We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0474; Directorate Identifier 2010-NM-213-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0103R1, dated April 28, 2011 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

Airbus has issued Mandatory Service Bulletins A330-92-3077, Revision 01, dated March 29, 2010 (for Model A330-200 and -300 series airplanes); and A340-92-4078, Revision 01, dated April 9, 2010 (for Model A340-200 and -300 series airplanes).

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

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

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

Based on the service information, we estimate that this proposed AD would affect about 41 products of U.S. registry. We also estimate that it would take up to 11 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost up to $503 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be up to $58,958, or up to $1,438 per product.

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

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

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

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

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

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

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

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

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

Posting of Public Comments. Please note that all comments received are considered part of the public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying information (such as your name, address, etc.) voluntarily submitted by the commenter.

You are not required to submit personal identifying information in order to comment on this rule. If you want to submit personal identifying information (such as your name, address, etc.) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov.

Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. If you wish to inspect the agency's public docket file in person by appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

The reason the Department is requesting electronic comments before Midnight Eastern Time on the day the comment period closes is that the inter-agency Regulations.gov/Federal Docket Management System (FDMS), which receives electronic comments, terminates the public's ability to submit comments at Midnight on the day the comment period closes. Commenters in time zones other than Eastern may want to take this fact into account so that their electronic comments can be received. The constraints imposed by the Regulations.gov/FDMS system do not apply to U.S. postal comments, which will be considered as timely filed if they are postmarked before Midnight on the day the comment period closes.

For more than two centuries, the Federal Government has recognized Indian tribes as domestic sovereigns that have unique government-to-government relationships with the United States. Congress has broad authority to legislate with respect to Indian tribes, however, and has exercised this authority to establish a complex jurisdictional scheme for crimes committed in Indian country. (The term “Indian country” is defined in 18 U.S.C. 1151.) Criminal jurisdiction in Indian country typically depends on several factors, including the nature of the crime; whether the alleged offender, the victim, or both are Indian; and whether a treaty, Federal statute, executive order, or judicial decision has conferred jurisdiction on a particular government.

Here, three Federal statutes are particularly relevant: the General Crimes Act (also known as the Indian Country Crimes Act), 18 U.S.C. 1152; the Major Crimes Act (also known as the Indian Major Crimes Act), 18 U.S.C. 1153; and Public Law 280, Act of Aug. 15, 1953, Public Law 83-280, 67 Stat. 588, codified in part as amended at 18 U.S.C. 1162. Under the General Crimes and Major Crimes Acts, which apply to most of Indian country, jurisdiction to prosecute most crimes in Indian country rests with the Federal Government, the tribal government, or both concurrently. State criminal jurisdiction in Indian country is generally limited to crimes committed by non-Indians against non-Indian victims, as well as victimless crimes committed by non-Indians.

But there is an important exception to this general rule: In certain areas of Indian country, Public Law 280 renders the General Crimes and Major Crimes Acts inapplicable and instead gives the States jurisdiction over crimes committed by or against Indians. Specifically, the Public Law 280 criminal-jurisdiction provision codified at 18 U.S.C. 1162 applies in parts of Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin. (Section 1162(a) expressly exempts some areas of Indian country in these States, such as the Red Lake Reservation in Minnesota and the Warm Springs Reservation in Oregon; and some of these States have formally “retroceded” jurisdiction over other reservations.) In the areas of Indian country covered by section 1162, which are known as “mandatory” Public Law 280 jurisdictions, the Federal Government can prosecute violations of general Federal criminal statutes that apply nationwide, such as Federal narcotics laws, but typically cannot prosecute violent crimes such as murder, assault with a dangerous weapon, or felony child abuse.

In contrast, the Public Law 280 provision that is codified at 25 U.S.C. 1321 provides a basis for other States to elect to assume criminal jurisdiction in Indian country on an optional basis, subject to the consent of the affected tribe. In the Indian country of these tribes, known as “optional” Public Law 280 jurisdictions, the Department understands the applicable statutes to provide that the Federal Government retains concurrent jurisdiction under the General Crimes and Major Crimes Acts. See U.S. Department of Justice, United States Attorneys' Manual, tit. 9, Criminal Resource Manual § 688 (Federal Government may exercise concurrent criminal jurisdiction in “the so-called ‘option states’ * * * which assumed jurisdiction pursuant to Public Law 280 after its enactment”); United States v. High Elk, 902 F.2d 660, 661 (8th Cir. 1990) (per curiam) (holding that Federal courts retain Major Crimes Act jurisdiction in those States that voluntarily assumed jurisdiction under Pub. L. 280); cf. Negonsott v. Samuels, 507 U.S. 99, 105-06 (1993) (holding that a different Federal statute conferred criminal jurisdiction on a State without divesting the United States of concurrent criminal jurisdiction). But cf. United States v. Burch, 169 F.3d 666, 669-71 (10th Cir. 1999) (holding that a 1984 “direct congressional grant of jurisdiction over [crimes committed in one town in] Indian country” vested Colorado with exclusive jurisdiction akin to mandatory jurisdiction under Public Law 280).

The Tribal Law and Order Act of 2010 (TLOA) was enacted on July 29, 2010, as Title II of Public Law 111-211. The purpose of the TLOA is to help the Federal Government and tribal governments better address the unique public-safety challenges that confront tribal communities.

Section 221 of the new law permits an Indian tribe with Indian country subject to State criminal jurisdiction under Public Law 280 to request that the United States accept concurrent jurisdiction to prosecute violations of the General Crimes Act and the Major Crimes Act within that tribe's Indian country. This jurisdiction will be concurrent among the Federal Government, the State government, and (where applicable) the tribal government. Section 221 provides for the United States to assume concurrent criminal jurisdiction at the tribe's request, and after consultation between the tribe and the Attorney General and consent to Federal jurisdiction by the Attorney General. The State need not consent. Once the United States has accepted concurrent criminal jurisdiction, Federal authorities can investigate and prosecute offenses that Public Law 280 currently bars them from prosecuting.

Section 221 does not expressly require Indian tribes to request that the United States accept concurrent jurisdiction to prosecute “all” violations of the General Crimes and Major Crimes Acts within the tribe's Indian country. To the contrary, the statute provides that those two Acts “shall apply in the areas of the Indian country of the Indian tribe” only “at the request of” the tribe and “after consultation with and consent by the Attorney General.” 18 U.S.C. 1162(d). Therefore, the Department understands section 221 to permit the tribe to request and the Attorney General, after consultation with the tribe, to consent to assumption of concurrent Federal jurisdiction over a limited set of crimes or over crimes in a limited geographic portion of the tribe's Indian country.

This rule establishes the framework and procedures for a mandatory Public Law 280 tribe to request the assumption of concurrent Federal criminal jurisdiction within the Indian country of the tribe. It also describes the process to be used by the Attorney General in deciding whether to consent to such a request.

The TLOA provides that the Attorney General is the deciding official for requests submitted by Indian tribes under section 221. Given the potentially high volume of requests, the large number of Department of Justice components and non-Department partners that should be conferred with, and the detailed tribe-by-tribe analyses that will be needed, the Attorney General is delegating decisional authority under section 221 to the Deputy Attorney General. The Office of the Deputy Attorney General (ODAG) will receive recommendations from the Office of Tribal Justice (OTJ), the Executive Office for United States Attorneys (EOUSA), and the Federal Bureau of Investigation (FBI), after discussions with other Department components (including the Bureau of Prisons (BOP) and the Office of Community Oriented Policing Services (COPS)) and other Federal, tribal, State, and local entities. OTJ will handle the staffing and tracking of assumption requests.

Pursuant to Executive Order 13175 of November 6, 2000, the Department has held tribal consultations regarding these proposed assumption procedures.

The process described in this rule is separate and distinct from Public Law 280's “retrocession” process for transferring criminal jurisdiction from the State government to the Federal Government. See 25 U.S.C. 1323(a). The retrocession process is initiated by the State, not the tribe. By contrast, the process for a tribe to seek assumption of concurrent Federal criminal jurisdiction under section 221 does not require the State's approval. And unlike retrocession, a section 221 assumption gives the United States concurrent criminal jurisdiction without eliminating the State's criminal jurisdiction.

After a tribe has submitted a request under section 221, the Department will publish a notice in the Federal Register inviting input from affected State and local law enforcement authorities. But ultimately, it is the tribe's request and the Attorney General's consent that will determine whether the United States accepts concurrent criminal jurisdiction.

The process described in this rule applies only to Indian country that is subject to “mandatory” Public Law 280 State criminal jurisdiction under 18 U.S.C. 1162. As indicated above, the Department understands that the United States already has concurrent jurisdiction over General Crimes Act and Major Crimes Act violations in areas where States have assumed criminal jurisdiction under “optional” Public Law 280. Accordingly, although the TLOA requires the United States to assume concurrent criminal jurisdiction “[a]t the request of an Indian tribe, and after consultation with and consent by the Attorney General,” 25 U.S.C. 1321(a)(2), the Department does not believe requests by tribes are necessary to establish concurrent Federal jurisdiction in such areas.

This regulation has been drafted and reviewed in accordance with Executive Order 12866 of September 30, 1993, as amended, Regulatory Planning and Review, section 1(b), Principles of Regulation. The Department of Justice has determined that this rule is a “significant regulatory action” under Executive Order 12866, section 3(f), and, accordingly, this rule has been reviewed by the Office of Management and Budget.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. The process provided under section 221 allows the United States to assume concurrent criminal jurisdiction over offenses in a particular area of Indian country, without eliminating or affecting the State's existing criminal jurisdiction, and accordingly it imposes no new burdens on the State. This regulation sets forth the procedural mechanism for the Department to consider, in consultation with other Federal, tribal, State, and local authorities, whether or not to consent to a request from an individual tribe for the Federal Government to assume concurrent criminal jurisdiction within that tribe's Indian country. Therefore, in accordance with Executive Order 13132 of August 4, 1999, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism assessment.

This regulation meets the applicable standards set forth in section 3(a) and (b)(2) of Executive Order 12988 of February 5, 1996.

This rule comports with Executive Order 13175 of November 6, 2000. The rule has significant tribal implications, as it will have substantial direct effects on one or more Indian tribes and on the relationship between the Federal Government and Indian tribes. The Department therefore has engaged in meaningful consultation and collaboration with tribal officials in developing this rule. More specifically, the Department of Justice participated in six consultations with tribal officials on the Tribal Law and Order Act of 2010. The dates and locations of those tribal consultations were as follows:

• October 14, 2010, in Billings, Montana

• October 20, 2010, in Albuquerque, New Mexico

• October 28, 2010, in Miami, Florida

• November 16, 2010, in Albuquerque, New Mexico

• December 8, 2010, in Palm Springs, California

• March 23, 2011, in Hayward, Wisconsin

The last two consultation sessions focused on section 221 of Public Law 111-211, with the March 23, 2011 consultation expressly addressing a draft version of this proposed rule.

During these consultations, some tribal officials expressed a desire to see the Attorney General consent to each and every tribal request for concurrent Federal criminal jurisdiction. Other tribal officials raised more specific concerns. In direct response to the latter, the Department of Justice significantly rewrote portions of the draft proposed rule. Eight changes are particularly noteworthy.

First, rather than giving priority only to those tribal requests received by August 31 of any calendar year, the proposed rule now gives priority to requests received by August 31 or by February 28. This change effectively doubles the number of annual cycles in which the Department will consider tribal requests on a prioritized basis.

Second, the proposed rule now allows tribes to ask the United States to assume concurrent criminal jurisdiction either over all violations of the General Crimes and Major Crimes Acts within the tribe's Indian country or over a subset of those violations that is clearly defined in the tribal request. Thus, requests can now focus on a limited set of crimes or on crimes in a limited geographic portion of the tribe's Indian country.

Third, the proposed rule now clarifies why it is unnecessary, under the Department's understanding of the applicable statutes, for a tribe in an “optional” Public Law 280 jurisdiction to request an assumption of concurrent Federal criminal jurisdiction.

Fourth, the proposed rule now clarifies that Federal agencies are to supply comments and information relevant to each tribal request, rather than merely announcing their overall support or opposition for each request.

Fifth, the proposed rule reiterates that the assumption of concurrent Federal criminal jurisdiction under section 221 does not require the agreement, consent, or concurrence of any State or local government.

Sixth, the proposed rule now expressly provides that the Department's Office of Tribal Justice may give appropriate technical assistance to any tribe that wishes to prepare and submit a renewed request, following the denial of an earlier request.

Seventh, the proposed rule now states that the assumption of concurrent Federal criminal jurisdiction will commence within six months of the decision to assume jurisdiction, if feasible, rather than merely mandating action within twelve months.

Eighth and finally, the proposed rule now requires that notice of a decision consenting to the request for assumption of concurrent Federal criminal jurisdiction will be published in the Federal Register .

The Department of Justice thus believes that many of the concerns that tribal officials expressed about section 221 and the draft proposed regulation at the tribal consultations in 2010 and 2011 have now been met.

The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This rule provides only a framework for processing requests by Indian tribes for the assumption of concurrent Federal criminal jurisdiction over certain Indian country crimes, as provided for by section 221.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, Public Law 104-4.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

Section 221 of Public Law 111-211 permits certain Indian tribes to request that the United States accept concurrent jurisdiction to prosecute violations of the General Crimes Act, 18 U.S.C. 1152, and the Major Crimes Act, 18 U.S.C. 1153, within that tribe's Indian country. This jurisdiction will be concurrent among the Federal Government, the State government, and (where applicable) the tribal government. Section 221 provides for the United States to assume concurrent criminal jurisdiction at the tribe's request, and after consultation between the tribe and the Attorney General and consent to Federal jurisdiction by the Attorney General. The Department of Justice will be submitting the information collection request set forth below to the Office of Management and Budget for review and clearance in accordance with the review procedures of the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies.

All comments, suggestions, and questions should be directed to Mr. Tracy Toulou, Director, Office of Tribal Justice, Department of Justice, 950 Pennsylvania Avenue, NW., Room 2310, Washington, DC 20530.

Written comments and suggestions from the public and affected agencies concerning the collection of information are encouraged. Comments on the information collection-related aspects of this rule should address one or more of the following four points:

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

(2) Evaluate the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

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

(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

(1) Type of Information Collection: New collection.

(2) Title of the Form/Collection: Request to the Attorney General for Assumption of Concurrent Federal Criminal Jurisdiction.

(3 ) Agency form number, if any, and the applicable component of the Department of Justice sponsoring the collection: No form. Component: Office of Tribal Justice.

(4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Tribal governments.

Other: None.

Abstract: The Department of Justice is publishing a proposed rule to establish the procedures for an Indian tribe whose Indian country is subject to State criminal jurisdiction under Public Law 280 (18 U.S.C. 1162(a)) to request that the United States accept concurrent criminal jurisdiction within the tribe's Indian country, and for the Attorney General to decide whether to consent to such a request. The purpose of the collection is to provide information from the requesting tribe sufficient for the Attorney General to make a decision whether to consent to the request.

(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to collect the required information is: Fewer than 350 respondents; 80 hours.

(6) An estimate of the total public burden (in hours) associated with the collection: 28,000 hours.

Fewer than 350 Indian tribes are eligible for the assumption of concurrent criminal jurisdiction by the United States. The Department of Justice does not know how many eligible tribes will, in fact, make such a request. Since the enactment of the Tribal Law and Order Act on July 29, 2010, the Department of Justice has received three such requests as of April 1, 2011.

The information collection requirements contemplated by this proposed rule are new requirements that will require a new OMB Control Number. The Department is seeking comment on these new requirements as part of this proposed rule. These new requirements will require Indian tribes seeking assumption of concurrent criminal jurisdiction by the United States to provide certain information relating to public safety within the Indian country of the tribe.

If additional information is required, contact: Lynn Murray, Department Clearance Officer, Policy and Planning Staff, Justice Management Division, U.S. Department of Justice, Two Constitution Square, 145 N Street, NE., Suite 2E-502, Washington, DC 20530.

Accordingly, for the reasons set forth in the preamble, part 50 of chapter I of title 28 of the Code of Federal Regulations is proposed to be amended as follows:

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

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

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

Throughout this document, whenever “we,” “us,” or “our” is used, we mean EPA. On June 7, 2010, the VADEQ submitted a revision to the Virginia SIP for including NO X as a precursor to ozone for permits of major stationary sources or major modifications locating in areas in Virginia that are attaining the NAAQS, also known as Prevention of Significant Deterioration (PSD) areas.

We are proposing approval of Virginia's SIP submission dated June 7, 2010 which addresses regulatory changes needed to be equivalent to the CAA's part C PSD permit program. This SIP submission also corrects deficiencies identified by EPA in the March 27, 2008 Federal Register action entitled, “Completeness Findings for Section 110(a) State implementation Plans for the 8-hour ozone National Ambient Air Quality Standards (1997 Ozone NAAQS)” (73 FR 16205). EPA's proposed approval of this SIP submission addresses Virginia's compliance with the portion of CAA Section 110(a)(2)(C) & (J) relating to the CAA's part C PSD permit program for the 1997 Ozone NAAQS, because this proposed approval would approve regulating NO X as a precursor to ozone in Virginia's SIP in accordance with the Federal Register action dated November 29, 2005 (70 FR 71612) that finalized NO X as a precursor for ozone regulations set forth at 40 CFR 51.166 and in 40 CFR 52.21.

VADEQ's regulations adding NO X as a precursor to ozone establish a construction permit program consistent with the Federal CAA's Title I program and implementing regulations at 40 CFR 51.166, “Prevention of Significant Deterioration of Air Quality.” VADEQ's regulation 9VAC5 Chapter 80, Article 8 is part of the SIP and sets forth the criteria and procedures for major stationary sources to obtain a permit to construct, operate and/or modify a major stationary source.

We are proposing to fully approve the regulatory citation changes which became effective in Virginia on December 31, 2008, as referenced here in this document and in the Virginia Code of Regulations 9VAC5 Chapter 80, Article 8, sections 5-80-1615 and 5-80-1695 which establish NO X as a precursor to ozone, into the Virginia SIP. These proposed changes will add NO X as a precursor to ozone, in addition to volatile organic compounds (VOC), in the definitions of “major modification”, “major stationary source”, “regulated New Source Review (NSR) pollutant” and “significant” and to the list of exempted facilities.

Previously, EPA had issued an “limited approval” of Virginia's PSD regulations (9VAC5 Chapter 80, Article 8) for reasons that will not deny this action as being fully approved. The “limited approval” issues can be found in the Technical Support Document contained in this Docket or in the Federal Register action dated October 22, 2008 (73 FR 62897).

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information (1) That are generated or developed before the commencement of a voluntary environmental assessment; (2) that are prepared independently of the assessment process; (3) that demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) that are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information required by Federal law to maintain program delegation, authorization or approval, “since Virginia must enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts * * *.” The opinion concludes that “regarding 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that to the extent consistent with requirements imposed by Federal law, any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its PSD program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

Our review of Virginia's SIP revision request indicates that our proposed approval of this SIP revision is warranted. As previously noted, these changes to the Virginia program are found in the Virginia Code at 9VAC5 Chapter 80, Article 8, Permits for Major Stationary Sources and Major Modifications Locating in Prevention of Significant Deterioration Areas.

This proposed SIP approval for sections 5-80-1615 and 5-80-1695 which addresses regulatory changes needed to be equivalent to the CAA's part C PSD permit program. It will also correct deficiencies identified by EPA in the March 27, 2008 Federal Register action entitled, “Completeness Findings for Section 110(a) State implementation Plans for the 8-hour Ozone National Ambient Air Quality Standards (1997 Ozone NAAQS)” (73 FR 16205). EPA's proposed approval of this SIP submission addresses Virginia's compliance with the portion of CAA Section 110(a)(2)(C) & (J) relating to the CAA's part C PSD permit program for the 1997 Ozone NAAQS, because this proposed approval would approve regulating NO X as a precursor to ozone in Virginia's SIP in accordance with the Federal Register action dated November 29, 2005 (70 FR 71612) that finalized NO X as a precursor for ozone regulations set forth at 40 CFR 51.166 and in 40 CFR 52.21.

We are proposing to fully approve the Virginia SIP revision request for these changes only. Prior “limited approval” of certain aspects of Virginia's PSD program elements remain valid. A description of these items for “limited approval” can be found in the Technical Support Document contained in this Docket or in the Federal Register action dated October 22, 2008 (73 FR 62897). EPA is soliciting public comments on the issues discussed for this proposed approval document only. These comments will be considered before taking final action.

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

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

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

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

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

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

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

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

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

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

In addition, this proposed rule to include NO X as a precursor to ozone in Virginia does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

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

(ii) The words EPA, we, us or our mean or refer to the United States Environmental Protection Agency.

(iii) The initials SIP mean or refer to State Implementation Plan.

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

2. Tips for preparing your comments. When submitting comments, remember to:

Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register , date, and page number);

Follow directions and organize your comments;

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On July 18, 1997, EPA promulgated new NAAQS for ozone based on 8-hour average concentrations. The 8-hour averaging period replaced the previous 1-hour averaging period, and the level of the NAAQS was changed from 0.12 parts per million (ppm) to 0.08 ppm (62 FR 38856). By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) are to be submitted by states within three years after promulgation of a new or revised standard. Section 110(a)(2) provides basic requirements for SIPs, including emissions inventories, monitoring, and modeling, to assure attainment and maintenance of the standards. These requirements are set out in several “infrastructure elements,” listed in section 110(a)(2).

Section 110(a) imposes the obligation upon states to make a SIP submission to EPA for a new or revised NAAQS, and the contents of that submission may vary depending upon the facts and circumstances. In particular, the data and analytical tools available at the time the state develops and submits the SIP for a new or revised NAAQS affects the content of the submission. The contents of such SIP submissions may also vary depending upon what provisions the state's existing SIP already contains. In the case of the 1997 ozone NAAQS, states typically have met the basic program elements required in section 110(a)(2) through earlier SIP submissions in connection with previous NAAQS. In a guidance issued on October 2, 2007, EPA noted that, to the extent an existing SIP already meets the section 110(a)(2) requirements, states need only to certify that fact via a letter to EPA. 1

On March 27, 2008, EPA published a final rule entitled, “Completeness Findings for Section 110(a) State Implementation Plans for the 8-hour Ozone NAAQS” (73 FR 16205). In the rule, EPA made a finding for each State that it had submitted or had failed to submit a complete SIP that provided the basic program elements of section 110(a)(2) necessary to implement the 1997 8-hour ozone NAAQS. In particular, EPA found that Utah had submitted a complete SIP to meet these requirements.

Section 110(a)(1) provides the procedural and timing requirements for SIP submissions after a new or revised NAAQS is promulgated. Section 110(a)(2) lists specific elements the SIP must contain or satisfy. These infrastructure elements include requirements, such as modeling, monitoring, and emissions inventories, which are designed to assure attainment and maintenance of the NAAQS. The elements that are the subject of this action are listed below.

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C): Program for enforcement of control measures.

• 110(a)(2)(D)(ii): Interstate and international pollution.

• 110(a)(2)(E): Adequate resources and authority.

• 110(a)(2)(F): Stationary source monitoring and reporting.

• 110(a)(2)(G): Emergency powers.

• 110(a)(2)(H): Future SIP revisions.

• 110(a)(2)(J): Consultation with government officials; public notification; and prevention of significant deterioration (PSD) and visibility protection.

• 110(a)(2)(K): Air quality modeling/data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

Two elements identified in section 110(a)(2) are not governed by the three year submission deadline of section 110(a)(1) and are therefore not addressed in this action. These elements relate to part D of Title I of the CAA, and submissions to satisfy them are not due within three years after promulgation of a new or revised NAAQS, but rather are due at the same time nonattainment area plan requirements are due under section 172. The two elements are: (i) Section 110(a)(2)(C) to the extent it refers to permit programs (known as “nonattainment new source review (NSR)”) required under part D, and (ii) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address infrastructure elements related to the nonattainment NSR portion of section 110(a)(2)(C) or related to 110(a)(2)(I).

This action also does not address the “interstate transport” requirements of element 110(a)(2)(D)(i). In a separate action, EPA approved the State's submission to meet the requirements of 110(a)(2)(D)(i) for the 1997 ozone NAAQS. (73 FR 16543).

1. Emission limits and other control measures: Section 110(a)(2)(A) requires SIPs to include enforceable emission limitations and other control measures, means, or techniques (including economic incentives such as fees, marketable permits, and auctions of emissions rights), as well as schedules and timetables for compliance as may be necessary or appropriate to meet the applicable requirements of this Act.

a. Utah's response to this requirement: SIP Section I ( Legal Authority ) A.1.a, codified at R307-110-2, identifies the statutory provisions that allow adoption of standards and limitations for attainment and maintenance of national standards. (19-2-104 and 109, Utah Code Annotated 1953 (UCA)). EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

b. EPA analysis: Utah's SIP meets the requirements of CAA section 110(a)(2)(A) for the 1997 ozone NAAQS, subject to the following clarifications. First, although Utah's certification cited its legal authority to adopt emissions limitations for maintenance of the NAAQS, the certification did not identify emissions limitations specific to the 1997 8-hour ozone NAAQS that the State has adopted and that have been approved into the SIP. EPA notes that, among other emissions limitations, the Utah SIP contains emissions limitations originally developed to attain the previous 1-hour ozone standard. For the purposes of this action, EPA is reviewing any rules originally submitted in response to part D solely for the purposes of determining whether they support a finding that the State has met the basic infrastructure requirements under section 110(a)(2).

In this action, EPA is not proposing to approve or disapprove any existing state rules with regard to director's discretion or variance provisions. A number of states have such provisions which are contrary to the CAA and existing EPA guidance (52 FR 45109, Nov. 24, 1987), and the Agency plans to take action in the future to address such state regulations. In the meantime, EPA encourages any state having a director's discretion or variance provision which is contrary to the CAA and EPA guidance to take steps to correct the deficiency as soon as possible.

Finally, in this action, EPA is also not proposing to approve or disapprove any existing state provisions with regard to excess emissions during startup, shutdown, or malfunction (SSM) of operations at a facility. A number of states have SSM provisions which are contrary to the CAA and existing EPA guidance  2 and the Agency plans to address such state regulations in the future. In the specific case of SSM provisions in the Utah SIP, EPA has issued a finding of substantial inadequacy and call for a SIP revision for Utah's “unavoidable breakdown” rule (76 FR 21639, Apr. 18, 2011). As stated above, though, EPA is not proposing to address SSM provisions in the context of this action and therefore proposes to approve the Utah certification for infrastructure element 110(a)(2)(A) for the 1997 ozone NAAQS.

2. Ambient air quality monitoring/data system: Section 110(a)(2)(B) requires SIPs to provide for establishment and operation of appropriate devices, methods, systems, and procedures necessary to (i) monitor, compile, and analyze data on ambient air quality, and (ii) upon request, make such data available to the Administrator.

a. Utah's response to this requirement: SIP Section IV ( Ambient Air Monitoring Program ), codified at R307-110-5, provides a brief description of the purposes of the air monitoring program. EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

b. EPA analysis: Utah's air monitoring programs and data systems do not meet the requirements of CAA section 110(a)(2)(B) for the 1997 ozone NAAQS. In particular, deficiencies in Utah's monitoring network plan are detailed in a memorandum in the docket for this action. Utah has formally committed to submitting an adequate annual monitoring plan not later than one year after the date of final action on Utah's infrastructure SIP for the 1997 ozone NAAQS. The specific measures Utah will take are detailed in the commitment letter, which may be found in the docket for this action. EPA has reviewed these measures and agrees that they will rectify the deficiencies in Utah's ambient air monitoring network. As a result of Utah's formal commitment, EPA proposes to conditionally approve the Utah infrastructure SIP for section 110(a)(2)(B) for the 1997 ozone NAAQS. If, however, Utah does not implement the measures specified in its commitment within one year after the date of final action on Utah's infrastructure SIP for the 1997 ozone NAAQS, EPA's conditional approval will automatically revert to disapproval of the infrastructure SIP for section 110(a)(2)(B) for the 1997 ozone NAAQS.

3. Program for enforcement of control measures: Section 110(a)(2)(C) requires SIPs to include a program to provide for the enforcement of the measures described in subparagraph (A), and regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that NAAQS are achieved, including a permit program as required in parts C and D.

a. Utah's response to this requirement: SIP Section I ( Legal Authority ) A.1.b, identifies the statutory provisions that allow the Division of Air Quality (DAQ) to enforce applicable laws, regulations and standards and seek injunctive relief. (Sections 19-2-104 and 19-2-115, UCA.)

SIP Section I ( Legal Authority ) A.1.d, codified at R307-110-2, identifies the statutory provisions that allow the DAQ to prevent construction, modification or operation of any stationary source at any location where emissions from such source will prevent the attainment or maintenance of a national standard or interfere with PSD requirements. (Authority Utah Code Section 19-2-108) EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

SIP Section VIII ( PSD ), codified at R307-110-9 and R307-405, describes the program to prevent significant deterioration of areas of the State where the air is clean. EPA approved the PSD SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744). EPA most recently approved R307-405 on August 19, 2004 (69 FR 51368). Utah submitted revisions to the PSD SIP and R307-405 on September 15, 2006. Updates to the incorporation by reference (IBR) date of 40 CFR 52.21 were submitted on October 1, 2007 and March 3, 2008. The October 1, 2007 update incorporated provisions in the Code of Federal Regulations (CFR) that added NO X as a precursor for ozone. The most recent update of the IBR date was adopted on February 5, 2009 and will be submitted to EPA in the near future when the final administrative paperwork is available. EPA has not yet acted on these submittals.

SIP Section XVII ( Visibility protection ), codified at R307-10-25, describes the program to protect visibility, especially within the boundaries of the five national parks located in Utah. (Sections 19-2-101 and 104, UCA) EPA approved this SIP in April 1997 and most recently on June 25, 2003 (68 FR 37744).

b. EPA analysis: To generally meet the requirements of section 110(a)(2)(C), the State is required to have SIP-approved PSD, nonattainment New Source Review (NSR), and minor NSR permitting programs adequate to implement the 1997 8-hour ozone NAAQS. As explained above, in this action EPA is not evaluating nonattainment related provisions, such as the nonattainment NSR program required by part D of the Act. EPA is evaluating the State's PSD program as required by part C of the Act, and the State's minor NSR program as required by 110(a)(2)(C).

Utah has a SIP-approved PSD program that meets the general requirements of part C of the Act (51 FR 31125). Below, EPA considers requirements for the PSD program specific to the 1997 ozone NAAQS, but first considers the effects of recent rules regulating greenhouse gases on Utah's PSD program.

EPA notes a potential inconsistency between Utah's December 3, 2007 and December 21, 2009 infrastructure SIP certifications and EPA's recently promulgated rule, “Limitation of Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting-Sources in State Implementation Plans” (“PSD SIP Narrowing Rule”), 75 FR 82536 (Dec. 30, 2010). In the PSD SIP Narrowing Rule, EPA withdrew its previous approval of Utah's PSD program to the extent that it applied PSD permitting to greenhouse gas (GHG) emissions increases from GHG-emitting sources below thresholds set in EPA's June 3, 2010 “Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule” (“Tailoring Rule”), 75 FR 31514. EPA withdrew its approval on the basis that the State lacked sufficient resources to issue PSD permits to such sources at the statutory thresholds in effect in the previously-approved PSD program. After the PSD SIP Narrowing Rule, the portion of Utah's PSD SIP from which EPA withdrew its approval had the status of having been submitted to EPA but not yet acted upon. In its December 3, 2007 and December 21, 2009 certifications, Utah relied on its PSD program as approved at that date—which was before December 30, 2010, the effective date of the PSD SIP Narrowing Rule—to satisfy the requirements of infrastructure element 110(a)(2)(C). Given EPA's basis for the PSD SIP Narrowing Rule, EPA proposes approval of the Utah infrastructure SIP for infrastructure element (C) if either the State clarifies (or modifies) its certification to make clear that the State relies only on the portion of the PSD program that remains approved after the PSD SIP Narrowing Rule issued on December 30, 2010, and for which the State has sufficient resources to implement, or the State acts to withdraw from EPA consideration the remaining portion of its PSD program submission that would have applied PSD permitting to GHG sources below the Tailoring Rule thresholds. In the alternative, if Utah does not take either action, EPA proposes to disapprove the infrastructure SIP to the extent it incorporates that portion of the previously-approved PSD program from which EPA withdrew its approval in the PSD SIP Narrowing Rule, which is the portion which would have applied PSD permitting requirements to GHG emissions increases from GHG-emitting sources below the Tailoring Rule thresholds. Such disapproval, if finalized, would not result in a need for Utah to resubmit a SIP revision, sanctions, or a federal implementation plan (FIP).

In order for the State's SIP-approved PSD program to satisfy the requirements of section 110(a)(2)(C) for the 1997 ozone NAAQS, the program must properly regulate ozone precursors. On November 29, 2005, EPA promulgated the phase 2 implementation rule for the 1997 ozone NAAQS (Phase 2 Rule), which includes requirements for PSD programs to treat nitrogen oxides (NO X ) as a precursor for ozone (72 FR 71612). The Phase 2 Rule accordingly updated the federal program at 40 CFR 52.21 to meet these requirements, effective January 30, 2006. On August 7, 2008, Utah submitted to EPA revisions to the State's PSD program. The State's PSD program, as submitted, for the most part incorporates by reference the federal program at 40 CFR 52.21. The August 7, 2008 submittal updates the date of incorporation by reference to July 1, 2007, after the effective date of the Phase 2 Rule, and thereby implementing the requirements of the rule. On January 7, 2009, EPA proposed approval of the August 7, 2008 submittal (74 FR 667). We anticipate finalizing that approval in conjunction with finalizing approval of Utah's infrastructure SIP. Contingent on that approval, Utah's PSD program meets the requirements of section 110(a)(2)(C) for the 1997 ozone NAAQS.

The State has a SIP-approved minor NSR program, adopted under section 110(a)(2)(C) of the Act that regulates emissions of ozone and its precursors. The minor NSR program is found in section II of the Utah SIP, and was originally approved by EPA as section 2 of the SIP (See 68 FR 37744, June 25, 2003). Since approval of the minor NSR program, the State and EPA have relied on the program to assure that new and modified sources not captured by the major NSR permitting programs do not interfere with attainment and maintenance of the NAAQS.

In this action, EPA is proposing to approve Utah's infrastructure SIP for the 1997 ozone NAAQS with respect to the general requirement in section 110(a)(2)(C) to include a program in the SIP that regulates the modification and construction of any stationary source as necessary to assure that the NAAQS are achieved. EPA is not proposing to approve or disapprove the State's existing minor NSR program itself to the extent that it is inconsistent with EPA's regulations governing this program. A number of states may have minor NSR provisions that are contrary to the existing EPA regulations for this program. EPA intends to work with states to reconcile state minor NSR programs with EPA's regulatory provisions for the program. The statutory requirements of section 110(a)(2)(C) provide for considerable flexibility in designing minor NSR programs, and it may be time to revisit the regulatory requirements for this program to give the states an appropriate level of flexibility to design a program that meets their particular air quality concerns, while assuring reasonable consistency across the country in protecting the NAAQS with respect to new and modified minor sources.

Finally, Utah cited SIP provisions relating to visibility protection. With regards to part C of title I of the Act, section 110(a)(2)(C) of the Act (unlike section 110(a)(2)(J)) refers only to the required PSD permit program, and not to visibility protection. Moreover, as explained below under infrastructure element (J), EPA finds that no new visibility obligation is “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. EPA is therefore not assessing in this action the visibility protection provisions cited by Utah.

4. Interstate transport: Section 110(a)(2)(D)(i) requires SIPs to contain adequate provisions prohibiting, consistent with the provisions of this title, any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will (I) contribute significantly to nonattainment in, or interfere with maintenance by, any other state, with respect to any such national primary or secondary ambient air quality standard, or (II) interfere with measures required to be included in the applicable implementation plan for any other state under part C to prevent significant deterioration of air quality or to protect visibility.

a. Utah's response to this requirement: SIP Section XXIII ( Interstate Transport ), codified at R307-110-36, was written to satisfy the requirements of section 110(a)(2)(D)(i) of the CAA for the 1997 NAAQS for 8-hour ozone. This SIP was approved by EPA on March 28, 2008 at 73 FR 16543.

b. EPA Analysis: EPA approved the State's Interstate Transport provisions for the 1997 ozone NAAQS on March 28, 2008 (73 FR 16543). EPA is taking no action relevant to section 110(a)(2)(D)(i) in this proposal.

5. Interstate and International transport provisions: Section 110(a)(2)(D)(ii) requires that each SIP shall contain adequate provisions insuring compliance with applicable requirements of sections 126 and 115 (relating to interstate and international pollution abatement).

a. Utah's response to this requirement: Utah did not cite any specific provisions for this requirement.

b. EPA Analysis: Section 126(a) requires notification to affected, nearby states of major proposed new (or modified) sources. Sections 126(b) and (c) pertain to petitions by affected states to the Administrator regarding sources violating the “interstate transport” provisions of section 110(a)(2)(D)(i). Section 115 similarly pertains to international transport of air pollution.

Utah's rules for PSD permits IBR the public participation requirements at 40 CFR 51.166(q)(2). (See UAC R307-405-18). In particular, the rule incorporates 40 CFR 51.166(q)(2)(iii), which requires notice to states whose lands may be affected by the emissions of sources subject to PSD. This rule was submitted to EPA and proposed for approval in the action discussed in section IV.3 above (74 FR 667, Jan. 7, 2009). Contingent on approval of this rule, the Utah SIP satisfies the requirements of section 126(a).

Utah has no pending obligations under sections 126(c) or 115(b), therefore, Utah's SIP currently meets the requirements of those sections. The SIP therefore meets the requirements of 110(a)(2)(D)(ii) for the 1997 ozone NAAQS.

6. Adequate resources: Section 110(a)(2)(E) requires states to provide (i) Necessary assurances that the state will have adequate personnel, funding, and authority under state law to carry out the SIP (and is not prohibited by any provision of federal or state law from carrying out the SIP or portion thereof), (ii) requires that the state comply with the requirements respecting state boards under section 128, and (iii) necessary assurances that, where the state has relied on a local or regional government, agency, or instrumentality for the implementation of any SIP provision, the state has responsibility for ensuring adequate implementation of such SIP provision.

a. Utah's response to this requirement: SIP Section V ( Resources ), codified at R307-110-6, commits to implement program activities in relation to resources provided by the annual State/EPA Agreement and 105 grant applications. EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

SIP Section I ( Legal Authority ) A.1.g, codified at R307-110-2, identifies the statutory provisions that implement the provisions of the CAA (Section 128) respecting State Boards (Section 9-2-104 UCA.) EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

Section 41-6a-1642 UCA provides the counties the authority to run their own emissions inspection and maintenance program, and Subsection 41-6a-1642 (2)(b)(i) UCA requires that the counties' emissions inspection and maintenance program “shall be made to attain or maintain ambient air quality standards in the county, consistent with the SIP and federal requirements.” Section X of the SIP, codified at sections R307-110-31 to -35, outlines the specific requirements of the automotive inspection and maintenance program. EPA approved this SIP section in action on July 17, 1997 (62 FR 38213), August 1, 2005 (70 FR 44055), September 14, 2005 (70 FR 54267), and November 2, 2005 (70 FR 66264).

b. EPA Analysis: Chapter 2 of Title 19 of the Utah Code gives the DAQ and Air Quality Board (AQB) adequate authority to carry out the SIP. UCA 19-2-103 requires the AQB be composed and act in accordance with section 128 of the CAA. The State receives sections 103 and 105 grant funds through its Performance Partnership Grant along with required State matching funds to provide funding necessary to carry out Utah's SIP requirements. Utah's SIP meets the requirements of CAA section 110(a)(2)(E) for the 1997 ozone NAAQS.

7. Stationary source monitoring system: Section 110(a)(2)(F) requires (i) the installation, maintenance, and replacement of equipment, and the implementation of other necessary steps, by owners or operators of stationary sources to monitor emissions from such sources, (ii) periodic reports on the nature and amounts of emissions and emissions-related data from such sources, and (iii) correlation of such reports by the state agency with any emission limitations or standards established pursuant to the Act, which reports shall be available at reasonable times for public inspection.

a. Utah's response to this requirement: SIP Section I ( Legal Authority ) A.1.f, codified at R307-110-2, identifies the statutory provisions that require owners or operators of stationary sources to install, maintain, and use emission monitoring devices and to make periodic reports to the State Department of Environmental Quality (DEQ) on the nature and amounts of emissions from such sources. The State DEQ will make such data available to the public as reported and as correlated with any applicable emission standards or limitations (Section 19-2-104, UCA). EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

SIP Section III ( Source Surveillance ), codified at R307-110-4, includes inventory requirements, stack testing, and plant inspections (Sections 19-2-107 and 19-2-108, UCA, allow inspection of air pollution sources). EPA approved this SIP section originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

b. EPA Analysis: Utah's SIP meets the requirements of section 110(a)(2)(F) for the 1997 ozone NAAQS.

8. Emergency powers: Section 110(a)(2)(G) requires states to provide for authority to address activities causing imminent and substantial endangerment to public health, including contingency plans to implement the emergency episode provisions in their SIPs.

a. Utah's response to this requirement: SIP Section 1 ( Legal Authority ) A.1.c, codified at R307-110-2, identifies the statutory provisions to abate pollutant emissions on an emergency basis to prevent substantial endangerment to the health of persons (Section 19-2-112, UCA). EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

More details can be found in SIP Section VII ( Prevention of Air Pollution Emergency Episodes ), codified at R307-110-8 (Section 19-2-112, UCA). EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

b. EPA analysis: Section 19-2-112 of the UCA provides DEQ with general emergency authority comparable to that in section 303 of the Act. The SIP also requires DEQ to follow criteria in 40 CFR 51.151 in proclaiming an emergency episode and to develop a contingency plan. The SIP meets the requirements of 110(a)(2)(G) for the 1997 ozone NAAQS.

9. Future SIP revisions: Section 110(a)(2)(H) requires that SIPs provide for revision of such plan (i) from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard or the availability of improved or more expeditious methods of attaining such standard, and (ii), except as provided in paragraph (3)(C), whenever the Administrator finds on the basis of information available to the Administrator that the SIP is substantially inadequate to attain the NAAQS which it implements or to otherwise comply with any additional requirements under this Act.

a. Utah's response to this requirement: SIP Section I ( Legal Authority ) A.1.a, codified at R307-110-2, identifies the statutory provisions that allow the DAQ to revise its plans to take account of revisions of a NAAQS and to adopt expeditious methods of attaining and maintaining such standard. EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

b. EPA analysis: Section 19-2-104 of the UCA gives the AQB sufficient authority to meet the requirements of 110(a)(2)(H).

10. Nonattainment Area Plan or Plan Revision under Part D: Section 110(a)(2)(I) requires that a SIP or SIP revision for an area designated as a nonattainment area must meet the applicable requirements of part D of this subchapter (relating to nonattainment areas).

a. EPA analysis for section 110(a)(2)(I): As noted above, the specific nonattainment area plan requirements of section 110(a)(2)(I) are subject to the timing requirement of section 172, not the timing requirement of section 110(a)(1). This element is therefore not applicable to this action. EPA will take action on part D attainment plans through a separate process.

11. Consultation with government officials, public notification, PSD and visibility protection: Section 110(a)(2)(J) requires that each SIP meet the applicable requirements of section 121 of this title (relating to consultation), section 127 of this title (relating to public notification), and part C of this subchapter (relating to PSD of air quality and visibility protection).

a. Utah's response to this requirement: SIP Section I ( Legal Authority ) A.2, codified at R307-110-2, adopts requirements for transportation consultation (Section 174, Clean Air Act). EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

SIP Section I ( Legal Authority ) A.1.d, codified at R307-110-2, identifies the statutory authority to prevent construction, modification or operation of any stationary source at any location where emissions from such source will prevent the attainment or maintenance of a national standard or interfere with PSD requirements. (UCA Section 19-2-108) EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

SIP Section VI ( Intergovernmental Cooperation ), provides a brief listing of federal, state, and local agencies involved in protecting air quality in Utah. Codified at R307-110-7/EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 at 68 FR 37744.

SIP Section XII ( Transportation Conformity Consultation ), codified at R307-110-20, establishes the consultation procedures on transportation conformity issues when preparing State plans. EPA approved SIP Section XII, Transportation Conformity Consultation, on September 2, 2008 (73 FR 51222).

SIP Section VIII ( PSD ), codified at R307-110-9 and R307-405, describes the program to prevent significant deterioration of areas of the State where the air is clean. EPA approved the PSD SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744). EPA most recently approved R307-405 on August 18, 2004 (69 FR 51368). Utah submitted revisions to the PSD SIP and R307-405 on September 15, 2006. Updates to the IBR date of 40 CFR 52.21 were submitted on October 1, 2007 and March 3, 2008. The October 1, 2007 update incorporates provisions in the CFR that added NO X as a precursor for ozone. The most recent update of the IBR date was adopted on February 5, 2009 and will be submitted to EPA in the near future when the final administrative paperwork is available. EPA has not yet acted on these submittals.

SIP Section XVI ( Public Notification ), codified at R307-110-24, includes provisions to notify the public when NAAQS have been exceeded as per section 127 of the CAA. EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

SIP Section XVII ( Visibility Protection ), codified at R307-110-25, describes the program to protect visibility, especially within the boundaries of the five national parks located in Utah. (Sections 19-2-101 and 104, UCA) EPA approved this SIP in April 1997 and most recently on June 25, 2003 (68 FR 37744).

SIP Section XX ( Regional Haze ), codified at R307-110-28, addresses the requirements in part C of the CAA relating to regional haze. The SIP was based on the recommendations of the Grand Canyon Visibility Transport Commission established by section 169B(f) of the CAA. (Sections 19-2-104, UCA). The Regional Haze SIP was submitted to EPA on December 12, 2003. Revisions to the Regional Haze SIP were submitted on August 8, 2004; May 8, 2006; and September 9, 2008. EPA has not yet acted on these submittals.

b. EPA Analysis: The State has demonstrated that it has the authority and rules in place to provide a process of consultation with general purpose local governments, designated organizations of elected officials of local governments and any Federal Land Manager having authority over federal land to which the SIP applies, consistent with the requirements of CAA section 121. Furthermore, SIP section XVI, cited by Utah, satisfies the requirements of section 127 of the Act.

The State has a SIP-approved PSD program that incorporates by reference the federal program at 40 CFR 52.21. The federal program (and therefore Utah's SIP-approved PSD program) automatically implements new PSD requirements triggered by the effective date of any new NAAQS. EPA has further evaluated Utah's SIP-approved PSD program in this proposed action under IV.3 of section 110(a)(2)(C).

Finally, with regard to the applicable requirements for visibility protection, EPA recognizes that states are subject to visibility and regional haze program requirements under part C of the act. In the event of the establishment of a new NAAQS, however, the visibility and regional haze program requirements under part C do not change. Thus we find that there is no new visibility obligation “triggered” under section 110(a)(2)(J) when a new NAAQS becomes effective. In conclusion, the Utah SIP meets the requirements of section 110(a)(2)(J) for the 1997 ozone NAAQS.

12. Air quality and modeling/data: Section 110(a)(2)(K) requires that each SIP provide for (i) the performance of such air quality modeling as the Administrator may prescribe for the purpose of predicting the effect on ambient air quality of any emissions of any air pollutant for which the Administrator has established a NAAQS, and (ii) the submission, upon request, of data related to such air quality modeling to the Administrator.

a. Utah's response to this requirement: SIP Section II ( Review of New and Modified Air Pollution Sources), codified at R307-110-3, provides that new or modified sources of air pollution must submit plans to the DAQ and receive an Approval Order before operating. (Section 19-2-104, UCA) EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

b. EPA Analysis: Utah's SIP meets the requirements of CAA section 110(a)(2)(K) for the 1997 ozone NAAQS. In particular, Utah's PSD program incorporates by reference the federal program at 40 CFR 52.21, including the provision at 52.21(l)(1) requiring that estimates of ambient air concentrations be based on applicable air quality models specified in Appendix W of 40 CFR part 51, and the provision at 52.21(l)(2) requiring that modification or substitution of a model specified in Appendix W must be approved by the Administrator. As a result, the SIP provides for such air quality modeling as the Administrator has prescribed.

13. Permitting fees: Section 110(a)(2)(L) requires SIPs to require the owner or operator of each major stationary source to pay to the permitting authority, as a condition of any permit required under this act, a fee sufficient to cover (i) the reasonable costs of reviewing and acting upon any application for such a permit, and (ii) if the owner or operator receives a permit for such source, the reasonable costs of implementing and enforcing the terms and conditions of any such permit (not including any court costs or other costs associated with any enforcement action), until such fee requirement is superseded with respect to such sources by the Administrator's approval of a fee program under title V.

a. Utah's response to this requirement: SIP Section I ( Legal Authority ) A.1.h, codified at R307-110-2, identifies the statutory authority to charge a fee to major sources to cover permit and enforcement expenses. EPA approved this SIP originally in the early 1980s and most recently on June 25, 2003 (68 FR 37744).

b. EPA Analysis: Utah's approved title V operating permit program meets the requirements of CAA section 110(a)(2)(L) for the 1997 ozone NAAQS. Final approval of the title V operating permit program was approved on June 8, 1995 (60 FR 30192). As discussed in the notice proposing approval of the title V program (60 FR 15105, Mar. 22, 1995), the State demonstrated that the fees collected were sufficient to administer the program.

14. Consultation/participation by affected local entities: Section 110(a)(2)(M) requires states to provide for consultation and participation in SIP development by local political subdivisions affected by the SIP.

a. Utah's response to this requirement: SIP Section VI ( Intergovernmental Cooperation ), codified at R307-110-7, lists federal, state, and local agencies involved in protecting air quality in Utah. EPA approved this SIP originally in the early 1980's and most recently on June 25, 2003 (68 FR 37744).

SIP Section XII ( Transportation Conformity Consultation ), codified at R307-110-20, establishes the consultation procedures on transportation conformity issues when preparing state plans. EPA approved SIP Section XII, Transportation Conformity Consultation, on September 2 2008 (73 FR 51222).

b. EPA Analysis: Utah's submittal meets the requirements of CAA section 110(a)(2)(M) for the 1997 ozone NAAQS.

In this action, EPA is proposing to approve the following infrastructure elements for the 1997 ozone NAAQS: (A), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). EPA proposes to approve the section 110(a)(2)(C) infrastructure element in full for the 1997 ozone NAAQS in the event that Utah takes one of the actions described in the discussion of that element; in the alternative, EPA proposes to disapprove the section 110(a)(2)(C) element to the extent described and to otherwise approve this element. EPA proposes to conditionally approve the section 110(a)(2)(B) infrastructure element for the 1997 ozone NAAQS based on the formal commitment by Utah described in the discussion of that element. Finally, in this action, EPA is taking no action on infrastructure elements (D)(i) and (I) for the 1997 ozone NAAQS.

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

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

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

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

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

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999); is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

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

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

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

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

This supplementary information section is arranged as follows:

When submitting comments, remember to:

1. Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date, and page number).

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

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

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

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

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

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

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

On November 27, 2009, at 74 FR 62243, EPA made a final determination that the Evansville area has attained the 1997 annual PM 2.5 national ambient air quality standards (NAAQS). EPA here is proposing to determine that the area continues to attain that standard. EPA is also proposing to take several additional actions related to Indiana's request to redesignate the area to attainment for the 1997 annual PM 2.5 NAAQS.

First, EPA is proposing to approve Indiana's 1997 annual PM 2.5 maintenance plan for the Evansville area as a revision to the Indiana SIP, subject to the proviso that EPA promulgates a final Transport Rule requiring power plant emission reductions substantially equivalent for purposes of maintaining the PM 2.5 standard in Evansville to those proposed in EPA's Transport Rule proposal. Since maintenance of the standard in Evansville is based in large part on maintaining substantial control of power plant emissions, promulgation of such a Transport Rule is necessary to help make recent reductions in power plant emissions (or equivalent reductions at other power plants) permanent and enforceable.

Second, EPA is proposing to approve the 2005 emission inventory in Indiana's maintenance plan as satisfying the requirement of section 172(c)(3) for a comprehensive emission inventory.

Third, EPA is proposing to find that, subject to final approval of the emissions inventory and the proviso set forth above with respect to EPA's proposed Transport Rule, Indiana meets the requirements for redesignation of the Evansville area to attainment of the 1997 PM 2.5 NAAQS under section 107(d)(3)(E) of the Clean Air Act. Because CAIR was remanded, the reductions associated with that rule cannot be considered permanent and enforceable. For this reason, the submissions from Indiana do not currently demonstrate satisfaction of the requirement of section 107(d)(3)(E)(iii), that the area's air quality improvement be due to permanent and enforceable measures. However, EPA proposes that this requirement will be met if and when EPA finalizes a Transport Rule which, for purposes of this action, is substantially equivalent to the Transport Rule that EPA proposed on August 2, 2010. Therefore, subject to this proviso, EPA is proposing to approve the request from the State of Indiana to change the designation of the Evansville area, consisting of Dubois, Vanderburgh, and Warrick Counties along with Montgomery Township in Gibson County, Ohio Township in Spencer County, and Washington Township in Pike County, from nonattainment to attainment of the 1997 PM 2.5 NAAQS.

Finally, EPA is proposing to approve the 2015 and 2022 motor vehicle emission budgets (MVEBs) for the Evansville area into the Indiana SIP. EPA proposes to take final action on this and the other proposed actions delineated in this section if and when EPA takes final action promulgating a Transport Rule substantially equivalent for purposes of air quality in the Evansville area to the Transport Rule proposed on August 2, 2010.

The first air quality standards for PM 2.5 were promulgated on July 18, 1997, at 62 FR 38652. EPA promulgated an annual standard at a level of 15 micrograms per cubic meter (μg/m 3 ), based on a three-year average of annual mean PM 2.5 concentrations. In the same rulemaking, EPA promulgated a 24-hour standard of 65 μg/m 3 , based on a three-year average of the 98th percentile of 24-hour concentrations. On October 17, 2006, at 71 FR 61144, EPA retained the annual average standard at 15 μg/m 3 but revised the 24-hour standard to 35 μg/m 3 , based again on the three-year average of the 98th percentile of 24-hour concentrations.

On January 5, 2005, at 70 FR 944, as supplemented on April 14, 2005, at 70 FR 19844, EPA designated the Evansville area as nonattainment for the 1997 PM 2.5 air quality standards. In that action, EPA defined the Evansville nonattainment area to include the entirety of Dubois, Vanderburgh, and Warrick Counties and portions of three other counties, specifically including Montgomery Township in Gibson County, Ohio Township in Spencer County, and Washington Township in Pike County. On November 13, 2009, at 74 FR 58688, EPA promulgated designations for the 24-hour standard set in 2006, designating the Evansville area as attaining this standard. In that action, EPA also clarified the designations for the NAAQS promulgated in 1997, stating that the Evansville area remained designated nonattainment for the 1997 annual PM 2.5 standard, but was designated attainment for the 1997 24-hour standard. Thus today's action does not address attainment of either the 1997 or the 2006 24-hour standards.

In response to legal challenges of the annual standard promulgated in 2006, the D.C. Circuit remanded this standard to EPA for further consideration. See American Farm Bureau Federation and National Pork Producers Council, et al. v. EPA, 559 F.3d 512 (D.C. Cir. 2009). However, given that the 1997 and 2006 annual standards are essentially identical, attainment of the 1997 annual standard would also indicate attainment of the remanded 2006 annual standard. Since the Evansville area is designated nonattainment only for the annual standard promulgated in 1997, today's action addresses redesignation to attainment only for this standard.

Indiana has provided multiple submittals in support of its request for redesignation of the Evansville area. On April 3, 2008, Indiana submitted its original request that EPA redesignate the Evansville area to attainment of the 1997 annual PM 2.5 standard. This request was based on 2004 to 2006 monitoring data indicating that no monitor violated the annual standard. A public hearing was held on March 27, 2008, and the comment period closed on March 31, 2008. Indiana completed the redesignation request by submitting documentation of the public hearing conducted by the State for the PM 2.5 redesignation request and additional regional air quality analysis on October 20, 2008. On March 6, 2009, Indiana provided updated monitoring data for the 2006 to 2008 period. On April 7, 2009, Indiana submitted supplemental information on regional emissions. On December 7, 2009, Indiana submitted modeling intended to show that the Evansville area would attain and maintain the standard even in the absence of the emission reductions prompted by CAIR. On January 28, 2011, Indiana submitted updated emissions data (including updated MVEBs) to show that maintenance extended further into the future, to 2022. On April 8, 2011, Indiana resubmitted the information submitted on January 28, 2011, in conjunction with evidence that the State provided a public comment period and held a public hearing on the information and received no public comments.

Fine particle pollution can be emitted directly or formed secondarily through chemical reactions in the atmosphere. Sulfates are a type of secondary particle formed from sulfur dioxide (SO 2 ) emissions from power plants and industrial facilities. Nitrates, another common type of secondary particle, are formed from emissions of nitrogen oxides (NO X ) from power plants, automobiles, and other combustion sources.

Given the significance of sulfates and nitrates in the Evansville area, the area's air quality is strongly affected by regulations of SO 2 and NO X emissions from power plants. EPA proposed CAIR on January 30, 2004, at 69 FR 4566, promulgated CAIR on May 12, 2005, at 70 FR 25162, and promulgated associated federal implementation plans (FIPs) on April 28, 2006, at 71 FR 25328, in order to reduce SO 2 and NO X emissions and improve air quality in many areas across the eastern part of the United States. However, on July 11, 2008, the D.C. Circuit Court of Appeals issued a decision to vacate and remand both CAIR and the associated CAIR FIPs in their entirety ( North Carolina v. EPA, 531 F.3d 836 (D.C. Cir. 2008)). EPA petitioned for rehearing, and the court issued an order remanding CAIR and the CAIR FIPs to EPA without vacatur ( North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008)). The Court, thereby, left CAIR in place in order to “temporarily preserve the environmental values covered by CAIR” until EPA replaces it with a rule consistent with the court's opinion. Id. at 1178. The court directed EPA to “remedy CAIR's flaws” consistent with its July 11, 2008, opinion, but declined to impose a schedule on EPA for completing that action. Id. As a result of these court rulings, the power plant emission reductions that have resulted from the development, promulgation, and implementation of CAIR, and the associated air quality improvement that has occurred in the Evansville area and elsewhere, cannot be considered permanent.

On August 2, 2010, EPA published its proposal of the Transport Rule to address interstate transport of emissions with respect to the 1997 ozone and the 1997 and 2006 PM 2.5 NAAQS, to replace CAIR. ( See 75 FR 45210.) This rule, as proposed, would require substantial reductions of SO 2 and NO X emissions from electric generating units (EGUs) across most of the Eastern United States. In particular, it would require reductions of these emissions to levels well below the levels that led to attainment in the Evansville area. The proposed Transport Rule proposed to establish permanent and enforceable limits on EGU emissions across most of the Eastern United States. Since the Transport Rule as proposed would require EGU emissions to be well below the levels that have led to attainment in the Evansville area. If EPA finalizes a Transport Rule that similarly requires EGU emissions to be below the levels that led to attainment in the Evansville area, that rule would provide support for a determination that the air quality improvement may be considered permanent and enforceable.

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

EPA is proposing to approve the redesignation of the Evansville area to attainment of the 1997 annual PM 2.5 NAAQS and is proposing to approve the maintenance plan for the area and other related SIP revisions, subject to the provisos discussed in this notice. The bases for these proposed actions follow.

As noted above, in a final rulemaking dated November 27, 2009, at 74 FR 62243, EPA determined that the Evansville area is attaining the 1997 annual PM 2.5 NAAQS. Further discussion of pertinent air quality issues underlying this determination was provided in the notice of proposed rulemaking, published on September 24, 2009, at 74 FR 49690. This determination was based primarily on air quality data from 2006 to 2008.

EPA has reviewed more recent data, including certified, quality-assured data for 2009 and data for all of 2010. These data show that the Evansville area continues to attain the 1997 annual PM 2.5 NAAQS. Table 1 provides an historical summary of air quality data for the area. This summary is based on quality assured data that have been entered into the EPA Air Quality System, though the data for 2010 have not yet been certified.

Several of these sites had less than 75 percent complete data for one or more of the applicable recent quarters. From 2008 to 2009, four monitoring sites ended operation, and three new sites began operating. In its prior determination of attainment, EPA determined that prior to ending operation, these monitoring sites recorded data indicating attainment of the annual PM 2.5 standard.

From 2008 to 2009, three additional sites began operating: Site 18-051-0012 in Gibson County starting in 2008, and sites 18-163-0020 and 18-163-0021 in Vanderburgh County starting in 2009. As a result of their short operating history, these monitors have incomplete data for purposes of comparison to the NAAQS, but the data that are available, summarized in Table 1 above, indicate concentrations well below the NAAQS, consistent with other data showing continued attainment in the area.

Although the monitoring network was in flux during this latter period, the area has been and continues to be monitored at numerous locations addressing the range of locations in the area with potential to violate the standard. EPA has approved these various revisions to Indiana's monitoring network, including approval most recently on October 29, 2010, reflecting its belief that the revised network remains adequate to assess air quality in the Evansville area.

For this and related reasons, EPA proposes to approve the use of these incomplete data, pursuant to Subpart 4.1(c) of 40 CFR part 50, Appendix N, as supplemental evidence for evaluating whether the Evansville area is attaining the standard.

Indiana's request to redesignate the Evansville area was predicated on monitoring data from 2004 to 2006 showing that the area meets the 1997 PM 2.5 NAAQS. Subsequently, EPA determined that the area is meeting the 1997 PM 2.5 NAAQS, based primarily on 2006 to 2008 data. According to more recent data, average concentrations for all sites, including these sites with incomplete data as well as the sites with complete data, remain well below the PM 2.5 NAAQS. Indeed, EPA believes that the Evansville area has been attaining the PM 2.5 NAAQS for five consecutive three-year periods. Therefore, EPA proposes to determine that the Evansville area continues to meet the 1997 annual PM 2.5 NAAQS.

Sections 107(d)(3)(E)(ii) and 107(d)(3)(E)(v) set forth related requirements for the State to have a fully approved SIP meeting all pertinent requirements, and the following discussion addresses Indiana's satisfaction of both of these portions of section 107(d)(3)(E). Since the passage of the Clean Air Act in 1970, Indiana has adopted and submitted, and EPA has fully approved, provisions addressing the various required SIP elements addressing particulate matter in the Evansville area and elsewhere in Indiana. Indiana submitted the “State of Indiana Air Pollution Control Implementation Plan,” its SIP, on January 31, 1972. EPA approved Indiana's SIP on May 31, 1972, at 37 FR 10863. These rules addressed total suspended particulate (TSP), reflecting the particulate size range regulated under the 1971 standards. EPA designated Evansville as nonattainment for TSP on March 3, 1978, at 43 FR 8962. Indiana submitted general TSP Reasonably Available Control Technology emission limits and regulations for process sources on October 6, 1980. On January 29, 1981, Indiana submitted its source specific limits for Vanderburgh County with amendments on October 28, 1981. These elements were approved into the Indiana SIP on July 16, 1982. On July 1, 1987, EPA replaced the TSP standard with a standard for finer-sized particulate matter, specifically for particles up to a nominal aerodynamic diameter of ten micrometers, a set of particles known as PM 10 . EPA promulgated designations under the PM 10 NAAQS on March 15, 1991, at 56 FR 11101. The Evansville area was designated as attaining the PM 10 standards. Consequently, Indiana had no obligation to submit PM 10 attainment plans for the Evansville area.

EPA believes that the section 110 elements not connected with nonattainment plan submissions and not linked to the area's nonattainment status are not applicable requirements for purposes of review of the State's redesignation request.

On December 7, 2007, September 19, 2008, and October 20, 2009, Indiana made submittals addressing “infrastructure SIP” elements required under Clean Air Act section 110(a)(2). EPA has published proposed rulemaking on these submittals (published on April 28, 2011, at 76 FR 23757), but has not completed final rulemaking on these submittals. However, the requirements of section 110(a)(2) are statewide requirements that are not linked to the PM 2.5 nonattainment status of or requirements for the Evansville area. EPA believes that section 110 elements not linked to an area's nonattainment status are not applicable for purposes of redesignation. See the Reading, Pennsylvania proposed and final rulemakings (October 10, 1996, at 61 FR 53174-53176, and May 7, 1997, at 62 FR 24826), the Cleveland-Akron-Loraine, Ohio final rulemaking (May 7, 1996, at 61 FR 20458), and the Tampa, Florida final rulemaking (December 7, 1995, at 60 FR 62748). Therefore, notwithstanding the fact that EPA has not yet completed rulemaking on Indiana's submittals for the “infrastructure SIP” elements of section 110(a)(2), EPA believes that these elements are not applicable requirements for purposes of review of the State's redesignation request.

Under section 172(c)(3), Indiana is required to submit a comprehensive, accurate and current inventory of actual emissions. As part of Indiana's redesignation request for the Evansville area, the State submitted a maintenance plan that included emissions inventories for the area for SO 2 and NO X (which are precursors for secondarily formed PM 2.5 ) and for directly emitted PM 2.5 for 2005, 2015, 2020, and 2022. The inventories for 2005 address the requirement under section 172(c)(3) for a base year emission inventory, and the other inventories help address the requirement for a demonstration that the area can expect to maintain the standard for at least 10 years after approval of a redesignation.

For each of the applicable pollutants and years, Indiana prepared emission estimates by county and by five source types, namely onroad mobile sources, nonroad mobile sources, area sources, EGUs, and other point sources. Onroad and nonroad mobile source emissions were estimated by the Evansville Metropolitan Planning Organization and by the Indiana Department of Transportation. The onroad emission estimates were derived using EPA's MOBILE6.2 emission model. When Indiana submitted updated emissions data on April 8, 2011, which showed that the area continued to maintain the annual PM 2.5 standard to 2022, it continued to use MOBILE6.2 rather than MOVES2010a to estimate the onroad emissions. 1 EPA is proposing to approve Indiana's continued use of MOBILE6.2 in this maintenance plan. Air quality data indicates that the area has attained the annual PM2.5 standard and large emissions reductions are expected in the coming years, which will allow the area to continue to meet the annual PM2.5 standard. If MOVES2010a had been used to estimate onroad emissions for the new last year of this maintenance plan, it would not change this conclusion. In addition, the recent submittal only extended the maintenance period by two years and it was not necessary for the submittal to revisit earlier years of the maintenance period. This extension was necessary because EPA could not act on the submittal at an earlier date due to issues related to the remand of the CAIR rule and the Clean Air Act's requirement that maintenance plans address a period that covers 10 years after EPA approves the submitted maintenance plan. Also, consistent with Question 5 in EPA's “Policy Guidance on the Use of MOVES 2010 for State Implementation Plan Development, Transportation Conformity, and Other Purposes” (http://www.epa.gov/otaq/models/moves/420b09046.pdf) we believe that since the bulk of the work on the maintenance plan was performed in 2008, which well before MOVES2010 was released, the continued use of MOBILE6.2 in this maintenance plan is warranted. Even the supplemental work performed by Indiana to support the April 2011 revision was done relatively soon after MOVES was officially released for use in SIPs on March 2, 2010, at 75 FR 9411. It is also worth noting that the area has been attaining the standard for several years, and future anticipated emissions reductions will ensure that the area will continue to maintain the standard through the maintenance period. Based on all of these factors we believe that Indiana's continued use of MOBILE6.2 is justified because it avoids an adverse impact on state resources as is also described in Question 5 of the MOVES SIP and Conformity guidance document.

Most of the nonroad emission estimates were derived using EPA's NONROAD model. Nonroad activity levels reflect information compiled by the Lake Michigan Air Directors Consortium (LADCO), described at http://www.ladco.org/reports/technical_support_document/references/round_5_emissions_summary-february_2008.pdf. In addition, the inventory includes emission estimates for marine and railroad sources under contract to LADCO. Area source emissions were developed using local activity level estimates and EPA emission factors as reflected in the 2005 National Emissions Inventory.

Base year emissions for EGUs for SO 2 and NO X were obtained from continuously monitored emission data that the facilities reported to EPA's Clean Air Markets Division. Projections of these emissions were based on simulations using the Integrated Planning Model (IPM) premised on implementation of CAIR and the associated allowance allocations and trading programs. Indiana's April 2011 submittal states that these emission projections rely on an expectation that the Transport Rule that EPA proposed on August 2, 2010, will require EGUs to achieve a similar set of reductions as has been required by CAIR. EGU emissions of PM 2.5 were estimated using the same information on activity levels (i.e., baseline heat inputs reported to EPA and projected heat inputs forecast by IPM) in conjunction with EPA emission factors and current emission control levels. For other point sources, baseline emissions were obtained from routine source reports to the State, and projections were based on growth factors developed by LADCO based on appropriate economic indicators.

Table 2 summarizes the 2005 base year emissions estimates, subdivided by source type, that Indiana provided in its maintenance plan as submitted on January 28, 2011. The area has a modest number of people—the 2009 population estimate for the Evansville Metropolitan Statistical Area according to the U.S. Census Bureau is 351,911. The PM 2.5 nonattainment area includes several large power plants that serve a broad area within the industrial Midwest and beyond. Therefore, point sources (in particular power plants) emit a very high fraction of the area's emissions. Indeed, point sources are estimated to emit over 99 percent of the area's SO 2 emissions, about 86 percent of the area's NO X emissions, and about 71 percent of the area's PM 2.5 emissions, and most of the point source emissions are from power plants. EPA proposes to find that the inventory satisfies the requirements of section 172(c)(3).

Table 3 shows the 2005 base year emission estimates and the 2015 and 2022 emission projections for the Evansville area that Indiana provided in its April 8, 2011, submission.

EPA is proposing to determine that, if EPA issues final approval of the emission inventories discussed above, the Indiana SIP will meet the SIP requirements for the Evansville area applicable for purposes of redesignation under Part D of the Clean Air Act. Subpart 1 of Part D, sections 172 to 176 of the Clean Air Act, set forth the basic nonattainment plan requirements applicable to PM 2.5 nonattainment areas.

Under section 172, states with nonattainment areas must submit plans providing for timely attainment and meeting a variety of other requirements. However, pursuant to 40 CFR 51.1004(c), EPA's November 27, 2009, determination that the Evansville area is attaining the PM 2.5 standard suspended Indiana's obligation to submit most of the attainment planning requirements that would otherwise apply. Specifically, the determination of attainment suspended Indiana's obligation to submit an attainment demonstration, and requirements to provide for reasonable further progress, reasonable available control measures, and contingency measures under section 172(c)(9).

The General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992) also discusses the evaluation of these requirements in the context of EPA's consideration of a redesignation request. The General Preamble sets forth EPA's view of applicable requirements for purposes of evaluating redesignation requests when an area is attaining the standard. General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).

Because attainment has been reached, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements for an attainment demonstration and RACM are no longer considered to be applicable for purposes of redesignation as long as the area continues to attain the standard until redesignation. See also 40 CFR 51.1004(c). The RFP requirement under section 172(c)(2) and contingency measures requirement under section 172(c)(9) are similarly not relevant for purposes of redesignation.

Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. As part of Indiana's redesignation request for the Evansville area, the State submitted a 2005 emissions inventory. As discussed above, EPA is proposing to approve this inventory as meeting the section 172(c)(3) emissions inventory requirement.

Section 172(c)(4) requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and section 172(c)(5) requires source permits for the construction and operation of new and modified major stationary sources anywhere in the nonattainment area. EPA has determined that, since prevention of significant deterioration (PSD) requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a nonattainment new source review (NSR) program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Indiana has demonstrated that emissions will remain sufficiently low even without part D NSR in effect for the Evansville area to be able to maintain the standard; therefore, the State need not have a fully approved part D NSR program prior to approval of the redesignation request. The State's PSD program will become effective in the Evansville area upon redesignation to attainment. See rulemakings for Detroit, Michigan (March 7, 1995, at 60 FR 12467-12468); Cleveland-Akron-Lorain, Ohio (May 7, 1996, at 61 FR 20458, 20469-20470); Louisville, Kentucky (October 23, 2001, at 66 FR 53665); and Grand Rapids, Michigan (June 21, 1996, at 61 FR 31834-31837).

Section 172(c)(6) requires the SIP to contain control measures necessary to provide for attainment of the standard. Because attainment has been reached, no additional measures are needed to provide for attainment.

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

Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway projects, conform to the air quality planning goals in the applicable SIPs.

EPA believes that it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) for two reasons. First, the requirement to submit SIP revisions to comply with the conformity provisions of the CLEAN AIR ACT continues to apply to areas after redesignation to attainment, since such areas would be subject to a section 175A maintenance plan. Second, EPA's Federal conformity rules require the performance of conformity analyses in the absence of Federally-approved state rules. Therefore, because areas are subject to the conformity requirements regardless of whether they are redesignated to attainment and, because they must implement conformity under Federal rules if state rules are not yet approved, EPA believes it is reasonable to view these requirements as not applying for purposes of evaluating a redesignation request. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), upholding this interpretation. See also 60 FR 62748, 62749-62750 (Dec. 7, 1995) (Tampa, Florida).

EPA approved Indiana's general and transportation conformity SIPs on January 14, 1998, at 63 FR 2146, and August 17, 2010, at 75 FR 50730, respectively. Indiana has submitted onroad motor vehicle budgets for the Evansville area for 2015 and 2022. The area must use the MVEBs from the maintenance plan in any conformity determination that is effective on or after the effective date of the maintenance plan approval.

No SIP provisions relevant to the Evansville area are currently disapproved, conditionally approved, or partially approved. If EPA approves the Evansville area emission inventory as proposed, EPA believes that Indiana will have a fully approved SIP for all requirements applicable for purposes of redesignation.

Indiana's original redesignation submission cited a number of regulatory programs that it believed resulted in the air quality improvement in the Evansville area between the period that was the basis of the area's 1997 PM 2.5 nonattainment designation (2002 to 2004), and the period that the Evansville area began attaining the 1997 annual PM 2.5 standard (2004 to 2006). These programs included the EPA NO X Budget Trading Program, the acid rain program, mobile source rules such as Heavy-duty Highway Vehicle standards and Non-road Diesel Engine standards, and CAIR.

Indiana subsequently supplemented its request with submittals intended to demonstrate that the Evansville area could be expected to continue to attain the standard even if the emission reductions associated with the promulgation of CAIR did not continue. In particular, on December 7, 2009, Indiana submitted the results of modeling purporting to show PM 2.5 concentrations that Indiana estimated would occur in the Evansville area in the absence of CAIR. For most power plants, this modeling was based on projections derived from actual emission rates for 2007. For the power plants within the Evansville nonattainment area, this modeling used the highest emission rates from 2000 to 2007. Indiana's modeling showed that these emission rates yielded Evansville area concentrations below the PM 2.5 NAAQS.

EPA has reviewed Indiana's submission and believes that Indiana's modeling does not properly reflect power plant emissions that would occur in the absence of CAIR. Although the compliance deadlines in CAIR were 2009 for the first phase of NO X reductions and 2010 for the first phase of SO 2 reductions, CAIR provided significant incentives for earlier emission reductions. Indeed, especially for SO 2 , a comparison of 2007 emissions for states in the CAIR region against 2003 emissions shows a significant decline in emissions. For example, according to continuous emission monitoring data submitted by EGUs to EPA's Clean Air Markets Division, EGU emissions of SO 2 in Indiana declined from 804,800 tons per year in 2003 to 714,500 tons per year in 2007, a decline of 93,000 tons per year. Similarly, according to the same set of data, EGU emissions of NO X in Indiana declined from 261,000 tons per year to 196,600 tons per year, a decline of 64,400 tons per year. Similar declines occur in other states influencing Evansville area air quality. These declines can reasonably be attributed to the incentives of CAIR, such that even the 2004 to 2006 air quality data underlying Indiana's request would reflect benefits from EPA's development, proposal, and promulgation of CAIR.

Given that the DC Circuit has now remanded CAIR to EPA, it will not remain in force indefinitely. As a consequence, the emission reductions associated with CAIR cannot be considered to be permanent.

EPA's proposed Transport Rule would, in a manner consistent with the D.C. Circuit opinion on CAIR, among other things identify emission reductions in the Eastern United States necessary to address significant interference with attainment and maintenance pursuant to section 110(a)(2)(d)(i)(I) of the Clean Air Act with respect to the 1997 ozone and 1997 and 2006 PM 2.5 NAAQS. The comment period on this proposed rule closed on October 1, 2010. EPA is reviewing all comments received. EPA may not prejudge the requirements of the final Transport Rule, and so cannot complete final rulemaking on Indiana's redesignation request in a manner that relies on Transport Rule requirements unless and until EPA has promulgated a final Transport Rule.

In the proposed Transport Rule, EPA proposed to quantify the reductions needed in specific states to address each covered state's significant contribution to nonattainment and interference with maintenance of specific NAAQS. In that action, EPA also proposed to establish FIPs to ensure that the significant contribution to nonattainment and interference with maintenance identified by EPA is prohibited.

The Evansville area is notable for having several sizable electric generating facilities, and most of these facilities are operating with new or upgraded SO 2 and NO X controls for their coal-fired units. Vectron's A.B. Brown facility operates a dual alkali system for SO 2 control and select catalytic reduction (SCR) of NO X . Alcoa's Warrick Power Plant uses wet lime scrubbing to control SO 2 emissions and combustion controls, and uses SCR for one unit and low NO X burners (LNB) and over-fire air (OFA) for all units to limit its NO X emissions. Vectron's F.B. Culley generating station uses wet limestone scrubbing for SO 2 control and SCR with LNB for NO X control at its two units. Hoosier Energy uses LNB to reduce NO X emissions from both Frank E. Ratts Generating Station units. Duke Energy's Gibson plant uses wet limestone scrubbing with SCR, LNB, and OFA on all five units. Indianapolis Power and Light operates wet limestone scrubbers along with SCR, LNB, and OFA on the four units of its Petersburg power plant. Indiana-Michigan Power uses LNB on the two coal-fired units at the Rockport plant.

These emission controls, along with similar controls at many other plants in the Eastern United States, are providing substantial air quality benefits. As explained above, some of the reductions were associated with the now-remanded CAIR. The proposed Transport Rule, if finalized, would similarly require reductions in NO X and SO 2 from EGUs. The reductions associated with the Transport Rule, if and when it is finalized, may be considered permanent and enforceable.

The modeling for the proposed Transport Rule identified 13 states, including Indiana, that have emissions that significantly affect Evansville area air quality. Table 4 shows state-wide emission estimates for SO 2 and NO X for 2005, 2012, and 2014 for these states. The values for 2005 reflect base year emissions estimates. Given the timing of attainment in the Evansville area, these values reflect an approximation of statewide emission levels at which the Evansville area attained the PM 2.5 standard. The values for 2012 reflect estimates for a scenario in which neither CAIR nor a replacement Transport Rule is in effect, reflecting a baseline that EPA used in developing its proposed rule. The values for 2014 reflect estimates for a scenario in which the proposed Transport Rule is finalized as proposed. These estimates are taken from Tables 6-1 (NO X ) and 6-2 (SO 2 ) of the emissions technical support document for the proposed Transport Rule, available at http://www.epa.gov/airquality/transport/pdfs/TR_Proposal_Emissions_TSD.pdf. These estimates exclude emissions from fires, which are a small fraction of the inventory (well under 0.1 percent) that is projected to remain constant and does not materially affect the comparison here.

In Table 4, 2005 emissions represent an approximation of emissions at which Evansville attains the standard. Table 4 shows that, in comparison, the proposed Transport Rule would establish enforceable emission restrictions that would be expected to result in emissions in the most pertinent states (as listed in Table 4) that for SO 2 are 4,830,172 tons per year (59 percent) lower and that for NO X are 2,716,062 tons per year (39 percent) lower. That is, the proposed Transport Rule would provide for permanent and enforceable emission reductions in the Eastern United States that are significantly greater than the reductions needed to assure maintenance in the Evansville area.

Similar results are obtained by comparing emission estimates in 2012 without the proposed Transport Rule to emission estimates in 2014 with the proposed Transport Rule. In the proposed Transport Rule, EPA estimated that total emissions across these states would reflect 5,320,173 tons per year lower SO 2 emissions and 933,133 tons per year lower NO X emissions in the 2014 controlled case than in the 2012 base case, i.e., emissions that are 61 percent and 18 percent lower, respectively. According to EPA modeling for the proposed Transport Rule, comparing concentrations projected in 2014 with the proposed Transport Rule in place against concentrations projected in 2012 in the absence of a Transport Rule, the Transport Rule achieves approximately a 4 μg/m 3 air quality improvement in the Evansville area, yielding concentrations well below the annual PM 2.5 NAAQS and below the concentrations that have been achieved by power plant emission reductions to date.

The modeling for the proposed Transport Rule also projects an Evansville area concentration of about 11 μg/m 3 in 2014 based on implementation of the proposed Transport Rule, whereas for purposes of this proposed redesignation it is only necessary for the Transport Rule to help provide for the Evansville area to maintain a concentration at or below 15 μg/m 3 .

This proposal is premised on the expectation that the final Transport Rule will be similarly effective as the proposed Transport Rule would be in providing for maintenance of the 1997 PM 2.5 standard in the Evansville area. Given the substantial margin by which EPA expects the Evansville area to maintain the standard, numerous details of the final Transport Rule could differ from corresponding features of the proposed Transport Rule without causing changes in the impact on Evansville air quality that are significant for purposes of this proposal to redesignate the Evansville area. This proposal to redesignate the Evansville area is predicated on the final Transport Rule being substantially equivalent for purposes of air quality in the Evansville area to the Transport Rule proposed on August 2, 2010. In EPA's view, this premise will be met if the emission levels expected under the final Transport Rule in states most pertinent to Evansville, and the associated expected air quality benefits in Evansville, are sufficiently similar to the emission levels and associated Evansville air quality benefits expected under the proposed rule so as to provide a comparable degree of confidence that the Evansville area will maintain the standard.

In summary, a limited set of reductions of EGU emissions of SO 2 and NO X contributed significantly to the air quality improvement in the Evansville area. Given the remanded status of CAIR, this air quality improvement cannot be considered permanent. However, the proposed Transport Rule proposed to mandate even greater reductions than have already occurred and, more importantly, proposed to mandate more reductions than are needed to maintain the standard in the Evansville area. Therefore, with the final promulgation of a Transport Rule that is substantially equivalent to the proposed rule for purposes of maintaining the standard in the Evansville area, in combination with the other measures cited by Indiana, EPA believes that the emission reductions that led the Evansville area to attain the PM 2.5 air quality standard could be considered as permanent and enforceable for purposes of section 107(d)(3)(E)(iii).

Sections 107(d)(3)(E)(iv) and 175A require that the State demonstrate that the area to be redesignated will continue to meet the PM 2.5 NAAQS for at least a ten-year maintenance period after redesignation in 2011. Indiana's maintenance plan includes emission inventories discussed in section V.2.c above.

The sizeable reductions in SO 2 and NO X emissions by 2015 and 2022 shown in Table 3 above are due in significant part to restrictions mandated by EPA to reduce power plant emissions of SO 2 and NO X in the Eastern United States in order to reduce pollutant transport in this region. In this inventory, Indiana used emission projections premised on the implementation of CAIR requirements as an approximation of the emissions levels the State projects to occur following the promulgation of the Transport Rule. As explained above, the DC Circuit found CAIR unlawful and remanded it to EPA. Because CAIR is not in place permanently, and because EPA has not completed final promulgation of the Transport Rule, EPA cannot currently grant final approval to a maintenance plan that relies in significant part on either of these rules.

On the other hand, as noted above, EPA's recently proposed Transport Rule would, if finalized, achieve substantial regional reductions of SO 2 and NO X emissions. While EPA has not made emission estimates for 2022 that are premised on the implementation of the proposed Transport Rule, Table 4 above shows emission estimates that EPA has made for 2014 that assume the implementation of the proposed Transport Rule. These emission estimates show a substantial decline in SO 2 and NO X emissions comparable to that shown in Indiana's maintenance plan. Given the substantial degree of control of the various EGUs in the Evansville area both currently and projected into the future, EPA finds Indiana's projection of such emission declines through 2022 to be appropriate forecasts of future emissions, provided EPA promulgates a final Transport Rule whose requirements are substantially equivalent to those in the proposed rule with respect to continued maintenance of the PM 2.5 annual standard in the Evansville area.

In conjunction with the projections for dramatic declines in Evansville area emissions of SO 2 and NO X emissions, Indiana's maintenance plan shows an increase in PM 2.5 emissions. Therefore, further evaluation is needed to judge whether the increase in PM 2.5 emissions, in combination with the decreases in SO 2 and NO X emissions, is likely to provide for maintenance of the standard.

Each of these pollutants is characterized by a different relationship between emissions and air quality. Therefore, simply summing up the emissions of these various pollutants does not provide a meaningful indicator of the combined air quality impact of these emission changes. Instead, a more appropriate indicator is the percentage change in emissions for each emitted pollutant, weighted according to the air quality impact for each.

For this purpose, EPA examined speciation data available from its Air Explorer Web site for 2007 and 2008 for the Evansville area. These data suggest that PM 2.5 in the Evansville area consists of approximately 54 percent sulfate, 7 percent nitrate, 32 percent organic particulate, 4 percent miscellaneous inorganic particulate (sometime labeled “crustal particles”), and 4 percent other types of particulate matter.

EPA used a conservative approach that assumes that the full ambient concentration of organic particulate matter plus miscellaneous inorganic particulate matter will vary in accordance with changes in total nonattainment area emissions of directly emitted PM 2.5 . This analysis thus assumes that the entirety of this component of ambient PM 2.5 will increase by the 24 percent that Indiana's maintenance plan projects that directly emitted PM 2.5 emissions will increase. In this analysis, the baseline concentration is conservatively assumed to be 15.0 μg/m 3 , of which directly emitted PM 2.5 is estimated to include 32 plus 4 or 36 percent, or 5.4 μg/m 3 . Indiana estimates that emissions of directly emitted PM 2.5 will increase by 24 percent from 2005. EPA's assessment assumes that this increase will cause a corresponding increase in ambient concentrations of PM 2.5 , which would suggest an increase in the concentration of this component by 1.3 μg/m 3 . However, EPA believes that this potential increase will be fully compensated by a greater decrease in sulfate and nitrate concentrations. The precise decrease in sulfate and nitrate concentrations is a complicated result of emission reductions not just in the Evansville area but also in many other parts of the Eastern United States. Nevertheless, modeling conducted by EPA for the proposed Transport Rule estimated that future Evansville area concentrations with the Transport Rule as proposed in place would be about 4 μg/m 3 below the standard, and the emission reductions that have already occurred have already brought Evansville area concentrations to about 13.0 μg/m 3 (as shown in Table 4 above). Therefore, the 1.3 μg/m 3 increase in the components associated with directly emitted PM 2.5 would not be expected to yield concentrations above the standard. That is, EPA expects that the trends in direct emissions of PM 2.5 in the Evansville area will not prevent the area from maintaining the standard.

Maintenance of the 1997 annual PM 2.5 air quality standard in the Evansville area is a function of regional as well as local emissions trends. The regional impacts are dominated by the impacts of SO 2 and NO X emissions. The previous section (discussing permanent and enforceable emission reductions) showed that the proposed Transport Rule could be expected to provide for substantial SO 2 and NO X emission reductions through 2014, reductions that would be maintained throughout and well beyond the period (through 2022) addressed in Indiana's maintenance plan. While EPA in its Transport Rule rulemaking developed emission projections extending to 2020 only for a scenario without regional emission limitations and not for a scenario with a Transport Rule in place, the ongoing downward emission trend evident in EPA's 2020 emission projections in absence of regional emission limitations lends support to Indiana's projection that the scenario with regional emission limitations in place will continue to have low emissions in 2022. With a Transport Rule as proposed, the caps on emissions of SO 2 and NO X from the power sector will ensure against growth in SO 2 and NO X emissions from these sources, and in combination with motor vehicle rules and other rules will assure a continuing decline in SO 2 and NO X emissions. Therefore, EPA believes that available emissions data indicate that, with a Transport Rule substantially equivalent to the one proposed, for purposes of maintaining the standard in the Evansville area, the Evansville area can be expected to maintain the standard through 2022.

Under section 175A of the Clean Air Act, maintenance plans must demonstrate attainment through at least 10 years beyond the date of EPA approval of a state's redesignation request. Indiana's maintenance plan, demonstrating maintenance through 2022, satisfies this requirement.

EPA also has modeling evidence indicating that the Evansville area will continue to attain the PM 2.5 NAAQS well into the future, provided that EPA promulgates a Transport Rule substantially equivalent for purposes of demonstrating maintenance in the Evansville area to its recently proposed rule. The first modeling evidence is the modeling analysis, referenced above, that Indiana has submitted. As discussed above, EPA disputes Indiana's contention that its modeling demonstrates attainment in the Evansville area in the absence of CAIR, insofar as the analysis was predicated on 2007 emission levels that already include a set of emission reductions attributable to CAIR. However, EPA believes that Indiana's modeling analysis, showing attainment with implementation of a subset of the emission reductions expected from CAIR, supports the conclusion that implementation of the full set of reductions that were expected from CAIR (or a relatively similar set of reductions from a Transport Rule) will also assure that the standard is maintained.

EPA has also conducted its own modeling, provided in support of the Transport Rule proposed rulemaking. This modeling projects that the Evansville area will achieve a PM 2.5 concentration of 11.1 μg/m 3 by 2014 if the Transport Rule as proposed is made final. Although EPA did not perform modeling for years later than 2014, the Transport Rule as proposed would provide for utility emissions in 2022 to be similar and in fact slightly lower than emissions in 2014, and more generally EPA expects total emissions to be similar or slightly lower in 2022 than in 2014, so that air quality in 2022 is likely to be similar or slightly better than air quality in 2014 as well. Therefore, these two modeling analyses support the conclusion that should EPA finalize a transport rule that provides for relatively similar air quality in the Evansville area, the Evansville area will maintain the PM 2.5 standard throughout the maintenance plan period.

Indiana's maintenance plan includes additional elements. These include a commitment to continue to operate an EPA-approved monitoring network, as necessary to demonstrate ongoing compliance with the NAAQS. Indiana currently operates six PM 2.5 monitors in the Evansville area. Indiana remains obligated to continue to quality assure monitoring data in accordance with 40 CFR part 58 and enter all data into the Air Quality System in accordance with Federal guidelines. Indiana will use these data, supplemented with additional information if necessary, to assure that the area continues to attain the standard. Indiana will also continue to develop and submit periodic emission inventories as required by the Federal Consolidated Emissions Reporting Rule (codified at 40 CFR part 51 subpart A) to track future levels of emissions.

Indiana's maintenance plan also includes a contingency plan as required by section 175A(d). The contingency plan provisions are designed to correct promptly or to prevent a violation of the NAAQS that might occur after redesignation. Section 175A of the Clean Air Act requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the state will promptly correct a violation of the NAAQS that occurs after redesignation, including all measures that were in the plan prior to redesignation. Under Indiana's plan, if a violation occurs, Indiana will implement an “Action Level Response” to evaluate what measures are warranted to address the violation, in particular considering implementing one or more measures from a list of candidate measures given in the plan. Indiana's candidate contingency measures include diesel retrofit projects, idling restrictions, a wood stove change out program, additional transportation control measures, and additional NO X and SO 2 emission controls. Under Indiana's plan, control measures are to be adopted and implemented within 18 months from the end of the season in which air quality triggering the Action Level Response occurred. Indiana further commits to conduct ongoing review of its monitored data, and if monitored concentrations or emissions are trending upward, Indiana commits to take appropriate steps to avoid a violation if possible. EPA believes that Indiana's contingency plan satisfies the pertinent requirements of section 175A(d).

As required by section 175A(b) of the Clean Air Act, Indiana commits to submit to the EPA an updated PM 2.5 maintenance plan eight years after redesignation of the Evansville area to assure maintenance for an additional ten-year period beyond the initial maintenance plan. As required by section 175A of the Clean Air Act, Indiana has also committed to retain the PM 2.5 control measures contained in the SIP prior to redesignation.

For all of the reasons outlined above, EPA is proposing to approve Indiana's maintenance plan for the Evansville area following the establishment of requirements substantially equivalent to the requirements of EPA's proposed Transport Rule for purposes of maintaining the 1997 annual PM 2.5 standard in the Evansville area.

Under section 176(c) of the Clean Air Act, transportation plans and transportation improvement programs (TIPs) must be evaluated for conformity with State Implementation Plans. Consequently, Indiana's redesignation request provides MVEBs, conformance with which will assure that motor vehicle emissions are at or below levels that can be expected to provide for attainment and maintenance of the PM 2.5 NAAQS. Indiana's submittal of April 2008 included emission budgets for NO X and PM 2.5 for 2010 and 2020. EPA initiated an adequacy review of the budgets that Indiana included in its April 2008 submittal. As such, a notice of the submission of these budgets was posted on its adequacy web page ( http: //www.epa.gov/otaq/stateresources/transconf/currsips.htm ). The public comment period closed on July 2, 2008. There were no public comments.

However, Indiana then submitted a replacement set of budgets in its submittals of January and April 2011. These updated budgets address the years 2015 and 2022. (See section V.2.c of this proposal for a discussion related to the development of the onroad inventory for 2022.) Since these budgets replace the budgets submitted in April 2008, EPA will no longer conduct rulemaking on the April 2008 budgets.

Table 5 shows the updated budgets as well as the 2005, 2015, and 2022 emission projections on which these budgets are based. Indiana did not provide emission budgets for SO 2 , VOCs, and ammonia because it concluded, consistent with EPA's presumptions regarding these precursors, that emissions of these precursors from motor vehicles are not significant contributors to the area's PM 2.5 air quality problem.

Table 5 shows substantial decreases in on-road NO X and PM 2.5 emissions from 2005 to 2015 and additional reductions between 2015 and 2022. The emission reductions are expected because newer vehicles, subject to more stringent emission standards, are continually replacing older, dirtier vehicles. Indiana provided emission budgets that for 2015 include a safety margin of 5 percent above projected levels and that for 2022 include a safety margin of 10 percent above projected levels.

In the Evansville area, the motor vehicle budgets and motor vehicle emission projections for both NO X and PM 2.5 are lower than base year levels, but the overall emissions of PM 2.5 summed across all source types is projected to increase. This requires further examination of the question of whether an increase in PM 2.5 emissions by the amounts requested by Indiana as safety margins would still provide for maintenance of the PM 2.5 standard.

The discussion of the maintenance plan above describes EPA's rationale for believing that the impact of the projected increase in PM 2.5 emissions will be more than compensated by the projected decreases in emissions of SO 2 and NO X . EPA examined whether the same conclusion would apply if the Evansville area used the entire safety margin, i.e., if mobile source PM 2.5 emissions were higher than projected levels by an amount equal to the safety margin. Using the first approach above, EPA found that if mobile source PM 2.5 are five tons per year higher than baseline projections, the expected impact of the overall PM 2.5 emissions increase still rounds to 1.3 μg/m 3 , which EPA again believes is more than compensated by the decrease in sulfate and nitrate concentrations resulting from reductions in SO 2 and NO X emissions. Similar results are obtained from the second approach for assessing the impact of PM 2.5 emission trends discussed above. Therefore, EPA believes that the requested budgets, including the requested safety margins, provide for a quantity of mobile source emissions that would be expected to maintain the PM 2.5 standard.

EPA has posted Indiana's more recently submitted recommended budgets (for 2015 and 2022) on its adequacy findings web page, to provide parallel opportunities for review of these budgets. These budgets have been submitted by IDEM with the intent that these budgets replace the budgets submitted in 2008 that were subject to previous adequacy review. See ( http://www.epa.gov/otaq/stateresources/transconf/currsips.htm ).

EPA is not able to complete its adequacy review for the Evansville MVEBs for 2015 and 2022 at this time because EPA has not yet taken final action on the proposed Transport Rule. In the absence of a final Transport Rule, we cannot determine if other emissions sources and the budgets, when considered together, are consistent with applicable requirements for maintenance as required by 40 CFR 93.118(e)(4)(iv). Therefore, EPA cannot at this time find the MVEBs adequate. However, EPA is proposing to approve the Evansville MVEBs into the Indiana SIP because, based on our review of the submitted maintenance plan, we have determined that the maintenance plan and motor vehicle emissions budgets will be approvable if the Transport Rule as finalized is substantially equivalent to the proposed rule in terms of its impact on the maintenance of the standard in the Evansville area. This is consistent with EPA's intentions for acting on the rest of the maintenance plan as described above in this proposal.

The budgets that Indiana submitted were calculated using the MOBILE6.2 motor vehicle emissions model. EPA is proposing to approve the inventory and the conformity budgets calculated using this model because this model was the most current model available at the time Indiana was performing its analysis. Separate from today's proposal, EPA has issued an updated motor vehicle emissions model known as the Motor Vehicle Emission Simulator or MOVES. In its announcement of this model, EPA established a two-year grace period for continued use of MOBILE6.2 in transportation conformity determinations for transportation plans and TIPs (extending to March 2, 2012), after which states and metropolitan planning organizations (other than California) must use MOVES for transportation plan and TIP conformity determinations. ( See 75 FR 9411, March 2, 2010.)

Additional information on the use of MOVES in SIPs and conformity determinations can be found in the December 2009 Policy Guidance on the Use of MOVES2010 for State Implementation Plan Development, Transportation Conformity, and Other Purposes. This guidance document is available at: http://www.epa.gov/otaq/models/moves/420b09046.pdf. During the conformity grace period, the State and MPO(s) should use the interagency consultation process to examine how MOVES2010 will impact their future transportation plan and TIP conformity determinations, including regional emissions analyses. For example, an increase in emission estimates due to the use of MOVES2010 may affect an area's ability to demonstrate conformity for its transportation plan and/or TIP. Therefore, state and local planners should carefully consider whether the SIP and motor vehicle emissions budget(s) should be revised with MOVES2010 or if transportation plans and TIPs should be revised before the end of the conformity grace period, since doing so may be necessary to ensure conformity determinations in the future.

We would expect that states and metropolitan planning organizations would work closely with EPA and the local Federal Highway Administration and Federal Transit Administration offices to determine an appropriate course of action to address this type of situation if it is expected to occur. If Indiana chooses to revise the Evansville maintenance plan, it should consult Question 7 of the December 2009 Policy Guidance on the Use of MOVES2010 for State Implementation Plan Development, Transportation Conformity, and Other Purposes for information on requirements related to such revisions.

In its rulemaking of November 27, 2009, EPA determined that the Evansville area is attaining the 1997 annual PM 2.5 NAAQS. EPA's review of more recent data indicates that the area continues to attain this standard. Thus EPA is proposing to determine that the area continues to attain the 1997 annual PM 2.5 standard. EPA is proposing to approve Indiana's maintenance plan, provided EPA promulgates a final Transport Rule substantially equivalent to the Transport Rule as proposed with respect to maintenance of the standard in the Evansville area. EPA proposes to approve the emissions inventory included in Indiana's maintenance plan as satisfying the requirement in section 172(c)(3) for a comprehensive emission inventory. With respect to two criteria for redesignation--permanent enforceable emissions reductions and a fully approvable maintenance plan—EPA believes that Indiana is currently relying on CAIR for a significant portion of the air quality improvement leading to attainment and a significant portion of the reductions needed to maintain the standard. EPA believes, however, that these two prerequisites for redesignation will be satisfied if and when the Transport Rule that EPA proposed on August 2, 2010 is finalized in a form that is substantially equivalent to the rule as proposed, for purposes of maintenance of the annual PM 2.5 standard in Evansville. Therefore, EPA proposes that the Evansville area will qualify for redesignation to attainment at such time as the Transport Rule in such a form is finalized and takes effect. Finally, EPA is proposing to approve motor vehicle emission budgets for the Evansville area.

If finalized, approval of the redesignation request would change the legal designation of the Evansville area for the 1997 annual PM 2.5 NAAQS, found at 40 CFR part 81, from nonattainment to attainment. EPA is also proposing to approve several revisions to the Indiana SIP for the Evansville area, including the maintenance plans, the emission inventory submitted with the maintenance plan, and the 2015 and 2022 MVEBs. EPA is proposing to take these actions if and when EPA promulgates the Transport Rule limiting SO 2 and NO X emissions in the Eastern United States to an extent substantially equivalent in pertinent respects to the Transport Rule proposed August 2, 2010 for purposes of maintaining air quality in Evansville.

Under the Clean Air Act, redesignation of an area to attainment and the accompanying approval of a maintenance plan under section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those imposed by state law. A redesignation to attainment does not in and of itself create any new requirements, but rather results in the applicability of requirements contained in the Clean Air Act for areas that have been redesignated to attainment. Moreover, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, these actions:

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

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

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

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

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

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

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

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

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

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

The Southeast Alaska purse seine salmon fishery is a commercial fishery in Alaska state waters and adjacent Federal waters. It encompasses the commercial taking of salmon with purse seine gear, and participation is limited to fishermen designated by the Alaska Commercial Fisheries Entry Commission (CFEC). A pilot capacity reduction program, conducted by the Southeast Revitalization Association (SRA) in 2008, using a reverse auction, purchased 35 limited entry permits reducing the number of Alaska permits in this fishery to 380. Of this amount, approximately 200 are currently being fished.

This rule proposes to implement a voluntary buyback program for the Southeast Alaska purse seine salmon fishery (Program) that must be approved by a majority of the Alaska permit holders in a referendum conducted by NMFS.

To implement the Program, this proposed rule would establish the administrative process for the Program, including the role of the SRA, application procedures, and evaluation of the Reduction Plan by NMFS, process for conducting the referendum, and fee payment and collection provisions.

This Program is different from other industry financed fishing capacity reduction programs undertaken by NMFS in several aspects: (1) It is the first permit-only buyback, i.e., fishing history is not being retired and there are no restrictions on how the vessel to which the relinquished permit applies can be used; (2) there are no Federal permits involved, whereas all other NMFS supported reduction programs have included the buying and relinquishing of Federal permits; and (3) it is anticipated to attract mainly latent permits.

The Southeast Alaska purse seine salmon fishery is managed under Alaska law and regulatory requirements defined under Title 5 Alaska Administrative Code Section 33.100. The Alaska Department of Fish & Game (ADF&G) develops and implements conservation measures for this fishery and a state limited entry permit issued by the CFEC is required for participation in the fishery. The authority for the SRA to conduct this Program is Alaska Statute 16.40.250.

The measures contained in this proposed rule to establish the Program are based on the Consolidated Appropriations Act of 2005 (Section 209 of Title II of Division B of Public Law 108-447). Subsequently, that Federal law was amended by Section 121 of Public Law 109-479 (the Magnuson-Stevens Reauthorization Act of 2006), reducing the loan amount to no more than a $25 million 40-year loan (with repayment fees capped at three percent) and clarifying the respective roles of NMFS and the SRA relative to development and implementation of the Program. On December 26, 2007, Public Law 110-161 appropriated $235,000 for the cost of guaranteeing the loan amount ( i.e., loan subsidy cost). Due to a 6 percent rescission to meet Congressional budgetary limits, the original appropriation of $250,000 was reduced to $235,000, thus lowering the maximum loan ceiling to $23.5 million. NMFS' authority to make this loan resides in sections 1111 and 1112 of the Merchant Marine Act, 1936 (46 App. U.S.C. 1279(f) and 1279(g)(MMA)(title XI)).

The Federal statute authorizing this Program waives all of the fishing capacity reduction program requirements of the Magnuson-Stevens Act (Sections 312(b)-(e)) codified at 16 U.S.C. 1801 et seq. except for Sections (b)(1)(C) and (d) which state: (1) it must be cost-effective; and (2) it is subject to a referendum approved by a majority of permit holders.

Unlike buybacks conducted under federal statutes where permits are permanently revoked, under the Alaska Constitution, the state may reissue permits in the future if the fishery becomes too exclusive. An “optimum number” study by the CFEC would be required before any decision could be made on whether the fishery has become too exclusive. There is no direct management of this fishery by NMFS or any other Federal agency.

Participation in the Program is voluntary and would be open to any holder of a valid entry permit issued by the CFEC to operate in the Southeast Alaska purse seine salmon fishery. The Program is essentially divided into six phases: (1) Enrollment; (2) bid selection; (3) plan submission and approval; (4) referendum; (5) implementation; and (6) fee collection. Each of these six phases will be discussed later in this preamble. Only Southeast Salmon Purse Seine Entry Permits voluntarily submitted for removal from the Reduction Fishery will be subject to the reduction effort. Fishing history, the fishing vessel itself, and other assets associated with the permits will not be required to be relinquished as part of this reduction effort. Fees for repayment of the loan will be calculated upon the annual ex-vessel value of all salmon harvested in the Southeast Alaska purse seine fishery and will be collected from those who continue fishing in the Reduction Fishery after implementation of the Program set forth in proposed § 600.1107 of subpart M of part 600 of Title 50 of the Code of Federal Regulations.

Participants who wish to relinquish their permits will be required to complete a Bid, Relinquishment Contract, Conditional Notice and Conditional Relinquishment form. A copy of these documents will be mailed by the SRA to each person who is the holder of record of a valid entry permit issued by CFEC to operate in the Reduction Fishery. A copy of those documents is appended to this proposed rule for public comment.

The Bid identifies the eligible bidder and specifies requirements with which the bidder must comply upon acceptance of bid.

The Relinquishment Contract is the agreement entered into by the bidder and the SRA whereby the bidder agrees to relinquish a permit upon acceptance of the bid, and before payment of the bid amount.

The Conditional Notice is the CFEC form restricting renewal and transfer of each permit for which a bid was accepted.

The Conditional Relinquishment is the CFEC form signed by the bidder to voluntarily give up a permit and abide by upon SRA acceptance of the bid.

To participate in the Capacity Reduction Program, a Permit Holder submits a fully completed and executed Bid, Relinquishment Contract, Conditional Notice, and Conditional Relinquishment. Each application must be submitted to the SRA, c/o Elgee, Rehfeld, Mertz, LLC, Professional Plaza Building B, 9309 Glacier Highway, Suite B-200, Juneau, Alaska 99801. The Bid and other required documents must be received by the SRA no later than the bid closing date identified in the above mentioned mailing to Permit Holders. Once submitted, a bid is irrevocable and cannot be withdrawn or amended. If a Permit Holder holds more than one permit, the Permit Holder must submit a separate Bid for each permit that he/she offers to relinquish.

By submitting a Bid, the Permit Holder warrants and represents that he/she has read and understood the terms of the Bid, Relinquishment Contract, Conditional Notice, and Conditional Relinquishment, and has had the opportunity to seek independent legal counsel regarding such documents and the consequences of submitting the Bid.

By submitting the Bid, the permit holder expressly acknowledges that he/she makes an irrevocable offer to relinquish a permit for a specific price to CFEC, and once having submitted the Bid, the bidder is not entitled to withdraw or in any way amend the Bid. The permit would be relinquished for the price set forth in the Bid contingent on acceptance by the SRA at the closing of the Selection Process. Any attempted withdrawal by a bidder will be invalid, and the Bid will remain a binding, irrevocable offer, unaffected by the attempted withdrawal.

The SRA will begin the Selection Process upon its receipt of the first application and will continue until: (a) The bid closing date specified by SRA; or (b) the ranking of the next lowest bid would cause the total program costs to exceed $23.5 million.

During the selection process, the SRA, in consultation with CFEC, will examine each submitted Bid for consistency and the necessary elements, including the validity of the permit and whether any authorized party holds a security interest in the permit. The SRA will notify the Permit Holder if the Bid is non-conforming and, in such cases, the Permit Holder may submit a revised, conforming Bid if within the prescribed period (i.e., until the bid closing date). A Bid that is submitted by the Permit Holder but is not accepted by the SRA, including a nonconforming bid that is not revised by the bid closing date, will be deemed terminated and both the Permit Holder and the SRA will have no further obligation. The SRA will rank all conforming bids by using a reverse auction in which the SRA ranks the bid with the lowest dollar amount and successively ranks each additional bid with the next lowest dollar amount, until there are no more bids or the ranking of the next lowest bid would cause the total program cost to exceed $23.5 million. In the event of a tie with bids which results in the tied bids exceeding $23.5 million, the SRA will select the tied bid received first.

Upon termination of the selection process, the SRA shall determine whether the number of ranked bids it is willing to accept is sufficient to achieve a substantial reduction in harvest capacity and increases economic efficiencies (i.e., increases harvesting productivity) for those Permit Holders remaining in the fishery. If the SRA makes such a determination and thereafter accepts bids, the SRA will send CFEC the Conditional Notice form restricting renewal and transfer of each permit for which a bid was accepted.

Once the SRA completes the selection process and after the bid closing date, the SRA will sign all accepted Bids and the SRA will notify each Permit Holder, via certified mail, of the effective date of the Bid. While the Bid is an irrevocable offer, it remains subject to the requirement for an industry referendum (VI. below). Bid selection occurs prior to the referendum because the Reduction Plan resulting from the Bid selection process is the course of action upon which the referendum participants are voting.

Within 30 days after the conclusion of the selection process, the SRA will submit the Reduction Plan to NMFS for final approval on behalf of the Secretary of Commerce (Secretary). The aggregate of all Bids, Relinquishment Contracts, Conditional Notices, and Conditional Relinquishments signed by permit holders whose bids are accepted by the SRA will together, with supporting rationale, constitute the Reduction Plan. The supporting rationale must demonstrate that the Reduction Plan would permanently reduce the most harvesting capacity in the Reduction Fishery at the least cost, increase harvesting productivity for post-reduction permit holders participating in the fishery, and improve flexibility in the conservation and management of the fishery. The Reduction Plan will include a listing of accepted bids arranged by bid amount from lowest to highest bid attended by a statement from the SRA that all other bids received, if any, were higher than the largest dollar amount of the last bid accepted.

The primary requirements for the Assistant Administrator of NMFS, on behalf of the Secretary, to approve a Reduction Plan are specified at § 600.1107(e)(2). Among other requirements, the Assistant Administrator of NMFS must find that the Reduction Plan is consistent with the amended Consolidated Appropriations Act of 2005 and the applicable sections of the Magnuson-Stevens Act.

The current Fishing Capacity Reduction Framework regulatory provisions of § 600.1010 stipulate procedural and other requirements for NMFS to conduct referenda on fishing capacity reduction programs, and § 600.1017(a)(1)-(4) stipulate prohibitions related to voting in a referendum. The proposed § 600.1107(e)(3) makes those framework referenda requirements applicable to this Program.

If NMFS approves the Reduction Plan, NMFS will conduct a referendum to determine the industry's willingness to repay a fishing capacity reduction loan for purchase of the permits identified in the Reduction Plan. NMFS will publish a notice in the Federal Register requesting votes by Permit Holders on whether to accept or reject the Reduction Plan for implementation. NMFS will issue ballots to eligible voters, tally votes received, and notify voters on the outcome of the referendum.

A successful referendum by a majority of the Permit Holders in the Reduction Fishery would bind all parties and complete the reduction process. NMFS will publish a notice in the Federal Register advising the public that the referendum was successful and that NMFS will begin tendering the reduction program's reduction payments to the selected bidders.

An unsuccessful referendum would void accepted Bids and other supporting documents without further obligation from the SRA or the bidders.

Within 60 days after a successful referendum, CFEC will provide notice to NMFS of the permits retired from the Reduction Fishery. NMFS, after receiving the notice of the retired permits, will then tender the accepted bid amounts to the accepted bidders. If the SRA accepts a total number of bids in an aggregate amount less than $23.5 million, any remaining funds could be available for reduction payments as part of a later, separate Reduction Plan.

The Reduction Loan will be amortized over a forty-year term. The Reduction Loan's original principal amount may not exceed $23.5 million, but may be less if the ultimate reduction cost is less. The final Reduction Loan periodic payment amount will be determined by NMFS analysis of the ability of the post-reduction fishery to service the debt. The Reduction Loan's interest rate will be the U.S. Treasury's cost of borrowing equivalent maturity funds plus two percent. The framework provisions of §§ 600.1012-600.1017 will apply to any reduction loan, fee payment and collection set forth in this proposed rule to the extent they do not conflict with this proposed rule.

Post-reduction Permit Holders operating in the fishery will be obligated to pay the fee in accordance with § 600.1107(f). The fee will be expressed as a percentage of the ex-vessel price of all salmon harvested and landed in the fishery. For example, if the fee is three percent and the ex-vessel value is $0.50, then the fee per pound of salmon will equal $0.015 per pound. The amount of such fee will be calculated by NMFS on an annual basis as the principal and interest payment amount necessary to amortize the loan over a 40-year term. The maximum fee rate is three percent of total ex-vessel production revenues. In the event that payments made under the Reduction Plan at the maximum fee level are insufficient to repay the Reduction Loan within the 40-year term, NMFS will extend the term of the repayment until the Reduction Loan is paid in full.

Fees must be assessed and collected on all salmon harvested in the fishery. Although the fee could be up to three percent of the ex-vessel price of all post-reduction landings, the fee will be less than three percent if NMFS projects that a lesser rate can amortize the Reduction Loan over the 40-year term.

It is possible that the fishery may not open during some years. Consequently, the fishery will not produce fee revenue with which to service the Reduction Loan during these years. However, interest will continue to accrue on the principal balance. When this happens, if the fee is not already at the maximum three percent, NMFS will increase the fee to the maximum three percent in the next season that the fishery is open, apply all subsequent fee revenue first to the payment of accrued interest, and continue the maximum fee rates until the principal and interest payments become current. Once all principal and interest payments are current, NMFS will make annual determinations on adjusting the fee rate.

The dealer who first purchases the salmon landed in the fishery (“fish buyer”) will be responsible for collecting and submitting the repayment fees to NMFS on a monthly basis. Both Alaska Department of Fish and Game daily fish tickets and the State of Alaska's Commercial Operator Annual Report (COAR) produced annually each March following the close of the previous season will be used to monitor fee collection.

The current Fishing Capacity Reduction Framework regulatory provisions of § 600.1013 (Fee payment and collection), § 600.1014 (Fee collection deposits, disbursements, records, and reports), 600.1015 (Late charges), § 600.1016 (Enforcement), § 600.1017 (Prohibitions and penalties), and § 600.1017(a)(8)-(16) in particular, will apply to any fee collection in this fishery.

The framework rule's provisions at § 600.1014 governs how fish buyers must deposit, and later disburse to NMFS, the fees which they have collected as well as how they must keep records of, and report about, collected fees. Under the framework rule's provisions at § 600.1014, fish buyers must, at the end of each business week, deposit collected fees in federally insured accounts. Fees will be submitted to NMFS monthly and are due no later than fifteen (15) calendar days following the end of each calendar month. Fee collection reports must accompany these disbursements. Fish buyers must maintain specified fee collection records for at least three years and submit to NMFS annual reports of fee collection and disbursement activities by February 1 of each calendar year.

Under § 600.1015, the late charge to fish buyers for fee collection, deposit, and/or disbursement will be one and one-half (1.5) percent per month of the fee due. The full late charge will apply to the fee for each month or portion of a month that the fee remains unpaid.

To provide more accessible services, streamline collections, and save taxpayer dollars, fish buyers may disburse collected fee deposits to NMFS by using a secure Federal system on the Internet known as Pay.gov. Pay.gov enables fish buyers to use their checking accounts to electronically disburse their collected fee deposits to NMFS. Fish buyers who have access to the Internet should consider using this quick and easy collected fee disbursement method. Fish buyers may access Pay.gov at: https://www.pay.gov/paygov/ .

Fish buyers who do not have access to the Internet or who simply do not wish to use the Pay.gov electronic system must disburse collected fee deposits to NMFS by sending a check to our lockbox at: NOAA Fisheries Southeast Alaska Salmon Purse Seine Buyback, P.O. Box XXXX, St. Louis, MO 63197-9000.

Fish buyers must complete a fee collection report for each disbursement. Fish buyers using Pay.gov will find an electronic fee collection report form to accompany electronic disbursements. Fish buyers who do not use Pay.gov must include a hard copy fee collection report with each of their disbursements and may access the NMFS website for a PDF version of the fee collection report at: http://www.nmfs.noaa.gov/mb/financial_services/buyback.htm.

Before the fee's effective date, NMFS will separately mail a copy of the final rule, along with detailed fee payment, collection, deposit, disbursement, recording, and reporting information and guidance, to each fish seller and buyer of whom NMFS has notice. The fact that any fish seller or buyer might not, for whatever reason, receive a copy of the notice or of the information and guidance does not relieve the fish seller or buyer from his/her fee obligations under the applicable regulations.

All parties interested in this action should carefully read the following framework rule sections, whose detailed provisions apply to the fee system for repaying the reduction program's loan:

1. § 600.1012;

2. $ 600.1013;

3. § 600.1014;

4. § 600.1015;

5. § 600.1016; and

6. § 600.1017.

NMFS, in accordance with the framework rule's provisions at § 600.1013(d), establishes the initial fee for the program's reduction fishery as 3 percent of the annual ex-vessel value of all salmon harvested in the fishery.

Please see the framework rule's provisions at § 600.1000 for the definition of “delivery value” and of the other terms relevant to this proposed rule. Each disbursement of the reduction loan's principal amount will begin accruing interest as of the date of each such disbursement. This loan's interest rate is the applicable rate, plus two percent, which the U.S. Treasury determines at the end of the fiscal year.

The proposed regulatory provisions at § 600.1107(g) mirror the Bid's provisions for Specific Performance. Development of a capacity reduction program provides a unique opportunity for permit holders to manage capacity themselves. Failure of an accepted bidder to perform the obligations under the Relinquishment Contract will result in irreparable damage to the SRA and other Permit Holders. Therefore, money damages are inadequate to redress the harm caused to the bidders by a breach of contract. Specific performance is the only adequate remedy.

The provisions and requirements of § 600.1016 and § 600.1017 shall also apply to fish sellers and fish buyers subject to this fishery. Specifically, the proposed rule to amend § 600.1017 by adding language that prohibits buyers from buying fish from reduction fishery participants who do not pay the required landing fee and prohibits reduction fishery participants from selling fish to buyers who do not collect the fees.

Pursuant to section 304 (b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the provisions of the Magnuson-Stevens Act, and Title II, Section 209 of Public Law 108-447 as amended by Section 121 of Public Law 109-479, subject to further consideration after public comment.

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

In addition to public comment about the proposed rule's substance, NMFS also seeks public comment on any ambiguity or unnecessary complexity arising from the language used in this proposed rule.

In compliance with the National Environmental Policy Act, NMFS prepared an environmental assessment (EA) for this proposed rule. The assessment discusses the impact of this proposed rule on the natural and human environment and integrates a Regulatory Impact Review (RIR) and an Initial Regulatory Flexibility Analysis (IRFA). NMFS will send the assessment, the review and analysis to anyone who requests a copy (see ADDRESSES ).

NMFS prepared an IRFA, as required by section 603 of the Regulatory Flexibility Act (RFA), to describe the economic impacts this proposed rule, if adopted, would have on small entities. NMFS intends the analysis to aid us in considering regulatory alternatives that could minimize the economic impact on affected small entities. The proposed rule does not duplicate or conflict with other Federal regulations.

The Small Business Administration (SBA) has defined small entities as all fish harvesting businesses that are independently owned and operated, not dominant in its field of operation, and with annual receipts of $4 million or less. In addition, processors with 500 or fewer employees for related industries involved in canned or cured fish and seafood, or preparing fresh fish and seafood, are also considered small entities. Small entities within the scope of this proposed rule include individual U.S. vessels, Permit Holders, and dealers. There are no disproportionate impacts between large and small entities.

Most firms operating in the Reduction Fishery have annual gross revenues of less than $4 million. The IRFA analysis estimates that most of the 212 active vessels that participated in 2008 are considered small entities. The ownership characteristics of vessels operating in the Reduction Fishery are not available and therefore it is not possible to determine with certainty, if they are independently owned and operated, or affiliated in one way or another with a larger parent company. Furthermore, because analysts cannot quantify the exact number of small entities that may be directly regulated by this action, a definitive finding of non-significance for the proposed action under the RFA is not possible. However, because the proposed action would not result in changes to allocation percentages and participation is voluntary, net effects would be expected to be minimal relative to the status quo.

The proposed rule's impact would be positive for both those whose bids NMFS accepts and for post-reduction harvesters whose landing fees repay the reduction loan because the Bidders and harvesters would have voluntarily assumed the impact:

1. Bidders would have volunteered to make bids at dollar amounts of their own choice. Presumably, no Bidder would volunteer to make a bid with an amount that is inconsistent with the Bidder's interest; and

2. Reduction loan repayment landing fees would be authorized, and NMFS could complete the Reduction Program, only if a majority of Permit Holders voted in favor of the Reduction Plan. Presumably, harvesters who are not selected would not vote in favor of the Reduction Plan unless they concluded that the Reduction Program's prospective capacity reduction was sufficient to enable them to increase their post-reduction revenues enough to justify the fee.

3. Those participants remaining in the fishery after the buyback will incur additional fees of up to 3 percent of the ex vessel production value of post reduction landings. However, the additional costs should be mitigated by increased harvest opportunities by post reduction fishermen. NMFS believes that this proposed rule would affect neither authorized harvest levels nor harvesting practices.

NMFS rejected the no action alternative considered in the EA because if it failed to act, NMFS would not be in compliance with the mandate of Section 209 of the authorizing legislation to establish a buyback program. In addition, the Southeast Alaska purse seine salmon fishery would remain overcapitalized. Overcapitalization reduces the potential net value that could be derived from the salmon resource by dissipating rents, driving variable operating costs up, and imposing economic externalities on the fishermen. Overcapitalization has diminished the economic viability of members of the fleet and increased the economic and social burden on fishery dependent communities.

This proposed rule contains information collection requirements subject to the Paperwork Reduction Act (PRA). The Office of Management and Budget (OMB) previously approved this information collection under OMB Control Number 0648-0376 with requirements for 878 respondents with a total response time of 38,653 hours. NMFS estimates that the public reporting burden for this information collection would average 4 hours for submitting a Bid (which includes executing the Bid Agreement and the Reduction Contract) and 4 hours for voting in a referendum. Persons affected by this proposed rule would also be subject to other collection-of-information requirements referred to in the proposed rule and also approved under OMB Control Number 0648-0376. These requirements and their associated response times are: Completing and filing a fish ticket (10 minutes), submitting monthly fish buyer reports (2 hours), submitting annual fish buyer reports (4 hours), and fish buyer/fish seller reports when a person fails either to pay or to collect the loan repayment fee (2 hours).

NMFS amends the existing OMB control number as a result of the implementation of this capacity reduction program. The revision has been submitted to OMB for approval. These response estimates include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection. Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Interested persons may send comments regarding this burden estimate, or any other aspect of this data collection, including suggestions for reducing the burden, to both NMFS and OMB (see ADDRESSES ).

Notwithstanding any other provision of law, no person is required to respond to, and no person is subject to a penalty for failure to comply with, an information collection subject to the PRA requirements unless that information collection displays a currently valid OMB control number.

This action would not result in any adverse effects on endangered species or marine mammals.

For the reasons set out in the preamble, 50 CFR part 600, subpart M, is proposed to be amended as follows:

The Magnuson-Stevens Act requires that each Regional Fishery Management Council submit any FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, publish a notice in the Federal Register that the amendment is available for public review and comment.

The Magnuson-Stevens Fishery Conservation and Management Reauthorization Act of 2006 (MSRA) amended the Magnuson-Stevens Act to include new requirements for ACLs and AMs and the formal incorporation of scientific advice provided to Regional Fishery Management Councils from their respective Scientific and Statistical Committees (SSCs).

The Council conducted public scoping and development of the Omnibus Amendment in 2009 and 2010. The development process included several meetings of the full Council, joint meetings with the Council and Atlantic States Marine Fisheries Commission, the Council's SSC and its scientific uncertainty subcommittee, the Omnibus Amendment Fishery Management Action Team, and public hearings. Now, the Council has submitted the Omnibus Amendment for Secretarial review, approval as needed, and implementation. The Omnibus Amendment is necessary to bring all Council FMPs into compliance with the requirements of the Magnuson-Stevens Act. The intent is to establish a comprehensive framework for all Council FMPs to more formally receive and utilize scientific recommendations in the establishment of annual catch levels, to establish a system to derive ACLs with AM backstops from that scientific advice, and to establish processes for revisiting and modifying the measures that would be established by the respective FMP amendments so that overfishing is prevented, stocks are rebuilt, and Optimum Yield (OY) may be achieved for all managed stocks.

If approved by NMFS, this amendment would establish Acceptable Biological Catch (ABC) control rules for use by the Council's SSC in recommending ABC to the Council; a risk policy for use in conjunction with the ABC control rules to inform the SSC of the Council's preferred tolerance for the risk of overfishing a stock; ACLs for all Council-managed stocks except Loligo and Illex squids, which are exempt from the ACL/AM requirements due to annual life cycles; comprehensive AMs for all established ACLs; descriptions of the process to review ACL and AM performance; and establishment of processes to modify the measures to be implemented through the Omnibus Amendment.

Public comments are being solicited on the Council's Omnibus Amendment and its incorporated documents through the end of the comment period stated in this notice of availability. A proposed rule that would implement the Omnibus Amendment's measures if approved, will be published in the Federal Register for public comment, following NMFS's evaluation of the proposed rule under the procedures of the Magnuson-Stevens Act. Public comments on the proposed rule must be received by the end of the comment period provided in this notice of availability of the Omnibus Amendment to be considered in the approval/disapproval decision on the amendment. All comments received by July 22, 2011, whether specifically directed to the Omnibus Amendment or the proposed rule, will be considered by NMFS in the approval/disapproval decision on the Omnibus Amendment. In reviewing, approving, and implementing Council-recommended amendment actions, NMFS is constrained to approval, disapproval, or partial approval only.

Comments received after the specified date will not be considered in the decision to approve, partially approve, or disapprove the Omnibus Amendment. To be considered, comments must be received by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date.

Pelagic fisheries in the U.S. western Pacific are managed under the FEP, developed by the Council, and approved and implemented by NMFS. The Council prepared Amendment 5 to address pelagic fishing concerns in American Samoa, and submitted the amendment to NMFS for review under the Magnuson-Stevens Fishery Conservation and Management Act.

The pelagic longline fishery based in American Samoa is predominantly composed of longline vessels over 40 ft (12 m) in length. Longline vessels set 30-50 miles (48-80 km) of monofilament main line and around 3,000 hooks per day. In 2010, 26 vessels made a total of 4,328 sets, and landed about 222,400 albacore (most destined for the Pago Pago cannery), and smaller amounts of skipjack, yellowfin and bigeye tunas. The fishery also takes wahoo, oilfish, blue marlin, blue sharks, and other pelagic fish.

The American Samoa longline fishery occasionally interacts with (hooks or entangles) Pacific green sea turtles ( Chelonia mydas ), which are listed as threatened under the Endangered Species Act. Most of the interactions occur in near-surface waters, that is, shallower than 100 m, and most injuries to green sea turtles are fatal. To reduce these interactions, the Council proposes to amend the FEP to require longline fishermen to use a suite of gear configurations designed to ensure that longline hooks are set to fish at a depth of 100 meters or deeper, away from the primary turtle habitat.

This action would require fishermen on the large vessels (Classes B, C, and D) to use float lines that are at least 30 meters long, and maintain a distance of 70 m between floats and adjacent branch lines with hooks. Fishermen on these large vessels would be required to deploy at least 15 branch lines with hooks between floats. The possession or landing of more than 10 swordfish, which tend to inhabit near-surface waters, would also be prohibited to help ensure that shallower longline fishing does not occur.

While green sea turtles are expected to benefit from the proposed gear modifications, the action is not expected to change the conduct of the fishery in terms of the number of vessels, areas fished, and fish targeted. Thus, there would not likely be adverse impacts on target and non-target species. No negative impacts are expected on seabirds, marine mammals, essential fish habitat, habitat areas of particular concern, marine protected areas, fishing communities, or safety at sea.

Comments on Amendment 5 must be received by July 22, 2011 to be considered by NMFS in the decision to approve, partially approve, or disapprove the amendment. NMFS soon expects to publish and request public comment on a proposed rule that would implement the measures recommended in Amendment 5.