Comments Invited

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-2012-1131; Directorate Identifier 2012-NE-34-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 with FAA personnel concerning this proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2012-0187, dated September 18, 2012 (referred to hereinafter as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

This product has been approved by the aviation authority of France and is approved for operation in the United States. Pursuant to our bilateral agreement with the European Community, EASA has notified us of the unsafe condition described in the MCAI referenced above. We are proposing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. This proposed AD would require daily post-flight checks of the engine tachometer's unit cycle counting feature. This proposed AD would also require ground-run functional checks within every 1,000 operating hours.

We estimate that this proposed AD would affect about 1,420 engines installed in helicopters of U.S. registry. We also estimate that it would take about 30 minutes per engine to perform a check of the engine's tachometer unit cycle counting feature and that an average of 320 checks would be required per year. Based on the average annual operating hours for an engine, a 1,000 operating hour functional check would not be required for at least one year. The average labor rate is $85 per hour. No parts would be required. Based on these figures, we estimate the average total cost of the proposed AD on U.S. operators to perform checks of the tachometer cycle counting unit for a year, is $19,312,000.

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:

CSOSA is responsible under the District of Columbia Sex Offender Registration Act of 1999, DC Law 13-137, DC Official Code Sections 22-4001 et seq., for carrying out the sex offender registration functions in the District of Columbia, including verification of information maintained on sex offenders. In addition, the Sex Offender Registration and Notification Act (SORNA), Title I of the Adam Walsh Child Protection and Safety Act of 2006, (Pub. L. 109-248), provides a comprehensive set of minimum standards for sex offender registration and notification in the United States. SORNA is designed to strengthen and increase the effectiveness of sex offender registration and notification for the protection of the public and to reduce the risk that sex offenders could evade registration requirements or the consequences of registration violations. This amendment will allow CSOSA to better meet the requirements of the District of Columbia Sex Offender Registration Act of 1999 and SORNA.

The District of Columbia Sex Offender Registration Act of 1999, DC Law 13-137, DC Official Code Sections 22-4001 et seq., grants CSOSA the authority to adopt and implement procedures and requirements for verification of address information and other information required for registration.

The Sex Offender Registration and Notification Act (SORNA), Title I of the Adam Walsh Child Protection and Safety Act of 2006, (Pub. L. 109-248), requires a sex offender to appear in person, allowing the jurisdiction to take a current photograph and verify the information in the sex offender registry on a scheduled frequency. Jurisdictions may require verification of registration information with greater frequency than that required by SORNA and may wish to include in their systems additional means of verification for registration information, such as mailing address verification forms to the registered residence address, requesting that the sex offender to sign and return a verification form, crosschecking information provided by the sex offender for inclusion in the registry against other records systems, and verifying home addresses through home visits.

Jurisdictions are required to notify appropriate law enforcement agencies of failures by sex offenders to comply with registration requirements, and such registration violations must be reflected in the sex offender registry. SORNA requires that jurisdictions and the appropriate law enforcement agencies take any appropriate action to ensure compliance. Federal law enforcement resources, including those of the United States Marshals Service, are permitted to assist jurisdictions in locating and apprehending sex offenders who violate registration requirements.

CSOSA invites comments to address its proposed rule amending its existing rule, permitting CSOSA to: (1) Verify addresses of sex offenders by conducting home visits on its own accord and with its law enforcement partners, and (2) clarify the schedule for verifying home addresses, even for those sex offenders who are required to register but are not under CSOSA's supervision.

CSOSA has determined that this proposed rule is not a significant rule within the meaning of Executive Order 12866.

This rule 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. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring a Federalism Assessment.

The proposed rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

The rules will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

These rules are not “major rules” as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 Subtitle E-Congressional Review Act), now codified at 5 U.S.C. 804(2). The rules will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on the ability of United States-based companies to compete with foreign-based companies. Moreover, these are rules of agency practice or procedure that do not substantially affect the rights or obligations of non-agency parties, and do not come within the meaning of the term “rule” as used in Section 804(3)(C), now codified at 5 U.S.C. 804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

For the reasons set forth in the preamble, the Court Services and Offender Supervision Agency for the District of Columbia proposes to amend 28 CFR Part 811 as follows:

Throughout this document, wherever “Agency,” “we,” “us,” or “our” is used, we mean the EPA.

The Environmental Protection Agency (EPA) is proposing action on the ozone attainment demonstration portion of comprehensive State Implementation Plan (SIP) revisions submitted by New Jersey and New York to meet Clean Air Act (Act or CAA) requirements for attaining the 0.08 parts per million (ppm) 8-hour ozone national ambient air quality standards (NAAQS or standard). 1 EPA is proposing to approve New Jersey's and New York's SIP revisions which demonstrate attainment of the 1997 8-hour ozone standard as they relate to their portions of three moderate nonattainment areas:

• The New York-Northern New Jersey-Long Island, NY-NJ-CT area, also called the New York City Metropolitan area,

• The Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE area, also called the Philadelphia area, and

• The Poughkeepsie area.

The EPA is proposing to approve New Jersey's and New York's 8-hour ozone attainment demonstration SIP revisions because the EPA has determined that the New York City Metropolitan, Philadelphia, and Poughkeepsie moderate nonattainment areas have attained the ozone NAAQS by their respective attainment deadlines. This proposed determination is based on complete quality assured and certified ambient air monitoring data from 2007 to 2011 that show the area has monitored attainment of the 1997 8-hour ozone NAAQS during this monitoring period.

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

On April 30, 2004 (69 FR 23858), EPA finalized its attainment/nonattainment designations for areas across the country with respect to the 8-hour ozone standard. These actions became effective on June 15, 2004. Among those nonattainment areas are the New York City Metropolitan area, the Philadelphia Area and the Poughkeepsie area. The New York City Metropolitan nonattainment area is composed of: the Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Passaic, Somerset, Sussex, Union, and Warren Counties in New Jersey; the Bronx, Kings, Nassau, New York, Queens, Richmond, Rockland, Suffolk, and Westchester Counties in New York; and the Fairfield, Middlesex and New Haven Counties in Connecticut. The Philadelphia Area includes the entire State of Delaware; Cecil County in Maryland; Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Ocean, and Salem Counties in New Jersey; and Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties in Pennsylvania. The Poughkeepsie nonattainment area includes Dutchess, Orange and Putnam Counties in New York. See 40 CFR 81.307, 81.308, 81.321, 81.331, 81.333, and 81.339.

Also, on April 30, 2004 (69 FR 23951), EPA promulgated the Phase 1 8-hour ozone Implementation Rule which provided how areas designated nonattainment for the 1997 8-hour ozone standard would be classified. These designations triggered the Act's requirements under section 182(b) for moderate nonattainment areas, including a requirement to submit an attainment demonstration. EPA's Phase 2 8-hour ozone implementation rule, published on November 29, 2005 (70 FR 71612) (Phase 2 Rule) specifies that states must submit attainment demonstrations for their nonattainment areas to the EPA by no later than three years from the effective date of designation, that is, by June 15, 2007. 40 CFR 51.908(a).

Although the focus of this proposed rulemaking action is on the attainment demonstrations for the 1997 8-hour ozone standard, we note that EPA has subsequently revised the ozone standard. On March 12, 2008, EPA revised both the primary and secondary NAAQS for ozone to a level of 0.075 ppm (annual fourth-highest daily maximum 8-hour average concentration, averaged over 3 years) to provide increased protection of public health and the environment. 2 The 2008 ozone NAAQS retain the same general form and averaging time as the 0.08 ppm NAAQS set in 1997, but are set at a more protective level. State emission reduction efforts already underway to meet the 1997 8-hour ozone standard will continue with implementation of the 2008 ozone NAAQS.

EPA's November 29, 2005 Phase 2 Rule addresses, among other things, the control obligations that apply to areas designated nonattainment for the 1997 8-hour NAAQS. The Phase 1 and Phase 2 Rules outline the SIP requirements and deadlines for various requirements in areas designated as moderate nonattainment. For such areas, modeling and attainment demonstrations with projection year emission inventories were due by June 15, 2007, along with reasonable further progress plans, reasonably available control technology (RACT), reasonably available control measures (RACM), motor vehicle emissions budgets and contingency measures (40 CFR 51.908(a), and (c) 59.910, 59.912). This proposed action addresses New Jersey's and New York's demonstration of attainment of the 1997 8-hour ozone standard. Moderate areas are required to attain the 1997 8-hour ozone NAAQS by no later than six years after designation, or June 15, 2010. See 40 CFR 51.903. In order to demonstrate attainment by June 2010, the area must adopt and implement all controls necessary for attainment by the beginning of the 2009 ozone season and demonstrate that the level of the standard will be met during the 2009 ozone season. The Philadelphia Area qualified for a one-year extension of its attainment date, based on the complete, certified ambient air quality data for the 2009 ozone season. On January 21, 2011, EPA approved a one-year extension of the Philadelphia Area's attainment date, from June 15, 2010 to June 15, 2011. See 76 FR 3838 and 76 FR 3840.

After completing the appropriate public notice and comment procedures, New Jersey made a series of submittals in order to address the Act's 8-hour ozone attainment requirements. On August 1, 2007, New Jersey submitted its RACT rules, which included a determination that many of the RACT rules currently contained in its SIP meet the RACT obligation for the 8-hour standard, and also included commitments to adopt revisions to several regulations where the State identified more stringent emission limitations that it believed should be considered RACT. On October 29, 2007, New Jersey submitted to EPA a comprehensive 8-hour ozone SIP to address the Act's 8-hour ozone attainment requirements for the New Jersey portions of the New York City Metropolitan and the Philadelphia nonattainment areas. New Jersey's proposed SIP included, among other elements, attainment demonstrations, reasonable further progress (RFP) plans for 2008 and 2009, reasonably available control measures analyses for both areas, contingency measures, on-road motor vehicle emission budgets, and general conformity emission budgets. Finally, as part of the RACT evaluation, on December 14, 2007, New Jersey submitted to EPA an assessment of how it planned to address EPA's revised Control Technique Guidelines. New Jersey's attainment demonstration SIP revisions are the only subject of this proposed rulemaking.

EPA has taken several actions on New Jersey's SIP revisions to address the requirements of the 1997 8-hour ozone standard:

• On July 17, 2008 (73 FR 41068), EPA made a finding that the motor vehicle emissions budgets for the New Jersey portions of the New York City Metropolitan area and the Philadelphia area associated with the respective reasonable further progress and attainment demonstrations are adequate for transportation conformity purposes.

• On May 15, 2009 (74 FR 22837), EPA approved the RFP plans, RFP contingency measures, and RACM analyses from New Jersey.

• On August 3, 2010 (75 FR 45483) and on December 22, 2010 (75 FR 80340), EPA approved SIP revisions for numerous statewide RACT rules to control emissions from sources of volatile organic compounds, nitrogen oxides, particulate matter and sulfur dioxide to address the RACT requirements for the 1997 8-hour ozone standard.

New Jersey has submitted all required SIP revisions to address the 1997 8-hour ozone standard, and has implemented all of the emission control measures, including contingency measures, contained in these SIP revisions. EPA's approval of these SIP revisions, in combination with this proposed rulemaking action to approve the attainment demonstrations will serve to completely address New Jersey's requirements under the 1997 8-hour ozone standard.

After completing the appropriate public notice and comment procedures, New York made a series of submittals in order to address the Act's 8-hour ozone attainment requirements. On September 1, 2006, New York submitted its state-wide 8-hour ozone RACT SIP, which included a determination that many of the RACT rules currently contained in its SIP meet the RACT obligation for the 8-hour standard and also included commitments to adopt revisions to several regulations where the State identified more stringent emission limitations that it believed should now be considered RACT. On February 8, 2008, New York submitted two comprehensive 8-hour ozone SIPs—one for the New York City Metropolitan area, entitled, “New York SIP for Ozone—Attainment Demonstration for New York Metro Area” and one for the Poughkeepsie nonattainment area, entitled, “New York SIP for Ozone—Attainment Demonstration for Poughkeepsie, NY Area.” On December 28, 2009 and January 26, 2011, New York supplemented its February 8, 2008 submittal. The submittals included the 2002 base year emissions inventory, projection year emissions, attainment demonstrations, RFP plans, RACM analysis, RACT analysis, contingency measures and on-road motor vehicle emission budgets. New York's attainment demonstration SIP revisions are the only subjects of this proposed rulemaking.

EPA has taken several actions on New York's SIP revisions to address the requirements of the 1997 8-hour ozone standard:

• On May 28, 2010 (75 FR 29897), EPA approved SIP revisions for several of New York's RACT rules for emissions of volatile organic compounds to address the RACT requirements for the 1997 8-hour ozone standard.

• On July 13, 2010 (75 FR 43066), EPA conditionally approved New York's 8-hour ozone statewide RACT analysis and the 8-hour ozone RACM analysis for the New York City Metropolitan area. The condition was that New York submits to EPA the RACT rules committed to in New York's RACT plan, which ultimately New York did submit.

• On August 2, 2010 (75 FR 45057), EPA made the finding that the motor vehicle emissions budgets for the New York portions of the New York City Metropolitan area and the Poughkeepsie area associated with the respective reasonable further progress and attainment demonstrations are adequate for transportation conformity purposes.

• On August 18, 2011 (76 FR 51264), EPA approved the 2002 statewide base year emissions inventory and the projection year emissions, the motor vehicle emissions budgets used for planning purposes, the reasonable further progress plan, and the contingency measures as they relate to the New York City Metropolitan area.

• On March 8, 2012 (77 FR 13974), EPA approved SIP revisions for several of New York's RACT rules for emissions of volatile organic compounds to address the conditional approval of New York's RACT plan to meet the requirements for the 1997 8-hour ozone standard.

New York has submitted all required SIP revisions to address the 1997 8-hour ozone standard, and has implemented all of the emission control measures, including contingency measures, contained in these SIP revisions. EPA's approval of these SIP revisions, in combination with this proposed rulemaking action to approve the attainment demonstrations for the 1997 8-hour ozone standard will serve to completely address New York's requirements under the 1997 8-hour ozone standard.

With respect to the New York City Metropolitan, Philadelphia, and Poughkeepsie areas, EPA has evaluated the ambient air quality monitoring data and has determined that all three areas attained the 8-hour ozone standard by the required attainment date.

In a June 18, 2012 Federal Register notice (77 FR 36163), EPA made several determinations, including two determinations regarding the 1997 8-hour ozone NAAQS for the New York City Metropolitan moderate nonattainment area. (Note EPA published a technical correction to the June 18, 2012 action on August 9, 2012 (77 FR 47533)). First, EPA made a clean data determination that the New York City Metropolitan area had attained the 1997 8-hour ozone NAAQS. This determination was based upon complete, quality assured and certified ambient air monitoring data that showed the New York City Metropolitan area had monitored attainment of the 1997 8-hour ozone NAAQS for the 2007-2009 and 2008-2010 monitoring periods. Ambient air monitoring data for the 2009-2011 monitoring period is consistent with continued attainment. Second, pursuant to section 181(b)(2)(A) of the CAA, EPA made a determination of attainment that the New York City Metropolitan area had attained the 1997 8-hour ozone NAAQS by its attainment date of June 15, 2010.

In a March 26, 2012 Federal Register notice (77 FR 17341), EPA made two determinations regarding the 1997 8-hour ozone NAAQS for the Philadelphia moderate nonattainment area. First, EPA made a clean data determination that the Philadelphia area had attained the 1997 8-hour ozone NAAQS. This determination was based upon complete, quality assured and certified ambient air monitoring data that showed the Philadelphia area had monitored attainment of the 1997 8-hour ozone NAAQS for the 2008-2010 monitoring period. Ambient air monitoring data for the 2009-2011 monitoring period is consistent with continued attainment. Second, pursuant to section 181(b)(2)(A) of the CAA, EPA made a determination of attainment that the Philadelphia area had attained the 1997 8-hour ozone NAAQS by its attainment date of June 15, 2011.

On December 7, 2009 (74 FR 63993), EPA made a clean data determination for the Poughkeepsie area and announced the attainment determination in the Federal Register . The clean data determinations were based on 2006-2008 quality-assured and certified ozone monitoring data for the Poughkeepsie area. Based on complete, quality-assured and certified ozone monitoring data since the 2006-2008 monitoring period, the Poughkeepsie area continues to show attainment through 2011, and with preliminary ozone data through 2012.

While not required, New Jersey and New York requested EPA to make these determinations in certain circumstances. New Jersey requested EPA to make a determination that the New York City Metropolitan area attained the 8-hour ozone NAAQS in a letter dated January 19, 2011. New York requested EPA to make determinations that the New York City Metropolitan area and the Poughkeepsie area have attained the 8-hour ozone NAAQS in letters dated June 16, 2011 and July 30, 2009, respectively. Copies of these rulemakings containing the determinations of attainment and the clean data determinations are included in the Docket (EPA-R02-OAR-2012-0840) and available at www.regulations.gov. The reader is referred to these other rulemakings for additional information regarding all of the complete, quality-assured and certified ozone monitoring data which served as the basis for these determinations.

EPA is aware that preliminary ambient air quality monitoring data for 2012 may indicate that the New York City Metropolitan and Philadelphia areas are no longer attaining the 1997 8- hour ozone NAAQS, while the Poughkeepsie area continues to attain the 8-hour ozone NAAQS. However, 2012 monitoring data is not relevant to this proposed rulemaking on SIP revisions which demonstrate how the states met their plan to attain the 1997 8-hour ozone standard by the June 15, 2010 attainment date (June 15, 2011 for the Philadelphia area). Based on data through 2011, these areas are attaining the 1997 8-hour ozone NAAQS. EPA has a continuing obligation to review the air quality data each year to determine whether areas are meeting the NAAQS and will continue to conduct that review in the future after data is complete, quality-assured, certified and submitted to EPA.

Lastly, pursuant to 40 CFR 51.918, these determinations suspend the requirements for various SIP items, including, the requirement to submit an attainment demonstration, an RFP plan, and section 172(c)(9) contingency measures for the eight-hour ozone NAAQS for so long as the area continues to attain the ozone NAAQS. However, section 110(k)(2) of the CAA requires EPA to take action on any administratively complete SIP revision submittal within 12 months of the SIP being deemed complete. Therefore, while the clean data determinations suspend the state's obligation to submit the attainment demonstration SIP revision, the determinations do not suspend EPA's obligation to take action on the SIP revision if it has been submitted by the state and deemed to be complete. EPA was sued by Sierra Club to take final action on these particular attainment demonstration SIP revisions ((see Sierra Club v. Jackson, Civil Action No. 11-2180-RBW) (D.D.C.)). EPA is proposing to take such final action in this notice. The proposed rulemaking is intended to address EPA's obligations.

Section 110(a)(2)(k) of the Act requires states to prepare air quality modeling to demonstrate how they will meet ambient air quality standards. EPA determined that states must use photochemical grid modeling, or any other analytical method determined by the Administrator to be at least as effective, to demonstrate attainment of the ozone health-based standard in areas classified as “moderate” or above, and to do so by the required attainment date. See 40 CFR 51.908(c). EPA requires an approvable attainment demonstration, showing that attainment will occur by the attainment deadline, using air quality modeling that meets EPA's guidelines and a `weight of evidence' analysis that uses a variety of information to determine if the results of the modeling analysis are supported by supplemental information or need to be modified.

New Jersey submitted an attainment demonstration for the New York City Metropolitan and Philadelphia areas that included a modeling analysis and a two-part weight of evidence analysis, which the State said would result in attainment by the attainment date. The modeling analysis predicted continued nonattainment by 2009. The first part of the weight of evidence analysis included adjustments to the modeling results to account for model bias. The second part of the weight of evidence analysis included an evaluation of additional factors that would support a conclusion that attainment will be reached by 2009, despite the conclusion of the adjusted modeling analysis that predicted continued nonattainment by 2009.

New York submitted an attainment demonstration for the New York City Metropolitan and Poughkeepsie areas that included a modeling analysis and a weight of evidence analysis. With respect to the New York City Metropolitan area, New York's modeling analysis predicted continued nonattainment by 2009. Based on the measured ozone levels at the time (2007), New York did not support a weight of evidence conclusion that attainment will be reached by 2009. With respect to the Poughkeepsie area, New York's modeling analysis predicted attainment by 2009.

EPA determined that the photochemical grid modeling conducted by the states was consistent with EPA's guidelines and the model performed acceptably. Taking into account that EPA made clean data determinations and determinations of attainment of the 1997 8-hour ozone NAAQS attainment date for the New York City Metropolitan, Philadelphia and Poughkeepsie areas, EPA is proposing to approve New Jersey's and New York's demonstrations of attainment of the 1997 8-hour ozone standard for these three moderate nonattainment areas.

In addition, as noted earlier, EPA has already approved the RFP plans for the New York City Metropolitan and Philadelphia areas. Given the fact that these areas attained the ozone standard by the attainment date suggests that the RFP plans may have been sufficient for the moderate nonattainment areas to reach attainment. These RFP plans contained corresponding emission control measures and the states developed and adopted additional control measures to ensure attainment of the ozone standard by the attainment date. All of the control measures that were relied on for attainment and contained in the RFP plans were submitted as SIP revisions and approved by EPA. Therefore, the demonstration of attainment for the New York City Metropolitan, Philadelphia and Poughkeepsie areas in New Jersey and New York SIPs are approvable because New Jersey and New York each adopted all of the control measures in its ozone plans.

In summary, the basic photochemical grid modeling used by New Jersey and New York in its SIP submittal meets EPA's guidelines and, when used with the methods recommended in EPA's modeling guidance, is acceptable to EPA. Air quality data through 2011 supports the states' conclusions that the areas will demonstrate attainment of the 8-hour ozone standard by the attainment date. The purpose of the attainment demonstration is to show how the areas will meet the standard by the attainment date. All the control measures included in the attainment demonstration SIPs have already been adopted, submitted, approved and implemented. Based on (1) the states following EPA's modeling guidance, (2) the air quality data through 2011, (3) the areas attaining the standard by the attainment date, and (4) the implemented SIP approved control measures, EPA is proposing to approve the New Jersey and New York attainment demonstration SIP revisions.

EPA has evaluated New Jersey's and New York's submittals for consistency with the Act, EPA regulations, and EPA policy. EPA has evaluated the information provided by New Jersey and New York and has considered all other information it deems relevant to attainment of the 1997 8-hour ozone standard, i.e., clean data determinations, determinations that these areas attained the standard by the applicable attainment date, statewide RACT analysis approval, reasonable further progress plan approvals (including all applicable control strategy regulations), continued attainment of the 1997 8-hour ozone standard based on quality assured and certified monitoring data, and the implementation of the more stringent 2008 8-hour ozone standard. EPA is therefore proposing to approve the attainment demonstrations for the New York City Metropolitan, Philadelphia and Poughkeepsie 1997 8-hour ozone moderate nonattainment areas.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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, this action:

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

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 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 (Public Law 104-4);

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

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

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

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

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

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.

Table of Contents I. Summary of Actions II. Background III. Criteria for Redesignation to Attainment IV. Reasons for Proposing These Actions V. Effects of EPA's Proposed Actions VI. Analysis of West Virginia's Redesignation Request VII. Analysis of West Virginia's Transportation Conformity Insignificance Determination for the Wheeling Area VIII. Proposed Actions IX. Statutory and Executive Order Reviews I. Summary of Actions

On March 8, 2012, the State of West Virginia through WVEP formally submitted a request to redesignate the West Virginia portion of the Area from nonattainment to attainment of the 1997 annual PM 2.5 NAAQS. Concurrently, WVDEP submitted a maintenance plan for the Area as a SIP revision to ensure continued attainment throughout the Area over the next 10 years.

EPA is proposing to take several actions related to the redesignation of the West Virginia portion of the Area to attainment for the 1997 annual PM 2.5 NAAQS. EPA is proposing to find that the West Virginia portion of the Area meets the requirements for redesignation for the 1997 annual PM 2.5 NAAQS under section 107(d)(3)(E) of the CAA. EPA is thus proposing to approve West Virginia's request to change the legal definition of its portion of the Area from nonattainment to attainment for the 1997 annual PM 2.5 NAAQS. This action does not impact the legal definition of the Ohio portion of the Area. EPA is taking separate action to redesignate the Ohio portion.

EPA is also proposing to approve the maintenance plan for the West Virginia portion of the Area as a revision to the West Virginia SIP. Such approval is one of the CAA criteria for redesignation of an area to attainment. The maintenance plan is designed to ensure continued attainment in the West Virginia portion of the Area for 10 years after redesignation. The maintenance plan includes an insignificance determination for the onroad motor vehicle contribution for PM 2.5 , SO 2 and NO X in the West Virginia portion of the Area for transportation conformity purposes. EPA has determined that the onroad motor vehicle insignificance finding that is included as part of West Virginia's maintenance plan for the 1997 annual PM 2.5 NAAQS is adequate, and is proposing to approve the insignificance determination. Furthermore, under section 172(c)(3) of the CAA, EPA is proposing to approve the 2005 base year emissions inventory for the West Virginia portion of the Area as part of West Virginia's maintenance plan for the 1997 annual PM 2.5 NAAQS. EPA's analysis for these proposed actions is discussed in Sections VI and VII of today's proposed rulemaking action.

The first air quality standards for PM 2.5 were established on July 18, 1997 (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 (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 the 24-hour concentrations.

On January 5, 2005 (70 FR 944), as supplemented on April 14, 2005 (70 FR 19844), EPA designated the Wheeling Area as nonattainment for the 1997 PM 2.5 NAAQS. The Wheeling Area is comprised of Marshall and Ohio Counties in West Virginia and Belmont County in Ohio. On November 13, 2009 (74 FR 58688), EPA promulgated designations for the 24-hour standard established in 2006, designating the Wheeling Area as attaining this standard. In that action, EPA also clarified the designations for the NAAQS promulgated in 1997, stating that the Wheeling Area remained designated nonattainment for the 1997 annual PM 2.5 NAAQS, but was designated attainment for the 1997 24-hour NAAQS. Today's action therefore, does not address attainment of either the 1997 or the 2006 24-hour PM 2.5 NAAQS.

In response to legal challenges of the annual standard promulgated in 2006, the United States Court of Appeals for the District of Columbia Circuit (the Court) remanded the 2006 annual 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 Area is designated nonattainment for the annual standard promulgated in 1997, today's action addresses redesignation to attainment only for this standard.

In the final rulemaking action dated December 2, 2011 (76 FR 75464), EPA determined, pursuant to CAA section 179(c), that the entire Wheeling Area is attaining the 1997 annual PM 2.5 NAAQS. This determination of attainment was based upon complete, quality-assured and certified ambient air quality monitoring data for the period of 2007-2009 showing that the Area had attained the 1997 annual PM 2.5 NAAQS by its applicable attainment date of April 5, 2010.

On May 12, 2005, EPA published CAIR, which requires significant reductions in emissions of SO 2 and NO X from electric generating units (EGUs) to limit the interstate transport of these pollutants and the ozone and PM 2.5 they form in the atmosphere. See 70 FR 25162. The Court initially vacated CAIR, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR. North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). In response to the Court's decision, EPA issued the Transport Rule, also known as CSAPR, to address interstate transport of NO X and SO 2 in the eastern United States. See 76 FR 48208 (August 8, 2011). On August 21, 2012, the Court issued a decision to vacate the Transport Rule. In that decision, it also ordered EPA to continue administering CAIR “pending the promulgation of a valid replacement.” EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir., August 21, 2012). 2

In light of these unique circumstances and for the reasons explained below, EPA proposes to approve the redesignation request and the related SIP revision for Marshall and Ohio Counties in West Virginia, including West Virginia's plan for maintaining attainment of the 1997 annual PM 2.5 NAAQS for the West Virginia portion of the Area. The air quality modeling analysis conducted for the Transport Rule demonstrates that the Wheeling Area would be able to attain the 1997 annual PM 2.5 NAAQS even in the absence of either CAIR or the Transport Rule. See “ Air Quality Modeling Final Rule Technical Support Document,” Appendix B, B-115-B-134. This modeling is available in the docket for the Transport Rule rulemaking. See Docket ID. No. EPA-HQ-OAR-2009-0491. Nothing in the Court's August 2012 decision disturbs or calls into question that conclusion or the validity of the air quality analysis on which it is based.

In addition, CAIR remains in place and enforceable until substituted by a “valid” replacement rule. West Virginia's SIP revision lists CAIR as a control measure that became state-effective May 1, 2008 and was approved by EPA on August 4, 2009 (74 FR 38536) for the purpose of reducing SO 2 and NO X emissions. The monitoring data used to demonstrate the Area's attainment of the 1997 annual PM 2.5 NAAQS by the April 2010 attainment deadline was also impacted by CAIR. To the extent that West Virginia is relying on CAIR in its maintenance plan, the recent directive from the Court in EME Homer City ensures that the reductions associated with CAIR will be permanent and enforceable for the necessary time period. EPA has been ordered by the Court to develop a new rule, and the opinion makes clear that after promulgating that new rule, EPA must provide states an opportunity to draft and submit SIPs to implement that rule. CAIR thus cannot be replaced until EPA has promulgated a final rule through a notice-and-comment rulemaking process, states have had an opportunity to draft and submit SIPs, EPA has reviewed the SIPs to determine if they can be approved, and EPA has taken action on the SIPs, including promulgating a FIP if appropriate. These steps alone will take many years, even with EPA and the states acting expeditiously. The Court's clear instruction to EPA that it must continue to administer CAIR until a “valid replacement” exists provides an additional backstop; by definition, any rule that replaces CAIR and meets the Court's direction would require upwind states to have SIPs that eliminate significant downwind contributions.

Further, in vacating the Transport Rule and requiring EPA to continue administering CAIR, the Court emphasized that the consequences of vacating CAIR “might be more severe now in light of the reliance interests accumulated over the intervening four years.” EME Homer City, slip op. at 60. The accumulated reliance interests include the interests of states who reasonably assumed they could rely on reductions associated with CAIR which brought certain nonattainment areas into attainment with the NAAQS. If EPA were prevented from relying on reductions associated with CAIR in redesignation actions, states would be forced to impose additional, redundant reductions on top of those achieved by CAIR. EPA believes this is precisely the type of irrational result the Court sought to avoid by ordering EPA to continue administering CAIR. For these reasons also, EPA believes it is appropriate to allow states to rely on CAIR, and the existing emissions reductions achieved by CAIR, as sufficiently permanent and enforceable pending a valid replacement rule for purposes such as redesignation. Following promulgation of the replacement rule, EPA will review SIPs as appropriate to identify whether there are any issues that need to be addressed.

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

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

1. “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (hereafter referred to as the “Calcagni Memorandum”);

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

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

On March 8, 2012, the WVDEP requested redesignation of the West Virginia portion of the Area to attainment for the 1997 annual PM 2.5 NAAQS. As part of the redesignation request, WVDEP submitted a maintenance plan for the West Virginia portion of the Area as a SIP revision, to ensure continued attainment of the 1997 annual PM 2.5 NAAQS over the next 10 years until 2022. EPA has determined that the Wheeling Area has attained the 1997 annual PM 2.5 NAAQS and has met the requirements set forth in CAA section 107(d)(3)(E) for redesignation of the West Virginia portion of the Area.

Final approval of the redesignation request would change the official designation of the West Virginia portion of Area for the 1997 annual PM 2.5 NAAQS, found at 40 CFR part 81, from nonattainment to attainment. It would incorporate into the West Virginia SIP a maintenance plan ensuring continued attainment of the 1997 annual PM 2.5 NAAQS in the Area for the next 10 years until 2022. The maintenance plan includes, among other components, contingency measures to remedy any future violations of the 1997 annual PM 2.5 NAAQS (should they occur). Approval of the maintenance plan would also result in approval of the insignificance determination for PM 2.5 , SO 2 and NOx for transportation conformity purposes for the years 2015 and 2022 in the West Virginia portion of the Area. Approval of the 2005 base year emissions inventory, which is part of the maintenance plan, will satisfy the inventory requirements under section 172(c)(3) of the CAA.

EPA proposes to redesignate the West Virginia portion of the Area to attainment for the 1997 annual PM 2.5 NAAQS and to approve into the West Virginia SIP the 1997 annual PM 2.5 NAAQS maintenance plan for the West Virginia portion of the Area. These actions are based upon EPA's determination that the Area continues to attain the 1997 annual PM 2.5 NAAQS and that all other redesignation criteria have been met for the West Virginia portion of the Area, provided EPA approves the 2005 base year emissions inventory that is being proposed in this rulemaking. The following is a description of how the WVDEP March 8, 2012 submittal satisfies the requirements of section 107(d)(3)(E) of the CAA.

As noted above, in a final rulemaking action dated December 2, 2011 (76 FR 75464), EPA determined, pursuant to CAA section 179(c), that the entire Wheeling Area was attaining the 1997 annual PM 2.5 NAAQS. This determination of attainment was based upon complete, quality-assured and certified ambient air quality monitoring data for the period of 2007-2009 showing that the Area had attained the NAAQS by its applicable attainment date of April 5, 2010. Further discussion of pertinent air quality issues underlying this determination was provided in the notice of proposed rulemaking for EPA's determination of attainment for this Area, published on July 21, 2011 (76 FR 43634). EPA has reviewed more recent data in its Air Quality System (AQS) database, including certified, quality-assured data for the period from 2008-2010 and 2009-2011. This data shown in Table 1, shows that the Wheeling Area continues to attain the 1997 annual PM 2.5 NAAQS. In addition, as discussed below with respect to the maintenance plan, WVDEP has committed to continue monitoring air quality in accordance with 40 CFR part 58. In summary, EPA has determined that the data submitted by West Virginia, as well as data taken from AQS, indicate that the Wheeling Area has attained and continues to attain the 1997 annual PM 2.5 NAAQS.

EPA has determined that the West Virginia portion of the Area has met all SIP requirements applicable for purposes of this redesignation under section 110 of the CAA (General SIP Requirements) and that, upon final approval of the 2005 base year emissions inventory, as discussed below in this proposed rulemaking, it will have met all applicable SIP requirements under part D of Title I of the CAA, in accordance with CAA section 107(d)(3)(E)(v). In addition, EPA is proposing to find that all applicable requirements of the West Virginia SIP for purposes of redesignation have been approved in accordance with CAA section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained which SIP requirements are applicable for purposes of redesignation of this Area, and concluded that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. EPA notes that SIPs must be fully approved only with respect to applicable requirements.

Section 110(a)(2) of Title I of the CAA delineates the general requirements for a SIP, which include enforceable emissions limitations and other control measures, means, or techniques, provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality, and programs to enforce the limitations. The general SIP elements and requirements set forth in CAA section 110(a)(2) include, but are not limited to the following:

• Submittal of a SIP that has been adopted by the state after reasonable public notice and hearing;

• Provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality;

• Implementation of a source permit program; provisions for the implementation of Part C requirements (Prevention of Significant Deterioration (PSD));

• Provisions for the implementation of Part D requirements for New Source Review (NSR) permit programs;

• Provisions for air pollution modeling; and

• Provisions for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D) of the CAA requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address the interstate transport of air pollutants in accordance with the NO X SIP Call, October 27, 1998 (63 FR 57356), amendments to the NO X SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and CAIR, May 12, 2005 (70 FR 25162). However, the CAA section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification in that state. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, EPA does not believe that these requirements are applicable requirements for purposes of redesignation.

In addition, EPA believes that the other CAA section 110(a)(2) elements not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The Area will still be subject to these requirements after it is redesignated. EPA concludes that the CAA section 110(a)(2) and Part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request, and that CAA section 110(a)(2) elements not linked in the area's nonattainment status are not applicable for purposes of redesignation. This approach is consistent with EPA's existing policy on applicability of conformity (i.e., for redesignations) and oxygenated fuels requirement. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio redesignation (65 FR at 37890, June 19, 2000) and in the Pittsburgh, Pennsylvania redesignation (66 FR at 53099, October 19, 2001).

EPA has reviewed the West Virginia SIP and has concluded that it meets the general SIP requirements under section 110(a)(2) of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of West Virginia's SIP addressing CAA section 110(a)(2) requirements, including provisions addressing PM 2.5 . See 76 FR 47062 (August 4, 2011). These requirements are, however, statewide requirements that are not linked to the PM 2.5 nonattainment status of the Wheeling Area. Therefore, EPA believes that these SIP elements are not applicable requirements for purposes of review of West Virginia's PM 2.5 redesignation request.

Subpart 1 of part D, sections 172 to 175 of the CAA, sets forth the basic nonattainment plan requirements applicable to PM 2.5 nonattainment areas. Under CAA section 172, states with nonattainment areas must submit plans providing for timely attainment and meet a variety of other requirements. On November 20, 2009 (74 FR 60199), EPA made a determination that the Wheeling Area is attaining the 1997 annual PM 2.5 NAAQS. This determination was based upon complete, quality-assured, quality controlled, and certified ambient air monitoring data that show that the area monitored attainment of the 1997 annual PM 2.5 NAAQS during the 2006-2008 monitoring period. Available monitoring data for 2009, 2010 and 2011 are consistent with continued attainment of the standard. Pursuant to 40 CFR 51.2004(c), upon determination by EPA that an area designated nonattainment of the PM 2.5 NAAQS has attained the standard, the requirement for such an area to submit an attainment demonstration and associated reasonably achievable control technology (RACT)/reasonably achievable control measures (RACM), a reasonable further progress (RFP), contingency measures, and other planning SIPs related to the attainment of the PM 2.5 NAAQS are suspended until the area is redesignated to attainment or EPA determines that the area has again violated the PM 2.5 NAAQS, at which time such plans are required to be submitted. As a result of the determination of attainment, the only remaining requirement under CAA section 172 to be considered is the emissions inventory required under CAA section 172(c)(3).

In this rulemaking action, EPA is proposing to approve West Virginia's 2005 base year emissions inventory in accordance with section 172(c)(3) of the CAA. Final approval of the 2005 base year emissions inventory will satisfy the emissions inventory requirement under section 172(c)(3) of the CAA.

The General Preamble for Implementation of Title I 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. See General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).

Because attainment has been reached for the Area, no additional measures are needed to provide for attainment, and CAA section 172(c)(1) requirements for an attainment demonstration and RACT/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 40 CFR 51.1004(c). The RFP requirement under CAA section 172(c)(2) and contingency measures requirement under CAA section 172(c)(9) are similarly not relevant for purposes of redesignation.

Section 172(c)(3) of the CAA requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. As part of the maintenance plan submitted by WVDEP, West Virginia submitted a 2005 base year emissions inventory that meets this requirement. The 2005 base year emissions inventory compiled by WVDEP for the West Virginia portion of the Area contains PM 2.5 (including condensables), SO 2 and NO X emissions. The emissions cover the general source categories of point sources, area sources, onroad mobile sources and nonroad mobile sources. The proposed approval of the 2005 base year emissions inventory in this rulemaking action will, when finalized, meet the requirements of CAA section 172(c)(3). For more information on the evaluation and EPA's analysis of the 2005 base year emissions inventory, see Appendix B of the State submittal and the emissions inventory technical support document (TSD) dated May 18, 2012, available on line at www.regulations.gov , Docket ID No. EPA-OAR-R03-2012-0368. A summary of the 2005 base year emissions inventory is shown in Tables 2 and 3.

Section 172(c)(4) of the CAA requires the identification and quantification of allowable emissions for major new and modified stationary sources in an area, and CAA 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 the PSD requirements will apply after redesignation, areas being redesignated need not comply with the requirement that a nonattainment 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. ” Nevertheless, West Virginia currently has an approved NSR program, codified in 45 CFR 19. See 71 FR 64468 (November 2, 2006) (approving NSR program into the SIP). See also 77 FR 63736 (October 17, 2012) (approving revisions to West Virginia's PSD program). However, West Virginia's PSD program for the 1997 annual PM 2.5 NAAQS will become effective in the Wheeling Area upon redesignation to attainment.

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

Section 172(c)(7) of the CAA requires the SIP to meet the applicable provisions of CAA section 110(a)(2). As noted previously, we believe the West Virginia SIP meets the requirements of CAA section 110(a)(2) that are 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 projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded or approved under Title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other Federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability which EPA promulgated pursuant to its authority under the CAA.

EPA interprets the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under CAA section 107(d) because state conformity rules are still required after redesignation and Federal conformity rules apply where state rules have not been approved. See Wall v. EPA, 265 F.3d 426, (6th Cir. 2001) (upholding this interpretation). See also 60 FR 62748 (December 7, 1995) (discussing Tampa, Florida). Thus, EPA determines that the Wheeling Area has satisfied all applicable requirements for purposes of redesignation under CAA section 110, and upon final approval of the 2005 base year emissions inventory, will have satisfied all applicable requirements under part D of Title I of the CAA.

Upon final approval of the 2005 base year emissions inventory, EPA will have fully approved the West Virginia portion of the Area under section 110(k) of the CAA for all requirements applicable for purposes of redesignaton to attainment for the 1997 annual PM 2.5 NAAQS. As noted above, in this rulemaking action, EPA is proposing to approve the West Virginia portion of the Area's 2005 base year emissions inventory (submitted as part of its maintenance plan) as meeting the requirement of section 172(c)(3) of the CAA for the 1997 annual PM 2.5 NAAQS. Therefore, upon final approval of the 2005 base year emissions inventory, EPA will have satisfied all applicable requirements under part D of Title I of the CAA for the West Virginia portion of the Area.

For redesignating a nonattainment area to attainment, CAA section 107(d)(3)(E)(iii) requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP and applicable Federal air pollution control regulations and other permanent and enforceable reductions. EPA believes that West Virginia has demonstrated that the observed air quality improvement in the West Virginia portion of the Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other state-adopted measures. In making this demonstration, West Virginia has calculated the change in emissions between 2005, one of the years used to designate the Wheeling Area as nonattainment, and 2008, one of the years the Wheeling Area monitored attainment. See Table 4 below. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that the Wheeling Area and contributing areas have implemented in recent years.

Reductions in PM 2.5 precursor emissions have occurred statewide and in upwind states as a result of Federal emission control measures with additional emission reductions expected to occur in the future. Federal emission control measures include the following:

These emission control requirements result in lower NO X and SO 2 emissions from new cars and light duty trucks, including sport utility vehicles. The Federal rules were phased in between 2004 and 2009. EPA has estimated that, after phasing in the new requirements, new vehicles emit less NO X in the following percentages: Passenger cars (light duty vehicles)—77 percent; light duty trucks, minivans, and sports utility vehicles—86 percent; and larger sports utility vehicles, vans, and heavier trucks—69-95 percent. EPA expects fleet wide average emissions to decline by similar percentages as new vehicles replace older vehicles. The Tier 2 standards also reduced the sulfur content of gasoline to 30 parts per million (ppm) beginning in January 2006, which reflects up to a 90 percent reduction in sulfur content.

EPA issued this rule in July 2000. This rule includes standards limiting the sulfur content of diesel fuel, which went into effect in 2004. A second phase took effect in 2007 which reduced PM 2.5 emissions from heavy-duty highway engines and further reduced the highway diesel fuel sulfur content to 15 ppm. The total program is estimated to achieve a 90 percent reduction in direct PM 2.5 emissions and a 95 percent reduction in NO X emissions for these new engines using low sulfur diesel, compared to existing engines using higher sulfur diesel fuel. The reduction in fuel sulfur content also yielded an immediate reduction in particulate sulfate emissions from all diesel vehicles.

In May 2004, EPA promulgated a new rule for large nonroad diesel engines, such as those used in construction, agriculture, and mining, to be phased in between 2008 and 2014. The rule also reduces the sulfur content in nonroad diesel fuel by over 99 percent. Prior to 2006, nonroad diesel fuel averaged approximately 3,400 ppm sulfur. This rule limited nonroad diesel sulfur content to 500 ppm by 2006, with a further reduction to 15 ppm by 2010.

The Area's air quality is strongly affected by regulation of SO 2 and NO X from power plants. EPA promulgated the NO X SIP Call, CAIR and CASPR to address SO 2 and NO X emissions from EGUs and certain non-EGUs across the eastern United States. The affected EGUs in the Wheeling Area are located at the Ohio Power Mitchell Plant and the Ohio Power Kammer Plant in Marshall County which are both owned and/or operated by American Electric Power (AEP).

EPA issued the NO X SIP Call in 1998 pursuant to the CAA to require 22 states and the District of Columbia to reduce NO X emissions from large EGUs and large non-EGUs such as industrial boilers, internal combustion engines, and cement kilns. (63 FR 57356, October 27, 1998). EPA approved West Virginia's Phase I NO X SIP Call rule in 2002 and Phase II rule in 2006. Emission reductions resulting from regulations developed in response to the NO X SIP Call are permanent and enforceable.

EPA approved West Virginia's CAIR rules in 2009 (74 FR 38536, August 4, 2009)). The maintenance plan for the West Virginia portion of the Area thus lists CAIR as a control measure for the purpose of reducing SO 2 and NO X emissions from EGUs.

As previously discussed, the Court's 2008 remand of CAIR left the rule in place to “temporarily preserve the environmental values covered by CAIR” until EPA replaced it with a rule consistent with the Court's opinion, and the Court's August 2012 decision on the Transport Rule also left CAIR in effect until the legal challenges to the Transport Rule are resolved. As noted, EPA believes it is appropriate to allow states to rely on CAIR, and the existing emissions reductions achieved by CAIR, as sufficiently permanent and enforceable pending a valid replacement rule, for purposes such as redesignation.

Furthermore, as previously discussed, the air quality modeling analysis conducted for the Transport Rule demonstrates that the Wheeling Area would be able to attain the 1997 annual PM 2.5 NAAQS even in the absence of either CAIR or the Transport Rule. EPA's modeling projections show that all ambient monitors in the Area are expected to continue to maintain compliance in the 2012 and 2014 “no CAIR” base cases. Therefore, none of the ambient monitoring sites in the Wheeling Area are “receptors” that EPA projects will have future nonattainment problems or difficulty maintaining the NAAQS.

EGUs in this Area are subject to Federal consent decrees that have reduced emissions of NO X and SO 2 in the Area. There are two EGUs in Marshall County, the partial county portion of the West Virginia portion of the Area. These are the Ohio Power Kammer Plant and Ohio Power Mitchell Plant in Marshall County which are owned and/or operated by AEP. As part of a Federally enforceable consent decree with AEP, the Mitchell Plant was required, starting in January 2009, to operate selective catalytic reduction (SCR) continuously to control emissions of NO X and to operate continuously its Flue Gas Desulfurization (FGD) to reduce SO 2 emissions starting in December 2007.

Since 2008, additional controls have and will be installed on EGUs within the West Virginia portion of the Area and the State of Ohio, which will continue to contribute to the reductions in precursor pollutants for PM 2.5 . The Mitchell Plant installed and began operation of SCR to control NO X emissions on Units 1 and 2 starting in January 2009, and the Kammer Plant may be required to retire, retrofit, or repower Units 1-3 by December 31, 2018. EGUs in Belmont County, Ohio have installed controls as a result of a Federally enforceable consent decree. In 2008, two units, #4 and #5 at the R.E. Burger First Energy station installed selective non-catalytic reduction (SNCR) to reduce NO X emissions. Both units are required by 2012 to operate the SNCR continuously to reduce NO X emissions.

Because PM 2.5 concentrations in the Wheeling Area are impacted by the transport of sulfates and nitrates, the Area's air quality is strongly affected by regulation of SO 2 and NO X emissions from EGUs in states in the region that significantly contribute to the Area. EPA reviewed SO 2 and NO X emissions from EGUs in states that contribute to the Area, and the data show that SO 2 and NO X emissions have been decreasing. See EPA's Air Markets Program Database (AMPD)  3 ( http://ampd.epa.gov/ampd  ).

Based on the information summarized above, West Virginia has adequately demonstrated that the improvement in air quality is due to permanent and enforceable emissions reductions. The reductions result from Federal requirements, regulation of precursors under the NO X SIP Call and CAIR, and consent decrees affecting EGUs in the Wheeling Area, which are expected to continue into the future.

In conjunction with its request to redesignate the West Virginia portion of the Area to attainment status, West Virginia submitted a SIP revision to provide for maintenance of the 1997 annual PM 2.5 NAAQS in the Area for at least 10 years after redesignation. West Virginia is requesting that EPA approve this SIP revision as meeting the requirements of section 175A of the CAA. Once approved, the maintenance plan for the West Virginia portion of the Area will ensure that the SIP for West Virginia meets the requirements of the CAA regarding maintenance of the 1997 annual PM 2.5 NAAQS for this Area.

Section 175 of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under CAA section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Eight years after the redesignation, West Virginia must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary, to assure prompt correction of any future 1997 annual PM 2.5 violations. The Calcagni Memorandum dated September 4, 1992 provides additional guidance on the content of a maintenance plan. The Calcagni Memorandum states that a PM 2.5 maintenance plan should address the following provisions: (1) An attainment emissions inventory; (2) a maintenance demonstration showing maintenance for 10 years; (3) a commitment to maintain the existing monitoring network; (4) verification of continued attainment; and (5) a contingency plan to prevent or correct future violations of the NAAQS.

An attainment inventory is comprised of the emissions during the time period associated with the monitoring data showing attainment. WVDEP developed emissions inventories for NO X , direct PM 2.5 , and SO 2 for 2008, one of the years in the period during which the Wheeling Area monitored attainment of the 1997 annual PM 2.5 standard, as described previously. The 2008 point source inventory contained emissions for EGUs and non-EGU sources in Marshall and Ohio Counties in West Virginia. WVDEP used the 2008 annual emissions inventory submitted to EPA's National Emissions Inventory (NEI) database and EPA's AMPD database to compile their inventory. For the 2008 area source emissions, WVDEP used the 2008 NEI v1.5 data developed by EPA. For the 2008 nonroad mobile sources, WVDEP generated the emissions using EPA's NONROAD model. The 2008 onroad mobile source inventory was developed using the most current version of EPA's highway mobile source emissions model MOVES2010a. WVDEP used the Kentucky, Ohio, and West Virginia (KYOVA) Travel Demand Model, which is the most recent travel demand model provided by the KYOVA Interstate Planning Commission that covers the nonattainment counties in West Virginia. Information from the travel demand model combined with Highway Performance Monitoring Systems (HPMS) county-level data from each area were used in the emissions analysis.

Additional data needed for input into the MOVES2010a model was provided by the Ohio Department of Transportation (ODOT), Ohio EPA, West Virginia Department of Transportation (WVDOT), WVDEP, Kentucky Transportation Cabinet (KYTC), and the Kentucky Division of Air Quality (KDAQ).

On March 8, 2012, WVDEP submitted its maintenance plan for the West Virginia portion of the Area as required by section 175A of the CAA. WVDEP uses projection inventories to show that the Area will remain in attainment and developed projection inventories for an interim year of 2015 and a maintenance plan end year of 2022 to show that future emissions of NO X , SO 2 , and direct PM 2.5 will remain at or below the attainment year 2008 emissions levels throughout the West Virginia portion of the Area through the year 2022. A maintenance demonstration need not be based on modeling. See Wall v. EPA, supra; Sierra Club v. EPA, supra. See also 66 FR at 53099-53100; 68 FR at 25430-32. The projection inventories for the 2015 and 2022 point, area, and nonroad sources were based on the 2012 and 2018 Visibility Improvement State and Tribal Association of the Southeast (VISTAS)/Association of Southeastern Integrated Planning (ASIP) modeling inventory.

West Virginia developed the 2015 point source inventory by interpolation between VISTAS/ASIP 2012 and 2018 modeling inventory. The 2022 EGU inventory for PM 2.5 , NO X , and SO 2 was kept the same as the VISTAS/ASIP 2018 inventory. The 2022 non-EGU inventory was extrapolated from the 2012 and 2018 inventory. Point source emissions for 2012 and 2018 were developed for EGUs and non-EGUs. For EGUs, WVDEP used the projection inventory developed by VISTAS/ASIP. VISTAS/ASIP analysis was based on EPA's Integrated Planning Model (IPM). The VISTAS/ASIP analysis projected future year emissions for EGUs under several scenarios based on the best information available at the time of the analysis. WVDEP used the “on the way” (OTW) projections, which took into account the reductions required by CAIR, as a basis for 2012 and 2018 EGU emissions. VISTAS/ASIP used EPA's Economic Growth Analysis System (EGAS), Version 4.0 to make the projections for non-EGUs, incorporating the growth factors suggested in the reports entitled, “Development of Growth Factors for Future Year Modeling Inventories (April 30, 2004)” and “CAIR Emission Inventory Overview (July 23, 2004).” EPA has reviewed the documentation provided by WVDEP and found the methodologies acceptable.

Area source emissions for 2015 were interpolated from the VISTAS/ASIP 2012 and 2018 inventories. The 2022 emissions were extrapolated from the VISTAS/ASIP 2012 and 2018 inventories. Growth and controls for emissions were based on the methodologies applied by EPA for the CAIR analysis. Nonroad source emissions, including aircraft, locomotives, and commercial marine vessels (CMV) for 2015 were interpolated from the VISTAS/ASIP 2012 and 2018 inventories. CMV source emissions from SO 2 included in the 2022 inventory were held constant at 2018 levels because no further reduction in fuel sulfur content is expected. All other nonroad source emissions for 2022 were extrapolated from the VISTAS/ASIP 2012 and 2018 inventories. The 2015 and 2022 onroad mobile source emissions were prepared using MOVES2010a following the same procedure as the 2008 inventory as described previously.

EPA has determined that the emissions inventories discussed above as provided by WVDEP are approvable. For more information on EPA's evaluation and analysis of the emissions inventory, see Appendix B of the State submittal and the May 18, 2012 TSD, available on line at www.regulations.gov , Docket ID No. EPA-OAR-R03-2012-0368. Table 5 below shows the inventories for the 2008 attainment year, the 2015 interim year, and the 2022 maintenance plan end year for the entire Area.

Table 5 shows that between 2008 and 2015, the entire Wheeling Area is projected to reduce SO 2 emissions by 30,260 tpy, NO X emissions by 19,767 tpy, and direct PM 2.5 emissions by 2,565 tpy. Between 2008 and 2022, the Area is projected to reduce SO 2 emissions by 35,616 tpy, NO X emissions by 20,581 tpy, and direct PM 2.5 emissions by 2,529 tpy. Thus, the projected emissions inventories show that the Area will continue to maintain the 1997 annual PM 2.5 NAAQS during the 10 year maintenance period.

As noted in Section VI.4.a of this document, CAA section 175A requires a state seeking redesignation to attainment to submit a SIP revision to provide for the maintenance of the NAAQS in the area “for at least 10 years after the redesignation.” EPA has interpreted this as a showing of maintenance “for a period of 10 years following redesignation.” September 4, 1992 Calcagni Memorandum at p.9. Where the emissions inventory method of showing maintenance is used, its purpose is to show that emissions during the maintenance period will not increase over the attainment year inventory. See Calcagni Memorandum at pp.9-10.

As discussed in detail above, the State's maintenance plan submission expressly documents that the Area's emissions inventories will remain below the attainment year inventories through at least 2022. In addition, for the reasons set forth below, EPA believes that the State's submission, in conjunction with additional supporting information, further demonstrates that the Area will continue to maintain the 1997 annual PM 2.5 NAAQS at least through 2023:

• Significant emissions controls will remain in place and will continue to provide reductions that will keep the Area in attainment. As part of a Federally enforceable consent decree with AEP, the Ohio Power Mitchell Plant in Marshall County was required starting in January 2009 to operate its SCR continuously to control emissions of NO X and to operate continuously its FDG to reduce SO 2 starting in December 2007. In addition, AEP is required by the Federally enforceable consent decree to retire, retrofit, or repower additional units such as Kammer Units 1-3 by the end of December 2018.

• West Virginia has committed to maintain all of the control measures upon which West Virginia relies in its March 8, 2012 submittal and will submit any changes to EPA for approval as a SIP revision.

• Emissions inventory levels for SO 2 and NO X in 2022 are well below the attainment year inventory levels ( see Table 5), and EPA believes that it is highly improbable that sudden increases would occur that could exceed the attainment year inventory levels in 2023.

• The mobile source contribution has been determined to be insignificant and is expected to remain insignificant in 2023 with fleet turnover in upcoming years that will result in cleaner vehicles and cleaner fuels.

• Air quality concentrations which are well below the standard, coupled with the emissions inventory projections through 2022, demonstrate that it would be very unlikely for a violation to occur in 2023. The 2009-2011 design value of 13.0 μg/m 3 provides a sufficient margin in the event of any emissions increase, and the design value reflects a continued downward trend in monitored data in the Area for the last several years.

Thus, even if EPA finalizes its proposed approval of the redesignation request and maintenance plan in 2013, EPA's approval is based on a showing, in accordance with CAA section 175A, that West Virginia's maintenance plan provides for maintenance for at least 10 years after redesignation and clearly into 2023.

EPA has determined that West Virginia's maintenance plan includes a commitment to continue to operate its EPA-approved monitoring network, as necessary to demonstrate ongoing compliance with the NAAQS. West Virginia currently operates two PM 2.5 monitors in the Wheeling Area. One is located in Marshall County, and the other one is in Ohio County. In its March 8, 2012 submittal, West Virginia stated that it will consult with EPA prior to making any necessary changes to the network and will continue to quality assure the monitoring data in accordance with the requirements of 40 CFR part 58.

To provide for tracking of the emission levels in the Area, WVDEP requires major point sources to submit air emissions information annually and prepares a new periodic inventory for all PM 2.5 precursors every three years in accordance with EPA's Air Emissions Reporting Requirements (AERR). EPA has determined that WVDEP will continue to compare emissions information to the attainment year inventory to assure continued attainment with the 1997 annual PM 2.5 NAAQS and that WVDEP will use this information to assess emissions trends, as necessary.

The contingency plan provisions for maintenance plans are designed to promptly correct a violation of the NAAQS that occurs after redesignation. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that a state will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the time frame by which the state would adopt and implement the measure(s).

The ability of the West Virginia portion of the Area to stay in compliance with the 1997 annual PM 2.5 NAAQS after redesignation depends upon NO X and SO 2 emissions in the Wheeling Area remaining at or below 2008 levels. West Virginia's maintenance plan projects NO X and SO 2 emissions to decrease and stay below 2008 levels through at least the year 2022. West Virginia's maintenance plan outlines the procedures for the adoption and implementation of contingency measures to further reduce emissions should a violation occur.

West Virginia's contingency measures include a Warning Level Response and an Action Level Response. An initial Warning Level Response is triggered when the average weighted annual mean for a single calendar year exceeds 15.5 μg/m 3 within the maintenance area. In that case, a study will be conducted to determine if the emissions trends show increases; if action is necessary to reverse emissions increases, West Virginia will follow the same procedures for control selection and implementation as for an Action Level Response, and implementation of necessary controls will take place as expeditiously as possible, but no later than 12 months from the end of the most recent calendar year.

The Action Level Response will be prompted by any one of the following: A Warning Level Response study that shows emissions increases; a weighted annual mean over a two-year average that exceeds the standard; or a violation of the standard in the maintenance area. If an Action Level Response is triggered, West Virginia will adopt and implement appropriate control measures within 18 months from the end of the year in which monitored air quality triggering a response occurs. West Virginia will also consider whether additional regulations that are not a part of the maintenance plan can be implemented in a timely manner to respond to the trigger.

West Virginia's candidate contingency measures include the following: (1) Diesel reduction emission strategies, (2) alternative fuels and diesel retrofit programs for fleet vehicle operations, (3) PM 2.5 , SO 2 , and NO X emissions offsets for new and modified major sources, (4) concrete manufacturing controls, and (5) additional NO X reductions. Additionally, West Virginia has identified a list of sources that could potentially be controlled. These include: Industrial, commercial and institutional (ICI) Boilers for SO 2 and NO X controls, EGUs, process heaters, internal combustion engines, combustion turbines, other sources greater than 100 tpy, fleet vehicles, concrete manufacturers, and aggregate processing plants. EPA finds that the West Virginia maintenance plan for the Wheeling Area includes appropriate contingency measures as necessary to ensure West Virginia will promptly correct any violation of the NAAQS that occurs after redesignation. For all of the reasons discussed above, EPA is proposing to approve West Virginia's 1997 annual PM 2.5 maintenance plan for the West Virginia portion of the Area as meeting the requirements of section 175A of the CAA.

Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the state's air quality plan that addresses pollution from mobile sources. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of a NAAQS or an interim milestone. This is typically determined by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets (MVEBs) contained in a SIP. If a transportation plan does not “conform,” most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and ensuring conformity of such transportation activities to a SIP.

When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA must affirmatively find the MVEBs contained therein “adequate” for use in determining transportation conformity. The process for determining adequacy is set forth in the guidance, “ Transportation Conformity Rule Amendments for the New PM 2.5 and PM 2.5 NAAQS and Miscellaneous Revisions of Existing Areas; Transportation Conformity Rule Amendments; Response to Court Decision and Additional Rule Changes.” 69 FR 40004 (July 1, 2004). After EPA affirmatively finds the submitted MVEBs are adequate for transportation conformity purposes, in accordance with the guidance, the MVEBs can be used by state and Federal agencies in determining whether proposed transportation projects “conform” to the SIP as required by section 176(c) of the CAA.

For budgets to be approvable, they must meet, at a minimum, EPA's adequacy criteria in 40 CFR 93.118(e)(4). However, the transportation conformity rule at 40 CFR 93.109(f) allows areas to forego establishment of MVEBs where it is demonstrated that the regional motor vehicle emissions for a particular pollutant or precursor are an insignificant contributor to the air quality problem in an area. EPA's rationale for providing for insignificance determinations may be found in the July 1, 2004 revision to the Transportation Conformity Rule. The general criteria for insignificance determinations, per 40 CFR 93.109(f), are based on a number of factors, including the percentage of motor vehicle emissions in the context of the total SIP inventory; the current state of air quality as determined by monitoring data for the relevant NAAQS; the absence of SIP motor vehicle control measures; and the historical trends and future projections of the growth of motor vehicle emissions in the area.

In West Virginia's March 8, 2012 submittal, the State provided information that projects that onroad mobile source NO X constitutes less than 12 and a half percent of the Area's total NO X emissions in 2015 and 2022 due to continuing fleet turnover and that onroad mobile source PM 2.5 emissions constitute less than two and a half percent of the Area's total PM 2.5 emissions. Both projections took into consideration future vehicle miles traveled (VMT) growth. In addition, neither EPA nor the State has made any findings that volatile organic compounds (VOCs), SO 2 , or ammonia (NH 3 ) are a significant contributor to PM 2.5 mobile emissions. Therefore, the March 8, 2012 submittal meets the criteria in the relevant portions of 40 CFR 93.102 and 93.118 for an insignificance finding, and EPA agrees with the determination of insignificance for SO 2 , NO X and PM 2.5 for the West Virginia portion of the Area. As previously discussed, EPA already initiated a comment period on November 5, 2012 on the proposed insignificance determination for the West Virginia portion of the Area on the OTAQ Web site to allow for a 30-day review of this proposed insignificance determination in conjunction with this proposed rulemaking. EPA is proposing to find that West Virginia's insignificance determination for transportation conformity is adequate. For more information on EPA's insignificance findings, see the TSD dated June 5, 2012, available on line at www.regulations.gov, Docket ID No. EPA-OAR-R03-2012-0368.

EPA is proposing to approve the redesignation of the West Virginia portion of the Area from nonattainment to attainment for the 1997 annual PM 2.5 NAAQS. EPA has evaluated West Virginia's redesignation request and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the monitoring data demonstrate that the Wheeling Area has attained the 1997 annual PM 2.5 NAAQS and will continue to attain the standard. Final approval of this redesignation request would change the designation of the West Virginia portion of the Area from nonattainment to attainment for the 1997 p.m. 2.5 annual NAAQS. EPA is also proposing to approve the associated maintenance plan for the West Virginia portion of the Area submitted on March 8, 2012, as a revision to the West Virginia SIP because it meets the requirements of section 175A of the CAA as described previously in this notice. EPA is also proposing to approve the insignificance determination for onroad motor vehicle contribution of PM 2.5 , NO X and SO 2 submitted by the West Virginia portion of the Area in conjunction with West Virginia's redesignation request. As noted previously, EPA had already initiated a comment period on the proposed insignificance determination for the West Virginia portion of the Area in the OTAQ Web site ( http://www.epa.gov/otaq/stateresources/transconf/currsips.htm ) to allow for a 30-day review of this proposed determination in conjunction with this proposed rulemaking. The 30-day comment period started on November 5, 2012 and will end on December 5, 2012. In addition, as part of the maintenance plan, EPA is proposing to approve the 2005 base year emissions inventory as meeting the requirement in section 172(c)(3) of the CAA. EPA is soliciting public comments on the issues discussed in this document. 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 rule proposing to approve West Virginia's redesignation request, maintenance plan, 2005 base year emissions inventory, and transportation conformity insignificance determination for the Wheeling Area for the 1997 annual PM 2.5 NAAQS 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 is a summary of the Commission's Further Inquiry Into Issues Related to Mobility Fund Phase II ( Mobility Fund Phase II Public Notice ) released on November 27, 2012. The complete text of the Mobility Fund Phase II Public Notice, as well as related Commission documents, is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW., Room CY-A257, Washington, DC 20554. The Mobility Fund Phase II Public Notice and related Commission documents also may be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc. (BCPI), 445 12th Street SW., Room CY-B402, Washington, DC 20554, telephone 202-488-5300, fax 202-488-5563, or you may contact BCPI at its Web site: http://www.BCPIWEB.com. When ordering documents from BCPI, please provide the appropriate FCC document number, for example, DA 12-1853.

1. The Bureaus seek further comment on a limited number of specific issues relating to the implementation of Phase II of the Mobility Fund. As established in the USF/ICC Transformation Order and FNPRM, 76 FC 78383, December 16, 2011, in Mobility Fund Phase II the Commission will award $500 million annually to ensure the availability of mobile broadband and high quality voice services in certain areas. Building on the comments previously filed in response to the USF/ICC Transformation Order and FNPRM and the Bureaus' experience in implementing a reverse auction to award one-time Phase I support, the Bureaus seek to develop a more comprehensive record on certain issues related to the award of ongoing support for advanced mobile services. In considering the issues related to Mobility Fund Phase II, the Bureaus ask commenters keep in mind that Phase II support is not one-time support, but is ongoing support aimed at expanding and sustaining mobile services.

2. In the USF/ICC Transformation Order and FNPRM, the Commission comprehensively reformed and modernized the universal service high-cost program. Among other things, for the first time, the Commission explicitly recognized the important benefits of and demand for mobile services through the creation of a two-phase Mobility Fund within the high-cost program.

3. For Phase I, the Commission allocated $300 million in one-time support to expand the availability of advanced mobile services, plus an additional $50 million dedicated to Tribal lands. For Phase II of the Mobility Fund, the Commission dedicated $500 million annually (including up to $100 million dedicated to Tribal lands) and proposed to make awards through a reverse auction to support providers of voice and mobile broadband service in areas where such services cannot be sustained or extended without ongoing support. The Commission further proposed to award support on the same terms and conditions as it adopted for Phase I, but sought comment on whether any modifications were needed to reflect the ongoing nature of support in Phase II.

4. Under the Commission's proposal, a Mobility Fund Phase II reverse auction would assign support to maximize coverage of unserved road miles (or other units) within the budget. To implement an auction, the Commission proposed a basic framework of auction rules that would give the Bureaus flexibility under delegated authority to establish specific procedures for a Mobility Fund Phase II auction.

5. In the USF/ICC Transformation Order and FNPRM, the Commission sought comment on various issues associated with identifying the geographic areas that would be eligible for Phase II support. In light of experience with Mobility Fund Phase I and Auction 901, the Bureaus seek further comment on certain of these issues.

6. Identifying Areas Eligible for Support. To target Phase II support to only those areas where it is needed, the Commission proposed to use Mosaik Solutions (Mosaik) data to exclude all census blocks where an unsubsidized carrier is providing 3G or better service. For purposes of determining areas with unsubsidized service, the Commission proposed in the USF/ICC Transformation Order and FNPRM that areas receiving one-time Mobility Fund Phase I support would still be eligible to receive Mobility Fund Phase II support.

7. Some commenters express concern about the accuracy of the Mosaik database. The Bureaus now seek further comment based on the use of Mosaik data as a factor in determining eligible areas for Phase I support. To the extent that parties assert that Mosaik data inaccurately reflects the availability of service, the Bureaus seek comment on whether there are any other data sources that the Commission could use to better identify eligible areas. The Bureaus request that commenters provide specific information on what makes these alternate sources superior and how they could be used instead of, or in combination with, the Mosaik database. The Bureaus also seek comment on whether there are other factors the Commission should consider in addition to the availability of unsubsidized service. For instance, how should providers' planned expansion of unsubsidized service affect the identification of areas eligible for support? For example, in Mobility Fund Phase I, the Commission excluded areas from auction where a provider has made a regulatory commitment to provide 3G or better wireless service, or has received a funding commitment from a federal executive department or agency in response to the carrier's commitment to provide 3G or better service. In addition, the Commission required applicants for Mobility Fund Phase I support to certify that they were not seeking support for any areas in which they had made a public commitment to deploy 3G or better wireless service by December 31, 2012.

8. Use of the Centroid Method. In the USF/ICC Transformation Order and FNPRM, the Commission proposed to determine the eligibility of a particular census block for Phase II support based on the absence of unsubsidized 3G or better service at the centroid, which refers to the internal point latitude/longitude of a census block polygon. Some commenters expressed concern that the centroid method is an ineffective measure to determine whether large areas are unserved. The Bureaus ask commenters for feedback on the centroid method in light of their experience in Phase I. Should the Commission consider alternatives, such as the proportional method? For instance, should it consider unserved any census block if the data indicates more than 50 percent of the area is unserved?

9. In the USF/ICC Transformation Order and FNPRM, the Commission sought comment on whether to target Phase II support to particular areas, such as those that lack any mobile service or ones that lack current generation (3G) service. Some commenters suggest prioritizing support to rural carriers or carriers with 2G or less capacity; another opposed prioritization of funding to areas with no service at all. Others suggested that the Commission should take into account additional factors, such as poverty level or whether an area is served by the National Highway System, instead of, or in addition to, coverage level. Despite this discussion in the record, the Commission received little input on implementation and specific measures for prioritizing eligible areas.

10. The Bureaus seek additional comment on whether and how the Commission might implement priorities for support among eligible areas. The Bureaus ask commenters to address whether the Commission should prioritize ongoing support to areas that lack coverage, a designated level of coverage, or whether there are other measurable factors that should be taken into account. The Bureaus observe that, in the USF/ICC Transformation Order and FNPRM, the Commission suggested that targeted areas could be prioritized by making a bidding credit available. The Bureaus seek additional specific comment on how the Commission might set an appropriate level(s) of bidding credit(s) to prioritize areas based on the existing level of coverage in a particular area. The Bureaus seek comment on whether and how the Commission might assure that support goes to areas that would lose service absent the receipt of ongoing support. In this regard, commenters are invited to discuss how, if at all, the availability of Remote Areas Fund support for the highest cost areas should affect the areas targeted for Mobility Fund Phase II.

11. In the USF/ICC Transformation Order and FNPRM, under its auction proposal, the Commission proposed to establish bidding units in each eligible census block for purposes of comparing bids and assessing performance, and to base the number of bidding units on the number of road miles in each eligible area. Road miles directly reflect the Mobility Fund's goals of supporting mobile services, and indirectly reflect many other important factors, such as business locations, recreation areas and work sites, since roads are used to access those areas. Several commenters recommend that the Commission consider other alternatives, including population, terrain, workplaces, annual revenues, and straight-line miles or traditional river miles, instead of, or in combination with, road miles. Some commenters also suggest that the Commission revisit the issue of bidding and coverage units after the Phase I auction before deciding on whether to use road miles as the sole bidding unit.

12. Given the results of the Mobility Fund Phase I auction, the Bureaus seek further comment on the use of road miles to determine bidding units and corresponding coverage requirements. The Bureaus note that the Commission concluded that, for Phase I of the Tribal Mobility Funds, it would base bidding units on population rather than road miles. The Bureaus also invite additional comment on how specifically the Commission might measure or factor various suggested alternatives, such as terrain or topography, into its determination of bidding units and ask for input on the benefits or drawbacks of any particular approach.

13. In the USF/ICC Transformation Order and FNPRM, the Commission proposed that recipients of Mobility Fund Phase II support would be required to provide mobile voice and data services that meet or exceed a minimum bandwidth or data rate of 768 kbps downstream and 200 kbps upstream, consistent with the capabilities offered by representative 4G technologies. The Commission proposed that these data rates should be achievable in both fixed and mobile conditions throughout the cell area, including at the cell edge, at a high probability, and with substantial sector loading. The Commission further noted that the proposed measurement conditions may enable users to receive much better service when accessing the network from a fixed location or close to a base station. The Commission sought comment on whether, and in what ways, these metrics should be modified during the proposed 10-year term of support to reflect anticipated advances in technology. The Commission also proposed that the performance characteristics expected of Mobility Fund Phase II recipients be required to evolve over time, to keep pace with mobile broadband service in urban areas. Commenters generally recommend periodic review and modification of these requirements through a rulemaking proceeding. The Bureaus now seek to further develop the record on how often, and through what process, the Commission should modify the performance metrics applicable to Phase II support recipients. Commenters should address the threshold question of whether an evolving standard is appropriate given the proposed term of support and anticipated advances in technology. For example, should the Commission require that broadband networks built with support be capable of meeting increasing consumer demand for capacity and over a specified time period? If so, should the Commission mandate any specific network attributes?

14. In the USF/ICC Transformation Order and FNPRM, the Commission proposed a fixed term of support of 10 years and sought comment on a shorter term. In seeking comment on an optimal term for ongoing support, the Commission noted that it sought to balance the need to provide certainty to carriers to attract private investment and deploy services, while taking into account changing circumstances. Commenters generally agreed that a 10-year term was appropriate, noting that the term reflects the economic realities of network building, and need for financial assurance to upgrade or extend networks. The Bureaus seek additional comment on establishing an appropriate term of support, in light of the timeframes for deployment and private investment and the pace of new technology and marketplace developments. Further, the Bureaus request comment on the tradeoffs between using a 10-year term versus one or more shorter terms and which approach would provide the best structure for dealing with dynamic changes in the industry.

15. In the USF/ICC Transformation Order and FNPRM, the Commission proposed to require that parties seeking Mobility Fund Phase II support satisfy the same eligibility requirements that were adopted with respect to Phase I. Commenters generally support the Commission's proposal, though some advocate size-based and other restrictions. The Bureaus seek further comment on certain of these issues.

16. Interplay with other universal service mechanisms. The Bureaus seek comment on the inter-relationship between eligibility for Mobility Fund Phase II support and other universal service support mechanisms. The Commission noted that a party may be eligible to participate in both Connect America Phase II and Mobility Fund Phase II, but noted that carriers would not be allowed to receive redundant support for the same service in the same areas. The Bureaus seek additional comment on how to implement this principle so as to provide advance information to potential participants in a Mobility Fund Phase II auction. In particular, the Bureaus ask commenters to provide input on how the deployment of mobile service under Mobility Fund Phase II could be supplemented or modified for purposes of meeting the public interest obligations of Connect America Phase II. The Bureaus also seek comment on any interrelationship between eligibility for Mobility Fund Phase II support and the Remote Areas Fund that is to provide support in the highest cost areas.

17. Small business participation. In the USF/ICC Transformation Order and FNPRM, the Commission sought comment on whether small businesses should be eligible for a bidding preference in a Mobility Fund Phase II auction. The Commission noted that in a spectrum auction context, the Commission typically awards small business bidding credits ranging from 15 to 35 percent, depending on varying small business size standards. Commenters were asked to address the effectiveness of a preference to help smaller carriers compete at auction and whether the Commission should adopt a preference even if the bidding credit would result in less coverage than would occur without the bidding credit. The Commission also sought comment on how to define small businesses and what size bidding credit may be appropriate. Specifically, the Commission sought comment on whether a small business should be defined as an entity with average gross revenues not exceeding $40 million for the preceding three years, or whether it should use a larger size definition, such as average gross revenues not exceeding $125 million for the preceding three years. Several commenters supported the use of bidding credits to increase the competitiveness of small and rural carriers. The Bureaus now seek to develop the record in light of commenters' experience in Phase I, where bidding preferences were not available, except for Tribally-owned or controlled providers. Would the entities that were successful bidders in Auction 901 qualify as small businesses under the definitions the Commission asked about? To what extent do commenters continue to believe that a bidding credit is important to smaller carriers' ability to effectively compete at auction for support and how does that weigh against other Commission objectives?

18. In the USF/ICC Transformation Order and FNPRM, the Commission proposed to generally apply to Mobility Fund Phase II the same rules for accountability and oversight that will apply to all recipients of Connect America Fund (CAF) support. Among other things, the CAF accountability and oversight proposals are intended to create a process for the reasonable and prudent disbursement of universal service support. In Mobility Fund Phase I, the Commission authorized disbursement of funds in three equal installments, linked to completion of certain milestones. The Bureaus seek comment on how to structure ongoing support payments over the term of support in a way that achieves the Commission's goals of providing sufficient and predictable support throughout the term of the Mobility Fund Phase II, while ensuring compliance with the Anti-Deficiency Act. Should support be tied to completion of certain milestones, disbursed on a regular recurring basis, or some combination of both?

19. In the USF/ICC Transformation Order and FNPRM, the Commission proposed and sought comment on a number of provisions targeted at the specific connectivity challenges on Tribal lands. Among other things, the Commission sought comment on a possible mechanism that would allocate a specified number of “priority units” to Tribal governments to afford Tribes an opportunity to identify their own priorities. As discussed in the USF/ICC Transformation Order and FNPRM, priority units for each Tribe could be based upon a percentage, in the range of 20 to 30 percent, of the total population in unserved blocks located within Tribal boundaries. Tribal governments would have the flexibility to allocate these units in whatever manner they choose. Tribal governments could elect to allocate all of their priority units to one geographic area that is particularly important to them, or to divide the total number of priority units among multiple geographic units according to their relative priority. The Commission requested comment on whether this approach should apply to both the general and Tribal Mobility Fund Phase II, and how such priority units should be awarded in Alaska and Hawaii given the unique conditions in those states. The Commission also sought comment on how this mechanism, if adopted, would interact with the proposed 25 percent Tribal bidding credit.

20. Few parties offered comments addressing the priority units mechanism for Tribal governments, and those that did generally focused on issues unique to Alaska. In light of the relatively light record the Commission received on this issue and the results of Mobility Fund Phase I, the Bureaus seek additional comment on the Tribal priority units proposal. In particular, the Bureaus seek further comment on whether this approach should apply to Tribal governments participating in both the general and Tribal Mobility Fund Phase II, and, if so, how such priority units should be awarded in Alaska and Hawaii. Would the 25 percent Tribal bidding credit and the Tribal engagement obligation proposed in the USF/ICC Transformation Order and FNPRM be sufficient to ensure that Tribal priorities are met with respect to ongoing support under Phase II?

21. The USF/ICC Transformation Order and FNPRM included an Initial Regulatory Flexibility Analysis (IRFA) pursuant to 5 U.S.C. 603, exploring the potential impact on small entities of the Commission's proposal. The Bureaus invite parties to file comments on the IRFA in light of this additional notice.

22. This matter shall be treated as a permit-but-disclose proceeding in accordance with the ex parte rules. Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must contain summaries of the substance of the presentations and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented generally is required. Other requirements pertaining to oral and written presentations are set forth in 47 CFR 1.1206(b).

FRA is issuing this proposed rule to provide additional regulatory guidance and flexibility for the implementation of Positive Train Control (PTC) systems by railroads as mandated by the Railroad Safety Improvement Act of 2008 § 104, Public Law 110-432, 122 Stat. 4854, (Oct. 16, 2008) (codified at 49 U.S.C. 20157) (hereinafter “RSIA”).

For years, FRA has supported the nationwide proliferation and implementation of positive train control (PTC) systems, forecasting substantial benefits of advanced train control technology in supporting a variety of business and safety purposes. As such, in 2005, FRA promulgated regulations providing for the voluntary implementation of processor-based train control systems. See 70 FR 11,052 (Mar. 7, 2005) (codified at 49 CFR part 236, subpart H). However, implementation was not mandated by FRA due to the fact that the costs for the systems far outweighed the possible benefits at that time.

Partially as a consequence of certain very severe railroad accidents, coupled with a series of other less serious accidents, Congress passed the Rail Safety Improvement Act of 2008 § 104, Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 9 U.S.C. 20157) (hereinafter “RSIA”) mandating the implementation of PTC systems by December 31, 2015, on lines meeting certain thresholds. RSIA requires PTC system implementation on all Class I railroad lines that carry poison- or toxic-by-inhalation hazardous (PIH or TIH) materials and 5 million gross tons or more of annual traffic, and on any railroad's main line tracks over which intercity or commuter rail passenger train service is regularly provided. In addition, RSIA provided FRA with the authority to require PTC system implementation on any other line.

In accordance with the statutory mandate, FRA issued a final rule on January 15, 2010, and clarifying amendments on September 27, 2010. The final rule included various exceptions from mandatory PTC system implementation. For instance, the de minimis exception was developed to provide railroads an opportunity to avoid PTC system implementation where the burdens of the regulation would yield a gain of trivial or no value. In accordance with its statutory authority, the final rule also included a limited operations exception for passenger operations or segments over which limited or no freight railroad operations occur.

In a petition for rulemaking dated April 22, 2011 (“Petition”), the Association of American Railroads (AAR) requested that FRA initiate a rulemaking to propose expanding the de minimis exception and otherwise amending the rules concerning the limited operations exception, en route failures of trains operating within PTC systems, and the discontinuance of signal systems once PTC systems were installed. AAR also requested that FRA develop a new exception that would allow unequipped trains associated with certain yard operations to operate within PTC systems.

In response to the Petition, FRA proposes here to make several changes to part 236, subpart I. With respect to the specific de minimis exception at 49 CFR 236.1005(b)(4)(iii), FRA is proposing to modify the specific exception to raise the number of freight cars containing PIH materials from 100 cars to 200 cars and revise the grade limitation to be more consistent with the definition of “heavy grade” present in part 232. FRA is also proposing to remove the traffic limitation of 15 million gross tons from the general de minimis exception in paragraph (b)(4)(iii)(C), but not the categorical exception in paragraph (b)(4)(iii)(B). In response to AAR's suggestions for a yard move exception, FRA proposes to add a yard movement de minimis exception that would authorize movements by unequipped locomotives over PTC-equipped main line track segments for the purpose of switching service or transfer train movements. FRA does not propose to create an additional limited operations exemption, nor does FRA propose to remove oversight from signal system discontinuances or modify the default rules for resolving en route failures of a PTC system. However, FRA does propose to clarify that PTC equipment of non-controlling locomotives may be used to restore full PTC functionality to the consist. Finally, FRA proposes a number of technical amendments to the signal and grade crossing regulations of parts 234, 235, and 236.

For the first 20 years of the proposed rule, the estimated quantified benefits to society, due to the proposed regulatory changes, total approximately $156 million discounted at 7 percent and $211 million discounted at 3 percent. The largest components of the benefits come from reduced costs of PTC system wayside components because of proposed extensions of the de minimis risk exception under 49 CFR § 236.1005(b)(4)(iii)(B), and reduced costs of onboard PTC systems on locomotives operating in yard areas. A smaller benefit, independent of the other two benefits, comes from changes to the application process for a discontinuation or material modification of a signal system under 49 CFR part 235 where the application would have been filed as part of a PTC system installation. The following table presents the quantified benefits:

For the same 20-year period, the estimated quantified cost totals $360 thousand discounted at 7 percent and $531 thousand discounted at 3 percent. The costs associated with the proposed regulatory relief result from a slight increase in accident avoidance risk. FRA was able to estimate the monetized costs affected by changes in the general de minimis provisions, but was not able to estimate the costs of changes to the provision affecting locomotives in yard areas. The following table presents the total quantified costs of the proposed rule:

FRA has also performed a sensitivity analysis for a high case (1,900 miles, 800 locomotives), base case (1,000 miles, 500 locomotives), and low case (100 miles, 200 locomotives).

The net benefit amounts for each case, subtracting the costs from the benefits, provide the following results:

The analysis indicates that the savings of the proposed action far outweigh the cost.

Congress passed RSIA into law on October 16, 2008, mandating PTC system implementation by December 31, 2015. To effectuate this goal, RSIA required the railroads to submit for FRA approval a PTC Implementation Plan (PTCIP) within 18 months ( i.e., by April 16, 2010).

On July 27, 2009, FRA published a notice of proposed rulemaking (NPRM) regarding the mandatory implementation and operation of PTC systems in accordance with RSIA. During the comment period for that proceeding, CSX Transportation, Inc. (CSX) suggested that FRA create a de minimis exception to the requirement that lines carrying PIH materials traffic (but not applicable passenger traffic) be equipped with PTC systems.

The final rule, published on January 15, 2010, included a de minimis exception, since FRA believed that it contained significant merit and that it fell within the scope of the issues set forth in the proposed rule. However, since none of the parties had an opportunity to comment on this specific exception as provided in the final rule, FRA sought further comments on the extent of the de minimis exception. The further comments responsive to this issue were largely favorable, although AAR sought some further modification and clarification. In publishing its second PTC final rule on September 27, 2010, FRA decided to not further amend the de minimis exception based on the comments submitted.

In its Petition dated April 22, 2011, AAR requested that FRA initiate a rulemaking to propose expanding the de minimis exception and otherwise amending the rules concerning the limited operations exception, en route failures of trains operating with PTC systems, and the discontinuance of signal systems once PTC systems were installed. AAR also requested that FRA develop a new exception for allowing unequipped trains to operate on PTC lines during certain yard operations.

On October 21, 2011, FRA held a meeting in Washington, DC with the PTC Working Group (PTC WG) to the Railroad Safety Advisory Committee (RSAC) to seek input and guidance concerning the issues raised in AAR's Petition and other technical amendments reflected herein. FRA facilitated and received valuable group discussion relating to each of the proposed amendments. The following analysis intends to present and address the principles raised through that process, and FRA's resultant proposed rule amendments. While not specifically addressed herein, FRA is also considering a reorganization of the rule so that exceptions to PTC system implementation are no longer interspersed throughout, but are rather commingled together in their own section or sections.

Unless otherwise noted, all section references below refer to sections in title 49 of the Code of Federal Regulations (CFR). FRA seeks comments on all proposals made in this NPRM.

Paragraph (b) of § 234.207 currently states: “Until repair of an essential component is completed, a railroad shall take appropriate action under § 234.105, Activation failure, § 234.106, Partial activation, or § 234.107, False activation, of this part.” During training and enforcement actions, FRA has found the regulated entities to have misconceptions and misunderstandings regarding the response required under § 234.207. FRA believes that various regulated entities have misread paragraph (b) to indicate that the necessary response to any essential component of a highway-rail grade crossing warning system failing to perform its intended function is only applicable where the result of such failure is one of the three types of warning system malfunctions listed.

Accordingly, FRA is proposing language to clarify that defective conditions not resulting in a highway-rail grade crossing active warning system malfunction (i.e., an activation failure, partial activation, or false activation) need also be corrected without undue delay when the conditions and circumstances of the defective component negatively affects the system's proper functioning. The proposed language intends to make clear that the regulated entity must respond in accordance with this section to any “essential component” failing to perform its intended function. The PTC WG did not express any specific concerns with this proposal.

Section 234.213 currently indicates that each circuit that affects the proper functioning of a highway-rail grade crossing warning system shall be kept free of any ground or combination of grounds that will permit a current flow of 75 percent or more of the release value of any relay or electromagnetic device in the circuit.

With the migration of many warning systems, subsystems, and components from relay-based to microprocessor-based technologies, FRA believes that a more comprehensive indicator of prohibited current flow grounds is required. While the current threshold of 75 percent of the release value works well for relays and electromagnetic devices, it is apparent that the threshold needs to be refined to reflect the smaller current values associated with microprocessor-based technology. Therefore, FRA proposes to prohibit any ground or combination of grounds having a current flow of any amount which could adversely affect the proper safety-critical functioning of the warning system in order to better reflect the reality of microprocessor-based technology. There were no objections in the PTC WG to this proposal.

FRA proposes amending § 235.7, which currently allows specified changes within existing signal or train control systems to be made without the necessity of filing an application with FRA's Associate Administrator for Safety. The amendment would provide each railroad a simplified process to obtain approval for modifications of existing signal systems in association with PTC system implementation.

Under § 235.7, a railroad may avoid filing an application for a broad variety of modifications to a signal system, so long as the resultant arrangement is in compliance with part 236. FRA recognizes that, during the process of installing the wayside PTC equipment, the railroads may have the resources and time available to implement needed or desired wayside signal system upgrades. Such modifications generally require FRA approval in accordance with § 235.5 and compliance with part 236. Given that the outcome of such modifications must be in compliance with part 236, FRA proposes to create an expedited approval process for modifications of the signal system by the installation, relocation, or removal of signals, interlocked switches, derails, movable-point frogs, or electronic locks in an existing system where the modification is directly associated with the implementation of PTC systems. Instead of filing an application for approval to FRA's Associate Administrator for Safety, a railroad would be permitted to instead submit its request to the FRA regional office that has jurisdiction over the affected territory, with a copy provided to representatives of signal employees, similar to the information provided under the provisions for pole line circuit elimination, § 235.7(c)(24)(vi). If the Regional Administrator for the appropriate regional office denies approval of the requested modification, the request would then be forwarded to the FRA Railroad Safety Board as an application for signal system modification. However, express approval from the Regional Administrator is necessary before the modifications may begin. The PTC WG expressed no concerns to this proposal.

FRA proposes removing paragraph (i), Preemptive effect. FRA believes that this section is unnecessary because 49 U.S.C. 20106 sufficiently addresses the preemptive effect of FRA's regulations. Providing a separate Federal regulatory provision concerning the regulation's preemptive effect is duplicative and unnecessary.

Mirroring § 234.213, § 236.2 currently provides that each circuit that affects the safety of train operations shall be kept free of any ground, or combination of grounds, that will permit a current flow of 75 percent or more of the release value of any relay or electromagnetic device in the circuit. For the same reasons provided in the discussion of § 234.213 above, FRA proposes to revise § 236.2 to prohibit any ground or combination of grounds having a current flow of any amount which could adversely affect the proper functioning of any safety-critical microprocessor-based equipment relied on for the proper functioning of a signal or train control system in order to better reflect the reality of microprocessor-based technology. There were no objections in the PTC WG to this amendment.

Section 236.15 presently requires that automatic block, traffic control, train stop, train control, and cab signal territory be designated in the timetable instructions. FRA believes that, since PTC technology is a form of train control, its designation is already required under this section. However, in the interest of providing more clarity, FRA proposes modifying § 236.15 to explicitly require the designation of PTC territory equally to other types of signal and train control systems in a railroad's timetable instructions. This addition would ensure that the identified specific types of signal and train control systems in operation on a railroad would be designated in its timetable. There were no objections to this proposal from the PTC WG.

Section 236.567, which applies to territories where “an automatic train stop, train control, or cab signal device fails and/or is cut out en route,” presently requires trains to proceed in a specified restrictive manner until the next available point of communication where a report must be made to a designated officer, and an absolute block can be and is established in advance of the train on which the device is inoperative. Upon an absolute block being established, a train is currently permitted to proceed at a speed not exceeding 79 miles per hour. The premise of this provision was the similarity between a manual block system and a train operating with an absolute block in advance of the train; § 236.0 previously allowed for train speeds up to 79 miles per hour within a manual block system. However, on January 17, 2012, manual block systems were no longer approved as a method of operation for freight trains operating at greater than 49 miles per hour or passenger trains operating at greater than 59 miles per hour under § 236.0(c)(2). See 75 FR 2598 at 2607. This change resulted in an inconsistency between § 236.0 and § 236.567, which was not contemporaneously revised. To rectify this inconsistency, FRA proposes to amend § 236.567 to properly reflect the amendment previously made to § 236.0 regarding allowable train speeds related to the use of an absolute block in advance of the train as a method of operation, by reducing the maximum allowable speed from 79 miles per hour to 59 miles per hour for passenger trains and 49 miles per hour for freight trains, as is the case for trains operating without a block signal system installed and operated in compliance with part 236. Where a block signal system is operational, the maximum allowable speed remains at 79 mph. The PTC WG had no objections to this change.

Because the harmonizing changes made the existing paragraph structure too complicated, FRA has reorganized the section with discrete paragraphs for each of the three operating phases: prior to the report to a designated officer, after the report but prior to the establishment of an absolute block in advance of the train, and after the establishment of the absolute block. This reorganization does not change the meaning of § 236.567, except as discussed above.

Section 236.1005 specifies PTC system functionality and implementation requirements, and provides for certain exclusions and the temporary rerouting of unequipped trains on PTC equipped lines. The allowable exclusions of § 236.1005(b)(4)(iii) address lines with de minimis PIH materials risk based upon specified criteria that can be expected to result in a risk of release of PIH materials being negligible on the subject track segment. The current categorical criteria under paragraph (b)(4)(iii)(B) are:

• A minimal amount of PIH materials cars transported (less than 100 cars per year, either loads or residue);

• A train speed limitation of either Class 1 or 2 track as described in part 213;

• An annual 15 million gross tonnage traffic limit;

• A ruling grade of less than 1 percent; and

• A spacing requirement where any train transporting a car containing PIH materials (including a residue car) shall be operated under conditions of temporal separation from other trains.

In its Petition, AAR made certain proposals to modify these criteria, which are further discussed below. While FRA remains open to such modifications, any de minimis exception must apply in a way where Congress' intent is met. In other words, such exceptions must only cover situations where “the burdens of regulation yield a gain of trivial or no value” and should apply not “to depart from the statute, but rather [as] a tool to be used in implementing the legislative design.” Environmental Defense Fund, Inc. v. EPA, 82 F.3d 451, 466 (D.C. Cir. 1996) (inner quotations omitted); Alabama Power Co. v. Costle, 636 F.2d 323, 360-61 (D.C. Cir. 1979).

FRA continues to believe that de minimis exceptions may be available on low density main lines with minimal safety hazards that carry a truly minimal quantity of PIH materials. The preamble discussion to the final rule published January 15, 2010, focused primarily on the risks associated with PIH materials exposure. However, any de minimis exception must also consider the risks associated with the events that Congress intended PTC systems must be designed to prevent. In other words, when a de minimis exception applies, there must be de minimis risk that a train-to-train collision, overspeed derailment, incursion into a roadway worker zone, or movement over a switch in the wrong position may occur. See the definition of a PTC system in the RSIA, 49 U.S.C. 20157(i)(3).

After reviewing AAR's request internally and with the PTC WG, FRA hereby proposes to amend § 236.1005(b)(4)(iii) in accordance with the restrictions discussed below. FRA seeks comments on the following.

First, AAR proposes that the 100-car limit be only applicable to loaded, not residue, cars. While FRA is not opposed to some relaxation of this limit, the result must not introduce a situation where the risks associated with PIH materials exposure or the events PTC systems must be designed to prevent exceed a de minimis threshold. “Residue” is defined by the Pipeline and Hazardous Materials Safety Administration (PHMSA) to be “the hazardous material remaining in a packaging, including a tank car, after its contents have been unloaded to the maximum extent practicable and before the packaging is either refilled or cleaned of hazardous material and purged to remove any hazardous vapors.” As a result, the amount of hazardous material in a residue car can vary significantly, and is generally non-trivial. Accordingly, such cars are still considered to contain hazardous materials for the purposes of PHMSA regulations. See generally 49 CFR parts 172-174. Given the wide range of what may be considered “residue” (including tank cars containing many thousands of gallons of material), and the potential for equally serious consequence should a PTC-preventable accident (PPA) result in the release of a PIH material that may be contained in such a car, FRA is instead proposing to amend this criteria so that the total number of cars transporting PIH materials annually on a track segment be limited to 200, to include both loaded and residue, with no more than two trains transporting PIH materials per day. The current rule text does not provide a daily train limitation. However, with the potential increase in PIH materials cars moving over a line under this proposal, FRA finds more pressing reasons to maintain an acceptable level of daily and annual PIH materials traffic density. Discussions in the PTC WG indicated that residue cars are generally transported along the same lines as the loaded cars, such that doubling the allowable number of cars will have a similar impact as excluding residue cars from the number, but will prevent the unusual occurrences that might result from ignoring residue cars altogether. FRA seeks comment on this assumption, the proposed daily limitation on trains transporting PIH materials, and the proposal that the car limit be increased to 200 cars containing PIH, both loaded and residue.

The de minimis exception, under 49 CFR § 236.1005(b)(4)(iii)(B)(1), currently limits maximum authorized train speed to that afforded for Class 1 (10 mph) or Class 2 (25 mph) tracks in order to reduce the kinetic energy available in any accident and to ensure that the forces impinging on any involved PIH materials tank car be sustainable. AAR proposes that the regulation provide a speed limitation only for those trains transporting any PIH materials. More specifically, AAR proposes a speed restriction of 40 miles per hour ( i.e., the same maximum authorized speed provided for certain rail-to-rail at-grade crossings under § 236.1005(a)(1)(i)), to be enforced by an “operational technique,” and only for trains carrying any PIH materials.

FRA is concerned that adherence to this 40 miles per hour restriction on such trains operating in higher-speed PTC territories will be dependent upon train handling by the train operator and that no onboard equipment would be utilized to provide the necessary warnings or enforcement. FRA has concerns regarding reliance on crew adherence to such a speed restriction, and other potential errors such as misunderstanding or miscommunication regarding the need for the restriction. Further, FRA is concerned that the risk of PIH materials release resulting from a collision or derailment at 40 miles per hour could be unacceptably higher than that at 25 miles per hour.

It should be noted that the current limitation on train speeds is not intended to totally eliminate the potential for collision or derailment, but rather is intended to significantly reduce the potential consequences by reducing the kinetic energy involved should such an event occur. Kinetic energy is the energy an object possesses when it is moving. During a normal stop that does not include a collision or derailment, most of the energy is absorbed in the brake system. But in a crash or derailment, that energy is suddenly, cataclysmically dissipated not by heating the brakes, but by the effects of crushing, tearing, and twisting of the vehicles involved. AAR offers a research study from the University of Illinois at Urbana-Campaign  1 showing that the probability of a hazardous material release from a rail car decreases as a track's class increases. However, FRA would like to point out that, as the maximum authorized speed on a track segment increases, the potential severity of any accident increases quadratically, such that an increase in speed from 25 miles per hour to 40 miles per hour would increase the kinetic energy in a crash by a factor of over 2.5. For example, a 2,000-pound object traveling 25 miles per hour has approximately 42,000 foot-pounds of energy; that same object traveling at 40 miles per hour has approximately 107,000 foot-pounds of energy. Ultimately, while the study suggests that an increase in track class may reduce the probability of an accident, any accident that occurs with increased speed would likely result in more severe consequences. Accordingly, FRA is not proposing to modify the speed limitation. However, FRA welcomes comments further analyzing the feasibility of considering the application of a maximum authorized speed, rather than a track class, for all trains as an element of applying this regulatory exception.

The existing requirement in § 236.1005(a)(1)(i) for rail-to-rail at-grade crossings involving a PTC route intersecting with a non-PTC route imposes a maximum authorized speed of 40 miles per hour through the crossing. However, a maximum authorized speed exceeding 40 miles per hour is acceptable if the opposing non-PTC route maintains, among other things, a 20 miles per hour maximum authorized speed. For such instances, the categorical de minimis exception actually provides a higher maximum authorized speed.

Nevertheless, FRA does not view the provisions as directly comparable. If a side collision was to occur in the case of a rail-to-rail at-grade crossing, the force of the side-impacted train is not opposing the force of the impacted train, and as such the cars of the impacted train are not subject to the same degree of immediate deceleration as occurs in a head-to-head collision. As a result, the kinetic energy of both the impacting train and the side-impacted train has a longer time period to be absorbed, significantly reducing the potential severity of the collision. By contrast, in a head-on collision, the force of one train is met by an opposing force from the other train. As a result, both trains are subject to immediate deceleration with energy dissipating in large part through damage to both trains. Such collisions have a much greater potential severity than side collisions. Accordingly, FRA is not willing to accept AAR's comparison of the speed restrictions at rail-to-rail at-grade crossings to speed restrictions necessary to qualify for the categorical de minimis risk exception.

AAR proposes that lines eligible for the de minimis risk exception be restricted to grades that are not “heavy grades” as defined by FRA in part 232. According to § 232.407(a)(1), heavy grade means:

(i) For a train operating with 4,000 trailing tons or less, a section of track with an average grade of two percent or greater over a distance of two continuous miles; and

(ii) for a train operating with greater than 4,000 trailing tons, a section of track with an average grade of one percent or greater over a distance of three continuous miles.

The steeper the grade, the more susceptible an operation becomes to concerns relating to train handling, overspeed, and other factors that may contribute to a PPA. FRA believes that placing a limit on ruling grade helps to avoid any situation in which an engineer may lose control of a train as a result of a failure to invoke a timely and sufficiently strong brake application.

While FRA views the allowance for heavy grade as proposed by AAR as potentially acceptable, the criteria in § 232.407 depends on the trailing tonnage of trains, which makes it difficult to apply to track segments independent of specific train movements. Accordingly, FRA proposes using a definition of heavy grade applicable to all trains: an average grade of one percent or greater over a distance of three miles. The alternative criteria of heavy grade in § 232.407, a section of track with an average grade of two percent or greater over a distance of two continuous miles, applies only to trains operating with 4,000 trailing tons or less. While the train-specific nature of this criteria precludes its use as part of the categorical de minimis exception, a railroad may instead seek a de minimis exception for a track segment meeting this less-restrictive criteria under the general de minimis exception in paragraph (b)(4)(iii)(C).

As an additional risk mitigation, AAR recommends strengthening operating practices protecting against unauthorized incursions into roadway work zones on track segments that have received approval to avoid PTC system implementation under the de minimis risk provision. AAR proposes that—in the case of a train approaching working limits on a line subject to the de minimis exception—the train crew be required to call the roadway worker in charge at a minimum distance of two miles in advance of the working limits to advise of the train's approach. If the train crew does not have knowledge of the working limits prior to approaching within two miles of the working limits or if it is impracticable to provide notification two miles in advance, such as if the working limits are less than two miles from the initial terminal, AAR proposes that the train crew would be required to call the roadway worker in charge as soon as practicable.

FRA appreciates AAR's proposal to add this criteria. However, FRA believes that it is not significantly different from existing railroad operating rules, upon which FRA already expects compliance. Any differences between the existing operating rules and AAR's proposal are minimal and may only cause confusion. FRA believes that AAR's proposal does not warrant adoption within the federal requirements and is therefore not proposing it in this NPRM.

AAR recommends that FRA modify the temporal separation provision contained in § 236.1005(b)(4)(iii)(B)(4). The de minimis provision in the rule requires that trains transporting PIH materials be “operated under conditions of temporal separation from other trains.” Temporal separation has long been defined as meaning that trains do not operate on any segment of shared track during the same period. FRA continues to believe that the use of exclusive authorities under mandatory directives is an insufficient alternative to positive train control operation. AAR recommends modification of the temporal separation provision to permit an alternative means of achieving the same or greater risk reduction. AAR suggests that such alternative means should include clarification that emptying the block ahead of and behind a PIH materials train constitutes temporal separation and that it does not mean that when such trains are operating, no other train can be operated on the line. This procedure does not constitute “temporal separation” as FRA has previously defined the term, such as in 49 CFR part 211, appendix A, stating FRA's policy concerning waivers related to shared use of trackage by light rail and conventional operations. To avoid conflicting definitions, FRA is not in favor of establishing a different meaning of “temporal separation” in the context of this regulation. However, FRA does seek comment from all interested parties on the underlying method of operation, using absolute blocks ahead of and behind a PIH materials train as a means of providing the necessary protection against PPAs, especially with respect to the potential for human error. FRA points out that § 236.1005(b)(4)(iii)(C) already provides railroads with the opportunity to submit such alternative means (for line segments of less than 15 million gross tons) for approval by the Associate Administrator. FRA believes that this provision sufficiently addresses AAR's concern and does not propose amendment of the rule in accordance with AAR's suggestion.

FRA further believes that beyond the categorical exception provided in paragraph (b)(4)(iii)(B), a railroad may alternatively seek a de minimis exception under existing paragraph (b)(4)(iii)(C) for track segments that annually carry less than 15 million gross tons. With this regulatory option, railroads may offer, and FRA may consider, mitigations tailored to particular circumstances to ensure a negligible risk. FRA would evaluate the submittal and, if satisfied that the proffered mitigations would be successful, approve the exception of the line segment. FRA notes that various elements of PTC technology may in some cases provide the means for accomplishing this goal; for instance, a railroad may choose to submit a plan using intermittent data radios and PTC-equipped locomotives in order to enforce track warrants and temporary speed restrictions.

AAR recommends that if the other criteria for de minimis exceptions are met, the amount of traffic on the line should not disqualify it from eligibility from the exemption. AAR points to existing § 236.1005(b)(4)(iii)(C), which provides that FRA will “consider” relief from the obligation to install PTC systems on line segments with annual traffic levels under 15 million gross tons where the risk of a release of PIH materials is “negligible.” AAR suggests eliminating the 15 million gross tons limit contained in this provision. Moreover, AAR contends that it is unclear what constitutes a “negligible” risk and what discretion FRA would exercise should there be a showing of negligible risk. AAR further requests that FRA set a quantitative threshold for negligible risk, and suggests “one-in-a-million” as the criterion. AAR references standard MIL-STD-882C as the basis for such criterion.

With respect to paragraph (b)(4)(iii)(B), FRA has endeavored to address AAR's concerns with a provision that is broad enough to permit considerations of actual circumstances, limit this exception to railroads that would not otherwise need to install PTC systems, and make explicit reference to the requirement for potential safety mitigations. FRA has chosen 15 million gross tons as a threshold where mitigations are in place or could be put in place to establish a high sense of confidence that operations will continue to be conducted safely. In the context of the default provisions under paragraph (b)(4)(iii)(B), FRA has concern that eliminating the traffic density criteria would result in an exception being outside the scope of the de minimis risk. The derailment data cited by AAR is only a portion of the data that needs to be considered. FRA also recognizes the potential for a higher density line not being eligible for this exemption even though it may have fewer than 200 PIH materials cars on the line in a year. Consequently, FRA is not proposing to amend this limitation but is open to the possibility of considering some risk evaluation factors in lieu of a prescriptive train density limitation. FRA seeks comment from all interested parties on the existing 15 million gross tons density threshold and the suggested alternative of risk evaluation factors; FRA would expect full development and discussion of the risk evaluation factors and their application by any party suggesting such an alternative.

FRA also recognizes that under paragraph (b)(4)(iii)(C), the train density limit could conceivably be replaced by equivalent safety mitigations. In the interest in providing flexibility, without reducing safety, FRA is proposing to eliminate the 15 million gross tons limitation currently contained in this paragraph. FRA distinguishes the application of this train density limit in this paragraph from that in paragraph (b)(4)(iii)(B) because in (b)(4)(iii)(C) FRA would be considering the totality of circumstances and the mitigations proffered by the railroad. If a railroad submits a request under proposed paragraph (b)(4)(iii)(C), where the train density limit is not a categorical requirement, FRA would likely require some other train density limit—presumably more liberal—coupled with additional safety mitigations to achieve an equivalent level of safety.

FRA is not agreeable to setting a quantitative threshold for negligible risk in paragraph (b)(4)(iii)(C) as suggested by AAR. FRA notes that standard MIL-STD-882C is recognized in Appendix C to 49 CFR part 236 as an available standard for evaluating the safety of train control systems; however, the difficulties with using this type of criterion as a decisional criterion, as opposed to a convention in hazard analysis, are manifold. First, the actual metric is always unclear. FRA will assume that AAR may refer to release of a reportable quantity of a PIH material. The apparent suggestion is probability per route mile. However, it is unclear what should be the level of chance and the measurable time period (e.g., calendar hours, operating hours, PTC system life-cycle, etc. ). Given that PIH materials releases are already infrequent events, and the potential for catastrophe from a single release is significant, it is also unclear how this criterion would relate to the judgments that Congress has already made with respect to PIH materials transportation. AAR does not provide any reasoning or evidence sufficient to prove that the criterion is satisfied. AAR should be aware that the industry and FRA have experienced significant difficulty in developing tools for comparative risk assessment related to train control, which is the easier task in contrast with use of absolute risk criteria. FRA will, of course, welcome well-presented, simple, and direct hazard analyses. FRA will be looking to achieve confidence that the chance of an unintended release of PIH material is negligible, given the chances for severe mishaps on the particular line segment in question.

In addition, AAR suggests that within paragraph (b)(4)(iii)(C), the obligation of the railroad to establish that the risk of a PIH materials release is negligible should be limited to releases caused by PPAs. Proposed paragraph (b)(4)(iii)(C) provides that FRA will consider a de minimis risk exemption from the PTC mandate for certain line segments where it is established that the risk of a PIH materials release is negligible. AAR argues that the request to install PTC systems on line segments being candidates for such an exception should not be driven by the possibility of accidents that PTC systems cannot prevent. AAR states that other criteria of the de minimis risk exception such as temporal separation and reduced speed, if satisfied, already reduce the probability of accidents that the four core PTC system functions aim to prevent: train-to-train collision, overspeed derailment, incursion into established work zone limits, and movement through a main line switch in an improper position ( i.e., the four statutory PPAs). In the original final rule, FRA repeatedly referenced the exception as relating to de minimis PIH materials risk exception. We believe that this may have been confusing and would like to take this opportunity to provide further clarification. FRA originally used this term since the exception would only apply to freight traffic on lines where PIH materials traverse. FRA did not intend to exclude the four statutory PPAs as risk elements requiring consideration in order to qualify for the exception. Accordingly, FRA proposes to change the regulatory language to comport with this perspective by modifying the heading of paragraph (b)(4)(iii) to eliminate the potential for confusion.

The proposed rule modifies paragraph (b)(4)(iii)(A) to increase the car limit to 200 cars annually, as discussed above. As noted above, FRA proposes revising the heading of paragraph (b)(4)(iii) to read “freight lines with de minimis risk.” FRA also proposes to revise (b)(4)(iii)(B)(3) to specify the distance over which the ruling grade is measured, mirroring the definition of “heavy grade” in § 232.407 for trains operating with greater than 4,000 trailing tons. FRA proposes to amend paragraph (b)(4)(iii)(C) is amended by striking the limitation that only track segments with traffic less than 15 million gross tons is eligible for relief as posing only de minimis risk. A typographical error is also corrected in the table in paragraph (a). FRA seeks comment from all interested parties on these proposals.

AAR recommends that yard switching service and transfer train movements without operational onboard PTC equipment should be allowed to operate over PTC-equipped track segments. AAR argues that this exception is necessary in light of the constantly-changing consists that characterize yard operations that would render a PTC system ineffective. AAR's suggested exceptions for switching service and transfer train movements are discussed in turn.

In this context, FRA uses the term “switching service” to refer to switching service under 49 CFR § 232.5:

However, as AAR explains in its Petition, switching operations frequently require some movement along main track adjacent to or within a yard, for purposes of reaching other yard tracks or obtaining necessary distance, or “headroom”, from yard tracks to make switching movements. Despite the exclusion of these other-than-main line tracks, switching service could therefore require PTC-equipped locomotives in order to make these movements on main line track. Given the statutory language suggesting that switching service was not subject to the PTC mandate and the potential to apply operation restrictions to reduce risk to an acceptable level, FRA agrees that it would be appropriate to provide an exception for locomotives performing switching service from the requirements to be equipped with a PTC system if appropriate safeguards are implemented.

AAR's Petition recommends that adequate safety can be provided by a concept AAR refers to as “absolute protection.” Such protection would be established by a dispatcher, who would withhold movement authority by signal or directive. PTC-equipped trains would be prevented from entering the zone by an enforced positive stop outside of the zone where operations with non-operational PTC-equipped trains were underway. FRA solicits comments on the practicality and safety potential of this approach. FRA also notes that such a system is very similar to the protection required for roadway workers by 49 CFR § 236.1005(a)(1)(iii), and also solicits comments on the application of similar measures to zones where switching operations are taking place on the main line track without operational PTC systems. These forms of protection of PTC-equipped trains are proposed as defaults; as with other exceptions and exclusions, the rule proposes to allow each railroad to provide alternative measures in its PTCSP.

AAR's Petition also suggests that such an exemption should also apply to transfer train movements. As such, the distance the unequipped locomotives could travel from a yard or terminal would be up to 20 miles. As previously noted, FRA recognizes that Congress specifically used the term “main line” and seeks comments on whether that linguistic choice would indicate an intention not to include certain train movements—including short train movements in and around railroad yards—within the statutory mandate. Many transfer train movements share older locomotives with switching operations, making PTC system implementation more costly and any switching service exception that is provided would be inapplicable if associated transfer trains utilizing the same locomotive would require PTC system implementation. Moreover, transfer trains in yard areas generally operate for short distances at lower speeds, and many only operate within yard limits. FRA seeks comments from interested parties on its interpretation and application of the statutory mandate as it relates to short train movements in and around yard areas.

In accordance with this potentially acceptable perspective, FRA is proposing a de minimis exception applicable specifically to certain transfer train movements, at least for a period of time until the older locomotives used in yard service may be replaced. Such locomotives will presumably be gradually replaced with newer locomotives, which would then allow for the implementation of PTC systems on locomotives used in transfer train service. However, such locomotives could also be replaced by existing long haul locomotives not equipped with PTC systems or with non-functioning PTC systems. Thus, while FRA is not proposing a specific provision regarding the potential duration of such an exception, FRA seeks comments relating to how long the duration of this exception should apply. FRA also seeks comment on any mitigations that could be employed to bring the PPA risk down to a negligible level in these situations.

The existing PTC regulations already provide the parameters for a general de minimis exception. Thus, while any exception provided must still fall within the legal understanding of what is considered de minimis, FRA seeks suggestions on how to tailor such an exception specifically for certain transfer train movements in and around yard areas. FRA recognizes that not all transfer train movements will qualify for an exception.

FRA also recognizes that, in its Petition, AAR already suggests one such mitigation in the form of what it calls “absolute protection.” AAR states that absolute protection requires that the dispatcher withhold movement authority between two points of control by signal indication or mandatory directive. According to AAR, the dispatcher would also hold other trains clear by providing blocking protection within the traffic control system. Under AAR's proposal, the movement of non-PTC equipped locomotives would be limited to 30 miles per hour and the distance the locomotives could travel from a yard or terminal would be limited to 20 miles.

FRA seeks comments from interested parties on AAR's suggested mitigation, particularly as to whether it will reduce the PPA risk to a negligible level. FRA requests that such comments include an analysis of how this, or any other proposal, applies to each statutory PPA and to the general prevention of PIH materials release. FRA also seeks comments on what other safety mitigations, including temporal separation and those used in the event of an en route failure, would be adequate to ensure a proper level of safety for switching service and transfer train movements in and around yard areas that would operate without the benefit of a PTC system.

FRA also seeks comments regarding any concerns relating the application of any transfer train de minimis exception to track segments that share freight and passenger traffic and how such an exception would interrelate to any main line track exception already provided for passenger service under § 236.1019. FRA recognizes that, if a passenger train is required to have an operational PTC system, the operational restrictions and enforced positive stop outside of the yard zone may serve to protect against an incursion by an equipped passenger train into a yard area with potentially active train movements without operative onboard PTC systems. If the passenger train is unequipped as the result of a main line track exclusion, a necessary component of that exclusion is either temporal separation between the freight and passenger service, operations limited to restricted speed, an alternate risk mitigation plan which would provide an equivalent level of safety, or a requirement that the passenger trains not be carrying passengers within the limits of the exclusion. As a result, the only times where unequipped freight switching operations subject to the switching exclusion and a passenger train carrying passengers subject to a main line track exclusion may occupy the same zone will be when both are operating at restricted speed and therefore should be prepared to stop within half of their range of vision, or where the railroads have provided alternative risk mitigations that result in an equivalent level of safety.

AAR's Petition recommended FRA limit the speed of unequipped locomotives and trains to 30 miles per hour, or restricted speed if multiple unequipped movements take place within the same area at the same time. This speed restriction matches that of the en route failure provision in § 236.1029, which is referenced by the temporary rerouting provision at § 236.1005(j) and the Class II and III locomotive exception at § 236.1006(c). Because FRA views this yard move exception as a de minimis risk exception, FRA proposes to limit the speed of movements to 25 miles per hour, the relevant speed restriction for the general de minimis exception at § 236.1005(b)(4)(iii). FRA seeks comment on this proposal and AAR's alternative suggestion.

FRA proposes to add a new paragraph (b)(5) to this section to allow railroads to request a yard move de minimis risk exception for switching service or transfer train service in and around yard areas. The proposed exception would allow locomotives engaged in these types of activities to operate on PTC-equipped main line track without the requirement to install an onboard PTC apparatus. The proposed exception provides ample flexibility, with paragraph (b)(5)(i) allowing railroads to tailor their risk mitigations to particular yard operations to ensure that the risk of a PPA or the release of PIH materials is negligible. Paragraph (b)(5)(ii) defines the distance a transfer train may operate under this exception as 10 miles from its entry onto PTC-equipped main line track, allowing for 20-mile round-trip train movements. FRA seeks comments on this proposal. FRA specifically seeks comments on the feasibility of using the train's point of entry onto a main line as a means to begin measuring the mileage limit under this exception. FRA also seeks comments on whether the train's point of origin, where the train is assembled and receives its required inspections, should be the location where such measurements should begin. FRA recognizes that some transfer trains may travel 20 miles to an outlying point from a yard. However, allowing such movements in both directions from a transfer train's point of entry onto a PTC-equipped track segment would effectively create a 40-mile zone outside of yards within which the PTC system would not be fully effective due to the presence of unequipped trains. Limiting the distance of transfer train movements to an area 10 miles from the initiation of service will limit the size of this zone to 20 miles, is consistent with the existing 20 mile movement restriction related to transfer trains, and would permit round trip movements of up to 20 miles. FRA seeks comment on this limitation and potential alternative distance limitations. Paragraph (b)(5)(iii) limits the speed of locomotives and trains operating under this exception to a maximum of 25 miles per hour.

FRA also proposes to move the PTCIP reporting requirement from paragraph (b)(2) of this section to a new paragraph (a)(5) in § 236.1009.

FRA proposes to move the PTCIP reporting requirement from paragraph (b)(2) of § 236.1006 to a new paragraph (a)(5) of this section. The purpose of this proposal is not merely for organizational purposes. FRA also intends to require the submission of additional information so that it may better fulfill its congressional reporting obligations and to otherwise fully and accurately monitor the progress of PTC system implementation. The current language of § 236.1006(b)(2) requires railroads to report the status of achieving its goals with respect to equipping locomotives with fully-operative onboard PTC apparatuses on PTC-equipped track segments. However, for FRA to fulfill its statutory obligations and regulatory objectives, it would also require additional implementation information. Accordingly, under the proposed rule, FRA expects submission of implementation data relating to wayside interface units, communication technologies, back-end computer systems, transponders, and any other PTC system components.

The PTC WG expressed no concerns with this proposal.

In its Petition, AAR suggests that FRA should exempt certain limited freight operations in a similar manner as provided for limited passenger operations under § 236.1019(c). AAR suggests exempting track segments over which not more than two trains containing PIH materials carloads are transported daily, where the annual freight traffic over the line is less than 15 million gross tons.

RSIA provided FRA with the authority to redefine main line for intercity or commuter rail passenger transportation routes or segments where there is limited or no freight operations. See 49 U.S.C. 20157(i)(2)(B). Under this authority, FRA, in § 236.1019(c), provided an exception from PTC system implementation on line segments where there is limited or no freight operations and where either all trains are limited to restricted speed, temporal separation is provided between passenger trains and other trains, or passenger service is operated under a risk mitigation plan. The purpose of 49 CFR 236.1019(c) is to eliminate the requirement for PTC system installation in the case of low-risk passenger operations. For these reasons, FRA does not believe it is prudent at this time to extend a “limited or no freight” exception to track segments where there is more than “limited or no freight.”

Nevertheless, FRA recognizes that the exception sought by AAR already exists, albeit in a different form. The general de minimis risk exception of § 236.1005(b)(4)(iii)(C) allows railroads to apply for an exception from the requirement to implement PTC systems on track segments where the railroad can demonstrate that there is negligible risk of PTC-preventable accidents or a release of PIH materials. Because the statutory authority for the existing limited operations exception applies only to intercity or commuter rail passenger transportation, creating a new limited operations exception for freight track segments would depend upon FRA's authority to create a de minimis exception to the regulation. Creating such an exception but referring to it as a “limited operations exclusion” would only serve to create confusion.

Under ordinary circumstances, a railroad seeking to discontinue a signal system must file an application pursuant to 49 CFR part 235. However, to simplify the process of making changes to a signal system related to PTC systems implementation, § 236.1021 currently allows railroads to request approval of a discontinuance or material modification of a signal system in an RFA to its PTCIP, PTC development plan (PTCDP) or PTC safety plan (PTCSP), as appropriate. In its Petition, AAR recommends that FRA allow automatic approval (i.e., without the need to file an RFA) for the removal of cab signal systems from PTC-equipped lines or the removal of any signal system where stand-alone PTC systems are used. However, the Petition did not provide adequate justification to support the categorical approval of such changes without any FRA oversight. Even in its Petition, AAR argued that new PTC systems are likely to suffer en route failures. Such failures would be mitigated by the presence of an underlying signal system. Accordingly, FRA is not willing at this time to change the text of § 236.1021 in accordance with AAR's request. However, FRA does seek comment from interested parties on how to further simplify the procedures currently contained in this section.

Section 236.1029 currently provides a means of safely reacting to the en route failure of a PTC system. When the onboard apparatus of a controlling locomotive within a PTC system fails en route, § 236.1029 requires that the train proceed at restricted speed, or where a block signal system is in operation according to signal indication at medium speed, until an absolute block is established ahead of the train; after the absolute block is established, the train may proceed at speeds between 30 miles per hour and 79 miles per hour, depending on the nature of the signal system in place, if any, and the nature of the train. AAR, in its petition, assents to this procedure for each location where a PTC systems is the exclusive means of delivering mandatory directives, but suggests substantial revisions to this procedure where a PTC system is not the exclusive means of delivering mandatory directives ( e.g., where mandatory directives are also delivered by radio). The AAR proposal would allow trains to continue to a designated repair or exchange location indentified in a railroad's PTCSP. While travelling to one of these locations, the AAR proposal would allow freight trains to continue at track speed in signaled territory, up to 40 miles per hour for freight trains in non-signaled territory, and up to 30 miles per hour for trains carrying PIH materials. The proposal also recommends a 30-miles-per-hour limitation for passenger trains; Amtrak suggests that the appropriate limitation for passenger trains is 40 miles per hour.

FRA is sensitive to the concerns expressed regarding PTC system reliability and the railroads' desire to avoid restrictions where a PTC system fails. However, the mandate to implement PTC systems reflects a congressional determination that present methods for train operation are inadequate. Accordingly, FRA must ensure that procedures for train operation during the failure of a PTC system provide the additional degree of safety required by Congress. FRA is therefore rejecting AAR's petition to amend the rule language on this issue. In the original final rule, FRA provided flexibility for railroads in establishing alternative procedures for operations following an en route failure. While FRA does not view allowing trains to continue at track speed after a PTC system is rendered inoperable as a generally acceptable procedure, there may be circumstances under which such operations are appropriate. If such circumstances exist, the railroads may provide in its PTCSP, which would then be subject to FRA review and approval, an alternative en route failure procedure pursuant to paragraph (c) of this section. While FRA is not willing to grant AAR's request at this time, FRA seeks comment on this issue and suggestions for other reasonable default provisions.

AAR also requests clarification concerning the failure of an onboard PTC apparatus of the train's controlling locomotive, where a second PTC-equipped locomotive exists capable of providing PTC system functionality. FRA proposes to amend § 236.1029 to specifically indicate that, when a trailing locomotive is used to maintain full PTC system functionality, the system is considered operable and therefore is not considered to have failed en route. Paragraph (g) provides that if full functionality of the onboard PTC apparatus in the controlling locomotive is restored by use of a secondary apparatus, such as the onboard equipment of a trailing locomotive, the train can continue operations as provided for in the railroad's PTCSP. Paragraph (g) also requires railroads to provide procedures for how this change-over of the PTC system onboard functions will take place.

This NPRM has been evaluated in accordance with existing policies and procedures, and determined to be significant under Executive Order 12866, Executive Order 13563 and DOT policies and procedures. 44 FR 11,034 (Feb. 26, 1979). We have prepared and placed in the docket a regulatory impact analysis (RIA) addressing the economic impact of this NPRM.

The Federal Railroad Administration (FRA) proposes amendments to regulations implementing a requirement of the Rail Safety Improvement Act of 2008 (RSIA) that certain passenger and freight railroads implement PTC systems. The proposal includes revising the regulatory language defining the de minimis exception, as it applies generally and more specifically to yard-related movements. The proposal also includes revising the rules regarding en route failures and discontinuances of signal systems.

The proposed provisions regarding applications to modify signal and train control systems would streamline and simplify the application process for a discontinuation or material modification of a signal system under 49 CFR part 235 where the application would have been filed as part of a PTC system implementation.

The proposed revisions to the existing de minimis risk exception under 49 CFR § 236.1005(b)(4)(iii) will allow railroads to avoid installing PTC systems' wayside equipment on affected segments. FRA is unsure of the mileage of wayside that will be affected, in part because the railroads have indicated that they intend to reroute PIH materials traffic from many miles of their systems. FRA analyzed the impact of extending the de minimis risk exception to cover an additional 1,000 miles of wayside, as well as two sensitivity cases—one where the mileage affected was higher (1,900 miles) and one where the mileage affected was lower (100 miles). The estimated savings per mile was $50,000 per mile. All values in the analysis are measured in 2009 dollars.

FRA also analyzed the benefits of extending the de minimis risk exception as it would apply to equipping locomotives involved in yard operations with onboard PTC apparatuses. Again, FRA faced uncertainty in estimating the number of locomotives that will be affected. For the base case, FRA estimated that 500 locomotives will be affected. FRA also analyzed two cases for sensitivity—a high case where 800 locomotives will be affected and a low case where 200 locomotives will be affected. Applying the extended de minimis risk exception to yard operations will allow the railroads to avoid equipping locomotives with onboard PTC systems apparatuses, at a unit savings of $55,000 per locomotive.

For both wayside and onboard portions of the benefit, FRA included the maintenance costs saved by avoiding installation. FRA estimated the maintenance costs as 15 percent of the value of the installed base.

The Atlantic shark fisheries are managed under the Magnuson-Stevens Act. Management of these species is described in the 2006 Consolidated HMS FMP, which is implemented by regulations at 50 CFR part 635. Copies of the 2006 Consolidated HMS FMP and amendments are available from NMFS on request (see FOR FURTHER INFORMATION CONTACT ).

On November 26, 2012 (77 FR 70552), NMFS published a proposed rule for draft Amendment 5 to the 2006 Consolidated HMS FMP based on several shark stock assessments that were completed from 2009 to 2012. The assessments for Atlantic blacknose, dusky, and scalloped hammerhead sharks indicated that these species are overfished and experiencing overfishing. As described in the proposed rule, NMFS is proposing measures that would reduce fishing mortality and effort in order to rebuild overfished Atlantic shark species while ensuring that a limited sustainable shark fishery can be maintained consistent with our legal obligations and the 2006 Consolidated HMS FMP. The proposed measures include changes to commercial quotas and species groups, the creation of several time/area closures, a change to an existing time/area closure, an increase in the recreational minimum size restrictions, and the establishment of recreational reporting for certain species of sharks. Any comments received during the comment period will be considered in the development and finalization of Amendment 5 to the 2006 Consolidated HMS FMP.

Six public hearings will be held in Florida (2), Louisiana, Massachusetts, New Jersey, and North Carolina to provide the opportunity for public comment on the measures described in the proposed rule and draft Amendment 5. NMFS will also hold two public conference calls/webinars to provide individuals opportunity to submit public comment if they are unable to attend a public hearing.

NMFS expects to consult with the HMS Advisory Panel on January 8, 2013, on the proposed rule and draft Amendment 5. This HMS Advisory Panel meeting will consist of a presentation of the proposed measures followed by a discussion with the Advisory Panel. There will also be an opportunity for public comment in an open session after the Advisory Panel discussion. See Table 1 for times, dates, and location.

NMFS has also asked to present information on the proposed rule and draft Amendment 5 to the Caribbean, Gulf of Mexico, South Atlantic, Mid-Atlantic, and New England Fishery Management Councils. Information on the date and time of those presentations will be provided on the appropriate council agenda.

NMFS welcomes comments on any aspect or alternative considered in the proposed rule. NMFS is specifically seeking comments on the administration of dusky shark bycatch caps program in select areas given limited additional observer program resources; the name of reconfigured groupings of sharks that would continue to be managed collectively in the reminder of what is currently the large coastal shark complex for quota monitoring purposes; suggestions for improving angler identification of shark species and reducing dusky shark mortality in the recreational fishery; and whether NMFS should permit the transit of closed areas if certain otherwise prohibited gear is properly stowed and inoperable.

The public is reminded that NMFS expects participants at public hearings and on phone conferences to conduct themselves appropriately. At the beginning of each meeting, a representative of NMFS will explain the ground rules (e.g., alcohol is prohibited from the meeting room; attendees will be called to give their comments in the order in which they registered to speak; each attendee will have an equal amount of time to speak; attendees may not interrupt one another; etc.). The NMFS representative will structure the meeting so that all attending members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Attendees are expected to respect the ground rules, and those that do not will be asked to leave the meeting.