Background and Proposed Changes

Shell egg grading is a voluntary program provided under the Agricultural Marketing Act of 1946, as amended, (7 U.S.C. 1621 et seq. ) and is offered on a fee-for-service basis. It is designed to assist in the orderly marketing of shell eggs by providing for the official certification of egg quality, quantity, size, temperature, packaging, and other factors.

Changing technology in egg production and processing requires that the regulations governing shell egg grading be updated. The proposal would update the requirements to bring them in line with the requirements that applicants utilizing official grading services must meet. After a plant makes an application for grading service, an agency representative conducts a plant survey. The survey determines if the plant premises, facility, equipment, and operation procedures can satisfactorily support the official grading of shell eggs. These prerequisite requirements are based on good manufacturing practices typically associated with food processing and have specific application to shell egg processing. Proposed changes included the following:

(1) Definitions. The definitions of “chief of the grading branch” and “national supervisor” would be revised to reflect the current organizational structure in AMS. New definitions for “Agricultural Marketing Service or AMS”, “consumer grades,” “packaging,” “packing,” and “United States Standards, Grades, and Weight Classes for Shell Eggs” would be added to establish a clear meaning for these terms. (§ 56.1)

(2) Candling Lights. As newer and faster equipment has been developed and installed in official plants, the need for additional facilities and equipment to grade official samples has increased. To provide acceptable space and equipment for two graders to perform official grading activities or have space available for a supervisor to conduct supervisory visits without disrupting the grading activities of the official grader, this rule would revise the candling light requirement from one to two and would require a candling booth of sufficient size to accommodate at least two candling lights for additional graders. (§ 56.17)

(3) Communications. The current regulations specify that service may be requested or reported by telephone or telegraph. Even though these forms of communication may still be used, the revisions would allow alternate forms of electronic communications as are currently available in the market place. (§§ 56.21, 56.58)

(4) Temporary Grading Service. Processors are now able to request temporary grading service which provides them the ability to pack grade-identified shell eggs into officially grademarked cartons without utilizing continuous resident grading service. They must still meet all facility, equipment, and operating requirements specified for plants utilizing continuous grading services. This revision would add temporary grading service as a type of grading service that could be requested by an applicant. The regulations would also be revised by providing that certificates may be issued to an applicant who utilizes temporary grading. (§§ 56.17, 56.56)

(5) Lot Numbering. The current regulations specify that product be lot numbered on either the carton or the consumer package. Processors have requested that they be allowed to lot identify shell eggs by placing the lot number on the individual egg. This revision would update the regulations to reflect changes in the marketing of shell eggs. (§ 56.37)

(6) Official Identification. The current regulations specify that the official identification of any graded product shall be done only under the supervision of a grader or quality assurance inspector. The revision would clarify that only product which is identified with the grademark shall be officially identified under the supervision of a grader or quality assurance inspector. (§ 56.39)

(7) Types of Grading Services. The types of grading services available to an applicant would be added. There are often questions about each type of available grading service and this revision would provide an explanation of those services. (§ 56.28)

(8) Appeal Gradings. The sample size of an appeal grading when the original samples are not available or have undergone a material change would be double the samples required by § 56.4(b). The current regulations specify that only in the instance where the original samples are not available shall the appeal sample size be double that required by § 56.4(b). It is necessary to increase the sample size to improve the confidence level of results and properly resolve the issue prompting the applicant's appeal. (§ 56.65)

(9) Occupational Safety and Health Regulations. The shell egg industry is subject to Federal, State, and local government occupational safety and health regulations. This proposal would update the regulations to reflect that an applicant utilizing the official grading service must be in compliance with all applicable Federal, State, and local government occupational safety and health regulations. (56.76)

(10) General Premises. General premise requirements would be added. The current regulations do not specify such requirements. In order to grade and pack shell eggs in the most efficient and sanitary manner, shell egg graders and packers must maintain the premises of their facilities in a manner that is not a deterrent to the grading and packing of shell eggs. The revision would specify that the premises of the facility be maintained in an appropriate manner. (§ 56.76)

(11) Structures and Facilities. The current regulations specify that only certain facilities, such as benches, and only certain structures, such as walls, are required to be replaced with materials impervious to moisture when they become subjected to moisture or develop odors. The revision would update the regulations to reflect that all structures and facilities subject to moisture must be readily cleanable, sanitarily maintained, and impervious to moisture and that floors are constructed for proper drainage. (§ 56.76)

(12) Lavatories and Toilets. The current regulations specify that lavatory and toilet accommodations shall be provided with hot and cold running water, ventilation, and hand washing instruction signs. The revisions would also specify that the facilities be located in areas separate and away from the grading and processing rooms. (§ 56.76)

(13) Storage Areas. The current regulations do not specify requirements for storage areas for storing packing and packaging materials to be used for consumer labeled shell eggs. This revision would specify that adequate packing and packaging storage areas be provided and properly maintained in order that packing and packaging are stored in a dry, clean, and sanitary environment. (§ 56.76)

(14) Grading and Packing Rooms. The current regulations that specify grading and packing room requirements should be updated to reflect the current state of technology in egg production and processing. The revision would update the requirements of the grading and packing rooms by specifying their sanitary design and construction. Additionally, the revision would specify that during operations the sanitation of the processing areas and equipment be maintained in a satisfactory manner. (§ 56.76)

(15) Shell Egg Cooler Rooms. The current regulations provide that humidifying equipment capable of maintaining a relative humidity, which will minimize shrinkage, shall be provided. However, they do not specify a percentage of relative humidity that the equipment should provide. The revision would specify that the regulations provide that the cooler rooms which will hold consumer labeled shell eggs shall be capable of maintaining a relative humidity of 70 percent or higher and that appropriate equipment be provided to measure relative humidity. (§ 56.76)

(16) Shell Egg Protecting Operations. The current regulations that specify shell egg protecting operation requirements should be updated to reflect the current state of technology in egg production and processing. The revision would update the regulations by specifying that the requirements for shell egg protecting equipment include its sanitary design, maintenance, and operation. The revision would also eliminate the requirement that previously used contaminated oil be heat treated prior to its reuse. This is an obsolete process that is not used and should be removed from the regulations. (§ 56.76)

(17) Shell Egg Washing. The current regulations specify that shell egg cleaning equipment shall be maintained and properly cleaned. These regulations should be updated to reflect the changing technology in egg production and processing. The revision would specify that shell egg washing equipment be sanitarily designed and maintained in a clean and sanitary manner. The revision would also specify that shell egg drying equipment be sanitarily designed and maintained, that air used for drying must be filtered, and that filters are to be cleaned and maintained. (§ 56.76)

(18) Shell Egg Wash Water. The current regulations specify the temperatures of shell egg wash water, but do not specify that an accurate thermometer is to be provided to monitor the required wash water temperature. The revision would clarify that the plant would be responsible for providing an accurate thermometer to measure the temperature of the wash water. (§ 56.76)

(19) Spray Rinse Sanitizer. The current regulations specify that shell eggs be spray rinsed with water containing an approved sanitizer of not less than 50 p/m nor more than 200 p/m of available chlorine. The revision would revise the regulations to reflect that the spray rinse contains a sanitizer approved by the national supervisor of not less than 100 p/m nor more than 200 p/m of available chlorine or its equivalent. With the development of newer and faster processing equipment, the speed at which shell eggs are processed has increased. Correspondingly, this increase in speed has resulted in shell eggs being spray rinsed with an approved sanitizer for a shorter period of time, reducing the overall effectiveness of the sanitizing spray rinse. However, when the minimum amount of sanitizer used to spray rinse shell eggs is increased, the loss in effectiveness caused by the increased speed of the processing equipment is reduced. The revision would update the regulations to reflect that shell eggs receive an increased exposure to an approved sanitizer. (§ 56.76)

(20) Shell Egg Washing. The current regulations specify that shell eggs be removed from washing equipment during any rest period. The revision would reflect that shell eggs be removed from the processing equipment during any non-processing periods to prevent loss of egg quality from extended exposure to elevated temperatures. (§ 56.76)

(21) Removal of Washing Operation Steam and Vapors. The current regulations specify that steam and vapors from the washing operation be continuously and directly removed from the building. The revision would specify that steam, vapors, or odors originating from washing and rinsing operations shall be exhausted to the outside of the building to prevent the development of an undesirable environment in the shell egg processing room. (§ 56.76)

(22) Shell Egg Packing. The current regulations that specify the packing requirements for eggs that are to be identified with a grademark should be updated to reflect the type of packing and packaging materials used by shell egg processors. When the regulations were promulgated most all packing materials were constructed of fiber materials. Today many other materials, such as plastic and metal, are used in the construction of packing materials. The revision would add that eggs that are to be identified with a grademark may be packed in other than fiber packing materials. (§ 56.76)

(23) Approval of Chemicals and Compounds. The current regulations specifying the requirements for the use of approved chemicals and compounds should be updated. The regulations would be updated to reflect that the national supervisor, Poultry Programs is responsible for determining acceptance of the intended use of chemicals and compounds for their specified use. Shell egg processing facilities will still be responsible for using chemicals and compounds in accordance with the manufacturer's instructions. (§ 56.76)

This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget (OMB). In addition, pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), AMS has considered the economic impact of the rule on small entities and has determined that its provisions would not have a significant economic impact on a substantial number of small entities.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. The Small Business Administration (SBA)(13 CFR 121.201) defines small entities that produce and process chicken eggs as those whose annual receipts are less than $9,000,000. Approximately 625,000 egg laying hens are needed to produce enough eggs to gross $9,000,000.

Currently, the Agricultural Marketing Act of 1946, as amended, (7 U.S.C. 1621 et seq. ) authorizes a voluntary grading program for shell eggs. Shell egg processors that apply for service must pay for the services rendered. So that costs are shared by all users, these user fees are proportional to the volume of shell eggs graded. Shell egg processors are entitled to pack their eggs in packages bearing the USDA grade shield when AMS graders are present to certify that the eggs meet the grade requirements as labeled. Plants in which these grading services are performed are called official plants. Shell egg processors who do not use USDA's grading service may not use the USDA grademark. There are about 558 shell egg processors registered with the Department that have 3,000 or more laying hens. Of these, 161 are official plants that use USDA's grading service and would be subject to this proposed rule. Of these 161 official plants, 38 meet the small business definition.

One proposal would require that plants provide two candling lights in an acceptable candling booth. This change is necessary to provide requested grading service in an acceptable manner with the new equipment and facilities that have been developed and installed in official plants. As new facilities have been built and existing facilities renovated, they have been equipped with at least two candling lights in acceptable candling booths. Currently, all of the plants that utilize the voluntary grading program for shell eggs have at least two acceptable candling lights. Therefore, this proposal would have no adverse economic impact on processors.

One proposal would allow producers to request service by electronic communications. Similarly, another proposal would allow the results of grading to be disseminated by any acceptable means of communications. These proposals provide that processors are able to receive or send communications by the most acceptable and efficient means of communication that the current state of technology allows. These proposals expand the way that producers may communicate. Therefore, these proposals would also have no adverse economic impact on producers.

One proposal would include temporary grading service as a type of grading service that shell egg processors may request. Another proposal would provide that certificates may be issued under temporary grading service. This service is currently being offered to the industry as a method by which shell egg processors can pack eggs into shielded cartons without utilizing official continuous grading service. These proposals would only formalize this type of service. Because the service is already available and being used, they would have no economic impact on processors.

One proposal to establish an alternate method of lot numbering eggs would allow shell egg processors to place a code date on an individual egg. This action will bring the regulations in line with a procedure that is currently approved by the Agency and in use in the market place. This proposal would have no adverse economic impact on processors.

One proposal would clarify and update facility requirements. This proposal would update the regulations by incorporating requirements that a plant must currently meet prior to the start of grading service at a facility. After a plant makes an application for grading service, an Agency representative conducts a plant survey to determine if the plant premises, facility, and equipment can satisfactorily support the official grading of shell eggs. These pre-requisite requirements are based on good manufacturing practices typically associated with food processing and have specific application to shell egg processing. Plants currently utilizing the grading service must maintain their premises, facility, equipment, and operating procedures at a minimum acceptance level. This proposal would only reflect the requirements which facilities are presently meeting and would have no economic impact on processors.

One proposal that updates the facility requirements would require that cooler rooms that hold shell eggs identified with a consumer grademark be capable of maintaining a relative humidity of 70 percent or higher. The regulations currently provide that humidifying equipment capable of maintaining a relative humidity, which will minimize shrinkage, shall be provided. However, the regulations do not specify a percentage of relative humidity that the equipment should provide. A relative humidity of 70% or higher is considered sound and conforms with processing operations presently in use by the shell egg industry. 1 This provides a level of humidity that will maintain the quality of shell eggs. This proposal would have no adverse economic impact on processors.

Other changes to the definitions and editorial-type changes would clarify and update the existing regulations and would have no economic impact on entities using voluntary shell egg grading service.

For the above reasons, the Agency has certified that this action will not have a significant economic impact on a substantial number of small entities.

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This action is not intended to have retroactive effect. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. There are no administrative procedures which must be exhausted prior to any judicial challenge to the provisions of this rule.

The information collection requirements in §§ 56.21(a), 56.21(c), 56.37, 56.56(a), 56.58, 56.76(f)(7), and 56.76(h) to be amended by this rule have been previously approved by OMB and assigned OMB control number 0581-0128 under the Paper Reduction Act of 1995.

AMS is committed to compliance with the Government Paperwork Elimination Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

For reasons set forth in the preamble, it is proposed that 7 CFR part 56 be amended as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-172-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-172-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified the FAA that an unsafe condition may exist on all BAE Systems (Operations) Limited Model BAe 146 and Avro 146-RJ series airplanes. The CAA advises that BAE Systems (Operations) Limited investigations have determined that, due to excessive ice buildup on the elevator servo tab under certain unusual atmospheric conditions, pitch oscillation (vertical bouncing) of the fuselage can occur. This condition, if not corrected, could result in reduced controllability of the airplane.

BAE Systems (Operations) Limited has issued Modification Service Bulletin SB.27-169-01692A, dated December 10, 2001, which describes procedures for installation of linear fluid-filled dampers between each elevator surface and the airplane structure on both the left and right sides of the airplane. SB.27-169-01692A also refers to additional BAE Systems (Operations) Limited Modification Service Bulletins as appropriate sources of information for further actions which must be accomplished prior to, or in conjunction with, SB.27-169-01692A. The additional service bulletins are:

• SB.27-168-01614EH, dated January 22, 2001, which describes procedures for modifying the tailfin top fairing by introducing access holes and reinforcement to the fairing, and introducing lanyards to the fairing access panels;

• SB.27-167-01614C.D.G, dated January 2, 2001, which describes procedures for installation of torsion box and drop-link assemblies and elevator brackets, and structural relief and reinforcement; and

• SB.27-170-01692E, Revision 2, dated March 20, 2001 (for BAE 146 series airplanes only); and SB.27-171-01692F, Revision 1, dated March 20, 2001 (for Avro 146-RJ series airplanes only), which describe procedures for installing electrical system elements for operation of elevator control surface damper bypass valves.

Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition. The CAA classified BAE Systems (Operations) Limited Modification Service Bulletin SB.27-169-01692A as mandatory and issued British airworthiness directive 005-12-2001 to ensure the continued airworthiness of these airplanes in the United Kingdom.

These airplane models are manufactured in the United Kingdom and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service bulletins described previously, except as discussed below.

Operators should note that, although the referenced service bulletins describe procedures for completing a form recording accomplishment of the service bulletin and returning that form to the manufacturer, this proposed AD would not require that action. The FAA does not need this information from operators.

The FAA estimates that 55 airplanes of U.S. registry would be affected by this proposed AD. Accomplishment of the proposed actions specified in the referenced service bulletins would require an approximate number of work hours as shown in Table 1 of this proposed AD, at an average labor rate of $65 per work hour.

Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be between $1,076,405 and $1,105,005, or between $19,571 and $20,091 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2003-NM-158-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2003-NM-158-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

Transport Canada Civil Aviation (TCCA), which is the airworthiness authority for Canada, notified the FAA that an unsafe condition may exist on all Bombardier Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. TCCA advises that the flanges on the air supply ducts of the rear bulkhead were bonded to the duct using a manufacturing procedure that did not meet design specifications. Investigation revealed that such bonding could lose 80 percent of its shear strength at elevated temperatures. If the bonding loses shear strength, it could result in premature cracking and consequent failure (detachment of the flappers) of the bulkhead check valve. Disconnection of an air supply duct, if combined with failure of a bulkhead check valve, could result in rapid depressurization of the airplane.

Bombardier has issued Alert Service Bulletin A601R-21-053, Revision “A”, dated January 28, 2003, which describes procedures for repetitive inspections of the air supply ducts of the rear bulkhead for damage. Bombardier has also issued Alert Service Bulletin A601R-21-054, dated November 8, 2001, which describes procedures for repetitive inspections of the check valves of the rear bulkhead for damage. Both service bulletins describe procedures for related corrective actions if any damage is found. Service Bulletin A601R-21-054 recommends that Service Bulletin A601R-21-053, Revision “A”, be done at the same time.

Service Bulletin A601R-21-053, Revision “A”, describes procedures for the following: A visual inspection of the left- and right-hand air supply ducts for damage (tearing, delamination, or cracking). If any damage is found, the corrective action involves replacement of the affected duct with a new duct before further flight, which eliminates the need for the repetitive inspections for that duct only. If no damage is found, the inspection is repeated. The service bulletin also describes procedures for eventual rework or replacement of the air supply ducts, which eliminates the need for the repetitive inspections of the air supply ducts.

Service Bulletin A601R-21-054 describes procedures for the following: A visual inspection of the bulkhead check valves (including the guide clamps) for damage (cracking or breakage), and a leak test of the air conditioning system. If any damage is found, the corrective action involves replacement of the affected bulkhead check valve with a new valve before further flight. If no damage is found, the inspection is repeated.

Accomplishment of the actions specified in the service information is intended to adequately address the identified unsafe condition. TCCA classified this service information as mandatory and issued Canadian airworthiness directive CF-2003-05, dated February 4, 2003, to ensure the continued airworthiness of these airplanes in Canada.

This airplane model is manufactured in Canada and is type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, TCCA has kept us informed of the situation described above. We have examined the findings of TCCA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the service information described previously, except as discussed below.

The applicability in the Canadian airworthiness directive specifies Bombardier Model CL-600-2B19 airplanes, serial numbers 7003 through 7477; however, the proposed AD would be applicable to all Bombardier Model CL-600-2B19 airplanes. TCCA has informed us that the Canadian airworthiness directive is in error, and should have specified all Bombardier Model CL-600-2B19 airplanes.

The Canadian airworthiness directive requires amending the Transport Canada approved maintenance schedule within 30 days after the effective date of the Canadian airworthiness directive, by incorporating Inspection Task No. 21-51-21-07, and incorporating the task interval for the bulkhead check valves, as specified in Part 1, Section 2, of Revision 7 of the Maintenance Review Board Report, dated April 11, 2001. However, this proposed AD does not contain such a requirement, but would mandate the equivalent maintenance tasks specified in Service Bulletin A601R-21-054, in lieu of amending the maintenance schedule. We have determined that these tasks address the unsafe condition in the same manner as would amending the maintenance schedule.

The Canadian airworthiness directive does not specifically cite a repetitive inspection interval for the check valves; Inspection Task No. 21-51-21-07, cited in the Canadian airworthiness directive, does require repetitive inspections. This proposed AD would require repeating the inspections of the check valves at intervals not to exceed 4,000 flight hours, which is in line with the Canadian requirements. The inspections will continue until a terminating action is developed, approved, and available.

The Canadian airworthiness directive and Service Bulletin A601R-21-054 recommend sending all damaged check valves to the manufacturer for analysis; however, this AD does not include that requirement.

The service bulletins referenced in this proposed AD specify to submit certain information to the manufacturer, but this proposed AD does not include such a requirement.

The Canadian airworthiness directive and the referenced service bulletins specify that operators do a visual inspection of the check valves and air supply ducts of the rear bulkhead. We have determined that the inspection procedures should be described as a “detailed inspection.” Note 1 has been included in this proposed AD to define this type of inspection.

This proposed AD is considered to be interim action. Analysis of the check valves is being done by the manufacturer to obtain better insight into the nature, cause, and extent of the damage, and eventually to develop final action to address the unsafe condition. Once final action has been identified, we may consider further rulemaking.

We estimate that 280 airplanes of U.S. registry would be affected by this proposed AD.

It would take about 2 work hours per airplane to accomplish the proposed inspection of the check valves, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the proposed inspection on U.S. operators is estimated to be $36,400, or $130 per airplane, per inspection cycle.

It would take about 4 work hours per airplane to accomplish the proposed inspection of the air supply duct, at an average labor rate of $65 per work hour. Based on these figures, the cost impact of the proposed inspection on U.S. operators is estimated to be $72,800, or $260 per airplane, per inspection cycle.

It would take about 4 work hours per airplane to accomplish the proposed replacement of the check valves, at an average labor rate of $65 per work hour. Required parts would be free of charge. Based on these figures, the cost impact of the proposed replacement on U.S. operators is estimated to be $72,800, or $260 per airplane.

It would take about 3 work hours per airplane to accomplish the proposed rework of the air supply ducts, at an average labor rate of $65 per work hour. Required parts would be free of charge. Based on these figures, the cost impact of the proposed rework on U.S. operators is estimated to be $54,600, or $195 per airplane.

It would take about 2 work hours per airplane to accomplish the proposed replacement of the air supply ducts, at an average labor rate of $65 per work hour. Required parts would be free of charge. Based on these figures, the cost impact of the proposed replacement on U.S. operators is estimated to be $36,400, or $130 per airplane.

The cost impact figures discussed above are based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-209-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-209-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Civil Aviation Authority (CAA), which is the airworthiness authority for the United Kingdom, notified the FAA that an unsafe condition may exist on all Short Brothers Model SD3 series airplanes. The CAA advises that several occurrences of in-flight shut down of the engine while flying in icing conditions have been reported where failure to deploy the engine intake anti-icing vanes (inertial separators) has been cited as a contributory factor. When other anti-icing systems have been selected, there was no warning annunciator light to alert the flightcrew that the inertial separators were not yet deployed. This condition, if not corrected, could result in an engine shut down, which could result in loss of control of the airplane and consequent injury to flightcrew and passengers.

Short Brothers has issued Service Bulletins SD3 Sherpa-31-2, Revision 1, dated October 29, 2002 (for Model SD3-SHERPA series airplanes); SD360 Sherpa-31-01, Revision 1, dated October 29, 2002 (for Model SD3-60 SHERPA series airplanes); SD330-31-15, Revision 1, dated October 29, 2002 (for Model SD3-30 series airplanes); and SD360-31-06, Revision 1, dated October 29, 2002 (for Model SD3-60 series airplanes); as applicable. The service bulletins describe procedures for installing a new warning annunciator light on the central warning panel and revising the Normal Procedures Section of the Aircraft Flight Manual to provide the flightcrew with procedures related to the new warning light. Accomplishment of the actions specified in the service bulletins is intended to adequately address the identified unsafe condition. The CAA classified these service bulletins as mandatory and issued British airworthiness directives 002-06-2002, 003-06-2002, 004-06-2002, and 005-06-2002 in order to assure the continued airworthiness of these airplanes in the United Kingdom.

These airplane models are manufactured in the United Kingdom and are type certificated for operation in the United States under the provisions of section 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA has kept the FAA informed of the situation described above. The FAA has examined the findings of the CAA, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in the applicable service bulletins described previously.

The FAA estimates that 125 Model SD3 series airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 30 work hours per airplane to accomplish the proposed actions, and that the average labor rate is $65 per work hour. Required parts would cost approximately $4,800 per airplane. Based on these figures, the cost impact of the proposed AD on U.S. operators is estimated to be $843,750, or $6,750 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Comments Invited

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications should identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments will be considered before taking action on the proposed rule. The proposals contained in this document may be changed in light of the comments received.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their mailed comments submitted in response to this proposal must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. 2003-SW-39-AD.” The postcard will be date stamped and returned to the commenter.

On September 29, 2003, the FAA issued AD 2003-20-11, Amendment 39-13329 (68 FR 58581, October 10, 2003), Docket 2003-SW-08-AD, to require adding the AD or a statement to the RFM informing the pilot to reduce power and land as soon as practicable if a thump-like sound followed by an unusual vibration occurs during flight. That AD also requires visually inspecting the strut for a crack or a break within 10 hours time-in-service, recording the inspections in the historical or equivalent record, re-marking and relocating the strut, as appropriate, and replacing any unairworthy strut with an airworthy strut. Also, that AD establishes life limits for certain struts and revises the life limit for other struts.

Since issuing that AD, there has been another incident in which a pilot felt an in-flight increase in vibration. Post-flight examinations revealed a fractured aluminum strut.

The Luftfahrt-Bundesamt (LBA), the airworthiness authority for the Federal Republic of Germany, notified the FAA that an unsafe condition may exist on Eurocopter Model EC135 P1, P2, T1, and T2 helicopters. The LBA advises that the holders of affected aircraft registered in the Federal Republic of Germany must carry out the inspection for a crack, marking, replacement, and reduction of life limit of struts in accordance with the manufacturer's alert service bulletin.

Eurocopter has issued Alert Service Bulletin EC135-63A-002, Revision 4, dated July 7, 2003 (ASB), concerning reduction in life limit for the strut, and visual inspections of the strut and emergency stop. The ASB contains errors—in paragraph 1.A., the abbreviation “S/N” should be “P/N” and in paragraphs 1.C., 1.E.(1), and 1.E.(2), it incorrectly states that the ASB is Revision 3 rather than Revision 4. The LBA classified this ASB as mandatory and issued AD No. 2001-107/3, dated August 21, 2003, to ensure the continued airworthiness of these helicopters in the Federal Republic of Germany.

This previously described unsafe condition is likely to exist or develop on other helicopters of the same type designs. Therefore, the proposed AD would supersede AD 2003-20-11 and require: adding the AD or a statement to the RFM informing the pilot to reduce power and land as soon as practicable if a thump-like sound followed by unusual vibration occurs during flight; visually inspecting the strut for a crack or a break before the first flight of each day; replacing any unairworthy strut with an airworthy strut; replacing all aluminum struts with titanium struts on or before accumulating 500 hours TIS or no later than December 31, 2004, whichever occurs first; installing the struts in pairs; and canceling the once-only transfer and remarking of certain struts.

The FAA estimates that this proposed AD would affect 50 helicopters of U.S. registry, and would take approximately 92.25 work hours per helicopter to accomplish the inspections and parts replacement at an average labor rate of $65 per work hour. Required parts would cost approximately $7,296 per helicopter. Based on these figures, we estimate the total cost impact of the proposed AD on U.S. operators to be $664,612 to replace the aluminum struts on the entire fleet.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft economic evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Interested persons are invited to participate in the making of the proposed rule by submitting such written data, views, or arguments as they may desire. Communications shall identify the Rules Docket number and be submitted in triplicate to the address specified above. All communications received on or before the closing date for comments, specified above, will be considered before taking action on the proposed rule. The proposals contained in this action may be changed in light of the comments received.

Submit comments using the following format:

• Organize comments issue-by-issue. For example, discuss a request to change the compliance time and a request to change the service bulletin reference as two separate issues.

• For each issue, state what specific change to the proposed AD is being requested.

• Include justification ( e.g. , reasons or data) for each request.

Comments are specifically invited on the overall regulatory, economic, environmental, and energy aspects of the proposed rule. All comments submitted will be available, both before and after the closing date for comments, in the Rules Docket for examination by interested persons. A report summarizing each FAA-public contact concerned with the substance of this proposal will be filed in the Rules Docket.

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2002-NM-302-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2002-NM-302-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Civil Aviation Authority—The Netherlands (CAA-NL), which is the airworthiness authority for the Netherlands, notified the FAA that an unsafe condition may exist on certain Fokker Model F27 Mark 100, 200, 300, 400, 500, 600, and 700 series airplanes. The CAA-NL advises that there have been several approved modifications to Model F27 series airplanes over the years that add higher weight and more powerful engines, increased maximum landing weights, and reduced flap settings. These changes result in higher loads on the engine mounts, brace struts, and attachment fittings. Although replacement of the engine mounts, brace struts, and attachment fittings with new improved, stronger units was part of the previous modification procedures, it has been determined that the original parts may have been re-installed on some of the modified airplanes. These modifications ensure the structural integrity of the engine-to-wing load path and prevent possible separation of the engine from the airplane.

Fokker Services B.V. has issued Service Bulletin F27/54-53, dated February 15, 2002, which describes procedures for a one-time visual examination to determine the part number (PN) of the engine mounting frames, brace struts, and attachment fittings; and related corrective action. The related corrective action involves replacing incorrect parts on airplanes having a post-Fokker Service Bulletin F27/71-29, F27/71-31, F27/71-41, or F27/71-42 configuration. Service Bulletin F27/54-53 references the following service bulletins for procedures for the related corrective actions:

• Fokker Service Bulletin 51-24, dated December 1, 1971; which describes procedures for installing a new, improved engine mounting frame.

• Fokker Service Bulletin F27/54-26, Revision 5, dated September 30, 2001; which describes procedures for installing new, improved, stronger brace struts and brackets.

Accomplishment of the actions specified in Service Bulletin F27/54-53 is intended to adequately address the identified unsafe condition. The CAA-NL classified this service bulletin as mandatory and issued Dutch airworthiness directive 2002-067, dated May 31, 2002, to ensure the continued airworthiness of these airplanes in the Netherlands.

This airplane model is manufactured in the Netherlands and is type certificated for operation in the United States under the provisions of § 21.29 of the Federal Aviation Regulations (14 CFR 21.29) and the applicable bilateral airworthiness agreement. Pursuant to this bilateral airworthiness agreement, the CAA-NL has kept us informed of the situation described above. We have examined the findings of the CAA-NL, reviewed all available information, and determined that AD action is necessary for products of this type design that are certificated for operation in the United States.

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require accomplishment of the actions specified in Fokker Service Bulletin F27/54-53, except as discussed below.

The Dutch airworthiness directive and Service Bulletin F27/54-53 recommend that the one-time inspection to determine the part numbers of the engine mounting frames, brace struts, and attachment fittings be done within 6 months after the effective date/issuance of those documents; however, this proposed AD would require operators to do the one-time inspection within 24 months after the effective date of this AD. In developing the compliance time for this action, we considered the degree of urgency associated with addressing the subject unsafe condition as well as the availability of required parts. We have determined that 24 months represents an appropriate interval of time in which an ample number of required parts will be available to modify affected airplanes, if corrective action is required, without adversely affecting the safety of these airplanes. This change has been coordinated with the CAA.

The applicability section in the Dutch airworthiness directive includes, in part, “all aircraft that operate with a standard flap setting for landing of 26.5 degrees.” Service Bulletin F27/54-53 includes specific actions for airplanes that operate with a standard flap setting for landing of 26.5 degrees. Therefore, such airplanes do not require specific identification in the applicability section of this proposed AD.

Service Bulletin F27/54-53 refers to a visual examination to determine certain P/Ns; the Dutch airworthiness directive specifies to “inspect” for P/N identification. We have determined that the inspection should be described as a “general visual inspection.” Note 1 has been included in this proposed AD to define this type of inspection.

We estimate that 41 airplanes of U.S. registry would be affected by this proposed AD, that it would take about 4 work hours per airplane to accomplish the proposed inspection, and that the average labor rate is $65 per work hour. Based on these figures, the cost impact of the inspection proposed by this AD on U.S. operators is estimated to be $10,660, or $260 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

The regulations proposed herein would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this proposal would not have federalism implications under Executive Order 13132.

For the reasons discussed above, I certify that this proposed regulation (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and (3) if promulgated, will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. A copy of the draft regulatory evaluation prepared for this action is contained in the Rules Docket. A copy of it may be obtained by contacting the Rules Docket at the location provided under the caption ADDRESSES.

Accordingly, pursuant to the authority delegated to me by the Administrator, the Federal Aviation Administration proposes to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

I. Background

Through the Operating Fund program, HUD distributes operating subsidies to public housing agencies (PHAs). A regulatory description of the Operating Fund program can be found at 24 CFR part 990. The Operating Fund Formula regulations were developed through negotiated rulemaking procedures. Negotiated rulemaking for an Operating Fund Formula was initiated in March 1999, and resulted in a proposed rule, published on July 10, 2000 (65 FR 42488), which was followed by an interim rule published on March 29, 2001 (66 FR 17276). The March 29, 2001, interim rule established the Operating Fund Formula that is currently in effect.

During the negotiated rulemaking for the Operating Fund Formula, Congress in the Conference Report (H.Rept. 106-379, October 13, 1999) accompanying HUD's Fiscal Year (FY) 2000 Appropriation Act (Pub. L. 106-74, approved October 20, 1999) directed HUD to contract with the Harvard University Graduate School of Design (Harvard GSD) to conduct a study on the costs incurred in operating well-run public housing. Harvard GSD issued a final report, the Harvard Cost Study, on June 6, 2003. In Section 222 of the Consolidated Appropriations Act, 2004 (Pub. L. 108-199, approved January 23, 2004), Congress directed the Secretary to conduct negotiated rulemaking with the publication of a final rule by July 1, 2004.

On March 10, 2004, HUD published a document establishing a Negotiated Rulemaking Advisory Committee on the Operating Fund (Committee) to provide advice and recommendations on developing a rule for effectuating changes to the Public Housing Operating Fund Program in response to the Harvard Cost Study. The Committee has met three times. The first meeting was held in Washington, DC on March 30, March 31, and April 1, 2004. A second meeting was held, also in Washington, DC, on April 13-15, 2004. The third Committee meeting was held on May 11 and 12, 2004, in Atlanta, Georgia.

This document announces a fourth meeting of the Committee. The Committee meeting will take place as described in the DATES and ADDRESSES section of this document.

In accordance with the Federal Advisory Committee Act (5 U.S.C. Appendix) and the implementing regulations issued by the General Services Administration at 41 CFR part 102-3, HUD publishes notices in the Federal Register of an advisory committee meeting at least 15 calendar days prior to the meeting. In this case HUD is providing less than 15-days advance notice due to exceptional circumstances. The Committee was originally scheduled to complete its work at the third meeting. Although great progress was made at the previous meeting towards the development of a rule, the Committee determined that a fourth meeting would be necessary to complete its work. The time required to complete hotel reservations and other logistical arrangements prevented publication of this meeting notice prior to today's date.

The agenda planned for the meeting includes discussion of issues relating to the development of changes in response to the Harvard Cost Study. The meeting will be open to the public without advance registration. Public attendance may be limited to the space available. Members of the public may be allowed to make statements during the meeting, to the extent time permits, and file written statements with the committee for its consideration. Written statements should be submitted to the address listed in the FOR FURTHER INFORMATION section of this document.

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

Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agency, the Clark County Department of Air Quality Management (DAQM), or were adopted by the State Environmental Commission (SEC), and submitted by the State air agency, the Nevada Division of Environmental Protection (NDEP), to EPA as revisions to the Nevada State Implementation Plan (SIP).

On November 18, 2003, the submittal containing DAQM's rules was found to meet the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.

DAQM's predecessor agency (the Clark County Health District) adopted earlier versions of the Clark County New Source Review (NSR) rules, then numbered section 1 (Definitions), section 11 (Ambient Air Quality Standards), and section 15 (Source Registration), at various times from 1979 through 1981, which we approved into the Clark County portion of the Nevada SIP at various times in 1981 and 1982. Specifically, we approved different defined terms of section 1 (Definitions) into the applicable SIP on three occasions in 1981 and 1982. See 46 FR 21758 (April 14, 1981), 46 FR 43141 (August 27, 1981), and 47 FR 26620 (June 21, 1982). We approved section 11 (Ambient Air Quality Standards) into the applicable SIP on August 27, 1981 (46 FR 43141). We approved different subsections of section 15 (Source Registration) into the applicable SIP on two occasions in 1981 and 1982. See 46 FR 21758 (April 14, 1981) and 47 FR 26620 (June 21, 1982).

Pursuant to the Clean Air Act Amendments of 1990 (CAA or Act), Clark County revised their NSR rules, then contained in local sections 0, 12, and 58, and in 1995, EPA proposed to approve with a contingency, and disapprove in the alternative, these revised rules into the SIP. See 60 FR 38777 (July 28, 1995). Following our 1995 proposed action, Clark County revised their NSR rules (sections 0, 12, and 58) to address the contingency identified by EPA and re-submitted them via NDEP to EPA. In 1999, we found the contingency to have been satisfied and approved the revised NSR rules into the SIP. See 64 FR 25210 (May 11, 1999). Our 1999 final action was challenged, and in 2001, the U.S. Court of Appeals for the Ninth Circuit vacated our approval of Clark County's NSR rules (specifically, sections 0, 12, and 58, as submitted and acted on in 1999). See Hall v. EPA, 273 F.3d 1146 (9th Cir. 2001).

The court vacated our approval on the grounds that EPA did not have an adequate basis under section 110(l) of the Act to conclude that substitution ( i.e. , replacement or supercession) of the pre-existing NSR SIP rules (sections 1, 11, and 15) with the new NSR rules (sections 0, 12, and 58) would not interfere with attainment of the NAAQS for carbon monoxide (CO) and particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM-10) ( i.e. , the two pollutants for which a sub-region of Clark County, Las Vegas Valley, is designated nonattainment) by the applicable attainment deadlines. In recognition of this ruling, we are proposing to delete and reserve the paragraphs in section 1470 (“Identification of plan”) of 40 CFR part 52, subpart DD (Nevada) that codified our 1999 approval ( i.e. , 40 CFR 52.1470(c)(37) and (38)) to clarify that, until the effective date of EPA's final approval of the submitted NSR rules into the SIP, sections 1, 11, and 15 (as approved by EPA in 1981 and 1982) represent the applicable SIP NSR rules in Clark County.

Subsequently, Clark County adopted revised NSR rules (then contained in local sections 0, 11, 12, 58, and 59) on December 4, 2001. This version of the Clark County NSR rules, excluding section 11, was submitted to EPA by NDEP by letter dated February 25, 2003. We did not take action on that submittal, which has been superceded by DAQM's adoption of additional revisions to the Clark County NSR rules (now expanded to include section 52, subsection 52.8, as well as sections 0, 11, 12, 58 and 59) on October 7, 2003 and NDEP's re-submittal to EPA dated October 23, 2003. In this notice, we refer to this latest submittal of the DAQM NSR rules (sections 0, 11, 12, 52.8, 58, and 59) as the “DAQM NSR submittal.” While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals. The TSD provides additional background information on the various NSR SIP submittals for Clark County.

EPA revised its federal regulations implementing Parts C and D of the CAA on December 31, 2002, and those revisions became effective on March 3, 2003. Because Clark County had submitted a version of its revised NSR rules to us specifically in response to the court's 2001 ruling in Hall v. EPA , EPA is now evaluating DAQM's NSR submittal based on the federal NSR regulations that were in effect at the time of the ruling in Hall v. EPA (prior to December 31, 2002). This proposed rulemaking, therefore, does not establish any precedent for evaluating whether a proposed NSR SIP fulfills the requirements of the revised NSR regulations that were published December 31, 2002. The evaluation in this proposed rulemaking of DAQM's NSR submittal is limited to whether the submittal meets the requirements of the federal NSR regulations as they existed at the time of the ruling in Hall v. EPA, prior to revision on December 31, 2002.

There is no previous version of Nevada Administrative Code (NAC) 445B.22083 (Construction, major modification or relocation of plants to generate electricity using steam produced by burning of fossil fuels) approved, or submitted for approval, into the Nevada SIP.

Submitted DAQM sections 0, 11, 12, 52.8, 58, and 59 represent a comprehensive revision to Clark County's NSR program and are intended to satisfy the requirements under both part C (prevention of significant deterioration)(PSD) and part D (nonattainment new source review) of title I of the Act as those parts relate to permitting of major new sources or major modifications as well as provide for a minor source permitting program as required under section 110(a)(2)(C) of the Act. Submitted DAQM section 0 (Definitions) consists of definitions of all terms relating to new sources and modifications to existing sources of air pollution. As is the case for existing SIP section 1 (Definitions), DAQM section 0 also contains numerous definitions of terms used in prohibitory rules not related to NSR. Some of these prohibitory rules are already approved into the SIP ( e.g., SIP section 53 (Oxygenated Gasoline Program)) while others are expected to be approved into the SIP in the near future ( e.g., DAQM section 54 (Cleaner Burning Gasoline) and DAQM sections 90 through 94 (related to various fugitive dust sources)). Therefore, with respect to submitted DAQM section 0, we are proposing to approve the entire rule, not just those definitions related to NSR, however, as explained later in this notice, we are proposing to retain in the SIP certain definitions from existing SIP section 1 because they are needed for various existing SIP rules unaffected by this action.

DAQM section 11 sets forth the current national ambient air quality standards (NAAQS). DAQM section 12 sets forth the source permitting requirements, including those related to applicability, control technology ( i.e., Lowest Achievable Emission Rate (LAER) or Best Available Control Technology (BACT)), offsets, and public notice. DAQM subsection 52.8 contains offset requirements for new or modified gasoline dispensing facilities whose annual through-put is more than 3.6 million gallons of gasoline per year. DAQM section 58 establishes procedures for the creation, banking, and use of emission reduction credits, and DAQM section 59 establishes offset requirements for new or modified sources. NAC 445B.22083 is a State regulation prohibiting the construction of major new or modified sources under exclusive State jurisdiction in the nonattainment areas within Clark County. The TSD has more information about these rules.

The Act requires States to observe certain procedural requirements in developing implementation plans and plan revisions for submission to EPA. Sections 110(a)(2) and 110(l) of the Act provide that each implementation plan or revision submitted by a State must be adopted after reasonable notice and public hearing. Section 172(c)(7) of the Act provides that plan provisions for nonattainment areas shall meet the applicable provisions of section 110(a)(2).

DAQM held a public hearing on October 7, 2003 to entertain public comment on revisions to the following local air pollution regulations: sections 0, 11, 12, 52.8, 58 and 59. Notice for that hearing was provided by advertisement in a newspaper of general circulation in the applicable area on three separate days in September 2003. On October 7, 2003, the amended rules were adopted by DAQM and submitted to the State. On October 23, NDEP submitted the amended rules to EPA for approval as a revision to the Nevada SIP. We find that this process satisfies the procedural requirements under sections 110(a)(2), 110(l) and 172(c)(7) of the Act.

With respect to NAC 445B.22083, the Nevada SEC held a public hearing on March 3, 1994 to entertain public comment on the submitted rule. Notice for that hearing was provided by advertisement in a newspaper of general circulation in the applicable area on three separate days in February 1994. On March 3, 1994, the Nevada SEC adopted the submitted rule, which was subsequently renumbered in 2002 to its current codification as NAC 445B.22083. On November 20, 2003, NDEP submitted NAC 445B.22083 to EPA for approval as a revision to the Nevada SIP. We find that this process satisfies the procedural requirements under sections 110(a)(2), 110(l), and 172(c)(7) of the Act.

We have evaluated DAQM's NSR SIP submittal described above against the applicable requirements of section 110 and parts C and D of (title I) of the Act and the implementing regulations at 40 CFR 51.160 through 51.166 (July 1, 2002). We also relied upon the following materials in the review of this submittal: General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990 ( see 57 FR 13498, April 16, 1992), EPA's Emission Offset Interpretive Ruling (40 CFR part 51, appendix S), and EPA's policy document entitled, “Improving Air Quality with Economic Incentive Programs,” that was published in January 2001.

We note that, on December 31, 2002, EPA published a final notice revising regulations governing NSR programs (“Federal NSR regulations”) mandated by parts C and D of title I of the Act. See 67 FR 80186. These revisions include changes in the NSR applicability requirements for modifications to allow sources more flexibility to respond to rapidly changing markets and to plan for future investments in pollution control and prevention technologies. We selected March 3, 2003 as the effective date for our revision to the Federal NSR regulations. Normally, we would be evaluating the Clark County NSR SIP submittal on the basis of the current Federal NSR regulations, which would include these most recent revisions, but in light of the unusual circumstances surrounding EPA's review process for the Clark County NSR rules, i.e., court vacature of a fully-approved set of NSR rules, we have not evaluated the submitted NSR rules for consistency with the revised Federal NSR regulations but have evaluated them instead against the Federal NSR regulations that were in effect when the rules were being revised to address issues raised by EPA in the wake of the Hall decision. Like other State and local agencies, Clark County must adopt and submit revisions to its SIP-approved NSR rules implementing the minimum program requirements set forth in the revised Federal NSR regulations no later than January 2, 2006. See 67 FR 80186, at 80240 (December 31, 2002). Given this approach to our evaluation of the DAQM NSR submittal, the reader should refer to the 2002 version of 40 CFR parts 51 and 52 (revised as of July 1, 2002) where citations are made herein to the those parts of the CFR.

The Act requires all States with nonattainment areas to submit, by November 15, 1992, nonattainment NSR provisions that comply with part D (of title I) of the Act and the related implementing regulations. The Las Vegas Valley (hydrographic area #212), a sub-region within Clark County, was designated as a nonattainment area for both the carbon monoxide (CO) and particulate matter (PM-10) NAAQS under the Clean Air Act Amendments of 1990, and thus, the nonattainment NSR requirements apply to that area. Las Vegas Valley is currently classified as a “serious” nonattainment area for both the CO and PM-10 NAAQS. See 40 CFR 81.329.

First, it should be noted that, pursuant to State law, the State of Nevada, not a local air or health district, has jurisdiction over plants which generate electricity by using steam produced by the burning of fossil fuel within the State of Nevada. The applicable State law, now codified in Nevada Revised Statutes (NRS) 445B.500, was approved by EPA as a SIP revision in 1980 as NRS 445.546(4). See 45 FR 46384 (July 10, 1980). Thus, within Clark County, the State, not DAQM, has jurisdiction over such plants that are located, or that will be constructed, in that county (including the nonattainment area). This exclusion is reflected in submitted DAQM section 12, subsection 12.1.3.2.

The Nevada State Environmental Commission (SEC), the administrative body responsible for the air quality regulations implemented by NDEP, has not adopted a preconstruction permit program that complies with part D of the Act ( i.e., Nonattainment NSR) for the nonattainment area within Clark County. Normally, because NDEP has jurisdiction over a particular category of stationary sources in a nonattainment area ( i.e., Las Vegas Valley), the State would be required to adopt and submit a Nonattainment NSR program for new major sources or major modifications within the applicable source category in the nonattainment area. However, EPA is not requiring the State to submit Nonattainment NSR rules for Las Vegas Valley because the Nevada SEC adopted a regulation (NAC 445B.22083) that prohibits new power plants or major modifications to existing power plants under State jurisdiction within the Las Vegas Valley nonattainment area, and NDEP has submitted that regulation to EPA as a revision to the SIP. We propose to approve this regulation into the Nevada SIP to resolve the regulatory gap that would otherwise exist in connection with NSR for sources under NDEP jurisdiction within the nonattainment area of Clark County.

With respect to the DAQM NSR submittal, we have concluded that it meets the applicable Nonattainment NSR requirements on the basis of the following findings:

1. The DAQM NSR submittal provides for calculation of emissions offsets based on the same emissions baseline used in the demonstration of reasonable further progress as required by section 173(a)(1)(A) of the Act ( see DAQM section 0, “emission reduction credit” and “baseline emissions”), provides for emissions offsets to be obtained when the construction permit for a new or modified source is issued and to be in effect by the time the new or modified source commences operation as required by section 173(c)(1) of the Act ( see DAQM section 59, subsection 59.4.2.6), provides for emissions increases from new major sources or major modifications to be offset by real reductions in actual emissions as required by section 173(c)(1) of the Act ( see DAQM section 0, “emission reduction credit (ERC),” and specifically paragraph (b) of that definition: “Section 58 emission reduction credit”, and DAQM section 59, subsection 59.1.5), prohibits emissions reductions otherwise required by the Act from being used for NSR offset purposes as required by section 173(c)(2) of the Act ( see DAQM section 0, “surplus,” and DAQM section 59, subsection 59.4.2.1), and provides for appropriate limitations on “prior shutdown” emission reduction credits as required in 40 CFR 51.165(a)(3)(ii)(C) ( see DAQM section 58, subsection 58.3.2.5.3).

2. The DAQM NSR submittal provides for an analysis of alternative sites, sizes, production processes, and environmental control techniques as a prerequisite to issuing construction permits to new major sources or major modifications of nonattainment pollutants as required by section 173(a)(5) of the Act ( see DAQM section 12, subsection 12.1.4.1(k)), provides for a definition of “stationary source” that includes certain internal combustion engines as required by section 302(z) of the Act ( see DAQM section 0, “stationary source”), and provides for a demonstration that all other major stationary sources under the same ownership as the proposed source are in compliance with the Act as required by section 173(a)(3) of the Act ( see DAQM section 12, subsection 12.8.2(b)).

3. The DAQM NSR submittal provides for opportunities for, and due consideration of, public comment as required by 40 CFR 51.161 and provides for substantive requirements for new or modified minor sources as required in 40 CFR 51.160 through 51.164 (see the pollutant-specific requirements in DAQM section 12, subsection 12.2 and the notice and public hearing requirements in DAQM section 12, subsections 12.3.2, 12.3.3, and 12.3.4).

4. The DAQM NSR submittal provides for appropriate stack height limitations as required in 40 CFR 51.118(a) ( see DAQM section 12, subsection 12.5.4), provides for appropriate review of a source or modification which becomes major due to a relaxation in a federally-enforceable limit as required in 40 CFR 51.165(a)(5)(ii) ( see DAQM section 0, “major modification” and “stationary source”), provides for additional requirements for any new major source or major modification that may have an impact on visibility in any mandatory Class I Federal Area as required in 40 CFR 51.307(b)(2) ( see DAQM section 12, subsection 12.12), provides for appropriate consideration of fugitive emissions as required in 40 CFR 51.165(a)(1)(iv)(C) ( see DAQM section 0, paragraph (b)(1) under “stationary source”), and provides for application of the Lowest Achievable Emission Rate (LAER) on all new major sources and major modifications of nonattainment pollutants as required in section 173(a)(2) of the Act ( see DAQM section 12, subsections 12.2.2.2, 12.2.4.2, and 12.2.23.2 for PM-10, and subsections 12.2.7.3 and 12.2.9.3 for CO).

5. The DAQM NSR submittal provides for, as required under subpart 3 of part D of title I of the Act, appropriate thresholds for major sources and major modifications in “serious” CO nonattainment areas ( see DAQM section 0, “stationary source” and “major modification”) in which stationary sources are not significant contributors to ambient CO levels ( see EPA's proposed finding related to the impact of stationary sources on ambient CO levels in Las Vegas Valley in 68 FR 4141, at 4154 (January 28, 2003)), and provides for an appropriate offset ratio ( see DAQM section 59, subsection 59.1.4, table 59.1.2).

6. The DAQM NSR submittal provides for, as required under subpart 4 of part D of title I of the Act, appropriate thresholds for major sources and major modifications in “serious” PM-10 nonattainment areas ( see DAQM section 0, “stationary source” and “major modification”) in which PM-10 precursors ( e.g., oxides of nitrogen, sulfur dioxide, and volatile organic compounds) do not contribute significantly to PM-10 levels which exceed the standards in the area ( see EPA's proposed finding related to the impact of PM-10 precursors in Las Vegas Valley in 68 FR 2954, at 2958 (January 22, 2003)), and provides for an appropriate offset ratio ( see DAQM section 59, subsection 59.1.4, table 59.1.2).

The TSD provides additional information on our evaluation of the DAQM NSR submittal relative to Nonattainment NSR requirements.

Part C of title I of the Act contains the provisions, including preconstruction permit requirements for new major sources or major modifications, for the prevention of significant deterioration (PSD) of air quality in areas designated as “attainment” or “unclassifiable” for the NAAQS. EPA's regulations for PSD permit programs are found in 40 CFR 51.166 and 40 CFR 52.21. Except for CO and PM-10 in Las Vegas Valley (hydrographic area #212), Clark County is designated as “attainment” or “unclassifiable” for the NAAQS. See 40 CFR 81.329.

EPA offers States (and local air districts) two mechanisms by which to administer PSD permitting programs. First of all, EPA may delegate the PSD permitting authority of 40 CFR 52.21 to a State or air district. For instance, EPA has provided a partial delegation of authority to NDEP to administer the Federal PSD program (set forth in 40 CFR 52.21). See 68 FR 52837 (September 8, 2003). Thus, NDEP and EPA now share responsibility for administering the PSD program as it relates to major new, or major modifications at, plants which generate electricity by using steam produced by the burning of fossil fuel in Clark County (note that, in the nonattainment portion of Clark County (Las Vegas Valley), such new or modified plants are prohibited under NAC 445B.22083).

Alternatively, a State or air district may develop its own PSD program meeting the requirements of 40 CFR 51.166, and submit these rules for inclusion in the applicable SIP. The DAQM NSR submittal has been submitted for EPA approval under 40 CFR 51.166 as well as the nonattainment NSR provisions discussed in the previous subsection of this notice. With respect to the DAQM NSR submittal, we have concluded that it meets the applicable PSD NSR requirements on the basis of the following findings:

1. The DAQM NSR submittal provides for implementation of best available control technology (BACT) for new major sources or major modifications as required in section 40 CFR 51.166(j) ( see DAQM section 12, subsections 12.2.3.2, 12.2.4.2, and 12.2.5.2 (PM-10); subsections 12.2.8.2, 12.2.9.3, and 12.2.10.2 (CO); subsections 12.2.11.2, 12.2.12.3, and 12.2.13.2 (volatile organic compounds (VOC)); subsections 12.2.14.4 and 12.2.15.2 (oxides of nitrogen (NO X )); and subsections 12.2.16.2 (sulfur dioxide (SO 2 )), 12.2.17.2 (lead (Pb)), and 12.2.19.7 (non-criteria pollutants subject to PSD)).

2. The DAQM NSR submittal provides for an appropriate air quality analysis, including pre-application air monitoring and post-construction monitoring, as required in 40 CFR 51.166(m) ( see DAQM section 12, subsections 12.2.4.4, 12.2.4.5, 12.2.5.4, and 12.2.5.5 (PM-10); subsections 12.2.9.2, 12.2.10.4, and 12.2.10.5 (CO); subsections 12.2.12.2, 12.2.13.4, and 12.2.13.5 (VOC); subsections 12.2.14.3, 12.2.15.4 and 12.2.15.5 (NO X ); subsections 12.2.16.4 and 12.2.16.5 (SO 2 ); subsections 12.2.17.4 and 12.2.17.5 (Lead); subsections 12.2.19.1 and 12.1.19.2 (non-criteria PSD pollutants; subsections 12.5.5 (PSD monitoring significance levels), 12.6.1 (pre-construction ambient air monitoring requirements), and 12.6.2 (post-construction ambient air monitoring requirements)).

3. The DAQM NSR submittal establishes the appropriate maximum allowable ambient air increments ( see DAQM section 12, subsections 12.2.3.5, 12.2.4.6, and 12.2.5.6 (PM-10); subsections 12.2.14.3 and 12.2.15.6 (NO X ); subsection 12.2.16.6 (SO 2 )) and ambient air ceilings ( see DAQM section 12, subsections 12.2.3.5(b), 12.2.4.6(c), and 12.2.5.6(c) (PM-10); subsections 12.2.9.2 and 12.2.10.4(c) (CO); subsections 12.2.12.2 and 12.2.13.4(b) (VOC); subsections 12.2.14.3 and 12.2.15.6(c) (NO X ); subsections 12.2.16.6(c) (SO 2 ) and 12.2.17.4 (Lead)) as required in 40 CFR 51.166(c) and (d). DAQM implements the ambient air ceilings by reference to submitted DAQM section 11, which contains the current NAAQS.

4. The DAQM NSR submittal provides for completion of appropriate additional impact analyses related to visibility, soils, and vegetation and appropriate additional air quality impact analysis related to general land use development as required in 40 CFR 51.166(o) ( see DAQM section 12, subsections 12.2.4.7 and 12.2.5.7 (PM-10); subsections 12.2.9.2 and 12.2.10.6 (CO); subsections 12.2.12.2 and 12.2.13.6 (VOC); subsections 12.2.14.3 and 12.2.15.7 (NO X ); and subsections 12.2.16.7 (SO 2 ), 12.2.17.6 (Lead), and 12.2.19.3 (non-criteria PSD pollutants)).

5. The DAQM NSR submittal provides for the appropriate Class II PSD classification for all areas in Clark County based on their adopted maximum allowable ambient air increments discussed above.

6. The DAQM NSR submittal provides for protection of air quality related values (including visibility) in Class I areas as required in 40 CFR 51.166(p) ( see DAQM section 12, subsections 12.2.4.6(b), 12.2.4.8, 12.2.5.6(b), and 12.2.5.8 (PM-10); subsections 12.2.9.2 and 12.2.10.7 (CO); subsections 12.2.12.2 and 12.2.13.7 (VOC); subsections 12.2.14.3, 12.2.15.6(b), and 12.2.15.8 (NO X ); subsections 12.2.16.6(b) and 12.2.16.8 (SO 2 ); subsection 12.2.17.7 (Lead); subsection 12.3.1.2(b) (notification of the Federal Land Manager (FLM) or other appropriate Federal official); subsection 12.3.4.4 (framework for coordination between DAQM and the FLM or other appropriate Federal official concerning potential impacts to Class I areas)).

7. The DAQM NSR submittal provides for agency and public participation as required in 40 CFR 51.166(p)(1) and 51.166(q) ( see DAQM section 12, subsections 12.3.1.2(b), 12.3.2, and 12.4.4)).

The TSD provides additional information on our evaluation of the DAQM NSR submittal relative to PSD NSR requirements.

Section 110(l) of the Act prohibits EPA from approving any revision of a SIP if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. For attainment pollutants in attainment areas, our evaluation considers first whether a submitted SIP revision would be as stringent as the provision in the existing applicable implementation plan that it would supercede. If so, then no further analysis is generally required. But, even if we cannot conclude that a SIP revision is as stringent as the corresponding provision in the applicable implementation plan, we may still approve the revision so long as it can be shown that the revision would not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act.

For nonattainment pollutants in nonattainment areas, one court has ruled that our evaluation must extend beyond the issue of whether the submitted SIP revision is as stringent as the existing SIP provision that it would supercede and consider the submitted SIP revision in light of current ambient air quality and nonattainment planning requirements within the applicable nonattainment area. See Hall v. EPA , 273 F.3d 1146 (9th Cir. 2001). No other court has yet decided this issue. In nonattainment areas too, we may approve SIP relaxations under section 110(l) so long as they would not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act (such as section 193 of the Act, discussed in the next section of this TSD).

Based on the detailed pollutant-by-pollutant evaluation we provide in the TSD (and summarize herein), which includes an evaluation of the incremental SIP strengthenings and relaxations in the context of pollutant emission sources, trends, air quality conditions, and planning requirements, we conclude that approval of the DAQM NSR submittal (and thereby replacement or supercession of the existing SIP NSR rules) would not interfere with any applicable requirement concerning attainment and reasonable further progress, or an other applicable requirement of the Act.

Most of the significant differences between the two NSR programs (SIP-approved versus the DAQM NSR submittal) are pollutant-specific rather than of general applicability. There are, however, two differences of general applicability that warrant discussion here: the emissions test used to define a stationary source modification and the basis for the minor (referred to as “non-major” under the submitted DAQM NSR program) source baseline date.

First, the DAQM NSR submittal would replace a “potential-to-potential” test with an “actual-to-potential” test for evaluating proposed stationary source modifications ( see existing SIP section 1, “modification” (1.52)). As a result, the existing SIP rule fails to require NSR review for modifications at major sources, which involve a significant net emissions increase in actual emissions, but no increase in the potential to emit. In contrast, the DAQM NSR submittal provides for the more protective “actual-to-potential” test for evaluating proposed modifications at major sources. This would represent a general strengthening of the NSR program compared to the existing SIP NSR program. For additional Agency discussion on the relative stringency of these two different tests for determining applicability of requirements for modifications, see our final rule on recent NSR revisions at 67 FR 80186 at 80204-80206 (December 31, 2002).

Second, through the definition of “baseline concentration” in SIP section 1, the existing SIP established a uniform minor source baseline date of August 7, 1977 in the various PSD baseline areas (which derive from the areas designated as attainment or unclassifiable by EPA under section 107(d) of the Act) within Clark County. This definition is consistent with EPA's 1978 final PSD regulations. However, the court in the Alabama Power decision set aside EPA's definition (from the 1978 PSD regulations) in favor of the statutory definition of the term ( see section 169(4) of the Act), which links the baseline concentration to the ambient concentration that exists at the time of the first PSD application in a given area. See Alabama Power Co. v. Costle , 636 F.2d 323, at 375-376 (D.C. Cir. 1979). EPA's PSD regulations have long since been revised to reflect the court's holding ( see 40 CFR 51.166(b)(13)).

While the definition of “baseline concentration” in DAQM section 0 is consistent with the current EPA definition, EPA approval of this definition to supercede the SIP definition would have the effect of untriggering (completely) the minor source baseline dates for PM and SO 2 in those section 107(d) attainment or unclassifiable areas in which no source or modification has submitted a complete PSD application or would have a significant impact. Examples of such areas include Frenchman Flat (hydrographic area (HA) 160), Indian Springs Valley (HA 161), and Pahrump Valley (HA 162).

For those areas in which a source or modification has submitted a complete PSD application or would have a significant impact, EPA approval would have the effect of establishing a new minor source baseline date for PM or SO 2 or both, i.e., from August 7, 1977 to various different (more recent) dates in the applicable areas. Examples include Las Vegas Valley (HA 212), which would have a new minor source baseline date for SO 2 of April 25, 1996 (triggered by a complete PSD application submitted by TIMET) and Black Mountains (HA 215), which would have a new minor source baseline date for PM of December 14, 1990 (triggered by a complete PSD application submitted by NCA #2).

Arguably, untriggering (or re-establishing new, more recent) minor source baseline dates represents a relaxation because a greater level of air quality degradation would be allowed compared to a regulatory scheme in which the baseline date and concentration is set uniformily for all areas at August 7, 1977. However, this particular type of change aligns the Clark County NSR program with the statute ( see section 169(4) of the Act) and thus, can also be viewed as a correction rather than as a relaxation. We conclude, therefore, that approval of the DAQM NSR submittal would serve the Congressional purposes described in the Alabama Power decision, and that the untriggering (or re-setting) of PSD minor source baseline dates in Clark County under these circumstances would be consistent with section 110(l) of the Act. Section 110(l) prohibits interference with any applicable requirement of the Act, and in this case the SIP revision will bring the Clark County program in line with the requirements of the Act as interpreted by the court. Thus, EPA concludes that approval is consistent with section 110(l). We also note that our approval of the DAQM NSR submittal would have little practical effect on the PSD program as it is being administered currently by DAQM since DAQM has not been administering the program under the assumption that there is a uniform county-wide minor source baseline date ( i.e., as provided for in the existing SIP NSR program) but rather under the assumption that the minor source baseline date is triggered on an area-by-area basis by the submittal of the first complete PSD application in a given area.

Carbon Monoxide (CO). As noted previously, a sub-region within Clark County, the Las Vegas Valley (hydrographic area #212), is designated as a “serious” nonattainment area for the CO NAAQS. Clark County has developed and adopted a “serious area” attainment plan which relies primarily on the Federal motor vehicle control program, and State and local wintertime gasoline specifications (such as DAQM sections 53 (Oxygenated Gasoline Program) and 54 (Cleaner Burning Gasoline), and an “enhanced” motor vehicle inspection and maintenance program to demonstrate attainment of the CO NAAQS by the applicable attainment date (year 2000). We have proposed approval of this plan. See 68 FR 4141 (January 28, 2003) for our proposed approval of the Las Vegas Valley “serious area” CO attainment plan. The rest of the county is designated unclassifiable/attainment for the CO NAAQS. See 40 CFR 81.329.

Approval of the DAQM NSR submittal (and thereby replacement or supercession of the existing SIP NSR rules) would represent an incremental relaxation in the control technology requirement for new or modified non-major CO sources within Las Vegas Valley ( i.e., from LAER to BACT), but would also represent an incremental strengthening by imposing more stringent offset requirements. The offset requirements would be strengthened in two respects: the threshold for the offset requirement would be lowered to 70 tons per year (tpy) from 100 tpy and the offset ratio would be increased to 2:1 from 1:1. Given (1) that the more inclusive “actual-to-potential test” would replace the “potential-to-potential” test for evaluating source modifications; (2) that the incremental relaxation in the control technology requirement would replace the highest level of control (LAER) with the next highest (BACT) level of control and this incremental difference is offset by an incremental strengthening in the offset requirement; (3) that DAQM section 12 prohibits new or modified CO stationary sources with potentials to emit (PTEs) greater than 50 tpy in the downtown CO “hot spot” area; (4) that the Las Vegas Valley “serious area” CO attainment plan assumes growth in non-major stationary CO sources ( i.e., does not assume that the CO emissions from non-major sources would be offset), concludes that stationary sources are not a significant contributor to CO levels in the valley, and does not rely on stationary source controls to demonstrate attainment; and (5) that EPA has proposed approval of the CO attainment demonstration based on on-road motor vehicle controls, we have concluded that the supercession of the existing SIP NSR program by the submitted NSR program would not interfere with the CO attainment strategy or any other applicable requirement of the Act.

Particulate Matter (PM-10). As noted previously, Las Vegas Valley (hydrographic area #212), is designated as a “serious” nonattainment area for the PM-10 NAAQS. Clark County has developed and adopted a “serious area” attainment plan which relies primarily on prohibitory rules regulating fugitive dust sources, including vehicle travel over paved and unpaved roads and construction activity, to demonstrate attainment of the PM-10 NAAQS by year 2006. We have proposed approval of this plan. See 68 FR 2954 (January 22, 2003) for our proposed approval of the Las Vegas Valley “serious area” PM-10 attainment plan. The rest of the county is designated on a hydrographic area basis as “unclassifiable” for the PM-10 NAAQS, see 40 CFR 81.329, but PM-10 NAAQS violations have been recorded in Apex Valley, which borders Las Vegas Valley to the north.

In general, approval of the DAQM NSR submittal would strengthen the SIP by updating the PM increments in terms of PM-10 (rather than total suspended particulate (TSP)). EPA replaced the PM NAAQS, measured as TSP, with new PM NAAQS, measured as PM-10, in 1987. See 52 FR 24634 (July 1, 1987). With respect to Las Vegas Valley, approval of the DAQM NSR submittal (and thereby replacement or supercession of the existing SIP NSR rules) would represent an incremental relaxation in the control technology requirement for new or modified non-major PM-10 sources ( i.e. , from the most stringent level of control, LAER to the next highest level of control, BACT), and in the offset requirement (from “federal” to “local” offsets) for new or modified sources with PTEs from 15 tpy (as adjusted from 25 tons TSP) to 70 tpy, but it would also represent an incremental strengthening by establishing a more stringent offset ratio (2:1) to replace the current ratio (1:1). Given (1) that the more inclusive “actual-to-potential test” would replace the “potential-to-potential test” for evaluating source modifications; (2) that the offsetting effects of these changes to the NSR program would ensure a negligible effect on PM-10 emissions; (3) that the submitted NSR program conforms to that PM-10 attainment plan in that the plan assumes BACT- rather than LAER-level of control for new or modified non-major sources in Las Vegas; (4) that the Las Vegas Valley “serious area” PM-10 attainment plan concludes that stationary sources are not a significant contributor to PM-10 NAAQS violations in the valley, and does not rely on stationary source controls to demonstrate attainment; and (5) that EPA has proposed approval of the demonstration based on fugitive dust controls, we have concluded that the supercession of the existing SIP NSR program by the submitted NSR program would not interfere with the PM-10 attainment strategy or any other applicable requirement of the Act.

With respect to Apex Valley, the incremental relaxation in the control technology requirement (from LAER to BACT) and the elimination of any offset requirement, when viewed in isolation, could appear to potentially interfere with attainment of the PM-10 NAAQS in that area given the monitored incidence of PM-10 NAAQS violations in the area. However, EPA recognizes that Clark County is in the process of extending additional regulatory controls to existing PM-10 sources in the Apex Valley and to developing a Natural Events Action plan to address those PM-10 NAAQS violations that result from high wind events that occur there, and in that context, EPA believes that the incremental relaxation in requirements for new or modified stationary sources would not interfere with attainment of the PM-10 NAAQS in Apex Valley since the attainment strategy, by necessity, will focus on existing sources and high-wind-driven fugitive dust.

Ozone . Las Vegas Valley (hydrographic area #212) was designated as a nonattainment area for the ozone NAAQS in 1978. Pursuant to the Clean Air Act Amendments of 1977, Clark County developed and adopted the Las Vegas Valley Air Quality Implementation Plan in 1978 as an attainment plan for the ozone NAAQS. This plan was revised in 1980 and then again in 1984. The attainment strategy relied primarily on the Federal motor vehicle emission control program, the NSR program ( i.e. , existing SIP sections 1, 11, and 15), and various stationary source prohibitory rules (including SIP sections 33, 50, 51, 52, and 60), which relate to sources of chlorine (found to be a significant ozone precursor in Las Vegas Valley) and VOC sources, such as petroleum product storage and handling. We approved these plan submittals at various times (see, e.g. , 51 FR 29923, August 21, 1986). Based on monitoring data documenting the necessary decrease in peak ozone concentrations, we redesignated Las Vegas Valley as “attainment” for the (one-hour) ozone NAAQS in 1986. See 51 FR 41788 (November 19, 1986). Since then, peak ozone levels have remained relatively constant at 0.09 parts per million (ppm) to 0.10 ppm, but peak levels in recent years have approached the one-hour standard of 0.12 ppm. The current (one-hour) ozone NAAQS designation for Clark County is unclassifiable/attainment. See 40 CFR 81.329.

Approval of the DAQM NSR submittal (and thereby replacement or supercession of the existing SIP NSR rules) would represent an incremental relaxation in the control technology requirement for new or modified non-major VOC sources within Las Vegas Valley ( i.e. , from LAER to BACT), however, the DAQM NSR submittal extends LAER level of control to new or modified major VOC sources proposed for certain locations adjacent to, and generally upwind of Las Vegas Valley ( i.e. , Eldorado Valley and Ivanpah Valley. In these adjacent areas, the applicable control technology requirement under the existing SIP NSR rules is BACT. Given that the 1980's-era ozone attainment strategy relies on several important VOC regulatory elements that would not be affected by our action on the NSR program, e.g. , stationary source prohibitory SIP rules ( i.e. , SIP sections 33, 50, 51, 52, and 60) and motor vehicle tailpipe and fuel regulations promulgated by EPA under title II of the Act, and that the incremental relaxation in the control technology requirement for new or modified sources of VOC in Las Vegas Valley would replace the highest level of control (LAER) with the next highest level of control (BACT) and would be partially offset by an incremental strengthening in that requirement in upwind areas, we have concluded that the approval of the DAQM NSR submittal (and thereby replacement or supercession of the existing SIP NSR rules) would not interfere with continued attainment of the one-hour ozone NAAQS or any other applicable requirement of the Act. We note that Clark County has been designated as nonattainment for the eight-hour ozone NAAQS, which EPA established in 1997 (62 FR 38856, July 19, 1997) and which will in time replace the existing (one-hour) ozone NAAQS. 69 FR 23858, 23919-23920 (April 30, 2004). Additional changes to the DAQM NSR program will be required on a schedule to be established by EPA in a final rule implementing the eight-hour ozone NAAQS. See 69 FR 23951, 23985-23986 (April 30, 2004).

Nitrogen Dioxide ( NO 2 ) . Clark County is designated on a hydrographic area basis as unclassifiable/attainment for the NO 2 NAAQS. See 40 CFR 81.329. Ambient NO 2 concentrations are well below (approximately 50%) the applicable NAAQS.

As a general matter, approval of the DAQM NSR submittal would strengthen the SIP by establishing NO 2 PSD increments and requiring the related NO 2 PSD increment consumption analysis for new major sources or major modifications in Clark County. Within Las Vegas Valley, approval of the DAQM NSR submittal (and thereby replacement or supercession of the existing SIP NSR rules) would relax the control technology requirement for new or modified sources of NO X (from LAER to BACT), but this relaxation would be offset by the special restrictions established in DAQM section 12 for new or modified NO X sources in the urbanized core of Las Vegas. From the standpoint of continued attainment of the NO 2 NAAQS, while the net effect (negative or positive) of these offsetting regulatory changes is difficult to predict, it would not be expected to be significant given that the relaxed control technology requirement is from the highest level of control (LAER) to the next highest level of control (BACT) rather than an elimination of the control technology requirement completely and given that, as noted above, ambient NO 2 concentrations are well below the applicable NAAQS. Thus, we have concluded that the supercession of the existing SIP NSR program by the submitted NSR program would not interfere with continued attainment of the NO 2 NAAQS or any other applicable requirement of the Act.

Sulfur Dioxide ( SO 2 ) . Clark County is designated on a hydrographic area basis as unclassifiable/attainment for the SO 2 NAAQS. See 40 CFR 81.329. SO 2 monitoring data collected in Las Vegas Valley in the early 1980's indicate that the highest ambient concentrations were between 5% and 22% of the respective NAAQS depending upon the averaging period. Monitoring data from year 2002 show little change in ambient SO 2 concentrations relative to conditions in the early 1980's.

Approval of the DAQM NSR submittal (and thereby replacement or supercession of the existing SIP NSR rules) would represent an incremental relaxation in the control technology requirement for new or modified SO 2 sources within Las Vegas Valley ( i.e. , from LAER to BACT) and an incremental relaxation in the ambient SO 2 standards used in the impact analyses conducted as part of the permit application process for new or modified sources (comparing the SO 2 ambient standards in existing SIP section 11 with submitted DAQM section 11). From the standpoint of continued attainment of the SO 2 NAAQS, EPA concludes that the incremental relaxation of the control technology requirement in Las Vegas Valley for new or modified sources of SO 2 is not significant given that the relaxed requirement is from the highest level of control (LAER) to the next highest level of control (BACT) rather than an elimination of the control technology requirement completely and given that ambient SO 2 concentrations continue to be well below the applicable NAAQS. Also, NDEP has jurisdiction over one of the principal sources of SO 2 (coal-burning power plants) in Clark County, and the control technology requirements for SO 2 emissions from those sources are unaffected by this action. Finally, the incremental relaxation in SO 2 ambient air quality standards used in the permit application evaluation process is consistent with continued attainment of the NAAQS since the revised ambient standards in submitted DAQM section 11 accurately reflect the current NAAQS for SO 2 . Thus, we have concluded that supercession of the existing SIP NSR program by the submitted NSR program would not interfere with continued attainment of the SO 2 NAAQS or any other applicable requirement of the Act.

Lead . EPA promulgated the NAAQS for lead (Pb) in 1978. See 43 FR 46246 (October 5, 1978). Ambient lead levels collected in Las Vegas Valley during the late 1970's were found to violate the NAAQS. To provide for the attainment and maintenance of the lead NAAQS in the valley, Clark County adopted the State Implementation Plan Revision for Ambient Lead in Las Vegas Valley, Clark County, Nevada (dated February 11, 1980). EPA approved this plan as a SIP revision in 1982. See 47 FR 28374 (June 30, 1982). This lead (Pb) attainment plan predicted attainment of the lead NAAQS prior to 1982 primarily based on the declining lead content of motor vehicle gasoline, and indeed, maximum quarterly concentrations were much less than the NAAQS by the mid-1980's.

In general, the DAQM NSR submittal represents a strengthening of the SIP with respect to lead in those portions of Clark County that lie outside of Las Vegas Valley but an incremental relaxation of the SIP within Las Vegas Valley. However, from the standpoint of continued attainment of the lead NAAQS in Las Vegas Valley, the relaxation of certain NSR requirements for new or modified stationary sources of lead ( de minimis exemptions, a BACT control technology requirement rather than LAER, elimination of offsets) would not interfere with continued attainment of the lead NAAQS nor any other requirement of the Act because the incremental relaxation of the control technology requirement is from the highest level of control (LAER) to the next highest level of control (BACT) rather than an elimination of the control technology requirement completely and because the DAQM NSR submittal continues to ensure that permits are not issued to new or modified sources that would cause a violation of the lead NAAQS ( see DAQM section 12, subsection 12.2.17.4(c)). Moreover, the overwhelming influence of mobile sources to the historical lead NAAQS violations, which would be unaffected by approval of the DAQM NSR submittal, and the low background lead concentrations further ensure that supercession of the existing NSR SIP program with the submitted NSR SIP program would not interfere with continued attainment of the lead NAAQS or any other requirement of the Act.

Section 193 of the Act, which was added by Congress in the Clean Air Act Amendments of 1990, includes a savings clause which provides, in pertinent part: “No control requirement in effect, or required to be adopted by an order, settlement agreement, or plan in effect before November 15, 1990, in any area which is a nonattainment area for any air pollutant may be modified after November 15, 1990, in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant.” This section of the Act does not clearly apply to revisions in NSR programs, but we have evaluated the DAQM NSR submittal on the assumption that section 193 does apply. NSR program revisions are inherently difficult to evaluate with respect to changes in emissions reductions because NSR covers all types of stationary sources and provides for case-by-case evaluations of control technology requirements whether the applicable requirement is BACT or LAER ( see 40 CFR 51.166(b)(12) and 40 CFR 51.165(a)(1)(xiii)). In the context of the DAQM NSR submittal, a determination of whether the submitted NSR program would provide for equivalent or greater emission reductions relative to the existing SIP NSR program is further complicated by the comprehensive nature of the changes. The DAQM NSR submittal represents a wholesale revision affecting the substance, procedure, and format of the Clark County NSR program. Nevertheless, we can identify three parameters that most closely link to relative changes in emissions reductions from new or modified stationary sources: the test for evaluating source modifications, the control technology review, and the requirements for offsets, including offset thresholds, offset ratios, and the other specifications for creation and use of offsets. As explained below, relaxation in some of these parameters is offset by countervailing strengthenings in other parameters with the net result that we can conclude that the submitted NSR program will provide for equivalent or greater emissions reductions as the existing SIP NSR program (which pre-dates the 1990 Clean Air Act Amendments) for the two applicable nonattainment pollutants, CO and PM-10.

Test for Source Modifications . As noted previously, the submitted DAQM NSR program would establish the more inclusive test (“actual to potential”) for evaluating source modifications and thereby replace the existing SIP NSR program's “potential-to-potential” test, with the result that a greater number of source modifications would be subject to new source review and the related requirements of BACT or LAER.

Control Technology Requirements . Under the existing SIP NSR program, the highest level of control (LAER) applies to all new or modified sources of CO or PM in the nonattainment area. In contrast, under the submitted DAQM NSR program, the next highest level of control, BACT, applies to new or modified sources of CO and PM with PTEs less than 70 tpy. Under the submitted NSR program, LAER applies at 70 tpy or greater for CO and PM-10.

Offsets Requirements . Offsets requirements refer to applicable thresholds, ratios, and specifications such as whether offsets are surplus, permanent, quantifiable and federally enforceable. With respect to offset thresholds, for CO, offsets under the existing SIP NSR program apply to sources or modifications with PTEs greater than 100 tpy, whereas, under the submitted NSR program, offsets apply at 70 tpy. For PM, offsets under the existing SIP NSR program apply to sources or modifications with PTEs greater than 25 tpy (based on TSP, which is roughly equivalent to 15 tpy PM-10). The corresponding threshold under the submitted NSR program is 70 tpy of PM-10. With respect to offset ratios, for both CO and PM, the existing SIP NSR program establishes a 1:1 ratio whereas the submitted NSR program establishes a more stringent a 2:1 ratio. With respect to specific characteristics of offsets, DAQM section 59 requires that offsets be surplus, permanent, quantifiable and federally enforceable as defined in DAQM section 0. See DAQM section 59, subsection 59.4.2.1, and the related definitions in DAQM section 0. Section 15 does not have any similar requirements for offsets.

Evaluation for Carbon Monoxide. First, as noted above, the submitted program would establish the more inclusive “actual-to-potential” test for evaluating source modifications. Second, the submitted program would establish a lower threshold for triggering offset requirements (70 tpy under the submitted NSR program versus 100 tpy under the existing SIP NSR program), would establish a higher offset ratio (2:1 versus 1:1), and would establish the requirements for creation and use of offsets (surplus, permanent, quantifiable and federally enforceable) that ensure that emissions increases are truly offset. Thus, two of the three parameters strongly support a conclusion that the submitted program would provide equivalent or greater CO emissions reductions relative to the existing SIP NSR program.

One of the three parameters, the control technology requirement, is more stringent for non-major sources under the existing SIP NSR program than under the submitted program. The existing SIP NSR program requires LAER-level of control for non-major CO sources whereas the submitted DAQM NSR program requires BACT-level of control for such sources. The emissions reductions associated with application of LAER-level of control relative to those associated with application of BACT-level of control depend upon the type and size of proposed sources or modifications. In some instances, due to the “top-down” approach used in BACT analyses, which requires justification for not selecting LAER-level of control before evaluating less stringent levels of control, BACT is equivalent to LAER. This “top-down” approach for determining BACT is described in detail in Chapter B of EPA's Draft New Source Review Workshop Manual (October 1990). In most other instances, the differences in emissions limitations between the two levels of control are relatively small, particularly in relation to emissions that would otherwise result from an uncontrolled source.

Thus, we have concluded that the CO emissions increase associated with the incremental relaxation associated with the control technology requirement for non-major sources, which should be relatively minor given the small difference between emissions limitations under BACT versus LAER in most circumstances, would be more than compensated for by the more inclusive test for source modifications, the lower CO offset threshold, the higher CO offset ratio, and the establishment of other requirements for offsets that ensure that they truly offset emissions from applicable new sources or modifications.

Evaluation for Particulate Matter. As noted above, the submitted DAQM NSR program would establish the more inclusive “actual-to-potential” test for evaluating source modifications.

The second parameter, the control technology requirement (LAER), is more stringent for non-major sources under the existing SIP NSR program than under the submitted program (BACT). As described above for CO, however, the difference between the emissions reductions associated with application of LAER-level of control relative to those associated with application of BACT-level of control typically ranges from minor to none at all.

With respect to requirements for PM offsets, the differences between the existing SIP and submitted NSR programs are particularly difficult to evaluate. On one hand, the existing SIP NSR program has established a lower offset threshold at 25 tpy of TSP (which is roughly equivalent to 15 tpy of PM-10), compared to 70 tpy of PM-10 under the submitted program. On the other hand, the existing program has established a lower offset ratio (1:1 versus 2:1).

Moreover, the “quality” of the offsets under the existing program is lower than that required under the submitted program in two respects. First, unlike the submitted program, the existing SIP NSR program does not require that offsets be surplus, permanent, quantifiable and federally enforceable and thus does not ensure that increases in emissions are truly offset. Second, the existing SIP NSR program allows TSP offsets to be used to offset increases in PM emissions. Depending upon the particle size distribution of those TSP offsets, it is possible that increases in PM-10 emissions under the existing SIP NSR program would not be offset by PM-10 offsets at all. In other words, a new source that generates particulate matter that is largely or entirely of the particle size constituting PM-10 could be “offset” under the existing program by another source whose PM emissions are largely or entirely of a particle size not constituting PM-10 but still constituting TSP (TSP includes particles roughly 30 microns in diameter or less). In such circumstances, the PM-10 emissions increase at the new source would be at most only partially offset since the “offsets” do not, or only partially, constitute PM-10. In contrast, the submitted program, while it does not require offsets for as many new sources as the existing program (due to the higher offset threshold), does require that PM-10 emissions increases be offset by PM-10 offsets, i.e. , where offsets are required.

In conclusion, while we recognize the significant trade-offs in emission reduction potential between the two NSR programs with respect to PM-10, we have concluded that the PM-10 emissions increase associated with the incremental relaxation associated with the control technology requirement for non-major sources and the higher offset threshold would be more than compensated for by the more inclusive test for source modifications, the higher PM-10 offset ratio, the establishment of other requirements for offsets that ensure that they truly offset emissions from applicable new sources or modifications, and the requirement to use PM-10 offsets rather than TSP offsets, only some fraction of which constitutes PM-10.

Conclusion. For the reasons set forth above, we propose to find that the submitted DAQM NSR program insures equivalent or greater emissions reductions of CO and PM-10 as compared to the existing SIP NSR program in compliance with section 193 of the Act.

Pursuant to section 110(k)(3) of the Act, we propose a partial approval of the submitted NSR rules. With the exceptions listed in the following subsection of this notice, we propose approval of the submitted NSR rules, including DAQM sections 0, 11, 12, 58, and 59 and NAC 445B.22083, based on our determination that the rules comply with applicable statutory and regulatory provisions requiring regulation of stationary sources in general and requiring permit programs for major stationary sources in particular, including section 110(a)(2)(C) and parts C and D of title I of the Act. In support of this recommendation, we have concluded that our approval of the submitted NSR rules (and thereby replacement or supercession of the existing SIP NSR rules), i.e. , with the partial exception for certain definitions in existing SIP section 1, complies with section 110(l) of the Act because the untriggering (or re-setting) of the minor source baseline dates for PM and SO 2 would be consistent with the statutory purpose of linking such dates with collection of actual air quality data and because the relaxation of certain control technology and offset requirements would not interfere with the strategy for attainment of the CO and PM-10 NAAQS in Las Vegas Valley or the continued attainment of the other NAAQS in Clark County.

We are also proposing a partial disapproval of the DAQM NSR submittal. A discussion of the individual subsections of the submittal that we are proposing to disapprove is provided in the following paragraphs.

1. We propose to disapprove submitted DAQM section 12, subsections 12.2.18 (HAP sources in Clark County) and 12.2.20 (Additional Requirements for Stationary Sources with Beryllium, Mercury, Vinyl Chloride, or Asbestos Emissions in Clark County) to avoid potential confusion or conflict with the Federal NESHAPS/MACT regulatory program. Regulations governing hazardous air pollutant (HAP) emissions are generally not appropriate for incorporation into SIPs, which are intended under the Act to assure attainment and maintenance of the criteria air pollutants.

2. We propose to disapprove DAQM section 52, subsection 52.8 (Section 52 Offset Program), because it cannot be evaluated properly in the absence of a SIP submittal of the entire rule (section 52). DAQM revised subsection 52.8 to clarify the date when the emission reduction credit program will expire, but the emission reduction credit program is not a part of existing SIP section 52, different portions of which were approved by EPA in 1981 ( see 46 FR 21758, April 14, 1981) and in 1982 ( see 47 FR 26386, June 18, 1982). Thus, consideration of this latest revision should be conducted only as part of an evaluation of the entire rule ( i.e. , DAQM section 52).

A partial disapproval is appropriate in this instance given the explanation provided above and given that these three subsections ( i.e. , DAQM section 12, subsections 12.2.18 and 12.2.20, and DAQM section 52, subsection 52.8) are easily severable from the overall NSR submittal.

The TSD describes rule deficiencies that do not preclude full approval of the DAQM NSR submittal but are recommended for the next time DAQM modifies the rules. These recommendations relate to such topics as use of consistent terms, greater coordination with NDEP concerning increment consumption, and consideration of any analysis of the impact of a major source or major modification on air quality related values in Class I areas provided by a Federal Land Manager or other Federal official during the permit application review period and provision of an explanation in the public notice in those instances which DAQM disagrees with a finding of such Federal official.

In pertinent part, section 110(k)(6) of the Act provides that whenever EPA determines that the EPA action approving, disapproving, or promulgating any plan or plan revision (or part thereof) was in error, EPA may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the State. Such determination and the basis thereof shall be provided to the State and public. The EPA interprets this provision to authorize the Agency to make corrections to an approval, disapproval, or promulgation of a SIP revision when it is shown to EPA's satisfaction that an error occurred in failing to consider or inappropriately considering information available to EPA at the time of the approval, disapproval, or promulgation, or the information made available at the time of approval, disapproval, or promulgation is subsequently demonstrated to have been clearly inadequate.

Over the years, EPA has taken numerous actions on revisions to the Clark County portion of the Nevada SIP. In the process, EPA has made certain errors, or took certain actions that warrant clarification, which are the subject of this proposed action. Each proposed correction or clarification is summarized below. The TSD for this proposed action provides additional discussion of these rules.

SIP section 1, subsections 1.79, Significant Source of Total Chlorides, and 1.94, Total Chlorides. In the preamble to our final rule approving these defined terms into the SIP (46 FR 43141; August 27, 1981), we said that we were taking no action on these two subsections, but then we proceeded to codify them in the “Identification of plan” section of 40 CFR part 52, subpart DD (Nevada). As a result, we inadvertently approved these two subsections of local rule, SIP section 1 (Definitions), into the Clark County portion of the Nevada SIP. We are proposing now to delete these terms from the SIP and to codify this deletion by revising the appropriate paragraph under 40 CFR part 52, subpart DD (Nevada), section 1470 (Identification of plan).

Former SIP section 12, Upset, Breakdown, or Scheduled Maintenance. EPA originally approved this rule into the SIP in 1973. See 38 FR 12702 (May 14, 1973). In 1981, we reversed course and disapproved it and codified this disapproval by amending 40 CFR part 52, section 1478 (then entitled “Rules and Regulations”). See 46 FR 43141 (August 27, 1981). Subsequently, Clark County renumbered its air pollution regulations and submitted a local rule (section) 25 also entitled “Upset, Breakdown, or Scheduled Maintenance,” which we disapproved in 1984. See 49 FR 10259 (March 20, 1984). In that 1984 final rule, we codified our disapproval of submitted section 25 by amending 40 CFR 52.1483, but we also removed and reserved 40 CFR 52.1478 which had included the 1981 disapproval language related to section 12 (Upset, Breakdown, or Scheduled Maintenance). (Note that 40 CFR 52.1478 has subsequently been renamed “Extensions.”) The end result of this sequence of rulemaking is that, while section 12 (Upset, Breakdown, or Scheduled Maintenance), originally approved by EPA in 1973, is no longer approved into the Nevada SIP (ever since disapproval action in 1981), the current codification of the Nevada SIP in subpart DD (Nevada) of 40 CFR part 52 is not clear on this point. Therefore, we are proposing to clarify the status of former SIP (now disapproved) section 12 (Upset, Breakdown, or Scheduled Maintenance), as submitted on January 19, 1973, by revising the appropriate paragraph under 40 CFR part 52, subpart DD (Nevada), section 1470 (Identification of plan).

SIP Section 15, Prohibition of Nuisance Conditions. EPA approved this rule into the Nevada SIP in 1973. See 38 FR 12702 (May 14, 1973). Clark County later renumbered its air quality regulations, and we subsequently approved a new local rule (section) 15 (Source Registration) into the SIP. That new SIP section 15 (Source Registration) had nothing to do with general nuisance conditions and thus did not supercede the old SIP rule 15 (Prohibition of Nuisance Conditions) in the Nevada SIP. However, general nuisance rules, such as SIP section 15 (Prohibition of Nuisance Conditions) are not appropriate for inclusion in SIPs, because they are not specifically directed at the attainment and maintenance of the NAAQS, and therefore, we are proposing to delete section 15 (Prohibition of Nuisance Conditions) from the SIP and to codify this deletion by revising the appropriate paragraph under 40 CFR part 52, subpart DD (Nevada), section 1470 (Identification of plan).

Disapproved section 25, subsection 25.1, untitled, but related to upset, breakdown or scheduled maintenance. In 1981, we disapproved this rule, which had been submitted to us on July 24, 1979. See 46 FR 43141 (August 27, 1981). Through that 1981 action, we listed this rule in the “Identification of plan” section of 40 CFR part 52, subpart DD (Nevada) but canceled out the apparent approval by codifying the corresponding disapproval in 40 CFR 52.1478. In 1984, we disapproved an amended version of local Clark County rule, section 25 (Upset, Breakdown, or Scheduled Maintenance), which had been submitted to us on November 17, 1981. See 49 FR 10259 (March 20, 1984). In the 1984 action, we codified our disapproval of section 25 (Upset, Breakdown, or Scheduled Maintenance), submitted on November 17, 1981, by amending 40 CFR 52.1483, but we also removed and reserved 40 CFR 52.1478 (then entitled “Rules and Regulations”), which had included the 1981 disapproval language related to section 25, subsection 25.2, as submitted on July 24, 1979. By removing the disapproval language but retaining the listing of section 25, subsection 25.1, in the “Identification of plan” section of 40 CFR part 52, subpart DD (Nevada), we have inadvertently caused potential confusion as to the status of this particular rule with respect to the Nevada SIP. To eliminate this confusion, we are proposing to delete the listing of section 25, subsection 25.1 (untitled, but related to upset, breakdown or scheduled maintenance), by revising the appropriate paragraph under 40 CFR part 52, subpart DD (Nevada), section 1470 (Identification of plan).

SIP section 29 (Odors in the Ambient Air). EPA originally approved this rule into the SIP in 1973. See 38 FR 12702 (May 14, 1973). Clark County later renumbered its air pollution regulations, and we subsequently approved a new local rule (section) 29 (Sulfur Content in Fuel Oil) into the SIP. See 46 FR 43141 (August 27, 1981). The new SIP section 29 (Sulfur Content in Fuel Oil) was completely different than the old SIP section 29 (Odors in the Ambient Air) and thus did not supercede it, nor have we taken specific action to delete the old SIP section 29 (Odors in the Ambient Air) from the Nevada SIP. Thus, section 29 (Odors in the Ambient Air), submitted on January 19, 1973, remains in the Nevada SIP. Odor nuisance rules are generally not appropriate for inclusion in the SIP, because they are not specifically directed at the attainment and maintenance of the NAAQS. Therefore, we are proposing to delete section 29 (Odors in the Ambient Air), submitted on January 19, 1973, from the Nevada SIP and to codify the deletion by revising the appropriate paragraph under 40 CFR part 52, subpart DD (Nevada), section 1470 (Identification of plan).

SIP section 33, Chlorine in Chemical Processes. This local rule was adopted on May 18, 1984, and was included in the Las Vegas Valley Air Quality Implementation Plan, Post 1982 Update for Ozone, which was adopted by Clark County on October 16, 1984, submitted by NDEP on January 11, 1985, and approved by EPA as a SIP revision on August 21, 1986 (51 FR 29923). The codification of our approval of the post-1982 ozone plan, however, does not provide a separate listing of section 33, which could result in confusion as to the status of that rule with respect to the SIP. See 40 CFR 52.1470(c)(33). To clarify its status as an approved part of the Nevada SIP, we are proposing to revise 40 CFR 52.1470(c)(33) to provide for a specific listing for section 33 (Chlorine in Chemical Processes).

SIP section 40, subsection 40.1, Prohibition of Nuisance Conditions; SIP section 42, subsection 42.2, untitled but related to nuisance from open burning; and SIP section 43, subsection 43.1, Odors in the Ambient Air. These three rules were submitted to EPA on July 24, 1979. In 1981, we took final action on the portion of the July 24, 1979 submittal that included these three rules. See 46 FR 43141 (August 27, 1981). In that rulemaking, we indicated that we were taking no action on the three rules, but we inadvertently listed them as approved into the SIP. See 40 CFR 52.1470(c)(16)(viii). Therefore, we are proposing to revise 40 CFR 52.1470(c)(16)(viii) to delete SIP section 40, subsection 40.1 (Prohibition of Nuisance Conditions), SIP section 42, subsection 42.2 (untitled but related to nuisance from open burning), and SIP section 43, subsection 43.1 (Odors in the Ambient Air), submitted on July 24, 1979, from the Nevada SIP.

Conclusion. EPA has reviewed the rules described above and determined that they were previously approved in error into the Clark County portion of the Nevada SIP (SIP sections 1.79, 1.94, 15, 29, 40.1, 42.2, and 43.1), or were previously disapproved but not clearly identified as such in the CFR (former SIP section 12 and disapproved submitted section 25.1), or were not clearly listed as approved (SIP section 33). Deletion of those rules approved in error into the SIP will not relax the applicable SIP and is consistent with the Act. Therefore, EPA is proposing to delete them and to clarify the status of the other listed rules under section 110(k)(6) of the Act, which provides EPA with the authority to take these actions without additional State submission.

As authorized under section 110(k)(3) of the Act, EPA is proposing a partial approval and partial disapproval of the revised Clark County NSR rules into the Nevada SIP. We are proposing to approve submitted DAQM sections 0, 11, 12 (except subsections 12.2.18 and 12.2.20), 58, and 59 and submitted State regulation NAC 445B.22083. We are proposing to disapprove submitted DAQM section 12, subsections 12.2.18 and 12.2.20, and submitted DAQM section 52, subsection 52.8.

If finalized, this action would incorporate those provisions of the submitted rules that we are approving into the SIP and would not incorporate those provisions that we are disapproving. Also, if finalized as proposed, the submitted rules will supercede the existing SIP rules that provide for permitting of new or modified stationary sources in Clark County, including all of existing SIP sections 11 and 15, as well as most of the defined terms in existing SIP section 1, and will withdraw EPA's nonattainment area visibility FIP authority as it relates to new source review by DAQM in Clark County (see 40 CFR 52.1488(b)). If this partial disapproval is finalized, sanctions will not be imposed under section 179 of the Act because the provisions that we are proposing to disapprove are not required SIP submissions.

With respect to the two local rules entitled “Definitions,” if we finalize this action as proposed, we would approve submitted DAQM section 0 (Definitions) in its entirety, including those terms not directly related to NSR, but we would retain 33 defined terms from SIP section 1 (Definitions) because there are no equivalent, corresponding terms and definitions in DAQM section 0, and thus, these terms may be needed for existing SIP rules unaffected by this action. The 33 defined terms from SIP section 1 to be retained include: Affected Facility (1.1), Air Contaminant (1.3), Air Pollution Control Committee (1.6), Area Source (1.11), Atmosphere (1.12), Board (1.16), Commercial Off-Road Vehicle Racing (1.23), Dust (1.26), Existing Facility (1.28), Existing Gasoline Station (1.29), Fixed Capital Cost (1.30), Fumes (1.36), Health District (1.40), Hearing Board (1.41), Integrated Sampling (1.44), Minor Source (1.50), Mist (1.51), New Gasoline Station (1.57), New Source (1.58), NIC (1.60), Point Source (1.70), Shutdown (1.78), Significant (unnumbered), Single Source (1.81), Smoke (1.83), Source of Air Contaminant (1.84), Special Mobile Equipment (1.85), Standard Commercial Equipment (1.87), Standard Conditions (1.88), Start Up (1.89), Stop Order (1.91), Uncombined Water (1.95), and Vapor Disposal System (1.97). The TSD provides additional information on the proposed partial supercession of existing SIP section 1.

Second, in recognition of the vacature of our approval of previous versions of the Clark County NSR rules in Hall v. EPA, we propose to delete 40 CFR 52.1470(c)(36) and (37).

Third, under section 110(k)(6), we are proposing to correct certain provisions of the Clark County portion of the Nevada SIP that were incorporated into the SIP in error and to revise certain provisions of the Clark County portion of the Nevada SIP that warrant clarification. Specifically, we are proposing to delete SIP section 1, subsections 1.79 (Significant source of total chlorides”) and 1.94 (Total Chlorides); SIP section 15 (Prohibition of Nuisance Conditions); SIP section 29 (Odors in the Ambient Air); SIP section 40, subsection 40.1 (Prohibition of Nuisance Conditions); SIP section 42, subsection 42.2 (untitled but related to nuisance from open burning); and SIP section 43, subsection 43.1 (Odors in the Ambient Air), from the appropriate paragraphs of section 1470 (“Identification of plan”) of 40 CFR part 52, subpart DD (Nevada). If finalized as proposed, this action will delete these rules from the federally enforceable SIP. We are also proposing to revise the appropriate paragraphs in 40 CFR 52.1470 to clarify that former SIP section 12 (Upset, Breakdown, or Scheduled Maintenance) and submitted section 25.1 (untitled, but related to upset, breakdown, or scheduled maintenance) have been disapproved and are not approved into the Nevada SIP, and to clarify that SIP section 33 (Chlorine in Chemical Processes) was, and continues to be, approved into the Nevada SIP as part of our approval of the overall post-1982 ozone plan for Las Vegas Valley.

We are soliciting public comment on all aspects of this proposal. These comments will be considered before taking final action. To comment on today's proposal, you should submit comments by mail (in triplicate if possible) as described in the ADDRESSES section listed in the front of this document. EPA will consider any written comments received by July 2, 2004.

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 action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This proposed action merely proposes to approve 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 (Public Law 104-4).

This proposed rule also does not have tribal implications because it will 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). This action also does not have Federalism implications because it does 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 (64 FR 43255, August 10, 1999). This action merely proposes to approve 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 “Protection of Children from Environmental Health Risks and Safety Risks” (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. ).

Entities potentially regulated by this regulation are public water systems that are classified as community water systems (CWSs). A community water system (CWS) means a public water system which serves at least 15 service connections used by year-round residents or regularly serves at least 25 year-round residents. Categories and entities potentially regulated by this action include the following:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your facility is regulated by this action, you should carefully examine the applicability criteria in § 141.66 of title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

The Safe Drinking Water Act (SDWA), as amended in 1996, requires EPA to promulgate national primary drinking water regulations (NPDWRs) which specify maximum contaminant levels (MCLs) or treatment techniques for drinking water contaminants (SDWA section 1412 (42 U.S.C. 300g-1)). NPDWRs apply to public water systems pursuant to SDWA section 1401 (42 U.S.C. 300f(1)(A)). According to SDWA section 1401(1)(D), NPDWRs include “criteria and procedures to assure a supply of drinking water which dependably complies with such maximum contaminant levels; including accepted methods for quality control and testing procedures.” In addition, SDWA section 1445(a) authorizes the Administrator to establish regulations for monitoring to assist in determining whether persons are acting in compliance with the requirements of the SDWA. EPA's promulgation of analytical methods is authorized under these sections of the SDWA, as well as the general rulemaking authority in SDWA section 1450(a), (42 U.S.C. 300j-9(a)). As discussed earlier in part I.A of this preamble, the action proposed herein would affect CWSs. CWSs are a subset of public water systems. (40 CFR 141.2).

On December 7, 2000 (65 FR 76708), EPA published a final Radionuclides Rule in the Federal Register that included monitoring requirements and a MCL of 30 micrograms per liter (30 μg/L) for uranium that took effect in December 2003. In the preamble to the December 2000 rule, EPA noted that several commenters asked EPA to consider the approval of compliance monitoring methods that use an inductively coupled plasma mass spectrometry (ICP-MS) technology. (65 FR 76724) These commenters suggested that ICP-MS analytical methods could be more cost-effective, less labor-intensive or more sensitive than some of the technologies approved in the December 2000 rule. In response to these comments, EPA stated that the Agency was reviewing ICP-MS technology for possible proposal in a future rulemaking. EPA has completed this review and in today's proposed rule is proposing approval of three methods that use ICP-MS technology. The methods are equivalent and published by EPA, ASTM International, and the Standard Methods (SM) Committee. The methods are EPA 200.8, ASTM D5673-03, and SM 3125.

EPA is proposing to approve the use of the ICP-MS methods published by EPA, ASTM International, and the Standard Methods Committee (EPA 200.8, ASTM D5673-03, and SM 3125) for compliance determinations of uranium in drinking water. For further information regarding these methods, please see the information provided in the direct final action located in the “Rules and Regulations” section of this Federal Register publication.

For the various statutes and executive orders that require findings for rule making, EPA incorporates the findings from the direct final rule into this companion proposal for the purpose of providing public notice and opportunity for comment.

EPA reviewed ICP-MS methods published by EPA, ASTM International, and the Standard Methods Committee. In each of these methods, sample material in solution is introduced by pneumatic nebulization into a radiofrequency plasma where energy transfer processes cause desolvation, atomization and ionization. The ions are extracted from the plasma through a differentially pumped vacuum interface and separated on the basis of their mass-to-charge ratio by a quadrupole mass spectrometer having a minimum resolution capability of one atomic mass unit peak width at five percent peak height. The ions transmitted through the quadrupole are detected by an electron multiplier or Faraday detector and the ion information processed by a data handling system. The sensitivity of each ICP-MS method for compliance determinations of uranium in drinking water is acceptable and is sensitive enough to detect at less than one part per billion (1 ug/L). The uranium MCL is 30 ug/L.

EPA reviewed each of these methods for performance and applicability to compliance determinations of uranium in drinking water. Three of these methods, EPA 200.8, ASTM D5673-03, and SM 3125, have acceptable performance and are otherwise suitable for compliance determinations of uranium in drinking water. Method EPA 200.8 was published by EPA in 1994; method ASTM D5673-03 was published by ASTM International in 2003; and SM 3125 was published by the Standard Methods Committee in 1998. In today's proposed rule, EPA is proposing the use of these ICP-MS methods for compliance determinations of uranium in drinking water.

EPA is not, in today's proposed rule, proposing the use of these methods for any other purposes. EPA notes that EPA 200.8 was approved for compliance determinations of several regulated metals in drinking water on December 5, 1994. (59 FR 62456) EPA also recognizes that the other two ICP-MS methods proposed through today's action for determination of other uranium may also be applicable to monitoring for other drinking water contaminants. Although the analytical scope of ASTM D5673-03 and SM 3125 extends beyond uranium, these two methods were not published until 2003 and 1998, respectively. In a later rulemaking, EPA may consider extending the use of ASTM D5673-03 and SM 3125 to compliance determinations of other regulated metals.

Like flourometric and laser phosphorimetry methods, ICP-MS measures uranium mass only; therefore all caveats discussed in the December 2000 Radionuclides Rule on using mass methods to determine contributions to gross alpha also apply. (65 FR 76724)

Today's proposed rule does not affect approval of the 15 methods currently specified at 40 CFR 141.25(a) for compliance determinations of uranium.

For the Statutory and Executive Order reviews see the parallel direct final rule found elsewhere in today's Federal Register .

For the reasons set out in the preamble, title 40, chapter 1 of the Code of Federal Regulations is amended as found in the parallel direct final rule found elsewhere in today's Federal Register .

FEMA proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed base flood and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own, or pursuant to policies established by other Federal, state or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and are also used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in these buildings.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. No environmental impact assessment has been prepared.

Regulatory Flexibility Act. The Mitigation Division Director of the Emergency Preparedness and Response Directorate certifies that this proposed rule is exempt from the requirements of the Regulatory Flexibility Act because proposed or modified BFEs are required by the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are required to establish and maintain community eligibility in the NFIP. As a result, a regulatory flexibility analysis has not been prepared.

Regulatory Classification. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

Executive Order 12612, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 12612, Federalism, dated October 26, 1987.

Executive Order 12778, Civil Justice Reform. This proposed rule meets the applicable standards of section 2(b)(2) of Executive Order 12778.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

On October 15, 2002, we proposed designating critical habitat on approximately 10,053 hectares (ha) (24,840 acres (ac)) in two units on the island of Guam for the Mariana fruit bat ( Pteropus mariannus mariannus ) and the Guam Micronesian kingfisher ( Halcyon cinnamomina cinnamomina ) (67 FR 63738). For the Mariana crow ( Corvus kubaryi ), we proposed designating critical habitat on approximately 9,325 ha (23,042 ac) in two units on the island of Guam and approximately 2,462 ha (6,084 ac) in one unit on the island of Rota in the Commonwealth of the Northern Mariana Islands. On Guam, the boundaries of the proposed critical habitat units for the Mariana fruit bat and Guam Micronesian kingfisher are identical, and the boundaries of the proposed critical habitat for the Mariana crow are contained within these boundaries. On Rota, critical habitat is proposed only for the Mariana crow. For locations of these proposed units and additional information, please see the proposed rule (67 FR 63738).

The original comment period for the proposed rule closed on December 16, 2002. On December 5, 2002, we published a notice in the Federal Register announcing an extension of the public comment period to January 6, 2003, and the availability of the draft economic analysis for the proposed designation of critical habitat (67 FR 72407). On January 28, 2003, we published a notice to reopen the comment period until February 18, 2003, due to hardships caused by Supertyphoon Pongsona on Guam and Rota (68 FR 4159). On May 30, 2003, the Government of Guam filed a motion to extend the court-ordered deadline for completing the critical habitat process to allow time to develop an alternative to critical habitat designation on Guam. On June 13, 2003, the Federal District Court for Guam extended the deadline for publication “indefinitely,” and set a status conference for October 7, 2003. On June 23, 2003, the Plaintiffs filed a notice of appeal to the 9th Circuit from the District Court's June 13, 2003, order. On October 7, 2003, the District Court held a status conference in which the Government of Guam requested a continuance of one month. On October 16, 2003, the Guam District Court denied the request for further continuance and ruled that it would take no further action while the case was on appeal. On January 7, 2004, the U.S. Court of Appeals for the Ninth Circuit dismissed the appeal and returned the case to the District Court.

Since the close of the comment period, we have received new information in the form of a proposed natural resource management plan (copy available upon request) from the Government of Guam. The comment period is reopened to allow additional time for all interested parties to consider the information and submit written comments on the proposal. In particular, we are interested in comments addressing the extent to which the proposed Guam plan would provide conservation benefits for the proposed critical habitat area, the comparative costs, or other impacts of Guam's proposal and the proposed critical habitat, and whether or not Guam's proposal would provide a basis for excluding areas from final critical habitat designation pursuant to sections 4(b)(2) or 3(5)(A) of the Endangered Species Act.

We will accept written comments and information received during this reopened comment period. If you wish to comment, you may send or hand-deliver written comments and information to the Acting Field Supervisor ( see ADDRESSES section).

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours at the Pacific Islands Fish and Wildlife Office ( see ADDRESSES section). Copies of the proposed rule are available on the Internet at http://pacificislands.fws.gov or by request from the Acting Field Supervisor at the address above ( see ADDRESSES section), by phone at 808/792-9400, or by facsimile at 808/792-9581.

The primary author of this notice is Fred Amidon, U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office ( see ADDRESSES section).

Migratory birds are of great ecological and economic value and are an important international resource. They are a key ecological component of the environment, and they also provide immense enjoyment to millions of Americans who study, watch, feed, or hunt them. Recognizing their importance, the United States has been an active participant in the internationally coordinated management and conservation of migratory birds. The Migratory Bird Treaty Act (16 U.S.C. 703-712) (MBTA) is the primary legislation in the United States established to conserve migratory birds. We, the U.S. Fish and Wildlife Service (Service), are the Federal agency within the United States responsible for administering and enforcing the statute.

The MBTA, originally passed in 1918, implements the United States' commitment to four bilateral treaties, or conventions, for the protection of a shared migratory bird resource. The original treaty upon which the MBTA was based was the Convention for the Protection of Migratory Birds signed with Great Britain in 1916 on behalf of Canada for the protection “of the many species of birds that traverse certain parts of the United States and Canada in their annual migration.” The MBTA was subsequently amended after treaties were signed with Mexico (1936, amended 1972, 1995), Japan (1972), and Russia (1976), and the amendment of the treaty with Canada (1999).

The treaties and subsequent amendments impose substantive obligations on the United States for the conservation of migratory birds and their habitats, including, but not limited to, the following conservation principles:

To conserve and manage migratory birds internationally;

To sustain healthy migratory bird populations for consumptive and nonconsumptive uses;

To provide for, maintain, and protect habitat necessary for the conservation of migratory birds; and

To restore depleted populations of migratory birds.

Each of the treaties protects selected species of birds and specifies closed seasons for hunting game birds. The list of the species protected by the MBTA appears in title 50, section 10.13, of the Code of Federal Regulations (50 CFR 10.13).

Under the MBTA, it is unlawful “by any means or in any manner, to pursue, hunt, take, capture, [or] kill” any migratory birds except as permitted by regulation (16 U.S.C. 703). The regulations at 50 CFR 21.11 prohibit the take of migratory birds except under a valid permit or as permitted in the implementing regulations. We define “take” to mean to “pursue, hunt, shoot, wound, kill, trap, capture, or collect” or to attempt these activities (50 CFR 10.12).

On July 18, 2000, the United States Court of Appeals for the District of Columbia ruled in Humane Society v. Glickman, 217 F.3d 882 (D.C. Cir. 2000), that Federal agencies are subject to the take prohibitions of the MBTA. The United States had previously taken the position, and two other courts of appeals held or suggested, that the MBTA does not by its terms apply to Federal agencies. See Sierra Club v. Martin, 110 F.3d 1551, 1555 (11th Cir. 1997); Newton County Wildlife Ass'n v U.S. Forest Service, 113 F.3d 110, 115 (8th Cir. 1997). Subsequently on December 20, 2000, we issued a Director's Order to clarify the Service's position that, pursuant to Glickman, Federal agencies are subject to the permit requirements of the Service's existing regulations.

Because the MBTA is a criminal statute and does not provide for citizen suit enforcement, a private party who violates the MBTA is subject to investigation by the Service and/or prosecution by the Department of Justice. However, the Administrative Procedure Act (APA) allows private parties to file suit to prevent a Federal agency from taking “final agency action” that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” (5 U.S.C. 706(2)(A)). If the prohibitions of the MBTA apply to Federal agencies, private parties could seek to enjoin Federal actions that take migratory birds, unless such take is authorized pursuant to regulations developed in accordance with 16 U.S.C. 704, even when such Federal actions are necessary to fulfill Government responsibilities and even when the action poses no threat to the species at issue.

In Center for Biological Diversity v. Pirie, a private party obtained an injunction prohibiting live fire military training exercises of the Department of the Navy that had the effect of killing some migratory birds on the island of Farallon de Medinilla (FDM) in the Pacific Ocean. On March 13, 2002, the United States District Court for the District of Columbia ruled that the Navy activities at FDM resulting in a take of migratory birds without a permit from the Service violated the MBTA and the APA (191 F. Supp. 2d. 161 and 201 F. Supp. 2d 113). On May 1, after hearing argument on the issue of remedy, the Court entered a preliminary injunction ordering the Navy to apply for a permit from the Service to cover the activities, and preliminarily enjoined the training activities for 30 days. The United States Court of Appeals for the District of Columbia Circuit stayed the District Court's preliminary injunction pending appeal. The preliminary injunction, and associated stay, expired on May 31. A permanent injunction was issued by the District Court on June 3. The Circuit Court also stayed this injunction pending appeal on June 5, 2002. On December 2, 2002, the President signed the Authorization Act creating an interim period during which the prohibitions on incidental take of migratory birds would not apply to military readiness activities. During the interim period, Congress also directed the Secretary of the Interior to develop regulations that exempt the Armed Forces from incidental take during authorized military readiness activities. The Department of Defense must concur with the regulations before they take effect. The Circuit Court subsequently dismissed the Pirie case as moot. In light of the Glickman and Pirie decisions, the authorization that would be provided by this rule is essential to preserving the Service's role in determining what military readiness activities, if any, create an unacceptable risk to the migratory bird resources and should be modified or curtailed.

The Department of Defense is responsible for protecting the United States from external threats. To provide for national security, they engage in military readiness activities, which include all training and operations of the Armed Forces that relate to combat, and the adequate and realistic testing of military equipment, vehicles, weapons, and sensors for proper operation and suitability for combat use. Military readiness does not include: (a) the routine operation of installation operating support functions, such as administrative offices, military exchanges, commissaries, water treatment facilities, storage facilities, schools, housing, motor pools, laundries, morale, welfare, and recreation activities, shops, and mess halls; (b) the operation of industrial activities; or (c) the construction or demolition of facilities listed above.

The 2003 National Defense Authorization Act (Pub. L. 107-314, 116 Stat. 2458, Dec. 2, 2002, 16 U.S.C. 703 note) (hereinafter “Authorization Act”) requires the Secretary of Defense, in consultation with the Secretary, to identify ways to minimize, mitigate, and monitor take of migratory birds during military readiness activities and requires the Secretary to prescribe, with the concurrence of the Secretary of Defense, a regulation that exempts such activities from the MBTA's prohibitions against take of migratory birds. With this language, Congress has signaled that the Department of Defense should give appropriate consideration to the protection of migratory birds when planning and executing military readiness activities, but not at the expense of diminishing the effectiveness of such activities. Any diminishment in effectiveness could impair the Department of Defense's ability to fulfill its national security mission. Diminishment could occur when military training or testing is modified in ways that do not allow the full range of training methods to be explored.

This proposed rule, if finalized, will authorize the Department of Defense to take migratory birds associated with military readiness activities, subject to certain limitations and subject to withdrawal of the authorization to ensure consistency with the provisions of the migratory bird treaties. The authorization provided by this rule is necessary to ensure that the work of the Department of Defense in meeting its statutory responsibilities can go forward. This rule is also appropriate and necessary to preserve the treaties as workable and sensible protections of a vital resource and to meet the Secretary's obligations under Section 704 of the MBTA as well as under Section 315 of the Authorization Act. This proposed rule has been developed in coordination and cooperation with the Department of Defense and the Secretary of Defense concurs with the requirements herein.

Migratory bird conservation relative to the Department of Defense activities other than military readiness activities will be addressed separately in a Memorandum of Understanding (MOU) developed in accordance with Executive Order 13186, Responsibilities of Federal Agencies to Protect Migratory Birds, signed January 10, 2001. Upon completion of the MOU, and in keeping with the intent of the Executive Order for Federal agencies to promote the conservation of migratory bird populations, the Service proposes issuing a 50 CFR 21.27 Special Purpose Permit to address specific actions identified in the MOU not covered by this rule.

As the basis for this proposed rule, under the authority of the MBTA and in accordance with Section 315 of the Authorization Act, the Department of Defense will consult with the Service to identify measures to minimize and mitigate adverse impacts of authorized military readiness activities on migratory birds and to identify techniques and protocols to monitor impacts of such activities. The inventory, avoidance, habitat enhancement, partnerships, and monitoring efforts described below illustrate the efforts currently undertaken by the Department of Defense to minimize adverse impacts to migratory birds from testing and training activities to maintain a ready defense. Additional conservation measures, designed to minimize and mitigate adverse impacts of authorized military readiness activities on affected migratory bird species, with emphasis on species of concern, will be developed in joint coordination with the Service when specific military readiness activities suggest the need for additional measures.

We have a long history of working with Department of Defense installation natural resources managers through our Field Offices to develop and implement these conservation initiatives. Many of the conservation measures detailed below represent state-of-the-art techniques and practices to inventory, protect, and monitor migratory bird populations. In accordance with provisions of the Sikes Act Improvement Act of 1997 (16 U.S.C. 670a et seq. ), these conservation measures are detailed in Integrated Natural Resources Management Plans (INRMPs) for specific installations and endorsed by the Service and State fish and game agencies.

Bird Conservation Planning. The Department of Defense prepares INRMPs for most of the Department of Defense installations. Under the Sikes Act, the Department of Defense must provide for the conservation and rehabilitation of natural resources on military installations. To facilitate the program, the Secretary of Defense prepares and implements an INRMP for each military installation in the United States on which significant natural resources are found. The resulting plans must reflect the mutual agreement of the military department, the Service, and the appropriate State fish and wildlife agency on conservation, protection, and management of fish and wildlife resources. INRMPs incorporate conservation measures addressed in Regional or State Bird Conservation Plans to ensure that the Department of Defense does its part in landscape-level management efforts. INRMPs are a significant source of baseline conservation information and conservation initiatives used to develop National Environmental Policy Act (NEPA) documents for military readiness activities. This linkage helps to ensure that appropriate conservation measures are incorporated into mitigation actions, where needed, which will protect migratory birds and their habitats.

The Fish and Wildlife Conservation Act of 1980, as amended in 1988, directs the Secretary of the Interior to “identify species, subspecies, and populations of all migratory non-game birds that, without additional conservation action, are likely to become candidates for listing under the Endangered Species Act of 1973.” This list is prepared and updated at 5-year intervals by the Service's Division of Migratory Bird Management. The current list of the “Birds of Conservation Concern” is available at http://migratorybirds.fws.gov/reports/bcc2002.pdf .

“Birds of Conservation Concern 2002” includes species that are of concern because of (a) documented or apparent population declines, (b) small or restricted populations, or (c) dependence on restricted or vulnerable habitats. It includes three distinct geographic scales: Bird Conservation Regions, Service Regions, and National. The Service Regions include the seven Service Regions plus the Hawaiian Islands and Puerto Rico/U.S. Virgin Islands.

Bird Conservation Regions (BCRs), adopted by the North American Bird Conservation Initiative (NABCI), are the most basic geographical unit by which migratory birds are designated as birds of conservation concern. The BCR list includes certain species endemic to Hawaii, the Pacific Island territories, and the U.S. Caribbean Islands that are not protected by the MBTA, and thus are not subject to this proposed rule. These species are clearly identified in the list. The complete BCR list contains 276 species. NABCI is a coalition of U.S., Canadian, and Mexican governmental agencies and private organizations working together to establish an inclusive framework to facilitate regionally based, biologically driven, landscape-oriented bird conservation partnerships. A map of the NABCI BCRs can be viewed at http://www.nabci-us.org.

The comprehensive bird conservation plans, such as the North American Waterfowl Management Plan, the U.S. Shorebird Conservation Plan, Partners in Flight (PIF) Bird Conservation Plans, and the North American Waterbird Conservation Plan, are the result of coordinated partnership-based national and international initiatives dedicated to migratory bird conservation. Each of these initiatives has produced landscape-oriented conservation plans that lay out population goals and habitat objectives for birds. Additional information on these plans and their respective migratory bird conservation goals can be found at:

The groundfish fisheries in the Exclusive Economic Zone of the Bering Sea and Aleutian Islands management area are managed under the FMP. The North Pacific Fishery Management Council prepared the FMP under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801, et seq. Regulations implementing the FMP appear at 50 CFR part 679. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The western distinct population segment (DPS) of Steller sea lions has been listed as endangered under the Endangered Species Act, and critical habitat has been designated for this DPS (50 CFR 226.202). In order to protect Steller sea lions from jeopardy of extinction and their critical habitat from adverse modification from the effects of the groundfish fisheries, temporal and spatial harvest restrictions were established in regulations for the groundfish fisheries of Alaska (68 FR 204, January 2, 2003). Atka mackerel is an important prey species for Steller sea lions. Under the harvest restrictions, the harvest of Atka mackerel in the Aleutian Islands subarea is managed to control the amount of harvest over time and area. The details for managing the Atka mackerel fishery in 2004 are in the annual harvest specifications (69 FR 9242, February 27, 2004).

The regulations at 50 CFR 679.20(a)(8) establish an HLA fishery to control the removal of Atka mackerel in the HLA. The details of the HLA fishery are explained in the proposed rule for Steller sea lion protection measures (67 FR 56692, September 4, 2002). The HLA is the waters of statistical areas 542 and 543 west of 178° W longitude within 20 nm seaward of sites listed in Table 6 of 50 CFR part 679 and located west of 177°57.00′ W longitude. This area includes critical habitat for Steller sea lions and additional waters around haulouts that are considered important for Steller sea lion foraging.

To reduce the amount of daily catch in the HLA by about half and to disperse the fishery over two areas, the Atka mackerel trawl fleet is divided into two groups assigned to fish in the HLA in either statistical area 542 or statistical area 543. HLA fisheries are conducted twice each season. One of the conditions of participating in the HLA fishery is a prohibition on participating in groundfish fisheries outside the HLA while the first assigned HLA fishery takes place each season. The intent of this prohibition is to ensure participants in the HLA fishery would not leave the HLA assignment unused and switch to another groundfish fishery at the same time, increasing competition with participants in other groundfish fisheries. The current regulations at § 679.7(a)(19) and § 679.20 (a)(8)(iii) prohibit fishing for all groundfish outside the HLA, including Atka mackerel, during the first assigned HLA fishery in a season. The harvest of Atka mackerel outside of the HLA would not increase competition among Atka mackerel fishery and other groundfish fisheries participants because the locations and methods of harvest vary among groundfish fisheries. Therefore, the current regulations are more restrictive than necessary to prevent competition among groundfish fisheries participants. The current regulations also provide less protection to Steller sea lions than the proposed changes would provide because the current regulations actually require harvest of Atka mackerel inside the HLA during the first HLA fishery, potentially competing with Steller sea lions for prey.

The intent of the HLA fishery was to reduce the rate of harvest of Atka mackerel in the HLA. This proposed action would allow participants in the HLA fishery to fish for Atka mackerel outside of the HLA during the first assigned HLA fishery in a season. The prohibition on fishing for groundfish species other than Atka mackerel during the first assigned HLA fishery would not be affected by the proposed change. This action would provide the potential for additional reduction in the rate of Atka mackerel harvest in the HLA, adding protection to Steller sea lions by potentially reducing competition and interaction with the Atka mackerel fleet. The proposed rule also would provide the fishing industry with additional locations during the first HLA fisheries to efficiently harvest Atka mackerel, without competing with other groundfish fisheries.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. This action would not have an economic impact on any small entities. The ten groundfish entities that will be directly regulated by this action and currently participate in the Atka mackerel fishery are large entities according to criteria established by the Small Business Administration. That is, gross revenues exceed $3.5 million for each of these vessels. Although gross revenues were not estimated for some species harvested by these vessels, in each case over $3.5 million in gross revenues were identified. As a result, an initial regulatory flexibility analysis was not required and none was prepared.

These vessels are catcher-processors fishing a diversified group of BSAI groundfish fisheries. In addition to Atka mackerel, these vessels make significant harvests of Pacific cod, yellowfin sole, rock sole, Pacific Ocean perch, and other species. The small entity threshold for catcher-processors is $3.5 million. Alaska Region estimates of gross revenues indicate that none of these vessels grossed less than $3.5 million dollars. Five of these vessels are believed to fish for a single firm. These entities would be treated as a single entity for purposes of the RFA because of their affiliations.

The Regional Administrator determined that fishing activities conducted pursuant to this rule will not affect endangered and threatened species or critical habitat under the Endangered Species Act.

For reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows:

1. The authority citation for part 679 continues to read as follows:

2. In § 679.7, paragraph (a)(19) is revised to read as follows:

3. In § 679.20, paragraph (a)(8)(iii)(F) is revised to read as follows: