Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2014-0308; Directorate Identifier 2014-CE-012-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

We received reports of fatigue cracking of the main cabin door surround structure on several M7 Aerospace LLC Models SA227-AT, SA227-AC, SA227-BC, SA227-CC, and SA227-DC airplanes that have a bayonet shear pin type of latching mechanism for the main cabin door.

Investigation revealed that the fatigue cracks are related to a change in loading due to design changes in the door surround structure and the door latching system.

This condition, if not corrected, could result in probable decompression failure with possible loss of structural integrity of the cabin structure.

We reviewed M7 Aerospace LLC SA227 Series Commuter Category Service Bulletin CC7-53-005 and SA227 Series Service Bulletin 227-53-009, both dated November 15, 2013. The service information describes procedures for repetitively inspecting the internal and external skin doublers, fuselage skin, and the fuselage door frame corner member for cracks. The service information also describes procedures for repairing the cracks. In addition, if no cracks are found, the service information also includes procedures for installing a repair kit as preventative measure to extend the inspection intervals.

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

This proposed AD would require accomplishing the actions specified in the service information described previously. This proposed AD also requires sending inspection results to M7 Aerospace LLC.

We estimate that this proposed AD affects 250 airplanes of U.S. registry.

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

We estimate the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these repairs:

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES-200.

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

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

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

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

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

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

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

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

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

This document contains amendments to the Income Tax Regulations (26 CFR part 1) relating to real estate investment trusts (REITs). Section 856 of the Code defines a REIT by setting forth various requirements. One of the requirements for a taxpayer to qualify as a REIT is that at the close of each quarter of the taxable year at least 75 percent of the value of its total assets is represented by real estate assets, cash and cash items (including receivables), and government securities. See section 856(c)(4). Section 856(c)(5)(B) defines real estate assets to include real property and interests in real property. Section 856(c)(5)(C) indicates that real property means “land or improvements thereon.” Section 1.856-3(d) of the Income Tax Regulations, promulgated in 1962, defines real property for purposes of the regulations under sections 856 through 859 as—

The IRS issued revenue rulings between 1969 and 1975 addressing whether certain assets qualify as real property for purposes of section 856. Specifically, the published rulings describe assets such as railroad properties, 1 mobile home units permanently installed in a planned community, 2 air rights over real property, 3 interests in mortgage loans secured by total energy systems, 4 and mortgage loans secured by microwave transmission property, 5 and the rulings address whether the assets qualify as either real property or interests in real property under section 856. Since these published rulings were issued, REITs have sought to invest in various types of assets that are not directly addressed by the regulations or the published rulings, and have asked for and received letter rulings from the IRS addressing certain of these assets. Because letter rulings are limited to their particular facts and may not be relied upon by taxpayers other than the taxpayer that received the ruling, see section 6110(k)(3), letter rulings are not a substitute for published guidance. The IRS and the Treasury Department recognize the need to provide additional published guidance on the definition of real property under sections 856 through 859. This document proposes regulations that define real property for purposes of sections 856 through 859 by providing a framework to analyze the types of assets in which REITs seek to invest. These proposed regulations provide neither explicit nor implicit guidance regarding whether various types of income are described in section 856(c)(3). 6

Consistent with section 856, the existing regulations, and published guidance interpreting those regulations, these proposed regulations define real property to include land, inherently permanent structures, and structural components. In determining whether an item is land, an inherently permanent structure, or a structural component, these proposed regulations first test whether the item is a distinct asset, which is the unit of property to which the definitions in these proposed regulations apply.

In addition, these proposed regulations identify certain types of intangible assets that are real property or interests in real property for purposes of sections 856 through 859. These proposed regulations include examples to illustrate the application of the principles of these proposed regulations to determine whether certain distinct assets are real property for purposes of sections 856 through 859.

These proposed regulations provide that each distinct asset is tested individually to determine whether the distinct asset is real or personal property. Items that are specifically listed in these proposed regulations as types of buildings and other inherently permanent structures are distinct assets. Assets and systems specifically listed in these proposed regulations as types of structural components also are treated as distinct assets. Other distinct assets are identified using the factors provided by these proposed regulations. All listed factors must be considered, and no one factor is determinative.

These proposed regulations define land to include not only a parcel of ground, but the air and water space directly above the parcel. Therefore, water space directly above the seabed is land, even though the water itself flows over the seabed and does not remain in place. Land includes crops and other natural products of land until the crops or other natural products are detached or removed from the land.

Inherently permanent structures and their structural components are real property for purposes of sections 856 through 859. These proposed regulations clarify that inherently permanent structures are structures, including buildings, that have a passive function. Therefore, if a distinct asset has an active function, such as producing goods, the distinct asset is not an inherently permanent structure under these proposed regulations. In addition to serving a passive function, a distinct asset must be inherently permanent to be an inherently permanent structure. For this purpose, permanence may be established not only by the method by which the structure is affixed but also by the weight of the structure alone.

These proposed regulations supplement the definition of inherently permanent structure by providing a safe harbor list of distinct assets that are buildings, as well as a list of distinct assets that are other inherently permanent structures. If a distinct asset is on one of these lists, either as a building or as an inherently permanent structure, the distinct asset is real property for purposes of sections 856 through 859, and a facts and circumstances analysis is not necessary. If a distinct asset is not listed as either a building or an inherently permanent structure, these proposed regulations provide facts and circumstances that must be considered in determining whether the distinct asset is either a building or other inherently permanent structure. All listed factors must be considered, and no one factor is determinative.

One distinct asset that these proposed regulations list as an inherently permanent structure is an outdoor advertising display subject to an election to be treated as real property under section 1033(g)(3). Section 1033(g)(3) provides taxpayers with an election to treat certain outdoor advertising displays  7 as real property for purposes of Chapter 1 of the Code.

These proposed regulations define a structural component as a distinct asset that is a constituent part of and integrated into an inherently permanent structure that serves the inherently permanent structure in its passive function and does not produce or contribute to the production of income other than consideration for the use or occupancy of space. An entire system is analyzed as a single distinct asset and, therefore, as a single structural component, if the components of the system work together to serve the inherently permanent structure with a utility-like function, such as systems that provide a building with electricity, heat, or water. 8 For a structural component to be real property under sections 856 through 859, the taxpayer's interest in the structural component must be held by the taxpayer together with the taxpayer's interest in the inherently permanent structure to which the structural component is functionally related. Additionally, if a distinct asset that is a structural component is customized in connection with the provision of rentable space in an inherently permanent structure, the customization of that distinct asset does not cause it to fail to be a structural component.

Under these proposed regulations, an asset or system that is treated as a distinct asset is a structural component, and thus real property for purposes of sections 856 through 859, if the asset or system is included on the safe harbor list of assets that are structural components. If an asset or system that is treated as a distinct asset is not specifically listed as a structural component, these proposed regulations provide a list of facts and circumstances that must be considered in determining whether the distinct asset or system qualifies as a structural component. No one factor is determinative.

These proposed regulations do not retain the phrase “assets accessory to the operation of a business,” which the existing regulations use to describe an asset with an active function that is not real property for purposes of the regulations under sections 856 through 859. The IRS and the Treasury Department believe that the phrase “assets accessory to the operation of a business” has created uncertainty because the existing regulations are unclear whether certain assets that are permanent structures or components thereof nevertheless fail to be real property because they are used in the operation of a business. Instead, these proposed regulations adopt an approach that considers whether the distinct asset in question either serves a passive function common to real property or serves the inherently permanent structure to which it is constituent in that structure's passive function. On the other hand, if an asset has an active function, such as a distinct asset that produces, manufactures, or creates a product, then the asset is not real property unless the asset is a structural component that serves a utility-like function with respect to the inherently permanent structure of which it is a constituent part. Similarly, if an asset produces or contributes to the production of income other than consideration for the use or occupancy of space, then that asset is not real property. Thus, items that were assets accessory to the operation of a business under the existing regulations will continue to be excluded from the definition of real property for purposes of sections 856 through 859 either because they are not inherently permanent or because they serve an active function. These distinct assets include, for example, machinery; office, off-shore drilling, testing, and other equipment; transportation equipment that is not a structural component of a building; printing presses; refrigerators; individual air-conditioning units; grocery counters; furnishings of a motel, hotel, or office building; antennae; waveguides; transmitting, receiving, and multiplex equipment; prewired modular racks; display racks and shelves; gas pumps; and hydraulic car lifts.

These proposed regulations also provide that certain intangible assets are real property for purposes of sections 856 through 859. To be real property, the intangible asset must derive its value from tangible real property and be inseparable from the tangible real property from which the value is derived. Under § 1.856-2(d)(3) the assets of a REIT are its gross assets determined in accordance with generally accepted accounting principles (GAAP). Intangibles established under GAAP when a taxpayer acquires tangible real property may meet the definition of real property intangibles. A license or permit solely for the use, occupancy, or enjoyment of tangible real property may also be an interest in real property because it is in the nature of an interest in real property (similar to a lease or easement). If an intangible asset produces, or contributes to the production of, income other than consideration for the use or occupancy of space, then the asset is not real property or an interest in real property. Thus, for example, a permit allowing a taxpayer to engage in or operate a particular business is not an interest in real property.

The terms real property and personal property appear in numerous Code provisions that have diverse contexts and varying legislative purposes. In some cases, certain types of assets are specifically designated as real property or as personal property by statute, while in other cases the statute is silent as to the meaning of those terms. Ordinarily, under basic principles of statutory construction, the use of the same term in multiple Code provisions would imply (absent specific statutory modifications) that Congress intended the same meaning to apply to that term for each of the provisions in which it appears. In the case of the terms real property and personal property, however, both the regulatory process and decades of litigation have led to different definitions of these terms, in part because taxpayers have advocated for broader or narrower definitions in different contexts.

For example, in the depreciation and (prior) investment tax credit contexts, a broad definition of personal property (and a narrow definition of real property) is ordinarily more favorable to taxpayers. A tangible asset may generally be depreciated faster if it is personal property than if it is considered real property, see section 168(c) and (g)(2)(C), and (prior) section 38 property primarily included tangible personal property and excluded a building and its structural components, see § 1.48-1(c) and (d). During decades of controversy, taxpayers sought to broaden the meaning of tangible personal property and to narrow the meanings of building and structural component in efforts to qualify for the investment tax credit or for faster depreciation. That litigation resulted in courts adopting a relatively broad definition of tangible personal property (and correspondingly narrow definition of real property) for depreciation and investment tax credit purposes.

Similarly, in the context of the Foreign Investment in Real Property Tax Act (FIRPTA), codified at section 897 of the Code, a narrower definition of real property is generally more favorable to taxpayers. Enacted in 1980, FIRPTA is intended to subject foreign investors to the same U.S. tax treatment on gains from the disposition of interests in U.S. real property that applies to U.S. investors. Accordingly, foreign investors can more easily avoid U.S. tax to the extent that the definition of real property is narrow for FIRPTA purposes. As in the depreciation and investment credit contexts, this situation has led to vigorous debate over the appropriate characterization of certain types of assets (such as intangible assets) that may have characteristics associated with real property but do not fall within the traditional categories of buildings and structural components. See, for example, Advance Notice of Proposed Rulemaking, Infrastructure Improvements Under Section 897, published in the Federal Register (REG-130342-08, 73 FR 64901) on October 31, 2008 (noting that taxpayers may be taking the position that a governmental permit to operate a toll bridge or toll road is not a United States real property interest for purposes of section 897 and stating that the IRS and the Treasury Department are of the view that such a permit may properly be characterized as a United States real property interest in certain circumstances). In the case of FIRPTA, however, Congress modified the definition of real property to include items of personal property that are associated with the use of real property. See section 897(c)(6)(B) (including as real property movable walls, furnishings, and other personal property associated with the use of the real property). Consequently, it is explicitly contemplated in section 897 that an item of property may be treated as a United States real property interest for FIRPTA purposes, notwithstanding that it is characterized as personal property for other purposes of the Code.

In the REIT context, taxpayers ordinarily benefit from a relatively broad definition of real property. Consequently, taxpayers have generally advocated in the REIT context for a more expansive definition of real property than applies in the depreciation, (prior) investment tax credit, and FIRPTA contexts. In drafting these regulations, the Treasury Department and the IRS have sought to balance the general principle that common terms used in different provisions should have common meanings with the particular policies underlying the REIT provisions. These proposed regulations define real property only for purposes of sections 856 through 859. The IRS and the Treasury Department request comments, however, on the extent to which the various meanings of real property that appear in the Treasury regulations should be reconciled, whether through modifications to these proposed regulations or through modifications to the regulations under other Code provisions.

The IRS and the Treasury Department view these proposed regulations as a clarification of the existing definition of real property and not as a modification that will cause a significant reclassification of property. As such, these proposed regulations are proposed to be effective for calendar quarters beginning after these proposed regulations are published as final regulations in the Federal Register . The IRS and the Treasury Department solicit comments regarding the proposed effective date.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13653. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking has been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and Treasury Department request comments on all aspects of these proposed rules. All comments will be available for public inspection and copying at http://www.regulations.gov , or upon request.

A public hearing has been scheduled for September 18, 2014, at 10:00 a.m., in the IRS Auditorium, Internal Revenue Building, 1111 Constitution Avenue NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 15 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT section of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments at the hearing must submit written or electronic comments and an outline of the topics to be discussed and the time to be devoted to each topic (signed original and eight (8) copies) by August 12, 2014. A period of ten minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for receiving outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal authors of these regulations are Andrea M. Hoffenson and Julanne Allen, Office of Associate Chief Council (Financial Institutions and Products). However, other personnel from the IRS and the Treasury Department participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

Background

The Civil Reserve Air Fleet (CRAF) is a wartime readiness program, based on the Defense Production Act of 1950, as amended, (50 U.S.C. App. 2601 et seq.), and Executive Order 13603 (National Defense Resource Preparedness), March 16, 2012, to ensure quantifiable, accessible, and reliable commercial airlift capability to augment DoD airlift and to assure a mobilization base of aircraft available to the Department of Defense for use in the event of any level of national emergency or defense-orientated situations. As a readiness program, CRAF quantifies the number of passenger and cargo commercial assets required to support various levels of wartime requirements and thus allows DoD to account for their use when developing and executing contingency operations and war plans. In addition, the CRAF program identifies how DoD gains access to these commercial assets for operations by defining the authorities and procedures for CRAF activation. Finally, the program helps ensure that the DoD has reliable lines of communication and a common understanding of procedures with the carriers.

The United States Transportation Command (USTRANSCOM) negotiates and structures award of aircraft service contracts with certificated civilian air carriers willing to participate in the CRAF program in order to ensure that a mobilization base of aircraft is capable of responding to any level of defense-orientated situations.

The ability to set rates maintains the CRAF program's great flexibility to have any air carrier in the program able to provide aircraft within 24 hours of activation to fly personnel and cargo to any location in the world at a set rate per passenger or ton mile, regardless of where the air carrier normally operates. It also provides the Secretary of Defense the ability to respond rapidly to assist in emergencies and approved humanitarian operations, both in the United States and overseas where delay could result in more than monetary losses. The Government-set rate allows contracts to any location, sometimes awarded within less than an hour, and provides substantial commercial capability on short notice.

During the initial CRAF program years (between 1955 and 1962), ratemaking to price DoD airlift service relied upon price competition to meet its commercial airlift needs. This procurement method resulted in predatory pricing issues and failed to provide service meeting safety and performance requirements. Congressional Subcommittee hearings held at the time determined price competition to be non-compensatory and destructive to the industry. As a result, the ratemaking process was implemented under the regulatory authority of the Civil Aeronautics Board (CAB). Ratemaking continued under the CAB until deregulation in 1980. At that time, civil air carriers and DoD's contracting agency for long-term international airlift, the Military Airlift Command (MAC), agreed by a memorandum of understanding (MOU) that CAB methodologies by which rates for DoD airlift were established produced fair and reasonable rates and furthered the objectives of the CRAF program; and therefore, the parties agreed to continue to use CAB methodologies for establishing MAC uniform negotiated rates under an MOU renewed every five years. MAC became Air Mobility Command (AMC) on June 1, 1992. Ratemaking continued under AMC until January 1, 2007, when DoD's contracting authority for long-term international airlift was transferred from AMC to USTRANSCOM. On December 31, 2011, the National Defense Authorization Act for Fiscal Year 2012 (FY12 NDAA) was signed into law. Section 366 of the FY12 NDAA, codified at 10 U.S.C. § 9511a, authorized and directed the Secretary of Defense to determine a fair and reasonable rate of payment made to participants in the CRAF program. This proposed rulemaking effectuates Section 366.

This proposed rulemaking broadly tracks the longstanding ratemaking procedures for CRAF contracts in all substantial elements and the ratemaking methodologies supporting the pricing of airlift services as described in previous and current MOUs between certificated civilian air carriers willing to participate in the CRAF program and USTRANSCOM and USTRANSCOM predecessor entities.

In addition to compliance with this rule, CRAF participants, consistent with past practice, will be expected to enter into a MOU with USTRANSCOM where they will be expected to furnish USTRANSCOM, as a condition of its continued participation in the CRAF program, with the financial and operational information required by USTRANSCOM to adequately make a determination of fairness and reasonableness of price. This rulemaking will have no impact on air operators or certificated air carriers not participating in the CRAF program. Nor does it impact non-CRAF services provided by CRAF participants.

Section 366, Ratemaking Procedures for Civil Reserve Air Fleet, provides in pertinent part:

In General. Chapter 931 of Title 10, United States Code, is amended by inserting after section 9511 the following new section:

(a) Authority—The Secretary of Defense shall determine a fair and reasonable rate of payment for airlift services provided to the Department of Defense by air carriers who are participants in the Civil Reserve Air Fleet program.

(b) Regulations—The Secretary of Defense shall prescribe regulations for purposes of subsection (a). The Secretary may exclude from the applicability of those regulations any airlift services contract made through the use of competitive procedures.

(c) Commitment of Aircraft as a Business Factor.—The Secretary may, in determining the quantity of business to be received under an airlift services contract for which the rate of payment is determined in accordance with subsection (a), use as a factor the relative amount of airlift capability committed by each air carrier to the Civil Reserve Air Fleet.

(d) Inapplicable Provisions of Law.—An airlift services contract for which the rate of payment is determined in accordance with subsection (a) shall not be subject to the provisions of Section 2306a of this title or the provisions of subsections (a) and (b) of Section 1502 of Title 41.”

Description of the Regulation, by Section:

Sections 243.1 through 243.3. Purpose, Applicability, and Definitions. No further descriptions are provided in this section. These sections of the regulation are self explanatory.

Section 243.4(a). In establishing fair and reasonable rate of payments for airlift service contracts in support of CRAF, USTRANSCOM may utilize the principles contained in the Federal Acquisition Regulation, as supplemented. Specific differences are as noted at § 243.8 of the regulation.

Sections 243.4(c) and (d) Analysis and Rates. Details for the current ratemaking cycle can be located on FedBizOps under the Proposed Uniform Rates and Rules and Final Uniform Rates and Rules, which can be located at https://www.fbo.gov/index?s=opportunity&mode=form&id=3ae87338a903f3e6e43a2627941dbb1c&tab=core&_cview=1.

Sections 243.4(e)(1) through (e)(6) Components of the Rate. Additional insight in this area is included in the current Memorandum of Understanding (FY13 through FY17), which can be found at https://www.fbo.gov/index?s=opportunity&mode=form&id=3ae87338a903f3e6e43a2627941dbb1c&tab=core&_cview=1.

Section 243.4(f) Contingency Rates. Authority is reserved to the Commander, USTRANSCOM, to implement a higher temporary rate if USTRANSCOM determines that the established rate of payment is insufficient to allow successful mission operations. These temporary contingency rates are used at the Commander, USTRANSCOM's discretion during conditions such as outbreak of war, armed conflict, insurrection, civil or military strife, emergencies, or similar conditions and are adjusted to reflect possible limited backhaul opportunities. These rates would continue until it is determined by the Commander, USTRANSCOM that such rates are no longer needed to ensure mission accomplishment or sufficient data has been obtained to establish a new rate, after which the contingency rates would cease.

Section 243.5 Commitment of Aircraft as a Business Factor. For the purpose of rate making, the average fleet cost of aircraft proposed by the carriers for the forecast year is used. Actual awards to CRAF carriers are based upon the aircraft accepted into the CRAF program. Aircraft are assigned to stages in a manner designed to spread the risk among all carriers proportionate to the airline total commitment and capability; as an example, all air carriers are required to have a minimum of one aircraft in Stage I but each carrier's total aircraft in Stage I cannot exceed ~15% of the passenger or cargo requirement.

Section 243.6. Exclusions from the uniform negotiated rate. No further description is provided in this section. This section of the regulation is self explanatory.

Section 243.7 Inapplicable provisions of law. Consistent with the requirements of Section 366, this section provides that determining the rate of payment for an airlift service contract will not be subject to the provisions of Section 2306a of Title 10, United States Code, entitled Cost or Pricing Data: Truth in Negotiations Act or subsections (a) and (b) of Section 1502 of Title 41, United States Code, entitled Cost Accounting Standards.

Section 243.8 Application of FAR cost principles. Some FAR cost principles contained in FAR Part 31 and DFARS 231 are modified for use in the ratemaking process. There are two primary reasons for this:

First, compliance with certain principles is not possible for airline carriers. Airline accounting systems are established to report costs in accordance with the Department of Transportation requirements found at 14 CFR Part 241. These requirements generally do not allow carriers to assign costs directly to a final cost objective, or contract. Contractors who do not assign costs directly to a contract cannot comply with FAR 31.202. Additionally, 14 CFR Part 241 directs an air carrier to financially account for property taxes in General and Administrative expense, whereas FAR 31.205-41(c) directs contractors to account for these taxes directly to a final cost objective. Therefore, simply by complying with requirements of 14 CFR Part 241 (required by the Department of Transportation), CRAF carriers cannot be in compliance with certain principles at FAR 31 and DFARS 231 due to the difference in financial accounting practices for these taxes.

Secondly, selected cost principles must be modified in order to maintain uniformity across the industry when developing a uniform rate of payment. An example of this can be found at FAR 31.205-11, Depreciation. This principle requires contractors limit depreciation to the amount used for financial accounting purposes and in a manner consistent with depreciation policies and procedures followed in the same segment of non-Government business. Under the Department's ratemaking process, all depreciation values are pre-established in order to maintain uniformity within the rate. These depreciation values are as indicated in the MOU. Therefore, the FAR cost principle outlining depreciation requirements cannot be applicable to the ratemaking process.

Section 243.9. Carrier site visits. No further description is provided in this section. This section of the regulation is self explanatory.

Sections 243.10 and 243.11 Disputes and Appeals of USTRANSCOM Contracting Officer Decisions regarding rates. The disputes and appeals provision of the proposed ratemaking procedures follows long established protocol that was previously reflected in MOUs executed between CRAF air carrier participants and the government. In sum, carriers with ratemaking concerns are required to first present their concerns to the USTRANSCOM ratemaking team for resolution. If the matter is not resolved by the ratemaking team, the carrier can in turn request resolution by the USTRANSCOM contracting officer. If satisfactory resolution does not result, the carrier should address their matter to the USTRANSCOM Ombudsman who is appointed to hear and facilitate resolution of such issues. If requested by the carrier, the Director of Acquisition, USTRANSCOM, will issue a final agency decision on matters unresolved by the USTRANSCOM Ombudsman.

Executive Orders (E.O.s) 12866 and 13563 directs agencies to assess all costs and benefits of available regulatory alternatives, and if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It has been determined that 32 CFR part 243 is not an economically significant regulatory action and is also not a major rule under 5 U.S.C. § 804. The rule does not:

(1) Have an annual affect to the economy in excess of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive Orders.

Additionally, participation in the CRAF program is voluntary. All willing carriers meeting the technical requirements of CRAF will receive a contract for transportation services. The proposed rule does not add additional requirements to those that have been historically required by the CRAF carrier's contract and ratemaking process. The proposed rule clarifies existing and historical procedures utilized by USTRANSCOM for carriers participating in the CRAF program.

It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

DoD certifies this proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq, because the rule does not change or add any policies or procedures. This rule implements Section 366 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81) using historically established ratemaking methodologies and procedures. According to the most recent records, there are 28 certified civilian air carriers willing to participate in the CRAF program for FY2013, of which 12 qualify as small businesses. Because the rule does not change or add any policies or procedures there is not a significant economic impact on a substantial number of small entities and a regulatory flexibility analysis was not performed. Furthermore, any airline meeting the CRAF technical requirements, regardless of business size, will be awarded a contract with rates of payment prescribed by this rule.

The proposed rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

Executive Order 13132 requires that Executive departments and agencies identify regulatory actions that have significant federalism implications. A regulation has federalism implications if it has substantial direct effects on the States, on the relationship or distribution of power between the Federal Government and the States, or on the distribution of power and responsibilities among various levels of government.

The provisions of this part, as required by 10 U.S.C. § 9511a, have no substantial direct effect on the States, on the relationship or distribution of power between the Federal Government and the States, or on the distribution of power and responsibilities among various levels of government. Therefore, the Department has determined that the proposed part has no federalism implications that warrant the preparation of a Federalism Assessment in accordance with Executive Order 13132.

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-2014-0259), 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-2014-0259) in the “SEARCH” box and click “SEARCH.” Click on “Submit a Comment” on the line associated with this notice of proposed 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-2014-0259 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. 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 .

On July 26, 2013 the Coast Guard published a Temporary Final Rule entitled Safety Zones; Sherman Private Party Fireworks, Lake Michigan, Winnetka, IL and made it available for public comment (78 FR 45059). No public meeting was requested, and none was held.

The legal basis for this proposed rule is the Coast Guard's authority to establish safety zones: 33 U.S.C. 1231; 33 CFR 1.05-1, 160.5; Department of Homeland Security Delegation No. 0170.1.

On August 16, 2014 a private party fireworks display is expected to take place on Lake Michigan, Winnetka, IL, from a barge located at approximate position 42°06′24.19″ N, 087°43′7.92″ W (NAD 83). The Captain of the Port, Lake Michigan, has determined that an aerial firework display presents a significant risk to public safety and property. Such hazards include falling and flaming debris.

The Captain of the Port, Lake Michigan, has determined that a safety zone is necessary to mitigate the aforementioned safety risks. Thus, this proposed rulemaking would establish a safety zone on the waters of Lake Michigan, near Winnetka, IL, within an 840 foot radius from a barge located at approximate position 42°06′24.19″ N, 087°43′7.92″ W (NAD 83).

This proposed safety zone would be effective and enforced from 9:15 p.m. until 10 p.m. on August 16, 2014.

The Captain of the Port Lake Michigan will notify the public that the zone in this proposal is or will be enforced by all appropriate means to the affected segments of the public. Such means of notification may also include, but are not limited to Broadcast Notice to Mariners or Local Notice to Mariners.

All persons and vessels must comply with the instructions of the Captain of the Port Lake Michigan, or his or her designated on-scene representative. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Lake Michigan, or his or her designated on-scene representative. The Captain of the Port, Lake Michigan, or his or her designated on-scene representative may be contacted via VHF Channel 16.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on these statutes and 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. Overall, we expect the economic impact of this proposed rule to be minimal and that a full Regulatory Evaluation is unnecessary.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule will affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor within the waters of Lake Michigan near Winnetka, IL, on August 16, 2014.

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 enforced for a short duration of 45 minutes. The location of this safety zone allows traffic to pass safely around the zone and vessels will be allowed to pass through the zone with the permission of the Captain of the Port. 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 the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Petty Officer Joseph McCollum, Prevention Department, Coast Guard Sector Lake Michigan, Milwaukee, WI at (414) 747-7148. 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 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 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.

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 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. An environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES . This proposed rule involves the establishment of a safety zone and is therefore categorically excluded under figure 2-1, paragraph 34(g) of the Instruction. 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:

On June 25, 2013, the State of West Virginia through the West Virginia Department of Environmental Protection (WVDEP) submitted a revision to its SIP to satisfy the requirements of section 110(a)(2) of the CAA for the 2010 SO 2 NAAQS.

On June 22, 2010 (75 FR 35520), EPA promulgated a revised NAAQS for the 1-hour primary SO 2 at a level of 75 parts per billion (ppb), based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. Section 110(a) imposes the obligation upon states to make a SIP submittal to EPA for a new or revised NAAQS, but the contents of that submittal may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affect the content of the submittal. The content of such SIP submittal may also vary depending upon what provisions the state's existing SIP already contains.

In the case of the 2010 SO 2 NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submittals in connection with the SO 2 NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for SIPs. Section 110(a)(2) lists specific elements that states must meet for “infrastructure” SIP requirements related to a newly established or revised NAAQS. As mentioned earlier, these requirements include basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS.

On June 25, 2013, West Virginia provided a submittal to satisfy section 110(a)(2) requirements of the CAA, which is the subject of this proposed rulemaking, for the 2010 SO 2 NAAQS. This submittal addressed the following infrastructure elements or portions thereof, which EPA is proposing to approve: section 110(a)(2)(A), (B), (C) (enforcement and minor new source review), (D)(ii), (E)(i) and (iii), (F), (G), (H), (J), (K), (L), and (M). A detailed summary of EPA's review and rationale for approving West Virginia's submittal may be found in the Technical Support Document (TSD) for this rulemaking action which is available on line at www.regulations.gov , Docket ID Number EPA-R03-OAR-2014-0299. This rulemaking action does not include any proposed action on section 110(a)(2)(I) of the CAA which pertains to the nonattainment requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of CAA section 110(a)(1), and will be addressed in a separate process. This rulemaking action also does not include proposed action on section 110(a)(2)(D)(i)(I) of the CAA because West Virginia's June 25, 2013 infrastructure SIP submittal did not include provisions for this element. EPA will take later, separate action on section 110(a)(2)(D)(i)(I) for the 2010 SO 2 NAAQS for West Virginia.

Additionally, EPA will take separate action on the portions of CAA section 110(a)(2) infrastructure elements for the 2010 SO 2 NAAQS as they relate to West Virginia's prevention of significant deterioration (PSD) permitting program, as required by part C of Title I of the CAA. This includes portions of the following infrastructure elements: section 110(a)(2)(C), (D)(i)(II), and (J). EPA had previously approved West Virginia's PSD program with the narrow exception of the definition of regulated new source review pollutant for its failure to include condensables. See 77 FR 63736 (October 17, 2012) and 78 FR 27062 (May 9, 2013) (finalizing limited, narrow disapproval). At this time, EPA is not proposing action on Section 110(a)(2)(D)(i)(II) for visibility protection for the 2010 SO 2 NAAQS. Although West Virginia's infrastructure SIP submittal for the 2010 SO 2 NAAQS referred to West Virginia's regional haze SIP for section 110(a)(2)(D)(i)(II) for visibility protection, EPA intends to take separate action on West Virginia's submittal for this element at a later date as explained in the TSD. EPA will also take later separate action on West Virginia's June 25, 2013 infrastructure SIP submittal for the 2010 SO 2 NAAQS for section 110(a)(2)(E)(ii) as it relates to section 128, “State Boards.”

EPA is acting upon the SIP submission from West Virginia that addresses the infrastructure requirements of section 110(a)(1) and (2) of the CAA for the 2010 SO 2 NAAQS. The requirement for states to make a SIP submission of this type arises out of section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions. 1 EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the CAA, which specifically address nonattainment SIP requirements. 2 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years or in some cases three years, for such designations to be promulgated. 3 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within section 110(a)(1) and (2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, EPA can elect to act on such submissions either individually or in a larger combined action. 4 Similarly, EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, EPA has sometimes elected to act at different times on various elements and sub-elements of the same infrastructure SIP submission. 5

Ambiguities within section 110(a)(1) and (2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS. 6

EPA notes that interpretation of section 110(a)(2) is also necessary when EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. 7 EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). 8 EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions. 9 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, EPA interprets section 110(a)(1) and (2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program ( e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in section 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including Green House Gases (GHGs). By contrast, structural PSD program requirements do not include provisions that are not required under EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM 2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program ( i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

With respect to certain other issues, EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and EPA's policies addressing such excess emissions (SSM); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007) (NSR Reform). Thus, EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions. 10 It is important to note that EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when EPA evaluates adequacy of the infrastructure SIP submission. EPA believes that a better approach is for states and EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of section 110(a)(1) and (2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes EPA to issue a “SIP call” whenever the Agency determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA. 11 Section 110(k)(6) authorizes EPA to correct errors in past actions, such as past approvals of SIP submissions. 12 Significantly, EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action. 13

EPA is proposing to approve the following elements or portions thereof of West Virginia's June 25, 2013 SIP revision: section 110(a)(2)(A), (B), (C) (enforcement and minor new source review), (D)(i)(II) (visibility protection), (D)(ii), (E)(i) and (iii), (F), (G), (H), (J), (K), (L), and (M). West Virginia's SIP revision provides the basic program elements specified in section 110(a)(2) necessary to implement, maintain, and enforce the 2010 SO 2 NAAQS. This proposed rulemaking action does not include action on section 110(a)(2)(I) which pertains to the nonattainment planning requirements of part D, Title I of the CAA, because this element is not required to be submitted by the 3-year submission deadline of section 110(a)(1) of the CAA, and will be addressed in a separate process.

Additionally, EPA will take separate action on the portions of CAA section 110(a)(2) infrastructure elements for the 2010 SO 2 NAAQs as they relate to West Virginia's PSD program, as required by part C of Title I of the CAA. This includes portions of the following infrastructure elements: section 110(a)(2)(C), (D)(i)(II), and (J). Finally, EPA will take later separate action on section 110(a)(2)(D)(i)(I) (interstate transport of emission), (D)(i)(II) (visibility protection), and (E)(ii) (section 128, “State Boards”) for the 2010 SO 2 NAAQS. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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 CAA; and

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

In addition, this proposed rule, pertaining to West Virginia's section 110(a)(2) infrastructure requirements for the 2010 SO 2 NAAQS, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

On September 21, 2006, the EPA promulgated a final rule revising the 1997 24-hour primary and secondary National Ambient Air Quality Standards (NAAQS) for PM 2.5 from 65 micrograms per cubic meter (μg/m 3 ) to 35 μg/m 3 (October 17, 2006, 71 FR 61144).

The interstate transport provisions in Clean Air Act (CAA) section 110(a)(2)(D)(i) (also called “good neighbor” provisions) require each state to submit a State Implementation Plan (SIP) that prohibits emissions that will have certain adverse air quality effects in other states. CAA section 110(a)(2)(D)(i) identifies four distinct elements related to the impacts of air pollutants transported across state lines. In this action, the EPA is addressing the first two elements of this section, specified at CAA section 110(a)(2)(D)(i)(I), 1 for the 2006 24-hour PM 2.5 NAAQS.

The first element of CAA section 110(a)(2)(D)(i)(I) requires that each SIP for a new or revised NAAQS contain adequate measures to prohibit any source or other type of emissions activity within the state from emitting air pollutants that will “contribute significantly to nonattainment” of the NAAQS in another state. The second element of CAA section 110(a)(2)(D)(i)(I) requires that each SIP prohibit any source or other type of emissions activity in the state from emitting pollutants that will “interfere with maintenance” of the applicable NAAQS in any other state.

The EPA has previously addressed the requirements of CAA section 110(a)(2)(D)(i)(I) in past regulatory actions. 2 The EPA published the final Cross-State Air Pollution Rule (Transport Rule) to address the first two elements of CAA section 110(a)(2)(D)(i)(I) in the eastern portion of the United States with respect to the 2006 PM 2.5 NAAQS, the 1997 PM 2.5 NAAQS, and the 1997 8-hour ozone NAAQS (August 8, 2011, 76 FR 48208). The Transport Rule was intended to replace the earlier Clean Air Interstate Rule (CAIR) which was judicially remanded. 3 See North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008). On August 21, 2012, the U.S. Court of Appeals for the D.C. Circuit issued a decision vacating the Transport Rule, s ee EME Homer City Generation, L.P. v. E.P.A., 696 F.3d 7 (D.C. Cir. 2012), and ordering the EPA to continue implementing CAIR in the interim. However, on April 29, 2014, the U.S. Supreme Court reversed and remanded the D.C. Circuit's ruling and upheld the EPA's approach in the Transport Rule. EPA v. EME Homer City Generation, L.P., No. 12-1182, 572 U.S. __ slip op. (2014).The State of Oregon was not covered by either CAIR or the Transport Rule, and the EPA made no determinations in either rule regarding whether emissions from sources in Oregon significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS in another state.

On September 25, 2009, the EPA issued a guidance memorandum that addresses the requirements of CAA section 110(a)(2)(D)(i) for the 2006 24-hour PM 2.5 NAAQS (“2006 24-hour PM 2.5 NAAQS Infrastructure Guidance” or “Guidance”). 4 With respect to the requirement in CAA section 110(a)(2)(D)(i)(I) to prohibit emissions that would contribute significantly to nonattainment of the NAAQS in any other state, the 2006 24-hour PM 2.5 NAAQS Infrastructure Guidance essentially reiterated the recommendations for western states made by the EPA in previous guidance addressing the CAA section 110(a)(2)(D)(i) requirements for the 1997 8-hour Ozone and 1997 PM 2.5 NAAQS. 5 The 2006 24-hour PM 2.5 NAAQS Infrastructure Guidance advised states outside of the CAIR region to include in their CAA section 110(a)(2)(D)(i)(I) SIPs adequate technical analyses to support their conclusions regarding interstate pollution transport, e.g., information concerning emissions in the state, meteorological conditions in the state and in potentially impacted states, monitored ambient pollutant concentrations in the state and in potentially impacted states, distances to the nearest areas not attaining the NAAQS in other states, and air quality modeling. 6 With respect to the requirement in CAA section 110(a)(2)(D)(i)(I) to prohibit emissions that would interfere with maintenance of the NAAQS in any other state, the Guidance stated that SIP submissions must address this independent requirement of the statute and provide technical information appropriate to support the state's conclusions, such as information concerning emissions in the state, meteorological conditions in the state and in potentially impacted states, monitored ambient concentrations in the state and in potentially impacted states, and air quality modeling. See footnotes 5 and 6. In this action, the EPA is proposing to use the conceptual approach to evaluating interstate pollution transport under CAA section 110(a)(2)(D)(i)(I) that the EPA explained in the 2006 24-hour PM 2.5 NAAQS Infrastructure Guidance. For the 2006 24-hour PM 2.5 NAAQS, the EPA believes that nonattainment and maintenance problems in the western United States are generally relatively local in nature with only limited impacts from interstate transport. The EPA believes that the CAA section 110(a)(2)(D)(i)(I) SIP submission from Oregon may be evaluated using a “weight of the evidence” approach that takes into account available relevant information. Such information may include, but is not limited to, the amount of emissions in the state relevant to the NAAQS in question, the meteorological conditions in the area, the distance from the state to the nearest monitors in other states that are appropriate receptors, or such other information as may be probative to consider whether sources in the state may contribute significantly to nonattainment or interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS in other states. These submissions can rely on modeling when acceptable modeling technical analyses are available, but the EPA does not believe that modeling is necessarily required if other available information is sufficient to evaluate the presence or degree of interstate transport in a specific situation. 7

CAA sections 110(a)(1) and (2) and section 110(l) require that revisions to a SIP be adopted by the state after reasonable notice and public hearing. The EPA has promulgated specific procedural requirements for SIP revisions in 40 CFR part 51, subpart F. These requirements include publication of notices, by prominent advertisement in the relevant geographic area, a public comment period of at least 30 days, and an opportunity for a public hearing.

On June 28, 2010, the State of Oregon submitted a SIP revision to update the State's SIP for ozone and PM 2.5 . The State's SIP submittal cover letter indicated the SIP revision included the “Oregon SIP Infrastructure for Addressing the Interstate Transport of Ozone and Fine Particulate Matter” to address the interstate transport SIP requirements of CAA section 110(a)(2)(D)(i) for the 8-hour ozone and PM 2.5 NAAQS (2010 Interstate Transport SIP). The State's June 28, 2010 submittal included public process documentation for the 2010 Interstate Transport SIP, including documentation of a duly noticed public hearing held on December 22, 2009. The State subsequently notified the EPA that a clerical error was made and that the 2010 Interstate Transport SIP had not been attached to the June 28, 2010, cover letter. The State transmitted the 2010 Interstate Transport SIP to the EPA on December 23, 2010. The State then transmitted a letter to the EPA on March 14, 2011, confirming that the 2010 Interstate Transport SIP was submitted for purposes of meeting the requirements of CAA section 110(a)(2)(D)(i) for the 1997 ozone NAAQS, 1997 PM 2.5 NAAQS, 2006 24-hour PM 2.5 NAAQS, and 2008 ozone NAAQS.

We find that the process followed by the State in adopting the 2010 Interstate Transport SIP complies with the procedural requirements for SIP revisions under CAA section 110 and the EPA's implementing regulations.

To address whether emissions from sources in Oregon significantly contribute to nonattainment of the 2006 24-hour PM 2.5 NAAQS in another state, the State stated in the 2010 Interstate Transport SIP that meteorological and other characteristics of any areas designated nonattainment for the 2006 24-hour PM 2.5 NAAQS in the surrounding states of Washington, Idaho, Nevada, and California support a finding that emissions from Oregon sources do not significantly contribute to violations of the 2006 24-hour PM 2.5 NAAQS in other states. The State explained that the closest 2006 24-hour PM 2.5 designated nonattainment areas in neighboring states are the Tacoma area (Pierce County) in Washington; the Chico area (portions of Butte County) in California; and the Cache Valley area in Southeast Idaho (portions of Cache County, Utah and Franklin County, Idaho). Oregon stated that the area of highest Oregon emission densities (Portland Metro area) is separated from these 2006 24-hour PM 2.5 nonattainment areas by significant distances and major mountain ranges up to approximately 7000 feet. The State identified one exception—the Portland, Oregon-Vancouver, Washington metro area, which shares a common air shed between Oregon and Washington. Oregon noted however that both Portland, Oregon and Vancouver, Washington are in attainment with the 2006 24-hour PM 2.5 NAAQS.

Additionally, the State described typical wind patterns during the winter when PM 2.5 levels are the highest. It noted that the majority of wind speeds occur at less than eight miles per hour, and a significant portion of low winds occur at less than five miles per hour. The State explained that these low wind speeds and air stagnation conditions do not lend themselves to long distance air pollution transport. The State concluded that general meteorology supports the conclusion that high winter time PM 2.5 levels in Pacific Northwest communities are typically dominated by local emission sources.

Oregon's 2010 Interstate Transport SIP also pointed to its CAA section 110 infrastructure SIP to demonstrate that Oregon Department of Environmental Quality (ODEQ) has the ability to participate as needed in future studies on regional air pollution issues, can collaborate with other states if air quality concerns are identified that require a case-specific evaluation of interstate transport, and has the legal mechanism to take action as needed to reduce emissions to help attain compliance with Federal NAAQS. Oregon stated that that high PM 2.5 levels that threaten the NAAQS are investigated as needed to identify contributing sources, including any potential role of interstate transport.

Finally, the State explained that it had consulted with air agencies in Washington, Idaho, Nevada, and California and other agencies to evaluate case-specific air quality problems that may involve regional transport of air pollution. These staff-level communications indicated no impacts on PM 2.5 concentrations in other states caused by transport from Oregon.

Based on the information provided in its 2010 Interstate Transport SIP, the State concluded that emissions from air pollution sources in Oregon do not significantly contribute to nonattainment of the 2006 24-hour PM 2.5 NAAQS in other states.

To determine whether the CAA section 110(a)(2)(D)(i)(I) requirement is satisfied, the EPA must determine whether a state's emissions contribute significantly to nonattainment or interfere with maintenance of the NAAQS in other states. If this factual finding is in the negative, then CAA section 110(a)(2)(D)(i)(I) does not require any changes to a state's SIP. Consistent with the EPA's approach in the 1998 NO X SIP Call, the 2005 CAIR, and the 2011 Transport Rule, the EPA is evaluating these impacts with respect to specific monitors identified as having nonattainment and/or maintenance problems, which we refer to as “receptors.” See footnote 2.

This proposed approval addresses the requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM 2.5 NAAQS in several ways. The EPA notes that no single piece of information is by itself dispositive of the issue. Instead, the total weight of all the evidence taken together is used to evaluate significant contributions to nonattainment or interference with maintenance of the 2006 24-hour PM 2.5 NAAQS in another state. Our proposed approval takes into account Oregon's 2010 Interstate Transport SIP which explains that meteorological and other characteristics in Oregon and in the surrounding areas reduce the likelihood that emissions from sources in Oregon contribute significantly to nonattainment or interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS in any downwind state. In addition, we are supplementing the evaluation of the State's submittal with a review of the monitors in other states that are appropriate “nonattainment receptors” or “maintenance receptors” and additional technical information to consider whether sources in Oregon contribute significantly to nonattainment or interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS in other states.

Our Technical Support Document (TSD) contains a more detailed evaluation and is available in the public docket for this rulemaking, which may be accessed online at www.regulations.gov , docket number EPA-R10-OAR-2011-0446. Below is a summary of our analysis.

The EPA evaluated data from existing monitors over three overlapping three-year periods (i.e., 2008-2010, 2009-2011, and 2010-2012) to determine which areas were violating the 2006 24-hour PM 2.5 NAAQS and which areas might have difficulty maintaining attainment. If a monitoring site measured a violation of the 2006 24-hour PM 2.5 NAAQS during the most recent three-year period (2010-2012), then this monitor location was evaluated for purposes of the significant contribution to nonattainment element of CAA section 110(a)(2)(D)(i)(I). If, on the other hand, a monitoring site shows attainment of the 2006 24-hour PM 2.5 NAAQS during the most recent three-year period (2010-2012) but a violation in at least one of the previous two three-year periods (2008-2010 or 2009-2011), then this monitor location was evaluated for purposes of the interference with maintenance element of the statute.

The State of Oregon was not covered by the original modeling analyses conducted for the CAIR and the Transport Rule. The approach described above is similar to the approach utilized by the EPA in promulgating the CAIR and the Transport Rule. By this method, the EPA has identified those areas with monitors to be considered “nonattainment receptors” or “maintenance receptors” for evaluating whether the emissions from sources in another state could significantly contribute to nonattainment in, or interfere with maintenance in, that particular area.

The EPA reviewed Oregon's 2010 Interstate Transport SIP and additional technical information to evaluate the potential for emissions from sources in Oregon to contribute significantly to nonattainment of the 2006 24-hour PM 2.5 NAAQS at specified monitoring sites in the western United States. 8 The EPA first identified as “nonattainment receptors” all monitoring sites in the western states that had recorded PM 2.5 design values above the level of the 2006 24-hour PM 2.5 NAAQS (35 μg/m 3 ) during the years 2010-2012. 9 See Section III of the TSD for more a more detailed description of the EPA's methodology for selection of nonattainment receptors. All of the nonattainment receptors identified in western states are in California, Idaho, Oregon, and Utah. Because geographic distance is a relevant factor in the assessment of potential pollution transport, the EPA focused its review on information related to potential transport of PM 2.5 pollution from Oregon to nonattainment receptors in the states bordering Oregon: Idaho and California. 10   11 As detailed in the TSD, the EPA believes that the following factors support a finding that emissions from Oregon do not significantly contribute to nonattainment of the 2006 24-hour PM 2.5 NAAQS in these states: (1) Technical information indicating that elevated PM 2.5 levels at nonattainment receptors are predominantly caused by local emission sources and (2) air quality data indicating that regional background levels of PM 2.5 are generally low during the time periods of elevated PM 2.5 at these receptors. In addition, as detailed in the TSD with respect to California, technical information indicating that the dominant air flows across California are from the west to the east additionally supports a finding that emissions from Oregon do not significantly contribute to nonattainment of the 2006 24-hour PM 2.5 NAAQS in California.

The EPA also evaluated potential PM 2.5 transport to nonattainment receptors in the more distant western state of Utah. The EPA believes that the following factors support a finding that emissions from Oregon do not significantly contribute to nonattainment of the 2006 24-hour PM 2.5 NAAQS in Utah: (1) The significant distance from Oregon to the nonattainment receptors in Utah, (2) technical information indicating that elevated PM 2.5 levels at nonattainment receptors in Utah are predominantly caused by local emission sources, and (3) air quality data indicating that regional background levels of PM 2.5 are generally low during the time periods of elevated PM 2.5 at Utah receptors.

Based on this evaluation of Oregon's 2010 Interstate Transport SIP and additional technical information, the EPA proposes to conclude that emissions from sources in Oregon do not significantly contribute to nonattainment of the 2006 24-hour PM 2.5 NAAQS in any other state.

The EPA reviewed Oregon's 2010 Interstate Transport SIP and additional technical information to evaluate the potential for Oregon emissions to interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS at specified monitoring sites in the western United States. The EPA first identified as “maintenance receptors” all monitoring sites in the western states that had recorded PM 2.5 design values above the level of the 2006 24-hour PM 2.5 NAAQS (35 μg/m 3 ) during the 2008-2010 and/or 2009-2011 periods but below this standard during the 2010-2012 period. See section III of the TSD for more information regarding the EPA's methodology for selection of maintenance receptors. All of the maintenance receptors in the western states are located in California, Montana, Nevada, Oregon, Utah, and Washington. The EPA focused its evaluation of the potential for transport of Oregon emissions to the maintenance receptors located in three states bordering Oregon: California, Nevada, and Washington. 12 13 As detailed in the TSD, the EPA believes that the following factors support a finding that emissions from sources in Oregon do not interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS in these border states: (1) Technical information indicating that elevated 24-hour PM 2.5 levels at these maintenance receptors are predominantly caused by local emission sources, and (2) air quality data indicating that regional background levels of PM 2.5 are generally low during the time periods of elevated 24-hour PM 2.5 at these receptors. In addition, with respect to California, technical information indicating that elevated 24-hour PM 2.5 levels at the maintenance receptors are predominantly caused by local emission sources and that the dominant air flows across California are from the west to the east additionally supports a finding that emissions from sources in Oregon do not interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS in California.

The EPA also evaluated the potential for transport of Oregon emissions to maintenance receptors in the more distant states of Montana and Utah. As detailed in the TSD, the EPA believes that the following factors support a finding that emissions from sources in Oregon do not interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS in these more distant states: (1) The significant distance from the Oregon to the maintenance receptors in these states, (2) technical information indicating that elevated 24-hour PM 2.5 levels at these maintenance receptors are predominantly caused by local emission sources, and (3) air quality data indicating that regional background levels of PM 2.5 are generally low during the time periods of elevated 24-hour PM 2.5 at these receptors.

Based on this evaluation of Oregon's 2010 Interstate Transport SIP and additional technical information, the EPA proposes to conclude that emissions from sources in Oregon do not interfere with maintenance of the 2006 24-hour PM 2.5 NAAQS in any other state.

The EPA is proposing to approve the portion of the SIP revision submitted by the State of Oregon on June 28, 2010 that addresses the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I) for the 2006 24-hour PM 2.5 NAAQS. The EPA is proposing to determine that Oregon's existing State Implementation Plan contains adequate provisions to ensure that air emissions in Oregon do not significantly contribute to nonattainment or interfere with maintenance of the 2006 24-hour PM 2.5 National Ambient Air Quality Standard in any other state. This action is being taken under section 110 of the CAA.

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

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

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

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

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

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

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

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

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

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

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

On October 15, 2008, the EPA revised the level of the primary and secondary lead NAAQS from 1.5 micrograms per cubic meter (μg/m 3 ) to 0.15 µg/m 3 . The CAA requires SIPs meeting the requirements of sections 110(a)(1) and (2) be submitted by states within three years after promulgation of a new or revised standard. CAA sections 110(a)(1) and (2) require states to address basic SIP requirements to provide for implementation, maintenance and enforcement of the standards, so-called “infrastructure” requirements. States were required to submit such SIPs for the 2008 lead NAAQS to the EPA no later than October 15, 2011.

To help states meet this statutory requirement, the EPA issued guidance to address infrastructure SIP elements under CAA sections 110(a)(1) and (2). 1 As noted in the guidance, to the extent an existing SIP already meets the CAA section 110(a)(2) requirements, states may certify that fact via a letter to the EPA. The certification should address all requirements of the CAA section 110(a)(2) infrastructure elements as applicable for the 2008 lead NAAQS. Such certification should include documentation demonstrating a correlation between each infrastructure element specified at 110(a)(2) and an equivalent state authority in the existing or submitted SIP. As for all SIP submittals, a state should provide reasonable public notice of, and an opportunity for a public hearing on, the certification before it is submitted to the EPA.

CAA section 110(a) imposes the obligation upon states to make a SIP submission to the EPA for a new or revised NAAQS, but the contents of that submission may vary depending upon the facts and circumstances. In the case of the 2008 lead NAAQS, states typically have met the basic program elements required in CAA section 110(a)(2) through earlier SIP submissions. On April 1, 2014, Washington made a submittal to the EPA certifying that the current Washington SIP meets the CAA section 110(a)(1) and (2) infrastructure requirements for the 2008 lead NAAQS, except for certain requirements related to PSD permitting, described in the “Analysis of the State's Submittal” section of this publication. The submittal included an analysis of Washington's SIP as it relates to each section of the infrastructure requirements with regard to the 2008 lead NAAQS. Washington provided notice and an opportunity for public comment on the submittal from February 14, 2014, through March 24, 2014. A notice offering the public an opportunity to comment and request a hearing was published in the Daily Journal of Commerce on February 14, 2014. The Washington Department of Ecology (Ecology) also issued a news release, fact sheet, and hearing notice on Ecology's public involvement Web site and interested parties email list. Ecology received no requests for a public hearing. The EPA has evaluated Washington's submittal and determined that Washington has met the requirements for reasonable notice and public hearing under section 110(a)(2) of the CAA.

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

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

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

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

• 110(a)(2)(D): Interstate transport. 2

• 110(a)(2)(E): Adequate resources.

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

• 110(a)(2)(G): Emergency powers.

• 110(a)(2)(H): Future SIP revisions.

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

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

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

• 110(a)(2)(L): Permitting fees.

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

The EPA's October 14, 2011, guidance restated our interpretation that two elements identified in CAA section 110(a)(2) are not governed by the three-year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but rather, are due at the time the nonattainment area plan requirements are due pursuant to CAA section 172 and the various pollutant specific subparts 2-5 of part D. These requirements are: (i) Submissions required by CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) submissions required by CAA section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address infrastructure elements related to CAA section 110(a)(2)(C) with respect to nonattainment new source review (NSR) or CAA section 110(a)(2)(I). Furthermore, the EPA interprets the CAA section 110(a)(2)(J) provision on visibility as not being triggered by a new NAAQS because the visibility requirements in part C, title I of the CAA are not changed by a new NAAQS.

The EPA is acting upon the SIP submission from Washington that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2008 lead NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon the EPA's taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

The EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, the EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA, such as “nonattainment SIP” or “attainment plan SIP” submissions to address the nonattainment planning requirements of part D of title I of the CAA, “regional haze SIP” submissions required by the EPA rule to address the visibility protection requirements of CAA section 169A, and nonattainment new source review permit program submissions to address the permit requirements of CAA, title I, part D.

Section 110(a)(1) addresses the timing and general requirements for infrastructure SIP submissions, and section 110(a)(2) provides more details concerning the required contents of these submissions. The list of required elements provided in section 110(a)(2) contains a wide variety of disparate provisions, some of which pertain to required legal authority, some of which pertain to required substantive program provisions, and some of which pertain to requirements for both authority and substantive program provisions. 3 The EPA therefore believes that while the timing requirement in section 110(a)(1) is unambiguous, some of the other statutory provisions are ambiguous. In particular, the EPA believes that the list of required elements for infrastructure SIP submissions provided in section 110(a)(2) contains ambiguities concerning what is required for inclusion in an infrastructure SIP submission.

The following examples of ambiguities illustrate the need for the EPA to interpret some section 110(a)(1) and section 110(a)(2) requirements with respect to infrastructure SIP submissions for a given new or revised NAAQS. One example of ambiguity is that section 110(a)(2) requires that “each” SIP submission must meet the list of requirements therein, while the EPA has long noted that this literal reading of the statute is internally inconsistent and would create a conflict with the nonattainment provisions in part D of title I of the CAA, which specifically address nonattainment SIP requirements. 4 Section 110(a)(2)(I) pertains to nonattainment SIP requirements and part D addresses when attainment plan SIP submissions to address nonattainment area requirements are due. For example, section 172(b) requires the EPA to establish a schedule for submission of such plans for certain pollutants when the Administrator promulgates the designation of an area as nonattainment, and section 107(d)(1)(B) allows up to two years, or in some cases three years, for such designations to be promulgated. 5 This ambiguity illustrates that rather than apply all the stated requirements of section 110(a)(2) in a strict literal sense, the EPA must determine which provisions of section 110(a)(2) are applicable for a particular infrastructure SIP submission.

Another example of ambiguity within sections 110(a)(1) and 110(a)(2) with respect to infrastructure SIPs pertains to whether states must meet all of the infrastructure SIP requirements in a single SIP submission, and whether the EPA must act upon such SIP submission in a single action. Although section 110(a)(1) directs states to submit “a plan” to meet these requirements, the EPA interprets the CAA to allow states to make multiple SIP submissions separately addressing infrastructure SIP elements for the same NAAQS. If states elect to make such multiple SIP submissions to meet the infrastructure SIP requirements, the EPA can elect to act on such submissions either individually or in a larger combined action. 6 Similarly, the EPA interprets the CAA to allow it to take action on the individual parts of one larger, comprehensive infrastructure SIP submission for a given NAAQS without concurrent action on the entire submission. For example, the EPA has sometimes elected to act at different times on various elements and sub- elements of the same infrastructure SIP submission. 7

Ambiguities within sections 110(a)(1) and 110(a)(2) may also arise with respect to infrastructure SIP submission requirements for different NAAQS. Thus, the EPA notes that not every element of section 110(a)(2) would be relevant, or as relevant, or relevant in the same way, for each new or revised NAAQS. The states' attendant infrastructure SIP submissions for each NAAQS therefore could be different. For example, the monitoring requirements that a state might need to meet in its infrastructure SIP submission for purposes of section 110(a)(2)(B) could be very different for different pollutants, for example because the content and scope of a state's infrastructure SIP submission to meet this element might be very different for an entirely new NAAQS than for a minor revision to an existing NAAQS. 8

The EPA notes that interpretation of section 110(a)(2) is also necessary when the EPA reviews other types of SIP submissions required under the CAA. Therefore, as with infrastructure SIP submissions, the EPA also has to identify and interpret the relevant elements of section 110(a)(2) that logically apply to these other types of SIP submissions. For example, section 172(c)(7) requires that attainment plan SIP submissions required by part D have to meet the “applicable requirements” of section 110(a)(2). Thus, for example, attainment plan SIP submissions must meet the requirements of section 110(a)(2)(A) regarding enforceable emission limits and control measures and section 110(a)(2)(E)(i) regarding air agency resources and authority. By contrast, it is clear that attainment plan SIP submissions required by part D would not need to meet the portion of section 110(a)(2)(C) that pertains to the PSD program required in part C of title I of the CAA, because PSD does not apply to a pollutant for which an area is designated nonattainment and thus subject to part D planning requirements. As this example illustrates, each type of SIP submission may implicate some elements of section 110(a)(2) but not others.

Given the potential for ambiguity in some of the statutory language of section 110(a)(1) and section 110(a)(2), the EPA believes that it is appropriate to interpret the ambiguous portions of section 110(a)(1) and section 110(a)(2) in the context of acting on a particular SIP submission. In other words, the EPA assumes that Congress could not have intended that each and every SIP submission, regardless of the NAAQS in question or the history of SIP development for the relevant pollutant, would meet each of the requirements, or meet each of them in the same way. Therefore, the EPA has adopted an approach under which it reviews infrastructure SIP submissions against the list of elements in section 110(a)(2), but only to the extent each element applies for that particular NAAQS.

Historically, the EPA has elected to use guidance documents to make recommendations to states for infrastructure SIPs, in some cases conveying needed interpretations on newly arising issues and in some cases conveying interpretations that have already been developed and applied to individual SIP submissions for particular elements. 9 The EPA most recently issued guidance for infrastructure SIPs on September 13, 2013 (2013 Guidance). 10 The EPA developed this document to provide states with up-to-date guidance for infrastructure SIPs for any new or revised NAAQS. Within this guidance, the EPA describes the duty of states to make infrastructure SIP submissions to meet basic structural SIP requirements within three years of promulgation of a new or revised NAAQS. The EPA also made recommendations about many specific subsections of section 110(a)(2) that are relevant in the context of infrastructure SIP submissions. 11 The guidance also discusses the substantively important issues that are germane to certain subsections of section 110(a)(2). Significantly, the EPA interprets sections 110(a)(1) and 110(a)(2) such that infrastructure SIP submissions need to address certain issues and need not address others. Accordingly, the EPA reviews each infrastructure SIP submission for compliance with the applicable statutory provisions of section 110(a)(2), as appropriate.

As an example, section 110(a)(2)(E)(ii) is a required element of section 110(a)(2) for infrastructure SIP submissions. Under this element, a state must meet the substantive requirements of section 128, which pertain to state boards that approve permits or enforcement orders and heads of executive agencies with similar powers. Thus, the EPA reviews infrastructure SIP submissions to ensure that the state's SIP appropriately addresses the requirements of section 110(a)(2)(E)(ii) and section 128. The 2013 Guidance explains the EPA's interpretation that there may be a variety of ways by which states can appropriately address these substantive statutory requirements, depending on the structure of an individual state's permitting or enforcement program ( e.g., whether permits and enforcement orders are approved by a multi-member board or by a head of an executive agency). However they are addressed by the state, the substantive requirements of section 128 are necessarily included in the EPA's evaluation of infrastructure SIP submissions because section 110(a)(2)(E)(ii) explicitly requires that the state satisfy the provisions of section 128.

As another example, the EPA's review of infrastructure SIP submissions with respect to the PSD program requirements in sections 110(a)(2)(C), (D)(i)(II), and (J) focuses upon the structural PSD program requirements contained in part C and the EPA's PSD regulations. Structural PSD program requirements include provisions necessary for the PSD program to address all regulated sources and NSR pollutants, including greenhouse gases. By contrast, structural PSD program requirements do not include provisions that are not required under the EPA's regulations at 40 CFR 51.166 but are merely available as an option for the state, such as the option to provide grandfathering of complete permit applications with respect to the 2012 PM 2.5 NAAQS. Accordingly, the latter optional provisions are types of provisions the EPA considers irrelevant in the context of an infrastructure SIP action.

For other section 110(a)(2) elements, however, the EPA's review of a state's infrastructure SIP submission focuses on assuring that the state's SIP meets basic structural requirements. For example, section 110(a)(2)(C) includes, inter alia, the requirement that states have a program to regulate minor new sources. Thus, the EPA evaluates whether the state has an EPA-approved minor new source review program and whether the program addresses the pollutants relevant to that NAAQS. In the context of acting on an infrastructure SIP submission, however, the EPA does not think it is necessary to conduct a review of each and every provision of a state's existing minor source program ( i.e., already in the existing SIP) for compliance with the requirements of the CAA and EPA's regulations that pertain to such programs.

With respect to certain other issues, the EPA does not believe that an action on a state's infrastructure SIP submission is necessarily the appropriate type of action in which to address possible deficiencies in a state's existing SIP. These issues include: (i) Existing provisions related to excess emissions from sources during periods of startup, shutdown, or malfunction that may be contrary to the CAA and the EPA's policies addressing such excess emissions (“SSM”); (ii) existing provisions related to “director's variance” or “director's discretion” that may be contrary to the CAA because they purport to allow revisions to SIP-approved emissions limits while limiting public process or not requiring further approval by the EPA; and (iii) existing provisions for PSD programs that may be inconsistent with current requirements of the EPA's “Final NSR Improvement Rule,” 67 FR 80186 (December 31, 2002), as amended by 72 FR 32526 (June 13, 2007). Thus, the EPA believes it may approve an infrastructure SIP submission without scrutinizing the totality of the existing SIP for such potentially deficient provisions and may approve the submission even if it is aware of such existing provisions. 12 It is important to note that the EPA's approval of a state's infrastructure SIP submission should not be construed as explicit or implicit re-approval of any existing potentially deficient provisions that relate to the three specific issues just described.

The EPA's approach to review of infrastructure SIP submissions is to identify the CAA requirements that are logically applicable to that submission. The EPA believes that this approach to the review of a particular infrastructure SIP submission is appropriate, because it would not be reasonable to read the general requirements of section 110(a)(1) and the list of elements in 110(a)(2) as requiring review of each and every provision of a state's existing SIP against all requirements in the CAA and the EPA regulations merely for purposes of assuring that the state in question has the basic structural elements for a functioning SIP for a new or revised NAAQS. Because SIPs have grown by accretion over the decades as statutory and regulatory requirements under the CAA have evolved, they may include some outmoded provisions and historical artifacts. These provisions, while not fully up to date, nevertheless may not pose a significant problem for the purposes of “implementation, maintenance, and enforcement” of a new or revised NAAQS when the EPA evaluates adequacy of the infrastructure SIP submission. The EPA believes that a better approach is for states and the EPA to focus attention on those elements of section 110(a)(2) of the CAA most likely to warrant a specific SIP revision due to the promulgation of a new or revised NAAQS or other factors.

For example, the EPA's 2013 Guidance gives simpler recommendations with respect to carbon monoxide than other NAAQS pollutants to meet the visibility requirements of section 110(a)(2)(D)(i)(II), because carbon monoxide does not affect visibility. As a result, an infrastructure SIP submission for any future new or revised NAAQS for carbon monoxide need only state this fact in order to address the visibility prong of section 110(a)(2)(D)(i)(II).

Finally, the EPA believes that its approach with respect to infrastructure SIP requirements is based on a reasonable reading of sections 110(a)(1) and 110(a)(2) because the CAA provides other avenues and mechanisms to address specific substantive deficiencies in existing SIPs. These other statutory tools allow the EPA to take appropriately tailored action, depending upon the nature and severity of the alleged SIP deficiency. Section 110(k)(5) authorizes the EPA to issue a “SIP call” whenever the EPA determines that a state's SIP is substantially inadequate to attain or maintain the NAAQS, to mitigate interstate transport, or to otherwise comply with the CAA. 13 Section 110(k)(6) authorizes the EPA to correct errors in past actions, such as past approvals of SIP submissions. 14 Significantly, the EPA's determination that an action on a state's infrastructure SIP submission is not the appropriate time and place to address all potential existing SIP deficiencies does not preclude the EPA's subsequent reliance on provisions in section 110(a)(2) as part of the basis for action to correct those deficiencies at a later time. For example, although it may not be appropriate to require a state to eliminate all existing inappropriate director's discretion provisions in the course of acting on an infrastructure SIP submission, the EPA believes that section 110(a)(2)(A) may be among the statutory bases that EPA relies upon in the course of addressing such deficiency in a subsequent action. 15

CAA section 110(a)(2)(A) requires SIPs to include enforceable emission limits and other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA.

State submittal: Washington's previous infrastructure certification for the 1997 ozone NAAQS outlined the State's overarching regulatory and statutory authorities to set emission limits and require control measures generally for all criteria pollutants. These statutory authorities include portions of Chapter 70.94 Revised Code of Washington (RCW) Washington Clean Air Act and Chapter 43.21A RCW Department of Ecology. As noted in Washington's submittal for the lead NAAQS, the underlying statutory authorities remain unchanged since the EPA's last review and approval of the 1997 ozone NAAQS infrastructure certification (May 24, 2012; 77 FR 30902). 16 Like ozone, the State has a long history of regulating lead, therefore the broad regulatory authorities to address criteria pollutants generally, codified in the SIP at 40 CFR part 52, subpart WW, continue to protect and maintain the lead NAAQS. The most significant change to the SIP since the EPA's last review is Washington's submittal of Washington Administrative Code (WAC) section 173-476-120 Ambient Air Quality Standards for Lead (Pb) which set state standards for lead that match the EPA lead NAAQS. The EPA approved WAC 173-476-120 on March 4, 2014 (79 FR 12077).

Washington's submittal includes an analysis of potential lead sources in the State. In 2010, the EPA improved the existing lead monitoring network by requiring monitors be placed in areas with sources such as industrial facilities with lead emissions of 0.5 tons or more. Washington currently has no known industrial facilities with lead emissions at these updated monitoring thresholds; nor are there any nonattainment areas for lead in the State. Because leaded aviation gasoline was considered a possible threat to attainment, the EPA required a year-long monitoring study of airports with estimated lead emissions between 0.50 and 1.0 tons per year, including two airports in Washington: Auburn Municipal Airport and Harvey Field in Snohomish. Monitoring results at these Washington airports showed little risk of future nonattainment, with concentrations well below one-half the 2008 lead NAAQS, as discussed in the evaluation of CAA section 110(a)(2)(B), below. Given the lack of air emissions in the State at current reporting and monitoring thresholds for lead, Washington determined that no new control measures or emission standards would be necessary at this time. If any new facilities are found to emit lead, Washington determined that the existing EPA-approved minor source permitting program and the PSD FIP would adequately address these situations in the future.

EPA analysis: The EPA agrees with Washington's determination that no new control measures or emission limits for lead seem necessary at this time, due to the lack of air emission sources in the State. The EPA is proposing to find that the existing Washington SIP, codified in 40 CFR 52, subpart WW, is adequate to protect and maintain the 2008 lead NAAQS.

The EPA is also proposing to find that Washington's SIP meets the requirements of section 110(a)(2)(A) for the 2008 lead NAAQS, subject to the following qualifications. We are not proposing to approve or disapprove any existing state provisions with regard to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. The EPA believes that a number of states may have SSM provisions that are contrary to the CAA and existing EPA guidance and the EPA plans to address such state regulations. 17 In the meantime, the EPA encourages any state having a deficient SSM provision to take steps to correct it as soon as possible. In addition, we are not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. The EPA believes that a number of states may have such provisions that are contrary to the CAA and existing EPA guidance (52 FR 45109, November 24, 1987) and the EPA plans to take action in the future to address such state regulations. In the meantime, we encourage any state having a director's discretion or variance provision that is contrary to the CAA and the EPA guidance to take steps to correct the deficiency as soon as possible.

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

State submittal: Washington derives its general statutory authority to establish and operate ambient air quality monitors from RCW 70.94.331(5) Powers and Duties of Department which states, “[t]he department is directed to conduct or cause to be conducted a continuous surveillance program to monitor the quality of the ambient atmosphere as to concentrations and movements of air contaminants and conduct or cause to be conducted a program to determine the quantity of emissions to the atmosphere.” Regulatory authority is contained in the EPA-approved SIP provisions of WAC 173-400-105 Records, Monitoring and Reporting. These authorities were reviewed by the EPA as part of the previous 1997 ozone infrastructure approval and have not changed since the EPA's last review.

With respect to lead, Washington's submittal focuses primarily on the airport lead monitoring study conducted from December 2011 through December 2012. This effort was part of a year-long EPA monitoring study of 15 airports with estimated lead emissions between 0.50 and 1.0 ton per year, which included two airports in Washington: Auburn Municipal Airport and Harvey Field in Snohomish. The study found that the maximum three-month rolling average at the Auburn Airport was 0.055 μg/m 3 (37% of NAAQS) and at Harvey Field was 0.032 μg/m 3 (21% of NAAQS). Because neither airport measured a three-month rolling average that exceeded 50% of the NAAQS, the lead monitoring at both airports was concluded December 2012, in accordance with 40 CFR part 58. Details on the EPA's lead monitoring study can be found at http://www.epa.gov/otaq/regs/nonroad/aviation/420f13032.pdf .

EPA analysis: Washington submitted a comprehensive air quality monitoring plan to meet the requirements of 40 CFR part 58, which the EPA approved on April 15, 1981. This air quality monitoring plan has been updated annually, with the most recent submittal dated May 2013. The EPA approved the plan on March 10, 2014, included in the docket for this action. This approved plan meets the EPA's revised ambient monitoring requirements for lead promulgated on December 14, 2010 (75 FR 81126) as specified in 40 CFR part 58. Washington provides air quality monitoring data summaries and a map of the air monitoring network at: https://fortress.wa.gov/ecy/enviwa/Default.htm . Therefore, we are proposing to approve the Washington SIP as meeting the requirements of CAA section 110(a)(2)(B) for the 2008 lead NAAQS.

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

State submittal: The Washington submittal refers to EPA-approved regulatory provisions contained in the SIP under WAC 173-400-230 Regulatory Actions and WAC 173-400-240 Criminal Penalties, as well as the enforcement-related statutory provisions of Chapter 70.94 RCW, Washington Clean Air Act. All of these enforcement provisions remain unchanged since the EPA's last review and approval of the 1997 ozone infrastructure submittal (May 24, 2012; 77 FR 30902). Washington also cites the EPA-approved minor source permitting program contained in the SIP under WAC 173-400-110 New Source Review and WAC 173-400-113 Requirements for New Sources in Attainment or Unclassifiable Areas. Specifically, WAC 173-400-113(3) ensures that, “[a]llowable emissions from the proposed new source or modification will not delay the attainment date for an area not in attainment nor cause or contribute to a violation of any ambient air quality standard.” Washington also notes that there are no lead nonattainment areas in the State and any major PSD sources in attainment or unclassifiable areas would be addressed under the existing EPA FIP codified in 40 CFR 52.2497.

EPA analysis: With regard to the requirement to have a program providing for enforcement of all SIP measures, we are proposing to find that the Washington provisions provide the State with authority to enforce the air quality regulations, permits, and orders promulgated pursuant to the SIP. Washington may issue emergency orders to reduce or discontinue emission of air contaminants where air emissions cause or contribute to imminent and substantial endangerment under the EPA-approved provisions of WAC 173-435 Emergency Episode Plan. Enforcement cases may be referred to the State Attorney General's Office for civil or criminal enforcement. Therefore, we are proposing to approve the Washington SIP as meeting the requirements of CAA section 110(a)(2)(C) related to enforcement for the 2008 lead NAAQS.

To generally meet the requirements of CAA section 110(a)(2)(C) with regard to the regulation of construction of new or modified stationary sources, a state is required to have PSD, nonattainment NSR, and minor NSR permitting programs adequate to implement the 2008 lead NAAQS. As explained above, in the “CAA Sections 110(a)(1) and (2) Infrastructure Elements” discussion, we are not evaluating nonattainment related provisions in this action, such as the nonattainment NSR program required by part D, title I of the CAA. In addition, Washington has no designated nonattainment areas for the 2008 lead NAAQS. With regard to the minor NSR requirement of this element, we have determined that the Washington minor NSR program adopted pursuant to section 110(a)(2)(C) of the CAA is adequate to regulate emissions of lead because WAC 173-400-113 prevents the cause or contribution to a violation of any ambient air quality standard. Lastly, as previously discussed, the PSD permitting program in Washington is operated under an EPA FIP. As noted in the EPA's October 14, 2011, infrastructure guidance, when an area is already subject to a FIP for PSD permitting (whether or not a state, local, or tribal air agency has been delegated federal authority to implement the PSD FIP), the air agency may choose to continue to rely on the PSD FIP to have permits issued pursuant to the FIP. If so, the EPA could not fully approve the infrastructure SIP submission; however, the EPA anticipates that there would be no adverse consequences to the air agency or to sources from this partial disapproval of the infrastructure SIP. Therefore, the EPA is proposing to partially disapprove Washington's SIP for those requirements of CAA section 110(a)(2)(C) related to PSD. 18

CAA section 110(a)(2)(D)(i) requires state SIPs to include provisions prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment, or interfering with maintenance of the NAAQS in another state (CAA section 110(a)(2)(D)(i)(I)). Further, this section requires state SIPs to include provisions prohibiting any source or other type of emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality, or from interfering with measures required to protect visibility (i.e. measures to address regional haze) in any state (CAA section 110(a)(2)(D)(i)(II)).

State submittal: In accordance with the U.S. Court of Appeals for the D.C. Circuit opinion in EME Homer City generation, L.P. v. EPA, in effect at the time of the State's submission, Washington's certification notes that states were not required to submit SIPs addressing CAA section 110(a)(2)(D)(i)(I) until the EPA had quantified their obligations under that section. With respect to the CAA section 110(a)(2)(D)(i)(II) requirements, Washington's certification notes that a FIP is in place to address the PSD components. With respect to visibility, Washington submitted a regional haze plan in 2010, which the EPA proposed to partially approve and partially disapprove and supplement with a FIP (December 30, 2013; 78 FR 79344). Notwithstanding the final outcome of the EPA's proposed partial approval and partial FIP, the infrastructure submittal notes that Washington does not currently have any known sources of lead at 0.5 tons per year and concludes, based on the EPA's October 14, 2011, infrastructure guidance, that lead is not a pollutant that contributes towards visibility problems and there are no impacts to Class I areas in neighboring states from sources of lead in Washington State.

EPA analysis: As noted in the EPA's October 14, 2011, infrastructure guidance, the physical properties of lead prevent emissions from experiencing the same travel or formation phenomena as fine particulate matter or ozone. Given the lack of significant stationary sources of lead in the State, it is extremely unlikely that Washington sources would contribute significantly to nonattainment, or interfere with maintenance of the NAAQS in another state. On April 29, 2014, the United States Supreme Court reversed and remanded the decision of the D.C. Circuit in EME Homer City Generation, which had been relied upon by the State in making its infrastructure submission. The EPA intends to address the requirements of CAA Section 110(a)(2)(D)(i)(I) in a separate action.

The EPA believes that the CAA section 110(a)(2)(D)(i)(II) PSD sub-element is satisfied when new major sources and major modifications in Washington are subject to a SIP- approved PSD program that satisfactorily implements the 2008 lead NAAQS. As previously noted, a FIP is in place for the PSD program in Washington. Therefore, the EPA is proposing to disapprove the Washington SIP with respect to the CAA section 110(a)(2)(D)(i)(II) PSD sub-element.

The EPA believes, as noted in the October 14, 2011, infrastructure guidance that, with regard to the CAA section 110(a)(2)(D)(i)(II) visibility sub-element, significant impacts from lead emissions from stationary sources are expected to be limited to short distances from the source and most, if not all lead stationary sources, are located at distances from Class I areas such that visibility impacts would be negligible. The EPA's guidance notes that, “EPA's experience with initial lead designations suggests that sources that emit less than 0.5 tpy [tons per year] or that are located more than 2 miles from a state border generally appear unlikely to contribute significantly to nonattainment in another state.” While this statement specifically addressed interstate transport prongs 1 and 2 (nonattainment and maintenance) the physical properties of lead remain the same with respect to prong 4 (visibility). In Washington there are currently no known sources emitting lead at 0.5 tons per year.

Therefore, the EPA is proposing to approve the Washington SIP for purposes of the CAA section 110(a)(2)(D)(i)(II) requirements related to visibility for the 2008 lead NAAQS.

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

State submittal: Washington's submittal notes that the State has no pending obligations under section 115 or 126(b) of the CAA. CAA section 126(a) obligations are met through the current PSD FIP.

EPA analysis: The EPA agrees that Washington has no pending interstate or international pollution obligations under CAA sections 115 and 126(b). Because Washington does not have SIP-approved provisions addressing the requirements and instead relies on the PSD FIP to satisfy its CAA section 126(a) obligations, the EPA is proposing to partially disapprove the SIP for this element. However, as previously noted, the EPA anticipates that there would be no adverse consequences to Washington or to sources resulting from this proposed partial disapproval of the infrastructure SIP.

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

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

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

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

EPA analysis: Regarding adequate personnel, funding and authority, the EPA believes the Washington SIP meets the requirements of this element. Washington receives CAA sections 103 and 105 grant funds from the EPA and provides state matching funds necessary to carry out SIP requirements. Regarding the state board requirements under CAA section 128, the EPA approved WAC 173-400-220 Requirements for Board Members and WAC 173-400-260 Conflict of Interest as meeting the section 128 requirements on June 2, 1995 (60 FR 28726). As part of the approval for the 1997 ozone infrastructure action, the EPA reviewed these provisions again and found that they still adequately met the section 128 requirements (May 24, 2012; 77 FR 30902). Finally, regarding state responsibility and oversight of local and regional entities, RCW 70.94.370 provides Ecology with adequate authority to carry out SIP obligations with respect to the 2008 lead NAAQS. Therefore, the EPA is proposing to approve the Washington SIP as meeting the requirements of CAA Section 110(a)(2)(E) for the 2008 lead NAAQS.

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

State submittal: The EPA-approved version of WAC 173-400-105 Records, Monitoring, and Reporting currently in the Washington SIP provides the authority to monitor stationary source emissions for compliance purposes and make the information available to the public. The language of WAC 173-400-105(1) provides general authority to require emission reporting, including lead emissions. Meanwhile, WAC 173-400-105(2) allows Ecology to require stack testing and/or ambient air monitoring, even if not required in a permit or other enforceable requirement as part of a continuous surveillance program to protect air quality. Washington currently has no known lead stationary sources at the EPA's updated stationary source monitoring threshold of 0.5 tons per year. If additional stationary sources are found to emit lead above this threshold, Washington has adequate authority under WAC 173-400-105 to compel additional monitoring.

EPA analysis: The EPA-approved regulatory provisions cited by Washington establish compliance requirements to monitor emissions, keep and report records, and collect ambient air monitoring data in accordance with CAA section 110(a)(2)(F). Additionally, Washington is required to submit emissions data to the EPA for purposes of the National Emissions Inventory (NEI). The NEI is the EPA's central repository for air emissions data. The EPA published the Air Emissions Reporting Rule (AERR) on December 5, 2008, which modified the requirements for collecting and reporting air emissions data (73 FR 76539). All states are required to submit a comprehensive emissions inventory every three years and report emissions for certain larger sources annually through the EPA's online Emissions Inventory System. States report emissions data for the six criteria pollutants and their associated precursors—nitrogen oxides, sulfur dioxide, ammonia, lead, carbon monoxide, particulate matter, and volatile organic compounds. The EPA compiles the emissions data, supplementing it where necessary, and releases it to the general public through the Web site http://www.epa.gov/ttn/chief/eiinformation.html .

Based on the analysis above, we are proposing to approve the Washington SIP as meeting the requirements of CAA section 110(a)(2)(F) for the 2008 lead NAAQS.

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

State submittal: The State cites the EPA-approved Washington SIP provisions of WAC 173-435 Emergency Episode Plan, which are consistent with the EPA's regulations contained in 40 CFR part 51, subpart H (51.150-51.153). Similar to the EPA regulations in subpart H, the Washington SIP does not contain specific requirements for lead; however the general emergency episode regulations provide the State with adequate authority to address other emissions that are causing imminent danger to public health or safety.

EPA analysis: As noted in the October 14, 2011, guidance, based on the EPA's experience to date with the lead NAAQS and designating lead nonattainment areas, the EPA expects that an emergency episode associated with lead emissions would be unlikely and, if it were to occur, would be the result of a malfunction or other emergency situation at a relatively large source of lead. Accordingly, the EPA believes that the central components of a contingency plan would be to reduce emissions from the source at issue and public communication, as needed.

Section 303 of the CAA provides authority to the EPA Administrator to restrain any source from causing or contributing to emissions which present an “imminent and substantial endangerment to public health or welfare, or the environment.” We find that the EPA-approved Washington SIP at WAC 173-435-050 Action Procedures provides Washington with comparable authority. Specifically, WAC 173-435-050(6) states, “regardless of whether any episode stages have previously been declared, whenever the governor finds that emissions are causing imminent danger to public health or safety, the governor may declare an air pollution emergency and order the persons responsible for the operation of sources causing the danger, to reduce or discontinue emissions consistent with good operating practice, safe operating procedures, and SERPs [source emission reduction plans], if any.” Further, WAC 173-435-050(5) requires, “the broadest publicity practicable shall be given to the declaration of any episode stage. Such declaration shall, as soon as possible, be directly communicated to all persons responsible for the carrying out of SERPs within the affected area.” Accordingly, we are proposing to approve the Washington SIP as meeting the requirements of CAA section 110(a)(2)(G) for the 2008 lead NAAQS.

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

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

EPA analysis: RCW 70.94.510 specifically requires Ecology to cooperate with the federal government in order to ensure the coordination of the provisions of the federal and state Clean Air Acts. In practice, the State regularly submits revisions to the EPA to revise the SIP. EPA most recently approved revisions to the Washington SIP on October 3, 2013 (78 FR 61188, Thurston County Second 10-Year PM 10 Limited Maintenance Plan), September 17, 2013 (78 FR 57073, Puget Sound Clean Air Agency Regulatory Updates), and May 29, 2013 (78 FR 32131, Tacoma-Pierce County Nonattainment Area). Accordingly, we are proposing to approve the Washington SIP as meeting the requirements of CAA section 110(a)(2)(H) for the 2008 lead NAAQS.

There are two elements identified in CAA section 110(a)(2) not governed by the three-year submission deadline of CAA section 110(a)(1) because SIPs incorporating necessary local nonattainment area controls are not due within three years after promulgation of a new or revised NAAQS, but are rather due at the time of the nonattainment area plan requirements pursuant to section 172 and the various pollutant specific subparts 2-5 of part D. These elements are: (i) submissions required by CAA section 110(a)(2)(C) to the extent that subsection refers to a permit program as required in part D, title I of the CAA, and (ii) submissions required by section 110(a)(2)(I) which pertain to the nonattainment planning requirements of part D, title I of the CAA. As a result, this action does not address infrastructure elements related to CAA section 110(a)(2)(C) with respect to nonattainment NSR or CAA section 110(a)(2)(I).

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

State submittal: The State submittal cites the following regulatory provisions contained in the Washington SIP to meet CAA section 110(a)(2)(J) obligations: WAC 173-435-050 Action Procedures, WAC 173-400-151 Retrofit Requirements for Visibility, and WAC 173-400-171 Public Involvement. Washington also cites the following statutory authorities: RCW 34.05 Administrative Procedures Act, RCW 42.30 Open Public Meetings, RCW 70.94.141 Consultation, and RCW 70.94.240 Air Pollution Control Advisory Council. In addition to these SIP measures, Ecology uses the Washington Air Quality Advisory (WAQA) tool for informing the public about the levels and health effects of air pollution. The public can access up-to-date WAQA information on-line at https://fortress.wa.gov/ecy/enviwa/Default.htm .

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

Section 110(a)(2)(J) also requires the public be notified if NAAQS are exceeded in an area and to enhance public awareness of measures that can be taken to prevent exceedances. Washington actively participates and submits information to the EPA's AIRNOW program which provides information to the public on the air quality in their locale. In addition, Washington provides the State's annual network monitoring plan, annual air quality monitoring data summaries, specific warnings and advice to those persons who may be most susceptible, and a map of the air monitoring network to the public on their Web site ( http://www.ecy.wa.gov/programs/air/airhome.html ). Therefore, we are proposing to find that the Washington SIP meets the requirements of CAA section 110(a)(2)(J) for public notification for the 2008 lead NAAQS.

Turning to the requirement in CAA section 110(a)(2)(J) that the SIP meet the applicable requirements of part C of title I of the CAA, we have evaluated this requirement in the context of CAA section 110(a)(2)(C) with respect to PSD permitting. As discussed previously, PSD in Washington is operated under a FIP. We are proposing to disapprove the Washington SIP for the requirements of CAA 110(a)(2)(J) with regard to PSD. Instead the State and the EPA will continue to rely on the existing PSD FIP.

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

Based on the above analysis, we are proposing to approve the Washington SIP as meeting the requirements of CAA section 110(a)(2)(J) for the 2008 lead NAAQS, except for those elements related to PSD which we are proposing to partially disapprove.

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

State submittal: The Washington submittal states that air quality modeling is conducted during development of revisions to the SIP, as appropriate for the State to demonstrate attainment with required air quality standards. Modeling is also addressed in the permitting process (see discussion at CAA section 110(a)(2)(C)). Estimates of ambient concentrations are based on air quality models, data bases and other requirements specified in 40 CFR part 51, Appendix W (Guidelines on Air Quality Models) and are routinely used by Washington. Exceptions to using Appendix W are handled under the provisions of 40 CFR 51.166 which requires written approval from the EPA and an opportunity for public comment.

EPA analysis: As noted in the state submittal, Washington models estimates of ambient concentrations based on 40 CFR part 51, Appendix W (Guidelines on Air Quality Models) for both permitting and SIP development. Any change or substitution from models specified in 40 CFR part 51, Appendix W is subject to notice and opportunity for public comment. While Washington has no nonattainment areas for lead, modeling was used to support maintenance plans and redesignation to attainment requests for the former ozone nonattainment areas of Puget Sound and Vancouver, approved by the EPA on September 26, 1996 (61 FR 50438) and May 19, 1997 (62 FR 27204), respectively. More recently, modeling was used to develop control measures for the Tacoma-Pierce County fine particulate matter nonattainment area, although the area came into attainment before a formal SIP submission was required (78 FR 32131, May 29, 2013). Based on the foregoing, we are proposing to approve Washington's SIP as meeting the requirements of CAA Section 110(a)(2)(K) for the 2008 lead NAAQS.

CAA section 110(a)(2)(L) requires SIPs to require each major stationary source to pay permitting fees sufficient to cover the cost of reviewing, approving, implementing and enforcing a permit, until such fee requirement is superseded with respect to such sources by the EPA's approval of a fee program under title V.

State submittal: The State's submittal notes that there are no major stationary sources or nonattainment areas for lead in Washington, and facilities that would be subject to PSD permitting are covered under the EPA FIP. Notwithstanding that, Washington derives its authority to collect fees for new source review and title V sources from RCW 70.94.151, RCW 70.94.152, and RCW 70.94.162. The EPA reviewed Washington's fee provisions and fully approved the title V program on August 13, 2001 (66 FR 42439), with a revision approved on January 2, 2003 (67 FR 71479).

EPA analysis: As noted in the State's submittal, the EPA approved the Washington title V permitting program on August 13, 2001, with an effective date of September 12, 2001 (66 FR 42439). Meanwhile, Washington does not have a SIP-approved PSD permitting program and, therefore, is not required to have PSD permitting fees in its SIP. As discussed earlier in this notice, PSD permitting in Washington takes place by means of a FIP. Therefore, we are proposing to conclude that Washington has satisfied its current obligations under CAA section 110(a)(2)(L) for the 2008 lead NAAQS by virtue of the EPA's prior approval of Washington's title V permitting program.

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

State submittal: Washington cites the following regulations and statutes as pertinent to this infrastructure SIP requirement: WAC 173-400-171 Public Involvement, RCW 34.05 Administrative Procedure Act, RCW 42.30 Open Public Meetings Act, and RCW 70.94.240 Air Pollution Control Advisory Council.

EPA analysis: As discussed in the preamble relating to CAA section 110(a)(2)(J), Ecology routinely coordinates with local governments and other stakeholders on air quality issues. The public involvement regulations cited in Washington's submittal were previously approved into Washington's federally-approved SIP on June 2, 1995 (60 FR 28726). Therefore, the EPA proposes to find that Washington's SIP meets the requirements of CAA Section 110(a)(2)(M) for the 2008 lead NAAQS.

The EPA is proposing to partially approve the April 1, 2014, submittal from Washington to demonstrate that the SIP meets the requirements of sections 110(a)(1) and (2) of the CAA for the lead NAAQS promulgated on October 15, 2008, except for the requirements related to PSD permitting and portions of the interstate transport requirements as discussed in detail above. Specifically, we are proposing to find that the current EPA-approved Washington SIP meets the following CAA section 110(a)(2) infrastructure elements for the 2008 lead NAAQS: (A), (B), (C)—except for those elements covered by the PSD FIP, (D)(i)(II)—except for those elements covered by the PSD FIP, (D)(ii)—except for those elements covered by the PSD FIP, (E), (F), (G), (H), (J)—except for those elements covered by the PSD FIP, (K), (L), and (M). As previously noted, the EPA anticipates that there would be no adverse consequences to Washington or to sources in the State resulting from this proposed partial disapproval of the infrastructure SIP related to PSD. The EPA, likewise, has no additional FIP responsibilities as a result of this proposed partial disapproval for requirements related to PSD. Remaining interstate transport requirements arising under CAA Section 110(a)(2)(D)(i)(I) for the 2008 lead NAAQS will be addressed in a separate action.

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

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because it will not impose substantial direct costs on tribal governments or preempt tribal law. The SIP is not approved to apply in Indian country located in the State, except for non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area and the EPA is therefore approving this SIP on such lands. Consistent with EPA policy, the EPA nonetheless provided a consultation opportunity to the Puyallup Tribe in a letter dated September 3, 2013. The EPA did not receive a request for consultation.

Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA.

Under section 109 of the CAA, the EPA establishes national ambient air quality standards (NAAQS or “standards”) for certain pervasive air pollutants (referred to as “criteria pollutants”) and conducts periodic reviews of the NAAQS to determine whether they should be revised or whether new NAAQS should be established.

On July 18, 1997, the EPA revised the NAAQS for particulate matter to add new standards for fine particles, using PM 2.5 (particles less than or equal to 2.5 micrometers in diameter) as the indicator for the pollutant. The EPA established primary and secondary  1 annual and 24-hour standards for PM 2.5 (62 FR 38652). The annual standard was set at 15.0 micrograms per cubic meter (μg/m 3 ), based on a 3-year average of annual mean PM 2.5 concentrations, and the 24-hour standard was set at 65 μg/m 3 , based on the 3-year average of the 98th percentile of 24-hour PM 2.5 concentrations at each population-oriented monitor within an area. On October 17, 2006 (71 FR 61144), the EPA revised the level of the 24-hour PM 2.5 NAAQS to 35 μg/m 3 , based on a 3-year average of the 98th percentile of 24-hour concentrations.

Effective December 14, 2009, the EPA established the initial air quality designations for most areas in the United States for the 2006 24-hour PM 2.5 NAAQS (74 FR 58688, November 13, 2009). Among the various areas designated in 2009, the EPA designated the cross border Logan, Utah-Idaho nonattainment area as nonattainment for the 2006 24-hour PM 2.5 NAAQS. The boundaries for these areas are described in 40 CFR 81.313.

Section 172(c)(3) of the CAA requires a state with an area designated as nonattainment to submit for EPA approval a comprehensive, accurate, and current inventory of actual emissions for the nonattainment area. The EPA's requirements for an emissions inventory for the PM 2.5 NAAQS are set forth in 40 CFR 51.1008, promulgated as part of the EPA's Clean Air Fine Particle Implementation Rule published April 25, 2007 (72 FR 20586) (hereafter referred to as the “PM 2.5 implementation rule”). Although the U.S. Court of Appeals for the District of Columbia (D.C. Circuit) recently remanded the PM 2.5 implementation rule and directed the EPA to re-promulgate it pursuant to subpart 4 of part D, title I of the CAA ( see Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013)), the court's ruling in this case does not affect the EPA's action on the emissions inventory. Subpart 4 of part D, title I of the Act contains no specific provision governing emissions inventories for PM 10 or PM 2.5 nonattainment areas that supersedes the general emissions inventory requirement for all nonattainment areas in CAA section 172(c)(3). See “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” (57 FR 13498, 13539, April 16, 1992). This proposed approval is limited to the emissions inventory for direct PM 2.5 and PM 2.5 precursors submitted by IDEQ for the Franklin County portion of the Logan, Utah-Idaho nonattainment area as required under section 172(c)(3) of the CAA.

Section 172(c)(3) of the CAA requires states to submit a comprehensive, accurate, and current inventory of actual emissions for each nonattainment area. The EPA's requirements for an emissions inventory for the PM 2.5 NAAQS are set forth in 40 CFR 51.1008. For the PM 2.5 NAAQS, the pollutants to be inventoried are PM 2.5 and PM 2.5 precursors (i.e., nitrogen oxides (NO X ), volatile organic compounds (VOCs), ammonia (NH 3 ), and sulfur dioxide (SO 2 )). 2

The Franklin County emissions inventory provides a 2008 inventory in tons per day (tpd) winter-time episode estimates for PM 2.5 and PM 2.5 precursors. Monitoring data for Franklin County, and the overall Logan nonattainment area, indicates that high PM 2.5 concentrations occur during the winter months when meteorological conditions trap pollutants in the valley. Therefore, the Franklin County emissions estimates reflect the winter stagnation episodes when secondary PM 2.5 formation dominates. The source categories include stationary sources, area sources, on-road mobile sources and off-road mobile sources. A summary of the Franklin County emissions inventory is provided in Table 1 below, and the detailed Franklin County emissions inventory is found in Appendices B and C of IDEQ's submittal.

The Franklin County emissions inventory includes emissions estimates from stationary sources, area sources, on-road mobile sources, and off-road mobile sources. The methodologies used to derive the 2008 inventory for PM 2.5 are as follows:

• The stationary source emissions inventory is based on 2008 data of actual emissions reported by all permitted facilities. In Franklin County there are no industrial point sources of this type.

• Area-wide source emissions were calculated based on reported data for fuel usage, product sales, population, employment data, and other parameters covering a wide range of activities, in conjunction with the 2008 triennial National Emissions Inventory (NEI).

• IDEQ calculated residential wood stove base year and subsequent emission reductions using the EPA's Woodstove Calculator and tax receipt information from certified woodstove change out incentive programs.

• The on-road emissions inventory, which consists of mobile sources such as trucks, automobiles, buses, and motorcycles, was prepared by IDEQ using the EPA's Motor Vehicle Emissions Simulator (MOVES2010a).

• The non-road mobile source category includes aircraft, trains and boats, and off-road vehicles and equipment used for construction, farming, commercial, industrial, and recreational activities. Non-road emissions were estimated by IDEQ and Utah Department of Air Quality using the EPA's NONROAD2008a model as described in Appendix B of the SIP submittal.

• Paved road emissions were estimated by IDEQ, based on the EPA's January 2011 version of AP-42, Section 13.2.1.

The EPA has reviewed the results, procedures, and methodologies for the Franklin County emissions inventory. IDEQ used standard procedures to develop its emissions inventory and appropriately used seasonal emissions inventories to represent episodic meteorological conditions when PM 2.5 levels are of the greatest concern. After reviewing the IDEQ submittal of the Franklin County emissions inventory and supporting documentation, the EPA is proposing to find that the emissions inventory meets the requirements of the CAA and the EPA's guidance.

The EPA is proposing approval of the PM 2.5 and PM 2.5 precursor emissions inventory submitted by IDEQ, dated December 14, 2012, for the Franklin County, Idaho portion of the cross border Logan, Utah-Idaho nonattainment area. The EPA has determined that this action is consistent with sections 110 and 172(c)(3) of the CAA.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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 CAA; and

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

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

In the final rules section of the Federal Register , EPA is approving the state's SIP revision as a direct final rule without prior proposal because the Agency views this as a noncontroversial revision amendment and anticipates no relevant adverse comments to this action. A detailed rationale for the approval is set forth in the direct final rule. If no relevant adverse comments are received in response to this action, no further activity is contemplated in relation to this action. If EPA receives relevant adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed action. EPA will not institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the rules section of this Federal Register .

This document extends the public comment period established in the Federal Register issue of March 19, 2014 (79 FR 15444) (FRL-9395-8). In that document, public comments were required to be submitted on or before June 17, 2014. EPA is hereby extending that comment period to August 18, 2014.

To submit comments, or access the docket, please follow the detailed instructions as provided under ADDRESSES in the March 19, 2014 Federal Register document. If you have questions, consult the person listed under FOR FURTHER INFORMATION CONTACT .

On October 16, 2012, the U.S. Fish and Wildlife Service published a proposed rule in the Federal Register (77 FR 63440) to list the Neosho mucket ( Lampsilis rafinesqueana ) as an endangered species and the rabbitsfoot ( Quadrula cylindrica cylindrica ) as a threatened species and to designate critical habitat for these two mussels under the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ) (Act). We proposed to designate approximately 779.1 river kilometers (rkm) (484.1 river miles (rmi)) of critical habitat for the Neosho mucket in the Cottonwood, Elk, Fall, Illinois, Neosho, Shoal, Spring, North Fork Spring, and Verdigris Rivers in Arkansas, Kansas, Missouri, and Oklahoma.

We proposed to designate 2,664 rkm (1,655 rmi) of critical habitat for the rabbitsfoot in the Neosho, Spring (Arkansas River system), Verdigris, Black, Buffalo, Little, Ouachita, Saline, Middle Fork Little Red, Spring (White River system), South Fork Spring, Strawberry, White, St. Francis, Big Sunflower, Big Black, Paint Rock, Duck, Tennessee, Red, Ohio, Allegheny, Green, Tippecanoe, Walhonding, Middle Branch North Fork Vermilion, and North Fork Vermilion Rivers and Bear, French, Muddy, Little Darby and Fish Creeks in Alabama, Arkansas, Illinois, Indiana, Kansas, Kentucky, Mississippi, Missouri, Ohio, Oklahoma, Pennsylvania, and Tennessee. That proposal had a 60-day comment period, ending December 17, 2012.

On May 9, 2013, we announced the reopening of the comment period for the proposed listing of Neosho mucket and rabbitsfoot and the availability of our draft environmental assessment (DNEPA-EA) and draft economic analysis (DEA) of the proposed critical habitat (78 FR 27171). The comment period was reopened for 30 days, ending on June 10, 2013.

Subsequently, we received two requests for the reopened comment period to be extended so the public could have additional time to review the DNEPA-EA and DEA. The requests were from Senator Mark Pryor of Arkansas and the Kansas Farm Bureau. In response to these requests, we reopened the comment period for an additional 60 days from August 27, 2013, to October 28, 2013 (78 FR 52894).

There has been significant interest in Arkansas about this proposed critical habitat designation. We received an additional request from Senator Pryor for the reopened comment period to be extended again so that the public could have more time to review the draft environmental assessment and draft economic analysis. We concurred with this request.

Therefore, with this notice we are reopening the comment period on the proposed designation of critical habitat and on the DEA and DNEPA-EA for an additional 60 days. Further, in order to facilitate a better understanding of the proposed designation and the potential effects on stakeholders, the Service intends to hold public information meetings in Arkansas. The date, time, and locations of these meetings will be coordinated with interested stakeholders and noticed in newspapers and other media outlets.

Additional information may be found in the October 16, 2012, proposed rule (77 FR 63440) and the May 9, 2013, and August 27, 2013, documents to reopen the comment period and announce the availability of the DNEPA-EA and DEA (78 FR 27171 and 78 FR 52894).

We are again seeking written comments and information during this reopened comment period on our proposed designation of critical habitat for Neosho mucket and rabbitsfoot that published in the Federal Register on October 16, 2012 (77 FR 63440), and on our DEA and DNEPA-EA of the proposed critical habitat designation that were made available for review on May 9, 2013, and August 27, 2013 (78 FR 27171 and 78 FR 52894).

With regard to the proposed critical habitat determination, we are particularly interested in comments concerning:

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

(2) Specific information on:

(a) The amount and distribution of the species' habitat;

(b) What areas occupied by the species at the time of listing that contain features essential to the conservation of the species we should include in the designation and why;

(c) Special management considerations or protection that may be needed in critical habitat areas we are proposing, including managing for the potential effects of climate change; and

(d) What areas not occupied at the time of listing are essential for the conservation of the species and why.

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

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

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

If you submitted comments or information on the proposed rule (77 FR 63440) during the initial comment period from October 16, 2012, to December 17, 2012, or the reopened comment periods from May 9, 2013, to June 10, 2013 (78 FR 27171), or August 27, 2013, to October 28, 2013 (78 FR 52894), please do not resubmit them. We have incorporated them into the public record as part of the original comment period, and we will fully consider them in our final determination.

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

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

Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, are available for public inspection on http://www.regulations.gov at Docket No. FWS-R4-ES-2013-0007, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Arkansas Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

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

We will accept written comments and information during this extended comment period on our proposal to list the rufa red knot as a threatened species that was published in the Federal Register on September 30, 2013 (78 FR 60024). We will consider information we receive from all interested parties. We intend that any final action resulting from this proposal will be based on the best scientific and commercial data available and be as accurate and as effective as possible.

If you submitted comments or information on the proposed rule (78 FR 60024) during the initial comment period from September 30, 2013, to November 29, 2013, or during the reopened public comment period that started on April 4, 2014, please do not resubmit them. We have incorporated them into the public record as part of the previous comment period, and we will fully consider them in the preparation of our final determination.

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

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

Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule, are available for public inspection on http://www.regulations.gov at Docket No. FWS-R5-ES-2013-0097, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, New Jersey Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

It is our intent to discuss only those topics directly relevant to the rufa red knot threatened listing proposal in this document. For more information on previous Federal actions concerning the rufa red knot, or information regarding its biology, status, distribution, and habitat, refer to the proposed rule published in the Federal Register on September 30, 2013 (78 FR 60024) and its four supplemental documents, all of which are available online at http://www.regulations.gov at Docket No. FWS-R5-ES-2013-0097 or by mail from the New Jersey Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

In our September 30, 2013, proposed rule (78 FR 60024), we proposed to list the rufa red knot as threatened. We have determined that the rufa red knot is threatened due to loss of both breeding and nonbreeding habitat; potential for disruption of natural predator cycles on the breeding grounds; reduced prey availability throughout the nonbreeding range; and increasing frequency and severity of asynchronies (“mismatches”) in the timing of the birds' annual migratory cycle relative to favorable food and weather conditions.

On April 4, 2014, we reopened the comment period on the proposed listing rule for 45 days, to end on May 19, 2014, to accommodate two public hearings, one in Morehead City, North Carolina, and one in Corpus Christi, Texas (79 FR 18869). Both of those public hearings will be held on May 6, 2014. We subsequently received a request, dated April 15, 2014, to hold a second public hearing in North Carolina, specifically in Dare County. We concur with the request and will hold a second public hearing as described above. Therefore, we are extending the reopened comment period to June 15, 2014, to accommodate the second North Carolina public hearing.

The primary authors of this notice are the staff members in the Endangered Species Program, Northeast Regional Office, U.S. Fish and Wildlife Service.

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

An Environmental Impact Statement is available on the Internet at the following address: http://alaskafisheries.noaa.gov/protectedresources/seals/fur/eis/final0505.pdf.

The subsistence harvest from the depleted stock of northern fur seals ( Callorhinus ursinus ), on the Pribilof Islands, Alaska, is governed by regulations found in 50 CFR part 216, subpart F. The purpose of these regulations, published under the authority of the Fur Seal Act (FSA), 16 U.S.C. 1151, et seq., and the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1361, et seq., is to limit the take of fur seals to an allowable harvest level providing for the subsistence needs of the Pribilof residents, while restricting taking by sex, age, and season for herd conservation. To further minimize negative effects on the Pribilof Islands' fur seal population, the harvest has been limited to a 47-day season annually (June 23 to August 8).

Pursuant to the regulations governing the taking of fur seals for subsistence purposes, NMFS must publish a summary of the fur seal harvest for the previous 3-year period and an estimate of the number of seals expected to be taken in the subsequent three-year period to meet the subsistence needs of the Aleut residents of the Pribilof Islands. Beginning in 2000, the allowable take ranges of estimated annual northern fur seal subsistence harvests have been discussed with each tribal government as part of the co-management relationship and agreement. Accurately predicting the annual subsistence needs of the Pribilof communities has faced practical and social difficulties; however, the process to develop estimates of the number of fur seals required to meet subsistence needs has resulted in acceptance of the different allowable take ranges since those first established in 1986. The current upper harvest take limit of 2,500 sub-adult (juveniles, 2-4 years old) male fur seals has been accepted every year since 1997. The lower harvest take limit of 1,945 provides a degree of flexibility the communities feel comfortable with regarding changes and unanticipated needs within the community and the environment.

Several factors and conditions affect both the subsistence harvest of northern fur seals and the number of fur seals required to meet subsistence needs. Weather conditions and availability of animals varies annually. The availability of wage earning jobs reduces the time available for community members to harvest fur seals and hunt other subsistence resources. Thus, individual community members may be unavailable to harvest fur seals during the season in certain years or have more financial resources to hunt other marine mammals in subsequent years or seasons. Several specific seasonal employment opportunities may interfere with community members' ability to harvest fur seals under the current regulations. The current timing of the northern fur seal subsistence harvest season overlaps with the local halibut fishing season, and many of the community members who participate in the harvest are also fishermen. In addition, crab fishery rationalization and a renewal of the crab harvest in the Pribilof region has provided local job opportunities that may extend into the spring hunting season for Steller sea lions. Both Steller sea lions and northern fur seals combine to meet the subsistence needs of the local communities along with numerous other species, though one species does not replace the lack of another. Northern fur seals provide the more reliable resource of the two species, despite being available during a 6-week harvest season.

The communities of St. Paul and St. George Islands rely on marine mammals as a major food source and a cornerstone of their culture. The harvest of sub-adult male northern fur seals has occurred for well over 200 years and the biological implications of this harvest are reasonably well understood. Subsistence harvests under the current regulations are very small compared to the commercial harvests that occurred during the 20th Century.

The annual harvests from 2011 to 2013 were conducted in the established manner and employed the standard methods required under regulations at 50 CFR 216.72. NMFS personnel, a contract veterinarian, and tribal government staff monitored the harvest and communicated to further improve the efficiency of the annual harvest and full utilization of the animals taken. NMFS received annual northern fur seal harvest reports from the tribal governments of both islands.

The reported male northern fur seal subsistence harvests for St. Paul was 322 animals in 2011, 383 in 2012, and 298 in 2013, (Lestenkof et al. 2011, Lestenkof et al. 2012, Lestenkof et al. 2014), and for St. George was 120 animals in 2011, 63 in 2012, and 80 in 2013 (Merculief 2011, Lekanof 2012, Kasheverof 2013). The number of male northern fur seals harvested on St. Paul Island from 1986 to 2013 ranged from 269 to 1704, and the number harvested on St. George Island from 1986 to 2013 ranged from 78 to 319. The average number of male seals harvested during the past ten years on St. Paul and St. George Islands has been 365 seals (range: 269 to 493) and 130 seals (range: 63 to 212), respectively (Table 1).

The northern fur seal is designated as depleted under the Marine Mammal Protection Act. The annual upper harvest take level is 2,500 sub-adult male fur seals to satisfy the subsistence requirements for both St. Paul and St. George. The current abundance estimate is 611,617 fur seals, and the potential biological removal (PBR) level in the 2012 stock assessment was 11,130 animals. The harvest is regulated to select sub-adult male fur seals and the proposed 2014-2016 harvest levels would have no more than a negligible impact on the stock. The upper limit of the harvest is 22.5% of the PBR. Because the calculation of PBR assumes random mortality at all ages and both sexes, the effects of only sub-adult male subsistence harvest on the stock would be less than if the harvest of fur seals included females and males of all ages. Fewer than 10% of all adult males contribute to reproduction, such that there are excess males in the northern fur seal population at all ages, and the excess of males has been the basis of the sustainable male harvests for over 100 years. Moreover, the upper harvest take level is significantly lower than the PBR level, and the actual harvest has not reached the lower take level of 1,945 in the past decade. The mortality from the subsistence harvest is in addition to other sources of known human-caused mortality, which are described in the annual stock assessment report, and include such things as bycatch in commercial fisheries, entanglement in derelict fishing gear, illegal shooting, and accidental death during research. The estimates of all sources of known human-caused mortality, including subsistence harvest takes, do not reach or approach PBR.

The accidental harvest of young female fur seals has occurred intermittently during the male harvest. Thirty-six females on St. Paul and five females on St. George have been killed accidentally since 1987. The average accidental killing of females on St. Paul and St. George Islands during the last 10 years is two and less than one, respectively.

Under section 119 of the Marine Mammal Protection Act, NMFS signed agreements with St. Paul in 2000 and with St. George in 2001 for the cooperative management of subsistence uses of northern fur seals and Steller sea lions. The processes defined in the cooperative agreements have facilitated a collaborative working relationship between NMFS and tribal authorities. This has led to more coordinated efforts by the tribal governments of both islands to promote full utilization of inedible seal parts for traditional arts, crafts, and other uses permitted under regulations at 50 CFR 216.73. The result has been an expanded use of these materials by the Aleut residents.

The projected subsistence harvest estimates are an allowable take range, the lower end of which may be exceeded if NMFS is given notice and the NOAA Assistant Administrator for Fisheries determines that the annual subsistence needs of the Pribilof Islands Aleuts have not been satisfied. Conversely, the harvest can be terminated before the lower end of the range is reached if the annual subsistence needs of the Pribilof Islands residents are determined to have been met or the harvest has been conducted in a wasteful manner.

For the 3-year period from 2014 through 2016, NMFS proposes no change to the previous allowable take ranges of 1,645-2,000 sub-adult male fur seals for St. Paul Island and 300-500 sub-adult male fur seals for St. George Island. Retaining these allowable harvest levels will provide adequate flexibility and enable adaptive management of the subsistence harvest through the co-management process within the regulations. NMFS seeks public comments on these proposed estimates.

As described above, if the Aleut residents of either island reach the lower end of this annual harvest estimate and have unmet subsistence needs and no indication of waste, they may request an additional number of seals to be harvested prior to August 8 (the end of the designated harvest season) up to the upper limit of the respective harvest take level. The residents of St. George and St. Paul Islands may substantiate any additional need for seals by submitting in writing the information upon which they base their decision that subsistence needs are unfulfilled. The regulations at 50 CFR 216.72(e)(1) and (3) require a suspension of the fur seal harvest for up to 48 hours once the lower end of the estimated harvest level is reached, followed either by a finding that the subsistence needs have been met or by a revised estimate of the number of seals necessary to satisfy the Aleuts' subsistence needs.

The harvest of fur seals between 2014-2016 is anticipated to be non-wasteful and in compliance with the regulations specified at 50 CFR 216.72 which detail the restrictions and harvest methods. NMFS will continue to monitor the harvest on St. Paul Island and St. George Islands during 2014, 2015, and 2016.

NMFS prepared an Environmental Impact Statement (EIS) evaluating the impacts on the human environment of the subsistence harvest of northern fur seals, which is available on the NMFS Web site (see Electronic Access). A draft EIS was available for public review (69 FR 53915, September 3, 2004), and NMFS incorporated the comments into the final EIS (May 2005).

This proposed action is exempt from the procedures of E.O. 12866 because the action contains no implementing regulations.

The Chief Counsel for Regulation, Department of Commerce, certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed action would not have a significant economic impact on a substantial number of small entities. The harvest of northern fur seals on the Pribilof Islands, Alaska, is for subsistence purposes only. This action directly regulates the subsistence harvest of northern fur seals by Alaska Natives in the communities of St. Paul and St. George. The estimates of subsistence need are derived based on historic harvest levels and direct consultation with the Tribal Governments from each community. NMFS has identified two small entities that may be directly regulated by this action—the communities of St. Paul and St. George, both of which have populations below 500 people, and therefore are small governmental jurisdictions under the Regulatory Flexibility Act, 5 U.S.C. 601(5).

This action would have no adverse economic impact on the affected entities, but may provide them with a net benefit. The estimated allowable take ranges of the subsistence harvests are unlikely to restrict the number of animals taken by subsistence hunters. NMFS compared historic harvest levels on each island to the upper and lower ends of the allowable take range of the estimated subsistence harvest. The total annual harvests on each island has never exceeded the upper end of the proposed allowable take ranges, and has only exceeded the lower end of the proposed ranges, in 1991 on both islands, and in 1993 on St. George. The regulated entities will not experience any change from the status quo since the proposed allowable take ranges are the same ranges that have been used since 1997.

The subsistence harvest of fur seals provides a local, affordable source of fresh and frozen meat for the communities' consumption. Fresh meat from alternative (e.g., commercial) sources is unavailable on either St. Paul or St. George. Subsistence hunting and fishing are the primary means by which the communities meet their dietary need. No other fish and wildlife species are predictably available to replace fresh fur seal meat. Replacement of the frozen fur seal meat with livestock meat that is shipped to the islands is extremely expensive and only available when air or barge service can access the communities, which can be highly uncertain. In addition, marine mammals such as fur seals are the preferred meat resource for Aleuts and other coastal Alaska Natives.

Both affected entities are small governmental jurisdictions, and thus the action will not have a disparate impact on small versus large entities.

The criteria recommended to determine the significance of the economic impacts of the action are profitability and disproportionality. The guidance states that “the concept of profitability may not be appropriate for a non-profit small organization or a small government jurisdiction.” Based on this guidance NMFS believes disproportionality is the appropriate standard given the regulated entities are small government jurisdictions. No large entities are allowed to harvest northern fur seals; therefore the regulatory allowance for the small entities on St. Paul and St. George to harvest northern fur seals does not create a disproportionate impact that would disadvantage them.

This action will have beneficial economic impacts on the directly regulated Alaska Native residents of St. Paul and St. George, and will not have a significant economic impact on a substantial number of small entities, or indeed any small entities. Therefore, a regulatory flexibility analysis is not required and none was prepared.

This proposed action does not require the collection of information.

This proposed action does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under E.O. 13132 because this action does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Nonetheless, NMFS worked closely with local governments in the Pribilof Islands, and these estimates of subsistence harvests were prepared by the local governments in St. Paul and St. George, with assistance from NMFS officials.

Executive Order 13175 of November 6, 2000 (25 U.S.C. 450 Note), the Presidential Memorandum of April 29, 1994 (25 U.S.C. 450 note), the American Indian Native Policy of the U.S. Department of Commerce (March 30, 1995), the Department of Commerce's Tribal Consultation Policy (including the Department of Commerce Administrative Order 218-8, April 26, 2012), and the NOAA Procedures for Government-to-Government Consultation With Federally Recognized Indian Tribes and Alaska Native Corporations (November 12, 2013) outline the responsibilities of NMFS in matters affecting tribal interests. Section 161 of Public Law 108-100 (188 Stat. 452) as amended by section 518 of Public Law 108-447 (118 Stat. 3267), extends the consultation requirements of E.O. 13175 to Alaska Native corporations. NMFS has contacted the tribal governments of St. Paul and St. George Islands and their respective local Native corporations (Tanadgusix and Tanaq) about setting the next three years harvest estimates and received their input.

The U.S. Atlantic swordfish fishery is managed under the 2006 Consolidated Highly Migratory Species (HMS) Fishery Management Plan (FMP). Implementing regulations at 50 CFR part 635 are issued under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq., and ATCA, 16 U.S.C. 971 et seq. ATCA authorizes the Secretary of Commerce (Secretary) to promulgate regulations, as may be necessary and appropriate to implement ICCAT recommendations.

At the 2013 ICCAT annual meeting, Recommendation 13-02 was adopted, maintaining the North Atlantic swordfish total allowable catch (TAC) of 10,301 metric tons (mt) dressed weight (dw) (13,700 mt whole weight (ww)) through 2016. Of this TAC, the United States' baseline quota is 2,937.6 mt dw (3,907 mt ww) per year. ICCAT Recommendation 13-02 also includes an 18.8 mt dw (25 mt ww) annual quota transfer from the United States to Mauritania and limits allowable 2013 underharvest carryover to 25 percent of a contracting party's baseline quota. Underharvest accrued in 2014 and beyond is limited to 15 percent of a contracting party's baseline quota. Therefore, the United States may carry over a maximum of 734.4 mt dw (976.8 mt ww) of underharvest from 2013 and add it to the 2014 baseline quota. This proposed rule would adjust the U.S. baseline quota for the 2014 fishing year to account for the annual quota transfer to Mauritania and the 2013 underharvest. Additionally, this proposed rule considers modifying the regulations to comply with the reduced underharvest carryover limit, which becomes effective in 2015 and thus would apply to underharvest accrued in 2014 and beyond.

The preliminary North Atlantic swordfish underharvest for 2013 was 1,480.4 mt dw as of December 31, 2013; therefore, NMFS is proposing to carry forward 734.4 mt dw, the maximum carryover allowed per ICCAT Recommendation 13-02. The 2,937.6 mt dw baseline quota would be reduced by the 18.8 mt dw annual quota transfer to Mauritania and increased by the underharvest carryover maximum of 734.4 mt dw, resulting in 3,653.2 mt dw (2,937.6 − 18.8 + 734.4 = 3,653.2 mt dw), which is the proposed adjusted North Atlantic swordfish quota for the 2014 fishing year. From that proposed adjusted quota, 50 mt dw would be allocated to the reserve category for inseason adjustments and research, and 300 mt dw would be allocated to the incidental category, which includes recreational landings and landings by incidental swordfish permit holders, for the 2014 fishing season, per § 635.27(c)(1)(i)(B). This would result in an allocation of 3,303.2 mt dw (3,653.2−50−300 = 3,303.2 mt dw) for the directed category, which would be split equally between two seasons in 2014 (January through June, and July through December) (Table 1).

The preliminary landings and proposed adjusted quota for North Atlantic swordfish are based on commercial dealer reports and reports by anglers in the HMS Non-Tournament Recreational Swordfish and Billfish Landings Database and the Recreational Billfish Survey received as of December 31, 2013, and do not include dead discards or late landings reports. The estimates are preliminary and have not yet undergone quality control and assurance procedures. NMFS will adjust the quotas in the final rule based on updated data, including dead discard data, if available. Note that the United States has carried over the full amount of underharvest allowed under ICCAT recommendations for the past several years, and NMFS does not expect fishing activity to vary significantly from these past years. For the final adjusted quota to deviate from the proposed quota, the sum of updated landings data (from late reports) and dead discard estimates would need to reach or exceed 746.0 mt dw, which is the difference between the current estimate of the 2013 underharvest (1,480.4 mt dw) and the maximum carryover cap of 734.4 mt dw (1,480.4−734.4 = 746.0 mt dw). In 2012, dead discards were estimated to equal 194.0 mt dw and late reports equaled 201.3 mt dw. Consequently, NMFS does not believe updated data and dead discard estimates will alter the proposed adjusted quota. Thus, while the 2014 proposed North Atlantic swordfish quota is subject to further adjustments and this rule notifies the public of that potential change, NMFS does not expect the final quota to change from the proposed quota.

In addition to adjusting the quota, this proposed rule considers modifying regulatory text to reflect an upcoming change in the underharvest carryover limit. Recommendation 13-02 reduced the amount of underharvest that may be carried forward to 15 percent of the baseline quota, effective in 2015. Therefore, if this rule is implemented, the 2013 underharvest would be the last year subject to the 25 percent carryover limit; the underharvest in 2014 and subsequent years would not be able to exceed 15 percent of the baseline quota. This proposed rule will consider these changes.

In 2013, ICCAT Recommendation 13-03 established the South Atlantic swordfish TAC at 11,278.2 mt dw (15,000 mt ww) for 2014, 2015, and 2016. Of this, the United States received 75.2 mt dw (100 mt ww). ICCAT Recommendation 13-03 limits the amount of South Atlantic swordfish underharvest that can be carried forward. For South Atlantic swordfish, the United States may carry forward up to 100 percent of the baseline quota (75.2 mt dw). Recommendation 13-03 also included a total of 75.2 mt dw (100 mt ww) of quota transfers from the United States to other countries. These transfers were 37.6 mt dw (50 mt ww) to Namibia, 18.8 mt dw (25 mt ww) to Côte d'Ivoire, and 18.8 mt dw (25 mt ww) to Belize.

In 2013, U.S. fishermen landed 0.1 mt dw of South Atlantic swordfish as of December 31, 2013. Therefore, 75.1 mt dw of underharvest is available to carry over to 2014. NMFS is proposing to carry forward 75.1 mt dw to be added to the 75.2 mt dw baseline quota. The quota would then be reduced by the 75.2 mt dw of annual international quota transfers outlined above, resulting in 75.1 mt dw, which is the proposed adjusted South Atlantic swordfish quota for the 2014 fishing year.

As with the landings and proposed quota for North Atlantic swordfish, the South Atlantic swordfish landings and proposed quota are based on dealer reports received as of December 31, 2013, do not include dead discards or late landings reports, and are preliminary landings estimates that have not yet undergone quality control and assurance procedures. NMFS will adjust the quotas in the final rule based on any updated data, including dead discard data, if available. Thus, the 2014 proposed South Atlantic swordfish quota is subject to further adjustments. However, the United States has only landed South Atlantic swordfish twice in the past several years (0.2 mt dw in April 2010 and 0.1 mt dw in April 2013) and therefore does not anticipate additional landings or discard data that would change the final quota from the proposed quota.

The ecological and socio-economic impacts of continued harvesting of substantially the same amount of annual baseline quota proposed in the 2014 North Atlantic swordfish specifications were analyzed in the EA, RIR, and FRFA that were prepared for the 2012 swordfish quota specifications final rule (July 31, 2012; 77 FR 45273). Similarly, the impacts of harvesting the amount of annual baseline quota proposed in the 2014 South Atlantic swordfish specifications were analyzed in the EA, RIR, and FRFA that were prepared for the 2007 Swordfish Quota Specification Final Rule (October 5, 2007; 72 FR 56929).

The proposed North Atlantic swordfish quota adjustments would result in an adjusted quota similar to that analyzed in the 2012 EA, RIR, and FRFA (3,559.2 mt dw) and in subsequent years (2013 final adjusted quota = 3,559.2 mt dw, and 2014 proposed adjusted quota = 3,653.2 mt dw, which is an increase of 94 mt dw). The 2014 proposed quota is not expected to increase fishing effort, protected species interactions, or environmental effects in a manner not considered in the 2012 EA. Implementing ICCAT Recommendation 13-02 would result in two minor changes in the adjusted quota calculation methodology that, once effective, would result in a reduction in the overall adjusted quota relative to previous years. First, ICCAT Recommendation 13-02 reduces the underharvest carryover limit beginning in 2015. Any underharvest available to be carried over from 2013 to 2014 would be capped at 25 percent of the baseline quota, but beginning in 2015, the underharvest carryover limit would be 15 percent of the baseline quota. In the 2012 EA, North Atlantic swordfish underharvest carryovers less than or equal to 25 percent were analyzed. Since the proposed change in the underharvest carryover limit is within this range (i.e., it is less than 25 percent), the change has been previously analyzed. Furthermore, once effective, the reduction in the underharvest carryover limit would result in a lower overall North Atlantic swordfish adjusted quota. For these reasons, additional NEPA analysis regarding the underharvest carryover limit is not necessary.

The second change in the adjusted quota calculation methodology from ICCAT Recommendation 13-02 is the elimination of the 112.8 mt dw quota transfer to Morocco and the introduction of a lower 18.8 mt dw quota transfer to Mauritania. This change in the quota transfer amount effectively results in a 3-percent increase to the North Atlantic adjusted quota in 2014 (from 3,559.2 mt dw in 2013 to 3,653.2 mt dw in 2014). No additional NEPA analysis is needed for the change in international quota transfers. As mentioned above, the ecological and socio-economic impacts of continued harvesting of substantially the same amount of annual baseline quota proposed in the 2014 North Atlantic swordfish specifications was analyzed in 2012 and no additional impacts are expected from the small increase. It would not result in an increase in overall quota, fishing effort, or interactions with directed, incidental, or bycatch species. Thus, NMFS has determined that the North Atlantic swordfish quota portion of the specifications and impacts to the human environment as a result of the proposed quota adjustments do not require additional NEPA analysis beyond that discussed in the 2012 EA.

The proposed South Atlantic swordfish quota adjustments would not change overall quotas and are not expected to increase fishing effort, protected species interactions, or environmental effects beyond those analyzed in the 2007 EA. While ICCAT conducted a stock assessment for South Atlantic swordfish, due to uncertainties in the analyses and newly derived stock status, the committee has not altered the stock status or TAC from the previous ICCAT recommendation in place when 2007 EA analyses were conducted. Therefore, because there would be no changes to the South Atlantic swordfish management measures in this proposed rule, or to the affected environment or any environmental effects that have not been previously analyzed, NMFS has determined that the South Atlantic swordfish quota portion of the specifications and impacts to the human environment as a result of the proposed quota adjustments do not require additional NEPA analysis beyond that analyzed in the 2007 EA.

NMFS is requesting comments on any of the measures or analyses described in this proposed rule. During the comment period, NMFS will hold one conference call and webinar for this proposed rule. The conference call and webinar will be held on June 5, 2014, from 1:00-4:00pm EST. Please see the DATES and ADDRESSES headings for more information.

The public is reminded that NMFS expects participants on phone conferences to conduct themselves appropriately. At the beginning of the conference call, a representative of NMFS will explain the ground rules (e.g., all comments are to be directed to the agency on the proposed action; attendees will be called to give their comments in the order in which they registered to speak; each attendee will have an equal amount of time to speak; attendees may not interrupt one another; etc.). NMFS representative(s) will structure the meeting so that all attending members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Attendees are expected to respect the ground rules, and those that do not may be removed from the conference call.

Pursuant to the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, the Atlantic Tuna Convention 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.

NMFS determined that the proposed rules to implement the North Atlantic swordfish quota framework (77 FR 25669, May 1, 2012) and South Atlantic swordfish quota framework (75 FR 35432, June 22, 2010) are consistent to the maximum extent practicable with the enforceable policies of the approved coastal management program of coastal states on the Atlantic including the Gulf of Mexico and the Caribbean Sea. Pursuant to 15 CFR 930.41(a), NMFS provided the Coastal Zone Management Program of each coastal state a 60-day period to review the consistency determination and to advise the Agency of their concurrence. NMFS received concurrence with the consistency determinations from several states and inferred consistency from those states that did not respond within the 60-day time period. This proposed action to establish the 2014 North and South Atlantic swordfish quotas does not change the framework previously consulted upon; therefore, no additional consultation is required.

The Chief Council for Regulation of the Department of Commerce certified to the Chief Council 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 because the proposed quota adjustments are the same as in 2013 and the United States is not expected to catch its entire quota in 2014.

As described above, this proposed rule would adjust the 2014 baseline quota for North Atlantic swordfish (January 1, 2014, through December 31, 2014) to account for 2013 underharvests as allowable and international quota transfers per § 635.27(c)(1)(i) and (3)(ii) based on ICCAT recommendation 13-02. The United States can carry over 2013 underharvest at a level not to exceed 25 percent of the baseline quota. This proposed rule would also change the limit of underharvest accrued in 2014 and beyond to 15 percent of a contracting party's baseline quota. Additionally, ICCAT Recommendation 13-02 stipulates that the United States transfer 18.8 mt dw (25 mt ww) of quota to Mauritania.

In 2013, U.S. fishermen landed 2,028.8 mt dw of North Atlantic swordfish as of December 31, 2013, leaving 1,480.4 mt dw of quota underharvest. This underharvest amount exceeds the maximum underharvest carryover of 734.4 mt dw, therefore, only 734.4 mt dw of 2013 underharvest would be carried over and added to the 2014 baseline quota. The quota transfer of 18.8 mt dw to Mauritania would be deducted, leaving a proposed 2014 North Atlantic swordfish adjusted quota of 3,653.2 mt dw (Table 1).

This proposed rule would also adjust the 2014 baseline quota for South Atlantic swordfish (January 1, 2014, through December 31, 2014) to account for 2013 underharvests and international quota transfers per § 635.27(c)(1)(ii) and (3)(ii) based on ICCAT Recommendation 13-03. The United States can carry over 2013 underharvest at a level not to exceed 100 percent of the baseline quota. Additionally, ICCAT Recommendation 13-03 stipulates that the United States transfer the following quota amounts to other countries: 37.6 mt dw (50 mt ww) to Namibia; 18.8 mt dw (25 mt ww) to Côte d'Ivoire; and 18.8 mt dw (25 mt ww) to Belize.

In 2013, U.S. fishermen landed 0.1 mt dw of South Atlantic swordfish as of December 31, 2013. Therefore, 75.1 mt dw of underharvest is available to carry over to 2014. NMFS is proposing to carry forward 75.1 mt dw to be added to the 75.2 mt dw base quota. The quota would then be reduced by the 75.2 mt dw of annual international quota transfers outlined above, resulting in 2014 South Atlantic swordfish adjusted quota of 75.1 mt dw (Table 1).

The commercial swordfish fishery is comprised of fishermen who hold one of three swordfish limited access permits (LAPs) (i.e., directed, incidental, or handgear), fishermen who hold a new swordfish general commercial permit, fishermen who hold an HMS incidental squid trawl permit, and the related industries including processors, bait houses, and equipment suppliers. NMFS considers all participants in the commercial swordfish fishery to be small entities, based on the relevant NAICS codes and size standards set by the Small Business Administration (SBA). Under 5 U.S.C. 604(a)(3), Federal agencies must provide an estimate of the number of small entities to which the rule would apply. The Small Business Administration (SBA) has established size criteria for all major industry sectors in the United States, including fish harvesters. Previously, a business involved in fish harvesting was classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $4.0 million (NAICS code 114111, finfish fishing) for all its affiliated operations worldwide. On June 20, 2013, SBA issued a final rule revising the small business size standards for several industries effective July 22, 2013 (78 FR 37398; June 20, 2013). The rule increased the size standard for Finfish Fishing from $4.0 to 19.0 million, Shellfish Fishing from $4.0 to 5.0 million, and Other Marine Fishing from $4.0 to 7.0 million. NMFS has reviewed the analyses prepared for this action in light of the new size standards. Under the former, lower size standards, all entities subject to this action were considered small entities, thus they all would continue to be considered small under the new standards. The new size standards do not affect analyses prepared for this action.

As of November 2013, there were approximately 179 vessels with a directed swordfish LAP, 67 vessels with an incidental swordfish LAP, 76 vessels with a handgear LAP for swordfish, and 203 vessels that held a swordfish general commercial permit. Additionally, there were approximately 74 HMS incidental squid trawl permit holders, which allow vessels in the Illex squid fishery to retain up to 15 incidentally-caught swordfish while trawling for squid. Based on the 2013 average price for swordfish of $4.69/lb (based on 2013 eDealer data), the 2014 North and South Atlantic swordfish baseline quotas could result in gross revenues of $30,373,533 (2,937.6 mt dw (6,476,233 lbs dw) * $4.69/lb) and $776,927 (75.1 mt dw (165,565 lbs dw) * $4.69/lb), respectively, if the quotas were fully utilized. Under the adjusted quotas of 3,653.2 mt dw (8,053,845 lbs dw) for North Atlantic swordfish and 75.1 mt dw (165,565 lbs dw) for South Atlantic swordfish, the gross revenues could be $37,772,533 and $776,927, respectively, for fully utilized quotas.

Potential revenues per vessel resulting from full utilization of the adjusted quotas, could be $59,295 for the North Atlantic swordfish fishery and $4,340 for the South Atlantic swordfish fishery, considering a total of 599 swordfish permit holders in the North Atlantic and 179 directed permit holders in the South Atlantic. The North Atlantic estimate, however, represents an average across all permit types, despite permit differences in retention limits, target species, and geographical range. For North Atlantic swordfish, directed swordfish permit holders would likely experience higher than average per-vessel ex-vessel revenues due to the use of pelagic longline gear and the lack of a retention limit per trip, although trip expenses are likely to be fairly high. HMS incidental squid trawl permit holders would likely experience per vessel ex-vessel revenues well below those received by pelagic longline vessels due to the low retention limit per trip (15 swordfish) and because these vessels do not target swordfish and only catch them incidentally. Swordfish general commercial permit holders would likely experience lower than average per-vessel ex-vessel revenues, despite higher ex-vessel prices and lower fishing expenses. Historically, U.S. fishermen do not often harvest the full North Atlantic swordfish quota. In addition, the 2014 proposed quota is the same as the 2013 quota for North Atlantic swordfish, therefore there are no economic impacts expected due to this proposed rulemaking setting the 2014 quota. For South Atlantic swordfish, only directed swordfish permit holders can land these fish; therefore, potential revenue per vessel is higher than the average for these directed swordfish permit holders since the other permit types land no swordfish. Additionally, U.S. fishermen rarely catch South Atlantic swordfish. Over the past 5 years, only 0.3 mt dw of South Atlantic swordfish catch has been reported.

Because the United States' commercial swordfish fishery is not expected to catch its entire quota in 2014, the adjustments to the quota and management measures proposed in this rule will not have a significant impact on a substantial number of small entities. As a result, no initial regulatory flexibility analysis is required, and none has been prepared.

For reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:

NMFS manages the groundfish fisheries in the exclusive economic zone of the GOA and BSAI under the GOA FMP and BSAI FMP (collectively, the FMPs). The North Pacific Fishery Management Council (Council) prepared these FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), 16 U.S.C. 1801 et seq. Regulations implementing the FMPs appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The Council has submitted Amendment 100 to the BSAI FMP and Amendment 91 to the GOA FMP for review by the Secretary of Commerce, and a Notice of Availability of this amendment was published in the Federal Register on May 5, 2014) 79 FR 25558) with comments invited through July 7, 2014. All relevant written comments received by the end of the applicable comment period, whether specifically directed to the FMP amendments, this proposed rule, or both, will be considered in the approval/disapproval decision for these amendments and addressed in the response to comments in the final decision.

The groundfish fisheries in the BSAI and GOA incidentally catch grenadiers (family Macrouridae) while harvesting target groundfish. For many years, the Council has considered how best to classify grenadiers in the FMPs. As explained in the Analysis (see ADDRESSES ), from 1980 to 2010, grenadiers were included in the FMPs in the nonspecified species category. Nonspecified species were defined as a residual category of species and species groups of no current or foreseeable economic value or ecological importance, which are taken in the groundfish fishery as incidental catch and are in no apparent danger of depletion, and for which virtually no data exists that would allow population assessments.

In 2010, the Council recommended and NMFS removed the nonspecified species category from the FMPs when the FMPs were revised to meet Magnuson-Stevens Act requirements for annual catch limits (ACLs) and accountability measures (AMs) under Amendment 96 to the BSAI FMP and Amendment 87 to the GOA FMP (Amendments 96/87, 75 FR 38454, July 2, 2010). The nonspecified species, including grenadiers, were removed from the FMPs because these species were too poorly understood to set ACLs and AMs or to develop a management regime.

Amendments 96/87 also amended the FMPs to organize the species remaining in the FMPs according to the National Standard 1 guidelines (50 CFR 600.310). In the National Standard 1 guidelines NMFS recommends two categories for species in an FMP: “stocks in the fishery” and “ecosystem component (EC) species.”

“Stocks in the fishery” are defined in the National Standard 1 guidelines (§ 600.310(d)(2)). “Stocks in the fishery” include (1) stocks that are targeted, and retained for sale or personal use; (2) stocks that are not directly targeted but are taken incidentally in other directed fisheries, and are retained for sale or personal use; or (3) stocks not targeted or retained but are taken as incidental catch and for which overfishing or overfished status may be a concern.

NMFS created the EC species category to encourage ecosystem approaches to management and to incorporate ecosystem considerations for species that are not “stocks in the fishery” (74 FR 3178, January 16, 2009). EC species are defined in the National Standard 1 guidelines (§ 600.310(d)(5)). In order to be designated an EC species, the species or species group should be (1) a non-targeted species or species group; (2) not subject to overfishing, overfished, or approaching an overfished condition; (3) not likely to become subject to overfishing or overfished in the absence of conservation and management measures; and (4) not generally retained for sale or personal use.

Amendments 96/87 established the EC category and designated prohibited species (which include salmon, steelhead trout, crab, halibut, and herring) and forage fish (as defined in Table 2c to part 679 and § 679.20(i)) as EC species in the FMPs. For EC species, NMFS maintained conservation regulations applicable to the specific EC species. These include prohibiting the retention of prohibited species, prohibiting directed fishing for forage fish, and establishing a limit on the incidental harvest of forage fish while directed fishing for other groundfish species, known as a maximum retainable amount, of 2 percent. Regulations at 50 CFR 679.2 define the term “directed fishing.” Regulations at § 679.20(e) describe the application and calculation of maximum retainable amounts.

When the Council recommended Amendments 96/87, it recognized that as information on a nonspecified species improves, it would consider moving that species back into the FMP, either as a “stock in the fishery” or as an EC species. In 2010, the Council initiated an analysis to consider moving grenadiers back into the FMPs. The Council determined that sufficient information exists for grenadiers to address them in the FMPs, as reflected in the Analysis prepared for this action (see ADDRESSES ). The Analysis provides the best available information on grenadiers and considers two action alternatives: Include grenadiers in the FMP as an EC species, or include grenadiers in the FMP as a “stock in the fishery.”

In February 2014, the Council voted unanimously to recommend Amendments 100/91 to the FMPs to add grenadiers to the EC category in the FMPs. The Council and NMFS recognized that adding grenadiers to the FMPs in the EC category would acknowledge their role in the ecosystem and limit the groundfish fisheries' impact on grenadiers. Adding grenadiers to the EC category would allow for improved data collection and catch monitoring appropriate for grenadiers given their abundance, distribution, and catch. The Council and NMFS determined that grenadiers are not a “stock in the fishery” because (1) grenadiers are not a target stock; (2) they are not generally retained for sale or personal use; and (3) they are not overfished, subject to overfishing, or approaching an overfished or overfishing status. The following information describes why grenadiers would be appropriate to include in the FMPs as an EC species group based on information summarized from the Analysis.

Grenadiers are not a targeted species group and are not generally retained for sale or personal use. Grenadiers have no current or foreseeable economic value. Section 3.3 of the Analysis explains that grenadiers are incidentally caught in deep water trawl and hook-and-line fisheries, but are not actively targeted or retained. In 2013, there was almost no reported retention of grenadiers in the BSAI (only 1 metric ton (t) or 2,205 pounds (lb)), and only 55 t (121,254 lb) of grenadiers were retained in the GOA. This represents a GOA fishery-wide retention rate of less than one half of one percent. Of this retention of grenadiers, 35 t (77,162 lb) was made into fish meal, 17 t (37,479 lb) was discarded at the dock, 3 t (6,614 lb) was retained for bait, and less than 1 t (2,205 lb) was sold. Thus, there is no evidence that grenadiers are presently being targeted or purposely retained. It is likely that grenadiers are being retained only when mixed with other catch.

Grenadiers are not generally retained for sale or personal consumption. As explained in Section 3.3.4 of the Analysis, attempts in Alaska to create a marketable product from giant grenadiers have been unsuccessful. Grenadiers have very low protein content, high moisture content, and are generally regarded as mushy and unpalatable. No current market exists for grenadiers, and it is unlikely that one will be developed in the foreseeable future.

Grenadiers are not generally retained for personal use. A small portion of the total catch of grenadiers is known to be retained for use as bait (e.g., 3 t (6,614 lb) in the GOA in 2013). Although grenadiers may be retained for use as bait in hook-and-line fisheries, there is no indication that this is a general practice throughout the hook-and-line fleets. NMFS notes that existing recordkeeping and reporting for the use of grenadiers is voluntary, and could underestimate the amount of grenadiers used for bait. However, the best available information indicates that grenadiers are not generally retained for bait.

At the current level of catch, grenadiers are not subject to overfishing, overfished, or approaching an overfished condition, and are not likely to become subject to overfishing or overfished in the absence of conservation and management measures. Section 3.2 of the Analysis explains that NMFS has been conducting a stock assessment for grenadiers since 2006. At present, stock assessment information for giant grenadier is relatively good compared to many other non-target species off Alaska. Since 2010, the stock assessment has been used to estimate an acceptable biological catch (ABC) and an overfishing level (OFL), using reliable estimates of biomass and natural mortality. Giant grenadier served as a proxy for the grenadier species group and the estimated ABC and estimated OFL are based on giant grenadier ( Albatrossia pectoralis ) because relatively few other grenadier species (family Macrouridae) are caught in the groundfish fisheries or are taken in NMFS surveys. NMFS estimates the incidental catch of grenadiers in the groundfish fisheries using observer data. In the BSAI, the estimated grenadier OFL is 135,236 t (298 million lb) and the estimated catch is 5,294 t (12 million lb, mean for 2003-2013). In the GOA, the estimated grenadier OFL is 46,635 t (103 million lb) and the estimated catch is 8,707 t (19 million lb, mean for 2003-2013).

Additionally, the Council recognized that adding grenadiers to the FMPs in the EC category would acknowledge their role in the ecosystem and limit the groundfish fisheries' impact on grenadiers. Section 3.6 of the Analysis describes the current state of research and understanding about the ecological importance of grenadiers. For example, giant grenadiers have an important ecological role given their role as apex predators. Apex predators reside at the top of their food chain and have few to no predators of their own. In bottom trawl surveys conducted by NMFS in the Bering Sea and the GOA, giant grenadiers are the most abundant fish, in terms of weight, in depths from 600 to 3,000 feet (183-914 meters). Giant grenadier extend much deeper than 3,000 feet (914 meters). There are reports that they have been caught deeper than 6,000 feet (1,829 meters), but little is known about their abundance in waters deeper than 3,000 feet because neither the NMFS surveys nor fishing effort presently extend below this depth.

In addition to adding grenadiers as an EC in the FMPs under Amendments 100/91, the Council recommended and NMFS proposes regulations for groundfish fishery participants to limit and monitor the catch of grenadiers. This proposed rule would:

• Require recordkeeping and reporting of grenadiers in the BSAI and GOA groundfish fisheries;

• Add two grenadier species codes;

• Add grenadier product recovery rates (PRRs);

• Prohibit directed fishing for grenadiers; and

• Establish a grenadier maximum retainable amount (MRA) of 8 percent.

To require recordkeeping and reporting, this proposed rule would make changes to 50 CFR part 679. This proposed rule would add a definition for grenadiers and revise the definition for non-allocated or nonspecified species at § 679.2. This proposed rule would also modify regulations at § 679.5 to require a vessel operator or manager in a BSAI or GOA groundfish fishery to record and report retained and discarded grenadier catch. NMFS notes that this proposed regulation would be expected to improve the collection of information on the catch and retention of grenadiers. Specifically, this proposed regulation would improve the ability for NMFS to monitor the retention of grenadiers for use as bait, or in the unlikely event that grenadiers are retained for sale.

NMFS would modify regulations in Table 2c to part 679 to add two grenadier species codes so that NMFS could track the retention of giant grenadiers and other grenadier species. NMFS would remove grenadiers from Table 2d to part 679. Section 2 of the Analysis notes that nearly all grenadiers encountered in the groundfish fisheries are giant grenadiers; therefore, it is not necessary to establish more than two species codes for grenadiers (one for giant grenadiers and one for all other grenadier species) to provide the information necessary to adequately monitor grenadier catch.

This proposed rule would modify Table 3 to part 679 to include PRRs for grenadiers of 100 percent for whole fish, 50 percent for headed and gutted fish, and 24.3 percent for fillets. These PRRs are established based on food science studies of grenadiers that estimated product recovery rates (see Section 3.3.4 of the Analysis for additional detail).

These proposed regulatory changes would enable NMFS to collect data on the harvest and disposition of grenadier catch retained in the groundfish fisheries. The proposed changes in recordkeeping and reporting, definition of grenadier species codes, and grenadier PRRs would aid NMFS in determining if grenadiers become generally retained for sale or personal use, and would provide the information needed in any potential future consideration to modify the designation of grenadiers in the FMPs as a “stock in the fishery.”

This proposed rule would revise regulations at § 679.20(i) and§ 679.22(i) to prohibit directed fishing for grenadiers at all times in the BSAI and GOA groundfish fisheries. NMFS proposes prohibiting directed fishing as a precautionary measure to prevent groundfish fishermen from directed fishing for grenadiers without a clear and conscious decision by the Council to provide that opportunity. This prohibition is consistent with the regulations for other EC species. NMFS prohibits directed fishing for forage fish and prohibits retaining or possessing prohibited species, except as provided under the Prohibited Species Donation Program. As noted in Section 4.6 of the Analysis, prohibiting directed fishing would prevent the development of an uncontrolled fishery on grenadiers in the absence of applicable management measures.

This proposed rule would add a grenadier incidental catch species MRA of 8 percent to Table 10 to part 679 and Table 11 to part 679. The MRA is the percentage of the retained catch of a species closed for directed fishing (incidental catch species) to the retained catch of a species open for directed fishing (basis species). An 8 percent MRA would allow vessels fishing for groundfish to retain a quantity of grenadiers equal to but no more than 8 percent of the round weight or round weight equivalent of groundfish species open to directed fishing that are retained on board the vessel during a fishing trip. The requirement to not exceed MRA proportions at any time during a trip limits the vessel operators' ability to maximize incidental catch of grenadiers.

Section 2.2 of the Analysis provides additional detail on MRA management. The Council and NMFS considered a range of MRA percentages of 2 to 20 percent for grenadiers. The Council recommended and NMFS agrees that an 8 percent MRA is not likely to substantially increase the incentive for vessels to retain grenadiers relative to a lower MRA percentage (e.g., 2 percent), but would limit the amount of incidental catch more conservatively than a higher MRA percentage (e.g., 20 percent). Given the lack of any market for grenadiers, NMFS has no indication that grenadier retention is likely to increase beyond current levels. Section 2.2 of the Analysis notes that a de minimus amount of grenadiers are retained in the BSAI, and only 0.1 percent of all groundfish fishing trips in the GOA would be expected to exceed an MRA of 8 percent. Therefore, an MRA of 8 percent would be expected to accommodate all current fishing practices and, if a market should develop, this MRA would limit the potential retention of grenadiers until the Council and NMFS could develop measures to manage grenadiers appropriately.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the FMP amendments, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration of comments received during the public comment period.

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

An RIR was prepared to assess all costs and benefits of available regulatory alternatives. The RIR considers all quantitative and qualitative measures. A copy of this analysis is available from NMFS (see ADDRESSES ). The Council recommended Amendments 100/91 based on those measures that maximized net benefits to the Nation. Specific aspects of the economic analysis are discussed below in the initial regulatory flexibility analysis section.

An IRFA was prepared, as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the proposed action, why it is being considered, and the legal basis for this proposed action are contained in the SUPPLEMENTARY INFORMATION section of the preamble and are not repeated here. A summary of the IRFA follows. Copies of the IRFA are available from NMFS (see ADDRESSES ).

In the GOA, NMFS estimates that there are a total of 1,114 small catcher vessels and 5 small catcher/processors. The majority of these (581) are catcher vessels in the hook-and-line gear sector. In the BSAI, NMFS estimates that there are 118 small catcher vessels and 7 small catcher/processors. NMFS estimates that 72 small shoreside processors would be directly regulated by this action. This number includes entities located in both the BSAI and GOA, as some groundfish may be caught in one area and delivered to the other. Thus, NMFS estimates that the total number of small entities that would be directly regulated by this action is 1,316 small entities (1,232 catcher vessels, 12 catcher/processors, 72 shoreside processors).

The two aspects of this proposed rule that directly regulate small entities are the requirement to report grenadier catch under regulations at § 679.5(a)(3) and the requirement that vessels not exceed an MRA of 8 percent, under regulations at Tables 10 and 11 to part 679. These requirements would have a de minimus economic impact on small entities, as explained in Section 5.7 of the Analysis. The reporting requirements were the same under all of the action alternatives.

The Council considered an MRA range of 2 percent to 20 percent, ultimately choosing an 8 percent grenadier MRA. The Council selected an 8 percent MRA to accommodate the current amount of grenadiers incidentally caught. The Council considered that there are very few instances when grenadier retention exceeds 8 percent; however, allowing a higher MRA of as much as 20 percent may not meet the objectives of providing precautionary management and placing limits on harvest, as identified in the purpose and need for the action.

Thus, there are no significant alternatives that would accomplish the objectives of accounting for grenadier catch or MRA management and minimize adverse economic impacts on small entities.

NMFS has not identified any duplication, overlap, or conflict between this proposed action and existing Federal rules.

The proposed rule would modify the recordkeeping and reporting requirements of the vessels and processors participating in the BSAI and GOA groundfish fisheries.

Presently, NMFS requires catcher vessel operators, catcher/processor operators, buying station operators, mothership operators, shoreside processor managers, and stationary floating processor managers to record and report all FMP species in logbooks, forms, eLandings, and eLogbooks. Recording is optional for non-FMP species. Grenadiers are currently listed as non-FMP species.

The proposed rule would amend regulations to change the status of grenadiers (giant grenadiers and other grenadiers) from non-FMP species to FMP species and require operators to record and report grenadier species in logbooks, forms, eLandings, and eLogbooks. If operators retain and land grenadiers, then landings and disposition would be reported on fish tickets and production reports.

This rule contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by Office of Management and Budget (OMB) under OMB Control Number 0648-0213 (paper recordkeeping and reporting) and OMB Control Number 0648-0515 (electronic recordkeeping and reporting). However, this rule only mentions these collections and does not change either collection-of-information.

Send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to NMFS (see ADDRESSEES ) and by email to OIRA_Submission@omb.eop.gov, or fax to (202) 395-7285.

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

For the reasons set out in the preamble, NMFS proposes to amend 50 CFR part 679 as follows: