This proposal is issued under Marketing Agreement No. 97 and Order No. 948, both as amended (7 CFR part 948), regulating the handling of Irish potatoes grown in Colorado, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Order 12866.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This proposal invites comments on revisions to the size requirements currently prescribed under the order. This proposed rule would revise the size requirements for small U.S. No. 1 grade potatoes handled under the Colorado Area 3 handling regulations. The rule would modify the current size requirements to establish allowable size ranges for potatoes that measure less than 17/8inches. This rule would allow potatoes that measure3/4-inch minimum diameter to 17/8inches maximum diameter to be handled if such potatoes otherwise meet the requirements of the U.S. No. 1 grade. In addition, Size B potatoes (11/2inches minimum diameter to 21/4inches maximum diameter) would also be allowed to be handled if they otherwise meet the U.S. No. 1 grade requirements. The size requirements for U.S. No. 2 and better grade potatoes that are 17/8inches minimum diameter and larger would not be affected by this proposed change. The rule was unanimously recommended by the Committee at a meeting on May 12, 2011. The proposed changes are expected to enhance orderly marketing conditions and increase returns for producers and handlers.

Section 948.22 authorizes the issuance of grade, size, quality, maturity, pack, and container regulations for potatoes grown in the production area. Section 948.21 further authorizes the modification, suspension, or termination of requirements issued pursuant to § 948.22.

Section 948.40 provides that whenever the handling of potatoes is regulated pursuant to §§ 948.20 through 948.24, such potatoes must be inspected by the Federal-State Inspection Service, and certified as meeting the applicable requirements of such regulations.

Under the order, the State of Colorado is divided into three separate regulatory areas for marketing order purposes. Area No. 1, commonly known as the Western Slope, includes and consists of thecounties of Routt, Eagle, Pitkin, Gunnison, Hinsdale, La Plata, and all counties west thereof; Area No. 2, commonly known as the San Luis Valley, includes and consists of the counties of Saguache, Huerfano, Las Animas, Mineral, Archuleta, and all counties south thereof; and Area No. 3 includes and consists of all the remaining counties in the State of Colorado which are not included in Area No. 1 or Area No. 2. The order currently regulates the handling of potatoes grown in Areas No. 2 and No. 3 only; regulation for Area No. 1 is currently not active.

Grade, size, and maturity regulations specific to the handling of Colorado potatoes grown in Area No. 3 are contained in § 948.387 of the order's administrative rules and regulations. Section 948.387(a) currently requires that all varieties of potatoes handled under the order must be U.S. No. 2 or better grade and 17/8inches minimum diameter or 4 ounces minimum weight, except that potatoes that meet the requirements of the U.S. No. 1 grade may be3/4-inch minimum diameter.

The Committee met on May 12, 2011, to discuss revising the size requirements in the handling regulations. As a result of the deliberations, the Committee unanimously recommended modifying the size requirements for potatoes that meet the U.S. No. 1 grade. Specifically, the Committee recommended establishing allowable size ranges for small size (under 17/8inches in diameter) U.S. No. 1 grade and better potatoes. Two allowable size ranges,3/4-inch minimum diameter to 17/8inches maximum diameter and Size B (11/2inches minimum diameter to 21/4inches maximum diameter), would be established for potatoes that otherwise meet or exceed the minimum requirements of the U.S. No. 1 grade standard. The proposed allowable size ranges would replace the current3/4-inch minimum diameter size requirement allowance now in effect.

The proposed revision would not prohibit the handling of any of the small size potatoes that are currently allowed to be handled under the order. All potatoes that measure3/4-inch minimum diameter and larger and meet the requirements of the U.S. No. 1 grade could continue to be handled under the order. However, in the future, such small potatoes would be required to be handled subject to the new size requirements, with like size potatoes packed into certain size profiles. The handling of all other potatoes currently permitted under the order would continue without change, subject to the U.S. No. 2 or better, 17/8inches minimum diameter size or 4 ounces minimum weight requirements.

The Committee has observed that, in recent years, consumer demand has been increasing for smaller size potatoes and that those size potatoes often command premium prices. The Committee previously responded to this trend by modifying the size requirements in the handling regulations to allow for the handling of3/4-inch minimum diameter and larger size potatoes, if the potatoes otherwise meet the requirements of the U.S. No. 1 grade. However, the current3/4-inch minimum size requirement has no other parameters associated with it and allows for the commingling of small size potatoes (under 17/8inches in diameter) with larger size potatoes (over 17/8inches in diameter).

The Committee reiterated that quality assurance is important to the industry and to consumers. Providing consistent, high quality potatoes is necessary to maintain consumer confidence. The potential for mixing small size potatoes with larger size potatoes in the same container is perceived by the Committee as being contrary to the goals of maintaining orderly marketing conditions and ensuring that only consistent, high quality potatoes from the production area enter the market. As such, the Committee felt that implementing the proposed revisions to the size requirements would help to maintain the consistency and quality of the product while still allowing the industry the maneuverability to respond to changing consumer preferences.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

Based on Committee data, there are eight producers (the majority of whom are also handlers) in the regulated area and eight handlers (the majority of whom are also producers) subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those having annual receipts of less than $7,000,000.

According to the Committee, 981,609 hundredweight of Colorado Area No. 3 potatoes were produced for the fresh market during the 2009-2010 season. Based on National Agricultural Statistics Service (NASS) data, the average producer price for Colorado summer potatoes for that season was $6.90 per hundredweight. The average annual producer revenue for the eight Colorado Area No. 3 potato producers is therefore calculated to be approximately $846,637. Using Committee data regarding each individual handler's total shipments during the 2009-2010 fiscal period and a Committee estimated average f.o.b. price for 2010 of $9.10 per hundredweight ($6.90 per hundredweight producer price plus estimated packing and handling costs of $2.20 per hundredweight), none of the Colorado Area No. 3 potato handlers ship over $7,000,000 worth of potatoes. Thus, all of the handlers and many of the producers of Colorado Area No. 3 potatoes may be classified as small entities.

This rule would revise the current size requirements contained in the order's handling regulations. The rule would revise the size requirements to establish two allowable size ranges,3/4-inch minimum to 17/8inches maximum diameter and Size B, if such potatoes otherwise meet the requirements of the U.S. No. 1 grade standard. The revisions would promote orderly marketing by ensuring that only potatoes of a similar size profile are shipped in the same container.

The authority for regulating grade and size is provided in § 948.22 of the order. Section 948.387(a) of the order's administrative rules and regulations prescribes the applicable size requirements.

This rule is expected to have a beneficial impact on handlers and producers by maintaining the superior reputation of the industry and ensuring that only consistent, high quality potatoes are shipped from the production area. There should be no extra cost to producers or handlers as a result of the proposed changes because current harvesting and handling methods can accommodate the sorting of these smaller potatoes. The Committee believes that this revision should translate into greater returns for handlers and producers over time.

Neither NASS nor the Committee compiles statistics relating to theproduction of potatoes measuring less than 17/8inches in diameter. The Committee has relied on information provided by producers and handlers familiar with the small potato market for its recommendation.

As small potatoes have grown in popularity with consumers, high quality potatoes from Colorado have been in demand. The Committee believes that modifying the size requirements for such small potatoes would maintain their consistency and increase their quality reputation in the market. The proposed changes are expected to increase sales of Colorado potatoes and to benefit the Colorado potato industry. The benefits of this rule are not expected to be disproportionately greater or lesser for small entities than for large entities.

The Committee discussed alternatives to this recommendation, including taking no action on the matter. One alternative discussed was to use other size ranges other than the ranges proposed. The Committee believed that the size ranges proposed offered the best compromise between regulatory control and accommodation for the marketing needs of the handlers. Another alternative was to establish just one3/4-inch to 17/8inches size range for small potatoes. However, that alternative was rejected because it would not have accommodated the mid-size range potatoes that some handlers prefer to ship. Thus, the Committee unanimously agreed that their recommendation reflected the best alternative available to achieve the desired result.

In accordance with the Paperwork Reduction Act of 1995, (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0178. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This action would not impose any additional reporting or recordkeeping requirements on either small or large potato handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule.

AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

In addition, the Committee's meeting was widely publicized throughout the potato industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the May 12, 2011, meeting was a public meeting and all entities, both large and small, were able to express their views on this issue. Finally, interested persons are invited to submit comments on this proposed rule, including the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:http://www.ams.usda.gov/MarketingOrdersSmallBusinessGuide.Any questions about the compliance guide should be sent to Laurel May at the previously mentioned address in theFOR FURTHER INFORMATION CONTACTsection.

A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments timely received will be considered before a final determination is made on this matter.

For the reasons set forth in the preamble, 7 CFR part 948 is proposed to be amended as follows:

This proposed rule is issued pursuant to the Dairy Production Stabilization Act (Dairy Act) of 1983 [7 U.S.C. 4501-4514], as amended.

The Office of Management and Budget has waived the review process required by Executive Order 12866 for this action.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is not intended to have a retroactive effect. If adopted, nothing in this rule would preempt or supersede any other program relating to dairy product promotion organized and operated under the laws of the United States or any State.

The Dairy Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 4509 of the Dairy Act, any person subject to the Dairy Order may file with the Secretary a petition stating that the Dairy Order, any provision of the Dairy Order, or any obligation imposed in connection with the Dairy Order is not in accordance with the law and request a modification of the Dairy Order or to be exempted from the Dairy Order. Such person is afforded the opportunity for a hearing on the petition. After a hearing, the Secretary would rule on the petition. The Dairy Act provides that the district court of the United States in any district in which the person is an inhabitant or has his principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided a complaint is filed not later than 20 days after the date of the entry of the ruling.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), the Agricultural Marketing Service has considered the economic impact of this action on small entities and has certified that this proposed rule will not have a significant economic impact on a substantial number of small entities. The purpose of the Regulatory Flexibility Act is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened.

The Dairy Production Stabilization Act of 1983 authorizes a national program for dairy product promotion, research and nutrition education. Congress found that it is in the public interest to authorize the establishment of an orderly procedure for financing (through assessments on all milk produced in the United States for commercial use and on imported dairy products) and carrying out a coordinated program of promotion designed to strengthen the dairy industry's position in the marketplace and to maintain and expand domestic and foreign markets and uses for fluid milk and dairy products.

The Small Business Administration [13 CFR 121.201] defines small dairy producers as those having annual receipts of not more than $750,000 annually. Most of the producers subject to the provisions of the Dairy Order are considered small entities.

The proposed rule would amend the Dairy Order by modifying the number of National Dairy Promotion and Research Board (Dairy Board) members in eight regions, merge Region 8 and Region 10, merge Region 12 and Region 13, and apportion Idaho as a separate region. The total number of domestic Dairy Board members would remain the same at 36 and the total number of regions would be reduced from 13 to 12. This modification was requested by the Dairy Board, which administers the Dairy Order, to better reflect the geographic distribution of milk production in the United States.

The Dairy Order is administered by a 38-member Dairy Board, 36 members representing 13 geographic regions within the United States and 2 representing importers. The Dairy Order provides in section 1150.131 that the Dairy Board shall review the geographic distribution of milk production throughout the United States and, if warranted, shall recommend to the Secretary a reapportionment of the regions and/or modification of the number of members from the regions in order to better reflect the geographic distribution of milk production volume in the United States. The Dairy Board is required to conduct the review at least every 5 years and not more than every 3 years. The Dairy Board was last modified in 2008 based on 2007 milk production.

Based on a review of the 2010 geographic distribution of milk production, the Dairy Board has concluded that the number of Dairy Board members for eight regions should be changed. Additionally, the Dairy Board proposes to merge Region 8 and Region 10, merge Region 12 and Region 13, and apportion Idaho as a separate region. The Dairy Board was last modified in 2008 based on 2007 milk production.

The proposed amendment should not have a significant economic impact on persons subject to the Dairy Order. The proposed changes merely would allow representation of the Dairy Board to better reflect geographic milk production in the United States.

In accordance with the Office of Management and Budget (OMB) regulation [5 CFR part 1320] which implements the Paperwork Reduction Act of 1995 [44 U.S.C. chapter 35], the information collection requirements and record keeping provisions imposed by the Dairy Order have been previously approved by OMB and assigned OMB Control No. 0581-0093. No relevant Federal rules have been identified that duplicate, overlap, or conflict with this rule.

The Dairy Order is administered by a 38-member Dairy Board, 36 members representing 13 geographic regions within the United States and 2 representing importers. The Dairy Order provides in section 1150.131 that the Dairy Board shall review the geographic distribution of milk production volume throughout the United States and, if warranted, shall recommend to the Secretary a reapportionment of regions and/or modification of the number of producer members from regions in order to best reflect the geographic distribution of milk production in the United States. The Dairy Board is required to conduct the review at least every 5 years and not more than every 3 years. The Dairy Board was last modified in 2008 based on 2007 milk production.

Since the Dairy Board's last reapportionment, the Dairy Order was amended by a final rule [76 FR 14777, March 18, 2011] to implement an assessment on imported dairy products to fund promotion and research and to add importer representation, initially two members, to the Dairy Board. Additionally, the final rule amended the term “United States” in the Dairy Orderto mean all States, the District of Columbia, and the Commonwealth of Puerto Rico. Assessments on producers in these areas were effective April 1, 2011. These amendments to the Dairy Order were implemented pursuant to the Farm Security and Rural Investment Act of 2008 (2008 Farm Bill) (Pub. L. 110-246).

In order to complement the current geographical makeup of the existing regions of the Dairy Board, the final rule added these four new jurisdictions to the region of closest proximity. Alaska was added to Region 1, currently comprised of Oregon and Washington; Hawaii was added to Region 2, currently California; and the District of Columbia and the Commonwealth of Puerto Rico were added to Region 10, currently comprised of Florida, Georgia, North Carolina, South Carolina and Virginia. These regional modifications were effective March 18, 2011, and are reflected in this proposed rule.

The final rule also modified the language in section 1150.131 of the Dairy Order to remove the specific formula for calculating the factor of pounds of milk per member, which divided total pounds of milk produced by 36, as the Dairy Board is now comprised of 38 members (36 domestic producers and 2 importer representatives). While the Dairy Order no longer specifies the procedure for calculating the factor of pounds of milk per member, for the purposes of the current reapportionment analysis, the procedure will remain the same.

The final rule also added new language that requires the Secretary to review the average volume of imports of dairy products into the United States and, if warranted, reapportion the importer representation on the Dairy Board to reflect the proportional shares of the United States market served by domestic production and imported dairy products. This review will take place at least once every 3 years, after the initial appointment of importer representatives on the Dairy Board.

The last reapportionment, conducted in 2008, was calculated by using 2007 milk production data and dividing by 36 to determine a factor of pounds of milk represented by each domestic Dairy Board member. The resulting factor was then divided into the pounds of milk produced in each region to determine the number of Dairy Board members for each region. Accordingly, the same process using 2010 milk production data was employed for the current reapportionment calculations. Table 1 summarizes by region the volume of milk production distribution for 2010, the percentage of total milk production and the current number of Dairy Board seats per region.

In 2010, total milk production was 193,468 million pounds and each of the Dairy Board members would represent 5,374 million pounds of milk. For 2007, total milk production was 185,558 million pounds of milk and each of the Dairy Board members represented 5,154 million pounds of milk.

Based on the 2010 milk production data, the Dairy Board proposes that member representation in Region 1 (Alaska, Oregon, and Washington) be increased by one member. Milk production in Region 1 increased to 8,307 million pounds in 2010, up from 7,764 million pounds in 2007, indicating two Dairy Board members (8,307 divided by 5,374 = 1.545) compared to one Dairy Board member based on 2007 milk production data.

Milk production in Region 2 (California and Hawaii) decreased from 40,683 million pounds in 2007 to 40,410 million pounds in 2010. The Dairy Board proposes that seven Dairy Board members (40,410 divided by 5,374 = 7.519) represent Region 2, compared to eight Dairy Board members based on 2007 milk production data.

Milk production in Region 3 (Arizona, Colorado, Idaho, Montana, Nevada, Utah, and Wyoming) increased from 21,212 million pounds in 2007 to 22,592 million pounds in 2010. Specifically, in Idaho, milk production increased from 10,905 million pounds in 2007 to 12,779 pounds in 2010 and represents more than half of the production of Region 3. Due to the increase in Idaho production, the Dairy Board proposes apportioning Idaho as its own region with two Dairy Board members.

Milk production in Region 8 (Alabama, Kentucky, Louisiana, Mississippi, and Tennessee) decreased from 3,119 million pounds in 2007 to 2,624 million pounds in 2010. The Dairy Board concluded that Region 8 no longer supports one Dairy Board member (2,624 divided by 5,374 = 0.488) and proposes to merge Region 8 into Region 10 (District of Columbia, Florida, Georgia, North Carolina, Puerto Rico, South Carolina, and Virginia) to create a new region with two Dairy Board members.

Similarly, milk production in Region 13 (Connecticut, Maine, Massachusetts,New Hampshire, Rhode Island, and Vermont) decreased from 4,046 million pounds in 2007 to 4,036 million pounds in 2010. The Dairy Board concluded that Region 13 no longer supports one Dairy Board member (4,036 divided by 5,374 = 0.751) and proposes to merge Region 13 into Region 12 (New York), creating a new region with three Dairy Board members.

Table 2 summarizes by region, the volume of milk production distribution for 2010, the percentage of total milk production and the proposed regions and States and proposed Dairy Board members.

A 15-day comment period is provided for interested persons to comment on this proposed rule. Twelve terms of existing Dairy Board members will expire on October 31, 2011. Thus a 15-day comment period is provided to provide for a timely appointment of new Dairy Board members based on the current geographic distribution of milk production in the United States.

For the reasons set forth in the preamble, it is proposed that 7 CFR part 1150 be amended as follows:

Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web sitehttp://www.regulations.gov.Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.

You can access publicly available documents related to this notice using the following methods:

•NRC's Public Document Room (PDR):The public may examine and have copied, for a fee, publicly available documents at the NRC's PDR, O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

•NRC's Agencywide Documents Access and Management System (ADAMS):Publicly available documents created or received at the NRC are available online in the NRC Library athttp://www.nrc.gov/reading-rm/adams.html.From this page, the public can gain entry into ADAMS, which provides text and image files of the NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail topdr.resource@nrc.gov.

•Federal rulemaking Web site:Public comments and supporting materials related to this proposed rule can be found athttp://www.regulations.govby searching on Docket ID NRC-2009-0279.

Regulations issued by the NRC are found in Chapter I of Title 10, “Energy,” of the Code of Federal Regulations (10 CFR). Chapter I is divided into Parts 1 through 199, and contains requirements that are binding for all individuals and entities that possess, use, or store nuclear materials or operate nuclear facilities under the NRC's jurisdiction. Of these, the regulations that are most relevant to the subject of this notice are contained in 10 CFR part 20, “Standards for Protection against Radiation.” Through the existing compatibility criteria, the NRC Agreement States have certain requirements that are essentially identical to those contained in 10 CFR part 20 for their licensees. Additional requirements, specific to particular uses or classes of facilities, are found in other portions of the NRC's regulations. For example, 10 CFR part 35, “Medical Use of Byproduct Material,” contains requirements related to the medical use of radioactive material, and 10 CFR part 50, “Domestic Licensing of Production and Utilization Facilities,” contains additional requirements for power reactors. Other portions of the NRC's regulations also may contain radiation protection criteria, and cross references to 10 CFR part 20.

The ICRP Publication 103 (December 2007) contains the latest in a series of revised ICRP recommendations for radiation protection. On December 18, 2008, the NRC staff provided a Policy Issue Notation Vote Paper (SECY-08-0197; ADAMS Accession No. ML083360582) to the Commission, which presented the regulatory options of moving, or not moving, towards a greater degree of alignment of the NRC regulatory framework with ICRP Publication 103. In a Staff Requirements Memorandum (SRM) dated April 2, 2009 (ADAMS Accession No. ML090920103), the Commission approved the staff's recommendation to begin engaging with stakeholders and interested parties to initiate development of the technical basis for possible revision of the NRC's radiation protection regulations, as appropriate and where scientifically justified, to achieve greater alignment with the recommendations in ICRP Publication 103.

This notice of solicitation of comment represents the third in a series of such requests. Previous notices were published in theFederal Registeron July 7, 2009 (74 FR 32198), and September 27, 2010 (75 FR 59160). In addition, the NRC staff held a series of facilitated public workshops in October and November 2010, to engage the views of a wide range of stakeholders on the key issues presented by the ICRP recommendations.

On April 21, 2011, the ICRP issued a statement on tissue reactions (seehttp://www.icrp.org/docs/ICRP%20Statement%20on%20Tissue%20Reactions.pdf) stating that it has reviewed recent epidemiological evidence suggesting that there are some tissue reaction effects, particularly those with very late manifestation, where threshold doses are or might be lower than previously considered. For the lens of the eye, the threshold in absorbed dose for radiation-induced cataract formation is now considered by the ICRP to be 0.50 Gy (50 rem). Consequently, for occupational exposure in planned exposure situations, the ICRP is now recommending a limit on equivalent dose for the lens of the eye of 20 mSv (2 rem) per year, averaged over defined periods of 5 years, with no single year exceeding 50 mSv (5 rem). The ICRP's recommended limits for dose for thelens of the eye are numerically equal to its current recommendation for the limit on effective dose, which is 20 mSv (2 rem) per year, averaged over 5 years, with no single year exceeding 50 mSv (5 rem).

The supporting information reviewed by the ICRP was provided for public consultation in December 2010 (http://www.icrp.org/docs/Tissue%20Reactions%20Report%20Draft%20for%20Consultation.pdf). This draft report will be revised in light of the comments received by the ICRP during the public consultation period, and is expected to become a final ICRP report towards the end of 2011.

The international radiation protection community is currently examining the issue of revising the dose limits for the lens of the eye. In particular, the International Atomic Energy Agency has specifically considered and is now incorporating, the new limits into the revision of the International Basic Safety Standards for Protection against Ionizing Radiation and for the Safety of Radiation Sources.

Protection of the eye against the effects of ionizing radiation is designed primarily to prevent the formation of cataracts. The sensitive part of the eye for this health effect is the lens, and radiation dose to the eye is defined as the lens dose equivalent (LDE) at a tissue depth of 0.3 cm (10 CFR 20.1003). Cataract formation falls under the class of radiation effects referred to as deterministic (or tissue reactions in current ICRP terminology). At doses above the threshold, the severity of cataract formation increases with dose, but the radiation-induced incidence below the threshold dose is believed to be essentially zero. Currently, 10 CFR part 20 limits annual occupational exposures to the lens of the eye to 150 mSv (15 rem) per year (10 CFR 20.1201).

The NRC is supplementing its standard rulemaking process by conducting enhanced public participatory activities before the initiation of any formal rulemaking process, to solicit early and active public input on major issues associated with radiation protection regulations. As a first step, the NRC has prepared an issues paper that describes issues and alternatives related to limits for the lens of the eye. The intent of this paper is to foster discussion about these issues and alternatives before a rulemaking to set standards would begin. The content of the issues paper is contained in Section IV of this document. The NRC will also utilize its rulemaking Web site to make the issues paper available to the public and to solicit public comments.

The NRC is soliciting comments on the items presented in the issues paper in Section IV of this notice. Comments may be submitted either in writing or electronically as indicated in theADDRESSESsection of this document.

In addition to inviting public comments on the issues presented in Section IV, the NRC is soliciting specific comments related to: (1) Quantitative and qualitative information on the costs and benefits resulting from consideration of the factors described in the issues paper; (2) operational data on radiation exposures and administrative control methods that might result in increased or reduced exposures when implementing the associated change in a dose limit; (3) whether the presented factors are appropriate; and (4) whether other factors should be identified and considered, including providing quantitative and qualitative information for these factors. The Commission believes that the stakeholders' comments will help to quantify the potential impact of these changes and will assist the NRC, as it continues to consider alternatives for the radiation protection framework.

The NRC does not plan to provide specific responses to the comments received during this solicitation. Based on the comments received, the NRC staff will prepare policy issues for Commission consideration on whether to proceed with the development of a proposed rule or take other regulatory action. If the Commission decides to proceed further with a proposed rulemaking, any proposed rule will be published in theFederal Registerfor public review and comment.

On April 21, 2011, the ICRP issued a statement on tissue reactions, indicating that it has now reviewed recent epidemiological evidence suggesting that there are some tissue reaction effects, particularly those with very late manifestation, where threshold doses are or might be lower than previously considered. For the lens of the eye, the threshold in absorbed dose for radiation-induced cataract formation is now considered to be 0.5 Gy (50 rem). Consequently, for occupational exposure in planned exposure situations, the ICRP is now recommending a limit on equivalent dose for the lens of the eye of 20 mSv (2 rem) per year, averaged over defined periods of 5 years, with no single year exceeding 50 mSv (5 rem).

To understand the magnitude of the doses incurred by the lens of the eye in the various industries regulated by the NRC, the NRC staff initially queried the Radiation Exposure Information and Reporting System (REIRS) database for occupational dose records over the past 16 years (1994-2010). Under 10 CFR 20.2206, seven NRC-licensed industry groups must report occupational radiation exposure data. These licensed industries are commercial nuclear power reactors; industrial radiographers; fuel processors (including uranium enrichment facilities), fabricators, and reprocessors; manufacturers and distributors of byproduct material; independent spent fuel storage installations; facilities for land disposal of low-level waste; and geological repositories for high-level waste. Currently, there are no NRC-licensed facilities for land disposal of low-level waste or geological repositories for high-level waste. Therefore, these licensee categories do not submit occupational radiation exposure reports to the REIRS database. Other categories of NRC licensees (e.g.,medical licensees) are not currently required to submit reports of occupational exposure. While Agreement State licensees are not required to provide reports to the NRC, some licensees within the industrial radiography and nuclear pharmacy categories have voluntarily submitted occupational radiation exposure reports to the REIRS database.

Annually, the NRC receives approximately 200,000 occupational radiation exposure reports to the REIRS database (NUREG-0713, “Occupational Radiation Exposure at Commercial Nuclear Power Reactors and Other Facilities” (ADAMS Accession No. ML110820543). The reports are generally submitted electronically as an NRC Form 5 record of occupational exposure for a monitoring period. The form includes fields to report deep dose equivalent (DDE), lens dose equivalent (LDE), committed effective dose equivalent (CEDE), total effective dose equivalent (TEDE), and shallow dose equivalent (SDE). For the purpose of this overview, the staff assumes that the reported DDE and LDE are taken from the same measurement, and that there is relatively infrequent direct measurement of LDE within the 200,000 records submitted annually.

In terms of the new ICRP recommendations for the lens of the eye, the staff focused on REIRS data for thepast 5 years (2006-2010) and found that current practices have resulted in upwards of 1,000 cases where a 20 mSv (2 rem) per year eye dose level was exceeded. None of these situations exceeded the current annual limit for the lens of the eye of 150 mSv (15 rem). The initial examination of REIRS data did not determine whether the same individual exceeded a 2 rem per year average over the 5-year period. The REIRS database did not contain a record where the deep dose equivalent exceeded a value of 50 mSv (5 rem) in a single year.

It can be concluded, based on this preliminary analysis, that current radiation protection practices would result in a considerable number of instances where dose to the lens of the eye exceeds 20 mSv (2 rem) per year. It should be noted that the reported TEDE and LDE values, above 20 mSv (2 rem) per year, are not necessarily associated with the same individuals each year. To obtain data on accumulated DDE for individuals, the NRC staff initially analyzed data for the past 16 years and found that no individual in any of the NRC-licensed industries reporting to REIRS, including individuals in those categories as reported by Agreement State licensees, has exceeded a cumulative exposure of 0.5 Sv (50 rem) during this period (1994-2010).

The information available to the NRC staff indicates that the majority of NRC-regulated workers are usually exposed to fairly uniform radiation fields. In this exposure environment, and without the use of shielding for portions of the body, the equivalent dose to the lens of the eye is typically similar to the TEDE. Therefore, measures to minimize radiation exposure, in general, will also result in a reduction in dose to the lens of the eye. Likewise, in many instances, an annual whole body dose that exceeds an annual level of 20 mSv (2 rem) would likely mean that the lens dose would also exceed 20 mSv (2 rem).

There are other types of licensed uses for which reporting of dose is not currently a requirement. For example, the NRC staff has been made aware of possible eye dose issues associated with licensees using depleted uranium in the fabrication of shielding, counterweights, etc. Further, some types of exposure, such as to machine-produced radiations (e.g.,x-rays), are not the subject of NRC jurisdiction, and thus exposures in these categories are not reported to the NRC. However, the occupational dose to individuals exposed to both NRC-licensed radioactive materials, as well as non-NRC-licensed sources (e.g.,x-rays), is regulated to the 10 CFR part 20 dose limits. Exposures to the lens of the eye may be particularly important in some of these fields, and others, such as medical interventional radiology and cardiology, which are subject to regulation by the States, but are not necessarily under NRC jurisdiction.

In situations where there may be a non-uniform radiation field, or where shielding reduces the exposure to significant portions of the body, the dose to the lens of the eye might be greater than the TEDE. In such circumstances, specific additional protection measures might be necessary to reduce exposure to the lens of the eye. The NRC staff understands that the use of leaded safety glasses has proven effective in significantly reducing dose to the lens of the eye from soft x-rays, and use of such glasses with side shields is effective in situations where there is significant scatter of low energy radiation, such as in interventional radiology and cardiology, where shielding is already provided for the torso to reduce the effective dose. The use of leaded safety glasses might not be effective for use by industrial radiographers, where the greater energies of the radiation make it difficult or impractical to provide significant shielding to the lens of the eye.

In considering possible changes, the NRC staff must consider the implications of the dose limits for the lens of the eye in connection with all of the other issues that have been previously discussed with stakeholders, including the implications of a change to the dose limit for TEDE, and the implications of strengthening or modifying the requirements for optimization analysis using planning values to ensure that exposures are As Low As Is Reasonably Achievable.

As in all regulatory proceedings, the NRC could pursue several possible options. The NRC staff has identified the following three options for initial consideration and assessment in considering a revision to associated regulations and regulatory guidance.

1. No change: Continue with the existing regulatory requirement to limit dose to the lens of the eye to 150 mSv (15 rem) per year.

2. Change the current requirements by adopting the ICRP- recommended dose values.

3. Change the current requirements to adopt a single, reduced dose limit for the lens of the eye. For example, a single limit of 50 mSv (5 rem) or 20 mSv (2 rem).

The NRC staff is seeking stakeholder input on the issues, implications, and options relating to possible changes to the NRC regulatory requirements to reflect the ICRP's recommendations for lowering the dose limit for the lens of the eye. The NRC is soliciting specific comments related to: (1) Quantitative and qualitative information on the costs and benefits resulting from consideration of the factors described in this issues paper, (2) operational data on radiation exposures and administrative control methods that might result in increased or reduced exposures in implementing the associated changes in a dose limit; (3) whether the presented factors are appropriate; and (4) whether other factors should be identified and considered, including providing quantitative and qualitative information for these factors. The following questions identify areas in which the NRC staff is seeking specific views and inputs. However, stakeholders are invited to identify and address other areas and implications not specifically mentioned here or in the issues paper.

1. To what extent has dose to the lens of the eye been an issue in the implementation of your radiation protection program, and would a change in the limits cause operational and administrative impacts? What other types of impacts would you foresee?

2. What types of specific administrative and monitoring methods would be available in your use of radiation or radioactive materials to reduce exposures to the lens of the eye, and what would be the costs and operational impacts of implementing such methods?

3. What might be the anticipated impacts of a rule change on recordkeeping and reporting?

4. Are there technological implementation issues, such as limits of detection as compared to currently used radiation monitoring methods, or availability of dosimetry, that would make adoption of the ICRP recommendations difficult or impractical in certain circumstances? If possible, please provide a typical example of such a circumstance.

5. How does the recommended limit to the lens of the eye influence your views on possible changes to the limits on TEDE, given that these two quantities are expected to be essentially the same for many exposure situations?

6. What alternatives to adoption of the new limits would you suggest in achieving the desired outcome of limiting exposure of the lens of the eye over the working lifetime of an employee?

7. What should be the relationship between the U.S. regulatory requirements and those adoptedinternationally? What impacts, either positive or negative, would result from an alignment of NRC regulatory requirements and guidance with international standards?

8. Should licensees be required to monitor and report LDE for foreign workers and report the values upon request? Are there other impacts (e.g.,operational, administrative, costs, etc.) that should be anticipated if the U.S. regulatory structure were to be different from that being used in other countries?

9. Are there any other NRC regulations and regulatory guidance that might need to be reviewed and revised as a result of ICRP recommendations in reducing the allowable dose to the lens of the eye?

10. How are licensees monitoring to demonstrate compliance with the existing dose limits for the lens of the eye?

In FR Doc. 2011-19959, appearing on page 48058, in theFederal Registerof Monday, August 8, 2011, the following correction is made:

1. On page 48062, in the first column, under “XIII. References,” the first reference is corrected to read “1.Geiger, D.R., “FY 2003 and 2004 Unit Costs for the Process of Medical Device Review,” September 2005,http://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/Overview/MedicalDeviceUserFeeandModernizationActMDUFMA/ucm109216.”

Section 238(c) of the National Housing Act (12 U.S.C. 1715z-3(c)) (Act) was added by the Housing and Community Development Act of 1977 (Pub. L. 95-128) to authorize HUD to insure mortgages executed in connection with the construction, repair, rehabilitation, or purchase of property located near any installation of the Armed Forces of the United States in federally impacted areas in which conditions are such that one or more of the applicable insuring requirements under another single-family mortgage insurance program cannot be met. In addition, insurance may only be provided under section 238(c) if: (1) HUD finds that the benefits to be derived from providing the insurance outweigh the risk of probable costs to the government; and (2) the Secretary of the Department of Defense certifies that there is no present intention to curtail substantially the personnel assigned or to be assigned to the installation. HUD is authorized to establish premiums and other charges to assure that the mortgage insurance program authorized under section 238(c) of the Act is actuarially sound, and to prescribe terms and conditions relating to the insurance found to be necessary and appropriate to the implementation of section 238(c). HUD's regulation implementing section 238(c) is codified at 24 CFR 203.43e. The regulation, promulgated in 1977, closely tracks the language of section 238(c) of the Act, and the section 238(c) mortgage insurance program is not subject to any regulatory requirements different from HUD's principal single-family mortgage insurance program authorized under section 203(b) of the Act.1

Although established to ensure the availability of affordable housing in military impacted areas, the program has been minimally utilized by eligible borrowers. Section 238(c) mortgage insurance has been available in only six counties throughout the country, three in Georgia and three in New York. From January 1, 2005, to June 30, 2010, FHA insured 4,542 single-family home loans in these six counties, and only 2,309 were endorsed under section 238(c) of the Act. The 2,309 loans endorsed since 2005 represent only .05 percent of all FHA-insured loans endorsed during that span.

The President's budget request for Fiscal Year (FY) 2011 acknowledged the underutilization of the section 238(c) program and advised that HUD would take action to halt the availability of the program in light of the significant underutilization. The FY 2011 budget request found athttp://www.gpoaccess.gov/usbudget/fy11/index.htmlstates the following:

Consistent with the President's budget request, HUD proposes to suspend the section 238(c) program and remove § 203.43e from its codified regulations. HUD's proposed removal of the regulations at § 203.43e is not inconsistent with suspension of the section 238(c) mortgage insurance program. As noted in Section I of this preamble, the regulatory language tracks the statutory language. As also noted earlier in this preamble, section 238(c) mortgage insurance operates in a comparable manner as HUD's primary single-family mortgage insurance. If HUD subsequently determines that there is a demand for this program and that military families would be better served by this program, HUD can reactivate the program on the basis of the statutory language and does not need a regulation to make insurance available under this program. If such a situation occurs, HUD would notify the public throughFederal Registernotice that the program has been activated, so that eligible borrowers would be able to inquire about the availability of insurance under this program from their lenders. HUD notes that the removal of the regulations at § 203.43e would have no impact on loans already endorsed for FHA insurance under the section 238(c) program.

The proposed suspension of this underutilized mortgage insurance program, and the proposed removal of the regulations at 24 CFR 203.43e, is not only consistent with the President's budget requests for FY 2011 and 2012, but with the President's Executive Order (EO) 13563, entitled “Improving Regulation and Regulatory Review,” signed by the President on January 18, 2011, and published on January 21, 2011, at 76 FR 3821. This EO requires executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” For the reasons discussed in the Background section of this preamble, HUD has determined that the underutilization of the section 238(c) mortgage insurance program renders the program and its regulations outmoded and HUD, therefore, proposes to suspend the program and remove the regulations.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.

The proposed rule would not modify or add any new regulatory burdens on FHA-approved mortgage lenders. Rather, the proposed rule would remove § 203.43e from HUD's regulations, in conformity to HUD's (and the Administration's) decision to no longer exercise its authority to insure mortgages under section 238(c) of the Act. As more fully discussed above in the preamble to this rule, the mortgage insurance authority provided by section 238(c) of the Act has been minimally sought by eligible borrowers and consequently minimally utilized by lenders and other small entities participating in the FHA programs. Further, as noted above, section 238(c) mortgage insurance operated in a manner comparable to FHA's mortgage insurance program under section 203(b)of the Act, HUD's primary single-family mortgage insurance program.

Accordingly, for the above reasons, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this rule will not have a significant effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in the preamble to this rule.

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule will not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This proposed rule does not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of UMRA.

This proposed rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

The Catalogue of Federal Domestic Assistance Number for the principal FHA single-family mortgage insurance program is 14.117.

Accordingly, for the reasons discussed in the preamble, HUD proposes to amend 24 CFR part 203 to read as follows:

Throughout this document, “we,” “us,” and “our” means EPA.

EPA is proposing to take several related actions pursuant to the Act for the BRNA moderate 1997 8-hour ozone nonattainment area, consisting of Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge Parishes in Louisiana. EPA is proposing to find that the BRNA has met the requirements for redesignation under section 107(d)(3)(E) of the Act, and is therefore proposing to approve a request from the State of Louisiana to redesignate the BRNA to attainment of the 1997 8-hour ozone standard. EPA is also proposing to approve, pursuant to section 175A of the Act, the area's 1997 8-hour ozone maintenance plan as a revision to the Louisiana SIP; to approve the plan's associated 2022 MVEB; to approve additional submissions to meet applicable VOC and NOXRACT requirements; and to approve a State Rule revision that establishes acontingency measure for the maintenance plan. In a separate rulemaking, EPA has finalized an action to terminate CAA section 185 penalty fee requirements for the 1-hour ozone standard. (July 7, 2011, 76 FR 39775). EPA is proposing to find that the BR area will satisfy all moderate area requirements for the 1997 8-hour ozone NAAQS and severe area 1-hour ozone anti-backsliding requirements applicable for purposes of the area's redesignation for the 1997 8-hour ozone standard once the CTG Rule Update is finalized. A fuller discussion of how the BRNA met these requirements is discussed in detail later in this document. The Technical Support Document (TSD), for this action also provides further information on how the BRNA area satisfies the 8-hour moderate area requirements and 1-hour severe area requirements for anti-backsliding purposes.

Based upon the above, EPA is proposing to approve the State of Louisiana's request, submitted on August 31, 2010, and supplemented on February 14, 2011, through the Louisiana Department of Environmental Quality (LDEQ), to redesignate the BRNA to attainment of the 1997 8-hour ozone standard.

Section 109 of the Act requires EPA to establish NAAQS for pollutants that “may reasonably be anticipated to endanger public health and welfare,” and to develop a primary and secondary standard for each NAAQS. The primary standard is designed to protect human health with an adequate margin of safety, and the secondary standard is designed to protect public welfare and the environment. EPA has set NAAQS for six common air pollutants, referred to as criteria pollutants: Carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. These standards present state and local governments with the minimum air quality levels they must meet to comply with the Act. Also, these standards provide information to residents of the United States about the air quality in their communities. A State's SIP addresses these requirements, as required by section 110 and other provisions of the Act. The SIP is a set of air pollution regulations, control strategies, other means or techniques, and technical analyses developed by the state, to ensure that the state meets the NAAQS.

Ozone, a gas composed of three oxygen atoms, at the ground level is generally not emitted directly by sources such as from a vehicle's exhaust or an industrial smokestack; rather, ground level ozone is produced by a chemical reaction between nitrogen oxides (NOX) and VOCs in the presence of sunlight and high ambient temperatures. NOXand VOCs are referred to as precursors of ozone. Motor vehicle exhaust and industrial emissions, gasoline vapors, and chemical solvents all contain NOXand VOCs. Urban areas tend to have high concentrations of ground-level ozone, but areas without significant industrial activity and with relatively low vehicular traffic are also subject to increased ozone levels because wind carries ozone and its precursors many miles from the sources. The Act establishes a process for air quality management through the NAAQS.

Repeated exposure to ozone pollution may cause lung damage. Even at very low concentrations, ground-level ozone triggers a variety of health problems including aggravated asthma, reduced lung capacity, and increased susceptibility to respiratory illnesses like pneumonia and bronchitis. It can also have detrimental effects on plants and ecosystems.

EPA first designated the Baton Rouge area as an ozone nonattainment area in 1978. 43 FR 8964, 8998 (March 3, 1978). The BR 1-hour ozone nonattainment area contains five parishes: East Baton Rouge; West Baton Rouge; Ascension; Iberville; and Livingston Parishes (40 CFR 81.319). In 1991, the BR area was designated nonattainment by operation of law and EPA classified the BR area as a “serious” ozone nonattainment area with a statutory attainment deadline of November 15, 1999. 56 FR 56694 (November 6, 1991). EPA approved the serious attainment demonstration SIP and its associated elements,e.g.,attainment Motor Vehicle Emissions Budgets (MVEB), the Reasonably Available Control Measures (RACM) demonstration, on July 2, 1999. See 64 FR 35930. The BR area, however, did not attain by the serious area statutory deadline of November 15, 1999. Before this deadline however, EPA had issued a guidance memorandum that allowed an area to retain its existing classification and receive a later attainment deadline if the EPA found that area met all of its existing classification requirements, approved a demonstration that the area would attain but for the transport from another area, and approved the attainment demonstration SIP with its associated elements. See EPA's “Guidance on Extension of Attainment Dates for Downwind Transport Areas” (the Extension Policy) (Richard D. Wilson, Acting Assistant Administrator for Air and Radiation) July 16, 1998. On October 2, 2002, EPA approved the revised attainment demonstration SIP and its associated elements, found the area met all of the serious area requirements, found there was transport from Texas affecting the BR area reaching attainment, and extended the attainment date for the BR area to November 15, 2005, without reclassifying the area from serious to severe, consistent with the policy. 67 FR 61786 (October 2, 2002).

On December 11, 2002, the U.S. Court of Appeals for the Fifth Circuit vacated EPA's attainment date extension policy, which had been applied to extend the 1-hour ozone attainment deadline for the Baton Rouge area without reclassifying the area.Sierra Clubv.EPA,314 F.3d 735 (5th Cir. 2002). Thereupon EPA on April 24, 2003, withdrew the action extending the attainment deadline for Baton Rouge, finalized its finding that the area failed to attain the 1-hour ozone standard by the serious area deadline, and reclassified the Baton Rouge area by operation of law, to severe nonattainment for the 1-hour ozone standard. See 68 FR 20077.1 As a result of its reclassification to severe, the State was required, among other things, to submit by June 23, 2004, a new 1-hour severe attainment demonstration SIP with an attainment date of November 15, 2005, with a 25 ton per year major stationary source threshold, additional reasonably available control technology (RACT) rules for sources subject to the new lower major stationary sourcethreshold, a new source review (NSR) offset requirement of at least 1.3 to 1, a rate of progress in emission reductions of ozone precursors of at least 3 percent of baseline emissions per year from November 15, 1999, until the attainment year, additional transportation control measures (TCMs) needed to offset growth in emissions due to growth in vehicle miles traveled (VMT), and a fee requirement for major stationary sources of volatile organic compounds (VOC) and nitrogen oxides (NOx) should the area fail to attain by 2005. The state was required to implement the EPA-triggered failure-to-attain contingency measures, submit a replacement for,i.e.,backfill for, the triggered failure-to-attain contingency measures, and to meet the remaining severe area requirements under section 182(d) of the Act. The State submitted severe area rules that addressed the 25 tpy and major source offset requirements,2 a VMT offset analysis, and a substitute contingency measure to replace the serious area contingency measure that was previously approved into the serious area attainment demonstration.

Upon reclassification to severe, under section 211(k) of the Act, the use of reformulated gasoline (RFG) was to be required in the BRNA one year after the effective date of the reclassification. The Louisiana Department of Environmental Quality, the City of Baton Rouge, and the Chamber of Greater Baton Rouge all formally requested a waiver and/or delay of implementation of the RFG requirement in the Baton Rouge severe ozone nonattainment area. EPA denied these requests. The City and the Chamber filed a Petition for Review in the U.S. Court of Appeals for the Fifth Circuit. The parties filed a joint motion for a voluntary remand to EPA to allow it to reconsider its decision in light of new information. On August 2, 2004, the Fifth Circuit Court of Appeals approved the joint motion, remanding the matter to EPA and staying the litigation and enforcement of the RFG requirement for the BRNA during the remand. The Court's stay of enforcement of the RFG requirement in the BRNA currently remains in effect.

On February 10, 2010 EPA determined that the BRNA area was attaining the 1-hour ozone standard based on quality-assured, certified data for the 2006-2008 ozone monitoring seasons. This determination suspended the 1-hour attainment demonstration requirement, 1-hour rate of progress requirement, the 1-hour contingency measures, and other SIP planning requirements related to attainment of the 1-hour ozone NAAQS. See 75 FR 6570. Lastly, on July 7, 2011, EPA finalized its action to terminate the CAA section 185 penalty fee requirements for the Baton Rouge 1-hour ozone standard. For a more detailed rationale, see our proposed and final actions at 76 FR 17368 and 76 FR 39775.

On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per million (ppm), which is more protective than the previous 1-hour ozone standard (62 FR 38855).3 The EPA published the 1997 8-hour ozone designations and classifications on April 30, 2004 (69 FR 23858). The BRNA was designated nonattainment and initially classified as marginal. The area includes five parishes (counties): Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge (these constitute the former 1-hour ozone nonattainment area). The effective date of designation for the 1997 8-hour ozone NAAQS was June 15, 2004. Under the marginal nonattainment designation, the latest attainment date for the BRNA was June 15, 2007. The BRNA did not monitor attainment of the 1997 8-hour ozone NAAQS by the June 15, 2007 deadline, based upon complete, quality-assured and certified ambient air quality monitoring data for the 2004-2006 ozone seasons.

Therefore, EPA determined that the BRNA had failed to attain the 1997 8-hour ozone standard by the applicable attainment deadline and the area was reclassified by operation of law as a moderate 1997 8-hour ozone nonattainment area, effective April 21, 2008 (73 FR 15087). This determination was based on ambient air quality data from the 2004-2006 monitoring period. In a subsequent rulemaking (September 9, 2010, 75 FR 54778) EPA determined that (based on monitoring data for 2006-2009 monitoring periods and preliminary 2010 data) the BRNA has since attained the 1997 8-hour ozone standard. Recent certified air quality data for 2010 indicate that the BRNA continues to attain the 1997 8-hour ozone standard. See Section V.A.

The deadline for submission of requirements to meet the area's new 8-hour moderate nonattainment area classification was January 1, 2009 (73 FR 14391). The LDEQ, on December 14, 2009, submitted a request that EPA determine that the BRNA was monitoring attainment for the 1997 8-hour ozone standard. As stated earlier, EPA finalized a determination of attainment on September 9, 2010. This determination suspended the requirement for a 1997 8-hour attainment demonstration, 8-hour rate of progress plan and 8-hour contingency measures. (See 75 FR 54778). On August 31, 2010, the state submitted a request for redesignation to attainment. As stated previously, the request included a maintenance plan with associated MVEB.

The following sets forth EPA's views on the effect of the U.S. Court of Appeals for the District of Columbia rulings on this proposed redesignation action. For the reasons set forth below, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action or prevent EPA from proposing or ultimately finalizing this redesignation. EPA believes that the Court's December 22, 2006, June 8, 2007, and July 10, 2009, decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests.

EPA published a first phase rule governing implementation of the 1997 8-hour ozone standard (Phase 1 Rule) on April 30, 2004 (69 FR 23951). The Phase 1 Rule addresses classifications for the 1997 8-hour NAAQS and for revocation for the 1-hour NAAQS; how anti-backsliding principles will ensure continued progress toward attainment of the 1997 8-hour NAAQS; attainment dates; and the timing of emissions reductions needed for attainment. The Phase 1 Rule revoked the 1-hour ozone standard. The Phase 1 Rule also provided that 1-hour ozone nonattainment areas are required to adopt and implement “applicable requirements” according to the area's classification under the 1-hour ozonestandard for anti-backsliding purposes. See 40 CFR 51.905(a)(i). On May 26, 2005, we determined that an area's 1-hour designation and classification as of June 15, 2004 would dictate what 1-hour obligations remain as “applicable requirements” under the Phase 1 Rule. 40 CFR 51.900(f). (70 FR 30592). As discussed previously, the Baton Rouge area's classification under the 1-hour standard as of June 15, 2004 was “severe.”

On December 22, 2006, the U.S. Court of Appeals for the District of Columbia vacated EPA's Phase 1 Rule inSouth Coast Air Quality Management Dist.v.EPA, 472 F.3d 882 (D.C. Cir. 2006).On June 8, 2007, in response to several petitions for rehearing, the Court clarified that the Phase 1 rule was vacated only with regard to those parts of the rule that had been successfully challenged. See 489 F.3d 1245 (D.C. Cir. 2007), cert. denied, 128 S.Ct. 1065 (2008). By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 rule that had not been successfully challenged. The June 8, 2007 opinion reaffirmed the December 22, 2006 decision that EPA had improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations: (1) Nonattainment area new source review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) section 185 penalty fees for 1-hour severe or extreme nonattainment areas that fail to attain the 1-hour standard by the 1-hour attainment date; and (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS or for failure to attain that NAAQS; and (4) the court clarified that the Court's reference to conformity requirements was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations.

EPA published a second rule governing implementation of the 1997 8-hour ozone standard (Phase 2 Rule) on November 29, 2005 (70 FR 71612), as revised on June 8, 2007 (72 FR 31727). The Phase 2 Rule addressed, among other things, the Clean Data Policy as codified in 40 CFR 51.918. The Court upheld the Clean Data Policy, agreeing with the Tenth Circuit that EPA's interpretation of the Act was reasonable.NRDCv.EPA,571 F.3d 1245 (D.C. Cir. 2009).See Sierra Clubv.EPA,99 F.3d 1551 (10th Cir. 1996).

For the 1997 8-hour ozone standard, the BRNA ozone nonattainment area was originally classified as marginal nonattainment under subpart 2 of the CAA and reclassified to moderate on March 21, 2008 (73 FR 15087). The June 8, 2007, opinion clarifies that the Court did not vacate the Phase 1 Rule's provisions with respect to classifications for areas under subpart 2. The Court's decision, therefore, upholds EPA's classifications for those areas classified under subpart 2 for the eight-hour ozone standard, and all eight-hour ozone requirements for these areas remain in place.

In its June 8, 2007, decision, the Court limited its vacatur so as to uphold those provisions of EPA's anti-backsliding requirements that were not successfully challenged. Therefore, an area must meet the anti-backsliding requirements, see 40 CFR 51.900,et seq.;70 FR 30592, 30604 (May 26, 2005), which apply by virtue of the area's classification for the one-hour ozone NAAQS. As set forth in more detail below, the area must also address several additional anti-backsliding provisions identified by the Court in its decisions. We address later on in this notice how the 1-hour anti-backsliding obligations (as interpreted and directed by the court) are met in the context of a redesignation action for the 1997 8-hour NAAQS.

The Act sets forth the requirements for redesignating a nonattainment area to attainment. Specifically, CAA section 107(d)(3)(E) allows for redesignation provided that (1) The Administrator determines that the area has attained the applicable NAAQS; (2) the Administrator has fully approved the applicable implementation plan for the area under CAA section 110(k); (3) the Administrator determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions; (4) the Administrator has fully approved a maintenance plan for the area as meeting the requirements of CAA section 175A; and (5) the State containing such area has met all requirements applicable to the area under CAA section 110 and part D.

EPA provided guidance on redesignation in the General Preamble for the Implementation of Title I of the CAA Amendments of 1990, on April 16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 1992 (57 FR 18070). EPA has provided further guidance on processing redesignation requests in the following documents:

1. “Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from Bill Laxton, June 18, 1990.

2. “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992;

3. “Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;

4. “Procedures for Processing Requests to Redesignate Areas to Attainment”, Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992;

5. “State Implementation Plan (SIP) Actions Submitted in Response to Clean Air Act (ACT) Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992;

6. “Technical Support Documents (TSDs) for Redesignation of Ozone and Carbon Monoxide (CO) Nonattainment Areas”, Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;

7. “State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992”, Memorandum from Michael Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993;

8. “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, November 30, 1993;

9. “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator forAir and Radiation, October 14, 1994; and

10. “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995.

EPA has previously determined that that the BRNA ozone nonattainment area has attained both the 1- hour and 1997 8-hour ozone standards. As set forth below, data available subsequent to those determinations shows that the area continues to attain both standards.

EPA determined that the BRNA area was attaining the 1997 8-hour standard based on complete quality-assured, certified data for the 2006-2009 ozone monitoring seasons. For a more detailed rationale, see our final action at 75 FR 54778 (September 9, 2010). Since that time, complete, quality-assured and certified monitoring data for the 2010 calendar year have become available that show the area is still attaining the 1997 8-hour standard. Draft air quality monitoring data4 indicate the area is still attaining the 1997 8-hour ozone standard. The fourth high values for 8-hour ozone for 2010, and the 3-year average of these values (i.e.,design value), are summarized in Table 1:

In addition, as discussed below with respect to the maintenance plan, Louisiana has committed to continue monitoring in this area in accordance with 40 CFR part 58.

Should the area violate the 1997 8-hour ozone standard before the proposed redesignation is finalized, EPA will not proceed with final redesignation.

The ozone monitoring network run by LDEQ in the BRNA has monitored attainment with the 1997 8-hour ozone standard based on data from 2006 through 2010. The 1997 ozone NAAQS is 0.08 parts per million based on the three-year average of the fourth-highest daily maximum 8-hour average ozone concentration measured at each monitor within an area. The 1997 ozone standard is considered to be attained at 84 parts per billion (ppb). The design value for the monitoring period 2006-2008 was 0.083 ppb. For the monitoring period 2007-2009, it was 0.080 ppb. For the monitoring period 2008-2010, the design value for the BRNA was 0.078 ppb. Draft data available for 2011 are consistent with continued attainment. In summary, the data show BRNA has attained the 1997 8-hour ozone NAAQS.

On February 10, 2010 EPA determined that the BRNA area was attaining the 1-hour ozone standard based on quality-assured, certified data for the 2006-2008 ozone monitoring seasons. For a more detailed rationale, see our final action at 75 FR 6570. Since that time, complete, quality-assured and certified data that have become available showing the area continues to attain the 1-hour ozone standard as shown in Table 2.

EPA has reviewed the Louisiana SIP for the BR area with respect to SIP requirements applicable for purposes of redesignation under part D of the Act for both the 1-hour ozone NAAQS and the 1997 8-hour ozone NAAQS. EPA believes that, with the exception of certain 1-hour and 8-hour ozone RACT requirements that will be acted on in a separate rulemaking, the Louisiana SIPfor the BRNA currently contains approved SIP measures that meet the part D requirements applicable for purposes of redesignation. We are also proposing to find that the area meets the severe area 1-hour ozone and 1997 8-hour RACT requirements, provided that EPA finally approves in a separate rulemaking action the RACT requirements for the source categories covered by the CTG Rules Update. As discussed previously, EPA, in a separate final rulemaking, has approved the termination of the section 185 penalty fee requirement. The 1-hour and 1997 8-hour ozone applicable requirements are discussed in detail below.

In evaluating a request for redesignation, EPA's long-held position is that those requirements expressly linked by statutory language with the attainment and reasonable further progress requirements do not apply if EPA determines that the area is attaining the standard. Additionally, it is EPA's interpretation of CAA section 107(d)(3)(E) that applicable requirements of the Act that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. Under this interpretation, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant requirements of the Act that come due prior to the submittal of a complete redesignation request. SeeSierra Clubv.EPA,375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of St. Louis, Missouri); September 4, 1992 Calcagni memorandum; September 17, 1993 Michael Shapiro memorandum, and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor, MI).

The applicable 1997 8-hour ozone standard requirements for the BRNA area are those for a moderate nonattainment area.

Because EPA found the BRNA monitored attainment of the 1-hour and 1997 8-hour standards (see citations in section V.A. above), it suspended the requirements for the state to submit certain planning SIPs related to attainment, including attainment demonstration requirements, the reasonably available control measures (RACM) requirement of section 172(c)(1) of the Act, the reasonable further progress (RFP) and attainment demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) of the Act, and the requirement for contingency measures of section 172(c)(9) of the Act as long as the area continues to monitor attainment of those standards. These requirements will cease to apply upon redesignation to attainment.

In addition, in the context of redesignations, EPA has interpreted requirements related to attainment as not applicable for purposes of redesignation. For example, in the General Preamble EPA stated that:

In prior separate actions, EPA has finalized the termination of the requirement for the 1-hour ozone 185 fees program. EPA has proposed approval of the CTG Rules Update. EPA is thus proposing to find that upon final approval of the CTG Rules Update, the BRNA will have a fully approved SIP under 110(k) for redesignation purposes and it will meet all CAA 110 and part D applicable requirements for purposes of redesignation for the 1997 8-hour ozone standard.

Section 110(a) of Title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a State must have been adopted by the State after reasonable public notice and hearing, and, among other things, must: Include enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to monitor ambient air quality; provide for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; include provisions for the implementation of part C, Prevention of Significant Deterioration (PSD) and part D, NSR permit programs; include criteria for stationary source emission control measures, monitoring, and reporting; include provisions for air quality modeling; and provide for public and local agency participation in planning and emission control rule development.

We believe that the section 110 elements that are not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. A State remains subject to these requirements after an area is redesignated to attainment. Only the section 110 and part D requirements that are linked with a particular area's designation and classification are the relevant measures which we may consider in evaluating a redesignation request. This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements for redesignation purposes, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176 (October 10, 1996)) and (62 FR 24826 (May 7, 1997)); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458 (May 7, 1996)); and Tampa, Florida, final rulemaking (60 FR 62748 (December 7, 1995)). See also the discussion on this issue in the Cincinnati, Ohio 1-hour ozone redesignation (65 FR 37890 (June 19, 2000)), and in the Pittsburgh, Pennsylvania 1-hour ozone redesignation (66 FR 50399 (October 19, 2001)).

We have reviewed Louisiana's SIP and have concluded that it meets the general SIP requirements under section 110 of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of the Louisiana SIP addressing section 110 elements under the 1-hour ozone standard (40 CFR 52.970-.999). In addition, EPA has proposed approval of a section 110(a)(2) Infrastructure SIP for PM2.5 and the 1997 8-hour ozone standard. (April 18, 2011, 76 FR 21682) Final action on the April 18, 2011 proposal is not required for purposes of redesignation.

EPA has reviewed the Louisiana SIP for the BRNA area with respect to SIP requirements applicable for purposes ofredesignation under part D of the Act for both the 1-hour ozone NAAQS and the1997 8-hour ozone NAAQS. EPA believes that the Louisiana SIP for the BRNA area contains approved SIP measures that meet the part D requirements applicable for purposes of redesignation. EPA has approved or proposed to approve all of the required Part D elements. We are proposing to find the NOXand VOC RACT requirements have been met as part of this redesignation action. The VOC RACT finding is contingent on our finalizing our proposed approval of the rules implementing RACT controls on the source categories covered by the CTG Rules Update. As discussed previously, we have finalized a separate action approving the termination of the 185 fee requirement. Upon final approval of the CTG Rules Update, the BRNA area will meet all of the requirements applicable to the area under part D for purposes of redesignation. The 1-hour and 1997 8-hour ozone applicable requirements are discussed in detail below.

The Baton Rouge 1-hour ozone nonattainment area was reclassified as severe for that standard, effective June 23, 2003. Thus, the 1-hour ozone standard requirements applicable to the area are those that apply to nonattainment areas classified as severe. Upon reclassification to severe, under section 211(k) of the Act, the use of reformulated gasoline also was to be required in the BRNA one year after the effective date of the reclassification. However, the state never implemented RFG in the BR area. As noted earlier, enforcement of the RFG requirement in the BRNA is currently stayed by court order. As such, the state has not relied on the RFG program in the past for emissions reduction and does not rely on RFG in its maintenance plan for attainment purposes. Since it is a program implemented by EPA and not by the State, we do not consider RFG a necessary requirement for redesignation. A detailed analysis of the relevant requirements and their status is provided below.

The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-hour ozone NAAQS requirements that continue to apply after revocation of the 1-hour ozone NAAQS for former 1-hour ozone nonattainment areas. Section 51.905(a)(1) provides that:

Section 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005), states:

As explained earlier in this action, in addition to applicable requirements listed under section 51.900(f), the State must also comply with the additional 1-hour anti-backsliding requirements discussed in the Court's decisions inSouth Coast Air Quality Management Dist.v.EPA:(1) NSR requirements based on the area's 1-hour ozone nonattainment classification; (2) section 185 source penalty fees; (3) contingency measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA for areas not making reasonable further progress toward attainment of the one-hour ozone NAAQS, or for failure to attain the NAAQS; and, (4) transportation conformity requirements for certain types of Federal actions.

The following discusses how the applicable CAA requirements have been met in the BRNA.

40 CFR 51.905 (1), (3), and (12). RACT, Major source applicability cut-offs for purposes of RACT, and NOXrequirements under section 182(f) of the CAA. Sections 172(c)(1) and 182 of the CAA require areas that are classified as moderate or above for ozone nonattainment to adopt Reasonably Available Control Technology (RACT) requirements for sources that are subject to Control Techniques Guidelines (CTGs) issued by EPA and for “major sources” of volatile organic compounds (VOCs) and nitrogen oxides (NOX), which are ozone precursors. See 42 U.S.C. sections 7502(c)(1) and 7511a(b) and (f). RACT is defined as the lowest emissions limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility (44 FR 53762; September 17, 1979). A CTG provides information on the available controls for a source category and provides a “presumptive norm” RACT. In this action, EPA is addressing RACT for both NOXand VOCs in the BR area for the 1997 8-hour ozone standard, and for the 1-hour standard.

The Phase 1 Rule provides that 1-hour ozone nonattainment areas designated as nonattainment for the 8-hour ozone NAAQS are required to adopt and implement “applicable requirements” according to the area's classification under the 1-hour ozone standard at the time of designation under the 8-hour standard (see 40 CFR 51.905(a)(i)). The BR area was classified as a severe nonattainment area for the 1-hour ozone NAAQS at the time of the 8-hour designation and an outstanding “applicable requirement” for the BR area is VOC and NOXRACT. Louisiana previously adopted rules to address RACT requirements for all source categories covered by EPA CTGs that had been issued up to that time, and to address major sources at the serious area major source threshold of 50 tons per year (tpy). The reclassification of the area from serious to severe for the 1-hour ozone standard, on April 24, 2003 (68 FR 20077), required Louisiana to ensure that RACT was in place on non-CTG sources down to 25 tpy. Louisiana has submitted SIP revisions to address the NOXand VOC RACT requirement for non-CTG sources down to 25 tpy for BR for purposes of the 1-hour ozone requirement and to address NOXand VOC RACT for the 8-hour ozone NAAQS. On June 15, 2005, Louisiana submitted rule revisions lowering the major source NOXand VOC applicability from 50 to 25 tpy for purposes of non-CTG RACT. We approved these rule revisions as part of a larger package on July, 5, 2011 (76 FR 38977).

For the 1997 8-hour ozone RACT requirements, according to EPA's Phase 2 Rule (70 FR 71612, November 29, 2005), areas classified as moderate nonattainment or higher must submit a demonstration, as a revision to the SIP, that their current rules fulfill 1997 8-hour ozone RACT requirements for allCTG categories and all major non-CTG sources. The State may either demonstrate the existing SIP approved RACT rules continue to be RACT or submit revised RACT rules (See EPA's Phase 2 Rule: 70 FR 71612, as further explained in a memo from William T. Harnett dated May 19, 2006, which is included in the docket). Since BR is classified as moderate for the 1997 8-hour ozone standard, for purposes of meeting the 8-hour RACT requirement, the BR area must demonstrate RACT level controls for sources covered by a CTG document, and for each major non-CTG source.

Louisiana has submitted several SIP revisions to address the 1997 8-hour ozone standard RACT requirements for NOXand VOCs for BR. These revisions are being addressed by EPA through two actions.

First, on June 20, 2009 and August 20, 2010, Louisiana submitted SIP revisions to control VOC emissions in response to CTGs issued in 2006, 2007, and 2008. On March 17, 2011, we proposed to approve these SIP revisions, which we refer to as the CTG Rules Update (76 FR 14602). As part of the CTG Updates proposed rule, we also proposed approval, through parallel processing, of a revision proposed by Louisiana on January 20, 2011. If EPA issues a final approval of the rules addressed in the CTG Rules Update by the time this redesignation goes final, then Louisiana will have met for BR the requirement to adopt RACT rules for sources addressed in any newly issued CTGs.

Second, we are proposing in this action to approve the RACT demonstration submitted by LDEQ on August 20, 2010, and a supplement on May 16, 2011, which provides an analysis demonstrating how the BR area meets RACT requirements for all other CTG and non-CTG sources through the currently SIP-approved RACT rules. EPA reviewed and evaluated LDEQ's RACT determination for both NOXand VOCs. This review and evaluation is provided in the RACT TSD which accompanies this action.

The State submittal included among other things, the following components:

(a) A RACT demonstration including adopted State rules, which have been federally approved, addressing RACT requirements for CTG and ACT source categories. See the RACT TSD for more information.

(b) An analysis of RACT for all major sources not covered by a CTG or ACT and how these are controlled to meet RACT. This information was provided in the August 2010 submittal, and also in an Addendum to Appendix F dated May 16, 2011.

To ensure RACT was in place for major sources, the State identified all sources that emit or have the potential to emit at least 25 tons/year of VOC in the BR 1997 8-hour ozone nonattainment area. The State provided a list of each major source in a source category covered by a CTG/ACT and the rules applicable to those major sources.

The State's RACT SIP analysis was available for public comment prior to adoption by the State. For the RACT portion of its August 2010 submittal, the State received a comment letter from EPA which was addressed in the adopted rulemaking with an amendment for the RACT analysis. EPA evaluated the following elements of LDEQ's RACT SIP submittal for the BR Area:

• State Rules Addressing NOXRACT Requirements and VOC RACT Requirements for sources Covered by a CTG/ACT.

• Potential Major VOC Emissions Sources possibly not covered by a CTG/ACT.

EPA reviewed LDEQ's RACT analysis including the State's Rules and evaluation of major sources. Also, EPA reviewed LDEQ's emissions inventory database for potential sources missing from the LDEQ analysis. Based on this review, LDEQ's RACT analysis, including its identification of all sources requiring RACT, appeared to be thorough. Additional discussion of our review and evaluations is available in the TSD.

In today's proposal, we are proposing that if we take final action to approve the CTG Rules Update, and determine in this final rule that the existing SIP-approved rules remain RACT, then Louisiana's SIP would meet the NOXand VOC RACT requirements for 8-hour ozone standard for all CTG categories and for major sources of NOXand VOCs. We are also proposing that based on our July 5, 2011 approval (76 FR 38977) of the lower major-source threshold of 25 tpy, that the state has met its outstanding 1-hour RACT obligation for the BR area. Additional detail is provided in the TSD.

40 CFR 51.905 (2). Inspection and maintenance programs (I/M).The BRNA is required to implement a vehicle inspection and maintenance program in the five-parish area. EPA approved this program on September 26, 2002 (67 FR 60594) and a revision to the program on November 13, 2006 (71 FR 66113).

40 CFR 51.905 (4). Rate of progress reductions.We approved the post-1996 ROP Plan and its associated MVEB and a revised 1990 base year emissions inventory on August 2, 1999 (64 FR 35930) for the BRNA serious 1-hour ozone nonattainment area. This plan covered the 3-year period between 1996 and1999, achieving 9 percent reductions no later than November 15, 1999. As discussed previously, ROP is not a required element for redesignation request. With the Clean Data determinations for the 8-hour and 1-hour ozone standards, EPA suspended the obligations to submit SIP provisions to meet the 1-hour and 8-hour Rate of Progress requirements. If EPA finalizes approval of this redesignation, these obligations will be terminated.

40 CFR 51.905 (5) Stage II vapor recovery.EPA approved Louisiana Stage II Vapor Recovery rules for the BRNA on March 25, 1994 (59 FR 14112).

40 CFR 51.905 (6) Clean-Fuel Vehicle program under section 182(c)(4) of the CAA.The State met this requirement with a substitute program, which we approved on July 19, 1999 (64 FR 38577). This program imposes controls beyond the Act's requirements (i.e.,RACT) for storage tanks in the BRNA by requiring guide pole and stilling well controls on external floating roof tanks. The resultant long term emission reductions were greater than the Louisiana Clean Fuel Fleet program emission reductions in the ozone nonattainment area. We had previously approved a Clean Fuel Fleet program on December 22, 1995 (60 FR 54305).

40 CFR 51.905 (7) Clean fuels for boilers under section 182(e)(3) of the CAA.This is an extreme area requirement and therefore does not apply to the BRNA severe area.

40 CFR 51.905 (8) Transportation Control Measures (TCMs) during heavy traffic hours as provided under section 182(e)(4) of the CAA.This is an extreme area requirement and therefore does not apply to the BRNA severe area.

40 CFR 51.905 (9) Enhanced (ambient) monitoring under section 182(c)(1) of the CAA.EPA approved a Louisiana SIP revision for enhanced ambient monitoring on June 19, 1996 (61 FR 31037) as meeting section 182(c)(1) of the CAA. The monitoring network meets the requirements in 40 CFR part 58 and section 182(c)(1) for enhanced monitoring.

40 CFR 51.905 (10) TCMs under section 182(c)(5) of the CAA.As required by the Clean Air Act section 176(c) (42 U.S.C. 7506(c)), the Louisiana Department of Environmental Quality demonstrated conformity of area transportation plans to the motor vehicle emissions budgets established in the BRNA Attainment Demonstration approved by EPA on October 2, 2002 (67 FR 61786).

40 CFR 51.905 (11) Vehicle miles traveled (VMT) provisions of section182(d)(1) of the CAA.EPA approved the VMT Offset Analysis on November 21, 2006 (71 FR 67308).

40 CFR 51.905 ( 13) Attainment demonstration or alternative as provided under section 51.905(a)(1)(ii).Louisiana elected the option to submit an 8-hour ozone attainment demonstration SIP to demonstrate attainment of the 1997 8-hour ozone standard by the area's 8-hour ozone attainment date with associated MVEBs and an RACM analysis. The SIP was submitted to EPA on August 31, 2010. EPA has not acted on it. As discussed previously, EPA's long-held position is that an attainment demonstration with the RACM analysis is not an applicable requirement for purposes of evaluating an ozone redesignation request where the area is attaining the standard. (General Preamble, 57 FR 13564). See also 40 CFR 51.918. Upon redesignation, the obligation is terminated. Moreover EPA has determined that the area has attained the 1-hour and 1997 8-hour ozone standards, and thus the area's obligation to submit either attainment demonstration has been suspended. See Our Clean Data Determinations at 75 FR 6570 and 75 FR 54778. Upon our final approval of the redesignation request the requirement to have an approved 1-hour and 8-hour attainment demonstration will be terminated.

NSR.EPA has also determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the standard without a part D NSR program in effect, since PSD requirements will apply after redesignation. The rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation dated October 14, 1994, titled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” The State's PSD program becomes effective in the area immediately upon redesignation to attainment.5 Louisiana has demonstrated that BRNA will be able to maintain the standard without a part D NSR program in effect, and therefore, Louisiana need not have a fully approved part D NSR program prior to approval of the redesignation request. Consequently, EPA concludes that an approved NSR program is not an applicable requirement for purposes of redesignation, where it is not required for maintenance, as is the case here. See the more detailed explanations of this issue in the following rulemakings: Detroit, Michigan (60 FR 12467-12468 (March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 Fr 53665, 53669, October 23, 2001); Grand Rapids, Michigan (61 FR 31831, 31836-31837, June 21, 1996).6

Section 185 fees.On July 7, 2011 (76 FR 39755), EPA finalized approval of a determination to terminate the CAA section 1-hour ozone 185 penalty fees program requirement for the BRNA. EPA's rulemaking cited a January 5, 2010 guidance document regarding section 185, but the rulemaking proposal also set forth separately in detail EPA's proposed rationale for terminating 1-hour ozone anti-backsliding 185 requirements when EPA determines that an area has attained the 1-hour standard and when that attainment is due to permanent and enforceable requirements. 76 FR 17368 (March 29, 2011). EPA proposed and explained both its interpretation of the termination requirements, derived from statutory criteria for redesignation, and the application of this interpretation to the specific circumstances of the Baton Rouge area. EPA explained that the Baton Rouge area met the core redesignation requirements that would have been applicable were EPA still redesignating areas for the 1-hour standard—a process EPA discontinued six years ago because it was unnecessary and not consistent with revocation of the 1-hour standard.

EPA published notice of its proposed termination and EPA's underlying rationale in theFederal Register, and established a 30-day period for public comments to be submitted. No adverse comments were received; however, commenters submitted 13 sets of comments in support of EPA's proposal.

On June 23, 2011, EPA signed a final rulemaking that terminated the 1-hour anti-backsliding section 185 requirements for the Baton Rouge area. Subsequently, on July 1, 2011, the DC Circuit issued a ruling inNatural Resources Defense Councilv.EPA,No. 10-1056 (D.C. Cir), vacating the guidance document. The Court's opinion, however, did not address the rationale or circumstances pertaining to the termination of the 1-hour anti-backsliding 185 requirements for any area including the Baton Rouge area. In the case of Baton Rouge, EPA, after providing for notice and comment on its proposed rationale and how it applies to the facts of Baton Rouge, determined that the area has attained the 1-hour ozone standard, and that this attainment is due to permanent and enforceable emissions reductions. In its proposed rulemaking, EPA explained how and why these findings justify termination of the section 185 requirements for Baton Rouge. See 76 FR 17368. EPA believes that the procedure and substance of the Baton Rouge rulemaking are outside the scope of the agency action of which the Court disapproved in its July 1 ruling, and that therefore the Baton Rouge termination determination survives and withstands the Court's ruling regarding EPA's guidance.

In its Baton Rouge proposal, EPA proposed its interpretation of the statutory requirements. EPA stated its belief that a state could meet its 185 1-hour anti-backsliding obligations through a SIP revision containing either the fee program prescribed in section 185, or an equivalent alternative program. It stated: “EPA believes that an alternative program may be acceptable if it is consistent with the principles of section 172(e) of the CAA, which allows EPA through rulemaking to accept alternative programs that are “not less stringent” where EPA has revised the NAAQS to make it less stringent. EPA explained that in its Phase 1 ozone implementation rule for the 1997 ozone NAAQS (69 FR 23951 April 30, 2004), EPA determined that although section 172(e) does not directly apply where EPA has strengthened the NAAQS, as it did in 1997, it was reasonable to apply the same principle for the transition from the 1-hour NAAQS to the 1997 8-hour NAAQS. 76 FR 17369-70. As part of applying the principle in section 172(e) for purposes of the transition from the 1-hour standard to the 1997 8-hour standard, EPA went on to state that it would

In the Baton Rouge proposed rulemaking, EPA proposed that if it determined that the area is attaining the 1-hour ozone NAAQS, based on permanent and enforceable emissions reductions, the area's existing SIP could be considered an adequate alternative program. EPA explained that under these circumstances, the Baton Rouge area's existing SIP measures, in conjunction with other enforceable Federal measures, would be adequate to achieve attainment, which is the purpose of the section 185 program. EPA stated that “the section 185 fee program is an element of an area's attainment demonstration, and its object is to bring about attainment after a failure of an area to attain by its attainment date. Thus, areas that have attained the 1-hour ozone standard, the standard for which the fee program was originally required, as a result of permanent and enforceable emission reductions, would have a SIP that is not less stringent than the SIP required under section 185.” 76 FR 17370.

EPA further explained its position:

The Court's opinion does not preclude EPA from terminating the 1-hour section 185 anti-backsliding requirement for areas like Baton Rouge, that EPA has determined through notice and comment rulemaking, have attained the 1-hour ozone standard due to permanent and enforceable emissions reductions.

We therefore believe that, for the purpose here of evaluating applicable requirements pertaining to redesignation, Louisiana's obligation to satisfy the 1-hour ozone anti-backsliding requirement for section 185 fees has been terminated.

Contingency Measures.Sections 172(c)(9) and 182(c)(9) of the CAA require ozone plans for nonattainment areas to contain measures to be implemented in the event that any RFP or attainment deadline is missed. As explained in a March 26, 2009 (74 FR 13166) proposal, it is EPA's position that contingency measures are not an applicable requirement for purposes of evaluating an ozone redesignation request when an area is attaining the relevant standard. EPA's long-held position is that those requirements expressly linked by statutory language with the attainment and reasonable further progress do not apply when an area requesting redesignation is attaining the standard. Pursuant to EPA's determination that the BRNA attained the 1-hour ozone standard (February 10, 2010, 75 FR 13166), the requirement to submit the 1-hour contingency measures was suspended. This obligation will be terminated upon a final approval of the redesignation request.

For more detail regarding the applicable 1-hour ozone requirements and EPA's approval actions, see the Technical Support Document (TSD), which is included in the electronic docket. Listed below are the severe ozone 1-hour area requirements that have already been met by the BR area for the purposes of this redesignation.

The only moderate area requirements applicable for purposes of redesignation for the 1997 8-hour ozone standard under part D, section 182(b) that became due prior to the submission of the complete redesignation request are the control techniques guidelines (CTGs) to meet requirements for RACT under section 182(b)(2). The State submitted several SIP revisions addressing the CTG rules requirements, and provided a SIP revision addressing NOXand VOC RACT requirements in BR on August 31, 2010. The CTG Rules Update was proposed for approval in a separate rulemaking published in theFederal Registeron March 17, 2011 (76 FR 14602). If EPA finalizes its proposed approval of the CTG Rules Update together with the NOx and VOC RACT requirements which are addressed in today's action, the area will have met all the requirements applicable under its prior severe 1-hour classification and current moderate 1997 8-hour classification for purposes of redesignation of the 1997 8-hour ozone standard. Additional information about the CTG Rules Update and RACT Update requirements is provided in the discussion above, as well as in the TSD.

Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other Federally supported or funded projects (general conformity). State conformity revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability that the CAA required the EPA to promulgate.

EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) because state conformity rules are still required after redesignation and Federal conformity rules apply where state rules have not been approved. SeeWallv.EPA,265 F.3d 426 (6th Cir. 2001) (upholding this interpretation). See also 60 FR 62748 (December 7, 1995, Tampa, Florida).

As with the nonattainment NSR requirements for the 1-hour ozone standard, EPA has determined that areas being redesignated need not have an approved 1997 8-hour nonattainment NSR program prior to redesignation, provided that the area demonstrates maintenance of the standard without a part D NSR program in effect, since PSD requirements will apply after redesignation. The rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled “Part D New Source Review (Part D NSR) Requirements for Areas Requesting Redesignation to Attainment.” Louisiana demonstrated in the accompanying maintenance plan that BR will be able to maintain the standard without a part D NSR program in effect, and therefore, Louisiana need not have a fully approved part D NSR program prior to approval of the redesignation request. Louisiana's PSD program will become effective in BRNA upon redesignation to attainment (unless a rule change is necessary; see footnote 4). See rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorrain, Ohio (61 FR 20458, 20469-70, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996).

The moderate area requirements at section 182(a) and 40 CFR 51.915 require that the BR 1997 8-hour ozone area meet the emissions inventory requirements of section 182(a)(1). An emissions inventory is an estimation of actual emissions of air pollutants in an area. The emissions inventory consists of VOC and NOXemissions, as they are ozone precursors. EPA approved a base year inventory for 2002 on September 3, 2009 (74 FR 45561) under 182(b) for moderate areas. A more detailed discussion of the emission inventory for the BRNA can be found in the analysis of the maintenance plan for this redesignation below.

EPA proposes to find that the area has an approved SIP for all the 1997 8-hour ozone requirements applicable for purposes of redesignation. This proposal is contingent on our final approval of the NOXand VOC RACT analyses and provisions that are addressed in today's action and in the CTG Rules Update. EPA is proposing to find that, upon EPA's final approval ofthe BR emissions inventory, the VOC and NOXRACT analysis, and the CTG Rules Update, the BR area will meet all requirements applicable to the area for purposes of redesignation for the 1997 8-hour ozone standard under section 110 and part D and have a fully approved applicable implementation plan for the area under section 110(k). As noted earlier, implementation of RFG is not required for purposes of redesignation.

EPA may rely on prior SIP approvals in approving a redesignation request; see Calcagni Memorandum at p. 3;Southwestern Pennsylvania Growth Alliancev.Browner,144 F.3d 984, 989-90 (6th Cir. 1998);Wall,265 F.3d 426, plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25426 (May 12, 2003) and citations therein. Following passage of the CAA of 1970, Louisiana adopted and submitted, and EPA fully approved at various times, provisions addressing the various 1-hour ozone standard SIP elements applicable in the BR area as discussed above.

As indicated, EPA believes that the section 110 elements not connected with nonattainment plan submissions and not linked to the area's nonattainment status are not applicable requirements for purposes of redesignation. As set forth above, with the exceptions noted, the area has met all other applicable requirements for purposes of redesignation for the 1997 8-hour ozone standard.

EPA proposes to find that Louisiana has demonstrated that the observed ozone air quality improvement in the BR area is due to permanent and enforceable reductions in emissions resulting from implementation of emissions controls contained in the SIP, Federal control measures, and other State-adopted control measures.

EPA believes that the improvement in air quality in the Baton Rouge area during the 2002-2008 timeframe, which resulted in attainment of both the 1-hour and 1997 8-hour ozone standards, is due to emissions reductions from permanent and enforceable measures. Table 3 shows the changes in emissions for NOXand VOC's from 2002 to 2008.

Emissions of both VOC and NOXhave been reduced during the time period leading up to December 31, 2008, the date when Baton Rouge reached attainment for the 1-hour standard.

The State also analyzed the changes in VOC and NOXemissions in the BR area between the original base year of 2002 and the year 2006 during which the area attained the standard. The 2006 inventory was generated from the approved 2002 base year inventory (September 3, 2009, 74 FR 45561). The 2002 and 2006 emissions for the BRNA area were determined using EPA accepted methods and guidance.7 The State documented the VOC and NOXemission control measures that have been implemented in the BR area for at least the past 3 years. Comparing the 2002 and 2006 NOXand VOC emissions to the projected future year emissions, a downward trend is observed. Broken out by source category, the reduction in emissions is shown in Table 4.

The State provided design value data from 1997 through 2008 to illustrate the downward trend in ozone since 2005. (See Chart 1 on page 9 of the state's submittal.) In addition, it provided a table of design values by monitor for the 2006-2008 monitoring period that also shows the general downward trend in emissions during that time period. (Table 1,Ibid.)

The Baton Rouge nonattainment area control strategy is primarily NOX-driven, therefore no major VOC rules have been adopted other than those required to meet updated CTGs as required by the Act. LDEQ attributes the reductions in emissions primarily to the stationary source NOXcontrol measures implemented no later than May 1, 2005, which were required by the State's rules. The following is a discussion of the permanent and enforceable emission controls that have been implemented in the BR area. In Louisiana's 8-hour ozone redesignation request, the State documented all of the emission control rules or programs that have impacted VOC or NOXemissions during the period 1990-2008.

Louisiana notes that a number of VOC and NOXRACT rules which were developed in prior years have continued to provide additional VOC and NOXemission reductions during more recent years. For VOC controls, with the exception of the source categories covered by the most recently published CTGs (see a discussion of the new CTG RACT rules below), Louisiana has adopted and implemented VOC RACT rules for source categories covered by older (prior to 2006) CTGs and for major non-CTG sources in the five-parish BRNA. All VOC RACT rules are contained in Chapter 21 of Louisiana Administrative Code (LAC 33:III Chapter 21), and all NOXRACT rules are contained in Chapter 22 of the LAC (LAC 33:III Chapter 22). All of these VOC and NOXRACT rules have been approved by the EPA as revisions of the Louisiana SIP.

EPA approved a serious area attainment plan and ROP plans as noted above under the 1-hour ozone standard requirements for serious areas. October 22, 1996 (61 FR 54737) and July 2, 1999 (64 FR 35930). Measures in these plans include Stage II Vapor Recovery, marine vapor recovery, tank vent recovery, emission reductions from vents to flares, tank fitting controls, fugitive emission controls, secondary roof seals on tanks, as well as some federally required controls pursuant to NESHAPs and NSPS. All these measures continue to produce reductions today.

NOXemission reductions were achieved through the implementation of NOXcontrol measures for stationary sources which were adopted by the state effective on February 20, 2002, and approved by EPA on September 27, 2002 (67 FR 60877), and adopted by the state on August 20, 2003 and approved by EPA on July 5, 2011 (76 FR 38977). These rules were implemented between February 20, 2002, and May 1, 2005.

The rules established emission factors (standards) for NOXsources within the BRNA. These revisions achieved approximately 40 TPD of additional NOXreductions in the BRNA beginning with the compliance date of May 1 2005 and continuing to date. These rules are still part of the state's rules and are enforceable at the state and Federal level. The specific standards are listed below.

The bulk of the NOXemissions between 2002 and 2006 came from the source categories listed in the table above. In 2006, stationary (point) sources made up over 51 percent of the entire NOXinventory for the BRNA, which is a decrease from over 59 percent in 2002. In addition, Louisiana adopted and implemented emission control rules requiring existing sources of VOC to meet, at minimum, RACT. These requirements apply to sources in categories covered by CTGs and other major non-CTG sources. These rules were adopted and implemented prior to 2002. (62 FR 63658, February 2, 1998; 63 FR 47429, November 8, 1998).

LDEQ notes that on-road Federal emission control measures have had positive impacts on VOC and NOXemissions in the BR area for reaching attainment. Table 5 shows the Federal emissions reductions programs in the BR area for fuels and motor vehicles:

The above discussion shows that state, local and Federal emission controls have contributed to the ozone air quality improvement in the BR area that resulted in attainment of the 1997 8-hour ozone standard. Emissions inventory data demonstrates that NOXand VOC emissions have dropped substantially between 2002 and 2008 for stationary sources primarily but also for mobile sources. These substantial decreases in ozone precursors can be directly attributed to State and Federal measures. As noted above, Louisiana has committed to retaining in the SIP all existing emission control measures that affect ozone levels in the BR area after the BRNA is redesignated to attainment of the 1997 eight-hour ozone NAAQS. All changes in existing rules subsequently determined to be necessary must be submitted to the EPA for approval as SIP revisions.

EPA thus proposes to find that the improvement in air quality in the BR area is due to permanent and enforceable emissions reductions. Section 107(d)(3)(E)(iii).

In conjunction with its request to redesignate the BR 1997 8-hour ozone nonattainment area, the State of Louisiana included a SIP revision to provide for the maintenance of the 1997 8-hour ozone NAAQS in the BR area for at least 10 years after redesignation to attainment. Section 107(d)(3)(E)(iv). As discussed below, EPA has reviewed this maintenance plan and is proposing to approve it as meeting the requirements of section 175A of the CAA.

Section 175A of the CAA sets forth the required elements of air quality maintenance plans for areas seeking redesignation to attainment of a NAAQS. Under section 175A, a maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves the redesignation to attainment. The State must commit to submit a revised maintenance plan within eight years after the redesignation. This revised maintenance plan must provide for maintenance of the ozone standard for an additional 10 years beyond the initial 10 year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures as EPA deems necessary to assure prompt correction of any future NAAQS violation. The September 4, 1992, Calcagni memorandum provides additional guidance on the content of maintenance plans.

An ozone maintenance plan should, at minimum, address the following: (1) The attainment VOC and NOXemission inventories; (2) a maintenance demonstration showing maintenance for the 10 years of the maintenance period; (3) a commitment to maintain the existing monitoring network; (4) factors and procedures to be used for verification of continued attainment; and, (5) contingency measures to correct a future violation of the NAAQS.

Sections 182(a)(1) of the CAA requires that the SIP include a comprehensive, accurate and current inventory of actual emissions from sources of relevant pollutants in the nonattainment area. The emission inventory for an ozone nonattainment area contains both VOC and NOXemissions, which are precursors to ozone formation. LDEQ prepared a comprehensive emission inventory for the BR area including point, area, on-road, and off-road mobile sources for the year 2006. Table 6 lists the 2006 emissions inventory for the BR area. EPA reviewed the 2006 inventory and determined that it was developed in accordance with EPA guidelines8 . For a full discussion of our evaluation, please refer to Part II of the TSD, found in the electronic docket.

Louisiana developed its 2006 Emissions Inventory from the previously approved 2002 baseline inventory (September 3, 2009, 74 FR 45561). The State relied on this 2006 inventory in preparing the attainment demonstration modeling that is included in Appendix D of the State's submittal.

The 2006 and projected year emissions for the BRNA 5-parish area were determined using the following procedures:

Point Source Emissions.Point source VOC and NOXemissions for 2006 were calculated using methodologies according to Federal guidelines and using AP-42 or other approved methods. The State collected emissions data, which are estimates of actual emissions, provided by the facilities. A list of those facilities is provided in Appendix C of the LDEQ submittal.

Area Source Emissions.Area source emissions from the 2002 National Emission Inventory (NEI) were used as the starting point for the 2006 Louisiana area emissions. Projection years' emissions were initially grown using the EPA's Economic Growth Analysis System (EGAS) version 5.0 growth factors. The methodologies used to develop area sources inventory are described in Appendix D of the submittal.

On-road Emissions.Mobile source emissions were calculated based on Parish-specific inputs provided by several state agencies. MOBILE6 was then used to generate emission factors. A detailed description of on-road emission estimates is found in Appendix D of the LDEQ submittal.

Non-road Emissions.For all non-road mobile categories except aircraft, locomotives, and commercial marine vessels, the emissions were calculated using the EPA's National Mobil Inventory Model (NMIM) to generate Louisiana state-wide parish level emissions estimates. Airport and locomotive emissions were derived from 2006 LDEQ inventory. Marine emissions were developed from CENRAP inventories. A detailed description of non-road emission estimates is found in Appendix D of the submittal.

The State of Louisiana has committed to continue operation of an EPA-approved ozone monitoring network and to work with EPA pursuant to 40 CFR part 58 with regard to the continued adequacy of the network, including whether additionalmonitoring is needed, and when a monitor site can be discontinued.

As part of its request to redesignate the BR 1997 8-hour ozone standard nonattainment area, the State of Louisiana included a SIP revision to incorporate a maintenance plan as required under section 175A and section 107(d)(3)(E)(iv) of the CAA. The maintenance plan includes a demonstration based on a comparison of emissions in one of the attainment years (2008) and projected emissions to demonstrate maintenance of the 1997 8-hour ozone NAAQS in the BR area for at least 10 years after the anticipated redesignation year. CAA 107(d)(3)(E)(iv). To demonstrate maintenance of the 1997 8-hour ozone standard, LDEQ projected VOC and NOXemissions to 2022 and to several interim years, 2012, 2016, and 2020. These emissions were compared to the 2008 attainment year and 2006 base year emissions (both years in the 2006-2008 attainment period) to show that emissions of NOXand VOC, remain below the attainment levels for the entire demonstrated maintenance period.

In projecting data for the maintenance year 2022 inventory, LDEQ used several methods to project data from the base year 2006 to the years 2008, 2012, 2016, 2020, and 2022. These projected inventories were developed using EPA-approved technologies and methodologies. Point source and non-point source projections were derived from the Emissions Growth Analysis System version 6.0 (EGAS 6.0). Non-road mobile projections were derived from EGAS 6.0, and from NONROAD 2005.

To demonstrate declines in future emissions, LDEQ provided a comparison between the 2006 inventory and the emission growth projections for the years 2008, 2012, 2016, 2020, and 2022. Table 7 summarizes the 2006 and 2008 attainment years, interim years during the maintenance period, horizon year 2022, the end year for the maintenance period, and net changes in VOC and NOXemissions by source type.

Federal rules implemented after attainment of the 1997 8-hour ozone standard contribute to continued maintenance in the area. These measures include:

Non-Road Diesel Rule.EPA promulgated this rule in 2004. It applies to diesel engines used in industries, such as construction, agriculture, and mining. It is estimated that compliance with this rule will cut NOXemissions from non-road diesel engines by up to 90 percent beginning with the 2008 Model Year equipment. This rule will be fully implemented in 2014.

Locomotives and Marine Compression-Ignition Engines.This EPA rule was adopted March 14, 2008, and includes new emission standards for locomotives and marine diesel engines that will reduce NOXemissions by about 80 percent compared with engines meeting the current standards. The new requirements have three parts: Tightening emission standards for existing locomotives and large marine engines when they are remanufactured, effective in 2008; beginning in 2009, phasing in Tier III standards for new locomotives and marine diesel engines; and establishing more stringent Tier IV standards for new locomotives and marine diesel engines; these standards will be phased in beginning in 2014.

EPA evaluated the BRNA maintenance emission inventory component of the redesignation request and determined that LDEQ demonstrated that emissions levels of VOC and NOXin the 2022 maintenance year will decrease from the 2006 baseline year by 7.67 and 23.40 tons per average ozone season day respectively. Overall VOC and NOXemissions levels will remain below the 2006-2008 attainment year levels throughout the maintenance period. EPA also determined that LDEQ has adequately calculated and documented emissions by using methods consistent with EPA's guidance. (See footnote 7).

As shown in the table and discussion above, the State demonstrated that the total future year ozone precursor emissions will be less than the 2008 attainment year's emissions. The attainment inventory submitted by the LDEQ for this area is consistent with EPA guidance. (See footnote 7). Considering emissions projections, EPA finds that the expected future emissions levels in 2012, 2016, 2020, and 2022 have been shown to be lower than emissions levels in 2006 and 2008.

The NOXprojections in Louisiana's maintenance demonstration relied in part on reductions due to the Clean Air Interstate rule (CAIR). CAIR, however, was remanded back to EPA, and EPA on July 6, 2011 issued the final Cross-State Air Pollution Rule9 (CSAPR) to replace CAIR. EPA believes the reductions for Louisiana due to the CSAPR are similar in magnitude to those projected by CAIR. Louisiana's Ozone season NOXbudget for CAIR was 17,085 tpy for EGUs from 2009 to 2014 and lowered to 14,238 tpy NOXfor 2015 and later. The CSAPR ozone season NOXlimit is 13,432 tpy, which is 806 tpy less NOXthan the CAIR budget. So with the reductions from the CSAPR, we believe that Louisiana's maintenance demonstration 10 year projection remains valid.

Pre-control modeling in support of the CSAPR indicates that the Baton Rouge area will not be in attainment of the 1997 8 hour ozone standard in 2012 because of impacts from upwind states. For this reason, upwind States with a significant impact on the Baton Rouge area are required to reduce their NOXemissions. The CSAPR modeling indicates the Baton Rouge area will be in attainment in 2014 after institution of the CSAPR controls. The 2014 control case modeling is projected off a center weighted average of design valuesduring the period 2003-2007. Additional CSAPR modeling, however, projecting off a single year's design value for 2005 (years 2003-2005) projects that the area will not be in attainment in 2014. This variation in model projections, depending on the projection year, is an indication the Baton Rouge area could have some difficulty in maintaining attainment in years when meteorology particularly favors ozone production. The maintenance plan, however, indicates that NOXemissions will continue to decrease over the life of the plan, continuing to improve Baton Rouge's ability to maintain attainment in the future. In addition, section 175 requires that the area have contingency measures that must be implemented, if due to meteorological fluctuations, the area does come out of attainment. We discuss the adequacy of these contingency measures elsewhere in the notice. Therefore, after considering the CSAPR modeling but also considering the projected decline in emissions and the fact that the maintenance plan has contingency measures, we believe it is appropriate to approve the maintenance plan for the Baton Rouge area.

The fact that EPA is proposing to redesignate Baton Rouge to attainment does not remove the need to address emissions in upwind States that impact ozone levels in Baton Rouge. As discussed above, Baton Rouge is projected to be nonattainment without the CSAPR reductions. The reductions in the CSAPR along with other State and Federal measures are projected to bring the area into attainment. Furthermore, without a cap on emissions in upwind States with a significant impact, emissions might in fact grow, increasing the possibility that Baton Rouge will not be able to maintain attainment. Furthermore, since upwind States are not required to have contingency measures, it is incumbent on EPA to ensure that States with significant impacts are appropriately controlled.

LDEQ also provided attainment demonstration modeling in support of its redesignation request. The attainment demonstration modeling can be found in Appendix D of the Redesignation Request and Maintenance Plan. The modeling demonstration was conducted according to EPA guidance.10 The modeling simulation was for June 2006 using a nested 36/12/4 km grid system, with the 4-km grid focused on Louisiana and the immediate Gulf coast area. The weight of evidence assembled from the modeling analyses and projection methodologies described in the report demonstrated that the 1997 8-hour ozone standard would be attained in the Baton Rouge area by 2009. The area did indeed attain the standard by the close of the ozone season on December 31, 2008. This modeling has a refined grid focused on the Baton Rouge area, and thus it provides further support that the Baton Rouge area has attained due to permanent and enforceable reductions and should remain in attainment during the term of the maintenance plan.

EPA proposes to find that LDEQ has demonstrated maintenance of the ozone standard in the BR area during the 10 year maintenance period, based on projections that total VOC and NOXemissions during this period will remain below the 2006 and 2008 attainment levels emissions.

Louisiana has the legal authority to enforce and implement the requirements of the ozone maintenance plan for the BR area. This includes the authority to adopt, implement, and enforce any subsequent emissions control contingency measures determined to be necessary to correct future ozone attainment problems.

Louisiana will track the progress of the maintenance plan through continued ambient ozone monitoring in accordance with the requirements of 40 CFR part 58, and by performing future reviews of actual emissions for the area using the latest emissions factors, models, and methodologies. The State will work with EPA to ensure that the air monitoring network continues to be effective and will quality assure the data according to Federal requirements as one way to verify continued attainment. In addition the State will compare emission inventory data submitted to the National Emission Inventory with the emission growth data submitted in the maintenance plan to ensure emission reductions continue the downward trend.

The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the state. The State should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the state will implement all measures with respect to control of the pollutant(s) that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA.

As required by section 175A of the CAA, Louisiana has adopted a contingency plan for the BR area to address possible future ozone air quality problems.

The triggering mechanism for activation of contingency measures in the BR maintenance plan is a monitored violation of the 1997 8-hour ozone standard. If contingency measures are triggered, LDEQ has committed to adopt additional measures, if needed beyond the adopted measures included in the submittal, and to implement the measures as expeditiously as practicable, but no later than 24 months following the trigger.

The following contingency measures are identified for possible implementation, but may not be limited to:

• Extending the applicability of the State's current NOXrule in LAC 33:III.2201 by adding a new Section, LAC 33:III.2202, that would extend LAC 33:III.2201's application to include the months of April and October each year (currently LAC 33:III.2201 applies from May 1 to September 30). This would assist in reducing incidences of high ozone days in the BRNA. See the TSD for AQ 350. Because the state has adopted this rule and submitted it to EPA, we are proposing to approve this rule revision in this rulemaking. In addition, the state will consider other measures such as lowering the NOXemissions factors of LAC 33:III.2205.D and/or requiring more stringent monitoring of elevated flares, as well as measures targeting the following:

• Diesel retrofit/replacement initiatives;

• Programs or incentives to decrease motor vehicle use;

• Implementation of fuel programs including incentives for alternative fuels;

• Employer-based transportation management;

• Anti-idling ordinances;

• Programs to limit or restrict vehicle use in areas of high emission concentration during periods of peak use.

Given the substantial amount of industrial emissions in the Baton Rouge Area, and the fact the area's ozone problem is mostly driven by NOXemissions, these potential contingency measures would be appropriate for adequately correcting an attainment problem.

These contingency measures and schedules for implementation are consistent with EPA's longstanding guidance regarding contingency measures for maintenance plans under section 175A. The State will continue to operate appropriate ambient ozone monitoring sites in the BR area to verify continued attainment of the 1997 ozone NAAQS. The air monitoring results will reveal changes in the ambient air quality as well as assist the State in determining which contingency measures will be most effective if necessary.

As required by section 175A(b) of the CAA, Louisiana commits to submit to the EPA an updated ozone maintenance plan eight years after redesignation of the BR area to cover an additional ten-year period beyond the initial ten-year maintenance period. As required by section 175A(d) of the CAA, Louisiana has also committed to retain VOC and NOXcontrol measures contained in the SIP prior to redesignation.

EPA finds that the maintenance plan adequately addresses the five basic components of a maintenance plan: attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and contingency measures. The maintenance plan SIP revision submitted by Louisiana for BR meets the requirements of section 175A of the Act. Therefore, EPA is proposing to approve the maintenance plan for the BR area for the 1997 8-hour ozone standard as a revision to the Louisiana SIP.

Louisiana commits to maintain all of the current emission control measures for VOC and NOXafter the BR area is redesignated to attainment. Louisiana, through LDEQ's Secretary, has the legal authority and necessary resources to actively enforce against any violations of the State's air pollution emission control rules. After the BR area is redesignated to attainment, LDEQ will implement NSR for major stationary sources and major modifications through the PSD program.

A maintenance plan must include a MVEB for transportation conformity purposes. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. It is a process required by section 176(c) of the Act for ensuring that the effects of emissions from all on-road sources are consistent with attainment or maintenance of the standard. EPA's transportation conformity rules at 40 CFR part 93 require that transportation plans, and programs, result in emissions that do not exceed the MVEB established in the SIP. The maintenance plan established an MVEB for 2022, which is the last year of the maintenance plan.

The MVEB is the level of total allowable on-road emissions established by the maintenance plan. Maintenance plans must include the estimates of motor vehicle VOC and NOXemissions that are consistent with maintenance of attainment, which then act as a budget or ceiling for the purpose of determining whether transportation plans, and programs conform to the maintenance plan. In this case, the MVEB sets the maximum level of on-road transportation emissions that can be produced, when considered with emissions from all other sources, which demonstrates continued maintenance of attainment of the 1997 8-hour ozone NAAQS.

When reviewing submitted “control strategy” SIPs or maintenance plans containing a MVEB, EPA determines whether the MVEB contained therein is “adequate” for use in determining transportation conformity. Once EPA finds a budget adequate, the budget must be used by local, state and Federal agencies in determining whether proposed transportation plans and programs “conform” to the SIP as required by section 176(c) of the Act.

EPA's substantive criteria for determining “adequacy” of a MVEB are set out in 40 CFR 93.118(e)(4), which was promulgated in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; transportation conformity rule amendments—Response to Court Decision and Additional Rule Change,” on July 1, 2004 (69 FR 40004).

As discussed earlier, Louisiana's maintenance plan submission includes NOXand VOC budgets for the year 2022. EPA reviewed the budgets through the adequacy process. The availability of the SIP submission with this 2022 MVEB was announced for public comment on EPA's adequacy Web page on, at:http://www.epa.gov/otaq/stateresources/transconf/currsips.htm#baton.The EPA public comment period on the adequacy of the 2022 MVEB for BR closed on April 4, 2011. EPA did not receive any adverse comments on the MVEB. On May 16, 2011, EPA made a finding of adequacy for the 2022 MVEB included in this 8-hour ozone maintenance plan (76 FR 28223).

Table 8 shows the total projected transportation emissions for 2022, as submitted by Louisiana.

These transportation emissions are also represented in Table 7 of this notice as the “mobile” emissions portion of emission inventory data for the BR area. As shown in Table 8, substantial reductions in both NOXand VOC transportation emissions are projected between 2006 and 2022. Further, as previously stated in this action, EPA finds that the State has demonstrated the future combined emissions levels of NOXand VOC in 2008, 2012, 2016,2020, and 2022 are expected to be similar to or less than the emissions levels in 2006. The projected transportation emissions for 2022 were used by Louisiana as the basis of the 2022 NOXand VOC MVEB for the BR area. These emissions are consistent with the maintenance plan demonstrating continued compliance with the 1997 8-hour ozone NAAQS for the 10-year period following redesignation to attainment.

The submitted NOXand VOC MVEB for the BR area is defined in Table 9 below.

Through this rulemaking, EPA is proposing to approve Louisiana's 2022 MVEB for VOCs and NOXfor the BR area for transportation conformity purposes, because EPA has determined that the area maintains the 1997 8-hour ozone standard with the emissions at the levels of the budget. The submittal has met the adequacy criteria in 40 CFR 93.118(e)(4), and EPA has completed a comprehensive review of the maintenance plan, concluding that the overall plan demonstrates maintenance, is approvable and the budgets are consistent with the overall plan. Therefore, the budgets can be proposed for approval.

EPA is proposing several related actions under the Act for the BR 1997 8-hour moderate ozone nonattainment area, consisting of Ascension, East Baton Rouge, Iberville, Livingston, and West Baton Rouge Parishes. Consistent with the Act, EPA is proposing to approve a request from the state of Louisiana to redesignate the BR area to attainment of the 1997 8-hour ozone standard.

In this notice, EPA is also proposing to approve the NOXand VOC RACT requirements for the BRNA for the 1-hour and 1997 8-hour ozone standards that accompanied the State's August 10, 2010 redesignation request. In prior separate rulemaking actions, EPA terminated the 1-hour ozone anti-backsliding section 185 penalty fee requirement, and proposed to approve the CTG Rules Update. We are proposing to determine that if EPA finally approves the CTG Rules Update VOC and NOXprovisions submitted with the redesignation request, the BR area will meet all of the applicable CAA requirements under section 110 and Part D for purposes of redesignation for the 1997 8-hour ozone NAAQS, including the applicable CAA requirements for a moderate 1997 8-hour ozone area and applicable anti-backsliding requirements for a 1-hour ozone severe area.

Further, EPA is proposing to approve into the SIP, as meeting section 175A and 107(d)(3)(E)(iv) of the Act, Louisiana's maintenance plan for the BR area for the 1997 8-hour ozone NAAQS. The maintenance plan shows maintenance of the standard through 2022. Additionally, EPA is proposing to approve the 2022 MVEB for NOXand VOC submitted by Louisiana for the BR area in conjunction with its redesignation request and maintenance plan.

Consequently, EPA is proposing to approve the State's request to redesignate the area from nonattainment to attainment for the 1997 8-hour ozone NAAQS. After evaluating Louisiana's redesignation request, EPA has determined that upon final approval of the above-identified SIP elements and the maintenance plan, the area will meet the redesignation criteria set forth in sections 107(d)(3)(E) and 175A of the Act. The final approval of this redesignation request would change the official designation in 40 CFR part 81 for the BR area from nonattainment to attainment for the 1997 8-hour ozone standard

Under the Clean Air Act, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the Clean Air Act for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the 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, these actions merely do not impose additional requirements beyond those imposed by state law and the Clean Air Act. For that reason, these actions:

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

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

• Are 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.);

• Do 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);

• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Are not economically significant regulatory actions based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Are not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Are 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

• Do 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.

In the Northeast U.S., skate fisheries are managed by the New England Fishery Management Council (Council). In 2003, NMFS implemented the Northeast Skate Complex Fishery Management Plan (Skate FMP) to manage a complex of seven skate species: Winter (Leucoraja ocellata); little (L. erinacea); thorny (Amblyraja radiata); barndoor (Dipturus laevis); smooth (Malacoraja senta); clearnose (Raja eglanteria); and rosette (L. garmani) (see 68 FR 49693, August 19, 2003). The FMP established biological reference points and overfishing definitions for each species based on abundance indices in the NMFS Northeast Fisheries Science Center bottom trawl survey.

Amendment 3 to the Skate FMP, which was implemented in July 2010, instituted an annual catch limit (ACL) and accountability measures (AMs) for the skate fishery (75 FR 34049, June 16, 2010), and set fishery specifications for FY 2010-2011 (through April 30, 2012). The ACL was set equal to the acceptable biological catch (ABC) recommendation of the Council's Scientific and Statistical Committee (SSC) (41,080 mt). Amendment 3 also implemented an annual catch target (ACT), which is 75 percent of the ACL, and annual total allowable landings (TALs) for the skate wing and bait fisheries (TAL = ACT − dead discards and state landings), and three seasonal quotas for the bait fishery. An incidental possession limit may be implemented when landings approach the TAL, preventing excessive quota overages.

In FY 2010, the combination of increased landings of skate wings and a delay in implementation of Amendment 3 possession limits (5,000 lb (2,270 kg) of wings per trip) resulted in the wing fishery reaching the TAL trigger in early September. Consequently, the wing fishery was limited to the incidental possession limit of 500 lb (227 kg) of skate wings per trip from September 3, 2010, through the end of FY 2010 on April 30, 2011.

Asserting that the imposition of the incidental skate wing possession limit so early in the FY caused disruptions in the supply of skate wings, economic hardship on fishing vessels and dealers, and threatened to undermine the market position of U.S. suppliers, members of the skate wing fishing industry requested that the Council consider options to mitigate the potential for this situation to be repeated in FY 2011. In November 2010, the Council initiated Framework 1 to reduce the skate wing possession limits, and increase the TAL trigger point, in order to maximize the duration of the skate fishing season in FY 2011. Framework 1 was partially approved by NMFS and implemented on May 17, 2011 (76 FR 28328).

Since the implementation of Framework 1, new scientific information on skate catch and biomass became available, which allowed the SSC to revise its recommendation for skate ABC. The ABC is calculated by multiplying the median catch/biomass ratio by the most recent 3-yr average skate biomass. Therefore, significant increases in the survey biomass of little and winter skates through autumn 2010 support increases in the ABC. Additionally, new research on the discard mortality of winter and little skates in trawl gear indicates that the assumed discard mortality rate of 50 percent is too high, and that the dead discard portion of the catch has been overestimated in the past. Updates toestimates on state waters and transfer at sea landings were also incorporated. Collectively, this new information resulted in a revised ABC recommendation of 50,435 mt.

This new ABC recommendation is being used by the Council to develop skate fishery specifications for FYs 2012-2013. However, due to continued high rates of skate wing landings under Framework 1 possession limits, and the likelihood that the skate wing fishery would once again be closed early in FY 2011, the Council, at its June 2011 meeting, requested that NMFS take emergency action, pursuant to section 305(c) of the Magnuson-Stevens Act, to implement the revised skate ABC for the remainder of FY 2011. This would increase available landings of skates, and result in the lengthening of the season for the skate wing fishery, thereby helping to avoid the economic impacts associated with a potential closure.

Based on the new ABC recommendation from the SSC, this emergency action proposes the following changes to the regulations governing the skate fishery (see Table 1):

1. That the skate ABC and ACL be increased from 41,080 mt to 50, 435 mt for FY 2011;

2. That the ACT be increased from 30,810 mt to 37,826 mt; and

3. That the TAL be increased from 13,848 mt to 21,561 mt, reflecting the higher ACT as well as a lower assumed skate discard rate and improved estimates of state landings.

The skate wing fishery would be allocated 66.5 percent of the TAL (14,338 mt) and the skate bait fishery would be allocated 33.5 percent of the TAL (7,223 mt)

Table 1—No Action and Proposed FY 2011 Skate ABC and Associated Catch Limits (mt) No action Preferred Percent change ABC 41,080 50,435 +23 ACL 41,080 50,435 +23 ACT 30,810 37,826 +23 TAL 13,848 21,561 +56 Wing TAL 9,209 14,338 +56 Bait TAL 4,639 7,223 +56 Assumed Discard Rate 52.0% 36.3% −30 Assumed State Landings 3.0% 6.7% +123

This action does not propose changes to any other regulations implemented by Amendment 3 or Framework 1. The wing possession limits would remain at 2,600 lb (1,179 kg) for May 1 through August 31, and 4,100 lb (1,860 kg) for September 1 through April 30. The skate bait possession limit would remain at 20,000 lb (9,072 kg) whole weight per trip for vessels carrying a Skate Bait Letter of Authorization. Finally, if the TAL triggers are reached before the end of the year (85 percent for the wing fishery, 90 percent for the bait fishery), the incidental possession limit would remain at 500 lb (227 kg) of wings (1,135 lb (515 kg) whole wt.). These management measures may be reconsidered as the Council develops fishery specifications for FYs 2012-2013.

The proposed quota increases are expected to result in considerable increases in skate revenues and positive economic impacts for the fishery, while maintaining the conservation objectives of the Skate FMP. Although the landings of skate wings are expected to increase under the proposed changes, overall catch of skates will not likely be significantly affected due to the nature of the skate wing fishery, which is primarily an incidental fishery within the primary fisheries for groundfish and monkfish. Absent this proposed action, once the current, lower possession limit trigger is reached, skates that are caught above the incidental possession limit of 500 lb (227 kg) in these primary fisheries would be discarded. This proposed action would enable fishermen to retain and land for sale those skates that would otherwise have to be discarded.

NMFS has preliminarily determined that the new assessment of the status of the skate complex being relied on for the significantly higher ABC recommendation for FY 2012-2013 also justifies the emergency in-season adjustment requested by the Council. Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has made a preliminary determination that this proposed rule is consistent with the Skate FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. NMFS has reviewed the Council's request for temporary emergency rulemaking with respect to section 305(c) of the Magnuson-Stevens Act and NMFS policy guidance for the use of emergency rules (62 FR 44421, August 21, 1997) and determined that the Council's request meets both the criteria and justifications for invoking the emergency rulemaking provisions of the Magnuson-Stevens Act. Specifically, the SSC's revision of its previously recommended ABC was a recent and unforeseen event that cannot be implemented in a timely way through normal Magnuson-Stevens Act and Skate FMP actions. Through this emergency rulemaking, NMFS is increasing the FY 2011 skate complex ABC, ACL, ACT, and TALs, thereby relieving restrictions imposed by the previous, lower catch levels. Doing so will assist in preventing significant direct economic loss for fishery participants and associated industries that would be subject to lower commercial harvest levels.

The Office of Management and Budget has determined that this proposed rule is not significant for the purposes of Executive Order 12866.

NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of this section of the preamble and in theSUMMARYof this proposed rule. A summary of the IRFA follows. A copy of this analysis is available from NMFS (seeADDRESSES).

All of the entities (fishing vessels) affected by this action are considered small entities under the Small Business Administration (SBA) size standards forsmall fishing businesses (less than $4.0 million in annual gross sales). Therefore, there are no disproportionate effects on small versus large entities. Information on costs in the fishery is not readily available, and individual vessel profitability cannot be determined directly; therefore, expected changes in gross revenues were used as a proxy for profitability.

This action does not introduce any new reporting, recordkeeping, or other compliance requirements. This proposed rule does not duplicate, overlap, or conflict with other Federal rules.

The proposed increase in the Skate ACL and TALs would impact vessels that hold Federal open access commercial skate permits that participate in the skate fishery. For the purposes of this analysis, each permitted vessel is treated as a single small entity and is determined to be a small entity under the RFA. According to the Framework 1 final rule and Final Regulatory Flexibility Analysis (76 FR 28328, May 17, 2011), as of December 31, 2010, the maximum number of small fishing entities (as defined by the SBA) that may be affected by this action is 2,607 entities (number of skate permit holders). However, during FY 2010, only 503 vessels landed skates for the wing market, and only 56 landed skates for the bait market.

The purpose of the proposed action is to increase the skate ABC and associated catch limits in order to increase landings, thereby extending the duration of the fishing season and helping to prevent the negative economic impacts that would be associated with an early closure of the directed skate fisheries. Compared to the other alternative considered, the proposed action is expected to maximize profitability for the skate fishery by allowing higher levels of landings for the duration of FY 2011. Therefore, the economic impacts resulting from the proposed action as compared to the No Action Alternative are positive, since the action would provide additional fishing opportunity for vessels participating in the skate fishery for FY 2011.

The proposed action is almost certain to result in greater revenue from skate landings. Based on recent landing information, the skate fishery is able to land close to the full amount of skates allowable under the quotas. The estimated potential revenue from the sale of skates under the proposed catch limits is approximately $9.0 million, compared to $5.8 million if this action were not implemented. Due to the implications of closing the directed skate fisheries early in the fishing year, the higher catch limits associated with the proposed action will result in additional revenue if fishing is prolonged. According to analyses in Framework 1, vessels that participate in the skate fishery derive most (an average of 96 percent) of their revenues from other fisheries (e.g.,groundfish, monkfish). Therefore, relative to total fishing revenues, catch limits of other species would be expected to have more significant economic impacts than revenues derived from skates alone. However, as skate prices have begun increasing in recent years, more vessels are deriving a greater proportion of their income from skates.