ACUS was established by the Administrative Conference Act, 5 U.S.C. 591-96. Following the loss of its funding in 1995, ACUS ceased operations. In 1996, its prior regulations (including Part 304) were eliminated. 61 FR 3539 (1996). Congress has now reauthorized and refunded ACUS, which has now reinitiated operations. These regulations provide the agency's proposed procedures for disclosure of records, as required by the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, and its procedures for protection of privacy and access to individual records, as required by the Privacy Act of 1974, 5 U.S.C. 552a, as amended. These regulations also reflect the principles established by President Obama's Presidential Memoranda on “Transparency and Open Government” and “Freedom of Information Act” issued on January 21, 2009 and Attorney General Holder's Memorandum on “The Freedom of Information Act (FOIA)” issued on March 19, 2009. Additionally, the regulations reflect the Conference's commitment to providing the fullest possible disclosure of records to the public.

ACUS has determined that the Paperwork Reduction Act, 44 U.S.C. 3501et seq.,does not apply because these regulations do not contain any information collection requirements.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601et seq.,requires agencies to perform regulatory flexibility analyses when promulgating rules through notice and comment procedures. ACUS has determined that the proposed regulations do not have a significant economic impact on a substantial number of small entities. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing and duplicating the records processed for certain categories of requesters. The Conference's proposed fee structure is in accordance with Department of Justice guidelines and based upon OMB fee schedules which calculate costs based on the category of requester and kind of employee duplicating the records. Under the Privacy Act, agencies may recover the cost of duplication only. The agency will provide free duplication and search time (up to a certain amount) in certain cases. Where anticipated fees exceed $50, an opportunity is given to the requester to refine the request in order to lower cost. Thus, fees assessed by ACUS are nominal and will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA.

For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), the proposed rule would not significantly or uniquely affect small governments and would not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation).

In issuing this regulation, ACUS has adhered to the regulatory philosophy and the applicable principles of regulation as set forth in Section 1 of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735. This proposed rule has not been reviewed by the Office of Management and Budget under the Executive Order since it is not a significant regulatory action within the meaning of the Executive Order.

For the reasons set forth in the preamble, under the authority at 5 U.S.C. 552, 552a, and 591-96, the Administrative Conference of the United States proposes to amend 1 CFR chapter III to add part 304 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2008-1118; Directorate Identifier 2007-NM-318-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, tohttp://www.regulations.gov,including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We proposed to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) with a notice of proposed rulemaking (NPRM) for an AD (the “original NPRM”) to supersede AD 2003-03-01, Amendment 39-13025 (68 FR 4367, January 29, 2003). The original NPRM applied to all Model 737-600, -700, -700C, -800, and -900 series airplanes. The original NPRM was published in theFederal Registeron October 30, 2008 (73 FR 64568). The original NPRM would have superseded an existing AD that currently requires reviewing the airplane maintenance records to determine whether an engine has been removed from the airplane since the airplane was manufactured. For airplanes on which an engine has been removed, the existing AD also requires an inspection of the aft engine mount to determine if the center link assembly is correctly installed, and follow-on actions if necessary. The original NPRM proposed to require the same actions for airplanes on which the engine has not been previously removed.

Since we issued the original NPRM, the manufacturer has informed us that Model 737-900ER airplanes should be included in the applicability of the supplemental NPRM. Model 737-900ER airplanes were not being produced in May 2004 when Revision 3, dated May 20, 2004, of Boeing Alert Service Bulletin 737-71A1462, was issued. (Revision 3 was referred to as an appropriate source of service information for accomplishing the proposed actions in the original NPRM.) Following production it was determined that the affected aft engine mount is interchangeable with Model 737-900ER airplanes; however, those airplaneswere inspected in production to ensure that the center link was properly installed. Therefore, the requirements in the existing AD do not apply to those airplanes. However, since we are including airplanes on which the engines have been removed since production, we have added Model 737-900ER airplanes to the applicability section of this supplemental NPRM.

We have considered the following comments on the original NPRM.

American Airlines (AA) asks that all operators that have performed the actions specified in Boeing Alert Service Bulletin 737-71A1462, Revision 3, dated May 20, 2004, be exempt from repeating maintenance actions in accordance with the original NPRM for a maintenance program that is already in place and proven effective. AA states that it has exceeded the requirements of AD 2003-03-01 by inspecting both engine aft mount center link assemblies, regardless of the stipulation in the existing AD, which limited the inspection requirement to engines removed since the airplane date of manufacture. AA adds that the inspections revealed that none of its installed or spare engines had incorrectly installed aft mount center link assemblies. AA notes that it is doing Part 2 of the Accomplishment Instructions of the service bulletin at every engine shop visit, and has implemented maintenance task documentation to verify the proper aft mount center link configuration at every engine change. AA concludes that it has not accepted delivery of any additional Model 737 airplanes since the release of the existing AD and Boeing Alert Service Bulletin 737-71A1462, Revision 3, dated May 20, 2004.

We acknowledge the commenter's request. Actions done in accordance with Boeing Alert Service Bulletin 737-71A1462, Revision 3, before the effective date of this AD are acceptable for compliance with the AD, as indicated by the phrase “unless the actions have already been done” in paragraph (f) of this AD. We have made no change to the supplemental NPRM in this regard.

Boeing asks that paragraph (d) of the original NPRM be changed to indicate that the center link assembly for the aft engine mount was reversed on one airplane that had not had an engine removed since delivery. Boeing is aware of only one such report.

We do not agree with the commenter. We have received another report indicating that some airplanes were found with the engine mounts installed incorrectly on engines that had not been removed since airplane delivery. Therefore, we have not changed paragraph (d) of the NPRM (paragraph (e) of the supplemental NPRM).

Boeing asks that paragraph (n) of the original NPRM be changed to clarify parts not affected by the “Parts Installation” paragraph by including the permanent part marking on the center link assembly, as specified in Part 2 of the Work Instructions of Boeing Alert Service Bulletin 737-71A1462, Revision 3, dated May 20, 2004. Boeing states that this change would be equivalent to an existing alternative method of compliance (AMOC) for AD 2003-03-01, requiring the installation of marked engine mounts, as specified in the approved section of Boeing Alert Service Bulletin 737-71A1462, Revision 3, dated May 20, 2004.

We agree with the commenter for the reasons provided. We have changed paragraph (n) of the supplemental NPRM to include permanent part marking on the center link assembly, as specified in Part 2 of the Work Instructions of Boeing Alert Service Bulletin 737-71A1462, Revision 3, dated May 20, 2004.

Japan Airlines (JAL) asks for clarification whether the requirement in paragraph (n) of the original NPRM applies only to airplanes affected by Boeing Alert Service Bulletin 737-71A1462, Revision 3, dated May 20, 2004; or to all Model 737-600, -700, -700C, -800, and -900 series airplanes. JAL states that if the requirement in paragraph (n) applies to all Model 737NG (next generation) airplanes then a change should be made to paragraph (n) of the supplemental NPRM for clarification.

We acknowledge the commenter's concern and provide the following clarification. As noted under “Actions Since Original NPRM Was Issued,” we have added Model 737-900ER airplanes to the applicability section of this supplemental NPRM; therefore, the requirement in paragraph (n) of the supplemental NPRM applies to all Model 737NG airplanes. No change to paragraph (n) of the supplemental NPRM is necessary.

CFM International states that the acronym CFMI is not accurate and recommends using CFM International (CFM) throughout the NPRM.

We agree that the correct acronym should be used in the supplemental NPRM and in future rulemaking. However, CFMI is not referred to anywhere in this supplemental NPRM; therefore, no change is necessary.

CFM also asks that paragraphs (i) and (o) of the original NPRM be changed to include the Engine and Propeller Directorate, Engine Certification Office (ECO), as an approved source for obtaining repair procedures. CFM states that the engine mounting lugs and adjacent engine turbine rear frame are under the responsibility of CFM as part of the engine type certificate. CFM notes that it is in charge of approval of repairs by delegation of both engine authorities, which are the FAA and European Aviation Safety Agency (EASA); CFM is a joint certification. CFM adds that for any part problems it contacts the ECO, in Burlington, Massachusetts, and the EASA Engine Certification Office, in Cologne, Germany. In light of this, CFM does not recommend the parts be repaired under approval of a Boeing Representative.

We partially agree with the commenter for the reasons provided. We agree that the appropriate office for approval of certain repairs specified in the original NPRM is the ECO. Paragraph (i) of the original NPRM is a restatement of the requirements in AD 2003-03-01. However, paragraph (i) of the supplemental NPRM does refer to paragraph (o) of the supplemental NPRM for AMOC approval. We have changed paragraph (o) of this supplemental NPRM to allow for certain AMOC approvals by the ECO.

We have changed this supplemental NPRM to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.

We have added a new paragraph (d) to this supplemental NPRM to provide the Air Transport Association (ATA) of America subject code 71: Powerplant. This code is added to make this supplemental NPRM parallel with other new AD actions. We have reidentified subsequent paragraphs accordingly.

Certain changes discussed above expand the scope of the original NPRM; therefore, we have determined that it is necessary to reopen the comment period to provide additional opportunity for public comment on this supplemental NPRM.

Since issuance of the original NPRM, we have increased the labor rate in the Costs of Compliance from $80 per work hour to $85 per work hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.

There are about 1,846 airplanes of the affected design in the worldwide fleet. We estimate that 854 airplanes of U.S. registry would be affected by this proposed AD. There are no new requirements in this proposed AD; however, we have expanded the applicability as noted under “Actions Since Original NPRM Was Issued.” The current costs for this proposed AD are recalculated for the convenience of affected operators, as follows:

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in subtitle VII, part A, subpart III, section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that the proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this supplemental NPRM and placed it in the AD docket.SeetheADDRESSESsection for a location to examine the regulatory evaluation.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2009-0703; Directorate Identifier 2009-NM-093-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, tohttp://www.regulations.gov,including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We proposed to amend 14 CFR part 39 with an earlier NPRM for the specified products, which was published in theFederal Registeron August 5, 2009 (74 FR 38993). That earlier NPRM proposed to require actions intended to address the unsafe condition for the products listed above.

Since that earlier NPRM was issued, we have determined that main landing gear (MLG) shock strut assemblies having part number (P/Ns) 49000-11 through 49000-22 inclusive and serial numbers (S/Ns) 0001 through 0284 inclusive are rotable parts. Therefore, the possibility exists that these parts might be installed on additional airplanes. For this reason, we find it necessary to require an inspection to determine if the subject MLG shock strut assemblies are installed for all Model CL-600-2C10 airplanes having S/Ns 10003 and subsequent, and Model CL-600-2D15 and Cl-600-2D24 airplanes having S/Ns 15001 and subsequent. Therefore, for all affected airplanes, we are revising this supplemental NPRM to add an inspection to determine the part and serial numbers of the MLG shock strut assemblies installed.

You may obtain further information by examining the MCAI in the AD docket.

We have considered the following comments received on the earlier NPRM.

American Eagle Airlines (American Eagle) requested that we revise paragraphs (f)(1) and (f)(2) of the earlier NPRM to cover Model CL-600-2C10 airplanes having serial numbers (S/Ns) 10003 and subsequent, equipped with MLG shock strut assemblies having part numbers (P/Ns) 49000-11 through 49000-22 inclusive and S/Ns 0001 through 0252 inclusive. The commenter stated the following:

• If one of the affected MLG shock strut assemblies were installed on an airplane with a S/N of 10224 or greater, paragraph (f)(1) of the earlier NPRM would not require the assembly to be inspected.

• If an MLG shock strut assembly that is not in the affected range were installed on an airplane with S/N 10003 through 10223 inclusive, paragraph(f)(1) of the earlier NPRM would require the assembly to be inspected in accordance with Part A of Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008, and, consequently, with Goodrich Service Bulletin 49000-32-30, which is not applicable to that assembly.

• If one of the affected MLG shock strut assemblies were installed on an airplane having a S/N of 10240 or greater, paragraph (f)(2) of the earlier NPRM would not require the assembly to be reworked.

• If an MLG shock strut assembly not in the affected range were installed on an airplane with S/Ns 10003 through 10239 inclusive, paragraph (f)(2) of the earlier NPRM would require the assembly to be reworked in accordance with Part B of Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008, and, consequently, with Goodrich Service Bulletin 49000-32-32, which is not applicable to that assembly.

We agree to revise paragraphs (h) and (i) of this supplemental NPRM (specified as paragraphs (f)(1) and (f)(2) of the earlier NPRM). Operators should note that Model CL-600-2C10 airplanes having S/N 10224 and subsequent had Part A of Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008, accomplished prior to delivery; those airplanes are still subject to Part B of Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008. Operators should also note that Model CL-600-2C10 airplanes having S/N 10240 and subsequent had Part B of Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008, accomplished prior to delivery. However, as explained previously, we have determined that MLG shock strut assemblies having P/Ns 49000-11 through 49000-22 inclusive and S/Ns 0001 through 0284 inclusive are rotable parts. Therefore, the possibility exists that these parts might be installed on additional airplanes, as American Eagle describes.

As stated previously, we revised this supplemental NPRM to add an inspection to identify MLG shock strut assemblies having P/Ns 49000-11 through 49000-22 inclusive and S/Ns 0001 through 0284 inclusive. We also revised paragraphs (h) and (i) of this supplemental NPRM (specified as paragraphs (f)(1) and (f)(2) of the earlier NPRM) to apply to any MLG shock strut assemblies having P/Ns 49000-11 through 49000-22 inclusive and S/Ns 0001 through 0284 inclusive identified during the inspection, as specified in paragraph (g) of this supplemental NPRM. We have also added the costs for accomplishing the newly added inspection specified in paragraph (g) of this supplemental NPRM to the Costs of Compliance section of this supplemental NPRM.

American Eagle requested that we revise paragraph (f)(3) of the earlier NPRM to allow the installation of MLG shock strut assemblies that have been reworked in accordance with Goodrich Service Bulletin 49000-32-32. The commenter stated that paragraph (f)(3) of the earlier NPRM prohibits installation of certain MLG shock strut assemblies unless they have been reworked in accordance with Part B of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008. The commenter pointed out that Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008, specifies reworking the subject MLG shock strut assemblies that are installed on the airplanes, not those that are not installed on the airplane (e.g.,spares or replacement assemblies), which will be reworked using Goodrich Service Bulletin 49000-32-32.

We do not agree that a change to this supplemental NPRM is necessary in this regard. Part B of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008, refers to Goodrich Service Bulletin 49000-32-32 as an additional source of guidance for reworking the MLG shock strut assemblies. If an operator has reworked an MLG shock strut assembly using the procedures specified in Goodrich Service Bulletin 49000-32-32, that assembly meets the requirements of paragraph (j) of this supplemental NPRM (specified as paragraph (f)(3) of the earlier NPRM). However, we have revised paragraph (j) of this supplemental NPRM to refer to paragraph B. of Part B of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008. This change eliminates the necessity of accomplishing the opening and closing procedures specified in Part B of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008, for assemblies that are reworked while not installed on the airplane.

American Eagle requested that we revise paragraphs (f)(2) and (f)(3) of the earlier NPRM to allow operators to take credit for accomplishing the required actions in accordance with Goodrich Service Bulletin 49000-32-30 or 49000-32-32, as applicable.

We do not agree to provide credit for operators that have done the required actions in accordance with the applicable Goodrich service information. Bombardier Service Bulletin 670BA-32-019, Revision A, dated September 18, 2008, refers to Goodrich Service Bulletin 49000-32-30 and 49000-32-32 as additional sources of guidance for the actions specified in this supplemental NPRM. If an operator has accomplished the actions specified in Goodrich Service Bulletin 49000-32-30 or 49000-32-32, the operator is already in compliance with the applicable requirements specified in this supplemental NPRM. Therefore, there is no need to revise this supplemental NPRM in this regard.

We have revised this supplemental NPRM to identify the legal name of the manufacturer as published in the most recent type certificate data sheet for the affected airplane models.

We have added a new paragraph (f) to this supplemental NPRM to make this supplemental NPRM parallel with other new AD actions. We have reidentified subsequent paragraphs accordingly.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

Certain changes described above expand the scope of the earlier NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this proposed AD.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a Note within the proposed AD.

Since issuance of the earlier NPRM, we have increased the labor rate used in the Costs of Compliance from $80 per work-hour to $85 per work-hour. The Costs of Compliance information, below, reflects this increase in the specified hourly labor rate.

Based on the service information, we estimate that this proposed AD would affect about 361 products of U.S. registry. We also estimate that it would take about 5 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $153,425, or $425 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and

3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

The purpose of this request for information is to seek public comment on the use of electronic voting systems in union officer elections. The comments from interested parties, including unions, union members, union officers, technology experts, academics, election service providers, public interest groups, and the public will help the Department issue guidelines in describing minimum standards that electronic voting systems must meet to comply with the provisions of LMRDA Title IV. In addition, the comments should help determine what issues should be addressed and what specific standards should be included in the guidelines. These guidelines and standards are intended to assist the Department in its obligation to ensure compliance with LMRDA Title IV.

The following are general descriptions of the three basic types of electronic voting systems that OLMS has encountered. They are not all-inclusive definitions of all electronic voting systems.

(1) Electronic voting machines used for casting votes at polling sites.

This is a direct-recording electronic (DRE) voting system in which voters mark their votes directly into an electronic device at a predetermined location monitored by election officials. The system records votes by means of a ballot display provided with mechanical or electro-optical components that can be activated by the voter (typically by buttons or a touchscreen). It is a computer-based voting system, running configured software, using computer voting stations, terminals, or kiosks that are set up in a securable location or locations. Voters must come to a predetermined location where they are first authenticated as eligible voters, and then vote at a computer terminal. Voting data is stored by the electronic device on a computer hard disk or a portable diskette, CD-ROM or smartcard. The system keeps an electronic record and may also keep a paper record, which may be verifiable by the voter, enabling a post-election audit. The system may also provide a means for transmitting individual ballots or vote totals to a central location (on either removable portable devices, such as diskettes, or by a computer network) in order to consolidate and report results at the central location. The system, as described here, is not a Web-based Internet voting system.

(2) Electronic voting from remote site personal computers via the Internet.

This is a DRE voting system that is Web-based in which voters do not have to vote from a predetermined location. Instead, they can register and vote from any Internet-connected personal computer (PC) or other mobile electronic device anywhere in the world. Voters connect to a central server using a standard Internet browser. Both registration and voting are accomplished through the Web interface. This system uses a voter identification number (VIN) for each voter to log into the system and vote. Some such systems then separate the VINs from the particular voted electronic ballots so that one individual or server controls access to the VINs and a separate individual or server controls access to the voted electronic ballots.

(3) Electronic voting from remote site telephones.

This is a DRE voting system in which voters register and vote from remote site telephones. They do not have to vote at any specific predetermined location. Voters identify themselves with voter identification numbers (VINs) and record their votes directly into a computer system using the key pads on their telephones, by following a series of recorded instructions. Voters call a predetermined telephone number and respond to verbal prompts given by the system. Using the phone keypad, the voter enters choices. The computer system records those choices as votes.

Title IV of the LMRDA, 29 U.S.C. 481-484, and interpretive regulations issued by the Department, 29 CFR part 452, establish standards for the conduct of union officer elections, including minimum standards for:

• Voter secrecy.

• Candidate observer rights and election safeguards.

• Preservation of records.

LMRDA Section 3(k), defines a secret ballot as: “the expression by ballot, voting machine, or otherwise, but in no event by proxy, of a choice with respect to any election or vote taken upon any matter, which is cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.” 29 U.S.C. 402(k). Section 401(a) requires that “every national or international labor organization * * * shall elect its national officers * * * by secret ballot among the members in good standing or at a convention of delegates chosen by secret ballot.” 29 U.S.C. 481(a). Section 401(b) requires that “every local labor organization shall elect its officers * * * by secret ballot.” 29 U.S.C. 481(b). Section 401(d) requires that “officers of intermediate bodies * * * shall be elected… by secret ballot among the members in good standing or by labor organization officers representative of such members who have been elected by secret ballot.” 29 U.S.C. 481(d).

The Department's regulations at 29 CFR 452.97 state that a prime requisite of elections regulated by title IV is that they be held by secret ballot among the members or in appropriate cases by representatives who themselves have been elected by secret ballot among the members. A secret ballot under the Act is “the expression by ballot, voting machine, or otherwise, but in no event by proxy, of a choice * * * cast in such a manner that the person expressing such choice cannot be identified with the choice expressed.” Secrecy may be assured by the use of voting machines, or, if paper ballots are used, by providing voting booths, partitions, or other physical arrangements permitting privacy for the voter while he is marking his ballot. The ballot must not contain any markings which upon examination would enable one to identify it with the voter. Balloting by mail presents special problems in assuring secrecy. Although no particular method of assuring such secrecy is prescribed, secrecy may be assured by the use of a double envelope system for return of the voted ballots with the necessary voter identification appearing only on the outer envelope.

In addition, should any voters be challenged as they are casting their ballots, there should be some means of setting aside the challenged ballots until a decision regarding their validity is reached without compromising the secrecy requirement. For example, eachsuch ballot might be placed in an envelope with the voter's name on the outside. Of course, it would be a violation of the secrecy requirement to open these envelopes and count the ballots one at a time in such a way that each vote could be identified with a voter.

Section 401(c) of the LMRDA requires that “adequate safeguards to insure a fair election shall be provided, including the right of any candidate to have an observer at the polls and at the counting of the ballots.” 29 U.S.C. 481(c).

The Department's regulations at 29 CFR 452.107(a) state that under the provisions of section 401(c), each candidate must be permitted to have an observer (1) at the polls and (2) at the counting of the ballots. The right encompasses every phase and level of the counting and tallying process, including the counting and tallying of the ballots and the totaling, recording, and reporting of the tally sheets. If there is more than one polling place, the candidate may have an observer at each location. If ballots are being counted at more than one location or at more than one table at a single location, a candidate is entitled to as many observers as necessary to observe the actual counting of the ballots. The observer may note the names of those voting so that the candidates may be able to ascertain whether unauthorized persons voted in the election. The observers should be placed so that they do not compromise, or give the appearance of compromising, the secrecy of the ballot. The observer is not required to be a member of the labor organization unless that union's constitution and bylaws require him to be a member. There is no prohibition on the use of alternate observers, when necessary, or on the candidate serving as his own observer. Observers do not have the right to count the ballots.

And, the Department's regulations at 29 CFR 452.107(c) state that in any secret ballot election which is conducted by mail, regardless of whether the ballots are returned by members to the labor organization office, to a mail box, or to an independent agency such as a firm of certified public accountants, candidates must be permitted to have an observer present at the preparation and mailing of the ballots, their receipt by the counting agency and at the opening and counting of the ballots.

Further, the Department's regulations at 29 CFR 452.110(a) state, in part, that the Act contains a general mandate in Section 401(c), that adequate safeguards to insure a fair election be provided. A labor organization's wide range of discretion regarding the conduct of elections is thus circumscribed by a general rule of fairness.

Section 401(e) of the LMRDA provides that “[t]he election officials designated in the constitution and bylaws or the secretary, if no other official is designated, shall preserve for one year the ballots and all other records pertaining to the election.” 29 U.S.C. 481(e).

The Department's regulations at 29 CFR 452.106 state that in every secret ballot election which is subject to the Act, the ballots and all other records pertaining to the election must be preserved for one year. The responsibility for preserving the records is that of the election officials designated in the constitution and bylaws of the labor organization or, if none is so designated, its secretary. Since the Act specifies that ballots must be retained, all ballots, marked or unmarked, must be preserved. Independent certification as to the number and kind of ballots destroyed may not be substituted for preservation. In addition, ballots which have been voided, for example, because they were received late or because they were cast for an ineligible candidate, must also be preserved.

With passage of the LMRDA, Congress sought to “protect the rights of rank-and-file members to participate fully in the operation of their union through processes of democratic self-government.”Wirtzv.Hotel, Motel and Club Employees Union,Local 6, 391 U.S. 492 (1969). The Supreme Court and other courts have recognized that with respect to union officer elections covered by the LMRDA, “Congress' model of democratic elections was political elections in this country.”Id.at 502.

This parallel between political elections and union officer elections extends to the interpretation of the LMRDA's ballot secrecy provisions.See Marshallv.Local Union 12447, United Steelworkers of America, AFL-CIO,591 F.2d 199, 205 (3d Cir. 1978) (“* * * the facilities available for balloting [in union elections] are * * * similar to their use in political elections in this country,i.e.,in such a manner that voters cannot be identified with their choices.”). Several cases make clear that the requirement of a secret ballot in union officer elections is to be interpreted strictly: If there is any possibility that a voter can be connected with his or her vote, the procedure does not comply with the LMRDA.Id.at 203 (“The definition [of secret ballot] is phrased in mandatory terms: The ballots must be marked in such a manner that the voter cannot be identified with his choice.”);Brennanv.Local 3489, United Steelworkers of America, AFL-CIO,520 F.2d 516, 522 (7th Cir. 1975) (“The statutory mandate is for a vote that “cannot” be identified with the voter.”).

Courts have further clarified that the secret ballot requirement not only applies to the act of voting itself, but “any post-voting procedure designed to determine how individual union members voted or would have voted.”Reichv.District Lodge 720, International Association of Machinists and Aerospace Worker,11 F.3d 1496, 1500 (9th Cir. 1993);see also Bachowskiv.Brennan,413 F.Supp 147, 150 (W.D. Pa. 1976). Finally, although “electronic voting systems” are often designed and administered by third parties, the ultimate responsibility for upholding the ballot secrecy requirement remains with the union.SeeLocal 3489, 520 F.2d at 522;Local Union 12447,591 F.2d at 204 (3d Cir. 1978).

As of the publication of this RFI, there are no published cases that apply these well-established principles of ballot secrecy to electronic voting systems. The Department addressed the issue in one court proceeding against the Allied Pilots Association in 2007, but the litigation was resolved without a judicial determination. In that union officer election, the union utilized an Internet and telephone voting system designed by a third-party company. To log into the electronic voting system to cast a vote, each member was required to enter an employee identification number (EIN), which was published on the union website, along with a randomly-generated personal identification number (PIN) assigned privately. This information was transmitted to a “member database” on a computer server maintained by the third-party company. This “member database” contained members' names, their EINs, and their PINs. If the EIN and PIN entered by members matched those on the “member database,” the system permitted the members to cast their votes, which were recorded in a separate “vote database.” However, the electronic voting system also generated number identification markers that linked the members with the votes they cast, which could be accessed by certain employees of the third-party company. Additionally, several individuals from the organization administering theelection had access to members' EINs and PINs, which gave them the ability to log onto the voting system to determine how a member had voted. Upon these facts, the court found that the voting system violated the LMRDA requirements for ballot secrecy, but declined for other reasons to resolve the case on the parties' motions for summary judgment.Chaov.Allied Pilots Ass'n,2007 WL 518586 (N.D. Tex. Feb. 20, 2007) (depublished). As a condition of the parties' later settlement agreement, the District Court issued a Consent Decree and Order vacating its February 20, 2007 order.Secretary of Laborv.Allied Pilots Ass'n,Case 4:05-CV-338-Y (N.D. Tex. Jun. 13, 2007).

After the disputed U.S. Presidential election in 2000, many states and localities mandated the purchase and use of electronic voting systems. The Help America Vote Act (HAVA) was signed into law in 2002. Public Law 107-252, 116 Stat. 1666 (42 U.S.C. 15301-15545). It was drafted, in part, in reaction to the controversy surrounding the 2000 Presidential election. HAVA provided funds for qualifying states to replace punched card voting systems or lever voting systems with new systems, including electronic systems, in accordance with HAVA's voting system standards. 42 U.S.C. 15302(a)(2). HAVA standards require all electronic voting systems to be auditable and produce a permanent paper record with a manual audit capacity available. 42 U.S.C. 15481(a)(2)(B). This mandatory paper record is the official record for recounts.Id.

Since 2002, a number of bills have been introduced in Congress that would require a voter verified paper audit trail (VVPAT) or verified paper record (VPR) in U.S. political elections. A VVPAT or VPR is intended as an independent verification system for voting machines designed to allow voters to verify that their vote was cast correctly, to detect possible election fraud or malfunction, to serve as an independent check on the record produced and stored by the electronic system, and to provide a means to audit the stored electronic results and allow for an accurate recount. Voter verified paper legislation introduced since 2002 include the following: the Voter Confidence and Increased Accessibility Act of 2005 (H.R. 550, 109th Cong.), 2007 (H.R. 811, 110th Cong.; S. 2295, 110th Cong.), and 2009 (H.R. 2894, 111th Cong.; S. 1431, 111th Cong.); the Voting Integrity and Verification Act of 2005 (H.R. 704, 109th Cong.; S. 330, 109th Cong.), 2007 (S. 1869, 110th Cong.), and 2009 (S. 48, 111th Cong.); the Count Every Vote Act of 2005 (H.R. 939, 110th Cong.; S. 450, 109th Cong.) and 2007 (H.R. 1381, 110th Cong.; S. 804, 110th Cong.); and the Ballot Integrity Act of 2007 (S. 1487, 110th Cong.). None of these bills were passed in Congress. Although this national standard for voting has not yet been established, as of the publishing of this RFI, 32 states require VVPATs. VerifiedVoting.org, Voter-Verified Paper Record Legislation,http://www.verifiedvoting.org/article.php?list=type&type=13(last visited Sept. 20, 2010). OLMS is not presently aware of an Internet voting system that offers voter-verified paper records or a manual audit.

Electronic voting at polling stations using computer terminals or similar touch-screen machines which store and tabulate votes, but which are not Internet-based, are widely used in U.S. political elections. These are not on-line forms of voting, meaning the systems are not connected to the Internet.

Internet voting has not been widely adopted for political elections in this country and, in one situation, a Federal agency chose not to utilize Internet voting due to security concerns.SeeDavid Jeffersonet al, A Security Analysis of the Secure Electronic Registration and Voting Experiment (“SERVE”),available athttp://servesecurityreport.org/paper.pdf(report advising against Department of Defense use of Internet voting in 2004 political elections for military serving overseas due to security concerns).1

Internet voting has been tested overseas in public elections in Switzerland, the United Kingdom, and Estonia. Bryan Mercurio,Democracy in Decline: Can Internet Voting Save the Electoral Process?,22 J. Marshall J. & Info. L. 409, 409-51 (2004). Internet voting has also been tested in the U.S. as a voting option in the 2000 Democratic primary in Arizona and the Republican straw poll in Alaska in 2000.Id.Proponents of remote Internet voting make several arguments in its favor. R. Michael Alvarez & Thad E. Hall,Point, Click, and Vote: The Future of Internet Voting(2004) Voting would be more convenient for Internet users, allowing them to vote at home, at work, or anywhere the Internet is available.Id.Internet voting would be logistically easier for some disabled voters and for military personnel overseas.Id.Internet voting might encourage greater voter participation, particularly among younger Americans typically well-versed in using the Internet.Id.Internet voting could also lower the cost of voting.Id.However, there are still concerns regarding on-line computer security, viruses and attacks, voter fraud, unequal computer and Internet access (the “digital divide”), and potential disintegration of civic life by moving away from a community-based electoral process where voting at the polls is an observable act of citizenship.Id.

In 2007, the National Mediation Board (“NMB”) announced that it would primarily conduct representation elections offering participants both Internet voting and telephone electronic voting. 34 NMB No. 13, at 71 (Jan. 29, 2007) (Introduction of Internet Voting/Mock Election); 34 NMB No. 41, 200, 206 (Sept. 14, 2007) (Internet Voting Comment Period). The NMB adopted Internet voting based on its conclusion that “offering Internet voting in addition to phone voting will further its mission and enhance the Board's ability to conduct representation elections fairly and effectively.”Id.

However, the Department's responsibility over union elections differs from NMB's in at least two ways. First, unlike the LMRDA which requires union officer elections to be conducted by secret ballot, the Railway Labor Act (RLA), which the NMB enforces, has no such ballot secrecy requirement. In a section titled, “Statutory Difference Between LMRDA and RLA,” the NMB discussed LMRDA section 401(a)'s specific election standards, particularly its requirement of a secret ballot. It then drew a contrast with the RLA. “The language of the RLA gives the Board broad discretion in conducting representation elections. Section 2, Ninth provides that the Board “shall be authorized to take a secret ballot of the employees involved,or to utilize any other appropriate method of ascertaining the names of their dulydesignated and authorized representatives,”and further that the Board may “establish the rules to govern the election.” 34 NMB No. 41, 200, 206 (Sept. 14, 2007) (Emphasis in original.) Second, the NMB conducts representation elections itself and maintains direct control (along with its contractor) of the electronic voting system. In contrast, elections under the LMRDA are independently conducted by unions. The Department's involvement in an election is not triggered until a post-election complaint is filed, whereupon the Department investigates and, if the claim is substantiated, seeks a remedial election either through a voluntary settlement or by filing a complaint in district court. Because the Department does not have the degree of direct control over the electronic voting system that NMB has, and due to the heightened ballot secrecy requirements under the LMRDA, there are additional questions that must be addressed to ensure that the Department fulfills its legal obligations under the LMRDA.

The Secretary seeks public comment from interested parties to help the Department issue guidelines concerning the use of electronic voting systems in union officer elections. “Electronic voting systems” is meant to include: (1) Electronic voting machines used for casting votes at polling sites; (2) electronic voting from remote site personal computers via the Internet; and (3) electronic voting from remote site telephones. The comments should help identify and describe what issues concerning the use of electronic voting systems in union officer elections should be addressed and what specific standards should be included in the guidelines. These guidelines and standards could further the Department's interest in ensuring compliance with LMRDA Title IV.

In particular, the Secretary is seeking written comments in response to the questions enumerated below. We request that all commenters identify themselves and any organizations or entities with which they are affiliated and generally describe their involvement or association with electronic voting systems. In responding to questions, please note and consider the preceding background information provided in Part I. Also, in your responding comments, please provide as much detail and specific examples as possible. Thank you for your cooperation and consideration.

1. Should the Department issue guidelines concerning the use of electronic voting systems in union officer elections? What specific issues concerning electronic voting systems should be addressed? What specific standards should be included in the guidelines?

2. Describe the potential advantages and disadvantages of electronic voting systems in union officer elections. For unions that have considered electronic voting systems, what factors guided your decision to either adopt or reject electronic voting systems?

3. In elections other than union officer elections (for example, contract ratification votes, National Mediation Board elections, National Labor Relations Board elections, and national and local political elections), what are the voting system trends? Are there trends toward: (1) Electronic voting machines used for casting votes at polling sites; (2) electronic voting from remote site personal computers via the Internet; and (3) electronic voting from remote site telephones? How do these systems protect ballot secrecy and have these protections been effective?

4. Are voter verified ballots and paper audit trails necessary safeguards for union officer elections? If so, why? If not, why not?

5. If an electronic voting system has no voter verified paper ballots, how could a voter confirm that his or her vote was recorded accurately on the electronic ballot and stored accurately in the computer memory? Does the electronic display shown to the voter of the votes cast necessarily mean that the votes are stored or tallied as displayed?

6. If an electronic voting system has no voter verified paper ballots, can an observable recount be conducted? If so, how would this be accomplished?

7. If the electronic balloting system includes a function that prints paper versions of electronically stored ballots, but individual paper ballots are not voter-verified, does this function allow for a meaningful recount? Would these non-voter-verified paper ballots produced by the electronic system be independent of the electronic votes stored in the electronic system?

8. Are there technologies or systems that provide a check on the accuracy of the electronic system that is independent of the software in the system? If so, what are those technologies or systems?

9. How can observers participate meaningfully in all phases of the election process in an electronic voting system environment? How can remote site electronic voting systems ensure that candidates have the right to observe all aspects of the election? Are there features of electronic voting systems that establish or replicate processes for candidates to have observers at the polls and at the counting of the ballots? If so, what are those features?

10. Most remote site electronic voting systems use a voter identification number (VIN) for each voter to log into the system and vote. In these systems, what safeguards exist to prevent the connection of a voter's identifying information and his or her vote?

11. Some systems separate the VINs from the particular voted electronic ballots so that one individual or server controls access to the VINs and a separate individual or server controls access to the voted electronic ballots. In those systems, can the voter and the vote be reconnected? How can voters have confidence that there is no connection of voter and vote and that their votes remain secret?

12. Is there a software protocol that can restrict the transfer of any information that could potentially link a voter to his or her vote? If there is such a software protocol, can it be re-programmed to permit the link? Can such re-programming be detected afterwards?

13. In a remote site electronic voting system, if a determination is made that a voter is ineligible after he/she has already voted, can that vote be removed from the system without reconnecting the voter and vote? If not, can an observer challenge a voter's eligibility after voting has begun or must all such challenges be made prior to balloting?

14. How does a remote site electronic voting system deal with a “spoiled” ballot situation, i.e., when a member marks and submits a ballot in error, such as failing to vote for a particular race? Can that ballot be identified and voided and can that member be allowed to vote again? How does the system accomplish this without reconnecting the voter and vote?

15. In a remote site telephone voting system, can the system log and store the caller/voter's telephone number as well as the caller/voter's VIN and voting data?

16. What safeguards exist to prevent malicious or fraudulent software (e.g.,software that would delete or change vote totals) from being embedded in an Internet voting system? If such code was introduced or embedded, would it be possible to detect? If so, how? How would an allegation of software tampering be resolved? If electronic voting system software is proprietary, would a third party, such as OLMS, be allowed to inspect the software to resolve an allegation of tampering? If so, how? How would a third party, such as OLMS, be allowed access to theproprietary software codes to resolve the allegation of tampering?

17. If OLMS receives an election complaint challenging the software code in an electronic voting system, how can OLMS ensure that the code examined by OLMS in the investigation is the same code that was in place and operational during the challenged election?

18. In the electronic voting systems with which you are familiar, are all system activities of the union or third party election administrators permanently recorded or logged into the system? What safeguards exist to prevent accidental deletion from or tampering with the log? How could a third party, such as OLMS, investigate alleged tampering with the log? Does this log file, or other similar system file or database, include each voter's entry into the system, along with that voter's IP address, VIN, and voting data in sequential order?

19. What safeguards exist to prevent vote manipulation by “insiders” such as computer programmers, equipment manufacturers, technicians, system administrators, or election officials who may have legitimate access to election software and/or data? How could a third party, such as OLMS, investigate allegations of insider attacks?

20. How would the use of electronic balloting affect the issue of voter intimidation, if at all? For any voter intimidation that might take place in the context of an election using electronic balloting, what safeguards have been or could be used to address the issue?

21. What safeguards exist to prevent denial of service attacks, “spoofing” (i.e.,when one person masquerades as another and gains illegitimate access), automated vote buying, and viral attacks on voter personal computers? How could a third party, such as OLMS, investigate allegations of such activity?

22. There are reported cases of electronic voting system malfunctions in civic elections where votes have either not been recorded or have not been recorded accurately. These cases include: Volusia County, Florida (2000), Broward County, Florida (2004), Franklin County, Ohio (2004), Sarpy County, Nebraska (2004), Carteret County, North Carolina (2004), and Sarasota County, Florida (2006). What safeguards exist to detect such malfunctions? How could a third party, such as OLMS, investigate allegations that such malfunctions occurred?

23. What safeguards exist to prevent “phishing” in remote Internet voting systems? “Phishing” is a scheme that uses a web page set up to look just like the union's voting web page. Union members are brought to the site by email, links, or reminders to vote with an embedded link. The union member “votes” on the fake site. The person who sets up the fake site then has the voter's VIN and other identifying information which the person then uses to log onto the real site and vote in place of the real voter. How could a third party, such as OLMS, investigate allegations of phishing?

24. Are there any other potential issues with the legality or practicality of electronic voting systems that have not been addressed in the preceding questions? If so, please explain.

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change tohttp://www.regulations.govand will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2010-1094), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (viahttp://www.regulations.gov) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online viahttp://www.regulations.gov,it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received atthe Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.gov,click on the “submit a comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu select “Proposed Rule” and insert “USCG-2010-1094” in the “Keyword” box. Click “Search” then click on the balloon shape in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.gov,click on the “read comments” box, which will then become highlighted in blue. In the “Keyword” box insert USCG-2010-1094 and click “Search.” Click the “Open Docket Folder” in the “Actions” column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of theFederal Register(73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified underADDRESSES. Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in theFederal Register.

Marine events are frequently held on the navigable waters within the boundary of the Fifth Coast Guard District. The activities that typically comprise marine events include: Sailing regattas, power boat races, swim races and holiday parades. For a description of the geographical area of each Coast Guard Sector—Captain of the Port Zone, please see 33 CFR 3.25.

This regulation proposes to temporarily change the enforcement period of special local regulations for recurring marine events within the Fifth Coast Guard District. This proposed regulation applies to four marine events previously published at 33 CFR 100.501, Table to § 100.501.

The first event is the annual “Safety at Sea Seminar,” sponsored by the U.S. Naval Academy, on the waters of the Severn River at Annapolis, MD. The regulation at 33 CFR 100.501 is effective annually for the Safety at Sea Seminar marine event. The event consists of demonstrations of at sea rescues including surface and air platforms held on and above the waters of the Severn River in Annapolis, Maryland. Visual distress signal devices will be used and a helicopter with small boats will be operating before a large fleet of spectator crafts. Therefore, to ensure the safety of participants and support vessels, 33 CFR 100.501 would be enforced for the duration of the event. Under provisions of 33 CFR 100.501, from 11 a.m. to 1:30 p.m. on April 2, 2011, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander. Vessel traffic may be allowed to transit the regulated area only when the Patrol Commander determines it is safe to do so.

The second event is the annual “Blue Angels Air Show,” sponsored by the U.S. Naval Academy, on the waters of the Severn River at Annapolis, MD. The regulation at 33 CFR 100.501 is effective annually for the Blue Angels Air Show marine event. The event consists of one day for arrival and practice and another day for the Air Show held above the waters of the Severn River, at Annapolis, Maryland. High performance military aircraft will conduct maneuvers before a large fleet of spectator crafts. Therefore, to ensure the safety of participants and support vessels, 33 CFR 100.501 would be enforced for the duration of the event. Under provisions of 33 CFR 100.501, from 10:30 a.m. to 4 p.m. on May 24, 2011 and from 1:30 p.m. to 4 p.m. on May 25, 2011, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander. Vessel traffic may be allowed to transit the regulated area only when the Patrol Commander determines it is safe to do so.

The third event is the annual “Maryland Swim for Life,” sponsored by the District of Columbia Aquatics Club, on the waters of the Chester River near Chestertown, MD. The regulation at 33 CFR 100.501 is effective annually for the Maryland Swim for Life marine event. The event is an open water swimming competition held on the waters of the Chester River, near Chestertown, Maryland. Approximately 200 swimmers will start from Rolph's Wharf and swim up-river 2.5 miles then swim down-river returning back to Rolph's Wharf. A large fleet of support vessels accompany the swimmers. Therefore, to ensure the safety of participants and support vessels, 33 CFR 100.501 would be enforced for the duration of the event. Under provisions of 33 CFR 100.501, from 5:30 a.m. to 2:30 p.m. on June 25, 2011, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander. Vessel traffic may be allowed to transit the regulated area only when the Patrol Commander determines it is safe to do so.

The fourth event is the annual “Thunder on the Narrows”, sponsored by the Kent Narrows Racing Association on the waters of Prospect Bay at Kent Island, MD. The regulation at 33 CFR 100.501 is effective annually for the Thunder on the Narrows marine event. The event consists of two days of power boat racing on the waters of Prospect Bay, at Kent Island, Maryland. High performance power boats will race on a designated course before a large fleet of spectator crafts. Therefore, to ensure the safety of participants and support vessels, 33 CFR 100.501 would be enforced for the duration of the event. Under provisions of 33 CFR 100.501, from 9:30 a.m. to 6:30 p.m. on June 25, 2011 and from 9:30 a.m. to 6:30 p.m. on June 26, 2011, vessels may not enter the regulated area unless they receive permission from the Coast Guard Patrol Commander. Vessel traffic may be allowed to transit the regulated area only when the Patrol Commander determines it is safe to do so.

The Coast Guard proposes to temporarily suspend the regulations at 33 CFR 100.501 by changing the date of enforcement in the table to § 100.501. The Coast Guard proposes totemporarily change the enforcement periods of special local regulations for recurring marine events within the Fifth Coast Guard District. This NPRM applies to the marine events below.

The Table to § 100.501, event No. 13 establishes the enforcement date for the Safety at Sea Seminar. This regulation proposes to temporarily change the enforcement date from “March—4th or last Saturday” to the first Saturday in April, holding the annual marine event on April 2, 2011. The U.S. Naval Academy, which is the sponsor for this event, intends to hold this event annually; however, they have changed the date of the event for 2011 so that it is outside the scope of the existing enforcement period. Due to the need for vessel control while high performance aircraft are conducting maneuvers above the Severn River, vessel traffic would be temporarily restricted to provide for the safety of participants, spectators and transiting vessels.

The Table to § 100.501, event No. 19 establishes the enforcement date for the Blue Angels Air Show. This regulation proposes to temporarily change the enforcement date from “May—3rd Tuesday and Wednesday” to the fourth Tuesday and Wednesday in May, holding the annual marine event on May 24, 2011 and May 25, 2011. The U.S. Naval Academy, which is the sponsor for this event, intends to hold this event as it usually does on the Tuesday and Wednesday before Memorial Day annually; however, the existing enforcement period listed in the permanent regulation does not accurately reflect these dates. Due to the need for vessel control while high performance aircraft are conducting maneuvers above the Severn River, vessel traffic would be temporarily restricted to provide for the safety of participants, spectators and transiting vessels.

The Table to § 100.501, event No. 21 establishes the enforcement date for the Maryland Swim for Life. This regulation proposes to temporarily change the enforcement date from “June—3rd Saturday or July—3rd Saturday” to the fourth or last Saturday in June, holding their 20th annual marine event on June 25, 2011. The District of Columbia Aquatics Club, which is the sponsor for this event, intends to hold this event annually; however, they have changed the date of the event for 2011 so that it is outside the scope of the existing enforcement period. Due to the need for vessel control while swimmers are in the water along the Chester River, vessel traffic would be temporarily restricted to provide for the safety of participants, spectators and transiting vessels.

The Table to § 100.501, event No. 23 establishes the enforcement date for the Thunder on the Narrows. This regulation proposes to temporarily change the enforcement date from “August—1st Saturday and Sunday” to the fourth Saturday and Sunday in June, holding the annual marine event on June 25, 2011 and June 26, 2011. The Kent Narrows Racing Association, which is the sponsor for this event, intends to hold this event annually; however, they have changed the date of the event for 2011 so that it is outside the scope of the existing enforcement period. Due to the need for vessel control while high performance power boats are racing on Prospect Bay, vessel traffic would be temporarily restricted to provide for the safety of participants, spectators and transiting vessels.

We developed this proposed 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.

The proposed 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.

Although this proposed rule prevents traffic from transiting a portion of certain waterways during specified events, the effect of this regulation will not be significant due to the limited duration that the regulated area will be in effect and the extensive advance notifications that will be made to the maritime community via marine information broadcasts, local radio stations and area newspapers, so mariners can adjust their plans accordingly. Additionally, this rulemaking does not change the permanent regulated areas that have been published in 33 CFR 100.501, Table to § 100.501. In some cases vessel traffic may be able to transit the regulated area when the Coast Guard Patrol Commander deems it is safe to do so.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed 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 proposed rule would not have a significant economic impact on a substantial number of small entities. This rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in the area where the marine events are being held. This regulation will not have a significant impact on a substantial number of small entities because it will be enforced only during marine events that have been permitted by the Coast Guard Captain of the Port. The Captain of the Port will ensure that small entities are able to operate in the areas where events are occurring when it is safe to do so. In some cases, vessels will be able to safely transit around the regulated area at various times, and, with the permission of the Patrol Commander, vessels may transit through the regulated area. Before the enforcement period, the Coast Guard will issue maritime advisories so mariners can adjust their plans accordingly.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the individual listed underFOR FURTHER INFORMATION CONTACTat the beginning of this rule. The Coast Guard will not retaliate against small entities thatquestion or complain about this proposed rule or any policy or action of the Coast Guard.

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

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 proposed rule under that Order and have determined that it does not have implications for federalism.

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 or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

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

This proposed 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.

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

This proposed 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.

We have analyzed this proposed 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.

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 proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions, under paragraph 34(h), which do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR Part 100 that apply to organized marine events on the navigable waters of the United States that may have potential for negative impact on the safety or other interest of waterway users and shore side activities in the event area. The category of water activities includes but is not limited to sail boat regattas, boat parades, power boat racing, swimming events, crew racing, and sail board racing. Under figure 2-1, paragraph (34)(h), of the Instruction, an “Environmental Analysis Check List” and a “Categorical Exclusion Determination” are not required for this rule. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:

Throughout this document whenever “we”, “us”, or “our” is used, we mean the EPA. On January 5, 2011 (76 FR 491), we published a proposal in theFederal Registerto (1) disapprove a portion of a SIP revision submitted by the State of New Mexico and (2) promulgate a FIP to prevent emissions from New Mexico sources from interfering with other states' measures to protect visibility, and address the requirement for BART for NOXemissions. Our proposal can be accessed through the regulations.gov Web site (Docket No. EPA-R06-OAR-2010-0846). We have scheduled an open house and public hearing for our proposal to be held on February 17, 2011, at San Juan College, 4601 College Boulevard, Computer Science Building, Room 7103, Farmington, New Mexico 87402, (505) 326-3311. The open house will begin at 3 p.m. and end at 5 p.m. local time. The public hearing will begin at 6 p.m.

The public hearing will provide interested parties the opportunity to present views or arguments concerningour proposal. Interested parties may also submit written comments, as discussed in the proposal. Written statements and supporting information submitted during the comment period will be considered with the same weight as any oral comments and supporting information presented at the public hearing. We will not respond to comments during the public hearing. When we publish our final action, we will provide written responses to all oral and written comments received on our proposal. To provide opportunities for questions and discussion, we will hold an open house prior to the public hearing. During the open house, EPA staff will be available to informally answer questions on our proposed action. Any comments made to EPA staff during the open house must still be provided formally in writing or orally during the public hearing in order to be considered in the record.

Oral testimony may be limited to 5 minutes for each commenter to address the proposal. We will not be providing equipment for commenters to show overhead slides or make computerized slide presentations. Any person may provide written or oral comments and data pertaining to our proposal at the Public Hearing. Verbatim transcripts, in English, of the hearing and written statements will be included in the rulemaking docket.

Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. Information is organized as follows:

In the CAA Amendments of 1977, Congress established a program to protect and improve visibility in the national parks and wilderness areas.See CAA section 169(A). Congress amended the visibility provisions in the CAA in 1990 to focus attention on the problem of regional haze.SeeCAA section 169(B). EPA promulgated regulations in 1999 to implement sections 169A and 169B of the Act. These regulations require states to develop and implement plans to ensure reasonable progress toward improving visibility in mandatory Class I Federal areas1 (Class I areas). 64 FR 35714 (July 1, 1999);see also70 FR 39104 (July 6, 2005) and 71 FR 60612 (October 13, 2006).

In this action, EPA is proposing to approve certain provisions of Idaho's Regional Haze SIP submission addressing the requirements for best available retrofit technology (BART), the calculation of baseline and natural visibility conditions, and the statewide inventory of visibility-impairing pollutants. EPA is also proposing to approve the provisions of Idaho's SIP submittal addressing BART as meeting Idaho's obligations under section 110(a)(2)(D)(i)(I) of the Act for visibility. EPA is not taking action today on those provisions of the Regional Haze SIP submittal related to reasonable progress goals and the long term strategy.

Regional haze is impairment of visual range or colorization caused by emission of air pollution produced by numerous sources and activities, located across a broad regional area. The sources include but are not limited to, major and minor stationary sources, mobile sources, and area sources including non-anthropogenic sources. Visibility impairment is primarily caused by fine particulate matter (PM2.5) or secondary aerosol formed in the atmosphere from precursor gasses (e.g.,sulfur dioxide, nitrogen oxides, and in some cases, ammonia and volatile organic compounds). Atmospheric fine particulate reduces clarity, color, and visual range of visual scenes. Visibility reducing fine particulate is primarily composed of sulfate, nitrate, organic carbon compounds, elemental carbon, and soil dust, and impairs visibility by scattering and absorbing light. Fine particulate can also cause serious health effects and mortality in humans, and contributes to environmental effects such as acid deposition and eutrophication.2

Data from the existing visibility monitoring network, the “Interagency Monitoring of Protected Visual Environments” (IMPROVE) monitoring network, show that visibility impairment caused by air pollution occurs virtually all the time at most national parks and wilderness areas. Average visual range in many Class I areas in the Western United States is 100-150 kilometers, or about one-half to two-thirds the visual range that would exist without manmade air pollution.3 Visibility impairment also varies day-to-day and by season depending on variation in meteorology and emission rates.

In section 169A of the 1977 CAA Amendments, Congress created a program for protecting visibility in the nation's national parks and wilderness areas. This section of the CAA establishes as a national goal the “prevention of any future, and the remedying of any existing, impairment of visibility in Class I areas which impairment results from manmade air pollution.” CAA section 169A(a)(1). On December 2, 1980, EPA promulgated regulations to address visibility impairment in Class I areas that is “reasonably attributable” to a single source or small group of sources,i.e.,“reasonably attributable visibility impairment”. 45 FR 80084. These regulations represented the first phase in addressing visibility impairment. EPA deferred action on regional haze that emanates from a variety of sources until monitoring, modeling and scientific knowledge about the relationships between pollutants and visibility impairment were improved.

Congress added section 169B to the CAA in 1990 to address regional haze issues. EPA promulgated a rule to address regional haze on July 1, 1999 (64 FR 35713) (the RHR). The RHR revised the existing visibility regulations to integrate into the regulation provisions addressing regional haze impairment and established a comprehensive visibility protection program for Class I areas. The requirements for regional haze, found at 40 CFR 51.308 and 51.309, are included in EPA's visibility protection regulations at 40 CFR 51.300-309. Some of the main elements of the regional haze requirements are summarized in section III of this rulemaking. The requirement to submit a regional haze SIP applies to all 50 states, the District of Columbia and the Virgin Islands.4 40 CFR 51.308(b) requires states to submit the first implementation plan addressing regional haze visibility impairment no later than December 17, 2007.

Successful implementation of the regional haze program will require long-term regional coordination among states, tribal governments and various Federal agencies. As noted above, pollution affecting the air quality in Class I areas can be transported over long distances, even hundreds of kilometers. Therefore, to effectively address the problem of visibility impairment in Class I areas, states need to develop strategies in coordination with one another, taking into account the effect of emissions from one jurisdiction on the air quality in another.

Because the pollutants that lead to regional haze impairment can originate from across state lines, EPA has encouraged the States and Tribes to address visibility impairment from a regional perspective. Five regional planning organizations (RPOs) were created nationally to address regional haze and related issues. One of the main objectives of the RPOs is to develop and analyze data and conduct pollutant transport modeling to assist the States or Tribes in developing their regional haze plans.

The Western Regional Air Partnership (WRAP), one of the five RPOs nationally, is a voluntary partnership of State, Tribal, Federal, and local air agencies dealing with air quality in the West. WRAP member States include: Alaska, Arizona, California, Colorado, Idaho, Montana, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming. WRAP Tribal members include Campo Band of Kumeyaay Indians, Confederated Salish and Kootenai Tribes, Cortina Indian Rancheria, Hopi Tribe, Hualapai Nationof the Grand Canyon, Native Village of Shungnak, Nez Perce Tribe, Northern Cheyenne Tribe, Pueblo of Acoma, Pueblo of San Felipe, and Shoshone-Bannock Tribes of Fort Hall.

On July 18, 1997, EPA promulgated new NAAQS for 8-hour ozone and for PM2.5. 62 FR 38652. Section 110(a)(1) of the CAA requires states to submit a plan to address certain requirements for a new or revised NAAQS within three years after promulgation of such standards, or within such shorter time as EPA may prescribe. Section 110(a)(2) of the CAA lists the elements that such new plan submissions must address, as applicable, including section 110(a)(2)(D)(i), which pertains to the interstate transport of certain emissions.

On April 25, 2005, EPA published a “Finding of Failure to Submit SIPs for Interstate Transport for the 8-hour Ozone and PM2.5 NAAQS.” 70 FR 21147. This included a finding that Idaho and other states had failed to submit SIPs to address interstate transport of emissions affecting visibility and started a 2-year clock for the promulgation of a Federal Implementation Plan (FIP) by EPA, unless the state made a submission to meet the requirements of section 110(a)(2)(D)(i) and EPA approves such submission.Id.

On August 15, 2006, EPA issued guidance on this topic entitled “Guidance for State Implementation Plan (SIP) Submissions to Meet Current Outstanding Obligations Under section 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards” (2006 Guidance). We developed the 2006 Guidance to make recommendations to states for making submissions to meet the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone standards and the 1997 PM2.5 standards.

As identified in the 2006 Guidance, the “good neighbor” provisions in section 110(a)(2)(D)(i) of the CAA require each state to have a SIP that prohibits emissions that adversely affect other states in ways contemplated in the statute. Section 110(a)(2)(D)(i) contains four distinct requirements related to the impacts of interstate transport. The SIP must prevent sources in the state from emitting pollutants in amounts which will: (1) Contribute significantly to nonattainment of the NAAQS in other states; (2) interfere with maintenance of the NAAQS in other states; (3) interfere with provisions to prevent significant deterioration of air quality in other states; or (4) interfere with efforts to protect visibility in other states.

With respect to establishing that emissions from sources in the state would not interfere with measures in other states to protect visibility, the 2006 Guidance recommended that states make a submission indicating that it was premature, at that time, to determine whether there would be any interference with measures in the applicable SIP for another state designed to “protect visibility” until the submission and approval of regional haze SIPs. Regional haze SIPs were required to be submitted by December 17, 2007.See74 FR 2392. At this later point in time, however, EPA believes it is now necessary to evaluate such 110(a)(2)(D)(i) submissions from a state to ensure that the existing SIP, or the SIP as modified by the submission, contains adequate provisions to prevent interference with the visibility programs of other states, such as for consistency with the assumptions for controls relied upon by other states in establishing reasonable progress goals to address regional haze.

The regional haze program, as reflected in the RHR, recognizes the importance of addressing the long-range transport of pollutants for visibility and encourages states to work together to develop plans to address haze. The regulations explicitly require each state to address its “share” of the emission reductions needed to meet the reasonable progress goals for neighboring Class I areas. States working together through a regional planning process, are required to address an agreed upon share of their contribution to visibility impairment in the Class I areas of their neighbors. 40 CFR 51.308(d)(3)(ii). Given these requirements, we anticipate that regional haze SIPs will contain measures that will achieve these emissions reductions, and that these measures will meet the requirements of section 110(a)(2)(D)(i).

As a result of the regional planning efforts in the West, all states in the WRAP region contributed information to a Technical Support System (TSS) which provides an analysis of the causes of haze, and the levels of contribution from all sources within each state to the visibility degradation of each Class I area. The WRAP States consulted in the development of reasonable progress goals, using the products of this technical consultation process to co-develop their reasonable progress goals for the Western Class I areas. The modeling done by the WRAP relied on assumptions regarding emissions over the relevant planning period and embedded in these assumptions were anticipated emissions reductions in each of the States in the WRAP, including reductions from BART and other measures to be adopted as part of the State's long term strategy for addressing regional haze. The reasonable progress goals in the draft and final regional haze SIPs that have now been prepared by States in the West accordingly are based, in part, on the emissions reductions from nearby States that were agreed on through the WRAP process.

Idaho submitted a Regional Haze SIP on October 25, 2010, to address the requirements of the RHR and the good neighbor provisions of section 110(a)(2)(D)(i) regarding visibility for the 1997 8-hour ozone NAAQS and the 1997 PM2.5 NAAQS. EPA has reviewed the submittal and concluded at this time to propose to take action on only certain elements of Idaho's Regional Haze SIP. EPA is required at this time, to propose to take action either to approve Idaho's SIP submittal, or otherwise to take action to meet the requirements of section 110(a)(2)(D)(i)(II) regarding visibility.5 EPA is proposing to find that certain elements of Idaho's Regional Haze SIP submittal meet these requirements. In particular, as explained in section IV of this action, EPA is proposing to find that the BART measures in Idaho's Regional Haze SIP submittal, which EPA is proposing to approve in this action, will also mean that the Idaho SIP meets the requirements of section 110(a)(2)(D)(i)(II) regarding visibility for the 1997 8-hour ozone and 1997 PM2.5 NAAQS.

Regional haze SIPs must assure reasonable progress towards the national goal of achieving natural visibility conditions in Class I areas. Section 169A of the CAA and EPA's implementing regulations require states to establish long-term strategies for making reasonable progress toward meeting this goal. Implementation plans must also give specific attention to certain stationary sources that were in existence on August 7, 1977, but were not in operation before August 7, 1962, and require these sources, where appropriate, to install BART controls for the purpose of eliminating or reducing visibility impairment. The specific regional haze SIP requirements are discussed in further detail below.

The RHR establishes the deciview (dv) as the principal metric for measuring visibility. This visibility metric expresses uniform changes in haziness in terms of common increments across the entire range of visibility conditions, from pristine to extremely hazy conditions. Visibility is determined by measuring the visual range (or deciview), which is the greatest distance, in kilometers or miles, at which a dark object can be viewed against the sky. The deciview is a useful measure for tracking progress in improving visibility, because each deciview change is an equal incremental change in visibility perceived by the human eye. Most people can detect a change in visibility at one deciview.6

The deciview is used in expressing reasonable progress goals (which are interim visibility goals towards meeting the national visibility goal), defining baseline, current, and natural conditions, and tracking changes in visibility. The regional haze SIPs must contain measures that ensure “reasonable progress” toward the national goal of preventing and remedying visibility impairment in Class I areas caused by manmade air pollution by reducing anthropogenic emissions that cause regional haze. The national goal is a return to natural conditions,i.e.,manmade sources of air pollution would no longer impair visibility in Class I areas.

To track changes in visibility over time at each of the 156 Class I areas covered by the visibility program (40 CFR 81.401-437), and as part of the process for determining reasonable progress, states must calculate the degree of existing visibility impairment at each Class I area at the time of each regional haze SIP submittal and periodically review progress every five years midway through each 10-year implementation period. To do this, the RHR requires states to determine the degree of impairment (in deciviews) for the average of the 20% least impaired (“best”) and 20% most impaired (“worst”) visibility days over a specified time period at each of their Class I areas. In addition, states must also develop an estimate of natural visibility conditions for the purpose of comparing progress toward the national goal. Natural visibility is determined by estimating the natural concentrations of pollutants that cause visibility impairment and then calculating total light extinction based on those estimates. EPA has provided guidance to states regarding how to calculate baseline, natural and current visibility conditions in documents titled, EPA'sGuidance for Estimating Natural Visibility Conditions Under the Regional Haze Rule,September 2003, (EPA-454/B-03-005 located athttp://www.epa.gov/ttncaaa1/t1/memoranda/rh_envcurhr_gd.pdf),(hereinafter referred to as “EPA's 2003Natural Visibility Guidance”), andGuidance for Tracking Progress Under the Regional Haze Rule(EPA-454/B-03-004 September 2003 located athttp://www.epa.gov/ttncaaa1/t1/memoranda/rh_tpurhr_gd.pdf), (hereinafter referred to as “EPA's 2003 Tracking Progress Guidance”).

For the first regional haze SIPs that were due by December 17, 2007, “baseline visibility conditions” were the starting points for assessing “current” visibility impairment. Baseline visibility conditions represent the degree of visibility impairment for the 20% least impaired days and 20% most impaired days for each calendar year from 2000 to 2004. Using monitoring data for 2000 through 2004, states are required to calculate the average degree of visibility impairment for each Class I area, based on the average of annual values over the five-year period. The comparison of initial baseline visibility conditions to natural visibility conditions indicates the amount of improvement necessary to attain natural visibility, while the future comparison of baseline conditions to the then current conditions will indicate the amount of progress made. In general, the 2000-2004 baseline time period is considered the time from which improvement in visibility is measured.

The RHR requires that states consult with Federal Land Managers (FLMs) before adopting and submitting their SIPs. 40 CFR 51.308(i). States must provide FLMs an opportunity for consultation, in person and at least 60 days prior to holding any public hearing on the SIP. This consultation must include the opportunity for the FLMs to discuss their assessment of visibility impairment in any Class I area and to offer recommendations on the development of the reasonable progress goals and on the development and implementation of strategies to address visibility impairment. Further, a state must include in its SIP a description of how it addressed any comments provided by the FLMs. Finally, a SIP must provide procedures for continuing consultation between the state and FLMs regarding the state's visibility protection program, including development and review of SIP revisions, five-year progress reports, and the implementation of other programs having the potential to contribute to impairment of visibility in Class I areas.

Section 169A of the CAA directs states to evaluate the use of retrofit controls at certain larger, often uncontrolled, older stationary sources in order to address visibility impacts from these sources. Specifically, section 169A(b)(2)(A) of the CAA requires states to revise their SIPs to contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources7 built between 1962 and 1977 procure, install, and operate the “Best Available Retrofit Technology” as determined by the state. States are directed to conduct BART determinations for such sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART.

On July 6, 2005, EPA published theGuidelines for BART Determinations Under the Regional Haze Ruleat appendix Y to 40 CFR Part 51 (hereinafter referred to as the “BART Guidelines”) to assist states in determining which of their sources should be subject to the BART requirements and in determining appropriate emission limits for each applicable source. In making a BART applicability determination for a fossil fuel-fired electric generating plant with a total generating capacity in excess of 750 megawatts, a state must use the approach set forth in the BART Guidelines. A state is encouraged, but not required, to follow the BART Guidelines in making BART determinations for other types of sources.

States must address all visibility-impairing pollutants emitted by a source in the BART determination process. The most significant visibility impairing pollutants are SO2, NOX, and PM. EPA has indicated that states should use their best judgment in determiningwhether VOC or NH3compounds impair visibility in Class I areas.

The RPOs provided air quality modeling to the states to help them in determining whether potential BART sources can be reasonably expected to cause or contribute to visibility impairment in a Class I area. Under the BART Guidelines, states may select an exemption threshold value for their BART modeling, below which a BART-eligible source would not be expected to cause or contribute to visibility impairment in any Class I area. The state must document this exemption threshold value in the SIP and must state the basis for its selection of that value. Any source with emissions that model above the threshold value would be subject to a BART determination review. The BART Guidelines acknowledge varying circumstances affecting different Class I areas. States should consider the number of emission sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. Generally, an exemption threshold set by the state should not be higher than 0.5 deciview.

In their SIPs, states must identify potential BART sources, described as “BART-eligible sources” in the RHR, and document their BART control determination analyses. The term “BART-eligible source” used in the BART Guidelines means the collection of individual emission units at a facility that together comprises the BART-eligible source. In making BART determinations, section 169A(g)(2) of the CAA requires that states consider the following factors: (1) The costs of compliance, (2) the energy and non-air quality environmental impacts of compliance, (3) any existing pollution control technology in use at the source, (4) the remaining useful life of the source, and (5) the degree of improvement in visibility which may reasonably be anticipated to result from the use of such technology. States are free to determine the weight and significance to be assigned to each factor.

A regional haze SIP must include source-specific BART emission limits and compliance schedules for each source subject to BART. Once a state has made its BART determination, the BART controls must be installed and in operation as expeditiously as practicable, but no later than five years after the date EPA approves the regional haze SIP. CAA section 169(g)(4). 40 CFR 51.308(e)(1)(iv). In addition to what is required by the RHR, general SIP requirements mandate that the SIP must also include all regulatory requirements related to monitoring, recordkeeping, and reporting for the BART controls on the source. States have the flexibility to choose the type of control measures they will use to meet the requirements of BART.

There are five mandatory Class I areas, or portions of such areas, within Idaho. Craters of the Moon National Monument, Sawtooth Wilderness Area, and Selway-Bitterroot Wilderness Area lie completely within Idaho State borders. Hells Canyon Wilderness Area is a shared Class I area with Oregon, and Yellowstone National Park is a shared Class I area with Wyoming. See 40 CFR 81.410. Oregon and Wyoming respectively will address reasonable progress goals, monitoring, and other core requirements for these Class I areas. Idaho consulted with Oregon and Wyoming to determine Idaho's contribution to regional haze in those Class I areas and to determine appropriate measures for Idaho's long-term strategy.Seechapter 13, section 13.2 of the Idaho Regional Haze SIP submittal.See alsothe WRAP Technical Support Document8 (WRAP TSD) supporting this action.

The Idaho SIP submittal addresses the three Class I areas that are completely within the State border and, as appropriate, Class I areas with shared jurisdiction with Oregon and Wyoming and Class I areas in neighboring states.

Idaho, using data from the IMPROVE monitoring network and analyzed by WRAP, established baseline and natural visibility conditions as well as the uniform rate of progress (URP) to achieve natural visibility conditions in 2064 for all Idaho Class I areas within its borders. While Idaho is responsible for establishing baseline and natural conditions for three Class I areas, the SIP also included these values for Hells Canyon Wilderness Area and Yellowstone National Park, as determined by WRAP and established by Oregon and Wyoming.

Baseline visibility was calculated from monitoring data collected by IMPROVE monitors for the most-impaired (20% worst) days and the least-impaired (20% best) days. Idaho used the WRAP derived natural visibility conditions. In general, WRAP based their estimates on EPA guidance,Guidance for Estimating Natural Visibility Conditions Under the Regional Haze Program(EPA-45/B-03-0005 September 2003) but incorporated refinements which EPA believes provides results more appropriate for western states than the general EPA default approach.Seesection 2.E of the WRAP TSD.

Craters of the Moon National Monument:An IMPROVE monitor is located in Craters of the Moon National Monument. Based on baseline 2000 to 2004 data, the average 20% worst days visibility is 14 dv and the average 20% best days visibility is 4.3 dv. Natural visibility for the average 20% worst days is 7.53 dv.

Hells Canyon Wilderness Area:Hells Canyon Wilderness Area has an IMPROVE monitor located within the Wilderness Area at Oxbow Dam. Based on baseline 2000 to 2004 data, Oregon determined the average 20% worst days visibility is 18.55 dv and the average 20% best days visibility is 5.52 dv. Natural visibility for the average 20% worst days is 8.32 dv.

Sawtooth Wilderness Area:Sawtooth Wilderness Area has an IMPROVE monitor located within the Wilderness Area. Based on baseline 2000 to 2004 data, the average 20% worst days visibility is 13.78 dv and the average 20% best days visibility is 3.99 dv. Natural visibility for the average 20% worst days is 6.42 dv.

Selway-Bitterroot Wilderness Area:Selway-Bitterroot Wilderness Area visibility is represented by an IMPROVE monitor located 20 km east of the Wilderness Area in Sula, Montana. This site also represents visibility in the Anaconda-Pintler Wilderness Area. Based on baseline 2000 to 2004 data, the average 20% worst days visibility is 13.41 dv and the average 20% best days visibility is 2.58 dv for both areas. Natural visibility for the Selway-Bitteroot and the Anaconda-Pintler Wilderness Areas average 20% worst days is 7.43 dv.

Yellowstone National Park:Yellowstone National Park has an IMPROVE monitor located within the park. Based on baseline 2000 to 2004 data Wyoming determined the average 20% worst days visibility is 11.76 dv and the average 20% best days visibility is 2.58 dv. Natural visibility for the average 20% worst days is 6.24 dv.

Based on our evaluation of the State's baseline and natural conditions analysis, EPA is proposing to find that Idaho has appropriately determined baseline visibility for the average 20% worst and 20% best days and natural visibility conditions for the average 20%worst days in each Class I area within the state.Seethe WRAP TSD supporting this action (section 2.D and 2.E).

There are three main categories of air pollution emission sources: Point sources, area sources, and mobile sources. Point sources are larger stationary sources that emit pollutants through a stack or duct. Area sources are large numbers of small sources that are widely distributed across an area, such as residential heating units or re-entrained dust from unpaved roads or windblown dust form agricultural fields. Mobile sources are sources such as motor vehicles, locomotives and aircraft.

The RHR requires a statewide emission inventory of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any mandatory Class I area. 40 CFR 51.308(d)(4)(v). The WRAP, with data supplied by the states, compiled emission inventories for all major source categories in Idaho for the 2002 baseline year and estimated emission inventories for 2018. Emission estimates for 2018 were generated from anticipated population growth, growth in industrial activity, and emission reductions from implementation of control measures, e.g., implementation of BART limitations, and motor vehicle tailpipe emissions. Appendix D of the Idaho Regional Haze SIP discusses how emission estimates were determined and contains the emission inventory. Detailed estimates of the emissions, used in the modeling conducted by the WRAP and Idaho, can be found at the WRAP Web site:http://vista.cira.colostate.edu/TSS/Results/Emissions.aspx.

There are a number of emission inventory source categories identified in the Idaho SIP: point, area, on-road mobile, off-road mobile, anthropogenic fire (prescribed forest fire, agricultural field burning, and residential wood combustion), natural fire, road dust, fugitive dust and windblown dust. The 2002 baseline and 2018 projected emissions, as well as the net changes of emissions between these two years, are presented in Tables 8-1 through 8-8 in the SIP submittal for SO2, NOX, Volatile Organic Carbon (VOC), Organic Carbon (OC), Elemental Carbon (EC), fine particulate (PM2.5), coarse particulate (PM coarse) and ammonia. The methods that WRAP used to develop these emission inventories are described in more detail in the WRAP TSD. As explained in the WRAP TSD, emissions were calculated using best available data and approved EPA methods.SeeWRAP TSD section 12.

SO2emissions in Idaho come mostly from coal combustion at industrial boilers and from other industrial activities. SO2emissions estimates for point sources came either from source test data (where available) or calculations based on fuel type and quantity burned. These industrial point sources contribute 45% of total statewide SO2emissions. The second largest contributor to SO2emissions in Idaho is fire: 31% from natural fire and 2% from anthropogenic fire.

Idaho projects a 45% statewide reduction in point source SO2emissions by 2018 due to implementation of BART emission limitations. Idaho also projects total 2018 statewide SO2emissions to be reduced by 33.9% below 2002 levels as a result of BART and additional reductions from mobile sources and anthropogenic fire emissions. According to the State's analysis, overall point source emissions, the largest source category in 2002, are projected to be reduced by 46.7%. Area source emissions (8% of statewide SO2emissions) are projected to increase 7.9% between 2002 and 2018 due to population growth. Idaho projects SO2emissions associated with natural fire, the second largest source category in 2002, to remain unchanged and would become the largest source category in 2018.

NOXemissions in Idaho come mostly from mobile sources, both from on-road and off-road mobile sources, which contribute 46% of total statewide NOXemissions. The second largest source category of NOXemissions is area source emissions from combustion to heat buildings. Area source emissions account for 19% of statewide NOXemissions. Idaho projects that 2018 total statewide emissions of NOXwill be 20.6% lower than 2002 levels. Idaho also projects on-road and off-road mobile source emissions to be reduced by 72.4% and 38.3% respectively by 2018, due to new Federal motor vehicle emission standards and fleet turnover. Idaho projects area source NOXemissions to increase by 38.8% to become the largest source category in 2018 due to population growth and new industrial sources. Idaho projects natural fire emissions to remain unchanged and become the second largest NOXsource category in 2018.

Volatile organic compounds (VOC) in Idaho come mostly from area sources such as industrial solvent use, paints, pharmaceuticals, and refrigerants, which contribute 46% of total VOC emissions. The second largest source category in VOC emissions is non-anthropogenic fire which contributes 25% of total VOC emissions, while the second largest source category of anthropogenic VOC is mobile sources. Idaho projects 2018 statewide VOC emissions to increase by 19.2% over 2002 levels even though on-road mobile, off-road mobile and anthropogenic VOC emissions are projected to decrease 61.7%, 32.2% and 52.3% respectively. This increase in VOC emissions is due to a projected 64.2% increase in area source VOC emissions primarily due to population growth and increased business activity.

Organic carbon in Idaho comes from natural fire, anthropogenic fire and mobile sources. Natural fire is the largest source category, which contributes 82% of organic carbon emissions. The second largest source category is anthropogenic fire which contributes 15% of the total organic carbon emissions. Idaho projects 2018 statewide organic carbon emissions to decrease 7.6% from 2002 emission levels due to reductions in on-road mobile, off-road mobile, and anthropogenic fire of 10.8%, 43.1% and 51.6% respectively.

Elemental carbon is associated with incomplete combustion. The largest source category is natural fire, which contributes 72% of total elemental carbon emissions. The second largest source category is off-road mobile sources (diesel) which contributes 14% of total elemental carbon emissions. Idaho projects 2018 statewide elemental carbon emissions to decrease by 50.7% from 2002 emission levels. These projected reductions are the result of anticipated emission reductions in on-road mobile and off-road mobile emissions of 73.8% and 64.3% respectively.

Fine particulate, particles with an aerodynamic diameter of less than 2.5 micrometers, is emitted from a variety of area sources. Point sources account for only 2% of statewide fine particulate. Wind blown dust is the largest source category contributing 26% of total fine particulate. Wood stoves and small manufacturing and industrial sources contribute 24% of total fine particulate. Natural fire, anthropogenic fire, road dust and other fugitive dust sources also emit approximately equal amounts of fine particulate. Idaho projects that 2018 fine particulate emissions will increase by 12.1% over 2002 emission levels due to population and industrial growth. Emissions increases are projected from point, area, road dust, fugitive dust at 26.8%, 33.6%, 32.0%, and 30.1% respectively. Fine particulate emissions associated with anthropogenic fire are expected to decrease by 53.6%.

Coarse particulate is particulate with an aerodynamic diameter between 2.5 and 10 micrometers. It is composed of larger particles in wind blown dust, natural fire and other particulate from industrial grinding sources. The largest source category is wind blown dust which contributes 40% of total coarse particulate emissions. The second largest source is natural fire which contributes 22% of coarse particulate emissions. Idaho projects that 2018 emissions of coarse particulate to increase by 11.9% over 2002 emission levels. Idaho projects course particulate emissions from most categories to increase, with the exception of anthropogenic fire which will decrease by 51.7%.

Ammonia does not directly impair visibility but can be a precursor to the formation of particulate in the atmosphere through chemical reaction with SO2and NOXto form a “secondary aerosol.” Area sources are the primary source category contributing to ammonia emissions and account for 85% of total ammonia emissions. The second largest source category is natural fire which contributes 10% of ammonia emissions. Idaho projects ammonia emissions in 2018 to increase by 1.3% over 2002 emission levels with increasing emissions in all categories with the exception of anthropogenic fire which Idaho projects to decrease by 53.4%.

Each pollutant species has its own visibility impairing property; 1 μg/m3of sulfate, for example, is more effective in scattering light than 1 μg/m3of organic carbon and therefore impairs visibility more than organic carbon. Following the approach recommended by the WRAP and as explain more fully below, Idaho used a two step process to identify the contribution of each source or source category to existing visibility impairment. First, ambient pollutant concentration by species (sulfate, nitrate, organic carbon, fine particulate, etc.) was determined from the IMPROVE sampler in each Class I area. These concentrations were then converted into deciview values to distribute existing impairment among the measured pollutant species. This calculation used the “improved IMPROVE equation” (Seesection 2.C of the WRAP TSD) to calculate extinction from each pollutant specie concentration. Extinction, in inverse megameters, was then converted to deciview using the equation defining deciview. Second, the Comprehensive Air Quality Model with Extensions (CAMx) and PM Source Apportionment Technology (PSAT) models were used to determine which sources and source categories contributed to the ambient concentration of each pollutant species. Thus, impairment was distributed by source and source category.

After considering the available models, the WRAP and Western States selected two source apportionment analysis tools. The first source apportionment tool was the Comprehensive Air Quality Model with Extensions (CAMx) in conjunction with PM Source Apportionment Technology (PSAT). This model uses emission source characterization, meteorology and atmospheric chemistry for aerosol formation to predict pollutant concentrations in the Class I area. The predicted results are compared to measured concentrations to assess accuracy of model output. CAMx PSAT modeling was used to determine source contribution to ambient sulfate and nitrate concentrations. The WRAP used state-of-the-science source apportionment tools within a widely used photochemical model. EPA has reviewed the PSAT analysis and considers the modeling, methodology, and analysis acceptable.Seesection 6.A of the WRAP TSD.

The second tool was the Weighted Emissions Potential (WEP) model, used primarily as a screening tool to decide which geographic source regions have the potential to contribute to haze at specific Class I areas. WEP does not account for atmospheric chemistry (secondary aerosol formation) or removal processes, and thus is used for estimating inert particulate concentrations. The model uses back trajectory wind flow calculations and resident time of an air parcel to determine source and source category and location for ambient organic carbon, elemental carbon, PM2.5, and coarse PM concentrations. These modeling tools were the state-of-the-science and EPA has determined that these tools were appropriately used by WRAP for regional haze planning. Description of these tools and our evaluation of them are described in more detail in section 6 of the WRAP TSD.

Figure 7-1 in the Idaho Regional Haze SIP submittal presents the light extinction for the base year at each Class I area by visibility impairing pollutant species for the average of the 20% worst days. The visibility impairing pollutant species identified are: Fine particulate (i.e.sea salt, fine soil, elemental carbon, organic carbon, ammonium sulfate and ammonium nitrate) and coarse material. In addition the SIP submission identifies in Figures 7.2 through Figure 7.52, light extinction by pollutant species for the average of the 20% worst and average of the 20% best days for each of the Class I areas.

Figure 7-1 of the SIP indicates that on the 20% worst days organic carbon is the primary pollutant impairing visibility in the Sawtooth and Selway-Bitterroot Wilderness Areas. In Craters of the Moon National Monument the primary pollutant impairing visibility on the 20% worst days is ammonium nitrate.

Idaho also analyzed the monthly variation of light extinction and pollutant specie concentrations for the 20% worst days.SeeIdaho SIP Figures 7-6 and 7-7, Figures 7-24 through 7-27, Figures 7-35 through 7-38. Each Class I area shows a distinct monthly and seasonal variation in impairment. For example, the 20% worst days in Craters of the Moon National Monument occur during the winter months of December through February. The 20% worst days in the Sawtooth and Selway-Bitterroot Wilderness Areas occur from April through November. This variation in impairment is due to monthly and seasonal variation in meteorology and emission rates.

To determine potential impacts of emission sources in Idaho on Class I areas in other states, Idaho considered the WRAP analysis of interstate impacts. Ambient air sulfate and nitrate concentrations for the 20% worst and best days for baseline (2002-2004) and 2018 at each western Class I area is distributed among all states in the WRAP using PSAT modeling. The SIP submittal provides an analysis of the Class I areas in nearby states.Seechapter 9.3 of the Idaho Regional Haze SIP submission. These Class I areas are:

• Hells Canyon Wilderness Area

• Yellowstone National Park

• Glacier National Park in Montana: Idaho is ranked 3rd behind Montana and Washington in contribution of visibility impairing pollutants on the 20% worst days

• Cabinet Mountain Wilderness Area in Montana: Idaho is ranked 3rd behind Oregon and Washington in contribution to visibility impairing pollutants on the 20% worst days

• Bob Marshall Wilderness Area in Montana: Idaho is ranked 3rd behind Montana and Washington in contribution to visibility impairing pollutants on the 20% worst days

• Gates of the Mountain Wilderness in Montana: Idaho is “ranked 3rd” behind Montana and Washington incontribution to visibility impairing pollutants on the 20% worst days

• North Absaroka Wilderness in Wyoming: Idaho is ranked 2nd behind Wyoming in contribution to visibility impairing pollutants on the 20% worst days

• Bridger Wilderness in Wyoming: Idaho is ranked 2nd behind Wyoming in contribution to visibility impairing pollutants on the 20% worst days

• Eagle Cap Wilderness Area Oregon: Idaho is ranked 3rd behind Oregon and Washington in contribution to visibility impairing pollutant on the 20% worst days

• Jarbidge Wilderness Area in Nevada: Idaho is ranked 1st in contribution of sulfate and nitrate to the Jarbidge Wilderness area.

EPA is proposing to find that Idaho has appropriately identified the primary pollutants impacting its Class I areas. EPA is also proposing to find that the SIP contains an appropriate analysis of the impacts of emissions from Idaho on nearby Class I areas.

The first phase of a BART evaluation is to identify all the BART-eligible sources within the State's boundaries. Table 10-1 in the SIP submission presents the list of all BART-eligible sources located in Idaho. These sources are: The Amalgamated Sugar Company (TASCO) in Twin Falls, TASCO in Nampa, TASCO in Paul, NU West/Agrium in Soda Springs, the J.R. Simplot Don Plant in Pocatello, the Monsanto/P4 Production LLC facility at Soda Springs, and the Potlatch Pulp & Paper mill in Lewiston Idaho.

The second phase of the BART determination process is to identify those BART-eligible sources that may reasonably be anticipated to cause or contribute to any impairment of visibility at any Class I area and are, therefore, subject to BART. As explained above, EPA has issued guidelines that provide states with guidance for addressing the BART requirements. 40 CFR Part 51 appendix Y;seealso 70 FR 39,104 (July 6, 2005). The BART Guidelines describe how states may consider exempting some BART-eligible sources from further BART review based on dispersion modeling showing that the sources contribute below a certain threshold amount. Idaho conducted dispersion modeling for the BART-eligible sources to determine the visibility impacts of these sources on Class I areas with the exception of the Monsanto/P4 Production LLC facility which was categorized as subject to BART without analysis.9

The BART Guidelines require States to set a contribution threshold to assess whether the impact of a single source is sufficient to cause or contribute to visibility impairment at a Class I area. Generally, States may not establish a contribution threshold that exceeds 0.5 dv impact. 70 FR at 39,161. Idaho established a contribution threshold of 0.5 dv through negotiated rulemaking with industry, FLMs, and the public. In its SIP submittal, Idaho notes that the 0.5 dv threshold is also consistent with the threshold used by all other states in the WRAP. Any source with an impact of greater than 0.5 dv in any Class I area, including Class I areas in other states, would be subject to a BART analysis and BART emission limitations.

The explanation given by Idaho for adopting a 0.5 dv threshold for determining whether a BART source may be reasonably anticipated to cause or contribute to any visibility impairment in a Class I area is not adequate to justify the selection of such a threshold. Although a number of stakeholders may have agreed that a 0.5 dv threshold is appropriate, and other states in the Region may have adopted such a threshold, such agreement does not provide sufficient basis concluding that such a threshold was appropriate in the case of Idaho. Based on EPA's review of the BART-eligible sources in Idaho, however, EPA is proposing to find that a 0.5 dv threshold is appropriate, given the specific facts in Idaho.

In the BART Guidelines, EPA recommended that States “consider the number of BART sources affecting the Class I areas at issue and the magnitude of the individual sources' impacts. In general, a larger number of BART sources causing impacts in a Class I area may warrant a lower contribution threshold.” 70 FR 39104, 39161 July 6, 2005. In developing its regional haze SIP, Idaho modeled the impacts of six of the seven BART-eligible sources on Class I areas within a 300 km radius. (SeeTable 10-3 through Table 10-8 of the SIP submittal). As noted above, the State and Monsanto/P4 Production mutually agreed that Monsanto/P4 was subject to BART. Of these BART-eligible sources, only TASCO, Nampa exceeded the 0.5 dv threshold, based on consideration of the 22nd highest impact during 2003-2005.10 For the remaining five BART-eligible sources, the modeling showed maximum impacts below 0.4 dv. These sources are generally widely distributed across the State, and only TASCO Twin Falls and TASCO Paul showed modeled impacts affecting the same Class I area. Given the relatively limited impact on visibility from these sources, Idaho could have reasonably concluded that a 0.5 dv threshold was appropriate for capturing those BART-eligible sources with significant impacts on visibility in Class I areas. For these reasons, EPA is proposing to approve the 0.5 dv threshold adopted by Idaho in its Regional Haze SIP.

To determine those sources subject to BART, Idaho used the CALPUFF model. The dispersion modeling was conducted in accord with theBART Modeling Protocol7.This Protocol was jointly developed by the states of Idaho, Washington, Oregon and EPA and has undergone public review. The Protocol was used by all three states in determining which BART-eligible sources are subject to BART. See appendix F of the SIP submission for details of the modeling protocol, its application and results. As noted above, Idaho determined through modeling that one, of the six modeled BART-eligible sources in Idaho, was subject to BART: The TASCO facility in Nampa. In addition, the Monsanto/P4 Production LLC facility in Soda Springs was determined to be subject to BART based on agreement by the source and the State.

TASCO Nampa is a sugar beet processing facility that operates a 350 million BTU per hour, coal-fired boiler known as the Riley boiler. The Riley boiler emits sulfur dioxide, oxides of nitrogen and particulate matter. It is anticipated to operate into the foreseeable future, thus expected life of the source is not a factor in the BART determination.

The first step in a BART analysis is the identification of all available retrofit control options. Available retrofit control options are those air pollution control technologies with a practical potential for application to the emission unit. 40 CFR part 51, appendix Y provides guidance on identifying available options that includes review of EPA's Clean Air Technology Center RACT/BACT/LAER clearinghouse, state and local Best Available Control Technology Guidelines, and a number of other documents.See40 CFR part 51appendix Y(IV)(D)(1). Generally EPA does not expect states to consider control technologies that have not already been demonstrated in practice to be technically feasible.

Idaho identified the pollutants of concern for the BART determination at the Riley boiler to be sulfur dioxide, oxides of nitrogen and particulate matter. BART controls for each pollutant will be discussed below. Following an evaluation of available controls, described below, Idaho determined that the following emission limits represent BART for the Riley Boiler:

The emission limits for NOXand SO2can be achieved respectively through use of low NOXburners with overfire air and spray dry gas desulfurization. BART will result in a 65% reduction in SO2emissions and 80% reduction in NOXemissions. Idaho found that the bag house currently in place at the facility will result in compliance with the PM BART limitation.

The TASCO Riley boiler currently burns low-sulfur coal limited to 1% sulfur by weight. The alternative control options considered for SO2include: low-sulfur coal limited to 0.6% sulfur by weight that would provide an additional 15% control efficiency, wet flue gas desulfurization (Wet FGD) with a 95% control efficiency, spray dryer flue gas desulfurization (Spray Dry FGD) with an 80% control efficiency, dry lime flue gas desulfurization (Dry Lime FGD) with a 55% control efficiency, dry Trona flue gas desulfurization (Dry Trona FGD) with a 65% control efficiency. Idaho found that all these technologies are technically feasible, but, as explained below, that wet FGD and spray dry FGD were the best options for further evaluation.

With a removal efficiency of 95% or greater, wet FGD systems offer one of the highest SO2removal efficiencies of the available control technologies. However, the installation of wet FGD at TASCO Nampa would require significant modification of the facility that would increase the cost of this option. As explained in the SIP submittal, wet FGD results in a saturated exhaust stream. The resulting condensation that would form in the stack would likely have a very low pH that would require installation of a stack liner to protect the integrity of the stack. Idaho concluded that installation of a stack liner would cost $2,000,000. Cost effectiveness of wet FGD was accordingly estimated at $3353/ton, with an incremental cost of $6940/ton as compared to the next most efficient control technology, spray dry FGD.

Spray dry FGD typically has an estimated control efficiency of 80-90% depending on exit flue gas temperature as it approaches the adiabatic saturation temperature. Idaho used 80% control efficiency in this evaluation. Cost effectiveness of spray dry FGD is $2163/ton and the incremental cost over the next most efficient control technology, dry Trona FGD is $360/ton.

Idaho also evaluated the energy and non-air related environmental impacts of the SO2control options. Waste-water treatment from wet FGD is a major concern to Idaho and would need to be treated onsite. The SIP submittal explains that it would be difficult and expensive to expand the TASCO on-site treatment facility due to limited available land and the City of Nampa water treatment system might not be able to handle the increased water volume.SeeState of Idaho Department of Environmental Quality, Regional Haze Plan, 10/8/10, appendix F,

Table 32 of appendix F of the SIP submittal provides the estimated visibility impact of the five control options. Wet FGD would reduce the number of days with greater than 0.5 dv impact over a three year period from 127 days to 43 days. Spray dry FGD would reduce the number of days with greater than 0.5 dv from 127 days to 51 days. Considering the incremental cost of wet FGD over spray dry FGD of $6940/ton, the waste water treatment limitations, and achieving a reduction of only 8 more days with impact greater than 0.5 dv over a three year period, Idaho concluded that wet FGD is not warranted.

Idaho has determined that spray dry FGD is the appropriate control technology for SO2and established 104 lb/hr as BART based on cost effectiveness and improvement in visibility. EPA agrees with Idaho's BART determination for SO2.

Idaho identified potential control options for oxides of nitrogen (NOX) for the Riley boiler as: low NOXburners (LNB) with a 50% control efficiency, low NOXburners with overfire air (LNB/OFA) with a 65% control efficiency, ultra low NOXburners (ULNB) which was determined to be infeasible, selective catalytic reduction (SCR) with a 90% control efficiency, and selective non-catalytic (SNCR) determined to be infeasible. Idaho evaluated the technical feasibility of each control option. Idaho found that ULNB is not technologically feasible as the fire box at the Riley boiler is not large enough to accommodate the flame management system necessary for this type of control. Idaho also concluded that SNCR is also not technologically feasible as the boiler exhaust path does not have enough residence time for reliable control. Idaho accordingly identified three technically feasible control options: LNB, LNB/OFA, and SCR.

Idaho determined the cost effectiveness and incremental cost effectiveness for the three technically feasible control options.SeeTable 35 of appendix F of the SIP submittal. Idaho concluded that LNB/OFA provides a reasonable cost effectiveness of $1270/ton and incremental cost effectiveness of $2430/ton over low-NOXburners. SCR would provide a 90% reduction in NOXemissions at a cost effectiveness of $3768 and incremental cost of $10,245/ton over LNB/OFA. LNB/OFA would reduce the number of days with impacts greater than 0.5 dv over a three year period from 127 days to 56 days. SCR would reduce the number of days with impact greater than 0.5 dv over a three year period from 127 days to 40 days. Considering the incremental cost of SCR over LNB/OFA of $10,245/ton and achieving an incremental reduction of 16 days with impact greater than 0.5 dv over a three year period, Idaho concluded SCR is not warranted and that LNB/OFA represents BART. In addition, as described below in section F(d), TASCO argued that it could not afford to install an SCR. In view of this and Idaho's conclusion that the incremental cost of $10,245/ton for reducing the number of days with an impact greater than 0.5 dv by 16 over a three year period EPA is proposing to approve Idaho's determination of BART for NOXTASCO.

The TASCO Nampa Riley boiler has a baghouse to control particulate matter. In its PM BART evaluation Idaho considered other alternative controltechnologies including: An enhanced baghouse with a control efficiency of 99%, wet electrostatic precipitator with a control efficiency of 99%, and dry electrostatic precipitator with a control efficiency of 99%. Idaho compared these technologies to the control efficiency of the current baghouse. The existing baghouse with a control efficiency of 99% emits 0.036 lbs/MMbtu (350 MMbtu/hour boiler with a limit of 0.036 lbs/MMbtu the emissions are 12.6 lbs/hour).

Idaho determined that the existing baghouse is the best BART control technology since it will not incur additional cost and has control efficiency comparable to the identified alternate control technologies. The existing baghouse has the added environmental benefits of not requiring additional water or electricity. The benefit of adding an additional baghouse is so small the benefits are outweighed by the costs. In conclusion, the best BART alternative for particulate is the existing baghouse.

Idaho determined that the current baghouse and an emission limitation of 12.4 lbs/hr is BART. EPA agrees with this determination.

TASCO appealed to Idaho that the company could not afford the identified BART (Spray Dry FGD and LNB/OFA) and remain viable. At Idaho's request, EPA conducted an evaluation and analysis of TASCO's financial status and health. Based on this evaluation, EPA determined TASCO could afford implementation of the identified BART. EPA also concluded that TASCO could not reasonably afford the more costly control options of Wet FGD for SO2control and SCR for NOXcontrol.SeeIdaho Regional Haze Plan 10/8/10, appendix F, page F-317: Executive Summary excerpt from: An Affordability Analysis of The Amalgamated Sugar Company LLC's Affordability Claim with respect to the Best Available Retrofit Technology (BART) for the Riley Boiler at the Nampa, Idaho facility, February 12, 2010.

Based on EPA's review and evaluation we propose to approve the BART determination for TASCO.

Monsanto/P4 Production is a thermal process elemental phosphorus production facility. Idaho identified two BART units at the facility: The #5 Rotary Kiln and the #9 Furnace Exhaust and carbon monoxide Flare. Phosphate ore is processed in a high temperature electric arc furnace in a reducing atmosphere produced by the introduction of coke. Carbon monoxide gas from the arc furnace is used as fuel for the #5 Rotary Kiln. Excess carbon monoxide is flared to the atmosphere.

Idaho concluded, as discussed below, that the following emissions limit is BART for #5 Rotary Kiln:

Idaho determined, as discussed below, that there are no technically feasible NOXcontrol options for the #9 Furnace Exhaust and CO Flare.

Idaho conducted a thorough SO2BART evaluation for the #5 Rotary Kiln. The #5 Rotary Kiln heats phosphate ore to remove volatile impurities and harden ore nodules for further handling and introduction into the electric arc furnace. Carbon monoxide from the furnace off gases is the primary fuel with coal and natural gas as backup. Existing federally enforceable process and air pollution controls for the kiln are included in the facility's current Tier I (title V) operating permit No. T1-2009.0121, issued July 24, 2009. These requirements consist of:

• A limit on the sulfur content of the coal to no more than 1% by weight.

• A dust knockout chamber, spray tower, four parallel Hydro-Sonic©scrubbers, and four parallel cyclonic separators. The tandem nozzle fixed-throat free-jet scrubbers are required for control of PM/PM10 and polonium-210 emissions (a radionuclide) found in the phosphate ore.

The initial SO2control device is a settling chamber where large particles are removed. The exhaust flow is then routed to a concrete tower where it passes through water sprays to remove soluble gases and particulate matter. The exhaust flow is then routed to four parallel Hydro-Sonic©scrubbers for removal of submicron particles and entrained particle-laden water. The exhaust gases exit the scrubbers and pass through cyclonic separators and fans prior to exiting to the atmosphere through four stacks.

A lime concentrated dual alkali (LCDA) scrubber to control SO2emissions from the kiln was installed by Monsanto/P4 in 2005. The LCDA scrubbing process uses the existing Hydro-Sonic©scrubbers to absorb SO2with a solution of sodium salts comprised of sodium sulfite and bisulfite, the active absorbent species. Some sodium sulfate will also be produced. The spent solution of sodium sulfite/bisulfite/sulfate is continuously withdrawn to a dual-reactor system, where it is treated with hydrated lime. The lime regenerates the scrubbing solution and precipitates calcium sulfite/sulfate solids. The solids are removed from the system through thickening and filtration, and the regenerated solution is returned to the scrubber as feed material.

Additional SO2controls would be add-on (or retrofit) control to the existing control technology. Idaho analyzed the technically feasible retrofit control technologies for SO2emissions from the #5 Rotary Kiln. These alternative controls included: Wet FGD with lime and amine scrubbing.

Idaho evaluated the control efficiencies of these feasible technologies and found that both are capable of 97% control. As determined by Idaho, the costs of these controls are $466/ton for wet FGD and $881/ton for amine scrubbing.Seeappendix F, Table 5.1.1 (page 338) of the Idaho Regional Haze SIP. The energy impacts were evaluated and both options require more energy, but not disproportionate amounts. Neither of the available options constitute significant adverse non-air environmental effects. The #5 Rotary Kiln is expected to remain in operation for the life of the P4 facility.

Idaho selected wet-FGD with lime as the most suitable control technology based on the fact that control efficiency is comparable to amine scrubbing, has a lower cost, and is a proven mature technology. Idaho determined that 143 lb/hr is BART for the #5 Rotary Kiln. EPA agrees with this determination.

Idaho searched EPA's RACT/BACT/LAER clearinghouse (RBLC) for potential NOXcontrol options. The available options include: Combustion control, LNB, and SNCR.

Idaho determined that NOXcombustion controls are technically infeasible due to the temperatures required for sintering the phosphate ore and the change in temperature resulting from combustion control. Thermal NOXis formed at approximately 1300 °C (2372 °F) and above. The minimum temperature at which sintering of the phosphate ore occurs is 1400 °C to 1459 °C (2552 °F to 2658 °F). Therefore, it is not feasible to lower the temperature in the kiln to minimize or prevent the formation of thermal NOXand still sinter the ore.

Likewise, LNB was eliminated because the temperature required for a low NOXburner is too low to sinter the phosphate ore and form the required nodules. Sintering of the ore takes place at 1400 °C to 1459 °C, and low NOXburners must be controlled to operate at temperatures well below 1300 °C (2372°F), the temperature at which thermal NOXis formed.

SNCR was eliminated because the kiln off gas temperature at the exit of the kiln and prior to the existing Hydro-Sonic©particulate control is too low for operation of SNCR.

EPA agrees that there are no technically feasible NOXcontrol options for the #5 Rotary Kiln. The current emission limitation is 3750.7 ton/yr.

As described above, the #5 Rotary Kiln emissions are currently controlled with Hydro-Sonic©high energy venture scrubbers to control particulate matter. The Tier I operating permit includes a federally enforceable limit of 89.4 tons of PM/year.

Idaho conducted a brief evaluation of alternative PM control technologies but concluded, and EPA agrees, that there are no other technically feasible alternative control technologies with greater control efficiency than the existing Hydro-Sonic©high energy venturi scrubbers. Thus, the existing PM emission limit of 98.4 t/yr constitutes BART for this source.

Ore nodules from the #5 Rotary Kiln are combined with coke and quartzite and heated in the #9 electric arc furnace. The resulting thermal process releases elemental phosphorus (as a gas), carbon monoxide and entrained particulate matter. The furnace off gas is cooled to liquefy and collect the elemental phosphorus and the remaining gases are ducted to the #5 Rotary Kiln as fuel. Excess furnace off gas is treated in a thermal oxidizer and flared to the atmosphere. The source of concern is the furnace flare, since most of the furnace gases fuel the #5 Rotary kiln and are controlled by technology applied to that source.

A review of the RBLC Clearinghouse revealed there are no available control technologies for particulate matter, SO2, or NOXfor the #9 Furnace CO Flare. The RBLC Clearinghouse flare control options are exclusively for organic fuels and are not applicable for carbon monoxide fueled flares.

EPA agrees with Idaho's conclusion because there are no known retrofit control technologies that are technically feasible for the Monsanto/P4 #9 Furnace Exhaust and CO Flare. EPA is proposing to approve the BART determination for Monsanto/P4.

The Monsanto/P4 BART emission limits are contained in federally enforceable Tier I and Tier II operating permits. The BART requirements are contained in the Tier II operating permit, T2-2009.0109, issued November 17, 2009.

Table 10-14 of the SIP submittal presents the visibility improvement at several Class I areas in Idaho and surrounding states from implementation of BART at TASCO Nampa and Monsanto/P4. The metric used to measure improvement is the number of days (or reduction in number of days) with a deciview impact larger than 0.5 dv from each BART facility over a three year period.

The greatest improvement from BART controls at Monsanto/P4 is seen in the Teton Wilderness Area in Wyoming. Idaho estimated a reduction in the number of days with visibility impairment greater than 0.5 dv from Monsanto/P4 of 50 days over a three year period. Table 10-15 of the SIP submittal presents the visibility improvement at several other Class I areas in Idaho and surrounding states from implementation of BART at the Monsanto/P4 facility in Soda Springs.

The greatest improvement from BART controls at TASCO Nampa is seen in the Eagle Cap Wilderness Area in Oregon, with a reduction in days with greater than 0.5 dv of 127 days over a three year period.

Idaho included in the SIP submittal, federally enforceable Tier I and Tier II operating permits for TASCO Nampa and Monsanto/P4 which contain the necessary emission limitations representing BART and schedules for compliance.

In its October 25, 2010, transmittal letter, Idaho also indicated that it intends the Regional Haze SIP submittal also to be a SIP submission for purposes of the visibility requirements of section 110(a)(2)(D)(i) with respect to the 1997 8-hour ozone and 1997 PM2.5 NAAQS. In the submission, Idaho stated that: “Idaho's Regional Haze SIP also satisfies the Clean Air Act Interstate Transport requirements of section 110(a)(2)(D)(ii). Chapters 2 and 13 and the associated appendix for chapter 2 describe Idaho's consultation with other states through the WRAP. Chapter 9 identifies Idaho's contribution and future visibility improvements at mandatory Class I Federal Areas impacted by Idaho's emissions.” In its SIP transmittal letter, the state referred to section 110(a)(2)(D)(ii), but from the context it is clear that the state intended this reference to be to section 110(a)(2)(D)(i), and more particularly to section 110(a)(2)(D)(i)(II).

Section 110(a)(2)(D)(i)(II) of the Act requires SIP revisions to “contain” adequate provisions * * * prohibiting * * * any source or other types of emission activity within the State from emitting any air pollutant in amounts which will * * * interfere with measures required to be included in the applicable implementation plan for any other State * * * to protect visibility.” EPA is proposing to find that the SIP submitted by Idaho to address regional haze contains adequate provisions to meet the “good neighbor” provisions of section 110(a)(2)(D)(i)(II) with respect to visibility.

As an initial matter, EPA notes that section 110(a)(2)(D)(i)(II) does not explicitly specify how EPA should ascertain whether a state's SIP contains adequate provisions to prevent emissions from sources in that state from interfering with measures required in another state to protect visibility. Thus, the statute is ambiguous on its face, and EPA must interpret that provision.

Our 2006 Guidance recommended that a state could meet the visibility prong of the transport requirements for section 110(a)(2)(D)(i)(II) by submission of the regional haze SIP, due in December 2007. EPA's reasoning was that the development of the regional haze SIPs was intended to occur in a collaborative environment among the states, and that through this process states would coordinate on emissions controls to protect visibility on an interstate basis. In fact, in developing their respective reasonable progress goals, WRAP states consulted with each other through the WRAP's work groups. As a result of this process, the common understanding was that each state would take action to achieve the emissions reductions relied upon by other states in their reasonable progress demonstrations under the RHR. This interpretation is consistent with the requirement in the regional haze rule that a state participating in a regional planning process must include “all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process.” 40 CFR 51.308(d)(3)(ii).

We believe that with approval of the portions of the Idaho RH SIP that we are proposing to take action on today, Idaho's SIP will also contain adequate provisions to prevent interstate transport that would interfere with the measures required in other states toprotect visibility. Chapter 13 of the Idaho SIP submittal explains the consultation process followed by Idaho and its neighboring states to meet the requirements in the regional haze rule to address the interstate transport of visibility impairing pollutants and the outcome of that process. Section 13.2.3 indicates that Idaho and neighboring states agreed that “no major contributions were identified that supported developing new interstate strategies, mitigation measures, or emissions reductions obligations,” and that each state could achieve its share of emission reductions through the implementation of BART and other existing measures in state regional haze plans. The state agreed that future consultation would address any new strategies or measures needed. The measures addressing BART in the Idaho SIP submittal accordingly would appear to be adequate to prevent emissions from source in Idaho from interfering with the measures required to be in the regional haze SIPs of its neighbors.

This conclusion is consistent with the analysis conducted by the WRAP, an analysis that provides an appropriate means for further evaluating whether emissions from sources in a state are interfering with the visibility programs of other states, as contemplated in section 110(a)(2)(D)(i)(II). As described below, EPA's evaluation shows that the BART measures of the Regional Haze SIP submittal, that we are proposing to approve today, are generally consistent with the emissions reductions assumptions of the WRAP modeling from Idaho sources. Accordingly, EPA is proposing to approve Idaho's SIP as ensuring that emissions from Idaho do not interfere with the reasonable progress goals of other states.

In developing their visibility projections using photochemical grid modeling, the WRAP states assumed a certain level of emissions from sources within Idaho. The visibility projection modeling was in turn used by the states to establish their own reasonable progress goals. We have reviewed the WRAP photochemical modeling emissions projections used in the demonstration of reasonable progress towards natural visibility conditions and compared them to the emissions limits that will result from the imposition of BART on sources in Idaho. We have concluded that with the emissions reductions achieved by these measures, the emissions from Idaho sources in the projected inventory for 2018 (which included both reductions and increases) will be below that assumed in the WRAP analysis. In addition, EPA notes that these projections also included estimated emissions from a new coal fired power plant to be located in Jerome, Idaho. The Governor of Idaho subsequently issued a ban on the construction of new coal fired power plants that is still in effect. Thus, EPA anticipates that the actual emissions in 2018 may be significantly less than the emissions used in modeling 2018 conditions because the Jerome, Idaho facility will likely not be constructed during the time period covered by the Regional Haze SIP.

As a result of the foregoing determination, EPA is proposing to find that the Idaho Regional Haze SIP submission contains the emission reductions needed to achieve Idaho's share of emission reductions agreed upon through the regional planning process. As reflected in its Regional Haze SIP submittal, Idaho committed to achieve these emission reductions to address impacts on visibility on Class I areas in surrounding states. The portions of the Idaho Regional Haze SIP that we are proposing to approve ensure that emissions from Idaho will not interfere with the reasonable progress goals for neighboring state's Class I areas. EPA is accordingly proposing to find that these emission reductions also meet the requirements of section 110(a)(2)(D)(i)(II) of the Act with respect to the visibility prong for the 1997 8-hour ozone and 1997 PM2.5 NAAQS.

EPA is proposing to approve portions of the Idaho Regional Haze plan, submitted on October 25, 2010, as meeting the requirements set forth in section 169A of the Act and in 40 CFR 51.308(e) regarding BART. EPA is also proposing to approve the Idaho submittal as meeting the requirements of 51.308(d)(2) and (4)(v) regarding the calculation of baseline and natural conditions for Craters of the Moon National Monument, Sawtooth Wilderness Area, and Selway-bitterroot Wilderness, and the statewide inventory of emissions of pollutants that are reasonably anticipated to cause or contribute to visibility impairment in any mandatory Class I Federal Area. In addition, EPA is proposing to find that the BART measures in the Idaho Regional Haze plan meet the requirements of section 110(a)(D)(ii)(II) of the CAA with respect to the 1997 8-hour ozone and 1997 PM2.5 NAAQS.

Idaho has not demonstrated authority to implement and enforce IDAPA chapter 58 within “Indian Country” as defined in 18 U.S.C. 1151.11 Therefore, EPA proposes that this SIP approval not extend to “Indian Country” in Idaho.SeeCAA sections 110(a)(2)(A) (SIP shall include enforceable emission limits), 110(a)(2)(E)(i) (State must have adequate authority under State law to carry out SIP), and 172(c)(6) (nonattainment SIPs shall include enforceable emission limits). This is consistent with EPA's previous approval of Idaho's prevention of significant deterioration (PSD) program, in which EPA specifically disapproved the program for sources within Indian Reservations in Idaho because the State had not shown it had authority to regulate such sources.See40 CFR 52.683(b). It is also consistent with EPA's approval of Idaho's title V air operating permits program.See61 FR 64622, 64623 (December 6, 1996) (interim approval does not extend to Indian Country); 66 FR 50574, 50575 (October 4, 2001) (full approval does not extend to Indian Country).

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, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisionsof the Paperwork Reduction Act (44 U.S.C. 3501et 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. 601et 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 EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.