        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R03-OAR-2011-0289, FRL-9305-4]
        Approval and Promulgation of Air Quality Implementation Plans; State of Delaware; Regional Haze State Implementation Plan

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          EPA is proposing to approve a revision to the Delaware State Implementation Plan (SIP) submitted by the State of Delaware through the Delaware Department of Natural Resources and Environmental Control (DNREC) on September 25, 2008 that addresses regional haze for the first implementation period. This revision addresses the requirements of the Clean Air Act (CAA) and EPA's rules that require states to prevent any future, and remedy any existing, anthropogenic impairment of visibility in mandatory Class I areas caused by emissions of air pollutants from numerous sources located over a wide geographic area (also referred to as the “regional haze program”). States are required to assure reasonable progress toward the national goal of achieving natural visibility conditions in Class I areas. EPA is proposing to determine that the Regional Haze plan submitted by Delaware satisfies the requirements of the CAA. EPA is taking this action pursuant to those provisions of the CAA. EPA is also proposing to approve this revision as meeting the requirements of 110(a)(2)(D)(i)(II) and 110(a)(2)(J), relating to visibility protection for the 1997 8-Hour Ozone National Ambient Air Quality Standard (NAAQS) and the 1997 and 2006 fine particulate matter (PM2.5) NAAQS.

          DATES:
          Comments must be received on or before June 13, 2011.

          ADDRESSES:
          Submit your comments, identified by Docket ID Number EPA-R03-OAR-2011-0289 by one of the following methods:
          A. http://www.regulations.gov. Follow the on-line instructions for submitting comments.
          B. E-mail: fernandez.cristina@epa.gov.

          C. Mail: EPA-R03-OAR-2011-0289, Cristina Fernandez, Associate Director, Office of Air Program Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.
          D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

            Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2011-0289. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

            Docket: All documents in the electronic docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Delaware Department of Natural Resources and Environmental Control, 89 Kings Highway, P.O. Box 1401, Dover, Delaware 19903.

          FOR FURTHER INFORMATION CONTACT:
          Jacqueline Lewis, (215) 814-2037, or by e-mail at mailto:lewis.jacqueline@epa.gov.

        SUPPLEMENTARY INFORMATION:
        On September 25, 2008, the Delaware Department of Natural Resources and Environmental Control submitted a revision to its SIP to address Regional Haze for the first implementation period.
        Table of Contents

          I. What is the background for EPA's proposed action?
          A. The Regional Haze Problem
          B. Background Information
          C. Roles of Agencies in Addressing Regional Haze
          D. Interstate Transport for Visibility
          II. What are the requirements for the regional haze SIPs?
          A. The CAA and the Regional Haze Rule (RHR)
          B. Determination of Baseline, Natural, and Current Visibility Conditions
          C. Determination of Reasonable Progress Goals (RPGs)
          D. Best Available Retrofit Technology (BART)
          E. Long-Term Strategy (LTS)
          F. Coordinating Regional Haze and Reasonably Attributable Visibility Impairment (RAVI) LTS
          G. Monitoring Strategy and Other Implementation Plan Requirements
          H. Consultation With States and Federal Land Managers (FLMs)
          III. What is EPA's analysis of Delaware's regional haze submittal?
          A. Affected Class I Areas
          B. Long-Term Strategy/Strategies
          1. Emissions Inventory for 2018 With Federal and State Control Requirements
          2. Modeling To Support the LTS and Determine Visibility Improvement for Uniform Rate of Progress
          3. Relative Contributions of Pollutants to Visibility Impairment
          4. Reasonable Progress Goals
          5. BART
          C. Consultation With States and Federal Land Managers
          D. Periodic SIP Revisions and Five-Year Progress Reports
          IV. What action is EPA proposing to take?
          V. Statutory and Executive Order Reviews

        Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA.
        I. What is the background for EPA's proposed action?
        A. The Regional Haze Problem

        Regional haze is visibility impairment that is produced by a multitude of sources and activities which are located across a broad geographic area and emit fine particles (PM2.5) (e.g., sulfates, nitrates, organic carbon, elemental carbon, and soil dust) and their precursors (e.g., sulfur dioxide (SO2), nitrogen oxides (NOX), and in some cases, ammonia (NH3) and volatile organic compounds (VOC)). Fine particle precursors react in the atmosphere to form fine particulate matter, which impairs visibility by scattering and absorbing light. Visibility impairment reduces the clarity, color, and visible distance that one can see. PM2.5 can also cause serious health effects and mortality in humans and contributes to environmental effects such as acid deposition and eutrophication.
        Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national park and wilderness areas. The average visual range 1
           in many Class I areas (i.e., national parks and memorial parks, wilderness areas, and international parks meeting certain size criteria) in the western United States is 100-150 kilometers or about one-half to two-thirds of the visual range that would exist without anthropogenic air pollution. In most of the eastern Class I areas of the United States, the average visual range is less than 30 kilometers or about one-fifth of the visual range that would exist under estimated natural conditions (64 FR 35714, July 1, 1999).

            1 Visual range is the greatest distance, in kilometers or miles, at which a dark object can be viewed against the sky.

        B. Background Information
        In section 169A of the 1977 Amendments to the CAA, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in mandatory Class I Federal areas 2

           which impairment results from manmade air pollution.” On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources, i.e., “reasonably attributable visibility impairment” (45 FR 80084). These regulations represented the first phase in addressing visibility impairment. EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling, and scientific knowledge about the relationships between pollutants and visibility impairment were improved.

            2 Areas designated as mandatory Class I Federal areas consist of national parks exceeding 6000 acres, wilderness areas and national memorial parks exceeding 5000 acres, and all international parks that were in existence on August 7, 1977. 42 U.S.C. 7472(a). In accordance with section 169A of the CAA, EPA, in consultation with the Department of Interior, promulgated a list of 156 areas where visibility is identified as an important value (44 FR 69122, November 30, 1979). The extent of a mandatory Class I area includes subsequent changes in boundaries, such as park expansions. 42 U.S.C. 7472(a). Although states and tribes may designate as Class I additional areas which they consider to have visibility as an important value, the requirements of the visibility program set forth in section 169A of the CAA apply only to “mandatory Class I Federal areas.” Each mandatory Class I Federal area is the responsibility of a “Federal Land Manager.” 42 U.S.C. 7602(i). When we use the term “Class I area” in this action, we mean a “mandatory Class I Federal area.”

        Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35714), the Regional Haze Rule. The Regional Haze Rule revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in section II of this notice. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia, and the Virgin Islands.3
           Section 51.308(b) requires states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.

            3 Albuquerque/Bernalillo County in New Mexico must also submit a regional haze SIP to completely satisfy the requirements of section 110(a)(2)(D) of the CAA for the entire State of New Mexico under the New Mexico Air Quality Control Act (section 74-2-4).

        C. Roles of Agencies in Addressing Regional Haze
        Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments, and various federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.
        Because the pollutants that lead to regional haze can originate from sources located across broad geographic areas, EPA has encouraged the states and tribes across the United States to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were developed to address regional haze and related issues. The RPOs first evaluated technical information to better understand how their states and tribes impact Class I areas across the country, and then pursued the development of regional strategies to reduce emissions of particulate matter (PM) and other pollutants leading to regional haze.
        The Mid-Atlantic Region Air Management Association (MARAMA), the Northeast States for Coordination Air Use Management (NESCAUM), and the Ozone Transport Commission (OTC) established the Mid-Atlantic/Northeast Visibility Union (MANE-VU) regional planning organization. MANE-VU is a collaborative effort of state governments, tribal governments, and various federal agencies established to initiate and coordinate activities associated with the management of regional haze, visibility, and other air quality issues in the Mid-Atlantic and Northeast corridor of the United States. Member States and tribal governments include: Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Penobscot Indian Nation, Rhode Island, St. Regis Mohawk Tribe, and Vermont.
        D. Interstate Transport for Visibility
        Sections 110(a)(1) and 110(a)(2)(D)(i)(II) of the CAA require that within three years of promulgation of a National Ambient Air Quality Standard (NAAQS), a State must ensure that its SIP, among other requirements, “contains adequate provisions prohibiting any source or other types of emission activity within the State from emitting any air pollutant in amounts which will interfere with measures required to be included in the applicable implementation plan for any other State to protect visibility.” Similarly, section 110(a)(2)(J) requires that such SIP “meet the applicable requirements of part C of (Subchapter I) (relating to visibility protection).”

        EPA's 2006 Guidance, entitled “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards,” recognized the possibility that a state could potentially meet the visibility portions of section 110(a)(2)(D)(i)(II) through its submission of a Regional Haze SIP, as required by sections 169A and 169B of the CAA. EPA's 2009 guidance, entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards (NAAQS),” recommended that a state could meet such visibility requirements through its Regional Haze SIP. EPA's rationale supporting this recommendation was that the development of the regional haze SIPs was intended to occur in a collaborative environment among the states, and that through this process states would coordinate on emissions controls to protect visibility on an interstate basis. The common understanding was that, as a result of this collaborative environment, each state would take action to achieve the emissions reductions relied upon by other states in their reasonable progress demonstrations under the Regional Haze Rule. This interpretation is consistent with the requirement in the Regional Haze Rule that a state participating in a regional planning process must include “all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process.” 40 CFR 51.308(d)(3)(ii).
        The regional haze program, as reflected in the Regional Haze Rule, recognizes the importance of addressing the long-range transport of pollutants for visibility and encourages states to work together to develop plans to address haze. The regulations explicitly require each state to address its “share” of the emission reductions needed to meet the reasonable progress goals for neighboring Class I areas. States working together through a regional planning process, are required to address an agreed upon share of their contribution to visibility impairment in the Class I areas of their neighbors. 40 CFR 51.308(d)(3)(ii). Given these requirements, appropriate regional haze SIPs will contain measures that will achieve these emissions reductions and will meet the applicable visibility related requirements of section 110(a)(2).

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

        Delaware submitted a Regional Haze SIP on September 25, 2008, to address the requirements of the Regional Haze Rule. On December 13, 2007, Delaware submitted its original 1997 Ozone and PM2.5 NAAQS infrastructure SIP. On September 16, 2009, Delaware submitted a 1997 Ozone and PM2.5 NAAQS infrastructure submittal amendment and an infrastructure SIP for the 2006 PM2.5 NAAQS. On the September 16, 2009 submittal, Delaware indicated that its Regional Haze SIP would meet the requirements of the CAA, section 110(a)(2)(D)(i)(II), regarding visibility for the 1997 8-Hour Ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS. Delaware also indicated it will meet the visibility requirements of 110(a)(2)(J), and specifically references the Regional Haze SIP submitted on September. EPA has reviewed Delaware's Regional Haze SIP and, as explained in section IV of this action, proposes to find that Delaware's Regional Haze submittal meets the portions of the requirements of the CAA sections 110(a)(2) relating to visibility protection for the 1997 8-Hour Ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS.
        II. What are the requirements for the regional haze SIPs?
        A. The CAA and the Regional Haze Rule (RHR)
        Regional haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install BART controls for the purpose of eliminating or reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.
        B. Determination of Baseline, Natural, and Current Visibility Conditions
        The RHR establishes the deciview as the principal metric or unit for expressing visibility. This visibility metric expresses uniform changes in haziness in terms of common increments across the entire range of visibility conditions, from pristine to extremely hazy conditions. Visibility expressed in deciviews is determined by using air quality measurements to estimate light extinction and then transforming the value of light extinction using a logarithm function. The deciview is a more useful measure for tracking progress in improving visibility than light extinction itself because each deciview change is an equal incremental change in visibility perceived by the human eye. Most people can detect a change in visibility at one deciview.4

            4 The preamble to the RHR provides additional details about the deciview (64 FR 35714, 35725, July 1, 1999).

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

        To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437), and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP submittal and periodically review progress every five years midway through each 10-year implementation period. To do this, the RHR requires states to determine the degree of impairment (in deciviews) for the average of the 20 percent least impaired (“best”) and 20 percent most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, states must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural and current visibility conditions in documents titled, EPA's Guidance for Estimating Natural Visibility Conditions Under the Regional Haze Rule, September 2003, (EPA-454/B-03-005 located at http://www.epa.gov/ttncaaa1/t1/memoranda/rh_envcurhr_gd.pdf), (hereinafter referred to as “EPA's 2003 Natural Visibility Guidance”) and Guidance for Tracking Progress Under the Regional Haze Rule, September 2003, (EPA-454/B-03-004 located at http://www.epa.gov/ttncaaa1/t1/memoranda/rh_tpurhr_gd.pdf), (hereinafter referred to as “EPA's 2003 Tracking Progress Guidance”).
        For the first regional haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20 percent least impaired days and 20 percent most impaired days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states are required to calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then-current conditions will indicate the amount of progress made. In general, the 2000-2004 baseline period is considered the time from which improvement in visibility is measured.
        C. Determination of Reasonable Progress Goals (RPGs)
        The vehicle for ensuring continuing progress towards achieving the natural visibility goal is the submission of a series of regional haze SIPs from the states that establish two RPGs (i.e., two distinct goals, one for the “best” and one for the “worst” days) for every Class I area for each (approximately) 10-year implementation period. The RHR does not mandate specific milestones or rates of progress, but instead calls for states to establish goals that provide for “reasonable progress” toward achieving natural (i.e., “background”) visibility conditions. In setting RPGs, states must provide for an improvement in visibility for the most impaired days over the (approximately) 10-year period of the SIP, and ensure no degradation in visibility for the least impaired days over the same period.

        States have significant discretion in establishing RPGs, but are required to consider the following factors established in section 169A of the CAA and in EPA's RHR at 40 CFR 51.308(d)(1)(i)(A): (1) The costs of compliance; (2) the time necessary for compliance; (3) the energy and non-air quality environmental impacts of compliance; and (4) the remaining useful life of any potentially affected sources. States must demonstrate in their SIPs how these factors are considered when selecting the RPGs for the best and worst days for each applicable Class I area. States have considerable flexibility in how they take these factors into consideration, as noted in EPA's Guidance for Setting Reasonable Progress Goals Under the Regional Haze Program, (“EPA's Reasonable Progress Guidance”), July 1, 2007, memorandum from William L. Wehrum, Acting Assistant Administrator for Air and Radiation, to EPA Regional Administrators, EPA Regions 1-10 (pp. 4-2, 5-1). In setting the RPGs, states must also consider the rate of progress needed to reach natural visibility conditions by 2064 (referred to as the “uniform rate of progress” or the “glidepath”) and the emission reduction measures needed to achieve that rate of progress over the 10-year period of the SIP. Uniform progress towards achievement of natural conditions by the year 2064 represents a rate of progress which states are to use for analytical comparison to the amount of progress they expect to achieve. In setting RPGs, each state with one or more Class I areas (“Class I state”) must also consult with potentially “contributing states,” i.e., other nearby states with emission sources that may be affecting visibility impairment at the Class I state's areas. 40 CFR 51.308(d)(1)(iv).
        D. Best Available Retrofit Technology (BART)
        Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources 5
           built between 1962 and 1977 procure, install, and operate the “Best Available Retrofit Technology” as determined by the state. Under the RHR, states are directed to conduct BART determinations for such “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART.

            5 The set of “major stationary sources” potentially subject to BART is listed in CAA section 169A(g)(7).

        On July 6, 2005, EPA published the Guidelines for BART Determinations Under the Regional Haze Rule at Appendix Y to 40 CFR part 51 (hereinafter referred to as the “BART Guidelines”) to assist states in determining which of their sources should be subject to the BART requirements and in determining appropriate emission limits for each applicable source. In making a BART determination for a fossil fuel-fired electric generating plant with a total generating capacity in excess of 750 megawatts (MW), a state must use the approach set forth in the BART Guidelines. A state is encouraged, but not required, to follow the BART Guidelines in making BART determinations for other types of sources.

        States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO2, NOX, and PM. EPA has stated that states should use their best judgment in determining whether VOC or NH3 compounds impair visibility in Class I areas.
        Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Any exemption threshold set by the state should not be higher than 0.5 deciview.
        In their SIPs, states must identify potential BART sources, described as “BART eligible sources” in the RHR, and document their BART control determination analyses. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance, (2) the energy and non-air quality environmental impacts of compliance, (3) any existing pollution control technology in use at the source, (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. States are free to determine the weight and significance to be assigned to each factor.
        A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date of EPA approval of the regional haze SIP. CAA section 169(g)(4)). 40 CFR 51.308(e)(1)(iv). In addition to what is required by the RHR, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source.

        As noted above, the RHR allows states to implement an alternative program in lieu of BART so long as the alternative program can be demonstrated to achieve greater reasonable progress toward the national visibility goal than would BART. Under regulations issued in 2005 revising the regional haze program, EPA made just such a demonstration for the Clean Air Interstate Rule (CAIR) (70 FR 39104, July 6, 2005). EPA's regulations provide that states participating in the CAIR cap and trade program under 40 CFR part 96 pursuant to an EPA-approved CAIR SIP or which remain subject to the CAIR Federal Implementation Plan (FIP) in 40 CFR part 97, do not require affected BART eligible electric generating units (EGUs) to install, operate, and maintain BART for emissions of SO2 and NOX (40 CFR 51.308(e)(4)). Since CAIR is not applicable to emissions of PM, states were still required to conduct a BART analysis for PM emissions from EGUs subject to BART for that pollutant.
        E. Long-Term Strategy (LTS)

        Consistent with the requirement in section 169A(b) of the CAA that states include in their regional haze SIP a 10 to 15 year strategy for making reasonable progress, section 51.308(d)(3) of the RHR requires that states include a LTS in their regional haze SIPs. The LTS is the compilation of all control measures a state will use during the implementation period of the specific SIP submittal to meet applicable RPGs. The LTS must include “enforceable emissions limitations, compliance schedules, and other measures as necessary to achieve the reasonable progress goals” for all Class I areas within, or affected by emissions from, the state. 40 CFR 51.308(d)(3).
        When a state's emissions are reasonably anticipated to cause or contribute to visibility impairment in a Class I area located in another state, the RHR requires the impacted state to coordinate with the contributing states in order to develop coordinated emissions management strategies. 40 CFR 51.308(d)(3)(i). In such cases, the contributing state must demonstrate that it has included, in its SIP, all measures necessary to obtain its share of the emission reductions needed to meet the RPGs for the Class I area. The RPOs have provided forums for significant interstate consultation, but additional consultations between states may be required to sufficiently address interstate visibility issues. This is especially true where two states belong to different RPOs.
        States should consider all types of anthropogenic sources of visibility impairment in developing their LTS, including stationary, minor, mobile, and area sources. At a minimum, states must describe how each of the following seven factors listed below are taken into account in developing their LTS: (1) Emission reductions due to ongoing air pollution control programs, including measures to address Reasonably Attributable Visibility Impairment; (2) measures to mitigate the impacts of construction activities; (3) emissions limitations and schedules for compliance to achieve the RPG; (4) source retirement and replacement schedules; (5) smoke management techniques for agricultural and forestry management purposes including plans as currently exist within the state for these purposes; (6) enforceability of emissions limitations and control measures; and (7) the anticipated net effect on visibility due to projected changes in point, area, and mobile source emissions over the period addressed by the LTS. 40 CFR 51.308(d)(3)(v).
        F. Coordinating Regional Haze and Reasonably Attributable Visibility Impairment (RAVI) LTS
        As part of the RHR, EPA revised 40 CFR 51.306(c) regarding the LTS for RAVI to require that the RAVI plan must provide for a periodic review and SIP revision not less frequently than every three years until the date of submission of the state's first plan addressing regional haze visibility impairment, which was due December 17, 2007, in accordance with 40 CFR 51.308(b) and (c). On or before this date, the state must revise its plan to provide for review and revision of a coordinated LTS for addressing RAVI and regional haze, and the state must submit the first such coordinated LTS with its first regional haze SIP. Future coordinated LTSs, and periodic progress reports evaluating progress towards RPGs, must be submitted consistent with the schedule for SIP submission and periodic progress reports set forth in 40 CFR 51.308(f) and 51.308(g), respectively. The periodic review of a state's LTS must report on both regional haze and RAVI impairment and must be submitted to EPA as a SIP revision.
        G. Monitoring Strategy and Other Implementation Plan Requirements
        Section 51.308(d)(4) of the RHR includes the requirement for a monitoring strategy for measuring, characterizing, and reporting of regional haze visibility impairment that is representative of all mandatory Class I Federal areas within the state. The strategy must be coordinated with the monitoring strategy required in section 51.305 for RAVI. Compliance with this requirement may be met through “participation” in the IMPROVE network, i.e., review and use of monitoring data from the network. The monitoring strategy is due with the first regional haze SIP and it must be reviewed every five years. The monitoring strategy must also provide for additional monitoring sites if the IMPROVE network is not sufficient to determine whether RPGs will be met.
        The SIP must also provide for the following:
        • Procedures for using monitoring data and other information in a state with mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas both within and outside the state;
        • Procedures for using monitoring data and other information in a state with no mandatory Class I areas to determine the contribution of emissions from within the state to regional haze visibility impairment at Class I areas in other states;
        • Reporting of all visibility monitoring data to the Administrator at least annually for each Class I area in the state, and where possible, in electronic format;
        • Developing a statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any Class I area. The inventory must include emissions for a baseline year, emissions for the most recent year for which data are available, and estimates of future projected emissions. A state must also make a commitment to update the inventory periodically; and
        • Other elements, including reporting, recordkeeping, and other measures necessary to assess and report on visibility.
        The RHR requires control strategies to cover an initial implementation period extending to the year 2018, with a comprehensive reassessment and revision of those strategies, as appropriate, every 10 years thereafter. Periodic SIP revisions must meet the core requirements of section 51.308(d) with the exception of BART. The requirement to evaluate sources for BART applies only to the first regional haze SIP. Facilities subject to BART must continue to comply with the BART provisions of section 51.308(e), as noted above. Periodic SIP revisions will assure that the statutory requirement of reasonable progress will continue to be met.
        H. Consultation With States and Federal Land Managers (FLMs)
        The RHR requires that states consult with FLMs before adopting and submitting their SIPs. 40 CFR 51.308(i). States must provide FLMs an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This consultation must include the opportunity for the FLMs to discuss their assessment of impairment of visibility in any Class I area and to offer recommendations on the development of the RPGs and on the development and implementation of strategies to address visibility impairment. Further, a state must include in its SIP a description of how it addressed any comments provided by the FLMs. Finally, a SIP must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas.
        III. What is EPA's analysis of Delaware's regional haze submittal?
        On September 25, 2008, the Delaware DNREC submitted revisions to the Delaware SIP to address regional haze as required by EPA's RHR.
        A. Affected Class I Areas

        Delaware has no Class I areas within its borders, but has been identified as influencing the visibility impairment of the Brigantine National Wildlife Refuge Class I area, located in the State of New Jersey. Delaware is responsible for developing a regional haze SIP that addresses this Class I area, that describes its long-term emission strategy, its role in the consultation processes, and how the SIP meets the other requirements in EPA's regional haze regulations. However, since Delaware has no Class I areas within its borders, Delaware is not required to address the following Regional Haze SIP elements: (a) Calculation of baseline and natural visibility conditions, (b) establishment of reasonable progress goals, (c) monitoring requirements, and (d) RAVI requirements.
        B. Long-Term Strategy/Strategies
        As described in Section II.E of this action, the LTS is a compilation of state-specific control measures relied on by the state to obtain its share of emission reductions to support the RPGs established by New Jersey, the Class I area state. Delaware's LTS for the first implementation period addresses the emissions reductions from federal, State, and local controls that take effect in the State from the baseline period starting in 2002 until 2018. Delaware participated in the MANE-VU regional strategy development process. As a participant, Delaware supported a regional approach towards deciding which control measures to pursue for regional haze, which was based on technical analyses documented in the following reports: (a) Contributions to Regional Haze in the Northeast and Mid-Atlantic United States; (b) Assessment of Reasonable Progress for Regional Haze in MANE-VU Class I Areas; (c) Five-Factor Analysis of BART-Eligible Sources: Survey of Options for Conducting BART Determinations; and (d) Assessment of Control Technology Options for BART-Eligible Sources: Steam Electric Boilers, Industrial Boilers, Cement Plants and Paper, and Pulp Facilities.
        The LTS was developed by Delaware, in coordination with MANE-VU, identifying the emissions units within Delaware that likely have the largest impacts currently on visibility at the Brigantine National Wildlife Refuge Class I area, estimating emissions reductions for 2018, based on all controls required under federal and State regulations for the 2002-2018 period (including BART), and comparing projected visibility improvement with the uniform rate of progress for the Brigantine National Wildlife Refuge Class I area.
        Delaware's LTS includes measures needed to achieve its share of emissions reductions agreed upon through the consultation process with New Jersey and includes enforceable emissions limitations, compliance schedules, and other measures necessary to achieve the reasonable progress goals established by New Jersey for the Brigantine National Wildlife Refuge Class I area.
        1. Emissions Inventory for 2018 With Federal and State Control Requirements

        The emissions inventory used in the regional haze technical analyses was developed by MARAMA for MANE-VU with assistance from Delaware. The 2018 emissions inventory was developed by projecting 2002 emissions, and assuming emissions growth due to projected increases in economic activity as well as applying reductions expected from federal and State regulations affecting the emissions of VOC and the visibility-impairing pollutants NOX, PM10, PM2.5, and SO2. The BART guidelines direct States to exercise judgment in deciding whether VOC and NH3 impair visibility in their Class I area(s). As discussed further in Section III.B.3, below. MANE-VU demonstrated that anthropogenic emissions of sulfates are the major contributor to PM2.5 mass and visibility impairment at Class I areas in the Northeast and Mid-Atlantic region. It was also determined that the total ammonia emissions in the MANE-VU region are extremely small. In addition, since VOC emissions are aggressively controlled through the Delaware SIP, the pollutants Delaware considered under BART are NOX, PM10, PM2.5, and SO2.
        MANE-VU developed emissions inventories for four inventory source classifications: (1) Stationary point sources, (2) area sources, (3) off-road mobile sources, and (4) on-road mobile sources. The New York Department of Environmental Conservation also developed an inventory of biogenic emissions for the entire MANE-VU region. Stationary point sources are those sources that emit greater than a specified tonnage per year, depending on the pollutant, with data provided at the facility level. Stationary area sources are those sources whose individual emissions are relatively small, but due to the large number of these sources, the collective emissions from the source category could be significant. Off-road mobile sources are equipment that can move but do not use the roadways. On-road mobile source emissions are automobiles, trucks, and motorcycles that use the roadway system. The emissions from these sources are estimated by vehicle type and road type. Biogenic sources are natural sources like trees, crops, grasses, and natural decay of plants. Stationary point sources emission data is tracked at the facility level. For all other source types emissions are summed on the county level.
        There are many federal and State control programs being implemented that MANE-VU and Delaware anticipate will reduce emissions between the baseline period and 2018. Emission reductions from these control programs were projected to achieve substantial visibility improvement by 2018 in the Brigantine National Wildlife Refuge. To assess emissions reductions from ongoing air pollution control programs, BART, and reasonable progress goals MANE-VU developed 2018 emissions projections called Best and Final. The emissions inventory provided by the State of Delaware for the Best and Final 2018 projections is based on adopted and enforceable requirements.

        The ongoing air pollution control programs relied upon by Delaware for the Best and Final projections include Delaware's Regulation 1144—Control of Stationary Generator Emissions; Regulation 1146—Electric Generating Unit Multi-Pollutant Regulation; Regulation 1148—Control of Stationary Combustion Turbine Electric Generating Unit Emissions; Regulation 1142, Section 1—Control of NOX Emissions from Industrial Boilers; Regulation 1142, Section 2—Control of NOX Emissions from Industrial Boilers and Process Heaters at Petroleum Refineries; Regulation 1124, Section 46—Crude Oil Lightering Operations; a Valero Refinery consent decree; the NOX SIP Call; NOX and/or VOC reductions from the control rules in the 1-hour and 8-hour ozone SIPs for Delaware; NOX OTC 2001 Model Rule for Industrial, Commercial, and Institutional (ICI) Boilers; Federal 2007 heavy duty diesel engine standards for non-road trucks and buses; Federal Tier 2 tailpipe controls for the on-road vehicles; Federal large spark ignition and recreational vehicle controls; and EPA's non-road diesel rules. The estimated emissions reductions resulting from Delaware's EGU Regulations 1144, 1146, and 1148 are 75% for SO2 and 57% for NOX from 2002 base year.
        Delaware also relied on emission reductions from various federal Maximum Achievable Control Technology (MACT) rules in the development of the 2018 emission inventory projections. These MACT rules include the combustion turbine and reciprocating internal combustion engines MACT, the industrial boiler and process heaters MACT and the 2-, 4-, 7-, and 10-year MACT standards.

        On July 30, 2007, the U.S. District Court of Appeals mandated the vacatur and remand of the Industrial Boiler MACT Rule.6

           This MACT was vacated since it was directly affected by the vacatur and remand of the Commercial and Industrial Solid Waste Incinerator (CISWI) Definition Rule. EPA proposed a new Industrial Boiler MACT rule to address the vacatur on June 4, 2010, (75 FR 32006) and issued a final rule on March 21, 2011 (76 FR 15608). Delaware's modeling included emission reductions from the vacated Industrial Boiler MACT rule. Delaware did not redo its modeling analysis when the rule was re-issued. However, the expected reductions in SO2 and PM are small relative to the Delaware inventory. Therefore, EPA finds the expected reductions of the new rule acceptable since the final rule requires compliance by 2014, it provides Delaware time to assure the required controls are in place prior to the end of the first implementation period in 2018. In addition, the RHR requires that any resulting differences between emissions projections and actual emissions reductions that may occur will be addressed during the five-year review prior to the next 2018 regional haze SIP.

            6 NRDC v. EPA, 489 F.3d 1250.

        Tables 1 and 2 are summaries of the 2002 baseline and 2018 estimated emissions inventories for Delaware. The 2018 estimated emissions include emission growth as well as emission reductions due to ongoing emission control strategies, BART, and reasonable progress goals.

          Table 1—2002 Emission Inventory Summary for Delaware in Tons per Year

            VOC
            NOX

            PM2.5

            PM10

            NH3

            SO2

            Point
            4,755
            16,345
            3,666
            4,217
            196
            73,744

            Area
            15,519
            2,608
            3,204
            13,039
            13,279
            1,588

            On-Road Mobile
            10,564
            21,341
            415
            581
            903
            584

            Off-Road Mobile
            8,010
            16,227
            926
            1,021
            5
            3,983

            Biogenic
            46,343
            990
            0
            0
            0
            0

            Total
            85,191
            57,511
            8,211
            18,858
            14,383
            79,899

          Table 2—2018 Emission Summary for Delaware “Best and Final” in Tons per Year

            VOC
            NOX

            PM2.5

            PM10

            NH3

            SO2

            Point
            2,104
            16,587
            3,692
            4,437
            210
            16,707

            Area
            13,066
            3,014
            3,073
            10,500
            13,342
            380

            On-Road Mobile
            5,037
            5,917
            191
            202
            1,328
            128

            Off-Road Mobile
            5,652
            14,631
            808
            896
            6
            3,296

            Biogenic
            46,343
            990
            0
            0
            0
            0

            Total
            72,202
            41,139
            7,764
            16,035
            14,886
            20,511

        2. Modeling To Support the LTS and Determine Visibility Improvement for Uniform Rate of Progress
        MANE-VU performed modeling for the regional haze LTS for the 11 Mid-Atlantic and Northeast states and the District of Columbia. The modeling analysis is a complex technical evaluation that began with selection of the modeling system. MANE-VU used the following modeling system:
        • Meteorological Model: The Fifth-Generation Pennsylvania State University/National Center for Atmospheric Research (NCAR) Mesoscale Meteorological Model (MM5) version 3.6 is a nonhydrostatic, prognostic meteorological model routinely used for urban- and regional-scale photochemical, PM2.5, and regional haze regulatory modeling studies.
        • Emissions Model: The Sparse Matrix Operator Kernel Emissions (SMOKE) version 2.1 modeling system is an emissions modeling system that generates hourly gridded speciated emission inputs of mobile, non-road mobile, area, point, fire, and biogenic emission sources for photochemical grid models.
        • Air Quality Model: The EPA's Models-3/Community Multiscale Air Quality (CMAQ) version 4.5.1 is a photochemical grid model capable of addressing ozone, PM, visibility and acid deposition at a regional scale.
        • Air Quality Model: The Regional Model for Aerosols and Deposition (REMSAD), version 8, is a Eulerian grid model that was primarily used to determine the attribution of sulfate species in the Eastern U.S. via the species-tagging scheme.
        • Air Quality Model: The California Puff Model (CALPUFF), version 5 is a non-steady-state Lagrangian puff model used to access the contribution of individual states' emissions to sulfate levels at selected Class I receptor sites.

        CMAQ modeling of regional haze in the MANE-VU region for 2002 and 2018 was carried out on a grid of 12x12 kilometer (km) cells that covers the 11 MANE-VU states (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont) and the District of Columbia and states adjacent to them. This grid is nested within a larger national CMAQ modeling grid of 36x36 km grid cells that covers the continental United States, portions of Canada and Mexico, and portions of the Atlantic and Pacific Oceans along the east and west coasts. Selection of a representative period of meteorology is crucial for evaluating baseline air quality conditions and projecting future changes in air quality due to changes in emissions of visibility-impairing pollutants. MANE-VU conducted an in-depth analysis which resulted in the selection of the entire year of 2002 (January 1-December 31) as the best period of meteorology available for conducting the CMAQ modeling. The MANE-VU states modeling was developed consistent with EPA's Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM
          2.5,
          and Regional Haze, located at http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf, (EPA-454/B-07-002), April 2007, and EPA document, Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations, located at http://www.epa.gov/ttnchie1/eidocs/eiguid/index.html, EPA-454/R-05-001, August 2005, updated November 2005 (“EPA's Modeling Guidance”).

        MANE-VU examined the model performance of the regional modeling for the areas of interest before determining whether the CMAQ model results were suitable for use in the regional haze assessment of the LTS and for use in the modeling assessment. The modeling assessment predicts future levels of emissions and visibility impairment used to support the LTS and to compare predicted, modeled visibility levels with those on the uniform rate of progress. In keeping with the objective of the CMAQ modeling platform, the air quality model performance was evaluated using graphical and statistical assessments based on measured ozone, fine particles, and acid deposition from various monitoring networks and databases for the 2002 base year. MANE-VU used a diverse set of statistical parameters from the EPA's Modeling Guidance to stress and examine the model and modeling inputs. Once MANE-VU determined the model performance to be acceptable, MANE-VU used the model to assess the 2018 RPGs using the current and future year air quality modeling predictions, and compared the RPGs to the uniform rate of progress.
        In accordance with 40 CFR 51.308(d)(3), the State of Delaware provided the appropriate supporting documentation for all required analyses used to determine the State's LTS. The technical analyses and modeling used to develop the glidepath and to support the LTS are consistent with EPA's RHR, and interim and final EPA Modeling Guidance. EPA accepts the MANE-VU technical modeling to support the LTS and determine visibility improvement for the uniform rate of progress because the modeling system was chosen and used according to EPA Modeling Guidance. EPA agrees with the MANE-VU model performance procedures and results, and that the CMAQ is an appropriate tool for the regional haze assessments for the Delaware LTS and regional haze SIP.
        3. Relative Contributions of Pollutants to Visibility Impairment
        An important step toward identifying reasonable progress measures is to identify the key pollutants contributing to visibility impairment at each Class I area. To understand the relative benefit of further reducing emissions from different pollutants, MANE-VU developed emission sensitivity model runs using CMAQ to evaluate visibility and air quality impacts from various groups of emissions and pollutant scenarios in the Class I areas on the 20 percent worst visibility days.

        Regarding which pollutants are most significantly impacting visibility in the MANE-VU region, MANE-VU's contribution assessment, demonstrated that sulfate is the major contributor to PM2.5 mass and visibility impairment at Class I areas in the Northeast and Mid-Atlantic Region. Sulfate particles commonly account for more than 50 percent of particle-related light extinction at northeastern Class I areas on the clearest days and for as much as or more than 80 percent on the haziest days. In particular, for the Brigantine National Wildlife Refuge Class I area, on the 20 percent worst visibility days in 2000-2004, sulfate accounted for 66 percent of the particle extinction. After sulfate, organic carbon (OC) consistently accounts for the next largest fraction of light extinction. Organic carbon accounted for 13 percent of light extinction on the 20 percent worst visibility days for Brigantine, followed by nitrate that accounts for 9 percent of light extinction.

        The emissions sensitivity analyses conducted by MANE-VU predict that reductions in SO2 emissions from EGU and non-EGU industrial point sources will result in the greatest improvements in visibility in the Class I areas in the MANE-VU region, more than any other visibility-impairing pollutant. As a result of the dominant role of sulfate in the formation of regional haze in the Northeast and Mid-Atlantic Region, MANE-VU concluded that an effective emissions management approach would rely heavily on broad-based regional SO2 control efforts in the eastern United States.
        4. Reasonable Progress Goals

        Since the State of Delaware does not have a Class I area, it is not required to establish RPGs. However, Delaware has been identified as influencing the visibility impairment of the Brigantine National Wildlife Refuge Class I area, located in the State of New Jersey. As such, Delaware participated in consultations to discuss the reasonable progress goals being considered by New Jersey for the affected Class I area. As a result, the state of New Jersey adopted four RPGs that will provide for reasonable progress towards achieving natural visibility: Timely implementation of BART requirements; a 90 percent reduction in SO2 emissions from each of the EGU stacks identified by MANE-VU comprising a total of 167 stacks (5 are located in Delaware); adoption of a low sulfur fuel oil strategy; and continued evaluation of other control measures to reduce SO2 and NOX emissions.

        In order to address a timely implementation of BART, as described in Section III B. 5. of this notice, Delaware's Regulation 1146—Electric Generating Unit Multi-Pollutant Regulation was determined to be better than BART for NOX and SO2 emissions. The first phase of the emission limits became effective in 2009 and second phase will become effective in 2012. The BART limitation will become effective no later than January 1, 2013, for the PM control strategies identified in Section III.B.5.c.
        States were required to reduce SO2 emissions from the highest emission stacks in the eastern U.S. by 90 percent or if it was infeasible to achieve that level of reduction, an alternative had to be identified which could include other point sources. Delaware's Conective Edge Moor Unit 5 and NRG Indian River Units 1-4 are five of the 167 units identified by MANE-VU as having the highest emissions in the eastern United States. The 2002 base year SO2 emissions from these five units are 22,121 tons per year. A 90% SO2 emission reduction of these five units would result in 19,909 tons per year. However, the 2018 SO2 emission reductions that resulted from the implementation of Regulation 1146 for these five units is 16,662 tons per year. These reductions are not enough to satisfy the 90% emission reduction from the 2002 baseline requirements. However, Delaware considered all of the emission reductions from all the other units obtained through the implementation of Regulation 1146—Electric Generating Unit Multi-Pollutant Regulation and this resulted in 23,826 tons per year, which produced a surplus of 3,917 tons per year of SO2 emission reductions.

        The low sulfur fuel oil strategy has four requirements for the State of Delaware. These requirements are to reduce the distillate oil to 0.05% sulfur by weight (500 parts per million (ppm)) no later than 2012, #4 residual oil to 0.25% sulfur by weight no later than 2012, #6 residual oil to 0.3-0.5% sulfur by weight no later than 2012, and further reduce the sulfur content of distillate oil to 15 ppm by 2016. Table 3 shows the SO2 emission reductions that would result from the implementation of a low sulfur fuel oil strategy in Delaware compared to the existing currently implemented regulations.

          Table 3—Reasonable Progress Goal—Low Sulfur Fuel Oil Strategy

            Low sulfur fuel oil strategy
            2018 SO2 emissions reductions (TPY) based on the low sulfur fuel oil strategy request

            2018 SO2 emissions increase/reduction (TPY) based on existing
              control measure

            Residual Fuel Oil (assumes 0.5% sulfur)
            1,445
            −1271

            Distillate (15 ppm sulfur)
            1,205
            95

            Total
            2,650
            −1,176

        As noted in Table 3, Delaware has a deficiency of 1,176 tons per year of SO2 emissions. However, as noted above Delaware has a surplus of SO2 emission reductions of 3,917 tons per year resulting from the implementation of Regulation 1146. This surplus accounts for the SO2 emission reductions needed to meet the requirements of the low sulfur fuel strategy.

        Delaware identified several measures that demonstrate their efforts to continued evaluation of other control measure to reduce SO2 and NOX. Delaware's Executive Order 31 requires their Energy Task Force to expand the diversity of fuels used to meet Delaware's current and future energy resources, develop conservation programs to reduce the need to build more electric generation facilities, ensure that energy infrastructure will meet Delaware's future needs for efficiently transporting energy resources, and encourage producers of clean energy technologies and producers of energy efficient products to locate their business operations in Delaware.
        5. BART
        BART is an element of Delaware's LTS. The BART RH requirement consists of three components: (a) Identification of all the BART eligible sources; (b) an assessment of whether the BART eligible sources are subject to BART; and (c) the determination of the BART controls.
        The first component of a BART evaluation is to identify all the BART eligible sources. The BART eligible sources were identified by utilizing the criteria in the BART Guidelines as follows:
        • Determine whether one or more emissions units at the facility fit within one of the 26 categories listed in the BART Guidelines (70 FR 39158-39159);
        • Determine whether the emission unit(s) was in existence on August 7, 1977 and begun operation after August 6, 1962;
        • Determine whether potential emissions of SO2, NOX, and PM10 from subject units are 250 tons or more per year.
        The BART guidelines recommend addressing SO2, NOX, and PM10 as visibility-impairment pollutants and leave it up to the discretion of states to evaluate VOC or ammonia emissions. Because of the lack of tools available to estimate emissions and subsequently model VOC and ammonia effects on visibility, and because Delaware is aggressively addressing VOCs through its ozone SIPs, Delaware determined that SO2, NOX and PM10/2.5 are the only reasonable contributing visibility impairing pollutants to target under BART. Delaware identified four BART eligible sources (consisting of five emission units). One of the four sources is a steel mill and the other three sources are electric generating units as described in Table 4.

          Table 4—Delaware's BART Eligible Sources

            Facility and unit
            Plant capacity in megawatts
            Unit capacity in megawatts
            Pollutants
            Location

            NGR Indian River—Unit 3
            < 750
            177
            SO2, NOX, PM
            Millsboro.

            City of Dover, McKee Run—Unit 3
            > 750
            114
            SO2, NOX, PM
            Dover.

            Conectiv Edge Moor—Unit 4 and Unit 5
            > 750
            177 and 446
            SO2, NOX, PM
            Wilmington.

            Ezrac Claymont Steel—Electric Arc Furnace and Reheater
            Not Applicable
            Not Applicable
            SO2, NOX, PM
            Claymont.

        The second component of the BART evaluation is to identify those BART eligible sources that may reasonably be anticipated to cause or contribute to visibility impairment at any Class I area are subject to BART. As discussed in the BART guidelines, a state may choose to consider all BART eligible sources to be subject to BART (70 FR 39.161). Consistent with the MANE-VU Board's decision in June 2004 that because of the collective importance of BART sources, BART determinations should be made by the MANE-VU states for each BART eligible source. Delaware identified each of its BART eligible sources as subject to BART.

        One of the BART eligible facilities in Delaware the Ezrac Claymont Steel, is a relatively small emissions source with potential emissions that exceeded the statutory threshold of 250 tons per year or more, but the actual emissions of visibility impairing pollutants of well under 250 tons per year. The steel mill requested a limit on its potential to emit, to bring its emissions under 250 tons per year threshold for BART sources. Delaware established federally enforceable terms and conditions in a Title V permit for the Reheat Furnace and Electric Arc Furnace at Evraz Claymont Steel Mill that limit the potential to emit for SO2, NOX, and PM10 to less than 250 tons per year. In the future if Evrac Claymont Steel request an increase in NOX, SO2 and PM emissions greater than 250 tons per year of any one of these pollutants the facility would become subject to BART.
        The final component of a BART evaluation is making BART determinations for all BART subject sources. In making BART determinations, section 169A(g)(2) of the CAA requires that States consider the following factors: (1) The costs of compliance; (2) the energy and non-air quality environmental impacts of compliance; (3) any existing pollution control technology in use at the source; (4) the remaining useful life of the source; and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. Section (e)(2) of the Regional Haze Rule provides that a State may opt to implement an emissions trading program or other alternative measure rather than to require sources subject to BART to install, operate, and maintain BART. To do so, the State must demonstrate that the emissions trading program or other alternative measure will achieve greater reasonable progress than would be achieved through the installation and operation of BART.

        The three sources in Delaware that the State found to be subject to BART are EGUs. As discussed below, Delaware chose to address the BART requirements for SO2 and NOX for these sources through an alternative program that limits emissions from all coal-fired and residual oil-fired electric generating units with a nameplate of 25 MW or greater. As this alternative program does not address PM emissions, Delaware conducted BART analyses for PM for the three sources subject to BART.
        Sulfur Dioxide and Nitrogen Oxides
        In order to determine appropriate NOX and SO2 emission rates for inclusion in Regulation 1146, Delaware collected guidance and information from a number of sources to assist in its evaluation of appropriate emissions limits. The methods Delaware used to develop Regulation 1146 incorporate many of the criteria used in the 5 factor analyses required by the Regional Haze Rule and included the following: (1) Control technology effectiveness; (2) capital costs; (3) complexity with regards to application on cycling units; (4) changes in plant auxiliary loads; (5) impact on plant operations and flexibility; (6) operation and maintenance costs; (7) size of the affected units; and (8) expected remaining operating life of the affected units.

        Of the eight units subject to Delaware's Regulation 1146, four have been identified as BART units. Regulation 1146 incorporates emissions rate limitations based on a suite of emission reduction technology capabilities, but do not specify or require the installation of any particular emission reduction technology or suite of technologies. Table 5 shows Delaware promulgated emission rate limitations for NOX and SO2 in Regulation 1146.

          Table 5—Regulation 1146 Emission Rate Limitations

            2009
            2012

            NOX—Coal and Residual Oil Fired EGU's
            0.15 lb/MMBTU
            0.125 lb/MMBTU.

            SO2—Coal Fired EGU's
            0.37 lb/MMBTU
            0.26 lb/MMBTU.

            SO2—Residual Oil Fired EGU's
            0.5% Sulfur Fuel Oil
            0.5% Sulfur Fuel Oil.

        For the above rate limits, all pounds per one million British Thermal Units (lb/MMBTU) limits are continuous and based on a rolling 24-hour averaging period, that began on May 1, 2009. For the sulfur in fuel oil limits, facilities are not permitted to accept fuel oil with sulfur content greater than 0.5% by weight on or after January 1, 2009.

        Delaware did a comparison of Regulation 1146 emission rate limits of all eight units regulated by this rule to the BART presumptive limits for the four BART subject units. This comparison shown in Tables 6 for SO2 and Table 7 for NOX demonstrates that because Regulation 1146 emissions rate limits are applicable to a fleet of units larger than the Delaware BART subject units, the total emissions reductions achieved by Regulation 1146, greatly exceed that which would be achieved through application of presumptive BART emissions rate limits on BART subject units only.

          Table 6—Facility Emission Scenario for SO2 in Tons

            Facility
            2002 SO2

            2012 Reg 1146 SO2

            Presumptive BART SO2

            Edge Moor
            10,527
            3,896
            7,619

            Indian River
            19,956
            3,416
            15,598

            McKee Run
            700
            480
            960

          Table 7—Facility Emission Scenario for NOX in Tons

            Facility
            2002 NOX

            2012 Reg 1146 NOX

            Presumptive BART NOX

            Edge Moor
            3,307
            1,464
            3,570

            Indian River
            4,491
            1,643
            4,668

            McKee Run
            345
            120
            345

        Particulate Matter

        Delaware required the BART facilities to conduct an analysis of potential BART control in accordance with 40 CFR 51.308(e)(1)(ii). Each facility began by identifying all available retrofit control technologies and then eliminating all technically infeasible options. The control options considered for all of the EGUs included wet electrostatic precipitators, dry electrostatic precipitators, and baghouses. However, for Unit 3 at the McKee Run and Unit 5 at the Edge Moor facilities, the two EGUs that use oil as their primary fuel, a switch to lower sulfur fuels and/or natural gas were also considered as potential BART control options.

        The McKee Run Unit 3 is a 102 MW Riley Stoker boiler fired on No. 6 fuel oil with natural gas used as a back-up fuel. The boiler is equipped with a mechanical multi-cyclone used as a control device for particulate matter, and equipped with low NOX burners and fan boost over-fire air to control NOX emissions. The sulfur content of the No. 6 fuel oil is limited to no greater than 1.0 percent, which restricts SO2 and particulate matter emissions. The boiler exhausts through a stack 200 feet tall and produces steam to power a 102 MW electric generator. For this unit, Delaware determined a sulfur limit of 0.5% as BART for PM, which will reduce PM emissions by approximately 50%, is cost-effective, and has no significant energy or non-air quality environmental benefits or dis-benefits.

        The Edge Moor Unit 4 is a nominal 175 MW dry-bottom, pulverized coal (primary fuel), tangentially-fired boiler equipped with low-NOX coal burners (LNB) and overfire air (OFA) for the control of NOx emissions and an electrostatic precipitator (ESP) for the control of filterable particulate emissions. Unit 4 is currently permitted to burn coal with a sulfur content of up to 1.0% wt. and Delaware determined that the dry sorbent injection system (DSI) is BART for PM since the existing ESP is effective at reducing particulate matter emissions, and the addition of the DSI system will reduce condensable emissions.
        The Edge Moor Unit 5 is a nominal 445 MW residual oil-fired (primary fuel) boiler with oil LNB and OFA for the control of NOx emissions and a multicylone for the control of filterable particulates. Unit 5 is currently permitted to burn oil with a sulfur content of up to 1.0% wt. and Delaware determined a sulfur limit of 0.5% as BART for PM. This will reduce PM emissions by approximately 50%, is cost-effective and has no significant energy or non-air quality environmental benefits or dis-benefits.
        The Indian River Unit 3 is a coal-fired, 165 MW EGU equipped with cold-side ESP. Delaware determined that the existing control electrostatic precipitators for PM is BART since it is effective at reducing particulate matter emissions and none of the other PM control options evaluated were cost-effective.
        C. Consultation With States and Federal Land Managers
        On May 10, 2006, the MANE-VU State Air Directors adopted the Inter-RPO State/Tribal and FLM Consultation Framework that documented the consultation process within the context of regional haze planning, and was intended to create greater certainty and understanding among RPOs. MANE-VU states held ten consultation meetings and/or conference calls from March 1, 2007 through March 21, 2008. In addition to MANE-VU members attending these meetings and conference calls, participants from VISTAS, Midwest RPO, and the relevant Federal Land Managers were also in attendance. In addition to the conference calls and meeting, the FLMs were given the opportunity to review and comment on each of the technical documents developed by MANE-VU.
        On April 28, 2008, Delaware submitted a draft Regional Haze SIP to the relevant FLMs for review and comment pursuant to 40 CFR 51.308(i)(2). In a letter dated June 17, 2008, the FLM provided comments on the draft Regional Haze SIP in accordance with 40 CFR 51.308(i)(3). The comments received from the FLMs were addressed and incorporated in Delaware's SIP revision.
        On September 23, 2008, Delaware took its Regional Haze SIP out for public hearing and only one comment was received and it indicated general agreement with the proposed SIP revision. To address the requirement for continuing consultation procedures with the FLMs under 40 CFR 51.308(i)(4), Delaware commits in their SIP to ongoing consultation with the FLMs on Regional Haze issues throughout the implementation.
        D. Periodic SIP Revisions and Five-Year Progress Reports
        Consistent with the requirements of 40 CFR 51.308(g), Delaware has committed to submitting a report on reasonable progress (in the form of a SIP revision) to the EPA every five years following the initial submittal of its regional haze SIP. The reasonable progress report will evaluate the progress made towards the RPGs for the Brigantine National Wildlife Refuge Class I area, located in New Jersey.
        IV. What action is EPA proposing to take?

        EPA is proposing to approve a revision to the Delaware State Implementation Plan submitted by the State of Delaware through the Delaware Department of Natural Resources and Environmental Control on September 25, 2008 that addresses regional haze for the first implementation period. EPA is proposing to make a determination that the Delaware Regional Haze SIP contains the emission reductions needed to achieve Delaware's share of emission reductions agreed upon through the regional planning process. Furthermore, Delaware's Regional Haze Plan ensures that emissions from the State will not interfere with the reasonable progress goals for neighboring states' Class I areas. Accordingly, EPA is proposing to find that this revision meets the applicable visibility related requirements of CAA Section 110(a)(2) including but not limited to 110(a)(2)(D)(i)(II) and 110(a)(2)(J), relating to visibility protection for the 1997 8-Hour Ozone NAAQS and the 1997 and 2006 PM2.5 NAAQS. EPA has determined that the Regional Haze Plan submitted by the State of Delaware satisfies the requirements of the CAA. EPA is taking this action pursuant to those provisions of the CAA. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.
        V. Statutory and Executive Order Reviews
        Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
        • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

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

        • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
        • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

        • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
        • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
        • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
        • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
        In addition, this proposed rule approving Delaware's Regional Haze Plan does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Visibility, Volatile organic compounds.

          Authority:
          42 U.S.C. 7401 et seq.

          Dated: April 29, 2011.
          James W. Newsom,
          Acting Regional Administrator, Region III.

      [FR Doc. 2011-11839 Filed 5-12-11; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 660
        [Docket No. 150428405-5405-01]
        RIN 0648-XD927
        Fisheries Off West Coast States; Coastal Pelagic Species Fisheries; Annual Specifications

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Proposed rule.

          SUMMARY:

          NMFS proposes to implement annual management measures and harvest specifications to establish the allowable catch levels (i.e. annual catch limit (ACL)/harvest guideline (HG)) for the northern subpopulation of Pacific sardine (hereafter, simply Pacific sardine), in the U.S. exclusive economic zone (EEZ) off the Pacific coast for the fishing season of July 1, 2015, through June 30, 2016. This rule is proposed according to the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The proposed would include a prohibition on directed non-tribal Pacific sardine commercial fishing for Pacific sardine off the coasts of Washington, Oregon and California, which is required because the estimated 2015 biomass of Pacific sardine has dropped below the cutoff threshold in the HG control rule. Under the proposed action Pacific sardine may still be harvested as part of either the live bait or tribal fishery or incidental to other fisheries; the incidental harvest of Pacific sardine would initially be limited to 40-percent by weight of all fish per trip when caught with other CPS or up to 2 metric tons (mt) when caught with non-CPS. The proposed annual catch limit (ACL) for 2015-2016 Pacific sardine fishing year is 7,000 mt. This proposed rule is intended to conserve and manage the Pacific sardine stock off the U.S. West Coast.

          DATES:
          Comments must be received by June 5, 2015.

          ADDRESSES:
          You may submit comments on this document identified by NOAA-NMFS-2015-0064 by any of the following methods:
          • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0064, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.
          • Mail: Submit written comments to William W. Stelle, Jr., Regional Administrator, West Coast Region, NMFS, 7600 Sand Point Way NE., Seattle, WA 98115-0070; Attn: Joshua Lindsay.
          • Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

          Copies of the report “Assessment of Pacific Sardine Resource in 2015 for U.S.A. Management in 2015-2016” may be obtained from the West Coast Regional Office (see ADDRESSES).

          FOR FURTHER INFORMATION CONTACT:
          Joshua Lindsay, West Coast Region, NMFS, (562) 980-4034.

        SUPPLEMENTARY INFORMATION:

        During public meetings each year, the estimated biomass for Pacific sardine is presented to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fishery are reviewed and discussed. The biomass estimate is then presented to the Council along with the calculated overfishing limit (OFL), available biological catch (ABC), and HG, along with recommendations and comments from the Team, Subpanel, and SSC. Following review by the Council and after hearing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to NMFS. NMFS manages the Pacific sardine fishery in the U.S. EEZ off the Pacific coast (California, Oregon, and Washington) in accordance with the FMP. Annual specifications published in the Federal Register establish the allowable harvest levels (i.e. OFL/ACL/HG) for each Pacific sardine fishing year. The purpose of this proposed rule is to implement these annual catch reference points for 2015-2016, including the OFL and an ABC that takes into consideration uncertainty surrounding the current estimate of biomass for Pacific sardine in the U.S. EEZ off the Pacific coast. The FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific sardine fishery based on the annual specification framework and control rules in the FMP. These control rules include the HG control rule, which in conjunction with the OFL and ABC rules in the FMP, are used to manage harvest levels for Pacific sardine, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. According to the FMP, the quota for the principle commercial fishery is determined using the FMP-specified harvest guideline (HG) formula. The HG formula in the CPS FMP is HG = [(Biomass − CUTOFF) * FRACTION * DISTRIBUTION] with the parameters described as follows:
        1. Biomass. The estimated stock biomass of Pacific sardine age one and above. For the 2015-2016 management season this is 96,688 mt.
        2. CUTOFF. This is the biomass level below which no HG is set. The FMP established this level at 150,000 mt.
        3. DISTRIBUTION. The average portion of the Pacific sardine biomass estimated in the EEZ off the Pacific coast is 87 percent.
        4. FRACTION. The temperature-varying harvest fraction is the percentage of the biomass above 150,000 mt that may be harvested.

        As described above, the Pacific sardine HG control rule, the primary mechanism for setting the annual directed commercial fishery quota, includes a CUTOFF parameter which has been set as a biomass amount of 150,000 mt. This amount is subtracted from the annual biomass estimate before calculating the applicable HG for the fishing year. Therefore, because this year's biomass estimate is below that value, the formula results in an HG of zero and therefore no Pacific sardine are available for the commercial directed fishery during the 2015-2016 fishing season.
        At the April 2015 Council meeting, the Council adopted the “Assessment of the Pacific Sardine Resource in 2015 for U.S.A. Management in 2015-2016” completed by NMFS Southwest Fisheries Science Center and the resulting Pacific sardine biomass estimate of 96,688 mt. Based on recommendations from its SSC and other advisory bodies, the Council recommended and NMFS is proposing, an OFL of 13,227 mt, an ABC of 12,074 mt, and a prohibition on sardine catch unless it is harvested as part of either the live bait or tribal fishery or incidental to other fisheries for the 2015-2016 Pacific sardine fishing year. As additional conservation measures, the Council also recommended and NMFS is proposing an ACL of 7,000 mt and an annual catch target (ACT) of 4,000 mt under which the incidental catch of Pacific sardine in other CPS fisheries would be managed. Incidental catch under the ACT would also be subject to the following management controls to reduce targeting and potential discard of Pacific sardine: (1) A 40 percent by weight incidental catch rate when Pacific sardine are landed with other CPS until a total of 1,500 mt of Pacific sardine are landed, (2) after 1,500 mt have been caught the allowance would be reduced to 30 percent, and (3) when 4,000 mt is reached the incidental per landing allowance would be reduced to 5 percent for the remainder of the 2015-2016 fishing year. Additionally, the council adopted a 2 mt incidental per landing allowance in non-CPS fisheries. Because Pacific sardine is known to comingle with other CPS stocks, these incidental allowances were adopted to allow for the continued prosecution of these other important CPS fisheries and reduce the potential discard of sardine.

        The NMFS West Coast Regional Administrator would publish a notice in the Federal Register announcing the date of attainment of any of the incidental catch levels described above and subsequent changes to allowable incidental catch percentages. Additionally, to ensure the regulated community is informed of any closure, NMFS will also make announcements through other means available, including fax, email, and mail to fishermen, processors, and state fishery management agencies.
        In the previous 3 fishing years the Quinault Indian Nation requested, and NMFS approved, set-asides for the exclusive right to harvest Pacific sardine in the Quinault Usual and Accustomed Fishing Area off the coast of Washington State, pursuant to the 1856 Treaty of Olympia (Treaty with the Quinault). For the 2015-2016 fishing season the Quinault Indian Nation has requested that NMFS provide a set-aside of 1,000 mt (3,000 mt less than was requested and approved in 2014-2015) and NMFS is considering the request.

        Detailed information on the fishery and the stock assessment are found in the report “Assessment of the Pacific Sardine Resource in 2015 for U.S.A. Management in 2015-2016” (see ADDRESSES).
        Classification
        Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law, subject to further consideration after public comment.
        These proposed specifications are exempt from review under Executive Order 12866 because they contain no implementing regulations.

        An Initial Regulatory Flexibility Analysis (IRFA) was prepared, as required by section 3 of the Regulatory Flexibility Act, 5 U.S.C. 603. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section in the preamble and in the SUMMARY section of the preamble. The results of the analysis are stated below. For copies of the IRFA, and instructions on how to send comments on the IRFA, please see the ADDRESSES section above.
        On June 12, 2014, the Small Business Administration (SBA) issued an interim final rule revising the small business size standards for several industries effective July 14, 2014 (79 FR 33467). The rule increased the size standard for Finfish Fishing from $19.0 to 20.5 million, Shellfish Fishing from $5.0 to 5.5 million, and Other Marine Fishing from $7.0 to 7.5 million. 78 FR 33656, 33660, 33666 (See Table 1). NMFS conducted its analysis for this action in light of the new size standards.
        The purpose of this proposed rule is to conserve the Pacific sardine stock by preventing overfishing, so that directed fishing may occur in future years. This is accomplished by implementing the 2015-2016 annual specifications for Pacific sardine in the U.S. EEZ off the Pacific coast. The small entities that would be affected by the proposed action are the vessels that fish for Pacific sardine as part of the West Coast CPS small purse seine fleet. As stated above, the U.S. Small Business Administration now defines small businesses engaged in finfish fishing as those vessels with annual revenues of $20.5 million or less. Under the former, lower standards, all entities subject to this action in previous years were considered small entities, and under the new standards they continue to be considered small. In 2014, there were approximately 81 vessels permitted to operate in the directed sardine fishery component of the CPS fishery off the U.S. West Coast; 58 vessels in the Federal CPS limited entry fishery off California (south of 39 N. lat.), and a combined 23 vessels in Oregon and Washington's state Pacific sardine fisheries. The average annual per vessel revenue in 2014 for the West Coast CPS finfish fleet was well below $20.5 million; therefore, all of these vessels therefore are considered small businesses under the RFA. Because each affected vessel is a small business, this proposed rule has an equal effect on all of these small entities and therefore will impact a substantial number of these small entities in the same manner. Therefore, this rule would not create disproportionate costs between small and large vessels/businesses.
        For the 2014-2015 fishing year, approximately 22,076 mt were available for harvest by the directed non-tribal commercial fishery (this includes 2,500 rolled over from the tribal set aside). Approximately 19,440 mt (approximately 3,378 mt in California and 16,023 mt in Oregon and Washington) of this allocation was harvested during the 2014-2015 fishing season, for an estimated ex-vessel value of $8.8 million.

        The CPS FMP and its implementing regulations require NMFS to annually set an OFL, ABC, ACL and HG or ACT for the Pacific sardine fishery based on the specified harvest control rules in the FMP applied to the current stock biomass estimate for that year. The derived annual HG or ACT is the level typically used to manage the principle commercial sardine fishery and is the harvest level typically used by NMFS for profitability analysis each year. As stated above, the FMP dictates that when the estimated biomass drops below a certain level (150,000 mt) that there is no HG. Therefore, purposes of profitability analysis, this action is essentially proposing that an HG of zero for the 2015-2016 Pacific sardine fishing season (July 1, 2014 through June 30, 2015). As there is no directed fishing for the 2015-2016 fishing year, the proposed rule will decrease small entities' potential profitability compared to last season.
        However, revenue derived from harvesting Pacific sardine is typically only one source of fishing revenue for a majority of the vessels that harvest Pacific sardine; as a result, the economic impact to the fleet from the proposed action cannot be viewed in isolation. From year to year, depending on market conditions and availability of fish, most CPS/sardine vessels supplement their income by harvesting other species. Many vessels in California also harvest anchovy, mackerel, and in particular squid, making Pacific sardine only one component of a multi-species CPS fishery. For example, market squid have been readily available to the fishery in California over the last three years with total annual ex-vessel revenue averaging approximately $66 million over that time, compared to an annual average ex-vessel from sardine of $16 million over that same time period. Additionally, some sardine vessels that operate off of Oregon and Washington also fish for salmon in Alaska or squid in California during times of the year when sardine are not available. The purpose of the proposed incidental allowances under this action are to ensure the vessels impacted by this sardine action can still access these other profitable fisheries while still limited the harvest of sardine.
        These vessels typically rely on multiple species for profitability because abundance of sardine, like the other CPS stocks, is highly associated with ocean conditions and different times of the year, and therefore are harvested at various times and areas throughout the year. Because each species responds to ocean conditions in its own way, not all CPS stocks are likely to be abundant at the same time; therefore, as abundance levels and markets fluctuate, it has necessitated that the CPS fishery as a whole rely on a group of species for its annual revenues. Therefore, although there will a reduction in sardine revenue for the small entities affected by this proposed action as compared to the previous season, it is difficult to predict exactly how this reduction will impact overall annual revenue for the fleet.
        No significant alternatives to this proposed rule exist that would accomplish the stated objectives of the applicable statutes and which would minimize any significant economic impact of this proposed rule on the affected small entities. The CPS FMP and its implementing regulations require NMFS to calculate annual harvest levels by applying the harvest control rule formulas to the current stock biomass estimate. Therefore, if the estimated biomass decreases or increases from one year to the next, so do the applicable quotas. Determining the annual harvest levels merely implements the established procedures of the FMP with the goal of continuing to provide expected net benefits to the nation, regardless of what the specific annual allowable harvest of Pacific sardine is determined to be.
        There are no reporting, record-keeping, or other compliance requirements required by this proposed rule. Additionally, no other Federal rules duplicate, overlap or conflict with this proposed rule.
        This action does not contain a collection-of-information requirement for purposes of the Paper Reduction Act.

          Authority:
           16 U.S.C. 1801 et seq.

          Dated: May 14, 2015.
          Samuel D. Rauch III,
          Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

      [FR Doc. 2015-12321 Filed 5-20-15; 8:45 am]
       BILLING CODE 3510-22-P