        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R09-OAR-2012-0752; FRL-9746-8]
        Determination of Attainment for the Nogales Nonattainment Area for the 2006 Fine Particle Standard; Arizona; Determination Regarding Applicability of Clean Air Act Requirements

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          EPA is proposing to determine that the Nogales nonattainment area in Arizona has attained the 2006 24-hour fine particle (PM2.5) National Ambient Air Quality Standard (NAAQS). This proposed determination is based upon complete, quality-assured, and certified ambient air monitoring data showing that the area has monitored attainment of the 2006 24-hour PM2.5 NAAQS based on the 2009-2011 monitoring period. EPA is further proposing that, if EPA finalizes this determination of attainment, the requirements for the area to submit an attainment demonstration, together with reasonably available control measures (RACM), a reasonable further progress (RFP) plan, and contingency measures for failure to meet RFP and attainment deadlines shall be suspended for so long as the area continues to attain the 2006 24-hour PM2.5 NAAQS.

          DATES:
          Written comments must be received on or before November 29, 2012.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-R09-OAR-2012-0752 by one of the following methods:
          1. Federal eRulemaking Portal, at www.regulations.gov, please follow the on-line instructions;
          2. Email to ungvarsky.john@epa.gov; or
          3. Mail or delivery to John Ungvarsky, Air Planning Office, AIR-2, U.S. Environmental Protection Agency, Region IX, 75 Hawthorne Street, San Francisco, California 94105-3901.

            Instructions: All comments will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Information you consider to be CBI or otherwise protected should be clearly identified as such and should not be submitted through www.regulations.gov or email. www.regulations.gov is an “anonymous access” system, and EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email directly to EPA, your email address will be automatically captured and included as part of the public comment. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

            Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section.

          FOR FURTHER INFORMATION CONTACT:
          John Ungvarsky, (415) 972-3963, or by email at ungvarsky.john@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Throughout this document, wherever “we”, “us” or “our” are used, we mean EPA. We are providing the following outline to aid in locating information in this proposal.
        Table of Contents

          I. What determination is EPA making?
          II. What is the background for this action?
          A. PM2.5 NAAQS
          B. Designation of PM2.5 Nonattainment Areas
          C. How Does EPA Make Attainment Determinations?
          III. What is EPA's analysis of the relevant air quality data?
          A. Monitoring Network and Data Considerations
          B. Evaluation of Current Attainment
          IV. How does EPA's Clean Data Policy apply to this action?

          A. Application of EPA's Clean Data Policy to the 2006 PM2.5 NAAQS
          B. History and Basis of EPA's Clean Data Policy
          V. EPA's Proposed Action and Request for Public Comment
          VI. Statutory and Executive Order Reviews

        I. What determination is EPA making?

        EPA is proposing to determine that the Nogales nonattainment area has clean data for the 2006 24-hour NAAQS for fine particles (generally referring to particles less than or equal to 2.5 micrometers in diameter, PM2.5). This determination is based upon complete, quality-assured, and certified ambient air monitoring data showing the area has monitored attainment of the 2006 PM2.5 NAAQS based on 2009-2011 monitoring data. Preliminary data in EPA's Air Quality System (AQS) for 2012 indicate that the area continues to attain the 2006 PM2.5 NAAQS. Based on this determination, we are also proposing to suspend the obligations on the State of Arizona to submit certain state implementation plan (SIP) revisions related to attainment of this standard for the area for as long as the area continues to attain the standard.
        II. What is the background for this action?
        A. PM2.5 NAAQS
        Under section 109 of the Clean Air Act (CAA or “Act”), EPA has established 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, EPA revised the NAAQS for particulate matter to add new standards for PM2.5, using PM2.5 as the indicator for the pollutant. EPA established primary and secondary1
           annual and 24-hour standards for PM2.5 (62 FR 38652). The annual standard was set at 15.0 micrograms per cubic meter (μg/m3), based on a 3-year average of annual mean PM2.5 concentrations, and the 24-hour standard was set at 65 μg/m3, based on the 3-year average of the 98th percentile of 24-hour PM2.5 concentrations at each population-oriented monitor within an area.

            1 For a given air pollutant, “primary” national ambient air quality standards are those determined by EPA as requisite to protect the public health, and “secondary” standards are those determined by EPA as requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air. See CAA section 109(b).

        On October 17, 2006 (71 FR 61144), EPA revised the level of the 24-hour PM2.5 NAAQS to 35 μg/m3, based on a 3-year average of the 98th percentile of 24-hour concentrations. EPA also retained the 1997 annual PM2.5 standard at 15.0 μg/m3 based on a 3-year average of annual mean PM2.5 concentrations, but with tighter constraints on the spatial averaging criteria.
        B. Designation of PM2.5 Nonattainment Areas

        Effective December 14, 2009, EPA established the initial air quality designations for most areas in the United States for the 2006 24-hour PM2.5 NAAQS. See 74 FR 58688; (November 13, 2009). Among the various areas designated in 2009, EPA designated the Nogales 2

           area in Arizona as nonattainment for the 2006 24-hour PM2.5 NAAQS.3
           The boundaries for the nonattainment area are described in 40 CFR 81.303.

            2 Covering 76.1 square miles, the Nogales PM2.5 nonattainment area is located within Santa Cruz County, Arizona, with the southernmost boundary of the nonattainment area and Santa Cruz County being the U.S./Mexico border.

            3 With respect to the annual PM2.5 NAAQS, this area is designated as “unclassifiable/attainment.”

        Within three years of the effective date of designations, states with areas designated as nonattainment for the 2006 PM2.5 NAAQS are required to submit SIP revisions that, among other elements, provide for implementation of reasonably available control measures (RACM), reasonable further progress (RFP), attainment of the standard as expeditiously as practicable but no later than five years from the nonattainment designation (in this instance, no later than December 14, 2014), as well as contingency measures. See CAA section 172(a)(2), 172(c)(1), 172(c)(2), and 172(c)(9). Prior to the due date for submittal of these SIP revisions, the State of Arizona requested that EPA make a determination that the Nogales 4
           nonattainment area has attained the 2006 PM2.5 NAAQS. Today's proposal responds to the State's request.

            4 On July 6, 2012, in an email to Lisa Hanf, Manager, Planning Office, Air Division, U.S. EPA Region IX, Diane Arnst, Planning Section Manager, Air Quality Division, Arizona Department of Environmental Quality, requested that EPA determine whether the Nogales PM2.5 nonattainment area qualified for a determination of attainment for the 2006 24-hour PM2.5 NAAQS.

        C. How Does EPA Make Attainment Determinations?

        A determination of whether an area's air quality currently meets the PM2.5 NAAQS is generally based upon the most recent three years of complete, quality-assured data gathered at established State and Local Air Monitoring Stations (SLAMS) in a nonattainment area and entered into the AQS database. Data from air monitors operated by state/local agencies in compliance with EPA monitoring requirements must be submitted to AQS. Monitoring agencies annually certify that these data are accurate to the best of their knowledge. Accordingly, EPA relies primarily on data in AQS when determining the attainment status of areas. See 40 CFR 50.13; 40 CFR part 50, appendix L; 40 CFR part 53; 40 CFR part 58, and 40 CFR part 58, appendices A, C, D, and E. All data are reviewed to determine the area's air quality status in accordance with 40 CFR part 50, appendix N.

        Under EPA regulations in 40 CFR part 50, section 50.13 and in accordance with appendix N, the 2006 24-hour PM2.5 standard is met when the design value is less than or equal to 35 μg/m3 (based on the rounding convention in 40 CFR part 50, appendix N) at each monitoring site within the area.5
           The PM2.5 24-hour average is considered valid when 75 percent of the hourly averages for the 24-hour period are available. Data completeness requirements for a given year are met when at least 75 percent of the scheduled sampling days for each quarter have valid data.

            5 The 24-hour PM2.5 standard design value is the 3-year average of annual 98th percentile 24-hour average values recorded at each monitoring site [see 40 CFR part 50, appendix N, section 1.0(c)], and the 24-hour PM2.5 NAAQS is met when the 24-hour standard design value at each monitoring site is less than or equal to 35 μg/m3.

        III. What is EPA's analysis of the relevant air quality data?
        A. Monitoring Network and Data Considerations

        The Arizona Department of Environmental Quality (ADEQ) is the governmental agency with the authority and responsibility under state law for collecting ambient air quality data within the Nogales nonattainment area. Annually, ADEQ submits monitoring network plans to EPA. These plans discuss the status of the air monitoring network, as required under 40 CFR part 58. EPA reviews these annual network plans for compliance with the applicable reporting requirements in 40 CFR 58.10. With respect to PM2.5, we have found that ADEQ's annual network plans meet the applicable requirements under 40 CFR part 58.6
           Furthermore, we concluded in our Technical System Audit Report concerning ADEQ's ambient air quality monitoring program that ADEQ's ambient air monitoring network currently meets or exceeds the requirements for the minimum number of monitoring sites designated as SLAMS for PM2.5 in the Nogales nonattainment area.7
           Also, ADEQ annually certifies that the data it submits to AQS are quality-assured.8

            6 Letter from Joe Lapka, Acting Manager, Air Quality Analysis Office, U.S. EPA Region IX, to Nancy Wrona, Director, Air Quality Division, ADEQ (November 12, 2009) (approving ADEQ's “Final Report of the State of Arizona Air Monitoring Network Plan for the Year 2009”); Letter from Matthew Lakin, Manager, Air Quality Analysis Office, U.S. EPA Region IX, to Eric Massey, Director, Air Quality Division, ADEQ (December 10, 2010) (approving ADEQ's “Final Report of the State of Arizona Air Monitoring Network Plan for the Year 2010”); Letter from Matthew Lakin, Manager, Air Quality Analysis Office, U.S. EPA Region IX, to Eric Massey, Director, Air Quality Division, ADEQ (December 1, 2011) (approving ADEQ's “State of Arizona Air Monitoring Network Plan: For the Year 2011”).

            7 Technical System Audit Report transmitted via correspondence dated September 23, 2010, from Deborah Jordan, Director, Air Division, EPA Region IX, to Eric Massey, Air Division, ADEQ.

            8 See, e.g., the letter from Eric C. Massey, Director, Air Quality Division, ADEQ to Deborah Jordan, Director, Air Division, EPA Region IX, dated September 21, 2012 certifying the ambient air quality data collected for year 2011.

        There was one PM2.5 SLAMS operating during the 2009-2011 period in the Nogales PM2.5 nonattainment area. This site has been monitoring PM2.5 concentrations since 1999 with a one-in-six-day sampling frequency. EPA defines specific monitoring site types and spatial scales of representativeness to characterize the nature and location of required monitors. The monitor's spatial scale is neighborhood scale,9
           and its monitoring objective (site type) is population exposure.10

            9 In this context, “neighborhood” spatial scale defines concentrations within some extended area of the city that has relatively uniform land use with dimensions in the 0.5 to 4.0 kilometers range. See 40 CFR part 58, appendix D, section 1.2.

            10 State of Arizona Air Monitoring Network Plan for the Year 2012, Final Report, August 1, 2012. ADEQ also operates a co-located PM2.5 monitor at the Nogales monitoring site. The co-located monitor also collects samples on a one-day-in-six schedule.

        For the purposes of this proposed action, we have reviewed the data for the most recent three-year period (2009-2011) for completeness, and we determined that the data collected by ADEQ meets the completeness criterion for all 12 quarters at the Nogales PM2.5 monitor. While we consider the PM2.5 data set for 2009-2011 to be complete for the purposes of determining whether the area has attained the standard, we have also determined that, under our monitoring regulations, ADEQ should be sampling PM2.5 on a one-in-three day schedule rather than at the current one-in-six day schedule because the co-located PM2.5 monitor at the Nogales site is not a continuously operating monitor, and under those circumstances, a sampling frequency of at least one day in every three is required under 40 CFR 58.12(d)(1). ADEQ has agreed to increase the monitoring frequency at the Nogales monitoring site to meet the requirements of 40 CFR 58.12(d)(1), beginning January 2013.11

           The increased number of samples would provide sufficient information to evaluate the area's continued attainment of the 2006 PM2.5 NAAQS if we finalize this proposed determination of attainment for the Nogales nonattainment area.

            11 See ADEQ's September 11, 2012 letter to Matthew Lakin, Manager, Air Quality Analysis Office, EPA Region IX, from Eric Massey, Director, Air Quality Division, ADEQ.

        B. Evaluation of Current Attainment
        EPA's evaluation of whether the Nogales PM2.5 nonattainment area has attained the 2006 24-hour PM2.5 NAAQS is based on our review of the monitoring data and takes into account the adequacy of the PM2.5 monitoring network in the nonattainment area and the reliability of the data collected by the network as discussed in the previous section of this document.
        Table 1 shows the PM2.5 design values for the Nogales nonattainment area monitor based on ambient air quality monitoring data for the most recent complete three-year period (2009-2011). The data show that the design value for the 2009-2011 period was equal to or less than 35 μg/m3 at the monitor. Therefore, we are proposing to determine, based on the complete, quality-assured data for 2009-2011, that the Nogales area has attained the 2006 24-hour PM2.5 standard. Preliminary data available in AQS for 2012 indicate that the area continues to attain the standard.

          Table 1—2009-2011 24-Hour PM2.5 Monitoring Site and Design Value for the Nogales Nonattainment Area

            Monitoring site
            AQS siteidentification
              No.

            98th Percentile (μg/m3)
            2009
            2010
            2011
            2009-2011 design values (μg/m3)

            Nogales Post Office
            04-023-0004
            29.7
            31.6
            27.2
            30

          Source: Design Value Report, August 14, 2012 (in the docket to this proposed action).

        IV. How does EPA's Clean Data Policy apply to this action?
        A. Application of EPA's Clean Data Policy to the 2006 PM2.5 NAAQS
        In April 2007, EPA issued its PM2.5 Implementation Rule for the 1997 PM2.5 standard. 72 FR 20586; (April 25, 2007). In March, 2012, EPA published implementation guidance for the 2006 PM2.5 standard. See Memorandum from Stephen D. Page, Director, Office of Air Quality Planning and Standards, “Implementation Guidance for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS)” (March 2, 2012). In that guidance, EPA stated its view “that the overall framework and policy approach of the 2007 PM2.5 Implementation Rule continues to provide effective and appropriate guidance on the EPA's interpretation of the general statutory requirements that states should address in their SIPs. In general, the EPA believes that the interpretations of the statute in the framework of the 2007 PM2.5 Implementation Rule are relevant to the statutory requirements for the 2006 24-hour PM2.5 NAAQS * * *.” Id., page 1. With respect to the statutory provisions applicable to 2006 PM2.5 implementation, the guidance emphasized that “EPA outlined its interpretation of many of these provisions in the 2007 PM2.5 Implementation Rule. In addition to regulatory provisions, the EPA provided substantial general guidance for attainment plans for PM2.5 in the preamble to the final the [sic] 2007 PM2.5 Implementation Rule.” Id., page 2. In keeping with the principles set forth in the guidance, and with respect to the effect of a determination of attainment for the 2006 PM2.5 standard, EPA is applying the same interpretation with respect to the implications of clean data determinations that it set forth in the preamble to the 1997 PM2.5 standard and in the regulation that embodies this interpretation. 40 CFR 51.1004(c).12
           EPA has long applied this interpretation in regulations and individual rulemakings for the 1-hour ozone and 1997 8-hour ozone standards, the PM-10 standard, and the lead standard.

            12 While EPA recognizes that 40 CFR 51.1004(c) does not itself expressly apply to the 2006 PM2.5 standard, the statutory interpretation that it embodies is identical and is applicable to both the 1997 and 2006 PM2.5 standards.

        B. History and Basis of EPA's Clean Data Policy

        Following enactment of the CAA Amendments of 1990, EPA promulgated its interpretation of the requirements for implementing the NAAQS in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990 (General Preamble) 57 FR 13498, 13564 (April 16, 1992). In 1995, based on the interpretation of CAA sections 171 and 172, and section 182 in the General Preamble, EPA set forth what has become known as its “Clean Data Policy” for the 1-hour ozone NAAQS. See Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard” (May 10, 1995). In 2004, EPA indicated its intention to extend the Clean Data Policy to the PM2.5 NAAQS. See Memorandum from Steve Page, Director, EPA Office of Air Quality Planning and Standards, “Clean Data Policy for the Fine Particle National Ambient Air Quality Standards” (December 14, 2004).

        Since 1995, EPA has applied its interpretation under the Clean Data Policy in many rulemakings, suspending certain attainment-related planning requirements for individual areas, based on a determination of attainment. See 60 FR 36723 (July 18, 1995) (Salt Lake and Davis Counties, Utah, 1-hour ozone); 61 FR 20458 (May 7, 1996) (Cleveland-Akron-Lorain, Ohio, 1-hour ozone); 61 FR 31832 (June 21, 1996) (Grand Rapids, Michigan, 1-hour ozone); 65 FR 37879 (June 19, 2000) (Cincinnati-Hamilton, Ohio-Kentucky, 1-hour ozone); 66 FR 53094 (October 19, 2001) (Pittsburgh-Beaver Valley, Pennsylvania, 1-hour ozone); 68 FR 25418 (May 12, 2003) (St. Louis, Missouri-Illinois, 1-hour ozone); 69 FR 21717 (April 22, 2004) (San Francisco Bay Area, California, 1-hour ozone); 75 FR 6570 (February 10, 2010) (Baton Rouge, Louisiana, 1-hour ozone); 75 FR 27944 (May 19, 2010) (Coso Junction, California, PM10).

        EPA also incorporated its interpretation under the Clean Data Policy in several implementation rules. See Clean Air Fine Particle Implementation Rule, 72 FR 20586 (April 25, 2007); Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2, 70 FR 71612 (November 29, 2005). The Court of Appeals for the District of Columbia Circuit (DC Circuit) upheld EPA's rule embodying the Clean Data Policy for the 1997 8-hour ozone standard. NRDC v. EPA, 571 F.3d 1245 (DC Cir. 2009). Other courts have reviewed and considered individual rulemakings applying EPA's Clean Data Policy, and have consistently upheld them in every case. Sierra Club v. EPA, 99 F.3d 1551 (10th Cir. 1996); Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004); Our Children's Earth Foundation v. EPA, No. 04-73032 (9th Cir. June 28, 2005 (Memorandum Opinion)), Latino Issues Forum v. EPA, Nos. 06-75831 and 08-71238 (9th Cir. March 2, 2009 (Memorandum Opinion)).

        EPA sets forth below a brief explanation of the statutory interpretations in the Clean Data Policy. EPA also incorporates the discussions of its interpretation set forth in prior rulemakings, including the 1997 PM2.5 implementation rulemaking. See 72 FR 20586, at 20603-20605 (April 25, 2007). See also 75 FR 31288 (June 3, 2010) (Providence, Rhode Island, 1997 8-hour ozone); 75 FR 62470 (October 12, 2010) (Knoxville, Tennessee, 1997 8-hour ozone); 75 FR 53219 (August 31, 2010) (Greater Connecticut Area, 1997 8-hour ozone); 75 FR 54778 (September 9, 2010) (Baton Rouge, Louisiana, 1997 8-hour ozone); 75 FR 64949 (October 21, 2010) (Providence, Rhode Island, 1997 8-hour ozone); 76 FR 11080 (March 1, 2011) (Milwaukee-Racine and Sheboygan Areas, Wisconsin, 1997 8-hour ozone); 76 FR 31237 (May 31, 2011) (Pittsburgh-Beaver Valley, Pennsylvania, 1997 8-hour ozone); 76 FR 33647 (June 9, 2011) (St. Louis, Missouri-Illinois, 1997 8-hour ozone); 76 FR 70656 (November 15, 2011) (Charlotte-Gastonia-Rock Hill, North Carolina-South Carolina, 1997 8-hour ozone); 77 FR 31496 (May 29, 2012) (Boston-Lawrence-Worchester, Massachusetts, 1997 8-hour ozone). See also, 75 FR 56 (January 4, 2010) (Greensboro-Winston-Salem-High Point, North Carolina, 1997 PM2.5); 75 FR 230 (January 5, 2010) (Hickory-Morganton-Lenoir, North Carolina, 1997 PM2.5); 76 FR 12860 (March 9, 2011) (Louisville, Kentucky-Indiana, 1997 PM2.5); 76 FR 18650 (April 5, 2011) (Rome, Georgia, 1997 PM2.5); 76 FR 31239 (May 31, 2011) (Chattanooga, Tennessee-Georgia-Alabama, 1997 PM2.5); 76 FR 31858 (June 2, 2011) (Macon, Georgia, 1997 PM2.5); 76 FR 36873 (June 23, 2011) (Atlanta, Georgia, 1997 PM2.5); 76 FR 38023 (June 29, 2011) (Birmingham, Alabama, 1997 PM2.5); 76 FR 55542 (September 7, 2011) (Huntington-Ashland, West Virginia-Kentucky-Ohio, 1997 PM2.5); 76 FR 60373 (September 29, 2011) (Cincinnati, Ohio-Kentucky-Indiana, 1997 PM2.5); 77 FR 18922 (March 29, 2012) (Harrisburg-Lebanon-Carlisle-York, Allentown, Johnstown and Lancaster, Pennsylvania, 1997 PM2.5).
        The Clean Data Policy represents EPA's interpretation that certain requirements of subpart 1 of part D of the Act are by their terms not applicable to areas that are currently attaining the NAAQS.13
           As explained below, the specific requirements that are inapplicable to an area attaining the standard are the requirements to submit a SIP that provides for: attainment of the NAAQS; implementation of all reasonably available control measures; reasonable further progress (RFP); and implementation of contingency measures for failure to meet deadlines for RFP and attainment.

            13 This discussion refers to subpart 1 because subpart 1 contains the requirements relating to attainment of the 2006 PM2.5 NAAQS.

        CAA section 172(c)(1), the requirement for an attainment demonstration, provides in relevant part that SIPs “shall provide for attainment of the [NAAQS].” EPA has interpreted this requirement as not applying to areas that have already attained the standard. If an area has attained the standard, there is no need to submit a plan demonstrating how the area will reach attainment. In the General Preamble (57 FR 13564), EPA stated that no other measures to provide for attainment would be needed by areas seeking redesignation to attainment since “attainment will have been reached.” See also Memorandum from John Calcagni, “Procedures for Processing Requests to Redesignate Areas to Attainment,” (September 4, 1992), at page 6.

        A component of the attainment plan specified under section 172(c)(1) is the requirement to provide for “the implementation of all reasonably available control measures as expeditiously as practicable” (RACM). Since RACM is an element of the attainment demonstration, see General Preamble (57 FR 13560), for the same reason the attainment demonstration no longer applies by its own terms, RACM also no longer applies to areas that EPA has determined have clean air. Furthermore, EPA has consistently interpreted this provision to require only implementation of such potential RACM measures that could advance attainment.14

           Thus, where an area is already attaining the standard, no additional RACM measures are required. EPA's interpretation that the statute requires only implementation of the RACM measures that would advance attainment was upheld by the United States Court of Appeals for the Fifth Circuit (Sierra Club v. EPA, 314 F.3d 735, 743-745, 5th Cir. 2002) and by the United States Court of Appeals for the D.C. Circuit (Sierra Club v. EPA, 294 F.3d 155, 162-163, D.C. Cir. 2002). See also the final rulemakings for Pittsburgh-Beaver Valley, Pennsylvania, 66 FR 53096 (October 19, 2001) and St. Louis, Missouri-Illinois, 68 FR 25418 (May 12, 2003).

            14 This interpretation was adopted in the General Preamble, see 57 FR 13498, and has been upheld as applied to the Clean Data Policy, as well as to nonattainment SIP submissions. See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009); Sierra Club v. EPA, 294 F.3d 155 (D.C. Cir. 2002).

        CAA section 172(c)(2) provides that SIP provisions in nonattainment areas must require “reasonable further progress.” The term “reasonable further progress” is defined in section 171(1) as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable NAAQS by the applicable date.” Thus, by definition, the “reasonable further progress” provision under subpart 1 requires only such reductions in emissions as are necessary to attain the NAAQS. If an area has attained the NAAQS, the purpose of the RFP requirement has been fulfilled, and since the area has already attained, showing that the State will make RFP towards attainment “[has] no meaning at that point.” General Preamble, 57 FR 13498, 13564 (April 16, 1992).

        CAA section 172(c)(9) provides that SIPs in nonattainment areas “shall provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the [NAAQS] by the attainment date applicable under this part. Such measures shall be included in the plan revision as contingency measures to take effect in any such case without further action by the State or [EPA].” This contingency measure requirement is inextricably tied to the reasonable further progress and attainment demonstration requirements. Contingency measures are implemented if reasonable further progress targets are not achieved, or if attainment is not realized by the attainment date. Where an area has already achieved attainment, it has no need to rely on contingency measures to come into attainment or to make further progress to attainment. As EPA stated in the General Preamble: “The section 172(c)(9) requirements for contingency measures are directed at ensuring RFP and attainment by the applicable date.” See 57 FR 13564. Thus these requirements no longer apply when an area has attained the standard.

        It is important to note that should an area attain the 2006 PM2.5 standard based on three years of data, its obligation to submit an attainment demonstration and related planning submissions is suspended only for so long as the area continues to attain the standard. If EPA subsequently determines, after notice-and-comment rulemaking, that the area has violated the NAAQS, the requirements for the State to submit a SIP to meet the previously suspended requirements would be reinstated. It is likewise important to note that the area remains designated nonattainment pending a further redesignation action.
        V. EPA's Proposed Action and Request for Public Comment

        EPA is proposing to determine that the Nogales nonattainment area in Arizona has attained the 2006 24-hour PM2.5 standard based on the most recent three years of complete, quality-assured, and certified data for 2009-2011. Preliminary data available in AQS for 2012 show that the area continues to attain the standard.

        EPA further proposes that, if its proposed determination of attainment is made final, the requirements for the Nogales nonattainment area to submit an attainment demonstration and associated RACM, a RFP plan, contingency measures, and any other planning SIPs related to attainment of the 2006 PM2.5 NAAQS would be suspended for so long as the area continues to attain the 2006 PM2.5 NAAQS. EPA's proposal is consistent and in keeping with its long-held interpretation of CAA requirements, as well as with EPA's regulations for similar determinations for ozone (see 40 CFR 51.918) and the 1997 fine particulate matter standards (see 40 CFR 51.1004(c)). As described below, any such determination would not be equivalent to the redesignation of the area to attainment for the 2006 PM2.5 NAAQS.

        Any final action resulting from this proposal would not constitute a redesignation to attainment under CAA section 107(d)(3) because we have not yet approved a maintenance plan for the nonattainment area as meeting the requirements of section 175A of the CAA or determined that the area has met the other CAA requirements for redesignation. The classification and designation status in 40 CFR part 81 would remain nonattainment for the area until such time as EPA determines that Arizona has met the CAA requirements for redesignating the Nogales PM2.5 nonattainment area to attainment.

        If the Nogales nonattainment area continues to monitor attainment of the 2006 PM2.5 NAAQS, EPA proposes that the requirements for the area to submit an attainment demonstration and associated RACM, a RFP plan, contingency measures, and any other planning requirements related to attainment of the 2006 PM2.5 NAAQS will remain suspended. If this proposed rulemaking is finalized and EPA subsequently determines, after notice-and-comment rulemaking in the Federal Register, that the area has violated the 2006 PM2.5 NAAQS, the basis for the suspension of these attainment planning requirements for the area would no longer exist, and the area would thereafter have to address such requirements.
        EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. We will accept comments from the public on this proposal for the next 30 days. We will consider these comments before taking final action.
        VI. Statutory and Executive Order Reviews
        This action proposes to make a determination of attainment based on air quality and to suspend certain federal requirements, and thus, would 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 disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

        In addition, this proposed action does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP obligations discussed herein do not apply to Indian Tribes and thus this proposed action will not impose substantial direct costs on Tribal governments or preempt Tribal law.

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Incorporation by reference, Particulate matter, Nitrogen oxides, Sulfur oxides, Reporting and recordkeeping requirements.

          Dated: October 15, 2012.
          Jared Blumenfeld,
          Regional Administrator, Region IX.

      [FR Doc. 2012-26651 Filed 10-29-12; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF TRANSPORTATION
        Federal Motor Carrier Safety Administration
        49 CFR Part 367
        [Docket No. FMCSA-2017-0118]
        RIN 2126-AC03
        Fees for the Unified Carrier Registration Plan and Agreement

          AGENCY:
          Federal Motor Carrier Safety Administration (FMCSA), DOT.

          ACTION:
          Notice of proposed rulemaking; request for comments.

          SUMMARY:
          FMCSA proposes to establish reductions in the annual registration fees collected from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies for the Unified Carrier Registration (UCR) Plan and Agreement for the registration years 2018, 2019 and subsequent years. For the 2018 registration year, the fees would be reduced below the current level by approximately 9.10% to ensure that fee revenues do not exceed the statutory maximum, and to account for the excess funds held in the depository. For the 2019 registration year, the fees would be reduced below the current level by approximately 4.55% to ensure the fee revenues in that and future years do not exceed the statutory maximum.

          DATES:
          Comments on this notice of proposed rulemaking must be received on or before October 2, 2017.

          ADDRESSES:
          You may submit comments identified by Docket Number FMCSA-2017-0118 using any of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.
          • Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
          • Fax: 202-493-2251.

          To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for instructions on submitting comments, including collection of information comments for the Office of Information and Regulatory Affairs, OMB.

          FOR FURTHER INFORMATION CONTACT:
          Mr. Gerald Folsom, Office of Registration and Safety Information, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001 by telephone at 202-385-2405. If you have questions on viewing or submitting material to the docket, contact Docket Services, telephone (202) 366-9826.

        SUPPLEMENTARY INFORMATION:

        This notice of proposed rulemaking (NPRM) is organized as follows:

          I. Public Participation and Request for Comments
          A. Submitting Comments
          B. Viewing Comments and Documents
          C. Privacy Act
          D. Waiver of Advance Notice of Proposed Rulemaking
          II. Executive Summary
          A. Purpose and Summary of the Major Provisions
          B. Benefits and Costs
          III. Abbreviations and Acronyms
          IV. Legal Basis
          V. Statutory Requirements
          A. Legislative History
          B. Fee Requirements
          VI. Background
          VII. Discussion of Proposed Rulemaking
          VIII. Section-by-Section Analysis
          IX. Regulatory Analyses
          A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory Policies and Procedures as Supplemented by E.O. 13563)
          B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs
          C. Regulatory Flexibility Act (Small Entities)
          D. Assistance for Small Entities
          E. Unfunded Mandates Reform Act of 1995
          F. Paperwork Reduction Act (Collection of Information)
          G. E.O. 13132 (Federalism)
          H. E.O. 12988 (Civil Justice Reform)
          I. E.O. 13045 (Protection of Children)
          J. E.O. 12630 (Taking of Private Property)
          K. Privacy
          L. E.O. 12372 (Intergovernmental Review)
          M. E.O. 13211 (Energy Supply, Distribution, or Use)
          N. E.O. 13175 (Indian Tribal Governments)
          O. National Technology Transfer and Advancement Act (Technical Standards)
          P. Environment (NEPA, CAA, Environmental Justice)

        I. Public Participation and Request for Comments
        A. Submitting Comments

        If you submit a comment, please include the docket number for this NPRM (Docket No. FMCSA-2017-0118), indicate the specific section of this document to which each section applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
        To submit your comment online, go to http://www.regulations.gov, put the docket number, FMCSA-2017-0118, in the keyword box, and click “Search.” When the new screen appears, click on the “Comment Now!” button and type your comment into the text box on the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit.
        If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2 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.
        FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments. FMCSA may issue a final rule at any time after the close of the comment period.
        Confidential Business Information
        Confidential Business Information (CBI) is commercial or financial information that is customarily not made available to the general public by the submitter. Under the Freedom of Information Act, CBI is eligible for protection from public disclosure. If you have CBI that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Accordingly, please mark each page of your submission as “confidential” or “CBI.” Submissions designated as CBI and meeting the definition noted above will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Brian Dahlin, Chief, Regulatory Analysis Division, 1200 New Jersey Avenue SE., Washington, DC 20590. Any commentary that FMCSA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking. FMCSA will consider all comments and material received during the comment period.
        B. Viewing Comments and Documents

        To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2017-0118, in the keyword box, and click “Search.” Next, click the “Open Docket Folder” button and choose the document to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.
        C. Privacy Act

        In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

        D. Advanced Notice of Proposed Rulemaking Not Required
        Under section 5202 of the FAST Act, Public Law, 114-94 (FAST Act), FMCSA is required to publish an advance notice of proposed rulemaking for any major or significant rules, unless the Agency finds good cause that an ANPRM is impracticable, unnecessary, or contrary to the public interest. FMCSA has determined that this proposed rule is not significant; therefore, it is not a major rule that requires an ANPRM.
        II. Executive Summary
        A. Purpose and Summary of the Major Provisions
        The UCR Plan and the 41 States participating in the UCR Agreement establish and collect fees from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. The UCR Plan and Agreement are administered by a 15-member board of directors (UCR Board); 14 appointed from the participating States and the industry, plus the Deputy Administrator of FMCSA. Revenues collected are allocated to the participating States and the UCR Plan. In accordance with the statute, adjustments must be requested by the UCR Plan when annual revenues exceed the maximum allowed in accordance with 49 U.S.C. 14504a(f)(1)(E)(ii). Also, excess funds held by the UCR Plan after payments to the States and for administrative costs are retained in its depository and subsequent fees charged are reduced as required by 49 U.S.C. 14504a(h)(4). These two distinct provisions are the reasons for the two-stage adjustment proposed in this rule. The NPRM proposes to provide for a reduction for at least the next two registration years to the annual registration fees established for the Unified Carrier Registration (UCR) Agreement.
        The UCR Plan collects registration fees for each registration year. Collection begins on or about October 1st of the previous year, and continues until December 31st of the following year. For example, collection for the 2016 registration year began on October 1st, 2015, and will end on December 31st 2017. Currently the UCR Plan estimates that by December 31st of 2017, total revenues will exceed the statutory maximum for the 2016 registration year by $5.13 million, or approximately 4.55%. This is the first time that revenues collected will exceed the statutory maximum. Therefore, in March 2017, the UCR Board requested that FMCSA adjust the fees in a two-stage process. For the 2018 registration year, with collection beginning on or about October 1st of 2017, the fees would be reduced below the current level by approximately 9.10% to ensure that fee revenues do not exceed the statutory maximum, and to reduce the excess funds held in the depository. For the 2019 registration year, with collection beginning on or about October 1st of 2018, the fees would be reduced below the current level by approximately 4.55% to ensure the fee revenues in that and future years do not exceed the statutory maximum. The UCR Plan requested that the reduction for 2018 be adopted no later than August 31, 2017, to enable the participating States and the UCR Plan to reflect the new fees when collections for the 2018 registration year begins on or about October 1, 2017. The adoption of the adjusted fees must be accomplished by rulemaking by FMCSA under authority delegated from the Secretary of Transportation.
        B. Benefits and Costs

        The changes proposed in this NPRM will reduce the fees paid by motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies to the participating States. Fees are considered by the Office of Management and Budget (OMB) Circular A-4, Regulatory Analysis, as transfer payments, not costs. Transfer payments are payments from one group to another that do not affect total resources available to society. Therefore, transfers are not considered in the monetization of societal costs and benefits of rulemakings.
        The UCR Plan's formal recommendation requested that FMCSA publish a rule reducing the fees paid per motor carrier, motor private carrier of property, broker, freight forwarder, and leasing company based on an analysis of current collections and past trends. The Agency reviewed the UCR Plan's formal recommendation and concluded that the UCR Plan's projection of the total revenues received for registration year 2016 may have been understated. This understatement would result in slightly higher fees for certain brackets. FMCSA conducted its own analysis, adjusted the methodology for projecting collections through the remainder of 2017, and updated the fees accordingly. The total amount targeted for collection by the UCR Plan will not change as a result of this rule, but the fees paid, or transfers, per affected entity will be reduced.
        III. Abbreviations and Acronyms
        The following is a list of abbreviations used in this document

          Board Unified Carrier Registration Board of Directors
          CAA Clean Air Act
          CE Categorical Exclusion
          FAST Act Fixing America's Surface Transportation Act, Public Law 114-94, 129 Stat. 1312 (Dec. 2, 2015)
          FMCSA Federal Motor Carrier Safety Administration
          NCSTS National Conference of State Transportation Specialists
          OMB Office of Management and Budget
          PIA Privacy Impact Assessment
          PRA Paperwork Reduction Act
          RFA Regulatory Flexibility Act
          SBA Small Business Administration
          SBREFA Small Business Regulatory Enforcement Fairness Act
          SSRS Single State Registration System
          UCR Unified Carrier Registration
          UCR Agreement Unified Carrier Registration Agreement
          UCR Plan Unified Carrier Registration Plan

        IV. Legal Basis for the Rulemaking
        This rule proposes to make adjustments in the annual registration fees for the UCR Agreement established by 49 U.S.C. 14504a. The requested fee adjustments are required by 49 U.S.C. 14504a because, for the registration year 2016, the total revenues collected are expected to exceed for the first time the total revenue entitlements of $107.78 million distributed to the 41 participating States plus the $5 million established for the administrative costs associated with the UCR Plan and Agreement. The requested adjustments have been submitted by the UCR Plan in accordance with 49 U.S.C. 14504a(f)(1)(E)(ii), which requires the Plan to request an adjustment by the Secretary when the annual revenues exceed the maximum allowed. In addition, 49 U.S.C. 14504a(h)(4) states that any excess funds held by the UCR Plan in its depository, after payments to the States and for administrative costs, shall be retained “and the fees charged . . . shall be reduced by the Secretary accordingly.”
        The Secretary also has broad rulemaking authority in 49 U.S.C. 13301(a) to carry out 49 U.S.C. 14504a, which is part of 49 U.S.C. subtitle IV, part B. Authority to administer these statutory provisions has been delegated to the FMCSA Administrator by 49 CFR 1.87(a)(2) and (7).
        V. Statutory Requirements for the UCR Fees
        A. Legislative History
        The statute states that the “Unified Carrier Registration Plan . . . mean[s] the organization . . . responsible for developing, implementing, and administering the unified carrier registration agreement” (49 U.S.C. 14504a(a)(9)) (UCR Plan). The UCR Agreement developed by the UCR Plan is the “interstate agreement governing the collection and distribution of registration and financial responsibility information provided and fees paid by motor carriers, motor private carriers, brokers, freight forwarders, and leasing companies. . .” (49 U.S.C. 14504a(a)(8)).
        The legislative history of the statute indicates that the purpose of the UCR Plan and Agreement is both to replace the Single State Registration System (SSRS) for registration of interstate motor carrier entities with the States and to “ensure that States don't lose current revenues derived from SSRS” (S. Rep. 109-120, at 2 (2005)). The statute provides for a 15-member Board of Directors for the UCR Plan to be appointed by the Secretary of Transportation. The statute specifies that the UCR Board should consist of one individual (either the Federal Motor Carrier Safety Administration (FMCSA) Deputy Administrator or another Presidential appointee) from the Department of Transportation; four directors from among the chief administrative officers of the State agencies responsible for administering the UCR Agreement (one from each of the four FMCSA service areas); five directors from among the professional staffs of State agencies responsible for administering the UCR Agreement, to be nominated by the National Conference of State Transportation Specialists (NCSTS); and five directors from the motor carrier industry, of whom at least one must be from a national trade association representing the general motor carrier of property industry and one from a motor carrier that falls within the smallest fleet fee bracket.
        The UCR Plan and the participating States are authorized by 49 U.S.C. 14504a(f) to establish and collect fees from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. The current annual fees charged are set out in 49 CFR 367.30. These fees were adopted by FMCSA in 2010 after a rulemaking proceeding that considered the substantial increase in fees over the fees initially established in 2007. Compare 75 FR 21993 (Apr. 27, 2010) with 72 FR 48585 (Aug. 24, 2007).
        For carriers and freight forwarders, the fees vary according to the size of the vehicle fleets, as required by 49 U.S.C. 14504a(f). The fees collected are allocated to the States and the UCR Plan in accordance with 49 U.S.C. 14504a(h).
        B. Fee Requirements
        The statute specifies that fees are to be based upon the recommendation of the UCR Board, 49 U.S.C. 14504a(f)(1)(E)(ii). In recommending the level of fees to be assessed in any agreement year, and in setting the fee level, both the Board and the Agency shall consider the following factors:
        • Administrative costs associated with the UCR Plan and Agreement.
        • Whether the revenues generated in the previous year and any surplus or shortage from that or prior years enable the participating States to achieve the revenue levels set by the Board; and.
        • Provisions governing fees in 49 U.S.C. 14504a(f)(1).
        The fees may be adjusted within a reasonable range on an annual basis if the revenues derived from the fees are either insufficient to provide the participating States with the revenues they are entitled to receive or exceed those revenues (49 U.S.C. 14504a(f)(1)(E)).

        Overall, the fees assessed under the UCR Agreement must produce the level of revenue established by statute. Section 14504a(g) establishes the revenue entitlements for States that choose to participate in the UCR Plan. That section provides that a participating State, which participated in SSRS in the registration year prior to the enactment of the Unified Carrier Registration Act of 2005 is entitled to receive revenues under the UCR Agreement equivalent to the revenues it received in the year before that enactment. Participating States that also collected intrastate registration fees from interstate motor carrier entities (whether or not they participated in SSRS) are also entitled to receive revenues of this type under the UCR Agreement, in an amount equivalent to the amount received in the previous registration year. The section also requires that States that did not participate in SSRS previously, but which choose to participate in the UCR Plan, may receive revenues not to exceed $500,000 per year.
        FMCSA's interpretation of its responsibilities under 49 U.S.C. 14504a in setting fees for the UCR Plan and Agreement is guided by the primacy the statute places on the need both to set and to adjust the fees so that they “provide the revenues to which the States are entitled.” The statute links the requirement that the fees be adjusted “within a reasonable range” to the provision of sufficient revenues to meet the entitlements of the participating States (49 U.S.C. 14504a(f)(1)(E), See also 49 U.S.C. 14504a(d)(7)(A)(ii)).
        Section 14504a(h)(4) gives additional support for this interpretation. This provision explicitly requires FMCSA to reduce the fees for all motor carrier entities in the year following any year in which the depository retains any funds in excess of the amount necessary to satisfy the revenue entitlements of the participating States and the UCR Plan's administrative costs.
        VI. Background
        On March 14, 2017, the UCR Board voted unanimously to submit a recommendation to the Secretary for a reduction of registration fees collected by the Plan for 2018, with a subsequent upward adjustment in 2019. The recommendation was submitted to the Secretary on March 22, 2017, and a copy has been placed in the docket.1
           The requested fee adjustments are required by 49 U.S.C. 14504a because, for the registration year 2016, the total revenues collected have exceeded for the first time the total revenue entitlements of $107.78 million distributed to the 41 participating States plus the $5 million established for “the administrative costs associated with the unified carrier registration plan and agreement.” 49 U.S.C. 14504a((d)(7)(A)(i)). The maximum revenue entitlements for each of the 41 participating States, totaling $107.78 million and established in accordance with 49 U.S.C. 14504a(g), are set out in the table attached to the March 22, 2017 recommendation.

            1 The UCR recommendation submitted March 22, 2017 including the letter request from the Board and all related tables is located in docket FMCSA-2017-0118 at: www.regulations.gov.

        As indicated in the analysis attached to the March 22, 2017 letter, as of the end of February 2017, the UCR Plan had already collected for 2016 $4.15 million more than the statutory maximum of $112.78 million. The UCR Plan estimates that by the end of 2017, total revenues will exceed the statutory maximum for 2016 by $5.13 million, or approximately 4.55%. The excess revenues collected will be held in a depository maintained by the Plan as required by 49 U.S.C. 14504a(h)(4).
        The requested adjustments have been submitted by the UCR Plan in accordance with 49 U.S.C. 14504a(f)(1)(E)(ii), which requires it to request an adjustment when the annual revenues exceed the maximum allowed. In addition, 49 U.S.C. 14504a(h)(4) states that any excess funds held by the UCR Plan in its depository, after payments to the States and for administrative costs, shall be retained “and the fees charged . . . shall be reduced by the Secretary accordingly.” These two provisions are distinct, and are the basis for the two-stage adjustment in the recommendation.
        The requested adjustments would occur in two stages; an initial reduction below the current level by approximately 9.10% for 2018, followed by a reduction below the current level by approximately 4.55% for 2019. The adjusted fees recommended for each bracket for 2018 and 2019 are shown in the analysis attached to the March 22 letter. The UCR Plan has requested that the reduction for the 2018 registration year be adopted not later than August 31, 2017, to enable the participating States and the UCR Plan to reflect the new fees when fee collection for the 2018 registration year begins on October 1, 2017.
        VII. Discussion of Proposed Rulemaking
        The Agency reviewed the UCR Plan's formal recommendation and concluded that the UCR Plan's estimate of the total revenues received by the end of 2017 may have been understated. In order to estimate the revenue collections for the 2016 registration year, the UCR Plan's recommendation looks across years to find the minimum amount collected in each month, and then sums the minimum from each month to develop the total minimum projection. This method ignores the relationship between each month's registrations within a given registration year. Within each registration year there is a set number of carriers that would register; therefore, the number of registrations in each month is related to the number of registrations in previous months. FMCSA believes that using the proposed method artificially reduces the total minimum projection, thereby increasing the fees charged. This understatement would result in slightly higher fees for certain brackets.
        FMCSA conducted its own analysis, adjusted the methodology for projecting collections for the 2016 registration year, and updated the fees accordingly. FMCSA estimated the minimum projection of revenue collections for March through December of 2017 by summing the collections within each registration year (2013-2015) and then compared across years to find the minimum total amount. FMCSA projected that for the 2016 registration year, the minimum revenue collection for March through December of 2017 when the collection period would end would be $1,035,305, which is $55,000 more than the Plan's projection of $980,139. Ultimately, the slightly higher minimum projection then results in a slightly lower fee for certain brackets. Where it exists, the resulting fee difference between the Plan's method and FMCSA's method is minimal.
        VIII. Section-by-Section Analysis
        For this NPRM, FMCSA proposes that the provisions of 49 CFR 367.30 will be revised to apply to registration years 2010 to 2017, inclusive. A proposed new 49 CFR 367.40 establishes the reduced fees for registration year 2018. A second proposed new section, 49 CFR 367.50, establishes fees for 2019, which will remain in effect in subsequent registration years unless and until revised in the future.
        IX. Regulatory Analyses
        A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory Policies and Procedures as Supplemented by E.O. 13563)
        This proposed rule is not a significant regulatory action under section 3(f) of Executive Order (E.O.) 12866, (58 FR 51735, October 4, 1993), Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), Improving Regulation and Regulatory Review, and is also not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979) and does not require an assessment of potential costs and benefits under section 6(a)(4) of that Order. The Office of Management and Budget has not reviewed it under that Order.

        The changes proposed by this rule would adjust the registration fees paid by motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies to the UCR Plan and the participating States. Fees are considered by OMB Circular A-4, Regulatory Analysis, as transfer payments, not costs. Transfer payments are payments from one group to another that do not affect total resources available to society. By definition, transfers are not considered in the monetization of societal costs and benefits of rulemakings.
        This rule would establish adjustments in the annual registration fees for the UCR Plan and Agreement. The total amount targeted for collection by the UCR Plan will not change as a result of this rule, but the fees paid, or transfers, per affected entity will be reduced. The primary entities affected by this rule are the participating States, motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. Because the total amount collected will continue to be the statutory maximum, the participating States will not be impacted by this rule. The primary impact of this rule would be a reduction in fees paid by individual motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. The reduction will range from approximately $7 to $6,700 per entity in the first year, and from approximately $3 to $3,400 per entity in subsequent years, depending on the number of vehicles owned and/or operated by the affected entities.
        B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs
        E.O. 13771 requires that for “every one new [E.O. 13771 regulatory action] issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.” 2
           Implementation guidance for E.O. 13771 issued by the Office of Management and Budget (OMB) on April 5, 2017, defines two different types of E.O. 13771 actions: an E.O. 13771 deregulatory action, and an E.O. 13771 regulatory action.3

            2 Executive Office of the President. Executive Order 13771 of January 30, 2017. Reducing Regulation and Controlling Regulatory Costs. 82 FR 9339-9341. February 3, 2017.

            3 Executive Office of the President. Office of Management and Budget. Guidance Implementing Executive Order 13771, Titled “Reducing Regulation and Controlling Regulatory Costs.” Memorandum M-17-21. April 5, 2017.

        An E.O. 13771 deregulatory action is defined as “an action that has been finalized and has total costs less than zero.” This rulemaking does not have total costs less than zero, and therefore is not an E.O. 13771 deregulatory action.
        An E.O. 13771 regulatory action is defined as:
        (i) A significant action as defined in Section 3(f) of E.O. 12866 that has been finalized, and that imposes total costs greater than zero; or
        (ii) a significant guidance document (e.g., significant interpretive guidance) reviewed by Office of Information and Regulatory Affairs under the procedures of E.O. 12866 that has been finalized and that imposes total costs greater than zero.
        The Agency action, in this case a rulemaking, must meet both the significance and the total cost criteria to be considered an E.O. 13771 regulatory action. This rulemaking is not a significant regulatory action as defined in Section 3(f) of E.O. 12866, and therefore does not meet the significance criterion for being an E.O. 13771 regulatory action. Consequently, this rulemaking is not an E.O. 13771 regulatory action and no further action under E.O. 13771 is required.
        C. Regulatory Flexibility Act (Small Entities)
        The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and 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. 4
           Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

            4 Regulatory Flexibility Act (5 U.S.C. 601 et seq.) see National Archives at http://www.archives.gov/federal-register/laws/regulaotry-flexibility/601.html.

        This proposed rule will directly affect the participating States, motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. Under the standards of the RFA, as amended by the SBREFA, the participating States are not small entities. States are not considered small entities because they do not meet the definition of a small entity in Section 601 of the RFA. Specifically, States are not considered small governmental jurisdictions under Section 601(5) of the RFA, both because State government is not included among the various levels of government listed in Section 601(5), and because, even if this were the case, no State nor the District of Columbia has a population of less than 50,000, which is the criterion by which a governmental jurisdiction is considered small under Section 601(5) of the RFA.
        The Small Business Administration (SBA) size standard for a small entity (13 CFR 121.201) differs by industry code. The entities affected by this rule fall into many different industry codes. In order to determine if this rule would have an impact on a significant number of small entities, FMCSA examined the 2012 Economic Census 5
           data for two different industries; truck transportation (Subsector 484) and transit and ground transportation (Subsector 485). According to the 2012 Economic Census, approximately 99 percent of truck transportation firms, and approximately 97 percent of transit and ground transportation firms, had annual revenue less than the SBA revenue threshold of $27.5 million and $15 million, respectively. Therefore, FMCSA has determined that this rule will impact a substantial number of small entities.

            5 U.S. Census Bureau, 2012 US Economic Census. Available at: https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_48SSSZ4&prodType=table (accessed April 27th, 20217).

        However, FMCSA has determined that this rule will not have a significant impact on the affected entities. The effect of this rule will be to reduce the annual registration fee motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies are currently required to pay. The reduction will range from approximately $7 to $6,700 per entity, in the first year, and from approximately $3 to $3,400 per entity in subsequent years, depending on the number of vehicles owned and/or operated by the affected entities. FMCSA asserts that the reduction in fees will be entirely beneficial to these entities, and will not have a significant impact on the affected small entities. Accordingly, I hereby certify that this rule will not have a significant economic impact on a substantial number of small entities.
        D. Assistance for Small Entities

        In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult the FMCSA point of contact, Gerald Folsom, listed in the For Further Information Contact section of this proposed rule.
        Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.
        E. Unfunded Mandates Reform Act of 1995
        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 $155 million (which is the value equivalent of $100,000,000 in 1995, adjusted for inflation to 2015 levels) or more in any one year. Though this proposed rule would not result in such an expenditure, the Agency does discuss the effects of this rule elsewhere in this preamble.
        F. Paperwork Reduction Act
        This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
        G. E.O. 13132 (Federalism)
        A rule has implications for Federalism under Section 1(a) of Executive Order 13132 if it has “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.” FMCSA determined that this proposal would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism Impact Statement.
        H. E.O. 12988 (Civil Justice Reform)
        This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
        I. E.O. 13045 (Protection of Children)
        E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. The Agency determined this proposed rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children.
        J. E.O. 12630 (Taking of Private Property)
        FMCSA reviewed this proposed rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.
        K. Privacy
        The Consolidated Appropriations Act, 2005, (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note) requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule does not require the collection of personally identifiable information (PII).
        The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program.
        The E-Government Act of 2002, Public Law 107-347,  § 208, 116 Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct a privacy impact assessment for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. As a result, FMCSA has not conducted a privacy impact assessment.
        L. E.O. 12372 (Intergovernmental Review)
        The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.
        M. E.O. 13211 (Energy Supply, Distribution, or Use)
        FMCSA has analyzed this proposed rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
        N. E.O. 13175 (Indian Tribal Governments)
        This proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.
        O. National Technology Transfer and Advancement Act (Technical Standards)

        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 OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) are standards that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, FMCSA did not consider the use of voluntary consensus standards.

        P. Environment (NEPA, CAA, Environmental Justice)

        FMCSA analyzed this NPRM for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004), Appendix 2, paragraph 6.(h). The Categorical Exclusion (CE) in paragraph 6.(h) covers regulations and actions taken pursuant to the regulations implementing procedures to collect fees that will be charged for motor carrier registrations. The proposed requirements in this rule are covered by this CE and the NPRM does not have any effect on the quality of the environment. The CE determination is available for inspection or copying in the regulations.gov Web site listed under ADDRESSES.

        FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.
        Under E.O. 12898, each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA evaluated the environmental justice effects of this proposed rule in accordance with the E.O., and has determined that no environmental justice issue is associated with this proposed rule, nor is there any collective environmental impact that would result from its promulgation.

          List of Subjects in 49 CFR Part 367
          Insurance, Intergovernmental relations, Motor carriers, Surety bonds.

        In consideration of the foregoing, FMCSA proposes to amend 49 CFR chapter III, part 367 to read as follows:

          PART 367—STANDARDS FOR REGISTRATION WITH STATES

        1. The authority citation for part 367 continues to read as follows:

          Authority:
          49 U.S.C. 13301, 14504a; and 49 CFR 1.87.

        2. Revise § 367.30 to read as follows:

          § 367.30
          Fees under the Unified Carrier Registration Plan and Agreement for registration years beginning in 2010 and ending in 2017.

            Fees Under the Unified Carrier Registration Plan and Agreement for Each Registration Year 2010-2017

              Bracket
              Number of commercial motor vehicles owned or operated by exempt or non-exempt motor carrier, motor private carrier, or freight forwarder
              Fee per entity for exempt or non-
                exempt motor
                carrier, motor
                private carrier, or freight
                forwarder

              Fee per entity for broker or leasing
                company

              B1
              0-2
              $76
              $76

              B2
              3-5
              227

              B3
              6-20
              452

              B4
              21-100
              1,576

              B5
              101-1,000
              7,511

              B6
              1,001 and above
              73,346

        3. Add new § 367.40 and § 367.50 to subpart B to read as follows:

          § 367.40
          Fees under the Unified Carrier Registration Plan and Agreement for registration year 2018.

            Fees Under the Unified Carrier Registration Plan and Agreement for Registration Year 2018

              Bracket
              Number of commercial motor vehicles owned or operated by exempt or non-exempt motor carrier, motor private carrier, or freight forwarder
              Fee per entity for exempt or non-
                exempt motor
                carrier, motor
                private carrier, or freight
                forwarder

              Fee per entity for broker or leasing
                company

              B1
              0-2
              $69
              $69

              B2
              3-5
              206

              B3
              6-20
              410

              B4
              21-100
              1,431

              B5
              101-1,000
              6,820

              B6
              1,001 and above
              66,597

          § 367.50

          Fees under the Unified Carrier Registration Plan and Agreement for registration years beginning in 2019.

            Fees Under the Unified Carrier Registration Plan and Agreement for Registration Year 2019 and Each Subsequent Registration Year Thereafter

              Bracket
              Number of commercial motor vehicles owned or operated by exempt or non-exempt motor carrier, motor private carrier, or freight forwarder
              Fee per entity for exempt or non-
                exempt motor
                carrier, motor
                private carrier, or freight
                forwarder

              Fee per entity for broker or leasing
                company

              B1
              0-2
              $73
              $73

              B2
              3-5
              217

              B3
              6-20
              431

              B4
              21-100
              1,503

              B5
              101-1,000
              7,165

              B6
              1,001 and above
              69,971

          Issued under authority delegated in 49 CFR 1.87 on: September 14, 2017.
          Daphne Y. Jefferson,
          Deputy Administrator.

      [FR Doc. 2017-20079 Filed 9-20-17; 8:45 am]
      BILLING CODE 4910-EX-P


        DEPARTMENT OF HOMELAND SECURITY
        Coast Guard
        33 CFR Part 165
        [Docket Number USCG-2014-0376]
        RIN 1625-AA00
        Safety Zone; James River; Newport News, VA

          AGENCY:
          Coast Guard, DHS.

          ACTION:
          Notice of proposed rulemaking.

          SUMMARY:
          The Coast Guard proposes to establish a safety zone on the navigable waters of the James River in the vicinity of the James River Reserve Fleet and Hog Island, Virginia for multiple periods of one hour in length each on all weekdays from August 6 until August 15, 2014. This safety zone is intended to restrict vessel movement in the specified area during the United States Navy's demonstrations involving unmanned and remote-operated crafts. This action is necessary to provide for the safety of life and property on the surrounding navigable waters during the events due to the high speed maneuvering of the vessels and the experimental nature of the control technology.

          DATES:
          Comments and related material must be received by the Coast Guard on or before July 23, 2014.

          ADDRESSES:
          Submit comments online at http://www.regulations.gov (follow Web site directions) or by fax to 202-493-2251.

          FOR FURTHER INFORMATION CONTACT:

          If you have questions on this rule, call or email LCDR Gregory Knoll, Waterways Management Division Chief, Sector Hampton Roads, Coast Guard; telephone (757) 668-5580, email HamptonRoadsWaterway@uscg.mil. If you have questions on viewing or submitting material to the docket, call Cheryl Collins, Program Manager, Docket Operations, telephone (202) 366-9826.

        SUPPLEMENTARY INFORMATION:

        Table of Acronyms

          DHS Department of Homeland Security
          FR Federal Register
          NPRM Notice of Proposed Rulemaking

        A. Public Participation and Comments

        Information and comments that you send us may influence our final action on these proposals. Mark comments with docket number USCG-2014-0376 and provide a reason for each comment. If you include personal contact information, it will help us if we need to follow up on your comments, but it may be searchable by others online (see the Privacy Act notice at 73 FR 3316, Jan. 17, 2008).

        Documents mentioned in this notice, and all public comments, can be viewed at http://www.regulations.gov by following the Web site's directions.

        We are not planning to hold a public meeting, but if you think one would be helpful, please contact us (see FOR FURTHER INFORMATION CONTACT) as soon as possible.
        B. Regulatory History and Information
        The United States Navy is conducting a demonstration in the James River in the vicinity of the James River Reserve Fleet and Hog Island. This is not expected to be an annually recurring event, although the Navy and other entities of the federal government have conducted other experiments and exercises requiring safety zones in the past.
        C. Basis and Purpose
        The legal basis of this rule is found in 33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Public Law 107-295, 116 Stat. 2064; and Department of Homeland Security Delegation No. 0170.1. The purpose of this rule is to promote public and maritime safety during the Navy's demonstrations involving unmanned and remote-operated crafts.
        D. Discussion of the Proposed Rule
        The Captain of the Port of Hampton Roads proposes to establish a safety zone within the waters of the James River, from James River Channel Lighted Buoy 11 (LLNR 11595), upstream to James River Channel Lighted Buoy 44 (LLNR 11987), bank to bank, in the vicinity of the James River Reserve Fleet and Hog Island, Virginia. This proposed safety zone will be enforced from August 6, 2014 through August 8, 2014 and August 11, 2014 through August 15, 2014 during the hours of 9:30 a.m. to 10:30 a.m., 11:30 a.m. to 12:30 p.m. and 2 p.m. to 3 p.m. each day. Access to the safety zone will be restricted during the specified dates and times.
        Except for vessels authorized by the Captain of the Port or his designated representative, no person or vessel may enter or remain in the safety zone during the time frame listed. The Captain of the Port will give notice of the enforcement of the safety zone by all appropriate means to provide the widest dissemination of notice among the affected segments of the public. This will include publication in the Local Notice to Mariners and Marine Information Broadcasts.
        E. Regulatory Analyses
        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.
        1. Regulatory Planning and Review
        This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders. The primary impact of these regulations will be on vessels wishing to transit the affected waterways during the safety zone on the James River in the vicinity of Newport News, VA. Although these regulations prevent traffic from transiting a portion of the James River during these experiments, that restriction is limited in duration, affects only a limited area, and will be well publicized to allow mariners to make alternative plans for transiting the affected area.
        2. Impact on Small Entities
        The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. 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 will 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 in specified waters of the James River during the outlined timeframe.
        This safety zone will not have a significant economic impact on a substantial number of small entities for the following reasons: (i) The safety zone will only be in place for a limited duration, and (ii) before the enforcement period, maritime advisories will be issued allowing mariners to adjust their plans accordingly.
        3. Assistance for Small Entities

        Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above.
        Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
        4. Collection of Information
        This proposed rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
        5. Federalism
        A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and determined that this rule does not have implications for federalism.
        6. Protest Activities

        The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INTFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.
        7. Unfunded Mandates Reform Act

        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 will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
        8. Taking of Private Property
        This proposed rule will 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.
        9. Civil Justice Reform
        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.
        10. Protection of Children
        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 does not create an environmental risk to health or risk to safety that may disproportionately affect children.
        11. Indian Tribal Governments
        This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does 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.
        12. Energy Effects
        This proposed rule is not a “significant energy action” under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.
        13. Technical Standards
        This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
        14. Environment

        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 determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves the establishment of a safety zone. This proposed rule is categorically excluded from further review under paragraph 34-g of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

          List of Subjects in 33 CFR Part 165
          Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

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

          PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

        1. The authority citation for part 165 continues to read as follows:

          Authority:
          33 U.S.C. 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1.

        2. Add § 165.T05-0376 to read as follows:

          165.T05-0376
          Safety Zone, James River; Virginia Beach, VA.
          (a) Definitions. For the purposes of this section, Captain of the Port means the Commander, Sector Hampton Roads. Representative means any Coast Guard commissioned, warrant or petty officer who has been authorized to act on the behalf of the Captain of the Port.
          (b) Location. The following area is a safety zone: Specified waters of the Captain of the Port Sector Hampton Roads zone, as defined in 33 CFR 3.25-10: The James River between James River Channel Lighted Buoy 11 and James River Channel Lighted Buoy 44 from bank to bank.
          (c) Regulations.(1) In accordance with the general regulations in § 165.23 of this part, entry into this zone is prohibited unless authorized by the Captain of the Port, Hampton Roads or his designated representatives.
          (2) The operator of any vessel in the immediate vicinity of this safety zone shall:
          (i) Contact on scene contracting vessels via VHF channel 13 and 16 for passage instructions.
          (ii) If on scene proceed as directed by any commissioned, warrant or petty officer on shore or on board a vessel that is displaying a U.S. Coast Guard Ensign.
          (3) The Captain of the Port, Hampton Roads can be reached through the Sector Duty Officer at Sector Hampton Roads in Portsmouth, Virginia at telephone number (757) 668-5555.
          (4) The Coast Guard Representatives enforcing the safety zone can be contacted on VHF-FM marine band radio channel 13 (165.65 Mhz) and channel 16 (156.8 Mhz).
          (d) Enforcement period. This section will be enforced from 9:30 a.m. to 10:30 a.m., 11:30 a.m. to 12:30 p.m. and 2 p.m. to 3 p.m. each day from August 6, 2014 through August 8, 2014 and from August 11, 2014 through August 15, 2014.

          Dated: June 25, 2014.
          Christopher S. Keane,
          Captain, U.S. Coast Guard, Captain of the Port Hampton Roads.

      [FR Doc. 2014-15933 Filed 7-7-14; 8:45 am]
      BILLING CODE 9110-04-P