as visitors.

The Privacy Act allows government agencies to exempt systems of records from certain provisions of the Act. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.

As such, DHS is continuing to claim exemptions from certain requirements of the Privacy Act for DHS/CBP-006—Automated Targeting System (ATS) System of Records. Some information in DHS/CBP-006—Automated Targeting System (ATS) System of Records relates to official DHS national security, law enforcement, immigration, and intelligence activities. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DHS' ability to obtain information from third parties and other sources; to protect the privacy of third parties; and to safeguard officially classified and/or controlled information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.

The exemptions proposed here are standard law enforcement and national security exemptions exercised by a large number of federal law enforcement and intelligence agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived.

A notice of system of records for DHS/CBP-006—Automated Targeting System (ATS) System of Records is also published in this issue of the Federal Register .

For the reasons stated in the preamble, DHS proposes to amend Chapter I of Title 6, Code of Federal Regulations, as follows:

Please refer to Docket ID NRC-2012-0056 when contacting the NRC about the availability of information for this petition for rulemaking. You may access information related to this petition for rulemaking, which the NRC possesses and is publicly available, by the following methods:

• Federal Rulemaking Web Site: Go to http://www.regulations.gov and search for Docket ID NRC-2012-0056.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may access publicly available documents online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “ Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. The incoming petition is in ADAMS under accession No. ML12065A215.

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

Please include Docket ID NRC-2012-0056 in the subject line of your comment submission, in order to ensure that the NRC is able to make your comment submission available to the public in this docket.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

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

The petition states that the petitioner previously submitted an earlier PRM to the NRC on emergency core cooling systems (ADAMS Accession No. ML070871368), which the NRC assigned Docket ID PRM-50-84 (73 FR 71564; November 25, 2008). In addition, the petition states that the petitioner co-authored a paper entitled, “Considering the Thermal Resistance of Crud in LOCA Analysis” (American Nuclear Society, 2009 Winter Meeting, Washington, DC (November 15-19, 2009)).

In its petition (ADAMS Accession No. ML12065A215), the petitioner requests that the NRC amend its regulations in Title 10 of the Code of Federal Regulations (10 CFR) part 50, “Domestic Licensing of Production and Utilization Facilities,” to “require all holders of operating licenses for nuclear power plants (“NPP”) to operate NPPs with in-core thermocouples at different elevations and radial positions throughout the reactor core to enable NPP operators to accurately measure a large range of in-core temperatures in NPP steady-state and transient conditions.” The petitioner further asserts that, in the event of a severe accident, in-core thermocouples would provide NPP operators with “crucial information to help operators manage the accident.”

In addition to several other reports and findings cited by the petitioner to support the petition, the petitioner cites the “Report of the President's Commission on the Accident at Three Mile Island [TMI]: The Need for Change: The Legacy of TMI,” dated October 1979. The petitioner states that “[i]n the last three decades, NRC has not made a regulation requiring that NPPs operate with in-core thermocouples at different elevations and radial positions throughout the reactor core to enable NPP operators to accurately measure a large range of in-core temperatures in NPP steady-state and transient conditions, which would help fulfill the President's Commission recommendations. If another severe accident were to occur in the United States, NPP operators would not know what the in-core temperatures were during the progression of the accident.” The petitioner continues by stating that “[i]n a severe accident, core-exit thermocouples would be the primary tool that was used to detect inadequate core cooling and core uncover.” The petitioner states “[t]he problem with using a predetermined core-exit temperature measurement to signal the time for NPP operators to transition from EOPs [Emergency Operating Procedures] to implementing SAMGs [Severe Accident Management Guidelines] is that experimental data indicates that core-exit temperature (“CET”) measurements have significant limitations: (1) `[t]he use of the CET measurements has limitations in detecting inadequate core cooling and core uncovery;' (2) `[t]he CET indication displays in all cases a significant delay (up to several 100 [seconds]);' and (3) `[t]he CET reading is always significantly lower (up to several 100 [Kelvin]) than the actual maximum cladding temperature.' ”  1 The petitioner continues by asserting that “despite the fact that `the nuclear industry developed SAMGs during the 1980s and 1990s in response to the [Three Mile Island] accident and followup activities,' which `included extensive research and study (including several [probabilistic risk assessments]) on severe accidents and severe accident phenomena,'  2 NRC and the nuclear industry have ignored experimental data indicating that CET measurements have significant limitations. And ignored the President's Commission recommendations that NPPs have `instruments that can provide proper warning and diagnostic information; for example, the measurement of the full range of temperatures within the reactor vessel under normal and abnormal conditions.' ”  3

The petitioner cites the NRC's July 2011 “Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident,” by stating that “`EOPs typically cover accidents to the point of loss of core cooling and initiation of inadequate core cooling ( e.g., core exit temperatures in PWRs greater than 649 degrees Celsius (1200 degrees Fahrenheit)).' ”  4 The petitioner continues by stating “[u]nfortunately, NRC and Westinghouse do not consider that experimental data from tests conducted at four facilities indicates that CET measurements would not be an adequate indicator for when to transition from EOPs to implementing SAMGs in a severe accident.”

The petitioner cites findings of experiments, including a LOFT LP-FP-2 experiment, and states that “[t]he results of LOFT LP-FP-2 and other experiments demonstrate the need for NPPs to operate with in-core thermocouples at different elevations and radial positions throughout the reactor core to enable NPP operators to accurately measure a large range of in-core temperatures in NPP steady-state and transient conditions.”

The petition states that the “[p]etitioner is submitting this 10 CFR 2.802 petition because if NPPs were to operate with in-core thermocouples at different elevations and radial positions throughout the reactor core to enable NPP operators to accurately measure a large range of in-core temperatures in NPP steady-state and transient conditions, it would help improve public and plant-worker safety. In the event of a severe accident, in-core thermocouples would enable NPP operators to accurately measure in-core temperatures, providing crucial information to help operators manage the accident; for example, indicating the time to transition from EOPs to implementing SAMGs.” The petitioner also asserts that “[i]f implemented, the regulation proposed in this petition for rulemaking would help improve public and plant-worker safety.”

On April 23, 2012, Docket No. FAA-2012-0287; Airspace Docket No. 11-AWP-21 was published in the Federal Register proposing to amend various Air Traffic Service Routes in the Southwestern United States (77 FR 24156). The description of V-16 in the NPRM did not reflect a previous amendment of the route that was published on September 19, 2011 (76 FR 57902). The incorrect part of the V-16 description in the NPRM reads “* * * Kennedy; Dear Park, NY; Calverton, NY; Norwich, CT * * *” The correct version is “* * * Kennedy; INT Kennedy 040° and Calverton, NY 261° radials; Calverton; Norwich, CT * * *” The corrected airspace description is rewritten for clarity.

Accordingly, pursuant to the authority delegated to me, the NPRM for the proposed amendment of Air Traffic Service Routes; Southwestern United States as published in the Federal Register of April 23, 2010 (77 FR 24156) FR Doc. 2012-9675, is corrected as follows:

By removing the description of V-16 starting at line 16, column 3, on page 24157, and inserting the following:

Comments Invited

Interested persons are invited to comment on this rule 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-2012-0386; Airspace Docket No. 12-AEA-6) 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.

Persons 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 Docket No. FAA-2012-0386; Airspace Docket No. 12-AEA-6.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. 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 from and comments submitted through 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 address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

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

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Quakertown, PA, providing the controlled airspace required to support the new RNAV (GPS) standard instrument approach procedures for Quakertown Airport. Controlled airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations at the airport.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (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 that 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 United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed 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 airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Quakertown Airport, Quakertown, PA.

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

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

Comments Invited

Interested persons are invited to comment on this rule 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-2012-0249; Airspace Docket No. 12-ASO-16) 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.

Persons 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 Docket No. FAA-2012-0249; Airspace Docket No. 12-ASO-16.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. 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 from and comments submitted through 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 address and phone number) between 9 a.m. and 5 p.m., Monday through Friday, except Federal Holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, room 350, 1701 Columbia Avenue, College Park, Georgia 30337.

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

The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish Class E airspace at Apopka, FL, providing the controlled airspace required to support the RNAV GPS standard instrument approach procedures for Orlando Apopka Airport. Controlled airspace extending upward from 700 feet above the surface would be established for the safety and management of IFR operations at the airport.

Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.9V, dated August 9, 2011, and effective September 15, 2011, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore, (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 that 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 United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This proposed 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 airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This proposed regulation is within the scope of that authority as it would establish Class E airspace at Orlando Apopka Airport, Apopka, FL.

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

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

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

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0353), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number USCG-2012-0353 in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

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

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number USCG-2012-0353 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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

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

Between 9:15 p.m. and 9:35 p.m. on July 4, 2012 a fireworks display will take place on the St. Lawrence River near Alexandria Bay, NY. The Captain of the Port Buffalo has determined that fireworks launched proximate to watercraft pose a significant risk to public safety and property. Such hazards include premature detonations, dangerous detonations, dangerous projectiles, and falling or burning debris.

The proposed safety zone would be effective and enforced from 8:45 p.m. until 10:05 p.m. on July 4, 2012. It would encompass all waters of St. Lawrence River, Alexandria Bay, NY starting within a 1120FT radius of position 44°20′38.48″ N, and 075°55′19.07″ W. (NAD 83)

Entry into, transiting, or anchoring within the proposed safety zone would be prohibited unless authorized by the Captain of the Port Buffalo or his on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16.

This proposed temporary safety zone is necessary to ensure the safety of spectators and vessels during the Alexandria Bay Chamber of Commerce fireworks display.

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

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this proposed rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this proposed rule will be relatively small and enforced for relatively short time. Also, the proposed safety zone is designed to minimize its impact on navigable waters. Furthermore, the proposed safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the proposed safety zone when permitted by the Captain of the Port.

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

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

This proposed temporary final rule may affect the following entities, some of which might be small entities: the owners of operators of vessels intending to transit or anchor in a portion of the St. Lawrence River near Alexandria Bay, New York between 8:45 p.m. to 10:05 p.m. on July 4, 2012.

This proposed safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: This proposed rule will be in effect for only 80 minutes and the proposed safety zone will allow vessels to move freely around the proposed safety zone on the St. Lawrence River. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this proposed rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If this proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Christopher Mercurio, Chief of Waterway Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9343, email SectorBuffaloMarineSafety@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, because it involves the establishment of a safety zone.

A preliminary environmental analysis checklist and a preliminary categorical exclusion determination are available in the docket where indicated under ADDRESSES .

We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

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

To submit your comment online, go to http://www.regulations.gov, type the docket number (USCG-2012-0368) in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking.

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

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number (USCG-2012-0368) in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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

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

North Carolina Department of Transportation has awarded a contract to American Bridge Company of Coraopolis, PA to perform bridge maintenance on the U.S. 74/76 Bascule Bridge crossing the Atlantic Intracoastal Waterway, mile 283.1, at Wrightsville Beach, North Carolina. The contract provides for cleaning, painting, steel repair, and grid floor replacement to commence on September 1, 2012 with a completion date of May 1, 2013. The contractor will utilize a 40 foot deck barge with a 40 foot beam as a work platform and for equipment staging. This safety zone is needed to provide a safety buffer to transiting vessels as bridge repairs present potential hazards to mariners and property due to reduction horizontal clearance.

The Coast Guard is proposing a temporary safety zone that would encompass the waters directly under the U.S. 74/76 Bascule Bridge crossing the Atlantic Intracoastal Waterway, mile 283.1, at Wrightsville Beach, North Carolina (34°13′07″ N, 077°48′46″ W). All vessels transiting the this section of the waterway requiring a horizontal clearance of greater than 50 feet will be required to make a one hour advanced notification to the U.S. 74/76 Bascule Bridge tender while the safety zone is in effect. This zone will be in effect from 8 a.m. September 1, 2012 through 8 p.m. May 1, 2013.

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

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. This rule would not restrict traffic from transiting a portion of the Atlantic Intracoastal Waterway, it imposes a one hour notification to ensure the waterway is clear of impediment to allow passage to vessels requiring a horizontal clearance of greater than 50 feet.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered the impact of this proposed rule on small entities. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule will not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which may be small entities: the owners or operators of commercial tug and barge companies, recreational and commercial fishing vessels intending to transit the specified portion of Atlantic Intracoastal Waterway from 8 a.m. September 1, 2012 through 8 p.m. May 1, 2013.

This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. Although the safety zone will apply to this section of the Atlantic Intracoastal Waterway, vessel traffic will be able to request passage by providing a one hour advanced notification. Before the effective period, the Coast Guard will issue maritime advisories widely available to the users of the waterway. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT , above. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the “For Further Information Contact” section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a temporary safety zone. This rule is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A preliminary environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES . We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

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

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

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0354), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov , it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov , type the docket number “USCG-2012-0354” into the “search” box and click “search.” Click on “Submit a Comment” on the line associated with this rulemaking. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the proposed rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov , type the docket number USCG-2012-0354 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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

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

Between 10:15 p.m. and 11 p.m. on July 7, 2012 a fireworks display will be held on the waters of Hamlin Beach State Park near Hamlin, NY. The Captain of the Port Buffalo has determined that fireworks launched proximate to watercraft pose a significant risk to public safety and property. Such hazards include premature detonations, dangerous detonations, dangerous projectiles, and falling or burning debris.

The proposed safety zone would be effective and enforced from 9:45 p.m. until 11:30 p.m. on July 7, 2012. The proposed safety zone would encompass all waters of Hamlin Beach State Park, Hamlin, NY within a 700 FT radius of position 43°21′51.9″ N and 77°56′59.6″ W (NAD 83).

Entry into, transiting, or anchoring within the proposed safety zone would be prohibited unless authorized by the Captain of the Port Buffalo or his on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16.

This proposed temporary safety zone is necessary to ensure the safety of spectators and vessels during the “A Salute to Our Heroes” fireworks display.

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

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this proposed rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this proposed rule will be relatively small and enforced for a relatively short time. Also, the proposed safety zone is designed to minimize its impact on navigable waters. Furthermore, the proposed safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the proposed safety zone when permitted by the Captain of the Port.

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

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

This proposed temporary final rule may affect the following entities, some of which might be small entities: the owners of operators of vessels intending to transit or anchor in a portion of Lake Erie near Hamlin, NY on July 07, 2011 from 9:45 p.m. until 11:30 p.m.

This proposed safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this proposed rule will only be enforced for 105 minutes in a low vessel traffic area. Vessel traffic can pass safely around the zone. Before the effective period, maritime advisories will be issued, which include a Broadcast Notice to Mariners.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If this proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Christopher Mercurio, Chief of Waterway Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9343, email SectorBuffaloMarineSafety@uscg.mil . The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, because it involves the establishment of a safety zone.

A preliminary environmental analysis checklist and a preliminary categorical exclusion determination are available in the docket where indicated under ADDRESSES .

We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

If you submit a comment, please include the docket number for this rulemaking (USCG-2012-0351), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an email address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, type the docket number USCG-2012-0351 in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this rulemaking. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type the docket number USCG-2012-0351 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

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

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

Between 10 p.m. and 10:30 p.m. on July 3, 2012 a fireworks display will take place on Lake Ontario near Olcott, NY. The Captain of the Port Buffalo has determined that fireworks launched proximate to watercraft presents significant hazards to public spectators and participants. Such hazards include premature detonations, dangerous detonations, dangerous projectiles, and falling or burning debris.

The proposed safety zone will be effective and enforced from 9:30 p.m. until 11 p.m. on July 3, 2012. The proposed safety zone will encompass all waters of Lake Ontario, Olcott, NY within a 1120 FT radius of position 43°20′23.57″ N and 78°43′09.50″ W (NAD 83).

Entry into, transiting, or anchoring within the proposed safety zone is prohibited unless authorized by the Captain of the Port Buffalo or his on-scene representative. The Captain of the Port or his on-scene representative may be contacted via VHF Channel 16.

This proposed temporary safety zone is necessary to ensure the safety of spectators and vessels during the Olcott Fireworks.

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

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Homeland Security (DHS). We conclude that this proposed rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this proposed rule will be relatively small and enforced for a relatively short time. Also, the safety zone is designed to minimize its impact on navigable waters. Furthermore, the safety zone has been designed to allow vessels to transit around it. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Under certain conditions, moreover, vessels may still transit through the safety zone when permitted by the Captain of the Port.

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

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

This proposed temporary final rule may affect the following entities, some of which might be small entities: the owners or operators of vessels intending to transit or anchor in a portion of Lake Ontario near Olcott, New York between 9:30 p.m. to 11 p.m. on July 3, 2012.

This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: this rule will be in effect for only 90 minutes and the safety zone will allow vessels to move freely around the safety zone on Lake Ontario. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If this proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Christopher Mercurio, Chief of Waterway Management, U.S. Coast Guard Sector Buffalo; telephone 716-843-9343, email SectorBuffaloMarineSafety@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

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

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

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule is categorically excluded, under figure 2-1, paragraph (34)(g), of the Instruction, because it involves the establishment of a safety zone.

A preliminary environmental analysis checklist and a preliminary categorical exclusion determination are available in the docket where indicated under ADDRESSES .

We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

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

In the CAA Amendments of 1977, Congress established a program to protect and improve visibility in the national parks and wilderness areas. See CAA section 169A. Congress amended the visibility provisions in the CAA in 1990 to focus attention on the problem of regional haze. See CAA section 169B. EPA promulgated regulations in 1999 to implement sections 169A and 169B of the Act. These regulations require states to develop and implement plans to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas  1 (Class I areas). 64 FR 35714 (July 1, 1999); see also 70 FR 39104 (July 6, 2005) and 71 FR 60612 (October 13, 2006).

On behalf of the State of Oregon, the Oregon Department of Environmental Quality (ODEQ) submitted its Regional Haze State Implementation Plan (Regional Haze SIP submission or SIP submittal) to EPA on December 10, 2010 and supplemented on February 1, 2011. In a previous action EPA approved certain provisions in Oregon's Regional Haze SIP submission. 76 FR 38997. This previous action approved the provisions BART (40 CFR 51.308(e), calculation of baseline and natural conditions (40 CFR 51.308(d)(2)), and state wide emission inventory of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any mandatory Class I area. EPA also approved Oregon Administrative Rules OAR 340-223-0010 through 340-223-0080 (Regional Haze Rules). In that same action, EPA also approved portions of the SIP submittal as meeting the requirements of CAA section 110(a)(2)(D)(i)(II) with respect to the visibility prong for the 1997 8-hour ozone and 1997 PM 2.5 National Ambient Air Quality Standards (NAAQS).

In this action, EPA is proposing to approve the remaining provisions of Oregon's Regional Haze SIP submission including the portions that address the regional haze requirements for establishing Reasonable Progress Goals (RPGs) and the Long Term Strategy (LTS).

Regional haze is impairment of visual range or colorization caused by emission of air pollution produced by numerous sources and activities, located across a broad regional area. The sources include but are not limited to, major and minor stationary sources, mobile sources, and area sources including non-anthropogenic sources. These sources and activities may emit fine particles (PM 2.5 ) (e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust), and their precursors (e.g., sulfur dioxide (SO 2 ), nitrogen oxides (NO X ), and in some cases, ammonia (NH 3 ) and volatile organic compounds (VOC)). Atmospheric fine particulate reduces clarity, color, and visual range of visual scenes. Visibility reducing fine particulate is primarily composed of sulfate, nitrate, organic carbon compounds, elemental carbon, and soil dust, and impairs visibility by scattering and absorbing light. Fine particulate can also cause serious health effects and mortality in humans, and contributes to environmental effects such as acid deposition and eutrophication. See 64 FR at 35715.

Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national parks and wilderness areas. The average visual range in many Class I areas in the Western United States is 100-150 kilometers, or about one-half to two-thirds the visual range that would exist without manmade air pollution. Id. Visibility impairment also varies day-to-day and by season depending on variation in meteorology and emission rates.

In section 169A of the 1977 CAA Amendments, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in Class I areas which impairment results from manmade air pollution.” CAA section 169A(a)(1). On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources, i.e., “reasonably attributable visibility impairment” (RAVI). 45 FR 80084. These regulations represented the first phase in addressing visibility impairment. EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling and scientific knowledge about the relationships between pollutants and visibility impairment were improved.

Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35713) (the regional haze rule or RHR). The RHR revised the existing visibility regulations to integrate into the regulation, provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in section III of this rulemaking. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands. 2 40 CFR 51.308(b) requires states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.

Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments and various Federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.

Because the pollutants that lead to regional haze impairment can originate from across state lines, even across international boundaries, EPA has encouraged the States and Tribes to address visibility impairment from a regional perspective. Five regional planning organizations  3 (RPOs) were created nationally to address regional haze and related issues. One of the main objectives of the RPOs is to develop and analyze data and conduct pollutant transport modeling to assist the States or Tribes in developing their regional haze plans.

The Western Regional Air Partnership (WRAP), 4 one of the five RPOs nationally, is a voluntary partnership of State, Tribal, Federal, and local air agencies dealing with air quality in the West. WRAP member States include: Alaska, Arizona, California, Colorado, Oregon, Montana, New Mexico, North Dakota, Idaho, South Dakota, Utah, Washington, and Wyoming. WRAP Tribal members include Campo Band of Kumeyaay Indians, Confederated Salish and Kootenai Tribes, Cortina Indian Rancheria, Hopi Tribe, Hualapai Nation of the Grand Canyon, Native Village of Shungnak, Nez Perce Tribe, Northern Cheyenne Tribe, Pueblo of Acoma, Pueblo of San Felipe, and Shoshone-Bannock Tribes of Fort Hall.

As a result of the regional planning efforts in the West, all states in the WRAP region contributed information to a Technical Support System (TSS) which provides an analysis of the causes of haze, and the levels of contribution from all sources within each state to the visibility degradation of each Class I area. The WRAP States consulted in the development of reasonable progress goals, using the products of this technical consultation process to co-develop their reasonable progress goals for the Western Class I areas. The modeling done by the WRAP relied on assumptions regarding emissions over the relevant planning period and embedded in these assumptions were anticipated emissions reductions in each of the States in the WRAP, including reductions from BART and other measures to be adopted as part of the State's long term strategy for addressing regional haze. The reasonable progress goals in the draft and final regional haze SIPs that have now been prepared by States in the West accordingly are based, in part, on the emissions reductions from nearby States that were agreed on through the WRAP process.

Regional haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install BART controls for the purpose of eliminating or reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.

The RHR establishes the deciview (dv) as the principal metric for measuring visibility. This visibility metric expresses uniform changes in haziness in terms of common increments across the entire range of visibility conditions, from pristine to extremely hazy conditions. Visibility is determined by measuring the visual range (or deciview), which is the greatest distance, in kilometers or miles, at which a dark object can be viewed against the sky. The deciview is a useful measure for tracking progress in improving visibility, because each deciview change is an equal incremental change in visibility perceived by the human eye. Most people can detect a change in visibility at one deciview. 5

The deciview is used in expressing reasonable progress goals (which are interim visibility goals towards meeting the national visibility goal), defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by manmade air pollution by reducing anthropogenic emissions that cause regional haze. The national goal is a return to natural conditions, i.e., manmade sources of air pollution would no longer impair visibility in Class I areas.

To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437), and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP submittal and periodically review progress every five years midway through each 10-year implementation period. To do this, the RHR requires states to determine the degree of impairment (in deciviews) for the average of the 20% least impaired (“best”) and 20% most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, states must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural and current visibility conditions in documents titled, EPA's Guidance for Estimating Natural Visibility Conditions Under the Regional Haze Rule, September 2003, (EPA-454/B-03-005 located at http://www.epa.gov/ttncaaa1/t1/memoranda/rh_envcurhr_gd.pdf ), (hereinafter referred to as “EPA's 2003 Natural Visibility Guidance”), and Guidance for Tracking Progress Under the Regional Haze Rule (EPA-454/B-03-004 September 2003 located at http://www.epa.gov/ttncaaa1/t1/memoranda/rh_tpurhr_gd.pdf ), (hereinafter referred to as “EPA's 2003 Tracking Progress Guidance”).

For the first regional haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20% least impaired days and 20% most impaired days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states are required to calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the amount of progress made. In general, the 2000-2004 baseline time period is considered the time from which improvement in visibility is measured.

The RHR requires that states consult with Federal Land Managers (FLMs) before adopting and submitting their SIPs. 40 CFR 51.308(i). States must provide FLMs an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This consultation must include the opportunity for the FLMs to discuss their assessment of visibility impairment in any Class I area and to offer recommendations on the development of the reasonable progress goals and on the development and implementation of strategies to address visibility impairment. Further, a state must include in its SIP a description of how it addressed any comments provided by the FLMs. Finally, a SIP must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas.

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires States to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources  6 built between 1962 and 1977, to procure, install, and operate the “Best Available Retrofit Technology” (BART) as determined by the state. States are directed to conduct BART determinations for such sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. The regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a State has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date EPA approves the regional haze SIP. See CAA section 169A(g)(4); 40 CFR 51.308(e)(1)(iv).

EPA previously approved Oregon's BART determination for the sources subject to BART in its jurisdiction. See 76 FR 38997. Please refer to that action for details of the BART requirements and EPA's rationale for approval of the BART provisions in the Oregon Regional Haze SIP submission.

The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two reasonable progress goals (RPGs) (i.e., two distinct goals, one for the “best” and one for the “worst” days) for every Class I area for each (approximately) 10-year implementation period. The RHR does not mandate specific milestones or rates of progress, but instead calls for states to establish goals that provide for “reasonable progress” toward achieving natural (i.e., “background”) visibility conditions. In setting RPGs, states must provide for an improvement in visibility for the most impaired days over the (approximately) 10-year period of the SIP, and ensure no degradation in visibility for the least impaired days over the same period.

States have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's Guidance for Setting Reasonable Progress Goals under the Regional Haze Program, July 1, 2007, Memorandum from William L. Wehrum, Acting Assistant Administrator for Air and Radiation, to EPA Regional Administrators, EPA Regions 1-10 (pp.4-2, 5-1) (“EPA's Reasonable Progress Guidance”). In setting the RPGs, states must also consider the rate of progress needed to reach natural visibility conditions by 2064 (referred to as the “uniform rate of progress” (URP) or the “glidepath”) and the emission reduction measures needed to achieve that rate of progress over the 10-year period of the SIP. Uniform progress towards achievement of natural conditions by the year 2064 represents a rate of progress which states are to use for analytical comparison to the amount of progress they expect to achieve. In setting RPGs, each state with one or more Class I areas (“Class I state”) must also consult with potentially “contributing states,” i.e., other nearby states with emission sources that may be affecting visibility impairment at the state's Class I areas. See 40 CFR 51.308(d)(1)(iv).

Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15 year strategy for making reasonable progress, 40 CFR 51.308(d)(3) of the RHR requires that states include an LTS in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The LTS must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the state. See 40 CFR 51.308(d)(3).

When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies. See 40 CFR 51.308(d)(3)(i). In such cases, the contributing state must demonstrate that it has included, in its SIP, all measures necessary to obtain its share of the emissions reductions needed to meet the RPGs for the Class I area. The RPOs have provided forums for significant interstate consultation, but additional consultations between states may be required to sufficiently address interstate visibility issues. This is especially true where two states belong to different RPOs.

States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their LTS: (1) Emissions reductions due to ongoing air pollution control programs, including measures to address RAVI; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS. See 40 CFR 51.308(d)(3)(v).

As part of the RHR, EPA revised 40 CFR 51.306(c) regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment, which was due December 17, 2007, in accordance with 40 CFR 51.308(b) and (c). On or before this date, the state must revise its plan to provide for review and revision of a coordinated LTS for addressing RAVI and regional haze, and the state must submit the first such coordinated LTS with its first regional haze SIP. Future coordinated LTS's, and periodic progress reports evaluating progress towards RPGs, must be submitted consistent with the schedule for SIP submissions and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The periodic review of a state's LTS must report on both regional haze and RAVI impairment and must be submitted to EPA as a SIP revision.

Section 51.308(d)(4) of the RHR includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for RAVI. Compliance with this requirement may be met through “participation” in the IMPROVE network, i.e., review and use of monitoring data from the network. The monitoring strategy is due with the first regional haze SIP, and it must be reviewed every five years. The monitoring strategy must also provide for additional monitoring sites if the IMPROVE network is not sufficient to determine whether RPGs will be met.

The SIP must also provide for the following:

• Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;

• Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states;

• Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible, in electronic format;

• Developing a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. A state must also make a commitment to update the inventory periodically; and

• Other elements, including reporting, recordkeeping, and other measures necessary to assess and report on visibility.

The RHR requires control strategies to cover an initial implementation period extending to the year 2018, with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met. Each state also is required to submit a report to EPA every five years that evaluates progress toward achieving the RPG for each Class I area within the state and outside the state if affected by emissions from within the state. 40 CFR 51.308(g). The first progress report is due five years from submittal of the initial regional haze SIP revision. At the same time a 5-year progress report is submitted, a state must determine the adequacy of its existing SIP to achieve the established goals for visibility improvement. See 40 CFR 51.308(h).

There are twelve mandatory Class I areas, or portions of such areas, within Oregon: Mt. Hood Wilderness, Mt. Jefferson Wilderness, Mt. Washington Wilderness, Three Sisters Wilderness, Diamond Peak Wilderness, Crater Lake National Park, Mountain Lakes Wilderness, Gearhart Mountain Wilderness, Kalmiopsis Wilderness, Strawberry Mountain Wilderness, and Eagle Cap Wilderness, are all within Oregon State borders. Hells Canyon Wilderness Area is a shared Class I area with Idaho. See 40 CFR 81.410. Oregon is responsible for developing reasonable progress goals for the Class I areas in Oregon and, through agreement with Idaho, is also responsible for developing the reasonable progress goals for the Hells Canyon Class I area. Oregon reviewed interstate transport of haze pollutants with neighboring states, focusing on source apportionment information to identify visibility impacts in Oregon and neighboring state Class I areas. Oregon consulted with Washington, Idaho, California and Nevada. See the Oregon Regional Haze SIP submittal, chapter 13, section 13.2; see, also the WRAP Technical Support Document, February 28, 2011  7 (WRAP TSD) supporting this action and 76 FR 38997.

The Oregon SIP submittal addresses the eleven Class I areas that are completely within the State border, the Class I area with shared jurisdiction with Oregon and Idaho, and the visibility impacts of Oregon sources on Class I areas in neighboring states.

EPA previously evaluated and approved Oregon's determination of baseline and natural conditions for all eleven Class I areas in Oregon. See 76 FR 12651 (March 8, 2011) and 76 FR 38997 (July 5, 2011) (proposed and final rule respectively). The discussion of baseline and natural conditions in those Federal Register notices is relevant when evaluating the State's Reasonable Progress Goals which we are proposing to approve today. Thus, the discussion below summarizes EPA's previous explanation of the baseline and natural conditions in Oregon's Class I areas.

Oregon established baseline and natural visibility conditions as well as the URP to achieve natural visibility conditions in 2064 for all eleven of the Class I areas wholly within its borders. The SIP submittal also included these conditions for Hells Canyon Wilderness Area, as determined by WRAP and established by Oregon and Idaho.

Baseline visibility was calculated from monitoring data collected by IMPROVE monitors for the most-impaired (20% worst) days and the least-impaired (20% best) days. Oregon used the WRAP derived natural visibility conditions. In general, WRAP based their natural condition estimates on EPA guidance; Guidance for Estimating Natural Visibility Conditions Under the Regional Haze Program (EPA-45/B-03-0005 September 2003) but incorporated refinements which EPA believes provides results more appropriate for western states than the general EPA default approach. See WRAP TSD section 2.E.

Because individual monitors are used to represent visibility conditions for groups of Class I areas in Oregon, not every Class I area in Oregon has an IMPROVE monitor. Specifically, the Oregon Class I areas are segregated into six groups. These groups, and Class I areas they contain, are:

• North Cascades: Mt. Hood Wilderness Area.

• Central Cascades: Mt. Jefferson, Mt. Washington, and Three Sisters Wilderness Areas.

• Southern Cascades: Crater Lake National Park, Diamond Peak, Mountain Lakes, and Gearhart Wilderness Areas.

• Coast Range: Kalmiopsis Wilderness Area.

• Eastern Oregon: Strawberry Mountain and Eagle Cap Wilderness Areas.

• Eastern Oregon/Western Idaho: Hells Canyon Wilderness Area.

Visibility conditions on the 20% worst days during the 2000-04 baseline period for each group of Class I areas were determined to be:

• North Cascades—14.9 dv.

• Central Cascades—15.3 dv.

• Southern Cascades—13.7 dv.

• Coast Range—15.5 dv.

• Eastern Oregon—18.6 dv.

• Eastern Oregon/Western Idaho—18.6 dv.

Visibility conditions on the 20% best days during the 2000-04 baseline period for each group of Class I areas were determined to be:

• North Cascades—2.2 dv.

• Central Cascades—3.0 dv.

• Southern Cascades—1.7 dv.

• Coast Range—6.3 dv.

• Eastern Oregon—4.5 dv.

• Eastern Oregon/Western Idaho—5.5 dv.

Natural visibility conditions on the 20% worst days for each group of Class I areas were determined to be:

• Northern Cascades—8.4 dv.

• Central Cascades—8.8 dv.

• Southern Cascades—7.6 dv.

• Coast Range—9.4 dv.

• Eastern Oregon—8.9 dv.

• Eastern Oregon/Western Idaho—8.3 dv.

EPA previously evaluated and approved Oregon's emissions inventory of pollutants that impact the twelve Class I areas in Oregon, as well as the impacts of emissions from Oregon BART-eligible sources on nearby Class I in other states. See 76 FR 12651 and 76 FR 38997. Below is a summary of emission inventories of the most significant visibility impairing pollutants in Oregon, which are SO 2 , NO X , and organic carbon. These pollutants, and their visibility impacts, were explained in more detail in the notices for the previous rulemaking.

Point sources in Oregon account for 39% of total state-wide SO 2 emissions. The most significant point sources are coal-fired electrical generation units. Area sources (such as Pacific offshore shipping, wood combustion, and natural gas combustion) contribute about 21% to Oregon statewide SO 2 emissions. On-road mobile and off-road mobile sources contribute a combined total of 21% of the Oregon SO 2 emissions. On-road mobile sources account for 43% of the total NO X statewide emissions in Oregon, and off-road mobile sources account for 21% of the NO X . Natural fire accounts for 11% of the NO X , and point sources account for 10% of the NO X emissions. Most of the organic carbon emissions in Oregon are from natural fire, which fluctuate greatly from year to year. For 2002, about 68% of statewide organic carbon emissions in Oregon were due to natural fire. Anthropogenic fire (prescribed fire, agricultural field burning, and outdoor residential burning) accounts for 9% of the statewide organic carbon emissions.

Oregon used a two step process to identify the contribution of each source or source category to existing visibility impairment. First, ambient pollutant concentrations by species (sulfate, nitrate, organic carbon, fine particulate, etc) were determined from the IMPROVE sampler representing each Class I area. These concentrations were then used to determine the extinction coefficient for each pollutant species according to the updated IMPROVE algorithm. Extinction was then converted to deciview values, the required visibility metric identified in the RHR. Second, appropriate modeling tools were used to determine which source categories contributed to the ambient concentrations of each pollutant species in each Class I area. Thus, impairment was distributed by source category.

The WRAP and Western States selected the Comprehensive Air Quality Model with Extensions (CAMx) in conjunction with PM Source Apportionment Technology (PSAT) first to determine source contribution to ambient sulfate and nitrate concentrations and then to decide which geographic source regions contribute to haze at specific Class I areas. The second modeling tool used by WRAP was the Weighted Emissions Potential (WEP) model, which was used primarily as a screening tool to determine the contribution of ambient organic carbon, elemental carbon, PM 2.5 , and coarse PM concentrations to visibility impairment in Oregon Class I areas. Description of these tools, their use and evaluation of them are described in more detail in section 6 of the WRAP TSD. Below is a summary of the source categories that contribute to the SO 2 , NO X , and organic carbon, which cause the most significant visibility impairment in Class I areas in Oregon.

The results of the PSAT and WEP modeling show that sources of visibility impairment in the Oregon Class I area vary significantly by location. The PSAT results show that the 20% worst days during 2000-2004 in the North and Central Cascades Class I areas are mostly impacted by sulfate from a combination of SO 2 point, area, and mobile sources in Washington and Oregon, and marine shipping in the Pacific offshore region. Most of the sulfate impacting the Southern Cascade Class I areas is from point sources in Oregon, Washington, California, and Canada. Pacific offshore shipping is also a substantial contributor of sulfate to this area. The most significant sources of sulfate to the only coastal Oregon Class I area (Kalmiopsis Wilderness Area) are natural fires in Oregon, and marine shipping in the Pacific Ocean. For the 20% worst days in Eastern Oregon Class I areas, the contribution of sulfates from each geographical area is relatively low, with the largest contribution being from point sources from Canada, Washington, and Oregon. See Oregon Regional Haze SIP submittal Figures 9.2.1-1 through Figures 9.2.1-6.

The PSAT results for nitrate show that a majority of the nitrate impacting the North and Central Cascades Class I areas is from mobile sources in Oregon and Washington. For the 20% worst days in Southern Cascades, the most significant sources of nitrate are mobile sources in California, Oregon and Washington. A majority of the nitrate impacting the Kalmiopsis Wilderness Area is from mobile sources in Oregon and from marine shipping in the Pacific Ocean. The visibility on the 20% worst days in the Eastern Oregon Class I areas is significantly impacted by a combination of point, area, and mobile NO X sources in Idaho, Oregon and Washington. See Oregon Regional Haze SIP submittal Figures 9.2.2-1 through Figures 9.2.2-6.

Based on the WEP model results, the organic carbon in the North Cascades area on the 20% worst visibility days comes mostly from area sources and natural fires in Oregon, with a small contribution from areas sources in Washington. For the 20% worst visibility days in the Central Cascades areas, most of the organic carbon comes from a combination of area source emissions and natural and anthropogenic fire in Oregon. For the 20% worst visibility days in the Southern Cascades area, approximately 90% of the organic carbon contribution came from natural fires in 2002. For the 20% worst visibility days in the Kalmiopsis Wilderness area, almost all of the organic carbon for the 2002 base year came from natural fire. For the 20% worst visibility days in the Eastern Oregon Class I areas, most of the organic carbon contribution came from a combination of natural fires and anthropogenic fires in Idaho and Oregon.

In its previous final rulemaking EPA found that Oregon had appropriately identified the primary pollutants impacting its Class I areas, and that the SIP contains an appropriate analysis of the impact these pollutants have on visibility in the Class I areas in Oregon. See 76 FR 38997.

EPA previously reviewed and approved Oregon's BART determinations for all sources subject to BART in Oregon. See 76 FR 38997. As explained in the Federal Register notice approving the State's determinations, BART was determined for one source, the PGE Boardman Electric Generating Unit (EGU), and Federally Enforceable Permit Limits (FEPLs) were established for four BART-eligible sources to reduce visibility impacts at any Class I area below the 0.5 dv subject to BART-subject threshold. These four sources are:

• PGE Beaver EGU

• Georgia Pacific Wauna Mill

• International Paper, Springfield

• Amalgamated Sugar Plant, Nyssa

In summary, the emission limits established through FEPLs for the above four sources were achieved through the following methods.

1. PGE Beaver EGU: To achieve the emission limits established in the Title V permit, the facility is using ultra-low sulfur diesel fuel (with no more than 0.0015% sulfur) in its oil-fired BART eligible units. The source must also use only “pipe line quality” natural gas in the gas-fueled PWEU1 unit.

2. Georgia Pacific Wauna Mill: To achieve the emission limits established in the Title V permit, the mill has reduced its SO 2 emissions by (1) permanently reducing use of fuel oil in the Power Boiler, (2) discontinuing the use of fuel oil in the Lime Kiln until the Non-Condensable Gas Incinerator (NCGI) unit is shut down, and (3) limiting pulp production rate to 1,030 tons per day until the NCGI unit is shut down, at which time production rate will be limited to 1,350 tons per day.

3. International Paper, Springfield: To achieve the emission limits established in its Title V permit, the plant has reduced its emissions of SO 2 , NO X , and PM by accepting limits on fuel usage and operation, and meeting a combined SO 2 and NO X daily emission limit based on a plant fuel use specific formula. The permit requires this facility to include the package boiler (EU-150B) emissions when demonstrating compliance with condition 210 of the permit until the source submits a notice of completion of No. 4 recovery boiler mud and steam drum replacement.

4. Amalgamated Sugar Plant, Nyssa: This plant is currently shutdown and has no identified date to resume operations. In the event this source resumes operation in the future, ODEQ will require that this facility be subject to a FEPL in its Title V permit, or conduct a BART analysis and install BART prior to resuming operation.

The PGE EGU near Boardman, Oregon is a coal-fired power plant capable of producing about 617 MW of electricity constructed between 1962 and 1977, and based on 2005 actual emissions data, emitted about 12,000 tons of SO 2 , 8,300 tons of NO X , and 880 tons of particulate matter (PM) that year. ODEQ determined BART for this source to be 0.23 lbs/mmBtu for NO X based on a new low-NO X burner/modified overfire air system, 0.40 lbs/mmBtu for SO 2 based on initial operational efficiency of a new Direct Sorbent Injection System, and 0.40 lb/mmBtu for PM, based on the current PM emission limit for the existing electrostatic precipitation system. The BART rule for this facility requires that the Foster Wheeler boiler at the facility permanently cease burning coal by no later than December 31, 2020. OAR 340-223-0030(1)(e).

The RHR requires States to show “reasonable progress” toward natural visibility conditions over the time period of the SIP, with 2018 as the first milestone year. The RHR at 40 CFR 51.308(d)(1) also requires that the State establish a goal, expressed in deciviews (dv), for each Class I area within the State that provides for reasonable progress towards achieving natural visibility conditions by 2064. As such the State must establish an RPG for each Class I area that provides for visibility improvement for the most-impaired (20% worst) days and ensures no degradation in visibility for the least-impaired (20% best) days in 2018.

RPGs are estimates of the progress to be achieved by 2018 through implementation of the LTS which includes anticipated emission reductions from all State and Federal regulatory requirements implemented between the baseline and 2018, including, but not limited to, BART and any additional controls for non-BART sources or emission activities including any Federal requirements that reduce visibility impairing pollutants. As explained above, the rate needed to achieve natural conditions by 2064 is referred to as the uniform rate of progress or URP.

If the State establishes a reasonable progress goal that provides for a slower rate of improvement than the rate that would be needed to attain natural conditions by 2064, the State must demonstrate based on the factors in 51.308(d)(1)(i)(A), that the rate of progress for the implementation plan to attain natural conditions by 2064 is not reasonable; and the progress goal adopted by the State is reasonable. The State must provide an assessment of the number of years it would take to attain natural conditions if visibility continues at the rate of progress selected by the State. 40 CFR 51.308(d)(B)(ii).

The primary tool relied upon by Oregon for determining regional haze improvements by 2018 and for establishing the RPGs, was the CMAQ modeling conducted by WRAP. The CMAQ model was used to estimate 2018 visibility conditions in Oregon, based on application of the regional haze strategies included in this plan. WRAP developed CMAQ modeling inputs, including annual meteorology and emissions inventories for: (1) A 2002 actual emissions base case, (2) a planning case to represent the 2000-04 regional haze baseline period using averages for key emissions categories, and (3) a projected 2018 case to determine improvements achievable by 2018. EPA approves the use of the CMAQ model to determine future visibility conditions in Oregon Class I areas. A more detailed description of the CMAQ modeling performed by WRAP can be found in the WRAP TSD for this action.

To determine the 2018 RPGs for its Class I areas, ODEQ followed the eleven steps described below:

1. Compare baseline conditions to natural conditions. For each Class I area, ODEQ identified baseline (2000-2004) visibility and natural conditions in 2064, for the 20% worst and best days.

2. Identify the Uniform Rate of Progress for achieving natural conditions on the 20% worst days. For each Class I area, ODEQ calculated the URP glide path from baseline to 2064, including the 2018 planning milestone, for the 20% worst days.

3. Identify contributing pollutant species. For each Class I area, ODEQ identified the pollutant species that are contributing to visibility impairment on during the 2000-2004 baseline 20% worst and 20% best days.

4. Identify major emission sources within the State. Using the WRAP Emission Inventory for 2002 and 2018, ODEQ identified statewide emissions by source category and pollutant, and identified projected emission trends from current (2002) to the 2018 planning milestone.

5. Identify the larger emission sources contributing to visibility impairment. For each Class I area, ODEQ identified the relative contribution of anthropogenic and non-anthropogenic sources in Oregon and neighboring states to the 20% worst and best days, using monitoring data, and source apportionment and modeling results.

6. Document the emission reductions from BART. ODEQ described the results of the BART process, and identified the emission reductions that will be achieved from BART and from FEPLs taken by sources so that they are no longer subject to BART.

7. Identify projected visibility change in 2018 from “on-the-books” controls and BART. For each Class I area, ODEQ determined the visibility improvement expected in 2018 from on-the-books controls and BART, using the WRAP CMAQ modeling results, for the 20% worst and best days.

8. Identify sources or source categories that are major contributors and apply the four- factor analysis. As a result of the analysis under step 5 above, for each Class I area, ODEQ determined key pollutant species and source categories that could have the greatest impact on visibility in Oregon Class I areas, and analyzed these sources using the four-factor analysis.

9. Describe the results of the four-factor analysis. ODEQ conducted a four-factor analysis on the major Oregon source emission categories using the following factors: Cost of compliance, time necessary for compliance, energy and non-air quality environmental impacts of compliance, and remaining useful life of any potentially affected sources.

10. Set the RPGs based on the above steps. ODEQ set the RPGs for each Class I area in deciviews, based on expected improvements by 2018 for the 20% worst and 20% best days, due to on-the-books controls, BART, and the results of the four-factor analysis on major source categories.

11. Compare RPG to the 2018 URP milestone and provide an affirmative demonstration that reasonable progress is being made. For each Class I area, ODEQ compared the RPG developed in step 10 to the 2018 URP milestone and provided an affirmative demonstration that reasonable progress is being made.

After considering each of the factors described above, Oregon established RPGs for each of its mandatory Class I areas. The visibility projections were based on estimates of emissions reductions from all existing and known controls resulting from Federal and state CAA programs as of December 2010. Oregon's RPGs for its 12 Class I areas are shown in Table 1 below.

Oregon recognized that based on the results of the CMAQ modeling, none of the Class I areas in Oregon are expected to achieve the URP for 2018. Nevertheless, Oregon concludes that the goals it established for each of the Class I areas for the first planning cycle are reasonable, and no additional controls are reasonable at this time. Oregon believes that these RPGs are justified and “reasonable” based on the following considerations: (1) Findings of the four-factor analysis which evaluated controls on major source categories that impact visibility in Class I areas in Oregon, (2) substantial future emission reductions from the PGE Boardman EGU, initially due to BART emission limits in place by 2014, and then further reductions in emissions from this facility when it ceases to burn coal by the end of 2020, (3) evidence that emissions from natural sources (primarily wildfires) significantly impact visibility in the Class I areas and adversely affect Oregon's ability to reach the 2018 URP goal, (4) evidence that offshore marine shipping emissions significantly impact visibility in the Class I areas and adversely affect Oregon's ability to meet the 2018 URP goal in these Class I areas, and (5) ODEQ's demonstration that it will achieve significant reductions of SO 2 and NO X emissions from anthropogenic sources in Oregon, primarily due to major reductions in mobile source emissions of SO 2 and NO X by 2018. See Oregon Regional Haze SIP submission section 11.4.1 for additional detail. These five factors, and how they were considered, are summarized in the following paragraphs.

Findings of the Four-Factor Analysis: ODEQ based its analysis on the WRAP four-factor analysis for Oregon, and focused on the largest anthropogenic point and areas sources that have the greatest projected amounts of SO X and NO X emissions in each source category in 2018. Based on the emissions inventory, ODEQ identified the following source categories as being the largest SO X and NO X emitters: External Combustion Boilers; Stationary Source Fuel Combustion; Industrial Processes; Internal Combustion Engines; Agricultural Orchard Heaters; and Waste Disposal, Treatment, and Recovery. The annual SO 2 and NO X emissions from each of these categories are shown in Table 2.

ODEQ's four-factor analysis for each source category is summarized below:

a. External Boilers: This source category consists of point sources with emissions totaling 858 tons per year (tpy) of SO 2 and 4,995 of NO X . Technically feasible NO X emission control technologies for external boilers included Overfire Air, Selective Non-Catalytic Reduction and Selective Catalytic Reduction. See section 11.3.3.1 of the SIP submittal for additional detail regarding the State's analysis of this source category.

b. Industrial Processes: This source category consists of SO 2 and NO X point sources, with emissions totaling 377 tpy of SO 2 and 3,639 tpy of NO X In this category, ODEQ focused on cement manufacturing, which is the only sizable subcategory in this category, with about 57% of the NO X in the Industrial Processes category. See section 11.3.3.1, Industrial Processes table and section 11.3.3.3 of the SIP submittal for additional detail regarding the State's analysis of this source category.

c. Stationary Source Fuel Combustion: This source category consists of area sources, with emissions totaling 5,699 tpy of SO 2 and 13,354 tpy of NO X The largest subcategory in this category is residential wood and natural gas combustion (6,642 tpy of NO X , combined). These represent the woodstoves and home heating devices found throughout Oregon. ODEQ's residential wood heating rules in OAR 340, Division 262, require that only certified woodstoves can be sold in the state. As a result of these current federally enforceable state requirements and programs for residential wood heating, ODEQ did not conduct a four-factor analysis for this subcategory. ODEQ also found that the low emissions generated by natural gas home heating devices did not warrant further analysis. The remaining sizeable subcategories were industrial and commercial/institutional combustion, involving mostly natural gas and distillate oil. ODEQ believes that emissions from these subcategories come from smaller generators and engines. The control options available for stationary sources burning natural gas are very limited, since this fuel already produces very low emissions, and there are no cost-effective post-combustion controls for this category of sources. As a result of its review of this source category, ODEQ did not believe a detailed four-factor analysis was appropriate, and that such a review would not identify any cost effective controls. See section 11.3.3.2 of the SIP submittal for additional detail regarding the State's analysis of this source category.

d. Waste Disposal, Treatment, and Recovery: This source category consists of NO X area sources with emissions totaling 2,881 tpy. ODEQ found that the largest source within this category is residential open burning, which like agricultural and forestry burning is not suitable for applying the four-factor analysis because there are no feasible emission control technologies for these types of sources. However, as discussed below, ODEQ intends to conduct an evaluation of residential open burning to determine the extent of the contribution to visibility impairment, and the need for emission reductions, as part of the LTS of this plan (See chapter 12, section 12.6.3 of the SIP submittal).

e. Agricultural Orchard Heaters: This source category consists of SO 2 area sources with emissions totaling 2,243 tpy. ODEQ found that a four-factor analysis was not appropriate for this category of sources for the following reasons: (1) ODEQ's confidence in the emissions estimates from orchard heaters is very low, (2) these heaters are used only intermittently, to prevent frost damage for selected crops in diverse regions of the state, and the probability that the intermittent use and spatial distribution of this source is a sizeable contributor to Class I area impairment is extremely low, and (3) few cost effective control options are available for this type of source. See section 11.3.3.5 of the SIP submittal for additional detail regarding the State's analysis of this source category.

f. Internal Combustion Engines: This source category consists of NO X point sources with emissions totaling 3,688 tpy. This source category consists of two types of engines: (1) Natural gas fired reciprocating internal combustion engines, and (2) natural gas fired turbines that are compressors, combustors, or power turbines. Emissions from internal combustion engines vary from engine to engine, model to model, and mode of operation. ODEQ found that there was no currently available information on this source category that would allow a four-factor analysis. Given the relatively low emissions represented by this source category, and the unknown level of contribution to visibility impairment, ODEQ decided not to conduct any further analysis on this source category. See section 11.3.3.6 of the SIP submittal for additional detail regarding the State's analysis of this source category.

As the purpose of the reasonable progress analysis is to evaluate the potential of controlling certain sources or source categories to address visibility from manmade sources, the four-factor analysis conducted by Oregon addressed only anthropogenic sources on the assumption that the focus should be on sources that could be controlled. Thus, in its evaluation of potential sources or source categories for reasonable progress, the state primarily evaluated controls on point sources. Oregon determined that the key pollutants contributing to visibility impairment from sources in Oregon are SO 2 , NO X , and organic carbon. The State determined that the major source of organic carbon was natural fire, and after reviewing the WRAP modeling results, Oregon found that PM emissions from point sources only contribute a minimal amount to the visibility impairment in the Oregon Class I areas. Therefore, for this initial planning period, Oregon focused on SO 2 and NO X controls for point source emissions. Based on its evaluation, Oregon concluded that little gain would be achieved from further reduction in SO 2 and NO X from point sources in Oregon, and therefore concluded it is not reasonable to require controls for these source categories at this time. See Chapter 11.3 of the Oregon SIP submittal.

Substantial emission reductions From the PGE Boardman EGU: ODEQ projects that there will be a total SO 2 and NO X emission reduction of 9,944 tpy from the PGE Boardman facility when BART emission controls are fully implemented by July 2014. These reductions will result in an additional visibility improvement of 2.4 dv in the Mt. Hood Class I area, and an additional cumulative visibility improvement of 16.2 dv in all 14 Class I areas impacted by this source. By 2018, there will be an additional reduction of 2,400 tpy of SO 2 when the reasonable progress controls (Direct Sorbent Injection-phase 2) are implemented, resulting in an additional 2.3 dv of cumulative improvement. By the end of 2020, when Boardman permanently ceases to burn coal, there will be an additional combined SO 2 and NO X reduction of 12,877 tpy, resulting in an additional 13.0 dv cumulative improvement in all 14 Class I areas. See appendix D-7 of the Oregon Regional Haze SIP submittal.

Significant contribution to visibility impairment from natural sources: The emission data in Chapter 8 of the SIP submittal demonstrate that there are major contributions of Organic Carbon (OC), Elemental Carbon (EC), PM 2.5 , and coarse particulate matter (coarse PM) from wildfires and windblown dust to the total state inventory for these species. In 2002, OC from wildfires constituted 69% of the total state's OC emission inventory, and EC from wildfires constituted 61% of the state's EC emission inventory. Also in 2002, windblown dust constituted 26% of the Oregon's total PM 2.5 inventory, and constituted 61% of the coarse PM inventory. Based on CMAQ modeling results shown in Chapter 9 of the SIP submittal, OC and PM 2.5 from wildfires, and PM 2.5 and coarse PM from windblown dust, had significant to substantial impacts on visibility in Oregon Class I areas on the 20% worst days in 2002. The contribution of natural fires to visibility impairment from OC in Oregon Class I areas ranges from about 15% at the Mt. Hood Class I area to about 95% at the Kalmiopsis Class I area. Windblown dust and wildfires combined contribute from about 10% to 90% of the PM 2.5 measured ambient air concentrations in the Oregon Class I areas, and windblown dust and wildfires combined contribute from about 30% to 95% of the coarse PM measured in Oregon Class I areas. Since the emissions from these natural sources are uncontrollable, and are projected to remain at 2002 baseline levels through 2018, emissions from these sources will continue to have major visibility impacts on Oregon Class I areas, prevent visibility improvement from achieving the URP, and increase the percent contribution to visibility impairment from uncontrolled sources as concentrations of pollutants from controlled sources decrease.

Evidence that offshore marine shipping emissions affect ability to meet the 2018 URP goal: ODEQ found that marine vessel emissions (primarily SO 2 and NO X ) are a significant contributor to haze in Oregon Class I areas, and significantly affect Oregon's ability to meet its 2018 URP milestones. The PSAT and WEP results in the Oregon SIP submittal Chapter 9 show that offshore marine emissions are a significant contributor to visibility impairment in the Kalmiopsis Class I area and the seven Oregon Class I areas in the Cascade Mountains. Marine vessel emissions are included in the “Pacific offshore” portion of the pie charts shown in Figures 9.2.1-1 through 9.2.1-5 of the SIP submittal. According to the emission inventory in Chapter 8 of the Oregon SIP submittal, marine vessel emissions constitute 56% of the total SO 2 and 31% of the total NO X inventory for the State of Oregon for 2002. As discussed further in the long term strategy portion of the submittal, Oregon has only limited ability to regulate offshore marine emissions and the Pacific offshore marine vessel emissions are currently beyond Oregon's regulatory authority.

ODEQ's determination that it will achieve significant reductions of SO 2 and NO X emissions by 2018: Oregon explained that it will achieve significant reduction of SO 2 and NO X emissions from anthropogenic sources in Oregon by 2018, primarily due to existing Federal rules that control SO 2 and NO X emissions from mobile sources. See section 11.4.3 of the SIP submittal. Based on the WEP analyses of SO 2 and NO X emissions in 2018, SO 2 emissions from sources upwind of the Class I areas in Oregon are projected to decrease by 33% to 46%, and upwind emissions of NO X are projected to decrease by 28% to 48% on the 20% worst days compared to the 2002 baseline. These results are shown in Tables 11.4.2-2 and 11.4.2-3 of the SIP submittal. As a result of this reduction in SO 2 and NO X emissions, the CMAQ regional visibility modeling results project a 4% to 18% improvement in visibility in Oregon Class I areas due to reductions in SO 2 emissions, and projects a 27% to 58% improvement in visibility in the Oregon Class I areas from reductions in NO 2 emissions. See section 11.4.2 of the SIP submittal.

In a previous action, EPA approved Oregon's determination of baseline and natural visibility conditions in each Class I area in Oregon. See 76 FR 38997. The linear progress from baseline visibility to natural visibility in 2064 defines the URP. The `2018 URP' is the rate of progress to be achieved by 2018 in order to stay on track to achieve natural conditions by 2064. In reviewing the Oregon SIP submittal, EPA independently evaluated whether there are reasonable control measures available for sources located within Oregon's regulatory jurisdiction that would achieve further progress toward achieving the 2018 URP.

We began this evaluation using a screening methodology called “Q/d” to determine which stationary (point) sources would be candidates for controls under reasonable progress. The value Q/d is the ratio of the mathematical sum of actual SO 2 , NO X and PM emissions in tpy, denoted as “Q”, divided by the distance (in kilometers, denoted as “d”) of the point source to the nearest Class I area. A high Q/d would indicate the likelihood of the source causing or contributing to impairment in that Class I area.

To determine the Q/d value that would provide assurance that a source would, or would not, cause or contribute to impairment in any Class I area, we considered the modeled visibility impacts from the CALPUFF modeling used to determine the BART-eligible sources subject to BART in EPA Region 10 and the distance of the source to the nearest Class I area. There were 19 BART-eligible sources used in this analysis. See memorandum to the files from Keith Rose, EPA Region 10, dated March 21, 2012, for this analysis. All sources with a Q/d ratio of less than 26.1 had visibility impacts of less than 0.5 dv. The resultant average of the range is about 0.3 dv, which is more conservative than the 0.5 dv that was used in determining which sources would be subject-to-BART under the federal BART regulations. Since the threshold is more conservative than the subject-to-BART threshold, we believe that a Q/d value of 20 is reasonable for determining which point sources the State should consider for the reasonable progress analysis.

Next, EPA determined the Q/d ratio at all non-BART point sources in Oregon based on information in the EPA National Emission Inventory database for emissions for point sources in 2005. Based on the 2005 EPA National Emission Inventory Database, six of the largest non-BART point sources and their Q/d values are: Roseburg Forest Products (16.9 Q/d), Co-Gen Co. LLC (15.5 Q/d), Gas Transmission Northwest Corporation (14.0 Q/d), Weyerhaeuser Company, Albany (13.1 Q/d), Boise Cascade Corporation, La Grande (12.7 Q/d), and Boise Cascade Corporation, Elgin (11.5 Q/d). Since all of these sources have Q/d values below 20, EPA believes that their impacts on nearby Class I areas are expected to be less than 0.5 dv. Thus, EPA agrees with Oregon's conclusion that additional controls of non-BART point sources for reasonable progress purposes are not reasonable in the first planning period, because even though there are cost effective controls identified, visibility improvement is anticipated to be relatively small.

EPA also considered control measures for anthropogenic fire (prescribed forest fire and agricultural fire). Oregon already operates a robust enhanced smoke management program for prescribed forest fire and agricultural burning (see description of Oregon's smoke management and agricultural burning programs in section G.5 below). There are no other source categories of smoke that appear to emit visibility impairing pollutants sufficient to warrant consideration for additional control at this time.

In regard to the impact of offshore marine shipping emissions, ODEQ did not consider potential improvements in visibility its Class I areas due to amendments adopted by the International Maritime Organization (IMO) in October 2008. See http://www.imo.org/blast/mainframe.asp?topic_id=233. These amendments, known as the Annex VI amendments specify: (1) New fuel quality requirements for commercial marine vessels beginning from July 2010, (2) Tier II and III NO X emission standards for new commercial marine engines, and (3) Tier I NO X requirements for existing pre-2000 commercial marine engines. The Annex VI amendments designate waters within 200 miles of the North American coast as an emission control area, including waters offshore of Oregon. Even though the effects of IMO Annex VI amendments were not evaluated in the Oregon SIP submittal, EPA believes that visibility impacts from marine vessel emissions will decrease by 2018 when the requirements of the Annex VI amendments are fully implemented. Because these reductions were not included in the CMAQ or WEP analyses conducted by WRAP for Oregon, the specific visibility improvements cannot be quantified at this time, but they will likely result in further visibility improvements in the Oregon Class I areas located near the coast and in the Cascade Mountains.

As explained in the EPA's RGP Guidance, the 2018 URP estimate is not a presumptive target and the State's RPGs may be lesser, greater or equivalent to the glide path. The glide path to 2064 represents a rate of progress which states must use for analytical comparison to the amount of progress they expect to achieve. EPA believes the RPGs established by Oregon for the Class I areas in Oregon, although not achieving the URP, are reasonable when considering that significant visibility improvement is expected from BART controls for Boardman and other point sources, additional controls on other point sources and other source categories would not result in significant visibility improvement, and the significant visibility impacts due to uncontrollable natural fire and significant impacts from off shore marine emissions. Consequently, we propose to find that the State has demonstrated that its 2018 RPGs are reasonable and consistent with 40 CFR 51.308(d)(1) and 51.308(d)(1)(ii).

The Long Term Strategy (LTS) required by 40 CFR 51.308(d)(3) is a compilation of all existing and anticipated new air pollution control measures. The LTS must include “enforceable emission limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within or affected by emissions from the State. 40 CFR 51.308(d)(3). In developing its LTS, Oregon considered all the factors required for developing a LTS identified in the RHR. These factors included: (1) Ongoing Air Pollution Control Programs, (2) Measures to Mitigate Impacts of Construction Activities, (3) Emission Limitations and Schedules for Compliance, (4) Source Retirement and Replacement Schedules, (5) Smoke Management Techniques for Agricultural and Forestry Burning, and (6) Enforceability of Emission Limitations and Control Measures. A summary of how Oregon is addressing each of these factors in its LTS is provided below.

In Oregon, a primary regulatory tool for addressing visibility impairment from industrial sources is the Prevention of Significant Deterioration (PSD) New Source Review rules. The SIP approved Oregon PSD rules protect visibility in Class I areas from new industrial sources, and major changes to existing sources, by requiring a visibility impact assessment (OAR 340, Division 225). Specifically, OAR 340-225-0070 describes the process for conducting a visibility impact assessment and review by ODEQ, as well as the process for conducting modeling to determine visibility impacts, which is used to determine if a source causes a significant impairment in any Class I area. Any new major source or major modifications within a distance of 300 km of a Class I area that are found through modeling to cause significant visibility impairment will not be issued an air quality permit by Oregon unless the impact is mitigated. The level of significance is defined as an increase in visibility impairment above natural background of 5%.

Oregon has adopted the RAVI BART requirements as part of the Oregon Visibility Protection Plan. RAVI specifies that if the Federal Land Manager certifies that visibility impairment exists in a federal Class I area, Oregon would be required to analyze BART controls and identify BART for any contributing source.

In 1986, Oregon adopted EPA's Phase I Visibility rule into Oregon Visibility Protection Plan (OAR 340-200-0040). This rule addresses visibility impairment that is “reasonably attributable” to one or small group of sources, in relatively close proximity to a Class I area. The Oregon Visibility Protection Plan contains short and long-term strategies to address reasonably attributable impairment, including PSD new source review rules along with seasonal protection of visibility during the summer months from prescribed forestry burning and agricultural field burning. Air quality monitoring showed that during the summer months in the northern and central Cascades, visibility was frequently impaired by smoke or “plume blight” from Willamette Valley agricultural open field burning and forest prescribed burning. Monitoring also demonstrated that there was summer visibility impairment in the Eagle Cap Wilderness area caused by Union County agricultural open field burning, and that field burning in Jefferson County was contributing to summer visibility impairment in the central Oregon Cascade Class I areas. As a result, ODEQ adopted specific visibility control strategies for these areas into the original plan. These included smoke management requirements to avoid Class I visibility impacts from Willamette Valley, Jefferson County and Union County open field burning, and from forest prescribed burning in parts of Western Oregon. The Jefferson and Union County smoke management programs adopted provisions to avoid any burning upwind of nearby Class I areas. The Oregon Department of Forestry Smoke Management Program was revised to shift prescribed burning in Western Oregon from the summer to the spring and fall, as part of an effort to eliminate burning during the summer. Oregon also explained that it made additional revisions and improvements to the Visibility Protection Plan in 2002 as part of the Oregon Visibility Protection Plan Reasonable Progress Report, March 5, 2002. See SIP Submittal section 12.5.5.1 for additional discussion of the Oregon Phase I Visibility Protection Program.

Mobile source annual emissions show a major decrease in NO X and SO 2 in Oregon from 2002 to 2018, due to numerous “on the books” federal mobile source regulations for on-road mobile sources as well as non-road mobile sources and equipment. These rules are expected to reduce SO 2 emissions as well as NO X and PM emissions. In 2005, Oregon adopted California's emissions standards for light and medium duty vehicles as the Oregon Low Emission Vehicle Program. This program took effect beginning with 2009 model year vehicles. Although the primary purpose was to reduce greenhouse gas emissions, these rules will also decrease NO X and PM emissions from light and medium duty vehicles. In 2007, the Oregon Legislature authorized a clean diesel program that included funding for a grant/loan program to retrofit existing diesel engines with exhaust controls, repowering non-road diesel engines with biodiesel, and scrapping older engines. ODEQ projects that with normal turnover bringing new, cleaner engines into the fleet, there will be a 60% reduction in diesel PM 2.5 emissions by 2018.

In Oregon there are six communities that are PM 10 maintenance areas and two communities that are nonattainment areas under the PM 10 NAAQS. All of these communities are located within 20 to 50 miles of one or more Class I area, and have the potential to impact visibility in these Class I areas. As a result of being designated as PM 10 nonattainment areas, these communities have made significant reductions in PM 10 emissions in the last 10 years by adopting control strategies to reduce PM 10 emissions from sources such as residential woodstoves and outdoor burning. For example, ODEQ's federally enforceable wood-heating rules (OAR 340, Division 262) require woodstove curtailment programs in each of these communities, and specify that only certified woodstoves be sold in the state. Oregon's wood-heating rules have been very effective in reducing PM 10 levels during the heating months in these communities.

Oregon's rules addressing impacts from construction activities are primarily found in the OAR 340, Division 208. OAR 340-208-0210 addresses “fugitive emissions” from a variety of sources, and would be the most applicable regulation to construction activities. This regulation requires “reasonable precautions” be taken to prevent particulate matter from becoming airborne from activities such as construction projects. Actions that can be taken to control particulate emissions include the use of water or chemicals to control dust from demolition, construction operations, unpaved roads at construction sites, and material stockpiles, and containment of sandblasting operations.

Emission limits and compliance schedules for stationary sources are specified under Oregon and federal regulations in accordance with the CAA. Additionally as discussed above, the emission limits and schedules of compliance for those sources with BART limits, and sources taking FEPLs, are described in Chapter 10 of the SIP submittal and in our previous action approving these limits and schedules.

Oregon's LTS contains an evaluation of non-BART sources, as described below. This evaluation will include a review of all existing industrial sources to identify scheduled shutdowns, retirements in upcoming years, or replacement schedules, such as planned installation of new control equipment to meet other regulations or routine equipment replacement or modernization.

Smoke from agricultural and forestry burning are major contributors to visibility impairment in Oregon Class I areas. Organic and elemental carbon particulates are the dominant pollutant species contributing to haze in Oregon Class I areas on the 20% worst days. Much of these particulates are from wildfires, which fluctuates significantly from year to year, but there is also a significant contribution from controlled agricultural and forestry burning. Of the controlled burning, prescribed forestry burning represents the largest source, at approximately 58% of the total burning in the state, and agricultural burning (including open field burning) is approximately 11%.

In Oregon, prescribed forest burning and agricultural burning is regulated under the Oregon Smoke Management Plan. On November 2, 2007, the Oregon Department of Forestry (ODF) adopted revisions to this plan which included new visibility protection provisions that incorporated references to the Oregon Regional Haze Plan and the Enhanced Smoke Management Program (ESMP) criteria in the RHR section 309. Oregon's current smoke management programs, operated by Oregon Department of Agriculture (ODA) and ODF, includes the following ESMP elements: (1) Taking actions to minimize smoke emissions, (2) burning only during appropriate weather conditions in order to avoid smoke impacts in urban areas, (3) encourages using alternatives to fire, and includes a comprehensive reference manual of alternatives to prescribed fire, (4) a requirement that burning permits must be obtained prior to burning, and (5) a burn authorization process that involves the issuance of smoke management forecasts and burning instructions. Agricultural burning in the Willamette Valley is further controlled under a smoke management program operated by ODA. Field burning in Jefferson and Union counties is controlled through smoke management programs established by county ordinance and operated at that level. These county programs have requirements to avoid burning upwind of nearby Class I areas when smoke would impair visibility.

Oregon has ensured that all emission limitations and control measures used to meet reasonable progress goals are enforceable, and pursuant to OAR 340-200-0040, are included in the State of Oregon Clean Air Act Implementation Plan. ODEQ has adopted the Oregon Regional Haze Plan, including the Oregon BART rules, into the SIP submittal, which ensures that all elements in the plan are enforceable.

In addition to six factors discussed above, Oregon indicated a number of additional measures it intends to take in the future as part of its long term strategy. As described in additional detail in the SIP submittal section 12.6, the State intends to: (1) Further evaluate controls for Non-BART Sources, (2) evaluate prescribed burning contribution to haze and possible controls, (3) evaluate the contribution from general outdoor open burning, and (4) evaluate the contribution from rangeland burning. EPA acknowledges these additional measures and analysis that Oregon is planning to conduct, but is not necessary to take these specific activities into account at this time in evaluating whether the enforceable measures contained in the State's LTS satisfy the RHR requirement.

EPA is proposing to find that Oregon adequately addressed the RHR requirements in developing its LTS. The LTS provides sufficient documentation to ensure that Oregon will meet its emission reduction obligations for all Class I areas it affects in the first planning period. Oregon relied on monitoring, emission inventories and modeling information from the WRAP as the technical basis for its LTS. Coordination and consultation occurred with other states through the WRAP, in which all western states participated in developing the technical analysis upon which their SIPs are based. Oregon's analysis included all anthropogenic sources of visibility impairment including major and minor stationary sources, mobile sources, and area sources. The anticipated net effect on visibility over the first planning period due to changes in point, area, and mobile source emissions is an improvement in visibility in all Class I areas in Oregon on the worst 20% days, and no degradation of visibility on the 20% best days.

The primary monitoring network for regional haze in Oregon is the IMPROVE network. There are currently IMPROVE sites in the Mt. Hood Wilderness area, Three Sister Wilderness area, Crater Lake National Park, Kalmiopsis Wilderness area, Strawberry Mountain Wilderness area, and Hells Canyon Wilderness area. IMPROVE monitoring data from 2000-2004 serves as the baseline for the regional haze program, and is relied upon in the Oregon Regional Haze submittal. Oregon commits to rely on the IMPROVE network for complying with the regional haze monitoring requirement in EPA's RHR for the current and future regional haze implementation periods. See section 4.4 of the SIP submittal. Data produced by the IMPROVE monitoring network will be used for preparing the five-year progress reports and the 10-year SIP revisions, each of which relies on analysis of the preceding five years of data.

Through the WRAP, member states and Tribes worked extensively with the FLMs from the U.S. Departments of the Interior and Agriculture to develop technical analyses that support the regional haze SIPs for the WRAP states. The proposed Regional Haze plan for Oregon was provided to the FLM for comment on November 11, 2008, the start of a 60-day comment period. See section 13.1 of the SIP submittal. Oregon also consulted with the States of Washington, Idaho, Nevada, and California.

Oregon commits to continued consultation with the FLMs and the other states as part of the continued implementation of the plan and for future progress reports and revisions. This continuing consultation process will provide the opportunity for on-going opportunities to address a host of items including, for example, the implementation of emission control programs, changes to the monitoring strategy or monitoring locations, status of state actions to meet commitments for future assessments or rulemaking, and work on the five-year reviews and ten-year revisions. Additionally, Oregon consulted with the tribes during development of their plan through the WRAP activities and direct outreach to the tribes.

Section 51.308(f) of the RHR requires that the regional haze plans be revised and submitted to EPA by July 31, 2018 and every 10 years thereafter. 40 CFR 51.308(g) requires the state to submit a progress report to EPA every five years evaluating progress towards the reasonable progress goals for each Class I area in the State and each Class I area located outside the State which may be affected by emissions from within the State. Oregon has committed to evaluate and reassess its Regional Haze plan and to provide a Regional Haze SIP revision by July 31, 2018 for the next 10 year planning cycle. See section 13.5 of the SIP submittal. Oregon has also committed to submitting the five-year review and report on the Regional Haze plan. See section 13.1 of the SIP submittal.

On June 21, 2011, EPA approved portions of the Oregon Regional Haze Plan submitted December 10, 2010, as supplemented on February 1, 2011, including the Oregon's emission inventory, determination of baseline and natural conditions and the BART controls and emission limits. Today, for the reasons explained above, EPA is proposing to approve the remaining parts of the Oregon Regional Haze submittal as meeting the requirements set forth in section 169A and 169B of the Act and in 40 CFR 51.300-308 regarding regional haze.

Oregon Revised Statute 468.126, prohibits ODEQ from imposing a penalty for violation of an air, water, or solid waste permit unless the source has been provided five days' advanced written notice of the violation and has not come into compliance or submitted a compliance schedule within that five-day period. By its terms, the statute does not apply to Oregon's Title V program or to any program if application of the notice provision would disqualify the program from Federal delegation. Oregon has previously confirmed that, because application of the notice provision would preclude EPA approval of the Oregon SIP, no advance notice is required for violation of SIP requirements.

Oregon has not demonstrated authority to implement and enforce the Oregon Administrative rules within “Indian Country” as defined in 18 U.S.C. 1151. “Indian country” is defined under 18 U.S.C. 1151 as: (1) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (2) all dependent Indian communities within the borders of the United States, whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (3) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Under this definition, EPA treats as reservations trust lands validly set aside for the use of a Tribe even if the trust lands have not been formally designated as a reservation. Therefore, this SIP approval does not extend to “Indian Country” in Oregon. See CAA sections 110(a)(2)(A) (SIP shall include enforceable emission limits), 110(a)(2)(E)(i) (State must have adequate authority under State law to carry out SIP), and 172(c)(6) (nonattainment SIPs shall include enforceable emission limits).

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

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

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

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

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

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

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

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

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994). In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the rule neither imposes substantial direct compliance costs on tribal governments, nor preempts tribal law. Therefore, the requirements of sections 5(b) and 5(c) of the Executive Order do not apply to this rule. Consistent with EPA policy, EPA nonetheless provided a consultation opportunity to Tribes in Idaho, Oregon and Washington in letters dated January 14, 2011. EPA received one request for consultation, and we have followed-up with that Tribe.

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

In the Clean Air Act (CAA) Amendments of 1977, Congress established a program to protect and improve visibility in the national parks and wilderness areas. See CAA section 169A. Congress amended the visibility provisions in the CAA in 1990 to focus attention on the problem of regional haze. See CAA section 169B. EPA promulgated regulations in 1999 to implement sections 169A and 169B of the Act. These regulations require states to develop and implement plans to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas  1 (Class I areas). 64 FR 35714 (July 1, 1999); see also 70 FR 39104 (July 6, 2005) and 71 FR 60612 (October 13, 2006).

Today EPA is proposing action on the portion of the Regional Haze SIP submission relating to the TransAlta facility by proposing to approve the BART determination for oxides of nitrogen (NO X ) emissions from TransAlta. Ecology submitted its Regional Haze SIP on December 22, 2010, to meet the requirements of 40 CFR 50.308. (Regional Haze SIP Submittal) On December 29, 2011, Ecology submitted an update to the SIP submittal containing a revised BART determination for TransAlta. (SIP Supplement) Because the BART determination includes a requirement to begin injection of ammonia or urea by January 1, 2013 and a date of January 31, 2013 for TransAlta to comply with emission limits based on installation and operation of selective non-catalytic reduction (SNCR), EPA has determined that early action on this separate portion of the SIP submittal is appropriate at this time. EPA is still reviewing the remaining portions of the SIP submittal and will take action on the remaining elements in the near future.

Regional haze is impairment of visual range or colorization caused by emission of air pollution produced by numerous sources and activities, located across a broad regional area. The sources include, but are not limited to, major and minor stationary sources, mobile sources, and area sources including non-anthropogenic sources. Visibility impairment is primarily caused by fine particulate matter (PM 2.5 ) or secondary aerosol formed in the atmosphere from precursor gasses (e.g., sulfur dioxide (SO 2 ), nitrogen oxides (NO X ), and in some cases, ammonia and volatile organic compounds). Atmospheric fine particulate reduces clarity, color, and visual range of visual scenes. Visibility reducing fine particulate is primarily composed of sulfate, nitrate, organic carbon compounds, elemental carbon, and soil dust, and impairs visibility by scattering and absorbing light. Fine particulate can also cause serious health effects and mortality in humans, and contributes to environmental effects such as acid deposition and eutrophication. 2

Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national parks and wilderness areas. Average visual range in many Class I areas in the Western United States is 100-150 kilometers, or about one-half to two-thirds the visual range that would exist without manmade air pollution. 3 Visibility impairment also varies day-to-day and season-to-season depending on variation in meteorology and emission rates.

In section 169A of the 1977 CAA Amendments, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in Class I areas which impairment results from manmade air pollution.” CAA section 169A(a)(1). On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources, i.e., “reasonably attributable visibility impairment”. 45 FR 80084. These regulations represented the first phase in addressing visibility impairment. EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling and scientific knowledge about the relationships between pollutants and visibility impairment were improved.

Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35713) (the Regional Haze Rule or RHR). The RHR revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and to establish a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in section III of this rulemaking. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands. 4 40 CFR 51.308(b) requires states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.

Regional haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install BART controls for the purpose of eliminating or reducing visibility impairment.

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires States to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources  5 built between 1962 and 1977 procure, install, and operate the “Best Available Retrofit Technology” as determined by the state. States are directed to conduct BART determinations for such sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART.

On July 6, 2005, EPA published the Guidelines for BART Determinations Under the Regional Haze Rule at appendix Y to 40 CFR Part 51 (hereinafter referred to as the “BART Guidelines”) to assist states in determining which of their sources should be subject to the BART requirements and in determining appropriate emission limits for each applicable source. 70 FR 39104. In making a BART applicability determination for a fossil fuel-fired electric generating plant with a total generating capacity in excess of 750 megawatts, a state must use the approach set forth in the BART Guidelines. A State is encouraged, but not required, to follow the BART Guidelines in making BART determinations for other types of sources. Regardless of source size or type however, a state must meet the CAA and regulatory requirements for selection of BART, and the state's BART and analysis and determination must be reasonable in light of the overarching purpose of the regional haze program.

States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility-impairing pollutants are sulfur dioxide, nitrogen oxides, and fine particulate matter. EPA has indicated that states should use their best judgment in determining whether volatile organic compounds or ammonia compounds impair visibility in Class I areas.

Under the BART Guidelines, States may select and document an exemption threshold value to determine those BART-eligible sources not subject to BART. A BART-eligible source with an impact below the threshold would not be expected to cause or contribute to visibility impairment in any Class I area. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Generally, an exemption threshold set by the State should not be higher than 0.5 deciview (dv).

In their SIPs, States must identify BART-eligible sources that have a visibility impact in any Class I area above the `BART subject' exemption threshold established by the State and thus, subject to BART. States must document their BART control analysis and determination for all sources subject to BART.

The term “BART-eligible source” used in the BART Guidelines means the collection of individual emission units at a facility that together comprises the BART-eligible source. In making a BART determination, section 169A(g)(2) of the CAA requires that States consider the following factors: (1) The costs of compliance, (2) the energy and non-air quality environmental impacts of compliance, (3) any existing pollution control technology in use at the source, (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. See also 40 CFR 51.308(e)(1)(ii)(A).

The regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a State has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date EPA approves the regional haze SIP. CAA section 169(g)(4) and 40 CFR 51.308(e)(1)(iv). In addition to what is required by the RHR, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source. States have the flexibility to choose the type of control measures they will use to meet the requirements of BART.

The TransAlta Centralia Generation LLC power plant, located in Centralia, Washington, is a two unit coal-fired power plant rated at 702.5 MW each, when burning coal from the Centralia coalfield as originally designed. The units now burn coal from the Wyoming Powder River Basin and are rated at 670 MW each. The units were commissioned in 1971 and 1972, are one of the 26 BART source categories specified in 40 CFR 51.301 and emit over 250 tons per year (t/y) of an air pollutant. Modeling to determine whether TransAlta would be subject to BART under the RHR demonstrated TransAlta had a maximum impact of 5.5 dv at Mt. Rainier National Park from both SO 2 and NO X emissions. This impact is above the threshold used by Washington for determining those BART eligible sources subject to BART. These units are BART-eligible and subject to BART as described in the SIP submittal, Supplement Appendix L.

On June 11, 2003, EPA approved a revision to the Washington SIP for visibility (Visibility SIP) which included controls for NO X , SO 2 , and particulate matter for TransAlta. 68 FR 34821. In the action approving these provisions, EPA determined the required controls to be BART for SO 2 and PM. Alstrom concentric low NO X burners with overfire air was required to control NO X emissions with emission limits of 0.302 lb/mmBtu for Unit #1 and 0.306 lb/mmBtu for Unit #2. EPA found these controls did not represent BART for NO X in 2003 and the Federal Register notice accompanying that action stated that a BART determination for NO X was not being made at that time. Specifically we explained “* * * while the NO X emission limitation may have represented BART when the emission limits in the [reasonably available control technology] RACT Order were negotiated, recent technology advancements have been made. EPA cannot now say that the emission limitations in the SWAPCA RACT Order for NO X represent BART. However EPA is approving the emission limits for NO X as a strengthening of the SIP for visibility purposes.” Thus, to date there is not a SIP approved BART determination for NO X emissions at TransAlta. 68 FR 34824.

The TransAlta NO X BART determination to comply with 40 CFR 51.308(e) was submitted to EPA in two separate submittals. The first submittal was included in the December 22, 2010 Regional Haze SIP submittal. Washington subsequently reevaluated its determination for TransAlta and on December 29, 2011, submitted an update to the Regional Haze SIP (referred to in this notice as the SIP Supplement). This update included a revised NO X BART determination, the First Revision Order No. 6426 (hereafter referred to as the Revised BART Compliance Order) and technical analysis document for the TransAlta power plant and the related parts of the Regional Haze SIP. The revised BART determination and Revised BART Compliance Order establish a NO X emission limit of 0.21 lb/mmbtu, and among other things, requires selective noncatalytic reduction (SNCR) to be installed by January 1, 2013. The Revised BART compliance order also provides that one coal unit must cease burning coal by December 31, 2020, and the other coal unit cease burning coal by December 31, 2025, unless Ecology determines that State or Federal law requires SCR to be installed on either unit.

Additionally, by way of background, on May 21, 2009, the Governor issued Executive Order 09-05 which contained provisions for TransAlta regarding compliance with Washington State's greenhouse gas (GHG) emission performance standards. Subsequently, the Executive Order was superseded by Washington State Senate Bill 5769 (also known as E2SSB 5769), which was signed by the Governor on April 29, 2011 and became effective August 22, 2011, and provided that the plant owners must bring the two coal-fired units into compliance with the GHG performance standards by specified dates. See SIP Supplement L-45-46 and Revised Code of Washington (RCW) Chapter 80-80. The law requires that one of the TransAlta units comply with the GHG performance standards by December 31, 2020 and the other by December 31, 2025. See RCW 80.80.040. As documented in public testimony by the plant owners, State Legislature, environmental organizations and the Governor's Office, the coal-fired units at the TransAlta plant must be decommissioned in order to comply with these new GHG standards. Accordingly, one unit will be decommissioned no later than December 31, 2020 and the second unit will be decommissioned by December 31, 2025. TransAlta is also required to install SNCR by January 1, 2013, to control NO X emissions. RCW 80.80.100. Additionally, the law states that the requirement to meet the GHG performance standard does not apply if Ecology determines that State or Federal law requires selective catalytic reduction (SCR) to be installed on either coal-fired unit. See Section 106 of Chapter 180, Laws of 2011 and SIP Supplement L-46, see also RCW 80.80.040.

In conducting its BART evaluation for TransAlta, Ecology followed the steps outlined in EPA BART Guidelines at 40 CFR 51, Appendix Y. Briefly this evaluation included the: (1) Identification of all available retrofit technology, (2) elimination of technically infeasible technology, (3) identification of control efficiencies of feasible technology, (4) evaluation of impacts and document results, and (5) evaluation of visibility impacts.

The Visibility SIP submittal for our June 11, 2003 approval identified a long list of available NO X control technologies which were evaluated for technical feasibility at the TransAlta plant. That list was narrowed to the technically feasible controls which Ecology used as a starting point for the current BART determination. See SIP Supplement L-79 (Table B-1 Nitrogen Oxide Controls evaluated in the 1997 Reasonable Achievable Control Technology Process). Ecology evaluated, or reevaluated, a number of the NO X control technologies for TransAlta including: low NO X burners with close coupled and over-fired air (LNC3); Flex Fuel  6 ; SCR; SNCR; Rotating over-fire air (ROFA)/Rota mix; neutral net technology; and natural gas re-burning. The State found ROFA is infeasible because it has never been tested nor demonstrated in a large tangentially fired boiler of this size. The State also determined that “Neutral Net” technology likewise has not been guaranteed to perform and reduce emissions and there are other comparable proven technologies available. The State also found that natural gas re-burning is not listed in the EPA RBLC for use in any coal fired boilers and that it would be less efficient at controlling NO X emissions than the Flex-Fuel plus SNCR as required by Washington's Legislature.

Washington evaluated the cost effectiveness of the technically feasible control options for TransAlta. It found that Flex Fuel alone will reduce NO X emissions by 3,139 t/y and will also reduce SO 2 emissions by 1,287 t/y. See SIP Supplement L-67. Based on evaluation of installations at other large tangentially fired power plants, the State determined that SNCR plus Flex Fuel is expected to achieve a 20 to 25% reduction in NO X emissions. The State estimated capital costs for SNCR plus Flex Fuel at TransAlta to be $135 million and annual operating costs of $17.3 million based on an emission limit of 0.21 lb/mmbtu. The retrofit costs for TransAlta will be higher than other similarly sized power plants due to boiler design. The State also calculated the SNCR plus Flex Fuel cost effectiveness to be $2,162/t based on a 25% control efficiency and a 8,022 t/y reduction in NO X emissions. See SIP Supplement L-71.

Among the other technologies considered, Washington also evaluated SCR which would provide a 95% NO X control efficiency. The State considered two scenarios; one including SCR on only one unit and another scenario with SCR on both units. Using a presumptive BART emission limit of 0.15 lb NO X /mmbtu, they estimated the emission reductions for SCR on one unit to be 4,364 t/y and 7,855 t/y for SCR on both units. The capital cost for one unit was estimated at $290.12 million and about double that for SCR on both units. Washington estimated it would take 4 years to design and install SCR with a compliance date of late 2016. The cost effectiveness for SCR on only one unit was calculated at $ 8,205/t. See SIP Supplement L-58. If SCR was to be installed on both units, the State calculated cost effectiveness for SCR on Unit #1 to be $14,800/t and Unit #2 to be $8,400/t. See SIP Supplement L-69. Washington determined SCR is not cost effective under either scenario and that it is not reasonable to require SCR for this facility.

Washington considered the modeled visibility impairment in the baseline years and the visibility improvement potentially achievable from the various control technologies and control scenarios. The modeling indicated that TransAlta has the greatest impact at Mt. Rainier National Park with a current 5.5 dv impact (3 year 98th percentile value). See Table below and SIP Supplement Appendix L Table 3-1. This impact is reduced to 3.5 dv with emission limits based on Flex Fuel plus SNCR, for a 2.0 dv improvement. Significant improvement in visibility is also expected in 11 other Class I areas. With the expected decommissioning of both emission units by December 31, 2025, there will be a 5.5 dv improvement in visibility at Mt. Rainier National Park and significant improvement in the 11 other Class I areas. The estimated visibility impact from baseline emissions and the improvement associated with each control technology is shown below. See SIP Supplement Table 3-1.

Ecology also evaluated the energy and non-air environmental impacts associated with the technically feasible control options. Upon review, Ecology found there would be insignificant energy and non-air environmental impacts from installation of the technically feasible control options. The State did recognize that ammonia slip from SNCR could cause an increase in secondary aerosol due to the increase in ammonia in the atmosphere, but found that this will be limited by an optimization study during the first year of operation of SNCR.

Based on its full consideration of the BART factors as described above, Washington determined BART for NO X for the TransAlta plant is 0.21 lb/mmbtu based on installation and operation of SNCR plus Flex Fuel. The State's BART determination also requires the use of sub-bituminous coal from the Powder River Basin, or other coal that will achieve similar emission rates, and a requirement to optimize SNCR for the lowest NO X emissions while minimizing ammonia slip. The BART determination allows for the NO X limit to be revised reflecting the optimization to a level no higher than 0.21 lb/mmbtu. See SIP Supplement, Table 4-1 at L-75 and Revised BART Compliance Order Section 5.5.3. The Revised BART Compliance Order also requires one coal fired unit to permanently cease burning coal no later than December 31, 2020 and the second coal fired unit to permanently cease burning coal no later than December 31, 2025 unless Ecology determines that state or federal law requires that SCR must be installed on either unit. Revised BART Compliance Order Section 4. The BART determination results in approximately a 30% NO X reduction from the existing NO X emission limit of 0.302 and 0.306 lb/mmBtu.

EPA reviewed Washington's SIP submittal, including the December 22, 2010 Regional Haze Submittal and the December 29, 2011 SIP Supplement. Washington followed 40 CFR 308(e) and EPA BART Guidelines of Appendix Y in determining BART for TransAlta. Washington evaluated NO X controls taking into consideration the 5 factors for making a BART determination.

Ecology evaluated 37 different NO X control technologies during its RACT review process for TransAlta in 1997. That analysis was supplemented and updated as part of their 2011 BART determination for the facility. EPA believes that Washington appropriately determined the costs of compliance, including the cost effectiveness of alternative controls. The initial cost estimates were determined by TransAlta's contractor CH2MHill and reviewed by Washington. Where Washington determined that the CH2MHill analysis was lacking detail, Washington requested and received additional information. The costs were generally based on EPA's Cost Control Manual, but deviations were used where appropriate based on the physical constraints at the TransAlta facility. For example, the plant currently employs wet limestone forced oxidation to control SO 2 emissions, electrostatic precipitators followed by wet scrubbing systems to control particulate matter, and low NO X burners with close coupled overfire air to control NO X emissions. These existing controls occupy space in the exhaust ducting minimizing space for additional controls for NO X . Therefore, additional control equipment would require the redesign and installation of additional support structures, as well as the potential relocation of existing control equipment, thus increasing the cost of additional NO X control. For example, SNCR would need to be located in an area where the exhaust temperature is around 2100 °F, and existing SCR requires cooler temperatures, both of which would require a redesign of support structures.

As previously explained, Washington determined that there are insignificant energy and non-air environmental impacts from either SNCR plus flex fuel or SCR. We acknowledge that either SNCR or SCR will require an insignificant amount of additional energy. As the State recognized, ammonia slip, or excess ammonia in the exhaust gasses from SNCR, can cause fouling of the air heater requiring excessive maintenance as well as increased particulate formation in the atmosphere through secondary aerosol formation to ammonium sulfate and ammonium nitrate. However, this potential impact is minimized by the ammonia limit of 0.5 parts per million and the required optimization protocol. As discussed above, Ecology recognized that the facility previously installed BART for SO 2 and particulate matter and improved NO X control and EPA believes that these controls were appropriately considered in evaluating the emission reductions and NO X control costs in making the BART determination.

As described above, Ecology evaluated the degree of visibility improvement anticipated from the use of possible NO X control technologies. Washington appropriately determined that the NO X BART determination will result in visibility improvement in Mt Rainier National Park by 2.0 dv on the 20% most impaired days and improve visibility in 11 other Class I areas.

The specific BART emission limits and compliance dates, along with the requirements for the optimization study, monitoring, recordkeeping and reporting requirements, are included in the Revised BART Compliance Order. Upon EPA approval of this portion of the Regional Haze SIP Submittal, the Order becomes federally enforceable for purposes of the Washington Regional Haze SIP. Finally, pursuant to Washington's visibility protection program, WAC 173-400-151, the controls required by the State's BART determination must be installed as expeditiously as possible but in no event later than five years from when the State's Regional Haze SIP amendment is approved by EPA. More specifically, the Revised BART Compliance Order, which was included in the update to the Regional Haze SIP submission, provides that “[b]eginning on the 31st operating day after December 31, 2012 the NO X emissions limitation for the two coal fired utility steam generating units is 0.21 lb/mmbtu, 30 operating day average, both units averaged together including all emissions during start-up and shut-down.” SIP Supplement L-30 (Revised BART Compliance Order section 1.1) Therefore, this satisfies the requirement in 40 CFR 51.308(e)(1)(iv) that “each source subject to BART install and operate BART as expeditiously as possible, but in no event later than 5 years after approval of the implementation plan approval.”

For the above reasons, EPA agrees with Ecology's analysis and its the selection of BART for NO X at the TransAlta plant because the analyses were conducted in a manner that is consistent with EPA's BART Guidelines. Additionally, the conclusions reflect a reasonable application of EPA's guidance to this particular source. Therefore, EPA proposes to approve the NO X BART determination for TransAlta as meeting the requirements of 40 CFR 51.308(e).

For the reasons explained above, and in recognition of the State legislation and the Revised BART Compliance Order which result in the decommissioning of the coal-fired units by 2020 and 2025, EPA is proposing to approve the BART determination for TransAlta, including the Revised BART Compliance Order. The BART determination requires SNCR plus Flex Fuel as BART for the TransAlta coal-fired power plant with an emission limit of 0.21 lb/mmBtu with a 30 day rolling average beginning January 31, 2013, including fuel quality requirements and the allowance for a revised NO X emission limit not to exceed 0.21 lb/mmbtu.

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

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the rule neither imposes substantial direct compliance costs on tribal governments, nor preempts tribal law. Therefore, the requirements of section 5(b) and 5(c) of the Executive Order do not apply to this rule. Consistent with EPA policy, EPA nonetheless provided a consultation opportunity to Tribes in Idaho, Oregon and Washington in letters dated January 14, 2011. EPA received one request for consultation, and we have followed-up with that Tribe.

I. General Information A. Applicability

This notice does not impose requirements on any entity. If you have questions regarding the applicability of this notice, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

This document is available for download at http://www.epa.gov/npdes/stormwater/forestroads or under docket EPA-HQ-OW-2012-0195.

This notice describes the administrative steps the Agency intends to take to address the unpermitted stormwater discharges identified under Northwest Environmental Defense Center v. Brown, 1063 F.3d 1176 (9th Cir. 2011) and related discharges subject to the partial remand under Environmental Defense Center, Inc. v. EPA, 344 F.3d. 832, 863 (9th Cir. 2003). Specifically, the Agency is announcing its plan to propose revisions to its Phase I stormwater regulations (40 CFR 122.26) to specify that stormwater discharges from logging roads are not included in the definition of “storm water discharge associated with industrial activity.” The effect of this revision would be to remove any obligation for an owner or operator of a logging road that has discharges of stormwater to waters of the United States to seek coverage of the discharge under the Stormwater Multisector General Permit and to comply with that General Permit or to have an individual permit under section 402 of the Clean Water Act for such a discharge. EPA is aware that a Congressional moratorium on NPDES permitting of some logging roads is set to expire on September 30, 2012, and intends to move expeditiously to complete this revision.

At the same time, the Agency intends to evaluate stormwater discharges from forest roads to determine what additional measures, if any, are necessary to address such discharges. The EPA is publishing this notice to request comment on some potential approaches that the Agency should consider for addressing stormwater discharges from forest roads. As indicated earlier in this notice, the Agency will seek input again prior to taking additional action.

A vast and diverse network of forest roads provides access into and through the nation's forested lands. These roads traverse federal public land, state and local public land, county land, tribal land, private land, and they can span any combinations of these. The network includes active and inactive roads that vary in age and condition. Some roads on public lands are unauthorized and may not be included in existing inventories. Forest roads provide important access for a wide range of activities, including timber operations, recreation, fire protection, transportation, and often serve multiple purposes by multiple users at the same time.

There are about 751 million acres of forested land in the United States. Private forests make up over half (56 percent) or approximately 423 million acres (USDA Forest Service 2008), and account for over 90 percent of all timber harvested in the United States in recent years (Adams et al., 2006). Of the private forest land, 62 percent is owned by families and individuals and is commonly referred to as “family forests.” Most of the family forest owners (around 61 percent) own fewer than 10 acres of forest land. Owners of the remaining private forest land include corporations, Real Estate Investment Trusts (REITs), conservation organizations, clubs, and Native American tribes (USDA Forest Service 2008). Over 300 Native American reservations are significantly forested, and Native American tribal lands include 17.9 million acres of forest land, including 7.7 million acres of productive timberland (ITC 2007). Private forest land owners invest considerable resources in forest road construction and maintenance, as they are critical assets that enhance property values, maintain economic viability, and facilitate sustainable forestry management.

Forty-four percent of forest land is publicly-owned, or approximately 328 million acres. The Federal government administers an estimated 76 percent of the public forest land. State forestry, park, and wildlife agencies account for most of the 21 percent of state-owned public forest land. The remaining 3 percent of public forest land is owned by local governments, such as counties and towns (USDA Forest Service 2008). Within the United States, the distribution of public versus private forests differs greatly among the various regions of the country. For example, forest-ownership in the Northwest is dominated by public (primarily the USFS and BLM) ownership, while private ownership is more prevalent in the Southeast and Northeast ( Ibid. ).

While some forest road inventory information on federal lands is available, meaningful interpretation and comparison of that information requires an understanding of differences in inventory methods used (e.g., minimum road length included in road length counts), differences in the classes of forest roads (e.g., road surfacing, sediment production and delivery, and hydrologic connectivity), and differences in road densities. Nevertheless, the networks of forest roads on federal land are vast by any measure, with total lengths on the order of tens of thousands to hundreds of thousands of miles. The networks in other publicly-owned forests, tribal forests, and private forests have not been fully catalogued, and the density and condition of forest roads on these lands, as with the federal lands, varies widely.

Forest road networks differ greatly in development through time and layout over terrain, and they carry this history into their present performance and environmental impacts (Gucinski et al, 2001). In many parts of the 193 million acres of the National Forest System (NFS), the major roads were built in the 1950s and 1960s, with secondary and tertiary feeder roads following as the road networks expanded into watersheds. In other areas, logging roads developed from previous road systems used for mining in the Rocky Mountain and southwestern states or agriculture in the southern Appalachians, Ozarks, and New England. Thus, changes in forest road standards through time (for example, width, construction methods, position in the landscape) have affected different parts of road networks. Consequently, each forest road network commonly contains a collection of older and newer roads, designed to different standards, for various purposes, and crossing terrain of differing sensitivities. This mosaic of road segments has implications for how the forest road network will interact with the forest watershed, streams, and other downstream aquatic resources (Gucinski et al., 2001), as well as for what is practicable, or even feasible, to address stormwater discharges from these roads.

Regional differences are also evident in where the forest roads were located. For example, in southeastern Alaska, main roads were built on the broad, valley floors, where timber growing on the lower hillslopes was yarded downhill to them. In California, west of the Sierra Nevada, major roads were built along broad ridges, with secondary roads leading down into headwater areas. The main roads into western Oregon forests entered watersheds along narrow stream bottoms and then climbed the adjacent steep, unstable hill slopes to access timber extending from ridge to valley floor (Gucinski et al., 2001).

Federal forest roads on both BLM and Forest Service lands generally support traffic from multiple uses such as recreational, administrative, fire protection, and mineral and silvicultural activities. Of those, only a portion may be used for accessing timber resources. The federal land management agencies may grant easements, reservations, and permits for the purpose of construction, operation, and maintenance or use of roads crossing their lands.

The majority of BLM industrial logging operations occur on Oregon and California (O&C) lands  2 which have approximately 14,455 miles of road. BLM O&C lands are interspersed in a checkerboard pattern with many landowners. The roads often cross multiple jurisdictions, including tribal, state, county and private land as well as BLM lands. As a result, a complex system of road right-of-way agreements exists on the BLM O&C lands, as discussed later in this notice.

The paragraphs above discuss the range of property types into which forest roads provide access. The same road may pass through multiple owners and multiple properties. Moreover, the ownership of the road does not necessarily correspond to the ownership of the forest land. For example, a BLM owned road may pass through private property, and a privately owned road may pass through BLM property.

In general, only a subset of forest roads are active or open in any given year or at any given time of year. When active or open, forest roads may be serving multiple purposes by a number of different users. For example, those roads that are open and used for logging may cross multiple ownerships with overlapping responsibilities for the road and be used by multiple logging operators during the same time frame. This creates a highly complex mosaic of overlapping responsibilities. The EPA does not have information on all forest roads but notes that usage for some roads, including forest roads on private property, may only occur during harvesting once every 20 years or so.

Some forest roads are inactive and have been closed and “storm-proofed” (i.e., they have appropriate BMPs for road drainage and erosion control and for reducing the vulnerability of the roads to natural disasters). Others may have been closed or abandoned. Among both active and inactive forest roads are older forest roads that were built or located without the benefit of newer standards.

The wide range of regulatory and non-regulatory approaches authorized under section 402(p) of the CWA are well-suited to address stormwater discharges originating from the complex and diverse forest road universe because such approaches provide for flexibility and prioritization and allow EPA to focus on the subset of forest roads with stormwater discharges that cause or contribute to water quality impacts. Under 402(p) EPA could build on or defer to other federal, state, tribal, local, and voluntary programs.

The goal of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation's waters. 33 U.S.C. 1251(a). High quality water supplies from forests are widely recognized as valuable resources. Forests cover about one-third of the continental United States. Most major rivers and streams originate in forested catchments (NCASI, 1994), and 80 percent of the nation's freshwater sources originates in these forests (USFS 2000). In 2000, the US Forest Service (USFS) calculated the marginal value of water from all National Forest System (NFS) lands to be at least $3.7 billion per year ( Ibid. ). Between 50 and 75 percent of the population of the United States relies on forest lands for good quality water (Neary et al. 2009), and approximately 60 million people rely on NFS lands as the primary source of their drinking water (Dissmeyer 2000).

Stormwater discharges from logging roads, especially improperly constructed or maintained roads, may introduce significant amounts of sediment and other pollutants into surface waters and, consequently, cause a variety of water quality impacts. Results of nationwide waterbody assessments from the EPA's Assessment and Total Maximum Daily Loads (TMDL) Tracking and Implementation System (ATTAINS), which contains the most currently available data reported by states to the EPA under Sections 305(b) and 303(d) of the CWA, found silviculture (forestry) and related activities, including forest and logging roads, to be among the top twelve probable sources of impairment for rivers, streams, and coastal shorelines (USEPA 2012).

The ATTAINS database indicates that silviculture sources contributed to impairment of 19,444 miles of rivers and streams (3.8 percent of the total of 514,795 miles impaired) and 242,583 acres of lakes, reservoirs and ponds (1.9 percent of the total of 13,038,033 acres of impaired). States cited “Logging roads (construction and use)” as the “specific source” of impairment in the case of 1,334 miles of rivers and streams (.003 percent of total impaired) and 6,150 acres of lakes, reservoirs and ponds (.0005 percent of total impaired).

The contribution of silviculture to water quality impairments can vary by region, and the contribution of discharges from forest roads to water quality impairments in the ATTAINS database may not be representative due to reporting differences among states. Some states may have categorized the source of impairment as “hydromodifcation” or “habitat alteration”; many states consistently report in the “unknown” source category for impairments—the third leading probable source category of impairment nationwide. Additionally, much of the nation's waters still remain unassessed (72 percent of rivers and streams; 54 percent of lakes, reservoirs, and ponds; 62 percent of bays and estuaries; and 96 percent of coastal shorelines). The EPA considered the differential contribution from forest road stormwater discharges on water quality as the Agency developed the potential approaches for addressing these sources. For example, the EPA recognizes that not all forest roads cause water quality impacts and that the majority of the water quality impacts caused by discharges from forest roads may be attributed to a relatively small subset of forest roads and often a small portion of those roads (Nelson et al., 2010; Fly et al., 2010; Luce and Black, 2001; Luce and Black, 1999). Thus, any approach to address stormwater discharges from forest roads would likely focus on the subset of forest roads that were not properly constructed or are not properly maintained.

Stormwater discharges from improperly constructed or maintained forest roads can lead to excess sedimentation in nearby waters and subsequently lead to physical, biological and ecological impacts to water quality. These forest roads can degrade aquatic ecosystems by increasing levels of fine sediment input to streams and by altering natural streamflow patterns. Forest road runoff from improperly designed or maintained forest roads can detrimentally affect stream health and aquatic habitat by increasing sediment delivery and stream turbidity. This can adversely affect the survival of dozens of sensitive aquatic biota (salmon, trout, other native fishes, amphibians and macroinvertebrates) where these species are located. Increased fine sediment deposition in streams and altered streamflows and channel morphology can result in increased adult and juvenile salmonid mortality where present (e.g., in the Northwest and parts of the East), a decrease in aquatic amphibian and invertebrate abundance or diversity, and decreased habitat complexity.

The physical impacts of forest roads on streams, rivers, downstream water bodies and watershed integrity have been well documented but vary depending on site-specific factors. Improperly designed or maintained forest roads can affect watershed integrity through three primary mechanisms: they can intercept, concentrate, and divert water (Williams, 1999). Forest roads can intercept water falling as rainfall directly on road surfaces and cutbanks as well as subsurface water moving underground down the hillslope. They can concentrate flow on the road surface and in adjacent ditches and channels. Forest roads, if not properly designed, can divert both surface and subsurface water from flow paths that otherwise would be taken in the absence of a road. The hydrologic and geomorphic consequences resulting from these three processes will vary based on the forest road and underlying material. In some cases, impacts may be negligible, while they may be significant in others. Potential effects of forest roads that were not properly constructed or are not properly maintained on water quality can include increased loading of sediment due to erosion and mass wasting, increased suspended solids and turbidity, increased sediment deposition and bed load, alteration of stream morphology and channel simplification, altered streamflow, pollution from other chemicals associated with forest roads, increased turbidity and sedimentation in water treatment and supply systems, siltation of streambed substrates, impairments of spawning and rearing habitat, and degradation of habitat for salmonids, other fish, invertebrates, and other aquatic organisms.

Section VII, References, at the end of this notice provides a preliminary list of articles and publications that have examined various potential effects of stormwater discharges from forest roads, as well as management practices to address them. The EPA will further review this literature as part of its detailed study of these sources. The Agency also welcomes suggestions for additional references that it should consider in its review.

Forest roads are vital components of the human use of forested systems (Gucinski et al., 2001). They provide access for recreation, resource extraction, fire suppression activities, and many other forest management activities. While improperly built and maintained forest roads can have detrimental effects on the water quality, the application of appropriate BMPs can minimize these effects.

Owners and operators of many forest lands may already be employing a variety of effective approaches to manage, operate, and maintain forest roads to control stormwater discharges. These approaches are implemented by the forest road owners themselves or by operators or users of the roads. Depending on the jurisdiction, owners or operators use BMPs as a result of state program requirements, federal requirements, or because they may follow voluntary programs, including forest stewardship and sustainability initiatives. Under these required or voluntary programs, owners and operators of forest roads use BMPs to minimize or prevent discharges of pollutants into surface waters. They include design approaches, treatment techniques, operating procedures, and practices to control runoff, spillage, and leaks.

Most states have forest land management laws regulating multiple aspects of forest and timber resources and management and the products derived from these resources. Many states have a complex legal framework of forestry regulations that shape the state's forest road BMP programs. This framework and the resulting BMP programs vary considerably from one state to another. States also differ in how they distribute responsibility and authority for the forest road BMP programs among the state water quality, forestry, and fish and wildlife agencies. This notice describes three existing state programs to illustrate some of the variety among the states. Descriptions of the remaining state programs may be available through state Web pages.

In Washington State, the forest practices act and rules (Forests and Fish Rules) apply to all private and state forest roads. Forest Practices Rules require that forest landowners construct and maintain roads to avoid potential or actual damage to public resources, such as water quality and fish habitat. The Washington program addresses both new forest roads as well as existing roads. The program requires larger forest landowners to complete an inventory of existing roads, identify where roads are impacting state resources (including fish and water quality), and allows for prioritization of repairing, relocating, or abandoning existing roads to correct problems. All large forest landowners must develop and submit for approval by the Washington Department of Natural Resources (DNR) a Road Maintenance and Abandonment Plan (RMAP) in which they inventory their forest roads and outline a schedule for any needed road work, including a timeline to bring old roads up to current standards or to decommission or “abandon” substandard roads. Small forest landowners are required to submit a “checklist RMAP,” which is a form landowners fill out to indicate they have assessed their roads included in a harvest and identified any potential road maintenance problems. While the program is enforceable, the state focuses first on technical assistance and then, to correct problems, uses progressive enforcement mechanisms and generally reserves civil penalties for more serious infractions. If a problem is identified, WA DNR describes the outcome expected, and the landowner describes what BMPs will be used to correct it.

Forest roads that no longer need to be used or cannot meet the performance standards are encouraged to be abandoned. Abandonment strategies may involve the removal of stream crossing structures and unstable road fill, installing water bars, re-vegetating exposed soils, and employing other similar techniques. WA DNR must approve the roadwork before the road can be considered abandoned.

Florida relies primarily on voluntary compliance with state approved forest road BMPs. However, BMPs can be enforced where noncompliance leads to a significant risk to water quality. When a significant risk has been identified, professionally-trained BMP foresters advise the landowners on how to implement corrective measures. Afterward, a follow-up site evaluation is made to reassess compliance. Landowner non-compliance with recommendations made by the BMP Forester could result in a referral to the appropriate regulatory agency for enforcement action.

California's Forest Practice Rules establish a comprehensive framework that includes state-developed and approved BMPs for silvicultural activities on private lands, including road-building practices, and other related silvicultural activities. California allows coverage under one approach that includes requirements that closely resemble those of an individual permit, known as “Waste Discharge Requirements,” as well as another approach allowing the use of a “waiver” whose requirements are closer to those of a general or regional permit. Having a “waiver” obviates the procedural need for coverage under the “Waste Discharge Requirements” program, but the substantive requirements of that program remain enforceable.

The California program is based on input from state water quality and natural resource agencies and incorporates a formal, annual adaptive management process reflecting incremental analysis of BMPs, which regularly results in updated BMP requirements. The waste discharge requirements apply similarly and equally to both public and private lands. Enforceability of the Forest Practice Rules is overseen by multiple agencies: California Department of Forestry, the California Department of Fish and Game, and the state water Quality Control Board and Regional Water Quality Control Boards (California's water quality agency).

Many states have been monitoring forestry BMP implementation for the past 20 years or more. During that time, state forestry agencies have approached implementation monitoring in different ways with varying degrees of detail, precision, and statistical strength. In general, BMP implementation has been reported to be highest on public land, followed in descending order by forest industry land, corporate non-industrial land, and private non-industrial land (Prud'homme and Greis, 2002).

EPA recognizes that one-size-fits-all approaches may not be appropriate for addressing the multiplicity of issues and situations within and across states. EPA welcomes diversity in state programs and will be carefully studying the full range of such programs as it considers whether any additional measures to address stormwater discharges from forest roads are needed.

The goal of the USDA Forest Service (USFS) National BMP Program is to improve agency performance and accountability in managing water quality in a manner consistent with the CWA and state water quality programs. Current USFS policy directs compliance with any required CWA permits and state rules and regulations, and requires the use of approved BMPs to control pollution. The National BMP Program was developed over the past decade and is currently in the initial stages of implementation. It is intended to provide consistency among USFS administrative units to efficiently administer BMPs and demonstrate performance and accountability at multiple scales in an adaptive management context. The program is intended to meet or exceed state BMP objectives as well as to simplify and standardize water quality protection measures and monitoring on NFS land. (USDA Forest Service 2012)

The National Core BMPs integrate existing state and USFS regional BMPs under one umbrella to facilitate an agency-wide BMP implementation and effectiveness monitoring program. The National Core BMPs provide a general, non-prescriptive framework of BMPs for the broad range of activities that occur on NFS lands. ( Ibid. )

The USFS's Watershed Condition Framework (WCF) is a comprehensive approach for classifying watershed condition, implementing integrated restoration in priority watersheds on national forests and grasslands, and tracking and monitoring outcome-based program accomplishments for performance accountability (USDA Forest Service 2011). The policy goal of the USFS WCF is “to protect National Forest System watersheds by implementing practices designed to maintain or improve watershed condition, which is the foundation for sustaining ecosystems and the production of renewable natural resources, values, and benefits.” The WCF provides a consistent way to evaluate watershed condition at both the national and forest levels. The WCF consists of reconnaissance-level assessments by individual national forests, implementation of integrated improvement activities—including those related to roads—within priority watersheds, validation and monitoring of watershed condition class changes, and aggregation of program performance data for national reporting.

The USFS has been engaged in an extensive program of road improvement efforts called the Legacy Roads Project since 2008. The goals of this effort are to reduce the hydrologic and geomorphic impacts of the existing USFS road network on critical watersheds and aquatic resources by decommissioning or upgrading forest roads. The Legacy Roads Monitoring Project is a regional effort to examine the effectiveness of the road decommissioning, storm damage risk reduction (aka “storm-proofing”) and road storage projects.

The Bureau of Land Management (BLM) manages 58 million acres of forest and woodlands in eleven western states and Alaska, including 2.4 million acres within the Oregon and California (O&C) grant lands in western Oregon. BLM O&C regulations regarding third party road uses provide that “The intent and expectation of both parties to agreements is that roads are left in `at least as good condition as existed prior to commencement of use'” (43 CFR 2812.6-2(b)(2)). The Federal Land Policy Management Act (FLPMA) requires public lands to be managed on the basis of multiple use and sustained yield without permanent impairment of the land and quality of the environment. Under Sec 502 of FLPMA, the Interior Secretary is authorized to provide for the maintenance of roads within and near the public lands and perform that work, in part, by cooperative financing with other public agencies and with private agencies and persons in proportion to their use. Forest roads may be constructed and maintained by logging operators, private landowners, the BLM, the USFS, or state or county governments. BLM roads, culverts, and bridges are designed, constructed, and maintained in accordance with policies and standards found in BLM 9100 Manual Series (Engineering) for road BMPs. In Oregon and Washington, the BLM has recently (2011) updated BMPs and, as a result, current road construction and maintenance standards are substantially improved over the standards in existence when the CWA was enacted in 1972. BLM timber sale contracts contain extensive specifications related to methods and timing of road construction and maintenance. In addition, the BLM often includes operational restrictions in their timber sale contracts to reflect appropriate protections for fish species listed under the Endangered Species Act (ESA).

Under rights-of-way agreements, examples exist of private companies owning roads constructed on BLM lands, and BLM owning roads built on private lands. There are dozens of rights-of-way agreements in place on O&C lands. These agreements are subject to frequent amendment as landowners consolidate or sell lands or split off separate corporate entities for business purposes, creating a complex access program.

Tribal governments in partnership with the US government dedicate substantial resources to improving Indian forest management (ITC 1993). Much of the responsibility for managing Indian forests across the country is carried out by the Bureau of Indian Affairs (BIA) with the involvement of tribal governments. The National Indian Forest Resources Management Act (NIFRMA), Title III, Public Law 101-630, directs the Secretary of the Interior, in consultation with the affected Indian tribes, to obtain an independent assessment of the status of Indian forest resources and their management. Similar to the National Forest Management Act, the NIFRMA requires the development of forestry management plans under which the forests are managed in accordance with BMPs, as approved thorough an interdisciplinary team. The Tribal Forest Protection Act (Pub. L. 108-278) authorizes the Secretary of Agriculture and the Secretary of the Interior to enter into an agreement or contract with Indian tribes to carry out projects to protect Indian forest land. Protection of such land is particularly important for tribes because they pass their land on from generation to generation. This helps to ensure future availability of natural resources, including healthy forests and clean water.

Many tribes have taken on significant roles in sustainable forest management. For example, the Menominee Indian Tribe of Wisconsin manages 95 percent of the forested portions of the reservation for long-term sustainability through the Menominee Tribal Enterprises which has received certifications for sustainable management from two groups, Scientific Certification Systems (The Forest Conservation Program) and the Rainforest Alliance (SmartWood), and is accredited by the Forest Stewardship Council. As another example, the Northern Cheyenne Tribe requires that all new roads be obliterated and seeded after forest harvesting activities. Similarly, the Blackfeet Nation has a no net new road miles policy, in that new forest roads associated with forest harvest must be closed, or other roads must be closed in their place.

On private forestlands, significant BMP implementation can be attributed to growing involvement of forest owners in sustainable forestry certification programs. Several certification programs exist. Under one program, the Sustainable Forestry Initiative (SFI) of the American Forest and Paper Association, member companies must meet or exceed state BMPs on company-owned forest land (Prud'homme and Greis, 2002). Because SFI is linked to state BMPs, the forest road BMPs applied under SFI vary by state. Some forest products companies impose sanctions on timber producers who fail to implement BMPs when logging on other ownerships.

Under another, the Forest Stewardship Council (FSC) certification program, certified forest owners and operators follow a set of principles and criteria that support responsible forest management (FSC 2012). Principles and criteria include conservation of biological diversity, water resources, soils, and unique and fragile ecosystems and landscapes. Under FSC certification, additional requirements tailored by region guidelines must also be met in addition to state BMPs.

Under a third program, the American Tree Farm System, a written certification is issued by an independent third-party that attests to the sustainable management of a working forest (ATFS 2012). In addition to requirements that they be in compliance with state BMPs, certified forest managers must also attest compliance with eight standards of sustainability, including the maintenance or enhancement of the environment and ecosystems.

Certification programs can both help ensure implementation of state BMPs and in some instances require additional BMPs. Forestry operations that utilize experienced and informed land managers generally have higher rates of BMP implementation. Thus, many states recommend that landowners utilize forestry professionals (e.g., private consultants, certified Master Loggers) when planning any forest management operations. Many certification programs require involvement of forestry professionals.

As described above, successful federal, state, tribal, and local programs for controlling stormwater discharges from logging and forest roads currently exist in many parts of the country and many forest owners are implementing BMP programs to address these discharges. Some studies have observed trends of decreasing sediment input as forest roads are closed and storm-proofed or newly built or brought up to standards (e.g., Dubé et al. 2010).

However, this does not mean that all of the existing programs have been successful at effectively addressing stormwater discharges from forest roads, and some discharges continue to cause or contribute to impairments for the Nation's waters.

At the same time, not all forest roads are alike, and the severity of the remaining challenges varies. There is evidence that a majority of the water quality impacts caused by discharges from forest roads can be attributed to a relatively small subset of forest roads and often a small portion of those roads (Nelson et al., 2010; Fly et al., 2010; Luce and Black, 2001; Luce and Black, 1999). Thus, EPA believes that further study of forest roads and their impacts is needed in order to determine what additional measures may be needed to address remaining water quality impacts. EPA will consider a full range of potential approaches to address water quality impacts associated with discharges of stormwater from forest roads.

The Agency is considering several options for addressing significant water quality impacts caused by stormwater discharges from forest roads. EPA is considering designating a subset of stormwater discharges from forest roads for appropriate action under section 402(p)(6) of the Act. Section 402(p)(6) allows the EPA flexibility in issuing regulations to address designated stormwater discharges and does not require the use of NPDES permits. 33 U.S.C. 1342(p)(6). Section 402(p) allows for a broad range of regulatory and non-regulatory approaches and provides flexibility as to which stormwater discharges, if any, should be designated under Section 402(p)(6). For example, in lieu of regulation, EPA could support or defer to other federal, state, tribal, local, and voluntary programs. If EPA does determine that regulation under Section 402(p)(6) is appropriate for a subset of stormwater discharges from forest roads, such a regulation might address discharges only from roads used for logging or might address discharges based on contribution of the discharge to a water quality problem. Section 402(p)(6), in turn, provides considerable flexibility to EPA if it does designate any discharges for regulation in how it regulates those discharges.

EPA intends to further study the impacts of stormwater discharges from forest roads, available management practices and approaches, and the effectiveness of existing Federal, State, Tribal, local and private programs in managing these discharges, as it considers appropriate next steps.

The EPA is in the process of reviewing available information on both the water quality impacts of stormwater discharges from forest roads as well as existing practices for their control. Consistent with past Agency actions, the EPA invites interested stakeholders and the public to share in the exchange of information and to engage as the Agency considers alternative approaches for addressing stormwater discharges from forest roads.

The Agency participated in the recent technical symposium hosted by the Society of American Foresters during which EPA scientists and engineers had the opportunity to hear perspectives on forest roads and the Clean Water Act from state and industry representatives directly. In addition, the EPA has begun communicating with states, tribes, and other federal agencies to understand their current forest road stormwater management programs. The Agency worked closely in particular with USDA (the USFS) and the Department of the Interior (the BLM). The EPA also welcomes information from other interested parties and plans to work closely with other stakeholders moving forward.

The EPA encourages stakeholders and the public to provide input into its consideration of appropriate measures to address stormwater discharges from forest roads and is already planning to host public meetings and webcasts to provide a forum for them to do so.

The Agency will move expeditiously to propose a revision to its Phase I stormwater regulations (40 CFR 122.26) to specify that stormwater discharges from logging roads are not included in the definition of “storm water discharge associated with industrial activity.” EPA is aware that a Congressional moratorium on NPDES permitting of some logging roads is set to expire on September 30, 2012, and intends to move expeditiously to complete this revision. EPA will also study the water quality impacts of forest roads and existing federal, state, tribal, and voluntary programs designed to address them to determine if additional Agency action is necessary. EPA also plans to hold listening sessions to obtain stakeholder input this summer on its consideration of how best to address stormwater discharges from forest roads.

The EPA requests comment on potential approaches for addressing stormwater discharges from forest roads. The Agency also seeks input on examples of successful existing BMP-based state programs, tribal programs, and voluntary certification programs for managing stormwater discharges from forest roads; how these programs are implemented; how program accountability is assured; the costs of implementing those programs, including costs incurred by owners or operators of forest roads as well as the costs incurred by the organizations responsible for implementation and enforcement; the demonstrable successes of these programs; and the lessons learned in implementing such programs.

The EPA will again seek input on any additional measures to address such discharges before taking additional action.

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. Potentially affected entities may include, but are not limited to:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

This listing is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this unit could also be affected. The North American Industrial Classification System (NAICS) codes have been provided to assist you and others in determining whether this action might apply to certain entities. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed at the end of the pesticide petition summary of interest.

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

2. Tips for preparing your comments. When submitting comments, remember to:

i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).

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

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

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

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

vi. Provide specific examples to illustrate your concerns and suggest alternatives.

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

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

3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 174 or part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available online at http://www.regulations.gov .

As specified in FFDCA section 408(d)(3), (21 U.S.C. 346a(d)(3)), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

1. PP 2E7988. (EPA-HQ-OPP-2012-0204). Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to establish tolerances in 40 CFR part 180 for residues of the insecticide imidacloprid (1-[6-chloro-3-pyridinyl) methyl]- N -nitro-2-imidazolidinimine) and its metabolites containing the 6-chloropyridinyl moiety, in or on fish at 0.05 parts per million (ppm) and fish-shellfish, mollusk at 0.05 ppm. Adequate enforcement methodologies, Bayer gas chromatography/mass spectrometry (GC/MS) method 00200 and Bayer GC/MS method 00191, is available to enforce the tolerance expression. Contact: Sidney Jackson, (703) 305- 7610, email address: jackson.sidney@epa.gov.

2. PP 0F7690. (EPA-HQ-OPP-2012-0234). BASF Corporation, 26 Davis Drive, P.O. Box 13528, Research Triangle Park, NC 27709, requests to establish tolerances in 40 CFR part 180 for the insecticide for the combined residues of alpha-cypermethrin and cypermethrin including zeta-cypermethrin ( S )-α-cyano-3-phenoxy-benzyl (1 R, 3 R )-3-(2,2-dichlorovinyl)-2,2-dimethylcyclopropane-carboxylate and ( R )-α-cyano-3-phenoxybenzyl (1 S, 3S)-3-(2,2-dichlorovinyl)-2,2-dimethylcyclopropane-carboxylate, in or on tree nuts (group 14); dried shelled pea and bean, except soybean (subgroup 6C); corn, grain; corn, corn, sweet; soybeans; and sugar beet roots at 0.05 ppm; succulent shelled pea and bean (subgroup 6B); and root and tuber vegetables (group 1) at 0.1 ppm; cucurbit vegetables (group 9); fruiting vegetables (group 8); sugar beet, tops; and wheat, grain at 0.2 ppm; citrus fruit (group 10) at 0.35 ppm; cottonseed, legume, edible podded vegetable (subgroup 6A); and sorghum, grain at 0.5 ppm; rice, grain at 1.5 ppm; citrus, dried pulp at 1.8 ppm; Brassica, head and stem (subgroup 5A) at 2.0 ppm; citrus, oil at 4.0 ppm; leafy vegetable, except Brassica (group 4) at 10 ppm; and alfalfa, hay at 15 ppm. Cypermethrin is a pyrethroid insecticide consisting of three asymmetric carbon atoms, and therefore, 8 stereo-isomeric mixtures. Cypermethrin is also characterized as consisting of cis- and trans-configured diastereo-isomeric components based on orientation around its cyclopropane ring. Zeta-cypermethrin and alpha-cypermethrin are optimized stereo-isomeric mixtures of cypermethrin, each consisting of 4 major components. These zeta-cypermethrin and alpha-cypermethrin components are the enriched trans- (alpha- S ) and cis (cis2- R ) isomeric orientations of cypermethrin, respectively. There is a practical analytical method for detecting and measuring levels of cypermethrin in or on food with a limit of detection (LOD) that allows monitoring of food with residues at or above the levels set in these tolerances GC with electron capture detection (GC/ECD) and liquid chromatography with tandem mass spectrometry (LC/MS/MS) methods are available. Contact: Bewanda Alexander, (703) 305-7460, email address: alexander.bewanda@epa.gov.

3. PP 1F7894. (EPA-HQ-OPP-2011-0668). E.I. du Pont de Nemours & Company (“DuPont”), 1007 Market Street, Wilmington, DE 19898, requests to establish tolerances in 40 CFR part 180 for residues of the insecticide cyantraniliprole, 3-bromo-1-(3-chloro-2-pyridinyl)- N -[4-cyano-2-methyl-6-[(methylamino)carbonyl]phenyl]-1 H -pyrazole-5-carboxamide, including its metabolites and degradates, in or on almond hulls at 30 ppm; berries and small fruits, bushberries (crop subgroup 13-07B) at 4 ppm; Brassica (cole) leafy vegetables, head and stem Brassica (crop subgroup 5A) at 2 ppm; Brassica (cole) leafy vegetables, leafy Brassica greens (crop subgroup 5B) at 30 ppm; bulb vegetables, onion, bulb (crop subgroup 3-07A) at 0.04 ppm; bulb vegetables, onion, green (crop subgroup 3-07B) at 8 ppm; cattle, fat at 0.01 ppm; cattle, liver at 0.04 ppm; cattle, meat at 0.01 ppm; cattle, meat byproducts, except liver at 0.01 ppm; cherries at 6 ppm; citrus fruits (crop group 10-10) at 0.7 ppm; cotton gin byproduct at 10 ppm; cucurbit vegetables (crop group 9) at 0.3 ppm; fruiting vegetables (crop group 8-10) at 2 ppm; goat, fat at 0.01 ppm; goat, liver at 0.04 ppm; goat, meat at 0.01 ppm; goat, meat byproducts, except liver at 0.01 ppm; hog, fat at 0.01 ppm; hog, liver at 0.04 ppm; hog, meat at 0.01 ppm; hog, meat byproducts, except liver at 0.01 ppm; horse, fat at 0.01 ppm; horse, liver at 0.04 ppm; horse, meat at 0.01 ppm; horse, meat byproducts, except liver at 0.01 ppm; leafy vegetables (except Brassica vegetables) (crop group 4) at 15 ppm; milk at 0.01 ppm; milk, fat at 0.04 ppm; oilseeds, except cotton gin byproduct (crop group 20) at 1 ppm; pome fruits (crop group 11-10) at 0.8 ppm; root and tuber vegetables, tuberous and corm vegetables (crop subgroup 1C) at 0.15 ppm; sheep, fat at 0.01 ppm; sheep, liver at 0.04 ppm; sheep, meat at 0.01 ppm; sheep, meat byproducts, except liver at 0.01 ppm; stone fruits, except cherries (crop group 12) at 1.5 ppm; tree nuts, except almond hulls (crop group 14) at 0.06 ppm; citrus, oil at 6 ppm; citrus, raw peel at 2 ppm; and potato, wet peel at 0.3 ppm. In addition, DuPont is proposing pursuant to section 408 (d) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 346a (d), to amend 40 CFR part 180 to establish indirect or inadvertent tolerances for residues of cyantraniliprole, 3-bromo-1-(3-chloro-2-pyridinyl)- N -[4-cyano-2-methyl-6-[(methylamino)carbonyl]phenyl]-1 H -pyrazole-5-carboxamide, including its metabolites and degradates, in or on the following commodities: Foliage of legume vegetables (crop group 7), forage at 0.15 ppm, hay at 0.6 ppm; forage, fodder and straw of cereal grains (crop group 16), forage at 0.06 ppm, hay and straw at 0.15 ppm; grass forage, fodder, and hay (crop group 17), forage at 0.06 ppm, hay at 0.15 ppm; leaves of root and tuber vegetables (human food or animal feed) (crop group 2) at 0.04 ppm; nongrass animal feeds (forage, fodder, straw, and hay) (crop group 18), forage at 0.06 ppm, hay at 0.15 ppm; peanut hay at 0.03 ppm; and root and tuber vegetables, root vegetables (crop subgroup 1A) at 0.03 ppm. Adequate analytical methodology, high-pressure liquid chromatography with (HPLC) electrospray tandem mass spectrometry (ESI-MS/MS) detection, is available for enforcement purposes. Contact: Thomas Harris, (703) 308-9423, email address: harris.thomas@epa.gov.

4. PP 1F7953. (EPA-HQ-OPP-2012-0060). Mitsui Chemicals Agro, Inc., c/o Landis International, Inc., P.O. Box 5126, Valdosta, GA 31603, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide dinotefuran, ( RS )-1-methyl-2-nitro-3-(tetrahydro-3-furylmethyl)guanidine and its major metabolites DN, 1-methyl-3-(tetrahydro-3-furylmethyl)guanidine, and UF, 1-methyl-3-(tetrahydro-3-furylmethyl)-urea, in or on rice, grain at 10 ppm. Practical analytical methodology for detecting and measuring levels of dinotefuran and its metabolites, UF and DN, in or on raw agricultural commodities has been conducted. Dinotefuran and its metabolites in the plant matrix extracts were analyzed by HPLC and thin layer chromatography (TLC) to determine the number of metabolites and their relative distribution in the samples. The HPLC method was validated for determination of dinotefuran, DN and UF in or on tomatoes and peppers, cucurbits, Brassica, grapes, potatoes, mustard greens, rice, and lettuce for raw agricultural commodity matrices and in or on tomato paste and puree, grape juice and raisins and potato chips, granules, and wet peel, rice grain, hulls, and bran for processed commodity matrices. After extraction with a water/acetonitrile mixture and clean up with hexane and extraction columns, concentrations of dinotefuran and its metabolites were quantified after HPLC separation by MS/MS detection. Contact: Rita Kumar, (703) 308-8291, email address: kumar.rita@epa.gov.

5. PP 1F7956. (EPA-HQ-OPP-2012-0177). Syngenta Crop Protection, LLC., P.O. Box 18300, Greensboro, NC 27419-8300, requests to establish tolerances in 40 CFR part 180 for residues of the fungicide cyproconazole, in or on peanut, nutmeat at 0.03 ppm; peanut, hay at 6 ppm; peanut, meal at 0.03 ppm; peanut, butter at 0.03 ppm; and peanut, refined oil at 0.03 ppm. An adequate analytical method for cyproconazole, AM-0842-0790-0, is available for enforcement purposes. Determination and quantitation for cyproconazole are conducted using GC employing mass selective detection (MSD). A method for analysis of triazole metabolites is available using Morse Labs Analytical Method No. Meth-160, Revision #2. Residues are quantified by GC equipped with a nitrogen-phosphorous detector (NPD). The limit of quantitation (LOQ) is 0.01 ppm for cyproconazole parent. The analytical method, AM-0842-0790-0, is available in the Pesticide Analytical Manual, Vol. II (PAM II). Contact: Shaunta Hill, (703) 347-8961, email address: hill.shaunta@epa.gov.

6. PP 1F7967. (EPA-HQ-OPP-2012-0092). BASF Corporation, c/o Landis International, Inc., P.O. Box 5126, 3185 Madison Highway, Valdosta, GA 31603, requests to establish a tolerance in 40 CFR part 180 for residues of the insecticide dinotefuran, ( RS )-1-methyl-2-nitro-3-(tetrahydro-3-furylmethyl)guanidine, in or on all food/feed items (other than those already covered by a higher tolerance as a result of use on growing crops) in food/feed handling establishments where food products are held, processed or prepared at 0.01 ppm. Practical analytical methodology for detecting the magnitude of residues that accumulate in/on perishable food matrices (butter, processed meat, lettuce, bread, milk, peaches and pie), on non-perishable food matrices ((candy M&Ms), rice, crackers, potatoes and flour) and on bare surfaces (dinner plates, aluminum foil and table knives) following a spot and crack and crevice treatment of dinotefuran in a simulated food handling establishment has been conducted. The analytical method included sample extraction with acetonitrile or acetonitrile/water in conjunction with a solid-phase extraction/clean-up of extracts prior to analysis. Quantitation of dinotefuran in extracts was performed using LC/MS/MS. Contact: Rita Kumar, (703) 308-8291, email address: kumar.rita@epa.gov.

7. PP 2F7973. (EPA-HQ-OPP-2012-0269). BASF Corporation, P.O. Box 13528, Research Triangle Park, NC 27709, requests to establish tolerances in 40 CFR part 180 for residues of the insecticide cyflumetofen, in or on almond, hulls at 4.0 ppm; fruit, citrus, group 10 at 0.3 ppm; citrus, oil at 16 ppm; grape at 0.6 ppm; grape, raisin at 0.9 ppm; fruit, pome, group 11 at 0.3 ppm; strawberry at 0.6 ppm; tomato at 0.2 ppm; and nut, tree, group 14 at 0.01 ppm. The analytical method D1003, “Method for Determination of Residues of Cyflumetofen (BAS 9210 I) and its Metabolites in Plant Matrices using LC-MS/MS” was validated successfully for the analysis of cyflumetofen and its metabolites (B-1, AB-6, and AB-7) in tomato (high water), soybean seed (high oil), rice grain (high starch), dry bean (high protein), orange (high acid), raisins (process fraction), orange oil (process fraction), orange juice (process fraction), and rice straw (feed). Contact: Driss Benmhend, (703) 308-9525, email address: benmhend.driss@epa.gov.

8. PP 2F7976. (EPA-HQ-OPP-2012-0282). Syngenta Crop Protection, LLC., P.O. Box 18300, Greensboro, NC 27419, requests to establish tolerances in 40 CFR part 180 for residues of the fungicide azoxystrobin (methyl ( E )-2-(2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy]phenyl)-3-methoxyacrylate) and the Z isomer of azoxystrobin, (methyl ( Z )-2-(2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy] phenyl)-3-methoxyacrylate), in or on oat, forage at 4 ppm; oat, hay at 7 ppm; oat, straw at 3 ppm; oat, grain at 1 ppm; rye, forage at 4 ppm; rye, straw at 0.8 ppm and rye, grain at 0.07 ppm and in or on the animal commodities poultry, meat at 0.01 ppm; poultry, fat at 0.01 ppm; poultry, liver at 0.2 ppm; egg at 0.1 ppm; cattle, liver at 0.5 ppm; cattle, kidney at 0.1 ppm; hog, liver at 0.2 ppm and hog, kidney at 0.03 ppm. An adequate analytical method, GC-NPD or in mobile phase by HPLC with ultra-violet (UV) detection (HPLC-UV), is available for enforcement purposes with a LOD that allows monitoring of food with residues at or above the levels set in these tolerances. The Analytical Chemistry section of the EPA concluded that the method(s) are adequate for enforcement. Analytical methods are also available for analyzing meat, milk, poultry and eggs which also underwent successful independent laboratory validations. Contact: Erin Malone, (703) 347-0253, email address: malone.erin@epa.gov.

9. PP 2F7984. (EPA-HQ-OPP-2012-0283). Syngenta Crop Protection, LLC., P.O. Box 18300, Greensboro, NC 27419, requests to establish a tolerance in 40 CFR part 180 for residues of the fungicide azoxystrobin (methyl ( E )-2-(2-[6-(2-cyanophenoxy) pyrimidin-4-yloxy]phenyl)-3-methoxyacrylate) and the Z isomer of azoxystrobin, (methyl ( Z )-2-(-[6-(2-cyanophenoxy)pyrimidin-4-yloxy] phenyl)-3-methoxyacrylate), in or on the animal commodities poultry, meat at 0.01 ppm; poultry, fat at 0.01 ppm; poultry, liver at 0.2 ppm; egg at 0.1 ppm; cattle, liver at 0.5 ppm; cattle, kidney at 0.1 ppm; hog, liver at 0.2 ppm and hog, kidney at 0.03 ppm. An adequate analytical method, GC-NPD or in mobile phase by HPLC with ultra-violet (UV) detection (HPLC-UV), is available for enforcement purposes with a LOD that allows monitoring of food with residues at or above the levels set in these tolerances. The Analytical Chemistry section of the EPA concluded that the method(s) are adequate for enforcement. Analytical methods are also available for analyzing meat, milk, poultry and eggs which also underwent successful independent laboratory validations. Contact: Erin Malone, (703) 347-0253, email address: malone.erin@epa.gov.

10. PP 2F7997. (EPA-HQ-OPP-2012-0262). BASF Corporation, P.O. Box 13528, Research Triangle Park, NC 27709, requests to establish a tolerance in 40 CFR part 180 for residues of the herbicide topramezone, 3-(4,5-dihydro-3-isoxazolyl)-2-methyl-4-(methylsulfonyl)phenyl](5-hydroxy-1-methyl-1 H -pyrazol-4-yl)methanone, in or on fish at 0.05 ppm and shellfish at 0.05 ppm. Suitable independently validated analytical methods (for animal matrices), LC/MS/MS, are submitted for detecting and measuring topramezone levels in or on food with an application LOD that is satisfactory for enforcing the requested tolerances. Contact: Bethany Benbow, (703) 347-8072, email address: benbow.bethany@epa.gov.

11. PP 2F8005. (EPA-HQ-OPP-2012-0308). K-I Chemical U.S.A., Inc., c/o Landis International, Inc., 3185 Madison Highway, P.O. Box 5126,Valdosta, GA 31603-5126, requests to establish tolerances in 40 CFR part 180 for residues of the herbicide pyroxasulfone (3-[(5-(difluoromethoxy)-1-methyl-3-(trifluoromethyl) pyrazole-4-ylmethylsulfonyl]-4,5-dihydro-5,5-dimethyl-1,2-oxazole) and its metabolites M-3 (5-difluoromethoxy-1-methyl-3-trifluoromethyl-1 H -pyrazol-4-carboxylic acid), M-25 (5-difluoromethoxy-3-trifluoromethyl-1 H -pyrazol-4-yl)methanesulfonic acid and M-28 (3-[1-carboxy-2-(5,5-dimethyl-4,5-dihydroisoxazol-3-ylthio)ethylamino]-3-oxopropanoic acid) calculated as the stoichiometric equivalent of pyroxasulfone, in or on soybean, seed at 0.07 ppm; and pyroxasulfone (3-[(5-(difluoromethoxy)-1-methyl-3-(trifluoromethyl) pyrazole-4-ylmethylsulfonyl]-4,5-dihydro-5,5-dimethyl-1,2-oxazole) and its metabolites M-1 (5-difluoromethoxy-1-methyl-3-trifluoromethyl-1 H -pyrazol-4-ylmethanesulfonic acid), M-3 (5-difluoromethoxy-1-methyl-3-trifluoromethyl-1 H -pyrazol-4-carboxylic acid), and M-25 (5-difluoromethoxy-3-trifluoromethyl-1 H -pyrazol-4-yl)methanesulfonic acid) calculated as the stoichiometric equivalent of pyroxasulfone in or on soybean, forage at 1.5 ppm and soybean, hay at 2.0 ppm. EPA has approved an analytical enforcement methodology including LC/MS/MS to enforce the tolerance expression for pyroxasulfone. Contact: Michael Walsh, (703) 308-2972, email address: walsh.michael@epa.gov.

1. PP 2E7993. (EPA-HQ-OPP-2012-0241). Interregional Research Project Number 4 (IR-4), 500 College Road East, Suite 201 W, Princeton, NJ 08540, requests to amend the tolerance in 40 CFR 180.300 by increasing the tolerance for residues of the plant regulator ethephon, in or on tomato from 2.0 ppm to 3.5 ppm. The increased tolerance is required to accommodate tomatoes of less than one inch in diameter grown in the greenhouse. Adequate methods for purposes of enforcement of ethephon tolerances in plant commodities, ruminant tissues and milk are available. The FDA (PAM Vol. I Appendix, 8/93) indicates that ethephon is not recovered through any of the Multiresidue Protocols. Contact: Andrew Ertman, (703) 308-9367, email address: ertman.andrew@epa.gov.

2. PP 2F7975. (EPA-HQ-OPP-2012-0246). Syngenta Crop Protection, LLC, P.O. Box 18300, Greensboro, NC 27419, requests to amend the tolerances in 40 CFR 180.434 for residues of the fungicide propiconazole, 1 H -1,2,4-Triazole, 1-([2-(4-dichlorophenyl)-4-propyl-1,3-dioxolan-2-yl]methyl)-, and its metabolites determined as 2,4-dichlorobenzoic acid and expressed as parent compound, in or on barley, hay from 1.4 ppm to 30 ppm; barley, straw from 10 ppm to 20 ppm; barley, grain from 0.3 ppm to 3 ppm; oat, forage from 1.7 ppm to 4 ppm; oat, hay from 1.4 ppm to 15 ppm; oat, grain from 0.3 ppm to 3 ppm; rye, forage from 1.7 ppm to 9 ppm; rye, straw from 10 ppm to 9 ppm; wheat, forage from 1.7 ppm to 15 ppm; wheat, hay from 1.4 ppm to 30 ppm; wheat, straw from 10 ppm to 20 ppm; and grain, aspirated fraction from 30 ppm to 108 ppm. Analytical methods adequate to determine parent propiconazole, total propiconazole as 2,4-dichlorobenzoic acid, and the triazole metabolites (1,2,4-Triazole, Triazole Alanine, and Triazole Acetic Acid) are available for enforcement purposes with LOD that allow monitoring of food with residues at or above the levels set in this tolerance. Contact: Heather Garvie, (703) 308-0034, email address: garvie.heather@epa.gov.

3. PP 2F7976. (EPA-HQ-OPP-2012-0282). Syngenta Crop Protection, LLC., P.O. Box 18300, Greensboro, NC 27419, requests to amend the tolerances in 40 CFR 180.507 for residues of the fungicide azoxystrobin (methyl ( E )-2-(2-[6-(2-cyanophenoxy) pyrimidin-4-yloxy]phenyl)-3-methoxyacrylate) and the Z isomer of azoxystrobin, (methyl ( Z )-2-(2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy] phenyl)-3-methoxyacrylate), in or on animal commodities cattle, fat from 0.03 ppm to 0.3 ppm; hog, fat from 0.010 ppm to 0.1 ppm and hog, meat from 0.01 to 0.02 ppm. An adequate analytical method, GC-NPD or in mobile phase by HPLC with ultra-violet (UV) detection (HPLC-UV), is available for enforcement purposes with a LOD that allows monitoring of food with residues at or above the levels set in these tolerances. The Analytical Chemistry section of the EPA concluded that the method(s) are adequate for enforcement. Analytical methods are also available for analyzing meat, milk, poultry and eggs which also underwent successful independent laboratory validations. Contact: Erin Malone, (703) 347-0253, email address: malone.erin@epa.gov.

4. PP 2F7981. (EPA-HQ-OPP-2007-0099). Nichino America, Inc., 4550 New Linden Hill Road, Suite 501, Wilmington, DE 19808, has requested that the established tolerances listed in 40 CFR 180.639 for residues of the insecticide flubendiamide per se, ( N 2 -[1,1-dimethyl-2-(methylsulfonyl)ethyl]-3-iodo- N 1 -[2-methyl-4-[1,2,2,2-tetrafluoro-1-(trifluoromethyl) ethyl]phenyl]-1,2-benzenedicarboxamide), in or on apple, wet pomace be increased from 2.0 ppm to 5.0 ppm; and fruit, pome, group 11 be increased from 0.70 ppm to 1.5 ppm. Adequate enforcement methodology, LC/MS/MS detection (Methods 00816/M002 and 00912), is available to enforce the tolerance expression. Contact: Carmen Rodia, (703) 306-0327, email address: rodia.carmen@epa.gov.

5. PP 2F7984. (EPA-HQ-OPP-2012-0283). Syngenta Crop Protection, LLC., P.O. Box 18300, Greensboro, NC 27419, requests to amend the tolerances in 40 CFR 180.507 for residues of the fungicide azoxystrobin (methyl ( E )-2-(2-[6-(2-cyanophenoxy) pyrimidin-4-yloxy]phenyl)-3-methoxyacrylate) and the Z isomer of azoxystrobin, (methyl ( Z) -2-(2-[6-(2-cyanophenoxy)pyrimidin-4-yloxy] phenyl)-3-methoxyacrylate), in or on barley, hay from 15 ppm to 7 ppm; barley, straw from 7 ppm to 8 ppm; barley, grain from 3 ppm to 2 ppm; wheat, forage from 25 ppm to 10 ppm; wheat, hay from 15 ppm to 20 ppm; wheat, straw from 4 ppm to 6 ppm and grain, aspirated fraction from 420 ppm to 460 ppm and in or on the animal commodities cattle, fat from 0.03 ppm to 0.3 ppm; hog, fat from 0.010 ppm to 0.1 ppm and hog, meat from 0.01 to 0.02 ppm. An adequate analytical method, GC-NPD or in mobile phase by HPLC with ultra-violet (UV) detection (HPLC-UV), is available for enforcement purposes with a LOD that allows monitoring of food with residues at or above the levels set in these tolerances. The Analytical Chemistry section of the EPA concluded that the method(s) are adequate for enforcement. Analytical methods are also available for analyzing meat, milk, poultry and eggs which also underwent successful independent laboratory validations. Contact: Erin Malone, (703) 347-0253, email address: malone.erin@epa.gov.

This is a summary of Commission's document, Report No. 2951, released May 17, 2012. The full text of this document is available for viewing and copying in Room CY-B402, 445 12th Street SW., Washington, DC or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160). The Commission will not send a copy of this Notice pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A), because this Notice does not have an impact on any rules of particular applicability.

Subject: Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, published at 77 FR 19480, March 30, 2012, and published pursuant to 47 CFR 1.429(e). See 1.4(b)(1) of the Commission's rules (47 CFR 1.4(b)(1)).

Number of Petitions Filed: 3.

I. Background

The Magnuson-Stevens Act authorizes the Secretary of Commerce (Secretary) to regulate domestic fisheries within the 200-mile U.S. Exclusive Economic Zone (EEZ). 16 U.S.C. 1811. Conservation and management of fish stocks is accomplished through Fishery Management Plans (FMPs). Eight regional fishery management councils (Councils) prepare FMPs and amendments to those plans for fisheries within their jurisdiction. Id. 1853. The Secretary has exclusive authority to prepare and amend FMPs for highly migratory species in the Atlantic Ocean. Id. 1852(a)(3), 1854(g).

Information collection is an important part of the fishery management process. Conservation and management measures in FMPs and in their implementing regulations must be based on the best scientific information available (see National Standard 2, 16 U.S.C. 1851(a)(2)). Under section 303(a)(5) of the Magnuson-Stevens Act, any Fishery Management Plan a Council or the Secretary prepares must specify the pertinent information to be submitted to the Secretary with respect to commercial, recreational, or charter fishing, and fish processing in the fishery. Id. 1853(a)(5). In addition, section 303(b)(8) provides that an FMP may require that one or more observers be carried onboard a vessel for the purpose of collecting data necessary for the conservation and management of the fishery. Id. 1853(b)(8).

The Magnuson-Stevens Act sets forth information confidentiality requirements at section 402(b), 16 U.S.C. 1881a(b). Under the Act as amended, the Secretary must maintain the confidentiality of any information that is submitted in compliance with the Act and any observer information. The MSA includes exceptions to these confidentiality requirements. Some exceptions allow for the sharing of confidential information with specified entities provided that these parties treat the information as confidential, while others allow for the release of information without restrictions. In addition, the MSA authorizes the Secretary to disclose information that is subject to the Act's confidentiality requirements in “any aggregate or summary form which does not directly or indirectly disclose the identity or business of any person who submits such information.” Id. 1881a(b)(3).

Section 402(b)(3) of the Act provides that the “Secretary shall, by regulation, prescribe such procedures as may be necessary to preserve the confidentiality of information submitted in compliance with any requirement or regulation under this Act * * *”. Id. 1881a(b)(3). Accordingly, NMFS has promulgated confidentiality regulations, which are set forth at 50 CFR part 600, subpart E. Certain terms used in these regulations are defined under 50 CFR part 600, subpart A. NMFS last revised the regulations under subpart E in February 1998 (63 FR 7075). The revisions were non-substantive.

NMFS now proposes substantive and non-substantive revisions to its regulations at 50 CFR part 600 subpart A, subpart B, and subpart E in order to implement confidentiality requirements amendments, which were included in the 1996 SFA and the 2006 MSRA. NMFS proposes additional revisions to address some significant issues that have arisen in the day-to-day application of the MSA confidentiality provisions to information requests. These proposed revisions seek to balance the mandate to protect confidential information with exceptions that authorize disclosure of information to advance fishery conservation and management, scientific research, enforcement, and transparency in fishery management actions.

The proposed rule is informed by other statutes that NMFS administers, including the Marine Mammal Protection Act (MMPA), the Endangered Species Act (ESA), and the Freedom of Information Act (FOIA). Development of this proposed rule required NMFS to interpret several statutory provisions, including provisions for release of information in aggregate or summary form, a limited access program exception, and provisions regarding observer information. Accordingly, NMFS highlights these elements of the proposed rule in the discussion below and seeks public comment on options and alternatives for these and other aspects of the proposed rule.

Below, NMFS provides information on three types of proposed changes. NMFS begins with proposed changes that concern the expanded scope of the confidentiality requirements. Next, NMFS presents changes that concern exceptions allowing for the disclosure of confidential information. Lastly, NMFS presents changes necessary to improve the clarity of the regulations.

Because statutory amendments have broadened the scope of the MSA's confidentiality requirements, NMFS proposes corresponding regulatory changes. At the MSA's enactment, its confidentiality requirements applied to “[a]ny statistics submitted to the Secretary” in compliance with an FMP. Public Law 94-265, Title III, 303(d) (1976). Congress broadened the confidentiality requirements through the 1996 SFA, Public Law 104-297 (1996), in two respects. First, the 1996 SFA substituted the word “information” for “statistics.” Id. 203. As a result, the statute's confidentiality requirements protected “any information submitted to the Secretary” in compliance with an FMP. The 1996 SFA also expanded the confidentiality requirements to apply not just to information submitted in compliance with an FMP, but to information submitted in compliance with “any requirement or regulation” under the Act. Id. Accordingly, NMFS' proposed rule would update the confidentiality regulations under 50 CFR part 600 to reflect the changes to the law made in 1996.

In addition, this proposed rule would implement further broadening of the confidentiality requirements made by the 2006 MSRA, Public Law 109-479 (2007). Prior to the 2006 MSRA, the confidentiality requirements applied only to information submitted to the Secretary in compliance with any requirement or regulation under the Magnuson-Stevens Act. The 2006 MSRA amended the confidentiality requirements at section 402(b) of the Magnuson-Stevens Act, 16 U.S.C. 1881a(b), to include information submitted to a State fishery management agency or a Marine Fisheries Commission in compliance with a requirement or regulation under the Act. Public Law 109-479, Title II 203. The 2006 MSRA also amended the confidentiality requirements to apply to any observer information, which is now defined under section 3(32) of the Magnuson-Stevens Act. 16 U.S.C. 1802(3)(32).

Specifically, NMFS proposes making the following changes to its regulations in order to implement these amendments to the scope of the MSA confidentiality requirement:

1. Replacing the term “statistics” with “information” in 50 CFR 600.130 and in all regulations under 50 CFR subpart E;

2. Outlining procedures to preserve the confidentiality of all information submitted to the Secretary, a State fishery management agency, or a Marine Fisheries Commission by any person in compliance with the requirements of the Magnuson-Stevens Act. (§ 600.410(b));

3. Deleting the definition of “confidential statistics” and adding a definition for “confidential information” (§ 600.10); and

4. Adding a definition for observer employer/observer provider (§ 600.10). Fisheries observer programs are predominantly contractors hired through private observer employer/observer provider companies. These companies provide qualified persons to perform observer duties on vessels engaged in fishing for species managed under the MSA. NMFS proposes the definition to ensure that observer employer/observer provider companies properly handle information that is required to be maintained as confidential under the MSA.

The MSA's confidentiality requirements are also subject to a number of exceptions that apply if certain conditions are satisfied. Some exceptions allow NMFS to share confidential information with other entities provided that the recipients will maintain it as confidential, while other exceptions allow for the disclosure of confidential information even if the confidentiality will not be maintained by the recipients. In addition, a provision of the MSA authorizes the Secretary to aggregate or summarize information that is subject to the Act's confidentiality requirements into a non-confidential form “which does not directly or indirectly disclose the identity or business of any person who submits such information.” 16 U.S.C. 1881a(b)(3). Non-confidential aggregate or summary form information may be released to the public.

NMFS proposes regulatory changes to address significant issues that concern application of exceptions to the confidentiality requirements and the aggregation and summarization provision. NMFS presents these changes in the following order: First, substantive changes addressing disclosure of confidential information without requiring the recipient to keep it confidential; next, substantive changes addressing disclosure of aggregated or summarized confidential information; and finally, non-substantive changes regarding the sharing of confidential information with other entities provided that it remains confidential.

The following changes would implement exceptions that authorize the disclosure of confidential information without further restrictions on its disclosure. Public comments on these provisions, numbered 1-4 below, are especially important, because they propose disclosures where NMFS does not require the recipients to maintain confidentiality.

1. Exception for release of information required to be submitted for a determination under a limited access program: While MSA section 402(b) generally provides for confidentiality of information, section 402(b)(1)(G) provides an exception for information that is “required to be submitted to the Secretary for any determination under a limited access program.” Id. 1881a(b)(1)(G). The scope of this exception depends on how the terms “limited access program” and “determination” are defined, and because the statute offers no definitions, NMFS now proposes definitions for these terms. NMFS' interpretation of this exception is important for fisheries managed under limited access programs, because disclosure of information could advance the transparency of the decision-making process and provide those seeking privileges, and privilege holders, with information that may be necessary for an appeal of a determination under a limited access program. However, because MSA section 402(b) generally requires confidentiality, NMFS must consider carefully the breadth of its interpretation of the exception under 402(b)(1)(G). NMFS seeks public comment on the below proposed approaches to “limited access program,” “determination,” and the information to be covered under the exception, and alternative approaches that NMFS might consider.

As explained above, the MSA does not define “limited access program” as that term appears in section 402(b), and the interpretations of the term could range across a wide spectrum. At one end of the spectrum, NMFS could broadly interpret “limited access program” under section 402(b) as meaning “limited access system,” which is defined at MSA section 3(27). If NMFS takes this approach, the definition would allow very broad disclosure, applicable to any fishery in which participation is limited to “those satisfying certain eligibility criteria or requirements contained in a fishery management plan or associated regulation.” See 16 U.S.C. 1802(27) (defining limited access system); see also id. 1853(b)(6) (setting forth requirements for establishing limited access system). At the other end of the spectrum, NMFS could more narrowly interpret “limited access program” as only MSA section 303A limited access privilege programs (LAPPs). 16 U.S.C. 1853a. See also id. 1802(26) (defining “limited access privilege”).

While NMFS encourages comments on the full range of interpretations available for the term, at this time NMFS does not propose to interpret “limited access program” as meaning either a “limited access system” or a “limited access privilege program.” Taking into account these terms, different potential interpretations of section 402(b)(1)(G), and prior and ongoing work in developing LAPP and LAPP-like programs, NMFS proposes a moderately broad interpretation, defining the term “limited access program” to mean a program that allocates privileges, such as a portion of the total allowable catch (TAC), an amount of fishing effort, or a specific fishing area to a person as defined by the MSA. Information required to be submitted for a determination for such programs could be disclosed.

This interpretation of limited access program would include specific types of programs defined under the MSA, such as section 303A LAPPs and Individual Fishing Quotas (MSA 3(23)). It would also include other management programs not specifically mentioned in the Act, such as programs that allocate a TAC, or a portion of a TAC, to a sector or a cooperative, and programs that grant an exclusive privilege to fish in a geographically designated fishing ground. The Act does not preclude the development of other management programs that are similar to LAPPs but fall outside the section 303A requirements and provisions; the definition of “limited access program” could apply to them as well, allowing disclosure of information submitted for determinations under such programs.

It is also possible to interpret “determination” under MSA 402(b)(1)(G) in many different ways. On the one hand, “determination” could mean any decision that NMFS makes for a fishery managed under a limited access program. Alternatively, it could mean those determinations that are more specific to limited access programs, like NMFS' allocation and monitoring of fishing privileges. Privileges allocated and monitored under limited access programs include limited access privileges, individual fishing quotas, a sector's annual catch entitlement, and other exclusive allocative measures such as a grant of an exclusive privilege to fish in a geographically designated fishing ground.

NMFS proposes the latter approach: defining “determination” to mean a grant, denial, or revocation of privileges; approval or denial of a transfer of privileges; or other similar NMFS regulatory determination applicable to a person. “Person” is already defined under MSA section 3(36), and a determination that generally concerns a fishery, such as a stock assessment, would not be considered a “determination under a limited access program.” This approach seeks to enhance the transparency of NMFS' administration of limited access programs and enable parties to have information necessary for appealing determinations.

It is important to note that the statutory exception in MSA 402(b)(1)(G) applies regardless of whether NMFS actually has made a determination. Therefore, NMFS' proposed rule would allow for release of information required to be submitted for a determination, even if NMFS has not made one. Information could be disclosed under the exception if there are sufficient facts suggesting that NMFS will use the information to make a determination, such as where participants in a limited access program submit information to NMFS for it to determine whether the participants have fished within their allocated privileges. The information would be immediately releasable even if NMFS has not made its determination.

Similarly, prior landing information would be releasable if a Council had submitted an FMP or plan amendment for a limited access program for Secretarial approval and NMFS issued a notice in the Federal Register stating that it will use prior landings data for initial allocation determinations under a proposed limited access program. However, the exception would not be applicable where a Council is merely considering developing a limited access program. In that case, there would be insufficient facts to support a conclusion that information was submitted to NMFS for it to make a determination under a limited access program.

NMFS believes that the proposed rule approach will enhance accuracy in limited access program implementation. For example, by making catch histories available before making initial allocation determinations, fishermen can verify the accuracy of the information.

NMFS has considered several issues related to the scope of information to be covered under the limited access program exception to the confidentiality requirements. Specifically, NMFS has considered tailoring information releases to the relevant determination, maintaining medical and other information as confidential, releasing limited access program information submitted prior to the MSRA, and releasing information that was initially submitted for non-limited access program reasons. NMFS solicits public comment on its proposed approaches to these four issues, as described below, and also on other potential approaches for addressing the scope of information to be covered under the exception.

NMFS proposes that information releases be tailored for release at the level of the relevant limited access program determination. Thus, information submitted by a specific vessel for a determination about that vessel would be released at the vessel level. However, information submitted by a sector for a determination related to all vessels that operate in the respective sector would be released at the sector level. For example, the Georges Bank Cod Hook Sector is required to submit information on the vessel catch or effort history, and NMFS uses this information to determine whether the Sector is complying with its approved Sector Operations Plan. In this instance, information would be released at the sector level. There may, however, be instances where NMFS uses a sector's data to make determinations about each vessel within the sector. In such cases, information would be released at the vessel level.

NMFS has considered that medical and other personal information may be used for certain determinations under limited access programs and therefore would be within the scope of the confidentiality exception contemplated by subparagraph 402(b)(1)(G). For example, shareholders under the North Pacific Sablefish and Halibut Individual Transferable Quota (ITQ) program must submit such information to support an application for a medical transfer under the regulations. In such cases, NMFS would consider whether Exemption Six of the Freedom of Information Act applies to the information. 5 U.S.C. 552(b)(6). Exemption Six authorizes the withholding of information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” Id. There may be other instances where NMFS applies applicable FOIA Exemptions to information that is otherwise releasable under subparagraph 402(b)(1)(G).

NMFS is considering the treatment of information previously maintained as confidential. Prior to the enactment of the MSRA, a number of fisheries were managed under limited access programs. NMFS required information to be submitted for determinations under these programs. Accordingly, development of these confidentiality regulations requires consideration of whether the confidentiality exception in MSA section 402(b)(1)(G) applies to information submitted prior to the passage of the MSRA.

Congress did not expressly say whether MSA 402(b)(1)(G) applies to information submitted prior to enactment of the 2006 MSRA. NMFS believes there are two approaches to this issue. NMFS could apply the exception to all limited access program information submitted to NMFS, regardless of when the information was submitted. Under this approach, NMFS could release information pursuant to this exception even if the information had been submitted prior to enactment of the MSRA. This approach reflects an application of current law, in that the limited access program exception would be applied to NMFS' post-MSRA handling of information. Alternatively, NMFS could apply the exception only to information which has been required to be submitted at a point after enactment of the MSRA. This approach recognizes that when people submitted information pre-MSRA, they may have had a different understanding of what information NMFS could release than that which the current law permits.

NMFS is inclined to apply the exception for limited access program information without regard to when a person submitted information to the agency. Applying the current law in a manner favoring disclosure would enhance transparency as to the historical distribution of resources under limited access programs and allow prospective purchasers of fishing permits to have greater access to permit catch histories. Although NMFS is disinclined to adopt an approach that would apply the exception for limited access information based on the timing of the submission of the information, the agency is interested in public comment on this approach and other potential approaches. NMFS also specifically seeks comment on how the preferred approach or others would affect business or other interests, including comments on expectations of, or reliance on, confidentiality protections.

In addition, NMFS notes that non-limited access program fisheries may, through appropriate Council or Secretarial action, transition to limited access programs. In these situations, information submitted under a non-limited access program fishery may later be relevant for determinations regarding privileges under a newly established limited access program. For the same reasons discussed above, and to promote efficiency and reduce reporting requirements on the regulated industry, NMFS proposes that information previously submitted under non-limited access program fisheries that it uses or intends to use for determinations under newly established limited access programs be treated as within the scope of the confidentiality exception under subparagraph 402(b)(1)(G). NMFS seeks public comment on this proposed approach and other approaches to this issue.

2. Exception for release of information required under court order: Magnuson-Stevens Act section 402(b)(1)(D) provides an exception for the release of confidential information when required by court order. 16 U.S.C. 1881a(b)(1)(D). Information disclosed under this exception may become part of a public record. To clarify when this section applies, NMFS proposes definitions for “court” and “order” which make clear that the exception applies only to orders issued by a federal court (§ 600.425(d)). In developing these definitions, NMFS considered whether an order from a state court was within the scope of MSA section 402(b)(1)(D). Unless expressly waived by Congress, sovereign immunity precludes state court jurisdiction over a federal agency. In NMFS' view, Congress has not waived sovereign immunity through MSA section 402(b)(1)(D). Therefore, under this proposed rule, NMFS would not honor state court orders as a basis for disclosure of confidential information. State court orders would be handled under 15 CFR part 15, subpart A, which sets forth the policies and procedures of the Department of Commerce regarding the production or disclosure of information contained in Department of Commerce documents for use in legal proceedings pursuant to a request, order, or subpoena.

3. Exception for release of information to aid law enforcement activity: This proposed rule would add text to address sections 402(b)(1)(A) and (C) of the Magnuson-Stevens Act, which provide that confidential information may be released to federal and state enforcement personnel responsible for fishery management plan enforcement. (§ 600.425(e)). The proposed rule would allow enforcement personnel to release confidential information during the enforcement of marine natural resources laws. In such cases, previously confidential information may become part of a public record.

4. Exception for release of information pursuant to written authorization: Section 402(b)(1)(F) of the Magnuson-Stevens Act allows for the release of confidential information “when the Secretary has obtained written authorization from the person submitting such information to release such information to persons for reasons not otherwise provided for in this subsection, and such release does not violate other requirements of this Act.” 16 U.S.C. 1881a(b)(1)(F). Through this rulemaking, NMFS proposes procedures to ensure that the written authorization exception is utilized only by the person who submitted the information. To that end, NMFS proposes that a person who requests disclosure of information under this exception prove their identity by a statement consistent with 28 U.S.C. 1746, which permits statements to be made under the penalty of perjury as a substitute for notarization.

Generally, the holder of the permit for a vessel, or the permit holder's designee, will be considered the person who submitted information in compliance with the requirements of the MSA. In cases where requirements to provide information are not tied to a permit, the person who is required to submit the information and is identified in the information as the submitter may execute the written authorization for that information. In most cases, the identity of the submitter of information will be the person who signed the document provided to NMFS. For example, the regulation that implements the MSA financial interest disclosure provision requires that persons nominated for appointment to a regional fishery management council file a signed financial interest form. 16 U.S.C. 1852(j). As the person who is required to submit and sign the financial interest form, a Secretarial nominee would be considered the submitter of the form and, as such, would be able to authorize its disclosure. NMFS intends to develop and make available a model “authorization to release confidential information” form.

In the context of the observer information provisions of MSA section 402(b), the written authorization exception is subject to different interpretations. The exception applies when the “person submitting” information requests release of such information. MSA section 402(b)(2) provides for disclosure of observer information under the written authorization exception but does not identify who the “person submitting” that information is. Accordingly, to apply the written authorization exception to observer information, the submitter of observer information must be identified.

A further complication is that observer programs collect and create different types of observer information for fishery conservation and management. The primary category of observer information is information that is used for scientific and management purposes. Among other things, the Magnuson-Stevens Act requires that fishery management plans specify pertinent data on fishing and fish processing to be submitted to the Secretary, including but not limited to the type and quantity of fishing gear used, catch in numbers of fish or weight thereof, areas in which fishing was engaged in, and economic information. 16 U.S.C. 1853(a)(5). The Act also requires establishment of standardized bycatch reporting methodology. Id. 1853(a)(11). To obtain this and other information, FMPs may require that vessels subject to the plan carry one or more observers. Id. 1853(b)(8).

In addition, NMFS' regional observer programs have established administrative procedures through which observers create information for program operation and management. Information created through these administrative procedures is used to review observer performance, evaluate the observer's data and collection methodology, and to assess any reports of non-compliance with fishery regulations. More generally, observer programs use this information to evaluate the overall effectiveness of the observer program. Program administrative procedures generally require observers to maintain an official logbook (also referred to as field notes, a journal or diary) that includes technical information related to collection and sampling methodologies and notes that concern their work while deployed on a vessel. Following completion of a fishing trip, observers use their logbooks and their general recollection of the fishing trip to answer post-trip debriefing questions during a debriefing process. Debriefings are generally conducted by NMFS personnel at NMFS facilities, although some observer programs may have debriefings conducted at observer provider offices by observer provider supervisory personnel. NMFS, or the observer provider as appropriate, compiles the observer's responses into a post-trip debriefing report. Observer providers that are tasked with administration of observer debriefings are required to provide debriefing reports to NMFS.

NMFS is interested in public comment on different options for applying the written authorization exception to observer information. As discussed above, it is unclear what observer information is submitted and who acts as the “person submitting” observer information. One approach would be to treat the permit holder as the person who submits both types of observer information. That is, the permit holder would be the person who submits observer information collected for scientific and management purposes and observer information created for administration of the observer program. A second option would be to treat the observer, or the observer's employer, as the person who submits both types of observer information. A third option would be to treat the permit holder as the submitter of observer information collected for scientific and management purposes but not as the submitter of observer information that is created for program administration (e.g, field notes, journals, or diaries). Under this option, there would be no submitter of observer information that is created for program administration. Rather, this information would be treated as internal program information and not subject to the written authorization exception.

In light of the ambiguity in the statute, and recognizing the different purposes for the two types of observer information, NMFS is proposing to apply the third approach and is disinclined to adopt the other two options. However, NMFS will consider the other two options following public comment.

Under NMFS' proposed approach, permit holders would be considered the submitters of information collected for scientific and management purposes and would therefore be allowed to authorize release of that information. On the other hand, there would be no “submitter” of observer information created for administration of the observer program and it would be treated as internal program information. As such, this information would not be subject to disclosure to the permit holder under the written authorization exception or under FOIA. In withholding debriefing reports, NMFS would apply FOIA Exemption Three, which, as explained above, authorizes the withholding of information that is prohibited from disclosure under another Federal statute. Here, MSA section 402(b)(2) requires the withholding of observer information.

NMFS believes that this approach is consistent with the definition of “submit.” Observers submit information collected for scientific and management purposes to the respective observer programs but do so on behalf of the permit holder that is required to carry an observer. Observer information compiled for administration of the observer program, including information set forth in observer logbooks, journals, or diaries and the information in observer debriefing reports, is not “submitted” information. Rather, this information is created through program administrative procedures and should be treated as internal program information.

In addition, NMFS believes that the third approach is consistent with the purpose of the written authorization exception, which is to provide permit holders and other submitters of information with access to information that concerns their business and that was obtained by NMFS through a person's compliance with a requirement or regulation under the Magnuson-Stevens Act.

NMFS proposes regulatory definitions to ensure protection for business information. The MSA at section 402(b)(3) provides that “the Secretary may release or make public any information submitted in compliance with any requirement or regulation under the Magnuson-Stevens Act in any aggregate or summary form which does not directly or indirectly disclose the identity or business of any person who submits such information.” 16 U.S.C. 1881a(b)(3). Under this provision, the Secretary, acting through NMFS, may aggregate and summarize information that is subject to the Act's confidentiality requirements into a non-confidential form. The application of the provision's language directly corresponds to the level of protection afforded to information that is subject to the MSA confidentiality requirements. Current agency regulations include a definition of “aggregate or summary form” that allows for the public release of information subject to the confidentiality requirements if the information is “structured in such a way that the identity of the submitter cannot be determined either from the present release of the data or in combination with other releases.” § 600.10. The regulations also state that the Assistant Administrator for Fisheries will not release information “that would identify the submitter, except as required by law.” Id. § 600.425(a). As a result, information may be disclosed in any aggregate or summary form that does not disclose the identity of a submitter. These regulations focus on protection of submitters' identity, but this approach does not provide any specific protection for submitters' “business” information.

NMFS reviewed the legal and policy basis for this approach as part of its development of revised regulations for implementation of the 2006 MSRA and the 1996 SFA. It appears that NMFS has historically interpreted the two different elements of MSA 402(b)(3)—“identity of any person” and “business of any person”—to mean submitters' identifying information, including that which would identify them personally and that which would identify their businesses. NMFS has reassessed the application of MSA section 402(b)(3) and, based on this reassessment, believes that Congress intended the MSA confidentiality provision to protect a broader scope of information than that which would identify submitters. Therefore, NMFS proposes to revise the regulatory definition of “aggregate or summary form” to protect against the disclosure of the “business of any person” and proposes to add a specific definition for “business of any person” that would provide broader protection for information submitted in compliance with the MSA and any observer information.

The statutory language “business of any person” is ambiguous, and NMFS acknowledges that it could be subject to different interpretations. As explained above, NMFS has historically interpreted this language to mean only the identity or name of a person's business such as “ABC Fishing Company.” NMFS believes that a broader interpretation is more consistent with congressional intent and legal rules for interpretation of statutes. Therefore, NMFS proposes to clarify “business of any person” by defining it at § 600.10 as meaning financial and operational information. Financial information would include information in cash flow documents and income statements, and information that contributes to the preparation of balance sheets. Operational information would include fishing locations, time of fishing, type and quantity of gear used, catch by species in numbers or weight thereof, number of hauls, number of employees, estimated processing capacity of, and the actual processing capacity utilized, by U.S. fish processors. By providing these definitions, NMFS limits releases to an aggregate or summary form which does not disclose the specified financial and operational information of a person.

When responding to FOIA requests for MSA confidential information, NMFS takes into consideration FOIA Exemption Three, 5 U.S.C. 552(b)(3), and other relevant FOIA exemptions. FOIA Exemption Three applies to information that is exempted from disclosure by another statute. NMFS interprets MSA section 402(b) to exempt from disclosure information that would directly or indirectly disclose the identity or business of any person. As explained above, this proposed rule would require NMFS to consider both factors—not just identity—when applying the aggregate or summary form provisions of the regulations. While this could result in more information being withheld, NMFS believes that detailed and useful information will continue to be disclosed under the aggregate or summary form provisions. NMFS intends to develop, and make available for public comment, aggregation guidelines based on the definition for aggregate or summary form and other elements of the final MSA confidentiality rule. NMFS' preferred option is to adopt an approach that requires protection of submitters' business information. Accordingly, the agency is disinclined to continue to allow for the disclosure of aggregated or summarized information that protects only submitters' identifying information. However, NMFS seeks specific public comment on the proposed definitional changes and other potential options to aggregation and summarization of information subject to the confidentiality requirements.

In developing this proposed rule, NMFS considered whether its definition for “business of any person” should include observer information that concerns interactions with protected species. As discussed above, NMFS may release MSA confidential information in “aggregate or summary form,” which would “not directly or indirectly disclose the identity or business of any person.” By excluding observer information that concerns interactions with protected species from the definition of “business of any person,” observer information could be released publicly in aggregate or summary form as long as it would not directly or indirectly result in disclosure of the identity of the vessel involved in the interaction. Thus, in most cases, NMFS would be able to disclose specific details of interactions with protected species.

Release of observer information that concerns interactions with protected species would advance implementation of statutory mandates under the MMPA and the ESA. For example, this information is critical for deliberations by Take Reduction Teams (TRT) that are convened under section 118(f)(6)(A) of the MMPA. 16 U.S.C. 1387(f)(6)(A)(i). TRTs established under the MMPA must meet in public and develop plans to reduce incidental mortality and serious injury of marine mammals in the course of commercial fishing operations. See Id. at 1387(f)(6)(D) (public meetings) and 1387(f) (development of take reduction plans). Specific details about interactions with marine mammals that occurred during commercial fishing operations are critical to developing a plan. Id. 1387(f). This information is often available only through observer records. Without detailed observer information on interactions with protected species, TRTs may be unable to develop targeted plans to reduce bycatch of protected species.

Detailed information on interactions with protected species may also facilitate implementation of the ESA. NMFS may need to present detailed information about commercial fisheries interactions with species listed under the ESA in a biological opinion. See § 402.14(g)(8) (requirements for biological opinions). Furthermore, both the MMPA and the ESA require that NMFS use the best available scientific information when making determinations. 16 U.S.C. 1386(a) (MMPA stock assessments) and 16 U.S.C. 1536(c)(1) (ESA biological assessments).

For these reasons, NMFS proposes that the definition of “business of any person” exclude the following observer information on protected species interactions: species of each marine mammal or ESA-listed species incidentally killed or injured; the date, time, and geographic location of the take; and information regarding gear used in the take that would not constitute a trade secret under FOIA, 5 U.S.C. 552(b)(4). While excluding observer information that concerns interactions with protected species from the definition of “business of any person” would advance MSA, ESA, and MMPA mandates, NMFS recognizes that it would also result in the public disclosure of specific information collected by observers during fishing operations. For example, the location of an interaction with a protected species would, in some cases, identify where a vessel fished.

Because observer information that concerns interactions with protected species could also be viewed as a vessel's operational information, NMFS seeks public comments on this proposed approach and other potential approaches to this issue. Although NMFS is disinclined to define “business of any person” to include observer information that concerns interactions with protected species, the agency will consider viable approaches other than its proposed interpretation.

NMFS proposes the following changes concerning confidentiality requirement exceptions that allow for information to be shared with other entities, provided that specified precautions protect the information.

1. Adding procedures that authorize the sharing of observer information between observer employer/observer providers for observer training or to validate the accuracy of the observer information collected. (§ 600.410(c)(4)).

2. Adding procedures that authorize the disclosure of confidential information in support of homeland and national security activities. (§ 600.415(c)(3)).

3. Adding procedures that authorize the disclosure of confidential information to State employees responsible for fisheries management. (§ 600.415(d)).

4. Adding procedures that authorize the disclosure of confidential information to State employees responsible for FMP enforcement pursuant to a Joint Enforcement Agreement with the Secretary. (§ 600.415(e)).

5. Adding procedures that authorize the disclosure of confidential information to Marine Fisheries Commission employees. (§ 600.415(f)).

6. Revising procedures under which confidential information can be disclosed to Council members for use by the Council for conservation and management purposes. (§ 600.415(g)(2)). Under MSA section 402(b)(3), the Secretary may approve a Council's use of confidential information for conservation and management purposes. 16 U.S.C. 1881a(b)(3). NMFS' current confidentiality regulations implement this authority under § 600.415(d)(2). That regulation authorizes the Assistant Administrator, NOAA Fisheries (AA), to grant a Council access to confidential information upon written request by the Council Executive Director. In determining whether to grant access, the AA must consider, among other things, the “possibility that the suppliers of the data would be placed at a competitive disadvantage by public disclosure of the data at Council meetings or hearings.” Id. During development of this proposed action, a question was raised regarding whether this text allows public disclosure of information that was released to a Council under this procedure. As MSA section 402(b)(3) provides for disclosure of information for use by a Council, NMFS proposes to clarify and revise § 600.415(d)(2)(ii) by removing the “public disclosure” text.

7. Adding procedures to authorize release of confidential information to a Council's scientific and statistical committee (SSC). (§ 600.415(g)(3)). Under the Magnuson-Stevens Act as amended by the 2006 MSRA, Councils must establish, maintain, and appoint the members of an SSC. 16 U.S.C. 1852(g)(1)(A). Members appointed by Councils to SSCs shall be Federal or State employees, academicians, or independent experts. Id. 1852(g)(1)(C). The role of the SSC is, among other things, to assist the Council in the development, collection, evaluation and peer review of statistical, biological, economic, social, and other scientific information as is relevant to the Council's development and amendment of any FMP. Id. 1852(g)(1)(A). Furthermore, the SSC is required to provide its Council ongoing scientific advice for fishery management decisions, including, among other things, recommendations for acceptable biological catch and preventing overfishing and reports on stock status and health, bycatch, and social and economic impacts of management measures. Id. 1852(g)(1)(B). To carry out these responsibilities, SSC members may need to evaluate confidential information. NMFS may release confidential information to Federal and State employees appointed to a Council's SSC as provided under Magnuson-Stevens Act section 402(b)(1)(A) and (B). However, the existing confidentiality regulations do not address release of confidential information to academicians or independent experts appointed to an SSC. Because all members of a Council's SSC may need to evaluate confidential information, NMFS proposes to add procedures through which a Council can request, through its Executive Director, that members of the Council's SSC that are not Federal or State employees be granted access to confidential information.

NMFS proposes to add this procedure pursuant to Magnuson-Stevens Act section 402(b)(3), which authorizes the Secretary to approve the release and use of confidential information by a Council for fishery conservation and management. Given the statutory role that a Council's SSC has in development and amendment of any FMP, NMFS believes that establishing a process for releasing confidential information to an SSC is consistent with the statutory authorization that allows a Council to use confidential information for fishery conservation and management. NMFS recognizes the concern that members of a SSC, who are not Federal or State employees, may gain personal or competitive advantage through access to confidential information. To address this concern, the proposed procedures would require the AA to approve any request from a Council Executive Director that confidential information be released to the Council for use by SSC members who are not Federal or State employees. In making a decision regarding such a request, the AA must consider whether those SSC members might gain personal or competitive advantage from access to the information.

8. Adding procedures that authorize the release of observer information when the information is necessary for proceedings to adjudicate observer certifications. (§ 600.425(b)).

NMFS proposes the following non-substantive changes intended to improve the clarity and accuracy of the regulations.

1. Removing the existing language at § 600.410(a)(2) that states “After receipt, the Assistant Administrator will remove all identifying particulars from the statistics if doing so is consistent with the needs of NMFS and good scientific practice.”

Through experience, NMFS has found that maintaining identifying information is necessary for programmatic needs, including FMP monitoring, quota share allocations, capacity modeling, and limited access program development. Accordingly, NMFS would no longer require the removal of identifiers from confidential information when NMFS uses the information to complete programmatic actions. However, NMFS would preserve the confidentiality of identifying information unless an exception allows for release.

2. The authorization to disclose information under section 402(b)(1)(B), as amended by the MSRA and codified in the United States Code, appears to have a typographical error. Prior to the MSRA, section 402(b)(1)(B) authorized the release of confidential information to “State or Marine Fisheries Commission employees pursuant to an agreement with the Secretary that prevents the public disclosure of the identity or business of any person.” Section 402(b)(1)(B) as amended by the MSRA provides that confidential information may be disclosed “to State or Marine Fisheries Commission employees as necessary to further the Department's mission, subject to a confidentiality agreement that prohibits public disclosure of the identity of business of any person.” NMFS believes that this was a typographical error, and that Congress intended the text to say “identity or business,” consistent with how that phrase appears in section 402(b)(3). As such, this proposed rule uses the phrase “identity or business” with regard to the section 402(b)(1)(B) text.

The NOAA Fisheries Assistant Administrator has determined that this proposed rule is consistent with the Magnuson-Stevens Act and other applicable law, subject to further consideration after public comment.

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

This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

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, as follows:

Under section 402(b)(3) of the MSA, the Secretary of Commerce is required to prescribe by regulation procedures necessary to maintain the confidentiality of information submitted in compliance with the Act. These regulations are set forth at 50 CFR part 600, subparts B and E. Certain terms used in these regulations are defined under 50 CFR part 600, subpart A. This proposed action would revise 50 CFR part 600, subparts, A, B and E to conform with requirements of the Magnuson-Stevens Act as amended by the 2006 Magnuson-Stevens Fishery Conservation and Management Reauthorization Act and the 1996 Sustainable Fisheries Act. Specifically, this proposed action requires the confidentiality of information collected by NMFS observers, revises exceptions that authorize the disclosure of confidential information, and adds three new disclosure exceptions. In addition, this action includes proposed revisions to implement the 1996 Sustainable Fisheries Act and to update the regulations to reflect NMFS' policy on the release of MSA confidential information in an aggregate or summary form.

This proposed action applies only to agency policies and procedures for the handling of information required to be maintained as confidential under MSA section 402(b). Adoption of the proposed revisions would not have a significant economic impact on a substantial number of small entities. The proposed revisions would apply to private companies that provide observer staffing support to NMFS and to industry sponsored observer programs. Nine private companies currently provide observers on a seasonal or ongoing basis to support the collection of information in 42 fisheries. The proposed regulations require observer providers to take steps to maintain the confidentiality of information. To satisfy this requirement, observer providers must have a secure area for the storage of confidential information. Compliance costs would include purchase of a lockable filing cabinet and enhanced managerial supervision. These costs would be minimal and all observer providers that currently contract with NMFS already have appropriate measures in place. Accordingly, no initial regulatory flexibility analysis is required and none has been prepared.

For the reasons set out in the preamble, 50 CFR part 600 is proposed to be amended as follows: