We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under theADDRESSESsection. Include “Docket No. FAA-2012-1031; Directorate Identifier 2012-NE-31-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, tohttp://www.regulations.gov,including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in theFederal Registerpublished on April 11, 2000 (65 FR 19477-78).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2012-0163, dated August 28, 2012 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

RRD has issued Alert Service Bulletin TAY-72-A1696, Revision 1, dated June 11, 2012. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by EASA, and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require inspection and replacement if necessary, of affected bolts.

Based on the service information, we estimate that this proposed AD would affect about 20 engines installed onairplanes of U.S. registry. We also estimate that it would take about 4 hours per engine to comply with this proposed AD. The average labor rate is $85 per hour. Required parts would cost about $1,848. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $43,760.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

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

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

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

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

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

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart III, Section 447, Section 44701(a)(2)(A) and (B) and (5). Under that section, the FAA is charged with prescribing regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft, aircraft engines, propellers, and appliances, and equipment and facilities for, and the timing of and manner of, the inspecting, servicing and overhauling, and prescribing regulations the FAA finds necessary for safety and commerce. This regulation is within the scope of that authority.

In addition, the “FAA Modernization and Reform Act of 2012” (the Act), Public Law 112-95 (February 14, 2012), in section 319 (Maintenance providers), requires the FAA to issue regulations “requiring that covered work on an aircraft used to provide air transportation under part 121 * * *, be performed by persons in accordance with subsection (b).” Subsection (b), in addition to listing persons authorized under existing regulations, referenced additional terms and conditions in subsection (c) that would apply to persons who provide contract maintenance workers, services, or maintenance functions to a part 121 air carrier for covered work. The Act definescovered work,and mandates that the applicable part 121 air carrier must be directly in charge of covered work being performed for it under contract, and that the work be done under the supervision and control of the air carrier. These statutory requirements are addressed in this proposal.

The proposed amendments would apply to certificate holders who conduct either domestic, flag, or supplemental operations under 14 CFR part 121, and who conduct either commuter operations or on-demand operations with aircraft type certificated for a passenger seating configuration, excluding any pilot seat, of ten seats or more1 under 14 CFR part 135, if they contract any of their maintenance, preventive maintenance, or alteration work to an outside source. The amendments would require that each certificate holder who contracts for such work must first have developed policies, procedures, methods, and instructions for the accomplishment of that work. These must ensure that, if they are followed, the work will be performed in accordance with the certificate holder's maintenance program and maintenance manual. Each certificate holder would also be required to ensure that its system for the continuing analysis and surveillance of that work contains procedures for its oversight. All of these policies, procedures, methods, and instructions would have to be acceptable to the FAA and be included in the certificate holder's maintenance manual. In addition, each certificateholder who contracts any of its maintenance, preventive maintenance, or alteration work to an outside source would be required to provide to its local FAA Certificate Holding District Office a list that includes the name and address of each maintenance provider it uses and a description of the type of maintenance that would be performed.

The requirement that any person performing maintenance for an air carrier must follow the carrier's maintenance program is not new—FAA regulations have long required this. For example, § 121.363(b) authorizes a certificate holder to arrange with another person to perform its maintenance,2 and the regulation makes clear that doing so does not relieve the carrier from remaining primarily responsible for the airworthiness of its aircraft. Further, § 121.367(a) requires specifically that maintenance performed by either a certificate holder, or by another person, must be performed in accordance with the certificate holder's manual. Similar provisions are found in §§ 135.413 and 135.425. Despite those general requirements, the Department of Transportation Inspector General (IG) had noted lapses in the means to ensure air carrier manuals are followed when contracted maintenance is performed. The deficiencies noted include a lack of guidance and training for the maintenance providers, and insufficient oversight of that maintenance. The IG reports recommended the FAA develop a means to identify these contract maintenance providers so the agency could better target its inspector resources in surveilling air carrier maintenance. In a separate rulemaking the FAA is proposing mandatory training programs for air carrier maintenance that would have to be approved by the FAA.

Over the past three decades, air carrier maintenance has evolved from mostly an “in-house” operation to an extended network of maintenance providers that fulfill contracts with air carriers to perform their aircraft maintenance. The reasons for this shift are many, including air carriers lowering costs by employing fewer maintenance personnel and reducing their inventories of maintenance-related tools, equipment, and housing by allowing others with specialized equipment and expertise to work on their aircraft and its safety-critical components. Thus, air carriers, in making business decisions, have shifted much of their maintenance to contract providers.

By regulation, each air carrier remains primarily responsible for the airworthiness of its aircraft, whether the maintenance is contracted to another person or not. Any person performing maintenance for an air carrier must follow the air carrier's maintenance manual. (14 CFR 121.363, 121.367(a), 135.413, and 135.425(a).) In addition, each air carrier is required to document in its general maintenance manual, both a listing of persons with whom it contracts maintenance and a general description of the contracted work. (14 CFR 121.369(a), and 135.427(a).)

However, air carrier general maintenance manuals often are geared toward in-house maintenance. They fail to provide the necessary instructions to maintenance providers to enable them to follow the air carriers' maintenance programs. This is exacerbated when an air carrier's manual contains proprietary data, or other confidential information that an air carrier may not want to share with a maintenance provider. Often, the maintenance provider may also work on a competitor's aircraft. Consequently, according to the IG, air carriers often are reluctant to share such information, and therefore, often do not.

In addition, the FAA has found that, although air carriers are required to list their maintenance providers and a description of the work to be done in their maintenance manuals, these lists are not always kept up to date, are not always complete, and are not always in a format that is readily useful for FAA oversight and analysis purposes. The FAA needs this information to be complete and readily available centrally. This data is used by the FAA in planning surveillance of air carrier maintenance programs and determining the extent to which maintenance providers are performing their work according to the air carriers' maintenance manuals. Without accurate and complete information on the work being performed for air carriers, the FAA cannot adequately target its inspection resources for surveillance and make accurate risk assessments.

In May 1996, employees of SabreTech, a contract maintenance provider to air carriers, placed mislabeled and mishandled oxygen generators into the cargo compartment of a passenger jet. Those mishandled hazardous materials caused a fire in the cargo hold that caused Valujet Flight 592 from Miami to Atlanta to crash into the Everglades in Florida, taking the lives of all 110 people on board. Since then, the FAA's surveillance of air carrier maintenance and contract maintenance has been a particular area of focus for the Department of Transportation's Office of Inspector General (DOT/OIG). The OIG has been performing investigations and audits of the FAA's safety oversight of air carriers' use of repair stations to perform their maintenance, the use by air carriers of non-certificated repair facilities, and the air carriers' outsourcing of maintenance. In each of those reports (detailed below), the OIG found fault with the FAA's methods of tracking where air carriers perform their maintenance, who performs it, and how it is performed.

A 2003 Department of Transportation IG report3 identified a trend of air carriers increasingly contracting their maintenance to outside sources such as repair stations. The report revealed that major air carriers spent approximately $1.5 billion on outsourced maintenance in 1996 and approximately $2.5 billion in 2002. The report attributed the trend to cost savings that can be realized by air carriers contracting their maintenance to outside repair facilities. The report was based, in part, on investigators' visits to several FAA field offices and to 21 repair stations to evaluate the effectiveness of the FAA's oversight of the maintenance work being performed for air carriers. The investigation identified weaknesses in maintenance practices at 15 of the 21 repair stations and concluded that a lack of FAA oversight, especially for repeat issues, contributed to the deficiencies. The IG report made several recommendations on ways the FAA could enhance the effectiveness of its oversight of air carrier contracted maintenance. Among them was that the FAA should develop a process to identify repair stations air carriers use to perform aircraft maintenance, and to target FAA inspector resources based on risk assessments or analysis of the data collected on air carrier maintenance outsourcing practices (Recommendation 2).

In 2005, the IG issued a second report on air carriers' use of outside maintenance providers4 —this one reporting on the use of non-certificated repair facilities. The report discussed aircarriers' use of both non-certificated facilities (i.e.,maintenance facilities not certificated by the FAA as repair stations) and individual mechanics hired on a temporary basis. The report echoed a recommendation from the 2003 IG report by recommending that the FAA inventory air carrier vendor lists that include all maintenance providers working on air carrier aircraft and identify non-certificated repair facilities that perform critical or scheduled maintenance (Recommendation 1). The report also recommended that the FAA determine whether air carriers evaluate the background, experience, and qualifications of the temporary maintenance personnel used by the contractors to ensure the work they perform is completed in accordance with FAA and air carrier requirements (Recommendation 7).

The problem areas discussed above were emphasized at Congressional hearings in testimony by the Inspector General in 2007. The Inspector General stated: “If FAA is to achieve the planned improvements in oversight of outsourced maintenance, it will need to obtain definitive data on where air carriers are getting the maintenance performed, including critical and scheduled maintenance work done at non-certificated repair facilities, so that it can focus its inspections to areas of greatest risk.”5

In 2008, the IG issued a third related report on air carriers' outsourcing of maintenance.6 The report noted a continuing trend of air carriers outsourcing more of their maintenance. The IG based this report on its review of nine major air carriers, which sent 71% of their heavy maintenance checks to repair stations in 2007—up from 34% in 2003.7 The report pointed out the continuing need for better oversight of contract maintenance, both by the FAA and by air carriers, especially when the air carriers are contracting repairs of critical components. In addition, the report found that air carrier maintenance manuals have traditionally been geared toward in-house maintenance, and noted that repair stations may perform work for various air carriers, all with different in-house procedures. In this regard, the report concluded that the FAA should ensure that air carriers provide well-defined maintenance procedures and guidance for their outsourced repairs. The report specifically recommended that the FAA: “Encourage the industry best practice of using airworthiness agreements between air carriers and repair stations that more closely define maintenance procedures and responsibilities” (Recommendation 7).

As noted in the IG reports discussed above, air carrier use of contract maintenance providers continues to grow, averaging 64% of air carrier maintenance costs in 2007. The air carrier regulations have long stipulated that each certificate holder is primarily responsible for the airworthiness of its aircraft, even if maintenance is contracted to another person. (See§§ 121.363 and 135.413.) Air carriers cannot abrogate this responsibility. Consistent with this responsibility are the requirements that when persons other than the certificate holder (i.e.,contract maintenance providers) perform maintenance for it, the maintenance must be performed in accordance with the certificate holder's maintenance manual.

Section 121.367 has long required that each certificate holder shall have a maintenance program that ensures that: “Maintenance, preventive maintenance, and alterations performed by it,or by other persons,are performed in accordance with the certificate holder's manual.” (§§ 121.367(a) and 135.425(a) (emphasis added).) And, current § 121.369(b) requires, in pertinent part, that:

A nearly identical requirement is in § 135.427(b). While these requirements may be clear, the specifics of how to achieve the result may not be. As noted in the three IG reports discussed above, the investigators found numerous problems with maintenance being outsourced by air carriers. One conclusion reached by the IG was, as noted above, that air carriers should provide their contract maintenance providers with well-defined maintenance procedures. Implicit is that these procedures would be designed by each air carrier so that its maintenance providers could follow its manual.

The FAA believes that a root cause of this problem may be that many air carrier maintenance manuals were written at a time when maintenance was performed mostly in-house. Thus parts of these manuals may contain proprietary information obtained from various sources, for example, original equipment manufacturer (OEM), Type Certificate (TC) holder, or Supplemental Type Certificate (STC) holder, or the information may have been developed by the air carrier. Because of the proprietary nature of the data, an air carrier may be reluctant to provide its maintenance providers with all of the complete and specific guidance within its maintenance manual. This reluctance by an air carrier to provide the specific proprietary guidance/information may indicate that it does not fully recognize the maintenance provider as an extension of its own maintenance program. In those situations, the maintenance provider may be unable to follow the air carrier's program to the extent required by the regulations.

Repair stations have been frustrated by their inability to obtain the necessary applicable portions of some air carrier maintenance manuals when performing work under contract for them. The repair station regulations require repair stations to follow the maintenance manuals of the air carriers for whom they are doing the work. Section 145.205(a) provides that:

It stands to reason that if a repair station must follow the air carrier's or commercial operator's manual in order to comply with this regulation, then the corresponding part 121 and part 135 regulations should require the air carrier or commercial operator to provide the repair station that does the work with the applicable portions of its maintenance manual. This would be consistent with the air carriers' remaining primarily responsible for the airworthiness of their aircraft and the concept that when a maintenance provider performs maintenance for an air carrier, the provider is an extension of the air carrier's maintenance program.

The IG reports placed much emphasis on the need for improved FAA oversight of air carrier contract maintenance. In order for the FAA to improve thisoversight, the IG, in 2003, recommended the agency develop a means to identify repair stations that perform maintenance for air carriers. The current regulations require only that air carriers put in their manuals a list of persons with whom they have arranged for the performance of maintenance and a general description of that work. (See§§ 121.369(a) and 135.427(a).) Although the FAA may review these manuals, no current rule requires air carriers to keep such a list up to date and to provide it to the FAA in an acceptable format. As explained below, the FAA has found that the lists maintained by air carriers in their manuals in some cases are not readily useful for oversight purposes.

The requirements that an air carrier put in its maintenance manual a list of persons with whom it has arranged to perform maintenance, including a general description of that work, has been in place since at least 1965. As a consequence of the IG reports, between June and September 2010, the FAA did an internal investigation to determine the effectiveness of the requirement that air carriers include in their manual the list of outside maintenance providers. The agency found inconsistent compliance with the rule. Some carriers failed to specify an adequate description of the type of work, and some failed to include the name and address of their maintenance providers, using instead only alpha-numeric designators. This piecemeal and inconsistent availability of the information is not conducive to FAA analysis and targeting of problem areas.

The FAA agrees with the IG's recommendations that the agency should have an accurate, consistent inventory of each air carrier's contract maintenance providers. Such a list would enable the FAA to more accurately assess the risk associated with air carriers increasingly maintaining their fleets by contract maintenance providers. Although the identity of contract maintenance providers is currently available to the FAA through the air carriers' manuals and available upon request, it is not published in a format that readily allows for analysis, as it may be annotated in various formats, and the information is not available to the FAA in a single data base. In accordance with the IG's recommendations, we are proposing this rule so the FAA would have a dedicated and readily available list in an acceptable format of all air carrier contract maintenance providers. These lists would be useful for purposes of FAA analysis and oversight of both the air carriers that contract portions of their maintenance and their maintenance providers. The FAA envisions that this list would be administered via air carriers' operations specifications or through the agency's new safety assurance system that allows each certificate holder to enter its own data electronically into the FAA system. This would provide the FAA with real time data and assist it in meeting its oversight responsibilities and in making risk assessments.

Because current FAA regulations do not clearly address air carrier requirements for contract maintenance providers, the resulting lack of standardization makes it difficult for both the air carriers and the FAA to provide meaningful oversight to ensure proper maintenance that is vital for the public's continued safety. Consistent with the IG's recommendations, we propose to address weaknesses in contracted maintenance on two fronts. The first would add consistency and structure to the arrangements air carriers make with their outside maintenance providers, with the goal of ensuring that the air carriers' maintenance manuals would be followed. The second would assist the FAA in its oversight of contracted maintenance by requiring each air carrier that contracts any of its maintenance to provide, and keep updated, a list of those maintenance providers to the FAA. The list would include the physical (street) address where the work would be performed, and a description of the work to be performed by each maintenance provider.

While the current regulations do require that any person (whether certificated or not) with whom an air carrier arranges to perform maintenance must follow the carrier's manual, the requirement is broadly stated and often loosely implemented. In order to assure consistency in any future FAA guidance material, we are proposing in new §§ 121.368 and 135.426 to define amaintenance provideras any person (whether certificated or not) who performs maintenance for a certificate holder other than a person who is trained by and employed by that certificate holder. These new sections would also require each air carrier that contracts any part of its maintenance to a maintenance provider to first have policies and procedures in place to ensure that, if they were followed, the carrier's contracted maintenance would be performed in accordance with its maintenance program and maintenance manual. Proprietary data issues could be addressed by carefully drafted airworthiness agreements between the air carrier and its maintenance provider, as recommended in the 2008 IG report. Each certificate holder would also be required to ensure that its system for the continuing analysis and surveillance of that work contains procedures for its oversight. All of these policies, procedures, methods, and instructions would have to be acceptable to the FAA and be included in the certificate holder's maintenance manual.

For completeness, we are also proposing a new paragraph (b)(10) to current §§ 121.369 and 135.427 (Manual requirements) to include the above requirements for procedures and oversight in the air carriers' maintenance manuals.

We are also proposing in new §§ 121.368 and 135.426 to require each air carrier that contracts any of its maintenance to an outside source to provide to its FAA Certificate Holding District Office, in a format acceptable to the FAA, a list that includes the name and address of each maintenance provider used by that certificate holder under contract, and a description of the work that would be performed. This would enable the FAA to have a meaningful data base that would show who was doing the work for each air carrier and the kind of work being done. This would assist the FAA in its oversight responsibilities, especially in determining which maintenance providers were performing critical maintenance.

The FAA recognizes that operators will need time to fully develop the policies, procedures, methods, and instructions for contract maintenance and to provide them in an acceptable format to the FAA. Similarly, they will need time to prepare the list with the required information of their contract maintenance providers and to provide them in an acceptable format to their Certificate Holding District Offices. The FAA will also need time to review the information submitted by the operators. In view of these considerations, the FAA is proposing to make the effective date of the final rule one year after its publication. We are requesting public comments on the reasonableness of this one-year “compliance” period, as well as any other aspect of this proposal.

In addition, as explained in the Authority for this Rulemaking section of this preamble, the “FAA Modernization and Reform Act of 2012” (the Act), Public Law 112-95 (February 14, 2012), in section 319 (Maintenance providers), requires the FAA to issue regulations “requiring that covered work on an aircraft used to provide air transportation under part 121 * * *, be performed by persons in accordancewith subsection (b).” Subsection (b) of the Act, in addition to listing persons already authorized to perform maintenance under existing regulations, referenced additional terms and conditions in subsection (c) that would apply to persons who provide contract maintenance workers, services, or maintenance functions to a part 121 air carrier for the performance of covered work. The Act definescovered workas any of the following: “(A) Essential maintenance that could result in a failure, malfunction, or defect endangering the safe operation of an aircraft if not performed properly or if improper materials are used. (B) Regularly scheduled maintenance. (C) A required inspection item (as defined by the Administrator).” The Act also requires that covered work be carried out under thesupervision and controlof the part 121 air carrierdirectly in chargeof the covered work being performed for it by a maintenance provider, and that the covered work be carried out in accordance with the air carrier's maintenance manual.

In accordance with these statutory requirements, we are proposing to include in §§ 121.368(a) and 135.426(a) the definition ofcovered workset forth in the statute, and to provide definitions ofsupervision and controlanddirectly in charge.The definition ofdirectly in chargewould be similar to the current definitions in §§ 121.378 and 135.435. As required by the statute, we are also proposing: In §§ 121.368(b) and 135.426(b), that each certificate holder must be directly in charge of all covered work it contracts to a maintenance provider; in §§ 121.368(c) and 135.426(c), that all covered work must be carried out in accordance with the certificate holder's maintenance manual; and in §§ 121.368(d) and 135.426(d), that no covered work may be performed by a maintenance provider unless that work is carried out under the supervision and control of the certificate holder. Although the statute mandates these amendments for part 121 air carriers, the FAA believes that, in the interest of providing an equivalent level of safety for commuter and on demand operations, the same requirements should apply to persons conducting operations under part 135 in aircraft configured with 10 or more passenger seats. Accordingly, we are proposing the changes mandated by the Act for both part 121 and part 135 (10 or more) certificate holders.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this proposed rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.

In conducting these analyses, FAA has determined that this proposed rule: (1) Has benefits that justify its costs; (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; (3) is not “significant” as defined in DOT's Regulatory Policies and Procedures; (4) would not have a significant economic impact on a substantial number of small entities; (5) would not create unnecessary obstacles to the foreign commerce of the United States; and (6) would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.

This proposed rule would ensure consistency between contract and in-house air carrier maintenance and assist the FAA in its oversight responsibilities. The DOT IG reports placed much emphasis on the need for improved FAA oversight of air carrier contract maintenance. In order for the FAA to better be able to provide this oversight, the IG, in 2003, recommended the agency develop a means to identify repair stations that perform maintenance for air carriers.

In accord with the IG's recommendations, we are proposing this rule so the FAA would have a dedicated and readily available list in an acceptable format of all air carrier contract maintenance providers. These lists would be useful for purposes of FAA analysis and oversight of both the air carriers that contract portions of their maintenance and their maintenance providers.

These new sections would also require each air carrier that contracts any part of its maintenance to a maintenance provider to first have policies and procedures in place to ensure that, if they were followed, the carrier's contracted maintenance would be performed in accordance with its maintenance program and maintenance manual. Proprietary data issues could be addressed by carefully drafted airworthiness agreements between the air carrier and its maintenance provider, as recommended in the 2008 IG report.

In addition, this proposed rule responds to a provision (Section 319 on Maintenance Providers) in the FAA Modernization and Reform Act of 2012 mandating that the FAA issue regulations “requiring that covered work on an aircraft used to provide air transportation under part 121 * * *, be performed by persons in accordance with subsection (b) [of that section].” Subsection (b), in addition to listing persons authorized under existing regulations, referenced additional terms and conditions in subsection (c) that would apply to persons who provide contract maintenance workers, services, or maintenance functions to a part 121 air carrier for covered work. The section definescovered work,and mandates that the applicable part 121 air carrier must be directly in charge of covered work being performed for it under contract, and that the work be done under the supervision and control of the air carrier. As already explained under Discussion of the Proposal in this preamble, in the interest of providing an equivalent level of safety for commuter and on demand operations, we are proposing the above statutory requirements for certificate holders operating under part 135 as well as for those operating under part 121.

Over 10 years, the cost to part 121 and part 135 (10 or more) air carriers and the FAA would be approximately $2.4million ($1.6 million, present value at 7%), or essentially minimal cost.

The FAA believes the benefits discussed above have value exceeding the costs.

Part 121 and part 135 (10 or more) air carriers.

Assumptions:

• The rule is expected to take effect in 2014. The time horizon for these potential benefits is 10 years, 2014 through 2023.

• All monetary values were expressed in constant 2011 dollars. We calculated the present value of the potential benefit stream by discounting the monetary values using a 7 percent interest rate from 2014 to 2023.

• The FAA identified 301 part 121 and part 135 (10 or more) air carriers that would be affected by this proposed rule.

This proposed rule would ensure consistency between contract and in-house air carrier maintenance and assist the FAA in its oversight responsibilities. The DOT IG reports placed much emphasis on the need for improved FAA oversight of air carrier contract maintenance. In order for the FAA to better be able to provide this oversight, the IG, in 2003, recommended the agency develop a means to identify repair stations that perform maintenance for air carriers.

In accord with the IG's recommendations, we are proposing this rule so the FAA would have a dedicated and readily available list in an acceptable format of all air carrier contract maintenance providers. These lists would be useful for purposes of FAA analysis and oversight of both the air carriers that contract portions of their maintenance and their maintenance providers.

Although the IG reports discussed earlier dealt primarily with maintenance conducted for part 121 certificate holders, the FAA has found similar problems with maintenance providers not following the maintenance programs of certificate holders conducting commuter and on-demand operations with aircraft type certificated for a passenger seating configuration, excluding any pilot seat, of ten seats or more under part 135. In a similar vein, the FAA has also found that some of these operators conduct insufficient oversight of their maintenance providers. Even before the passage of Public Law 112-95 in February 2012, the FAA was planning to propose rules for both part 121 and 135 certificate holders that would require additional procedures and oversight to help ensure that the certificate holders' manuals would be followed by outside maintenance providers. The statute mandates new requirements for part 121 certificate holders, including that they be directly in charge of what it defines as “covered work.” Because the FAA has observed the same types of lapses with maintenance performed for part 135 certificate holders operating aircraft with 10 or more seats, we are proposing the same requirements for these operators. The FAA believes that by requiring part 135 certificate holders to adopt the new part 121 statutory requirements, a higher level of safety would be achieved.

From 2014 to 2023, the cost to part 121 and part 135 (10 or more) air carriers and the FAA would be approximately $2.4 million ($1.6 million, present value). The FAA solicits comments regarding this determination and requests that all comments be accompanied by clear and detailed supporting economic documentation.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The FAA identified a total of 269 small entities out of 301 air carriers that would be affected by this proposed rule. For each of these entities, the FAA attempted to retrieve their annual revenue data from World Aviation Directory. The FAA found data for 36 of the 269 small entities. The FAA then compared their revenue data with their annualized costs. The projected annualized costs of the proposed rule as a percent of revenue would be less than 1 percent for the 36 small entities, which is not a significant economic impact. Therefore, the FAA certifies this proposed rule would not have a significant economic impact on a substantial number of small entities. The FAA solicits comments regarding this determination.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this proposed rule and determined that the objective is to improve safety: therefore, it would not create unnecessary obstacles to the foreign commerce of the United States.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $143.1 million instead of $100 million. This proposed rule does not contain such a mandate; therefore, therequirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA considers the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

This action contains the following proposed amendments to the existing information collection requirements previously approved under OMB Control Number 2120-XXXX. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted these proposed information collection amendments to OMB for its review.

Summary:Each operator which seeks to obtain, or is in possession of, an air carrier operating certificate must comply with the requirements of 14 CFR part 121 in order to maintain data which is used to determine if the air carrier is operating in accordance with minimum safety standards. Original certification is completed in accordance with part 119.

Each operator which seeks to obtain, or is in possession of a commuter or on-demand operating certificate must comply with the requirements of 14 CFR part 135 in order to maintain data which is used to determine if the air carrier is operating in accordance with minimum safety standards. Original certification is completed in accordance with part 119. Continuing certification is completed in accordance with part 121 and part 135. One form is used. The use of this form was taken into account in estimating the burden for this section.

Use:This information collection supports the Department of Transportation's strategic goal of safety. Specifically, the goal is to promote the public health and safety by working toward the elimination of transportation-related deaths, injuries, and destruction of property.

Title 49 U.S.C., Section 44702, empowers the Secretary of Transportation to issue air carrier operating certificates and to establish minimum safety standards for the operation of the air carrier to whom such certificates are issued. Under the authority of Title 49 CFR, Section 44701, Federal Aviation Regulations part 121 and part 135 prescribe the terms, conditions, and limitations as are necessary to ensure safety in air transportation.

Respondents (including number of):There are approximately 94 part 121 air carriers and 207 part 135 operators affected by this proposed rule.

Frequency:The manual requirements will be submitted as part of the submission of maintenance manuals to the FAA for acceptance.

Annual Burden Estimate:The proposed rule would require that the air carrier's manual has all the policies, procedures, methods, and instructions for the accomplishment of maintenance by another person to include the information necessary for certificate holders to ensure all maintenance is performed in accordance with its maintenance program. The proposed rule would also require that the air carrier provides a list with the name and address of each maintenance provider used and the type of maintenance that is to be performed.

The proposed rule would require that the air carrier's manual has all the policies, procedures, methods, and instructions for the accomplishment of maintenance by another person to include the information necessary for certificate holders to ensure all maintenance is performed in accordance with its maintenance program. The proposed rule would also require that the air carrier provides a list with the name and address of each maintenance provider used and the type of maintenance that is to be performed and updates and maintains that list.

To calculate the cost of revising the manual and revising and maintaining the list, the following assumptions were used, paralleling those in the regulatory evaluation:

• 94 part 121 manuals have to be revised in year 1.

• 207 part 135 manuals have to be revised in year 1.

• 94 part 121 air carriers have to provide a list in year 1.

• 207 part 135 air carriers have to provide a list in year 1.

• Part 121: amount of time revising manual (manager): 4 hours.

• Part 121: amount of time revising manual (technical writer): 40 hours.

• Part 121: amount of time revising manual (editor): 2 hours.

• Part 135: amount of time revising manual (manager): 8 hours.

• Part 121: amount of time to provide the list (manager): 1 hour.

• Part 121: amount of time to provide the list (technical writer): 3 hours.

• Part 121: amount of time to provide the list (auditor): 10 hours.

• Part 135: amount of time to provide the list (manager): 5 hours.

• Parts 121 & 135: amount of time to maintain list (manager): 6 hours/year.

• Parts 121 & 135: amount of time to maintain list (technical writer): 6 hours/year.

• Wage per hour for manager: $69.78.

• Wage per hour for technical writer: $36.76.

• Wage per hour for editor: $43.45.

• Wage per hour for auditor: $49.79.

The FAA has to ensure that the air carrier's manual has all the policies, procedures, methods, and instructions for the accomplishment of maintenance by another person to include the information necessary for certificate holders to ensure all maintenance is performed in accordance with its maintenance program.

To calculate the cost of revising the manual, the following assumptions were used, paralleling those in the regulatory evaluation:

• 94 part 121 manuals have to be revised in year 1.

• 207 part 135 manuals have to be revised in year 1.

• Part 121: amount of time revising manual (FAA inspector): 1 hour.

• Part 135: amount of time revising manual (FAA inspector): 1 hour.

• Wage per hour for FAA inspector: $96.14.

The agency is soliciting comments to—

(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of collecting information on those who are to respond, including by using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Individuals and organizations may send comments on the information collection requirement to the address listed in theADDRESSESsection at the beginning of this preamble by February 11, 2013.Comments also should be submitted to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Desk Officer for FAA, New Executive Office Building, Room 10202, 725 17th Street NW., Washington, DC 20053.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.

FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in Chapter 3, paragraph 312d and involves no extraordinary circumstances.

The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.

The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.

Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in theFOR FURTHER INFORMATION CONTACTsection of this document, and marked as proprietary or confidential. If submitting information on a disk or CD ROM, mark the outside of the disk or CD ROM, and identify electronically within the disk or CD ROM the specific information that is proprietary or confidential.

Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.

An electronic copy of rulemaking documents may be obtained from the Internet by—

1. Searching the Federal eRulemaking Portal (http://www.regulations.gov);

2. Visiting the FAA's Regulations and Policies web page athttp://www.faa.gov/regulations_policiesor

3. Accessing the Government Printing Office's Web page athttp://www.gpoaccess.gov/fr/index.html.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680. Commenters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:

On March 2, 2002, the Bush Administration authorized the implementation of a steelimport licensing and monitoring program by issuing Proclamation 7529, which placed temporary tariffs on many steel imports and provided the steel industry time to restructure. The monitoring system outlined in Proclamation 7529 required all importers of steel products to obtain a license from the Department of Commerce prior to completing Customs entry summary documentation. This monitoring tool ensured that the effectiveness of the safeguard was not undermined by large quantities of imports originating from countries that were excluded from the tariffs. Pursuant to Proclamation 7529, on December 31, 2002, the Department of Commerce issued final regulations setting forth the “Steel Import Licensing and Surge Monitoring Program” (67 FR 79845).

In Proclamation 7741 of December 4, 2003 (68 FR 68483), the President terminated the steel safeguard measures but directed the Secretary of Commerce to continue the steel import licensing and monitoring system until the earlier of March 21, 2005, or such time as the Secretary of Commerce established a replacement monitoring program. On December 9, 2003 (68 FR 68594), the Department published a notice stating that the monitoring system would continue to be in effect as described in Proclamation 7741 until March 21, 2005. Prior to the March 21, 2005, termination date, the Department of Commerce determined that there continued to be a need to collect import data, and published an interim rule (70 FR 12136, March 11, 2005) revising part 360 to slightly expand the monitoring program, and a final rule (70 FR 72373, December 5, 2005) continuing the program through March 21, 2009; at this time the system became known as SIMA. On March 18, 2009, the Department of Commerce published a final rule (74 FR 11474) in theFederal Registerto continue the SIMA system and extend the program until March 21, 2013, unless further extended upon review and notification in theFederal Register.

This proposed rule would extend the implementation of the current SIMA system until March 21, 2017. This extension would continue the Department's ability to track certain steel mill imports into the United States and make the import data publicly available approximately seven weeks in advance of the full trade data release.

The purpose of the SIMA system is to provide steel producers, steel consumers, importers, and the general public with accurate and timely information on anticipated imports of certain steel products into the United States. Steel import licenses, issued through the online SIMA licensing system, are required by U.S. Customs and Border Protection for filing entry paperwork for imports of certain steel mill products into the United States. Import data collected through the issuance of the licenses are aggregated weekly and posted on the publicly available Steel Mill Import Monitor. Details of the current system and monitor can be found athttp://ia.ita.doc.gov/steel/license/.

The Department proposes to extend the SIMA system beyond its current expiration date for an additional period of four years, until March 21, 2017 (see 19 CFR part 360). SIMA's renewal is coming at a time when the cyclical nature of the global steel industry is of critical concern to the domestic markets. As an import sensitive industry, the industry strongly supports this licensing system as it allows the market to monitor import fluctuations, especially those that may be unfairly traded, as early as possible.

All comments responding to this notice will be a matter of public record and available for public inspection and copying onwww.Regulations.govand at Import Administration's Central Records Unit, Room 7046, between the hours of 8:30 a.m. and 5 p.m. on business days.

Regulatory Flexibility Act. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities as that term is defined in the Regulatory Flexibility Act, 5 U.S.C. 601et seq.A summary of the factual basis for this certification is below.

This proposed rule will not have a significant economic impact on a substantial number of companies. This rule, if implemented, would extend the current SIMA system until March 21, 2017. The entities that would be impacted by this rule are importers and brokerage companies who import steel mill products. These entities would be required to obtain steel import licenses through the online SIMA licensing system for filing entry paperwork required by the U.S. Customs and Border Protection for U.S. imports of steel mill products. Based on statistics derived from current license applications, of the approximately 1,600 licenses issued each day, Commerce estimates that fewer than two percent of the licenses would be filed by importers and brokerage companies that would be considered small entities.

Based on the current usage of SIMA, Commerce does not anticipate that the extension of the SIMA system will have a significant economic impact. Companies are already familiar with the licensing of certain steel products under the current system. In most cases, brokerage companies will apply for the license on behalf of the steel importers. Most brokerage companies that are currently involved in filing documentation for importing goods into the United States are accustomed to Customs and Border Protection's automated entry filing systems. Today, more than 99% of the Customs filings are handled electronically. Therefore, the web-based, automated nature of this simple license application should not be a significant obstacle to any firm in completing this requirement. However, should an importer or brokerage company need to register for an account or apply for a license non-electronically, a fax/phone option will be available at Commerce during regular business hours. There is no cost to register for a company-specific steel license account and no cost to file for the license. Each license form is expected to take less than 10 minutes to complete and collects much of the same information required on the Customs entry summary documentation. The steel import license is the only additional U.S. entry requirement that the importers or their representatives must fulfill in order to import each covered steel product shipment.

Although Commerce does not charge for licenses, Commerce estimates that the likely aggregate license costs incurred by small entities in terms of the time to apply for licenses as a result of this proposed rule would be fewer than two percent, or an estimated $37,151.00, of the estimated total $1,857,560.00 cost to all steel importers to process the on-line automatic licenses. These calculations were based on an hourly pay rate of $20.00 multiplied by the estimated 92,878 total annual burden hours. Based on the current patterns of license applications, the vast majority of the licenses are applied for by large companies. The approximate cost of a single license is less than 10 minutes of the fillers time and this is reduced if applicants use templates or the electronic data interface for multiple licenses.

This proposed rule contains collection-of-information requirements subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork ReductionAct (PRA). These requirements have been approved by OMB (OMB No.: 0625-0245; Expiration Date: 12/31/2014). Public reporting for this collection of information is estimated to be less than 10 minutes per response, including the time for reviewing instructions, and completing and reviewing the collection of information.

Paperwork Reduction Act Data:

OMB Number:0625-0245.

ITA Number:ITA-4141P.

Type of Review:Regular Submission.

Affected Public:Business or other for-profit.

Estimated Number of Registered Users:3,500.

Estimated Time per Response:Less than 10 minutes.

Estimated Total Annual Burden Hours:92,878 hours.

Estimated Total Annual Costs:$0.00.

Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number.

This rule has been determined to be not significant for purposes of Executive Order 12866.

This rule does not contain policies with federalism implications as that term is defined in EO 13132.

For reasons discussed in the preamble, we propose amending 19 CFR 360 as follows:

On July 5, 2012, the Architectural and Transportation Barriers Compliance Board (Access Board) established an advisory committee to make recommendations to the Board on matters associated with comments received and responses to questions included in a previously published NPRM on Medical Diagnostic Equipment Accessibility Standards. See 77 FR 6916 (February 9, 2012). The NPRM and information related to the proposed standards are available on the Access Board's Web site at:http://www.access-board.gov/medical-equipment.htm.

The advisory committee will hold its second meeting on December 3 and 4, 2012. The agenda for the meeting is based on the one originally planned for the October 29 and 30, 2012 meeting dates that were cancelled because of Hurricane Sandy. The agenda includes the following:

• Review of previous committee work;

• Formation of subcommittees based on medical diagnostic equipment type;

•Presentation on the proposed transfer surface size and anthropometric data of people who use wheeled mobility devices by Edward Steinfeld, Arch. D., AIA, Director of the Center for Inclusive Design and Environmental Access;

• Continued discussion on transfer surface height and size;

• Review and discussion on permitted obstructions to the transfer surface;

• Consideration of and possible discussion on issues proposed by committee members; and

• Discussion of administrative issues.

The preliminary meeting agenda, along with information about the committee, is available at the Access Board's Web site (http://www.access-board.gov/medical-equipment.htm).

Committee meetings are open to the public and interested persons can attend the meetings and communicate their views. Members of the public will have opportunities to address the committee on issues of interest to them during public comment periods scheduled on each day of the meeting.

The meetings will be accessible to persons with disabilities. An assistive listening system, computer assisted real-time transcription (CART), and sign language interpreters will be provided. Persons attending the meetings are requested to refrain from using perfume, cologne, and other fragrances for thecomfort of other participants (seewww.access-board.gov/about/policies/fragrance.htmfor more information). Also, persons wishing to provide handouts or other written information to the committee are requested to provide electronic formats to Rex Pace via email prior to the meetings so that alternate formats can be distributed to committee members.

Table of Contents I. General Information II. What is being addressed in this proposed action? III. What Authorities Apply to EPA's Proposed Action IV. EPA's Review and Proposed Action on SIP Revisions V. Summary of EPA's Proposed Action VI. Statutory and Executive Order Reviews Definitions

For the purpose of this document, we are giving meaning to certain words or initials as follows:

(i) The words or initialsActorCAAmean or refer to the Clean Air Act, unless the context indicates otherwise.

(ii) The initialsARMmean or refer to the Administrative Rule of Montana.

(iii) The wordsEPA, we, usorourmean or refer to the United States Environmental Protection Agency.

(iv) The initialsMACTmean Maximum Achievable Control Technology.

(v) The initialsMAQPmean Montana Air Quality Permit.

(vi) The initialsMRRmean Monitoring, Reporting and Recordkeeping.

(vii) The initialsNAAQSmean National Ambient Air Quality Standards.

(viii) The initialsNESHAPmean National Emission Standards for Hazardous Air Pollutants.

(ix) The initialsNSRmean or refer to new source review, a phrase intended to encompass the stationary source regulatory programs that regulate the construction and modification of stationary sources as provided under CAA section 110(a)(2)(C), CAA Title I,parts C and D, and 40 CFR 51.160 through 51.166, which includes new source review for both major and minor sources.

(x) The wordProgrammean or refer to the Montana Oil and Gas Registration Program, unless the context indicates otherwise.

(xi) The initialsSIPmean or refer to State Implementation Plan.

(xii) The wordsStateorMontanamean the State of Montana, unless the context indicates otherwise.

1.Submitting CBI.Do not submit this information to EPA throughwww.regulations.govor email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as CBI and then identify electronically within the disk or CD ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

2.Tips for Preparing Your Comments.When submitting comments, remember to:

a. Identify the rulemaking by docket number and other identifying information (subject heading,Federal Registerdate and page number).

b. Follow directions—The agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.

c. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

d. Describe any assumptions and provide any technical information and/or data that you used.

e. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.

f. Provide specific examples to illustrate your concerns, and suggest alternatives.

g. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

h. Make sure to submit your comments by the comment period deadline identified.

On September 23, 2011 the State of Montana submitted new rules and revisions to revise the Montana SIP. The submission contains new rules I-VI, codified as Administrative Rule of Montana (ARM) 17.8.1601, 17.8.1602, 17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606, pertaining to the regulation of oil and gas well facilities. EPA is proposing to approve these new rules in this notice. The Montana Board of Environmental Review (Board) adopted these new rules to the existing SIP on December 2, 2005.

This submission also contains new rules I-IX, codified as ARM 17.8.1701, 17.8.1702, 17.8.1703, 17.8.1704, 17.8.1705,17.8.1710, 17.8.1711, 17.8.1712 and 17.8.1713 pertaining to the regulation of oil and gas well facilities. EPA is proposing to approve these rule submissions in this action. The Board adopted these new rules to the existing SIP on March 23, 2006.

This submission contains revisions to ARM 17.8.744 which were adopted on March 23, 2006. The proposed revisions to ARM 17.8.744 are a conforming change because of the addition of new rules.

The proposed approval of the revised and new rules listed above would establish a registration system for oil and gas well facilities that presently require a Montana minor NSR air quality permit under the SIP regulations. The proposed new rules would allow the owner or operator of an oil or gas well facility to register with the Montana Department of Environmental Quality (MDEQ) in lieu of submitting a permit application and obtaining a permit to construct or modify the source before commencing construction or modification. Currently, with specific exemptions, the administrative rules adopted under the Montana Clean Air Act and approved by the EPA into the SIP, require the owner or operator of sources of air pollution to obtain a permit prior to construction or modification.

Montana originally submitted these rules on October 16, 2006 and November 1, 2006, to EPA for inclusion into the SIP. EPA proposed to disapprove these submittals on January 6, 2011 (76 FR 758). EPA had several concerns with the Program, as was explained in 76 FR 758. In March of 2011, the State withdrew the October 16, 2006, and November 1, 2006, submittals and, after several discussions between EPA and the State, Montana resubmitted the oil and gas rules on September 23, 2011. The State's September 2011 submittal included a revised CAA section 110(l) demonstration and other supplemental data, which addressed the concerns we raised in our 76 FR 758 proposed action.

Section 110(l) of the CAA states, “[e]ach revision to an implementation plan submitted by a State under this Act shall be adopted by such State after reasonable notice and public hearing. The Administrator shall not approve a revision to a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act.”

A demonstration is necessary to show that this revision will not interfere with attainment or maintenance of the NAAQS, including those for ozone, particulate matter, carbon monoxide, sulfur dioxide, lead, nitrogen oxides or any other requirement of the Act. Therefore, EPA will approve a SIP revision only after a state has demonstrated that such a revision will not interfere (“noninterference”) with attainment of the NAAQS, rate of progress, reasonable further progress or any other applicable requirement of the CAA.

The CAA at section 110(a)(2)(C) requires states to include a minor NSR program in their SIP to regulate modifications and new construction of stationary sources within the area as necessary to assure the NAAQS are achieved. EPA's implementing regulations at 40 CFR 51.160-164 are intended to ensure that new source growth is consistent with maintenance of the NAAQS and 40 CFR 51.160(e) requires states to identify types and sizes of facilities which will be subject to review under their minor NSR program. For sources identified under 40 CFR 51.160(e), section 51.160(a) requires that the SIP include legally enforceable procedures that enable a state or local agency to determine whether construction or modification of a facility, building, structure or installation, or combination of these will result in a violation of applicable portions of the control strategy; or interference with attainment or maintenance of a national standard in the state in which the proposed source (or modification) is located or in a neighboring state. Section 110(i) of the CAA specifically precludes states from changing the requirements of the SIP except through SIP revisions approved by EPA. SIP revisions will be approved by EPA only if they meet allrequirements of section 110 of the CAA and the implementing regulations at 40 CFR part 51. See CAA section 110(l); 40 CFR 51.104.

EPA has also issued several guidance memoranda that explain the Agency's requirements for practicable enforceability for purposes of effectively limiting a source's potential to emit (See docket).

EPA recognizes that, under the applicable federal regulations, states have broad discretion to determine the scope of their minor NSR programs as needed to attain and maintain the NAAQS. A state may tailor its minor NSR requirements as long as they are consistent with the requirements of 40 CFR part 51. States may also provide a rationale for why the rules are at least as stringent as the 40 CFR part 51 requirements where the revisions are different from those in 40 CFR part 51.

Since there are no ambient air quality standards for air toxics, the area's compliance with any applicable maximum achievable control technology (MACT) standards, as well as, any federal mobile source control requirements under CAA sections 112 or 202(l) would constitute an acceptable demonstration of noninterference for air toxics.

Section 110(l) does not require a demonstration of noninterference for changes to federal requirements that are not included in the SIP. A revision to the SIP, however, cannot interfere with any federally mandated program such as a MACT standard (or related section 112 requirements).

EPA is proposing to approve the new and revised rules as submitted by Montana on September 23, 2011, as identified above.

As discussed above, any minor NSR SIP revision submittal must meet section 110(l) of the CAA. Section 110(l) of the Act indicates that EPA cannot approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in Section 171), or any other applicable requirement of the Act. In a memo from Richard R. Long, Director, Region 8 Air and Radiation Program, to the Montana Board of Environmental Review on January 30, 2006 (see docket) we stated that MDEQ should provide an appropriate analysis showing that the proposed new rules will not impact the NAAQS or prevention of significant deterioration (PSD) increments. One of the concerns EPA expressed in 76 FR 758 related to the cumulative effect of numerous registration sources. We recommended that MDEQ perform a screening cumulative impact analysis showing what effect oil and gas well facilities would have on the ozone, NO2, SO2and PM NAAQS and PSD increments. MDEQ performed such an analysis. (See docket, demonstration of noninterference pages 1-42 and attachments 1-11.) MDEQ's analysis went back prior to 2006, when Montana began implementing the Oil and Gas Registration Program as a state-approved rule, and provided data on the amount of oil and gas registration applications received. Monitoring and modeling data for all NAAQS pollutants from 2006 to present shows that the Oil and Gas Registration Program has not interfered with attainment or maintenance of any NAAQS, PSD increment, or any other requirement of the Act. Therefore, EPA has sufficient information to determine that the proposed new and revised rules would not interfere with any applicable requirement concerning attainment and maintenance of the NAAQS, PSD increments, or any other requirement of the Act.

EPA expressed concerns in 76 FR 758 that the new rules do not meet the requirements of CAA Section 110(a)(2)(A) and 40 CFR 51.160(a)(1), which require that SIP revision submittals be enforceable. The September 23, 1987, Memorandum from J. Craig Potter, Assistant Administrator for Air and Radiation, and Thomas L. Adams Jr., Assistant Administrator for Enforcement and Compliance Monitoring, entitled “Review of State Implementation Plans and Revisions for Enforceability and Legal Sufficiency” provides EPA's guidance for interpreting this provision in the Act.

EPA initially viewed the new rules as a stand-alone program, which was not subject to provisions in the other parts of ARM 17.8. As such, we were concerned that the new and revised rules did not set forth legally enforceable procedures that would enable the State or local agency to determine whether construction of a minor source facility would result in interference with attainment or maintenance of the NAAQS (40 CFR 51.160(a)) and that such procedures did not include a means by which the State or local agency to prevent construction of a minor source facility if it would result in interference with attainment or maintenance of the NAAQS (40 CFR51.160(b)). In 76 FR 758, EPA did not consider other requirements in ARM 17.8 as being applicable to the Program. However, after reviewing the State's 110(l) demonstration and the requirements in ARM 17.8, it is clear that the rules in ARM 17.8 subchapters 1-6 and portions of subchapter 7 apply to the State's new rules for oil and gas facilities registration. (See 110(l) demonstration pages 2-9 and attachments 2 and 3 of the state's 110(l) analysis.) These subchapters provide, for example, testing requirements, source testing protocol, malfunction procedures, enforcement procedures, and specific ambient air monitoring requirements for criteria pollutants. Therefore, the new and revised rules which we are proposing for approval in this notice are in compliance with CAA Section 110(a)(2)(A), 40 CFR 51.160(a) and 40 CFR 51.160(b).

EPA also had concerns that a source did not need to provide notice to the State before construction begins. The new and revised rules allow sources to operate and emit criteria pollutants up to 60 days before submitting a registration or permit application; therefore there is no requirement that the State be notified before construction begins. However, the new rules in ARM 17.8.16 contain numerous safeguards that facilities must operate under until the MDEQ approves the registration or permit application. These safeguards include: limiting production; limiting hours of operation and/or fuel consumption to ensure that the facility's potential to emit is below major source thresholds (17.8.1604); emission control requirements (17.8.1605); inspection and repair requirements (17.8.1608); and reporting and recordkeeping requirements (17.8.1609). Sources must also comply with requirements in ARM 17.8.1 (general requirements), ARM 17.8.2 (ambient standards), and ARM 17.8.3 (emission standards), in addition to all other applicable requirements in ARM 17.8. Therefore, EPA concludes that the new and revised rules do not violate 40 CFR 51.160(a) and 40 CFR 160(b).

EPA also had concerns that the Program did not include the necessary monitoring, reporting and recordkeeping (MRR) requirements required for an oil and gas registration program to ensure accountability and provide a means to determine compliance. However, EPA did not consider the requirements of other subchapters of chapter 8 when considering MRR requirements. As described in the State's submittal (110(l) demonstration, Table 1 (pages 3-15) and Table 2 (pages 18-21), the MRR requirements in ARM 17.8.1 (General Requirements), ARM 17.8.2 (Ambient Air Quality), ARM 17.8.3 (Emission Standards) are all applicable to registered sources, in addition to theMRR requirements in ARM 17.8.1605 and ARM 17.8.1713. Therefore, EPA proposes to find that the MRR requirements for a registered oil and gas facility are at least as stringent as what would be required for an oil and gas facility that would operate under a Montana Air Quality Permit (MAQP). The SIP approved MAQP rules contain no specific MRR requirements. Instead, a permitted facility is given MRR requirements through the actual permit. In existing MAQP regulations (ARM 17.8.7), the MRR requirements are specified in the facility permit pursuant to a case-by-case best available control technology analysis rather than uniform rule conditions.

EPA also finds that the regulatory provisions in 40 CFR 51.160(c), 40 CFR 51.160(d), 40 CFR 51.160(e) and 40 CFR 51.160(f), are met by the requirements in ARM 17.8.1703 (Registration Process and Information), ARM 17.8.1705 (Operating Requirements: Facility-Wide) and the requirements in ARM 17.8.1. The MDEQ issued a Notice of Public Hearing and allowed for public comment (see submittal, tabs 19 and 20), which meets the requirements in 40 CFR 51.161 (public availability of information). The requirements in 40 CFR 51.164 (stack height procedures) are met in ARM 17.8.4 (stack heights and dispersion techniques).

EPA also expressed concerns in 76 FR 758 with new rule ARM 17.8.1703(7), which provides that “The owner or operator of a registration eligible facility for which a valid MAQP has been issued may register with the department and request a revocation of the MAQP.” In 76 FR 758, EPA concluded this was a relaxation under CAA section 110(l), because it provides an exemption from SIP requirements not previously available to sources. This SIP relaxation would create a risk of interference with attainment and maintenance of the NAAQS and control strategy. EPA lacked sufficient information to determine that 17.8.1703(7) would not interfere with attainment and maintenance of the NAAQS, PSD increment, or any other requirement of the Act.

Montana issued approximately 30 MAQPs to oil and gas well facilities prior to implementing the oil and gas registration program. A comparison of MAQP requirements and registration requirements (see the state's110(l) analysis, pages 19-21) show comparable requirements.

EPA also expressed concerns in 76 FR 758 with new rule ARM 17.8.1712(1), which provides that, “[l]eak detection methods may incorporate the use of sight, sound, or smell.” After further review, we propose to find that this language is approvable because ARM 17.8.1712(1) is similar to EPA regulatory requirements in 40 CFR part 63, subpart BBBBBB and will not interfere with any applicable requirements of the Act. EPA notes that 40 CFR part 63, subpart BBBBBB provides similar leak detection methods using sight, sound, and smell. This regulation applies to area sources under the National Emission Standards for Hazardous Air Pollutants (NESHAPs) for Source Category: Gasoline Distribution Bulk Terminals, Bulk Plants, and Pipeline Facilities. EPA determined for this source category it was appropriate to allow leak detection methods using sight, sound, and smell.

EPA is proposing to approve revisions to ARM 17.8.744 and new rules I-VI, codified as ARM 17.8.1601, 17.8.1602, 17.8.1603, 17.8.1604, 17.8.1605, and 17.8.1606, pertaining to the regulation of oil and gas well facilities, and new rules I-IX, codified as ARM 17.8.1701, 17.8.1702, 17.8.1703, 17.8.1704, 17.8.1705,17.8.1710, 17.8.1711, 17.8.1712 and 17.8.1713 pertaining to the regulation of oil and gas well facilities, as submitted by the State of Montana on September 23, 2011.

EPA is proposing to approve the new and revised rules as identified in this action and EPA is proposing approval based upon sufficient information to determine that the requested revision to add the new oil and gas registration program to the Montana SIP will not interfere with any applicable requirement concerning attainment and reasonable further progress as required by CAA Section 110(l), or any other requirement of the Act. The new and revised rules comply with section 110(a)(2)(C), which requires states to include a minor NSR program in their SIP to regulate modifications and new construction of stationary sources within the area as necessary to assure the NAAQS are achieved. EPA also finds the new and revised rules comply with 40 CFR 51.160-40 CFR 51.164 and meet the requirements for appropriate MRR. EPA is also proposing to approve ARM 17.8.744 as these revisions are conforming changes to the addition of new rules.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601et seq.);

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

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

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

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

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

EPA is proposing to take several related actions. First, under Clean Air Act (CAA or “Act”) section 110(k)(3), EPA is proposing to approve a submittal from the Nevada Division of Environmental Protection (NDEP) dated April 11, 2011 of Clark County'sOzone Redesignation Request and Maintenance Plan(March 2011) (“Clark County Ozone Maintenance Plan” or “Ozone Maintenance Plan”) as a revision to the Nevada state implementation plan (SIP).

In connection with the Clark County Ozone Maintenance Plan, EPA finds that the maintenance demonstration showing how the area will continue to attain the 1997 8-hour ozone national ambient air quality standard (NAAQS) for 10 years beyond redesignation (i.e.,through 2022) and the contingency provisions describing the actions that Clark County will take in the event of a future monitored violation meet all applicable requirements for maintenance plans and related contingency provisions in CAA section 175A. EPA is also proposing to approve the motor vehicle emissions budgets (MVEBs) in the Clark County Ozone Maintenance Plan because we find they meet the applicable transportation conformity requirements under 40 CFR 93.118(e).

Second, under CAA section 107(d)(3)(D), EPA is proposing to approve NDEP's request that accompanied the submittal of the maintenance plan to redesignate the Clark County 8-hour ozone nonattainment area to attainment for the 1997 8-hour ozone NAAQS. We are doing so based on our conclusion that the area has met the five criteria forredesignation under CAA section 107(d)(3)(E). Our conclusion in this regard is in turn based on our proposed determination that the area has attained the 1997 8-hour ozone NAAQS, that relevant portions of the Nevada SIP are fully approved, that the improvement in air quality is due to permanent and enforceable reductions in emissions, that Nevada has met all requirements applicable to the Clark County 8-hour ozone nonattainment area with respect to section 110 and part D of the CAA, and based on our proposed approval as part of this action of the Clark County Ozone Maintenance Plan.

Ground-level ozone is generally not emitted directly by sources. Rather, directly-emitted oxides of nitrogen (NOX) and volatile organic compounds (VOC) react in the presence of sunlight to form ground-level ozone, as a secondary pollutant, along with other secondary compounds. NOXand VOC are “ozone precursors.” Reduction of peak ground-level ozone concentrations is typically achieved through controlling VOC and NOXemissions.

In 1971, under section 109 of the Act, as amended in 1970, EPA promulgated the original NAAQS for several pervasive air pollutants, including photochemical oxidants. NAAQS represent concentration levels the attainment and maintenance of which, allowing for an adequate margin of safety, EPA has determined to be requisite to protect public health (“primary” NAAQS) and welfare (“secondary” NAAQS).

In 1978, EPA designated the Las Vegas Valley (hydrographic area No. 212) as a nonattainment area for the photochemical oxidant NAAQS. See 43 FR 8962 (March 3, 1978). In 1979, EPA revised the NAAQS from an hourly average of 0.08 parts per million (ppm) oxidant to an hourly average of 0.12 ppm ozone. See 44 FR 8202 (February 8, 1979). The nonattainment designation for Las Vegas Valley for photochemical oxidant carried over to the 1-hour ozone NAAQS.

During the 1980s, Clark County adopted a number of rules and prepared a number of nonattainment plans to address planning requirements under the CAA, as amended in 1977. NDEP submitted these rules and plans to EPA at various times, and EPA approved a number of them into the Nevada SIP. Among the rules approved by EPA as revisions to the Nevada SIP as part of the ozone control strategy in Las Vegas Valley are Clark County air pollution rules section 33, which relates to chlorine in chemical processes); sections 50, 51, and 52, which relate to storage and distribution of petroleum products; and section 60, which relates to evaporation and leakage. In 1986, in light of the approved control strategy and monitored levels below the NAAQS, EPA redesignated Las Vegas Valley to attainment for the 1-hour ozone NAAQS. See 51 FR 41788 (November 19, 1986).

In 1997, EPA revised the NAAQS for ozone, setting it at 0.08 ppm averaged over an 8-hour time frame (“1997 8-hour ozone standard”). EPA set the 1997 8-hour ozone standard based on scientific evidence demonstrating that ozone causes adverse health effects at lower ozone concentrations and over longer periods of time, than was understood when the pre-existing 1-hour ozone standard was set. EPA determined that the 1997 8-hour standard would be more protective of human health, especially for children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma.1

In 2004, EPA designated areas of the country with respect to the 1997 8-hour ozone NAAQS. See 69 FR 23858 (April 30, 2004). Under EPA's “Phase 1” implementation rule for the 1997 8-hour ozone standard (69 FR 23951, April 30, 2004), an area was classified under subpart 2 based on its 8-hour ozone design value (i.e.,the 3-year average annual fourth-highest daily maximum 8-hour average ozone concentration at the worst-case monitoring site in the area or in its immediate downwind environs), if it had a 1-hour ozone design value2 at the time of designation at or above 0.121 ppm. All other areas were covered under subpart 1 based on their 8-hour ozone design values3 (69 FR 23951). Clark County was designated as a “subpart 1” ozone nonattainment area by EPA on April 30, 2004 based on air quality monitoring data from 2001-2003. The designation became effective on June 15, 2004. On September 17, 2004, EPA reduced the geographic extent of the ozone nonattainment area to encompass a portion of, but not all of, Clark County.4 See 69 FR 55956 (September 17, 2004), 70 FR 71612 (November 29, 2005), and 40 CFR 81.329.

On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit) vacated EPA's Phase 1 implementation rule for the 1997 8-hour ozone standard (69 FR 23951, April 30, 2004).South Coast Air Quality Management Dist.v.EPA,472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in response to several petitions for rehearing, the DC Circuit Court (Court) clarified that the Phase 1 rule was vacated only for those parts of the rule that had been successfully challenged. The June 8, 2007, decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour ozone standard in certain nonattainment areas under subpart 1 in lieu of subpart 2 of the CAA.

On May 14, 2012, in response to the Court's vacating of the provision of EPA's Phase 1 implementation rule for the 1997 8-hour ozone standard that placed certain nonattainment areas, including Clark County solely under subpart 1, EPA classified Clark County as a marginal ozone nonattainment area under subpart 2 of the CAA (77 FR 28424).

On July 28, 2008, NDEP submitted the8-hour Ozone Early Progress Plan for Clark County, Nevada(June 2008) (“Clark County Ozone EPP”) to EPA as a revision to the Nevada SIP. The purpose of the Clark County Ozone EPP was to establish motor vehicle emissions budgets (MVEBs) consistent with progress towards attainment of the 1997 8-hour ozone standard in advance of completion and submittal of an attainment demonstration. The Clark County EPP established MVEBs of 64.2 and 76.1 tons per day (ozone season) for VOC and NOX,respectively, for 2008. On May 5, 2009, EPA found the MVEBs in the Clark County EPP adequate for the purposes of transportation conformity. See 74 FR 22738 (May 14, 2009). Since the effective date of EPA's adequacy finding (i.e.,May 29, 2009), the applicable metropolitan planning organization (MPO),i.e.,the Regional Transportation Commission of Southern Nevada (RTC), and the U.S. Departmentof Transportation have been required to use these budgets in transportation conformity analyses for regional transportation plans, programs and projects.

On March 29, 2011, EPA determined that the Clark County 8-hour ozone nonattainment area had attained the 1997 8-hour ozone NAAQS, based on complete, quality-assured, and certified ambient air monitoring data that showed the area monitored attainment of the 1997 8-hour ozone NAAQS for the 2007-2009 monitoring period (76 FR 17343). As a result, the obligation for the State of Nevada to submit an attainment demonstration and associated reasonably available control measures (RACM), a reasonable further progress (RFP) plan, contingency measures and other planning requirements related to attainment of the 1997 8-hour ozone NAAQS was suspended until such time as: the area is redesignated to attainment, at which time the requirements no longer apply; or EPA determines that the area has violated the 1997 8-hour ozone NAAQS. See 40 CFR 51.918. In this action, we are updating the determination of attainment to account for more recent ozone monitoring data consistent with the applicable criterion for redesignation under CAA section 107(d)(3)(E)(i).

Lastly, on April 11, 2011, NDEP submitted the Clark County Ozone Maintenance Plan and requested that EPA redesignate the Clark County 8-hour ozone nonattainment area to attainment for the 1997 8-hour ozone standard. We are proposing action today on the NDEP's April 11, 2011 redesignation request and submittal of the Clark County Ozone Maintenance Plan.

Section 110(l) of the Act requires States to provide reasonable notice and public hearing prior to adoption of SIP revisions. In this action, we are proposing action on NDEP's April 11, 2011 submittal of the Clark County Ozone Maintenance Plan as a revision to the Nevada SIP.

Appendix C of the Clark County Ozone Maintenance Plan documents the public review process followed by Clark County in adopting the plan prior to transmittal to NDEP for subsequent submittal to EPA as a revision to the Nevada SIP. The documentation in appendix C provides evidence that reasonable notice of a public hearing was provided to the public and that a public hearing was conducted prior to adoption. Specifically, notice of the availability of, and opening of a 30-day comment period on, the draft ozone maintenance plan was published on December 12, 2010 in a newspaper of general circulation within the Las Vegas area and on the County's Web page. No comments were submitted.

On February 1, 2011, the Clark County Board of Commissioners set a public hearing for March 15, 2011 to consider and approve the Clark County Ozone Maintenance Plan. The announcement of the public hearing was subsequently published on the County's Web page. On March 15, 2011, the Clark County Board of Commissioners adopted the Clark County Ozone Maintenance Plan at the close of the public hearing. Following adoption, Clark County Department of Air Quality (DAQ) forwarded the plan to NDEP, the Governor of Nevada's designee for SIP matters, and NDEP then submitted the plan as a revision to the Nevada SIP to EPA for approval on April 11, 2011.

Based on the documentation contained in appendix C of the plan, we find that the submittal of the Clark County Ozone Maintenance Plan as a SIP revision satisfies the procedural requirements of section 110(l) of the Act for revising SIPs.

The CAA establishes the requirements for redesignation of a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation provided that the following criteria are met: (1) EPA determines that the area has attained the applicable NAAQS; (2) EPA has fully approved the applicable implementation plan for the area under section 110(k); (3) EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP, applicable Federal air pollution control regulations, and other permanent and enforceable reductions; (4) EPA 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 section 110 and part D of the CAA. Section 110 identifies a comprehensive list of elements that SIPs must include, and part D establishes the SIP requirements for nonattainment areas. Part D is divided into six subparts. The generally-applicable nonattainment SIP requirements are found in part D, subpart 1, and the ozone-specific nonattainment SIP requirements are found in part D, subpart 2.

EPA provided guidance on redesignations in a document entitled, “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” published in theFederal Registeron April 16, 1992 (57 FR 13498), and supplemented on April 28, 1992 (57 FR 18070) (referred to herein as the “General Preamble”). Another relevant EPA guidance document includes “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, EPA Office of Air Quality Planning and Standards, September 4, 1992 (referred to herein as the “Calcagni memo”).

For the reasons set forth below in section V of this document, we propose to approve NDEP's request for redesignation of the Clark County 8-hour ozone nonattainment area to attainment for the 1997 8-hour ozone NAAQS based on our conclusion that all of the criteria under CAA section 107(d)(3)(E) have been satisfied.

CAA section 107(d)(3)(E)(i) requires that we determine that the area has attained the NAAQS. EPA generally makes the determination of whether an area's air quality meets the ozone NAAQS based upon the most recent three years of complete, quality-assured data gathered at established State and Local Air Monitoring Stations (SLAMS) in the nonattainment area and entered into the EPA Air Quality System (AQS) database. Data from air monitors operated by state/local agencies in compliance with EPA monitoring requirements must be submitted to AQS. Heads of monitoring agencies annually certify that these data are accurate to the best of their knowledge. Accordingly, EPA relies primarily on data in AQS when determining the attainment status of areas.See40 CFR 50.10; 40 CFR part 50, appendix I; 40 CFR part 53; 40 CFR part 58, appendices A, C, D and E. All data are reviewed to determine the area's air quality status in accordance with 40 CFR part 50, appendix I.

Under EPA regulations at 40 CFR part 50, the 1997 8-hour ozone standard is attained at a site when the 3-year average of the annual fourth-highestdaily maximum 8-hour average ozone concentrations at an ozone monitor is less than or equal to 0.08 ppm. See 40 CFR 50.10. This 3-year average is referred to as the design value. When the design value is less than or equal to 0.084 ppm (based on the rounding convention in 40 CFR part 50, appendix I) at each monitoring site within the area, then the area is meeting the NAAQS. The data completeness requirement is met when the three-year average percent of days with valid ambient monitoring data is at least 90%, and no single year has less than 75% data completeness as determined in appendix I of 40 CFR part 50.

The Clark County Department of Air Quality (DAQ), (previously known as Clark County Department of Air Quality and Environmental Management, or DAQEM) is responsible for monitoring ambient air quality within Clark County. DAQ submits monitoring network plan reports to EPA on an annual basis. These reports discuss the status of the air monitoring network, as required under 40 CFR part 58. Beginning in 2007, EPA has reviewed these annual plans for compliance with the applicable reporting requirements in 40 CFR 58.10. With respect to ozone, we have found DAQ's annual network plans to meet the applicable requirements under 40 CFR part 58. See EPA letters to DAQ concerning DAQ's annual network plan reports for 2010 and 2011, included in the docket for this rulemaking. Furthermore, we concluded in our Technical System Audit Report (February 2010) that Clark County DAQ's ambient air monitoring network currently meets or exceeds the requirements for the minimum number of monitoring sites designated as SLAMS for all of the criteria pollutants. Also, DAQ annually certifies that the data it submits to AQS are complete and quality-assured. See,e.g.,the letter dated February 28, 2012, from Lewis Wallenmeyer, Director, DAQ, to Jared Blumenfeld, EPA Region IX Regional Administrator.

Clark County DAQ operated 13 ozone SLAMS monitoring sites during the 2009-2011 period5 within the Clark County ozone nonattainment area: Apex (Apex Valley), Boulder City (City of Boulder City), Craig Road (City of North Las Vegas), J.D. Smith School (City of North Las Vegas), Jean (City of Jean, south of Las Vegas), Jerome Mack (near North Las Vegas Airport), Joe Neal (northwest Las Vegas), Lone Mountain (northwest Las Vegas), Orr School (central-southeast Las Vegas), Paul Meyer Park (southwest Las Vegas), Palo Verde School (west Las Vegas), Walter Johnson (west Las Vegas), and Winterwood (southeast Las Vegas). All 13 sites have monitored ozone concentrations on a continuous basis using ultraviolet absorption monitors.6 The spatial scale and monitoring objective of most of DAQ's ozone monitoring sites are “neighborhood” and “population exposure,” respectively. The exceptions are the Apex and Jean sites, whose spatial scale and monitoring objective is “regional” and “regional transport,” respectively, and the Joe Neal site, whose spatial scale is “neighborhood” and monitoring objective is “highest concentration.” See “Clark County Department of Air Quality and Environmental Management—Annual Network Plan Report (June 2011).”

Consistent with the requirements contained in 40 CFR part 50, EPA has reviewed the ozone ambient air monitoring data for the monitoring period from 2009 through 2011 collected at the monitoring sites discussed above, as recorded in AQS and summarized in table 1, and found that the data meet our completeness criteria, except at the discontinued or newly-operating monitoring sites.7

Table 1 summarizes the site-specific annual fourth-high daily maximum 8-hour ozone concentrations and 3-year ozone design values for all monitoring sites within the Clark County 8-hour ozone nonattainment area for the period of 2009-2011. As shown in table 1, the design value for the 2009-2011 period was less than 0.084 ppm at all of the monitors. Therefore, we are proposing to determine, based on the complete, quality-assured data for 2009-2011, that the Clark County 8-hour ozone nonattainment area has attained the 1997 8-hour ozone standard. There are ten ozone monitors currently operating in the nonattainment area. Preliminary SLAMS data for 2012 from these monitors, which are summarized in table 2, are also consistent with continued attainment.

Section 107(d)(3)(E)(ii) and (v) require EPA to determine that the area has a fully approved applicable SIP under section 110(k) that meets all applicable requirements under section 110 and part D for the purposes of redesignation.

Section 110(a)(2) sets forth the general elements that a SIP must contain in order to be fully approved. Although section 110(a)(2) was amended in 1990, a number of the requirements did not change in substance, and therefore, EPA believes that the pre-amendment EPA-approved SIP met these requirements in Clark County with respect to ozone. As to those requirements that were amended, (see 57 FR 27936 and 27939, June 23, 1992), many are duplicative of other requirements of the Act. EPA has analyzed the Nevada SIP and determined that it is consistent with the requirements of amended section 110(a)(2). The Clark County portion of the approved Nevada SIP contains enforceable emission limitations; requires monitoring, compiling and analyzing of ambient air quality data; requires preconstruction review of new or modified stationary sources; provides for adequate funding, staff, and associated resources necessary to implement its requirements; and provides the necessary assurances that the State maintains responsibility for ensuring that the CAA requirements are satisfied in the event that Clark County is unable to meet its CAA obligations.8

On numerous occasions over the past 38 years, NDEP has submitted and we have approved provisions addressing the basic CAA section 110 provisions. There are no outstanding or disapproved applicable SIP submittals with respect to the Clark County portion of the SIP that prevent redesignation of the Clark County 8-hour ozone nonattainment area for the 1997 8-hour ozone standard.9 Therefore, we propose to conclude that NDEP and Clark County have met all SIP requirements for Clark County applicable for purposes of redesignation under section 110 of the CAA (General SIP Requirements).

The CAA contains two sets of provisions, subparts 1 and 2, that address planning and emission control requirements for ozone nonattainment areas. Both of these subparts are found in title I, part D of the CAA; sections 171-179 and sections 181-185, respectively. Subpart 1 contains general, less prescriptive requirements for all nonattainment areas of any pollutant, including ozone, governed by a NAAQS. Subpart 2 contains additional, more specific requirements for ozone nonattainment areas classified under subpart 2.

The applicable subpart 1 requirements are contained in sections 172(c)(1)-(9) and 176 of the CAA. Under subpart 1, with respect to the Clark County 8-hour ozone nonattainment area, the State of Nevada is required to submit SIP revisions that provide for:

• Implementation of all reasonably available control measures (RACM), including, at a minimum, reasonably available control technology for existing sources and attainment of the standard (section 172(c)(1));

• Reasonable further progress (section 172(c)(2));

• A comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in the area (section 172(c)(3));

• Identification and quantification of the emissions, if any, of any such pollutants which will be allowed in accordance with section 173(a)(1)(B) (i.e.,new or modified stationary sources located in established economic development zones) (section 172(c)(4));

• Permits for the construction and operation of new and modified major stationary sources in the nonattainment area (section 172(c)(5));

• Enforceable emission limitations as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date (section 172(c)(6));

• Compliance with section 110(a)(2) of the Act (section 172(c)(7));

• Use of equivalent modeling emission inventory, and planning procedures if approved by EPA (section 172(c)(8));

• Contingency measures (section 172(c)(9)); and

• Interagency consultation and enforceability for the purposes of transportation conformity (section 176(c)(5) and 40 CFR 51.390).

As noted above, EPA determined that the Clark County 8-hour ozone nonattainment area attained the 1997 8-hour ozone NAAQS based on 2007-2009 ozone data (76 FR 17343, March 29, 2011), and thereby suspended, under 40 CFR 51.918, the obligation on the State of Nevada to submit an attainment demonstration and associated reasonably available control measures (RACM), a reasonable further progress (RFP) plan, contingency measures and other planning requirements related to attainment of the 1997 8-hour ozone NAAQS until such time as: the area is redesignated to attainment, at which time the requirements no longer apply; or EPA determines that the area has violated the 8-hour ozone NAAQS. As such, the State's compliance status with the attainment-related SIP requirements under subpart 1 is not relevant for the purposes of evaluating the State's redesignation request. In addition, we note that the State has not sought to exercise the options available under CAA sections 172(c)(4) (identification and quantification of certain emissions increases) or 172(c)(8) (equivalent techniques).

With respect to the requirements associated with subpart 2, we note that, as discussed in more detail above, the Clark County 8-hour ozone nonattainment area was initially designated nonattainment under subpart 1 of the CAA, but was subsequently classified as marginal nonattainment for the 1997 8-hour ozone standard under subpart 2 of part D of the CAA. See 77 FR 28424 (May 14, 2012). The effective date of EPA's classification of the Clark County 8-hour ozone nonattainment area as marginal was June 13, 2012, and under the final May 14, 2012 subpart 2 classifications rule, states have one year from the effective date of that final rule (i.e.,June 13, 2013) to submit SIP revisions.

NDEP has not submitted any SIP revisions for the Clark County 8-hour ozone nonattainment area in response to the area's recent classification to marginal.10 However, EPA believes that this does not preclude this redesignation from being approved. This belief is based upon: (1) EPA's longstanding policy of evaluating requirements in accordance with the requirements due at the time redesignation request is submitted; and (2) consideration of the inequity of applying retroactively any requirements that might in the future be applied.

First, at the time the redesignation request was submitted (i.e.,April 11, 2011), the Clark County 8-hour ozone nonattainment area was not classified under subpart 2, and thus, subpart 2 requirements were not yet due for this area. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the CAA, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request.Seethe Calcagni memo and also the September 17, 1993, Michael Shapiro Memorandum (“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), and 60 FR 12459, (March 7, 1995) (Redesignation of Detroit-Ann Arbor, Michigan);Sierra Clubv.EPA,375 F.3d 537 (7th Cir. 2004) (upholding this interpretation); 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis, Missouri).

Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The D.C. Circuit Court has recognized the inequity in such retroactive rulemaking (seeSierra Clubv.Whitman285 F. 3d 63 (D.C. Cir. 2002)), in which the court upheld a district court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The court stated, “[a]lthough EPA failed to make the nonattainment determination within the statutory frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the states, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.”Id.at 68. Similarly here, it would be unfair to penalize the Clark County 8-hour ozone nonattainment area by applying to it, for purposes of redesignation, additional SIP requirements under subpart 2 that were not in effect or yet due at the time it submitted its redesignation request, or the time that the Clark County 8-hour ozone nonattainment area attained the NAAQS.

In the following paragraphs, we explain how the State has met the SIP revision requirements for those remaining requirements under part D that are not currently suspended or not otherwise applicable.

EPA regulations at 40 CFR 51.915 extend the SIP requirements under CAA sections 172(c)(3) to areas designated as nonattainment for the 1997 8-hour ozone standard. CAA section 172(c)(3) requires States to submit a comprehensive, accurate, current inventory of actual VOC and NOXemissions for the baseline year from all sources within the nonattainment area. The inventory is to address actual VOC and NOXemissions during the ozone season, and all stationary (generally referring to larger stationary source or “point” sources), area (generally referring to smaller stationary andfugitive (non-smokestack) sources), and mobile (on-road, nonroad, locomotive and aircraft) sources are to be included in the inventory.

We interpret the Act such that the emission inventory requirements of section 172(a)(3) are satisfied by the inventory requirements of the maintenance plan. See 57 FR 13498, at 13564 (April 16, 1992). Thus, our proposed approval of the Clark County Ozone Maintenance Plan and related VOC and NOXemission inventories and our proposed approval of NDEP's redesignation request would satisfy the requirements of sections 172(a)(3) for the purposes of redesignation of the Clark County 8-hour ozone nonattainment area to attainment for the 1997 8-hour ozone NAAQS.

To meet the requirements of CAA section 172(c)(5), states must submit SIP revisions that meet the requirements under 40 CFR 51.165 (“Permit requirements”), and EPA regulations at 40 CFR 51.914 extend the SIP requirements of 40 CFR 51.165 to areas designated as nonattainment for the 1997 8-hour ozone standard.

Under 40 CFR 51.165, states are required to submit SIP revisions that establish certain requirements for new or modified stationary sources in nonattainment areas, including provisions to ensure that major new sources or major modifications of existing sources of nonattainment pollutants incorporate the highest level of control, referred to as the Lowest Achievable Emission Rate (LAER), and that increases in emissions from such stationary sources are offset so as to provide for reasonable further progress towards attainment in the nonattainment area.

The process for reviewing permit applications and issuing permits for new or modified stationary sources of air pollution is referred to as “New Source Review” (NSR). With respect to nonattainment pollutants in nonattainment areas, this process is referred to as “nonattainment NSR.” With respect to pollutants for which an area is designated as attainment or unclassifiable, states are required to submit SIP revisions that ensure that major new stationary sources and major modifications of existing stationary sources meet the Federal requirements for Prevention of Significant Deterioration” (PSD), including application of “best available control technology,” for each applicable pollutant emitted in significant amounts, among other requirements.

As noted above, under Nevada law, specific electric steam-generating emission units (i.e.,power plants) within Clark County are under NDEP jurisdiction. See Nevada Revised Statutes (NRS) section 445B.500. Thus, state regulations govern air pollution permits issued by NDEP to those units. Clark County DAQ is responsible for all other stationary sources emissions units, and Clark County regulations govern air pollutant permits issued to them.

Under the Clean Air Act Amendments of 1977, States with designated nonattainment areas were required to amend their NSR rules to impose LAER and offset requirements on new major sources and major modifications of nonattainment pollutants in nonattainment areas. As noted previously, under the 1977 Act Amendments, we designated Las Vegas Valley as a nonattainment area for photochemical oxidant, later changed to ozone. To address the nonattainment NSR requirements flowing from the 1977 Act Amendments, the State of Nevada amended its nonattainment NSR rules (Nevada Air Quality Regulations (NAQR) Article 13), and NDEP submitted them to EPA for approval as part of the Nevada SIP. We approved the amended NSR rules in 1981. See 46 FR 21758 (April 14, 1981). Under these EPA-approved rules, LAER and offsets have been required for new “point sources” that cause emissions greater than 100 tons per year of ozone precursors in ozone nonattainment areas. In the 1980's EPA also approved Clark County NSR rules for Las Vegas Valley as meeting the related requirements under the 1977 Amended Act and EPA regulations.

The 1990 Clean Air Act Amendments retained the core nonattainment NSR elements of LAER and offsets but added other requirements. To address the nonattainment designations of Las Vegas Valley for carbon monoxide and particulate matter for sources under NDEP jurisdiction and in lieu of amending the rules to meet the additional NSR requirements under the 1990 Act Amendments, the State of Nevada submitted a rule (Nevada Administrative Code (NAC) section 445B.22083) establishing a construction ban for new major sources and major modifications within the nonattainment area. NAC 445B.22083, with a limited exception, prohibits new power plants or major modifications to existing power plants under State jurisdiction within four hydrographic areas in Clark County, including Las Vegas Valley (hydrographic area No. 212). See 69 FR 31056, 31059 (June 2, 2004) and 69 FR 54006, at 54017 (September 7, 2004). We approved NAC 445B.22083 into the Nevada SIP most recently in 2008. See 73 FR 20536 (April 16, 2008). However, the prohibition in NAC 445B.22083 does not cover the entire Clark County 8-hour ozone nonattainment area, which includes the four hydrographic areas listed in NAC 445B.22083, but also includes all or portions of seven additional hydrographic areas in Clark County. See 40 CFR 81.329. Thus, the State of Nevada does not have a nonattainment NSR program meeting the requirements of 40 CFR 51.165 for those sources under NDEP jurisdiction within the Clark County 8-hour ozone nonattainment area.

With respect to Clark County regulations, EPA recently finalized a limited approval and limited disapproval of updated Clark County rules governing NSR, including nonattainment NSR, but also PSD. See 77 FR 64039 (October 18, 2012). Thus, Clark County does not have a nonattainment NSR program meeting the requirements of 40 CFR 51.165 for those sources under Clark County DAQ jurisdiction within the Clark County 8-hour ozone nonattainment area.

We have determined, however, that, since PSD requirements11 will apply after redesignation, an area being redesignated to attainment need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the state demonstrates maintenance of the NAAQS in the area without implementation of nonattainment NSR. A more detailed 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.” See redesignation rulemakings for Detroit, Michigan (60 FR 12459, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); and, Grand Rapids, Michigan (61 FR 31831, June 21, 1996).

Based on our review of the Clark County Ozone Maintenance Plan, we conclude the maintenance demonstration included therein does not rely on implementation of nonattainment NSR because the plan applies standard growth factors to stationary source emissions and does not rely on NSR offsets to reduce the rate of increase in emissions over time from point sources. The OzoneMaintenance Plan does include a line-item for emission reduction credits for VOC and NOXbut adds them to future projected emissions rather than assuming that they would be used to reduce emissions growth from stationary sources. Therefore, EPA concludes that the State need not have a fully approved nonattainment NSR program as an applicable requirement for approval of the State's ozone redesignation request for the Clark County ozone planning area.

Because the State's PSD program has been disapproved with respect to sources under NDEP jurisdiction, the Federal PSD requirements under 40 CFR 52.21 will apply to new major sources or major modifications of ozone precursors under NDEP jurisdiction once the Clark County 8-hour ozone nonattainment area is redesignated to attainment. See 40 CFR 52.1485(b). NDEP implements and enforces the Federal PSD regulations under a delegation agreement with EPA Region IX.

With respect to stationary sources under Clark County DAQ jurisdiction, the County's PSD program will apply to ozone precursor emissions of new major sources or major modifications upon redesignation of the Clark County 8-hour ozone nonattainment area to attainment. We note that Clark County's PSD program is not fully approved, but the deficiencies that formed the basis for EPA's recent limited approval and limited disapproval action would not interfere with maintenance of the ozone standard for two reasons. First, the deficiencies that relate to ozone precursors are limited to a few definitions: “allowable emissions,” “baseline actual emissions,” “net emissions increase,” and “major modification.” See 77 FR 64039, at 64047 (October 18, 2012). Second, the limited disapproval triggered an obligation on EPA to promulgate a Federal implementation plan (FIP) to remedy the PSD deficiencies by November 19, 2014 unless NDEP submits, and EPA approves, amended Clark County rules that correct the deficiencies prior to that time. Thus, the overlap in time during which the Clark County 8-hour area would be redesignated to attainment but would not be subject to a fully-approved PSD program would be less than two years.

Section 172(c)(7) requires the SIP to meet the applicable provisions of section 110(a)(2). As noted above, we conclude the Nevada SIP meets the requirements of section 110(a)(2) applicable for purposes of this redesignation.

Under section 176(c) of the Clean Air Act Amendments of 1990, States are required to establish criteria and procedures to ensure that Federally supported or funded projects conform to the air quality planning goals in the applicable SIP. Section 176(c) further provided that State conformity provisions must be consistent with Federal conformity regulations that the CAA required EPA to promulgate. EPA's conformity regulations are codified at 40 CFR part 93, subparts A (referred to herein as “transportation conformity”) and B (referred to herein as “general conformity”). Transportation conformity applies to transportation plans, programs, and projects developed, funded, and approved under title 23 U.S.C. or the Federal Transit Act, and general conformity applies to all other Federally-supported or funded projects. SIP revisions intended to address the conformity requirements are referred to herein as “conformity SIPs.”

In November 2008, EPA approved Clark County's transportation conformity criteria and procedures as meeting the related SIP requirements under part 51, subpart T (“Conformity to State or Federal Implementation Plans of Transportation Plans, Programs, and Project Developed, Funded or Approved Under Title 23 U.S.C. or the Federal Transit Laws”). See 73 FR 66182 (November 7, 2008).

With respect to “general conformity,” we note that, in August 2005, Congress passed the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), which eliminated the requirement for States to adopt and submit conformity SIPs addressing general conformity requirements. See 75 FR 17254 (April 5, 2010) for conforming changes to EPA's general conformity regulations. The State of Nevada is thus no longer required to submit a general conformity SIP for the Clark County 8-hour ozone planning area.

Therefore, based on our approval of Clark County's transportation conformity SIP and SAFETEA-LU's elimination of the general conformity SIP requirement, we find that Clark County and the State have met the requirements for conformity SIPs in the Clark County 8-hour ozone nonattainment area under CAA section 176(c). In any event, EPA believes it is reasonable to interpret the conformity requirements as not applicable for purposes of evaluating a redesignation request under section 107(d)(3)(E). SeeWallv.EPA,265 F.3d 426, 439 (6th Cir. 2001) upholding this interpretation.

Section 107(d)(3)(E)(iii) precludes redesignation of a nonattainment area to attainment unless EPA 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 pollution control regulations and other permanent and enforceable regulations. Under this criterion, the state must be able to reasonably attribute the improvement in air quality to emissions reductions which are permanent and enforceable. Attainment resulting from temporary reductions in emissions rates (e.g.,reduced production or shutdown due to temporary adverse economic conditions) or unusually favorable meteorology would not qualify as an air quality improvement due to permanent and enforceable emission reductions.

The Clark County Ozone Maintenance Plan credits the following control measures as providing the emissions reductions sufficient to attain the 1997 8-hour ozone NAAQS in the Clark County 8-hour ozone nonattainment area through year 2022: the Federal Tier 2 motor vehicle emissions standards; the Federal highway diesel rule; the Federal large nonroad diesel engines rule; the Federal nonroad spark-ignition engines and recreational engines standards; the Federal nonroad spark-ignition engines and equipment standard; the State's vehicle I/M program; and the County's NSR and stationary source prohibitory rules. As discussed above, the State's vehicle inspection and maintenance (I/M) program and the County's NSR rules and VOC-related prohibitory rules (such as section 52 (“Handling of Gasoline at Service Stations, Airports and Storage Tanks”)) have been approved into the SIP, and thus are federally enforceable.

The Federal on-road and nonroad vehicle and engine standards cited above have contributed to improved air quality through the gradual, continued turnover and replacement of older vehicle models with newer models manufactured to meet increasingly stringent Federal tailpipe emissions standards. The new Federal fuel standards cited above have resulted in more immediate emissions reductions of ozone precursors and provide for the use of advanced pollution control technology that would not otherwise be possible. The emissions reductions fromthe Federal vehicle and fuel standards are reflected in the emissions inventories and maintenance demonstration discussed later in this document through the use of EPA's MOBILE emission factor model for on-road motor vehicles and NONROAD emission factor model for nonroad vehicles.

We note that some of the control measures cited in the Clark County Ozone Maintenance Plan provided emissions reductions since 2002, and thus, the improvement in air quality since 2002 may reasonably be attributed to them. For instance, the new Federal gasoline and diesel fuel standards have greatly lowered the allowable sulfur content of these fuels and have resulted in lower emissions from cars and trucks, particularly of sulfur dioxide, particulate matter, and NOX. The Clark County Ozone Maintenance Plan (see Figure 4-1 from the plan) illustrates the ambient ozone trend in the nonattainment area from 2003-to 2009 and layers the sequence of Federal engine and fuel standards phase-in over that period to support the inference that the standards have contributed to the declining trend in ambient ozone concentrations.

A rough sense of the effectiveness of the control measures to reduce VOC and NOXemissions can be gained by a comparison between area-wide emissions in 2002 (a nonattainment year) with those in 2008 (an attainment year). In 2002, area-wide VOC and NOXemissions in the Clark County 8-hour ozone nonattainment area were estimated to be approximately 318 and 279 tons per day (summer average day), respectively, and in 2008, despite an increase in population and vehicle-miles-traveled (VMT) of approximately 27% and 48%, respectively, area-wide emissions dropped significantly (to 302 tons per day of VOC and 164 tons per day of NOX).12

With respect to the connection between the emissions reductions and the improvement in air quality, we also conclude that the air quality improvement in the Clark County 8-hour ozone nonattainment area since 2002 is not the result of a local economic downturn or unusual or extreme weather patterns. To draw this conclusion, we reviewed temperature and precipitation data for Las Vegas13 and did not observe any anomaly over the period from 2002 relative to long-term averages. We do recognize that a significant economic slowdown occurred nationally starting in 2008, and that the Las Vegas metropolitan area was more significantly affected than most other areas, but we note that the downward ozone trend had already been established before that time (see Figure 4-1 on page 4-8 of the Ozone Maintenance Plan).

Thus, we find that the improvement in air quality in the Clark County 8-hour ozone nonattainment area is the result of permanent and enforceable emissions reductions from a combination of the Federal vehicle and fuel measures and EPA-approved State and local control measures. As such, we propose to find that the criterion for redesignation set forth at CAA section 107(d)(3)(E)(iii) is satisfied.

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. We interpret this section of the Act to require, in general, the following core elements: attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and contingency plan. See Calcagni memo, pages 8 through 13.

Under CAA section 175A, a maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after EPA approves a redesignation to attainment. Eight years after redesignation, the State must submit a revised maintenance plan that demonstrates continued attainment for the subsequent ten-year period following the initial ten-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency provisions, that EPA deems necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of the area. Based on our review and evaluation of the plan, as detailed below, we are proposing to approve the Clark County Ozone Maintenance Plan because we believe that it meets the requirements of CAA section 175A.

A maintenance plan for the 1997 8-hour ozone standard must include an inventory of emissions of ozone precursors (VOC and NOX) in the area to identify a level of emissions that are sufficient to attain the 1997 8-hour ozone NAAQS. This inventory must be consistent with EPA's most recent guidance on emissions inventories for nonattainment areas available at the time and should represent emissions during the time period associated with the monitoring data showing attainment. The inventory must also be comprehensive, including emissions from stationary point sources, area sources, nonroad mobile sources, and on-road mobile sources, and must be based on actual “ozone season data” (i.e.,summertime) emissions.

Clark County DAQ selected year 2008 as the year for the attainment inventory in the Clark County Ozone Maintenance Plan. Year 2008 is one of the years of the three-year period (2007-2009) on which EPA made an attainment determination for the Clark County 8-hour ozone nonattainment area in 2011. See 76 FR 17343 (March 29, 2011). The attainment inventory will generally be the actual inventory during the time period the area attained the standard. Thus, Clark County DAQ's selection of 2008 for the attainment inventory is acceptable.

Based on our review of the Clark County Ozone Maintenance Plan, we find that the emissions inventories in the plan are comprehensive in that they include estimates of VOC and NOXemissions from all of the relevant source categories, which the plan divides among point sources,14 nonpoint sources,15 commercial aviation, Federal aviation (i.e.,Nellis Air Force Base), on-road mobile, nonroad mobile, and biogenic16 sources. See table 6-2 and pages 6-2 through 6-5 in the Ozone Maintenance Plan. Appendix A to the Ozone Maintenance Plan contains source-specific descriptions of emission calculation procedures and sources of input data.

For point sources, Clark County DAQ based the inventory estimates on source-reported actual 2008 emissions data but adjusted the reported values to reflect a typical summer day at each emissions unit within the source facilities based on information provided by thefacilities. For nonpoint sources, Clark County DAQ used several methods to estimate area source activity levels and emissions, including applying local activity levels, apportioning national or statewide activity levels to the local level, applying per capita emission factors considering county-specific populations and using specific method abstracts detailed within the submittal. The documentation supplied in the emissions inventory submittal (i.e.,appendix A to the Ozone Maintenance Plan) shows how the specific emissions were calculated for each area source category.

With respect to most nonroad mobile sources, Clark County DAQ used EPA's nonroad emissions model NONROAD2008a, the current version of the model at the time the plan was created. The model includes both emissions factors and default county level population and activity data. The model estimates both emissions factors and emissions. This includes more than 80 basic and 260 specific types of non-road equipment, and further stratifies equipment by horsepower rating and fuel type. The model has default estimates, variables and factors used in the calculations. No local data sets were available for Clark County, therefore only model defaults were used.

With respect to commercial and Federal aviation sources, Clark County DAQ relied on airport-specific emissions inventory information provided by the Clark County Aviation Department for the five commercial airports located within the nonattainment area (McCarran International Airport, North Las Vegas Airport, Henderson Executive Airport, Jean Airport, and Perkins Field Airport) and information provided by the U.S. Air Force for Nellis Air Force Base. Airport support equipment and airport-related stationary source emissions were included in the airport-specific inventories rather than in the general source categories such as point sources or nonroad mobile. Locomotive emissions were estimated by Clark County DAQ based on fuel consumption within the nonattainment area by the Union Pacific Railroad and included in the aggregate emissions estimates for “nonroad mobile.” To estimate biogenic emissions, Clark County DAQ used the Model of Emissions of Gasses and Aerosols from Nature (MEGAN) estimates, measured emission factors, and species information from completed surveys.

The on-road mobile source emissions estimates in the Ozone Maintenance Plan were prepared by Clark County DAQ using the CONCEPT MV emissions model,17 EPA's MOBILE6.2 emissions factors, the Regional Transportation Commission of Southern Nevada's (RTC's) transportation demand modeling results,18 and Highway Performance Monitoring System (HPMS) data from the Nevada Department of Transportation.

MOBILE6.2 estimates emissions by vehicle class, and provides emissions factors for exhaust emissions; evaporative emissions; and brake and tire wear emissions. There are a total of 28 vehicle classes used in MOBILE6.2. For the Ozone Maintenance Plan, Clark County DAQ aggregated the emissions factors calculated from MOBILE6.2 into eight vehicle classes, which are the same as used in MOBILE5. The VMT was adjusted by comparisons to observed vehicle counts by facility types, by using HPMS adjustment factors and to account for additional transit vehicles. The CONCEPT MV model processes detailed inputs (e.g.,VMT mix varying by hour of day, day of week, and month of year) and adjusts speeds to account for congestion based on transportation demand modeling outputs. For areas outside of the Las Vegas Valley, county level VMT estimates based on HPMS data was used and no reductions associated with the State's motor vehicle inspection and maintenance (I/M) program were included since vehicles in the rural portions of the county are not required to participate in the program.

The on-road emissions estimates for the Ozone Maintenance Plan assumed the implementation of the Federal heavy-duty diesel rule, limits to Reid Vapor Pressure (RVP) of 9 pounds per square inch (psi) with a 1.0 psi waiver for ethanol-blended fuels19 and the phase-in of tier 2 motor vehicle emission standards, and the operation of an enhanced vehicle I/M program in the urban areas of Clark County.

Table 3 presents the VOC and NOXemissions estimates contained in the Ozone Maintenance Plan for 2008 and also presents the plan's projected emissions inventories of ozone precursors in an interim year (2015) and the maintenance plan's horizon year (2022).20 Based on the estimates in Table 3, on-road emissions sources accounted for approximately 22% of the VOC and 42% of the NOXemissions generated within the 8-hour ozone nonattainment area in 2008. Nonroad sources (including nonroad equipment, airports, and locomotives) accounted for approximately 15% and 34% of the VOC and NOXinventory, respectively. Point and area source emissions accounted for approximately 19% and 21% of the VOC and NOXinventory, respectively, while biogenic emissions contributed 44% of the VOC inventory but little (3%) to the overall NOXinventory.

Based on our review of the emissions inventories (and related documentation) from the Ozone Maintenance Plan, we find that the inventories for 2008 are comprehensive, that the methods and assumptions used by Clark County DAQ to develop the 2008 emission inventory are reasonable, and that the inventories reasonably estimate actual ozone season emissions in an attainment year. Moreover, we find that the 2008 emissions inventories in the Ozone Maintenance Plan reflect the latest planning assumptions and emissions models available at the time the plan was developed, and provide a comprehensive and reasonably accurate basis upon which to forecast ozone precursor emissions for years 2015 and 2022.

CAA section 175A(a) requires that the maintenance plan “provide for the maintenance of the national primary ambient air quality standard for such air pollutant in the area concerned for at least 10 years after the redesignation.” Generally, a state may demonstrate maintenance of the ozone NAAQS by either showing that future emissions will not exceed the level of the attainment inventory or by modeling to show that the future mix of sources and emissions rates will not cause a violation of the NAAQS. For areas that are required under the Act to submit modeled attainment demonstrations, the maintenance demonstration should use the same type of modeling. Calcagni memorandum, page 9. The Clark County 8-hour ozone nonattainment area was not required to submit a modeled attainment demonstration, and thus, the Clark County Ozone Maintenance Plan may demonstrate maintenance based on a comparison of existing and future emissions of ozone precursors.21

Clark County DAQ used projected emissions22 for point and non-point sources from calendar years 2008 and 2018 to back calculate the growth factors for all ozone precursor emissions for both inventory years. The derived growth factors were then mathematically extrapolated to account for a 14-year (2008 through 2022) spread. These 2022 growth factors were then multiplied by the 2008 actual emissions to produce the 2022 projected point source emissions. An interim year (2015) projected emissions inventory is also included. The 2015 emissions were calculated using half of the growth value of the 2022 projections. Corrections for rule effectiveness were not applied to these projected emissions. On-road emissions were estimated for the 2008 base year and for projection years 2015 and 2022 and reflect a 26% increase in VMT from 2008 to 2015 and a 63% increase in VMT from 2008 to 2022 based on RTC projections. See table 6-1 in the Ozone Maintenance Plan.

In addition to accounting for area-wide growth trends, Clark County DAQ added emissions from specific projects that are expected to become operational during the maintenance period, including the Nellis Air Force Base F-35 beddown project, a new power plant, a new airport (Ivanpah), and new heliport (Sloan), in the future-year emissions inventories, and also added in emissions reduction credits (ERCs) from certain stationary sources in the event that the ERCs are used for the purposes of issuing permits for new or modified stationary sources in the air quality planning area. We have reviewed the methods and assumptions, as described in connection with the attainment inventory, that Clark County DAQ used to project emissions to 2015 and 2022 for the various source categories and find them to be reasonable.

Table 3 compares the VOC and NOXemissions estimated for the Clark County 8-hour ozone nonattainment area for 2008 with those for 2015 and 2022 by source category. The projected VOC and NOXemissions show that VOC and NOXemissions would remain well below the attainment levels throughout the 10-year maintenance period and thereby adequately demonstrating maintenance through that period.

Continued ambient monitoring of an area is generally required over the maintenance period. As discussed in section V.A of this document, ozone is currently monitored by Clark County DAQ at ten sites within the Clark County 8-hour ozone nonattainment area. In the Ozone Maintenance Plan (see page 6-11 of the plan), Clark County DAQ indicates its intention to continue operation of an air quality monitoring network to verify continued attainment of the 1997 8-hour ozone NAAQS.23 The Clark County OzoneMaintenance Plan also notes that Clark County DAQ's SLAMS air quality monitoring system (which includes ambient ozone monitoring) will be reviewed annually pursuant to 40 CFR 58.20(d) to determine whether the system continues to meet the applicable monitoring objectives.24 We find the County's commitment for continued ambient ozone monitoring as set forth in the Ozone Maintenance Plan to be acceptable.

NDEP and the Clark County Board of County Commissioners have the legal authority to implement and enforce the requirements of the Ozone Maintenance Plan. This includes the authority to adopt, implement and enforce any emission control contingency measures determined to be necessary to correct ozone NAAQS violations. To verify continued attainment, Clark County DAQ commits in the Ozone Maintenance Plan to the continued operation of an ozone monitoring network that meets EPA ambient air quality surveillance requirements.

Second, the transportation conformity process, which would require a comparison of on-road motor vehicle emissions that would occur under new or amended regional transportation plans and programs with the MVEBs in the Ozone Maintenance Plan, represents another means by which to verify continued attainment of the 1997 8-hour ozone NAAQS in the Clark County 8-hour ozone area given the relative importance of motor vehicle emissions to the overall emissions inventories of ozone precursors. See page 6-13 of the Ozone Maintenance Plan. Lastly, while not cited in the plan, NDEP and Clark County DAQ must inventory emissions sources and report to EPA on a periodic basis under 40 CFR part 51, subpart A (“Air Emissions Reporting Requirements”). These emissions inventory updates will provide a third means with which to track emissions in the area relative to those projected in the maintenance plan and thereby verify continued attainment of the NAAQS. These methods are sufficient for the purpose of verifying continued attainment.

Section 175A(d) of the Act requires that maintenance plans include contingency provisions, as EPA deems necessary, to promptly correct any violations of the NAAQS that occur after redesignation of the area. Such provisions must include a requirement that the State will implement all measures with respect to the control of the air pollutant concerned which were contained in the SIP for the area before redesignation of the area as an attainment area.

Under section 175A(d), contingency measures identified in the contingency plan do not have to be fully adopted at the time of redesignation. However, the contingency plan is considered to be an enforceable part of the SIP and should ensure that the contingency measures are adopted expeditiously once they are triggered by a specified event. The maintenance plan should clearly identify the measures to be adopted, a schedule and procedure for adoption and implementation, and a specific timeline for action by the State. As a necessary part of the plan, the State should also identify specific indicators or triggers, which will be used to determine when the contingency measures need to be implemented.

As required by section 175A of the CAA, Clark County DAQ has adopted a contingency plan to address possible future ozone air quality problems. See section 6.8 of the maintenance plan. Clark County DAQ commits to examining ambient air quality data within 30 days of collection to determine if the ozone NAAQS has been exceeded. The contingency plan will be triggered 60 days after Clark County DAQ confirms a violation of the 1997 8-hour ozone NAAQS (i.e.,a design value equal to or greater than 0.085 ppm). Within 45 days of the trigger date, Clark County will notify EPA that it is evaluating potential contingency measures. Within 90 days of that notification, Clark County will send a report to EPA and then will initiate a public process to consider the recommended contingency measures, including soliciting stakeholder involvement and holding public hearings. The necessary emission control measures will be adopted and implemented no later than 18 months after the information report is submitted to EPA.

Contingency measures contained in the maintenance plan are those emission controls or other measures that Clark County, the Nevada State Board of Agriculture, and/or the Nevada State Environmental Commission choose to adopt and implement in response to the contingency trigger. The contingency plan in the Ozone Maintenance Plan lists the following potential contingency measures that will be considered for adoption and implementation by the applicable State or County agency, but the plan indicates that the list is not to be considered exclusive:

• Reid vapor pressure reduction (i.e.,in gasoline sold during the summer ozone season; would need to be adopted and implemented by the Nevada State Board of Agriculture);

• Inspection/maintenance program changes and additions (e.g.,lowering the cutpoints for VOCs and NOXapplicable to pre-1996 vehicles; would need to be adopted and implemented by the State Environmental Commission and/or the State Department of Motor Vehicles);

• Consumer and commercial products (Clark County would be responsible for adoption and implementation);

• Architectural surface coatings (Clark County would be responsible for adoption and implementation);

• Lawn and garden equipment use (Clark County would be responsible for adoption and implementation); and

• Establish/enhance trip reduction programs (Clark County and the RTC would be responsible for adoption and implementation).

Upon our review of the plan, as summarized above, we find that the contingency provisions of the Ozone Maintenance Plan clearly identify specific contingency measures, contain tracking and triggering mechanisms to determine when contingency measures are needed, contain a description of the process of recommending and implementing contingency measures, and contain specific timelines for action. Thus, we conclude that the contingency provisions of the Clark County Ozone Maintenance Plan are adequate to ensure prompt correction of a violation and therefore comply with section 175A(d) of the Act.

CAA section 175A(b) provides that States shall submit a SIP revision 8 years after redesignation providing for maintaining the NAAQS for an additional 10 years. The Clark County Ozone Maintenance Plan provides that Clark County commits to prepare and submit a revised maintenance plan eight years after redesignation to attainment. See page 6-13 of the Ozone Maintenance Plan.

Transportation conformity is required by section 176(c) of the CAA. Our transportation conformity rule (codified in 40 CFR part 93, subpart A) requires that transportation plans, programs, and projects conform to SIPs and establishes the criteria and procedures fordetermining whether or not they do so. Conformity to the SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.

Maintenance plan submittals must specify the maximum emissions of transportation-related VOC and NOXemissions allowed in the last year of the maintenance period,i.e.,the motor vehicle emissions budgets (MVEBs). (MVEBs may also be specified for additional years during the maintenance period.) The MVEBs serve as a ceiling on emissions that would result from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble describes how to establish MVEBs in the SIP and how to revise the MVEBs if needed.

The submittal must also demonstrate that these emissions levels, when considered with emissions from all other sources, are consistent with maintenance of the NAAQS. In order for us to find these emissions levels or “budgets” adequate and approvable, the submittal must meet the conformity adequacy provisions of 40 CFR 93.118(e)(4) and (5). For more information on the transportation conformity requirement and applicable policies on MVEBs, please visit our transportation conformity Web site at:http://www.epa.gov/otaq/stateresources/transconf/index.htm.

EPA's process for determining adequacy of a MVEB consists of three basic steps: (1) Providing public notification of a SIP submission; (2) providing the public the opportunity to comment on the MVEB during a public comment period; and, (3) making a finding of adequacy. The process for determining the adequacy of a submitted MVEB is codified at 40 CFR 93.118.

The Clark County Ozone Maintenance Plan submitted by NDEP for Clark County, contains new VOC and NOXMVEBs for Clark County for 2008, 2015, and 2022. The availability of the SIP submission with MVEBs was announced for public comment on EPA's Adequacy Web site on June 14, 2011, at:http://www.epa.gov/otaq/stateresources/tansconf/currsips.htm,which provided a 30-day public comment period. The comment period for this notification ended on July 14, 2011, and EPA received no comments from the public. Note, however, that a second mechanism is also provided for EPA review and public comment on MVEBs, as described in 40 CFR 93.118(f)(2). This mechanism provides for EPA's review of the adequacy of an implementation plan MVEB simultaneously with its review and approval and disapproval of the implementation plan itself. In this action, EPA used the web notification discussed above to solicit public comments on the adequacy of Clark County's MVEBs, but is taking comment on the approvability of the submitted MVEBs through this proposed rule.

Clark County's ozone maintenance plan contains VOC and NOXMVEBs for 2008, 2015 and 2022. Any and all comments on the approvability of the MVEBs should be submitted during the comment period stated in theDATESsection of this document.

EPA proposes to approve 2008, 2015, and 2022 MVEBs in the Clark County Ozone Maintenance Plan for transportation conformity purposes in the final rulemaking on Clark County's ozone redesignation request. If EPA approves the MVEBs in the final rulemaking action, the new MVEBs must be used in future transportation conformity determinations for Clark County. The new MVEBs, if approved in the final rulemaking, will be effective on the date of EPA's final rulemaking in theFederal Register. The existing 2008 VOC and NOXMVEBs from the Clark County EPP, which EPA found adequate in 2009, will be replaced by these budgets. The applicable VOC and NOXMVEBs for the Clark County ozone nonattainment area are defined in table 4.

The MVEBs are the on-road mobile source VOC and NOXemissions for Clark County for 2008, 2015 and 2022. The MVEBs are compatible with the 2008, 2015, and 2022 on-road mobile source VOC and NOXemissions included in Clark County's 2008, 2015, and 2022 VOC and NOXemission inventories, as summarized above in table 3. The derivation of the MVEBs is thoroughly discussed in appendix A, chapter 7 of Clark County's Ozone Maintenance Plan. Updated vehicle miles traveled (VMT) data from the Regional Transportation Commission's TRANSCAD transportation demand model was adjusted with Highway Performance Monitoring System (HPMS) data and then combined with emission factors from MOBILE6 to estimate ozone precursor emissions.

We note that the MVEBs in the Ozone Maintenance Plan for 2008 differ from those contained for that same year in the Clark County Ozone EPP, but Clark County DAQ has explained the differences stem not from a different approach but from changes with regard to the fuel parameters and updated vehicle activity data for 2008. Specifically, the MOBILE input files used for the Ozone Maintenance Plan were updated to show the use of ethanol in summertime with a 1.0 psi waiver, resulting in higher VOC emissions, and the VMT estimates for 2008 were adjusted downwards to reflect the latest transportation data from RTC. The net effect of these changes resulted in higher VOC emissions but lower NOXemissions for 2008 relative to the corresponding estimates in the Clark County Ozone EPP.

EPA is proposing to approve the MVEBs for 2008, 2015 and 2022 as part of our approval of Clark County's Ozone Maintenance Plan. EPA has determined that the MVEB emission targets are consistent with emission control measures in the SIP and that Clark County can maintain attainment of the 1997 8-hour ozone NAAQS. The details of EPA's evaluation of the MVEBs for compliance with the budget adequacy criteria of 40 CFR 93.118(e) are providedin a separate memorandum25 included in the docket of this rulemaking.

Under CAA section 110(k)(3), and for the reasons set forth above, EPA is proposing to approve NDEP's submittal dated April 11, 2011 of Clark County'sOzone Redesignation Request and Maintenance Plan(March 2011) (“Clark County Ozone Maintenance Plan”) as a revision to the Nevada state implementation plan (SIP). In connection with the Clark County Ozone Maintenance Plan, EPA finds that the maintenance demonstration showing how the area will continue to attain the 1997 8-hour ozone NAAQS for 10 years beyond redesignation (i.e.,through 2022) and the contingency provisions describing the actions that Clark County will take in the event of a future monitored violation meet all applicable requirements for maintenance plans and related contingency provisions in CAA section 175A. EPA is also proposing to approve the motor vehicle emissions budgets (MVEBs) in the Clark County Ozone Maintenance Plan (shown in table 4 of this document) because we find they meet the applicable transportation conformity requirements under 40 CFR 93.118(e).

Second, under CAA section 107(d)(3)(D), we are proposing to approve NDEP's request, which accompanied the submitted of the maintenance plan, to redesignate the Clark County 8-hour ozone nonattainment area to attainment for the 1997 8-hour ozone NAAQS. We are doing so based on our conclusion that the area has met the five criteria for redesignation under CAA section 107(d)(3)(E). Our conclusion in this regard is in turn based on our proposed determination that the area has attained the 1997 8-hour ozone NAAQS, that relevant portions of the Nevada SIP are fully approved, that the improvement in air quality is due to permanent and enforceable reductions in emissions, that Nevada has met all requirements applicable to the Clark County 8-hour ozone nonattainment area with respect to section 110 and part D of the CAA, and based on our proposed approval as part of this action of the Clark County Ozone Maintenance Plan.

EPA is soliciting public comments on the issues discussed in this document or on other relevant matters. We will accept comments from the public on this proposal for the next 30 days. We will consider these comments before taking final action.

Under the CAA, 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. Redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the CAA 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 propose to approve a State plan and redesignation request as meeting Federal requirements and do not impose additional requirements beyond those by State law. For these reasons, these proposed actions:

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

• 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 an economically significant regulatory action 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 CAA; and

• Do not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this proposed 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. Nonetheless, EPA has discussed the proposed action with the one Tribe, the Las Vegas Paiute Tribe, located within the Clark County 8-hour ozone nonattainment area.

Public Participation and Request for Comments

FMCSA encourages you to participate in this rulemaking by submitting comments and related materials.

If you submit a comment, please include the docket number for this rulemaking (FMCSA-2011-0321), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.

To submit your comment online, go tohttp://www.regulations.govand click on the “Submit a Comment” box, which will then become highlighted in blue. In the “Document Type” drop down menu, select “Rules,” insert “FMCSA-2011-0321” in the “Keyword” box, and click “Search.” When the new screen appears, click on “Submit a Comment” in the “Actions” column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.

FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go tohttp://www.regulations.govand click on the “Read Comments” box in the upper right hand side of the screen. Then, in the “Keyword” box, insert “FMCSA-2011-0321” and click “Search.” Next, click “Open Docket Folder” in the “Actions” column. Finally, in the “Title” column, click on the document you would like to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

All comments received will be posted without change tohttp://www.regulations.govand will include any personal information you have provided. Anyone is able to search the electronic form for all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in theFederal Registerpublished on January 17, 2008 (73 FR 3316), or you may visithttp://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

Implementation of this proposed rule would enable the Agency to suspend or revoke the operating authority registration of motor carriers that have shown egregious disregard for safety compliance, permit persons who have shown egregious disregard for safety compliance to exercise controlling influence over their operations or operate multiple entities under common control to conceal noncompliance with safety regulations. Motor carriers that engage in such conduct may face suspension or revocation of their operating authority registration. FMCSA acknowledges that loss of operating authority registration is a significant penalty, but the Agency believes this rule is necessary and appropriate for the small number of motor carriers that engage in the most egregious instances of noncompliance.

FMCSA has determined that each year a small number of motor carriers have attempted to avoid regulatory compliance or mask or otherwise conceal noncompliance by submitting new applications for registration, often under a different name, to continue operations after being placed out of service. Motor carriers and individuals do this for a variety of reasons that include avoiding payment of civil penalties, circumventing denial of operating authority registration based on a determination that they are not willing or able to comply with the applicable statutes or regulations, or avoiding a negative compliance history. Other motor carriers attempt to avoid compliance, or mask or otherwise conceal noncompliance, by creating or using an affiliated company under common operational control. They shift customers, vehicles, drivers, and other operational activities to one of the affiliated companies when FMCSA places one of the other commonly controlled companies out of service.

On August 8, 2008, a fatal bus crash occurred in Sherman, Texas, highlighting the danger posed by motor carriers and other persons who avoid regulatory compliance or mask or otherwise conceal noncompliance. Seventeen motorcoach passengers died, and the driver and 38 other passengers received minor-to-serious injuries. The investigations conducted by FMCSA and the National Transportation Safety Board revealed that the motor carrier was operating without authority and a reincarnation of another bus companythat had been recently placed out of service for safety violations and that both companies were under the control of the same person. FMCSA determined that the companies' flagrant disregard for safety under this person's control demonstrated a hazard to the safety of the motoring public.

Based on these findings, FMCSA instituted a vetting process for for-hire passenger and household goods carriers that involves a comprehensive review of registration applications to determine whether the applicants are reincarnations or affiliates of other motor carriers with negative compliance histories or are otherwise not willing and able to comply with the applicable regulations. Although the vetting process was a significant improvement to the previous registration review and regulatory compliance process, it is not a complete solution to the problem of regulatory avoidance because it does not impose sanctions, and, therefore, deter, the motor carriers or individuals who engage in or condone egregious disregard for safety compliance.

The Sherman crash is but one example that demonstrates how the practice of avoiding compliance or masking or otherwise concealing noncompliance to circumvent Agency enforcement action or to avoid a negative safety compliance history creates an unacceptable risk of harm to the public, resulting in the continued operation of at-risk carriers and impeding FMCSA's ability to execute its safety mission. This rule would help address these problems by providing a significant enforcement tool that allows the Agency to suspend, or revoke the operating authority registration of motor carriers that have shown egregious disregard for safety compliance, permit persons who have shown egregious disregard for safety compliance to exercise controlling influence on their operations or operate multiple entities under common control to conceal noncompliance with safety regulations.

Section 31135 of title 49, United States Code, originally enacted as § 4113 of SAFETEA-LU (Pub. L. 109-59, 119 Stat. 1144) and subsequently amended by § 32112 of MAP-21 (Pub. L. 112-141, 126 Stat. 405), authorizes FMCSA to withhold, suspend, amend, or revoke the operating authority registration of a motor carrier if it or any person has engaged in a pattern or practice of avoiding compliance, or concealing noncompliance with regulations governing CMV safety prescribed under 49 U.S.C., Chapter 311, subchapter III. That section, as amended, also permits FMCSA to revoke the individual operating authority registration of any officer of a motor carrier that engages in or has engaged in a pattern or practice of, or assisted in avoiding compliance, or masking or otherwise concealing noncompliance while serving as an officer of such motor carrier. FMCSA is required to issue standards to implement the authority granted in § 31135.

To assist the Agency in developing those standards, FMCSA tasked the Motor Carrier Safety Advisory Committee (MCSAC) with identifying ideas and concepts that FMCSA should consider. On June 21, 2011, the MCSAC issued a number of recommendations, some of which formed the foundation for this proposed rule described below. These recommendations include the concepts that a pattern is both widespread and continuing over time, involves more than isolated violations, and does not require a specific number of violations. The Agency also embraced the idea that the Agency would have to exercise discretion to identify those motor carriers whose officers have shown egregious disregard for safety compliance.

The FMCSA has authority, delegated by the Secretary of Transportation (Secretary) under 49 CFR 1.87, to establish the minimum safety standards governing the operation and equipment of a motor carrier operating in interstate commerce (49 U.S.C. 31136(a) and 31502(b)). Also, as amended by section 4114 of SAFETEA-LU, 49 U.S.C. 31144(a) requires that the Secretary shall determine whether an owner or operator is fit to safely operate CMVs; periodically update the safety determinations of motor carriers; and prescribe, by regulation, penalties for violations of applicable commercial safety fitness requirements.

Section 31135 of title 49, United States Code, was originally enacted as part of § 4113 of SAFETEA-LU and was subsequently amended by § 32112 of MAP-21. Section 31135 requires employers and employees to comply with FMCSA's safety regulations that apply to the employees' and the employers' conduct. It prohibits motor carriers from using common ownership, common management, common control or common familial relationships to avoid compliance or mask or otherwise conceal noncompliance, or a history of noncompliance. It also authorizes FMCSA to withhold,1 suspend, amend, or revoke the operating authority registration of a motor carrier if it or any person has engaged in a pattern or practice of avoiding compliance, or concealing noncompliance with regulations governing CMV safety prescribed under 49 U.S.C., Chapter 311, subchapter III. FMCSA may suspend, amend, or revoke the individual registration of an officer of a motor carrier who has engaged in a pattern or practice of or assisted in avoiding compliance, or masking or otherwise concealing noncompliance while serving as an officer of such motor carrier. FMCSA is required to establish standards implementing § 31135 through rulemaking.

FMCSA relies on 49 U.S.C. 13902, 13905, 31134, and 31135 for the authority and procedures to suspend and revoke operating authority registration in this proposed rule. The Motor Carrier Act of 1935 (Pub. L. 74-255, 49 Stat. 543) authorized the Interstate Commerce Commission (ICC) to issue operating authority registration to motor carriers, brokers, and freight forwarders subject to its jurisdiction and to suspend or revoke such operating authority registration for willful failure to comply with applicable statutes and regulations. The ICC Termination Act of 1995 (Pub. L. 104-88, 109 Stat. 803) transferred this authority to the Secretary by enacting 49 U.S.C. 13902 (establishing standards for issuing operating authority registration) and 13905 (establishing standards and procedures for suspending and revoking operating authority registration). Section 4113 of SAFETEA-LU amended 49 U.S.C. 13902 to authorize FMCSA to deny an application for operating authority registration of a for-hire motor carrier if the motor carrier is not willing and able to comply with the duties of employers and employees established under 49 U.S.C. 31135. In addition, section 32105 of MAP-21 created new 49 U.S.C. 31134 establishing requirements for motor carriers seeking to obtain operating authority registration and USDOT numbers. This new section authorizes FMCSA to withhold, suspend or revoke operating authority registration for failing to disclose, among other things, common management or control with any other person or applicant for operating authority registration or any other person or applicant for operating authority registration that has been determined to be unfit, unwilling orunable to comply with the requirements for registration. The changes enacted as a part of MAP-21 are effective October 1, 2012.

FMCSA proposes to amend 49 CFR parts 385 and 386 in the following ways.

The proposed rule would apply to for-hire motor carriers, employers, officers, or other persons subject to FMCSA's safety jurisdiction that are also required to register (have operating authority) under 49 U.S.C. 13902. This would include for-hire motor carriers that transport passengers and/or property, including household goods carriers and hazardous materials carriers. The rule would not apply to private motor carriers and for-hire motor carriers that are exempt from registering with the Agency under section 13902 because of the commodities they haul or the nature of the services they provide.

FMCSA proposes to add new § 385.903, which would define the terms “Agency Official” and “officer.”

The term “Agency Official” would mean the Director of FMCSA's Office of Enforcement and Compliance or his or her designee. The Agency Official is the person within FMCSA authorized to initiate suspension (§ 385.913) or revocation proceedings (§ 385.915) and rule on petitions for rescission (§ 385.917) on behalf of the Agency, as described below.

The term “officer” would identify those individuals whose conduct would trigger the proposed rule's suspension and revocation procedures. The definition is identical to the statutory definition codified at 49 U.S.C. 31135. It would make clear that a person may be an officer not only because of the title or position that person holds, but also because of the functions he or she performs or the control the person exercises over the operations of the motor carrier. This could extend beyond just direct employees of the company, including, but not limited to, contractors and consultants.

The term “motor carrier” when used in this proposed rule would mean any motor carrier, employer, officer or other person, however characterized, required to register under 49 U.S.C. 13902.

Section 385.905 describes the conduct that could trigger suspension or revocation of a motor carrier's operating authority registration and how the Agency would determine whether that conduct occurred. Paragraph (a)(1) would set forth the Agency's authority to suspend or revoke the motor carrier's operating authority registration if it engages or has engaged in a pattern or practice of avoiding regulatory compliance or masking noncompliance. This paragraph would apply to any motor carrier that holds operating authority registration and has engaged in a pattern or practice of avoiding regulatory compliance or masking noncompliance.

Paragraph (a)(2) would set forth the Agency's authority to suspend or revoke a motor carrier's operating authority registration if it permits any person to exercise controlling influence over the motor carrier's operations if that person engages or has engaged in a pattern or practice of avoiding regulatory compliance or masking noncompliance while acting on behalf of any motor carrier. This would include conduct the person engaged in on behalf of a previous or current motor carrier. A person exercising controlling influence could be an employee, contractor, consultant or other advisor acting on behalf the motor carrier, and the conduct triggering enforcement could have been undertaken by an employee, contractor, consultant or advisor acting on behalf of another motor carrier.

A motor carrier would not necessarily avoid liability under the rule by asserting it was not aware that the person had previously engaged in a pattern or practice of avoiding compliance or masking noncompliance on behalf of another motor carrier. Motor carriers are responsible for evaluating the qualifications of people who act on their behalf or plan to engage to act on their behalf. They can do this by, among other things, reviewing the person's application, resume or work proposal, checking references, if any, and reviewing the person's history working in or with the motor carrier industry. If a person previously worked for or on behalf of motor carriers subject to FMCSA jurisdiction, it is possible to review previous motor carriers' safety performance history and registration status during the time the person was employed by or engaged to act on behalf of these previous motor carriers by accessing FMCSA's publically available information systems located at the Agency Web sitehttp://www.fmcsa.dot.gov.Using these and other available resources may provide valuable information to help determine whether motor carriers should permit a person to exercise controlling influence over their operations.

Paragraph (a)(3) would set forth the Agency's authority to suspend or revoke the operating authority registration of two or more motor carriers that use common ownership, common control, or common familial relationships to avoid regulatory compliance, or mask or otherwise conceal noncompliance. Under this subparagraph, motor carriers that use or create other motor carriers in an effort to avoid the consequences of regulatory noncompliance would be subject to suspension or revocation.

Paragraph (b) would authorize FMCSA's Director of the Office of Enforcement and Compliance or his or her designee (the Agency Official) to exercise the authorities established in paragraph (a).

The Agency Official would determine whether a motor carrier or person acting on its behalf has avoided regulatory compliance or masked or otherwise concealed regulatory noncompliance based on the results of an investigation by FMCSA, State, or local enforcement personnel. A motor carrier or person acting on its behalf engages in this conduct when he, she or it, either individually or on behalf of another motor carrier, fails to or conceals failure to: (1) Comply with statutory or regulatory safety requirements; (2) comply with FMCSA, State, or local orders intended to redress violations of Federal regulatory safety requirements; (3) pay civil penalties for violations of regulatory safety requirements; or (4) respond to enforcement actions arising out of violations of regulatory safety requirements. Failure to respond to an enforcement action includes, but is not limited to, failure to: Respond to a Notice of Claim, participate in binding arbitration, respond to a demand for records, or respond to FMCSA correspondence if required. Regulatory safety requirements include statutory or regulatory requirements prescribed under 49 U.S.C. Chapter 311, subchapter III, which include 49 U.S.C. sections 31131-31151 and 49 CFR parts 380-387 and 390-398.

If the Agency Official concludes that the motor carrier or person acting on its behalf has failed, or concealed failure, to do one or more of the actions described in § 385.907, the Agency Official would determine whether such conduct constitutes a pattern or practice of noncompliance or masking noncompliance by considering certain factors. These factors would include, but are not limited to, the frequency, remoteness in time or continuing natureof the conduct; the extent to which the regulatory violations caused by the conduct create a risk to safety; the effect the conduct had on safety performance, taking into account crashes, deaths and injuries, if any; whether the motor carrier or person acting on its behalf knew or should have known the conduct violated regulatory requirements; existing or closed enforcement actions; whether the motor carrier or person acting on its behalf engaged in the conduct for the purpose of avoiding compliance; and the extent to which the person exercises a controlling influence on the motor carrier's operations, if applicable. Inadvertent, isolated, or sporadic violations of FMCSA's regulations generally would not rise to the level of a pattern or practice. To establish a pattern or practice, the Agency would look for evidence of knowledge, conduct, or intent that shows egregious disregard for FMCSA's safety regulations.

To determine whether two or more motor carriers have common ownership, common management, common control or common familial relationships, the Agency Official must determine whether there is substantial continuity between the motor carrier that has engaged in regulatory noncompliance and another motor carrier so as to conclude that one is merely the continuation of another. In making that determination, the Agency Official may consider, among other things, the following factors: (1) Whether there is a new or affiliated motor carrier that was used for the purpose of avoiding regulatory compliance or masking or otherwise concealing noncompliance; (2) the motor carriers' safety performance histories; (3) consideration exchanged for assets sold or transferred between motor carriers; (4) dates the motor carriers were created, dissolved or ceased operations; (5) whether and to what extent the motor carriers have shareholders, investors, officers, managers and employees in common; (6) whether and to what extent relationships exist between the motor carriers' shareholders, investors, officers, managers, employees or other persons; (7) whether and to what extent the motor carriers share or have proximity of physical or mailing addresses, telephone, fax numbers, or email addresses; (8) whether and to what extent the motor carriers share or have motor vehicle equipment in common; (9) whether and to what extent the motor carriers share or have continuity of liability insurance policies or coverage under such policies; (10) whether and to what extent the motor carriers use, share or take over each other's facilities and other physical assets; (11) continuity or commonality of nature and scope of operations, including customers for whom transportation is provided; and (12) advertising, corporate name, or other acts through which the motor carriers hold themselves out to the public. The Agency does not consider any one of these factors to be dispositive, and the proof of all twelve would not be required to indicate substantial continuity. When considered collectively, however, they would show whether two or more motor carriers are operationally the same.

If the Agency Official makes a determination in accordance with § 385.905, § 385.913(a) would authorize the Agency Official to issue an order suspending the motor carrier's registration. Paragraphs (b) through (e) would establish the procedures FMCSA would follow to suspend an motor carrier's registration.

Under paragraph (b), the Agency Official would initiate a suspension proceeding by issuing an order directing the motor carrier to show good cause, within 30 days of service of the order, why its operating authority registration should not be suspended. The order would provide the motor carrier with notice of the alleged conduct and would explain how to respond to the order. If the proceeding is based on the conduct of another person, the Agency Official would be required to serve a copy on the person alleged to have engaged in the conduct giving rise to the order, and to inform the person that he or she may—but is not required to—intervene by filing a response in the proceeding in accordance with the procedures in paragraph (c). Finally, the order would state that it would be effective on the 35th day after it was served, if the motor carrier or an intervening person does not respond appropriately.

Paragraph (c) would establish an independent right for the person on whose conduct the proceeding is based to intervene in the suspension proceeding. This provision would give the person an opportunity to respond to allegations about his or her conduct to protect his or her interests, which may diverge from the interests of the motor carrier. If the person does not respond within 30 days of being served with the order, he or she would waive the right to participate in the proceeding. By declining to intervene at this stage, he or she would also waive the right to participate in any future proceedings that arise out of the initial show cause order, such as revocation, administrative review, or rescission proceedings under this proposed rule. When the motor carrier is a sole proprietor or other corporate structure under which the interests of the company and the person in question are one and the same, the person may want to specify that he or she is responding both as the motor carrier and the intervening person to preserve his or her right to participate in a proceeding at a later date as an intervening person in the event that the motor carrier's ownership structure changes.

Under paragraph (d), the Agency Official who issued the order would review all responses to the order. In reviewing the responses, the Agency Official would consider, among other things, the factors described in proposed §§ 385.907, 385.909 and/or 385.911. After reviewing the response, the Agency Official would take one of three actions. First, he or she could enter an order suspending the motor carrier's operating authority registration. Second, he or she could enter an order directing the motor carrier to come into compliance with this proposed rule. Based on the motor carrier's response and the factors described in proposed §§ 385.907, 385.909 and/or 385.911, an order directing compliance might be more appropriate than suspension. Third, the Agency Official could determine that neither suspension nor an order directing compliance is appropriate. In this case, the Agency Official would enter an order terminating the proceeding. The Agency Official could enter a termination order in a number of different circumstances. The Agency Official could terminate the proceeding after determining that the motor carrier or person acting on its behalf did not engage in the alleged conduct. Alternatively, the Agency Official could determine that although the motor carrier or person acting on its behalf had engaged in the alleged conduct, the motor carrier had already taken the appropriate remedial action, rendering an order unnecessary. In this example, the motor carrier might not be subject to an order under § 385.905 but it could nonetheless remain subject to civil or criminal penalties under § 385.921.

If the Agency Official issues an order under paragraph (d) of this section, the motor carrier or the intervening person may submit a petition for administrative review with FMCSA's Assistant Administrator within 15 days of service of that order. The effective date of the order would be stayed, if either themotor carrier or the intervening person seeks administrative review within the required timeframe, unless the Assistant Administrator finds good cause not to stay the order. Should neither the motor carrier nor the intervening person seek administrative review, the order would become a Final Agency Order 20 days after being served. Failure to submit a petition for administrative review would constitute a waiver of the right to contest the order.

Paragraph (e) would establish the procedures for motor carriers and intervening persons to petition for administrative review of an order issued under this section. If a person did not intervene under paragraph (c), he or she would have waived the right to seek administrative review under this section. Any party seeking administrative review under this section would be limited to challenging errors of fact and/or law. The Assistant Administrator would review the petition(s), and his or her decision regarding the petition(s) would become the Final Agency Order.

The Agency Official would be able to initiate a proceeding to revoke the motor carrier's operating authority registration for failure to comply with a suspension or compliance order issued under § 385.913. FMCSA's ability to revoke a motor carrier's operating authority registration is limited to specific circumstances. Under FMCSA's current statutory authority, the Agency may revoke a motor carrier's operating authority registration only after: (1) Issuing an order to the registrant requiring compliance with the statute, an FMCSA regulation, or a condition of the operating authority registration; and (2) the registrant willfully does not comply with the order for a period of 30 days (49 U.S.C. 13905(d)). That means that, under this proposed rule, the Agency Official could only seek revocation if he or she determined that the motor carrier willfully failed to comply with the suspension or compliance order issued under § 385.913 for at least 30 days. For that reason, there must be a separate procedure under which the Agency Official could issue a suspension or compliance order prior to initiating a revocation proceeding under § 385.915.

The procedure for commencing a revocation proceeding under § 385.915 would be similar to the procedure for commencing a suspension proceeding under § 385.913. Under paragraph (b), the Agency Official would issue an order to the motor carrier directing it to show good cause within 30 days of service of the order why its operating authority registration should not be revoked for failure to comply with an order issued under § 385.913. The order would provide the motor carrier with notice of the alleged violation and would explain how to respond to the order. The order would inform any person who intervened in the initial proceeding that he or she may—but is not required to—intervene under paragraph (c) of this section. Any person who did not intervene in the initial proceeding in accordance with § 385.913(c) would have waived the right to participate under this section and would not be entitled to submit an independent response. Finally, the order would inform the motor carrier that the order would be effective on the 35th day after it was served if the motor carrier or an intervening person does not respond.

Paragraph (c) would establish an independent right for the person to intervene in the revocation proceeding, provided he or she intervened in the initial proceeding under § 385.913(c). If the person does not respond within 30 days of being served with the order, he or she waives the right to participate in the proceeding and any future proceedings that may arise out of the show cause order. This would include administrative review or rescission proceedings under this proposed rule.

Under paragraph (d), the Agency Official who issued the order would review all responses. After reviewing the responses, the Agency Official would either enter an order revoking the motor carrier's operating authority registration or terminating the proceeding. If the Agency Official issues an order revoking operating authority registration, the motor carrier and the intervening person would within 15 days of service have the right to seek administrative review of the order by the Assistant Administrator of the order. The effective date of the order would be stayed if either the motor carrier or intervening person seeks review, unless the Assistant Administrator finds good cause not to stay the order. If neither the motor carrier nor the intervening person seeks review, the order would become a Final Agency Order 20 days after being served. Failure to submit a petition for review would constitute a waiver of the right to contest the order. An order revoking registration under this section would remain in effect and prevent the motor carrier from obtaining new registration until that order is rescinded in accordance with § 385.917. Paragraph (e) would provide that any party seeking review under this section must follow the procedures set forth in § 385.913(e).

Section 385.917 would permit the motor carriers as well as intervening persons to file petitions for rescission of an order issued under this proposed rule suspending or revoking the motor carrier's operating authority registration. Rescission would be appropriate when a motor carrier or intervening person has taken action to correct the deficiencies that resulted in the suspension or revocation. Motor carriers or intervening persons could seek rescission of an order in addition to, or in lieu of, seeking administrative review. However, any person who does not intervene under §§ 385.913(c) and/or 385.915(c) would have waived the right to petition for rescission.

Paragraph (b) would require that the petition be made in writing to the Agency Official who suspended or revoked the operating authority registration. Paragraph (c) would require the petitioning motor carrier or intervening person to include a copy of the order suspending or revoking the registration, a statement identifying the corrective action taken, and supporting documentation. Paragraph (d) would give the Agency Official 60 days in which to issue a written decision that includes the factual and legal basis for that decision.

Paragraph (e) provides that, if the Agency Official grants the petition, the order rescinding the suspension or revocation would be a Final Agency Order. A motor carrier that obtains an order rescinding an order of suspension could resume operations without seeking additional authorization, as long as it was otherwise eligible under FMCSA's regulations. A motor carrier whose order of revocation is rescinded, however, must reapply for and receive operating authority registration as a new entrant under 49 CFR part 385 before resuming operations.

Paragraph (f) would provide that if the Agency Official denied the petition for rescission, the motor carrier or intervening person could petition the Assistant Administrator for administrative review of this decision. Motor carriers or intervening persons would be required to serve a petition for review with the Assistant Administrator within 15 days after service of the order denying the petition for rescission. The petitioner would be required to identify the disputed factual or procedural issues relevant to the denial of the petition for rescission and would not be permitted to challenge the underlying suspension or revocation order. Paragraph (g) would give the Assistant Administrator 60 days to issue a writtendecision, which would become the Final Agency Order.

Section 385.919 would clarify that orders issued under the proposed rule would not amend or supersede existing FMCSA orders, prohibitions, or requirements. Orders issued under the new rule would be separate from and in addition to existing orders, prohibitions, or requirements. Rescission of an order suspending or revoking operating authority registration under this proposed rule would not affect other suspension or revocation orders either pending or in effect at the time of rescission. Once an order is rescinded, a motor carrier would not be able to resume operations unless it was otherwise eligible under FMCSA's regulations and was in compliance with any other orders issued by the Agency.

Section 385.921 would clarify that existing statutory civil and criminal penalties and sanctions could apply to motor carriers subject to enforcement under this proposed rule. These motor carriers could be subject to civil and criminal penalties, regardless of whether the Agency Official determines that suspension, revocation, or other remedial action is appropriate. A motor carrier that takes corrective action after receiving notice of a show cause order, but before a final order is entered, would not necessarily avoid civil or criminal penalties. An intervening person or any other person whose conduct precipitates an enforcement action would not be subject to civil or criminal penalties under this section, if that person does not hold operating authority registration. Currently, maximum civil penalties for violations of Subchapter III of Title 49, United States Code (which includes section 31135) are $11,000 per violation. The criminal penalties for knowingly and willfully violating Subchapter III include up to one year's imprisonment and a fine not to exceed $25,000.

Section 385.923 would provide that the regulations governing the service of documents and the computation of time at 49 CFR §§ 386.6 and 386.8 would apply to proceedings under this proposed rule.

This proposed rule would add a new paragraph (i) to Appendix A to Part 386, establishing a penalty of up to $11,000 for each day that a motor carrier operated in violation of an order suspending or revoking operating authority registration under this proposed rule based on 49 U.S.C. 521(b)(2)(A), as adjusted for inflation by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996.

This action does not meet the criteria for a significant regulatory action, either as specified in Executive Order 12866 as supplemented by Executive Order 13563 (76 FR 3821, January 18, 2011) or within the meaning of the DOT regulatory policies and procedures (44 FR1103, February 26, 1979). The estimated economic costs of the rule do not exceed the $100 million annual threshold nor does the Agency expect the rule to have substantial Congressional or public interest. Therefore, this rule has not been formally reviewed by the Office of Management and Budget.

FMCSA assessed the potential costs associated with this proposed rule. While there should be no cost associated with this rule, there could potentially be cost associated with the transfer to other firms of assets from motor carriers that have had their operating authority registration suspended or revoked, but found these costs to be insignificant. Moreover, these transfer costs could have been avoided by complying with the FMCSRs or declining to mask or otherwise conceal evidence of noncompliance with the FMCSRs. Motor carriers that have their operating authority registration suspended or revoked would lose revenue, but this revenue would be reallocated to other firms.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601et seq.) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with a population of less than 50,000.2

Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), the proposed rule is not expected to have a significant economic impact on a substantial number of small entities. Consequently, I certify the proposed action would not have a significant economic impact on a substantial number of small entities. FMCSA invites comment from members of the public who believe there will be a significant impact either on small businesses or on governmental jurisdictions with a population of less than 50,000.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), FMCSA wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact, Juan Moya, listed in theFOR FURTHER INFORMATION CONTACTsection of this proposed rule.

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247).

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of$143.1 million (which is the value of $100 million in 2010 after adjusting for inflation) or more in any 1 year. Though this proposed rule would not result in such expenditure, FMCSA discusses the effects of this rule elsewhere in this preamble.

FMCSA analyzed this NPRM for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and determined under its environmental procedures Order 5610.1, published February 24, 2004 (69 FR 9680), that this proposed action does not have any effect on the quality of the environment. Therefore, this NPRM is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1, paragraph 6(u) of Appendix 2. The Categorical Exclusion under paragraph 6(u) relates to regulations implementing “Motor carrier identification and registration reports * * *”, which is the focus of this rulemaking. A Categorical Exclusion determination is available for inspection or copying in the regulations.gov Web site listed underADDRESSES.

In addition to the NEPA requirements to examine impacts on air quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401et seq.) also requires FMCSA to analyze the potential impact of its actions on air quality and to ensure that FMCSA actions conform to State and local air quality implementation plans. No additional contributions to air emissions are expected from this rule and FMCSA expects the rule to not be subject to the Environmental Protection Agency's General Conformity Rule (40 CFR parts 51 and 93).

FMCSA seeks comment on these determinations.

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

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

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

Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (April 23, 1997, 62 FR 19885), requires that agencies issuing economically significant rules, which also concern an environmental health or safety risk that an Agency has reason to believe may disproportionately affect children, must include an evaluation of the environmental health and safety effects of the regulation on children. Section 5 of Executive Order 13045 directs an Agency to submit for a covered regulatory action an evaluation of its environmental health or safety effects on children. The FMCSA has preliminarily determined that this proposed rule is not a covered regulatory action as defined under Executive Order 13045. This determination is based upon the fact that this proposed rule is not economically significant under Executive Order 12866, because the changes proposed in this rule would not have an impact of $100 million or more in any given year. In addition, this proposal would not constitute an environmental health risk or safety risk that would disproportionately affect children.

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

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

The FMCSA has analyzed this proposed rule under Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use.” This proposal is not a significant energy action within the meaning of section 4(b) of the Executive Order. This proposal is a procedural action, is not economically significant, and would not have a significant adverse effect on the supply, distribution, or use of energy.

FMCSA conducted a Privacy Threshold Analysis for the NPRM and determined that the rulemaking has privacy implications that will be addressed by modifying the following two documentations: FMCSA Enforcement Management Information System (EMIS), Privacy Impact Assessment (PIA) and DOT/FMCSA 002 System of Records Notice (SORN) for Motor Carrier Safety Proposed Civil and Criminal Enforcement Cases. These documents have been placed in the docket.

For the reasons stated in the preamble, FMCSA proposes to amend title 49 CFR, Code of Federal Regulations, chapter III, to read as follows:

The New England Fishery Management Council (Council) developed herring specifications for 2010-2012, which were approved by NMFS on August 12, 2010 (75 FR 48874). The stock-wide herring ACL (91,200 mt) is divided among three management areas, one of which has two sub-areas. Area 1 is located in the Gulf of Maine (GOM) and is divided into an inshore section (Area 1A) and an offshore section (Area 1B). Area 2 is located in the coastal waters between Massachusetts and North Carolina, and Area 3 is on Georges Bank (GB). The herring stock complex is considered to be a single stock, but there are inshore (GOM) and offshore (GB) stock components. The GOM and GB stock components segregate during spawning and mix during feeding and migration. Each management area has its own sub-ACL to allow greater control of the fishing mortality on each stock component. The management area sub-ACLs established for 2010-2012 were: 26,546 mt for Area 1A, 4,362 mt for Area 1B, 22,146 mt for Area 2, and 38,146 mt for Area 3.

Amendment 4 to the Herring FMP (Amendment 4) (76 FR 11373, March 2, 2011) revised the specification-setting process, bringing the Herring FMP into compliance with ACL and accountability measure (AM) requirements of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Under the FMP, if NMFS determines catch will reach 95 percentof the sub-ACL allocated to a management area or seasonal period, then NMFS prohibits vessels from fishing for, possessing, catching, transferring, or landing more than 2,000 lb (907.2 kg) of herring per trip from that area or period. This AM slows catch to prevent or minimize catch in excess of a management area or seasonal period sub-ACL. As a way to account for ACL overages in the herring fishery, Amendment 4 established an AM that provided for overage deductions. If the catch of herring in any given fishing year exceeds any ACL or sub-ACL, the overage will subsequently be deducted from the corresponding ACL/sub-ACL. A range of reasonable alternatives to the current AMs will be considered as a part of the 2013-2015 specifications process. Until then, the current AMs, including the overage deduction addressed in this proposed rule, are still in place.

Fishing year 2010 was the first year that NMFS monitored herring catch against the management area sub-ACLs. Herring catch from Areas 1B and 1A exceeded their 2010 allocations by 1,639 mt and 1,878 mt respectively. NMFS deducted the 2010 overages from the 2012 herring specifications in a final rule, which became effective on February 24, 2012 (77 FR 10978). Due to the overages that occurred in 2010, NMFS had previously revised vessel reporting requirements to obtain more timely catch reports (76 FR 54385, September 1, 2011). Accordingly, limited access herring vessels are now required to report herring catch daily via vessel monitoring systems (VMS), open access herring vessels are required report catch weekly via the interactive voice response system (IVR), and all herring-permitted vessels are required to submit vessel trip reports (VTRs) weekly.

The 2011 Atlantic herring fishing year began on January 1 and ended on December 31, 2011. Based on dealer, VTR, and observer data, 2011 herring catch exceeded the sub-ACL in Area 1A by 1,425 mt. There were no sub-ACL overages in the other herring management areas. Therefore, NMFS is required to deduct the Area 1A overage in 2011 from the 2013 Area 1A sub-ACL. At the time of this proposed rule, the Atlantic herring 2013 specifications have not yet been finalized. The 2013-2015 herring specifications are currently in development and are not likely to be effective prior to the 2013 herring fishing year, which begins on January 1, 2013.

The Council's Scientific and Statistical Committee (SSC) met on September 13, 2012, to recommend acceptable biological catch (ABC) levels for the herring fishery. The Council is expected to take final action at its November meeting, and a proposed and final rule will follow. Although the 2013 herring specifications won't be in place on January 1, 2013, the regulations at § 648.200(d) include a provision that allows the previous years' specifications to roll over when the specifications are delayed past the start of the fishing year. Therefore, the 2012 herring specifications will be in place on January 1, 2013, until the 2013-2015 specifications are finalized, and the 2011 overage will be deducted initially from the 2011 herring specifications. Once the 2013-2015 specifications are final, the 2011 overage will be deducted from that amount as part of the rulemaking for the 2013-2015 specifications.

In accordance with regulations at § 648.201(a)(3), this action proposes to deduct the 1,425-mt 2011 overage in Area 1A from the 2013 Area 1A sub-ACL. Since the 2012 herring specifications will not be in place on January 1, 2013, this action proposes adjusting the rolled over sub-ACL in Area 1A until the 2013-2015 specifications are finalized. Therefore, on January 1, 2013, the sub-ACL for Area 1A would be revised from 26,546 mt to 25,121 mt (a reduction of 1,425 mt) to account for the 2011 catch overage. When the 2013 specifications are finalized, we will deduct the 1,425-mt overage from the final 2013 Area 1A sub-ACL.

NMFS determined 2011 herring landings based on dealer reports (Federal and state) containing herring purchases, supplemented with VTRs (Federal and State of Maine) containing herring landings. NMFS compared dealer reports to VTRs for all trips that landed herring in 2011. Because VTRs are generally a hail weight or estimate of landings, with an assumed 10 percent margin of error, dealer reports are a more accurate source of landings data. However, if the amount of herring reported via VTR exceeded by 10-percent or more the amount of herring reported by the dealer, it was assumed that the dealer report for that trip was in error. In those instances, the amount of herring reported via VTR was used to determine the amount of herring landed on that trip. Herring landings in the VTR database were checked for accuracy against the scanned image of the paper VTRs submitted by the owner/operator of the vessel. VTR landings were also verified by comparing reported landings to harvesting potential and applicable possession limits for each vessel. Federal dealer reports and state reports for 2011 were finalized in June 2012.

Herring landings reported on VTRs were assigned to herring management areas using latitude and longitude coordinates. VTRs with missing or invalid latitude/longitude coordinates were manually corrected using the statistical area reported on the VTR. If no statistical area was reported on the VTR, then a combination of recent fishing activity and a review of the scanned images of the original VTR were used to assign landings to a herring management area. Dealer reports without corresponding VTRs were prorated to a herring management area using the proportion of total herring landings stratified by week, gear type, and management area.

NMFS resolved data errors resulting from misreporting. This was done by reviewing the 2011 herring data, and comparing VMS daily catch reports. Common dealer reporting issues included: Missing dealer reports; incorrect or missing VTR serial numbers; incorrect or missing vessel permit numbers; and misidentification of pair trawling vessels landing catch. VMS daily catch reports and VTRs had similar errors. Common VMS daily catch report errors included: Missing reports; data entry mistakes (including too many or not enough zeros); and missing kept all data reported by haddock stock area. Common VTR reporting issues included: Missing VTRs; missing or incorrect dealer information; incorrect amounts of landed herring; incorrect dates; and missing or incorrect statistical area. The quality of herring landings data is affected by unresolved data errors; therefore, NMFS strongly encourages vessel owner/operators and dealers to double check reports for accuracy and ensure reports are submitted on a timely basis.

Discards of herring in 2011 were determined by extrapolating Northeast Fisheries Observer Program (observer) data to the entire herring fishery. The amount of observed herring discards (“Atlantic herring” and “herring unknown”) was divided by the amount of observed fish (all species) landed. That discard ratio was then multiplied by the amount of all fish landed for each trip to calculate total amount of herring discards in 2011. The amount of discards was determined for each management area and gear type. Observer data for 2011 were finalized on March 30, 2012.

NMFS calculated the total herring catch for 2011 by adding the amount of herring landings to the amount ofherring discarded. The methodology used by NMFS to calculate the amount of landed herring and the amount of discarded herring was reviewed and approved by the Council's Herring Plan Development Team (PDT) in August 2012. The final 2011 herring catch data differs from the catch data presented on the NOAA Fisheries Northeast Regional Office Web page (www.nero.noaa.gov) at the end of the 2011 fishing year due to differences in real-time quota monitoring and end of the year accounting methods. Herring catch was monitored in real time using weekly IVR reports supplemented with dealer data until September 8, 2011, when the VMS catch reports were required for limited access vessels. From September 8, 2011, through the remainder of the fishing year, herring catch was monitored in real-time using daily VMS catch reports for limited access herring vessels, and IVR reports for open access vessels. While using daily VMS catch reports are crucial for monitoring high volume fisheries such as the herring fishery in real-time, the final 2011 herring catch estimates used a combination of dealer and VTR data, which tends to have fewer errors and is more accurate. In addition, the year-end accounting method includes any late reported landings. Therefore, the final 2011 herring catch estimates can differ (sometimes significantly) from the real-time estimates shown on the NOAA Fisheries Northeast Regional Office Web site.

The following chart contains information on the 2011 herring fishery:

Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Atlantic Herring FMP, other provisions of the MSA, and other applicable law, subject to further consideration after public comment.

The National Environmental Policy Act analysis to support this action was completed in Amendment 4 (76 FR 11373, March 2, 2011).

This proposed rule has been determined to be not significant for purposes of Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

The Council prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA) in the Environmental Assessment for Amendment 4. The IRFA describes the economic impact that herring accountability measures, including overage deductions, would have on small entities. A summary of the analysis and additional analysis on the economic impact of this proposed rule follows. A copy of the Amendment 4 analysis is available from the Council or NMFS (seeADDRESSES) or via the Internet athttp://www.nero.noaa.gov.

In 2011, there was a herring catch limit overage in herring management area 1A equal to 1,425 mt. In accordance with regulations at § 648.201(a)(3), this action proposes to deduct the 2011 management Area 1A overage from the 2013 management Area 1A catch limits. Since the 2013 specifications will not be finalized by January 1, 2013, and the 2012 specifications will be in place at the start of the herring fishing year, NMFS proposes to revise the rolled over sub-ACL for Area 1A for 2013 from 26,546 mt to 25,121 mt to account for 2011 the catch overage. When the 2013 herring specifications are finalized, NMFS will deduct the 1,425 mt from the final 2013 Area 1A sub-ACL.

In 2011, 93 vessels were issued limited access herring permits, and 2,149 were issued open access herring permits. All participants in the herring fishery are small entities as defined by the SBA under the Regulatory Flexibility Act, as none grossed more than $4 million annually, so there would be no disproportionate economic impacts on small entities.

Total herring revenue in 2011 equaled approximately $22.4 million for limited access vessels and $43,000 for open access vessels. The reduced sub-ACL in Areas 1A is estimated to equal approximately $400,000 in lost revenue for the fishery in 2013. While this action reduces the amount of fish available for harvest, both the fishery-wide and individual-vessel economic effects are anticipated to be minimal, because the reduction is relatively minor, as compared with the fishery's overall revenue, and because it only affects one of the herring management areas.

Amendment 4 analyzed the effects of deducting ACL/sub-ACL overages from the subsequent corresponding ACL/sub-ACL. During a year when the ACL/sub-ACL is exceeded, fishery participants may benefit economically from higher catch. In the subsequent year, when the amount of the overage is deducted from that ACL/sub-ACL and the amount of harvest is lower, fishery participants may experience negative economic impacts. Since the participants in the fishery from year to year vary, there could be a minor economic impact on the fishery participants operating in Area 1A in 2013 due to the overage deduction from 2011.