        DEPARTMENT OF THE INTERIOR
        Fish and Wildlife Service
        50 CFR Part 17
        [Docket No. FWS-R8-ES-2009-0062; 92210-1117-0000-B4]
        RIN 1018-AW85
        Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Buena Vista Lake Shrew

          AGENCY:
          Fish and Wildlife Service, Interior.

          ACTION:
          Proposed rule; reopening of comment period.

          SUMMARY:

          We, the U.S. Fish and Wildlife Service (Service), announce the reopening of the comment period on the October 21, 2009, proposed designation of revised critical habitat for the Buena Vista Lake shrew (Sorex ornatus relictus) (shrew) under the Endangered Species Act of 1973, as amended (Act). We also announce the availability of a draft economic analysis (DEA) of the proposed designation of revised critical habitat for the shrew and an amended required determinations section of the proposed rule. We are reopening the comment period for an additional 60 days to allow all interested parties an opportunity to comment simultaneously on the proposed revised critical habitat designation, the associated DEA, and the amended required determinations section. We also announce a public hearing; the public is invited to review and comment on the proposed revised critical habitat designation at the public hearing or in writing. Comments previously submitted need not be resubmitted, as they will be fully considered in preparation of the final rule.

          DATES:

            Written Comments: We will consider comments received on or before June 27, 2011. Comments must be received by 11:59 p.m. Eastern Time on the closing date. Any comments that we receive after the closing date may not be considered in the final decision on this action.

            Public Hearing: We will hold the public hearing on June 8, 2011. The first hearing session will start at 1 p.m. Pacific Time with doors opening at 12:30, and the second session at 6 p.m. with doors opening at 5:30.

          ADDRESSES:
          You may submit written comments by one of the following methods:
          (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. FWS-R8-ES-2009-0062, which is the docket number for this rulemaking.
          (2) By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R8-ES-2009-0062; Division of Policy and Directives Management; U.S. Fish and Wildlife Service; 4401 N. Fairfax Drive, MS 2042-PDM; Arlington, VA 22203.

            Public Hearing: We will hold the public hearing at the Doubletree Hotel, 3100 Camino Del Rio Court, Bakersfield, California.

          We will post all comments and the public hearing transcript on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

          FOR FURTHER INFORMATION CONTACT:
          Susan Moore, Field Supervisor, or Karen Leyse, Listing Coordinator, U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento, CA 95825; by telephone (916) 414-6600; or by facsimile (916) 414-6713. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at (800) 877-8339.

        SUPPLEMENTARY INFORMATION:

        Public Comments

        We will accept written comments and information during this reopened comment period on our proposed designation of revised critical habitat for the Buena Vista Lake shrew that we published in the Federal Register on October 21, 2009 (74 FR 53999), our DEA of the proposed revised designation, and the amended required determinations provided in this document. We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

        (1) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.), including whether there are threats to the species from human activity, the degree of which can be expected to increase due to the designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat is not prudent.
        (2) Specific information on:
        (a) The distribution of the Buena Vista Lake shrew, including the locations of any additional populations of this species that would help us further refine boundaries of critical habitat;
        (b) The amount and distribution of Buena Vista Lake shrew habitat, including areas that provide habitat for the shrew that we did not discuss in the proposed revised critical habitat rule;
        (c) What areas occupied by the species at the time of listing that contain features essential for the conservation of the species we should include in the designation, and why; and
        (d) What areas not occupied at the time of listing are essential to the conservation of the species, and why.
        (3) Land use designations and current or planned activities in the subject areas and their possible impacts on proposed revised critical habitat.
        (4) Any foreseeable economic, national security, or other relevant impacts that may result from designating any area that may be included in the final designation. We are particularly interested in any impacts on small entities, and the benefits of including or excluding areas from the proposed designation that are subject to these impacts.
        (5) Whether our approach to designating critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.
        (6) Information on the extent to which the description of economic impacts in the DEA is complete and accurate.

        (7) The likelihood of adverse social reactions to the designation of critical habitat, as discussed in the DEA, and how the consequences of such reactions, if likely to occur, would relate to the conservation and regulatory benefits of the proposed revised critical habitat designation.
        (8) Whether any specific areas being proposed as critical habitat should be excluded under section 4(b)(2) of the Act, and whether the benefits of potentially excluding any particular area outweigh the benefits of including that area under section 4(b)(2) of the Act. See Areas Previously Considered for Exclusion Under Section 4(b)(2) of the Act section below for further discussion.
        If you submitted comments or information on the proposed rule (74 FR 53999) during the initial comment period from October 21, 2009, to December 21, 2009, please do not resubmit them. We will incorporate them into the public record as part of this comment period, and we will fully consider them in the preparation of our final determination. Our final determination concerning revised critical habitat will take into consideration all written comments and any additional information we receive during both comment periods. On the basis of public comments, we may, during the development of our final determination, find that areas proposed are not essential, are appropriate for exclusion under section 4(b)(2) of the Act, or are not appropriate for exclusion.

        You may submit your comments and materials concerning the proposed rule or DEA by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.
        If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

        Comments and materials we receive, as well as supporting documentation we used in preparing the proposed rule and the DEA, will be available for public inspection at http://www.regulations.gov at Docket No. FWS-R8-ES-2009-0062, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule and the DEA on the Internet at http://www.regulations.gov at Docket No. FWS-R8-ES-2009-0062, or by mail from the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Public Hearing

        We have scheduled a public hearing on the proposed rule. It will be held on the date listed in the DATES section at the address listed in the ADDRESSES section. We are holding a public hearing to provide interested parties an opportunity to provide verbal testimony (formal, oral comments) or written comments regarding the proposed revised critical habitat designation, the associated DEA, and the amended required determinations section. Anyone wishing to make an oral statement at the public hearing for the record is encouraged to provide a written copy of their statement to us at that hearing. In the event there is a large attendance, the time allotted for oral statements may be limited. Speakers can sign up only at the hearing. Oral and written statements receive equal consideration. There are no limits on the length of written comments submitted to us. If you have any questions concerning the public hearing or need reasonable accommodations to attend and participate in the public hearing, please contact one of the people listed in the FOR FURTHER INFORMATION CONTACT section as soon as possible, but no later than one week before the hearing date, to allow sufficient time to process requests.
        Background

        It is our intent to discuss only those topics directly relevant to the designation of revised critical habitat for the Buena Vista Lake shrew in this document. For more information on previous Federal actions concerning the Buena Vista Lake shrew, refer to the proposed designation of critical habitat published in the Federal Register on October 21, 2009 (74 FR 53999). Additional relevant information may be found in the final rule to designate critical habitat for the Buena Vista Lake shrew published on January 24, 2005 (70 FR 3437). For more information on the Buena Vista Lake shrew or its habitat, refer to the final listing rule published in the Federal Register on March 6, 2002 (67 FR 10101), which is available online at http://www.regulations.gov at Docket No. FWS-R8-ES-2009-0062, or by mail from the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Previous Federal Actions
        On August 19, 2004, we proposed critical habitat for the shrew on approximately 4,649 acres (ac) (1,881 hectares (ha)) in Kern County, California (69 FR 51417). On January 24, 2005, we published a final rule (70 FR 3437) designating 84 ac (34 ha) of critical habitat for the shrew in Kern County, California. The decrease in acreage between the proposed rule and final rule resulted from exclusions under section 4(b)(2) of the Act and, to a small degree, refinements in our mapping of critical habitat boundaries.

        On October 2, 2008, the Center for Biological Diversity filed a complaint in the U.S. District Court for the Eastern District of California challenging the Service's designation of critical habitat for the shrew (Center for Biological Diversity v. United States Fish and Wildlife, et al., Case No. 08-CV-01490-AWI-GSA). On July 9, 2009, the Court approved a stipulated settlement agreement in which the Service agreed to submit a revised proposed rule to the Federal Register within 90 days of the signed agreement. The revised proposed rule was to encompass the same geographic area as the August 19, 2004 (69 FR 51417), proposed critical habitat designation.

        On October 21, 2009, we published a proposed rule to revise critical habitat for the Buena Vista Lake shrew (74 FR 53999). We proposed to designate approximately 4,649 ac (1,881 ha) in five units located in Kern County, California, as critical habitat. That proposal had a 60-day comment period, ending December 21, 2009. Additionally, the Service agreed to submit to the Federal Register for publication, on or before March 22, 2012, a final determination on revised critical habitat for the shrew. The proposed rule (74 FR 53999) that published in the Federal Register on October 21, 2009, complies with the July 9, 2009, stipulated agreement.
        The current designation of critical habitat for the Buena Vista Lake shrew (70 FR 3437, January 24, 2005) remains in full force and effect until we publish a new final rule revising critical habitat for the shrew.
        Critical Habitat

        Section 3 of the Act defines critical habitat as the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features essential to the conservation of the species and that may require special management considerations or protection, and specific areas outside the geographical area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. If the October 21, 2009, proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency. Federal agencies proposing actions affecting critical habitat must consult with us on the effects of their proposed actions, under section 7(a)(2) of the Act.
        Consideration of Impacts Under Section 4(b)(2) of the Act
        Section 4(b)(2) of the Act requires that we designate or revise critical habitat based upon the best scientific data available, after taking into consideration the economic impact, impact on national security, or any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.
        When considering the benefits of inclusion for an area, we consider the additional regulatory benefits that area would receive from the protection from adverse modification or destruction as a result of actions with a Federal nexus (activities conducted, funded, permitted, or authorized by Federal agencies), the educational benefits of mapping areas containing essential features that aid in the recovery of the listed species, and any benefits that may result from designation due to State or Federal laws that may apply to critical habitat.
        When considering the benefits of exclusion, we consider, among other things, whether exclusion of a specific area is likely to result in conservation; the continuation, strengthening, or encouragement of partnerships; or implementation of a management plan. In the case of the Buena Vista Lake shrew, the benefits of critical habitat include public awareness of the presence of the shrew and the importance of habitat protection, and, where a Federal nexus exists, increased habitat protection for the shrew due to protection from adverse modification or destruction of critical habitat. In practice, situations with a Federal nexus exist primarily on Federal lands or for projects undertaken by Federal agencies.
        Areas Previously Considered for Exclusion Under Section 4(b)(2) of the Act
        In the January 24, 2005, final rule (70 FR 3437), we determined what lands had essential features under the definition of critical habitat in section 3(5)(A) of the Act, and evaluated those lands in order to ascertain if any specific areas were appropriate for exemption or exclusion from critical habitat under sections 4(a)(3) or 4(b)(2) of the Act. We did not include the proposed Kern National Wildlife Refuge (Refuge) Unit in the final designation as critical habitat because we determined that the unit had management plans already in place to provide for the conservation of the shrew, and no further special management or protection was required. For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain physical and biological features which are essential to the conservation of the species and which may require special management considerations or protection. The presence of a management plan does not mean that special management considerations or protection are not required, and as a result, we have included the Refuge in this proposed revised designation. In addition, we excluded three proposed critical habitat units (the Goose Lake Unit, the Kern Fan Recharge Area Unit, and the Coles Levee Unit) in the January 24, 2005, final rule because we determined that the benefits of excluding lands under appropriate management for the Buena Vista Lake shrew outweighed the benefits of their inclusion within critical habitat. We determined that ongoing management of these areas would provide conservation benefits that would negate the need for critical habitat designation. We also determined that critical habitat designation might hinder conservation of habitat for the shrew by discouraging the involvement of local jurisdictions and private landowners without providing any counterbalancing, proactive conservation benefit.
        In the current rulemaking process, we do not intend to use the approach that we used in the 2005 final rule to evaluate the Kern National Wildlife Refuge Unit. For our upcoming final determination, we will re-evaluate management planning and implementation for this unit as well as for the rest of the proposed revised critical habitat units and will weigh the benefits of excluding these areas against the benefits of including them in critical habitat under section 4(b)(2) of the Act.

        In the October 21, 2009, proposed rule (74 FR 53999), we have not proposed to exclude any areas from critical habitat. However, the final decision on whether to exclude any areas will be based on the best scientific data available at the time of the final designation, including information obtained during the comment period and information about the economic impact of designation. Accordingly, we have prepared a draft economic analysis concerning the proposed revised critical habitat designation, which is available for review and comment (see ADDRESSES).
        Draft Economic Analysis

        The purpose of the DEA is to identify and analyze the potential economic impacts associated with the proposed revised critical habitat designation for the Buena Vista Lake shrew that we published in the Federal Register on October 21, 2009 (74 FR 53999). The DEA separates conservation measures into two distinct categories according to “without critical habitat” and “with critical habitat” scenarios. The “without critical habitat” scenario represents the baseline for the analysis, considering protections otherwise afforded to the Buena Vista Lake shrew (e.g., under the Federal listing and other Federal, State, and local regulations). The “with critical habitat” scenario describes the incremental impacts specifically due to designation of critical habitat for the species. In other words, these incremental conservation measures and associated economic impacts would not occur but for the designation. Conservation measures implemented under the baseline (without critical habitat) scenario are described qualitatively within the DEA, but economic impacts associated with these measures are not quantified. Economic impacts are only quantified for conservation measures implemented specifically due to the designation of critical habitat (i.e., incremental impacts).

        The 2011 DEA provides estimated costs of the foreseeable potential economic impacts of the proposed revised critical habitat designation for the Buena Vista Lake shrew over the next 20 years, which was determined to be the appropriate period for analysis because limited planning information is available for most activities to forecast activity levels for projects beyond a 20-year timeframe. It identifies potential incremental costs as a result of the proposed revised critical habitat designation; these are those costs attributed to critical habitat over and above those baseline costs attributed to listing. The DEA quantifies economic impacts of the Buena Vista Lake shrew conservation efforts associated with the following categories of activities: (1) Water availability and delivery, (2) agricultural production, and (3) energy development. In addition, the DEA identifies potential economic impacts due to additional administrative costs as part of future section 7 consultations on pipeline removal or construction, habitat restoration and water channel maintenance work, and invasive species management (IEC 2011, p. 4-2). To provide an understanding of the potential economic impacts, the DEA determines the scope and scale of economic activities within the proposed revised critical habitat; identifies threats to Buena Vista Lake shrew habitat associated with these economic activities; identifies conservation measures that may be implemented to avoid or minimize these threats; and to the extent feasible, quantifies the economic costs of these measures. The DEA considers and estimates the impacts of the rule as currently proposed and as if the existing 2005 critical habitat designation does not exist (IEC 2011, p. 2-2). As a result, costs incurred as a result of the 2005 designation are not separately documented in the DEA.
        The DEA considers both economic efficiency and distributional effects that may result from efforts to protect the shrew and its habitat. Economic efficiency effects generally reflect the “opportunity costs” associated with the commitment of resources required to accomplish species and habitat conservation. The DEA also addresses how potential economic impacts are likely to be distributed, including an assessment of any local or regional impacts of habitat conservation and the potential effects of conservation activities on small entities and the energy industry. Decision-makers can use this information to assess whether the effects of the critical habitat designation might unduly burden a particular group or economic sector.
        The DEA concludes that incremental impacts resulting from the critical habitat designation are limited to additional administrative costs of section 7 consultation. There are two primary sources of uncertainty associated with the incremental effects analysis: (1) The actual rate of future consultation is unknown, and (2) future land use on private lands is uncertain. The analysis does not identify any future projects on private lands beyond those covered by existing baseline projections. Section 7 consultation on the shrew has not occurred on private lands that are not covered by conservation plans (Units 2 and 5). As a result, the analysis does not forecast incremental impacts due to such measures. However, if zoning of these lands changes in the future and new projects are identified, shrew conservation may change.

        The DEA estimates total potential incremental economic impacts in areas proposed as revised critical habitat over the next 20 years (2011 to 2030) to be approximately $133,000 ($11,700 annualized) in present value terms applying a 7 percent discount rate (IEC 2011, p. 4-2). Administrative costs associated with section 7 consultations on a variety of activities (including pipeline construction and removal, delivery of water supplies under the Central Valley Project, pesticide applications for invasive species, and restoration activities) in proposed critical habitat Units 2, 3, and 4 are expected to total approximately $53,900 over the next 20 years and make up the largest portion of post-designation incremental impacts, accounting for approximately 39 percent of the forecast incremental impacts (IEC 2011, pp. 4-11-4-12). Pacific Gas and Electric (PG&E) has facilities in three of the proposed critical habitat units. Impacts associated with section 7 consultations on PG&E operations and maintenance activities represent approximately 31 percent of the total incremental costs and are expected to total $40,700 over the next 20 years. Incremental impacts due to costs of internal consultations at the Kern National Wildlife Refuge are expected to total $16,000 over the next 20 years, which represents approximately 12 percent of total incremental impacts. Incremental costs of section 7 consultations with the U.S. Army Corps of Engineers due to Clean Water Act (33 U.S.C. 1251 et seq.) permitting are estimated to total $12,600, and represent approximately 10 percent of total incremental costs. Finally, the present value incremental impact of reviewing an update to the City of Bakersfield's management plan and an estimated two formal section 7 consultations over the next 20 years for the shrew at Unit 3 is estimated at $9,660, and represents approximately 7.2 percent of the overall incremental impacts. No incremental impacts are estimated to be incurred by Aera Energy LLC for their activities at the Coles Levee Ecosystem Preserve (IEC 2011, pp. 4-5-4-13).
        The incremental costs described above are further broken down by location of expected incremental costs within the five proposed critical habitat units. The greatest incremental impacts are due to cost of section 7 consultations forecast to occur for activities within the Kern Fan Recharge area (proposed Unit 3) ($84,000), and make up 66 percent of the overall incremental impacts. The second largest incremental impacts are predicted to occur within the Kern National Wildlife Refuge (proposed Unit 1) with present value impacts at $20,800, comprising just over 16 percent of the overall incremental impacts. Incremental impacts associated with section 7 consultations for activities occurring on the Goose Lake Unit (proposed Unit 2), are forecast at $16,500 of present value impacts, and makes up 13 percent of the overall incremental impacts. Incremental impacts due to section 7 consultations occurring on the Coles Levee Unit (proposed Unit 4) are estimated to be $6,340 in present value impacts, comprising 5 percent of total incremental impacts. No projected incremental impacts are forecast to occur on the Kern Lake Unit (proposed Unit 5). The consultations forecast for proposed critical habitat Units 2 and 5 are limited to those associated with occasional permitted pipeline, restoration, or water projects.
        As we stated earlier, we are soliciting data and comments from the public on the DEA, as well as all aspects of the proposed rule and our amended required determinations. We may revise the proposed rule or supporting documents to incorporate or address information we receive during the public comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area, provided the exclusion will not result in the extinction of this species.
        Required Determinations—Amended
        In our proposed rule published in the Federal Register on October 21, 2009 (74 FR 53999), we indicated that we would defer our determination of compliance with several statutes and executive orders until the information concerning potential economic impacts of the designation and potential effects on landowners and stakeholders became available in the DEA. We have now made use of the DEA data to make these determinations. In this document, we affirm the information in our proposed rule concerning Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 12630 (Takings), E.O. 13132 (Federalism), E.O. 12988 (Civil Justice Reform), the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.), the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), the National Environmental Policy Act (42 U.S.C. 4321 et seq.), and the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951). However, based on the DEA's data, we are amending our required determinations concerning the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) and E.O. 13211 (Energy Supply, Distribution, and Use).
        Regulatory Flexibility Act

        Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Based on our DEA of the proposed revised designation, we provide our analysis for determining whether the proposed rule would result in a significant economic impact on a substantial number of small entities. Based on comments we receive, we may revise this determination as part of our final rulemaking.
        According to the Small Business Administration (SBA), small entities include small organizations, such as independent nonprofit organizations; small governmental jurisdictions, including school boards and city and town governments that serve fewer than 50,000 residents; and small businesses (13 CFR 121.201). Small businesses include manufacturing and mining concerns with fewer than 500 employees, wholesale trade entities with fewer than 100 employees, retail and service businesses with less than $5 million in annual sales, general and heavy construction businesses with less than $27.5 million in annual business, special trade contractors doing less than $11.5 million in annual business, and agricultural businesses with annual sales less than $750,000. To determine if potential economic impacts to these small entities are significant, we considered the types of activities that might trigger regulatory impacts under this designation as well as types of project modifications that may result. In general, the term “significant economic impact” is meant to apply to a typical small business firm's business operations.
        To determine if the proposed designation of revised critical habitat for the Buena Vista Lake shrew would affect a substantial number of small entities, we considered the number of small entities affected within particular types of economic activities, such as water availability and delivery, agricultural production, and energy development. In order to determine whether it is appropriate for our agency to certify that this proposed rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually. In estimating the numbers of small entities potentially affected, we also considered whether their activities have any Federal involvement. Critical habitat designation will not affect activities that do not have any Federal involvement; designation of critical habitat only affects activities conducted, funded, permitted, or authorized by Federal agencies. In areas where the shrew is present, Federal agencies already are required to consult with us under section 7 of the Act on activities they fund, permit, or implement that may affect the species. If we finalize this proposed revised critical habitat designation, consultations to avoid the destruction or adverse modification of critical habitat would be incorporated into the existing consultation process.
        In the DEA, we evaluated the potential economic effects on small entities resulting from implementation of conservation actions related to the proposed designation of revised critical habitat for the shrew. Incremental impacts of the proposed revised critical habitat for the Buena Vista Lake shrew are expected to consist largely of incremental administrative costs. Small entities may participate in section 7 consultation as a third party (the primary consulting parties being the Service and the Federal action agency). This analysis, therefore, considered that small entities may spend additional time considering critical habitat during section 7 consultation for the shrew. The incremental impacts to third parties are also included in this analysis. In order to determine whether it is appropriate for our agency to certify that this proposed rule would not have a significant economic impact on a substantial number of small entities, we considered each industry or category individually.
        The DEA states that incremental effects are expected to consist entirely of administrative costs and that such costs are likely to be borne by city and county jurisdictions, as well as by several energy utilities. The specific entities expected to bear incremental impacts are the City of Bakersfield, Kern County, PG&E, and Southern California Gas Company, none of which are considered to be small under the RFA (IEC 2011, p. A-3). Potentially, some incremental impacts borne by the energy utilities may be passed on to individual customers in the form of increased energy prices; however, the small size of the impacts is expected to make such an outcome unlikely (IEC 2011, p. A-2). Please refer to the DEA for a more detailed discussion of potential economic impacts.
        In summary, we have considered whether the proposed revised designation would result in a significant economic impact on a substantial number of small entities. Information for this analysis was gathered from the SBA, stakeholders, and the Service. None of the third-party entities identified in the DEA meet SBA's definition of a small government or business. As a result, no small businesses or governments will be affected. For the above reasons and based on currently available information, we certify that, if promulgated, the proposed revised critical habitat designation for the Buena Vista Lake shrew would not have a significant economic impact on a substantial number of small business entities. Therefore, an initial regulatory flexibility analysis is not required.
        Executive Order 13211—Energy Supply, Distribution, or Use

        Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use) requires agencies to prepare Statements of Energy Effects when undertaking certain actions. The Office of Management and Budget's guidance for implementing this Executive Order outlines nine outcomes that may constitute “a significant adverse effect” when compared to not taking the regulatory action under consideration. As discussed in Appendix A.2, the DEA finds that although PG&E and Southern California Gas Company operate facilities within the proposed revised critical habitat designation, no incremental changes in facility operation are forecast. Therefore, no changes in energy use, production, or distribution are anticipated (IEC 2011, p. A-6). Furthermore, incremental costs are $1,020 on an annualized basis, representing less than 0.01 percent of the annual revenues of these corporations. Thus, designation of revised critical habitat is not expected to lead to any adverse outcomes (such as a reduction in electricity production or an increase in the cost of energy production or distribution), and energy-related impacts associated with Buena Vista Lake shrew conservation activities within revised critical habitat are not expected. As such, the designation of revised critical habitat is not expected to significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action, and a Statement of Energy Effects is not required.
        References Cited

        A complete list of all references we cited in the proposed rule and in this document is available on the Internet at http://www.regulations.gov or by contacting the Sacramento Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).
        Authors
        The primary authors of this notice are the staff members of the Sacramento Fish and Wildlife Office, Region 8, U.S. Fish and Wildlife Service.
        Authority

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

          Dated: April 19, 2011.
          Will Shafroth,
          Acting Assistant Secretary for Fish and Wildlife and Parks.

      [FR Doc. 2011-10288 Filed 4-27-11; 8:45 am]
      BILLING CODE 4310-55-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 355
        [EPA-HQ-OLEM-2018-0318; FRL-9986-40-OLEM]
        RIN 2050-AH00
        Emergency Release Notification Regulations on Reporting Exemption for Air Emissions From Animal Waste at Farms; Emergency Planning and Community Right-to-Know Act

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:
          The Environmental Protection Agency (EPA or the Agency) is proposing to amend the release notification regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA) to add the reporting exemption for air emissions from animal waste at farms provided in section 103(e) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). In addition, EPA is proposing to add definitions of “animal waste” and “farm” to the EPCRA regulations to delineate the scope of this reporting exemption. This proposed rulemaking maintains consistency between the emergency release notification requirements of EPCRA and CERCLA in accordance with the statutory text, framework and legislative history of EPCRA, and is consistent with the Agency's prior regulatory actions.

          DATES:
          Comments must be received on or before December 14, 2018.

          ADDRESSES:

          Submit your comments, identified by Docket ID No. EPA-HQ-OLEM-2018-0318, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The 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. The 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, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

          FOR FURTHER INFORMATION CONTACT:

          Sicy Jacob, United States Environmental Protection Agency, Office of Land and Emergency Management, 1200 Pennsylvania Ave. NW (Mail Code 5104A), Washington, DC 20460; telephone number: (202) 564-8019; email address: jacob.sicy@epa.gov.

        SUPPLEMENTARY INFORMATION:
        I. General Information
        A. Does this action apply to me?
        A list of entities that could be affected by this final rule include, but are not necessarily limited to:

            Type of entity
            Examples of affected entities

            Industry
            NAICS code 111—Crop production.

            NAICS code 112—Animal production.

            States and/or Local Governments
            NAICS code 999200—State Government, excluding schools and hospitals.

            NAICS code 999300—Local Government, excluding schools and hospitals.

            State Emergency Response Commissions, Tribal Emergency Response Commissions, Tribal Emergency Planning Committees and Local Emergency Planning Committees.

        This table is not intended to be exhaustive, but rather provide a guide for readers regarding the types of entities that EPA is aware could be involved in the activities affected by this action. However, other types of entities not listed in this table could be affected by this proposed rulemaking. To determine whether your entity is affected by this action, you should carefully examine the applicability criteria found in § 355.30 of title 40 of the Code of Federal Regulations (CFR). If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.
        B. What action is the Agency taking?
        The EPA is proposing to amend the EPCRA emergency release notification regulations to include the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e). In addition, EPA is proposing to add definitions of “animal waste” and “farm” to the EPCRA regulations to delineate the scope of this reporting exemption.
        C. What is the Agency's authority for taking this action?

        This proposed rulemaking is being issued under EPCRA, which was enacted as Title III of the Superfund Amendments and Reauthorization Act (SARA) of 1986 (Pub. L. 99-499). EPA proposes this rulemaking under the authority of EPCRA section 304 (42 U.S.C. 11004) and the Agency's general rulemaking authority under EPCRA section 328 (42 U.S.C. 11048).
        II. Background of the Proposed Rule
        A. Overview
        Section 103 of CERCLA requires the person in charge of a vessel or facility to immediately notify the National Response Center (NRC) when there is a release of a hazardous substance, as defined under CERCLA section 101(14), in an amount equal to or greater than the reportable quantity for that substance within a 24-hour period. In addition to these CERCLA reporting requirements, EPCRA section 304 requires owners or operators of certain facilities to immediately notify state and local authorities when there is a release of an extremely hazardous substance (EHS), as defined under EPCRA section 302, or of a CERCLA hazardous substance in an amount equal to or greater than the reportable quantity for that substance within a 24-hour period.
        EPCRA and CERCLA are two separate but interrelated environmental laws that work together to provide emergency release notifications to Federal, state and local officials. Notice given to the NRC under CERCLA serves to inform the Federal government of a release so that Federal personnel can evaluate the need for a response in accordance with the National Oil and Hazardous Substances Contingency Plan (NCP),1
           the Federal government's framework for responding to both oil discharges and hazardous substance releases. Relatedly, notice under EPCRA is given to the State Emergency Response Commission (SERC) for any state likely to be affected by the release and to the community emergency coordinator for the Local Emergency Planning Committee (LEPC) for any area likely to be affected by the release so that state and local authorities have information to help protect the community.

            1 40 CFR part 300.

        Release reporting under EPCRA depends, in part, on whether reporting is required under CERCLA.2
           Specifically, EPCRA section 304(a) provides for reporting under the following three release scenarios:

            2 In this document, emergency release notification and release reporting are used interchangeably.

        • EPCRA section 304(a)(1) requires notification if a release of an EPCRA EHS occurs from a facility at which a hazardous chemical is produced, used or stored, and such release requires a notification under CERCLA section 103(a).
        • EPCRA section 304(a)(2) requires notification if a release of an EPCRA EHS occurs from a facility at which a hazardous chemical is produced, used or stored, and such release is not subject to the notification requirements under CERCLA section 103(a), but only if the release:
        ○ Is not a federally permitted release as defined in CERCLA section 101(10),
        ○ Is in an amount in excess of the reportable quantity as determined by EPA, and
        ○ Occurs in a manner that would require notification under CERCLA section 103(a).
        • EPCRA section 304(a)(3) requires notification if a release of a substance not designated as an EPCRA EHS occurs from a facility at which a hazardous chemical is produced, used or stored, and such release requires a notification under CERCLA section 103(a).
        B. Fair Agricultural Reporting Method Act and Legislative Amendments to CERCLA

        On March 23, 2018, the President signed into law the Consolidated Appropriations Act, 2018 (“Omnibus Bill”). Title XI of the Omnibus Bill is entitled the “Fair Agricultural Reporting Method Act” or the “FARM Act.” See Fair Agricultural Reporting Method Act, Public Law 115-141, sections 1101-1103 (2018). The FARM Act expressly exempts reporting of air emissions from animal waste (including decomposing animal waste) at a farm from CERCLA section 103. The FARM Act also provides definitions for the terms “animal waste” and “farm.” On August 1, 2018, the Agency published a final rule to amend the CERCLA regulations at 40 CFR part 302 by adding the reporting exemption for air emissions from animal waste at farms and adding definitions of “animal waste” and “farm” from the FARM Act.
        C. Proposed Revisions to EPCRA Section 304 Release Notification Regulations
        Based on the criteria for EPCRA section 304 release reporting, EPA is proposing to amend the EPCRA release notification regulations in 40 CFR 355.31 to include the reporting exemption for air emissions from animal waste at farms. EPA is also proposing to add definitions of “animal waste” and “farm” to the definition section of the EPCRA regulations in 40 CFR 355.61 to delineate the scope of this reporting exemption. EPA believes these proposed changes appropriately reflect the relationship between CERCLA and EPCRA release reporting requirements and are consistent with the statutory text, framework and legislative history of EPCRA, as well as the Agency's prior regulatory actions.
        III. Legal Rationale for the Proposed Rule
        This proposed rulemaking maintains consistency between the emergency release notification requirements of EPCRA and CERCLA in accordance with the statutory text, framework and legislative history of EPCRA, and is consistent with the Agency's prior regulatory actions. Specifically, this proposed rulemaking is based on the relationship of the EPCRA section 304 reporting requirements to the CERCLA section 103 reporting requirements, as recently amended. As previously noted, EPCRA section 304 reporting depends, in part, on whether reporting is required under CERCLA section 103. EPCRA's legislative history further indicates that the EPCRA section 304 reporting requirements are designed to be consistent with the reporting requirements of CERCLA section 103. EPA has thus revised the EPCRA emergency release notification regulations from time to time, as appropriate, to maintain consistency with the CERCLA reporting requirements.
        Consistent with the Agency's interpretation of EPCRA section 304 and the Agency's prior regulatory actions, EPA now proposes to amend the EPCRA release notification regulations to explicitly exempt air emissions from animal waste at farms from reporting under EPCRA section 304.
        A. Statutory Text and Framework

        EPCRA section 304 provides for release reporting under three scenarios, each of which depends in some way on whether the release requires notice under CERCLA. If a release requires notice under CERCLA section 103(a), the release may be subject to reporting under EPCRA if the release meets the requirements of EPCRA section 304(a)(1) or 304(a)(3). If a release is not subject to notification under CERCLA section 103(a), the release may nonetheless be subject to reporting under EPCRA if the release meets the requirements of EPCRA section 304(a)(2). Because the FARM Act exempted air emissions from animal waste at farms from CERCLA reporting, these types of releases no longer require notice under CERCLA section 103(a) and thus do not fall within the EPCRA section 304(a)(1) or (a)(3) reporting scenarios. Instead, these releases fall within the EPCRA section 304(a)(2) reporting scenario. Pursuant to EPCRA section 304(a)(2), a release of an EPCRA EHS that is not subject to notification under section 103(a) of CERCLA need only be reported under EPCRA if the release:
        • Is not a federally permitted release as defined in section 101(10) of CERCLA,
        • Is in an amount in excess of the reportable quantity as determined by EPA, and
        • Occurs in a manner that would require notification under section 103(a) of CERCLA.
        A release that is not subject to CERCLA section 103(a) reporting must meet all three criteria in EPCRA section 304(a)(2) to be subject to EPCRA reporting. Here, air emissions from animal waste at farms could meet the first two criteria because such releases are generally not federally permitted and may exceed the applicable reportable quantity. Yet these types of releases do not “occur[] in a manner” that would require notification under CERCLA section 103(a) and thus do not meet the third criterion of EPCRA section 304(a)(2). Because air emissions from animal waste at farms do not meet all three criteria under EPCRA section 304(a)(2), and do not fall within the EPCRA section 304(a)(1) or (a)(3) reporting scenarios, these types of releases are not subject to EPCRA reporting. As such, EPA is proposing to amend EPCRA's emergency release notification regulations to clarify reporting exemptions for certain types of releases under EPCRA section 304.

        Air emissions from animal waste at farms no longer “occur[] in a manner” that would require notification under CERCLA section 103(a) because the recent amendment exempted these types of releases from CERCLA reporting. Importantly, the CERCLA reporting exemption is specifically tied to the nature or manner of these releases rather than to a specific substance. For example, the recent amendment does not exempt specific substances typically associated with animal waste (such as ammonia and hydrogen sulfide) from reporting; rather, it exempts from reporting releases of any substance from animal waste at a farm into the air. Because air emissions from animal waste do not “occur[] in a manner” that would require notification under CERCLA section 103(a), these types of releases do not meet the third criterion of EPCRA section 304(a)(2) and are thus not subject to EPCRA reporting.
        EPCRA section 304(a)(2) promotes consistency between the reporting requirements of EPCRA and CERCLA by ensuring that only releases that “occur[ ] in a manner” that would require CERCLA notification be reported under EPCRA. Yet, the provision also contemplates scenarios where releases not subject to reporting under CERCLA may still need to be reported under EPCRA, such as releases of substances designated as EHSs under EPCRA but not as hazardous substances under CERCLA. For example, trimethylchlorosilane (Chemical Abstract Service No. 75-77-4) is designated as an EPCRA EHS but not as a CERCLA hazardous substance. Since trimethylchlorosilane is not a CERCLA hazardous substance, its releases are not subject to notification under CERCLA section 103(a) and need only be reported under EPCRA if such releases meet the criteria of EPCRA section 304(a)(2). A trimethylchlorosilane release that (1) is not a federally permitted release as defined in CERCLA section 101(10); (2) exceeds the applicable reportable quantity; and (3) “occurs in a manner” that would require notification under CERCLA section 103(a) would still be subject to EPCRA reporting. In this example, a release of trimethylchlorosilane “occurs in a manner” that would require notification under CERCLA section 103(a) where, for example, the release is “into the environment” as defined in CERCLA section 101(22), and is not one of the excluded or exempted types of releases described in CERCLA sections 101(22), 103(e), or 103(f). (See section C of this preamble, for further explanation of these exemptions.) Therefore, the release of trimethylchlorosilane would be similar to other releases that require notification under CERCLA section 103(a).3

            3 See, e.g., 48 FR 23552, 23555 (May 25, 1983) (describing the nature of releases subject to CERCLA notification requirements); 52 FR 13378, 13383 (April 22, 1987) (explaining that the method used to determine whether a release meets or exceeds the applicable RQ under CERCLA “should be equally applicable to releases under [EPCRA] section 304 due to similarity to section 103 of CERCLA”).

        As another example, petroleum (including crude oil or any fraction thereof) is expressly excluded from the definition of “hazardous substance” in CERCLA section 101(14). Because of this “petroleum exclusion,” releases of petroleum are not subject to notification under CERCLA section 103(a) and so need to be reported under EPCRA only if such releases meet the criteria of EPCRA section 304(a)(2). Where a petroleum release meets the first two criteria of EPCRA section 304(a)(2), the question becomes whether the release “occurs in a manner” that would require notification under CERCLA section 103(a). Notably, unlike air emissions from animal waste at farms, Congress did not exempt petroleum releases from CERCLA reporting based on the manner or nature of these releases. Instead, Congress exempted these types of releases from CERCLA reporting by excluding petroleum (including crude oil or any fraction thereof) from the definition of “hazardous substance.” See 42 U.S.C. 9601(14). As such, these types of releases still “occur[ ] in a manner” that would require notification under CERCLA section 103(a) and could thus be subject to reporting under EPCRA section 304(a)(2) where the petroleum release contains an EHS. See 52 FR 13378, 13385 (April 22, 1987). In sum, where a CERCLA reporting exemption or the reason a release is not subject to CERCLA reporting is unrelated to the manner in which such releases occur, EPCRA section 304(a)(2) may compel reporting of such releases.

        In addition to the statutory text of EPCRA section 304(a)(2), the statutory framework of EPCRA's reporting requirements indicates a desire to maintain consistency between the EPCRA and CERCLA reporting requirements. Indeed, “[i]n drafting the EPCRA reporting requirements, Congress expressly tied them to CERCLA's” such that “all of EPCRA's reporting mandates are piggybacked on the CERCLA mandates in one form or another.” Waterkeeper Alliance v. EPA, 853 F.3d 527, 532 (D.C. Cir. 2017). Under EPCRA sections 304(a)(1) and (a)(3), EPCRA reporting depends on whether a release requires notification under CERCLA section 103(a), and under EPCRA section 304(a)(2), EPCRA reporting depends on whether a release “occurs in a manner” that would require notification under CERCLA section 103(a). Therefore, EPCRA requires reporting only for releases that require notification under CERCLA or occur in a manner that would require notification under CERCLA. Under CERCLA section 103 as amended, air emissions from animal waste at farms do not require notification under CERCLA section 103(a) and do not occur in a manner that would require such notification. As a result, these types of releases are not subject to reporting under EPCRA section 304(a)(1), (a)(2) or (a)(3). Thus, to clarify that these types of releases are not subject to reporting under EPCRA section 304, EPA is proposing to amend the EPCRA release notification regulations to exempt air emissions from animal waste at farms from reporting under section 304. In doing so, EPA seeks to avoid inconsistent regulation of these types of releases under EPCRA and CERCLA, in furtherance of the underlying purpose of this statutory framework.
        B. Legislative History

        EPA's understanding of EPCRA section 304(a)(2) is informed by the legislative history of EPCRA itself. In 1986, Congress passed EPCRA pursuant to Title III of the Superfund Amendments and Reauthorization Act (SARA). In the committee conference report addressing EPCRA, Congress discussed the three scenarios requiring release reporting under EPCRA section 304. With respect to EPCRA section 304(a)(2), the report states: “This requires notification where there is a release of an extremely hazardous substance that would require notice under section 103(a) of CERCLA but for the fact that the substance is not specifically listed under CERCLA as requiring such notice.” See 99 Cong. Conf. Report H. Rep. 962, October 3, 1986; SARA Leg. Hist. 38 (Section 304 Emergency Notification).

        Congress thus expressed its intent that state and local authorities be notified of a qualifying release under EPCRA, even if the substance released is not identified as a hazardous substance under CERCLA, when the release occurs in a manner as the types of releases that require notification under CERCLA section 103(a). Conversely, if the release occurs in a manner that Congress determines does not require notification under CERCLA section 103(a)—such as air emissions from animal waste at farms—then no reporting is required under EPCRA section 304(a)(2) (i.e., the third criterion of EPCRA section 304(a)(2) has not been met).
        The legislative history also reveals that Congress intended EPCRA section 304(a)(2) to operate to exclude continuous releases from EPCRA's immediate notification requirements because such releases do not occur in a manner that requires reporting under CERCLA section 103(a).4
           The committee conference report explains: “[R]eleases which are continuous or frequently recurring and do not require reporting under CERCLA are not required to be reported under [EPCRA section 304].” Rather, continuous releases are subject to reduced reporting requirements pursuant to CERCLA section 103(f). As explained in section C.3. of this preamble, EPA incorporated an alternative for continuous releases into EPCRA and promulgated regulations that allow continuous releases to be reported in a manner consistent with CERCLA's continuous release reporting requirements.

            4 CERCLA section 103(a) requires the person in charge of a vessel or facility to “immediately notify” the NRC when there is a release of a hazardous substance in an amount equal to or greater than the reportable quantity for that substance within a 24-hour period. In contrast, releases that are continuous and stable in quantity and rate may qualify for reduced, “continuous release” reporting under CERCLA section 103(f)(2). Similarly, EPCRA section 304 requires owners or operators of certain facilities to “immediately” notify state and local authorities of qualifying releases, and EPA has promulgated regulations that allow continuous releases to be reported under EPCRA in a manner consistent with CERCLA's continuous release reporting requirements.

        Congress's intent in adopting the three scenarios in EPCRA section 304(a)(1)-(3) was to ensure that when Federal authorities receive notice of a release under CERCLA section 103(a), state and local authorities receive similar notice under EPCRA. Note that CERCLA notification applies to the list of hazardous substances (located in 40 CFR 302.4), while EPCRA notification applies to the lists of both CERCLA hazardous substances and EPCRA EHSs (located in 40 CFR part 355 Apps. A and B). When a substance is not a listed CERCLA hazardous substance, but is on the EPCRA EHSs list, EPCRA section 304(a)(2) provides for notification only if the release of such substance occurs in a manner as the types of releases that require notification under CERCLA section 103(a). On the other hand, if Congress determines that a release occurs in a manner that does not require notification under CERCLA section 103(a), EPCRA section 304(a)(2) works to logically exclude that release from EPCRA reporting.
        C. Prior Regulatory Actions
        As noted, CERCLA release notification was established to alert Federal authorities to a release so that the need for a response can be evaluated and any necessary response undertaken in a timely fashion. EPCRA release notification supplements CERCLA release notification by similarly preparing the community at the state and local level. Based on the criteria for EPCRA section 304 release reporting, and to promote consistency between CERCLA and EPCRA release notification requirements, the Agency has incorporated many of CERCLA's release notification exemptions into the EPCRA release notification regulations through prior rulemakings. Each of these prior regulatory actions are summarized below.
        1. Exemptions From the Definition of “Release” Under CERCLA and EPCRA

        Both CERCLA and EPCRA define the term “release.” Under CERCLA section 101(22), the term “release” generally means “any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any hazardous substance or pollutant or contaminant),” but also includes specific exclusions for workplace releases, vehicle emissions, nuclear material releases and fertilizer application. Similar to the CERCLA workplace exposure exclusion, EPCRA section 304(a)(4) exempts from reporting any release which results in exposure to persons solely within the site or sites on which a facility is located. Though the definition of “release” under EPCRA section 329 mirrors the CERCLA definition, it does not contain three exclusions provided in the CERCLA section 101(22) definition of “release”: (1) Emissions from the engine exhaust of a motor vehicle, rolling stock, aircraft, vessel or pipeline pumping station engine; (2) releases of source, byproduct or special nuclear material from a nuclear incident; and (3) the normal application of fertilizer. However, because the types of releases excluded from CERCLA's definition of “release” do not occur in a manner that would be reportable under CERCLA section 103(a), these types of releases do not meet the reporting requirements under EPCRA section 304. See 52 FR 13381, 13384-85 (April 22, 1987) and related Response to Comments document, April 1987, Docket Number 300PQ. Thus, EPA adopted these statutory CERCLA exclusions into the EPCRA regulations codified at 40 CFR 355.31.5

            5 The 1987 rule codified these exemptions at 40 CFR 355.40(a)(2), which was later reorganized into 40 CFR 355.31. See 73 FR 65451 (November 3, 2008).

        2. Exemptions From Immediate Notification Requirements

        There are four types of statutory exemptions from the immediate notification requirements for releases of hazardous substances provided in CERCLA sections 101(10) and 103(e) and (f). Specifically, these statutory exemptions include: (1) Federally permitted releases, as defined in section 101(10); (2) releases from the application of a pesticide product registered under the Federal Insecticide, Fungicide and Rodenticide Act or from the handling and storage of such a pesticide product by an agricultural producer (section 103(e)); (3) certain releases of hazardous wastes that are required to be reported under the provisions of the Resource Conservation and Recovery Act and that are reported to the NRC (section 103(f)(1)); and (4) certain releases that are determined to be continuous under the provisions of section 103(f)(2).
        In the final rulemaking on April 22, 1987 (52 FR 13378) for emergency planning and release notification requirements under EPCRA, the Agency adopted exemptions from CERCLA section 103(a) reporting “based on the language in EPCRA section 304(a) which requires that releases reportable under that Section occur in a manner which would require notification under section 103(a) of CERCLA.” 52 FR 13378, 13381 (April 22, 1987).

        Although EPA stated in the April 1987 rulemaking that it was incorporating CERCLA reporting exemptions into the EPCRA regulations based on the criteria for EPCRA section 304 release reporting, the Agency inadvertently omitted the exclusion for the “application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act or to the handling and storage of such a pesticide product by an agricultural producer” from the EPCRA section 304 regulations at that time. Thus, in a technical amendment published on May 24, 1989 (54 FR 22543), EPA added a provision to the EPCRA regulations in 40 CFR 355.40(a)(2)(iv) (currently codified at 40 CFR 355.31(c)) providing that releases exempted from CERCLA section 103(a) reporting by CERCLA section 103(e) are also exempt from reporting under EPCRA section 304. In addition, the May 1989 technical amendment clarified the language in paragraph (a)(2)(v) of 40 CFR 355.40 (currently codified at 40 CFR 355.31(d)), explaining that this section exempts from EPCRA section 304 reporting “any occurrence not meeting the definition of release under section 101(22) of CERCLA,” as “[s]uch occurrences are also exempt from reporting under CERCLA section 103(a).” See 54 FR 22543, 22543 (May 24, 1989).
        3. Continuous Release Reporting

        CERCLA section 103(f) provides relief from the immediate notification requirements of CERCLA section 103(a) for a release of a hazardous substance that is continuous and stable in quantity and rate. Instead, continuous releases are subject to a significantly reduced reporting requirement under regulations promulgated pursuant to CERCLA section 103(f). In adopting the implementing regulations for EPCRA in 40 CFR part 355, EPA relied on EPCRA section 304(a)(2) to likewise exclude continuous releases from the immediate notification requirement of EPCRA section 304, reasoning: “Because such releases do not `occur in a manner' which requires immediate release reporting under section 103(a) of CERCLA, they are also not reportable under section 304 of [EPCRA].” See 52 FR 13381, 13384 (April 22, 1987). EPA later promulgated continuous release reporting regulations for EPCRA that cross-reference and follow the CERCLA continuous release reporting regulations, finding that EPCRA release reporting is “closely tied” and “parallel” to CERCLA release reporting. See 55 FR 30169, 30179 (July 24, 1990). At that time, the Agency also reiterated that “[t]o the extent that releases are continuous and stable in quantity and rate as defined by CERCLA section 103(f)(2) . . . , they do not occur in a manner that requires notification under CERCLA section 103(a)” and are thus not subject to the EPCRA section 304 immediate notification requirements. Id. (emphasis added).
        IV. Scope of Proposed Rule

        The scope of this proposed rulemaking is limited to air emissions from animal waste (including decomposing animal waste) at a farm. The Agency proposes to add this reporting exemption to the EPCRA section 304 emergency release notification regulations as implemented in 40 CFR part 355, subpart C, entitled “Emergency Release Notification.” The scope of the proposed rulemaking stems from existing requirements under EPCRA section 304(a)(2) and under CERCLA section 103(e), as amended, and is tied to the nature or manner of these releases rather than to a specific substance. In other words, the Agency is not proposing to exempt substances typically associated with animal waste (such as ammonia or hydrogen sulfide) from reporting. Rather, this proposal codifies EPA's interpretation that air emissions from animal waste at farms are not subject to EPCRA section 304 release reporting by explicitly exempting releases from animal waste into the air at farms from reporting. Thus, the Agency is proposing to exclude all releases to the air from animal waste at a farm from reporting under EPCRA section 304.

        The proposed rulemaking does not apply to releases of substances from animal waste into non-air environmental media, nor to releases into the air from sources other than animal waste or decomposing animal waste at a farm. For example, a release from animal waste into water (e.g., a lagoon breach) or a release from an anhydrous ammonia storage tank into the air might trigger reporting requirements if the release exceeds the applicable reportable quantities.
        This proposed exemption would be added to those currently listed in the EPCRA regulations codified at 40 CFR 355.31, entitled “What types of releases are exempt from the emergency release notification requirements of this subpart?” To delineate the scope of this proposed exemption, EPA is also proposing to amend the definition section of the EPCRA regulations at 40 CFR 355.61 to add definitions of “animal waste” and “farm” that are consistent with CERCLA section 103(e). By proposing to add a reporting exemption for air releases from animal waste at farms to the EPCRA emergency release notification regulations, EPA is not reopening or proposing revisions to the existing reporting exemptions codified in 40 CFR 355.31, nor will EPA consider or respond to comments related to the existing reporting exemptions. Comments received on the existing reporting exemptions will be outside the scope of this proposed action.
        V. Relationship of  Waterkeeper Alliance  v.  EPA  to This Proposed Rule

        In 2008, EPA issued an administrative reporting exemption for air releases from animal waste at farms (73 FR 76948, December 18, 2008). Specifically, the rule exempted all farms from CERCLA's reporting requirements for air releases of any hazardous substance from animal waste. Under EPCRA, the 2008 rule exempted reporting of such releases if the farm had fewer animals than a large concentrated animal feeding operation, as defined by the Clean Water Act. The 2008 administrative reporting exemption was ultimately vacated by the U.S. Court of Appeals for the District of Columbia Circuit in Waterkeeper Alliance v. EPA, 853 F.3d 527 (D.C. Cir. 2017). In vacating the rule, the court found that the Agency could not rely on general rulemaking authority or a de minimis exception to issue an administrative reporting exemption for this category of releases, particularly where the Agency had failed to identify any statutory ambiguity as the basis for its interpretation of the reporting requirements.

        This proposal to amend the EPCRA section 304 release notification regulations to exempt air emissions from animal waste at farms is not constrained by the D.C. Circuit's decision in Waterkeeper. In contrast to the 2008 rule, this proposed rulemaking is not an administrative reporting exemption stemming from EPA's general rulemaking authority. This proposal is instead rooted in EPCRA section 304 and its relationship with CERCLA section 103 and as informed by EPCRA section 304's statutory text, framework and legislative history.
        VI. Proposed Revisions to 40 CFR Part 355
        A. Exemption for Air Emissions From Animal Waste at Farms
        For the reasons stated throughout this preamble, EPA is proposing to amend the EPCRA section 304 release notification regulations to exempt air emissions from animal waste (including decomposing animal waste) at a farm from reporting. Currently, the regulations at 40 CFR 355.31 list the releases that are exempt from reporting under EPCRA section 304, including the exemptions adopted from CERCLA through prior rulemakings. The Agency is proposing to amend 40 CFR 355.31 by adding a reporting exemption for air emissions from animal waste at farms. EPA seeks comment on this proposed revision.
        B. Definitions
        EPA is proposing to add the definitions of “animal waste” and “farm” applicable to CERCLA section 103(e) to the definition section of the EPCRA regulations codified at 40 CFR 355.61. EPA requests comment on adding these definitions to 40 CFR 355.61.
        VII. Statutory and Executive Orders Reviews

        Additional information about these statutes and Executive Orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
        A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
        This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket.
        B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs
        This action is not an Executive Order 13771 regulatory action because the proposed rule would not result in additional costs.
        C. Paperwork Reduction Act (PRA)
        This action does not impose any new information collection burden under the PRA. The Agency is proposing to codify a provision exempting farms from reporting air releases from animal waste under EPCRA section 304 release notification regulations.
        D. Regulatory Flexibility Act (RFA)
        I certify that this action would not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. Consistent with the Agency's interpretation that air emissions from animal waste at farms are not subject to EPCRA section 304 release reporting, the proposed rule explicitly exempts these types of releases from EPCRA reporting and would not result in additional costs.
        E. Unfunded Mandates Reform Act (UMRA)
        This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector. The Agency is proposing to amend the EPCRA section 304 release notification regulations to add the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e), as amended.
        F. Executive Order 13132: Federalism
        This action does not have federalism implications. It would not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
        G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
        This action does not have tribal implications as specified in Executive Order 13175. The EPA is proposing to amend the EPCRA section 304 release notification regulations to add the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e), as amended. Thus, Executive Order 13175 does not apply to this action.
        H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

        The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of covered regulatory action in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not pose an environmental health risk or safety risk. This proposed rule is intended to maintain consistency between EPCRA section 304 and CERCLA section 103(a) emergency release notification requirements by exempting reporting of air emissions from animal waste at farms.
        I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use
        This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. The EPA is proposing to amend the EPCRA section 304 release notification regulations to add the reporting exemption for air emissions from animal waste at farms provided in CERCLA section 103(e), as amended.
        J. National Technology Transfer and Advancement Act (NTTAA)
        This rulemaking does not involve technical standards.
        K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations
        The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This proposed rule is intended to maintain consistency between EPCRA section 304 and CERCLA section 103(a) emergency release notification requirements by exempting reporting of air emissions from animal waste at farms under EPCRA.

          List of Subjects in 40 CFR Part 355
          Environmental protection, Chemicals, Disaster assistance, Hazardous substances, Hazardous waste, Natural resources, Penalties, Reporting and recordkeeping requirements, Superfund.

          Dated: October 30, 2018.
          Andrew R. Wheeler,
          Acting Administrator

        For the reasons set forth in the preamble, EPA proposes to amend 40 CFR part 355 as follows:

          PART 355—EMERGENCY PLANNING AND NOTIFICATION

        1. The authority citation for part 355 continues to read as follows:

          Authority:
          Sections 302, 303, 304, 325, 327, 328, and 329 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) (42 U.S.C. 11002, 11003, 11004, 11045, 11047, 11048, and 11049).

        2. Amend § 355.31 by adding paragraph (g) to read as follows:

          § 355.31
          What types of releases are exempt from the emergency release notification requirements of this subpart?

          (g) Air emissions from animal waste (including decomposing animal waste) at a farm.

        3. Amend § 355.61 by adding in alphabetical order the definitions “Animal waste” and “Farm” to read as follows:

          § 355.61
          How are key words in this part defined?

            Animal waste means feces, urine, or other excrement, digestive emission, urea, or similar substances emitted by animals (including any form of livestock, poultry, or fish). This term includes animal waste that is mixed or commingled with bedding, compost, feed, soil, or any other material typically found with such waste.

            Farm means a site or area (including associated structures) that—
          (1) Is used for—
          (i) The production of a crop; or
          (ii) The raising or selling of animals (including any form of livestock, poultry, or fish); and
          (2) Under normal conditions, produces during a farm year any agricultural products with a total value equal to not less than $1,000.

      [FR Doc. 2018-24821 Filed 11-13-18; 8:45 am]
      BILLING CODE 6560-50-P