[Federal Register Volume 79, Number 96 (Monday, May 19, 2014)]
[Proposed Rules]
[Pages 28664-28670]
[FR Doc No: 2014-11501]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Chapter I

[EPA-HQ-OPPT-2011-1019; FRL-9909-13]
RIN 2070-AJ93

Hydraulic Fracturing Chemicals and Mixtures

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance notice of proposed rulemaking.

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

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

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

FOR FURTHER INFORMATION CONTACT:
    For technical information contact: Mark Seltzer, Chemical Control
Division (7405M), Office of Pollution Prevention and Toxics,
Environmental Protection Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460-0001; telephone number:<PHONE_NUMBER>; email
address<EMAIL_ADDRESS>    For general information contact: The TSCA-Hotline, ABVI-Goodwill,
422 South Clinton Ave., Rochester, NY 14620; telephone number: (202)
554-1404; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

    This action is directed to the public in general. This action,
however, may be of interest to you if you manufacture (including
import), process, or distribute chemical substances or mixtures (Ref.
1) used in any type or method of hydraulic fracturing. This may include
businesses that fall under North American Industry Classification
System (NAICS) codes 2111 (oil and gas extraction) and/or 2131 (support
activities for mining). EPA anticipates that this ANPR may also be of
interest to states, tribes, and other industries. Since additional
entities may also be interested, the Agency has not attempted to
describe all the specific entities that may be interested in this
action.

B. What should I consider as I prepare my comments for EPA?

    1. Submitting confidential business information (CBI). Do not
submit this information to EPA through regulations.gov or email.
Clearly mark the part or all of the information that you claim to be
CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark
the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 CFR part
2.
    2. Tips for preparing your comments. When submitting comments,
remember to:
    i. Identify the document by docket ID number and other identifying
information (subject heading, Federal Register date and page number).
    ii. Follow directions. The Agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
    iii. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
    iv. Describe any assumptions and provide any technical information
and/or data that you used.
    v. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced. Likewise, if you estimate the universe of affected
reporters, explain how you arrived at your estimate in sufficient
detail to allow for it to be reproduced.
    vi. Provide specific examples to illustrate your concerns and
suggest alternatives.
    vii. Explain your views as clearly as possible, avoiding the use of
profanity or personal threats.
    viii. Make sure to submit your comments by the comment period
deadline identified.

II. Background

    EPA received a petition from Earthjustice and 114 other groups on
August 4, 2011, requesting that EPA issue TSCA section 4 and TSCA
section 8 rules requiring toxicity testing of chemicals and mixtures
used in oil and gas exploration and production; reporting to EPA, among
other things, the identity of those chemicals and mixtures; and
submitting to EPA health and safety studies on the chemicals and
mixtures (Ref. 2). On November 2, 2011, EPA provided an initial
response to the petition (Ref. 3). In that response, EPA denied the
TSCA section 4 request for issuance of a test rule because the petition
did not set forth sufficient facts to conclude that it was ``necessary
to issue'' the requested TSCA section 4 rule, as required by TSCA
section 21(b)(1). On November 23, 2011, EPA granted in part and denied
in part the TSCA section 8(a) and section 8(d) requests by limiting the
scope from chemicals and mixtures used in all processes of oil and gas
exploration and production to chemical substances and mixtures used in
hydraulic fracturing

(Refs. 4 and 5). EPA published a document with the Agency's rationale
for its response to the petition in the Federal Register of July 11,
2013 (Ref. 5). To facilitate public comment, the Agency stated its
intent to publish an ANPR to identify key issues for further discussion
and analysis.
    EPA maintains continuing coordination with its Federal partners in
planning information reporting rules that will complement the Bureau of
Land Management's (BLM) proposed regulation: Oil and Gas; Hydraulic
Fracturing on Federal and Indian Lands (78 FR 31636, May 24, 2013). BLM
subsequently issued a supplemental proposal and extension of comment
period for that proposed rule (78 FR 34611, June 10, 2013). The intent
of these dialogues is to ensure both EPA's and BLM's efforts provide
useful information for assessment and disclosure purposes, while not
overly burdening reporting entities.

A. What action is the Agency taking?

    With this ANPR, EPA is initiating a stakeholder process to request
input on various aspects of obtaining information on chemical
substances and mixtures used in hydraulic fracturing for oil and gas
exploration and production to further the purposes of TSCA (TSCA
section 2 sets forth the findings, policy, and intent of Congress in
enacting TSCA) and other federal government objectives that can be
informed through this process. As part of this effort, EPA seeks input
on appropriate disclosure to ensure that information about the
chemicals and mixtures used in hydraulic fracturing activities is
provided to the public in a transparent fashion. These activities
include the injection of water, chemicals, proppant, and/or tracers to
prepare geologic formations for hydraulic fracturing, complete a
hydraulic fracturing stimulation stage, evaluate the extent of
resulting fractures, or ensure future ability to continue enhancement
of production through stimulation by hydraulic fracturing. During each
hydraulic fracturing stimulation stage, pressurized fluids containing
carrier fluids such as water or gas and any combination of proppant and
chemicals are injected into wells to fracture portions of the formation
surrounding a selected well section. As discussed in more detail in
Unit IV., EPA is requesting comment on the information that should be
obtained or disclosed and the mechanism for obtaining or disclosing
this information about chemicals and mixtures used in hydraulic
fracturing. This mechanism could be regulatory (under TSCA section 8(a)
and/or section 8(d)), voluntary (e.g., under the Pollution Prevention
Act (PPA) (42 U.S.C. 13101 et seq.)), or a combination of both. EPA is
also seeking comment on best management practices for the generation,
collection, reporting and/or disclosure of public health and
environmental information from or by companies that manufacture,
process, or use chemical substances or mixtures in hydraulic fracturing
activities--that is, practices or operations that can be implemented
and verified toward achieving protection of public health and the
environment--and whether voluntary third-party certification, and
incentives for disclosure could be valuable tools for improving
chemical safety. In addition, the Agency is seeking comment on ways to
minimize reporting burdens and costs, avoid duplication of efforts, and
maximize transparency and public understanding. Finally, EPA is
soliciting comments on incentives and recognition programs that could
be used to support the development and use of safer chemicals in
hydraulic fracturing.

B. What is the Agency's authority for this action?

    TSCA section 8(a) (15 U.S.C. 2607(a)) authorizes EPA to promulgate
rules under which manufacturers (including importers) and processors of
chemical substances must maintain records and submit information as the
EPA Administrator may reasonably require. TSCA section 8(a) also
authorizes EPA to promulgate rules under which manufacturers and
processors of mixtures must maintain records and submit information to
the extent the EPA Administrator determines the maintenance of records
or submission of reports, or both, is necessary for the effective
enforcement of TSCA. TSCA section 8(a) generally excludes small
manufacturers and processors of chemical substances or mixtures from
the reporting requirements (see 15 U.S.C. 2507(a)). This general
exclusion has been codified at 40 CFR 704.5 and 712.25. However, EPA is
authorized by TSCA section 8(a)(3)(A)(ii) to require TSCA section 8(a)
reporting from small manufacturers and processors with respect to any
chemical substance or mixture that is the subject of a rule proposed or
promulgated under TSCA section 4, 5(b)(4), or 6, or that is the subject
of an order in effect under TSCA section 5(e), or that is the subject
of relief granted pursuant to a civil action under TSCA section 5 or 7.
TSCA section 8(a) also notes that, to the extent feasible, the EPA
Administrator must not require reporting under TSCA section 8(a)(1)
that is unnecessary or duplicative.
    TSCA section 8(d) (15 U.S.C. 2607(d)) authorizes EPA to require the
submission of lists of health and safety studies conducted or initiated
by or for, or known to or reasonably ascertainable by manufacturers,
processors, and distributors of (and any person who proposes to
manufacture, process, or distribute) any chemical substance or mixture.
Certain types or categories of studies may be excluded ``if the
Administrator finds that submission of lists of such studies are
unnecessary to carry out the purposes of [TSCA]'' (see TSCA section
8(d)(1)). TSCA section 8(d) also authorizes EPA to require the
submission of copies of studies on these lists or copies of studies
that are otherwise known by the person submitting the list.
    The Pollution Prevention Act (PPA) (42 U.S.C. 13101 et seq.) makes
pollution prevention the national policy of the United States. The PPA
identifies an environmental management hierarchy in which pollution
``should be prevented or reduced whenever feasible; pollution that
cannot be prevented should be recycled in an environmentally safe
manner, whenever feasible; pollution that cannot be prevented or
recycled should be treated in an environmentally safe manner whenever
feasible; and disposal or release into the environment should be
employed only as a last resort . . .'' (42 U.S.C. 13103). Among other
requirements, the PPA directs EPA to develop improved methods of
coordinating, streamlining and assuring public access to data collected
under Federal environmental statutes; facilitate the adoption of
source-reduction techniques by businesses; and establish an annual
awards program to recognize a company or companies that operate
outstanding or innovative source reduction programs.

III. Overview of Information Collection Authority Under Sections 8(a)
and 8(d) of TSCA

A. TSCA Section 8(a)

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

mixture for which such a report is required.
     The categories or proposed categories of use of each
chemical substance or mixture.
     The total amount of each chemical substance or mixture
manufactured or processed, reasonable estimates of the total amount to
be manufactured or processed, the amount manufactured or processed for
each of its categories of use, and reasonable estimates of the amount
to be manufactured or processed for each of its categories of use or
proposed categories of use.
     A description of the byproducts resulting from the
manufacture, processing, use, or disposal of each chemical substance or
mixture.
     All existing data concerning the environmental and health
effects of each chemical substance or mixture.
     The number of individuals exposed, and reasonable
estimates of the number who will be exposed, to each chemical substance
or mixture in their places of employment and the duration of such
exposure.
     The manner or method of disposal of each chemical
substance or mixture, and any subsequent changes to such manner or
method.

B. TSCA Section 8(d)

    TSCA section 8(d) authorizes EPA to require manufacturers,
processors, and distributors of any chemical substance or mixture and
persons who propose to manufacture, process, or distribute in commerce
any chemical substance or mixture to submit health and safety studies
to EPA. Examples of health and safety studies can be found in 40 CFR
716.3, and include:
     Epidemiological or clinical studies.
     Studies of occupational exposure.
     Health effects studies.
     Ecological effects studies.
     Assessments of environmental exposure.
     Environmental fate studies.
     Health and safety studies related to surface or ground
water sampling and analyses that are aggregated and analyzed to measure
exposure.

IV. Request for Comment

    EPA is requesting comment on the design and scope of potential
regulatory or voluntary approaches, or combination of both approaches,
to obtain information on chemical substances and mixtures used in
hydraulic fracturing. EPA invites comments on all aspects of this ANPR,
including the description of hydraulic fracturing activities presented
in Unit II.A. Comments should provide enough detail and contain
sufficient supporting information in order for the Agency to understand
the issues raised and give them the fullest consideration. Comments
should include alternatives, rationales, benefits, technological and
economic feasibility (including costs), and supporting data. Supporting
information should include any information that substantiates your
conclusions and recommendations, including, but not limited to:
Experiences, data, analyses, studies and articles, and standard
professional practices. If referring to a particular well site as an
example, please identify the company name of the well site operator,
well name, latitude and longitude coordinates and American Petroleum
Institute (API) identification number, if available.

A. Overall Approach To Reporting and Disclosure of Chemical Substances
and Mixtures Used in Hydraulic Fracturing

    In this ANPR, EPA is seeking comment on what information should be
reported to EPA (or through a CBI cleared third-party certifier) or
disclosed publically (by EPA) regarding the identity, quantities, types
and circumstances of uses of chemical substances and mixtures used in
hydraulic fracturing, as well as what types of health and safety
studies should be reported or disclosed. EPA is seeking comment on
whether and how data that are claimed to be trade secrets, or CBI,
could be reported to EPA (or a third-party certifier) and then
aggregated and disclosed while protecting the identities of individual
products and firms. EPA is also requesting comment on the appropriate
mix of voluntary disclosure and/or regulatory reporting mechanisms. The
specific types of information that could be reported or disclosed are
discussed in Units IV.C. and IV.G. It should be noted that TSCA section
8(e) requires manufacturers, importers, processors, and distributors to
provide EPA with information on any of their chemical substances or
mixtures that reasonably supports the conclusion that such substance or
mixture presents a substantial risk of injury to health or the
environment.
    EPA is requesting comment on the following questions:
    1. Should all information be required to be reported or should
there be a voluntary mechanism for some or all information?
    2. Would a combination of mandatory reporting and voluntary
disclosure be effective? If so, what would that combination consist of?
Why?
    3. What types of information, if any, should be required to be
reported? Why?
    4. How could any required reporting activities be designed to
better facilitate compliance?
    5. What types of information, if any, should be reported and/or
disclosed voluntarily? Why?
    6. What are the best management practices for the generation,
collection, reporting and/or disclosure of information from or by
companies?
    7. Are there particular systems in place that already use these
best management practices? Please identify these systems.
    8. To what extent are these best management practices widely
adopted? Please provide evidence regarding the extent of use of best
management practices.
    9. How could incentives be structured to ensure effective voluntary
disclosure of information on chemical substances and mixtures used in
hydraulic fracturing?
    10. Are there incentives that could be used in combination with
regulatory requirements for information disclosure to promote practices
that go beyond compliance (e.g., incentives that encourage reporting in
addition to that required by regulation)?
    11. What information collection tools and resources are available
to support and promote safer chemical use and other sustainable
practices (e.g., some form of cradle-to-grave chemical management)?
Please explain.
    12. What factors should be considered for distinguishing among
different types of companies for the purpose of incentives?
    13. What information collection tools and resources are available
to support, incentivize, and promote safe and sustainable practices?
Please explain.
    14. How could collected information be used to better inform safe
and sustainable practices? For example, would providing information or
guidance on improved chemical use across different types of firms
involved in hydraulic fracturing better inform safe and sustainable
practices?
    15. What mechanisms could be developed to make information that is
reported to EPA publically disclosed and available?
    16. How could information reported and/or disclosed under any such
mechanism be used to better inform research and development of chemical
substances and mixtures used in hydraulic fracturing?

B. Who should report or disclose information on chemical substances and
mixtures used in hydraulic fracturing?

    TSCA section 8(a) gives EPA authority to require, by rulemaking,
chemical manufacturers and processors to maintain records and submit to
EPA reports about chemical substances and mixtures, as well as
environmental and health data on those substances and mixtures. The
hydraulic fracturing industry includes a variety of companies that
could be subject to reporting under TSCA section 8(a). These companies
could include chemical manufacturers, chemical suppliers who engage in
processing, service providers mixing chemicals on site to create the
hydraulic fracturing fluids, and service providers responsible for
injecting the hydraulic fracturing fluid into the well to fracture the
formation. EPA is requesting comment on whether, in the context of a
potential reporting and/or disclosure program, all or any companies
should be required to report or whether a specific type or types of
company (e.g., chemical supplier) should be required to report and
other types (e.g., service provider) be encouraged to report
voluntarily.
    1. If any companies are required to report, should different types
of companies be required to report different data elements? Please
explain.
    2. Should manufacturers (including importers), processors, or both
be required to report under TSCA section 8(a)? Why or why not?
    3. Are there additional NAICS codes in addition to 2111 (oil and
gas extraction) and 2131 (support activities for mining) that would
need to be included in order to cover chemical manufacturers (including
importers) and processors in a potential reporting and/or disclosure
program?
    4. In what ways do the responsibilities of manufacturers and
processors (Ref. 6) overlap? What activities associated with hydraulic
fracturing are carried out by the well operator at the well site? EPA
understands that service providers or well operators often process
chemicals at the drilling site.
    5. Would manufacturers (including importers), service providers,
well operators, or all three, know how a chemical substance or mixture
is used at well sites? If all types of firms have this information,
which type, if any, should be required to report? If neither well
operators, nor service providers, nor manufacturers (including anyone
who imports chemicals or otherwise undertakes activities that meet the
definition of ``manufacture'' at 40 CFR 704.3) know how a chemical is
used at well sites, who would know and how might that information be
obtained?
    6. If voluntary mechanisms are used for obtaining information, what
mechanisms (e.g., incentive programs) should EPA consider in order to
encourage consistent reporting and/or disclosure from different types
of companies? Would some mechanisms be more effective for one type of
company than another?
    7. Should there be different incentives for different types of
companies (e.g., manufacturers vs. processors)?
    8. What information collection tools and resources are available to
support and promote safe and sustainable practices? Please explain.

C. Scope of Reporting or Disclosure of Information on Chemical
Substances and Mixtures Used in Hydraulic Fracturing

    In this ANPR, EPA is seeking comment on the information that should
be reported or disclosed regarding chemical substances and mixtures
used in hydraulic fracturing. EPA is exploring various regulatory
approaches, voluntary approaches or a combination of both for obtaining
this information.
    As described in Unit III.A., TSCA section 8(a) gives EPA authority
to require, by rulemaking, chemical manufacturers and processors to
maintain records and submit to EPA such reports as EPA may reasonably
require. EPA expects that data obtained could be aggregated to provide
a national list of the chemical substances and mixtures used in
hydraulic fracturing, providing the Agency with the ability to
determine which chemicals are used most frequently. For chemicals that
have not been previously well-characterized in terms of their chemical,
physical, and toxicological properties, EPA may conduct research to
better understand these properties in order to perform a basic risk
characterization. Information that could be required from manufacturers
(including importers) and processors under a potential reporting
program could include:
    1. Basic company information (i.e., company name, mailing address,
Web site, and technical contact information).
    2. Steps involved in processing chemicals or mixtures on site
before injection. Typical composition and performance standard of
hydraulic fracturing fluid as an end use product, before injection.
    3. Steps involved in processing chemicals or mixtures for reuse,
recycling, and/or reprocessing in the hydraulic fracturing operation.
    4. Hydraulic fracturing fluid composition:
    i. Common name or trade name of each chemical product in the
hydraulic fracturing fluid and a description of each product's
function.
    ii. Chemical identity (chemical name and Chemical Abstracts Service
Registry Number) of each chemical substance in each product.
    iii. Total volume of the carrier fluid and percentage of the
carrier fluid that makes up the total hydraulic fracturing fluid (e.g.,
water volume and percentage of water in the hydraulic fracturing
fluid).
    iv. Actual amount of each chemical substance or product in the
hydraulic fracturing fluid in order to understand the loading (e.g.,
mass or volume).
    5. Production type (i.e., gas and/or oil).
    6. Frequency of use of the chemical substance or mixture for
hydraulic fracturing (e.g., number of times or per fracture stage or
number of wells).
    7. Number of workers exposed or likely to be exposed to the
chemical substance or mixture.
    8. All existing data concerning the human and environmental health
effects of the chemical substance or mixture.
    9. Some chemical substances and mixtures used in hydraulic
fracturing may react to create other chemical substances and mixtures
as products within an on-site mixing apparatus or in the well that is
being fractured. EPA is requesting comments on which reporting elements
should be included:
    i. If EPA were to require reporting, how should EPA address
chemical substances and mixtures which are formed on site? Why?
    ii. Is there other information obtainable under TSCA section 8(a)
that should be included in a proposed TSCA section 8(a) rule? What are
the chemical safety benefits (e.g., potential reduction of risk to
human health and environment) of obtaining this information? Explain.
    iii. Should EPA consider including reporting on any combination of
water and/or chemicals introduced or intended to be introduced into an
oil or gas well for the purpose of maintaining or improving the
function and productivity of the well, including recovery methods,
(e.g., acid treatments, corrosion inhibitors, scale reducers,
biocides)? Why or why not? EPA is interested in information regarding
the frequency, duration, concentration, and volume of use of such
chemicals or chemical mixtures to enhance the Agency's understanding of
well

maintenance practices, in order to evaluate the need for additional
disclosure.
    10. While EPA could require manufacturers and processors to report
this information, the Agency could also encourage companies engaged in
hydraulic fracturing to voluntarily disclose it. EPA is requesting
comments on reporting elements which should be included:
    i. Which elements (as discussed earlier in Unit IV.C.), if any, may
benefit from being proposed as part of a TSCA section 8(a) rule? Which
elements, if any, may benefit better from being reported and/or
disclosed under a voluntary program?
    ii. Are there data elements (from those discussed earlier in Unit
IV.C.) for which a hybridized reporting and/or disclosure system (e.g.,
some regulatory elements, some voluntary elements) would be more
efficient or beneficial?

D. Use of Third-Parties

    EPA is requesting comments on the use of third-parties for the
collection of information on chemical substances used in hydraulic
fracturing and/or to certify the use of best practices.
    1. Should EPA consider implementing third-party certification (for
certifying reporting, practices and other aspects) and/or third-party
collection of information about hydraulic fracturing operations in
addition to or in lieu of a mandatory reporting or voluntary disclosure
program?
    2. What would such a certification program look like?
    3. Are there existing programs that already certify best practices?
Are they effective? Are they independent? Could they be improved? How?
    4. What should be considered (e.g. standards for third-parties,
standards for collecting chemical information, costs) in implementing a
third-party program?
    5. How should chemical information be managed by third-parties? Are
there specific roles that third-parties should have in data management?
Please explain.
    6. How should a third-party certifier be funded? How could
perceived or actual bias be minimized?

E. Reporting Threshold and Frequency of Reporting or Disclosure

    EPA is interested in comments regarding the threshold for the size
of entities that should be required or encouraged to report or disclose
information on chemical substances and mixtures used in hydraulic
fracturing and environmental and health data on those substances and
mixtures. EPA is also interested in comments regarding how often
reporting or disclosure should take place:
    1. Are there thresholds that might be appropriate to limit
reporting by small manufacturers or processors under either a
regulatory or a voluntary program (e.g., the thresholds that define
``small manufacturer'' in 40 CFR 704.3 and 712.25)? Why? If available,
how would the recommended reporting threshold affect cost to the
reporting entity? How might different reporting thresholds affect the
usefulness of the data provided?
    2. Given possible changes in the composition of hydraulic
fracturing fluids over time and changes in ownership of a well, how
often and when should an entity report information to EPA or publicly
disclose it?
    3. What would be the effect of changes in the frequency of
reporting and/or disclosure on the overall cost of reporting or
disclosure? What would be the effect of changes in level of aggregation
or other aspects of reporting and/or disclosure?

F. Data Collection Efficiency

    EPA believes that any mechanism for reporting and/or disclosure of
information on chemical substances and mixtures should be structured in
a manner that minimizes the potential for duplication and overlap.
    1. EPA requests comment on how best to minimize duplicative
reporting and/or disclosure requirements, particularly for companies
that may also report to the BLM, state agencies, and to other parties.
For example, should EPA limit its data collection to items not
collected by other parties? How much overlap is acceptable?
    2. How can the Agency achieve the goal of efficient data collection
while also maximizing transparency and public understanding?
    3. In order to encourage transparency and information sharing while
minimizing duplication, what information collection repository or
database should EPA use? Should EPA develop a repository or use an
existing one such as FracFocus (Ref. 7) or http://www.data.gov? If an
existing repository is recommended, indicate which repository and why.
Are any changes or enhancements recommended to this existing
repository?
    4. EPA believes that any TSCA reporting requirements should
complement existing reporting programs and data sources, such as state
databases and Web sites like FracFocus in order to avoid duplication.
How could this be achieved?

G. Health and Safety Studies of Chemicals and Mixtures Used in
Hydraulic Fracturing

    EPA is seeking comment on potential options for reporting or
disclosure of health and safety studies for chemical substances and
mixtures used in hydraulic fracturing.
    As described in Unit III.B., TSCA section 8(d) authorizes EPA to
require manufacturers, processors, and distributors of any chemical
substance or mixture and persons who propose to manufacture, process,
or distribute in commerce any chemical substance or mixture to submit
health and safety studies to EPA. One mechanism for the collection of
these studies is TSCA section 8(d). Other mechanisms could include
voluntary approaches. EPA is requesting comment on the types of
companies that would report or disclose health and safety studies. EPA
also is requesting comment on whether companies should be required to
report studies or be encouraged to disclose studies, or whether a
combination of regulatory and voluntary approaches should be used to
obtain health and safety studies.
    1. Should all manufacturers (including importers), processors, and
distributors provide lists or copies of health and safety studies or
should reporting only be required of some types of companies? Why or
why not?
    2. Are there existing mechanisms in place, including non-regulatory
mechanisms, for EPA to obtain these studies? If not, what would be an
effective regulatory approach and/or voluntary mechanism for EPA to
obtain these studies?
    3. Is there an approach that more effectively encourages further
health and safety studies?
    4. Some chemical substances and mixtures used in hydraulic
fracturing are more studied than others. Some are considered to be
well-characterized in terms of hazard and exposure information. If EPA
were to require reporting, should EPA limit reporting requirements to
the chemical substances and mixtures that EPA believes are not well-
characterized? Why?
    5. If a TSCA section 8(d) rule were promulgated, should it require
reporting of studies for all chemical substances and mixtures used in
hydraulic fracturing or only a subset? Why? If only certain chemicals
should be included in the rule, which ones should EPA include?
    6. Are there particular types of studies that should be required to
be submitted or should all health and safety studies be required to be
submitted? Why?

    7. Are there studies that are of greater interest if they are
conducted by a particular entity, e.g., service providers? For example,
an assessment of environmental exposure may be viewed as more important
because of the environment that is the focus of the study.
    8. Would it be more efficient (timely and cost effective) to submit
health and safety studies to a third-party? Why or why not? If so, why
and what type of third-party?

H. Safer Chemicals and Transparency

    Incentives and recognition programs could be used to support the
development and use of safer chemicals (both those created deliberately
and inadvertently) in hydraulic fracturing. Safer chemicals are
generally less toxic to human health and the environment, and are less
persistent and bioaccumulative than their alternatives. Under an EPA-
sponsored voluntary initiative, EPA could provide resources and
recognition for companies committed to promoting and using safe and
sustainable practices. Such a voluntary program could help companies
meet corporate sustainability goals by providing the means to, and an
objective measure of, environmental stewardship. Information that could
be collected or disclosed under such a voluntary program could be used
to verify a company's eligibility for award or recognition in relation
to identified measures and goals.
    There are existing programs that encourage the development of safer
chemicals (e.g., the Green Chemistry program and the Sustainable
Futures program) or the use of safer substitutes (e.g., Design for the
Environment) which may serve as models for application to hydraulic
fracturing. A similar program focusing on chemicals used in hydraulic
fracturing could speed adoption by well owners, operators and suppliers
of safer chemicals. The program could also increase public
understanding about chemical choice and use in hydraulic fracturing.
    EPA would like to determine whether these programs could be used as
possible models for consideration of chemicals and mixtures used in
hydraulic fracturing and whether there are other programs that would be
more effective. In order to determine whether replacement chemicals are
safer, it would be important to take into account the effectiveness and
potential associated risks with the alternative chemical. EPA requests
comment on strategies for creating incentives and voluntary approaches
for the development and use of safer chemicals.
    1. Are there other TSCA sections that could also further support
the use and development of safer chemicals more effectively?
    2. What programs are appropriate to encourage the use of safer
chemicals already on the market?
    3. For this industry, are existing programs that encourage the
development of safer chemicals appropriate? Could EPA change those
programs to make them more effective in inducing well operators to use
safer chemicals? How?

V. References

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

1. Toxic Substances Control Act, section 3 (15 U.S.C. 2602).
2. Earthjustice and 114 other organizations. Letter from Deborah
Goldberg, Earthjustice to Wendy Cleland-Hamnett, Director, Office of
Pollution Prevention and Toxics. Re: Citizen Petition Under Toxic
Substances Control Act Regarding the Chemical Substances and
Mixtures Used in Oil and Gas Exploration or Production. August 4,
2011. Available on-line at: http://www.epa.gov/oppt/chemtest/pubs/Section_21_Petition_on_Oil_Gas_Drilling_and_Fracking_Chemicals8.4.2011.pdf.
3. EPA. Letter from EPA Assistant Administrator Steven A. Owens to
Deborah Goldberg, Earthjustice, Re: TSCA Section 21 Petition
Concerning Chemical Substances and Mixtures Used in Oil and Gas
Exploration or Production. November 2, 2011. Available on-line at:
http://www.epa.gov/oppt/chemtest/pubs/SO.Earthjustice.Response.11.2.pdf.
4. EPA. Letter from Assistant Administrator Steven A. Owens to
Deborah Goldberg, Earthjustice, Re: TSCA Section 21 Petition
Concerning Chemical Substances and Mixtures Used in Oil and Gas
Exploration or Production. November 23, 2011. Available on-line at:
http://www.epa.gov/oppt/chemtest/pubs/EPA_Letter_to_Earthjustice_on_TSCA_Petition.pdf.
5. EPA. Chemical Substances and Mixtures Used in Oil and Gas
Exploration or Production; TSCA Section 21 Petition Reasons for
Agency Response. Federal Register (78 FR 41768, July 11, 2013) (FRL-
9339-4).
6. TSCA Statutory Definitions Document. February 11, 2014.
7. FracFocus Chemical Disclosure Registry. Available on-line at:
http://www.fracfocus.org.

VI. Statutory and Executive Order Reviews

    Under Executive Orders 12866, entitled ``Regulatory Planning and
Review'' (58 FR 51735, October 4, 1993) and 13563, entitled ``Improving
Regulation and Regulatory Review'' (76 FR 3821, January 21, 2011), this
is a ``significant regulatory action'' because it raises novel legal
and/or policy issues. Accordingly, EPA submitted this action to the
Office of Management and Budget (OMB) for review under these Executive
Orders and any changes made in response to OMB recommendations have
been documented in the docket for this action.
    Because this document does not impose or propose any requirements,
and instead seeks comments and suggestions for the Agency to consider
in possibly developing a subsequent proposed rule, the various other
review requirements that apply when an agency imposes requirements do
not apply to this action. Nevertheless, as part of your comments on
this ANPR, you may include any comments or information that could help
the Agency to assess the potential impact of a subsequent regulatory
action on small entities pursuant to the Regulatory Flexibility Act (5
U.S.C. 601 et seq.); to consider voluntary consensus standards pursuant
to section 12(d) of the National Technology Transfer and Advancement
Act (15 U.S.C. 272 note); to consider environmental health or safety
effects on children pursuant to Executive Order 13045, entitled
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997); to consider human health or
environmental effects on minority or low-income populations pursuant to
Executive Order 12898, entitled ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations'' (59 FR 7629, February 16, 1994); or to consider potential
impacts to state and local governments or tribal governments.
    The Agency will consider such comments during the development of
any subsequent rulemaking as it takes appropriate steps to address any
applicable requirements.

List of Subjects in 40 CFR Chapter I

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

    Dated: May 9, 2014.
Gina McCarthy,
Administrator.
[FR Doc. 2014-11501 Filed 5-16-14; 8:45 am]
BILLING CODE 6560-50-P


EPA REGISTRATION DIVISION COMPANY NOTICE OF FILING FOR PESTICIDE PETITIONS PUBLISHED IN THE FEDERAL REGISTER

EPA Registration Division contact: [Erik Kraft,<PHONE_NUMBER>, PM 24]

INSTRUCTIONS:  Please utilize this outline in preparing the pesticide petition.  In cases where the outline element does not apply, please insert "NA-Remove" and maintain the outline. Please do not change the margins, font, or format in your pesticide petition. Simply replace the instructions that appear in green, i.e., "[insert company name]," with the information specific to your action.

TEMPLATE:

Bayer CropScience

[Insert petition number]

	EPA has received a pesticide petition ([8F8668]) from Bayer CropScience, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709 proposing, pursuant to section 408(d) of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a(d), to amend 40 CFR part 180.473 by: establishing tolerances for residues of glufosinate-ammonium (butanoic acid, 2-amino-4-(hydroxymethylphosphinyl)-monoammonium salt) and its metabolites, 2-acetamido-4-methylphosphinico-butanoic acid and 3-methylphosphinico-propionic acid, expressed as 2-amino-4-(hydroxymethylphosphinyl)butanoic acid equivalents in or on raw agricultural commodities olive at 0.50 ppm, tree nuts (crop group 14-12) at 0.50 ppm, stone fruit (crop group 12-12) at 0.30 ppm and soybean hulls at 10.0 ppm.

EPA has determined that the petition contains data or information regarding the elements set forth in section 408 (d)(2) of  FDDCA; however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data supports granting of the petition. Additional data may be needed before EPA rules on the petition.

A. Residue Chemistry

	1. Plant metabolism. The uptake and metabolism of glufosinate in primary crops is adequately understood. Radiolabeled studies have been conducted in various plants all showing similar results. The relevant residues are parent glufosinate ammonium and MPP (3-methylphosphinico-propionic acid) in conventional plants and additionally NAG (N-acetyl glufosinate, 2-acetamido-4-methylphosphinico-butanoic acid) in glufosinate-tolerant plants.

	2. Analytical method. Glufosinate-ammonium and its two metabolites 2-acetamido-4-methylphosphinico-butanoic acid (NAG) and 3-methylphosphinico-propionic acid (MPP),expressed as 2-amino-4-(hydroxymethylphosphinyl)butanoic acid equivalents (glufosinate acid equivalents) are the residues of concern in plant commodities required for analysis based on the metabolic profile.  The analytical methods for crops matrices involve water extraction, filtration and addition of an isotopically labeled internal standard followed by solid phase extraction.  Quantitation is by high performance liquid chromatography-electrospray ionization/tandem mass spectrometry (LC/MS/MS).

	3. Magnitude of residues. Residue trials in olives, pistachios, almonds, peaches, nectarines and plums were conducted in the various regions across the United States in accordance with EPA guidance for crop field trials under OPPTS 860.1500 to supplement the existing residue trials.  These supplemental residue trials were analyzed with an updated analytical method with a lower limit of quantitation; nevertheless, in some cases, higher residues were observed in the supplemental trials than were observed in the original trials which in turn drove the need for the revised tolerances.

B. Toxicological Profile

	1. Acute toxicity.  Glufosinate-ammonium has been classified as toxicity category III for acute oral, dermal, and inhalation toxicity; and for eye irritation.  Glufosinate-ammonium is not a dermal irritant (toxicity category IV) nor is it a dermal sensitizer.  The oral LD50 is 4010 mg/kg in male rats and 3030 mg/kg in female rats.

	2. Genotoxicity. Based on results of a complete genotoxicity database, there is no evidence of mutagenic activity in a battery of studies, including:  Salmonella spp., E. coli, in vitro mammalian cell gene mutation assays, mammalian cell chromosome aberration assays, in vivo mouse bone marrow micronucleus assays, and unscheduled DNA synthesis assays.

	3. Reproductive and developmental toxicity. In a developmental toxicity study, groups of 20 pregnant female Wistar rats were administered glufosinate-ammonium by gavage at doses of 0, 0.5, 2.24, 10, 50 and 250 mg/kg/day from days 7 to 16 of pregnancy.  The NOAEL for maternal toxicity is 10 mg/kg/day; the LOAEL is 50 mg/kg/day based on vaginal bleeding and hyperactivity in dams.  In the fetus, the NOAEL is 50 mg/kg/day, based on dilated renal pelvis observations at the LOAEL of 250 mg/kg/day.  In a developmental toxicity study, groups of 15 pregnant female Himalayan rabbits were administered glufosinate-ammonium by gavage at doses of 0, 2.0, 6.3, or 20.0 mg/kg/day from days 7 to 19 of pregnancy.  In maternal animals, decreases in food consumption and body weight gain were observed at the 20 mg/kg/day dose level.  The NOAEL for maternal toxicity was 6.3 mg/kg/day and that for developmental toxicity was 20 mg/kg/day.

In a multi-generation reproduction study, glufosinate-ammonium was administered to groups of 30 male and 30 female Wistar/Han rats in the diet at concentrations of 0, 40, 120, or 360 ppm.  The LOAEL for systemic toxicity is 120 ppm based on increased kidney weights in both sexes and generations. The systemic toxicity NOAEL is 40 ppm. The LOAEL for reproductive/developmental toxicity is 360 ppm based on decreased numbers of viable pups in all generations.  The NOAEL is 120 ppm.

In a developmental neurotoxicity study, groups of 25 bred female rats were fed glufosinate ammonium at doses of 0, 200, 1000 or 4500 ppm in the diet. Body weights and food consumption were decreased at 1000 and 4500 ppm. No effects were seen in treated animals for the functional observation battery, developmental landmarks, grip strength, startle response or learning and memory. Motor activity was increased at the mid and high dose. The NOAEL for developmental neurotoxicity was determined to be 200 ppm. 	4. Subchronic toxicity. In a sub-chronic oral toxicity study, glufosinate-ammonium was administered to 10 NMRI mice/sex/ dose in the diet at levels of 0, 80, 320 or 1,280 ppm (equivalent to 0, 12, 48 or 192 mg/kg bw/day) for 13 weeks.  Significant (p< 0.05) increases were observed in serum aspartate aminotransferase and in alkaline phosphatase in high-dose (192 mg/kg/ day) males.  Also observed were increases in absolute and relative liver weights in mid-(48 mg/kg/day) and high-dose males.  The no observed adverse effect level (NOAEL) is 12 mg/kg/day, the lowest observed adverse effect level (LOAEL) is 48 mg/kg/day based on the changes in clinical biochemistry and liver weights.

	5. Chronic toxicity. In a dog 1 year study, technical glufosinate-ammonium was fed to male and female beagle dogs for 12 months in the diet at levels of 2.0, 5.0, or 8.5 mg/kg/day.  The NOAEL is 5.0 mg/kg/day based on clinical signs of toxicity, reduced weight gain and mortality 8.5 mg/kg/day. In a combined chronic toxicity/oncogenicity study, glufosinate-ammonium was administered to 50 Wistar rats/sex/dose in the diet for 130 weeks at dose levels of 0, 40, 140, or 500 ppm (mean compound intake in males was 0, 1.9, 6.8, and 24.4 mg/kg/day and for females was 0, 2.4, 8.2 and 28.7 mg/kg/day, respectively).  A dose-related increase in mortality was noted in females at 140 and 500 ppm, whereas in males increased absolute and relative kidney weights were noted at 140 ppm and 500 ppm.  The NOAEL was considered to be 40 ppm in females and 140 ppm in males.  No treatment-related oncogenic response was noted.

Additionally, a rat oncogenicity study was performed in which glufosinate-ammonium was administered to Wistar rats (60/sex/group) for up to 24 months at 0, 1,000, 5,000, or 10,000 ppm (equivalent to 0, 45.4, 228.9, or 466.3 mg/kg/day in males and 0, 57.1, 281.5, or 579.3 mg/kg/day in females).  The LOAEL for chronic toxicity is 5,000 ppm, based on increased incidences of retinal atrophy; the NOAEL is 1000 ppm (equivalent to 45.4 mg/kg/day for male rats and 57.1 mg/kg/day for females.  Under the conditions of this study, there was no evidence of carcinogenic potential.

In a mouse oncogenicity study, glufosinate-ammonium was administered to 50 NMRI mice/sex/dose in the diet at dose levels of 0, 80, 160 (males only) or 320 (females only) ppm for 104 weeks.  The NOAEL for systemic toxicity is 80 ppm (10.82/16.19 mg/kg/day in males/females (M/F)), and the LOAEL is 160/320 ppm (22.60/ 63.96 mg/kg/day in M/F), based on increased mortality in males, increased glucose levels in males and females, and changes in glutathione levels in males.  No increase in tumor incidence was found in any treatment group.

	6. Animal metabolism. Studies conducted in rats using [14]C- glufosinate-ammonium have shown that the compound is poorly absorbed (5-10%) after oral administration and is rapidly eliminated primarily as the parent compound.  The highest residue levels were found in liver and kidney tissues.

The metabolic profile and the quantitative distribution of metabolites were very similar in both goat and hen.  The vast majority of the dose was excreted, primarily as parent compound.  The very limited residues found in edible tissues, milk and eggs were comprised principally of glufosinate and 3-methylphosphinico-propionic acid (MPP), with lesser amounts of N-acetyl-glufosinate (NAG) and 2-methylohosphinico-acetic acid (MPA).]

	7. Metabolite toxicology. Additional testing has been conducted with the major metabolites, 3-methylphosphinico-propionic acid, and N-acetyl-L-glufosinate.  Based on sub-chronic and developmental toxicity study results, similar to lower toxicity was observed for the metabolites as compared to the parent compound, glufosinate-ammonium.

	8. Endocrine disruption. No evidence of estrogenic or other endocrine effects have been noted in any of the toxicology studies that have been conducted with this product, and there is no reason to suspect that any such effects would be likely.

C. Aggregate Exposure

	1. Dietary exposure. The toxicological and exposure database for glufosinate is considered complete. Tolerances have been established (40CFR part 180.473) for the combined residues of glufosinate-ammonium and metabolites in or on a variety of raw agricultural commodities. No appropriate toxicological endpoint attributable to a single exposure was identified in the available toxicity studies. EPA did not, therefore, establish an acute reference dose (aRfD) for any population subgroup except females 13-49 years old. An acute RfD of 0.0063 mg/kg/day was established for the females 13-49 years old subgroup, based on a developmental NOAEL of 6.3 mg/kg/day in the rabbit and a 100x uncertainty factor (10x inter- 10x intra-species extrapolation) and a 10x data uncertainty factor. EPA determined that the Special FQPA uncertainty factor would be 1X for the acute dietary risk assessment based on conclusions of the HIARC and the complete residue and environmental fate data bases. The developmental LOAEL (20 mg/kg/day) was based on increased fetal death in the presence of maternal toxicity. There was no qualitative or quantitative indication of increased susceptibility in the prenatal developmental toxicities in rats and rabbits or in the 2-generation reproductive study in rats with parent compound or metabolites of concern.

Food and drinking water: An unrefined acute dietary risk assessment for glufosinate ammonium with an EDWC of 201 ppb showed that acute dietary risk estimates are not of concern (i.e. <100% aPAD) for the relevant population subgroup, females 13-49 years old (26% aPAD).

The chronic dietary exposure assessment for glufosinate ammonium is refined using anticipated residues based on average residue levels from field trial studies. For livestock commodities, anticipated residues were also used. Average %CT information and processing factors, where available, were incorporated into the assessment.  The chronic dietary risk assessment for glufosinate ammonium with an EDWC of 24.4 ppb showed that chronic dietary risk estimates are not of concern (i.e. <100% cPAD) for all population subgroups, with the highest exposed population subgroup, all infants <1 year old, at 31% of the cPAD and the U.S. Population at 11% of the cPAD.

	2. Non-dietary exposure. There is a potential for exposure to glufosinate ammonium from non-dietary turf uses.  However, it was concluded that post application dermal exposure resulting from treatments to dormant Bermuda grass would not be likely for homeowners or golfers because of the unique use pattern of glufosinate ammonium.

D. Cumulative Effects 	Section 408(b)(2)(D)(v) requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider "available information" concerning the cumulative effects of a particular pesticide's residues and "other substances that have a common mechanism of toxicity."  Glufosinate ammonium is a novel herbicide and EPA has not made a common mechanism of toxicity finding as to glufosinate ammonium and any other substances and glufosinate ammonium does not appear to produce a toxic metabolite produced by other substances.

E. Safety Determination 	1. U.S. population. Risk assessments for glufosinate ammonium are based on a complete and reliable toxicity data package and highly conservative assumptions. Chronic aggregate dietary exposure (food and water) will utilize less than 11% of the cPAD for the US Population. Acute aggregate dietary exposure (food and water) for females 13-49 years old, utilizes 26% of the aPAD.  Non-dietary and aggregate MOEs (food and drinking water) are above the Level of Concern.  Therefore, there is a reasonable certainty that no harm will occur to the US Population from aggregate exposure (food, drinking water and non-dietary) to residues of glufosinate ammonium.

	2. Infants and children. The toxicological and exposure database for glufosinate ammonium is considered complete. Chronic aggregate dietary exposure (food and water) utilizes 31% of the cPAD for all infants (< 1 year old), the most highly exposed subpopulation.  Since no acute endpoint was determined for any population other than females 13-49, the acute aggregate exposure was not determined for infants or children.

EPA generally has no concerns for exposures below 100 percent of the RfD, because the RfD represents the level at or below which daily aggregate exposure over a lifetime will not pose appreciable risks to human health.  Therefore, there is a reasonable certainty that no harm will occur to infants and children from aggregate exposure to residues of glufosinate-ammonium

F. International Tolerances 	Tolerances have been established for glufosinate ammonium in Canada as follows: olive 0.1 ppm; stone fruit, 0.2 ppm; and tree nuts, 0.1 ppm.  Tolerances have been established for glufosinate ammonium in the EU as follows: olive 0.1 ppm, peach 0.15 ppm, cherry, 0.15 ppm; plum 0.15 ppm, nectarine 0.15 ppm, almond 0.1 ppm, pistachio 0.10 ppm and pecan 0.10 ppm.


[Federal Register Volume 76, Number 39 (Monday, February 28, 2011)]
[Proposed Rules]
[Pages 10811-10815]
[FR Doc No: 2011-4268]

=======================================================================
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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Chapter I

[Docket No. RM11-6-000]

Annual Charges for Use of Government Lands

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Notice of Inquiry (NOI).

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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
inviting comments on its procedures with respect to the assessment of
annual charges for the use of government lands. This Notice of Inquiry
will assist the Commission in identifying options to consider in
determining the methodology to be used to calculate rental rates for
use of government lands under Part 11 of the Commission's regulations.

DATES: Comments on this NOI are due on April 29, 2011.

ADDRESSES: You may submit comments on the Notice of Inquiry, identified
by Docket No. RM11-6-000, by one of the following methods:
     Electronic Submission: Documents created electronically
using word processing software should be filed in native applications
or print-to-PDF format, and not in a scanned format, at http://www.ferc.gov/docs-filing/efiling.asp.
     Mail/Hand Delivery: Commenters unable to file comments
electronically must mail or hand deliver an original copy of their
comments to: Federal Energy Regulatory Commission, Secretary of the
Commission, 888 First Street, NE., Washington, DC 20426. These
requirements can be found on the Commission's Web site, see, e.g., the
``Quick Reference Guide for Paper Submissions,'' available at http://www.ferc.gov/docs-filing/efiling.asp, or via phone from FERC Online
Support at<PHONE_NUMBER> or toll-free at 1-866-208-3676.

FOR FURTHER INFORMATION CONTACT:

Kimberly Ognisty, (Legal Information), Office of General Counsel--
Energy Projects, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426,<PHONE_NUMBER>.
Doug Foster, (Technical Information), Office of the Executive Director,
Federal Energy Regulatory Commission, 888 First Street, NE.,
Washington, DC 20426,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Notice of Inquiry

Issued February 17, 2011

    1. The Federal Energy Regulatory Commission is issuing this Notice
of Inquiry to seek comments on its procedures with respect to the
assessment of annual charges for the use of government lands by
hydropower projects. In particular, the Commission is interested in
identifying administratively practical methods for assessing reasonable
annual charges that compensate the United States for the use of its
lands.

I. Background

    2. Section 10(e)(1) of the Federal Power Act (FPA) \1\ requires
Commission hydropower licensees using Federal lands to:
---------------------------------------------------------------------------

    \1\ 16 U.S.C. 803(e)(1) (2006). Section 10(e)(1) also requires
licensees to reimburse the United States for the costs of the
administration of Part I of the FPA. Those charges are calculated
and billed separately from the land use charges, and are not the
subject of this Notice of Inquiry.

pay to the United States reasonable annual charges in an amount to
be fixed by the Commission * * * for recompensing [the United
States] for the use, occupancy, and enjoyment of its lands or other
property * * * and in fixing such charges the Commission shall seek
to avoid increasing the price to the consumers of power by such
charges, and any such charges may be adjusted from time to time by
---------------------------------------------------------------------------
the Commission as conditions may require * * *

    In other words, where hydropower licensees use and occupy Federal
lands for project purposes, they must compensate the United States
through payment of an annual fee, to be established by the
Commission.\2\
---------------------------------------------------------------------------

    \2\ Pursuant to FPA section 17(a), 16 U.S.C. 810(a) (2006), the
fees collected for use of government lands are allocated as follows:
12.5 percent is paid into the treasury of the United States, 50
percent is paid into the Federal reclamation fund, and 37.5 percent
is paid into the treasuries of the States in which particular
projects are located. No part of the fees is used to fund the
Commission's operations.
---------------------------------------------------------------------------

    3. The Commission has employed various methodologies to determine
the charges. The touchstone has been to find an administratively
practical methodology which results in reasonably accurate land
valuations.
    4. Beginning in 1938, annual charges for use of government land
were based on project-by-project appraisals.\3\ That proved
uneconomical because the cost of conducting individual appraisals was
in excess of the value of the land involved.\4\ In 1942, the
Commission's predecessor, the Federal Power Commission (FPC), developed
a national average value of $50 per acre, to which it applied a four
percent rate of return to derive an annual land use charge of $2.00 per
acre.\5\ The FPC had determined that a national average was superior to
regional or State land values because use of the national average would
simplify the administrative task of Commission staff and reduce the
costs associated with yearly land use charge determinations.\6\ The FPC
recognized that regional or State averages had the advantage of greater
localization, but concluded that any speculative improvement in land
value accuracy would not be significant enough to outweigh the obvious
administrative economies accruing when a single nationwide figure is
used as the basis for annual charges.\7\
---------------------------------------------------------------------------

    \3\ See Revision of the Billing Procedures for Annual Charges
for Administering Part I of the Federal Power Act and to the
Methodology for Assessing Federal Land Use Charges, Order No. 469,
FERC Stats. & Regs. ] 30,741, at 30,584 (1987).
    \4\ Id.
    \5\ Id.
    \6\ Order Prescribing Amendment to Section 11.21 of the
Regulations Under the Federal Power Act, Order No. 560, 56 F.P.C.
3860 (1976).
    \7\ Id.
---------------------------------------------------------------------------

    5. In 1962, the FPC increased the national average land value to
$60 per acre, and in 1976 to $150 per acre. In 1976, the FPC also
adopted a fluctuating interest rate to ensure that the rate of return
would remain current.\8\
---------------------------------------------------------------------------

    \8\ Order No. 469, FERC Stats. & Regs. ] 30,741 at 30,584. This
rate was based on a fluctuating rate used by the United States Water
Resources Council, based primarily upon the average yield of long-
term United States interest-bearing securities.
---------------------------------------------------------------------------

    6. In 1985, the Inspector General of the Department of Energy
concluded that the Commission's existing methodology resulted in an
under-collection of over $15 million per year because it used outdated
land values. The Inspector General also found that the wide variation
in land values made the use of a zone index preferable to a national
average. The Inspector General recommended that the Commission: (1)
Base land use charges on the current fair market value of the land
being used; (2) use current long-term interest rates in its
calculations; and (3) replace the national average land value with
State-by-State averages.\9\
---------------------------------------------------------------------------

    \9\ See Assessment of Charges under the Hydroelectric Program,
DOE/IG Report No. 0219 (September 3, 1986); see also More Efforts
Needed to Recover Costs and Increase Hydropower Charges, U.S.
General Accounting Office Report No. RCED-87-12 (November 1986).
---------------------------------------------------------------------------

    7. In response, the Commission instituted a rulemaking for several
purposes, including to impose Federal land use fees that better
approximated the fair market value of the use of those lands. In the
Notice of Proposed Rulemaking, the Commission noted that it had found
no existing index of land values that accurately reflected current
economic conditions and conformed precisely to the context of land used
for hydropower projects.\10\ The Commission stated that it was
considering several proposals for assessing land use charges,
including: (1) Using, with modifications, the ``Agricultural Land
Values and Market Outlook and Situation Report,''

published by the Department of Agriculture, which provided State-by-
State average farm land and building values; (2) conducting individual
appraisals; or (3) using fees based on a licensed project's gross
income or on its power generation.\11\ In a subsequent notice
requesting supplemental comments, the Commission posited another
alternative that had recently become available: basing land use fees on
a rental schedule for linear rights-of-way being developed jointly by
the U.S. Department of Agriculture's Forest Service and the U.S.
Department of Interior's Bureau of Land Management (BLM).\12\ The
Commission explained that, although the rental schedule concerned
linear rights-of-way, it might be more representative of the value of
land used for hydropower projects than valuation of farm lands or any
other then currently-published information.\13\
---------------------------------------------------------------------------

    \10\ Billing Procedure Revisions--Annual Charges Methodology for
Assessing Federal Land Use Charges, Notice of Proposed Rulemaking,
FERC Stats. & Regs. ] 32,423, at 33,281 (1985).
    \11\ Id.
    \12\ 52 FR 82 (Jan. 2, 1987).
    \13\ Id.
---------------------------------------------------------------------------

    8. In its final rule, the Commission explained that its existing
methodology had resulted in under-collection of land use charges and
was no longer reasonable because it used outdated land values, that the
wide variation in land values across the country made use of a zone
index preferable to a national average, and that its previous decision
not to use such an index because of the burden on the Commission to
determine the value of Forest Service lands was no longer an issue
because the Forest Service and BLM had begun promulgating an index
setting forth those values.\14\ The Commission agreed with the majority
of commenters that the BLM-Forest Service index more accurately
reflected typical hydropower project lands, and so decided to use that
index rather than the farm values index.\15\
---------------------------------------------------------------------------

    \14\ Order No. 469, FERC Stats. & Regs. at 30,584.
    \15\ Id. at 30,589.
---------------------------------------------------------------------------

    9. The Commission explained that the BLM-Forest Service methodology
was based on a survey of the various types of lands that the Forest
Service has allowed to be occupied by linear rights-of-way. The
schedule was divided into regional zones, and provided per acre rental
fees listed by State and county.\16\ The Commission decided to continue
its past practice of doubling the linear right-of-way fee in order to
establish the annual fees for the use of Federal lands for project
works other than transmission lines (e.g., dams, powerhouse, and
reservoirs) because lands used for transmission line rights-of-way
would remain available for multiple uses, while other Federal lands
occupied by hydropower project works would not.\17\
---------------------------------------------------------------------------

    \16\ Id. at 30,588.
    \17\ See id. at 30,588-89.
---------------------------------------------------------------------------

    10. The Commission found no merit to claims that charging fair
market value for Federal lands is prohibited by the FPA:

    All increases in charges will result in some impact on
consumers. The statutory provision bars the Commission from
assessing unreasonable charges that would be passed along to
consumers. Reasonable annual charges are those that are
proportionate to the value of the benefit conferred. Therefore, a
fair market approach is consistent with the dictates of the Act.
Furthermore, as land values have not been adjusted in over ten
years, an adjustment upwards is warranted and overdue.\18\

    \18\ Id. (footnotes omitted). The Commission also rejected
arguments that it should intentionally set low land charges based on
the public benefits provided by hydropower projects.
---------------------------------------------------------------------------

    The Commission stated that ``the Forest Service index is the best
approximation of reasonable land charges'' and explained that ``the
Forest Service index will be adopted and published each year by the
Commission.'' \19\
---------------------------------------------------------------------------

    \19\ Id. at 30,591.
---------------------------------------------------------------------------

    11. The Commission rejected the proposal to use the agricultural
lands value index published by the U.S. Department of Agriculture,
which used a State-by-State average value per acre of farm land and
buildings. The Commission concluded that the agricultural index would
require such major adjustments that it would not be an efficient
measure of land value for hydropower projects.\20\ The Commission also
rejected using a fee based on the percentage of gross sales or a rate
per kilowatt hour. The Commission concluded that a percentage of gross
sales fee or flat rate is not a reasonable method because it would
charge a royalty as though the Federal land being used was producing
power, which overlooks the fact that power output is the result of many
factors (e.g., water rights, head, project structures), and not just
the acreage of the Federal land involved.\21\ Finally, the Commission
rejected the proposal to use individual project appraisals, concluding
that the FPC had abandoned the appraisal method in 1942, and again
after reconsideration in 1976, because the cost of individual project
appraisals was excessive compared to the value of the Federal land at
issue. Thus, the Commission concluded that individual appraisals would
be too costly and result in time-consuming litigation.\22\
---------------------------------------------------------------------------

    \20\ Id. at 30,589.
    \21\ Id. at 30,589-90.
    \22\ Id. at 30,590.
---------------------------------------------------------------------------

    12. Based on these findings, the Commission promulgated a
regulation stating, inter alia, that annual charges for the use of
government lands would be set on the basis of the schedule of rental
fees for linear rights-of-way (the BLM-Forest Service schedule); that
annual charges for government lands occupied by project transmission
lines would be based directly on the schedule, while charges for lands
used for other project purposes would be twice the charges set forth in
the schedule; and that the Commission, by its designee the Executive
Director, would update its fees schedule to reflect changes in land
values established by the Forest Service.\23\
---------------------------------------------------------------------------

    \23\ See 18 CFR 11.2(b) (2010).
---------------------------------------------------------------------------

    13. From 1987 until 2008, BLM and the Forest Service did not change
the 1987 linear right-of-way schedule, other than to make an adjustment
to the fees each year to account for inflation. Likewise, the only
change in the Commission's implementation of its annual charges during
this period was an annual fee update schedule to reflect the inflation
adjustment.\24\ In 2005, Congress passed the Energy Policy Act of 2005
that required BLM ``to update [the schedule] to revise the per acre
rental fee zone value schedule by State, county, and type of linear
right-of-way use to reflect current values of land in each zone.''\25\
Congress further ordered that ``the Secretary of Agriculture shall make
the same revision for linear rights-of-way * * * on National Forest
System land.''
---------------------------------------------------------------------------

    \24\ See, e.g., Update of the Federal Energy Regulatory
Commission's Fee Schedule for Annual Charges for the Use of
Government Lands, 73 FR 3626 (January 22, 2008), FERC Stats. & Regs.
] 31,262 (2008)
    \25\ 42 U.S.C. 15925 (2006).
---------------------------------------------------------------------------

    14. On April 27, 2006, BLM issued an advance notice of proposed
rulemaking proposing to update the fee schedule.\26\ BLM stated that it
was considering using existing published information or statistical
data, such as information published by the National Agricultural
Statistic Service (NASS), for updating the schedule. On December 11,
2007, BLM issued a proposed rule updating the rental fee schedule,\27\
and on October 31, 2008, it issued a final rule.\28\ The rule based the
updated fee on the NASS information, as BLM had proposed. BLM noted
that the four

commenters who had addressed the issue had supported use of the NASS
data. The Forest Service subsequently adopted the BLM revisions.\29\
---------------------------------------------------------------------------

    \26\ Update of Linear Right-of-Way Rental Schedule, 71 FR
24,836.
    \27\ Update of Linear Right-of-Way Rent Schedule, 72 FR 70,376.
    \28\ Update of Linear Right-of-Way Rent Schedule, 73 FR 65,040.
    \29\ See Fee Schedule for Linear Rights-of-Way Authorized on
National Forest System Lands, 73 FR 66,591 (November 10, 2008). The
Forest Service noted that it had given notice, in the preambles to
BLM's proposed and final rules, that it would adopt BLM's revised
fee schedule.
---------------------------------------------------------------------------

    15. In January 2009, the Commission sent letters to all of its
licensees, explaining that the Forest Service had revised its fee
schedule in response to direction from Congress and that consequently
``for many projects, the [fiscal year] 2009 Federal land use charges
will increase substantially.'' The Commission asked licensees to
confirm by county the Federal acres that the Commission believed to be
occupied by each project.\30\
---------------------------------------------------------------------------

    \30\ See, e.g., letter to Portland General Electric Co. in
Project No. 2030 (January 6, 2009).
---------------------------------------------------------------------------

    16. On February 17, 2009, the Commission issued notice of the Fee
Update Schedule and based the schedule, as in previous years, on the
BLM's and Forest Service's land valuations (February 17 Notice).\31\
Because of the BLM-Forest Service revisions, this resulted, in some
cases, in significantly higher fees being assessed.\32\ In calculating
the 2009 fees, the Commission used the same methodology that it has
used for the past 21 years: it took the land values published by Forest
Service and BLM, used the information in its files showing Federal
acreage occupied by individual projects, and applied the values for the
counties in which individual projects were located, doubling the values
for acreage occupied by non-transmission line portions of hydropower
projects.
---------------------------------------------------------------------------

    \31\ Update of the Federal Energy Regulatory Commission's Fees
Schedule for Annual Charges for the Use of Government Lands, 74 FR
8184 (February 24, 2009) FERC Stats. & Regs. ] 31,288 (2009).
    \32\ Other licensees, typically in the eastern part of the
country, had their charges reduced.
---------------------------------------------------------------------------

    17. On March 6, 2009, the Federal Lands Group, a group of licensees
composed of both municipal and private entities, filed a request for
rehearing of the February 17 Notice. The group alleged that the
February 17 Notice amounted to a rulemaking, improperly issued without
notice and an opportunity for comment, and that the Commission had
improperly delegated its authority to set annual charges to BLM and the
Forest Service. The group asked the Commission to vacate the February
17 Notice, rescind annual charge bills that had been sent out in
accordance with it, and reissue bills calculated under the prior fees
schedule.
    18. On October 30, 2009, the Commission denied rehearing.\33\ On
December 18, 2009, the Federal Lands Group filed a petition for review
with the United States Court of Appeals for the District of Columbia
Circuit. On January 4, 2011, the Court granted the petition for review
and vacated the 2009 Update.\34\ The Court stated that the Commission
is required by the Administrative Procedure Act to seek notice and
comment on the methodology used to calculate annual charges because the
Commission's fee schedule is based on the Forest Service's land value
index, and the Forest Service has made changes to the methodology
underlying its index. We begin that process here.
---------------------------------------------------------------------------

    \33\ Update of the Federal Energy Regulatory Commission's Fee
Schedule for Annual Changes for the Use of Government Lands, 129
FERC ] 61,095 (2009).
    \34\ City of Idaho Falls, Idaho v. FERC, No. 09-1120, 2011 U.S.
App. LEXIS 13 (DC Cir. Jan. 4, 2011).
---------------------------------------------------------------------------

II. Subject of the Notice of Inquiry

    19. As recounted above, the Commission has employed various
methodologies over the course of its history to determine annual
charges for the use of government lands by hydropower projects. The
touchstone has been to find an administratively-practical methodology,
which results in reasonably accurate land valuations. In seeking this
goal, the methodology has been modified on occasion in response to
concerns such as the cost of administering the methodology (e.g.,
rejecting individual appraisals), the administrative burden on the
Commission (e.g., rejecting creation of our own index), and the
accurate collection of fair market value (e.g., implementing updates in
response to the contention that Commission had been under-collecting).
At times, however, a previously-rejected approach has been revisited
and adopted (e.g., Forest Service-BLM index adopted with adjustments
because Commission would not be subject to administrative burden of
creating its own index). The Commission now seeks suggestions for
creating an administratively-practical methodology for assessing annual
charges for the use of government lands that will result in reasonably
accurate land valuations. The Commission specifically seeks comment on
existing indices that could be used as the basis for establishing
annual land use charges, and whether particular indices are better
suited for that purpose than others. We outline below the major
objectives in considering a new annual charges methodology, and request
that commenters address how any methodology they suggest would be
consistent with each of those objectives.

A. Uniform Applicability

    20. Any proposed methodology should be uniformly applicable to all
hydropower licensees. This means that the Executive Director should be
able to take the information in the Commission's files showing Federal
acreage occupied by individual projects, apply the adopted methodology,
and create an annual charge for the use of government lands for each
licensed project. This has previously been possible, for instance, from
1987 to 2008, with the use of an existing index created by the Forest
Service and BLM, modified as necessary, and updated automatically by
the Forest Service for inflation.

B. Cost of Administering Collection of Annual Charges

    21. The administration of any proposed methodology must not impose
exorbitant costs on the Commission. Collection of annual charges and
application of the ultimate methodology should be an annual, routine
ministerial process that requires reasonable, but not overly
burdensome, staff effort.

C. Methodology Not Subject to Review on an Individual Basis

    22. Any proposed methodology, once adopted, should not be subject
to review on an individual case-by-case basis. Licensees will have the
opportunity to challenge computational errors by the Executive Director
in calculating the annual charge or the relevant county land acreage,
but case-by-case challenges to the methodology would add significantly
to the administrative cost and burden of collecting annual charges.

D. Fair Market Value

    23. At times in the Commission's history, it has been determined
that the Commission had not been collecting fair market value for the
use of government lands, which resulted in a substantial under-
collection.\35\ To ensure that the Commission recovers ``reasonable
annual charges,'' any proposed methodology must reflect reasonably
accurate land valuations.
---------------------------------------------------------------------------

    \35\ See Assessment of Charges under the Hydroelectric Program,
DOE/IG Report No. 0219 (September 3, 1986); see also More Efforts
Needed to Recover Costs and Increase Hydropower Charges, U.S.
General Accounting Office Report No. RCED-87-12 (November 1986).

---------------------------------------------------------------------------

E. Avoid Increasing Price to Consumers of Power

    24. In fixing annual charges, we must seek to avoid increasing the
price to consumers of power by such charges. Therefore, any proposed
methodology should provide reasonable, but not excessive, compensation
to the United States for the use of its lands.

III. Comment Procedures

    25. The Commission invites interested persons to submit comments
and other information on the matters, issues, and specific questions
identified in this notice. Comments are due April 29, 2011. Comments
must refer to Docket No. RM11-6-000, and must include the commenter's
name, the organization it represents, if applicable, and its address.
    26. To facilitate the Commission's review of the comments,
commenters are requested to provide an executive summary of their
position. Commenters are requested to identify each specific question
posed by the Notice of Inquiry that their discussion addresses and to
use appropriate headings. Additional issues the commenters wish to
raise should be identified separately. The commenters should double-
space their comments.
    27. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
    28. Commenters unable to file comments electronically must mail or
hand deliver an original copy of their comments to: Federal Energy
Regulatory Commission, Secretary of the Commission, 888 First Street,
NE., Washington, DC, 20426. The current requirements are specified on
the Commission's Web site, see, e.g., the ``Quick Reference Guide for
Paper Submissions,'' available at http://www.ferc.gov/docs-filing/efiling.asp, or via phone from FERC Online Support at<PHONE_NUMBER> or
toll-free at 1-866-208-3676.
    29. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters are not required to
serve copies of their comments on other commenters.

IV. Document Availability

    30. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through the Commission's Home Page (http://www.ferc.gov) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A,
Washington, DC 20426.
    31. From the Commission's Home Page on the Internet, this
information is available in the Commission's document management
system, eLibrary. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number (excluding the last three digits) in the docket number field.
    32. User assistance is available for eLibrary and the Commission's
Web site during normal business hours. For assistance, please contact
the Commission's Online Support at 1-866-208-3676 (toll free) or 202-
502-6652 (e-mail at<EMAIL_ADDRESS>or the Public Reference
Room at<PHONE_NUMBER>, TTY<PHONE_NUMBER> (e-mail at
public.referenceroom@ferc.gov).

    By direction of the Commission.

Kimberly D. Bose,
Secretary.
[FR Doc. 2011-4268 Filed 2-25-11; 8:45 am]
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[Federal Register Volume 87, Number 166 (Monday, August 29, 2022)]
[Rules and Regulations]
[Pages 52673-52674]
[FR Doc No: 2022-18427]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2021-1100; Airspace Docket No. 19-AAL-65]
RIN 2120-AA66

Amendment of United States Area Navigation (RNAV) Route T-235;
Atqasuk, AK

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This action amends United States Area Navigation (RNAV) route
T-235 in the vicinity of Atqasuk, AK, in support of a large and
comprehensive T-route modernization project for the state of Alaska.

DATES: Effective date 0901 UTC, November 3, 2022. The Director of the
Federal Register approves this incorporation by reference action under
1 CFR part 51, subject to the annual revision of FAA Order JO 7400.11
and publication of conforming amendments.

ADDRESSES: FAA Order JO 7400.11F, Airspace Designations and Reporting
Points, and subsequent amendments can be viewed online at www.faa.gov/air_traffic/publications/. For further information, you can contact the
Rules and Regulations Group, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.

FOR FURTHER INFORMATION CONTACT: Colby Abbott, Rules and Regulations
Group, Office of Policy, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
the airspace necessary to ensure the safety of aircraft and the
efficient use of airspace. This regulation is within the scope of that
authority as it expands the availability of RNAV in Alaska and improves
the efficient flow of air traffic within the National Airspace System
by lessening the dependency on ground based navigation.

History

    The FAA published a notice of proposed rulemaking for Docket No.
FAA-2021-1100 in the Federal Register (86 FR 70774; December 13, 2021),
amending RNAV route T-235 in the vicinity of Atqasuk, AK, in support of
a large and comprehensive T-route modernization project for the state
of Alaska. Interested parties were invited to participate in this
rulemaking effort by submitting comments on the proposal. No comments
were received.
    United States Area Navigation Routes are published in paragraph
6011 of FAA Order JO 7400.11F, dated August 10, 2021, and effective
September 15, 2021, which is incorporated by reference in 14 CFR 71.1.
The RNAV route listed in this document will be published subsequently
in FAA Order JO 7400.11.

Availability and Summary of Documents for Incorporation by Reference

    This document amends FAA Order JO 7400.11F, Airspace Designations
and Reporting Points, dated August 10, 2021, and effective September
15, 2021. FAA Order JO 7400.11F is publicly available as listed in the
ADDRESSES section of this document. FAA Order JO 7400.11F lists Class
A, B, C, D, and E airspace areas, air traffic service routes, and
reporting points.

The Rule

    This action amends 14 CFR part 71 by amending RNAV route T-235 in
the vicinity of Atqasuk, AK, in support of a large and comprehensive T-
route modernization project for the state of Alaska. The route
amendment is described below.
    T-235: T-235 extends between the Atqasuk, AK (ATK), Nondirectional
Radio Beacon (NDB) and the Nuiqsut, AK (UQS), NDB. The route is amended
by replacing the Atqasuk NDB with the ZISDU, AK, waypoint (WP);
replacing the Nuiqsut NDB with the JATIL, AK, WP; extending the route
westward from the ZISDU, AK, WP to the FILEV, AK, WP in the vicinity of
Wainwright, AK; and extending the route eastward from the JATIL, AK, WP
to the Deadhorse, AK (SCC), VHF Omnidirectional Range/Distance
Measuring Equipment (VOR/DME) navigational aid. The full route
description of the amended route is listed in ``The Amendment''
section, below.
    FAA Order JO 7400.11, Airspace Designations and Reporting Points,
is published yearly and effective on September 15.

Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore: (1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under
Department of Transportation (DOT) Regulatory Policies and Procedures
(44 FR 11034; February 26, 1979); and (3) does not warrant preparation
of a regulatory evaluation as the anticipated impact is so minimal.
Since this is a routine matter that will only affect air traffic
procedures and air navigation, it is certified that this rule, when
promulgated, will not have a significant economic impact on a
substantial number of small entities under the criteria of the
Regulatory Flexibility Act.

Environmental Review

    The FAA has determined that this airspace action of amending RNAV
route T-235 in the vicinity of Atqasuk, AK, qualifies for categorical
exclusion under the National Environmental Policy Act (42 U.S.C. 4321
et seq.) and its implementing regulations at 40 CFR part 1500, and in
accordance with FAA Order 1050.1F, Environmental Impacts: Policies and
Procedures, paragraph 5-6.5a, which categorically excludes from further
environmental impact review rulemaking actions that designate or modify
classes of airspace areas, airways, routes, and reporting points (see
14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas;
Air Traffic Service Routes; and Reporting Points), and paragraph 5-
6.5i, which categorically excludes from further environmental review
the establishment of new or revised air traffic control procedures
conducted at 3,000 feet or more above ground level (AGL); procedures
conducted below 3,000 feet AGL that do not cause traffic to be
routinely routed over noise sensitive areas; modifications to currently
approved procedures conducted below 3,000 feet AGL that do not
significantly increase noise over noise sensitive areas; and increases
in minimum altitudes and landing

minima. As such, this action is not expected to result in any
potentially significant environmental impacts. In accordance with FAA
Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the
FAA has reviewed this action for factors and circumstances in which a
normally categorically excluded action may have a significant
environmental impact requiring further analysis. Accordingly, the FAA
has determined that no extraordinary circumstances exist that warrant
preparation of an environmental assessment or environmental impact
study.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Amendment

    In consideration of the foregoing, the Federal Aviation
Administration amends 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for 14 CFR part 71 continues to read as
follows:

    Authority:  49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1   [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order JO
7400.11F, Airspace Designations and Reporting Points, dated August 10,
2021, and effective September 15, 2021, is amended as follows:

Paragraph 6011 United States Area Navigation Routes.

                                                                        * * * * *
T-235 FILEV, AK to Deadhorse, AK (SCC) [Amended]

FILEV, AK                                         WP                            (Lat. 70[deg]38'16.81'' N, long. 159[deg]59'41.10'' W)
ZISDU, AK                                         WP                            (Lat. 70[deg]28'08.35'' N, long. 157[deg]25'20.99'' W)
JATIL, AK                                         WP                            (Lat. 70[deg]12'46.02'' N, long. 151[deg]00'19.83'' W)
ZADRO, AK                                         WP                            (Lat. 70[deg]13'09.77'' N, long. 150[deg]12'03.78'' W)
Deadhorse, AK (SCC)                               VOR/DME                       (Lat. 70[deg]11'57.11'' N, long. 148[deg]24'58.17'' W)

                                                                        * * * * *

    Issued in Washington, DC, on August 23, 2022.
Scott M. Rosenbloom,
Manager, Airspace Rules and Regulations.
[FR Doc. 2022-18427 Filed 8-26-22; 8:45 am]
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