        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Parts 52 and 81
        [EPA-R03-OAR-2019-0577; FRL-10006-77-Region 3]
        Air Plan Approval; West Virginia; Redesignation and Maintenance Plan for the West Virginia Portion of the Steubenville Sulfur Dioxide Nonattainment Area

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          In accordance with the Clean Air Act (CAA), the Environmental Protection Agency (EPA) is proposing to redesignate the West Virginia portion of the Steubenville, Ohio-West Virginia multi-state sulfur dioxide (SO2) nonattainment area (referred to as the “Steubenville Nonattainment Area” or the “Area”) from nonattainment to attainment. EPA is also proposing to approve West Virginia's maintenance plan for its portion of the Steubenville Nonattainment Area. Emissions of SO2 in the Area have been reduced and ambient SO2 readings in the nonattainment area are currently well below the 2010 1-hour SO2 national ambient air quality standard (NAAQS).

          DATES:
          Written comments must be received on or before April 20, 2020.

          ADDRESSES:

          Submit your comments, identified by Docket ID No. EPA-R03-OAR-2019-0577 at https://www.regulations.gov or via email to spielberger.susan@epa.gov. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

          FOR FURTHER INFORMATION CONTACT:

          Sara Calcinore, Planning & Implementation Branch (3AD30), Air & Radiation Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. The telephone number is (215) 814-2043. Ms. Calcinore can also be reached via electronic mail at calcinore.sara@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

          I. Background and Redesignation Requirements
          II. Relationship Between This Rulemaking and the Attainment Plan Rulemaking
          III. Determination of Attainment
          IV. CAA Section 110 and Part D Requirements and Fully Approved SIP Under CAA section 110(k)
          V. Permanent and eNforceable Emission Reductions
          VI. Maintenance Plan
          VII. Proposed Action
          VIII. Statutory and Executive Order Reviews

        I. Background and Redesignation Requirements
        In 2010, EPA established a revised primary hourly annual SO2 NAAQS of 75 parts per billion (ppb). 75 FR 35520, June 22, 2010; 40 CFR 50.17. EPA designated the Steubenville, Ohio-West Virginia area as nonattainment for the 2010 SO2 NAAQS on August 5, 2013, based upon air quality monitoring data for calendar years 2009-2011. 78 FR 47191; 40 CFR 81.349, 81.336. The Steubenville Nonattainment Area is comprised of a portion of Jefferson County, Ohio and a portion of Brooke County, West Virginia. The Ohio portion of the nonattainment area includes Cross Creek Township, Steubenville Township, Warren Township, Wells Township, and Steubenville City in Jefferson County. 40 CFR 81.336. The West Virginia portion of the nonattainment area is the Cross Creek Tax District in Brooke County. 40 CFR 81.349.

        Ohio and West Virginia were required to prepare State Implementation Plan (SIP) revisions that provided for attainment of the SO2 NAAQS in the Steubenville Nonattainment Area by the SO2 attainment date of October 4, 2018. These “attainment plans” or “attainment demonstrations” were also required to meet the requirements of sections 172(c) and 191-192 of the CAA. West Virginia's attainment plan SIP revision was submitted to EPA through the West Virginia Department of Environmental Protection (WVDEP) on April 25, 2016, with a supplemental submission from WVDEP on November 27, 2017 and a clarification letter on May 1, 2019. Ohio's attainment plan SIP revision was submitted to EPA through the Ohio Environmental Protection Agency (OEPA) on April 1, 2015 with supplemental submissions on October 13, 2015, March 25, 2019, and June 25, 2019. EPA proposed to approve the attainment plans submitted by Ohio and West Virginia on June 24, 2019. 84 FR 29456. On October 22, 2019, EPA approved the attainment plans for the Steubenville Nonattainment Area. 84 FR 56385. EPA's October 22, 2019 approval also revised the West Virginia SIP to include new emissions limits, operational restrictions, and associated compliance requirements for Mountain State Carbon (MSC) and revised the Ohio SIP to include limits on emissions from Mingo Junction Energy Center (also known as “R.G. Steel-Wheeling Mingo Junction”), the JSW Steel USA Ohio facility (JSW Steel), and the American Electric Power (AEP) Cardinal Power Plant (referred to as “Cardinal Power Plant”).
        On June 25, 2019, Ohio submitted a request to redesignate the Ohio portion of the Steubenville Nonattainment Area. EPA redesignated the Ohio portion of the Steubenville Nonattainment Area to attainment on November 29, 2019. 84 FR 65683. On August 22, 2019, West Virginia submitted a request to redesignate the West Virginia portion of the Steubenville Nonattainment Area.
        Under CAA section 107(d)(3)(E), five criteria must be met before a nonattainment area may be redesignated to attainment. Although the Steubenville Nonattainment Area includes portions within two states, this action only proposes to redesignate the West Virginia portion of this area. As stated previously, the Ohio portion of the Steubenville Nonattainment Area was redesignated to attainment on November 29, 2019.
        The five criteria in CAA section 107(d)(3)(E) that must be met, and EPA's interpretation of whether any of the criteria must be met in both the Ohio portion and West Virginia portion of the Steubenville Nonattainment Area or only in West Virginia, are discussed below. These criteria are:

          1. EPA has determined that the area has attained the relevant NAAQS. Section 107(d)(3)(E)(i). In this rulemaking, EPA is evaluating whether the entire two-state Area is attaining the SO2 NAAQS.
          2. The applicable implementation plan has been fully approved by EPA under section 110(k) of the CAA. Section 107(d)(3)(E)(ii). In this rulemaking, EPA is evaluating redesignation for only the West Virginia portion of the Area on the basis of whether West Virginia's applicable implementation plan has been fully approved.
          3. EPA has determined that improvement in air quality is due to permanent and enforceable reductions in emissions resulting from the applicable implementation plans, Federal regulations, and other permanent and enforceable reductions. Section 107(d)(3)(E)(iii). In this rulemaking, EPA is evaluating this criterion for both the Ohio and West Virginia portions of the Steubenville Nonattainment Area.
          4. EPA has fully approved a maintenance plan, including a contingency plan, for the area that meets the requirements of section 175A of the CAA. Section 107(d)(3)(E)(iv). In this rulemaking, EPA is evaluating only whether West Virginia's maintenance plan provides for its share of actions to assure maintenance in the two-state Area.
          5. EPA has determined that the state has met all applicable requirements for the area under section 110 and part D. Section 107(d)(3)(E)(v). In this rulemaking, EPA is evaluating redesignation for only the West Virginia portion of the Area on the basis of whether West Virginia has met these applicable requirements.

        II. Relationship Between This Rulemaking and the Attainment Plan Rulemaking

        Some of the criteria for this proposed redesignation are met by elements of the previously approved Ohio and West Virginia attainment plans. In particular, part of the evidence that the Area is attaining the SO2 NAAQS is based on modeling included in the two states' attainment plans and related supplemental submittals. The SO2 emission limits that assure the permanence and Federal enforceability of the air quality improvement in the Area were also submitted as part of the attainment plans.

        As noted previously, EPA proposed to approve the Ohio and West Virginia attainment plans on June 24, 2019, at 84 FR 29456, and issued a final approval on October 22, 2019. 84 FR 56385. This rulemaking is not reopening any portion of that rulemaking. For example, this rulemaking does not solicit any additional comments on the modeling in the two states' attainment plans, on the adequacy of the limits in those plans for assuring attainment, or generally on whether those plans warranted approval. Comments on these topics were germane to the attainment plans rulemaking and were solicited in that rulemaking. EPA addressed these topics in the attainment plans rulemaking but received no comments on these topics in that rulemaking. As stated previously, EPA's proposed approval of West Virginia's redesignation request is based in part on the final rulemaking approving the Ohio and West Virginia attainment plans.
        III. Determination of Attainment

        The first requirement for redesignation is to demonstrate that the 2010 1-hour SO2 NAAQS has been attained in the entire Steubenville Nonattainment Area. As stated in EPA's April 23, 2014 “Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions” (referred to as “2014 SO2 Guidance”), there are two components needed to support an attainment determination for SO2: (1) A review of representative air quality monitoring data, and (2) a further analysis, generally requiring air quality modeling, to demonstrate that the entire area is attaining the applicable NAAQS based on current actual emissions or the fully implemented control strategy. 2014 SO2 Guidance, p.62. West Virginia has addressed both components.
        Under EPA regulations at 40 CFR 50.17, the 2010 1-hour SO2 NAAQS is met at an ambient air quality monitoring site when the three-year average of the annual 99th percentile of one-hour daily maximum concentrations is less than or equal to 75 ppb, as determined in accordance with appendix T of 40 CFR part 50, at all relevant monitoring sites in the subject area. EPA has reviewed the ambient air monitoring data for the Steubenville Nonattainment Area included in West Virginia's redesignation request, which consists of data from three SO2 monitoring sites in Jefferson County, Ohio and three SO2 monitoring sites in Brooke County, West Virginia. The data from these monitors have been certified and recorded in EPA's Air Quality System (AQS) database.
        Table 1 shows the 99th percentile results and three-year average design values for the Steubenville Nonattainment Area monitors for 2016-2018, which are the most recent three years of complete, quality-assured data. The 2016-2018 design value 1

           for the Steubenville Nonattainment Area is 37 ppb, which is well below the 2010 SO2 NAAQS of 75 ppb. This design value, which was measured at the Weirton-Marland Heights monitor (Site ID 54-009-0011), in Brooke County, West Virginia, is the highest monitored design value in the Steubenville Nonattainment Area. Therefore, West Virginia has demonstrated that the Steubenville Nonattainment Area's SO2 monitors currently show attainment of the 2010 SO2 NAAQS. For every 3-year period starting with the 2013-2015 design value period, all six monitors have had design values below the 2010 SO2 NAAQS of 75 ppb. Preliminary monitoring data for 2019 indicate that the Area is continuing to attain the 2010 SO2 NAAQS.

            1 The “design value” is the 3-year average of the annual 99th percentile daily maximum 1-hour values for a monitoring site. 40 CFR part 50, Appendix T.

          Table 1—Monitoring Data for the Steubenville Nonattainment Area for 2016-2018

            Site ID
            Location
            Year and 99th percentile value (ppb)

            2016
            2017
            2018
            Design value: average 2016-2018
              (ppb)

            39-081-0017
            Jefferson County, OH
            27
            18
            34
            26

            39-081-0018
            Jefferson County, OH
            31
            34
            9
            25

            39-081-0020
            Jefferson County, OH
            20
            13
            8
            14

            54-009-0005
            Brooke County, WV
            33
            28
            48
            36

            54-009-0007
            Brooke County, WV
            39
            23
            24
            29

            54-009-0011
            Brooke County, WV
            49
            27
            35
            37

        In addition to the monitoring data, West Virginia submitted a modeling analysis demonstrating that the control strategy for the Steubenville Nonattainment Area will provide for attainment of the SO2 NAAQS in the entire Area. West Virginia's August 22, 2019 redesignation request includes dispersion modeling from the attainment plan for the Steubenville Nonattainment Area that was approved by EPA on October 22, 2019.2

           This joint modeling analysis demonstrated that the Steubenville Nonattainment Area had attained the 2010 SO2 NAAQS based on the allowable emissions from the four primary sources in the Area: (1) The Cardinal Power Plant, located in Brilliant, Ohio; (2) JSW Steel (formerly Wheeling Pittsburgh Steel Plant and referred to by West Virginia as “Mingo Junction Steel Works”) in Mingo Junction, Ohio; (3) the Mingo Junction Energy Center also in Mingo Junction, Ohio; and (4) MSC in Follansbee, West Virginia. The modeling analysis is discussed in detail in the June 24, 2019 (84 FR 29456) notice of proposed rulemaking for West Virginia's attainment plan.

            2 On March 25, 2019, OEPA submitted revised modeling with a new limit and revised stack characteristics for Cardinal Power Plant as a supplement to the attainment plan for the Steubenville Nonattainment Area. West Virginia concurred with the revised modeling on May 1, 2019. The March 25, 2019 supplement was approved with the attainment plan for the Steubenville Nonattainment Area on October 22, 2019. West Virginia's August 22, 2019 redesignation request includes the approved dispersion modeling submitted by OEPA as a supplement to the attainment plan on March 25, 2019.

        West Virginia has confirmed that the modeled facilities are currently in full compliance with their emission limits. Current actual emissions at these facilities are therefore at or below the allowable levels used in the modeling analysis included with West Virginia's redesignation request. Because this modeling shows that compliance with the emission limits in the States' plans yields attainment in the entire nonattainment area, and the sources are complying with these limits, this modeling also supports EPA's proposed conclusion that both the Ohio portion and West Virginia portion of the two-state Area are attaining the 2010 SO2 NAAQS.
        IV. CAA Section 110 and Part D Requirements and Fully Approved SIP Under CAA Section 110(k)

        In accordance with section 107(d)(3)(E)(v) of the CAA, in order to redesignate the Steubenville Area to attainment, West Virginia must meet all requirements applicable to the Steubenville Nonattainment Area under CAA section 110 (general SIP requirements) and part D of title I of the CAA (SIP requirements for nonattainment areas). In addition, in accordance with section 107(d)(3)(E)(ii) of the CAA, the West Virginia SIP for the Steubenville Nonattainment Area must be fully approved under CAA section 110(k).

        The Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) with respect to the timing of applicable requirements. Under this interpretation, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant CAA requirements that come due prior to the submittal of a complete redesignation request. See also Shapiro memorandum (“State Implementation Plan (SIP) requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993) and 60 FR 12459, 12465-12466, (March 7, 1995) (redesignation of Detroit-Ann Arbor). Applicable requirements of the CAA that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved but are not required as a prerequisite to redesignation. See CAA section 175A(c). Sierra Club v. EPA, 375 F .3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis area to attainment of the 1-hour ozone NAAQS).
        EPA has determined that, in accordance with section 107(d)(3)(E)(v), West Virginia has met all SIP requirements under section 110 of the CAA and part D of title I of the CAA applicable for purposes of this redesignation. In making these determinations, EPA ascertained what requirements are applicable to the Area and determined that the portions of the West Virginia SIP meeting these requirements are fully approved under section 110(k) of the CAA. We note that SIPs must be fully approved only with respect to applicable requirements. EPA's rationale is discussed in more detail in the following sections.
        1. West Virginia Has Met all Applicable Requirements of Section 110 and Part D of the CAA Applicable to the Steubenville Nonattainment Area for Purposes of Redesignation
        a. Section 110 General Requirements for SIPs

        Pursuant to CAA section 110(a)(1), whenever new or revised NAAQS are promulgated, the CAA requires states to submit a plan (i.e. “SIP”) for the implementation, maintenance and enforcement of such NAAQS. Section 110(a)(2) of title I of the CAA contains the general requirements for a SIP, also known as “infrastructure” requirements. The infrastructure requirements of section 110(a)(2) include the requirements in subsections 110(a)(2)(A) through (M).

        However, not every requirement of section 110(a)(2) is an applicable requirement for the purposes of redesignating the Steubenville Nonattainment Area to attainment for the SO2 NAAQS. For example, section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. When such issues have been identified, EPA has required certain states to establish programs to address transport of air pollutants. See Nitrogen Oxides (NOX) SIP Call and amendments to the NOX SIP Call (64 FR 26298, May 14, 1999 and 65 FR 11222, March 2, 2000), and the Cross-State Air Pollution Rule (CSAPR) Update (81 FR 74504, October 26, 2016). However, the section 110(a)(2)(D) SIP requirements are not linked with a particular area's SO2 designation. That is, any applicable section 110(a)(2)(D) requirement continues to apply to a state regardless of the attainment designation (or redesignation) of an area. EPA has concluded that the SIP requirements linked to an area's SO2 designation are the relevant (applicable) measures when reviewing a redesignation request for an area, and therefore the general requirements of section 110(a)(2)(D) are not applicable requirements for the purposes of a SO2 redesignation.

        Similarly, other section 110(a)(2) elements that are neither connected with attainment plan submissions nor linked with an area's SO2 designation are not applicable requirements for purposes of redesignation. An area redesignated from SO2 nonattainment to attainment will remain subject to these statewide requirements after redesignation to attainment. This approach is consistent with EPA's existing policy on applicability (i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with CAA section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 2008); Cleveland-Akron-Loraine, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio, redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania, redesignation (66 FR 50399, October 19, 2001).

        Nonetheless, EPA has reviewed West Virginia's SIP and concludes that it meets the general SIP requirements of section 110 of the CAA, for those requirements that are applicable for purposes of an SO2 redesignation. EPA approved elements of West Virginia's July 1, 2013, and June 1, 2015, SO2 infrastructure SIP submittals on November 17, 2014 (79 FR 62022) and August 11, 2016 (81 FR 53008), respectively.3
           As explained previously, the general requirements of CAA section 110(a)(2) are statewide requirements that are not linked to the nonattainment status of the Steubenville Nonattainment Area and are therefore not “applicable requirements” for the purpose of reviewing West Virginia's redesignation request. Because West Virginia satisfies the general SIP elements and requirements set forth in CAA section 110(a)(2) applicable to and necessary for redesignation, EPA concludes that West Virginia has satisfied the criterion of section 107(d)(3)(E)(v) regarding section 110 of the CAA.

            3 West Virginia's SO2 infrastructure SIP submittals did not address the interstate transport element of CAA section 110(a)(2)(D)(i). As explained previously, the interstate transport element of CAA section 110(a)(2)(D)(i) is not an applicable requirement for redesignation of the Steubenville Nonattainment Area.

        b. Part D Requirements

        In addition to the CAA section 110 requirements, section 107(d)(3)(E)(v) requires that the state meet all the requirements applicable to the nonattainment area “under part D of this subchapter” in order for the nonattainment area to be redesignated. Both section 107 and part D are within subchapter 1 of the CAA. Part D, entitled “Plan Requirements for Nonattainment Areas,” consists of six subparts, of which only subparts 1 and 5 are applicable to SO2 nonattainment areas. Subpart 1 (sections 171-179B) contains provisions that can apply to all nonattainment areas for all criteria pollutants, while subpart 5 (sections 191-192) contains additional provisions for SO2, NOX, or lead nonattainment areas. The requirements applicable to this redesignation are discussed below.
        i. Subpart 1 Requirements
        1. Section 172 Requirements
        CAA section 172 requires states with nonattainment areas to submit plans that provide for timely attainment of the NAAQS. CAA section 172(c) contains general requirements for nonattainment plans. A thorough discussion of these requirements is found in the General Preamble for Implementation of Title I. 57 FR 13498, April 16, 1992.

        As noted earlier, West Virginia submitted, and EPA approved, West Virginia's attainment plan for the Steubenville Nonattainment Area. 84 FR 29456, June 24, 2019; 84 FR 56385, October 22, 2019. In the proposed approval, EPA evaluated and proposed approval of the following elements of West Virginia's attainment plan: Emissions inventory (section 172(c)(3)), a determination that the control strategy for the primary SO2 source within the Steubenville Nonattainment Area constitutes reasonably available control measures/reasonably available control technology (RACM/RACT) and an attainment demonstration (section 172(c)(1)), enforceable emissions limitations and control measures (172(c)(4)), new source review (NSR) (section 172(c)(5)),4

           reasonable further progress (RFP) (section 172(c)(2)), contingency measures (section 172(c)(9)), and compliance with the requirements of CAA section 110(a)(2) (section 172(c)(7)). EPA's proposed approval also found that West Virginia did not need to adopt other measures than those adopted within the attainment plan to achieve compliance with the 2010 1-hour SO2 NAAQS, as potentially required by section 172(c)(6). Thus, EPA found in the final approval of the attainment plan that West Virginia had complied with all the applicable requirements of section 172 of the CAA, and this proposed approval of West Virginia's redesignation request relies upon that finding within EPA's final approval of West Virginia's attainment plan.

            4 EPA has a longstanding interpretation that because nonattainment new source review (NNSR) is replaced by prevention of significant deterioration (PSD) upon redesignation, nonattainment areas seeking redesignation to attainment need not have a fully approved part D NNSR program in order to be redesignated. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Nevertheless, West Virginia has a SIP-approved NSR and PSD program, found at 45CSR13, 45CSR19, and 45CSR14. See 40 CFR 52.2520(c). West Virginia's PSD program will become effective in the Steubenville Nonattainment Area upon redesignation to attainment.

        Because EPA's analysis of these elements of CAA section 172 were available for public comment in the proposed attainment plan approval, EPA is not seeking any further public comment in this action on the section 172 elements approved in the attainment plan approval. Comments on these elements were germane to the attainment plan approval and should have been submitted during the public comment period for the proposed attainment plan approval.
        2. Section 173

        Section 173 of the CAA includes requirements for permit programs that are required in a nonattainment area for new sources by section 172(c)(5). This is known as NNSR. As stated previously, West Virginia has an NSR permitting program, found at 45CSR13 and 45CSR19. EPA therefore proposes to conclude that West Virginia has an NSR permitting program meeting the requirements of section 173 for SO2. In addition, West Virginia has a SIP-approved PSD program under 45CSR14. See 40 CFR 52.2520(c).
        3. Section 175A
        CAA section 175A requires that states seeking redesignation of an area to attainment submit a “maintenance plan” containing certain elements. West Virginia included a maintenance plan for the Steubenville Nonattainment Area with their August 22, 2019 redesignation request, which is discussed in detail in Section VI of this notice of proposed rulemaking.
        4. Section 176 Requirements
        Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability that EPA promulgated pursuant to its authority under the CAA. On April 12, 2007, West Virginia submitted documentation establishing transportation conformity procedures in its SIP. EPA approved these procedures on May 2, 2008 (73 FR 24175).

        However, EPA interprets the conformity SIP requirements as not applicable for purposes of evaluating a redesignation request because, like other requirements listed above, state conformity rules are still required after redesignation to attainment and Federal conformity rules apply where state rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding this interpretation); see also 60 FR 62748 (December 7, 1995) (redesignation of Tampa, Florida). Furthermore, due to the relatively small, and decreasing, amounts of sulfur in gasoline and on-road diesel fuel, EPA's transportation conformity rules do not apply to SO2 unless the EPA Regional Administrator or the director of the state air agency has found that transportation-related emissions of SO2 as a precursor are a significant contributor to a SO2 or fine particulate matter (PM2.5) nonattainment problem, or if the SIP has established an approved or adequate budget for such emissions as part of the RFP, attainment, or maintenance strategy. See 40 CFR 93.102(b)(1), (2)(v); SO2 Nonattainment Area Guidance. Neither of these conditions have been met; therefore, EPA's transportation conformity rules do not apply to SO2 for the Steubenville Nonattainment Area.
        5. Sections 176A, 177, 178, 179 and 179B

        CAA sections 176A through 179B are not applicable requirements for the purpose of redesignation for SO2.
        ii. Subpart 5 Requirements

        The subpart 5 requirements, which consist of sections 191 and 192 of the CAA, are specific provisions applicable to SO2, NOX or lead nonattainment areas. Section 191 of the CAA requires states with areas designated nonattainment for SO2, NOX or lead after November 15, 1990, to submit within 18 months of the designation an implementation plan meeting the requirements of part D. West Virginia's part D SIP (attainment plan) for its portion of the Steubenville Nonattainment Area was due April 4, 2015. As stated previously, West Virginia submitted its part D SIP (attainment plan) on April 25, 2016, with a supplemental submission on November 27, 2017 and a clarification letter on May 1, 2019. In its proposed and final rulemakings on West Virginia's part D SIP (attainment plan), EPA found that West Virginia satisfied the applicable requirements under CAA section 110 and part D for the Steubenville Nonattainment Area. See 84 FR 29456 (June 24, 2019) and 84 FR 56385 (October 22, 2019). West Virginia has therefore satisfied this subpart 5, section 191 requirement for redesignation.

        Section 192 sets forth attainment dates for nonattainment areas under section 191. For SO2, section 192(a) requires that attainment plans provide for attainment of the primary standard as expeditiously as possible, but no later than five years from the date of the nonattainment designation. EPA designated the Steubenville Area as nonattainment on August 5, 2013, with an attainment date of October 4, 2018. As discussed in Section III, the Steubenville Nonattainment Area has demonstrated attainment with the 2010 SO2 standard since the 2013-2015 monitoring period and continues to attain the SO2 NAAQS. Therefore, EPA is proposing to find that the subpart 5, section 192 requirement has been met.
        Based on the above, EPA is proposing to find that West Virginia has satisfied the applicable requirements for the redesignation of its portion of the Steubenville Nonattainment Area under section 110 and part D of title I of the CAA.
        V. Permanent and Enforceable Emission Reductions
        For an area to be redesignated, the state must be able to reasonably attribute the improvement in air quality to permanent and enforceable emission reductions. As stated previously, the primary sources in the Steubenville Nonattainment Area are the Cardinal Power Plant, located in Brilliant, Ohio; JSW Steel, formerly Wheeling Pittsburgh Steel Plant and referred to by West Virginia as “Mingo Junction Steel Works”, in Mingo Junction, Ohio; the Mingo Junction Energy Center (also known as “R.G. Steel-Wheeling Mingo Junction”), also in Mingo Junction, Ohio; and MSC, in Follansbee, West Virginia.
        These facilities have all significantly reduced SO2 emissions since the area was monitoring violations, and these emission reductions have been made permanent and enforceable by the limits that Ohio and West Virginia adopted and submitted in their respective attainment plan submittals.

        MSC produces metallurgical-grade coke and coke gas byproducts from coal, which contains sulfur. A byproduct of coke production is coke oven gas, which contains SO2. The facility burns this gas, releasing SO2 emissions. As a result of a consent order dated September 29, 2017 (Consent Order Number CO-SIP-C-2017-9), MSC has improved its coke oven gas desulfurization equipment to reduce its SO2 emissions. The emissions reductions, mandated by West Virginia's emission limits and work practice requirements contained in the consent order, were approved into the West Virginia SIP through the attainment plan approval and are therefore permanent and Federally enforceable. 84 FR 56385 (October 22, 2019); 40 CFR 52.2520(d).

        The Cardinal Power Plant is subject to several permanent and enforceable control measures including, but not limited to, the Acid Rain Program and the Mercury and Air Toxics Standard (MATS) rule. In addition, restrictions on SO2 emissions at the Cardinal Power Plant are approved into the Ohio SIP under Chapter 3745-18 and include a Federally-enforceable, 30-day rolling average combined SO2 limit of 4,858.75 pound per hour (lb/hr) for the coal-fired boiler Units 1, 2, and 3. See 40 CFR 52.1870(c). The Cardinal Power Plant implemented flue gas desulfurization (FGD) between 2010 and 2012, resulting in a reduction of SO2 emissions from 32,500 tons in 2010 to 9,700 tons in 2018, a reduction that Ohio's limit requires to be maintained. 84 FR 4942 (September 20, 2019). Therefore, EPA is proposing to find that the Cardinal Power Plant is subject to permanent and enforceable control measures.

        Both the Mingo Junction Energy Center and Mingo Junction Steel Works (JSW Steel) have ceased operations, with JSW Steel resuming limited operations in 2018. Both Mingo Junction Energy Center and JSW Steel are subject to permanent and enforceable control measures identified in the SIP-approved attainment plan that were found to provide for attainment and maintenance of the 2010 1-hour SO2 NAAQS in the Steubenville Nonattainment Area. These measures under Ohio rules OAC 3745-18 are approved into the Ohio SIP. In the event that these facilities resume full operations, they would remain subject to the Federally enforceable control measures in the Ohio SIP that were shown to provide for attainment and maintenance of the SO2 NAAQS in the SIP-approved attainment plan for the Steubenville Nonattainment Area. 84 FR 29456 (June 24, 2019); 84 FR 56385 (October 22, 2019).

        At the time of Steubenville's nonattainment designation, the monitored SO2 design values (2009-2011) in the area were 109 ppb at the Jefferson County monitor (Site ID 39-081-0017) and 174 ppb at the Brooke County, West Virginia monitor (Site ID 54-009-0011). More recent monitoring data indicate that ambient SO2 levels have improved significantly. The highest monitored design value for the Steubenville Nonattainment Area for 2016-2018 is 37 ppb. This value was measured at monitor 54-009-0011 in Brooke County, West Virginia. These monitored values are well below the SO2 NAAQS of 75 ppb. This air quality improvement is attributable to the substantial emission reductions noted above, which the Ohio and West Virginia attainment plans require to be permanent and enforceable. Thus, EPA proposes to find that the improvement in air quality in the Steubenville Nonattainment Area can be attributed to permanent and enforceable emission reductions at facilities in Ohio and West Virginia, and that CAA section 107(d)(3)(E)(iii) has been satisfied by both Ohio and West Virginia.
        VI. Maintenance Plan

        As one of the criteria for redesignation to attainment, section 107(d)(3)(E)(iv) of the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Section 175A requires that the maintenance plan demonstrate continued attainment of the applicable NAAQS for at least ten years after the nonattainment area is redesignated to attainment. Eight years after the redesignation, the state must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for an additional ten years following the initial ten-year period. To address the possibility of future NAAQS violations, the maintenance plan must also contain contingency measures as EPA deems necessary to assure prompt correction of any future one-hour violations. Specifically, the maintenance plan should address five requirements: (1) An attainment emissions inventory; (2) maintenance demonstration; (3) commitment for continued air quality monitoring; (4) verification of continued attainment; and (5) a contingency plan. See Calcagni memorandum.

        In conjunction with their request to redesignate the West Virginia portion of the Steubenville Nonattainment Area, West Virginia submitted, as a revision to their SIP, a plan to provide for maintenance of the SO2 NAAQS through 2030 in the Area, which is 10 years after the expected effective date of the redesignation to attainment. West Virginia has committed to review the maintenance plan for the Area eight years after redesignation. EPA is proposing to find that West Virginia's maintenance plan for the Steubenville Nonattainment Area includes the necessary components per the CAA, including CAA section 175A and EPA guidance, and is proposing to approve the maintenance plan as a revision to the West Virginia SIP.
        1. Attainment Inventory
        The Calcagni memorandum indicates that states requesting redesignation to attainment should develop an attainment emissions inventory in order to identify the level of emissions in the area which is sufficient to attain the NAAQS. The attainment inventory should be consistent with EPA's most recent guidance on emission inventories for nonattainment areas available at the time and should include the emissions during the time period associated with monitoring data showing attainment.

        For the attainment inventory, West Virginia used the year 2011 as the “nonattainment year” since the three-year period 2009-2011 was the basis of the nonattainment designation. Although the attainment date for the Steubenville Nonattainment Area was October 4, 2018, West Virginia selected 2016 as the “attainment year” for its emission inventory because 2016 was one of the years contributing to the 2014-2016 and 2015-2017 design values demonstrating attainment of the SO2 NAAQS in the Steubenville Nonattainment Area. The attainment year inventory is shown in Table 2 as well as the projected emissions of SO2 in future years (i.e. 2023 and 2030).
        2. Maintenance Demonstration
        Pursuant to the 2014 SO2 guidance, an air agency may demonstrate maintenance of the NAAQS by either showing that future emissions of SO2 will not exceed the level of the attainment inventory or by modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS. As discussed previously, West Virginia and Ohio have submitted, and EPA has approved, modeling analyses demonstrating attainment and maintenance of the SO2 NAAQS as part of the attainment plans for the Steubenville Nonattainment Area. In addition, West Virginia has demonstrated maintenance of the SO2 NAAQS through 2030 with emission inventories showing that future emissions of SO2 in the Steubenville Nonattainment Area will remain at or below attainment year emission levels. West Virginia projected SO2 emissions for an interim future year of 2023 and for 2030. The attainment and maintenance inventories, provided in Table 2, shows the projected emissions of SO2 in 2011 (nonattainment year), 2016 (attainment year), 2023 (interim year), and 2030 and demonstrates that future emissions of SO2 will not exceed the levels of the 2016 attainment year inventory for the Steubenville Nonattainment Area for a minimum of 10 years following redesignation.

          Table 2—Brooke County, West Virginia Emission Inventory Totals for 2011, 2016, 2023, and 2030 (tpy)

            Location
            Sector
            2011
            2016 (WV) and 2014 (OH)
              (attainment)

            2023
            2030

            West Virginia Portion
            EGU
            0
            0
            0
            0

            Non-EGU
            730
            383
            382
            381

            Oil & Gas
            1.56
            6.35
            7.69
            8.11

            Area
            143.46
            138.34
            135.31
            134.32

            Non-Road
            0.02
            0.01
            0.01
            0.01

            On-Road
            2.07
            2.02
            0.79
            0.74

            Total
            877.11
            529.72
            525.80
            524.18

            Ohio Portion 1

            EGU
            25,122.42
            10,660.65
            9,602.02
            9,602.02

            Non-EGU
            223.44
            0.02
            0.02
            0.02

            Non-Road
            0.29
            0.23
            0.14
            0.15

            Other (Area)
            62.13
            57.76
            56.67
            56.35

            On-Road
            3.52
            3.46
            1.38
            1.32

            Total
            25,411.80
            10,722.12
            9,660.23
            9,659.86

            Combined (WV & OH) Total

            26,288.91
            11,251.84
            10,186.03
            10,184.04

        EPA is proposing to find that the maintenance inventory provided in Table 2 shows maintenance of the SO2 NAAQS in the Steubenville Nonattainment Area by providing emissions information to support the demonstration that future emissions of SO2 will remain below the 2016 emission levels (an inventory year showing attainment of the SO2 NAAQS).

        According to West Virginia's submittal, the demonstration that improvement in air quality occurred between the nonattainment and attainment years is based on permanent and enforceable emission reductions. The permanent and enforceable SO2 emission reductions described in Section V of this notice, which includes the SIP-approved consent order CO-SIP-C-2017-9 for MSC, ensure that SO2 emissions in the West Virginia portion of the Steubenville Nonattainment Area will not exceed the maintenance level emissions shown in Table 2. This is an acceptable method for demonstrating maintenance. See 2014 SO2 Guidance, p. 67. West Virginia's maintenance plan notes that West Virginia and Ohio have comprehensive programs to identify sources of violations of the SO2 NAAQS as well as EPA-approved compliance and enforcement programs to address violations. Therefore, EPA proposes to find that West Virginia's demonstration of maintenance of the SO2 NAAQS in the Steubenville Nonattainment Area is based on permanent and enforceable control measures.
        3. Commitment for Continued Air Quality Monitoring

        In their submittal, West Virginia commits to continue monitoring SO2 levels at the SO2 monitoring sites in West Virginia identified in Table 1 of this notice. West Virginia also commits to consulting with EPA Region III prior to making any changes to the existing monitoring network and continuing to quality assure the monitoring data to meet the requirements of 40 CFR part 58 and all other Federal requirements. West Virginia also notes that Consent Order Number CO-SIP-C-2017-9 for MSC and permit for the Cardinal Power Plant establish monitoring, testing, recordkeeping, and reporting requirements to assure compliance with SO2 emission limits which have been demonstrated to not cause a violation of the SO2 NAAQS. Therefore, EPA proposes to find that West Virginia's maintenance plan includes a commitment for continued air quality monitoring.
        4. Verification of Continued Attainment

        In their submittal, West Virginia commits to maintaining the aforementioned control measures after redesignation of the Steubenville Nonattainment Area and that any changes to their rules or emission limits applicable to maintenance of the 2010 1-hour SO2 standard in the West Virginia portion of the Steubenville Nonattainment Area will be submitted to EPA for approval as a SIP revision. West Virginia states that they have the legal authority and necessary resources to actively enforce any violations of their rules or permit provisions and that they intend to continue the enforcement of all rules related to SO2 emissions in the West Virginia portion of the Steubenville Nonattainment Area.
        In addition, West Virginia commits to continue to provide updates to future emissions inventories in accordance with EPA's Air Emissions Reporting Requirements (AERR) rule and to continue to submit emission inventories every three years. EPA is proposing to find that West Virginia's maintenance plan provides for the verification of continued attainment in the Steubenville Nonattainment Area.
        5. Contingency Plan

        Section 175A(d) of the CAA requires that maintenance plans include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after a redesignation of the area to attainment. Pursuant to EPA's 2014 SO2 Guidance, p. 69, in the case that attainment revolves around compliance of a single source or a small set of sources with emission limits shown to provide for attainment, EPA interprets “contingency measures” to mean that the state agency has a comprehensive program to identify sources of violations of the SO2 NAAQS and to undertake an aggressive follow-up for compliance and enforcement. The Steubenville Nonattainment Area is an area where attainment is dependent on the compliance of a small set of sources with emission limits shown to provide for attainment, specifically MSC in West Virginia and the Cardinal Power Plant in Ohio. In their submittal, West Virginia verifies that both West Virginia and Ohio have comprehensive enforcement programs to identify sources of violations of the SO2 NAAQS and EPA-approved compliance and enforcement programs to undertake aggressive follow-up for any violations. Therefore, EPA proposes to find that West Virginia's maintenance plan satisfies the contingency measures requirement of CAA 175A(d).

        West Virginia's contingency measures identify triggers and corresponding responses. In the event that the 99th percentile of the 1-hour daily SO2 maximum concentration of 75 ppb occurs in a single calendar year within the Steubenville Nonattainment Area, a “warning level response” will be triggered. The warning level response will consist of a study to determine whether SO2 values indicate a trend toward higher SO2 values or whether emissions appear to be increasing, as well as the control measures necessary to reverse the trend, if needed. The implementation of necessary controls in response to a warning level response trigger will occur as expeditiously as possible, but no later than 12 months from the conclusion of the most recent calendar year. In the event that a 2-year average of the 99th percentile 1-hour SO2 concentration of 75 ppb or greater or the violation of the SO2 NAAQS occurs within the Steubenville Nonattainment Area, an “action level response” will be triggered. If the exceedance is found to not be due to an exceptional event, malfunction, or noncompliance with a permit condition or rule requirement, West Virginia Division of Air Quality (DAQ), in conjunction with the metropolitan planning organization (MPO) or regional council of governments, will determine additional control measures needed to assure continued attainment of the 2010 SO2 NAAQS. Selected measures will be those that can be implemented within 18 months from the close of the calendar year that prompted the action level response.

        Based on the above, EPA proposes to find that West Virginia's maintenance plan adequately addresses the five requirements in section 175A that are necessary to maintain the 2010 1-hour SO2 NAAQS in the Steubenville Nonattainment Area.
        VII. Proposed Action

        In accordance with West Virginia's August 22, 2019 request, EPA is proposing to redesignate the West Virginia portion of the Steubenville Nonattainment Area from nonattainment to attainment of the 2010 SO2 NAAQS. The West Virginia portion of the nonattainment area includes Cross Creek Tax District in Brooke County. West Virginia has demonstrated that the Area is attaining the SO2 NAAQS and that the improvement in air quality is due to permanent and enforceable SO2 emission reductions in the Area. EPA is also proposing to approve, as a revision to the West Virginia SIP, West Virginia's maintenance plan. EPA is proposing to find that the maintenance plan demonstrates maintenance of the SO2 NAAQS through 2030 in the Steubenville Nonattainment Area and satisfies the requirements of CAA section 175A.
        VIII. Statutory and Executive Order Reviews
        Under the CAA, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
        • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
        • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

        • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
        • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
        • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
        • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
        • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
        • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
        The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule proposing approval of the redesignation of the Steubenville Nonattainment Area and associated maintenance plan does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

          Dated: March 10, 2020.
          Cosmo Servidio,
          Regional Administrator, Region III.

      [FR Doc. 2020-05661 Filed 3-19-20; 8:45 am]
      BILLING CODE 6560-50-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        RIN 0648-XA975
        Fisheries of the Exclusive Economic Zone Off Alaska; Groundfish Fisheries in the Bering Sea and Aleutian Islands Management Area

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

          ACTION:
          Notice of a public scoping meeting for an environmental impact statement; request for written comments.

          SUMMARY:
          NMFS, in coordination with the North Pacific Fishery Management Council (NPFMC), will hold a public scoping meeting and accept written comments from the public to determine the issues of concern; the appropriate range of management alternatives; and the direct, indirect, and cumulative impacts to be addressed in the Environmental Impact Statement (EIS) for the Steller Sea Lion Protection Measures for the Groundfish Fisheries in the Bering Sea and Aleutian Islands Management Area (BSAI). The EIS is being prepared in accordance with the National Environmental Policy Act of 1969 (NEPA). The proposed action would restrict groundfish fishing in the BSAI to ensure the groundfish fisheries are not likely to result in jeopardy of continued existence or adverse modification or destruction of designated critical habitat (JAM) for the western distinct population segment (DPS) of Steller sea lions. The western DPS of Steller sea lions is listed as endangered under the Endangered Species Act (ESA), and NMFS must ensure that the groundfish fisheries are not likely to result in JAM for this DPS. NMFS intends to work with stakeholders to develop fisheries restrictions that avoid the likelihood of JAM and minimize the potential economic impact on the fishing industry to the extent practicable while meeting the requirements of the ESA. The analysis in the EIS will determine the impacts to the human environment resulting from this proposed action and the alternatives.

          DATES:
          Written comments must be received by October 15, 2012. A scoping meeting will be held on Tuesday, October 2, 2012, from 5:30 to 7:30 p.m., Alaska local time.

          ADDRESSES:
          The scoping meeting will be held in the Dillingham/Katmai room at the Hilton Hotel, 500 West 3rd Street, Anchorage, AK.
          You may submit comments on this action, identified by NOAA-NMFS-2012-0013, by any of the following methods:
          • Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal www.regulations.gov. To submit comments via the e-Rulemaking Portal, first click the “submit a comment” icon, then enter NOAA-NMFS-2012-0013 in the keyword search. Locate the document you wish to comment on from the resulting list and click on the “Submit a Comment” icon on that line.
          • Mail: Address written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Mail comments to P.O. Box 21668, Juneau, AK 99802-1668.
          • Fax: Address written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Fax comments to 907-586-7557.
          • Hand delivery to the Federal Building: Address written comments to Glenn Merrill, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region NMFS, Attn: Ellen Sebastian. Deliver comments to 709 West 9th Street, Room 420A, Juneau, AK.
          • Hand delivery during the October 2, 2012 scoping meeting to Melanie Brown, NMFS.

            Instructions: Comments must be submitted by one of the above methods to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address) submitted voluntarily by the sender will be publicly accessible. Do not submit confidential business information, or otherwise sensitive or protected information. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file formats only.

          Electronic copies of the 2010 environmental assessment and biological opinion prepared for the Steller sea lion protection measures are available from http://www.regulations.gov or from the NMFS Alaska Region Web page at http://alaskafisheries.noaa.gov/sustainablefisheries/sslpm/.

          FOR FURTHER INFORMATION CONTACT:
          Melanie Brown, (907) 586-7228.

        SUPPLEMENTARY INFORMATION:

        A description of the legal authority, history of the Steller sea lion protection measures, litigation, potential alternatives, and issues for analysis are in the Federal Register notice of intent for the preparation of the EIS (77 FR 22750, April 17, 2012). Detailed descriptions of the current Steller sea lion protection measures and the development of the EIS are available from the NMFS Alaska Region Web page at http://www.alaskafisheries.noaa.gov/sustainablefisheries/sslpm/.

        Public Involvement

        NMFS is seeking written public comments on the scope of issues that should be addressed in the EIS and alternatives that should be considered in revising the Steller sea lion protection measures. NMFS will accept comments in writing at the address above (see ADDRESSES). Written comments should be as specific as possible to be the most helpful.

        The public is invited to attend the scoping meeting on Tuesday, October 2, 2012, in Anchorage, AK, which will be held in coordination with the NPFMC meeting. At the scoping meeting, NMFS will present background on the development of the EIS and scoping issues that have been identified. The public will have the opportunity to ask questions of NMFS staff regarding the EIS and may submit written comments at that time (see ADDRESSES).
        Please visit the NMFS Alaska Region Web page at http://www.alaskafisheries.noaa.gov/sustainablefisheries/sslpm/for more information on this EIS, guidance for submitting effective public comments, and to order a draft EIS. NMFS estimates that a draft EIS will be available in May 2013.
        Special Accommodations
        These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Gail Bendixen, NPFMC, 907-271-2809, at least five days prior to the meeting date.

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

          Dated: August 27, 2012.
          Lindsay Fullenkamp,
          Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. 2012-21477 Filed 8-29-12; 8:45 am]
      BILLING CODE 3510-22-P


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 600
        RIN 0648-AU46
        [Docket No. 070118011-7011-01; I.D. 062906A]
        Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Observer Health and Safety

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

          ACTION:
          Proposed rule; request for comments.

          SUMMARY:
          This proposed rule would enhance the safety of observers and the efficiency of their deployment. The proposed rule would clarify prohibited actions regarding observers, reinforce that an observer may not be deployed or stay aboard an unsafe vessel, clarify when a fishing vessel is inadequate for observer deployment and how an owner or operator can resolve discrepancies, improve communications between observer programs and fishing vessel owners and operators, and provide for an alternate safety equipment examination of certain small fishing vessels. This proposed rule is necessary to maintain and improve the safety and effectiveness of fishing vessel observers in carrying out their duties as authorized by the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) and the fishery management plans and regulations adopted under the Magnuson-Stevens Act.

          DATES:
          Comments must be received by 5 p.m., EST, on March 1, 2007.

          ADDRESSES:
          You may submit comments on this proposed rule or its Initial Regulatory Flexibility Analysis (IRFA), identified by 0648-AU46, by any of the following methods:
          • E mail: 0648-AU46@noaa.gov. Include in the subject line of the e mail comment the following document identifier: “Observer Safety Measures.” Comments sent via e mail, including all attachments, must not exceed a 10 megabyte file size.
          • Federal e Rulemaking portal: http://www.regulations.gov. Follow the instructions for submitting comments.
          • Mail: Lisa Desfosse, Team Leader, National Observer Program, National Marine Fisheries Service, 1315 East-West Highway, Rm 12525, Silver Spring, MD 20910
          • Fax: 301-713-4137.

          Copies of the Regulatory Impact Review prepared for this action may be obtained from Lisa Desfosse. Requests should indicate whether paper copies or electronic copies on CD-ROM are preferred. These documents are also available at the following website: http://www.st.nmfs.noaa.gov/st4/nop/index.html.

          FOR FURTHER INFORMATION CONTACT:
          Lisa Desfosse at 301-713-2328.

        SUPPLEMENTARY INFORMATION:
        Background
        The Magnuson-Stevens Act, as amended; (16 U.S.C. 1801 et seq.), the Marine Mammal Protection Act, as amended (MMPA; 16 U.S.C. 1361 et seq.), the Endangered Species Act, as amended (ESA; 16 U.S.C. 1531 et seq.), and the Atlantic Tunas Convention Act, as amended (ATCA; 16 U.S.C. 971 et seq.) authorize the Secretary of Commerce (Secretary) to station observers aboard commercial fishing vessels to collect scientific data required for fishery and protected species conservation and management, to monitor incidental mortality and serious injury of marine mammals and other species listed under the ESA, and to monitor compliance with existing Federal regulations. In addition, under the South Pacific Tuna Act of 1988 (SPTA, 16 U.S.C. 973 et seq.), NMFS may require observers in the South Pacific Tuna Fishery.

        Regulations governing health and safety of observers are codified at 50 CFR 600.725 and 600.746. These regulations apply to any vessel designated to carry an observer as part of a mandatory or a voluntary observer program under the Magnuson-Stevens Act, MMPA, ESA, ATCA, SPTA, or any other U.S. law. The proposed rule is necessary to maintain and improve the safety and effectiveness of observers in carrying out their duties as authorized by the Magnuson-Stevens Act, and the fishery management plans and regulations adopted under the Magnuson-Stevens Act.
        Specifically, the proposed rule would clarify and update prohibitions, change paragraph headings to better reflect contents, make pre-trip vessel safety checks mandatory, adopt a NMFS alternate safety equipment examination using a vessel safety checklist of U.S. Coast Guard (USCG) safety requirements for vessels under 26 ft (8 m) in length under the limited circumstances in which a USCG Commercial Fishing Vessel (CFV) Safety Examination cannot be conducted, and change the observer safety requirements to apply from the time a vessel is notified that it has been selected to carry an observer, rather than commencing at the moment the observer begins boarding the vessel. The proposed rule would improve the clarity of the regulations for vessel owners and operators, strengthen the ability of NMFS to enforce observer safety requirements, reduce the likelihood and associated costs of delayed fishing trips or missed observer days at sea, and improve NMFS observer data by reducing vessel selection bias associated with missed observer trips and inability to cover smaller vessels.
        Observer Samples and Observer Protection
        This proposed rule would expand the prohibitions of § 600.725, revising paragraphs (t) and (u) to prohibit tampering with or destroying an observer's samples or equipment, or interfering with a NMFS approved observer. This change is necessary because observers have reported that fishing vessel crews have interfered with their sampling programs by throwing samples or equipment overboard or otherwise destroying or tampering with samples or equipment. The current regulations do not expressly prohibit tampering with samples or equipment. The changes would also reflect that NMFS observers are now sometimes assigned to shoreside plants by removing the words “aboard a vessel.” The proposed rule modifies paragraph (p) to reflect the addition of the NMFS alternative safety examination option and to clarify that passing safety examination conditions must be maintained.
        The proposed rule also adds paragraph (w), which makes it unlawful for a person to: “fail to maintain safe conditions for the protection of observers including compliance with all USCG and other applicable rules, regulations, or statutes applicable to the vessel and which pertain to safe operation of the vessel.” This language reinforces that vessel owners or operators are responsible for assuring that USCG regulations are followed at all times an observer is aboard their vessel.
        Observer Safety
        The proposed rule changes the heading of § 600.746(b) from “Observer Requirement” to “Observer Safety” to better reflect the subject matter of the section. Currently, § 600.746(b) states that an observer is not required to board, or stay aboard, a vessel that is inadequate or unsafe as described in paragraph (c) of the section. The definition was intended to provide the observer with discretion not to board a vessel. This language is open to misinterpretation in that it would seem not to allow an observer to board a vessel to determine if the vessel is unsafe. This action proposes to replace the term “is not required” and replace it with “will not be deployed,” clarifying the original intent of the regulation that observers not depart in or stay aboard vessels inadequate for observer deployment. Further, the term “inadequate or unsafe” in these rules would be changed to “inadequate for observer deployment.” This change would clarify that, while NMFS cannot determine the absolute safety of a vessel, NMFS can require standards of accommodation and safety on a vessel prior to an observer deploying in that vessel.
        Proof of Examination
        Under the current regulations at § 600.746(c), a vessel is inadequate or unsafe for carrying an observer unless the vessel's owner or operator can: (1) show proof to NMFS of either a current USCG CFV Safety Examination decal or a USCG certificate of examination; and (2) notify NMFS of that compliance when requested. This proposed rule would amend the current regulations to allow the owner or operator to show proof of passing the USCG CFV Safety Examination when the decal may have been lost due to window replacement, other repair, or accident. The proposed rule also adds language to paragraph (d)(1), clarifying that the decal must have been issued in the past two years, or at an interval consistent with current USCG regulations. This change is necessary to give the proposed rule flexibility in the event that USCG changes its safety decal inspection interval to a longer or shorter period.
        Accommodations and Safety Requirements
        This proposed rule would update the accommodations requirement in the regulations. Each NMFS region will provide this information to vessel owners or operators in a manner appropriate to that region or fishery, as established by the appropriate Regional Administrator. The proposed rule would also clarify that both the accommodations requirement and either the USCG CFV Safety Examination requirement or alternate examination procedure set out in paragraph (g) of this section must be satisfied for the vessel to be considered adequate under the requirements of paragraph (c).
        Vessel Pre-trip Safety Check
        Recent fishing vessel casualties have highlighted the importance of safety equipment in preventing or reducing the severity of accidents on board fishing vessels. The current regulations at § 600.746(c)(3) encourage, but do not require, observers to use the pre-trip safety check, including the check for USCG required safety equipment. A vessel may have met the requirements for issuance of a current USCG CFV Safety Examination decal, or passed an appropriate USCG inspection. However, the equipment required for issuance of the decal or passing of the inspection may not be present or within its inspection parameters prior to the initial deployment of the observer (for example, the vessel may only have enough personal flotation devices for the crew, not including the observer).
        This proposed rule would require that the vessel's captain or the captain's designee accompany the observer in making a safety check to verify compliance with safety requirements prior to the initial observer deployment. The checklist used by the observer will include the six items listed in the current regulation, plus additional fishery-area and vessel specific items required by the USCG. The vessel's captain or designee would also accompany the observer in a walk through the vessel to ensure that no obviously hazardous conditions exist aboard the vessel. This pre-trip check may be incorporated into the vessel safety orientation provided by the vessel to the observer as required by 46 CFR 28.270.

        The proposed rule would also clarify that an emergency position indicating radio beacon (EPIRB), when required, must be registered to the vessel where it is located, and that survival craft, when required, must have sufficient capacity to accommodate the total number of persons, including the observer(s), that will embark on the voyage.
        NMFS Alternate Safety Equipment Examination
        The current regulations do not allow for an alternative to the USCG CFV Safety Examination in cases where NMFS observers are required to board smaller vessels in remote areas (primarily in Alaska). Although these small vessels generally comply with the USCG CFV Safety Examination standards, their small size precludes them from traveling to a location where a CFV safety examination can be performed, and USCG personnel, in certain circumstances, may not be available to travel to all remote locations to conduct an examination. This proposed rule would provide an alternative method for vessels less than 26 ft (8 m) in length to meet the safety requirement by passing an alternate safety equipment examination that is consistent with the USCG safety standards for commercial fishing vessels under 26 ft. USCG safety requirements for commercial fishing vessels are at 46 CFR part 28. A NMFS approved observer, NMFS employee, or an authorized observer provider would conduct the alternate safety examination. This alternate safety examination would only be valid for the trip for which the vessel was selected to carry an observer. This alternate safety examination would allow observer programs to increase coverage of remote fisheries, which would provide more comprehensive scientific information. Vessels would still be required to comply with applicable regional requirements governing observer accommodations, which may address adequacy, health, and safety concerns beyond the scope of USCG standards.
        Duration
        The current regulations at § 600.746(e) state that the requirements of this section apply to the time of the observer's boarding, at all times the observer is aboard, and at the time the observer is disembarking from the vessel. This proposed rule would amend the current regulations by adding the phrase “at the time of written or verbal selection of the vessel to carry an observer” by the observer program. This would make it clear that vessels are required to comply with the observer safety requirements from the time the vessel is selected to carry an observer, which is days or weeks in advance of the actual deployment date of an observer to the selected vessel, until the observer disembarks the vessel at the end of the observed trip. This amendment should accelerate the process of placing observers aboard vessels, reduce vessel selection bias associated with missed observer trips, and reduce the costs of fishing trip delay by providing an additional assurance that the selected vessel complies with the regulations on the day the observed fishing trip is scheduled. It will also give NMFS authority to enforce the safety requirements prior to the deployment of an observer by, for example, checking vessels for compliance with safety requirements.
        Classification
        NMFS has preliminarily determined that the rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.
        The proposed rule has been determined to be not significant for purposes of Executive Order 12866.
        Initial Regulatory Flexibility Analysis (IRFA)
        Section 603 of the Regulatory Flexibility Act (RFA) requires that NMFS prepare an IRFA describing the economic impact this proposed rule, if adopted, would have on small entities. These economic impacts are discussed below. A description of the action, why it is being considered, the objectives of, and the legal basis for this action are found in the Background and SUMMARY sections of the preamble. This rule does not duplicate, overlap, or conflict with any relevant federal rules. There are no reporting, recordkeeping, or other compliance costs associated with this rulemaking.
        Description and Number of Entities Affected
        NMFS has defined all fish-harvesting or hatchery businesses that are independently owned and operated, not dominant in their field of operation, with annual receipts not in excess of $4,000,000, as small businesses. NMFS estimates that approximately 8,925 commercial fishing vessels could be required to carry an observer in NMFS-regulated fisheries. Current, precise data on the number of commercial fishing vessels that are “small entities” is not presently available because year-to-year participation by such entities in any given fishery is variable, due to economic, regulatory, climatic, and other forces. However, an estimate of 8,755-8,825 vessels was derived by combining the best estimates from data available to each of the regional programs.
        The proposed rule clarifies an existing NMFS requirement that vessels display a USCG CFV Safety Examination decal. The decal is obtained after passing a USCG inspection of the vessel for compliance with USCG safety regulations. The inspection is scheduled at a time convenient to the vessel owner or operator, and is free of charge (except to some processor vessels). NMFS has not identified any disproportionate economic impacts between small and large entities for this action. Furthermore, there are no disproportionate economic impacts among groups of entities based on types of gear, areas fished, or vessel size.
        Preferred Alternative
        The benefits of the preferred alternative include increased safety for all crew members and observers. Potential costs to vessel owners or operators include the costs associated with putting the vessel in safe condition. However, this is already required by the existing NMFS regulations and is based on safety regulations promulgated and enforced by the USCG. Therefore, this rule should not impose new compliance costs.
        This proposed rule does not require that vessel operators expend more than the existing rules require (e.g. for the purchase of an additional personal floatation device). However, failure of a vessel to comply with this proposed rule may cause loss of fishing time. The cost of a lost fishing day will vary among fisheries. For example, a fishing day at sea in a multispecies fishery in the Northeast region has been valued at an average of $364, but this figure would vary in other fisheries, depending upon the value of the fishery, the type of management regime governing that fishery, and the degree to which a vessel derives its income from that fishery. The risk of loss of fishing time due to this proposed rule is minimal, because vessel owners are already required to comply with USCG safety regulations and to obtain a USCG CFV Safety Decal. NMFS anticipates that vessel owners will voluntarily ensure that their vessels comply with the safety requirements to avoid the loss of fishing time.

        Vessels would incur a small cost in allocating the captain or other crew member's time to accompany the observer on the pre-trip safety check, but this could be readily integrated into existing procedures, such as the existing requirement to orient the observer to the vessel (46 CFR 28.270). Additional benefits of this proposed rule include the avoidance of the loss of human life and the economic costs of non-lethal injury.
        “No Action” and Other Alternatives
        Under the “no action” alternative to this proposed rule, no new costs would be incurred. However, the difference between the cost of “no action” and the cost of the preferred alternative is minimal and NMFS believes that most of the affected vessels already voluntarily follow the USCG safety regulations and comply with the existing NMFS requirement for a USCG CFV Safety Decal.
        Another alternative discussed by NMFS is to allow the observer to assess, in addition to the safety requirements set out in the proposed rule, a range of considerations, such as food and accommodation quality, competence of the vessel captain and crew, and drug or alcohol use by the captain or crew. This option would broaden the safety protections of observers, but would also enable the observer to make subjective, individual determinations that not all vessels would be able to economically meet for all observers. The risk of loss of fishing days under this alternative is greater than the preferred alternative.
        Finally, NMFS considered making a NMFS employee or an authorized observer provider the judge of the adequacy of a vessel. NMFS does not believe that a NMFS employee or an observer provider is more likely to discover safety issues than the observer, so this alternative does not improve safety. This alternative also has the potential to increase the risk of lost fishing days while safety concerns are resolved, particularly if there is disagreement between the observer and NMFS or the observer provider about whether the vessel is adequate.
        A copy of the IRFA is available from NMFS (see ADDRESSES).

          List of Subjects in 50 CFR Part 600
          Fisheries, Fishing, Reporting and recordkeeping requirements.

          Dated: January 24, 2007.
          William T. Hogarth,
          Assistant Administrator for Fisheries, National Marine Fisheries Service.

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

          PART 600—MAGNUSON-STEVENS ACT PROVISIONS

        1. The authority citation for part 600 continues to read as follows:

          Authority:
          5 U.S.C. 561 and 16 U.S.C. 1801 et seq.

        2. In § 600.725, paragraphs (p), (t), and (u) are revised and paragraph (w) added to read as follows:

          § 600.725
          General prohibitions.

          (p) Fail to show proof of passing the USCG Commercial Fishing Vessel Safety Examination or the NMFS alternate safety equipment examination, or fail to maintain the vessel safety conditions necessary to pass the examination, when required by NMFS pursuant to § 600.746.

          (t) Assault, oppose, impede, intimidate, or interfere with a NMFS-approved observer.
          (u)(1) Prohibit or bar by command, impediment, threat, coercion, interference, or refusal of reasonable assistance, an observer from conducting his or her duties as an observer; or
          (2) Tamper with or destroy samples or equipment.

          (w) Fail to maintain safe conditions for the protection of observers including compliance with all USCG and other applicable rules, regulations, or statutes applicable to the vessel and which pertain to safe operation of the vessel.

        3. In § 600.746, paragraphs (b) through (f) are revised and paragraphs (g) and (h) are added to read as follows:

          § 600.746
          Observers.

          (b) Observer safety. An observer will not be deployed on, or stay aboard, a vessel that is inadequate for observer deployment as described in paragraph (c) of this section.
          (c) Vessel inadequate for observer deployment. A vessel is inadequate for observer deployment and allowing operation of normal observer functions if it:
          (1) Does not comply with the applicable regulations regarding observer accommodations (see 50 CFR parts 229, 285, 300, 600, 622, 635, 648, 660, and 679);
          (2) Has not passed a USCG Commercial Fishing Vessel Safety Examination, or
          (3) For vessels less than 26 ft (8 m) in length, has not passed an alternate safety equipment examination, as described in paragraph (g) of this section.
          (d) Display or show proof. A vessel that has passed a USCG Commercial Fishing Vessel Safety Examination must display or show proof of one of the following:
          (1) A valid USCG Commercial Fishing Vessel Safety Examination decal certifying compliance with regulations found in 33 CFR chapter I and 46 CFR chapter I, that will not expire before the end of the fishing trip, and issued within the last 2 years, or at a time interval consistent with current USCG regulations;
          (2) In situations of mitigating circumstances which may prevent a vessel from displaying a valid safety decal (broken window, etc.), NMFS, the observer, or NMFS' designated observer provider may accept the associated documentation as proof of the missing safety decal in paragraph (d)(1) of this section;
          (3) A certificate of compliance issued pursuant to 46 CFR 28.710;
          (4) A certificate of inspection pursuant to 46 U.S.C. 3311.
          (e) Visual inspection. Upon request by an observer, a NMFS employee, or a designated observer provider, a vessel owner or operator must provide correct information concerning any item relating to any safety or accommodation requirement prescribed by law or regulation, in a manner and according to a timeframe as directed by NMFS. A vessel owner or operator must also allow an observer, a NMFS employee, or a designated observer provider to visually examine any such item.
          (f) Vessel safety check. Prior to the initial deployment, the vessel owner or operator or the owner or operator's designee must accompany the observer in a walk through the vessel's major spaces to ensure that no obviously hazardous conditions exist. This action may be a part of the vessel safety orientation to be provided by the vessel to the observer as required by 46 CFR 28.270. The vessel owner or operator or the owner or operator's designee must also accompany the observer in checking the following major items as required by applicable USCG regulations:
          (1) Personal flotation devices/immersion suits;
          (2) Ring buoys;
          (3) Distress signals;
          (4) Fire extinguishing equipment;
          (5) Emergency position indicating radio beacon (EPIRB), when required, registered to the vessel where it is located;

          (6) Survival craft, when required, with sufficient capacity to accommodate the total number of persons, including the observer(s), that will embark on the voyage; and
          (7) Other fishery-area and vessel specific items required by the USCG.
          (g) Alternate safety equipment examination. If a vessel is under 26 ft (8 m) in length, and NMFS has determined that the USCG cannot provide a USCG Commercial Fishing Vessel Safety Examination due to unavailability of inspectors or to unavailability of transportation to or from an inspection station, the vessel will be adequate for observer deployment if it passes an alternate safety equipment examination conducted by a NMFS certified observer, observer provider, or a NMFS observer program employee, using a checklist of USCG safety requirements for commercial fishing vessels under 26 ft (8 m) in length. Passage of the alternative examination will only be effective for the single trip selected for observer coverage.
          (h) Duration. The requirements of this section apply at the time the vessel owner or operator is notified orally or in writing by an observer, a NMFS employee, or a designated observer provider, that his or her vessel has been selected to carry an observer. The requirements of this section continue to apply through the time of the observer's boarding, at all times the observer is aboard, and at the time the observer disembarks from the vessel at the end of the observed trip.

      [FR Doc. E7-1444 Filed 1-29-07; 8:45 am]
      BILLING CODE 3510-22-S


        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        RIN 1018-AG93

        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Sidalcea keckii (Keck's checkermallow)

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; notice of availability of draft economic analysis; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service) announce the availability of the draft economic analysis for the proposed designation of critical habitat for Sidalcea keckii (Keck's checkermallow) located in Fresno and Tulare Counties, California. We are reopening the comment period for the proposal to designate critical habitat for this species to allow all interested parties to comment simultaneously on the proposed rule and the associated draft economic analysis. Comments previously submitted need not be resubmitted as they will be incorporated into the public record as part of this extended comment period, and will be fully considered in the final rule.

          DATES:
          We will accept comments on both the draft economic analysis and the proposed critical habitat designation until December 2, 2002.

          ADDRESSES:
          Written comments and information should be submitted to the Field Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, CA 95825. For the electronic mail address, and further instructions on commenting, refer to Public Comments Solicited section of this notice.

          FOR FURTHER INFORMATION CONTACT:
          Susan Moore, at the address above (telephone 916/414-6600; facsimile 916/414-6710).

        SUPPLEMENTARY INFORMATION:
        Background

          Sidalcea keckii (Keck's checkermallow) is an annual herb of the mallow family (Malvaceae) endemic (native and restricted to) the western foothills of the Sierra Nevada mountains in California. It produces bright pink flowers in April and early May, and likely forms a persistent soil seed bank consisting of viable seeds from numerous years. S. keckii was first described in 1940 from samples taken near the town of White River in southern Tulare County, but the plant could not be relocated by botanists for over 50 years. Many botanists had presumed it to be extinct when a new population was discovered near Mine Hill in central Tulare County in 1992. Based on soils information from the new site, surveys were conducted on a previously documented site in the Piedra area of Fresno County, and a population was rediscovered there in 1998. We have recently learned of another population discovered near Piedra in 2002, but we do not yet have details regarding its exact location (John Stebbins, Herbarium Curator, California State University, in litt., 2002). We have also received information that the standing population at Mine Hill may have been extirpated by conversion of the habitat to an orange grove (J. Stebbins, in litt., 2002). Much of the area around the original population at Mine Hill remains potentially viable however, and may contain a seed bank or standing plants.
        We listed Sidalcea keckii as an endangered species under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.) on February 16, 2000 (65 FR 7757). On June 19, 2002, we proposed three critical habitat units for the plant totaling approximately 438 hectares (ha) (1,085 acres (ac)) (67 FR 41669). The proposed critical habitat units are located near Piedra in Fresno County, and near Mine Hill and White River in Tulare County. The areas are all privately owned except for 3 ha (7 ac) of Federal land at the Piedra site managed by the U.S. Bureau of Reclamation. Approximately 77 ha (189 ac) of the privately owned land at the Piedra site is on a reserve established by the Sierra Foothill Conservancy for the protection of S. keckii and other rare plants.
        Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Act with regard to actions carried out, funded, or authorized by a Federal agency. Section 4(b)(2) of the Act requires that the Secretary of the Interior shall designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact of specifying any particular area as critical habitat.

        The public comment period for the June 19, 2002, proposal originally closed on August 19, 2002. We have prepared a draft economic analysis on the effects of the proposed critical habitat designation, and are now announcing its availability for review. The draft analysis estimates the foreseeable economic impacts of the critical habitat designation on government agencies and private businesses and individuals. Reopening of the comment period will provide the public an opportunity to evaluate and comment on both the proposed rule and the draft economic analysis. Comments already submitted on the proposed designation of critical habitat for Sidalcea keckii do not need to be resubmitted as they will be fully considered in the final determination.
        Public Comment Solicited

        The final economic analysis concerning the designation of critical habitat for Sidalcea keckii will consider information and recommendations from all interested parties. We will accept written comments and information during this reopened comment period. If you wish to comment, you may submit your comments and materials concerning this proposal by any of several methods:
        You may mail or hand-deliver written comments and information to the Field Supervisor, Sacramento Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2800 Cottage Way, Suite W-2605, Sacramento, CA 95825. Hand deliveries must be made during normal business hours.
        You may also send comments by electronic mail (e-mail) to fw1kecks_checkermallow@fws.gov.

        Hand-delivered or mailed comments and information should be submitted to the Sacramento Fish and Wildlife Office, as found in the ADDRESSES section. Comments and information submitted by e-mail should be addressed to fw1kecks_checkermallow@fws.gov. If you submit comments by e-mail, please submit them as an ASCII file and avoid the use of special characters and any form of encryption. Please also include a return address in your e-mail message. If you do not receive a confirmation from the system that we have received your e-mail message, contact us directly by calling our Sacramento Fish and Wildlife Office at telephone number 916/414-6600, during normal business hours.
        We solicit comments or suggestions from the public, other concerned governmental agencies, tribes, the scientific community, industry, or any other interested parties concerning the proposal or the draft economic analysis. We particularly seek comments concerning:
        (1) Plans or potential for development within the area proposed to be designated, notwithstanding the comments of the county employee contacted in preparing the economic analysis;
        (2) Plans or potential for conversion of land within the area proposed to be designated to other types of agricultural uses, such as vineyards, which might require a permit under section 404 of the Clean Water Act, or other types of Federal permits;
        (3) The likelihood of “stigma effects” and costs associated with the designation; and
        (4) The likely effects and resulting costs arising from the California Environmental Quality Act and other State laws as a result of the designation.

        Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours at our office listed in the ADDRESSES section. Copies of the draft economic analysis are available on the Internet at www.r1.fws.gov or by writing or calling Susan Moore, at the address or telephone number listed above.
        Author
        The primary author of this notice is Glen Tarr (see
          ADDRESSES section).
        Authority

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

          Dated: October 23, 2002.
          Paul Hoffman,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 02-27649 Filed 10-30-02; 8:45 am]
      BILLING CODE 4310-55-P