        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R2-ES-2012-0071; 4500030113]
        RIN 1018-AY21
        Endangered and Threatened Wildlife and Plants; Listing the Lesser Prairie-Chicken as a Threatened Species With a Special Rule

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service, announce the reopening of the comment period on the December 11, 2013, proposed revised special rule under authority of section 4(d) of the Endangered Species Act of 1973, as amended (Act), that provides measures that are necessary and advisable to provide for the conservation of the lesser prairie-chicken (Tympanuchus pallidicinctus). In addition, we announce the reopening of the public comment period on the December 11, 2012, proposed rule to list the lesser prairie-chicken as a threatened species under the Act. We are reopening the comment period to allow all interested parties an opportunity to comment on the final Lesser Prairie-Chicken Range-Wide Conservation Plan, which has been prepared by the Lesser Prairie-Chicken Interstate Working Group, and our endorsement of the plan, and we request comments on the plan as it relates to our determination of status under section 4(a)(1) of the Act. The final plan is available on the Internet in Docket No. FWS-R2-ES-2012-0071 at http://www.regulations.gov.

          DATES:

          The comment period for the proposed rule published December 11, 2012 (77 FR 73827), is reopened. We will accept comments received or postmarked on or before February 12, 2014. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date.

          ADDRESSES:

            Document availability: The December 11, 2012, proposed rule (77 FR 73827), the December 11, 2013, revision of that proposed rule (78 FR 75306), and the final Lesser Prairie-Chicken Range-Wide Conservation Plan are all available via the Federal electronic rulemaking portal at http://www.regulations.gov in Docket No. FWS-R2-ES-2012-0071.

            Comment submission: You may submit comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter FWS-R2-ES-2012-0071, which is the docket number for this rulemaking. You may submit a comment by clicking on “Comment Now!”
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R2-ES-2012-0071; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

          We request that you send comments only by one of the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Jontie Aldrich, Field Supervisor, Oklahoma Ecological Services Field Office, 9014 East 21st Street, Tulsa, OK 74129; by telephone 918-581-7458 or by facsimile 918-581-7467. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

        SUPPLEMENTARY INFORMATION:

        Public Comments
        To allow the public to comment simultaneously on this revised proposed 4(d) special rule and the proposed listing rule, we also announce the reopening of the comment period on the Service's December 11, 2012, proposed rule to list the lesser prairie-chicken as a threatened species under the Act. We intend to finalize the revised proposed 4(d) special rule concurrent with the final listing rule, if the results of our final listing determination conclude that threatened species status is appropriate and if we determine that this revised proposed 4(d) special rule is appropriate following public comment. Any final action resulting from the proposed rules will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, general public, and other interested parties concerning the proposed listing rule and revised proposed 4(d) special rule. We particularly seek comments regarding:
        (1) The historical and current status and distribution of the lesser prairie-chicken, its biology and ecology, specific threats (or lack thereof) and regulations that may be addressing those threats and ongoing conservation measures for the species and its habitat.
        (2) Information relevant to the factors that are the basis for making a listing determination for a species under section 4(a) of the Act, which are:
        (a) The present or threatened destruction, modification, or curtailment of the species' habitat or range;
        (b) Overutilization for commercial, recreational, scientific, or educational purposes;
        (c) Disease or predation;
        (d) The inadequacy of existing regulatory mechanisms; or
        (e) Other natural or manmade factors affecting its continued existence and threats to the species or its habitat.
        (3) Application of the Lesser Prairie-Chicken Interstate Working Group's final Lesser Prairie-Chicken Range-Wide Conservation Plan to our determination of status under section 4(a)(1) of the Act, particularly comments or information to help us assess the certainty that the plan will be effective in conserving the lesser prairie-chicken and will be implemented.
        (4) Which areas would be appropriate as critical habitat for the species and why areas should or should not be proposed for designation as critical habitat, including whether any threats to the species from human activity would be expected to increase due to the designation and whether that increase in threat would outweigh the benefit of designation such that the designation of critical habitat may not be prudent.
        (5) Specific information on:
        (a) The amount and distribution of habitat for the lesser prairie-chicken;
        (b) What may constitute “physical or biological features essential to the conservation of the species,” within the geographical range currently occupied by the species;
        (c) Where these features are currently found;
        (d) Whether any of these features may require special management considerations or protection;
        (e) What areas, that were occupied at the time of listing (or are currently occupied) and that contain features essential to the conservation of the species, should be included in the designation and why; and
        (f) What areas not occupied at the time of listing are essential for the conservation of the species and why.
        (6) Information on the projected and reasonably likely impacts of climate change on the lesser prairie-chicken and its habitat.
        (7) Whether measures outlined in this revised proposed 4(d) special rule are necessary and advisable for the conservation and management of the lesser prairie-chicken.
        (8) Whether the provision related to the continuation of routine agricultural practices on existing cultivated lands should more clearly differentiate between row crop agriculture and other cropped areas, such as managed grasslands, forage, or other untilled crops.
        (9) Whether the provision related to the continuation of routine agricultural practices on existing cultivated lands should be revised to include spatial or temporal restrictions or deferments.
        (10) Additional provisions the Service may wish to consider for a 4(d) special rule in order to conserve, recover, and manage the lesser prairie-chicken.
        If you previously submitted comments or information, please do not resubmit them. We have incorporated them into the public record and will fully consider them. We will consider all comments and information received during our preparation of a final determination on the status of the species and the 4(d) special rule. Accordingly, the final decision may differ from this proposal.
        Please note that comments merely stating support for or opposition to the actions under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species must be made “solely on the basis of the best scientific and commercial data available.”

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

        If you submit information via http://www.regulations.gov, your entire submission—including any personal identifying information—will be posted on the Web site. If your submission is made via a hardcopy that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy submissions on http://www.regulations.gov. Please include sufficient information with your comments to allow us to verify any scientific or commercial information you include.

        Comments and materials we receive, as well as supporting documentation we used in preparing this revised proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Oklahoma Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).
        Background

        On December 11, 2012, we published a proposed rule (77 FR 73827) to list the lesser prairie-chicken as a threatened species under the Act. On May 6, 2013, we published a proposed special rule (78 FR 26302) under authority of section 4(d) of the Act that provides measures that are necessary and advisable to provide for the conservation of the lesser prairie-chicken. We then published in the Federal Register on December 11, 2013 (78 FR 75306), a proposed revised 4(d) special rule to outline the prohibitions, and exceptions to those prohibitions, necessary and advisable for the conservation of the lesser prairie-chicken. We are now reopening the comment period on the proposed rules to allow the public the opportunity to comment on the final Lesser Prairie-Chicken Range-Wide Conservation Plan, which was not available on the Web sites as stated in our December 11, 2013, Federal Register document.

        Since the time of the proposed listing rule and proposed 4(d) special rule, the Lesser Prairie-Chicken Interstate Working Group, in association with the Western Association of Fish and Wildlife Agencies, finalized the Lesser Prairie-Chicken Range-Wide Conservation Plan. On October 23, 2013, the Service announced our endorsement of the Lesser Prairie-Chicken Range-Wide Conservation Plan (dated October 2013) as a comprehensive conservation program that reflects a sound conservation design and strategy that, when implemented, will provide a net conservation benefit to the lesser prairie-chicken. We would like to consider the conservation measures in this plan in our final listing determination for the lesser prairie-chicken. As such, we are reopening the comment period to allow the public an opportunity to provide comment on the October 2013 plan as it applies to our determination of status under section 4(a)(1) of the Act, particularly comments or information to help us assess the certainty that the October 2013 Lesser Prairie-Chicken Range-Wide Conservation Plan will be effective in conserving the lesser prairie-chicken and will be implemented. The final plan is available on the Internet in Docket No. FWS-R2-ES-2012-0071 at http://www.regulations.gov.

        Authority

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

          Dated: January 24, 2014.
          Daniel M. Ashe,
          Director, U.S. Fish and Wildlife Service.

      [FR Doc. 2014-01786 Filed 1-28-14; 8:45 am]
      BILLING CODE 4310-55-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Chapter I
        [EPA-HQ-OPPT-2011-1019; FRL-9909-13]
        RIN 2070-AJ93
        Hydraulic Fracturing Chemicals and Mixtures

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Advance notice of proposed rulemaking.

          SUMMARY:
          In its response to a citizen petition submitted under section 21 of the Toxic Substances Control Act (TSCA), EPA indicated that as a first step, it would convene a stakeholder process to develop an approach to obtain information on chemical substances and mixtures used in hydraulic fracturing. To gather information to inform EPA's proposal, the Agency is issuing this advance notice of proposed rulemaking (ANPR) and initiating a public participation process to seek comment on the information that should be reported or disclosed for hydraulic fracturing chemical substances and mixtures and the mechanism for obtaining this information. This mechanism could be regulatory (under TSCA section 8(a) and/or section 8(d)), voluntary, or a combination of both and could include best management practices, third-party certification and collection, and incentives for disclosure of this information. In addition, the Agency is seeking comment on ways of minimizing reporting burdens and costs and of avoiding the duplication of state and other federal agency information collections, while at the same time maximizing data available for EPA risk characterization, external transparency, and public understanding. Also, EPA is soliciting comments on incentives and recognition programs that could be used to support the development and use of safer chemicals in hydraulic fracturing.

          DATES:
          Comments must be received on or before August 18, 2014.

          ADDRESSES:
          Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2011-1019, by one of the following methods:
          • Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
          • Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.
          • Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

          Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

          FOR FURTHER INFORMATION CONTACT:

            For technical information contact: Mark Seltzer, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 564-2901; email address: seltzer.mark@epa.gov.

            For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address: TSCA-Hotline@epa.gov.

        SUPPLEMENTARY INFORMATION:

        I. General Information
        A. Does this action apply to me?
        This action is directed to the public in general. This action, however, may be of interest to you if you manufacture (including import), process, or distribute chemical substances or mixtures (Ref. 1) used in any type or method of hydraulic fracturing. This may include businesses that fall under North American Industry Classification System (NAICS) codes 2111 (oil and gas extraction) and/or 2131 (support activities for mining). EPA anticipates that this ANPR may also be of interest to states, tribes, and other industries. Since additional entities may also be interested, the Agency has not attempted to describe all the specific entities that may be interested in this action.
        B. What should I consider as I prepare my comments for EPA?
        1. Submitting confidential business information (CBI). Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.
        2. Tips for preparing your comments. When submitting comments, remember to:

        i. Identify the document by docket ID number and other identifying information (subject heading, Federal Register date and page number).
        ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
        iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
        iv. Describe any assumptions and provide any technical information and/or data that you used.
        v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. Likewise, if you estimate the universe of affected reporters, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
        vi. Provide specific examples to illustrate your concerns and suggest alternatives.
        vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
        viii. Make sure to submit your comments by the comment period deadline identified.
        II. Background

        EPA received a petition from Earthjustice and 114 other groups on August 4, 2011, requesting that EPA issue TSCA section 4 and TSCA section 8 rules requiring toxicity testing of chemicals and mixtures used in oil and gas exploration and production; reporting to EPA, among other things, the identity of those chemicals and mixtures; and submitting to EPA health and safety studies on the chemicals and mixtures (Ref. 2). On November 2, 2011, EPA provided an initial response to the petition (Ref. 3). In that response, EPA denied the TSCA section 4 request for issuance of a test rule because the petition did not set forth sufficient facts to conclude that it was “necessary to issue” the requested TSCA section 4 rule, as required by TSCA section 21(b)(1). On November 23, 2011, EPA granted in part and denied in part the TSCA section 8(a) and section 8(d) requests by limiting the scope from chemicals and mixtures used in all processes of oil and gas exploration and production to chemical substances and mixtures used in hydraulic fracturing (Refs. 4 and 5). EPA published a document with the Agency's rationale for its response to the petition in the Federal Register of July 11, 2013 (Ref. 5). To facilitate public comment, the Agency stated its intent to publish an ANPR to identify key issues for further discussion and analysis.
        EPA maintains continuing coordination with its Federal partners in planning information reporting rules that will complement the Bureau of Land Management's (BLM) proposed regulation: Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands (78 FR 31636, May 24, 2013). BLM subsequently issued a supplemental proposal and extension of comment period for that proposed rule (78 FR 34611, June 10, 2013). The intent of these dialogues is to ensure both EPA's and BLM's efforts provide useful information for assessment and disclosure purposes, while not overly burdening reporting entities.
        A. What action is the Agency taking?

        With this ANPR, EPA is initiating a stakeholder process to request input on various aspects of obtaining information on chemical substances and mixtures used in hydraulic fracturing for oil and gas exploration and production to further the purposes of TSCA (TSCA section 2 sets forth the findings, policy, and intent of Congress in enacting TSCA) and other federal government objectives that can be informed through this process. As part of this effort, EPA seeks input on appropriate disclosure to ensure that information about the chemicals and mixtures used in hydraulic fracturing activities is provided to the public in a transparent fashion. These activities include the injection of water, chemicals, proppant, and/or tracers to prepare geologic formations for hydraulic fracturing, complete a hydraulic fracturing stimulation stage, evaluate the extent of resulting fractures, or ensure future ability to continue enhancement of production through stimulation by hydraulic fracturing. During each hydraulic fracturing stimulation stage, pressurized fluids containing carrier fluids such as water or gas and any combination of proppant and chemicals are injected into wells to fracture portions of the formation surrounding a selected well section. As discussed in more detail in Unit IV., EPA is requesting comment on the information that should be obtained or disclosed and the mechanism for obtaining or disclosing this information about chemicals and mixtures used in hydraulic fracturing. This mechanism could be regulatory (under TSCA section 8(a) and/or section 8(d)), voluntary (e.g., under the Pollution Prevention Act (PPA) (42 U.S.C. 13101 et seq.)), or a combination of both. EPA is also seeking comment on best management practices for the generation, collection, reporting and/or disclosure of public health and environmental information from or by companies that manufacture, process, or use chemical substances or mixtures in hydraulic fracturing activities—that is, practices or operations that can be implemented and verified toward achieving protection of public health and the environment—and whether voluntary third-party certification, and incentives for disclosure could be valuable tools for improving chemical safety. In addition, the Agency is seeking comment on ways to minimize reporting burdens and costs, avoid duplication of efforts, and maximize transparency and public understanding. Finally, EPA is soliciting comments on incentives and recognition programs that could be used to support the development and use of safer chemicals in hydraulic fracturing.
        B. What is the Agency's authority for this action?
        TSCA section 8(a) (15 U.S.C. 2607(a)) authorizes EPA to promulgate rules under which manufacturers (including importers) and processors of chemical substances must maintain records and submit information as the EPA Administrator may reasonably require. TSCA section 8(a) also authorizes EPA to promulgate rules under which manufacturers and processors of mixtures must maintain records and submit information to the extent the EPA Administrator determines the maintenance of records or submission of reports, or both, is necessary for the effective enforcement of TSCA. TSCA section 8(a) generally excludes small manufacturers and processors of chemical substances or mixtures from the reporting requirements (see 15 U.S.C. 2507(a)). This general exclusion has been codified at 40 CFR 704.5 and 712.25. However, EPA is authorized by TSCA section 8(a)(3)(A)(ii) to require TSCA section 8(a) reporting from small manufacturers and processors with respect to any chemical substance or mixture that is the subject of a rule proposed or promulgated under TSCA section 4, 5(b)(4), or 6, or that is the subject of an order in effect under TSCA section 5(e), or that is the subject of relief granted pursuant to a civil action under TSCA section 5 or 7. TSCA section 8(a) also notes that, to the extent feasible, the EPA Administrator must not require reporting under TSCA section 8(a)(1) that is unnecessary or duplicative.
        TSCA section 8(d) (15 U.S.C. 2607(d)) authorizes EPA to require the submission of lists of health and safety studies conducted or initiated by or for, or known to or reasonably ascertainable by manufacturers, processors, and distributors of (and any person who proposes to manufacture, process, or distribute) any chemical substance or mixture. Certain types or categories of studies may be excluded “if the Administrator finds that submission of lists of such studies are unnecessary to carry out the purposes of [TSCA]” (see TSCA section 8(d)(1)). TSCA section 8(d) also authorizes EPA to require the submission of copies of studies on these lists or copies of studies that are otherwise known by the person submitting the list.
        The Pollution Prevention Act (PPA) (42 U.S.C. 13101 et seq.) makes pollution prevention the national policy of the United States. The PPA identifies an environmental management hierarchy in which pollution “should be prevented or reduced whenever feasible; pollution that cannot be prevented should be recycled in an environmentally safe manner, whenever feasible; pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible; and disposal or release into the environment should be employed only as a last resort . . .” (42 U.S.C. 13103). Among other requirements, the PPA directs EPA to develop improved methods of coordinating, streamlining and assuring public access to data collected under Federal environmental statutes; facilitate the adoption of source-reduction techniques by businesses; and establish an annual awards program to recognize a company or companies that operate outstanding or innovative source reduction programs.
        III. Overview of Information Collection Authority Under Sections 8(a) and 8(d) of TSCA

          A. TSCA Section 8(a)

        TSCA section 8(a) gives EPA authority to require, by rulemaking, chemical manufacturers and processors to maintain records and submit to EPA such reports as EPA may reasonably require, including reports concerning the following, insofar as it is known to or reasonably ascertainable by the person making the report:

        • The common or trade name, the chemical identity, and the molecular structure of each chemical substance or mixture for which such a report is required.
        • The categories or proposed categories of use of each chemical substance or mixture.
        • The total amount of each chemical substance or mixture manufactured or processed, reasonable estimates of the total amount to be manufactured or processed, the amount manufactured or processed for each of its categories of use, and reasonable estimates of the amount to be manufactured or processed for each of its categories of use or proposed categories of use.
        • A description of the byproducts resulting from the manufacture, processing, use, or disposal of each chemical substance or mixture.
        • All existing data concerning the environmental and health effects of each chemical substance or mixture.
        • The number of individuals exposed, and reasonable estimates of the number who will be exposed, to each chemical substance or mixture in their places of employment and the duration of such exposure.
        • The manner or method of disposal of each chemical substance or mixture, and any subsequent changes to such manner or method.
        B. TSCA Section 8(d)
        TSCA section 8(d) authorizes EPA to require manufacturers, processors, and distributors of any chemical substance or mixture and persons who propose to manufacture, process, or distribute in commerce any chemical substance or mixture to submit health and safety studies to EPA. Examples of health and safety studies can be found in 40 CFR 716.3, and include:
        • Epidemiological or clinical studies.
        • Studies of occupational exposure.
        • Health effects studies.
        • Ecological effects studies.
        • Assessments of environmental exposure.
        • Environmental fate studies.
        • Health and safety studies related to surface or ground water sampling and analyses that are aggregated and analyzed to measure exposure.
        IV. Request for Comment
        EPA is requesting comment on the design and scope of potential regulatory or voluntary approaches, or combination of both approaches, to obtain information on chemical substances and mixtures used in hydraulic fracturing. EPA invites comments on all aspects of this ANPR, including the description of hydraulic fracturing activities presented in Unit II.A. Comments should provide enough detail and contain sufficient supporting information in order for the Agency to understand the issues raised and give them the fullest consideration. Comments should include alternatives, rationales, benefits, technological and economic feasibility (including costs), and supporting data. Supporting information should include any information that substantiates your conclusions and recommendations, including, but not limited to: Experiences, data, analyses, studies and articles, and standard professional practices. If referring to a particular well site as an example, please identify the company name of the well site operator, well name, latitude and longitude coordinates and American Petroleum Institute (API) identification number, if available.
        A. Overall Approach To Reporting and Disclosure of Chemical Substances and Mixtures Used in Hydraulic Fracturing
        In this ANPR, EPA is seeking comment on what information should be reported to EPA (or through a CBI cleared third-party certifier) or disclosed publically (by EPA) regarding the identity, quantities, types and circumstances of uses of chemical substances and mixtures used in hydraulic fracturing, as well as what types of health and safety studies should be reported or disclosed. EPA is seeking comment on whether and how data that are claimed to be trade secrets, or CBI, could be reported to EPA (or a third-party certifier) and then aggregated and disclosed while protecting the identities of individual products and firms. EPA is also requesting comment on the appropriate mix of voluntary disclosure and/or regulatory reporting mechanisms. The specific types of information that could be reported or disclosed are discussed in Units IV.C. and IV.G. It should be noted that TSCA section 8(e) requires manufacturers, importers, processors, and distributors to provide EPA with information on any of their chemical substances or mixtures that reasonably supports the conclusion that such substance or mixture presents a substantial risk of injury to health or the environment.
        EPA is requesting comment on the following questions:
        1. Should all information be required to be reported or should there be a voluntary mechanism for some or all information?
        2. Would a combination of mandatory reporting and voluntary disclosure be effective? If so, what would that combination consist of? Why?
        3. What types of information, if any, should be required to be reported? Why?
        4. How could any required reporting activities be designed to better facilitate compliance?
        5. What types of information, if any, should be reported and/or disclosed voluntarily? Why?
        6. What are the best management practices for the generation, collection, reporting and/or disclosure of information from or by companies?
        7. Are there particular systems in place that already use these best management practices? Please identify these systems.
        8. To what extent are these best management practices widely adopted? Please provide evidence regarding the extent of use of best management practices.
        9. How could incentives be structured to ensure effective voluntary disclosure of information on chemical substances and mixtures used in hydraulic fracturing?
        10. Are there incentives that could be used in combination with regulatory requirements for information disclosure to promote practices that go beyond compliance (e.g., incentives that encourage reporting in addition to that required by regulation)?
        11. What information collection tools and resources are available to support and promote safer chemical use and other sustainable practices (e.g., some form of cradle-to-grave chemical management)? Please explain.
        12. What factors should be considered for distinguishing among different types of companies for the purpose of incentives?
        13. What information collection tools and resources are available to support, incentivize, and promote safe and sustainable practices? Please explain.
        14. How could collected information be used to better inform safe and sustainable practices? For example, would providing information or guidance on improved chemical use across different types of firms involved in hydraulic fracturing better inform safe and sustainable practices?
        15. What mechanisms could be developed to make information that is reported to EPA publically disclosed and available?

        16. How could information reported and/or disclosed under any such mechanism be used to better inform research and development of chemical substances and mixtures used in hydraulic fracturing?

        B. Who should report or disclose information on chemical substances and mixtures used in hydraulic fracturing?
        TSCA section 8(a) gives EPA authority to require, by rulemaking, chemical manufacturers and processors to maintain records and submit to EPA reports about chemical substances and mixtures, as well as environmental and health data on those substances and mixtures. The hydraulic fracturing industry includes a variety of companies that could be subject to reporting under TSCA section 8(a). These companies could include chemical manufacturers, chemical suppliers who engage in processing, service providers mixing chemicals on site to create the hydraulic fracturing fluids, and service providers responsible for injecting the hydraulic fracturing fluid into the well to fracture the formation. EPA is requesting comment on whether, in the context of a potential reporting and/or disclosure program, all or any companies should be required to report or whether a specific type or types of company (e.g., chemical supplier) should be required to report and other types (e.g., service provider) be encouraged to report voluntarily.
        1. If any companies are required to report, should different types of companies be required to report different data elements? Please explain.
        2. Should manufacturers (including importers), processors, or both be required to report under TSCA section 8(a)? Why or why not?
        3. Are there additional NAICS codes in addition to 2111 (oil and gas extraction) and 2131 (support activities for mining) that would need to be included in order to cover chemical manufacturers (including importers) and processors in a potential reporting and/or disclosure program?
        4. In what ways do the responsibilities of manufacturers and processors (Ref. 6) overlap? What activities associated with hydraulic fracturing are carried out by the well operator at the well site? EPA understands that service providers or well operators often process chemicals at the drilling site.
        5. Would manufacturers (including importers), service providers, well operators, or all three, know how a chemical substance or mixture is used at well sites? If all types of firms have this information, which type, if any, should be required to report? If neither well operators, nor service providers, nor manufacturers (including anyone who imports chemicals or otherwise undertakes activities that meet the definition of “manufacture” at 40 CFR 704.3) know how a chemical is used at well sites, who would know and how might that information be obtained?
        6. If voluntary mechanisms are used for obtaining information, what mechanisms (e.g., incentive programs) should EPA consider in order to encourage consistent reporting and/or disclosure from different types of companies? Would some mechanisms be more effective for one type of company than another?
        7. Should there be different incentives for different types of companies (e.g., manufacturers vs. processors)?
        8. What information collection tools and resources are available to support and promote safe and sustainable practices? Please explain.
        C. Scope of Reporting or Disclosure of Information on Chemical Substances and Mixtures Used in Hydraulic Fracturing
        In this ANPR, EPA is seeking comment on the information that should be reported or disclosed regarding chemical substances and mixtures used in hydraulic fracturing. EPA is exploring various regulatory approaches, voluntary approaches or a combination of both for obtaining this information.
        As described in Unit III.A., TSCA section 8(a) gives EPA authority to require, by rulemaking, chemical manufacturers and processors to maintain records and submit to EPA such reports as EPA may reasonably require. EPA expects that data obtained could be aggregated to provide a national list of the chemical substances and mixtures used in hydraulic fracturing, providing the Agency with the ability to determine which chemicals are used most frequently. For chemicals that have not been previously well-characterized in terms of their chemical, physical, and toxicological properties, EPA may conduct research to better understand these properties in order to perform a basic risk characterization. Information that could be required from manufacturers (including importers) and processors under a potential reporting program could include:
        1. Basic company information (i.e., company name, mailing address, Web site, and technical contact information).
        2. Steps involved in processing chemicals or mixtures on site before injection. Typical composition and performance standard of hydraulic fracturing fluid as an end use product, before injection.
        3. Steps involved in processing chemicals or mixtures for reuse, recycling, and/or reprocessing in the hydraulic fracturing operation.
        4. Hydraulic fracturing fluid composition:
        i. Common name or trade name of each chemical product in the hydraulic fracturing fluid and a description of each product's function.
        ii. Chemical identity (chemical name and Chemical Abstracts Service Registry Number) of each chemical substance in each product.
        iii. Total volume of the carrier fluid and percentage of the carrier fluid that makes up the total hydraulic fracturing fluid (e.g., water volume and percentage of water in the hydraulic fracturing fluid).
        iv. Actual amount of each chemical substance or product in the hydraulic fracturing fluid in order to understand the loading (e.g., mass or volume).
        5. Production type (i.e., gas and/or oil).
        6. Frequency of use of the chemical substance or mixture for hydraulic fracturing (e.g., number of times or per fracture stage or number of wells).
        7. Number of workers exposed or likely to be exposed to the chemical substance or mixture.
        8. All existing data concerning the human and environmental health effects of the chemical substance or mixture.
        9. Some chemical substances and mixtures used in hydraulic fracturing may react to create other chemical substances and mixtures as products within an on-site mixing apparatus or in the well that is being fractured. EPA is requesting comments on which reporting elements should be included:
        i. If EPA were to require reporting, how should EPA address chemical substances and mixtures which are formed on site? Why?
        ii. Is there other information obtainable under TSCA section 8(a) that should be included in a proposed TSCA section 8(a) rule? What are the chemical safety benefits (e.g., potential reduction of risk to human health and environment) of obtaining this information? Explain.

        iii. Should EPA consider including reporting on any combination of water and/or chemicals introduced or intended to be introduced into an oil or gas well for the purpose of maintaining or improving the function and productivity of the well, including recovery methods, (e.g., acid treatments, corrosion inhibitors, scale reducers, biocides)? Why or why not? EPA is interested in information regarding the frequency, duration, concentration, and volume of use of such chemicals or chemical mixtures to enhance the Agency's understanding of well maintenance practices, in order to evaluate the need for additional disclosure.
        10. While EPA could require manufacturers and processors to report this information, the Agency could also encourage companies engaged in hydraulic fracturing to voluntarily disclose it. EPA is requesting comments on reporting elements which should be included:
        i. Which elements (as discussed earlier in Unit IV.C.), if any, may benefit from being proposed as part of a TSCA section 8(a) rule? Which elements, if any, may benefit better from being reported and/or disclosed under a voluntary program?
        ii. Are there data elements (from those discussed earlier in Unit IV.C.) for which a hybridized reporting and/or disclosure system (e.g., some regulatory elements, some voluntary elements) would be more efficient or beneficial?
        D. Use of Third-Parties
        EPA is requesting comments on the use of third-parties for the collection of information on chemical substances used in hydraulic fracturing and/or to certify the use of best practices.
        1. Should EPA consider implementing third-party certification (for certifying reporting, practices and other aspects) and/or third-party collection of information about hydraulic fracturing operations in addition to or in lieu of a mandatory reporting or voluntary disclosure program?
        2. What would such a certification program look like?
        3. Are there existing programs that already certify best practices? Are they effective? Are they independent? Could they be improved? How?
        4. What should be considered (e.g. standards for third-parties, standards for collecting chemical information, costs) in implementing a third-party program?
        5. How should chemical information be managed by third-parties? Are there specific roles that third-parties should have in data management? Please explain.
        6. How should a third-party certifier be funded? How could perceived or actual bias be minimized?
        E. Reporting Threshold and Frequency of Reporting or Disclosure
        EPA is interested in comments regarding the threshold for the size of entities that should be required or encouraged to report or disclose information on chemical substances and mixtures used in hydraulic fracturing and environmental and health data on those substances and mixtures. EPA is also interested in comments regarding how often reporting or disclosure should take place:
        1. Are there thresholds that might be appropriate to limit reporting by small manufacturers or processors under either a regulatory or a voluntary program (e.g., the thresholds that define “small manufacturer” in 40 CFR 704.3 and 712.25)? Why? If available, how would the recommended reporting threshold affect cost to the reporting entity? How might different reporting thresholds affect the usefulness of the data provided?
        2. Given possible changes in the composition of hydraulic fracturing fluids over time and changes in ownership of a well, how often and when should an entity report information to EPA or publicly disclose it?
        3. What would be the effect of changes in the frequency of reporting and/or disclosure on the overall cost of reporting or disclosure? What would be the effect of changes in level of aggregation or other aspects of reporting and/or disclosure?
        F. Data Collection Efficiency
        EPA believes that any mechanism for reporting and/or disclosure of information on chemical substances and mixtures should be structured in a manner that minimizes the potential for duplication and overlap.
        1. EPA requests comment on how best to minimize duplicative reporting and/or disclosure requirements, particularly for companies that may also report to the BLM, state agencies, and to other parties. For example, should EPA limit its data collection to items not collected by other parties? How much overlap is acceptable?
        2. How can the Agency achieve the goal of efficient data collection while also maximizing transparency and public understanding?

        3. In order to encourage transparency and information sharing while minimizing duplication, what information collection repository or database should EPA use? Should EPA develop a repository or use an existing one such as FracFocus (Ref. 7) or http://www.data.gov? If an existing repository is recommended, indicate which repository and why. Are any changes or enhancements recommended to this existing repository?
        4. EPA believes that any TSCA reporting requirements should complement existing reporting programs and data sources, such as state databases and Web sites like FracFocus in order to avoid duplication. How could this be achieved?
        G. Health and Safety Studies of Chemicals and Mixtures Used in Hydraulic Fracturing
        EPA is seeking comment on potential options for reporting or disclosure of health and safety studies for chemical substances and mixtures used in hydraulic fracturing.
        As described in Unit III.B., TSCA section 8(d) authorizes EPA to require manufacturers, processors, and distributors of any chemical substance or mixture and persons who propose to manufacture, process, or distribute in commerce any chemical substance or mixture to submit health and safety studies to EPA. One mechanism for the collection of these studies is TSCA section 8(d). Other mechanisms could include voluntary approaches. EPA is requesting comment on the types of companies that would report or disclose health and safety studies. EPA also is requesting comment on whether companies should be required to report studies or be encouraged to disclose studies, or whether a combination of regulatory and voluntary approaches should be used to obtain health and safety studies.
        1. Should all manufacturers (including importers), processors, and distributors provide lists or copies of health and safety studies or should reporting only be required of some types of companies? Why or why not?
        2. Are there existing mechanisms in place, including non-regulatory mechanisms, for EPA to obtain these studies? If not, what would be an effective regulatory approach and/or voluntary mechanism for EPA to obtain these studies?
        3. Is there an approach that more effectively encourages further health and safety studies?
        4. Some chemical substances and mixtures used in hydraulic fracturing are more studied than others. Some are considered to be well-characterized in terms of hazard and exposure information. If EPA were to require reporting, should EPA limit reporting requirements to the chemical substances and mixtures that EPA believes are not well-characterized? Why?
        5. If a TSCA section 8(d) rule were promulgated, should it require reporting of studies for all chemical substances and mixtures used in hydraulic fracturing or only a subset? Why? If only certain chemicals should be included in the rule, which ones should EPA include?

        6. Are there particular types of studies that should be required to be submitted or should all health and safety studies be required to be submitted? Why?

        7. Are there studies that are of greater interest if they are conducted by a particular entity, e.g., service providers? For example, an assessment of environmental exposure may be viewed as more important because of the environment that is the focus of the study.
        8. Would it be more efficient (timely and cost effective) to submit health and safety studies to a third-party? Why or why not? If so, why and what type of third-party?
        H. Safer Chemicals and Transparency
        Incentives and recognition programs could be used to support the development and use of safer chemicals (both those created deliberately and inadvertently) in hydraulic fracturing. Safer chemicals are generally less toxic to human health and the environment, and are less persistent and bioaccumulative than their alternatives. Under an EPA-sponsored voluntary initiative, EPA could provide resources and recognition for companies committed to promoting and using safe and sustainable practices. Such a voluntary program could help companies meet corporate sustainability goals by providing the means to, and an objective measure of, environmental stewardship. Information that could be collected or disclosed under such a voluntary program could be used to verify a company's eligibility for award or recognition in relation to identified measures and goals.
        There are existing programs that encourage the development of safer chemicals (e.g., the Green Chemistry program and the Sustainable Futures program) or the use of safer substitutes (e.g., Design for the Environment) which may serve as models for application to hydraulic fracturing. A similar program focusing on chemicals used in hydraulic fracturing could speed adoption by well owners, operators and suppliers of safer chemicals. The program could also increase public understanding about chemical choice and use in hydraulic fracturing.
        EPA would like to determine whether these programs could be used as possible models for consideration of chemicals and mixtures used in hydraulic fracturing and whether there are other programs that would be more effective. In order to determine whether replacement chemicals are safer, it would be important to take into account the effectiveness and potential associated risks with the alternative chemical. EPA requests comment on strategies for creating incentives and voluntary approaches for the development and use of safer chemicals.
        1. Are there other TSCA sections that could also further support the use and development of safer chemicals more effectively?
        2. What programs are appropriate to encourage the use of safer chemicals already on the market?
        3. For this industry, are existing programs that encourage the development of safer chemicals appropriate? Could EPA change those programs to make them more effective in inducing well operators to use safer chemicals? How?
        V. References

        The following is a list of the materials that are specifically referenced in this document. The docket identified under ADDRESSES includes these references and other information considered by EPA. For assistance, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

          1. Toxic Substances Control Act, section 3 (15 U.S.C. 2602).

          2. Earthjustice and 114 other organizations. Letter from Deborah Goldberg, Earthjustice to Wendy Cleland-Hamnett, Director, Office of Pollution Prevention and Toxics. Re: Citizen Petition Under Toxic Substances Control Act Regarding the Chemical Substances and Mixtures Used in Oil and Gas Exploration or Production. August 4, 2011. Available on-line at: http://www.epa.gov/oppt/chemtest/pubs/Section_21_Petition_on_Oil_Gas_Drilling_and_Fracking_Chemicals8.4.2011.pdf.

          3. EPA. Letter from EPA Assistant Administrator Steven A. Owens to Deborah Goldberg, Earthjustice, Re: TSCA Section 21 Petition Concerning Chemical Substances and Mixtures Used in Oil and Gas Exploration or Production. November 2, 2011. Available on-line at: http://www.epa.gov/oppt/chemtest/pubs/SO.Earthjustice.Response.11.2.pdf.

          4. EPA. Letter from Assistant Administrator Steven A. Owens to Deborah Goldberg, Earthjustice, Re: TSCA Section 21 Petition Concerning Chemical Substances and Mixtures Used in Oil and Gas Exploration or Production. November 23, 2011. Available on-line at: http://www.epa.gov/oppt/chemtest/pubs/EPA_Letter_to_Earthjustice_on_TSCA_Petition.pdf.

          5. EPA. Chemical Substances and Mixtures Used in Oil and Gas Exploration or Production; TSCA Section 21 Petition Reasons for Agency Response. Federal Register (78 FR 41768, July 11, 2013) (FRL-9339-4).
          6. TSCA Statutory Definitions Document. February 11, 2014.

          7. FracFocus Chemical Disclosure Registry. Available on-line at: http://www.fracfocus.org.

        VI. Statutory and Executive Order Reviews
        Under Executive Orders 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993) and 13563, entitled “Improving Regulation and Regulatory Review” (76 FR 3821, January 21, 2011), this is a “significant regulatory action” because it raises novel legal and/or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under these Executive Orders and any changes made in response to OMB recommendations have been documented in the docket for this action.

        Because this document does not impose or propose any requirements, and instead seeks comments and suggestions for the Agency to consider in possibly developing a subsequent proposed rule, the various other review requirements that apply when an agency imposes requirements do not apply to this action. Nevertheless, as part of your comments on this ANPR, you may include any comments or information that could help the Agency to assess the potential impact of a subsequent regulatory action on small entities pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); to consider voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (15 U.S.C. 272 note); to consider environmental health or safety effects on children pursuant to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997); to consider human health or environmental effects on minority or low-income populations pursuant to Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994); or to consider potential impacts to state and local governments or tribal governments.
        The Agency will consider such comments during the development of any subsequent rulemaking as it takes appropriate steps to address any applicable requirements.

          List of Subjects in 40 CFR Chapter I

          Environmental protection, Chemicals, Confidential business information, Exploration and production, Fracking, Hazardous substances, Hydraulic fracturing, Oil and gas, Reporting and recordkeeping.

          Dated: May 9, 2014.
          Gina McCarthy,
          Administrator.

      [FR Doc. 2014-11501 Filed 5-16-14; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF TRANSPORTATION
        Federal Railroad Administration
        49 CFR Parts 229, 232, and 238
        [Docket No. FRA-2006-26175, Notice No. 2]
        RIN 2130-AB84
        Electronically Controlled Pneumatic Brake Systems

          AGENCY:
          Federal Railroad Administration (FRA), Department of Transportation (DOT).

          ACTION:
          Notice of public hearings and technical conference.

          SUMMARY:
          By notice of proposed rulemaking (NPRM) published on September 4, 2007 (71 FR 50820), FRA proposed revisions to the regulations governing the power braking systems and equipment used in freight and other non-passenger railroad train operations. The proposed revisions are intended to permit and promote the implementation of electronically controlled pneumatic (ECP) brake systems in a safe and effective manner. In that proposed rule, FRA stated that it would hold an oral public hearing on a date to be announced in a forthcoming notice, at which the Administrator or his delegated representative may preside. This document announces public hearings and a technical roundtable discussion.

          DATES:
          (1) Public Hearings: Two public hearings will be held on the dates and at the locations listed below to provide interested parties the opportunity to comment on the proposed revisions contained in the NPRM. A technical roundtable will be held in conjunction with the second hearing. The dates of the public hearings are as follows:

        Thursday, October 4, 2007, at 9:30 a.m. in Washington, DC.
        Friday, October 19, 2007, at 8:30 a.m. in the Chicago, Illinois area.

        (2) Technical Roundtable: A technical roundtable will be held on Friday, October 19, 2007, directly following the public hearing scheduled for that day. The technical roundtable is intended to provide interested parties the opportunity to comment on the proposed revisions contained in the NPRM and to provide interested parties the ability to specifically discuss various technical issues related to the implementation and operation of ECP brake systems.

          ADDRESSES:
          (1) Public Hearings: Hearings to provide interested parties the opportunity to comment on the proposed revisions contained in the NPRM will be held at these locations:

            Washington, DC: Washington Plaza Hotel, 10 Thomas Circle, NW., Washington, DC 20005.

            Chicago, IL area: Crowne Plaza Chicago O'Hare, 5440 North River Road, Rosemont, IL 60018.
          (2) Technical Roundtable: A technical conference will be conducted in the Chicago, Illinois at: Crowne Plaza Chicago O'Hare, 5440 North River Road, Rosemont, IL 60018. See SUPPLEMENTARY INFORMATION section for details.
          (3) Docket Clerk: Written notification should identify the docket number and must be submitted to the FRA Docket Clerk, Office of Chief Counsel, Federal Railroad Administration, 1120 Vermont Avenue, NW., RCC-10, Stop 10, Washington, DC 20590 or faxed to (202) 493-6068.

          FOR FURTHER INFORMATION, CONTACT:
          James Wilson, Office of Safety Assurance and Compliance, Motive Power and Equipment Division, RRS-14, Mail Stop 25, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6259); or Jason Schlosberg, Trial Attorney, Office of Chief Counsel, Mail Stop 10, Federal Railroad Administration, 1120 Vermont Avenue, NW., Washington, DC 20590 (telephone 202-493-6032).

        SUPPLEMENTARY INFORMATION:
        Interested parties are invited to present oral statements and proffer evidence at the hearings. The hearings will be informal and will be conducted by a representative designated by FRA in accordance with FRA's Rules of Practice (49 CFR 211.25). The hearings will be non-adversarial proceedings; therefore, there will be no cross examination of persons presenting statements or proffering evidence. An FRA representative will make an opening statement outlining the scope of the hearing. After all initial statements have been completed, those persons wishing to make a brief rebuttal will be given the opportunity to do so in the same order in which the initial statements were made. Additional procedures, as necessary for the conduct of the hearing, will be announced at the hearing.
        The purpose of the hearings is to receive oral comments regarding the specific provisions contained in the proposed rule and to receive evidence and to develop findings to determine whether FRA should invoke its discretionary authority under 49 U.S.C. 20306 to exempt application of section 20303 as it applies to freight trains and freight cars operating with ECP brake systems. Section 20303 requires operators to transport rail vehicles with defective or insecure equipment “from the place at which the defect or insecurity was first discovered to the nearest available place at which the repairs can be made” to avoid incurring civil penalties related to such movement. FRA would be authorized to grant relief from section 20303 only if it were to make findings required by section 20306. That section is reproduced here for ready reference:

          Section 20306. Exemption for Technological Improvements

          (a) General.—Subject to subsection (b) of this section, the Secretary of Transportation may exempt from the requirements of this chapter railroad equipment or equipment that will be operated on rails, when those requirements preclude the development or implementation of more efficient railroad transportation equipment or other transportation innovations under existing law.
          (b) Conditions for exemption.—The Secretary may grant an exemption under subsection (a) of this section only on the basis of—
          (1) findings based on evidence developed at a hearing; or
          (2) an agreement between national railroad labor representatives and the developer of the new equipment or technology.

        To permit and encourage implementation of ECP brake system technology without hindering safety, FRA proposes to invoke its discretionary authority under 49 U.S.C. 20306 to exempt ECP brake-equipped trains and equipment from the specific statutory requirements contained in 49 U.S.C. 20303.
        The technical roundtable is intended to provide interested parties an informal forum to discuss issues and concerns related to the implementation and operation of trains and equipment utilizing ECP brake system technology. The roundtable discussion may address specific technical issues that might not be addressed in the oral comments presented at the public hearings. This format will provide a more open, freeform exchange of ideas and views related to the technology. The procedures for the technical roundtable will be announced by the FRA representatives conducting the discussions. A transcript of the discussions will be made part of the public docket in this proceeding.

        Any person wishing to participate in either the public hearings or the technical conference should notify the Docket Clerk by mail or at the address or fax number provided in the ADDRESSES section at least five working days prior to the date of the hearing or technical roundtable discussion and submit three copies of the oral statement that he or she intends to make at the proceeding. The notification should identify the party the person represents, and the particular subject(s) the person plans to address. The notification should also provide the Docket Clerk with the participant's mailing address and other contact information. FRA reserves the right to limit participation in the hearings of persons who fail to provide such notification.

          Issued in Washington, DC, on September 7, 2007.
          S. Mark Lindsey,
          Chief Counsel, Federal Railroad Administration.

      [FR Doc. E7-18169 Filed 9-13-07; 8:45 am]
      BILLING CODE 4910-06-P


        DEPARTMENT OF THE INTERIOR
        Bureau of Land Management
        43 CFR Parts 3430 and 3470
        [WO-320-1430-PB-24 1A]
        RIN 1004-AD43
        Coal Management: Noncompetitive Leases; Coal Management Provisions and Limitations

          AGENCY:
          Bureau of Land Management, Interior.

          ACTION:
          Proposed rule.

          SUMMARY:
          The purposes of this proposed rule are to correct a technical error relating to coal lease modifications made in a final rule published on September 28, 1999 (64 FR 52239)(the 1999 rule), and to amend the regulations to reflect the statutory increase in the maximum acreage of Federal leases for coal that may be held by an individual or entity in any one state as well as nationally.

          This rule would revise the regulations of the Bureau of Land Management (BLM) to reflect correction of a technical error regarding the requirement of a public hearing and publication (in the Federal Register and a general circulation newspaper) of a notice of availability of environmental analysis documents for coal lease modifications. This error was made in conjunction with the BLM's September 1999 regulatory revisions incorporating public participation procedures into the competitive coal leasing regulations.

          DATES:
          Comments on the proposed rule must be received or postmarked by February 19, 2002, to be assured consideration in developing a final rule.

          ADDRESSES:
          Mail: Director (630), Bureau of Land Management, Administrative Record, Room 401 LS, 1849 C Street, NW, Washington, DC 20240. Personal or messenger delivery: Room 401, 1620 L Street, NW, Washington, DC 20036.

          For information about the requirements for filing comments and how to file comments electronically, see the SUPPLEMENTARY INFORMATION section under “Public Comment Procedures and Information.”

          FOR FURTHER INFORMATION CONTACT:
          Mary Linda Ponticelli at (202) 452-0350.

        SUPPLEMENTARY INFORMATION:

          I. Public Comment Procedures and Information
          II. Background
          III. Discussion of the Rule
          IV. Procedural Matters

        I. Public Comment Procedures and Information
        A. How Do I Comment on the Proposed Rule?
        If you wish to comment, you may submit your comments by any one of several methods.
        • You may mail comments to Director (630), Bureau of Land Management, Administrative Record, Room 401 LS, 1849 C Street, NW, Washington, DC 20240.
        • You may deliver comments to Room 401, 1620 L Street, NW, Washington, DC 20036.
        Please make your written comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing.

        BLM may not necessarily consider or include in the Administrative Record for the final rule comments that you send after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES).
        B. May I Review Comments Submitted by Others?

        Comments, including names and street addresses of respondents, will be available for public review at the address listed under “ADDRESSES: Personal or messenger delivery” during regular business hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays.
        Individual respondents may request confidentiality, which we will honor to the extent allowable by law. If you wish to withhold your name or address, except for the city or town, you must state this prominently at the beginning of your comment. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety.
        II. Background

        On September 28, 1999, in conjunction with a settlement agreement in the lawsuit, Natural Resources Defense Council, et al. v. Jamison, et al., Civil No. 82-2763 (D. D.C.), the Bureau of Land Management (BLM) issued a final rule (64 FR 52239) to establish regulatory procedures by which the public may participate in the Bureau of Land Management's regional coal leasing process. We issued the final rule, which became effective on October 28, 1999, to satisfy terms of a July 1997 settlement agreement (Civil No. 82-2763 (D.C. Circuit No. 93-5029) in which the Department agreed to identify in BLM's regulations the points where the public may participate in regional coal leasing decisions. In addition, the final rule amended the regulations in part 3400 to conform to statutory changes under the Unfunded Mandates Reform Act of 1995, exempting several types of meetings from Federal Advisory Committee Act requirements.
        A. Lease Modifications
        Section 3432.3, which addresses the terms and conditions of a coal lease modification, currently requires compliance with the provisions of 43 CFR 3425.3. At the time we wrote the regulations in subpart 3432 governing lease modifications, former § 3425.3(a), addressing lease modification terms and conditions, similarly provided that BLM could not modify a lease until you met the requirements of § 3425.3. Former § 3425.3 required BLM to prepare an environmental assessment or impact statement before approving a lease modification.
        To incorporate public participation procedures addressed in BLM's Competitive Coal Leasing Handbook, the 1999 regulatory revision to 43 CFR 3425.3 included the additional requirements of—
        (1) A public hearing, and
        (2) publication of notices of availability of the environmental analysis document for coal leasing.
        By means of the cross-reference in § 3432.3(c), these new requirements imposed on new lease sales in § 3425.3 by the 1999 rule automatically applied to lease modifications under § 3432.3. We did not intend this to be the effect of the 1999 rule.
        In revising the competitive coal leasing regulations (43 CFR part 3420) to incorporate public participation procedures for competitive leasing, we intended to impose the requirements of a public hearing and publication of notices of availability of draft environmental analysis documents only on new coal lease sales, not on non-competitive coal lease modifications issued under subpart 3432. Therefore, our failure to remove the cross reference in § 3432.3(c) to the requirements of § 3425.3 when we revised the latter in 1999 was a technical error, which we propose to correct in this rule.
        Lease modifications often ensure the recovery and receipt of fair market value of small areas of unleased Federal coal that may be discovered during the mining of an adjacent Federal coal lease. In many cases, BLM must process a modification expeditiously to avoid the bypass of unleased Federal coal. Unlike competitive coal leasing, where the lease acreage may be up to 5,120 acres, the maximum allowable acreage for lease modifications is a total of 160 acres per lease, regardless of the number of times BLM modifies the lease. Due to variability in exploration data and the coal geology, these small areas of unleased Federal coal are not easily identified with the limited data available when we originally configure a lease. Such areas typically cannot be developed as an independent lease because of their size and configuration. Therefore, incorporation of these areas into an existing coal lease through a coal lease modification facilitates achieving fair market value and maximum economic recovery of Federal coal resources.

        Section 3432.3(c) provides that BLM cannot approve a lease modification until the lessee or operator complies with the provisions of § 3425.3. Although § 3425.3 currently contains specific procedures relating to the preparation of environmental analysis documents, its focus is competitive lease sales. Since the 1999 revised version of § 3425.3 applies exclusively to competitive coal leasing, it is not intended to apply to a lease modification. The change in this proposed rule would eliminate the recently imposed requirement of publication of notices of availability and a public hearing for environmental analysis documents relating to coal lease modifications. This is in keeping with the intent of the Natural Resources Defense Council lawsuit settlement agreement, which did not extend to non-competitive coal lease modifications. It is also consistent with the preamble to the existing rule (64 FR 12142, March 11, 1999), which stated: “This proposed rule does not substantially change the leasing-on-application process.”
        B. Acreage Limitation

        On October 23, 2000, the United States Senate passed S. 2300, which became Public Law 106-463 on November 7, 2000. This law, known as the Coal Competition Act of 2000, amended Section 27(a) of the Mineral Leasing Act (30 U.S.C. 184(a)) to increase the amount of acreage of Federal coal leases, or permits that an individual or entity may hold in a single state from 46,080 acres to 75,000 acres and raised the national acreage limit from 100,000 acres to 150,000 acres.
        As noted in Public Law 106-463, the Federal lands containing some of the nation's large commercial deposits of coal are located in Utah, Montana, and Wyoming. The acreage limitations are causing difficulty for coal producers in Wyoming and Utah. The sub-bituminous coal from these mines is low in sulfur, making it the cleanest burning coal for energy production. The present acreage limitation of 46,080 acres per state for Federal coal leases has been in place since 1964, and was not changed with the passage of the Federal Coal Leasing Amendments Act of 1976. Congress recently raised the acreage limits for other minerals. For example, currently, the single-state lease acreage limit of 46,080 acres for coal is less than the single-state Federal lease limit for potassium (96,000 acres) and for oil and gas (246,080 acres).
        Congress determined that the per-state increase in acreage to 75,000 acres and the national acreage increase to 150,000 acres is warranted by modern mine technology, changes in industry economics, greater global competition, and need to conserve the Federal resource. Increased acreage limits will help existing coal lessees avoid premature closure, make better long-term business decisions about infrastructure investments based on the certainty of more available acreage, and otherwise maintain the vitality of the domestic coal industry. Furthermore, the increase in acreage limits will ensure continuation of valuable revenues to Federal and state governments and energy to the American public from coal production on Federal lands.
        The amount of acreage that any lessee or operator controls will have no effect on the MLA requirement to produce commercial quantities of coal within 10 years of lease issuance. The statutory penalty for not having met this requirement is cancellation of the lease (30 U.S.C. 184(h)(1)).
        III. Discussion of the Rule
        In order to correct the previously discussed technical error relating to lease modifications, we plan to amend regulation 43 CFR 3432.3 by removing the cross reference to 43 CFR 3425.3 and revising subsection (c). We have also added a new paragraph (d) to require review by the Secretary of Agriculture if the proposed coal lease modification affects National Forest System lands. This is not a new requirement. It appears in § 3425.3(b) of the current regulations, where it applies to new leases. The previous § 3432.3 applied this requirement to modifications as well by means of a cross-reference. Since this proposed rule removes the cross-reference, we need to add the requirement itself to § 3432.3. There is no substantive change in the regulations, other than removing the unintended requirement for notice and a hearing on proposed coal lease modifications.
        This rule also amends § 3472.1-3 to reflect the new coal lease acreage limits set by Public Law 106-463 by removing the references to the previous acreage limits, and substituting the new numbers established by Public Law 106-463.
        IV. Procedural Matters
        National Environmental Policy Act

        BLM has prepared an environmental assessment (EA) and has found that this proposed rule would not constitute a major Federal action significantly affecting the quality of the human environment under section 102(2)(C) of the Environmental Protection Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). As discussed above, this rule would implement a technical correction to the public participation rule completed on September 28, 1999 (64 FR 52239) and a change to the Mineral Leasing Act which was made by Congress. The amendment of the Mineral Leasing Act changed the acreage limitations for coal leases. As stated in the EA, the proposed rule should lead to more efficient production and economic recovery of the coal resource. However, it should not in and of itself lead to new mining. While more efficient mining may have environmental consequences, BLM will consider these consequences on a case-by-case basis in preparing environmental analyses before issuing a new coal lease or modifying an existing one. Therefore, a detailed statement under NEPA is not required. We have placed the EA and the Finding of No Significant Impact (FONSI) on file in our Administrative Record at the address specified in the ADDRESSES section. We invite the public to review these documents and suggest that anyone wishing to submit comments in response to the EA and FONSI do so in accordance with the Written Comments section above.
        Executive Order 12866, Regulatory Planning and Review
        This proposed rule is not a significant regulatory action and was not subject to review by Office of Management and Budget under Executive Order 12866. This rule will not have an annual effect of $100 million or more on the economy. The rule affects coal leasing in only two ways: shortening the lease modification procedure, and increasing lease acreage limitations.

        Further, historically, lease modifications have not had significant economic effects on the economy. In Fiscal Year 2000, there were 311 coal leases of various kinds, generating royalties of $315,166,348 on production of 392,943,074 tons of federal coal, with an average market value of $7.92 per ton, from 461,883 acres of public lands. Of these leases, in FY 2000, only 2 leases were subjects of lease modification. Since the maximum acreage that can be added by a modification is 160 for the life of the lease, it is clear that the economic effect of lease modifications is tiny compared with the coal program as a whole. The largest number of lease modifications that BLM has processed in the past few years has been 6, in FY 1998, affecting a total of 733 acres. Analyzing this strictly from averages, and using the value from FY 2000, the market value of coal affected by these modifications should have been about $4,738,000 in FY 1998, assuming, of course, that it all would have been immediately available for mining in that year. Total value for other recent years, based on the lower numbers and acreages of lease modifications shown in the accompanying chart, should have been only a fraction of this value. The following table summarizes lease modifications over the past few years.

          BLM Coal Lease Modifications, FY1997-FY2001

            State
            FY1997
            Lease mods
            Acres
            FY1998
            Lease mods
            Acres
            FY1999
            Lease mods
            Acres
            FY2000
            Lease mods
            Acres
            FY2001 (through 06-30-2001)

            Lease mods
            Acres

            Colorado
            1
            100
            1
            160

            2
            288

            Kentucky

            1
            160

            Montana

            3
            303
            1
            10

            Utah
            1
            133
            2
            240
            2
            200

            1
            122

            Total
            2
            233
            6
            703
            3
            210
            2
            288
            2
            282

        Of course, since we do not know precisely how much coal was produced from the lease modifications shown, we state these dollar figures only to provide a sense of how small the effect of lease modifications is, compared with the threshold in the executive order. Further, the effect of the mistake that we are correcting in this rule was only to extend the time required and increase the cost of processing a lease modification. Therefore, the effects of this proposed rule amount to a financial benefit to the coal industry due to reducing the time required for lease modifications and the administrative cost of processing them for both industry and BLM, which will be something less than the value of the modification itself.

        The estimated additional costs to the lessee for processing a lease modification application inadvertently imposed by the 1999 rule were based on a delay of 2 to 3 months for allowing public input. The reduced costs to BLM and the lease modification applicant from avoiding these delays are difficult to segregate and quantify. As a minimum, we estimate the savings in processing costs (for Federal Register processing and document preparation) will approach $10,000 per lease modification application. Assuming a average number of lease modification applications per year of 3, the total savings may be nearly $30,000.
        The other element of savings created by this proposed rule is the reduction in opportunity costs. The unintended consequence of the 1999 rule was that some operators may not have been able to develop the resources contained in the lease modifications in a timely manner, or at all. Those costs would have been imposed if, due to the additional processing time, the lease modification could not be completed in time to allow recovery of the resources. If the lease modification is not processed in time for the coal it contains to be mined with the rest of the coal in the lease, the public will lose revenues from bonus payments and royalties. We estimate that this proposed rule will enable the public to avoid bonus and royalty revenue losses of about $2,200 per acre on average, and with an expected 3 modifications at a maximum of 160 acres each, the total revenue impact is about $1,056,000 per year, which, though substantial, is less than 1 percent of the total coal royalty revenues for FY 2000, and far less than the $100 million annual threshold in the Executive Order.
        The second change only matches our regulations to what the law already requires BLM to do. We cannot quantify the economic impact of increasing the acreage limitations, because it would involve what would amount to speculation about future coal leases or mergers of current coal lessees. We do, however, see this a positive for industry in that it will allow greater flexibility for coal operators to maintain coal reserves that are readily available for production and consumption. Currently, lessees can be required to wait as long as 10 years before they can relinquish a lease after production has ended to allow for proof of successful reclamation. The acreage in a lease that has been mined out but not reclaimed counts the same to the state and national acreage limitations as a new lease that has never been mined.
        The rule will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities. Economic recovery of coal will be enhanced, bypasses will be minimized, and efficiency of mining will be improved. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the right or obligations of their recipients; nor does it raise novel legal or policy issues.
        Clarity of the Regulations
        Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make this rule easier to understand, including answers to questions such as the following:
        (1) Are the requirements in the regulations clearly stated?
        (2) Does the rule contain technical language or jargon that interferes with its clarity?
        (3) Does the format of the rule (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce its clarity?
        (4) Would the rule be easier to understand if it were divided into more (but shorter) sections? (A “section” appears in bold type and is preceded by the symbol “§ ” and a numbered heading.)
        (5) Is the description of the rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful in understanding the rule? How could this description be more helpful in making the rule easier to understand? Please send any comments you have on the clarity of the regulations to the address specified in the ADDRESSES section.
        Regulatory Flexibility Act

        Congress enacted the Regulatory Flexibility Act of 1980 (RFA), as amended, 5 U.S.C. 601-612, to ensure that government regulations do not unnecessarily or disproportionately burden small entities. The RFA requires a regulatory flexibility analysis if a rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. This rule, as described above, merely implements a statutory change to the regulations that apply to leasing Federal coal resources, and the rule change itself will not have a significant impact on any small entities. Rather, it is the legislation which affects these entities. The regulations make no substantive change beyond what Congress has already enacted. Further, the rule corrects a technical error in the final rule published on September 28, 1999 (64 FR 52239), which was fully analyzed for RFA compliance when published. Therefore, BLM has determined under the RFA that this proposed rule would not have a significant economic impact on a substantial number of small entities.
        Small Business Regulatory Enforcement Fairness Act (SBREFA)
        This proposed rule is not a “major rule” as defined at 5 U.S.C. 804(2). This rule merely makes a technical correction in the final rule published on September 28, 1999 (64 FR 52239), and implements a change to the state acreage limits that has been made by Congress. This rule is limited to making BLM's regulations consistent with the law.
        Unfunded Mandates Reform Act

        This proposed rule would not impose an unfunded mandate on state, local, or tribal governments or the private sector of more than $100 million per year; nor would this proposed rule have a significant or unique effect on state, local, or tribal governments or the private sector. As discussed above, this rule would merely change BLM's coal leasing regulations regarding acreage limitations to comply with Public Law 106-463 and make a technical correction to the coal leasing regulations regarding lease modifications. Therefore, BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.).
        Executive Order 12630, Governmental Actions and Interference With Constitutionally Protected Property Rights (Takings)
        This rule would not represent a government action capable of interfering with constitutionally protected property rights. The rule would be limited to changes reflecting Congress's amendment raising the state and nationwide acreage limits for coal leases, and correcting a technical error relating to regulations governing coal lease modifications. Therefore, the Department of the Interior has determined that the rule would not cause a taking of private property or require further discussion of takings implications under this Executive Order.
        Executive Order 13132, Federalism
        This rule would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The rule would be limited to changes to reflect Congress's amendment raising the acreage limits for coal leases and to correct a technical error pertaining to coal lease modifications. Therefore, in accordance with Executive Order 13132, BLM has determined that this rule would not have sufficient Federalism implications to warrant preparation of a Federalism Assessment.
        Executive Order 12988, Civil Justice Reform
        Under Executive Order 12988, the Office of the Solicitor has determined that this proposed rule would not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of the Order.
        Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
        This rule would not be a significant energy action. It will not have an adverse effect on energy supplies. The rule should have a favorable effect on energy production. It should improve efficiency in production by increasing acreage limitations and by removing procedural requirements inadvertently and erroneously applied to lease modifications in an earlier rule.
        Paperwork Reduction Act

        This rule would not contain information collection requirements that the Office of Management and Budget must approve under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

        Consultation and Coordination With Indian Tribal Governments (E.O. 13175)
        In accordance with E.O. 13175, we have found that this proposed rule would not include policies that have tribal implications. Since this rule would not propose significant changes to BLM policy and would not specifically involve Indian reservation lands, we have determined that the government-to-government relationships should remain unaffected.
        Principal Author
        The principal author of this rule is Mary Linda Ponticelli of the Solid Minerals Group, assisted by Ted Hudson of the Regulatory Affairs Group, Bureau of Land Management, Washington, DC.

          List of Subjects
          43 CFR Part 3430
          Administrative practice and procedure; Coal; Government contracts; Intergovernmental relations; Mines; Public lands—mineral resources; Public lands—rights-of-way; Reporting and recordkeeping requirements.
          43 CFR Part 3470
          Coal; Government contracts; Mineral royalties; Mines; Public lands—mineral resources; Reporting and recordkeeping requirements; Surety bonds.

          Dated: January 2, 2002.
          J. Steven Griles,
          Deputy Secretary of the Interior.

        Under the authorities cited below, and for the reasons stated in the Supplementary Information, BLM proposes to amend Subchapter C, Chapter II, Subtitle B of Title 43 of the Code of Federal Regulations, as follows:

          PART 3430—NONCOMPETITIVE LEASES
          1. The authority citation for part 3430 continues to read as follows:

            Authority:
            30 U.S.C. 181 et seq.; 30 U.S.C. 351-359; 30 U.S.C. 521-531; 30 U.S.C. 1201 et seq.; and 43 U.S.C. 1701 et seq.

            Subpart 3432—Lease Modifications

          2. Amend § 3432.3 by revising paragraph (c) and adding a new paragraph (d) to read as follows:

            § 3432.3
            Terms and conditions.

            (c) Before modifying a lease, BLM will prepare an environmental assessment or environmental impact statement covering the proposed lease area in accordance with 40 CFR parts 1500 through 1508.
            (d) For coal lease modification applications involving lands in the National Forest System, BLM will submit the lease modification application to the Secretary of Agriculture for consent, for completion or consideration of an environmental assessment, for the attachment of appropriate lease stipulations, and for making any other findings prerequisite to lease issuance.

          PART 3470—COAL MANAGEMENT PROVISIONS AND LIMITATIONS
          3. The authority citation for part 3470 continues to read as follows:

            Authority:
            30 U.S.C. 189 and 359 and 43 U.S.C. 1733 and 1740.

            Subpart 3472—Lease Qualification Requirements

          4. Amend § 3472.1-3 by—

          a. removing from paragraph (a)(1) the terms “46,080 acres” and “100,000 acres”, and adding in their place the terms “75,000 acres” and “150,000 acres”, respectively; and

          b. removing from the second sentence of paragraph (a)(2) the term “100,000 acres” and adding in its place the term “150,000 acres.”

      [FR Doc. 02-1339 Filed 1-17-02; 8:45 am]
      BILLING CODE 4310-84-P