The Privacy Act of 1974, at 5 U.S.C. 552a(f), requires every agency that maintains a system of records covered by the Privacy Act to promulgate regulations that: (1) Establish procedures whereby an individual can be notified in response to his request if any system of records named by the individual contains a record pertaining to him; (2) define reasonable times, places, and requirements for identifying an individual who requests his record or information pertaining to him before the agency shall make the record or information available to the individual; (3) establish procedures for the disclosure to the data subject upon his request of his record or information pertaining to him, including special procedures if deemed necessary, for the disclosure to the data subject of medical records, including psychological records, pertaining to him; (4) establish procedures for reviewing a request from the data subject concerning the amendment of any record or information pertaining to the data subject, for making a determination on the request, for an appeal within the agency of an initial adverse agency determination, and for whatever additional means may be necessary for each data subject to be able to exercise fully his rights under the Privacy Act; and (5) establish fees to be charged, if any, to any individual for making copies of his record, excluding the cost of the first copy of the record provided as well as the cost of any search for and review of the record. In addition, section 552a(e)(9) of the Privacy Act requires an agency to establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, and instruct each such person with respect to such rules and the requirements of the Act, including any other rules and procedures adopted pursuant to the Act and the penalties for noncompliance.

The Privacy Act, at 5 U.S.C. 552a(e)(4), also requires each agency that maintains a system of records to publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records. In a separate notice published in the Federal Register today, OGE is proposing to revise and rename two existing Government-wide systems of records under the Privacy Act covering Executive Branch Personnel Public Financial Disclosure Reports and Other Name-Retrieved Ethics Program Records (OGE/GOVT-1) and Executive Branch Confidential Financial Disclosure Reports (OGE/GOVT-2). In addition, OGE is issuing, for the first time, five internal systems of records to cover current and former OGE employees: Pay, Leave and Travel Records (OGE/INTERNAL-1), Telephone Call Detail Records (OGE/INTERNAL-2), Grievance Records (OGE/INTERNAL-3), Computer Systems Activity and Access Records (OGE/INTERNAL-4), and Employee Locator and Emergency Notification Records (OGE/INTERNAL-5).

As proposed, subpart A of the rule would contain general provisions setting forth the purpose of the regulation (§ 2606.101), definitions that apply throughout the part (§ 2606.102), and a description of OGE's executive branch Governmentwide and internal systems of records (§ 2606.103). As proposed, subpart A of the rule would also specify OGE and agency responsibilities for the records systems (§ 2606.104), and would establish procedures whereby an individual can be notified in response to his request if any OGE system of records named by the individual contains a record pertaining to him (§ 2606.105).

In addition, subpart A would set forth Privacy Act rules of conduct and responsibilities for OGE employees who design, develop, operate, or maintain a system of records (§ 2606.106). These conduct and responsibilities rules would not apply to employees of other agencies concerned; they would be subject to their own agency's Privacy Act conduct and responsibilities rules. These conduct and responsibilities rules are authorized by subsection (e)(9) of the Privacy Act, and therefore are separate from the Standards of Ethical Conduct in 5 CFR part 2635. Various provisions in the Standards of Ethical Conduct ( e.g. , 5 CFR 2635.703 regarding use of nonpublic information) would also apply to an employee's conduct as to records covered by the Privacy Act.

Overall, these proposed OGE Privacy Act rules would apply both to records in the new OGE internal systems of records as maintained by OGE itself, as well as the newly updated and revised OGE executive branch Governmentwide systems of records which are maintained both by OGE and departments and agencies throughout the executive branch. With respect to those other departments and agencies, these proposed regulations would set forth the overall procedures for the Governmentwide systems, while recognizing that most agencies have their own Privacy Act regulations specifying appropriate appeals officials for access and amendment denials as well as schedules of fees. The details of these agency variations are set forth in the relevant proposed sections of the regulatory text, rather than here.

Subpart B of the rule, as proposed, describes the access process, and the accounting of disclosures process. Section 2606.201 would detail what a requester would have to submit to obtain access to a record pertaining to him in a system of records. Section 2606.202 would set forth the procedures when a request for access is received. Section 2606.203 would set forth the procedures for granting access, including the forms of identification necessary to gain access to requested records. Section 2606.203 would also state how a record in a system of records may be accessed on behalf of a minor, by a legal guardian, when the requester is accompanied by another individual, or when the request is for certain medical records. Section 2606.204 would describe the procedure for appealing a denial of an initial request for access to a record or a no record response. Section 2606.205 would describe what should be included in the official decision on an appeal from an initial denial of access. Section 2606.206 would set the fees that may be charged by the Office (or another agency not having its own Privacy Act fee schedule) for making copies of a record. Section 2606.207 would describe the accounting of disclosures that are kept with respect to OGE's systems of records.

As proposed, subpart C of the rule explains how a data subject may seek to amend his record. Section 2606.301 would set forth the procedures for requesting a record be amended, including the information that must be contained in the request, and would state that the requester has the burden of proof to justify an amendment request. Section 2606.302 would set forth the procedures to be followed when an amendment request is received.

If a request to amend a record is denied, the requester would be able to appeal the denial by following the procedures that would be set forth in § 2606.303. Section 2606.304 would set forth the procedures for responding to an appeal from an initial denial of a request to amend a record. Section 2606.304 also would set forth the information that should be included in the official appeal determination. Finally, § 2606.304(d) would provide procedures for a data subject to file a concise statement setting forth the reasons for his disagreement with the refusal to amend his records.

This proposed rulemaking is in compliance with the Administrative Procedure Act (5 U.S.C. 553) and allows for a 60-day comment period. Interested persons are invited to submit written comments to the Office of Government Ethics on this proposed regulation, to be received on or before March 24, 2003. The Office of Government Ethics will review all comments received and consider making any modifications to this proposed rule that appear warranted in issuing its final rule.

In promulgating this proposed rule, the Office of Government Ethics has adhered to the regulatory philosophy and the applicable principles of regulation set forth in section 1 of Executive Order 12866, Regulatory Planning and Review. This proposed rule has also been approved by the Office of Management and Budget under the Executive Order.

As Director of the Office of Government Ethics, I have reviewed this proposed rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this proposed rule will not have a significant economic impact on a substantial number of small entities, because it will primarily affect current and former executive branch Federal employees.

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

The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply to this proposed rule because it does not contain information collection requirements that require the approval of the Office of Management and Budget.

The Office of Government Ethics has determined that this proposed rulemaking involves a nonmajor rule under the Congressional Review Act (5 U.S.C. chapter 8) and will, before the future final rule takes effect, submit a report thereon to the U.S. Senate, House of Representatives and General Accounting Office in accordance with that law.

Accordingly, for the reasons set forth in the preamble, the Office of Government Ethics is proposing to amend subchapter A of chapter XVI of title 5 of the Code of Federal Regulations by adding part 2606 to read as follows:

In a variety of situations, partnerships issue options or convertible instruments that allow the holder to acquire by purchase or conversion an equity interest in the partnership. On June 5, 2000, Treasury and the IRS issued Notice 2000-29 (2000-1 C.B. 1241) inviting public comment on the Federal income tax treatment of the exercise of an option to acquire a partnership interest, the exchange of convertible debt for a partnership interest, and the exchange of a preferred interest in a partnership for a common interest in that partnership.

In response to Notice 2000-29, Treasury and the IRS received a number of comments. Many commentators requested guidance on the treatment of options and other instruments that are issued by partnerships in connection with the performance of services (compensatory options).

These proposed regulations apply to certain call options, warrants, convertible debt, and convertible preferred equity that are not issued in connection with the performance of services (noncompensatory options). To expedite the issuance of guidance, these regulations do not address compensatory options. Nothing in the proposed regulations should be construed as creating any inference regarding the proper Federal income tax treatment of compensatory options. However, Treasury and the IRS are working on future guidance that will address the Federal income tax consequences of compensatory options and invite comments. In particular, Treasury and the IRS request comments on the proposed amendment to § 1.721-1(b)(1) that was published in the Federal Register on June 3, 1971 (36 FR 10787), and, more particularly, on the application of section 83 to the issuance of compensatory options and partnership capital interests in connection with the performance of services. In addition, Treasury and the IRS request comments on how to coordinate the tax treatment of partnership profits interests issued in connection with the performance of services (see Rev. Proc. 93-27 (1993-2 C.B. 343), as clarified in Rev. Proc. 2001-43 (2001-34 I.R.B. 191)) with the tax treatment of options to acquire partnership capital interests issued in connection with the performance of services.

The proposed regulations describe certain of the income tax consequences of issuing, transferring, and exercising noncompensatory options. These proposed regulations apply only if the call option, warrant, or conversion right entitles the holder to the right to acquire an interest in the issuer (or to cash or property having a value equal to the value of such an interest).

The proposed regulations generally provide that the exercise of a noncompensatory option does not cause recognition of gain or loss to either the issuing partnership or the option holder. In addition, the proposed regulations modify the regulations under section 704(b) regarding the maintenance of the partners' capital accounts and the determination of the partners' distributive shares of partnership items. Finally, the proposed regulations contain a characterization rule providing that the holder of a call option, warrant, convertible debt, or convertible preferred equity issued by a partnership (or an eligible entity, as defined in § 301.7701-3(a), that would become a partnership if the option holder were treated as a partner) is treated as a partner under certain circumstances.

The rule providing for nonrecognition of gain or loss on the exercise of a noncompensatory option does not apply to any call option, warrant, or convertible debt issued by an eligible entity, as defined in § 301.7701-3(a), that would become a partnership under § 301.7701-3(f)(2) if the option, warrant, or conversion right were exercised. Treasury and the IRS request comments on whether the nonrecognition rule should be extended to such instruments.

Section 721(a) and § 1.721-1 provide that, with certain exceptions, no gain or loss is recognized to a partnership or any of its partners on the contribution of property to a partnership in exchange for an interest in the partnership. However, § 1.721-1 does not provide clear guidance as to the tax consequences to the holder of a noncompensatory option and the partnership upon the issuance, lapse, and exercise of a noncompensatory option to acquire a partnership interest. Many taxpayers have requested guidance clarifying the tax consequences of these transactions.

Generally, the proposed regulations do not treat the issuance of a noncompensatory option as a transaction described in section 721. Therefore, the issuance of a noncompensatory option is taxed under general tax principles. Under these principles, the issuance of a noncompensatory call option or warrant (stand-alone option) is generally an open transaction for the issuer. The issuer's income or loss from the noncompensatory stand-alone option does not become fixed and determinable until the lapse, exercise, repurchase, or other termination of the option. For the holder of the noncompensatory stand-alone option, the purchase of the option is merely an investment in the option—a capital expenditure that is neither taxable to nor deductible by the holder. See Rev. Rul 78-182 (1978-1 C.B. 265). However, if the holder uses appreciated or depreciated property (property with a value greater or less than the holder's basis in the property) to acquire the noncompensatory stand-alone option, then the holder recognizes gain or loss in accordance with the provisions of section 1001, subject to the generally applicable rules governing the allowance of losses, such as section 707(b).

The proposed regulations do not change the rules relating to the issuance of convertible debt or convertible equity. Under general tax principles, the conversion right embedded in convertible debt or convertible equity typically is taken into account for tax purposes as part of the underlying instrument.

The proposed regulations also provide guidance on the tax consequences resulting from the exercise of a noncompensatory option. Section 1.721-1(b) provides that, to the extent that a partner gives up his right to be repaid all or a portion of his capital contribution in favor of another partner “as compensation for services (or in satisfaction of an obligation),” section 721 does not apply. Some commentators have expressed a concern that this regulation could be read to exclude from the application of section 721 a shift in partnership capital from the historic partners to the holder of the noncompensatory option in satisfaction of the partnership's option obligation upon exercise of the option. If this were the case, the partnership could be deemed to have sold a portion of each of its assets to the holder in a taxable exchange. Alternatively, the partnership could be deemed to have sold a partnership interest with a $0 basis to the option holder in a taxable exchange.

Despite these concerns, most commentators believe that § 1.721-1(b)(1) should not cause the issuance of a partnership interest upon exercise of a noncompensatory option to be taxable. They assert that the exercise of such an option should be nontaxable to the holder and the partnership, both under general tax principles applicable to noncompensatory options and under the policy of section 721 to facilitate business combinations through the pooling of capital.

Treasury and the IRS agree that, in general, the issuance of a partnership interest to the holder of a noncompensatory option should not be taxable to the holder or the partnership. Upon exercise, the option holder may be viewed as contributing property in the form of the premium, the exercise price, and the option privilege to the partnership in exchange for the partnership interest. Generally, this is a transaction to which section 721 should apply—a transaction through which persons join together in order to conduct a business or make investments. Accordingly, the proposed regulations generally provide that section 721 applies to the holder and the partnership upon the exercise of a noncompensatory option issued by the partnership.

The proposed regulations do not describe the tax consequences (to the partnership or the holder) of a right to convert partnership debt into an interest in the issuing partnership to the extent of any accrued but unpaid interest on the debt (including accrued original issue discount). On the one hand, based on Carman v. Commissioner, 189 F.2d 363 (2d Cir. 1951), it might be argued that the interest obligation is inseparable from the debt and that both are property for purposes of section 721. On the other hand, it may be appropriate to require a partnership to recognize gain to the extent of the accrued but unpaid interest, because the issuance of the partnership interest satisfies a deductible (or capital) expense of the partnership. As this issue is closely related to the tax treatment of the exercise of compensatory options, Treasury and the IRS have decided to consider this issue in the course of preparing guidance on compensatory options. Treasury and the IRS request comments on the proper treatment of the exercise of convertible debt to the extent of accrued, but unpaid, interest (including original issue discount) on the debt.

The proposed regulations also clarify that section 721 does not apply to the lapse of a noncompensatory option. If a noncompensatory option lapses, the former option holder does not contribute property to the partnership in exchange for an interest in the partnership. Accordingly, consistent with general tax principles, the lapse of a noncompensatory option generally results in the recognition of income by the partnership and the recognition of loss by the former option holder.

The proposed regulations also contain rules to assist partnerships in properly accounting for any shifts in capital that may result from the exercise of noncompensatory options.

Generally, upon the exercise of a noncompensatory option, the option holder receives a partnership interest with a value that is greater or less than the aggregate value of the premium and exercise price that the option holder contributes to the partnership. In other words, the option privilege represents an asset with built-in gain or loss, i.e. , an asset to which section 704(c) would apply. However, because the option privilege terminates upon its contribution to the partnership, the partnership cannot allocate gain or loss from the option privilege to the option holder under section 704(c)(1)(A). To address this problem, the proposed regulations generally allow partnerships to substitute built-in gain or loss in the partnership's assets for the built-in gain or loss in the option.

The proposed regulations achieve this result by providing that a noncompensatory option holder's initial capital account is equal to the consideration paid to the partnership to acquire the noncompensatory option and the fair market value of any property (other than the option) contributed to the partnership on the exercise of the noncompensatory option. The proposed regulations then require the partnership to revalue its property immediately following the exercise of the noncompensatory option, when the holder has become a partner. Under the proposed regulations, the partnership must allocate the unrealized income, gain, loss, and deduction from this revaluation, first, to the noncompensatory option holder, to the extent necessary to reflect the holder's right to share in partnership capital under the partnership agreement, and, then, to the historic partners, to reflect the manner in which the unrealized income, gain, loss, or deduction in partnership property would be allocated among those partners if there were a taxable disposition of such property for its fair market value on that date. To the extent that unrealized appreciation or depreciation in the partnership's assets has been allocated to the capital account of the noncompensatory option holder, the holder will, under section 704(c) principles, recognize any income or loss attributable to that appreciation or depreciation as the underlying assets are sold, depreciated, or amortized.

In some cases, the built-in gain or loss in the option will exceed the unrealized appreciation or depreciation in the partnership's assets (that has not been reflected in the partners' capital accounts previously). In those cases, even after all of the unrealized appreciation or depreciation in the partnership's assets has been allocated to the option holder, a disparity may remain between the noncompensatory option holder's right to share in partnership capital and the value of money and other property contributed by the partner. Most commentators have recommended and Treasury and the IRS agree that the partnership nevertheless should be allowed to shift capital between the historic partners an the noncompensatory option holder on the exercise of the noncompensatory option.

Some commentators also have suggested that the historic partners and the noncompensatory option holder should be allocated notional tax items over the recovery period for partnership assets similar to the remedial allocations that are permitted, but not required, under the regulations issued under section 704(c)(1)(A). Although the use of section 704(c) notional tax items would ensure that the noncompensatory option holder and the historic partners receive the proper amount of income and loss over time, Treasury and the IRS believe that implementing such a system would be unduly complex where the built-in gain or loss to be allocated to the noncompensatory option holder exceeds the built-in gain or loss in the partnership's assets.

Instead, the proposed regulations require that the partnership make corrective allocations of gross income or loss to the partners in the year in which the option is exercised so as to take into account any shift in the partners' capital accounts that occurs as a result of the exercise of a noncompensatory option. These corrective allocations are allocations of tax items that differ from the partnership's allocations of book items. If there are not sufficient actual partnership items in the year of exercise to conform the partnership's tax allocations to the capital shift, additional corrective allocations are required in succeeding taxable years until the capital shift has been fully taken into account.

The proposed regulations also provide rules for revaluing the partners' capital accounts while a noncompensatory option is outstanding. Section 1.704-1(b)(2)(iv) contains rules for maintaining a partnership's capital accounts. Section 1.704-1(b)(2)(iv)( f ) provides that a partnership may, upon the occurrence of certain events (including the contribution of money to the partnership by a new or existing partner), increase or decrease the partners' capital accounts to reflect a revaluation of partnership property. If one or more options are outstanding when a revaluation occurs, and the revaluation does not account for the value associated with the outstanding options, the partners' capital accounts will not reflect the true economic value of their interests. For example, in partnerships with appreciated property, the historic partners' capital accounts often would overstate the distributions that would be made to the partners if the partnership were liquidated, because a portion of the partnership's assets may ultimately be paid to the option holder. Therefore, the proposed regulations modify § 1.704-1(b)(2)(iv)( f ) and (h) to provide that any revaluation during the period in which there are outstanding noncompensatory options generally must take into account the fair market value, if any, of outstanding options.

Under section 704(b), a partner's distributive share of income, gain, loss, deduction, or credit (or item thereof) is determined under the partnership agreement if the allocation under the agreement has substantial economic effect. If the allocation does not have substantial economic effect, or the partnership agreement does not provide for the allocation, then the allocation must be made in accordance with the partner's interest in the partnership (determined by taking into account all facts and circumstances). Section 1.704-1(b)(2)(ii)( h ) provides in part that, for this purpose, the partnership agreement includes all agreements among the partners, or between one or more partners and the partnership, concerning affairs of the partnership and responsibilities of partners, whether oral or written, and whether or not embodied in a document referred to by the partners as the partnership agreement, including puts, options, and buy-sell agreements. Currently, there is some uncertainty about the extent to which these rules require a partnership to take into account a noncompensatory option to acquire an interest in a partnership when making its annual allocations.

Treasury and the IRS believe that it is appropriate to clarify these rules with respect to noncompensatory options addressed in this project. As these proposed regulations are limited to noncompensatory options, nothing in these proposed regulations provides any inference as to the operation of this rule for compensatory options or other types of agreements.

Given the uncertainty of the exercise of most noncompensatory options, Treasury and the IRS believe that noncompensatory options generally should not be treated as entitling the holder to a fixed right to share in partnership income until the option is exercised. However, if a noncompensatory option provides the holder with rights that are substantially similar to the rights afforded to a partner, then the holder should be treated as a partner and the option should be taken into account in allocating partnership income. At the same time, Treasury and the IRS recognize that treating a noncompensatory option holder as a partner may, in some circumstances, frustrate the intent of the parties without substantially altering their aggregate tax liabilities.

For these reasons, the proposed regulations generally respect noncompensatory options as such and do not characterize them as partnership equity. However, the proposed regulations contain a rule that characterizes the holder of a noncompensatory option as a partner if the option holder's rights are substantially similar to the rights afforded to a partner. This rule applies only if, as of the date that the noncompensatory option is issued, transferred, or modified, there is a strong likelihood that the failure to treat the option holder as a partner would result in a substantial reduction in the present value of the partners' and the option holder's aggregate tax liabilities.

The proposed regulations use a facts and circumstances test to determine whether a noncompensatory option holder's rights are substantially similar to the rights afforded to a partner, including whether the option is reasonably certain to be exercised and whether the option holder has partner attributes. The proposed regulations list a number of factors that are used to determine whether a noncompensatory option is reasonably certain to be exercised, including the premium paid for the option, the exercise price of the option, the term of the option, the predictability and stability of the value of the underlying partnership interest, and whether the partnership is expected to make distributions during the term of the option. If a noncompensatory option is reasonably certain to be exercised, then the holder of the option ordinarily has rights that are substantially similar to the rights afforded to a partner. Partner attributes include the extent to which the option holder shares in the economic benefit and detriment of partnership income and loss and the extent to which the option holder has the right to participate in the management of the partnership.

If the holder of a noncompensatory option is treated as a partner under the proposed regulations, then the holder's distributive share of the partnership's income, gain, loss, deduction, or credit (or items thereof) generally must be determined in accordance with such partner's interest in the partnership (taking into account all facts and circumstances) as determined under § 1.704-1(b)(3). For this purpose, the partner's interest in the partnership generally must reflect the economic differences between holding an option to acquire a partnership interest and holding the partnership interest itself. For example, unlike a partner, a noncompensatory option holder is not required initially to contribute to the partnership the full amount of the purchase price for the partnership interest. Instead, the noncompensatory option holder generally pays an option premium that is considerably smaller than the purchase price and may wait until the option is about to expire to decide whether to exercise the option and pay the exercise price. The computation of the noncompensatory option holder's share of partnership items should reflect this lesser amount of capital investment to the extent appropriate in a particular case. In addition, a noncompensatory option holder's cumulative distributive share of partnership losses and deductions may be limited under sections 704(b) and (d) to the amount paid by the holder to the partnership for the option.

The final regulations under the original issue discount (OID) provisions provide special rules for debt instruments convertible into the stock of the issuer. See §§ 1.1272-1(e), 1.1273-2(j), and 1.1275-4(a)(4). In response to Notice 2000-29, commentators requested that these special rules be extended to apply to debt instruments convertible into partnership interests. Treasury and the IRS agree with the commentators. Treating convertible debt issued by partnerships and corporations differently for purposes of these special rules could create unjustified distinctions between the taxation of instruments that are economically equivalent. Accordingly, the proposed regulations amend the OID provisions to treat partnership interests as stock for purposes of the special rules for convertible debt instruments.

These regulations are proposed to apply to noncompensatory options that are issued on or after the date final regulations are published in the Federal Register .

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulations do not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small businesses.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written comments (a signed original and eight copies) that are submitted timely to the IRS. Alternatively, taxpayers may submit comments electronically directly to the IRS Internet site at www.irs.gov/regs . The IRS and Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying.

A public hearing has been scheduled for May 20, 2003, beginning at 10 a.m. in room 4718, Internal Revenue Building, 1111 Constitution Avenue, NW., Washington, DC. Due to building security procedures, visitors must enter at the Constitution Avenue entrance. In addition, all visitors must present photo identification to enter the building. Because of access restrictions, visitors will not be admitted beyond the immediate entrance area more than 30 minutes before the hearing starts. For information about having your name placed on the building access list to attend the hearing, see the FOR FURTHER INFORMATION CONTACT portion of this preamble.

The rules of 26 CFR 601.601(a)(3) apply to the hearing. Persons who wish to present oral comments must submit written comments and an outline of the topics to be discussed and the time to be devoted to each topic (a signed original and eight (8) copies) by April 29, 2003. A period of 10 minutes will be allotted to each person for making comments. An agenda showing the scheduling of the speakers will be prepared after the deadline for reviewing outlines has passed. Copies of the agenda will be available free of charge at the hearing.

The principal author of these proposed regulations is Audrey W. Ellis of the Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the IRS and Treasury participated in their development.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

Concurrent with this proposed rule, we also are publishing a separate, substantively identical direct final rule in the Final Rule section of this Federal Register . The simultaneous publication of these documents will speed notice and comment rulemaking under § 553 of the Administrative Procedure Act should we have to withdraw the direct final rule. All interested parties should comment at this time because we will not initiate an additional comment period.

MSHA has determined that the subject of this rulemaking is suitable for a direct final rule. The Agency believes the actions taken are noncontroversial and therefore does not anticipate receiving any significant adverse comments. If MSHA does not receive significant adverse comments on or before February 21, 2003, the Agency will publish a notice in the Federal Register no later than March 10, 2003, confirming the effective date of the direct final rule.

For purposes of the direct final rulemaking, a significant adverse comment is one that explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or why it would be ineffective or unacceptable without a change. In determining whether a significant adverse comment necessitates withdrawal of the direct final rule, MSHA will consider whether the comment raises an issue serious enough to warrant a substantive response in a notice and comment process. A comment recommending an addition to the rule will not be considered a significant adverse comment unless the comment states why this rule would be ineffective without the addition. If significant adverse comments are received, the Agency will publish a notice of significant adverse comments in the Federal Register withdrawing the direct final rule no later than March 10, 2003.

In the event the direct final rule is withdrawn because of significant adverse comments, the Agency can proceed with the rulemaking by addressing the comments received and publishing a final rule. The comment period for the proposed rule runs concurrently with that of the direct final rule. Any comments received under the companion direct final rule will be treated as comments regarding the proposed rule. Likewise, significant adverse comments submitted to the proposed rule will be considered as comments to the companion rule. The Agency will consider such comments in developing a subsequent final rule.

Currently, under § 18.41 of Title 30, Code of Federal Regulations, MSHA sets forth design and construction requirements for plug and receptacle-type connectors used with permissible electric equipment approved under part 18. These technical requirements were last revised in March of 1968, which represented the latest advances in battery connector technology considered appropriate for use on mining equipment at that time.

Over the past thirty years, there have been technological improvements to the methods used for securing battery plugs to receptacles. Since the provisions of existing section 18.41(f) do not reflect the latest state-of-the-art technology, mine operators file petitions for modification under Section 101(c) of the Mine Act to take advantage of the technological advancements. Since 1980, there have been approximately 300 petitions filed and granted under Section 101(c) requesting modification to 30 CFR 75.503 (Permissible electric face equipment; maintenance) and 18.41(f) (Plug and receptacle-type connectors) to allow the use of alternate locking devices. The means of securing battery connectors permitted under this proposed rule would allow for the use of padlocks and other equally effective mechanical devices that preclude the inadvertent separation of the battery plug from the receptacle.

In some operations, mine operators encountered difficulties with padlocks in both normal and emergency situations. The use of padlocks requires the maintenance of keys by authorized personnel. Due to the nature of mining operations, padlocks may be filled with mining debris, rendering them difficult or impossible to open with a key. Padlock keys can be misplaced, broken, or bent and may become unusable. This can go unnoticed by the operator until an emergency occurs, when the key may be unavailable or unusable. The removal of a padlock to permit the disconnection of a battery plug in an emergency situation, such as a battery fire, requires a longer period of time and greater effort than the removal of any of the other locking devices permitted in this proposed rule. However, where keys are accessible and padlocks are relatively free from accumulation of dust, padlocks have proven to be effective.

In 1987, to address the problems encountered with the use of padlocks, MSHA issued a policy allowing use of an alternative to padlocks. This policy permits the use of a device that is captive and requires a special tool to disengage and allow separation of the connector. A device is captive when a mechanical connection is made permanent by a locking device that is confined in its mounting location in a manner where, once installed, it cannot be inadvertently removed. The mechanical connection can only be made non-permanent by direct and intervening action using a special tool. A special tool is one that is not normally carried by miners and is used to ensure that constant pressure is maintained to prevent inadvertent separation of the plug from the receptacle.

Since 1980, mine operators have also been granted permission, through the petition for modification process, to use a spring-loaded locking device. MSHA determined that spring-loaded locking devices provide at least the same measure of protection as padlocks and captive locking devices. These devices maintain constant pressure on the threaded ring or equivalent mechanical fastening to prevent the plug from accidentally disengaging from the receptacle.

For both alternate locking devices, the captive locking device and the spring loaded locking device, a warning tag is also required to alert the user that the connector must not be disengaged under load. Withdrawal of a battery plug from the receptacle while the machine is energized ( i.e. , under load) can create incendive arcing and sparking that could result in a personal injury, explosion, or fire. The requirement for the warning tag, along with part 48 new task training requirements, provide for appropriate hazard recognition when using alternative locking devices. MSHA is unaware of any adverse incidents involving alternate locking devices.

By issuing this proposed rule, MSHA is responding to the requirements of the Regulatory Flexibility Act and Executive Order 12866 that agencies review their regulations to determine their effectiveness and to implement any changes indicated by the review that will make the regulation more flexible and efficient for stakeholders and small businesses while maintaining needed protections for workers. The amended rule would maintain the protection afforded by the existing standard.

Section 18.41 addresses connectors used on battery and non battery-powered machines. Section 18.41(f) specifies requirements for plug and receptacle-type connectors used on mobile battery-powered machines employed in underground gassy mines. This rulemaking proposes to modify paragraph (f) of 30 CFR 18.41 by adding two new provisions allowing the use of devices that provide at least the same measure of protection as that afforded by the existing standards. The Agency recognizes that battery-powered machine designs differ from conventional machine designs employing trailing cables. The energy to battery-powered equipment is carried on-board the machine with rechargeable battery assemblies, rather than being transmitted via a trailing cable from a section power center. Because of the inherent design limitations of battery-powered machines, there is no practical way to automatically remove all electrical power from battery-powered machines. Machines powered by trailing cables have circuit-interrupting devices that can be used to de-energize them, whereas most battery-powered machines rely on a plug and receptacle for de-energization. The proper procedure for removing power from a battery-powered machine is to first open the main machine disconnect device and then to disengage the plug from the receptacle. This effectively isolates the battery power from the machine.

Subparagraph 30 CFR 18.41(f)(1) would retain the existing provision that a plug padlocked to the receptacle would be acceptable in lieu of an interlock provided the plug is held in place by a threaded ring or equivalent mechanical fastening in addition to the padlock. This paragraph also would retain the provision that a connector within a padlocked enclosure would be acceptable.

A padlock used on a battery plug and receptacle-type connector serves a dual purpose. It secures the threaded ring or equivalent mechanical fastening in place. A padlock is also used as a means to prevent the removal of the plug from the receptacle by unauthorized personnel. In this respect, only those persons having keys are considered authorized to remove the plug from the receptacle.

Subparagraph 30 CFR 18.41(f)(2) would be a new provision which provides for an alternate method for securing the battery plug to the receptacle. The rule would provide that a plug which is held in place by a threaded ring or equivalent mechanical fastening will be acceptable provided that the threaded ring is secured in place with a device that is captive. It would also require a special tool to disengage the device and allow for the separation of the connector. It would further require a warning tag that states: “DO NOT DISENGAGE UNDER LOAD.”

Subparagraph 30 CFR 18.41(f)(3) would be a new provision which provides for another alternate method for securing the battery plug to the receptacle. The rule states that a plug held in place by a spring-loaded or other locking device that maintains constant pressure against a threaded ring or equivalent mechanical fastening would be acceptable provided that it would secure the plug from accidental separation. It would further require a warning tag that states: “DO NOT DISENGAGE UNDER LOAD.”

This subparagraph would allow for the use of other locking devices that may become available in the future. The Agency has included this language to allow for acceptance of equally effective devices. Devices not explicitly defined in this rulemaking must be equally effective and provide at least the same measure of protection as those incorporated under this section.

Neither of the alternatives in subparagraphs 18.41(f)(2) or (f)(3) would impose additional requirements to the 1987 MSHA policy or the granted petitions for modification.

MSHA is proposing to amend 30 CFR 18.41(f), concerning plug and receptacle-type connectors for mobile battery-powered equipment. The proposed rule would revise and update the existing regulation by allowing the use of alternate locking devices to secure battery plugs to receptacles. Two alternate locking devices are addressed in this proposed rule.

(1) Captive locking devices requiring use of a special tool. These devices have been accepted since 1987 under an MSHA policy allowing their usage.

(2) Spring loaded or other locking devices. Spring-loaded locking devices have been accepted by MSHA under the 101(c) Petition for Modification process.

The proposed rule, once promulgated, would eliminate the need to file petitions for modification (PFM) to use spring-loaded locking devices to secure battery plugs to receptacles. It would also codify the 1987 MSHA policy of allowing acceptance of captive locking devices.

Executive Order (E.O.) 12866 requires that regulatory agencies assess both the costs and benefits of intended regulations. MSHA has fulfilled this requirement for this proposed rule, and based upon its economic analysis, has determined that the proposed rule would not have an annual effect of $100 million or more on the economy. Therefore, it would not be an economically significant regulatory action pursuant to § 3(f)(1) of E.O. 12866.

The proposed rule would eliminate the need for mine operators of underground gassy mines, who choose to use plug and receptacle-type connectors for mobile battery-powered equipment, to file PFMs, and thereby would generate cost savings.

From 1999 to 2001, 66 petitions were filed and granted to modify the application of 30 CFR 75.503 (permissible electric face equipment; maintenance) and 30 CFR 18.41(f) (plug and receptacle-type connectors). Through November 20, 2002, 23 petitions have been filed, for a total of 89 filed petitions from 1999 to 2002. On average, 22 petitions were filed during each of the past 4 years.

The proposed rule would apply to all underground gassy mines. All underground coal mines are considered gassy mines and are affected by this proposed rule. Gassy metal and nonmetal (M/NM) mines would also be affected by the proposed rule. Currently there are no battery-powered machines of the type covered by the proposed rule in any of the gassy M/NM mines. Since these devices have not been used in M/NM mines, for purposes of this economic analysis, MSHA assumes that M/NM mines would not be affected by this rule. MSHA estimates that, on average, 22 underground coal mines per year would be affected by this rule.

MSHA has qualitatively determined that the proposed rule, which would permit use of alternate locking devices on mobile battery-powered equipment instead of using padlocks, would yield safety benefits relative to the existing rule, which does not permit use of alternate locking devices on mobile battery-powered equipment. The use of alternate locking devices in lieu of padlocks on mobile battery-powered equipment would eliminate the problems associated with difficult removal of padlocks.

Cost savings from the proposed rule would accrue to underground coal mines that choose to use spring-loaded locking devices on mobile battery-powered equipment since they would no longer have to file a PFM. Cost savings from the proposed rule are estimated to be $9,747 per year. The cost savings are based upon the elimination of the filing of an average of 22 petitions per year. It is projected that of the 22 mines, 19 would employ 20 to 500 workers, and 3 would employ fewer than 20 workers. For 3 mines that employ fewer than 20 workers these cost savings would be $1,329. For the remaining 19 mines that employ 20 to 500 workers the cost savings would be $8,418.

The cost savings of $1,329 for mines employing fewer than 20 workers are derived in the following manner. On average, a mine supervisor, earning $54.92 per hour, takes 8 hours to prepare a petition (3 petitions x 8 hours x $54.92 per hour = $1,318). In addition, a clerical worker, earning $19.58 per hour, takes 0.1 hours to copy and mail a petition (3 petitions x 0.1 hours x $19.58 per hour = $6). Furthermore, MSHA estimates that, on average, each petition is 5 pages long, photocopying costs are $0.15 per page, and postage is $1 [3 petitions x ((5 pages x $0.15 per page) + $1) = $5].

The cost savings of $8,418 for mines that employ 20 to 500 workers are derived in the following manner. On average, a mine supervisor, earning $54.92 per hour, takes 8 hours to prepare a petition (19 petitions x 8 hours x $54.92 per hour = $8,348). In addition, a clerical worker, earning $19.58 per hour, takes 0.1 hours to copy and mail a petition (19 petitions x 0.1 hours x $19.58 per hour = $37). Furthermore, MSHA estimates that, on average, each petition is 5 pages long, photocopying costs are $0.15 per page, and postage is $1 [19 petitions x ((5 pages x $0.15 per page) + $1) = $33].

There are no substantive changes proposed that apply to any mine that chooses not to use alternate locking devices on mobile battery-powered equipment. Thus, these mines would not incur costs nor generate cost savings as a result of the proposed rule.

Pursuant to the Regulatory Flexibility Act (RFA) of 1980 as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA has analyzed the impact of the proposed rule on small businesses. Further, MSHA has made a determination with respect to whether or not the Agency can certify that the proposed rule would not have a significant economic impact on a substantial number of small entities that are covered by these rulemakings. Under SBREFA amendments to the RFA, MSHA must include in the rule a factual basis for this certification. If the proposed rule would have a significant economic impact on a substantial number of small entities, then the Agency must develop an initial regulatory flexibility analysis.

Under the RFA, in analyzing the impact of a rule on small entities, MSHA must use the SBA definition for a small entity or, after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the Federal Register for notice and comment. MSHA has not taken such an action, and hence is required to use the SBA definition.

The SBA defines a small entity in the mining industry as an establishment with 500 or fewer employees (13 CFR 121.201). All of the mines affected by this rulemaking fall into this category and hence can be viewed as sharing the special regulatory concerns which the RFA was designed to address.

Traditionally, the Agency has also looked at the impacts of its rules on a subset of mines with 500 or fewer employees”those with fewer than 20 employees, which the mining community refers to as “small mines.” These small mines differ from larger mines not only in the number of employees, but also, among other things, in economies of scale in material produced, in the type and amount of production equipment, and in supply inventory. Therefore, their costs of complying with MSHA rules and the impact of MSHA rules on them would also tend to be different. It is for this reason that “small mines,” as traditionally defined by the mining community, are of special concern to MSHA.

This analysis complies with the legal requirements of the RFA for an analysis of the impacts on “small entities” while continuing MSHA's traditional look at “small mines.” MSHA concludes that it can certify that the proposed rule would not have a significant economic impact on a substantial number of small entities that are covered by this rulemaking. The Agency has determined that this is the case both for mines affected by this rulemaking with fewer than 20 employees and for mines affected by this rulemaking with 500 or fewer employees.

The Agency's analysis of impacts on “small entities” begins with a “screening” analysis. The screening compares the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for those small entities. When estimated compliance costs are less than one percent of the estimated revenues, or they are negative (that is, they provide a cost savings), the Agency believes it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. When estimated compliance costs exceed one percent of revenues, it tends to indicate that further analysis may be warranted. Using either MSHA's or SBA's definition of a small mine, the proposed rule would result only in cost savings to affected mines. Therefore, the proposed rule would not have a significant economic impact on a substantial number of small entities using either MSHA's or SBA's definition of a small mine. Accordingly, we are publishing the factual basis for our regulatory flexibility certification statement in the Federal Register , as a part of this preamble, and are providing a copy to the Small Business Administration, Office of Advocacy. We also will mail a copy of the direct final rule, including the preamble and certification statement, to mine operators and miners' representatives and post it on our Internet Home page at http://www.msha.gov.

The proposed amendments to 30 CFR 18.41(f) would not introduce any new paperwork requirements that are subject to OMB approval under the Paperwork Reduction Act. In addition, the third-party disclosure requirements proposed for 30 CFR 18.41(f)(2) and (3) are not considered a “collection of information” because the standard provides the exact language for warning tags [ see 5 CFR 1320.3(c)(2)].

As a result of the proposed rule, the number of petitions for modification filed annually related to battery plugs would be reduced. Therefore, the proposed rule would result in reducing burden hours and costs in the ICR 1219-0065 paperwork package, which concerns the filing of petitions for modification.

The proposed rule would result in 178.2 burden hour savings annually and associated annual burden cost savings of $9,709 related to the elimination of 22 petitions annually for alternate locking devices to secure battery plugs to receptacles. Of this total, for the 3 mines that employ fewer than 20 workers, there would be 24.3 burden hours savings annually and associated annual burden cost savings of $1,324. For the 19 mines that employ 20 to 500 workers, there would be 153.9 burden hours savings annually and associated annual burden cost savings of $8,385.

The annual reduction of 24.3 burden hours and the $1,324 cost savings that would occur for the 3 mines that employ fewer than 20 workers are derived in the following manner. On average, a mine supervisor takes 8 hours to prepare a petition (3 petitions × 8 hours = 24 hours). In addition, on average, a clerical worker takes 0.1 hours, 6 minutes, to copy and mail a petition (3 petitions × 0.1 hours = 0.3 hours). The hourly wage rate for a mine supervisor is $54.92 ($54.92 × 24 burden hours = $1,318.10). The hourly wage rate for a clerical worker is $19.58 ($19.58 0.3 burden hours = $5.90).

The annual reduction of 153.9 burden hours and the $8,385 cost savings that would occur for the 19 mines that employ 20 to 500 workers are derived in the following manner. On average, a mine supervisor takes 8 hours to prepare a petition (19 petitions × 8 hours = 152 hours). In addition, on average, a clerical worker takes 0.1 hours, 6 minutes, to copy and mail a petition (19 petitions × 0.1 hours = 1.9 hours). The hourly wage rate for a mine supervisor is $54.92 ($54.92 × 152 burden hours = $8,347.84). The hourly wage rate for a clerical worker is $19.58 ($19.58 × 1.9 burden hours = $37.20).

The amendment to 30 CFR 18.41(f) would eliminate a need for mine operators to file petitions for modification. Resulting from the decreased number of petitions, MSHA would not conduct investigations related to the determination the merits of the petition. The paperwork containing the information necessary to permit investigation of the petition for modification would not be needed. The petition for modification paperwork requirements are contained in 30 CFR 44.9, 44.10 and 44.11. They are approved under OMB control number 1219-0065. We are not proposing to amend §§ 44.9, 44.10, or 44.11. We are only proposing to amend a regulation that is frequently petitioned. Consequently, MSHA would not submit a paperwork package with this direct final rule. Although it is not necessary to update the Information Collection Requirement document at this time, we will submit the necessary paperwork to record the decrease in burden when appropriate. Our estimate of the number of petitions submitted each year would be reduced by the average number of petitions for modification currently submitted to modify the current regulation.

For purposes of the Unfunded Mandates Reform Act of 1995, as well as E.O. 12875, the proposed rule would not include any Federal mandate that might result in increased expenditures by State, local, and tribal governments, or increased expenditures by the private sector of more than $100 million. MSHA is not aware of any State, local, or tribal government that either owns or operates underground coal mines.

The proposed rule would not be subject to Executive Order 12630 because it does not involve implementation of a policy with takings implications.

MSHA has reviewed Executive Order 12988 and determined that the proposed rule would not unduly burden the Federal court system. The Agency wrote the proposed rule to provide a clear legal standard for affected conduct and has reviewed it carefully to eliminate drafting errors and ambiguities.

In accordance with Executive Order 13045, MSHA has evaluated the environmental health and safety effects of the proposed rule on children and has determined that it would have no adverse effects on children.

MSHA has reviewed the proposed rule in accordance with Executive Order 13132 regarding federalism and has determined that it would not have federalism implications.

MSHA certifies that the proposed rule would not impose substantial direct compliance costs on Indian tribal governments.

In accordance with Executive Order 13211, MSHA has reviewed the proposed rule and has determined that it would have no adverse effect on the production or price of coal. Consequently, it would have no significant adverse effect on the supply, distribution, or use of energy, and no reasonable alternatives to this action are necessary.

In accordance with Executive Order 13272, MSHA has thoroughly reviewed the proposed rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. As discussed in section V in this preamble, MSHA has determined that the proposed rule would not have a significant economic impact on a substantial number of small entities.

On the effective date of the direct final rule, all existing petitions for modification for alternate locking devices for plug and receptacle-type connectors on mobile battery-powered machines would be superseded. Mine operators who have a previously granted petition modifying 30 CFR 75.503 and 18.41(f) would thereafter be considered in compliance with this rule, as long as the equipment is maintained in compliance with the specifications stated in the original petition for modification. All battery-powered equipment approved with locking devices prior to the effective date of this rule would be considered compliant, as long as the equipment is maintained in accordance with the originally approved specifications.

For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977, we are proposing to amend chapter I, subpart B, part 18 of title 30 of the Code of Federal Regulations as follows:

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CGD13-02-020), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know your submission reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to U.S. Coast Guard Marine Safety Office/Group Portland at the address under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a separate notice in the Federal Register .

This security zone is necessary to provide for the safety and security of vessels participating in the 2003 Portland Rose Festival in the navigable waters of the United States.

This rule, for safety and security concerns, would control vessel movements in a regulated area surrounding vessels participating in the 2003 Portland Rose Festival. U.S. Naval Vessels are covered under 33 CFR 165 subpart G—Protection of Naval Vessels; however, the Portland Rose Festival is a major maritime event that draws many different vessels including Navy, Coast Guard, Army Corps of Engineers, and Canadian. It is crucial that the same level of security be provided to all participating vessels. Entry into this zone would be prohibited unless authorized by the Captain of the Port, Portland or his designated representatives. Commercial vessels that typically transit this section of the Willamette River will be pre-designated and will suffer only minor inconveniences. Recreational vessels may suffer from extended delays and can anticipate a vessel inspection. Recreational vessels are encouraged to avoid this area. Recreational vessels will be allowed into the zone on a case-by-case basis following extensive security measures, and as operations permit. Coast Guard personnel will enforce this security zone and the Captain of the Port may be assisted by other federal, state, or local agencies.

Good cause exists to shorten the notice and comment period of this notice of proposed rulemaking. The normal 90 day comment period has been shortened to 60 days to allow the Coast Guard to evaluate all comments received, make appropriate modifications to the proposed rule, and publish the final rule at least 30 days prior to the implementation of the security zone.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, 1979).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10e of the regulatory policies and procedures of DOT is unnecessary.

This expectation is based on adequate resources allowing vessel approvals from the Captain of the Port or his designated representatives to transit through the regulated area. For the above reasons, the Coast Guard only anticipates minor economic impact.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which might be small entities: The owners or operators of vessels intending to transit or anchor in this portion of the Willamette River. The likely impacts to small entities would include minor time delays, potential inspections, and possibly non-entrance if the Captain of the Port or his designated representatives sense the vessels participating in the Rose Festival are threatened. The security zone will not have a significant economic impact because adequate resources will allow vessels timely approval from the Captain of the Port or his designated representatives to transit through the regulated area.

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

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

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

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

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

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

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

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

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. We invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It has not been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. Therefore, it does not require a Statement of Energy Effects under Executive Order 13211.

We have considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (34)(g), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because the temporary security zone would not last longer than one week in duration. The temporary security zone would be established on Wednesday, June 4th with the arrival of the first vessel to the City of Portland's Waterfront Park and extend until the last vessel departs the Waterfront Park on Monday, June 9th. A “Categorical Exclusion Determination” and corresponding checklist is available in the docket where indicated under ADDRESSES .

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

Background and Need for Rule

Forest Service regulations at 36 CFR part 251, subpart B, govern authorizations for occupancy and use of National Forest System lands. Section 251.50 of this subpart characterizes as “special uses” all uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing the disposal of timber (part 223) and minerals (part 228) and the grazing of livestock (part 222). The regulation requires an authorization for all “special uses,” with certain exceptions.

Approximately 72,000 special use authorizations are in effect on National Forest System lands. These uses cover a variety of activities ranging from individual private uses to large-scale commercial facilities and public services. Examples of authorized land uses include road rights-of-way accessing private residences, apiaries, domestic water supplies and water conveyance systems, telephone and electric service rights-of-way, ski areas, resorts, marinas, outfitter and guide services, and public parks and campgrounds. About 6,000 special use proposals are submitted annually by various entities wanting to use and occupy National Forest System lands. This proposed rule would clarify which activities require a special use authorization. The rule also would revise the term “National Forest System road” (formerly, “forest development road”) to conform to changes in the road management rule at part 212.

In addition, the proposed rule would make the following technical amendments: (1) Revising the definitions for “National Forest System road” and “National Forest System trail” in section 261.2 to make them consistent with 23 U.S.C. 101; (2) in section 261.55, changing the term “forest development trail” to “National Forest System trail,” in conformance with the terminology used in part 212 and this proposed rule; and (3) changing the term “Forest Service Roads” to “National Forest System Roads” in the title of the heading for part 295.

Revision of sections 251.50 and 251.51 is needed to address management issues related to the special uses program and to special use authorizations involving National Forest System roads and trails.

The current regulation at 36 CFR 251.50(d) provides that a special use authorization is not required for use of National Forest System roads and trails, unless required by an order issued pursuant to section 261.50 or a regulation issued pursuant to section 261.70. Courts have construed this provision as not requiring an authorization for special uses that occur on National Forest System roads and trails and have invalidated orders issued pursuant to section 261.50 that required a permit for special uses occurring on National Forest System roads. These rulings have created a gap in regulatory coverage in the special uses program.

The requirement for a special use authorization should be triggered whenever a special use is conducted on National Forest System lands, including on a road or trail. Therefore, the Forest Service proposes to clarify that activities requiring a special use authorization on National Forest System lands are also subject to the requirement for a special use authorization when they are conducted on National Forest System roads and trails (formerly known as forest development roads and trails). The Forest Service has identified four types of special uses that occur on National Forest System roads and trails: noncommercial group uses, outfitting and guiding, recreation events, and commercial filming. The agency is proposing to narrow the exemption for the authorization requirement in section 251.50(d) to exclude special uses occurring on National Forest System roads, and to eliminate the exemption for the authorization requirement for special uses occurring on National Forest System trails. The Forest Service is proposing to eliminate the exemption for special uses conducted on National Forest System trails because there is great potential for resource damage on trails that may not be designed or constructed for the level or type of use that occurs. Furthermore, it is unlikely that there is commercial use of National Forest System trails that should be exempted from the special use authorization requirement.

Under these proposed revisions to the rule, the Forest Service would require special use authorizations and the fees for those authorizations under statutes governing use and occupancy of National Forest System lands. Specifically, for occupancy and use of National Forest System lands, the Forest Service would require commercial filming and still photography permits and permit fees under Public Law 106-206; outfitting and guiding permits and recreation event permits, and permit fees under the Land and Water Conservation Fund Act, 16 U.S.C. 460 l -6a(c); and noncommercial group use permits (no fee is charged for noncommercial group use permits) under the agency's Organic Act, 16 U.S.C. 551. Further authority for these permit fees is found in the Independent Offices Appropriations Act, 31 U.S.C. 9701, Office of Management and Budget Circular No. A-25, and 36 CFR 251.57(a). These fees would be charged annually for commercial special uses of National Forest System lands, and would be based on the fair market value of the authorized uses of those lands.

The agency has several reasons for proposing that these types of activities set out at section 251.50 require a special use authorization when conducted on National Forest System roads and trails.

First, a growing number of parties engaged in commercial recreation events and outfitting and guiding use this regulatory gap in the current rule to conduct these activities without a special use authorization. They do so by confining their use and occupancy of National Forest System lands only to National Forest System roads and trails. While the organizers or commercial operators of these types of uses may assert that their activities are confined only to a road or trail, sometimes their activities include the use and occupancy of National Forest System lands adjacent to the road or trail. Determining whether a use is confined to a road or trail requires intensive, case-specific monitoring. The proposed rule would eliminate the need for this monitoring by requiring an authorization for all types of special uses that involve the use of National Forest System lands, regardless of whether they occur on or off National Forest System roads and trails.

Second, some commercial operators design their services to fit the regulatory gap, potentially compromising the quality of the recreation experience, public safety, and the interests of the United States. For example, some operators may stop on a road to unload people and equipment to avoid getting off the road. Requiring a special use authorization would eliminate this practice when a safer alternative is available and would require that necessary safety procedures be followed when no such alternative is available. In addition, conducting a special use without an authorization exposes the United States to potential liability. Special use authorizations contain indemnification, insurance, and other provisions that protect the United States from liability arising in connection with the holder's use and occupancy.

Third, the regulatory gap creates an uneven playing field among businesses, some of which operate under a special use authorization and pay a land use fee, while others do not. The Forest Service is required to obtain fair market value for the commercial use of National Forest System lands. The value of these uses of National Forest System roads and trails is directly attributable to the presence of National Forest System lands and resources located outside the confines of the roads and trails. The public should realize a fair market value return for these commercial uses of Federal lands and resources, which can be achieved only by requiring a special use authorization for these uses and charging a land use fee for the authorization.

Fourth, the agency needs to regulate these uses of National Forest System roads and trails to accomplish management objectives and reduce impacts to National Forest System lands and resources. The demand for uses of National Forest System lands and resources has increased in recent years. Along with the growth in demand, there are more conflicts among users and increased pressure on limited land and resources. In some cases, the demand is so great that it is necessary to limit use. When an area becomes popular, uncontrolled use can result in land and resource impacts, user conflicts, or increased vehicular and pedestrian traffic with associated traffic safety concerns on National Forest System roads and trails. The agency attempts to balance the needs of individuals, private groups, and commercial operators when managing uses. The agency proposes to address these concerns and conflicts through special use authorizations for special uses that occur on National Forest System roads and trails.

Additionally, this rule would replace the term “forest development roads” with “National Forest System roads” to conform to recent regulatory changes made to 36 CFR part 212.

The authority in the proposed rule to regulate special uses occurring on National Forest System roads would not supplant Forest Service authority to regulate road use within the National Forest System under applicable law, including the National Forest Roads and Trails Act. Rather, these authorities would be complementary. For example, a separate road use permit could be issued under Forest Service Manual 7731.16 and Forest Service Handbook 7709.59, section 24, in conjunction with a special use authorization issued under the proposed rule, or road use issues could be addressed within the context of a special use authorization issued under the proposed rule.

The agency prefers not to regulate uses when it is unnecessary to establish terms and conditions to protect National Forest System lands and resources or to avoid conflict with agency programs or operations. In April 1997, the Forest Service completed a reengineering study of its special uses program that recommended managing special uses in a more businesslike and customer service-oriented manner. The study found that many special use authorizations are issued for (1) minor uses of National Forest System lands that have nominal effects on National Forest System lands, resources, and programs, (2) uses that are regulated by other agencies in a manner that is adequate to protect National Forest System lands and resources and to avoid conflict with Forest Service programs and operations, and (3) routine operation or maintenance within the scope of a valid reserved or outstanding property right. The reengineering study recommended that the agency not require a special use authorization in these cases, as it is unnecessary for purposes of National Forest System land and resource management.

Accordingly, under the proposed rule, for uses other than a noncommercial group use, a special use authorization would not be required if the authorized officer determines that the proposed use has one or more of the following characteristics: (1) the proposed use will have such nominal effects on National Forest System lands, resources, or programs that it is not necessary to establish terms and conditions in a special use authorization to protect National Forest System lands and resources or to avoid conflict with National Forest System programs or operations; (2) the proposed use is regulated by a State or another Federal agency in a manner that is adequate to protect National Forest System lands and resources and to avoid conflict with National Forest System programs or operations; or (3) the proposed use is a routine operation or maintenance activity within the scope of a valid reserved or outstanding property right, such as a right-of-way, easement, or reservation.

Current paragraph (a) of section 251.50 requires an authorization for all special uses, unless that requirement is waived as provided in paragraph (c). Proposed paragraph (a) would be revised to identify two additional exceptions, which would be enumerated in proposed paragraphs (d) and (e).

Furthermore, the reference in paragraph (a) concerning the disposal of timber would be expanded to include special forest products, such as greens, mushrooms, medicinal plants, and other plant material collected or gathered for commercial or noncommercial use. Proposed paragraph (a) would state that the disposal of these materials is regulated by part 223. Many forest managers have mistakenly administered these activities as special uses. Adding a reference to special forest products would distinguish the disposal of forest products as an activity authorized by other than a special use authorization.

Current paragraph (b) of section 251.50 provides for the temporary occupancy of National Forest System lands in an emergency for the protection of life and property, as long as a special use authorization is obtained at the earliest opportunity, unless the requirement for a special use authorization is waived. Proposed paragraph (b) would be expanded to clarify that those temporarily occupying National Forest System lands without a special use authorization assume liability, and must indemnify the United States, for all injury, loss, or damage arising in connection with the temporary occupancy. This added provision is necessary to protect the public interest should injury, loss, or damage occur as a result of the temporary occupancy prompted by an emergency.

With limited exceptions, current paragraph (c) states that noncommercial recreational activities, other than noncommercial group use, do not require a special use authorization, and gives examples of these activities. The agency is proposing no change to this list. Paragraphs (c)(1) and (c)(2) would be combined and redesignated as proposed paragraph (c)(2). Paragraph (c)(3) would be redesignated as proposed paragraph (c)(1).

Paragraph (d) would be revised. The existing paragraph provides that, unless otherwise required by order issued pursuant to section 261.50 or by regulation issued pursuant to section 261.70, any use of existing forest development roads or trails does not require a special use authorization. The agency proposes to revise paragraph (d) by changing “forest development road” to “National Forest System road” to conform to changes made to parts 212, 261, and 295 regarding roads, and by removing the word “trail.” In addition the agency proposes to change “use of” to “travel on” a road or trail.

Proposed paragraphs (d) and (d)(1) also would clarify that noncommercial group uses, outfitting and guiding, recreation events, and commercial filming conducted on National Forest System roads require a special use authorization. For example, a special use authorization would be required for an outfitter who charges a customer for the delivery of livestock or recreation equipment on a National Forest System road for the customers to use on adjacent National Forest System lands. A second example is a guide who conducts commercial, vehicular tours on National Forest System roads, regardless of whether the guide's customers are confined to the vehicle. A third example is the use of motion picture equipment on a National Forest System road that involves the advertisement of a product or service. A final example is an endurance ride involving hundreds of participants, for which no entry fee is charged, conducted on a National Forest System road.

The proposed paragraph (d)(2) would include the authority currently in paragraph (d) for Regional Foresters and Forest Supervisors to issue orders (section 261.50) and regulations (section 261.70) to prohibit or regulate other uses of National Forest System roads, on a case-specific basis.

Proposed paragraph (e) would be added to specify instances where the requirement to obtain a special use authorization may be waived for certain uses other than a noncommercial group use. Under this proposed paragraph, the special use authorization requirement would be waived only after a proposal for a special use is submitted and the authorized officer determines that the proposed use meets the criteria for waiver.

Proposed paragraph (e)(1) would be added to allow the authorized officer to waive the special use authorization requirement for minor, incidental uses that will have such nominal effects on National Forest System lands, resources, or programs that it is not necessary to establish terms and conditions in a special use authorization to protect National Forest System lands and resources or to avoid conflict with National Forest System programs or operations. Examples of minor, incidental uses could include mailboxes on approved mounts or small identification signs for property. This proposed rule would not relieve a party from requesting advance approval from an authorized officer for such uses or occupancies. Rather, the proposed rule would provide the authorized officer with the ability to waive the requirement for a special use authorization when, based upon professional judgment and experience with comparable uses, the authorized officer determines that no forest management objectives would be achieved through issuance of an authorization. Generally, experience has demonstrated that the cost to the agency to issue and administer authorizations for these types of minor, incidental uses far exceeds any public benefit in terms of land and resource protection.

Paragraph (e)(2) would be added to exempt proposed uses that are regulated by another agency in a manner that is adequate to protect National Forest System lands and resources and to avoid conflict with National Forest System programs or operations. An example would be the taking of game or other animals, which is regulated by States. Another example is the delegation of authority by the Forest Service to a different agency to serve as lead agency for regulating certain uses, such as in connection with administration of an oil or gas pipeline special use authorization under the Mineral Leasing Act. This provision would serve to reduce the dual regulation of uses by the Forest Service and other agencies, where another agency's regulatory jurisdiction is satisfactory to meet Forest Service management objectives.

Paragraph (e)(3) would be added to clarify that no special use authorization is required for activities already authorized within the scope of a valid reserved, granted, or outstanding property right, such as a right-of-way, easement, or reservation. Paragraph (e)(3) also would provide that no special use authorization is required for conducting routine operation and maintenance activities within the scope of an outstanding statutory right for certain highways, ditches, or canals. Conversely, under this proposed provision, any activities (including operation, maintenance, construction, or reconstruction) that are outside the scope of an outstanding statutory right would require a special use authorization. In addition, any activities other than routine operation or maintenance, such as construction or reconstruction, that are within the scope of an outstanding statutory right would require a special use authorization. The proposed regulation would require holders of any of these rights to propose on-the-ground activities to the authorized officer before conducting them. The authorized officer would then have the opportunity to determine whether all or some of the proposed activities qualify for the waiver provided under proposed paragraph (e)(3) and can be conducted without a special use authorization.

Waiving the requirement for a special use authorization under the circumstances identified in proposed paragraphs (e)(1) through (e)(3) would improve management efficiency and allow the agency to focus its limited appropriations on management of special uses that have a greater potential impact on National Forest System lands, resources, or programs.

Section 251.51 of the current regulations defines the more significant and commonly used terms and phrases in part 251, subpart B. The proposed section 251.51 would add definitions for the following terms: “Commercial filming,” “forest road or trail,” “guiding,” “National Forest System road,” “outfitting,” “recreation event,” and “still photography.” Providing a definition for these terms would improve public and agency understanding and interpretation of the proposed revisions to section 251.50 provided in this notice.

The definitions of “National Forest System road” and “National Forest System trail” in proposed section 261.2 would be revised and a new definition for “forest road or trail” would be added for consistency with 23 U.S.C. 101 and this part.

The term “forest development trails” would be changed to “National Forest System trails” in the heading and introductory text of proposed section 261.55.

The term “forest Service road” in the current title of the part 295 heading would be changed to “National Forest System road” in the proposed title of this part for consistency with the terminology in parts 251 and 261.

The proposed changes to the rule at 36 CFR 251.50 and 251.51 would provide more consistent procedures for processing special use proposals and applications and administering special use authorizations for use and occupancy of National Forest System lands. The proposed rule also would make terminology consistent in parts 251, 261, and 295. The changes are intended to improve administrative efficiencies and would have no environmental effects. Section 31.1b of Forest Service Handbook 1909.15 (57 FR 43180, September 18, 1992) excludes from documentation in an environmental assessment or environmental impact statement rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions. The agency's preliminary assessment is that this proposed rule falls within this category of actions and that no extraordinary circumstances exist as currently defined that would require preparation of an environmental assessment or environmental impact statement. A final determination will be made for the final rule.

This proposed rule has been reviewed under USDA procedures and Executive Order 12866 on regulatory planning and review. It has been determined that this is not a significant rule. This proposed rule would not have an annual effect of $100 million or more on the economy, nor would it adversely affect productivity, competition, jobs, the environment, public health and safety, or State or local governments. This proposed rule would not interfere with an action taken or planned by another agency, nor would it raise new legal or policy issues. Finally, this proposed rule would not alter the budgetary impact of entitlement, grant, user fee, or loan programs or the rights and obligations of beneficiaries of such programs. Accordingly, this proposed rule is not subject to Office of Management and Budget review under Executive Order 12866.

Moreover, this proposed rule has been considered in light of the Regulatory Flexibility Act (5 U.S.C. 602 et seq. ). It has been determined that this proposed rule would not have a significant economic impact on a substantial number of small entities as defined by the act because the proposed rule would not impose record-keeping requirements on them; it would not affect their competitive position in relation to large entities; and it would not affect their cash flow, liquidity, or ability to remain in the market. To the contrary, the efficiencies and consistency to be achieved by this rule should benefit small businesses that seek to use and occupy National Forest System lands by ensuring consistency in procedures across forests and regions and by eliminating costly, time-consuming, and unnecessary processing of certain special use applications and administration of certain special use authorizations. The benefits, most of which cannot be quantified, are not likely substantially to alter costs to small businesses.

This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12630, and it has been determined that the proposed rule would not pose the risk of a taking of private property.

This proposed rule has been reviewed under Executive Order 12988 on civil justice reform. If this proposed rule were adopted, (1) all State and local laws and regulations that are in conflict with this proposed rule or that would impede its full implementation would be preempted; (2) no retroactive effect would be given to this proposed rule; and (3) it would not require administrative proceedings before parties may file suit in court challenging its provisions.

The agency has considered this proposed rule under the requirements of Executive Order 13132 on federalism, and has made an assessment that the proposed rule conforms with the federalism principles set out in this Executive order; would not impose any compliance costs on the States; and would not have substantial direct effects on the States, the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the agency has determined that no further assessment of federalism implications is necessary at this time.

Moreover, this proposed rule does not have tribal implications as defined by Executive Order 13175, Consultation and Coordination With Indian Tribal Governments, and therefore advance consultation with tribes is not required.

This proposed rule has been reviewed under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. It has been determined that this proposed rule does not constitute a significant energy action as defined in the Executive order.

Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the agency has assessed the effects of this proposed rule on State, local, and tribal governments and the private sector. This proposed rule would not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the act is not required.

The forms for special use applications and authorizations have been approved for use by the Office of Management and Budget (OMB) and assigned OMB control number 0596-0082. Therefore, this proposed rule does not contain any record-keeping or reporting requirements or other information collection requirements as defined in 5 CFR part 1320 that are not already required by law or not already approved for use. Moreover, the proposed rule will reduce the number of applicants for special use authorizations by clarifying those circumstances when special use authorizations are not required. Accordingly, the review provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) and its implementing regulations at 5 CFR part 1320 do not apply.

Therefore, for the reasons set out in the preamble, the Forest Service proposes to amend subpart B of part 251, subpart A of part 261, and part 295 of Title 36 of the Code of Federal Regulations as follows:

In the Final Rules section of this Federal Register , the EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. If no adverse comments are received in response to this action, no further activity is contemplated.

If the EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if we receive adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, we may adopt as final those provisions of the rule that are not the subject of an adverse comment.

For additional information, see the Direct Final rule which is located in the Rules section of this Federal Register .

First, we propose to approve the provisions in the PM-10 State Implementation Plan for Clark County, submitted on July 25, 2001, 1 (“the Clark County serious area plan” or “Plan”) that address attainment of the annual and 24-hour PM-10 standards. 2 Our proposed actions are based on our initial determination that the Clark County serious area plan complies with the Clean Air Act's (CAA or “the Act”) requirements for serious PM-10 nonattainment area plans.

First, we propose to approve the following specific elements of the plan as they pertain to the standards:

• Demonstration that the plan provides for implementation of best available control measures (BACM);

• Emissions inventory;

• Demonstration of attainment of the annual standard by the CAA deadline of December 31, 2001 and demonstration that attainment of the 24-hour standard by December 31, 2001 is impracticable;

• Demonstration that attainment of the 24-hour standard will occur by the most expeditious alternative date practicable, in this case, December 31, 2006;

• Clark County fugitive dust rules (Sections 90 through 94 and portions of Section 0);

• Demonstration that the plan provides for reasonable further progress and quantitative milestones;

• Transportation conformity budget; and

• Contingency measures.

Second, we are proposing to grant Nevada's request to extend the attainment date for the 24-hour PM-10 standard from December 31, 2001 to December 31, 2006. We make this proposal based on our determination that the State has met the CAA's criteria for granting such extensions.

This preamble describes our proposed actions on the Clark County serious area plan and provides a summary of our evaluation of the plan. Our detailed evaluation of the Plan can be found in the TSD that accompanies this proposal. See “Technical Support Document Proposing Approval of the PM-10 State Implementation Plan for the Clark County Serious PM-10 Nonattainment Area Annual and 24-Hour PM-10 Standards,” December 19, 2002. A copy of EPA's TSD can be downloaded from our website or obtained by calling or writing the contact person listed above.

The Las Vegas Valley Nonattainment Area, which coincides with Hydrographic Basin 212, is roughly 1,500 square miles in size and encompasses the City of Las Vegas, the City of North Las Vegas, the City of Henderson and the unincorporated areas of Clark County. The population of the area is approximately 1.15 million people and is expected to grow to 1.59 million by 2006.

The area violates both the annual  3 and 24-hour PM-10 standards. In 1990, the area was designated nonattainment for PM-10 and classified as moderate. In 1993, because of continuing violations of both PM-10 standards, the area was reclassified to serious and required to provide for the implementation of BACM by February 8, 1997. 58 FR 3334 (January 8, 1993).

The principal contributors to elevated PM-10 levels in the Las Vegas area are fugitive dust sources such as disturbed vacant lots, construction sites, unpaved roads and paved road dust. Fugitive dust is particulate matter suspended in the air either by mechanical disturbance of the surface material or by wind action blowing across surfaces.

Clark County prepared and submitted a serious area PM-10 plan in 1997 that EPA proposed to disapprove, along with previously submitted plans. 65 FR 37324, June 14, 2000. On December 5, 2000, prior to EPA taking final action on its proposed disapproval, the State of Nevada withdrew the moderate and serious area plans for Clark County. On January 5, 2001, EPA proceeded with a finding of nonsubmittal, effective as of December 20, 2000, which began the 18-month time clock for mandatory application of sanctions and 2-year time clock for promulgation of a federal implementation plan (FIP). 66 FR 1046. On June 19, 2001, the Clark County Board of Commissioners adopted a new serious area PM-10 plan titled “PM-10 State Implementation Plan for Clark County” (“Plan”), which was submitted to EPA on July 25, 2001. On January 31, 2002, EPA made a completeness finding on the Plan. We have also determined that the conformity budgets in the plan are adequate. 67 FR 1461, January 11, 2002. Our adequacy determination was effective on January 28, 2002.

The Las Vegas area is a PM-10 nonattainment area that has been reclassified to serious because it failed to attain by the moderate area attainment date of December 31, 1994. Such an area must submit, within 18 months of the reclassification, revisions to its implementation plan that address the CAA requirements for serious PM-10 nonattainment areas. CAA section 189(b)(2). These requirements are:

(a) Assurances that the BACM, including best available control technology (BACT) for stationary sources, for the control of PM-10 shall be implemented no later than 4 years after the area is reclassified (CAA section 189(b)(1)(B));  4

(b) Assurances that BACT on major stationary sources of PM-10 precursors shall be implemented no later than 4 years after the area is reclassified except where EPA has determined that such sources do not contribute significantly to exceedences of the PM-10 standards (CAA section 189(e));

(c) A demonstration (including air quality modeling) that the plan will provide for attainment as expeditiously as practicable but no later than December 31, 2001 or where the State is seeking an extension of the attainment date under section 188(e), a demonstration that attainment by December 31, 2001 is impracticable and that the plan provides for attainment by the most expeditious alternative date practicable (CAA sections 188(c)(2) and 189(b)(1)(A));

(d) Quantitative milestones which are to be achieved every 3 years and which demonstrate reasonable further progress (RFP) toward attainment by the applicable attainment date (CAA sections 172(c)(2) and 189(c)); and

(e) A comprehensive, accurate, and current inventory of actual emissions from all sources of PM-10 (CAA section 172(c)(3)).

Serious area PM-10 plans must also include contingency measures to be implemented if the area fails to make RFP or attain by its attainment deadline. These contingency measures are to take effect without further action by the State or the Administrator. CAA section 172(c)(9).

Furthermore, serious area PM-10 plans must meet the general requirements applicable to all SIPs including reasonable notice and public hearing under section 110(l), necessary assurances that the implementing agencies have adequate personnel, funding and authority under section 110(a)(2)(E)(i) and 40 CFR 51.280, and a description of enforcement methods as required by 40 CFR 51.111.

We have issued a General Preamble  5 and Addendum to the General Preamble  6 describing our preliminary views on how the Agency intends to review SIPs submitted to meet the CAA's requirements for PM-10 plans. The General Preamble mainly addresses the requirements for moderate areas and the Addendum, the requirements for serious areas.

The CAA does not define what level of control constitutes a BACM-level of control. In guidance, we have defined it to be, among other things, the maximum degree of emission reduction achievable from a source or source category which is determined on a case-by-case basis, considering energy, economic and environmental impacts. Addendum at 42010. This level of control is dependent on the deadline by which BACM must be implemented. 7

We also considered a BACM-level control as going beyond existing RACM-level controls, such as expanding use of RACM (e.g, paving more miles of unpaved roads). Addendum at 42013. The word “best” implies that there should be a greater emphasis on the merits of the measure or technology alone and less flexibility in considering other factors. Additionally, we believe that BACM should emphasize prevention rather than remediation (e.g., preventing track out at construction sites rather than simply requiring clean up of tracked-out dirt). Addendum at 42013.

The stringency of a control measure is a function of both the measure's applicability and its control requirement (i.e., what sources in the category are subject to the measure and what does the measure require the sources to do to reduce emissions). 8 Both these elements must be specified before the measure's level of control can be determined. Thus in setting a BACM, a state must specify both the measure's control requirement and its applicability. The control requirement alone is not sufficient.

BACM must be applied to each significant (i.e., non-de minimis) source category. Addendum at 42011. In guidance, we have established a presumption that a “significant” source category is one that contributes 5 μg/m3 or more of PM-10 to a location of 24-hour violation and 1 μg/m3 or more for the annual standard. Addendum at 42011. However, whether the threshold should be lower than this in any particular area depends upon the specific facts of that area's nonattainment problem. Specifically, it depends on whether requiring the application of BACM on source categories below a proposed de minimis level would meaningfully expedite attainment.

We have outlined in our guidance a multi-step process for identifying BACM. Addendum at 42010-42014. The steps are:

1. develop a detailed emissions inventory of PM-10 sources and source categories,

2. model to evaluate the impact on PM-10 concentrations over the standards of the various sources and source categories to determine which are significant,

3. identify potential BACM for significant source categories and evaluate their reasonableness, considering technological feasibility, costs, and energy and environmental impacts and

4. provide for the implementation of the BACM or provide a reasoned justification for rejecting any potential BACM.

When the process is complete, the individual measures  9 should then be converted into a legally enforceable vehicle (e.g., a regulation or permit process). CAA sections 172(6) and 110(a)(2)(A). Also, the regulations or other measures should meet EPA's criteria regarding the enforceability of SIPs and SIP revisions. General Preamble at 13541.

When a moderate area is reclassified to serious, the requirement to implement RACM in section 189(a)(1)(C) remains. Thus, a serious area PM-10 plan must also provide for the implementation of RACM as expeditiously as practicable to the extent that the RACM requirement has not been satisfied in the area's moderate area plan.

However, we do not normally conduct a separate evaluation to determine if a serious area plan's measures also meet the RACM requirements as interpreted by us in the General Preamble at 13540. This is because in our serious area guidance (Addendum at 42010), we interpret the BACM requirement, as generally subsuming the RACM requirement. Therefore, a separate analysis to determine if the measures represent a RACM level of control is generally not necessary. Our proposed approval of the Clark County Plan's provisions relating to the implementation of BACM is also a finding that the plan provides for the implementation of RACM.

Section 188(e) of the Act allows us to extend the attainment date for a serious area for up to five years beyond 2001 if attainment by 2001 is impracticable. However, before we may grant an extension of the attainment date, the State must first:

1. Apply to us for an extension of the PM-10 attainment date beyond 2001,

2. Demonstrate that attainment by 2001 is impracticable,

3. Have complied with all requirements and commitments applying to the area in its implementation plan,

4. Demonstrate to our satisfaction that its serious area plan includes the most stringent measures that are included in the implementation plan of any state and/or are achieved in practice in any state and are feasible for the area, and

5. Submit a demonstration of attainment by the most expeditious alternative date practicable.

In determining whether to grant an extension and the appropriate length of the attainment date extension, we may consider:

1. The nature and extent of the nonattainment problem,

2. The types and numbers of sources or other emitting activities in the area (including the influence of uncontrollable natural sources and international transport),

3. The population exposed to concentrations in excess of the standard,

4. The presence and concentration of potentially toxic substances in the mix of particulate emissions in the area, and

5. The technological and economic feasibility of various control measures.

Under the Act, we may grant only one extension for an area and the extension cannot be for more than 5 years after 2001; that is, the extended attainment date can be no later than December 31, 2006.

The following sections present a condensed discussion of our evaluation of the Clark County Plan's compliance with the applicable CAA requirements for attaining the annual and 24-hour PM-10 standards. Our complete evaluation is found in the TSD for this proposal. A copy of the TSD can be downloaded from our website or obtained by calling or writing the contact person listed above.

CAA section 110(k)(1)(B) requires us to determine if a SIP submittal is complete within 60 days of its receipt. This completeness review allows us to quickly determine if the submittal includes all the necessary items and information we need to take action on it. We make completeness determinations using criteria we have established in 40 CFR part 51, appendix V.

On January 5, 2001, we took final action to find that the State of Nevada had failed to make PM-10 nonattainment area SIP submittals required for the Las Vegas Valley Planning Area under the CAA. See 66 FR 1046 (January 5, 2001). That final action, which was effective as of December 20, 2000, triggered an 18-month clock for mandatory application of sanctions under section 179(a) of the Act and the implementing regulations set forth at 40 CFR 52.31. In our final action, we indicated that the State may “turn off” the sanctions clock through the submission of a complete SIP submittal.

Under section 110(k)(1)(B), if we do not make a completeness determination within six months of receipt of a SIP submittal, then the submittal shall be deemed complete by operation of law. We had not made this determination by January 25, 2002 ( i.e., six months from receipt); thus, the State's SIP submittal dated July 23, 2001 was deemed complete by operation of law effective January 25, 2002.

However, a SIP submittal that is deemed complete by operation of law does not stop a sanctions clock started by a finding by us under section 179(a) of the Act. To stop the sanctions clock, we must make an affirmative determination that the deficiency forming the basis of the finding (in this case, our finding of failure to submit required PM-10 plan elements) has been corrected. See 40 CFR 52.31(d)(1).

Therefore, we have reviewed the July 23, 2001 PM-10 submittal from the State of Nevada and affirmatively determined that it satisfies our completeness criteria set forth for such determinations in appendix V of 40 CFR part 51 and that it is thereby complete for the purposes of section 110(k)(1) of the Act. Furthermore, the State's submission of this complete plan corrects the deficiency forming the basis for our finding published in the Federal Register on January 5, 2001. We notified the State of our completeness determination by letter to NDEP on January 31, 2002, and our letter to NDEP permanently stops the sanctions clock as of that date.

CAA Section 176(c) requires that federally-funded or approved transportation plans, programs, and projects in nonattainment areas “conform” to the area's air quality implementation plans. Conformity ensures that federal transportation actions do not worsen an area's air quality or interfere with its meeting the air quality standards. We have issued a conformity rule that establishes the criteria and procedures for determining whether or not transportation plans, programs, and projects conform to a SIP. See 40 CFR part 93, subpart A.

One of the primary tests for conformity is to show transportation plans and improvement programs will not cause motor vehicle emissions higher than the levels needed to make progress toward and meet the air quality standards. The motor vehicle emissions levels needed to make progress toward and meet the air quality standards are set in an area's attainment and/or RFP plans and are known as the “emissions budget for motor vehicles.” Emissions budgets are established for specific years and specific pollutants. See 40 CFR 93.118(a).

Before an emissions budget in a submitted SIP revision can be used in a conformity determination, we must first determine that it is adequate. The criteria by which we determine adequacy of submitted emission budgets are outlined in our conformity rule in 40 CFR 93.118(e)(4). A finding of adequacy does not approve an emissions budget, it simply allows States to begin to use the budget in conformity determinations pending our action on the overall SIP.

The Clark County Plan establishes a mobile source emissions budget of 201.75 tons per day (tpd) for 2001 and an emissions budget of 141.41 tpd for 2006. This regional budget is applicable to both the annual and 24-hour PM-10 standards.

On November 9, 2001, we notified the State that we find adequate for transportation conformity purposes this motor vehicle emissions budget. Our adequacy determination was effective on January 28, 2002 and is documented in section C of the TSD. As a result of our adequacy finding, the Regional Transportation Commission (RTC) and the Federal Highway Administration (FHWA) are now required to use this budget in all conformity analyses.

As discussed later in this preamble, we are proposing to approve both the attainment and reasonable further progress demonstrations for the 24-hour standard in the Clark County Plan. An emissions budget was set at 155.77 tpd for the 2003 interim year, which is consistent with these demonstrations. We, therefore, propose to approve the motor vehicle emissions budget for the annual and 24-hour PM-10 standards under CAA section 176(c).

We discuss the adequacy of the monitoring network in this preamble solely to support our finding that the plan appropriately evaluates the PM-10 problem in the Las Vegas area. Reliable ambient data is necessary to validate the base year air quality modeling which in turn is necessary to assure sound attainment demonstrations.

The CAA requires states to establish and operate air monitoring networks to compile data on ambient air quality for all criteria pollutants. CAA section 110(a)(2)(B)(i). Our regulations in 40 CFR part 58 establish specific regulatory requirements for operating air quality surveillance networks to measure ambient concentrations of PM-10, including measurement method requirements, network design, quality assurance procedures, and in the case of large urban areas, the minimum number of monitoring sites designated as National Air Monitoring Stations (NAMS).

Ambient networks, however, do not need to meet all our regulations to be found adequate to support air quality modeling. A good spatial distribution of sites, correct siting, and quality-assured and quality-controlled data are the most important factors for air quality modeling. Nonattainment area plans developed under title I, part D of the Clean Air Act are not, in general, required to address how the area's air quality network meets our monitoring regulations. These plans are submitted too infrequently to serve as the vehicle for assuring that monitoring networks remain current.

The DAQM operates 17 monitoring sites collecting PM-10 data in the Las Vegas area, about half of which are designated as special purpose monitors (SPMs) with the remaining monitors designated as NAMS or state/local monitoring stations. Table MON-2 in the TSD lists the names of the sites and their locations in the Las Vegas area as of July 2000. Many of the SPM sites operated by the DAQM are in fact long term sites that have been in operation longer than three years. EPA performed a technical system audit of the DAQM's ambient air monitoring program in August 2001. In this audit, EPA identified some concerns with how DAQM characterizes its monitoring networks in terms of site objectives, that at least two more NAMS sites are needed, and that the quality assurance program needs to be better defined and integrated into the daily functions of the air monitoring program. However, we do not believe these deficiencies adversely affect our ability to determine the air quality status of the area.

The Las Vegas PM-10 network employs a large number of monitoring sites that are spread out over the Las Vegas valley. Given the nature of the emission sources, which are mostly local fugitive dust sources, and since PM-10 is a localized yet widespread pollutant, we believe a dense network such as DAQM operates is appropriate.

The 24-hour attainment demonstration in the Clark County plan relies, in part, on showing attainment at five specific monitoring sites. These sites were chosen based on the fact that they represent the worst case environments for a mix of PM-10 emission sources: East Flamingo site for its high traffic volume; Green Valley for its nearby highway construction and race tracks; J.D. Smith for its mixture of roadways, small point sources and construction sites; Craig Road for its light industrial facility and vacant land influences; and Pittman for its larger stationary sources, unpaved parking lots and unpaved roads. In 1997-1999 these sites cumulatively recorded 43 exceedences of the 24-hour PM-10 standard. They are also representative of similar areas in the Las Vegas area that may not have monitoring sites.

In conclusion, we believe the monitoring network operated by the DAQM in 1998 was adequate to support the technical evaluation of the PM-10 nonattainment problem for the Clark County Plan. The network utilizes EPA reference or equivalent method monitors and the DAQM performs routine precision and accuracy checks of the monitoring equipment and performs necessary maintenance when warranted.

CAA section 172(c)(3) requires that nonattainment area plans include a comprehensive, accurate, and current inventory of actual emissions from all sources in the nonattainment area in the designated base year and a future attainment year. To meet this requirement, Clark County prepared a 1998 base year annual emissions inventory for the entire nonattainment area. See Clark County Plan, Chapter 3, Table 3-1. Emissions inventories for the baseline and future years for both the annual and 24-hour standards are necessary prerequisites to meet requirements for BACM and demonstration of attainment per CAA section 189(b). In the Las Vegas Valley, both regional and microscale modeling inventories are needed to accurately reflect the sources that are contributing to ambient levels of the 24-hour PM-10 standard. By design and need, the microscale inventory includes only sources within a small area around a monitor rather than all sources within the entire nonattainment area.

For the attainment demonstration, the Clark County Plan relies upon regional annual and 24-hour emissions inventories associated with a portion of the entire PM-10 nonattainment area titled the “BLM Disposal Area”. See Clark County Plan, Chapter 3, section 3.3 and Appendix E. All lands controlled by the federal government outside the BLM disposal area are to remain in their native state and the boundary can only be changed by an act of the United States Congress. Approximately 99 percent of the nonattainment area resides within the BLM Disposal Area and nearly all anthropogenic sources within the nonattainment area occur within the BLM Disposal Area, making it the appropriate focus for the attainment demonstration. We address the modeling used in the attainment demonstration later in this notice. The rules adopted by Clark County to address sources within the BLM Disposal Area equally apply to the entire PM-10 nonattainment area.

The Plan contains two 1998 BLM Disposal Area emissions inventories for the annual standard: a valley-wide inventory and a microscale inventory for the area surrounding the J.D. Smith monitoring station, which was the only site that measured a violation of the annual NAAQS. For the 24-hour standard, the Plan contains a base year emissions inventory for the design day (December 21, 1998), which is scaled from the annual valley-wide inventory with additional wind erosion emissions factored in due to specific meteorological conditions.

Clark County also prepared future year PM-10 inventories comparing an “uncontrolled” scenario to a scenario assuming application of control measures adopted by Clark County as BACM. The Plan contains uncontrolled 2001 and 2006 annual valley-wide emissions inventories and a 2006 uncontrolled valley-wide 24-hour inventory. Emissions inventories were also developed for each of the five microscale sites. These microscale inventories are specialized modeling inventories and are not intended to satisfy the CAA section 172(c)(3) requirement. 10

The following fugitive dust source categories make up 97 percent and 99 percent of PM-10 emissions in the base year annual valley-wide and 24-hour BLM Disposal Area inventories for the Las Vegas Valley, respectively: vacant land, construction, paved roads and unpaved roads. The inventory includes only primary PM-10 as chemical mass balance receptor modeling showed that secondary and condensable particulate formation contribute less than significant amounts to ambient PM-10 concentrations. Clark County Plan, Chapter 4, section 4.2.1.

In our review of the Plan, we found that the emissions estimates for all of the source categories are based on emissions factors and methodologies recommended by EPA, or are derived from a specific study or data collected from a source category in the area ( e.g. , vacant lots). We propose to find that the inventory projections methodologies and calculations rely upon reasonable assumptions and provide a sufficient basis upon which to assess control measure impacts on future PM-10 air quality in the Las Vegas area. Clark County has also included commitments in the Plan to improve and update the emissions inventories in future years.

CAA section 189(e) requires BACT to be applied to major stationary sources of PM-10 precursors if these sources contribute significantly to PM-10 exceedences in the area. Clark County determined that stationary sources, including sand and gravel operations, natural gas-fired utility power plants, asphalt concrete plants, industrial processes, and other sources cumulatively contribute less than 1 μg/m 3 of the design day concentration, placing them below the 5 μg/m 3 significance threshold for the 24-hour standard. Design day micro-inventory concentrations from stationary source emissions were higher in some cases (3.74 μg/m 3 and 3.53 μg/m 3 at the Pittman and Craig Road monitoring sites, respectively), but were still below the threshold of presumed significance for this source category. Therefore, BACT is not required to be applied to stationary sources per CAA section 189(e).

CAA section 189(b)(1)(B) requires that a serious area PM-10 plan provide for the implementation of BACM within four years of reclassification to serious. Under our applicable guidance, BACM must be applied to each significant area- wide source category. Addendum at 42011. As discussed in section III of this preamble, we have established a four-step process for evaluating BACM in serious area PM-10 plans.

The first step in the BACM analysis is to develop a detailed emissions inventory of PM-10 sources and source categories that can be used in modeling to determine their impact on ambient air quality. Addendum at 42012. The second step is to use this inventory in air quality modeling to evaluate the impact on PM-10 concentrations over the standards of the various sources and source categories to determine which are significant.

The development of the detailed emissions inventory is discussed in the preceding section and in the TSD. We propose to find that the baseline emissions inventory contains a sufficient level of detail to enable appropriate evaluation of the Plan's control measures for BACM purposes. The determination of source significance is based primarily on the J.D. Smith annual inventory and the 24-hour micro-inventories at the five representative sites, supplemented by reviews of the 1998 valley-wide 24-hour emissions inventory, the 1998 valley-wide annual emissions inventory, and Chemical Mass Balance modeling. Clark County Plan, Chapter 4, pg. 4-1.

From these evaluations, the Clark County Plan identifies the following sources as significant with respect to the annual standard:

The same source categories are deemed significant for the 24-hour standard, with the additional category of:

Clark County determined that the following source categories are not significant for both standards:

Emissions from the proposed de minimis categories are a small percentage (3% collectively) of the total 1998 BLM Disposal Area annual and 24-hour PM-10 emissions inventories. The minimal contribution of the proposed de minimis source categories to the inventory supports that, both individually and collectively, they have a minor impact on elevated annual and 24-hour PM-10 levels in the Clark County nonattainment area.

For the 24-hour standard, the Clark County Plan demonstrates that its selection of significant source categories is appropriate by showing that controls on the de minimis source categories would not result in attainment of the 24-hour standard by 2001. See Clark County Plan, Chapter 7, section 7.4.

We propose to find that the Clark County Plan has not excluded any source categories that should be considered significant from its list of significant source categories. The Plan presents acceptable modeling to evaluate the impact of various PM-10 sources and source categories on PM-10 levels and to derive a comprehensive list of significant source categories.

In preparing the list of candidate BACM, Clark County reviewed our guidance documents on BACM, other EPA documents on PM-10 control, as well as PM-10 plans from other serious PM-10 areas in the United States. Clark County also evaluated controls proposed during public comment.

The Clark County plan appropriately screened the list of candidate BACM to eliminate measures that did not apply to significant source categories in the area, or were technologically infeasible for the area because they would not reduce PM-10 emissions. The Clark County Plan also provides cost-effectiveness estimates for each of the candidate BACM.

We propose to find that the Clark County Plan identified and evaluated potential BACM for the Las Vegas area consistent with our guidance. As we will discuss below in our evaluations of the implementation of BACM for each significant source category, we do not believe that the Clark County plan left out any candidate BACM.

In the following sections, we review the results of the Clark County Plan's BACM analysis and adopted measures. The same control measures apply to BACM determinations for both the annual and 24-hour PM-10 standards. We also present our evaluation of the Plan's provisions for including MSM alongside our evaluation of BACM implementation for each significant source category.

Clark County adopted sections 90 through 94 and section 0 on November 16, 2000. Sections 90 through 93 were subsequently revised by the DAQM on November 20, 2001. Clark County submitted these revised rules to EPA on October 24, 2002 for our action in place of the sections 90 through 93 adopted on November 16, 2000. These rules address the significant sources identified in the Plan, along with SIP commitments for unpaved roads and unpaved road shoulders contained in Chapter 4 of the Plan.

Clark County has also committed to increase its staffing levels to enhance compliance and enforcement of these rules to assure that the emission reductions necessary for expeditious attainment are achieved. This commitment is an important component of our proposed finding that the Clark County Plan provides for implementation of BACM and inclusion of MSM.

We also have evaluated the rules for enforceability and consistency with applicable CAA requirements for SIP revisions in section 110 and Part D and EPA rulemaking policy.

This category includes windblown fugitive dust emissions from disturbed surfaces of vacant land. On vacant land, fugitive dust emissions are caused by virtually any activity which disturbs an otherwise naturally stable parcel of land, including earth-moving activities, material dumping, weed abatement, and vehicle traffic. Wind erosion from disturbed vacant land accounts for 45 percent of total PM-10 emissions in the 1998 24-hour BLM Disposal Area inventory and 39 percent of total PM-10 emissions in the 1998 annual BLM Disposal Area valley-wide inventory, making it the largest source of PM-10 in the Las Vegas area.

The suggested measures for controlling emissions from disturbed vacant land fall into one of two categories: preventing motor vehicle disturbance of vacant land, and stabilizing vacant land. 12 We propose to find that the Clark County Plan evaluates a comprehensive set of potential controls for disturbed vacant land including the potential MSM from other States.

Clark County implemented both access prevention and surface stabilization with specific requirements in section 90 “Fugitive Dust From Open Areas and Vacant Lots”. Section 90 requires prevention of motor vehicles (including off-road vehicles), where there is evidence of such use, on open areas and vacant lots greater than or equal to 5,000 square feet by installation of barriers or other effective traffic control measures and stabilization of motor-vehicle disturbed surfaces on such lots. Also, where 5,000 square feet or more of cumulative disturbed surface exists (from any activity) all disturbed areas must be stabilized using water, dust palliatives or gravel. When discing or blading areas of 5,000 square feet or more, water must be applied before and during operations and the disturbed surface stabilized afterwards.

The requirements apply to public and private vacant land alike. Clark County determined that less than one percent of vacant land within the BLM Disposal Boundary  13 consists of parcels smaller than 5,000 square feet, thus the requirements provide a stringent threshold of applicability. Section 90 contains appropriate performance standards and test methods for surface stability, 14 recordkeeping requirements, and otherwise meets EPA's enforceability criteria.

Clark County has also made a SIP commitment to adopt a requirement for dust management plans on large tracts ( i.e. , 10,000 acres or more) of government owned land. 15

Section 90 vacant lot requirements became effective on January 1, 2001. We propose to find that the Clark County Plan provides for the implementation of vacant lot measures as expeditiously as practicable, consistent with our proposed MSM policy.

For the MSM analysis, Clark County demonstrated that the section 90 requirements are of equivalent or greater stringency than those adopted or in practice in other areas.

We, therefore, propose to find that the Clark County Plan provides for the implementation of BACM and for the inclusion of MSM for disturbed vacant land. We also propose approval of section 90 into the SIP in accordance with CAA section 110 and the requirements of CAA Title I, part D.

This category includes emissions from re-entrained road dust from vehicle traffic on unpaved parking lots and windblown dust entrained from the disturbed surface of unpaved parking lots. Windblown emissions from unpaved parking lots are included in the disturbed vacant land category in the 1998 base year valley-wide and BLM Disposal Area emissions inventories. The extent of unpaved parking lots affected by the controls in adopted Rule 92 has not been determined (or credited) on a valley-wide inventory basis, 16 but instead only with respect to the microscale inventories.

There are two principal ways to control emissions from unpaved parking lots, both of which Clark County identified: prohibit unpaved parking lots or stabilize existing lots. We propose to find that the Clark County Plan evaluates a comprehensive set of potential controls for unpaved parking lots including the potential MSM from other States.

Clark County adopted requirements to stabilize existing unpaved parking lots in section 92 “Fugitive Dust From Unpaved Parking Lots.” Clark County also adopted a SIP commitment to modify section 92 to prohibit new unpaved parking lots with limited exceptions. 17 Therefore, both potential BACM have or will shortly be adopted. 18

Section 92 requires that all unpaved parking lots greater than or equal to 5,000 square feet be stabilized by application of paving, dust palliatives, or a combination of dust palliatives in the travel lanes and two inches of gravel. Lots used intermittently (thirty-five days per year or less), must be stabilized according to section 92 standards only on days of use. On days of inactivity, however, such lots are subject to section 90 standards.

The section 92 requirements apply to both public and private unpaved parking lots. The analysis Clark County used to assess the percentage of vacant land parcels smaller than 5,000 square feet in the BLM Disposal Area applies to unpaved parking lots as well. Section 92 contains appropriate performance standards and test methods for surface stability and opacity, 19 recordkeeping requirements, and otherwise meets EPA's enforceability criteria.

Section 92 unpaved parking lot requirements became effective on January 1, 2001. We propose to find that the Clark County Plan provides for the implementation of unpaved parking lot measures as expeditiously as practicable, consistent with our proposed MSM policy.

For the MSM analysis, Clark County demonstrated that the section 92 requirements are more stringent than those adopted or in practice in other areas. We, therefore, propose to find that the Clark County Plan provides for the implementation of BACM and for the inclusion of MSM for unpaved parking lots. We also propose SIP approval of section 92 per CAA section 110 and Part D.

Sources of fugitive dust emissions at construction sites include land clearing, earthmoving, excavating, construction, demolition, material handling, bulk material storage and/or transporting operations, material track out or spillage onto paved roads (which we have addressed in the paved road section), and vehicle use and movement on site ( e.g. , the operation of any equipment on unpaved surfaces, unpaved roads and unpaved parking areas). Windblown emissions from disturbed areas and inactive storage piles on construction sites are also a source of PM-10. Construction operations, which are mostly earthmoving, represent approximately 37 percent of the 24-hour BLM Disposal Area emissions (not including trackout emissions).

The suggested measures in the Clark County Plan for controlling emissions from constructions sites include a detailed list of controls encompassing a great variety of dust-generating activities, performance standards, enforcement-related measures, 20 and new measures not implemented in other areas. The measures considered include all sources of active dust generation and windblown dust on construction sites. We propose to find that the Clark County Plan evaluates a comprehensive set of potential controls for construction sites emissions including the potential MSM from other States.

Clark County adopted requirements pertaining to construction sites in Section 94 “Permitting and Dust Control for Construction Activities” on November 16, 2000. As part of this action, Clark County also adopted a “Section 94 Handbook,” along with relevant tables of contents, definitions, articles, tables, indexes, examples and appendices. 21 Together these documents make up the required control measures applicable to construction sites. Section 94 establishes the basic requirements for construction site dust control permits and other standards while the Section 94 Handbook lays forth more specific requirements for each dust-generating source.

Dust control permits are required prior to soil disturbance for all sites greater than 1/4 acre, mechanized trenching greater than 100 feet in length, and mechanical demolition of structures greater than 1,000 square feet. However, all sites with construction activities regardless of size are subject to the requirements of section 94 and the Section 94 Handbook. Dust control permits must contain a “Dust Mitigation Plan” that employs the Section 94 Handbook Best Management Practices (BMPs). The Section 94 Handbook requirements are not only activity-specific and designed to be placed into dust control permits in a phase-specific manner, but are also specific to the type of soil at a particular site or location and the soil's potential to emit fugitive dust. Therefore, each Dust Mitigation Plan must incorporate the appropriate BMPs per the Section 94 Handbook according to soil type parameters. 22 Sites 10 acres or greater must provide a more detailed project description and site plan according to a “Site Specific Dust Mitigation Plan”.

The Section 94 Handbook establishes a specific performance standard ( i.e. , Control Requirement) that must be met for each identified construction activity. 23 Multiple Control Requirements apply for each construction activity. A menu of control measure options is provided, one or more of which must be specifically identified in the Dust Mitigation Plan to meet each applicable Control Requirement for the activity. The control measures identified in the Dust Mitigation Plan are subject to review and approval by the DAQM as part of the dust control permit.

Specific requirements include a 20 percent opacity standard for active earthmoving operations and construction traffic. Also, all construction activities are prohibited from creating a visible plume that extends more than 100 yards from the point of origin. Construction site trackout is addressed by both a requirement to install and maintain trackout control devices at all traffic access/exit points and a requirement that trackout be cleaned up immediately (within one hour of discovery) if it extends a cumulative distance of 50 feet or more. In addition, all trackout must be cleaned up by the end of the work day or evening shift. To prevent emissions during bulk material transport and handling, truck loads must be covered on public roads and a 20 percent opacity limit applies during truck loading and unloading. Truck loads of bulk materials on site must either be covered, maintain three to six inches of freeboard, or maintain optimum moisture content of soils. All inactive disturbed soil areas must meet surface stabilization standards, including stockpiles and parking areas. 24 Unpaved haul roads must comply with both a 20% opacity standard  25 and a surface stabilization standard. 26 In high wind conditions, owners/operators must cease all construction activities if fugitive dust exceeds 20 percent opacity but must continue operation of water trucks and pulls except under specific circumstances. Sites with greater than 50 acres of actively disturbed soil are required to employ a responsible person to monitor dust control at the site. 27

Section 94 and the Section 94 Handbook and other documents adopted by reference contain appropriate performance standards and test methods for opacity and surface stability, recordkeeping requirements, and otherwise meet EPA's enforceability criteria. Although the opacity standard per the test method included in section 94 is the best currently available to assess the opacity of emissions from the variety of construction activities generating fugitive dust, it may not be sufficient in all field circumstances to control intermittently-occurring dust plumes to BACM levels. Therefore, Clark County has adopted a SIP commitment to fund additional research to develop an acceptable alternative test method and revise section 94 accordingly. See Chapter 4 of the Plan, section 4.8.2.7. We consider this commitment as factoring into our determination that the Plan provides for BACM/MSM.

Section 94 construction site requirements became effective on January 1, 2001. We propose to find that the Clark County Plan provides for the implementation of construction site measures as expeditiously as practicable, consistent with our proposed MSM policy.

For the MSM analysis, Clark County demonstrated that the section 94 and section 94 Handbook requirements are of equivalent or greater stringency than those adopted or in practice in other areas.

We, therefore, propose to find that the Clark County Plan provides for the implementation BACM and for the inclusion of MSM for construction sites. We also propose SIP approval of section 94 and the section 94 Handbook and referenced documents per CAA section 110 and part D.

Paved road dust is fugitive dust that is deposited on a paved roadway and then re-entrained into the air by the action of tires grinding on the roadway. Dust can be deposited on the roadway from being blown onto the road from disturbed areas, tracked onto the road from unpaved shoulders, unpaved roads, or other unpaved access points, stirred up from unpaved shoulders by wind currents created from traffic movement, spilled onto the road by haul trucks, and carried onto the road by water runoff or erosion. Paved road dust constitutes 26 percent of the 1998 valley-wide annual BLM Disposal Area emissions, thus is the second largest source of valley-wide PM-10 in the Las Vegas area. Paved road dust accounts for 13 percent of the overall 24-hour BLM Disposal Area 1998 inventory.

The suggested measures for controlling emissions from paved road dust fall into two categories: Preventing deposition of material onto a roadway, and cleaning material off the roadway. 28 The Clark County Plan includes ten potential BACM for paved road dust that fall under one of these two categories. We believe this list is complete and propose to find that the Clark County Plan evaluates a comprehensive set of potential controls for paved road dust including the potential MSM from other States.

Clark County adopted requirements for paved road shoulders and PM-10 efficient street sweeping requirements in section 93 “Fugitive Dust from Paved Roads and Street Sweeping Equipment”. Clark County adopted SIP commitments to stabilize existing unpaved road shoulders and require use of vacuum crack seal equipment. See Clark County Plan, Chapter 4, sections 4.8.3.2 and 4.8.2.9. 29 Measures to prevent construction site trackout onto paved roads from truck tires and material transport are included in section 94 and the section 94 Handbook (construction activity regulations). For other measures  30 , Clark County provided documentation of ongoing programs in place. 31

The paved road measures relied upon for emissions reductions towards demonstrating attainment include stabilizing unpaved road shoulders, preventing trackout from construction sites, and reducing deposition from other fugitive dust sources subject to control per sections 90 through 94. The remaining measures are either already factored into the baseline or are not credited with emissions reductions towards the attainment demonstration. 32

Section 93 requires owners/operators using street sweeping equipment or services on paved roads or parking lots to acquire or contract to acquire only certified PM-10 efficient street sweeping equipment  33 after January 1, 2001. We note this requirement applies to both private operators and government agencies.

For new or modified road shoulders, section 93 requires four feet of paved or stabilized shoulder on each side of the paved travel section or construction of curbing adjacent to the paved travel lane. 34 Medians must also be stabilized.

For existing unpaved road shoulders, section 93 requires stabilization within 365 days following initial discovery that the road fails to meet the stabilization standards and other requirements that apply to new/modified paved road shoulders. The stringency of this provision is necessarily enhanced by the SIP commitment in the Plan which lays forth the program and definitive dates by which all unstabilized shoulders will be identified and stabilized by public agencies in the Valley. Clark County indicates that shoulder improvements will be prioritized by each entity for their respective jurisdictions based upon emissions estimates. To implement the program, Plans will be completed by February 15, 2002, and at a minimum, funds will be obligated to improve 33 miles of paved road shoulders by the end of 2003, with all shoulders to be stabilized by the end of 2006. Annual updates on the progress of stabilizing shoulders will be submitted to Clark County and EPA. In a June 28, 2002 letter, the DAQM indicates that the respective public entities have submitted initial plans for stabilizing shoulders and initiated programs to begin stabilization.

Section 93, paved road requirements, became effective on January 1, 2001. The SIP commitment by governmental entities to stabilize 33 miles of unpaved shoulders by the end of 2003 and all shoulders by the end of 2006 allows time for public works agencies to complete an inventory of the unpaved shoulders in their respective jurisdictions and adopt schedules under capital improvement programs to stabilize shoulders each year using Congestion Management Air Quality (CMAQ) funds. Other measures have on-going implementation schedules because they are part of an on-going capital improvement program, e.g. , storm water drainage projects. Therefore, we propose to find that the Clark County Plan provides for the implementation of paved road measures as expeditiously as practicable, consistent with our proposed MSM policy.

For the MSM analysis, Clark County demonstrated that the section 93 requirements and SIP commitments contained in the Plan are of equivalent or greater stringency than those adopted or in practice in other areas.

We, therefore, propose to find that the Clark County Plan provides for the implementation of BACM and for the inclusion of MSM for paved road dust.

This category includes re-entrained dust from vehicle travel on unpaved roads and windblown emissions from unpaved roads. There are three categories of unpaved roads in the Clark County nonattainment area: Publicly-owned/maintained roads, privately-owned roads, and unpaved haul/access roads associated with construction sites or industrial facilities. We have addressed the latter category in the discussion of construction site measures (section IV.D.3.c) of this document.

There are three ways to control fugitive dust emissions from unpaved roads: surface treatment to reduce dust from unpaved roads and alleys, traffic reduction/speed control plans for unpaved roads, and prohibition of unpaved haul roads. All three are identified and evaluated in the Clark County Plan. We believe this list is complete and propose to find that the Clark County Plan evaluates a comprehensive set of potential BACM and MSM for unpaved roads.

Clark County did not implement traffic reduction/speed control on public and private roads in the Valley. 35 This is because the County determined that reducing traffic on public and private unpaved roads is not as stringent a measure as paving or other means of surface stabilization. Speed control is difficult to enforce compared to road paving, which can be readily verified and results in greater emissions reductions. Thus, the benefits of applying this potential BACM are subsumed in the more stringent emission reductions associated with surface stabilization.

Clark County adopted requirements to stabilize existing unpaved roads and alleys and to prohibit new unpaved roads in public thoroughfares in section 91 “Fugitive Dust From Unpaved Roads, Unpaved Alleys and Unpaved Easement Roads.” Also, Clark County adopted a SIP commitment for County and City Public Works agencies to pave unpaved roads subject to section 91. 36

Section 91 requires all existing unpaved roads that receive 150 vehicle trips per day or more to be paved or treated with dust palliatives on the following schedule: 1/3 of the total by June 2001, two-thirds of the total by June 2002, and any remaining roads by June 1, 2003. Section 91 prohibits construction of new unpaved roads or alleys in public thoroughfares after June 22, 2000 unless the unpaved road is an interim component of an active paving project.

Section 91 requirements apply to both public and private roads. Clark County estimates that approximately 64 miles of the 259-mile total base year inventory of publicly-owned and maintained unpaved roads have 150 or more average daily vehicle trips (ADT). The unpaved roads inventory was developed by the respective Public Works departments after extensive review of the existing road network. Given that higher ADT unpaved roads proportionately contribute greater emissions than lower ADT roads, the 64 miles constitute 66% of emissions from the total inventoried road network. The SIP commitment for unpaved roads made by County and City Public Works agencies not only goes beyond the section 93 requirements in that it ensures roads will receive the maximum emissions reductions possible through paving, but further enhances coverage in that the City of Las Vegas makes an additional commitment to pave all unpaved roads within its jurisdiction by the end of 2006. We also note that the SIP commitment concerning paved road shoulders  37 indicates that shoulder improvements and road paving for unpaved roads with less than 150 ADT will be prioritized by each entity for their respective jurisdictions based upon emissions estimates. Thus, road paving efforts by jurisdictions may very well go beyond the requirements in section 91 depending on the availability of CMAQ dollars. Section 91 contains specific reporting requirements for the responsible jurisdictions and the SIP commitment for unpaved roads provides for annual progress updates to be provided to the DAQM and EPA.

While the miles of privately owned unpaved roads have not been fully inventoried in detail, a total of 45 miles of private roads were identified by various municipalities and the County, none of which were determined to have traffic volumes greater than 50 ADT. Clark County included a SIP commitment in the Plan to develop an improved inventory of both public and private unpaved roads. 38

Section 91 also contains requirements that address the prospect of vehicle traffic increases on unpaved roads that are currently below the 150 ADT threshold but in the future exceed it. Any existing unpaved roads which equal or exceed 150 ADT after June 1, 2003 are subject to control according to section 91 within 365 calendar days following initial discovery that vehicular traffic equals or exceeds 150.

Section 91 contains appropriate performance standards and test methods for surface stability and opacity, 39 recordkeeping requirements, and otherwise meets EPA's enforceability criteria.

Section 91 unpaved road requirements prohibit new unpaved roads as of June 22, 2000. Clark County indicates that the CMAQ funding obligated by the responsible government agencies (totaling over $25 million) will support completing approximately one-third of the total paving requirement in section 91 for each year from 2001 to 2003. 40 Moreover, we note in a June 28, 2002 letter from the DAQM that the responsible jurisdictions have exceeded the section 91 required one-third increment of road paving by June 2001 and have reported paving 86 percent, or a total of 55 of the 64-mile public road inventory receiving 150 ADT or more. This demonstrates the commitment of Clark County governmental entities to implement control measures expeditiously. We propose to find that the Clark County Plan provides for the implementation of unpaved road measures as expeditiously as practicable, consistent with our proposed MSM policy.

For the MSM analysis, Clark County demonstrated that the section 91 requirements and SIP commitments for unpaved roads are equally or more stringent than those adopted or in practice in other areas.

We, therefore, propose to find that the Clark County Plan provides for the implementation of BACM and for the inclusion of MSM for unpaved roads. We also propose SIP approval of section 91 per CAA section 110 and part D.

Race track emissions are both actively generated from use by offroad vehicles, e.g. , dirt bikes and all-terrain vehicles (ATVs), and windblown from disturbed surfaces following use. Clark County determined that race track emissions are only significant with respect to the 24-hour standard. Race track emissions that were found to have significant impacts at two micro-inventory sites were associated with unauthorized ATV use on a vacant parcel. 41

Clark County did not prepare a separate BACM analysis for race tracks. Rather, Clark County implements its strategy for race tracks through section 90 controls for disturbed vacant land and open areas. We note that there are three potential BACM for control of dirt race tracks: Prohibit race tracks, treat the surface of race tracks with dust suppressants or palliatives, and establish wind breaks around the circumference of tracks. Of these potential BACM, Section 90 controls address the first two. Establishing wind breaks has not been adopted, but this measure is not as stringent as prohibiting race tracks and surface treatment of disturbed areas.

Clark County determined that section 90 requirements effectively prohibit dirt race tracks because it is not possible to operate off-road vehicles, including dirt bikes and ATVs, on open areas/vacant lots and remain in compliance with the regulation. Where motor vehicle trespass is occurring on vacant lots greater than 5,000 square feet, owners must take steps to prevent trespass and stabilize the surface. Even if motor vehicle use is authorized, where over 5,000 cumulative square feet of surface has been disturbed, owners/operators must apply dust palliative (other than water) or gravel. These requirements would apply to any public or private lands where offroad racing occurs.

The one public entity in Clark County that can effectively authorize use of public land for offroad racing events is the Bureau of Land Management. Clark County indicates that BLM is currently working to establish offroad racing courses outside the nonattainment area. The DAQM's policy prohibiting issuance of permits for offroad race tracks within the nonattainment area is described in a letter dated September 5, 2002 from the DAQM to the BLM and in letters from the DAQM to other public agencies dated September 9, 2002.

Clark County did not conduct a MSM evaluation specific to race tracks. Rather, the MSM evaluation for section 90 applies. We propose to find that the Clark County Plan provides for the implementation of BACM and for the inclusion of MSM for race tracks.

Section 0 was revised by Clark County at the same time sections 90 through 94 were originally adopted (November 16, 2000). The section 0 definitions that concern fugitive dust sources are integrally linked to the requirements found in sections 90 through 94. However, section 0 also contains definitions that are not pertinent to sections 90 through 94. For the purposes of this action, we have only evaluated the definitions concerning fugitive dust sources per section 90 through 94 requirements and are proposing to approve only these sections into the SIP, rather than the entire section 0.

The individual sections of section 0, November 16, 2000, we are proposing to approve into the Nevada PM-10 SIP include the following:

The current Nevada SIP contains a definitions rule titled “Section 1—Definitions” submitted on November 17, 1981 and approved into the SIP by EPA on June 21, 1982. Our proposed incorporation of the specified section 0 definitions into the SIP would upgrade the SIP by adding several new definitions and by replacing two of the existing section 1 definitions. These two definitions include section 0.70 “Fugitive Dust” and section 0.114 “Offroad Vehicle”, which would replace subsection 1.35 and subsection 1.64 of section 1, respectively.

In addition to section 1, the applicable SIP-approved fugitive dust rules that apply in Clark County include section 41 “Fugitive Dust” (submitted on July 24, 1979 and approved by EPA on August 27, 1981) and section 17 “Permission to Disturb Topsoil” (submitted on July 24, 1979 and approved by EPA on August 27, 1981). Revisions to section 17 were submitted on November 17, 1981 and approved by EPA on June 18, 1982.

We are proposing to revise the Nevada PM-10 SIP to incorporate sections 90, 91, 92, 93 (as adopted on November 20, 2001) and section 94 (including the Section 94 Handbook and other referenced documents) (as adopted on November 16, 2000) of the Clark County Regulations. We are proposing to replace SIP-approved Clark County section 17. We are also proposing to add certain portions of Section 0 (as adopted on November 16, 2000) to the existing SIP-approved section 1, and replace two definitions in section 1, as previously identified in this notice.

CAA section 110(l) prohibits approval of SIP revisions that would interfere with any applicable requirement concerning attainment and RFP or any other applicable requirement of the Act. As discussed in other sections of this document, we are proposing to approve the expeditious attainment and RFP demonstrations in the PM-10 State Implementation Plan for Clark County. These demonstrations are in large part dependent on approval of sections 90, 91, 92, 93, and 94 (including Handbook) and Clark County SIP commitments. Therefore, our proposed approval of these rules and SIP commitments will not adversely affect the Plan's provisions for expeditious attainment and RFP. These SIP revisions also satisfy all other applicable CAA requirements including implementation of BACM and the inclusion of MSM.

Section 110(a)(2)(E)(i) of the Clean Air Act requires that the implementation plan provide necessary assurances that the State (or the general purpose local government) will have adequate personnel, funding and authority under State law. Requirements for legal authority are further defined in 40 CFR part 51, subpart L (51.230-51.232) and for resources in 40 CFR 51.280.

States and responsible local agencies must demonstrate that they have the legal authority to adopt and enforce provisions of the SIP and to obtain information necessary to determine compliance. SIPs must also describe the resources that are available or will be available to the State and local agencies to carry out the plan, both at the time of submittal and during the 5-year period following submittal.

Section 110(a)(2)(C) of the Act requires SIPs to include a program to provide for the enforcement of SIP measures. The implementing regulation for this section is found at 40 CFR 51.111(a) and requires control strategies to include a description of enforcement methods including (1) procedures for monitoring compliance with each of the selected control measures, (2) procedures for handling violations, and (3) the designation of the agency responsible for enforcement.

Section 110(a)(2)(E)(iii) of the Act requires SIPs to include necessary assurances that where a State has relied on a local or regional government, agency or instrumentality for the implementation of any plan provision, the State has responsibility for ensuring adequate implementation of the such plan provision.

With respect to CAA section 110(a)(2)(E)(iii), the State of Nevada has ultimate responsibility for ensuring the adequate implementation of the Clark County air quality program according to NRS 445B.520. This statute allows the State Environmental Commission to supersede a County's program when the Commission determines that a local air quality program is inadequate.

The principal control measures in the Clark County Plan are the adopted requirements in sections 90 through 94 and the Plan's SIP commitments for unpaved shoulders and roads.

Clark County has committed to increase its enforcement staffing and thus enhance enforcement efforts. See Chapter 4, section 4.8.1 and appendix H, Resolution 02-00, July 27, 2001, of the Clark County Plan. Specifically, Clark County committed to hire 15 additional staff by December 31, 2001 to implement and enforce sections 90 through 94, including several enforcement officers, clerical and other support positions. Prior to the fulfillment of this SIP commitment, compliance for fugitive dust sources (per sections 17 and 41 of the Clark County Regulations) was being handled by 11 people total, seven (7) of which were field enforcement officers conducting inspections.

The DAQM has provided us with the status of its SIP commitments. 42 First, the DAQM met its commitment by hiring 15 new staff into the compliance division, 12 of which were hired as field enforcement officers to conduct inspections and handle cases for construction sites and vacant lots. The DAQM then exceeded its SIP commitment by hiring an additional seven (7) field enforcement officers in 2002. The Compliance Division now consists of a total of 44 positions, with 22 field enforcement officers who spend approximately 90 percent of their time on fugitive dust issues. The increased level of effort specifically being targeted towards fugitive dust sources is evidenced by the significant number of inspections and corrective action orders concerning fugitive dust sources in 2001 and 2002, which we address in subsequent paragraphs.

We address below other program areas that are key to improving compliance and which we believe form a solid program for the effectiveness of the County's efforts to control fugitive dust.

Clark County's enforcement staff utilizes the county Geographic Information System (GISMO) to obtain detailed aerial photographs to locate and identify large parcels of vacant land to inspect and characterize. The DAQM continues to expand the existing vacant land program by identifying and systematically inspecting the problem areas and the larger parcels.

In calendar years 2001 and 2002 (as of September) combined, Clark County has conducted over 4,000 vacant land inspections. The Compliance Division has a member on staff who coordinates all activities and concerns with two government agency large vacant landowners, the Bureau of Land Management and the Bureau of Reclamation—in order to ensure close cooperation with these agencies.

In calendar years 2001 and 2002 (as of September) combined, Clark County has conducted over 5,000 construction site inspections. Complaints are given priority for inspection; however, enforcement officers also inspect construction sites within their assigned area on a routine basis, including non-permitted construction activities as they are encountered in the field.

Clark County relies upon two options for handling noncompliant sources: issuing a Corrective Action Order (CAO) or a Notice of Violation (NOV). In 2001, the County issued 1,316 CAOs and as of September 2002 has issued 1,775 CAOs. In 2001, the County issued 57 NOVs and as of September 2002 has issued 133 NOVs. The penalties assessed for the two years combined amount to $719,372. CAOs are generally written for infractions that are not substantial enough to warrant a NOV, allowing source owners/operators a first-time chance to comply. NOVs are issued for more serious violations. Should owners/operators fail to comply with a CAO, it becomes a NOV with associated penalties.

Section 7 provides that the Hearing Board Officers be selected by the District Board of Health and have the authority to levy penalties for alleged violations in accordance with section 9 of Clark County regulations, which contains the minimum penalties for violations of fugitive dust requirements. The minimum penalty for limiting visible emissions is $2,000. The minimum penalty for not complying with other control measure provisions is $1,000. Minimum penalties for failing to comply with administrative requirements related to permit conditions is $500 and $250 for other administrative requirements. Clark County compared these minimum penalties for dust violations to those of other air regulatory agencies and found that they were among the highest in the nation.

Public outreach and education consists of staff training, educating the regulated parties, developing good working relationships with other involved parties such as the cities, and making the program more understandable. Increased education of both inspectors and the regulated industry increases compliance.

Public outreach efforts in which Clark County has engaged to improve compliance for construction sites include publishing and distributing a manual that summarizes the section 94 and section 94 Handbook requirements in an easy-to-comprehend format. Also, dust control classes and educational workshops are regularly offered by the DAQM's Compliance Division. The construction site superintendent or designated on-site representative and water truck and water pull drivers for each construction project are required per section 94 to have successfully completed a Dust Control Class and all individuals required to attend must successfully complete the Dust Control Class at least once every three years. In addition, as of 2002, the DAQM has conducted a special training effort per the section 94 requirement for a responsible person to monitor dust ( i.e. “Dust Control Monitor”) on sites with more than 50 acres of disturbed surface. To date, two Dust Control Monitor classes have been held with over 90 participants.

In order to increase awareness among vacant lot owners/operators of the disturbed vacant lot requirements, Clark County prepared and distributed a brochure summarizing the section 90 requirements to over 40,000 vacant landowners.

Clark County tracks the number of inspections, CAOs, NOVs, penalties assessed and penalties collected for fugitive dust and other sources and provides quarterly reports containing this information to EPA.

Clark County tracks progress of government agencies on their unpaved road and paved road SIP commitments through a PM-10 SIP Implementation Working Group and an Unpaved Road Ad Hoc Committee. These groups are comprised of DAQM planning and compliance staff and staff from the County and City public works agencies. Unpaved road paving is documented using an extranet site and the unimproved shoulders program will be reviewed through submittal of annual reports to the DAQM. 43 Also, the Public Works Departments in Clark County routinely track paved road performance and maintenance by checking the condition of paved roads in their respective jurisdictions.

We propose to find that the Clark County PM-10 Plan adequately provides for the enforcement of the principal measures relied on for attainment and that Clark County has provided adequate descriptions of its enforcement methods as required by our regulations.

We also propose to find that the implementing agencies for the Clark County Plan have adequate resources for implementing their respective commitments that are included in the submitted Plan and that the Plan adequately describes the resources that are available or will be available to the State and local agencies to carry out the Plan, both now and over the next 5 years.

The Clark County Plan contains an analysis that demonstrates attainment of the annual PM-10 standard by December 31, 2001. Clark County predicted that an annual reduction of 5.66 percent, equivalent to 9,657 tons valley-wide and 303 tons for the J.D. Smith micro-inventory area, is needed to attain the annual 50 μg/m 3 standard, given an estimated uncontrolled concentration of 53 μg/m 3 . The valley-wide rollback modeling predicts annual PM-10 concentrations to be 46.2 μg/m 3 in 2001. The corresponding microinventory projection for J.D. Smith, the exceeding site, is 48.5 μg/m 3 , also less than 50 μg/m 3 . Together, these demonstrate attainment of the annual PM-10 standard by 2001. We propose to find this demonstration adequate. The adequacy of the demonstration is further supported by information provided by the DAQM to EPA  44 indicating that the three-year annual average (1999-2001) of the microscale sites is below the 50 μg/m 3 standard.

Clark County has requested an extension of the attainment date for the 24-hour 150 μg/m 3 PM-10 standard. Section 188(e) of the Act allows us to extend the attainment date for a serious area for up to five years beyond 2001 if attainment by 2001 is impracticable. However, before we may grant an extension of the attainment date, the State must first:

1. Apply to us for an extension of the PM-10 attainment date beyond 2001,

2. Demonstrate that attainment by 2001 is impracticable,

3. Have complied with all requirements and commitments applying to the area in its implementation plan,

4. Demonstrate to our satisfaction that its serious area plan includes the most stringent measures that are included in the implementation plan of any state and/or are achieved in practice in any state and are feasible for the area, and

5. Submit a demonstration of attainment by the most expeditious alternative date practicable.

We evaluate the Clark County serious area plan's compliance with each of these requirements below.

The documentation supporting Clark County's extension request is found in Chapter 7 of the Plan. This extension request is an integral part of the Clark County Plan and was subject to public hearing along with the rest of the plan, including the demonstration that the area will attain the 24-hour standard by the earliest alternative date practicable.

Clark County's determination that demonstrating attainment of the 24-hour standard by 2001 is impracticable is primarily based upon the need for increased enforcement staffing, which could not be completed until the end of 2001. Clark County conservatively assumes that the rule effectiveness of its regulations in 2001 is half of what it will need to be in 2006 to demonstrate attainment of the 24-hour standard.

Also, with respect to the unpaved roads schedule, Clark County indicates that the maximum benefit that will be realized at the end of 2003 from the appropriated CMAQ funding cannot practicably be achieved earlier due to funding limitations each year. Notwithstanding, we note from the DAQM's June 2002 RFP Report that the responsible entities have exceeded the Section 91 required 33 percent paving of roads subject to the rule by 2001 and reported paving 86 percent, or a total of 55 of the 64 mile inventory of unpaved roads with 150 vehicle trips per day.

With respect to improvements to paved road shoulders, Clark County has committed to stabilize 33 miles of paved road shoulders by the end of 2003 using appropriated CMAQ funds and all shoulders by 2006. The remaining shoulders have a later implementation date given that new CMAQ funds will need to be appropriated and first committed towards the carbon monoxide transportation demand management program. Thus, earlier implementation would be impracticable.

The modeled valley-wide 24-hour value for 2001 is 209 μg/m 3 . Although this is a significant reduction from the projected design day value of 281 μg/m 3 , it still falls far short of the 150 μg/m 3 standard.

Thus, we propose to find that Clark County has demonstrated the impracticability of meeting the 24-hour standard by 2001.

All measures upon which Clark County is relying to meet the applicable CAA requirements for a Serious Area PM-10 plan are included or referenced in the current June 2001 Plan, as amended by Clark County in November 2002.

Clark County identified candidate MSM in the context of its analysis to identify potential BACM, generally finding that control measures being implemented in other PM-10 serious nonattainment areas in the western U.S. were the most stringent controls implemented by others for the types of fugitive PM-10 sources requiring control in the Las Vegas Valley.

In the Clark County Plan, after a comprehensive list of candidate MSM was developed, each measure was screened against the corresponding Clark County measure to identify those with more restrictive emission limitations, more extensive lists of affected sources, fewer exemptions, and/or one or more substantive regulatory provisions not found in the Clark County measure. Clark County includes a measure-by-measure MSM comparison in Chapter 6 of the Plan.

Based on our analysis of the Clark County Plan, we propose to find that it demonstrates to our satisfaction inclusion of the most stringent measures that are included in the implementation plan of any State, or are achieved in practice in any State, and can be feasibly implemented in the Clark County area.

For the reasons discussed below, we propose to find that the Clark County Plan demonstrates attainment by the earliest date practicable after December 31, 2001 as required by CAA section 189(b)(1)(A)(ii). We also propose to find that: The attainment demonstration relies on control measures that either are approved or have been proposed for approval and meet our SIP enforceability criteria; the emissions estimates credited to these measures in the attainment demonstration are reasonable; and the measures are being implemented on a schedule that is as expeditious as practicable and will result in attainment by the earliest practicable date.

The attainment demonstration for the 24-hour standard in the Clark County Plan is divided into two parts, a microscale analysis and a regional analysis. The microscale part evaluates 24-hour exceedences at five monitoring sites in the Las Vegas. The regional part evaluates 24-hour levels throughout the rest of the Clark County nonattainment area.

Clark County relies upon an emissions “rollback” model for the attainment demonstrations. EPA's guidelines  45 allow the need for case-by-case approaches in circumstances when recommended dispersion models are not available or applicable and where area sources are the predominant component of PM-10. To predict future concentration, the current concentration is reduced or “rolled back” by the same fractional amount that emissions are reduced. In recognition of the special characteristics of fugitive dust-dominated areas, we believe an attainment demonstration based on proportional rollback of one or more microinventories is a reasonable approach and is consistent with EPA guidance, as long as the microinventory areas are representative of worst case conditions, and the resulting emission controls are applied throughout the area.

We have evaluated the five microinventory areas mentioned previously in this document and find that they contain varying source category mixes and span a range of conditions that occur in the Las Vegas Valley. By showing that the chosen microinventory areas are representative of conditions leading to PM-10 NAAQS exceedences, and by then applying the controls shown to be needed in these microareas to the entire nonattainment area, Clark County has followed an acceptable procedure for demonstrating attainment.

For demonstrating attainment of the annual and 24-hour PM-10 standards, the Clark County Plan relies on reductions in directly-emitted PM-10 from the following measures: Section 90 controls for disturbed vacant land, section 92 controls for unpaved parking lots, 46 section 94 (including Handbook) controls for construction sites, section 91 and government agency SIP commitment controls for unpaved roads, and section 93 and government agency SIP commitment controls for unpaved road shoulders (within the paved road dust category).

For the 24-hour attainment demonstration, Clark County models controlled valley-wide future concentrations for the years 2001 and 2006 as well as controlled 2006 concentrations at each of the five microscale sites. We have evaluated the emissions reductions credited to each measure in the attainment demonstrations to ensure they are reasonable. Three factors considered include:

1. Emissions reductions from controls applied ( e.g. percent reduction achieved through paving or chemical stabilization);

2. Rule penetration ( i.e. percentage of sources within the total source category that the rule or measure will impact); and

3. Rule effectiveness ( i.e. the expected rate of compliance with a rule or measure).

We find that the emission reduction estimates for each source category are consistent with available research on the applicable control methods, rule penetration estimates are reasonable based on emissions inventory data, and rule effectiveness estimates are reasonable given the schedule for adoption of measures and other factors. Emissions reductions credited based on these estimates are appropriately applied in the attainment demonstrations. For more information on the quantification of emission reductions, we refer to the TSD associated with this rulemaking.

We are also proposing that the measures relied on for attainment are being expeditiously implemented. Section 90, 91, 92, 93 and 94 requirements all applied well before adoption of the Clark County Plan in June 2001. While Clark County has revised the original SIP commitment deadline for adopting certain revisions to its fugitive dust regulations to March 31, 2003, these revisions provide incremental reductions above an already-adopted baseline that should achieve substantial immediate reductions. Therefore, we believe the extension is reasonable and does not impact our finding that the Plan provides for expeditious implementation of measures. Finally, Clark County's SIP commitment for hiring additional staff to implement and enforce fugitive dust controls was established with an expeditious timeframe for all positions to be filled by the end of 2001. Clark County has not only met, but exceeded this commitment.

CAA section 188(e) lists five additional factors that we may consider in deciding whether to grant an extension and the length of that extension. These include: (1) The nature and extent of the nonattainment problem; (2) the types and numbers of sources or other emitting activities in the area (including the influence of uncontrollable natural sources and international transport); (3) the population exposed to concentrations in excess of the standard; (4) the presence and concentration of potentially toxic substances in the mix of particulate emissions in the area; and (5) the technological and economic feasibility of various control measures.

In evaluating these factors, we have focused on the nature and extent of the nonattainment area problem, the types of sources contributing to the problem, and the ability of the County to control these sources. Fugitive dust sources dominate the emissions inventory in the Clark County PM-10 nonattainment area. Controls for these sources are well known (paving, wetting surfaces, etc.) and have been adopted; however, the number of sources and nature of sources make education, outreach and enhanced enforcement necessary to assure full compliance with those controls. In addition, costs for paving roads and stabilizing shoulders necessary to reduce PM-10 emissions are high and funds are only available over a number of years. These factors generally support a longer time frame for attainment.

Based on our review of the Clark County Plan and our proposed determination that it meets the requirements necessary for granting an extension of the attainment date under CAA section 188(e), we are proposing to grant a five-year extension of the attainment date for the 24-hour PM-10 standard in the Clark County PM-10 serious nonattainment area from December 31, 2001 to December 31, 2006.

CAA section 172(c)(2) requires nonattainment plans to provide for reasonable further progress (RFP). Section 171(1) of the Act defines RFP as “such annual incremental reductions in emissions of the relevant air pollutant as are required by this part (part D of title I) or may reasonable be required by the Administrator for the purpose of ensuring attainment of the applicable national ambient air quality standard by the applicable date.”

CAA section 189(c) also requires PM-10 plans demonstrating attainment to contain quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrate RFP. These quantitative milestones should consist of elements that allow progress to be quantified or measured. Addendum at 42016.

Clark County identified milestone achievement dates of 2003 and 2006 with respect tp the 24-hour standard. The milestones have been addressed by quantifying emission reductions which result from the implementation of the committed control measures after predicted growth has occurred. Emissions by 2003 are projected to be reduced substantially to 276.48 tons per day, with 77.23 additional tons per day reductions occurring between 2003 and 2006, resulting in 199.25 tons per day. Clark County indicates that total emissions under 210.70 tons per day should result in attainment of the 24-hour standard. RFP Reports are due at the end of 2003 and 2006, which correspond with Clark County's milestone achievement dates.

The milestones for the 24-hour standard are based on reasonable assumptions that are consistent with the implementation schedules for the measures in the plan and with the RFP demonstrations. For these reasons, we propose to find that the Plan meets the quantitative milestone requirement in CAA section 189(c)(1).

Section 172(c)(9) of the Clean Air Act requires that implementation plans provide for the implementation of specific measures to be undertaken if the area fails to make RFP or attain by its attainment deadline. These contingency measures are to take effect without further action by the State or the Administrator. The Act does not specify how many contingency measures are necessary nor does it specify the level of emission reductions they must produce.

The purpose of contingency measures is to ensure that additional emission reductions beyond those relied on in the attainment and RFP demonstrations are available if there is a failure to make RFP or attain by the applicable attainment date. These additional emission reductions will assure continued progress towards attainment while the SIP is being revised to fully correct the failure. To ensure this continued progress, we recommend that contingency measures provide emission reductions equivalent of one year's average increment of RFP. Addendum at 42016.

The following contingency measures were adopted by Clark County Health District Board of Health Resolution #03-00 on July 27, 2000.

1. Reduce the threshold for site-specific dust mitigation plan requirements for construction activities from ten acres to five acres;

2. Require paving/stabilization of all unpaved roads with ≥ 100 average daily vehicle trips;

3. Provide for at least two additional field enforcement officers above and beyond those staff increases committed to in the State Implementation Plan;

4. Increase minimum penalties for violations of Air Quality Regulations for fugitive dust; and

5. Reduce the size threshold for requiring a dust control monitor (coordinator) at construction sites.

Clark County describes that the entire set of contingency measures will be automatically implemented if Clark County fails to meet the projected 2003 emissions reduction milestone. We note that Clark County has already implemented Contingency Measure 3 for field enforcement officer staff increases above and beyond the staff increases committed to in the Plan. Clark County estimates the emissions reduction benefit from the contingency measures to be 1,373 tons per year in total. This annual reduction exceeds the annual average increment of RFP.

The contingency measures identified in the Plan have been adopted but are not credited in the attainment, RFP or milestone demonstrations for the 24-hour standard and are not necessary to demonstrate expeditious attainment of the standard.

Therefore, we propose to find that the Plan provides for the implementation of contingency measures for the 24-hour standard as required by CAA section 172(c)(9). This proposal is based on our analysis that these contingency measures comply with applicable CAA requirements and EPA policy.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this proposed action is also not subject to Executive Order 32111, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely approves state law as meeting federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq .). Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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). This rule also does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it have substantial direct effects 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the Clean Air Act. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq .).

Throughout this document whenever “we,” “us,” or “our” are used we mean the EPA.

The EPA is proposing to approve, as a revision to the SIP, the remaining portions of the Ohio Environmental Protection Agency's (OEPA) PSD provisions for attainment areas. EPA had previously conditionally approved Ohio's prior SIP submission on October 10, 2001 (66 FR 51570). Today's proposed final approval of EPA's original conditional approval is based on Ohio's July 18, 2002, submission of the revisions to the OAC. In its July 2002 submittal, Ohio also made additional revisions to OAC 3745-31-01, -02, -03, -05, and -07 that were not addressed in EPA's October 10, 2001 conditional approval.

Recently, EPA announced new regulations regarding changes to the preconstruction permit program under EPA's efforts regarding “New Source Review Reform”. See http://www.epa.gov/nsr/ . Today's approval of Ohio's SIP submission does not address EPA's new rules but is limited to portions of Ohio's preconstruction permit program under the existing rules. EPA is taking no position today on whether Ohio will need to make changes to its SIP to meet any requirements that EPA may promulgate as part of New Source Review Reform.

For additional information see the direct final rule published in the rules and regulations section of this Federal Register .

Regulated Entities. Categories and entities potentially regulated by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. To determine whether your facility is regulated by this action, you should examine the applicability criteria in § 63.9881 of the proposed rule. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Docket. The EPA has established an official public docket for this action under Docket ID No. OAR-2002-0043. The official public docket is the collection of materials that is available for public viewing in the Primary Magnesium Refining NESHAP Docket at the EPA Docket Center (Air Docket), EPA West, Room B108, 1301 Constitution Avenue, NW., Washington, DC 20460. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1744, and the telephone number for the Air and Radiation Docket is (202) 566-1742. A reasonable fee may be charged for copying docket materials.

Electronic Access. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or review public comments, access the index of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA dockets. Information claimed as confidential business information (CBI) and other information whose disclosure is restricted by statue, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. The EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in this document.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statue. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

Comments. You may submit comments electronically, by mail, by facsimile, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments submitted after the close of the comment period will be marked “late.” The EPA is not required to consider these late comments.

Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. The EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket and follow the online instructions for submitting comments. Once in the system, select “search” and then key in Docket ID No. OAR-2002-0043. The system is an anonymous access system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

Comments may be sent by electronic mail (e-mail) to air-and-r-docket@epa.gov, Attention Docket ID No. OAR-2002-0043. In contrast to EPA's electronic public docket, EPA's e-mail system is not an anonymous access system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket and made available in EPA's electronic public docket.

You may submit comments on a disk or CD ROM that you mail to the mailing address identified in this document. These electronic submissions will be accepted in Wordperfect or ASCII file format. Avoid the use of special characters and any form of encryption.

By Mail. Send your comments (in duplicate, if possible) to: Primary Magnesium Refining NESHAP Docket, EPA Docket Center (Air Docket), U.S. EPA West, Mail Code 6102T, Room B108, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. OAR-2002-0043.

By Hand Delivery or Courier. Deliver your comments (in duplicate, if possible) to: EPA Docket Center, U.S. EPA West, Mail Code 6102T, Room B108, 1301 Constitution Avenue, NW., Washington, DC 20004, Attention Docket ID No. OAR-2002-0043. Such deliveries are only accepted during the Docket Center's normal hours of operation as identified in this document.

By Facsimile. Fax your comments to: (202) 566-1741, Attention Primary Magnesium Refining NESHAP Docket, Docket ID No. OAR-2002-0043.

Do not submit information that you consider to be CBI through EPA's electronic public docket or by e-mail. Send or deliver information identified as CBI only to the following address: Ms. Lula Melton, c/o OAQPS Document Control Officer (C404-02), U.S. EPA, Research Triangle Park, NC 27711, Attention Docket ID No. OAR-2002-0043. You may claim information that you submit to EPA as CBI by marking any part or all of that information as CBI (if you submit CBI on disk or CD ROM, 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 CBI). Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

Public Hearing. Persons interested in presenting oral testimony or inquiring as to whether a hearing is to be held should contact Ms. Cassie Posey, Metals Group, Emission Standards Division (C439-02), Research Triangle Park, NC 27711, telephone number (919) 541-0069, in advance of the public hearing. Persons interested in attending the public hearing must also call Ms. Cassie Posey to verify the time, date, and location of the hearing. The public hearing will provide interested parties the opportunity to present data, views, or arguments concerning these proposed emission standards.

Worldwide Web (WWW). In addition to being available in the docket, an electronic copy of today's proposal will also be available on the WWW through the Technology Transfer Network (TTN). Following signature, a copy of this action will be posted on the TTN's policy and guidance page for newly proposed rules at http://www.epa.gov/ttn/oarpg. The TTN provides information and technology exchange in various areas of air pollution control. If more information regarding the TTN is needed, call the TTN HELP line at (919) 541-5384.

Outline. The information presented in this preamble is organized as follows:

Section 112 of the CAA requires us to list categories and subcategories of major sources and area sources of HAP and to establish NESHAP for the listed source categories and subcategories. The category of major sources covered by today's proposed NESHAP, Primary Magnesium Refining, was listed on July 16, 1992 (57 FR 31576). Major sources of HAP are those that emit or have the potential to emit greater than 10 tons/yr of any one HAP or 25 tons/yr of any combination of HAP.

Section 112 of the CAA requires that we establish NESHAP for the control of HAP from both new and existing major sources. The CAA requires the NESHAP to reflect the maximum degree of reduction in emissions of HAP that is achievable. This level of control is commonly referred to as the MACT.

The MACT floor is the minimum level allowed for NESHAP and is defined under section 112 (d)(3) of the CAA. In essence, the MACT floor ensures that the standard is set at a level that assures that all major sources achieve the level of control at least as stringent as that already achieved by the better-controlled and lower-emitting sources in each source category or subcategory. For new sources, the MACT floor cannot be less stringent than the emissions control that is achieved in practice by the best-controlled similar source. The MACT standards for existing sources cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources (for which we have emissions information) in the category or subcategory or by the best-performing five sources (for which we have or could reasonably obtain emissions information) for categories or subcategories with fewer than 30 sources.

In developing MACT, we also consider control options that are more stringent than the floor. We may establish standards more stringent than the floor based on the consideration of cost of achieving the emissions reductions, nonair quality health and environmental impacts, and energy impacts.

Section 112(c) of the CAA requires us to list all categories of major and area sources of HAP for which we will develop national emission standards. We published the initial list of source categories on July 16, 1992 (57 FR 31576). “Primary Magnesium Refining” is one of the source categories on the initial list. The listing was based on our determination that primary magnesium refining facilities may reasonably be anticipated to emit a variety of HAP listed in section 112(b) in quantities sufficient to be major sources.

The source category is comprised of one plant, US Magnesium Corporation located in Rowley, Utah. The plant produces magnesium from brine (salt water) taken from the Great Salt Lake. The production process concentrates the magnesium salts in the brine, then processes the brine to remove impurities that would affect metal quality. After the brine solution is converted to a powder mixture of magnesium chloride (MgCl 2 ) and magnesium oxide in the spray dryers, the powder is conveyed to the melt/reactors. The melt/reactors melt the powder mixture and convert the remaining magnesium oxide to magnesium chloride by injecting chlorine into the molten salt. The purified molten salt is then transferred to the electrolytic cells where the molten magnesium chloride salt is separated into magnesium metal and chlorine by electrolysis. The electrolysis process passes a direct electric current through the molten magnesium chloride, causing the dissociation of the salt and results in the generation of chlorine gas and magnesium metal. The magnesium metal is then transferred to the foundry for casting into ingots for sale. The chlorine produced is piped to a chlorine plant where it is liquefied for reuse or sale.

The HAP emitted from the primary magnesium refining process are chlorine, hydrochloric acid, dioxin/furan, and trace amounts of HAP metals. Emission controls include various combinations of wet scrubbers (venturi and packed-bed) for acid gas and particulate matter (PM) control.

Chlorine is emitted from the melting and purification of reactor cell product and is controlled by conversion to hydrochloric acid in the chlorine reduction burner and subsequent absorption of the hydrochloric acid in venturi and packed-bed scrubber. Using these control technologies, upwards of 99.9 percent control of chlorine is achieved. The electrowinning of the melted magnesium chloride to magnesium metal produces as a by-product chlorine gas which is recovered at the chlorine plant. When the chlorine plant is inoperable, the chlorine produced at the electrolytic cells is routed to a series of packed-bed scrubbers which use ferrous chloride as the adsorbing medium.

Hydrochloric acid is emitted from the spray drying and storage of magnesium chloride powder and the melting and purification of reactor cell product prior to the electrowinning process. Hydrochloric acid emissions are controlled by venturi and packed-bed scrubbers.

Dioxin/furan are generated in the melt reactor and are subject to incidental control by the chlorine reduction burner and wet scrubbers used to control chlorine, hydrochloric acid (HCl), and PM.

Acute (short-term) exposure to high levels of chlorine in humans can result in chest pain, vomiting, toxic pneumonitis, and pulmonary edema. At lower levels, chlorine is a potent irritant to the eyes, the upper respiratory tract, and lungs. Chronic long-term exposure to chlorine gas in workers has resulted in respiratory effects including eye and throat irritation and airflow obstruction. Animal studies have reported decreased body weight gain, eye and nose irritation, non-neoplastic nasal lesions, and respiratory epithelial hyperplasia from chronic inhalation exposure to chlorine. No information is available on the carcinogenic effects of chlorine in humans from inhalation exposure. We have not classified chlorine for potential carcinogenicity.

Hydrochloric acid is corrosive to the eyes, skin, and mucous membranes. Acute inhalation exposure may cause eye, nose and respiratory tract irritation and inflammation and pulmonary edema in humans. Chronic occupational exposure to HCl has been reported to cause gastritis, bronchitis, and dermatitis in workers. Prolonged exposure to low concentrations may cause dental discoloration and erosion. No information is available on the reproductive or developmental effects of hydrochloric acid to humans. In rats exposed to hydrochloric acid by inhalation, altered estrus cycles have been reported in females and increased fetal mortality and decreased fetal weight have been reported in offspring. We have not classified hydrochloric acid for carcinogenicity.

There are a variety of metal HAP contained in the PM emitted from the primary magnesium refining process. The principal HAP metals emitted include trace quantities of phosphorous and manganese. Health effects in humans have been associated with both deficiencies and excess intakes of manganese. Chronic exposure to low levels of manganese in the diet is considered to be nutritionally essential in humans, with a recommended daily allowance of 2 to 5 milligrams per day. Chronic exposure to high levels of manganese by inhalation in humans results primarily in central nervous system effects. Visual reaction time, hand steadiness, and eye-hand coordination were affected in chronically-exposed workers. Manganism, characterized by feelings of weakness and lethargy, tremors, a mask-like face, and psychological disturbances, may result from chronic exposure to higher levels. Impotence and loss of libido have been noted in male workers afflicted with manganism attributed to inhalation exposures. We have classified manganese in Group D, not classifiable as to carcinogenicity in humans.

Organic HAP such as chlorinated dibenzodioxins and furans (CDD/F) have been detected in the melt/reactor exhaust. One CDD/F compound, 2,3,7,8-tetrachlorodibenzo-p-dioxin (2,3,7,8-TCDD), commonly called dioxin) is listed singly as a HAP. Other CDD/F compounds, many of which cause adverse health effects in the same way as dioxin, are HAP under the definition of polycyclic organic matter. Exposure to CDD/F mixtures causes chloracne, a severe acne-like condition and has been shown to be extremely toxic in animal studies. Dioxin is known to be a developmental toxicant in animals causing skeletal deformities, kidney defects, and weakened immune responses in the offspring of animals exposed during pregnancy. Human studies have shown an association between dioxin and soft-tissue sarcomas, lymphomas, and stomach carcinomas. We have classified dioxin as a probable human carcinogen (Group B2).

In addition to HAP, the proposed rule would also reduce particulate matter emissions which are controlled under national ambient air quality standards. Brief exposure to particulate matter has caused aggravation of existing respiratory and cardiovascular disease and increased risk of premature death.

We recognize that the degree of adverse effects to health experienced by exposed individuals can range from mild to severe. The extent and degree to which the health effects may be experienced depends on:

• Pollutant-specific characteristics ( e.g. , toxicity, half-life in the environment, bioaccumulation, and persistence);

• The ambient concentrations observed in the area ( e.g. , as influenced by emission rates, meteorological conditions, and terrain);

• The frequency and duration of exposures; and

• Characteristics of exposed individuals ( e.g. , genetics, age, preexisting health conditions, and lifestyle), which vary significantly with the population.

The affected source is each new or existing primary magnesium refinery. A new affected source is one constructed or reconstructed after January 22, 2003. An existing affected source is one constructed or reconstructed on or before January 22, 2003. The proposed rule covers emissions from spray dryers, the melt reactor system, the launder off gas system, and magnesium chloride storage bins.

The owner or operator of an existing affected source would have to comply by [DATE 12 MONTHS AFTER THE FINAL RULE IS PUBLISHED IN THE Federal Register ]. New or reconstructed sources that startup on or before [DATE THE FINAL RULE IS PUBLISHED IN THE Federal Register ] must comply by [DATE THE FINAL RULE IS PUBLISHED IN THE Federal Register ]. New or reconstructed sources that startup after [DATE THE FINAL RULE IS PUBLISHED IN THE Federal Register ] must comply upon initial startup.

The proposed rule includes mass rate emission limits in pounds per hour (lbs/hr) for chlorine, hydrochloric acid, PM, and PM 10 . The emission limits are shown in Table 1 of this preamble.

The proposed rule also includes emission limits for dioxin/furan expressed in nanograms of toxicity equivalents per dry standard cubic meter (ng TEQ/dscm) corrected to 7 percent oxygen. Dioxins/furans include a group of 17 chemicals or congeners that share certain similar chemical structures and biological characteristics. The 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin congener is the most well studied and the most toxic of these compounds. Scientists believe that dioxins cause effects in similar ways. Because of this and because exposure is typically to variable mixtures of dioxin-like compounds, we use toxicity equivalency factors (TEF) that compare the potential toxicity of each of the individual dioxin-like compounds to the relative toxicity of 2, 3, 7, 8-tetrachlorodibenzo-p-dioxin. With such factors, the toxicity for a mixture can be expressed in terms of its Toxicity Equivalents (TEQ), which is the amount of TCDD it would take to equal the combined toxic effect of all the dioxin-like compounds found in the mixture. To calculate the TEQ, the concentration of each dioxin-like compound is multiplied by its respective TEF.

All plants subject to the proposed rule would be required to prepare and implement a written startup, shutdown, and malfunction plan according to the requirements in § 63.6(e) of the NESHAP General Provisions. All plants must establish and meet operating limits for pressure drop and scrubber water flow rate. A written operation and maintenance plan is also required for control devices subject to an operating limit. The plan must describe procedures for monthly inspections and preventative maintenance requirements for control devices.

The proposed rule requires a performance test for each control device to demonstrate initial compliance with the applicable emission limits of chlorine, hydrochloric acid, PM, PM 10 , and dioxin/furan. The EPA Method 26 or 26A in 40 CFR part 60, appendix A is the reference method for chlorine and hydrochloric acid. The reference method for PM is EPA Method 5 or 5D in 40 CFR part 60, appendix A. The reference method for PM 10 is EPA Method 201 in 40 CFR part 60, appendix A. The EPA Method 23 of 40 CFR part 60, appendix A is the reference method for dioxin/furan. The proposed rule would also require owners/operators to establish operating limits for scrubber pressure drop and scrubber water flow rate concurrent with the performance of the initial compliance tests.

The proposed rule would require primary magnesium refineries to conduct performance tests at least twice during each title V operating permit term (at midterm and renewal) to demonstrate continuous compliance with the emission limits. Plants would also be required to monitor operating parameters for control devices subject to operating limits and carry out the procedures in their operation and maintenance plan.

For wet scrubbers, plants would be required to use continuous parameter monitoring systems (CPMS) to measure and record the hourly average pressure drop and scrubber water flow rate. To demonstrate continuous compliance, plants would keep records documenting conformance with the monitoring requirements and the installation, operation, and maintenance requirements for CPMS.

We selected the proposed notification, recordkeeping, and reporting requirements to be consistent with the NESHAP General Provisions (40 CFR part 63, subpart A). One-time notifications are required by EPA to know what facilities are subject to the standards, if a facility has complied with the proposed rule requirements, and when certain events such as performance tests and performance evaluations are scheduled. Semiannual compliance reports containing information on any deviation from the proposed rule requirements are also required. These reports would include information on any deviation that occurred during the reporting period; if no deviation occurred, only summary information would be required. Consistent with the NESHAP General Provisions (40 CFR part 63, subpart A), we also require an immediate report of any startup, shutdown, or malfunction where the actions taken in response were not consistent with the startup, shutdown, and malfunction plan. This information is needed to determine if changes need to be made to the plan. Records would be required of information needed to document compliance with the rule requirements. These notifications, reports, and records are the minimum needed to ensure initial and continuous compliance.

Affected source means the collection of equipment, activities, or both within a single contiguous area and under common control that is included in a CAA section 112(c) source category or subcategory for which a CAA section 112(d) standard or other relevant standard is established pursuant to CAA section 112. The affected source may be the same collection of equipment and processes as the source category or it may be a subset of the source category. For each rule, we decide which individual pieces of equipment and processes warrant separate standards in the context of the CAA section 112 requirements and the industry operating practices.

We considered three different approaches for designating the affected source: the entire primary magnesium refinery, groups of emission points, and individual emission points. In selecting the affected sources for the proposed rule, we identified the HAP-emitting operations, the HAP emitted, and the quantity of HAP emissions from the individual or groups of emission points. We concluded that designating the entire primary magnesium refinery as the affected source is the most appropriate approach. This conclusion is consistent with the requirements for defining affected source provided in § 63.2 of the General Provisions. The major emission points include each spray dryer, magnesium chloride storage bin, melt/reactor, and launder off-gas system. Therefore, the proposed rule includes requirements for the control of emissions from each spray dryer, magnesium chloride storage bin, melt/reactor, and launder off-gas system.

The proposed standards would establish emission limits for chlorine, hydrochloric acid, PM, PM 10 , and dioxin/furan. Particulate matter was selected as a surrogate for HAP metal emissions which account for less than one-tenth of one percent of total PM emissions. The principal HAP metals emitted include trace quantities of phosphorous, manganese, and chromium, with lesser quantities of arsenic, antimony, and mercury. With the exception of elemental mercury, metal HAP emissions, when released, are a constituent of total PM. As a result, control technologies applied for PM control will coincidentally achieve comparable levels of control of these pollutants. Standards requiring good control of PM emissions will also achieve good control of metal HAP emissions. Establishing separate standards for these individual HAP would result in no additional reductions beyond that achieved using PM as a surrogate pollutant.

Given that the US Magnesium refinery generates about three pounds of chlorine to each pound of magnesium produced, chlorine and hydrochloric acid are by far the most significant HAP pollutants potentially emitted from primary magnesium refining. As such, both chlorine and hydrochloric acid were selected for the proposed rule.

Lastly, the proposed rule would establish a separate emission limit for dioxin/furan discharged from the melt/reactor stack because of the high toxicity associated with very low exposures to these compounds and their persistence and bioaccumulative effects in the environment.

Since there is only one primary magnesium refinery in the source category, the MACT floor for both existing and new sources is established by the performance of each emissions control system operating at that source. We do not anticipate the construction of any new sources in this source category. The State of Utah, Department of Environmental Quality (UDEQ) issued a title V operating permit dated October 11, 2001 for US Magnesium Corporation. The permit contains emission limitations for chlorine, hydrochloric acid, PM, and PM 10 established by the UDEQ. The permit does not contain limits for dioxin/furan.

We conducted our own independent assessment of the emissions test data and concluded that the emission limitations established in the source's title V operating permit are appropriate and achievable. Although the limited test results indicate the permit limits are achievable, the data also show that the plant is not significantly overachieving the limits. Therefore, we believe that the permit limits reasonably approximate actual emissions and performance and present an accurate picture of the level of control achieved by the best performing source.

An underlying presumption when setting MACT standards is that all emission limitations must be complied with at all times. Consequently, when establishing MACT floors and ultimately a MACT standard, we must consider the long-term variability in performance expected to occur under reasonable worst-case conditions. We must assure that an ensuing standard reflects the level of emission control determined to be MACT. We must also assure that the standard is achievable under normal and recurring worst-case circumstances.

As part of our development of the proposed MACT standard, we assessed the viability of requiring additional or different control equipment to obtain beyond-the-floor emissions reductions. Each control system on the four emission points ( i.e. , spray dryer stack, magnesium chloride storage bin stack, melt/reactor system stack, and launder off-gas system stack) was evaluated to see if it was the best control equipment to achieve the maximum amount of reduction of chlorine, hydrochloric acid, PM, PM 10 , and dioxin/furan. For all four emission points, US Magnesium uses wet scrubbers (packed-bed and venturi scrubbers) to achieve the emission limits. We concluded that wet scrubbing systems are the most appropriate and practical control systems for chlorine, hydrochloric acid, PM, PM 10 , and dioxin/furan and that there is no other control equipment or methods of control that would be more effective for reducing their emissions taking into consideration cost and feasibility. Therefore, we determined that the emission limitations at the MACT floors also represent MACT.

We also propose that the source prepare and operate according to a fugitive dust emission control plan that describes in detail the measures that will be put in place to control fugitive dust emissions from all unpaved roads and other unpaved operational areas. The existing fugitive dust emission control plan that has been approved as part of the source's title V permit would be acceptable.

There are three spray dryers in the source category. The exhaust gas from each is controlled by two venturi scrubbers followed by a packed-bed scrubber. All three dryers are subject to Utah's PM emission limit of 100 lbs/hr. Each test was conducted according to EPA Method 5, and, as far as we know, under normal and representative operating conditions.

We have seven PM emission tests for the three dryers. Dryers 01 and 03 were tested in May 1997; dryers 01 and 02 were tested in December 1997; and all three dryers were tested in June 2002. The May 1997 test includes seven runs, and the other two tests include three runs each. The test results of all seven tests range from 25 to 53 lbs/hr. The average and median values are 37 lbs/hr and 36 lbs/hr, respectively.

We evaluated the existing State PM emission limit as an option for establishing the MACT floor. The test results recorded range from about one-fourth to one-half of the standard and average a little more than one-third of the standard. Considering that a reasonable margin of safety is necessary to assure continuous compliance, the existing State limit of 100 lbs/hr appears to be a reasonable proxy of actual performance, and as such, is appropriate for establishing the MACT floor. We have, therefore, determined the MACT floor for spray dryers to be the level of control indicated by the existing State limit of 100 lbs/hr of PM.

All three dryers are subject to Utah's hydrochloric acid emission limit of 200 lbs/hr. We have seven hydrochloric acid emission tests conducted according to EPA Method 26A for the three dryers. Dryers 01 and 03 were tested in May 1997; dryers 01 and 02 were tested in December 1997; and all three dryers were tested in June 2002. The May 1997 test included seven runs, and the other two tests included three runs each. Again, as far as we can determine, each test was performed under normal and representative conditions. The test results of all seven tests range from 51 to 82 lbs/hr and average 68 lbs/hr. The median value is also 68 lbs/hr.

We evaluated the existing State hydrochloric acid emission limit as an option for establishing the MACT floor. The test results recorded range from about one-fourth to almost one-half of the standard and average about one-third of the standard. Considering that a reasonable margin of safety is necessary to assure continuous compliance, the existing State limit of 200 lbs/hr appears to be a reasonable proxy of actual performance, and as such, is appropriate for establishing the MACT floor. We have, therefore, determined the MACT floor for spray dryers to be the level of control indicated by the existing State limit of 200 lbs/hr of hydrochloric acid.

We next examined possibilities for beyond-the-floor options. We concluded that the current multi-stage wet scrubbing system is the best available control technology for the removal of hydrochloric acid and particulate matter contained in the spray dryer discharge. Therefore, we have selected the mass rate emission limits established in the source's title V operating permit as MACT for both new and existing spray dryers.

Magnesium chloride powder from the spray dryers is pneumatically conveyed to storage bins. The exhaust air from the conveyor contains particle matter and low levels of hydrochloric acid. The exhaust gases are directed to vertical packed-bed scrubbers where hydrochloric acid and particulate matter are removed.

The source's title V operating permit limits hydrochloric acid to 47.5 lbs/hr and PM 10 to 2.7 lbs/hr. Packed bed scrubbers are used to achieve these emission limits. We do not have any emissions test data for this emission point. As such, we decided to adopt the source's title V operating permit limits for PM 10 and hydrochloric acid. Emissions testing was recently conducted on the magnesium chloride storage bins, and we expect test results within a few weeks of publishing the proposed rule. This data will be added to the public docket as soon as we receive it, and we will consider the data and public comments prior to publication of the final rule.

We evaluated this wet scrubbing system for any potential beyond-the-floor control technology and concluded that the packed-bed scrubber system is the best available control technology for the removal of hydrochloric acid and particulate matter. Thus, we adopted the emission limits established in the source's title V operating permit as MACT.

The melt/reactor system melts and chlorinates dehydrated brine powder to produce high purity molten magnesium chloride feed for electrolysis. The melt/reactor off-gases are cooled in a quench tower and then enter a venturi scrubber where PM is removed. The off-gases are then directed to the chlorine reduction burner where they are combined with tail gases from the chlorine plant and burned with natural gas to form hydrochloric acid.

The gases exit the chlorine reduction burner and enter a scrubber train where hydrochloric acid is recovered. The train consists of three packed bed scrubbers in series followed by a venturi scrubber.

We have two PM 10 emission tests for the melt/reactor which were conducted in May 1995 and May 2000. Both tests were conducted in accordance with EPA Method 201, and as far as we can determine, each test was performed under normal and representative operating conditions. The test results range from 2.1 to 5.7 lbs/hr and average 3.9 lbs/hr.

We evaluated the existing State limit as an option for establishing the MACT floor. The test results average about one-third of the standard. Considering that a reasonable margin of safety is necessary to assure continuous compliance, the existing State limit of 13.1 lbs/hr appears to be a reasonable proxy of actual performance, and as such, is appropriate for establishing the MACT floor. We have, therefore, determined the MACT floor for the melt/reactor to be the level of control indicated by the existing State limit of 13.1 lbs/hr of PM 10 .

We have two hydrochloric acid emission tests for the melt/reactor. The tests were conducted in May 1995 and May 2000 in accordance with Method 26A. We believe that each test was performed under normal and representative operating conditions. The May 1995 test results average 3.2 lbs/hr, and the May 2000 test results average 2.8 lbs/hr. We evaluated the existing State limit as an option for establishing the MACT floor. A comparison of the State limit of 7.2 lbs/hr to the actual hydrochloric acid emissions data indicates that the State limit is a reasonable proxy of actual performance, and as such, is appropriate for establishing the MACT floor. Consequently, we determined the MACT floor for the melt/reactor to be the level of control indicated by the existing State limit of 7.2 lbs/hr of hydrochloric acid.

We have two chlorine emission tests for the melt/reactor. The test were conducted in May 1995 and May 2000 in accordance with EPA Method 26. The May 1995 test results average 21 lbs/hr, and the May 2000 test results average 50 lbs/hr. Again, we believe that each test was performed under normal and representative operating conditions. We evaluated the existing State limit as an option for establishing the MACT floor. A comparison of the State limit of 100 lbs/hr to the actual chlorine emissions data indicates that the State limit is a reasonable proxy of actual performance, and as such, is appropriate for establishing the MACT floor. Therefore, we determined the MACT floor for the melt/reactor to be the level of control indicated by the existing State limit of 100 lbs/hr of chlorine.

We have source test data on dioxin/furan emissions from the melt/reactor stack which indicates total dioxin/furan emissions on the order of 80 grams per year (g/year) and emissions expressed in terms of TEQ of less than 3 g/year. The current title V operating permit includes no limitations on the emissions of dioxin/furan or any surrogate pollutant.

As previously stated, emission controls applied to the melt/reactor discharge include three packed bed scrubbers in series followed by a venturi scrubber for the control of hydrochloric acid and PM. Although not installed specifically for dioxin/furan control, we believe that some incidental control of dioxin/furan is in fact achieved by these scrubbers and that the floor level of control is represented by the available information on actual emissions. Specifically, we have data on two tests conducted in March of 1998 and May of 2000. Each test is comprised of three test runs conducted in accordance with EPA Method 23. 1 The 1998 TEQ test results range from 12.0 to 25.2 ng/dscm corrected to 7 percent oxygen and average 19 ng/dscm corrected to 7 percent oxygen. The 2000 TEQ results range from 10.4 to 35.9 ng/dscm corrected to 7 percent oxygen and average 24 ng/dscm corrected to 7 percent oxygen. The precision evidenced in the two tests, suggests that the variability due to process variations and control device performance is narrow, with the average results of both tests within ±20 percent. We chose the highest of the individual runs, i.e. , 36 ng TEQ/dscm corrected to 7 percent oxygen as a representative value of the performance level that can be achieved. Thus, we have chosen 36 ng TEQ/dscm as the MACT floor. The source plans to conduct additional emissions testing in the near-term. We expect the testing to occur between proposal and promulgation. In determining the final standard for dioxin/furan, we will consider the results of the new test in addition to public comments that we receive.

We evaluated this multi-stage scrubbing system for any potential improvement to go beyond-the-floor. We concluded that the current scrubbing system is the best control option for removal of chlorine, hydrochloric acid, and PM 10 . For dioxin/furan, we examined a beyond-the-floor alternative, and determined that the next increment of control beyond-the-floor is the installation of a baghouse equipped with a catalytic filter that destroys gaseous dioxins and furans. We estimate the additional capital cost of adding baghouses to be $650,000 and the total annualized cost to be $390,000 per year. We estimate the emissions reductions to be 2.4 grams per year resulting in a cost per gram of total dioxin/furan reduction of $163,865. We believe that the high cost, coupled with the small reduction in dioxin/furan emissions, does not justify the beyond-the-floor alternative at this time. Consequently, we chose the floor level of control of 36 ng TEQ/dscm as MACT.

The launder off-gas system (LOG) collects fugitive emissions from the melt reactor area ( i.e. hoods and launders). The collected fugitive gases enter a horizontally aligned packed scrubber where chlorine, hydrochloric acid, and particulate matter are removed by scrubbing with water. The LOG scrubbed gases are exhausted to the atmosphere, and the scrubber water is returned to the waste water collection system.

We have three PM emission tests for the launder off-gas system. The launder off-gas system was tested in August 1993, July 1998, and January 1999 using EPA Method 5, and as far as we know, under normal and representative operating conditions. The test results of the three tests range from 2.6 to 19.1 lbs/hr and average 7.0 lbs/hr.

We evaluated the existing State PM emission limit as an option for establishing the MACT floor. We compared the State limit of 37.5 lbs/hr to the actual PM emissions data. Considering that a reasonable margin of safety is necessary to assure continuous compliance, the existing State limit of 37.5 lbs/hr appears to be a reasonable proxy of actual performance, and as such, is appropriate for establishing the MACT floor. Therefore, we determined the MACT floor for the launder off-gas system to be the level of control indicated by the existing State limit of 37.5 lbs/hr of PM.

We have three hydrochloric acid emission tests for the launder off-gas system. The launder off-gas system was tested in August 1993, July 1998, and January 1999 using EPA Method 26A. We believe that the tests were performed under normal and representative operating conditions. The test results of the three tests range from 6.84 to 32.6 lbs/hr and average 15.6 lbs/hr.

We evaluated the existing State hydrochloric acid emission limit as an option for establishing the MACT floor. Considering that a reasonable margin of safety is necessary to assure continuous compliance, the existing State limit of 46.0 lbs/hr appears to be a reasonable proxy of actual performance, and as such, is appropriate for establishing the MACT floor.

Consequently, we determined the MACT floor for the launder off-gas system to be the level of control indicated by the existing State limit of 46.0 lbs/hr of hydrochloric acid.

We have three chlorine emission tests for the launder off-gas system. The launder off-gas system was tested in August 1993 and January 1999 using EPA Method 26. We believe the tests were performed under normal and representative operating conditions. The test results of the three tests range from 16.6 to 25.9 lbs/hr and average 19.9 lbs/hr.

We evaluated the existing State chlorine emission limit as an option for establishing the MACT floor. Considering that a reasonable margin of safety is necessary to assure continuous compliance, the existing State limit of 26.0 lbs/hr appears to be a reasonable proxy of actual performance, and as such, is appropriate for establishing the MACT floor. Consequently, we determined the MACT floor for the launder off-gas system to be the level of control indicated by the existing State limit of 26.0 lbs/hr of chlorine.

We evaluated potential beyond-the-floor options and concluded that the existing scrubber is the best available control technology for the removal of chlorine, hydrochloric acid, and PM contained in the launder off-gas system discharge. Therefore, we selected the emission limits established in the source's title V operating permit as MACT.

The proposed rule requires a performance test for each control device to demonstrate initial compliance with the applicable PM, PM 10 , chlorine and hydrochloric acid limits using the specified testing methods in 40 CFR part 60, appendix A. We have also specified procedures to ensure that control equipment is operating properly for initial compliance. Venturi scrubbers and packed-bed scrubbers must be monitored for scrubber water flow rate and pressure drop. If a facility uses controls other than wet scrubbers or packed-bed scrubbers to control emissions from an affected source, the owner or operator would be required to send us a monitoring plan containing information on the type of device, performance test results, appropriate operating parameters to be monitored, operating limits, and operation and maintenance.

For continuous compliance, we chose periodic performance testing for PM, PM 10 , chlorine, hydrochloric acid, and dioxin/furan which is consistent with current permit requirements. In general, performance tests are repeated every 2.5 to 5 years, depending on the magnitude of the source. Consequently, we decided that performance tests should be repeated no less frequently than twice per permit term of a source's title V operating permit (at mid-term and renewal).

We also specified procedures to ensure that control equipment is operated properly on a continuous basis. Venturi scrubbers and packed-bed scrubbers must be monitored for pressure drop and scrubber water flow rate. If a facility uses controls other than wet scrubbers to control emissions from an affected source, the owner or operator would be required to send us a monitoring plan containing information on the type of device, performance test results, appropriate operating parameters to be monitored, operating limits, and operation and maintenance.

We selected the notification, recordkeeping, and reporting requirements to be consistent with the NESHAP General Provisions (40 CFR part 63, subpart A). One-time notifications are required by EPA to know what facilities are subject to the standard, if a facility has complied with the rule requirements, and when certain events such as performance tests and performance evaluations are scheduled. Semiannual compliance reports containing information on any deviation from the proposed rule requirements are also required. These reports would include information on any deviation that occurred during the reporting period; if no deviation occurred, only summary information would be required. Consistent with the NESHAP General Provisions (40 CFR part 63, subpart A), we also require an immediate report of any startup, shutdown, or malfunction where the actions taken in response were not consistent with the startup, shutdown, and malfunction plan. This information is needed to determine if changes to the plan need to be made. Records would be required of information needed to document compliance with the proposed rule requirements. These notifications, reports, and records are the minimum needed to ensure initial and continuous compliance.

Generally, we do not expect the impacts of the proposed rule to be very significant. Currently, the one operating refinery has all of the required air pollution control equipment in place and operating. The only impacts will be the estimated cost of $48,000 for the additional monitoring, recordkeeping and reporting requirements required by the proposed rule.

We seek full public participation in arriving at final decisions and encourage comments on all aspects of the proposed rule from all interested parties. You need to submit full supporting data and detailed analysis with your comments to allow us to make the best use of them. Be sure to direct your comments to the Air and Radiation Docket and Information Center, Docket No. OAR-2002-0043 ( see ADDRESSES ).

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the EPA must determine whether the regulatory action is “significant” and, therefore, subject to review by the Office of Management and Budget (OMB) and the requirements of the Executive Order. The Executive Order defines a “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

Pursuant to the terms of Executive Order 12866, it has been determined that the proposed rule is not a “significant regulatory action” because none of the listed criteria apply to this action. Consequently, the proposed rule was not submitted to OMB for review under Executive Order 12866.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects 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.” Under Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. The EPA also may not issue a regulation that has federalism implications and that preempts State law unless the EPA consults with State and local officials early in the process of developing the proposed regulation.

If EPA complies by consulting, Executive Order 13132 requires EPA to provide to OMB, in a separately identified section of the preamble to the rule, a federalism summary impact statement (FSIS). The FSIS must include a description of the extent of EPA's prior consultation with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State and local officials have been met. Also, when EPA transmits a draft final rule with federalism implications to OMB for review pursuant to Executive Order 12866, EPA must include a certification from the Agency's Federalism Official stating that EPA met the requirements of Executive Order 13132 in a meaningful and timely manner.

The proposed rule does not have federalism implications. None of the affected facilities are owned or operated by State governments, and the proposed rule would not preempt any State laws that are more stringent. Therefore, it will not have substantial direct effects 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, as specified in Executive Order 13132. In addition, the proposed rule is required by statute and, if implemented, will not impose any substantial direct compliance costs. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.”

The proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus Executive order 13175 does not apply to the proposed rule.

In the spirit of Executive Order 13175 and consistent with EPA policy to promote communications between EPA and tribal governments, EPA specifically solicits additional comment on the proposed rule from tribal officials.

Executive Order 13045 (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant,” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the EPA must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This proposed rule is not subject to Executive Order 13045 because it is technology based and not based on health or safety risks. No children's risk analysis was performed because no alternative technologies exist that would provide greater stringency at a reasonable cost. Further, the proposed rule has been determined not to be “economically significant” as defined under Executive Order 12866.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, the EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any 1 year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires the EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least-burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the EPA to adopt an alternative other than the least-costly, most cost-effective, or least-burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before the EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

The EPA has determined that the proposed rule does not contain a Federal mandate that may result in estimated costs of $100 million or more to either State, local, or tribal governments, in the aggregate, or to the private sector in any 1 year. The maximum total annual cost of the proposed rule for any year has been estimated to be less than $48,000. Thus, today's proposed rule is not subject to sections 202 and 205 of the UMRA. In addition, the EPA has determined that the proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments because it contains no requirements that apply to such governments or impose obligations upon them. Therefore, today's proposed rule is not subject to the requirements of section 203 of the UMRA.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's proposed rule on small entities, small entity is defined as: (1) A small business according to Small Business Administration (SBA) size standards for NAICS code 331419 ( i.e. , Primary Magnesium Refining) of 1,000 or fewer employees; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

Based on the above definition of small entities, the Agency has determined that there are no small businesses within this source category that would be subject to the proposed rule. Therefore, because the proposed rule will not impose any requirements on small entities, EPA certifies that this action will not have a significant economic impact on a substantial number of small entities.

The information collection requirements in the proposed rule will be submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. An information collection request (ICR) document has been prepared by EPA (ICR No. 2098.01), and a copy may be obtained from Susan Auby by mail at the Office of Environmental Information, Collection Strategies Division (2822), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, by e-mail at auby.susan@epa.gov, or by calling (202) 566-1672. A copy also may be downloaded off the Internet at http://www.epa.gov/icr. The information requirements are not effective until OMB approves them.

The information requirements are based on notification, recordkeeping, and reporting requirements in the NESHAP General Provisions (40 CFR part 63, subpart A), which are mandatory for all operators subject to NESHAP. These recordkeeping and reporting requirements are specifically authorized by section 112 of the CAA (42 U.S.C. 7414). All information submitted to the EPA pursuant to the recordkeeping and reporting requirements for which a claim of confidentiality is made is safeguarded according to Agency policies in 40 CFR part 2, subpart B.

The proposed rule would require applicable one-time notifications required by the NESHAP General Provisions (40 CFR part 63, subpart A) for each affected source. As required by the NESHAP General Provisions (40 CFR part 63, subpart A), all plants would be required to prepare and operate by a startup, shutdown, and malfunction plan. Plants also would be required to prepare an operation and maintenance plan for capture systems and control devices subject to operating limits. Records would be required to demonstrate continuous compliance with the monitoring, operation, and maintenance requirements for capture systems, control devices, and monitoring systems. Semiannual compliance reports also are required. These reports would describe any deviation from the standards, any period a continuous monitoring system was out-of-control, or any startup, shutdown, or malfunction event where actions taken to respond were inconsistent with startup, shutdown, and malfunction plan. If no deviation or other event occurred, only a summary report would be required. Consistent with the NESHAP General Provisions (40 CFR part 63, subpart A), if actions taken in response to a startup, shutdown, or malfunction event are not consistent with the plan, an immediate report must be submitted within 2 days of the event with a letter report 7 days later.

The annual public reporting and recordkeeping burden for this collection of information averaged over the first 3 years after [DATE THE FINAL RULE IS PUBLISHED IN THE Federal Register ] is estimated to total 731 labor hours per year at a total annual cost of $43,289, including labor, capital, and operation and maintenance.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purpose of collecting, validating, and verifying information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to respond to a collection of information; search existing data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control number for EPA's regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

Comments are requested on the EPA's need for this information, the accuracy of the burden estimates, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques. Send comments on the ICR to the Director, Collection Strategies Division (2822), U.S. Environmental Protection Agency (2136), 1200 Pennsylvania Avenue, NW., Washington, DC 20460; and to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, marked “Attention: Desk Officer for EPA.” Include the ICR number in any correspondence. Because OMB is required to make a decision concerning the ICR between 30 and 60 days after January 22, 2003, a comment to OMB is best assured of having its full effect if OMB receives it by February 21, 2003. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note), directs EPA to use voluntary consensus standards in their regulatory and procurement activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (such as material specifications, test methods, sampling procedures, business practices) developed or adopted by one or more voluntary consensus standard bodies. The NTTAA directs EPA to provide Congress, through annual reports to OMB, with explanations when an agency does not use available and applicable voluntary consensus standards.

The proposed rule involves technical standards. The EPA proposes to use EPA Methods 1, 2, 2F, 2G, 3, 3A, 3B, 4, 5, 5D, 26, 26A, and 210 in 40 CFR part 60, appendix A. We conducted searches to identify voluntary consensus standards in addition to these EPA methods. No applicable voluntary consensus standards were identified for EPA Methods 2F, 2G, 5D, 26, 26A and 201. The search and review results have been documented and placed in Docket OAR-2002-0043.

The EPA invites comment on the compliance demonstration requirements in the proposed rule and specifically invites the public to identify potentially-applicable voluntary consensus standards. Commenters should also explain why the proposed rule should adopt these voluntary consensus standards in lieu of or in addition to EPA's standards. Emission test methods and performance specifications submitted for evaluation should be accompanied with a basis for the recommendation, including method validation data.

The proposed rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

For the reasons stated in the preamble, title 40, chapter I, part 63, of the Code of the Federal Regulations is proposed to be amended as follows:

Information on the proposed regulation for background checks for contractors (and subcontractors) performing on-site work is organized as follows:

EPA has established an official public docket for this action under Docket ID No. OARM-2002-0001. The official public docket consists of the documents specifically referenced in this action, any public comments received, and other information related to this action. The official public docket is the collection of materials that is available for public viewing at the EPA Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave., NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1742.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number.

Certain types of information will not be placed in the EPA Dockets. Information claimed as Confidential Business Information (CBI) and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in Unit I.A.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments, but may consider them if time permits.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment, and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties, or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.

i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. Once in the system, select “search,” and then key in Docket ID No. OARM-2002-0001. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail. Comments may be sent by electronic mail (e-mail) to oei.docket@epa.gov, Attention Docket ID No. OARM-2002-0001. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in Unit I.B.2. These electronic submissions will be accepted in WordPerfect or ASCII file format. Please avoid the use of special characters and any form of encryption.

2. By Mail. Send three copies of your comments to: OEI Docket, Title: Background Checks for EPA Contractors Performing Services On-Site, EPA Docket Center (28221T), 1200 Pennsylvania Ave., NW., Washington, DC, 20460, Attention Docket ID No. OARM-2002-0001.

3. By Hand Delivery or Courier. Deliver your comments to: EPA Docket Center, EPA West, Room B102, 1301 Constitution Ave, NW., Washington, DC 20004, Attention Docket ID No. OARM-2002-0001. Such deliveries are only accepted during the Docket's normal hours of operation (8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays).

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

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

8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

The events of September 11, 2001, have heightened both Government and private industry awareness relative to protecting facilities and the personnel who work therein. EPA has a large number of contracts that require contractor (and subcontractor) employees to access federally-owned or leased facilities and space, federally-occupied facilities, and Superfund, Oil Pollution Act, and Stafford Act sites. Although such access is often necessary for contract performance, it nevertheless creates significant potential risks for EPA. While background checks provide no guarantee as to a person's loyalty, trustworthiness, or suitability for contract performance, they provide valuable information that may prove useful in determining an individual's suitability to perform on-site services for the EPA.

This proposed rule would amend the EPAAR to create an EPA contract clause that will require contractors (and subcontractors) to perform background checks and make suitability determinations for contractor (and subcontractor) employees performing services on-site.

This proposed rule is not a significant regulatory action for the purposes of Executive Order 12866; therefore, no review is required by the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB).

The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document prepared by EPA has been assigned ICR No. 2102.01.

The EPA uses contractors to perform services on or within federally-owned or leased facilities and space, federally-occupied facilities, and Superfund, Oil Pollution Act, and Stafford Act sites. Information collected by on-site contractors for performing background checks and making suitability determinations is required for all contractor employees before the individual employees can perform on-site contract services for the EPA. The Contractor is also responsible for maintaining records associated with all background checks and suitability determinations.

The annual public reporting and record keeping burden for this collection of information is a total of 7,000.5 hours annually. This figure was determined by multiplying the average number of background checks per annum (4,667) by the estimated time to complete one collection request (1.5 hours per response).

The total annual costs are estimated at $590,002.14. This figure was determined by multiplying the cost associated with one collection request ($126.42) by the average number of collections per annum (4,667). This figure does not include any capital or start-up costs because it will not be necessary for respondents to acquire any capital goods to provide the requested information.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An Agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques, EPA has established a public docket for this ICR under Docket ID No.OARM-2002-0001, which is available for public viewing at the OEI Docket in the EPA Docket Center (EPA/DC), EPA West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Reading Room is (202) 566-1745 and the telephone number for the OEI Docket is (202) 566-1752. An electronic version of the public docket is available through EPA Dockets (EDOCKET) at http://www.epa.gov/edocket. Use EDOCKET to submit or view public comments, access the index listing of the contents of the public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the docket ID number identified above. Also, you can send comments to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for EPA. Please include the EPA Docket ID No. OARM-2002-0001 in any correspondence. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after January 22, 2003, a comment to OMB is best assured of having its full effect if OMB receives it by February 21, 2003. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impact of today's proposed rule on small entities, “small entity” is defined as: (1) A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, because the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.

This proposed rule will not have a significant economic impact on small entities because the contractor will be able to include any costs incurred in complying with clause requirements as part of the costs incurred under the contract, either directly or indirectly (depending on the contract type, and the contractor's treatment of costs). In addition, the types of background search services to be undertaken pursuant to the proposed clause are commercially available to all businesses.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L. 104-4, establishes requirements for Federal agencies to assess their regulatory actions on State, local, and Tribal governments, and the private sector. This proposed rule does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in one year. Any private sector costs for this action relate to paperwork requirements and associated expenditures that are far below the level established for UMRA applicability. Thus, this proposed rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This proposed rule is not subject to Executive Order 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions on environmental health or safety risks.

Executive Order 13132, entitled, “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” are defined in the Executive Order to include regulations that have “substantial direct effects 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.”

Under section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal Government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This proposed rule does not have federalism implications. It will not have substantial direct effects 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, as specified in Executive Order 13132. This proposed rule would amend the EPAAR to create an EPA contract clause that will require contractors to perform background checks for employees performing services on-site. Thus, the requirements of section 6 of the Executive Order do not apply to this proposed rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” are defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.”

This proposed rule does not have tribal implications. It will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this proposed rule.

In the spirit of Executive Order 13175, and consistent with EPA policy to promote communication between EPA and tribal governments, EPA specifically solicits additional comment on this proposed rule from tribal officials.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. 104-113, section 12(d) (15 U.S.C. 272 note ), directs EPA to use voluntary consensus standards in its regulatory activities, unless to do so would be inconsistent with applicable law, or otherwise impractical. Voluntary consensus standards are technical standards ( e.g. , materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rule does not involve technical standards. Therefore, EPA is not considering use of any voluntary consensus standards.

This proposed rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28335 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

Therefore, 48 CFR Chapter 15 is proposed to be amended as set forth below:

When standard No. 111 was promulgated in 1967, it applied only to passenger cars. The standard only permitted the use of mirrors of unit magnification (hereafter referred to as flat mirrors) at that time. On August 12, 1975, the agency published a final rule that extended the passenger car requirements to multipurpose passenger vehicles, trucks, and buses with a GVWR 4,536 kg or less (hereafter referred to as light trucks) [40 FR 33825]. The final rule established requirements for light trucks to have either outside flat mirrors that meet passenger car requirements or mirrors with an area of at least 126 cm 2 .

The August 12, 1975 notice also established requirements that multipurpose passenger vehicles, trucks, and buses with a GVWR of between 4,536 kg and 11,340 kg have flat outside mirrors with a reflective surface of not less than 323 cm 2 . On December 30, 1976, the agency published a final rule that established requirements for multipurpose passenger vehicles, trucks, and buses with a GVWR of 11,340 kg or more. The requirements specified that these vehicles have outside mirrors with a reflective surface of not less than 323 cm 2 .

Until 1982, the agency allowed only flat mirrors on vehicles with a GVWR of 4,536 kg or less other than school buses (hereafter referred to as “light vehicles”). However, on September 2, 1982, the agency published a final rule amending Standard No. 111 to allow constant radius of curvature or spherical convex mirrors (hereafter referred to as “convex mirrors”) to be used on light vehicles [47 FR 38698]. The surface of this type of mirror is curved to increase the field of view. This action was in response to a May 6, 1976, petition from General Motors Corporation (GM). GM petitioned the agency to amend the standard to allow convex mirrors on the passenger side of light vehicles where the interior mirror did not meet the field of view requirements. GM pointed out in its petition that convex mirrors would provide a wider field of view than the flat mirrors of the same size.

The amendment gave light vehicles that do not meet the field of view requirements for their interior mirror the option of having an outside mirror of unit magnification or a convex mirror installed on the passenger side. The agency, however, was concerned about the greater difficulties in correctly judging distance and speed that occur using convex mirrors as a result of the distortion of the objects being viewed. This concern has to be balanced by the fact that convex mirrors greatly increase the driver's field of view and, therefore, reduce the necessity for head movement to detect other vehicles.

Since convex mirrors have been permitted on the passenger side of light vehicles, many manufacturers have used them. Today, most light vehicles have a convex mirror on the passenger side. However, the agency still receives complaints from consumers about these mirrors. As described below, convex mirrors have characteristics that present problems for a portion of the driving public.

The main difference between a flat mirror and convex mirror is that the image of an object viewed in a convex mirror is both distorted and smaller than that of the same object viewed in a flat mirror. Therefore, such an object appears farther away and could be less recognizable when viewed in a convex mirror. Additionally, if the object were approaching or receding, its rate of change in position relative to other vehicles and its speed are more difficult to judge as well. For example, a driver who is not familiar with using a convex mirror on the passenger side may determine that it is safe to change lanes to the right, not realizing that a vehicle to the right rear is too close for the maneuver to be completed safely. This is why convex mirrors have been permitted only in conjunction with flat interior mirrors. The flat interior mirror provides the correct depth and speed perception, whereas the convex mirror achieves greater field of view, but cannot give precise depth and speed perception. Even if the interior mirror does not meet the field of view requirements in the standard, it is still available for speed and distance judgment of vehicles that are detected in the right convex mirror, if they are also visible in the interior mirror.

There have been other problems associated with the use of convex mirrors that include double vision, eyestrain, and nausea. Based on research, the agency determined that these problems could be minimized by placing certain restrictions on the mirror's design and by trading off correct speed and depth perception to achieve a greater field of view. If a vehicle has an interior mirror that does not meet the field of view requirements and the manufacturer opts to use a convex mirror on the passenger side, the convex mirror must meet the following three requirements: (1) When the radius of curvature is measured at ten different positions as specified in the standard, none of the radii of curvature readings may deviate from the average radius of curvature by more than plus or minus 12.5 percent; (2) the mirror must be indelibly marked at the lower edge of the mirror's reflective surface with the words “Objects In Mirror Are Closer Than They Appear”; and (3) the average radius of curvature cannot be less than 889 millimeters (mm) and not more than 1,651 mm.

The first requirement, that the convex mirror's radius of curvature may not deviate more than plus or minus 12.5 percent from the average radius of curvature, is to ensure that the mirrors have a reasonably constant radius of curvature. This minimizes changes in image distortion across the face of the mirror. This helps reduce many of the reported instances of double vision, nausea, and dizziness.

The second requirement specifies that a visible warning be marked on the mirror's reflective surface. Because the mirrors cause distance and speed distortion, i.e. , the objects appear further away in the mirror, the agency felt that a warning should be placed in plain view to the vehicle operator. This is the rationale for the second requirement, that the mirrors be labeled with “Objects in Mirror Are Closer Than They Appear.” If the driver is aware of this label, the driver will be aware that this mirror is not a flat mirror, and hopefully not make a mistake in judgment.

The third requirement, which specifies a minimum and maximum radii of curvature of the mirrors, is to ensure that the mirrors on different vehicles possess some level of uniformity. For example, if a person became accustomed to driving a vehicle with a passenger-side mirror radius of curvature of 2,500 mm, the same person might experience disorientation if he or she drove a vehicle with a passenger-side mirror radius of curvature of 500 mm. In Standard No. 111, the allowable range of radii of curvature of between 889 mm and 1,651 mm is based on a study performed by Vector Enterprises, Inc. (Vector) [“Passenger Vehicle, Light Truck, and Van Convex Mirror Optimization and Evaluation Studies,” August 1980, DOT HS 805-695] in which a number of convex mirrors were evaluated. In this study, Vector found that a radius range of 1,016 mm to 1,524 mm provided the best results. The agency proposed this range in a 1978 notice of proposed rulemaking (NPRM) [43 FR 51657]. However, based on comments by manufacturers to the NPRM, the agency increased the range by 127 mm on each end.

Since the last significant changes were made to Standard No. 111 in 1982, there have been a number of innovations to rearview technology. The main innovation in mirror technology is the development of a hybrid mirror called an aspheric convex mirror (hereafter referred to as an “aspheric mirror”). Aspheric mirrors differ from the currently allowed convex mirrors in that they do not have a constant radius of curvature. Generally, these mirrors have a convex area with a large radius of curvature that provides a relatively undistorted view. Typically, this area constitutes approximately 60 to 80 percent of the mirror surface. In this portion of the mirror, the radius can be so large that it will appear to be flat (the radius of curvature of a flat mirror is infinity). The relatively flat portion of the mirror allows the driver to make more accurate speed and distance judgments about the adjacent vehicles than would be possible with a convex mirror. On mirrors currently being manufactured for the aftermarket and for use in other countries, the radius of curvature of this flatter area can range from 2,032 mm to 12,700 mm.

Extending from the large radius of curvature portion of the mirror outward, away from the vehicle, is another area in which the radius of curvature gradually decreases. This portion increases the field of view by smoothly transitioning from the large radius of curvature in the relatively flat portion to a much smaller radius. Because of the variation in radii of curvature, the outside portion of the mirror is distorted much like that of a convex mirror. This is how the larger field of view is attained. With this larger field of view, there could be a reduction or even an elimination of the blind spots that currently exist when flat mirrors are used. The most convex (outer) area of the aspheric mirror can provide a field of view that is as much as 30 percent larger than that of a similarly sized convex mirror with a uniform radius of curvature that satisfies the current standard.

Because these mirrors essentially provide two different types of views to the rear of the vehicle, some aspheric mirrors have an etched line delineating where the portion of the mirror that is the effectively flatter section ends and the more curved section begins. This is done to reduce confusion about which images are distorted and which are less so.

Due to the decrease in the cost of video monitoring equipment in recent years, manufacturers have begun to explore ways to incorporate this technology into motor vehicle rear vision systems. In these prototype systems, video cameras can be placed in almost any position on the interior or exterior of the vehicle. The cameras are wired to monitors in the forward of the vehicle so that they can be viewed by the driver. Because of the many possible mounting locations of the cameras, these systems can provide views to the driver that mirrors are not able to achieve.

There are companies that have already begun to implement this technology. In addition to the mirror system already required by the standard, some have provided video systems for an auxiliary rear view. The United Parcel Service (UPS) has installed video systems in approximately 65,000 of its delivery trucks. These systems provide the driver with a view of the area directly behind the vehicle and are generally used for backing purposes. The view is similar to that which is provided by an interior mirror in a passenger vehicle, but can afford a much larger field of view close to the vehicle.

One of the benefits of eliminating exterior mirrors on vehicles would be in the area of fuel economy. Removing these mirrors would decrease the wind resistance on a vehicle and thus decrease the amount of fuel consumed. These benefits have been estimated to be as much as two percent fuel savings for large trucks.

Another benefit of a video system is the ability to filter out or reduce visual obstructions or degradations caused by snow, rain, lack of light, or glare from following vehicles' headlamps. By adjusting a monitor's contrast, brightness, or sharpness, the image provided to the driver can be controlled. It is likely that these systems will be controlled by a computer that can detect these visual hindrances and automatically correct for them.

In its September 2000 petition, AM General recommended that the agency amend Standard No. 111 to allow manufacturers the option of placing a convex passenger-side rearview mirror on light trucks with a GVWR of more than 4,536 kg, but with a length of less than 508 cm. Currently, these vehicles must have a flat passenger-side mirror with a reflective area of not less than 323 cm 2 . As stated above, light trucks with a GVWR 4,536 kg or less may be equipped with either a convex mirror or a flat mirror that meets passenger car requirements or a flat mirror with a reflective area of not less than 126 cm 2 . AM General proposed three conditions that these vehicles would have to meet to be equipped with a convex mirror: (1) The mirror should be at least 323 cm 2 in area; (2) it should comply with the convex mirror requirements in Paragraph S5.4 of the standard; and (3) the overall length of the vehicle should be less than 508 cm.

By petitioning the agency, AM General is attempting to solve a problem it has had with a specific vehicle it produces, the Hummer. The Hummer is a four-wheel-drive vehicle that, depending on the configuration, can have a GVWR of between 4,672 kg and 5,488 kg. Because the Hummer has a GVWR that is greater than 4,536 kg, it is required to have a flat passenger-side mirror with a reflective area of not less than 323 cm 2 . AM General states that a large majority of Hummer owners are installing small, round convex mirrors on their flat passenger-side mirrors to provide a better rearward field of view, particularly for lane changes. It has received numerous requests from these owners to install a full-sized convex mirror like those offered on similarly sized light trucks. The only explanation AM General has been able to provide to them is that Standard No. 111 does not allow such mirrors on these vehicles. Since the Hummer is essentially the same size as some other full size light trucks, AM General does not think it reasonable that it would be precluded from utilizing the same type of rearview mirrors as them. AM General believes that, although the vehicle owner's application of the small convex mirrors to the flat mirrors may provide some additional benefit, it is not the ultimate solution. A full size convex mirror would provide a larger field of view. In addition, the full size convex mirror would have less distortion, as small add-on convex mirrors, or spot mirrors, tend to have small radii of curvature.

On July 26, 2000, AM General met with the agency to outline its concerns and to give agency staff the opportunity to drive the Hummer with two mirror configurations: a standard 323 cm 2 flat mirror and a 323 cm 2 convex mirror. Three agency engineers examined the two mirror systems on the Hummer and two drove it with these systems. One engineer sat in the Hummer and assessed the fields of view of both mirrors without driving it. All three agreed that, when attempting a lane change to the right, the passenger-side convex mirror provided a better view of the rearward area when compared to the flat one. Because the interior rearview mirror did not provide an adequate rearward view, the driver would have to rely heavily on the outside mirrors. This increased the importance of having a wider field of view in the outside mirrors, even if it could cause greater distortion.

AM General supports its petition by pointing out that in 1975, when Standard No. 111 was amended to require flat passenger-side mirrors on vehicles of over 4,536 kg GVWR, there were no vehicles in use that were comparable to the Hummer. In the rulemaking, the agency's rationale for requiring flat passenger-side mirrors was that a driver of a large vehicle needs an undistorted view when moving in reverse. Also, these larger vehicles did not typically have an interior flat mirror to aid in judging distance. In the final rule, the agency linked vehicle size to weight, stating that vehicles over 4,536 kg GVWR needed special mirror systems “suited to their large size.” Also, in the notice of proposed rulemaking (NPRM) that preceded the 1975 final rule [39 FR 15143], the agency stated that “if the vehicle resembles a passenger car with regard to its rearward visibility potential, the manufacturer will be free to equip it with a passenger car-type mirror system.”

AM General also cites the rationale that the agency used in the preamble to the 1982 final rule allowing convex mirrors on light vehicles, which indicated that the main safety benefit of these mirrors is that they provide “an expanded field of view of the right, rear quadrant area adjacent to the vehicle, thus reducing the need of the driver to turn around to view that area directly.”

AM General points out that, while the Hummer's overall size is comparable to other full size sport utility vehicles (SUVs) and pickups, its GVWR is considerably greater. To support this, AM General submitted specifications of other light trucks for comparison. These are outlined in the table below.