[Federal Register Volume 80, Number 119 (Monday, June 22, 2015)]
[Notices]
[Pages 35697-35699]
[FR Doc No: 2015-15159]

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2013-0313]

Parts and Accessories Necessary for Safe Operation; Grant of
Exemption For HELP Inc.

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of final disposition.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
announces its decision to grant an exemption to HELP, Inc. that will
allow the placement of its transponder systems at the bottom of
windshields on commercial motor vehicles (CMVs). The Federal Motor
Carrier Safety Regulations (FMCSRs) currently require antennas,
transponders, and similar devices to be located not more than 6 inches
below the upper edge of the windshield, outside the area swept by the
windshield wipers, and outside the

driver's sight lines to the road and highway signs and signals. The
exemption will enable motor carriers to mount the HELP, Inc.
transponder systems lower in the windshield than is currently permitted
by the Agency's regulations in order to utilize a mounting location
that maximizes the device's ability to send and receive roadside data.
FMCSA believes that permitting the transponder systems to be mounted
lower than currently allowed, but still outside the driver's sight
lines to the road and highway signs and signals, will maintain a level
of safety that is equivalent to, or greater than, the level of safety
achieved without the exemption.

DATES: This exemption is effective from June 22, 2015 until June 22,
2017.

FOR FURTHER INFORMATION CONTACT: Mr. Mr. Mike Huntley, Vehicle and
Roadside Operations Division, Office of Carrier, Driver, and Vehicle
Safety, MC-PSV,<PHONE_NUMBER>; Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

SUPPLEMENTARY INFORMATION:

Background

    Section 4007 of the Transportation Equity Act for the 21st Century
(TEA- 21) [Pub. L. 105-178, June 9, 1998, 112 Stat. 401] amended 49
U.S.C. 31315 and 31136(e) to provide authority to grant exemptions from
the Federal Motor Carrier Safety Regulations (FMCSRs). On August 20,
2004, FMCSA published a final rule (69 FR 51589) implementing section
4007. Under this rule, FMCSA must publish a notice of each exemption
request in the Federal Register (49 CFR 381.315(a)). The Agency must
provide the public with an opportunity to inspect the information
relevant to the application, including any safety analyses that have
been conducted. The Agency must also provide an opportunity for public
comment on the request.
    The Agency reviews the safety analyses and the public comments and
determines whether granting the exemption would likely achieve a level
of safety equivalent to or greater than the level that would be
achieved by the current regulation (49 CFR 381.305).
    The decision of the Agency must be published in the Federal
Register (49 CFR 381.315(b)). If the Agency denies the request, it must
state the reason for doing so. If the decision is to grant the
exemption, the notice must specify the person or class of persons
receiving the exemption and the regulatory provision or provisions from
which an exemption is granted. The notice must also specify the
effective period of the exemption (up to 2 years) and explain the terms
and conditions of the exemption. The exemption may be renewed (49 CFR
381.315(c) and 49 CFR 381.300(b)).

HELP, Inc. Application for Exemption

    Help, Inc. applied for an exemption from 49 CFR 393.60(e)(1) to
allow the installation of transponders on its customers' CMVs in a
location that is lower than currently allowed under the regulation.
Section 393.60(e)(1) of the FMCSRs prohibits the obstruction of the
driver's field of view by devices mounted on the windshield. Antennas,
transponders and similar devices must not be mounted more than 152 mm
(6 inches) below the upper edge of the windshield. These devices must
be located outside the area swept by the windshield wipers and outside
the driver's sight lines to the road, highway signs and signals.
    In its application, Help, Inc. states:

Help, Inc. is making this request because we are coordinating device
development and installation of PrePass transponder in up to 430,000
commercial motor vehicles. The 5.9 and toll transponder equipment
installed is located at the bottom of the windshield, but within the
swept area of windshield because the safety equipment must have a
clear forward facing view of the road, and low enough to accurately
be read by roadside infrastructure . . . The restrictions on the
location of devices mounted in the windshield area significantly
degrade the ability to capture the proper viewing area in commercial
motor vehicles. A 5.9 and toll transponder which lacks an effective
view of the roadside infrastructure through the front windshield
will negatively impact the ability to send and receive roadside
data.

    Help, Inc.'s preferred mounting location for the transponders is 2
inches right of the center of the windshield, and 2-3 inches above the
dashboard. Help, Inc. states that using this mounting location that is
lower in the windshield than currently permitted by the FMCSRs ``will
offer the best opportunity to optimize the data transmission and
evaluate the benefits of such a system'' while maximizing ``the
external view of the roadway.''

Comments

    On July 31, 2013, FMCSA published notice of the application and
asked for public comment (78 FR 46406). The Agency received two
comments.
    1. Advocates for Highway and Auto Safety (``Advocates'') provided
general comments stating that it ``supports the development and use of
technology and devices to improve safety and vehicle operation,'' but
noted that it ``is aware of several similar new and emerging
technologies, with applications for commercial motor vehicles, that
will likely come into conflict'' with the regulations in 49 CFR
393.60(e)(1) and (2) that limit the location of devices and decals in
the windshield of CMVs. As a result, Advocates concluded that
``Advances in technology may be such that the agency should reconsider
the limitations specified in section 393.60(e) and consider
establishing updated guidelines which will both permit the optimal
installation of beneficial safety devices while at the same time
limiting the proliferation and installation of multiple devices that
could interfere with a driver's view of the road, side and rearview
mirrors or, in some cases, interfere or distract the driver from the
driving task.''
    Specifically with respect to Help, Inc.'s application, Advocates
recommended ``that the agency consider the positioning/size of the
device and its impact on the field of view afforded the driver in
making the determination to grant or deny this application exemption.''
    FMCSA response: Enforcement personnel, motor carriers, regulators,
and manufacturers alike are increasingly faced with accommodating the
use of various technologies, designed to improve commercial motor
vehicle safety, which may impact the driver's field of view of the
roadway through the windshield wiper swept area. Examples include a
variety of electronic devices, window tint products, decorations,
decals and stickers, sun visors and window shades, and other devices
and products--all of which serve different purposes but can, in some
cases, diminish or block part of the driver's view.
    The Commercial Vehicle Safety Alliance (CVSA), in cooperation with
FMCSA and other industry trade associations hosted a dialogue among
enforcement experts, industry representatives, and Federal regulators
to help improve the common understanding of the balance between the
benefits and the possible risks of using these technologies and
devices. The ``Technology Impacts on CMV Driver Direct Field of Vision
Symposium'' was held on April 22, 2013 in conjunction with the CVSA
Workshop in Louisville, KY. FMCSA may consider amendments to 49 CFR
393.60(e) in the future, and will certainly use the information
gathered at that symposium--in conjunction with all other available
information, research, and data--in the development of such possible
amendments.
    While FMCSA acknowledges that Help, Inc. did not present specific
studies or data showing that safety will

not be degraded, the Agency believes that placement of the transponders
lower in the windshield than currently permitted will be outside the
drivers' sight lines, and therefore, will not have an adverse impact on
safety.
    2. Mr. Paul Baute supported the application, but noted that ``the
exemption should not be necessary. FMCSA 393.60(e)(1) is in conflict
with FMCSA 393.60(e)(2) with locations of items such as transponders
and decals . . . FMCSR 393.60(e)(1) should be changed to allow the
transponders to be mounted on the bottom of the windshield.''
    FMCSA response: The regulations at section 393.60(e)(1) and section
393.60(e)(2) do not conflict. Section 393.60(e)(1) defines the
dimensional limits at the top of the windshield in which ``antennas,
transponders, and similar devices'' can be mounted, whereas section
393.60(e)(2) defines the dimensional limits at the bottom of the
windshield for applying ``Commercial Vehicle Safety Alliance (CVSA)
inspection decals, and stickers and/or decals required under Federal or
State laws.'' Section 393.60(e)(2) does not currently allow other
devices, such as transponders, to be mounted in the area at the bottom
of the windshield, and any amendment to the regulation to allow such
devices to be mounted in this location would have to be made through a
notice-and-comment rulemaking.

Terms and Conditions for the Exemption

    Based on its evaluation of the application for an exemption, FMCSA
grants Help, Inc.'s exemption application. The Agency believes that the
safety performance of motor carriers during the 2-year exemption period
will likely achieve a level of safety that is equivalent to, or greater
than, the level of safety achieved without the exemption because (1)
based on the technical information available, there is no indication
that the transponders would obstruct drivers' views of the roadway,
highway signs and surrounding traffic; (2) generally, trucks and buses
have an elevated seating position which greatly improves the forward
visual field of the driver, and any impairment of available sight lines
would be minimal; and (3) the location at the bottom of the windshield
but within the windshield wiper sweep, and out of the driver's
sightline is reasonable and enforceable at roadside. Without the
exemption, Help, Inc. would be unable to utilize a mounting location
that maximizes the device's ability to send and receive roadside data.
    The Agency hereby grants the exemption for a two-year period,
beginning June 22, 2015 until June 22, 2017.
    During the temporary exemption period, motor carriers using Help,
Inc. transponders must ensure that the devices are mounted 2 inches
right of the center of the windshield, and 2-3 inches above the
dashboard. If however, because of the design and mounting of the
windshield wipers on a particular CMV, use of the mounting location
identified above does not result in the transponder being located
within the swept area of the wipers, the transponder may be positioned
such that it is located (1) to the right of the center of the
windshield, and (2) as low as possible in the swept area of the wipers.
    The FMCSA encourages any party having information that motor
carriers utilizing this exemption are not achieving the requisite level
of safety immediately to notify the Agency. If safety is being
compromised, or if the continuation of the exemption is not consistent
with 49 U.S.C. 31315(b) and 31136(e), FMCSA will take immediate steps
to revoke the exemption.

Preemption

    In accordance with section 381.600 of the FMCSRs, during the period
the exemption is in effect, no State shall enforce any law or
regulation that conflicts with or is inconsistent with this exemption
with respect to a person operating under the exemption.

    Issued on: June 3, 2015.
T.F. Scott Darling III,
Chief Counsel.
[FR Doc. 2015-15159 Filed 6-19-15; 8:45 am]
BILLING CODE 4910-EX-P


\101\ Id.

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     The pollutant is emitted by a large number and range of
sources,
     The relationship between any individual source or source
category and overall air quality is not well known,
     A chemical transformation is involved (e.g., secondary
particulate significantly contributes to PM2.5 levels over
the standard), and/or
     The emission reductions necessary to attain the
PM2.5 standard are inventory-wide.\102\
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    \102\ Id.
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    The Addendum indicates that requiring linear progress may be less
appropriate in other situations, such as:
     Where there are a limited number of sources of direct
PM2.5 or a precursor,
     Where the relationships between individual sources and air
quality are relatively well defined, and/or
     Where the emission control systems utilized (e.g., at
major point sources) will result in swift and dramatic emission
reductions.
    In nonattainment areas characterized by any of these latter
conditions, RFP may be better represented as step-wise progress as
controls are implemented and achieve significant reductions soon
thereafter. For example, if an area's nonattainment problem can be
attributed to a few major sources, EPA guidance indicates that ``RFP
should be met by `adherence to an ambitious compliance schedule' which
is likely to periodically yield significant emission reductions of
direct PM2.5 or a PM2.5 precursor.'' \103\
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    \103\ Id. at 42015.
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    Attainment plans for PM2.5 nonattainment areas should
include detailed schedules for compliance with emission regulations in
the area and provide corresponding annual emission reductions to be
realized from each milestone in the schedule.\104\ In reviewing an
attainment plan under subpart 4, the EPA considers whether the annual
incremental emission reductions to be achieved are reasonable in light
of the statutory objective of timely attainment. Although early
implementation of the most cost-effective control measures is often
appropriate, states should consider both cost-effectiveness and
pollution reduction effectiveness when developing implementation
schedules for its control measures and may implement measures that are
more effective at reducing PM2.5 earlier to provide greater
public health benefits.\105\
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    \104\ Id. at 42016.
    \105\ Id.
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    The PM2.5 SIP Requirements Rule establishes specific
regulatory requirements for purposes of satisfying the Act's RFP
requirements and provides related guidance in the preamble to the rule.
Specifically, under the PM2.5 SIP Requirements Rule, each
PM2.5 attainment plan must contain an RFP analysis that
includes, at minimum, the following four components: (1) An
implementation schedule for control measures; (2) RFP projected
emissions for direct PM2.5 and all PM2.5 plan
precursors for each applicable milestone year, based on the anticipated
control measure implementation schedule; (3) a demonstration that the
control strategy and implementation schedule will achieve reasonable
progress toward attainment between the base year and the attainment
year; and (4) a demonstration that by the end of the calendar year for
each milestone date for the area, pollutant emissions will be at levels
that reflect either generally linear progress or stepwise progress in
reducing emissions on an annual basis between the base year and the
attainment year.\106\ States should estimate the RFP projected
emissions for each quantitative milestone year by sector on a
pollutant-by-pollutant basis.\107\
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    \106\ 40 CFR 51.1012(a).
    \107\ 81 FR 58010, 58056 (August 24, 2016).
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    Section 189(c) requires that attainment plans include quantitative
milestones that demonstrate RFP. The purpose of the quantitative
milestones is to allow for periodic evaluation of the area's progress
towards attainment of the NAAQS consistent with RFP requirements.
Because RFP is an annual emission reduction requirement and the
quantitative milestones are to be achieved every three years, when a
state demonstrates compliance with the quantitative milestone
requirement, it will demonstrate that RFP has been achieved during each
of the relevant three years. Quantitative milestones should provide an
objective means to evaluate progress toward attainment meaningfully,
e.g., through imposition of emission controls in the attainment plan
and the requirement to quantify those required emission reductions. The
CAA also requires states to submit milestone reports (due 90 days after
each milestone), and these reports should include calculations and any
assumptions made by the state concerning how RFP has been met, e.g.,
through quantification of emission reductions to date.\108\
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    \108\ Id. at 42016, 42017.
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    The CAA does not specify the starting point for counting the three-
year periods for quantitative milestones under CAA section 189(c). In
the General Preamble and Addendum, the EPA interpreted the CAA to
require that the starting point for the first three-year period be the
due date for the Moderate area plan submission.\109\ Consistent with
this longstanding interpretation of the Act, the PM2.5 SIP
Requirements Rule requires that each plan for a Moderate
PM2.5 nonattainment area contain quantitative milestones to
be achieved no later than milestone dates 4.5 years and 7.5 years from
the date of designation of the area.\110\ Because the EPA designated
the Portola area nonattainment for the 2012 annual PM2.5
NAAQS effective April 15, 2015,\111\ the applicable quantitative
milestone dates for purposes of the Portola PM2.5 Plan are
October 15, 2019 and October 15, 2022.
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    \109\ General Preamble, 13539 and Addendum, 42016.
    \110\ 40 CFR 51.1013(a)(1).
    \111\ 80 FR 2206 (January 15, 2015).
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2. RFP Demonstration and Quantitative Milestones in the Portola
PM2.5 Plan
    The RFP demonstration and quantitative milestones are in section
VI.A of the Portola PM2.5 Plan. The Plan estimates that
emissions of direct PM2.5 will decline steadily from 2016 to
2021 and that emissions of direct PM2.5 will generally
remain below the levels needed to show step-wise progress toward
attainment. According to the State and District, step-wise progress
toward attainment is justified here because before the Portola area was
designated as a PM2.5 nonattainment area in 2015, the area
was designated attainment for all NAAQS and was not required to
implement any air quality control program. The development of the wood
stove change-out program involved an intensive effort to secure
funding, establish requirements for contractors/retailers, identify and
educate potential applicants, review and process completed
applications, coordinate the installation of new stoves along with the
removal and destruction of the old stoves, and track the progress of
the program at every step. Given the time necessary to develop this
program, direct PM2.5 emissions remained flat between 2013,
the base year of the Plan, and 2016, the year that the District began
to implement the wood stove change-out program. By 2016, however, the
District had secured the necessary funding and developed the program
infrastructure, enabling it to begin full implementation of its five-
year voluntary wood stove change-out program to provide for attainment
by December 2021, the earliest practicable attainment date for the 2012
annual

PM2.5 NAAQS in this area. The District estimates that the
change-out program will achieve PM2.5 emission reductions
representing generally linear progress toward attainment between 2016
and 2022. Because the majority of the changeouts will be completed
during the summer months when homeowners are not heating their homes,
the District expects that direct PM2.5 concentrations during
the second half of the year will be lower than during the first half of
the year. For RFP purposes, only the changeouts accomplished during the
prior year are accounted for in the projected emission reductions
(i.e., only reductions from changeouts in effect for a full year are
credited toward RFP).\112\
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    \112\ Portola PM2.5 Plan, 66-72.
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    The Plan's emissions inventory shows that direct PM2.5
is emitted predominantly by residential wood combustion.\113\ The Plan
specifically describes the District's procedures for calculating the
2019 and 2022 RFP targets for direct PM2.5 and documents the
District's conclusion that projected PM2.5 emission levels,
based on the adopted control strategy for the area, would meet the RFP
targets in both milestone years, as shown in Table 6 below.\114\
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    \113\ Id. at Appendix B.
    \114\ Id. at 66-70.

                                Table 6--RFP Demonstration for Direct PM2.5 (tpd)
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                           Description                                 2013            2019            2022
----------------------------------------------------------------------------------------------------------------
Baseline inventory \a\..........................................           0.490           0.487           0.487
Reductions from RACM control strategy \a\.......................           0.000           0.045           0.077
Inventory after RACM control strategy implemented \b\...........            0.49            0.44            0.41
RFP target \b\..................................................  ..............            0.44            0.41
RFP target achieved?............................................  ..............             Yes             Yes
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\a\ Reductions from CARB's mobile source measures are already included in the projected 2019 and 2022 baseline
  inventories.
\b\ Rounding to two decimal places (hundredths of a ton).

    With respect to quantitative milestones, the Portola
PM2.5 Plan identifies RFP emissions levels for direct
PM2.5 in 2019 and 2022 that show, beginning in 2016,
stepwise progress towards attaining the annual PM2.5 NAAQS
in 2021. The quantitative milestones are the differences in emissions
between the future baseline inventories and the future controlled
inventories for 2019 and 2022, i.e., the projected emission reductions
in each of these years, as shown in Table 7.\115\
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    \115\ Id. at 71-72.

  Table 7--RFP Projected Emission Reductions for Quantitative Milestone
                               Years (tpd)
------------------------------------------------------------------------
                 Sector                        2019            2022
------------------------------------------------------------------------
Wood Stove Changeouts...................           0.045           0.077
                                         -------------------------------
    Total...............................           0.045           0.077
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Source: Portola PM2.5 Plan, 71-72.

    The Portola PM2.5 Plan also contains an enforceable
commitment by the District to implement specific numbers of wood stove
change-out projects and to achieve specific amounts of PM2.5
emission reductions through implementation of these projects by the
2019 RFP year and the 2021 attainment year.\116\
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    \116\ Id. at Appendix E, 10. The EPA approved this commitment
into the SIP at 83 FR 13871 (April 2, 2018).
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    Finally, the Portola PM2.5 Plan states the District's
commitment to track, quantify, and report to the EPA on its
implementation of the adopted control strategy and on the area's
progress toward attainment. The Plan also states that the District will
submit to the EPA a quantitative milestone report no later than 90 days
after a given milestone date (i.e., by January 15, 2020 and January 15,
2023, respectively), each of which will include the following
information:
    [ssquf] Certification that the SIP strategy is being implemented
consistent with RFP;
    [ssquf] Technical support, including calculations to document
completion statistics for each quantitative milestone; and
    [ssquf] Discussion of whether the PM2.5 NAAQS will be
attained by the projected attainment date.\117\
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    \117\ Id. at 71.
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3. The EPA's Evaluation and Proposed Action
a. Reasonable Further Progress Demonstration
    As discussed in section IV.C. of this proposed rule, we are
proposing to determine that PM2.5 precursors do not
contribute significantly to ambient PM2.5 levels that exceed
the 2012 annual PM2.5 NAAQS in the Portola PM2.5
nonattainment area and, accordingly, that no RFP demonstrations for
PM2.5 precursors are necessary for purposes of the 2012
annual PM2.5 NAAQS in this area.
    With respect to direct PM2.5, we agree that step-wise
progress is an appropriate measure of RFP for the 2012 PM2.5
NAAQS in the Portola area. It is justified because direct
PM2.5 is emitted primarily from hundreds of individual
residential wood combustion sources, and the District needed adequate
time to secure funding and develop the infrastructure necessary to
implement a wood stove change-out program. Accordingly, the emission
reductions that result from this program did not begin until 2016, but
will continue throughout the duration of the Plan.
    The Portola PM2.5 Plan documents the State's conclusion
that it is implementing all RACM and RACT and additional reasonable
measures for direct PM2.5 as expeditiously as practicable
and identifies projected levels of direct PM2.5 emissions in
2019 and 2022 that reflect full implementation of the State's and

District's attainment control strategy for direct
PM2.5.\118\ The wood stove change-out program provides
incremental reductions of direct PM2.5 emission from 2016 to
2021. CARB's mobile source measures also provide incremental reductions
of direct PM2.5 emissions from 2013 to 2022, and the City
Ordinance is projected to achieve emission reductions beginning in
2021, to the extent those reductions have not already occurred through
implementation of the wood stove change-out program. All of these
measures achieve PM2.5 reductions each year and the State
and District will be reporting on RFP in the 2019 and 2022 RFP
milestone years and through the 2021 attainment year.\119\
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    \118\ Portola PM2.5 Plan, Chapter VI, section D.3.
    \119\ Portola PM2.5 Plan, Chapter VI, section A.
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    Thus, the Portola PM2.5 Plan demonstrates that emissions
of direct PM2.5 will be reduced at rates representing
stepwise progress toward attainment. The Plan also demonstrates that
all RACM, RACT, and additional reasonable measures that provide the
bases for the direct PM2.5 emissions projections in the RFP
analysis in the Plan are being implemented as expeditiously as
practicable. Accordingly, we propose to determine that the Plan
requires the annual incremental reductions in emissions of direct
PM2.5 that are necessary for the purpose of ensuring
reasonable further progress towards attainment of the 2012 annual
PM2.5 NAAQS by 2021, in accordance with the requirements of
CAA sections 171(1) and 172(c)(2).
b. Quantitative Milestones
    The Plan adequately documents the District's methodology for
identifying and calculating appropriate RFP targets for the 2019 and
2022 milestone years and contains, as part of the RACM control strategy
for the area, an enforceable commitment by the District to implement
specific numbers of wood stove change-out projects and thereby achieve
specific amounts of PM2.5 emission reductions by the 2019
RFP year and the 2021 attainment year.\120\ These quantitative
milestones provide an objective means for evaluating the area's
progress toward attainment of the PM2.5 NAAQS. We propose to
approve these quantitative milestones in the Portola PM2.5
Plan as meeting the requirements of CAA section 189(c) and 40 CFR
51.1013(a)(1). We note that, consistent with the requirements of CAA
section 189(c)(2) as interpreted in longstanding EPA policy, each of
the upcoming milestone reports should include technical support
sufficient to document completion statistics for appropriate
milestones, e.g., calculations and any assumptions made concerning
emission reductions to date.\121\
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    \120\ Id. at Appendix E, 10.
    \121\ Addendum, 42017.
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H. Contingency Measures

1. Requirements for Contingency Measures
    Under CAA section 172(c)(9), each SIP for a nonattainment area must
include contingency measures to be implemented if an area fails to meet
RFP (``RFP contingency measures'') or fails to attain the NAAQS by the
applicable attainment date (``attainment contingency measures''). Under
the PM2.5 SIP Requirements Rule, PM2.5 attainment
plans must include contingency measures to be implemented following a
determination by the EPA that the state has failed: (1) To meet any RFP
requirement in the approved SIP; (2) to meet any quantitative milestone
in the approved SIP; (3) to submit a required quantitative milestone
report; or (4) to attain the applicable PM2.5 NAAQS by the
applicable attainment date.\122\ Contingency measures must be fully
adopted rules or control measures that are ready to be implemented
quickly upon failure to meet RFP or failure of the area to meet the
relevant NAAQS by the applicable attainment date.\123\
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    \122\ See 40 CFR 51.1014(a).
    \123\ See 81 FR 58010, 58066; see also Addendum, 42015.
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    The purpose of contingency measures is to continue progress in
reducing emissions while a state revises its SIP to meet the missed RFP
requirement or to correct ongoing nonattainment. Neither the CAA nor
the EPA's implementing regulations establish a specific level of
emissions reductions that implementation of contingency measures must
achieve, but the EPA recommends that contingency measures should
provide for emissions reductions equivalent to approximately one year
of reductions needed for RFP, calculated as the overall level of
reductions needed to demonstrate attainment divided by the number of
years from the base year to the attainment year. In general, we expect
all actions needed to effect full implementation of the measures to
occur within 60 days after the EPA notifies the State of a failure to
meet RFP or to attain.\124\
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    \124\ See 81 FR 58010, 58066; see also General Preamble, 13512,
13543-44 and Addendum, 42014-42015.
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    To satisfy the requirements of 40 CFR 51.1014, the contingency
measures adopted as part of a PM2.5 attainment plan must
consist of control measures for the area that are not otherwise
required to meet other nonattainment plan requirements or that achieve
emissions reductions not otherwise relied upon in the control strategy
for the area (e.g., to meet RACM/RACT requirements) and must specify
the timeframe within which their requirements become effective
following any of the EPA determinations specified in 40 CFR 51.1014(a).
    The Ninth Circuit Court of Appeals recently rejected the EPA's
interpretation of CAA section 172(c)(9) to allow approval of already
implemented control measures as contingency measures, in a decision
called Bahr v. EPA (``Bahr'').\125\ In Bahr, the Ninth Circuit
concluded that contingency measures must be measures that are triggered
only after the EPA determines that an area fails to meet RFP
requirements or to attain by the applicable attainment date, not
before. Thus, within the geographic jurisdiction of the Ninth Circuit,
states cannot rely on already implemented measures to comply with the
contingency measure requirements under CAA section 172(c)(9).
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    \125\ Bahr v. EPA, 836 F.3d 1218, 1235-1237 (9th Cir. 2016).
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2. Contingency Measures in the 2016 PM2.5 Plan
    The District's contingency measures are described in section VI.B
of the Portola PM2.5 Plan.
3. The EPA's Evaluation and Proposed Action
    We are not proposing any action at this time on the contingency
measures in the Portola PM2.5 Plan. We intend to work with
the State and District to assist them with the development and
submission of contingency measures consistent with the Bahr decision
and to act on the revised contingency measures, as appropriate, through
a subsequent rulemaking.

I. Motor Vehicle Emission Budgets

1. Requirements for Motor Vehicle Emissions Budgets
    Section 176(c) of the CAA requires federal actions in nonattainment
and maintenance areas to conform to the SIP's goals of eliminating or
reducing the severity and number of violations of the NAAQS and
achieving expeditious attainment of the standards. Conformity to the
SIP's goals means that such actions will not: (1) Cause or contribute
to violations of a NAAQS, (2) worsen the severity of an existing
violation, or

(3) delay timely attainment of any NAAQS or any interim milestone.
    Actions involving Federal Highway Administration (FHWA) or Federal
Transit Administration (FTA) funding or approval are subject to the
EPA's transportation conformity rule, codified at 40 CFR part 93,
subpart A. Under this rule, metropolitan planning organizations (MPOs)
in nonattainment and maintenance areas coordinate with state and local
air quality and transportation agencies, EPA, FHWA, and FTA to
demonstrate that an area's regional transportation plans and
transportation improvement programs conform to the applicable SIP.\126\
This demonstration is typically done by showing that estimated
emissions from existing and planned highway and transit systems are
less than or equal to the motor vehicle emissions budgets (``budgets'')
contained in all control strategy SIPs. An attainment, maintenance, or
RFP SIP should include budgets for the attainment year, each required
RFP milestone year, and the last year of the maintenance plan, as
appropriate. Budgets are generally established for specific years and
specific pollutants or precursors and must reflect all of the motor
vehicle control measures contained in the attainment and RFP
demonstrations or maintenance plan, as applicable.\127\
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    \126\ The Portola nonattainment area does not lie within, or
share a border with any MPO, nor does any MPO model any projects
within the Portola nonattainment area. Therefore, the Portola
nonattainment area meets the definition in the transportation
conformity rule for an isolated rural nonattainment area. The
California Department of Transportation performs many of the
functions in isolated rural nonattainment areas that the conformity
rule requires of MPOs. Isolated rural nonattainment areas have no
federally required metropolitan transportation plan or program. A
regional emissions analysis is required only when a non-exempt
regionally significant project is proposed in the isolated rural
area. For further details on isolated rural nonattainment areas and
the transportation conformity requirements in those areas, see 40
CFR 93.101 and 93.109(g).
    \127\ 40 CFR 93.118(e)(4)(v).
---------------------------------------------------------------------------

    All direct PM2.5 SIP budgets should include direct
PM2.5 motor vehicle emissions from tailpipes, brake wear,
and tire wear. With respect to PM2.5 from re-entrained road
dust and emissions of VOC, SO2.and/or ammonia, the
transportation conformity provisions of 40 CFR part 93, subpart A,
apply only if the EPA Regional Administrator or the director of the
state air agency has made a finding that emissions of these pollutants
within the area are a significant contributor to the PM2.5
nonattainment problem and has so notified the MPO and Department of
Transportation (DOT), or if the applicable implementation plan (or
implementation plan submission) includes any of these pollutants in the
approved (or adequate) budget as part of the RFP, attainment or
maintenance strategy.\128\
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    \128\ 40 CFR 93.102(b)(3), 93.102(b)(2)(v), and 93.122(f); see
also conformity rule preamble at 69 FR 40004, 40031-40036 (July 1,
2004).
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    By contrast, transportation conformity requirements apply with
respect to emissions of NOX unless both the EPA Regional
Administrator and the director of the state air agency have made a
finding that transportation-related emissions of NOX within
the nonattainment area are not a significant contributor to the
PM2.5 nonattainment problem and have so notified the MPO and
DOT, or the applicable implementation plan (or implementation plan
submission) does not establish an approved (or adequate) budget for
such emissions as part of the reasonable further progress, attainment
or maintenance strategy.\129\ The criteria for insignificance
determinations can be found in 40 CFR 93.109(f). In order for a
pollutant or precursor to be considered an insignificant contributor,
the control strategy SIP must demonstrate that it would be unreasonable
to expect that such an area would experience enough motor vehicle
emissions growth in that pollutant/precursor for a NAAQS violation to
occur. Insignificance determinations are based on factors such as air
quality, SIP motor vehicle control measures, trends and projections of
motor vehicle emissions, and the percentage of the total SIP inventory
that is comprised of motor vehicle emissions. The EPA's rationale for
the providing for insignificance determinations is described in the
July 1, 2004 revision to the Transportation Conformity Rule at 69 FR
40004.
---------------------------------------------------------------------------

    \129\ 40 CFR 93.102(b)(2)(iv).
---------------------------------------------------------------------------

    For motor vehicle emissions budgets to be approvable, they must
meet, at a minimum, the EPA's adequacy criteria (40 CFR 93.118(e)(4)).
    Under the PM2.5 SIP Requirements Rule, each attainment
plan submittal for a Moderate PM2.5 nonattainment area must
contain quantitative milestones to be achieved no later than 4.5 years
and 7.5 years after the date the area was designated
nonattainment.\130\ The second of these milestone dates, October 15,
2022,\131\ falls after the attainment date for the Portola area, which
is December 31, 2021. As the EPA explained in the preamble to the
PM2.5 SIP Requirements Rule, it is important to include a
post-attainment year quantitative milestone to ensure that, if the area
fails to attain by the attainment date, the EPA can continue to monitor
the area's progress toward attainment while the state develops a new
attainment plan.\132\ Although the post-attainment year quantitative
milestone is a required element of a Moderate area plan, it is not
necessary to demonstrate transportation conformity for 2022 or to use
the 2022 budgets in transportation conformity determinations until such
time as the area fails to attain the 2012 PM2.5 NAAQS.
---------------------------------------------------------------------------

    \130\ 40 CFR 51.1013(a)(1).
    \131\ Because the Portola area was designated nonattainment
effective April 15, 2015, the first milestone date is October 15,
2019 and the second milestone date is October 15, 2022. 80 FR 2206
(January 15, 2015).
    \132\ 81 FR 58010, 58058 and 58063-64 (August 24, 2016).
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    2. Motor Vehicle Emissions Budgets in the Portola PM2.5
Plan
    The Portola PM2.5 Plan includes budgets for direct
PM2.5 for 2019 and 2022 (RFP milestone years) and 2021
(projected attainment year for the 2012 annual NAAQS).\133\ The direct
PM2.5 budgets include tailpipe, brake wear, and tire wear
emissions.\134\
---------------------------------------------------------------------------

    \133\ Portola PM2.5 Plan, section VI.C (for 2021
budgets) and ``Transportation Conformity Budgets for the Portola
PM2.5 SIP Plan Supplement'' (for 2019 and 2022 budgets)
dated December 20, 2017, and adopted by CARB Board on October 26,
2017.
    \134\ Plan at Chapter VI, section C.4, 77.
---------------------------------------------------------------------------

    The PM2.5 budgets were calculated using EMFAC2014,
CARB's latest approved version of the EMFAC model for estimating
emissions from on-road vehicles operating in California,\135\ and
reflect annual daily average emissions consistent with the 2019 and
2022 RFP milestone years and the 2021 attainment demonstration for the
annual PM2.5 NAAQS. The 2019 and 2021 conformity budgets for
direct PM2.5, expressed in annual average tons per day, are
provided in Table 8. As explained further below, we are not acting on
the 2022 budgets at this time.
---------------------------------------------------------------------------

    \135\ See footnote 20.

       Table 8--Annual Average Conformity Budgets for PM2.5 (tpd)
------------------------------------------------------------------------
                   Category                         2019         2021
------------------------------------------------------------------------
Direct exhaust, tire, and brake wear from on         0.0026       0.0026
 road vehicles \a\............................
                                               -------------------------
  Total.......................................       0.0026       0.0026
------------------------------------------------------------------------
Conformity Budget \b\.........................        0.003        0.003
------------------------------------------------------------------------
\a\ Calculated from default EMFAC2014 v.1.07 output for Plumas County
  adjusted to reflect only the emissions from the Portola nonattainment
  area.
\b\ Budgets are rounded up to the nearest 0.001 ton.

    Appendix P of the Portola PM2.5 Plan contains the
State's evaluation of PM2.5 precursors and the bases for its
conclusion that emissions of VOC, SO2,

NOX, and ammonia from on-road motor vehicles are not
significant contributors to the PM2.5 nonattainment problem
in the Portola area. The State focused its analysis on the contribution
of on-road emissions of each precursor to the PM2.5 design
value in the Portola area, the changes in emission levels from 2013 to
2021, and motor vehicle emission control measures included in the Plan.
Table 1 in Appendix P of the Portola PM2.5 Plan shows that
the on-road emission totals for direct PM2.5 and all
precursors decrease from 2013 to the 2021 attainment year. According to
the State, on-road emissions of direct PM2.5 and all
precursors contribute less than 10% and on-road NOX
emissions contribute less than 2% to the PM2.5 design value
in the Portola area, compared to wood burning, which accounts for over
76% of the PM2.5 design value.\136\ On-road NOX
emissions account for approximately 36% of the total 2013 base year
inventory but decline to 29% and 26% of the 2019 and 2021 inventories,
respectively. The on-road NOX emissions decrease from the
2013 base year is 0.07 tpd (or 37%) in 2019 and 0.09 tpd (or 47%) in
2021.\137\ The State also evaluated on-road construction dust and paved
and unpaved road dust and concluded that emissions of these pollutants
are not significant contributors to the PM2.5 nonattainment
problem in the Portola area. Therefore, the Plan does not include
budgets for VOC, SO2, NOX, ammonia, or
PM2.5 from re-entrained road dust or dust from road
construction.
---------------------------------------------------------------------------

    \136\ Portola PM2.5 Plan, Appendix P.
    \137\ Portola PM2.5 Plan, Appendix B, Table 7.
---------------------------------------------------------------------------

3. The EPA's Evaluation and Proposed Actions
    With respect to PM2.5 from re-entrained road dust, VOC,
SO2, and ammonia, neither the EPA nor the State has made a
finding that on-road emissions of any of these pollutants or precursors
are a significant contributor to the PM2.5 nonattainment
problem in the Portola area, and neither the approved California SIP
for Portola nor the submitted Portola PM2.5 Plan establish
adequate budgets for such emissions as part of an RFP, attainment or
maintenance strategy for the PM2.5 NAAQS. Accordingly, the
transportation conformity provisions of 40 CFR part 93, subpart A, do
not apply with respect to PM2.5 from re-entrained road dust
or to emissions of VOC, SO2 or ammonia for purposes of the
2012 PM2.5 NAAQS in the Portola area.
    With respect to NOX emissions, we find that the State's
evaluation of emission trends, projections of motor vehicle emissions,
and the percentage of the total SIP inventory that is comprised of
motor vehicle emissions is sufficient to demonstrate, consistent with
40 CFR 93.109(f), that it would be unreasonable to expect that this
area would experience such growth in NOX emissions from
motor vehicles as to result in a violation of the PM2.5
NAAQS. Accordingly, the EPA is proposing to determine that
transportation-related emissions of NOX are insignificant
contributors to the PM2.5 nonattainment problem in the
Portola area.
    We have evaluated the submitted direct PM2.5 budgets for
2019 and 2021 in the Plan against our adequacy criteria in 40 CFR
93.118(e)(4) and (5) as part of our review of the budgets'
approvability and will complete the adequacy review concurrent with our
final action on the Portola PM2.5 Plan.\138\ On January 5,
2018, the EPA announced the availability of the budgets in the Portola
PM2.5 Plan and provided a 30-day public comment period. This
announcement was posted on the EPA's Adequacy website at: https://www.epa.gov/state-and-local-transportation/state-implementation-plans-sip-submissions-currently-under-epa#portola2018. The comment period for
this notification ended on February 5, 2018, and we did not receive any
comments.
---------------------------------------------------------------------------

    \138\ Under the Transportation Conformity regulations, the EPA
may review the adequacy of submitted motor vehicle emission budgets
simultaneously with the EPA's approval or disapproval of the
submitted implementation plan. 40 CFR 93.118(f)(2).
---------------------------------------------------------------------------

    The EPA has not yet reviewed and is not taking any action at this
time on the submitted budget for 2022 for the Portola PM2.5
nonattainment area. Therefore, the submitted budget for 2022 for the
Portola nonattainment area will not be used in transportation
conformity determinations at this time. The EPA will begin reviewing
the 2022 budget for adequacy and approval only if the area fails to
attain the PM2.5 NAAQS by December 31, 2021, the applicable
Moderate area attainment date.
    If the EPA were to either find adequate or approve the post-
attainment milestone year motor vehicle emissions budgets now, those
budgets would have to be used in transportation conformity
determinations that are made after the effective date of the adequacy
finding or approval even if the Portola PM2.5 nonattainment
area ultimately attains the PM2.5 NAAQS by the Moderate area
attainment deadline. As a result, the California Department of
Transportation, which performs many of the MPO functions in the Portola
PM2.5 nonattainment area, would be required to demonstrate
conformity for the post-attainment date milestone year and all later
years addressed in the conformity determination to the post-attainment
date RFP motor vehicle emissions budgets rather than the budgets
associated with the attainment year for the area (i.e., the motor
vehicle emissions budgets for 2021). The EPA does not believe that it
is necessary to demonstrate conformity using these post-attainment year
budgets in areas that either the EPA anticipates will attain by the
attainment date or in areas that, in fact, attain by the attainment
date.
    If the EPA determines that the Portola area has failed to attain
the PM NAAQS by the applicable attainment date, the EPA will begin the
budget adequacy and approval processes for the post-attainment year
(2022) budget. If the EPA finds the 2022 budget adequate or approves
it, that budget will have to be used in subsequent transportation
conformity determinations. The EPA believes that initiating these
processes following a determination that the area has failed to attain
by the attainment date ensures that transportation activities will not
cause or contribute to new violations, increase the frequency or
severity of any existing violations, or delay timely attainment or any
required interim emission reductions or milestones in the Portola area,
consistent with the requirements of CAA section 176(c)(1)(B).
    For the reasons discussed in sections V.E.v and V.F of this
proposed rule, we are proposing to approve the RFP and attainment
demonstrations in the Portola PM2.5 Plan. The budgets, as
given in Table 9 of this proposed rule, are consistent with these
demonstrations, are clearly identified and precisely quantified, and
meet all other applicable statutory and regulatory requirements
including the adequacy criteria in 40 CFR 93.118(e)(4) and (5). For
these reasons, the EPA proposes to approve the budgets listed in Table
8 above.
    The transportation conformity rule allows us to limit the approval
of budgets,\139\ and CARB requested that we limit the duration of our
approval of the budgets in the Plan to the period before the effective
date of the EPA's adequacy finding for any subsequently submitted
budgets.\140\ However, we will consider

the State's request to limit an approval of its budgets only if the
request includes the following elements: \141\
---------------------------------------------------------------------------

    \139\ 40 CFR 93.118(e)(1).
    \140\ Letter dated December 20, 2017, from Richard W. Corey,
Executive Officer, California Air Resources Board, to Alexis
Strauss, Acting Regional Administrator, EPA Region 9.
    \141\ 67 FR 69141 (November 15, 2002), limiting our prior
approval of budgets in certain California SIPs.
---------------------------------------------------------------------------

     An acknowledgement and explanation as to why the budgets
under consideration have become outdated or deficient;
     A commitment to update the budgets as part of a
comprehensive SIP update; and
     A request that the EPA limit the duration of its approval
to the time when new budgets have been found to be adequate for
transportation conformity purposes.
    Because CARB's request does not include all of these elements, we
cannot at this time propose to limit the duration of our approval of
the submitted budgets. In order to limit the approval, we would need
the information described above in order to determine whether such
limitation is reasonable and appropriate in this case. Once CARB has
provided the necessary information, we intend to review it and take
appropriate action. If we propose to limit the duration of our approval
of the budgets in the Portola PM2.5 Plan, we will provide
the public an opportunity to comment. The duration of the approval of
the budgets, however, would not be limited until we complete such a
rulemaking.

V. Summary of Proposed Actions and Request for Public Comment

    Under CAA sections 110(k)(3), the EPA is proposing to approve SIP
revisions submitted by California to address the Act's Moderate area
planning requirements for the 2012 PM2.5 NAAQS in the
Portola nonattainment area. Specifically, the EPA is proposing to
approve the following elements of the Portola PM2.5 Plan:
    1. The 2013 base year emissions inventories as meeting the
requirements of CAA section 172(c)(3);
    2. The reasonably available control measure/reasonably available
control technology demonstration as meeting the requirements of CAA
sections 172(c)(1) and 189(a)(1)(C);
    3. The attainment demonstration as meeting the requirements of CAA
sections 172(c)(1) and 189(a)(1)(B);
    4. The reasonable further progress demonstration as meeting the
requirements of CAA section 172(c)(2);
    5. The quantitative milestones as meeting the requirements of CAA
section 189(c); and
    6. The motor vehicle emissions budgets for 2019 and 2021, because
they are derived from approvable attainment and RFP demonstrations and
meet the requirements of CAA section 176(c) and 40 CFR part 93, subpart
A.
    The EPA is not proposing any action at this time on the contingency
measures or the post-attainment year (2022) budget in the Portola
PM2.5 Plan.
    We will accept comments from the public on these proposals for the
next 30 days. The deadline and instructions for submission of comments
are provided in the DATES and ADDRESSES sections at the beginning of
this preamble.

VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act and
applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a).
Thus, in reviewing SIP submissions, the EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act.
Accordingly, this proposed action merely proposes to approve state law
as meeting federal requirements and does not impose additional
requirements beyond those imposed by state law. For that reason, this
proposed action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     Is not an Executive Order 13771 (82 FR 9339, February 2,
2017) regulatory action because SIP approvals are exempted under
Executive Order 12866;
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the Clean Air Act; and
     Does not provide the EPA with the discretionary authority
to address disproportionate human health or environmental effects with
practical, appropriate, and legally permissible methods under Executive
Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian
reservation land or in any other area where the EPA or an Indian tribe
has demonstrated that a tribe has jurisdiction. In those areas of
Indian country, the rule does not have tribal implications and will not
impose substantial direct costs on tribal governments or preempt tribal
law as specified by Executive Order 13175 (65 FR 67249, November 9,
2000).

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Particulate matter, Reporting
and recordkeeping requirements.

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

    Dated: December 4, 2018.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2018-27257 Filed 12-17-18; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 76, Number 82 (Thursday, April 28, 2011)]
[Rules and Regulations]
[Pages 23710-23712]
[FR Doc No: 2011-10248]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2011-0250]
RIN 1625-AA00

Safety Zones: Bellingham Bay, Bellingham, WA and Lake Union,
Seattle, WA

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is removing two redundant sections from its
regulations: Bellingham Bay, Bellingham, WA, and Lake Union, Seattle,
WA. This action is necessary to eliminate duplicate safety zones from
the regulations. These safety zones are also codified under these
regulations: Safety Zones; annual firework displays within the Captain
of the Port, Puget Sound Area of Responsibility.

DATES: This rule is effective May 31, 2011.

ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2011-0250 and are available online
by going to http://www.regulations.gov, inserting USCG-2011-0250 in the
``Keyword'' box, and then clicking ``Search.'' They are also available
for inspection or copying at the Docket Management Facility (M-30),
U.S. Department of Transportation, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9
a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this rule,
call or e-mail Ensign Anthony P. LaBoy, USCG Sector Puget Sound
Waterways Management Division, Coast Guard; telephone<PHONE_NUMBER>, e-
mail<EMAIL_ADDRESS>If you have questions on viewing or
submitting material to the docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    The Coast Guard is issuing this final rule without prior notice and
opportunity to comment pursuant to authority under section 4(a) of the
Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule without prior notice and
opportunity to comment when the agency for good cause finds that those
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing a notice of proposed rulemaking (NPRM)
with respect to this rule because it is unnecessary as this rule's sole
purpose is to remove redundant sections from Title 33 of the Code of
Federal Regulations. The safety zones that are being removed from the
Code of Federal Regulations are already codified under 33 CFR 165.1332.

Basis and Purpose

    After reviewing 33 CFR part 165, the Coast Guard has determined
that Sec. Sec.  165.1304 and 165.1306 are no longer necessary because
the safety zones in these sections are already codified under 33 CFR
165.1332. The Coast Guard is removing these redundant sections to
eliminate possible confusion and to use the more recently established
rule governing these safety zones.

Background

    On June 10, 2010, 33 CFR 165.1332 Safety Zones; annual firework
displays within the Captain of the Port, Puget Sound Area of
Responsibility was published in the Federal Register. This section
simplified the fireworks safety zones. This new section also
encompasses the fireworks safety zones contained in 33 CFR 165.1304 and
165.1306. Therefore, the safety zones in 33 CFR 165.1304 and 165.1306
are unnecessary.

Discussion of Rule

    The Coast Guard is removing 33 CFR 165.1304 and 165.1306 from the
Code of Federal Regulations. 33 CFR 165.1332 establishes and lists a
number of safety zones, including those contained in the sections being
removed at 33 CFR 165.1304 and 165.1332.

Regulatory Analyses

    We developed this rule after considering numerous statutes and
executive orders related to rulemaking. Below we summarize our analyses
based on 13 of these statutes or executive orders.

Regulatory Planning and Review

    This rule is not a significant regulatory action under section 3(f)
of Executive Order 12866, Regulatory Planning and Review, and does not
require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order. The Coast Guard bases this finding on the
fact that this rule does not include creating any new zones only the
removal of two sections that were more recently codified under 33 CFR
165.1332.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule
would not have a significant economic impact on a substantial number of
small entities. This rule would not affect any small entities since
this rule does not involve creating any new safety zones. Information
concerning fireworks safety zones in Puget Sound affecting small
entities can be found in docket number: USCG-2010-0063 at http://www.regulations.gov.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small
entities in understanding the rule so that they can better evaluate its
effects on them and participate in the rulemaking process.

Collection of Information

    This rule would call for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 (adjusted for
inflation) or more in any one year. Though this rule will not result in
such an expenditure, we do discuss the effects of this rule elsewhere
in this preamble.

Taking of Private Property

    This rule will not cause a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not create an
environmental risk to health or risk to safety that may
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order
13175, Consultation and Coordination with Indian Tribal Governments,
because it would not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal Government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That

Significantly Affect Energy Supply, Distribution, or Use. We have
determined that it is not a ``significant energy action'' under that
order because it is not a ``significant regulatory action'' under
Executive Order 12866 and is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. The Administrator
of the Office of Information and Regulatory Affairs has not designated
it as a significant energy action. Therefore, it does not require a
Statement of Energy Effects under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) that are developed or adopted by voluntary consensus
standards bodies.
    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which
guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded
this action is one of a category of actions that do not individually or
cumulatively have a significant effect on the human environment. This
rule is categorically excluded, under figure 2-1, paragraph (34)(g), of
the Instruction. This rule involves removing 33 CFR 165.1304 and
165.1306 as these safety zones are already codified under 33 CFR
165.1332. Under figure 2-1, paragraph (34)(g), of the Instruction, an
environmental analysis checklist and a categorical exclusion
determination are not required for this rule.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, Waterways.

    For the reasons discussed in the preamble, the Coast Guard amends
33 CFR part 165, as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for Part 165 continues to read as follows:

    Authority:  33 U.S.C 1231; 46 U.S.C. Chapter 701, 3306, 3703; 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Pub. L. 107-
295, 116 Stat. 2064; Department of Homeland Security Delegation No.
0170.1

0
2. Remove Sec.  165.1304.

0
3. Remove Sec.  165.1306.

    Dated: April 7, 2011.
S.J. Ferguson,
Captain, U. S. Coast Guard, Captain of the Port, Puget Sound.
[FR Doc. 2011-10248 Filed 4-27-11; 8:45 am]
BILLING CODE 9110-04-P