This proposal is issued under Marketing Order No. 985 (7 CFR Part 985), as amended, regulating the handling of spearmint oil produced in the Far West (Washington, Idaho, Oregon, and designated parts of Nevada and Utah), hereinafter referred to as the “order.” This order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (Department) is issuing this rule in conformance with Executive Order 12866.

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. This proposed rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the Secretary a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing the Secretary would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review the Secretary's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

The spearmint oil order is a volume control program that authorizes the regulation of spearmint oil produced in the Far West through annual allotment percentages and salable quantities for Class 1 (Scotch) and Class 3 (Native) spearmint oils. The salable quantity limits the quantity of each class of spearmint oil that may be marketed from each season's crop. Each producer is allotted a share of the salable quantity by applying the allotment percentage to that producer's allotment base for the applicable class of spearmint oil. Handlers may not purchase spearmint oil in excess of a producer's annual allotment, or from producers who have not been issued an allotment base under the order.

Section 985.53(d)(1) requires the Committee to annually make additional allotment base available in an amount not greater than 1 percent of the total allotment base for each class of spearmint oil. The order specifies that 50 percent of the additional allotment base be made available for new producers and 50 percent be made available for existing producers. A new producer is any person who has never been issued allotment base for a class of oil, and an existing producer is any person who has been issued allotment base for a class of oil. Provision is made in the order for new producers to apply to the Committee for the annually available additional allotment base, which in turn is issued to applicants in each oil class by lottery. The additional allotment base being made available to existing producers is distributed equally among all existing producers who apply.

Section 985.53(d)(3) of the order provides authority for the establishment of rules governing the annual distribution of additional allotment base. Pursuant to the authority in that section, the Committee unanimously recommended revising § 985.153 of the order's rules and regulations at its meeting on October 6, 1999. Section 985.153 provides regulations for the issuance of additional allotment base to new and existing producers. Specifically, the Committee's recommendation proposes modification of § 985.153(c)(1) to provide a more equitable distribution of allotment base to new producers. This proposed rule would: (1) Reduce the number of regions established for issuing additional allotment base to new producers from three regions to two regions; and (2) revise the procedure used for determining the distribution of additional allotment base to new producers to take into account the reduced number of regions.

Section 985.153(c) currently establishes the regions for issuing additional allotment base as follows:

(A) Region 1—The State of Oregon and those portions of Utah and Nevada included in the production area.

(B) Region 2—The State of Idaho.

(C) Region 3—The State of Washington.

Under the provisions currently in effect, the names of all eligible new producers are placed in separate lots per class of oil and region. Names are then drawn based on the amount of additional allotment base available and the Committee's determination of the minimum economic enterprise required to produce each class of oil. These procedures currently result in three new Scotch spearmint oil producers (one from each region) receiving approximately 3,100 pounds of allotment base each, and three new Native spearmint oil producers (one from each region) receiving approximately 3,400 pounds of allotment base each.

This proposed rule would replace the current three regions with the following two regions:

(A) Region A—The State of Washington.

(B) Region B—All areas of the production area outside the State of Washington.

Additionally, the proposal would modify the current method used to draw names by specifying that the names of all eligible new producers would be placed in separate lots based on two regions rather than three regions. For each class of oil, separate drawings would be held from a list of all applicants from Region A, from a list of all applicants from Region B, and from a list of all remaining applicants from Regions A and B combined. If, in any marketing year, there are no requests in a class of oil from eligible new producers in a region, such unused allotment base would be issued to two eligible new producers whose names are selected by drawing from a lot containing the names of all remaining eligible new producers from the other region for that class of oil. Thus, three new producers of each class of oil would receive base, as currently occurs given the amount of additional base available and the minimum economic enterprise needed for oil production.

The Committee made this recommendation after its analysis of statistics relating to current spearmint oil production and the number of requests received each year for additional allotment base from the various States included in the production area. The following tables show the number of actual applications for additional Scotch and Native spearmint oil base over the most recent ten year period:

As shown in the above tables, there has consistently been few applications received from new producers in the States of Oregon, Utah, and Nevada, while the number of applications from new producers in Washington, followed to a lesser extent by the number of applications from new producers in Idaho, has consistently been much higher. Committee records also show that the number of producers, as well as the amount of allotment base held by those producers, is greatest in Washington followed in decreasing order by Idaho, Oregon, Utah, and Nevada. Therefore, reducing the number of regions from 3 to 2, and changing the procedures used in distributing the base would result in a more equitable distribution of allotment base to new producers. The recommended changes would also make the additional allotment base available to new producers from the States which have historically requested the most base.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, the AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. Thus, both statutes have small entity orientation and compatibility.

There are 7 spearmint oil handlers subject to regulation under the order, and approximately 119 producers of Class 1 (Scotch) spearmint oil and approximately 105 producers of Class 3 (Native) spearmint oil in the regulated production area. Small agricultural service firms are defined by the Small Business Administration (SBA)(13 CFR 121.201) as those having annual receipts of less than $5,000,000, and small agricultural producers have been defined as those whose annual receipts are less than $500,000.

Based on the SBA's definition of small entities, the Committee estimates that 2 of the 7 handlers regulated by the order could be considered small entities. Most of the handlers are large corporations involved in the international trading of essential oils and the products of essential oils. In addition, the Committee estimates that 25 of the 119 Scotch spearmint oil producers and 7 of the 105 Native spearmint oil producers could be classified as small entities under the SBA definition. Thus, a majority of handlers and producers of Far West spearmint oil may not be classified as small entities.

The Far West spearmint oil industry is characterized by producers whose farming operations generally involve more than one commodity, and whose income from farming operations is not exclusively dependent on the production of spearmint oil. Crop rotation is an essential cultural practice in the production of spearmint oil for weed, insect, and disease control. A normal spearmint oil producing operation would have enough acreage for rotation such that the total acreage required to produce the crop would be about one-third spearmint and two-thirds rotational crops. An average spearmint oil producing farm would thus have to have considerably more acreage than would be planted to spearmint during any given season. To remain economically viable with the added costs associated with spearmint oil production, most spearmint oil producing farms would fall into the SBA category of large businesses.

Small spearmint oil producers generally are not extensively diversified and as such are more at risk to market fluctuations. Such small producers generally need to market their entire annual crop and do not have the luxury of having other crops to cushion seasons with poor spearmint oil returns. Conversely, large diversified producers have the potential to endure one or more seasons of poor spearmint oil markets because incomes from alternate crops could support the operation for a period of time. Being reasonably assured of a stable price and market provides small producing entities with the ability to maintain proper cash flow and to meet annual expenses. Thus, the market and price stability provided by the order potentially benefit the small producer more than such provisions benefit large producers. Even though a majority of handlers and producers of spearmint oil may not be classified as small entities, the volume control feature of this order has small entity orientation. The order has contributed to the stabilization of producer prices.

Section 985.53 of the order provides that each year the Committee make available additional allotment base for each class of oil in the amount of no more than 1 percent of the total allotment base for that class of oil. This affords an orderly method for new spearmint oil producers to enter into business and existing producers the ability to expand their operations as the spearmint oil market and individual conditions warrant. One-half of the 1 percent increase is issued annually by lot to eligible new producers for each class of oil. To be eligible, a producer must never have been issued allotment base for the class of spearmint oil such producer is making application for, and have the ability to produce such spearmint oil. The ability to produce spearmint oil is generally demonstrated when a producer has experience at farming, and owns or rents the equipment and land necessary to successfully produce spearmint oil.

This proposed rule would: (1) Reduce the number of regions established for issuing additional allotment base to new producers from three regions to two regions; and (2) revise the procedure used for determining the distribution of additional allotment base to new producers to take into account the reduced number of regions. The Committee recommended this rule to provide for a more equitable distribution of allotment base to new producers.

During its deliberations, the Committee considered alternatives to this proposal. The first option discussed would have left § 985.153(c) unchanged. This was rejected because of the need to develop a more equitable method of issuing additional base given the light application record from some of the States within the production area. The Committee also discussed eliminating the use of different regions in its additional allotment base issuance procedure and having one drawing for the calculated number of recipients per class of oil for the entire production area. This option was also rejected because it would not ensure geographic distribution of the additional base.

The Committee made its recommendation after careful consideration of available information, including the aforementioned alternative recommendations, the minimum economic enterprise required for spearmint oil production, historical statistics relating to the locations of the producers applying for the annual additional allotment base, and other factors such as number of producers by State and the amount of allotment base held by such producers. Based on its review, the Committee believes that the action recommended is the best option available to ensure that the objectives sought will be achieved.

The information collection requirements contained in the section of the order's rules and regulations proposed to be amended by this rule have been previously approved by the Office of Management and Budget (OMB) under the provisions of 44 U.S.C. chapter 35 and have been assigned OMB No. 0581-0065. This action would not impose any additional reporting or record keeping requirements on either small or large spearmint oil producers and handlers. All reports and forms associated with this program are reviewed periodically to avoid unnecessary and duplicative information collection by industry and public sector agencies. The Department has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rule.

The Committee's meeting was widely publicized throughout the spearmint oil industry and all interested persons were invited to attend and participate in the discussion on these issues. Interested persons are also invited to submit information on the regulatory and informational impacts of this action on small businesses.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at the following web site: http://www.ams.usda.gov/fv/moab.html. Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

A 60-day comment period is provided to allow interested persons to respond to this proposal. All written comments received within the comment period will be considered before a final determination is made on this matter.

For the reasons set forth in the preamble, 7 CFR Part 985 is proposed to be amended as follows:

In the Staff Requirements Memorandum (SRM) to SECY-99-176, “Plans for Pursuing Performance-Based Initiatives,” issued on September 13, 1999, the Commission directed the staff to develop high-level guidelines to identify and assess the viability of candidate performance-based activities. Among other things, the Commission directed the staff to develop the guidelines with input from stakeholders and program offices, and to include discussion on how risk information might assist in the development of performance-based initiatives.

This FRN focuses on the staff's efforts to develop high-level guidelines for performance-based initiatives applicable to all NRC licensees. The development and use of these guidelines will be coordinated (including public meetings and workshops) with the efforts to risk-inform 10 CFR part 50 and other regulations.

The staff plans to hold a public meeting to obtain feedback on the proposed high-level guidelines for performance-based activities. The public meeting is scheduled for March 1, 2000, between 9 a.m. and 4 p.m., in the auditorium at the NRC headquarters (Two White Flint North, 11545 Rockville Pike, Rockville, Maryland, 20852). The public should be aware that another meeting concerning efforts to risk-inform 10 CFR part 50 is scheduled on February 24, 2000. That meeting, focused on reactors, will also consider performance-based revisions to 10 CFR Part 50 based on the high-level guidelines discussed in this FRN.

The meeting being noticed here will focus on the application of high-level guidelines to all regulatory activities (of which 10 CFR part 50 would be a part) so as to make them more performance-based. This meeting is scheduled to occur about 3 weeks prior to the expiration of the comment period mentioned above. This will allow for an exchange of views among stakeholders and the NRC staff. This interaction should be beneficial to the meeting participants in the development of written public comments.

This meeting is open to the general public to observe or to participate by making remarks. To register for attendance or to present prepared remarks, please contact N. Prasad Kadambi, USNRC, telephone: (301) 415-5896; facsimile: (301) 415-5160; internet: npk@nrc.gov.

The high-level guidelines identified in this FRN are intended to be applied to future regulatory initiatives. As the effort to risk-inform regulatory activities (for example, in the reactors and materials areas) is performed, the high-level guidelines will be used to identify activities which can be made more performance-based. It should be noted that regulatory activities that cannot be made risk-informed could still be made more performance-based. In addition, candidates for performance-based activities may also be identified as a result of other mechanisms such as proposed changes arising from stakeholder input or from petitions for rulemaking as identified in the Rulemaking Activity Plan.

The fundamental basis for developing these guidelines has been the SRM to SECY-98-144, “White Paper on Risk-Informed and Performance-Based Regulation,” http://www.nrc.gov/NRC/COMMISSION/SRM/1998-144srm.html , in which the Commission provided a context and definition for performance-based approaches incorporating the following points:

• A regulation can be either prescriptive or performance-based.

• A performance-based regulatory approach establishes performance and results as the primary basis for regulatory decision-making.

• Four attributes are identified which characterize a performance-based approach. These attributes, as discussed below, form an important part of the high-level guidelines which are being proposed herein.

• A performance-based approach can be implemented with or without the use of risk insights.

The proposed high-level guidelines are to be used to evaluate potential performance-based regulatory initiatives. When the guidelines are finalized, they will be incorporated into NRC procedures and policy documents used by staff in conducting day-to-day activities (e.g. Management Directives). These regulatory initiatives will complement and build upon what is accomplished through risk-informed initiatives, including the effort to risk-inform 10 CFR part 50. Further, with successive application of the guidelines, it is anticipated that the staff will be able to reassess the utility of the guidelines such that they will evolve and improve over time.

The following proposed guidelines are designed such that they can be applied in the reactor, materials, and waste arenas. The nature of the regulated activity would determine which guidelines apply and the extent of the application.

The NRC will apply the following guidelines (which are based on the four attributes in the White Paper) to assess whether a more performance-based approach is viable for any given new regulatory initiative. This assessment would be applied on a case-by-case basis and would be based on an integrated consideration of the individual guidelines. The guidelines are listed below:

A. Measurable (or calculable) parameters to monitor acceptable plant and licensee performance exist or can be developed.

a. For regulatory application, a parameter measured directly is preferred, although a calculation may also be acceptable; it should also be directly related to the safety objective of the regulatory activity being considered. For example, the sub-cooling margin available in the reactor coolant must be calculated from the coolant's pressure and temperature, which are monitored directly.

b. Preferable parameters are those which licensees can readily access, or are currently accessing, in real time. For example, monitoring of radiological effluents at some facilities is done in real time. However, parameters monitored periodically to address postulated or design basis conditions, such as monitoring occupational radiological doses, may also be used.

B. Objective criteria to assess performance exist or can be developed. Objective criteria are established based on risk insights, deterministic analyses and/or performance history.

C. Licensees would have flexibility in meeting the established performance criteria when a performance-based approach is adopted. Programs and processes used to achieve the established performance criteria would be at the licensee's discretion.

D. A framework exists or can be developed such that performance criteria, if not met, will not result in an immediate safety concern.

a. A sufficient safety margin exists.

b. Time is available for taking corrective action to avoid the safety concern.

c. The licensee is capable of detecting and correcting performance degradation.

If a more performance-based approach is deemed to be viable based on the guidelines in (I) above, then the regulatory activity would be evaluated against the following set of guidelines to determine whether, on balance, after an integrated consideration of these guidelines, there are opportunities for regulatory improvement:

A. Maintain safety, protect the environment and the common defense and security. The level of conservatism and uncertainty in the supporting analyses would be assessed to ensure adequate safety margins.

B. Increase public confidence. An assessment would be made to determine if the emphasis on results and objective criteria (characteristics of a performance-based approach) can increase public confidence.

C. Increase effectiveness, efficiency and realism of the NRC activities and decision-making.

D. Reduce unnecessary regulatory burden.

E. A reasonable test shows an overall net benefit results from moving to a performance-based approach.

a. A reasonable test would begin with a qualitative approach to evaluate whether there is merit in changing the existing regulatory framework. When this question is approached from the perspective of existing practices in a mature industry, stakeholder support for change may need to be obtained.

b. If stakeholder input indicates that a change in regulatory practice is likely to be expensive, a much closer examination of the benefits would be warranted before such a change is pursued.

c. A simplified definition of the overall net benefit (such as net reduction in worker radiation exposure) may be appropriate for weighing the immediate implications of a proposed change.

F. The performance-based approach can be incorporated into the regulatory framework.

a. The regulatory framework includes the regulation in the Code of Federal Regulations, the associated Regulatory Guide, NUREG, Standard Review Plan, Technical Specification, or inspection guidance.

b. A feasible performance-based approach would be one which can be directed specifically at changing one, some, or all of these components.

G. The performance-based approach would accommodate new technology.

a. The incentive to consider a performance-based approach may arise from development of new technologies (such as advanced non-destructive evaluation techniques) as well as difficulty stemming from technological changes in finding spare components and parts.

b. Advanced technologies may provide more economical solutions to a regulatory issue, justifying consideration of a performance-based approach.

A. A proposed change to a more performance-based approach is consistent and coherent with other overriding goals, principles and approaches involving the NRC's regulatory process.

a. The main sources of these principles are the Principles of Good Regulation, the Probabilistic Risk Assessment (PRA) Policy Statement, the Regulatory Guide 1.174, “An Approach for Using PRA in Risk-Informed Decisions on Plant-Specific Changes to the Licensing Basis,” and the NRC's Strategic Plan.

b. Consistent with the high-level at which the guidance described above has been articulated, specific factors which need to be addressed in each case (such as defense in depth and treatment of uncertainties) would depend on the particular regulatory issues involved.

The staff's proposed high-level guidelines reflect a measure of specificity designed to stimulate reactions, concerns, and views on the more detailed consideration or underpinnings of a set of high-level guidelines. In no way should this specificity be construed as an indication that the NRC has established any firm position regarding these guidelines. The NRC invites advice and recommendations from all interested persons on all aspects of its proposal. In addition, comments and supporting reasons are particularly requested in the following areas:

(1) Clarity and specificity of the guidelines;

a. Are the proposed guidelines appropriate and clear?

b. Are there additional guidelines that would improve clarity and specificity?

c. How does the “high-level” nature of the guidelines affect the clarity and specificity of the guidelines?

(2) Implementation of the guidelines;

a. What guidelines, if any, are mandatory for an activity to qualify as a performance-based initiative?

b. What is the best way to implement these guidelines?

c. How should the Backfit Rule apply to the implementation of performance-based approaches?

d. Should these guidelines be applied to all types of activity, e.g., should they be applied to petitions for rulemaking?

e. Should these guidelines only be applied to new regulatory initiatives?

f. Will these guidelines be effective in determining whether we can make a regulatory initiative more performance-based? The staff proposes that these guidelines be added to our Management Directives such that whenever the NRC is involved in a rulemaking, or changing a regulatory guide or branch technical position, etc., we will consider the option of making it more performance-based.

(3) Establishment of objective performance criteria;

a. In moving to performance-based requirements, should the current level of conservatism be maintained or should introduction of more realism be attempted?

b. What level of conservatism (safety margin) needs to be built into a performance criterion to avoid facing an immediate safety concern if the criterion is not met?

c. Recognizing that performance criteria can be set at different levels in a hierarchy (e.g., component, train, system, release, dose), on what basis is an appropriate level in the hierarchy selected for setting performance-based requirements, and what is the appropriate level of conservatism for each tier in the hierarchy?

d. Who would be responsible for proposing and justifying the acceptance limits and adequacy of objective criteria?

e. What are examples of performance-based objectives that are not amenable to risk analyses such as PRA or Integrated Safety Assessment?

f. In the context of risk-informed regulation, to what extent should performance criteria account for potential risk from beyond-design-basis accidents (i.e., severe accidents)?

(4) Identification and use of measurable (or calculable) parameters;

a. How and by whom are performance parameters to be determined?

b. How do you decide what a relevant performance parameter is?

c. How much uncertainty can be tolerated in the measurable or calculated parameters?

(5) Pilot projects;

a. Would undertaking pilot projects in the reactor, materials, and waste arenas provide beneficial experience before finalizing the guidelines?

b. What should be the relationship between any such pilot projects and those being implemented to risk-inform the regulations?

The Department published a Supplemental Advance Notice of Proposed Rulemaking on November 24, 1999, entitled “Energy Conservation Program for Consumer Products: Energy Conservation Standards for Central Air Conditioners and Heat Pumps.” The notice announced a 75-day comment period, ending on February 7, 2000. At the December public workshop on the ANOPR, it was recommended the Department conduct additional analysis to examine the sensitivity of the Life Cycle Cost (LCC) results to a number of the underlying assumptions. DOE performed some of the requested sensitivity analyses and, on January 14, 2000, e-mailed the results to all workshop attendees who had provided an e-mail address. On January 20, 2000, the Department posted the results of the supplemental LCC sensitivity analysis to the DOE web site identified above under ADDRESSES .

In a letter dated January 28, 2000, ARI requested an extension of the comment period in order to allow members to evaluate the supplemental information and to respond to the Department's request for comments. In addition, the CEC also requested an extension of the comment period.

Because interested parties need adequate time to review the recently released LCC sensitivity analyses, we are re-opening the comment period until Monday, February 28, 2000. For those parties that plan to submit comments during this period, we ask that they make known to us the extent and nature of their comments they intend to submit, by either phone or E-mail to the address above, as soon as possible. This will enable us to plan for any additional data collection or analyses which may be necessary to resolve the comments. We hope that this re-opening will permit a more comprehensive review and commentary preparation for the supplemental LCC sensitivity results.

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this notice must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-06-AD.” The postcard will be date stamped and returned to the commenter.

Any person may obtain a copy of this NPRM by submitting a request to the FAA, Transport Airplane Directorate, ANM-114, Attention: Rules Docket No. 2000-NM-06-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

The Rijksluchtvaartdienst (RLD), which is the airworthiness authority for the Netherlands, notified the FAA that an unsafe condition may exist on certain Fokker Model F27 Mark 050, 100, 200, 300, 400, 500, 600, and 700 series airplanes, and Model F28 Mark 0070, 0100, 1000, 2000, 3000, and 4000 series airplanes. The RLD advises that it has received a report indicating that, while bending forward during cockpit preparation, the pilot pulled the shoulder harness completely out of the reel mechanism. The co-pilot's shoulder harness was found in a similar condition. This incident occurred four flights after the affected shoulder harnesses were replaced during maintenance. Investigation revealed that the shoulder harnesses had been incorrectly attached into the reel mechanism. Such incorrect attachment, if not corrected, could result in injury to the flight crew during turbulent flight conditions or during emergency landing conditions.

The manufacturer has issued Fokker Service Bulletins SBF50-25-051 (for Model F27 Mark 050 series airplanes); SBF27/25-65 (for Model F27 Mark 100, 200, 300, 400, 500, 600, and 700 series airplanes); SBF100-25-088 (for Model F28 0070 and 0100 series airplanes); and SBF28/25-103 (for Model F.28 1000, 2000, 3000, and 4000 series airplanes); each dated October 14, 1999. These service bulletins describe procedures for a functional test (also referred to as an inspection and a functional check) to verify correct installation of the shoulder harnesses of the pilot's and co-pilot's seats, and replacement of an incorrectly installed shoulder harness assembly with a new or serviceable shoulder harness assembly. The RLD classified these service bulletins as mandatory and issued Dutch airworthiness directive 1999-139 (A), dated October 29, 1999, in order to assure the continued airworthiness of these airplanes in the Netherlands.

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

Since an unsafe condition has been identified that is likely to exist or develop on other airplanes of the same type design registered in the United States, the proposed AD would require a one-time functional test to verify correct installation of the shoulder harnesses of the pilot's and co-pilot's seats and replacement of an incorrectly installed shoulder harness assembly with a new or serviceable shoulder harness assembly. The actions would be required to be accomplished in accordance with the applicable service bulletin described previously.

The FAA estimates that 191 airplanes of U.S. registry would be affected by this proposed AD, that it would take approximately 1 work hour per airplane to accomplish the proposed functional test, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of the functional test proposed by this AD on U.S. operators is estimated to be $11,460, or $60 per airplane.

The cost impact figure discussed above is based on assumptions that no operator has yet accomplished any of the proposed requirements of this AD action, and that no operator would accomplish those actions in the future if this AD were not adopted.

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

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

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

Following is a discussion of substantive changes contained in this proposed rule. The proposed rule is written in plain language in accordance with the Presidential Memorandum of June 1, 1998, Plain Language in Government Writing. Additional nonsubstantive changes, such as updated addresses, have been made throughout this proposed rule.

We are reorganizing Subpart A to include general information that is found in the current § 1260.1, including definitions for systematic review and mandatory review, and sections on the purpose, scope, and authority of this regulation. Executive Order 12958 changes the timeline for systematic review from 30 years to 25 years, and it also requires that agencies retain the responsibility for systematic review for older records; however, they may delegate declassification authority to NARA by providing declassification guidance to NARA. This redefinition of responsibilities is reflected in the proposed § 1260.20, which is a change to the existing § 1260.2(c) that gave NARA declassification responsibility for records more than 30 years old. The proposed §§ 1260.22 and 1260.26 detail declassification responsibilities for White House originated information and intelligence and cryptography information. The responsibilities in these proposed sections are unchanged from the responsibilities outlined in the existing § 1260.2. The proposed § 1260.24 assigns declassification responsibility for foreign government information to the agency that received the information regardless of the age of the information. This is a change from the existing § 1260.2(b) and (c) that gave NARA the responsibility for declassification review of foreign government information that is more than 30 years old.

Subpart C is retitled “Systematic Review.” The proposed § 1260.40 stipulates that NARA will review for declassification under systematic review all records in its holdings that are over 25 years old. However, the originating agencies may choose to review these records themselves by sending personnel to the NARA facility in which the records are located to conduct the review. The proposed § 1260.42 outlines the rules for agencies that wish to send personnel to a NARA facility to conduct a systematic declassification review. Agency reviewers must abide by NARA security regulations and procedures for handling archival materials. Agency reviewers also must obtain approval from NARA before using scanners, microfilm readers or other equipment to copy or read original records. The proposed § 1260.44 explains procedures for NARA to loan original records back to agencies for declassification review if agency reviewers cannot work at a NARA facility. NARA will inspect areas in which loaned records are to be stored and reviewed to ensure that the records are maintained in archivally acceptable conditions and that the areas meet the standards for the storage and handling of national security-classified materials. The requesting agencies must abide by NARA procedures for handling and preserving original records.

The proposed § 1260.50, which consists of the current §§ 1260.10 and 1260.30, details NARA's responsibilities for handling mandatory review requests for Executive branch records. NARA will refer copies of records in its possession that are less than 25 years old back to the originating agencies for declassification review. Agencies may also send agency reviewers to NARA to review records on-site. The agency responsibilities and the appellate process under mandatory review in the proposed §§ 1260.52 and 1260.54 are essentially unchanged from the existing §§ 1260.12 and 1260.32. The proposed § 1260.58, which contains portions of the existing §§ 1260.42 and 1260.50, discusses how NARA will handle mandatory review requests for White House originated information.

Procedures for reclassifying records are moved to the proposed Subpart E, and encompass the existing §§ 1260.70 through 1260.74. These regulations are essentially unchanged, except that we include a provision in the proposed § 1260.74 that states that NARA will notify the requesting agency if NARA appeals a reclassification request to ISOO.

This proposed rule is not a significant regulatory action for the purposes of Executive Order 12866. As required by the Regulatory Flexibility Act, it is hereby certified that this proposed rule will not have a significant impact on a substantial number of small entities because it applies to Federal agencies.

For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication.

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

This document concerns revisions to SCAQMD Rule 403, Fugitive Dust, and Rule 1186, PM10 Emissions from Paved and Unpaved Roads and Livestock Operations. The SCAQMD adopted the revisions on December 11, 1998, and the California Air Resources Board submitted the rules to EPA on May 13, 1999. For further information, please see the direct final action located in the Rules section of this Federal Register .

Throughout this document whenever “we, us, or our” is used, we mean EPA. This section provides additional information by addressing the following questions:

Section 110 of the CAA requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards (NAAQS) established by EPA. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to EPA for approval and incorporation into the Federally enforceable SIP.

Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to EPA for inclusion into the SIP. EPA must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by EPA.

All state regulations and supporting information approved by EPA under section 110 of the CAA are incorporated into the Federally approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that EPA has approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, EPA is authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in the CAA.

Ozone, the main ingredient of smog, presents a serious air quality problem in many parts of the United States. Even at low levels, ozone can cause a number of respiratory effects. It is formed when pollutants emitted by cars, power plants, chemical plants, and other sources react chemically in the presence of sunlight. It is of most concern during the summer months when weather conditions needed to form ozone normally occur. To protect the public against the harmful effects of ozone, EPA is required to establish NAAQS. These standards specify levels of air quality that are requisite to the protection of public health and welfare. When these standards are violated, EPA may designate certain areas as “nonattainment.”

The St. Louis area was designated nonattainment for ozone in 1978. On November 6, 1991, EPA promulgated a regulation which classified the St. Louis area as a moderate ozone nonattainment area based on its design value of 0.138 parts per million. The nonattainment area consists of Madison, Monroe, and St. Clair counties in Illinois; and Franklin, Jefferson, St. Charles, and St. Louis counties and St. Louis city in Missouri.

Section 182(b)(1)(A) of the Act requires that each state in which all or part of a moderate ozone nonattainment area is located submit, by November 15, 1993, a SIP revision providing for a 15 percent reduction in emissions of volatile organic compounds (VOC) by November 15, 1996. These plans are commonly referred to as ROPPs. The required 15 percent reduction is to be measured from calendar year 1990 baseline emissions and be “net” of any growth in VOC emissions that occurs in the nonattainment area between November 15, 1990, and November 15, 1996. In other words, VOC emissions must be reduced by 15 percent of 1990 baseline levels, and any increase in VOC emissions beyond the baseline must be offset through further reductions. Most reductions are creditable toward the 15 percent reduction requirement, with the exception of reductions achieved by the Federal Motor Vehicle Control Program (FMVCP) promulgated prior to 1990; reductions from requirements to lower the Reid Vapor Pressure (RVP) of gasoline promulgated prior to 1990 or required under section 211(h) of the Act which restricts gasoline RVP; reductions from corrections to an existing vehicle inspection and maintenance (I/M) program; and reductions from corrections to reasonably available control technology (RACT) rules.

Missouri's first administratively complete ROPP was submitted to EPA in 1995. On March 18, 1996, we proposed a limited approval and limited disapproval of Missouri's ROPP (61 FR 10968). In general, EPA proposed approval of the stationary source control rules on which the state relied for a portion of the required VOC reductions. The primary reason for the proposed limited disapproval at that time was the lack of funding for the I/M program which is a critical part of the ROPP. In the same notice, we also proposed to conditionally approve the state's municipal solid waste landfill and clean up solvent rules, two components of the ROPP. On July 2, 1997, we issued a subsequent proposal to approve Missouri's landfill and gasoline RVP rules as they had been appropriately revised. Final action on all but one (10 CSR 10-5.220 relating to gasoline storage, loading, and transfer) of the stationary source regulations contained in the 1995 version of the ROPP, which are also utilized in the ROPP which is the subject of this proposal, will be taken in a separate rulemaking. We must issue a new proposal on rule 10 CSR 10-5.220, as it has been substantially revised.

We are not taking final action on rule 10 CSR 10-5.443, “Control of Gasoline Reid Vapor Pressure.” Since the March 18, 1996 proposal, the Missouri portion of the St. Louis ozone nonattainment area has become subject to the requirements of the Federal reformulated gasoline (RFG) program, and the state has substituted the RFG reductions for those achieved by the RVP rule. The state intends to rescind the St. Louis RVP rule.

On November 12, 1999, Missouri submitted a revised ROPP which is significantly different from the previous version. As such, it would not be appropriate to take final action on portions of the previous plan which have been superceded by the current plan. Therefore, EPA is initiating rulemaking on the revised ROPP with the publication of today's proposal. EPA's action on the ROPP is limited to rule 10 CSR 10-5.300 and the estimated reductions from all control measures. EPA is publishing separate rulemakings on the other rules which form the basis for the state's ROPP. This document provides an overview of the calculations which determine the target level of VOC emissions, the amount by which VOC emissions must be reduced to meet the emissions target, the control measures Missouri has selected to achieve the required reductions, and our rationale for the proposed approval of the state's overall plan. For a more detailed assessment of the ROPP, the reader is referred to our Technical support document (TSD), a copy of which can be found in the docket.

Calculating the 1996 target level of VOC emissions and the total reductions necessary to achieve the target level involves applying a step-by-step procedure set forth in the EPA document, “Guidance on the Adjusted Base Year Emissions Inventory and the 1996 Target for the 15 percent Rate of Progress Plan.” Missouri has correctly applied the specified procedure and has determined that the target level of VOC emissions is 265.11 tons per day (TPD). Emissions reductions of 64.65 TPD are necessary to achieve the target. A detailed review of the calculations can be found in the TSD.

The Missouri Department of Natural Resources (MDNR) reviewed a broad range of potential VOC control options for inclusion in the St. Louis ROPP. The final control measures were selected based on several considerations including the number and size of potentially impacted facilities. The control measures selected were those that: (1) Were being proposed at the federal level; (2) achieved the largest VOC emissions reductions with the least lead time; (3) were judged to be most cost effective in terms of dollars spent per ton of emissions reductions achieved; and (4) could be most efficiently enforced.

The final 15% Plan control measures and associated emission reduction credits are summarized in the table below. Note that the listed reductions associated with I/M and RFG are approximations. The MOBILE model does not lend itself to isolating the credit from individual control programs when multiple programs are simulated because their effects are synergistic. A subsequent table will consider the mobile source controls in total and show that when combined with the remaining controls measures, the state will meet its VOC emissions target of 265.11 TPD.

Section 182(a)(2)(A) of the Act requires states to make corrections to their RACT rules to make up for deficiencies (e.g., improper exemptions) in existing SIPs. The emissions reductions associated with corrections accounting for missing rules, incorrect emission limits, or required capture systems are not creditable towards the 15 percent reduction requirements of the Act; however, the amount of emissions reductions from such corrections must still be quantified as they are a part of the total required reductions. What follows is a discussion regarding Missouri's RACT fix-ups and the associated emissions reductions.

Rolling lubricant is used to lubricate aluminum foil as it passes through the mill. The lubricant helps to evenly distribute heat generated by the rolling process and ensures the final product is of uniform thickness. During the process, the rolling lubricant is volatilized and emitted to the atmosphere. Prior to 1989, EPA did not consider such rolling lubricants to be VOC because of their low vapor pressure. In 1989, EPA revised its definition of VOC, removing the exemption for low vapor pressure organics.

Alumax Foils Inc., located within the city of St. Louis, emits approximately 12.5 TPD of VOCs during the production of aluminum foil. Prior to the change in the definition of VOC, the facility was not considered a large source of VOC emissions. Under the new definition, Alumax is a major source of VOCs as defined in the CAA and is therefore subject to the RACT provisions of the Act. MDNR developed a rule for aluminum foil rolling, 10 CSR 10-5.451, “Control of Emissions from Aluminum Foil Rolling.” In addition to addressing the RACT requirements for such facilities, the rule also requires more stringent controls for large aluminum foil rolling mills. The rule was adopted by the MACC, after proper notice and public hearing, on June 29, 1995, and became effective November 30, 1995.

We concur with Missouri's estimate that the RACT portion of the rule will achieve VOC reductions of 0.30 TPD through the use of low vapor pressure rolling lubricant and enhanced recordkeeping and operating procedures. We also concur with the state's estimate that the rule's increased stringency will result in additional VOC reductions of 3.0 TPD.

During 1993, MDNR determined that Continental Baking Company was a major source that was previously unregulated with respect to RACT as required by the CAA. In response, MDNR has promulgated a regulation that will control the VOC emissions from this bakery to RACT levels. The rule, 10 CSR 10-5.440, “Control of Emissions from Bakery Ovens,” was effective May 28, 1995. A subsequent amendment became effective December 30, 1996. The rule will require the facility to install a control device to achieve an overall VOC emission reduction of 98 percent from its baking ovens. The VOC emissions reductions achieved by this regulation amount to 0.20 TPD.

Offset lithography is a planographic method of printing, i.e., the printing and nonprinting areas are essentially in the same plane on the surface of a thin metal printing plate. The distinction between the two areas is maintained chemically. The image area is rendered water repellent, and the nonimage area is rendered water receptive. The printing substrate is either fed in a web (continuous roll) or a sheet-fed system. VOCs are emitted from several sources involved in this type of operation. Inks, fountain solutions (alcohol solutions), and cleanup solvents are the primary sources of VOC.

The offset lithography rule will result in a reduction of 0.80 TPD of VOC emissions. A reduction of this magnitude represents approximately a 57 percent decrease in emissions from major point sources within this industrial sector after including adjustments for rule effectiveness. The regulation will limit fountain solution alcohol usage, require the use of low VOC or low vapor pressure cleanup solvents, and require add-on control equipment for heatset web offset presses with actual VOC emissions greater than 10 tons per year (TPY). The control measures in the rule were derived from a draft control technique guideline document developed by EPA.

This new rule, 10 CSR 10-5.530, “Control of Volatile Organic Compound Emissions From Wood Furniture Manufacturing Operations,” limits the VOC emissions from wood furniture manufacturing operations. The rule applies to all wood furniture manufacturing installations in the St. Louis nonattainment area that have the potential to emit (VOC) in quantities equal to or greater than 25 TPY. The national emissions standards for hazardous air pollutants (NESHAP) requirements were considered in establishing RACT control levels. The emission limits are based on two referenced control technologies: waterborne topcoats, and higher-solids sealers and topcoats. VOC emissions from affected facilities are expected to be reduced by 0.06 TPD.

A public hearing on this regulation was held on September 23, 1999, and it was adopted by the MACC on October 28, 1999. It will be effective on February 29, 2000.

Rule 10 CSR 10-5.540, “Control of Emissions from Batch Process Operations,” limits emissions of VOC from batch process operations. The rule regulates all batch process operations that have a potential to emit greater than or equal to 100 TPY of VOC. The control requirements in this rule shall apply to process vents associated with batch operations at sources falling into seven specific standard industrial classification codes. The control requirements will not apply to certain single unit operations and batch process trains that are considered to be de minimis. However, these single unit operations and batch process trains will be required to follow the recordkeeping and reporting requirements listed in the rule. The rule establishes formulas for determining applicability and test methods for determining compliance. The VOC emission reduction estimates are based on EPA guidance documents. Assuming a 20 percent VOC reduction from affected sources, total VOC reductions amount to 0.05 TPD.

A public hearing regarding this regulation was held on September 23, 1999, and it was adopted by the MACC on October 28, 1999. It will be effective on February 29, 2000.

Rule 10 CSR 10-5.550, “Control of Volatile Organic Compound Emissions from Reactor Processes and Distillation Operations Processes in the Synthetic Organic Chemical Manufacturing Industry,” requires RACT for control of VOC emissions from any vent stream originating from a process unit in which a reactor process or distillation operation is located. The rules requirements are consistent with those established in EPA's “Control Techniques Guideline (CTG) for Control of Volatile Organic Compound Emissions from Reactor Processes and Distillation Operations Processes in the SOCMI Industry” (EPA-450/4-91-031), published in August 1993. VOC reductions from the affected sources are estimated to be 0.28 TPD based upon information provided by the affected sources as part of the annual requirement to submit completed Emission Inventory Questionnaires to the state.

A public hearing on this regulation was held on September 23, 1999, and it was adopted by the MACC on October 28, 1999. It will be effective on February 29, 2000.

Rule 10 CSR 10-5.500, “Control of Emissions from Volatile Organic Liquid Storage,” limits the VOC emissions from installations with VOL storage vessels. More specifically, this rule shall apply to all storage containers of VOL with a maximum true vapor pressure of one-half pound per square inch or greater in any stationary tank, reservoir, or other container of forty thousand gallon capacity or greater, with certain exceptions. Certain control equipment will be required, e.g., internal floating roofs, door and vent gaskets, pressurized tanks, and closed vent systems to control VOC vapors. Different levels of control will be required based on the vapor pressure of the stored fluid and the tank storage capacity. The rule also includes recordkeeping and reporting requirements. Assuming a 5 percent VOC reduction from affected sources, total VOC reductions from this rule are minimal at 0.05 pounds per day.

A public hearing regarding this regulation was held on September 23, 1999, and it was adopted by the MACC on October 28, 1999. It will be effective on February 29, 2000.

Rule 10 CSR 10-5.295, “Control of Emissions from Aerospace Manufacture and Rework Facilities,” establishes VOC limits for coatings and solvents used in manufacturing and/or repairing aerospace vehicles and/or components. The RACT requirements as established in this rule are consistent with the control technology recommended in EPA's “Control Techniques Guideline (CTG) for Control of Volatile Organic Compound Emissions from Coating Operations at Aerospace Manufacturing and Rework Operations” (EPA-453/R-97/04), published in December 1997. It is not anticipated that the rule will result in any VOC reductions beyond those achieved by 40 CFR Part 63, Subpart GG, National Emission Standard for Aerospace Manufacture and Rework Facilities, with which the affected facilities must comply.

A public hearing on this regulation was held on September 23, 1999, and it was adopted by the MACC on October 28, 1999. It will be effective on February 29, 2000.

Rule 10 CSR 10-5.520, “Control of Emissions from Existing Major Sources,” requires any facility in the St. Louis ozone nonattainment area that is a major source for VOC and is not affected by an industry or source specific RACT regulation to conduct a study of the available control technologies and submit a RACT control proposal to the state. The rule outlines the requirements of the RACT study and the time frame for both submittal and implementation of RACT measures identified through the study. This rule is estimated to reduce VOC emissions by 237 TPY or 0.65 TPD. However, Missouri has applied only 0.58 TPD towards the total required reductions.

A public hearing on this regulation was held on September 23, 1999, and it was adopted by the MACC on October 28, 1999. It will be effective on February 29, 2000.

Corrections to I/M programs are necessary when either: (1) the area's I/M program does not achieve the emission reductions required by EPA's minimum criteria, or (2) the area's program does not meet the standards of its current SIP. The “basic I/M program” currently employed in St. Louis was found to be deficient in meeting several EPA requirements. Problems that EPA cited included: improper testing rates, weak document control and security measures, lack of penalties for illegal inspections, faulty waiver procedures, inadequate data collection and analysis, and no method of determining the motorist compliance rate. Missouri must, at a minimum, correct the identified deficiencies. Any emissions reductions achieved through program corrections are not creditable toward the CAA's 15 percent VOC reduction requirement. Missouri estimates and EPA concurs that the noncreditable VOC reductions attributable to I/M program corrections are 1.58 TPD.

Section 182 of the CAA requires states with moderate ozone nonattainment areas to implement at least a basic I/M program. Missouri will replace the present decentralized “basic I/M program” with a centralized, test-only I/M program. The emissions reductions achieved by the new program will substantially exceed those achievable through implementation of a basic program.

The program will consist of 12 “inspection only” stations. An operating contractor, Environmental Systems Products-Missouri, Inc., will run the emission inspection stations. All vehicles, model year 1971 and newer, registered in St. Charles, Jefferson, and St. Louis counties, and the city of St. Louis are required to be emission inspected. Several types of vehicles will be exempted. These vehicles include pre-1971 model year vehicles, diesel vehicles, alternatively fueled vehicles, motorcycles, motortricycles, agricultural vehicles, and vehicles with a gross vehicle weight rating greater than 8,500 pounds. Model year vehicles 1971 through 1980 will be subject to an idle test. Model year vehicles 1981 and later will be subject to an IM240 test. IM240 is a transient emissions test that requires the subject vehicle to be placed on a dynamometer and put through a driving cycle that involves acceleration and deceleration of the vehicle on a predetermined drive trace. All 1996 and newer vehicles will be subject to a fault code check of the On-Board-Diagnostic system beginning January 1, 2001. A pressure test and purge test will also be required on 1981 and later model year vehicles. The pressure test will consist of only a gas cap check. Vehicle owners whose vehicle fails any portion of the emission inspection will be required to have emissions-related repairs or adjustments made to the vehicle. The vehicle must then pass a subsequent retest. If the vehicle is unable to pass a retest after the owner has incurred emissions-related repair costs a waiver may be granted. The operation of the centralized, test-only I/M program will begin in April 2000.

The reductions associated with the centralized, test-only I/M program are a critical part of the ROPP. MDNR has estimated that 19.82 TPD of VOC emission can be eliminated in the ozone nonattainment area through the implementation of the program. This accounts for over 32 percent of the total 15 percent requirement. MDNR has correctly accounted for the I/M program in the mobile source emissions modeling. The appropriate estimates of vehicle miles traveled were then applied to the mobile source emission factors. The state assumed the I/M program was implemented in 1996 to avoid including reductions associated with fleet turn over which occurred after 1996.

Note that this rulemaking only addresses the state's estimates of the reductions achieved by the I/M program as they relate to the ROPP. EPA is acting on the state's I/M submission, including rule 10 CSR 10-5.380, through a separate rulemaking which will specifically address the program's adherence to the Federal I/M regulations.

MDNR has determined that a fuel control strategy is necessary to meet the overall 15% ROPP requirement. Accordingly, MDNR asked the Governor to opt in to the RFG program for the St. Louis ozone nonattainment area.

On June 15 and 16, 1998, a St. Louis Fuels Summit was held at the University of Missouri-St. Louis to discuss fuel control options that would improve air quality in the St. Louis ozone nonattainment area. On July 10, 1998, based on the summit proceedings and further investigation of the issues, Governor Carnahan invoked section 211(k)(6) of the CAA by submitting a letter to EPA requesting that the Missouri portion of the St. Louis ozone nonattainment area be subject to the provisions of the Federal RFG program beginning June 1, 1999.

The final Federal rule (64 FR 10366) triggering the applicability of the Federal RFG regulations was printed in the Federal Register on March 3, 1999, and became effective on April 4, 1999. Consistent with the Governor's request, the sale of conventional gasoline was prohibited beginning June 1, 1999. For a detailed chronology of events leading to the implementation of the RFG program in St. Louis, the reader is referred to our TSD.

Missouri estimates that implementation of the RFG program will reduce VOC emissions in the Missouri portion of the nonattainment area by 12.46 TPD. MDNR has correctly accounted for the RFG program in the mobile source emissions modeling. The MOBILE5b input files can be found in Appendix #12 of the ROPP.

It is important to note that in the ROPP, Missouri accounted only for reductions associated with phase I of the RFG program. Phase I officially ended on December 31, 1999. Phase II of the program officially began on January 1, 2000. Phase II is expected to reduce VOC emissions by an additional 27 percent (across all areas where RFG is required). According to an October, 15, 1999, EPA document titled “Estimated Emission Reduction Benefits of RFG Program, 1999-2000,” EPA estimates that as of January 1, 2000, VOC emissions will be reduced by 3.83 TPD beyond those reductions accounted for in Missouri's ROPP.

The RFG program provides exhaust and evaporative emission reductions from nonroad VOC sources. According to an August 18, 1993, technical memorandum concerning “VOC Emission Benefits from Nonroad Equipment with the use of Federal Phase I Reformulated Gasoline,” issued by Phil Lorang, director, Emission Planning and Strategies Division, Office of Mobile Sources, nonroad exhaust VOC emissions will be reduced by 3.3 percent and nonroad evaporative VOC emissions will be reduced by 3.2 percent with the use of Phase I RFG relative to the adjusted base year inventory. Total nonroad VOC emissions are 64.3 TPD; therefore, Phase I RFG will provide total (exhaust and evaporative) VOC emission reductions of 2.62 TPD from nonroad sources.

One of the requirements of the CAA is that states consider transportation planning activities when developing their SIPs. TCMs can effectively provide for some VOC emissions reductions. Section 174 of the CAA gives the major responsibility for the evaluation, selection, and implementation of TCMs to local officials within a nonattainment area. Local control allows each nonattainment area the opportunity to develop transportation systems that reduce automobile emissions and are compatible with other local transportation goals. The state initially adopted the following TCMs:

Although it was estimated that the adopted TCMs had the potential to reduce VOC emissions by as much as 1.8 TPD, Missouri has only applied one ton per day as credit towards the 15 percent reduction requirement due to the uncertainty associated with the estimation techniques. We concur with Missouri's assessment of the creditable reductions from the above measures.

Additional TCMs are planned in the state's Transportation Improvement Program (TIP) for fiscal years 2000-2002. These TCMs include bus replacements, the addition of bike paths, transit programs, and traffic signalization improvements. The total estimated VOC reductions from these TCMs are 1.08 TPD.

Rule 10 CSR 10-5.220, “Control of Petroleum Liquid Storage, Loading, and Transfer,” requires Stage I and Stage II vapor recovery equipment for petroleum facilities in the St. Louis nonattainment area. The rule incorporates the limit imposed by the new Federal NESHAPs for Stage I which limits total organic compound emissions to 10 milligrams per liter of gasoline loaded at gasoline terminals. It also incorporates EPA's December 1991, “ Enforcement Guidance for Stage II Vehicle Refueling Control Programs .” The rule establishes permitting procedures for gasoline refueling facilities. It sets requirements for gasoline deliveries to underground storage tanks and requires that vent pipes for storage tanks be equipped with pressure vacuum valves. It also establishes an Advisory Committee to provide a forum for discussion between the regulated community and government agencies.

This regulation will result in significant improvements to the Stage I/Stage II program in the nonattainment area. The regulation coupled with an ongoing parallel effort by the three affected air pollution control agencies will provide consistent inspection and enforcement procedures for all the jurisdictions. In addition the regulation incorporates the recommendations made to Missouri by EPA. We concur with the state's estimate of the VOC emissions reductions achieved by the rule.

Rule 10 CSR 10-5.455, “Control of Emissions from Solvent Cleanup Operations,” requires large users of cleanup solvents to reduce the amount of emissions from the use of such solvents by 30 percent relative to 1990 levels. This translates to a daily VOC emissions reduction of 0.91 TPD. We concur with the state's emission reduction estimates.

Nine manufacturing plants have permanently ceased operations in the nonattainment area. All nine are listed as significant emitters of VOCs in the 1990 base year inventory. The VOC reductions from permanent plant closings total 6951 lb/day or 3.48 TPD. The individual plants and their respective 1990 VOC emissions are listed in our TSD. EPA concurs with the state's estimate of the credit associated with permanent plant closings.

This rule will reduce VOC emissions from the burning of residential wastes primarily in rural areas where open burning is still allowed. The regulation makes it illegal to burn trash or other man-made refuse. The burning of agricultural wastes from farming operations will still be allowed in areas where it is currently permitted. The burning of yard waste such as leaves will be restricted during the ozone season. It is estimated that VOC emissions will be reduced by 2.6 TPD as a result of the rule. EPA concurs with the emissions reduction credit as applied in the ROPP.

Rule 10 CSR 10-5.450, “Control of Emissions from Traffic Coatings,” limits the VOC content in paints used for traffic coating in the St. Louis nonattainment area to 150 grams of VOC per liter of paint. This limit is identical to that established in EPA's Architectural and Industrial Maintenance (AIM) Coating regulation for which the state has taken credit in the ROPP. As such, the state's rule does not generate any emissions reductions that are applicable to the rate-of-progress requirements of the CAA. Nevertheless, the state has retained the regulation as a component of the revised ROPP.

Two sources within the nonattainment area, Leonard's Metal, Inc., and Mallinckrodt Specialty Chemical Company, have reduced their VOC emissions such that they are creditable towards the rate-of-progress requirements of the Act. Leonard's Metal entered into a Consent Agreement with EPA stipulating that the company will reduce its use of trichloroethylene and methyl ethyl ketone. Mallinckrodt shut down two processes associated with the production of tannin.

As noted above, Leonard's Metal entered into a Consent Agreement with EPA. The Agreement requires that the facility reduce its emissions of methyl ethyl ketone by 50 percent and its emissions of trichloroethylene by 100 percent by 1996. To date, the facility has reduced its methyl ethyl ketone consumption by greater than 50 percent. Invoices show a decrease in usage from 13 drums (55 gallons each) to 4 drums per year. The total VOC reductions claimed from Leonard's Metal are 0.04 TPD. EPA concurs with the estimated reductions.

The permanent shutdown of certain processes resulted in 214.7 TPY in VOC reductions from Mallinckrodt; however, the company elected to bank 182.5 TPY consistent with Missouri rule 10 CSR 10-6.060, leaving 32.2 TPY or 0.10 TPD (assuming 312 days of operation) creditable towards the 15% Plan. The reductions are equivalent to 32.2 TPY or 0.10 TPD. These emissions have been permanently retired. EPA concurs with the claimed emissions reduction credit.

Six municipal solid waste landfills are located in the St. Louis area. Landfills emit VOC generated during the decomposition of solid waste. The 1990 base year inventory indicates the nonmethane VOCs emitted from these six landfills are 1.51 TPD. The MACC adopted rule 10 CSR 10-5.490, “Control of Emissions from Municipal Solid Waste Landfills,” on August 29, 1996, and the rule became effective December 30, 1996. The rule requires the use of gas collection systems which reduce VOC emissions by 98 percent. EPA concurs with the state's estimate that rule 10 CSR 10-5.490 will achieve VOC reductions of 1.48 TPD.

Section 172(c)(9) of the CAA requires states with ozone nonattainment areas classified as moderate and above, to adopt contingency measures which are to be implemented immediately if the nonattainment area fails to make reasonable further progress or to attain the NAAQS by the applicable attainment date. On February 3, 1998, after proper notice and public hearing, the MACC adopted a revision to 10 CSR 10-5.300, “Control of Emissions from Solvent Metal Cleaning.” The rule became effective on May 30, 1998, and was submitted to EPA on June 22, 1998. We found the SIP submission complete on August 31, 1998.

VOC emissions from cold cleaning operations are significant within the St. Louis ozone nonattainment area. The 1990 base year point source emissions from cold cleaning are 9.41 TPD of VOC. These VOCs are emitted from 13 different point sources. The 1990 base year area source emissions from cold cleaners are estimated at 12.62 TPD of VOC. The 1996 VOC emissions from area source cold cleaning and point source cold cleaning are 13.85 and 9.29 TPD, respectively.

Previously, this rule only required that certain operating procedures be followed. The amended rule will require solvents used in cold cleaners have a maximum vapor pressure of 2.0 mmHg at 20 degrees Celsius by September 30, 1998. By April 1, 2001, solvents used in cold cleaners cannot have a maximum vapor pressure greater than 1.0 mmHg at 20 degrees Celsius. VOC emissions reductions resulting from the rule amendments are approximately 9.0 TPD; however, Missouri has requested that only 0.64 TPD be applied to the rate-of-progress requirements. Note that EPA is not only approving the estimates of VOC reduction, but is also specifically proposing to approve the revisions to the rule in today's action on the ROPP.

As required by the CAA, EPA promulgated a Federal rule (63 FR 48848) which was later supplemented (64 FR 34997) to reduce VOC emissions from the use of AIM coatings. The Federal rule affects manufacturers, distributors, retailers, and consumers of various types of paints and coatings. Consistent with EPA guidance, Missouri has estimated that VOC emissions in the St. Louis ozone nonattainment area will be reduced by 20 percent relative to 1990 levels. This translates to VOC emissions reductions of 3.05 TPD.

The National Emission Standard for Benzene Emissions from Benzene Transfer Operations, codified at 40 CFR Part 61, subpart BB requires owners or operators of benzene production facilities and bulk terminals to install and maintain control devices which reduce benzene emissions to the atmosphere by 98 percent (by weight) by July 23, 1991. There is only one affected source within the Missouri portion of the St. Louis nonattainment area. For purposes of calculating the available credit from this source of reductions, Missouri has assumed that compliance has been achieved and that the difference in emissions reported in 1990 and 1993 is fully creditable. Emissions were reduced over that time frame by approximately 99.5 percent (0.74 TPD). Although this level of reduction may have occurred, credit for this level of reduction is not allowed. The benzene rule regulates the efficiency of the required emissions control device rather than stipulating a specific emission limitation. The appropriate level of credit should have been determined by calculating the difference between a 98 percent reduction in projected 1996 emissions and the base year emissions from this source. EPA estimates the actual available credit to be slightly higher than the state's estimate. Therefore, EPA will accept the state's claimed emission reduction credit towards the 15 percent reduction requirement.

As required by the CAA, EPA promulgated a Federal rule (63 FR 48806) limiting the VOC content of various autobody refinishing materials. Consistent with EPA guidance, Missouri has estimated that VOC emissions in the St. Louis area will be reduced by 37 percent relative to 1990 levels. Missouri estimated the VOC inventory from the autobody refinishing industry in 1990 was 2.1 TPD after conducting a detailed survey. Hence, the VOC emissions reductions from the Federal rule are approximately 0.78 TPD.

Section 202 of the CAA requires auto manufacturers to produce vehicles which will meet more stringent vehicle emission standards. These tighter standards are referred to as the “Tier I” standards (56 FR 25724, June 5, 1991). Beginning in model year 1994, passenger cars and light-duty trucks must meet these tighter emission standards. For passenger cars and light-duty trucks up to 6000 lbs., these standards will be phased in as a percentage of overall vehicle production over three years: 40 percent, 80 percent, and 100 percent of the vehicles produced in model year 1994, 1995, and 1996 and thereafter, respectively. For gasoline and diesel light-duty trucks over 6000 lbs., the standards will be phased in with 50 percent of new vehicles in model year 1996 and 100 percent in subsequent years. MDNR estimates and EPA concurs that new vehicles entering the fleet will reduce VOC emissions in the Missouri portion of the nonattainment area by 0.6 TPD.

The HON consists of four subparts setting standards for emissions of hazardous air pollutants (HAP) from the Synthetic Organic Chemical Manufacturing Industry (SOCMI) and six non-SOCMI processes. Many of the HAPs regulated by the HON are also classified as VOCs. Recognizing this overlap, EPA issued a May 6, 1993, policy memorandum from G.T. Helms, Ozone/Carbon Monoxide Programs Branch, indicating that a 5 percent reduction in VOC emissions is expected from sources complying with the HON rule. In anticipation of such reductions, states are allowed to receive 5 percent credit towards the 15 percent reduction requirements of the Act. A single source in the St. Louis nonattainment area is subject to the equipment leak provisions of the HON rule. The 1990 baseline VOC emissions from this facility were estimated at 3380.23 lbs/day during the ozone season. Applying the authorized 5 percent results in emission reduction credit of 169.01 lbs/day or 0.08 TPD.

The Federal detergent additive regulation was promulgated (59 FR 54706) on November 1, 1994. As of January 1, 1995, virtually all gasoline sold in the United States must contain detergent additives to prevent the accumulation of deposits in engines and fuel systems. Among other emissions impacts, preventing such deposits results in fewer VOC emissions from motor vehicles. According to the “Regulatory Impact Analysis and Regulatory Flexibility Analysis for the Interim Detergent Registration Program and Expected Detergent Certification Program,” generated by EPA's Office of Mobile Sources, the use of gasoline containing the required additives reduced 1996 VOC emissions by 0.7 percent. This translates to a VOC reduction of 0.72 TPD for the Missouri portion of the St. Louis nonattainment area.

Phase I of the first national program to reduce emissions from small engines was finalized in the Federal Register on August 2, 1995 (60 FR 34582). The Phase I standards take effect with model year 1997. These standards are expected to result in a reduction in VOC emissions of 32 percent after full implementation. An EPA policy memorandum (“Future Nonroad Emission Reduction Credits for Court-Ordered Nonroad Standard,” November 28, 1994) states that the new small engine standards will reduce 1996 VOC emissions from these sources by 4.5 percent.

Phase II of the program will affect both handheld and nonhandheld small engines. The Phase II standards will be phased in over model years 2002 through 2005. These standards are expected to reduce emissions of VOC and NO X by 30 percent below Phase I levels.

The emissions from small spark-ignited engines can be generally classified under “lawn and garden” equipment. The emission levels from these types of engines are significant in the St. Louis area. The small engine standards are expected to reduce VOC emissions by approximately 1.22 TPD in the St. Louis ozone nonattainment area.

Section 183(e) of the CAA required EPA to conduct a study of VOC emissions from consumer and commercial products and report the study's results to Congress. EPA was required to list for regulation those categories of products which account for at least 80 percent of all VOC emissions from consumer and commercial products in ozone nonattainment areas.

On March 15, 1995, EPA submitted its report to Congress. The regulatory schedule was published in the Federal Register on March 23, 1995. EPA promulgated the final consumer and commercial products regulation (63 FR 48819) on September 11, 1998. The regulation applies to 24 categories of household, personal care, and automotive products. For the 24 categories covered by the regulation, EPA estimates a reduction of approximately 20 percent from 1990 levels. Based on our guidance, the state has estimated that VOC emissions in the St. Louis ozone nonattainment area will be reduced by 3.27 TPD.

Section 182(b)(1) of the CAA requires all states having ozone nonattainment areas classified as moderate and above to submit a SIP by November 15, 1993, which describes how VOC emissions in each nonattainment area will be reduced by 15 percent (net of growth) during the first six years after enactment, i.e., by November 15, 1996.

A revised ROPP was adopted by the MACC on October 28, 1999, after proper notice and public hearing. The revised ROPP was submitted to EPA on November 12, 1999. The revised plan has been reviewed with respect to the requirements of the CAA and applicable EPA guidance. EPA believes the revised plan is fully approvable.

The correct procedures were utilized in establishing the 1996 target level of VOC emissions and as is illustrated by the table below, the plan includes specific control measures which have or will in the near future reduce VOC emissions to the degree necessary to meet the emissions target. While the table (as extracted from the ROPP) indicates a slight shortfall (0.04 TPD or 80 pounds per day), EPA believes no shortfall exists because rule 10 CSR 10-5.300, which EPA is proposing to approve in this rulemaking, will achieve substantially more reductions (8.36 TPD) than Missouri applied to the ROPP. In addition there are other measures, such as Phase II of the RFG program, for which the state did not take credit.

EPA recognizes that some of the control measures in the plan did not provide for the necessary reduction within the time frame prescribed by the CAA. However, EPA believes that SIPs providing for reductions after the November 15, 1996, deadline are approvable, as long as the control measures result in meeting the target level of emissions as soon as practicable. This position was affirmed in a February 12, 1997, memo from John Seitz, OAQPS Director, to the regional division directors. The memo directed the regions to “Review the SIPs to assure that they contain all measures practicable for the nonattainment area in question that will accelerate to a meaningful extent the date by which the 15 percent reductions are attained.”

Section 3.0 of Missouri's ROPP is dedicated to the evaluation of potential control measures. The state has considered an extensive list of potential control measures and has documented the measures which are not practicable based on considerations such as cost effectiveness and enforceability. Some examples of control measures that were not selected for implementation include rule effectiveness improvements, limits on VOC content of pesticides, and limits on VOC emissions from breweries. Based on reviews of the state's analysis of additional measures and lists of control measures which have been implemented in other nonattainment areas, EPA believes that there are no other measures that Missouri could have implemented that would have substantially accelerated achievement of the target level of VOC emissions. It is important to note that roughly 68 percent of the required control measures contained in Missouri's ROPP have been implemented. Implementation of the most significant outstanding control measure (I/M), which accounts for approximately 30 percent of the required VOC reduction, is scheduled to begin in April 2000. To achieve these reductions, the program will be implemented in two phases, with the second phase beginning in 2002. The state has signed a multiyear contract for operation of the program, all property has been acquired, and test facilities are under construction. EPA is not aware of other practicable measures which will result in comparable emissions reductions that can be implemented sooner than those contained in Missouri's ROPP. Therefore, EPA believes it is reasonable to propose full approval of the program.

Transportation conformity requirements are established in section 176(c) of the CAA. Nonattainment areas such as St. Louis must demonstrate that transportation plans and projects do not adversely affect air quality and therefore “conform” to the SIP.

The means of demonstrating conformity and therefore fulfilling section 176(c) is contained in 40 CFR Part 93. This rule requires a nonattainment area to identify motor vehicle emissions budgets in control strategy SIPs, like Missouri's ROPP. These budgets represent an estimate of the amount of ozone precursor motor vehicle emissions an area's transportation plan and program can generate without negatively impacting air quality. Motor vehicle emissions budgets can be used for conformity purposes once EPA finds them adequate according to the adequacy criteria in 40 CFR 93.118(e)(4).

Missouri's ROPP establishes a 1996 mobile source emissions budget for VOC of 69.48 TPD. EPA believes the established budget meets the requirement to identify a motor vehicle emissions budget as described above and believes the budget is adequate for conformity purposes. However, Missouri has established VOC and NO X budgets in its November 12, 1999, submittal of the attainment demonstration. The VOC budget in that submission is 68.73 TPD. On November 29, 1999, EPA announced that it is reviewing the adequacy of these emissions budgets for conformity purposes. EPA will determine the adequacy of Missouri's mobile source emissions budgets in the attainment demonstration in the near future. EPA expects that it will make an adequacy determination on the attainment demonstration budgets before making an adequacy determination on the ROPP budget. If EPA determines that the attainment demonstration budgets are adequate, those budgets will be used for future conformity determinations.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR section 51.102. The submittal also satisfied the completeness criteria of 40 CFR Part 51, Appendix V. In addition, as explained above and in more detail in the TSD which is part of this document, the revision meets the substantive SIP requirements of the CAA, including section 110 and Part D of Title I. The revision also conforms to the relevant EPA guidance concerning approval of ROPPs.

Based on a thorough review of Missouri's ROPP relative to the CAA and applicable guidance, we are proposing to approve Missouri rule 10 CSR 10-5.300, “Control of Emissions from Solvent Metal Cleaning,” and all of the emissions reductions listed in the ROPP. EPA is processing this as a proposed action because we are seeking comments with respect to our evaluation of Missouri's ROPP.

Conclusion: On November 12, 1999, Missouri submitted a revised ROPP. The plan established the 1996 target level of VOC emissions for the Missouri portion of the St. Louis ozone nonattainment area at 265.11 TPD. To meet the emissions target, VOC emissions must be reduced by 104.32 TPD. Of the required 104.32 TPD, 64.38 are creditable towards the rate-of-progress requirements of the CAA. Missouri achieves the required reductions through a combination of 19 state and 9 Federal control measures. With one exception (10 CSR 10.300), EPA will act on all applicable state regulations in separate rulemakings. EPA's action on the ROPP is limited to rule 10 CSR 10.300 and the estimated reductions from all control measures. EPA intends to take final action on the ROPP when it takes final action on the control measures on which the ROPP relies.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve preexisting requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this proposed rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This proposed 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by us. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally enforceable SIP.

Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by us under section 110 of the CAA are incorporated into the Federally approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgation of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in the CAA.

NO X emissions combine with volatile organic compound emissions on hot, sunny days to form ground level ozone, commonly known as smog. The purpose of the following rule is to establish RACT requirements for major sources of NO X which will reduce NO X emissions to help achieve reductions in ozone levels in the St. Louis ozone nonattainment area. The St. Louis ozone nonattainment area includes Franklin, Jefferson, St. Charles, and St. Louis counties, and St. Louis City in Missouri and Madison, St. Clair, and Monroe counties in Illinois.

The Missouri Department of Natural Resources (MDNR) submitted a NO X RACT waiver petition dated April 25, 1996. The state requested a determination by EPA under section 182(f) of the CAA that NO X RACT controls were not necessary in St. Louis for attainment of the ozone NAAQS. EPA has not acted on that request. However, in its demonstration of the attainment of the ozone standard on which EPA will act in a separate rulemaking, Missouri has determined that NO X RACT controls are needed to attain the ozone standard and the NO X RACT controls for sources in the Missouri portion of the nonattainment area are utilized in the control strategy for the attainment demonstration. Therefore, now that Missouri has determined that local NO X reductions are necessary for attainment, the NO X RACT rule has been submitted accordingly.

On July 1, 1996, Missouri submitted an earlier NO X RACT SIP. EPA has not acted on the 1996 NO X RACT SIP. The November 1999 submission supercedes the former SIP submittal.

We are proposing to approve as an amendment to the Missouri SIP, rule 10 CSR 10-5.510, Control of Emissions of Nitrogen Oxides, submitted to us on November 12, 1999. This NO X RACT rule is applicable to all sources with the potential to emit one hundred (100) tons per year or more of nitrogen oxides in the Missouri portion of the St. Louis nonattainment area. The rule establishes emission limits, work practices, monitoring, testing, recordkeeping and reporting requirements for boilers, stationary internal combustion (IC) turbines, stationary IC engines, incinerators, regenerative container melting glass furnaces, and portland cement kilns.

To provide additional flexibility, the rule allows for emissions averaging, on a monthly basis, between two or more emissions units with similar design and emissions characteristics provided that they are subject to the requirements of the rule and that they are located in the St. Louis nonattainment area.

As explained in more detail in the technical support document (TSD) for this proposal, we have reviewed the NO X controls and averaging provisions in this rule and have determined that they are consistent with relevant EPA guidance and with NO X controls approved as RACT for other states.

The rule also requires any other stationary source with the potential to emit one hundred (100) tons per year or more of NO X emissions, for which an emission limit has not been set, to complete a “case-by-case” RACT study to evaluate appropriate controls to minimize NO X emissions. This “case-by-case” analysis must be completed in accord with the procedures established in the rule for identifying all available control technologies and selecting the technology that provides the most effective, cost reasonable reduction technique. The “case-by-case” studies must be submitted to MDNR by July 1, 2000. The rule requires all “case-by-case” RACT determinations must be approved by MDNR and submitted to EPA.

Missouri has provided documentation showing that all known major NO X sources are subject to specific RACT rules, so that the “case-by-case” RACT requirements would cover sources which may become subject to NO X RACT in the future due to increases in NO X emissions.

Therefore, EPA believes that the “case-by-case” rule is consistent with EPA policy which provides that, among other reasons, EPA may fully approve a “generic” or “case-by-case” RACT rule where the state has established specific RACT limits for all known major sources and has determined that, to the best of its knowledge, there are no remaining unregulated sources (November 7, 1996, memorandum from Sally Shaver, Director, Air Quality Strategies and Standards Division, entitled “Approval Options for Generic RACT Rules Submitted to meet the Non-CTG VOC RACT Requirements and Certain NO X RACT Requirements.”)

Full approval of this generic RACT rule will not relieve sources or the state of the obligation to ensure that all sources within the regulated area comply with the RACT requirement of the CAA, by adopting and implementing emission limitations. All “case-by-case” RACT determinations must be submitted to EPA for inclusion in the Federally approved SIP to ensure that the requirements are acceptable as representing RACT and are enforceable by EPA.

Also, any remaining sources which are currently “unknown” are required to determine and comply with RACT. This requirement is enforceable by EPA and by citizen groups under section 304 of the Act. Although this rule is proposed for approval as meeting RACT, if EPA later determines that sources remain unregulated under the Federally approved SIP, EPA could issue a SIP call or, possibly, a finding of nonimplementation of the SIP.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR section 51.102. The submittal also satisfied the completeness criteria of 40 CFR Part 51, Appendix V. In addition, as explained above and in more detail in the TSD which is part of this notice, the revision meets the substantive SIP requirements of the CAA, including section 110 and Part D of Title I. The revision is also consistent with the EPA guidance, including the guidance referenced previously and the “Nitrogen Oxides Supplement to the General Preamble,” 57 FR 55620, November 25, 1992.

We are proposing to approve as an amendment to the Missouri SIP rule 10 CSR 10-5.510, Control of Emissions of Nitrogen Oxides, as meeting the requirement for NO X RACT which is applicable to the Missouri portions of the St. Louis ozone nonattainment area.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve preexisting requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this proposed rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This proposed 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

This section provides additional information by addressing the following questions:

Section 110 of the Clean Air Act (CAA) requires states to develop air pollution regulations and control strategies to ensure that state air quality meets the national ambient air quality standards established by us. These ambient standards are established under section 109 of the CAA, and they currently address six criteria pollutants. These pollutants are: carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

Each state must submit these regulations and control strategies to us for approval and incorporation into the Federally enforceable SIP.

Each Federally approved SIP protects air quality primarily by addressing air pollution at its point of origin. These SIPs can be extensive, containing state regulations or other enforceable documents and supporting information such as emission inventories, monitoring networks, and modeling demonstrations.

In order for state regulations to be incorporated into the Federally enforceable SIP, states must formally adopt the regulations and control strategies consistent with state and Federal requirements. This process generally includes a public notice, public hearing, public comment period, and a formal adoption by a state-authorized rulemaking body.

Once a state rule, regulation, or control strategy is adopted, the state submits it to us for inclusion into the SIP. We must provide public notice and seek additional public comment regarding the proposed Federal action on the state submission. If adverse comments are received, they must be addressed prior to any final Federal action by us.

All state regulations and supporting information approved by us under section 110 of the CAA are incorporated into the Federally approved SIP. Records of such SIP actions are maintained in the Code of Federal Regulations (CFR) at Title 40, Part 52, entitled “Approval and Promulgations of Implementation Plans.” The actual state regulations which are approved are not reproduced in their entirety in the CFR outright but are “incorporated by reference,” which means that we have approved a given state regulation with a specific effective date.

Enforcement of the state regulation before and after it is incorporated into the Federally approved SIP is primarily a state responsibility. However, after the regulation is Federally approved, we are authorized to take enforcement action against violators. Citizens are also offered legal recourse to address violations as described in the CAA.

VOC emissions combine with nitrogen oxide emissions on hot, sunny days to form ground level ozone, commonly known as smog. The purpose of the following rules is to establish RACT requirements for major sources of VOC emissions to help reduce ozone concentrations in the St. Louis ozone nonattainment area. The St. Louis ozone nonattainment area includes Franklin, Jefferson, St. Charles, and St. Louis counties, and St. Louis City in Missouri.

We are proposing to approve as an amendment to the Missouri SIP the following rules:

Missouri has updated its existing rule 10 CSR 10-5.220 to improve the clarity of the regulation and generally strengthen the SIP. This rule restricts VOC emissions from the handling of petroleum liquids in five specific areas. These areas include petroleum storage tanks with a capacity greater than 40,000 gallons, the loading of gasoline into delivery vessels, the transfer of gasoline from delivery vessels into storage containers, gasoline delivery vessels, and the fueling of motor vehicles from storage containers.

The RACT requirements as established in this rule are equivalent with the RACT identified in several of EPA's control techniques guidelines (CTG). The CTGs provide recommended RACT levels for gasoline service stations, bulk gasoline plants, tank truck gasoline loading terminals, fixed roof tanks, floating roof tanks, and Stage II vapor recovery.

The rule contains enforceable requirements for the use of vapor loss control devices and/or vapor recovery systems for petroleum storage tanks, gasoline loading installations, gasoline transfer to gasoline storage tanks or gasoline delivery vessels and the fueling of motor vehicles, and the annual test for a leak tight condition. The rule establishes test methods for gasoline delivery vessels and fueling of motor vehicles. For the five areas where VOC emissions from the handling of petroleum liquids are restricted, the rule also specifies the recordkeeping requirements and requires records to be kept for two years.

This new rule requires all aerospace manufacture and rework facilities in the St. Louis nonattainment area, which emit greater than 25 tons per year, to use low VOC coatings and cleaning solvents.

This Missouri rule contains a list of VOC coating operations used in the aerospace manufacture and rework industry and the corresponding VOC content limit for the coating used in each operation. The rule also specifies appropriate low emission application techniques, using high transfer efficiency equipment such as: flow/curtain application, dip coat application, roll coating, brush coating, cotton-tipped swab application, electrodeposition coating, high volume low pressure spraying, and electrostatic spray application.

The RACT requirements as established in this rule are consistent with the control technology recommended in EPA's “Control Techniques Guideline (CTG) for Control of Volatile Organic Compound Emissions from Coating Operations at Aerospace Manufacturing and Rework Operations” (EPA-453/R-97/04), published in December 1997.

This rule limits the VOC emissions from installations storing large volumes of volatile organic liquids. The control requirements apply to all 40,000 gallon or larger volatile organic liquid storage containers storing liquid with a maximum true vapor pressure of one-half pound per square inch or greater.

The RACT measures defined in this rule include specifications for internal and external floating roofs and installation of a closed vent system for vapor control.

The RACT requirements as established in the rule are identical to the control options described in EPA's “Alternative Control Techniques (ACT) Document: Volatile Organic Liquid Storage in Floating and Fixed Roof Tanks” (EPA-453/R-94-001), published in January 1994. EPA believes that this document adequately identifies RACT for volatile organic liquid storage facilities.

This new rule requires major facilities that are not regulated by current category-specific RACT regulations to conduct a RACT study and implement the RACT level controls defined by the study as approved by Missouri. Major facilities are defined as having the potential to emit one hundred (100) tons per year or more of VOCs.

The RACT studies are to be submitted to the Missouri Department of Natural Resources (MDNR) for approval on or before June 1, 2000. Implementation of the RACT controls are to be completed as expeditiously as possible, but no later than September 1, 2002.

The state rule outlines the requirements of the RACT study including identification of each emission unit subject to the RACT requirement, estimates of the potential and actual emissions from each unit, a ranking of the available control options and their respective control effectiveness, evaluation of the technical feasibility of the available control options, and cost analysis criteria. Testing, monitoring, and recordkeeping and reporting procedures to demonstrate compliance are also required as part of the approved RACT controls for each proposal of RACT controls. Documents supporting the RACT proposals and implementation are required to be kept for a period of five years. The requirements for the RACT studies as defined in this rule are consistent with EPA's policy on generic RACT defined below.

As documentation for this rule, MDNR submitted a “Demonstration of De Minimis Emission for Missouri Generic Reasonably Available Control Technology (RACT) Regulations 10 CSR 10 5.510 and 10 CSR 10-5.520, November 15, 1999.” This demonstration is consistent with the EPA memo dated November 7, 1996, from Sally Shaver, Director of Air Quality Strategies and Standard Division, regarding the “Approval Options for Generic RACT Rules Submitted to meet the Non-CTG VOC RACT Requirements and Certain NO X RACT Requirements” which sets forth approval criteria for generic RACT rules.

EPA's above-referenced policy states that full approval of a generic RACT rule may be appropriate if sources accounting for most of the emissions in an area are covered by a specific RACT emission limit, and the generic rule covers only sources which, in the aggregate, represent a de minimis level of emissions. EPA has reviewed the state's demonstration and believes that Missouri has made an adequate showing that full approval of its generic rule is appropriate.

Full approval of this generic RACT rule will not relieve sources or the state of the obligation to ensure that all sources within the regulated area comply with the RACT requirement of the CAA, by adopting and implementing emission limitations. All “case by case” RACT determinations must be submitted to EPA for inclusion in the Federally approved SIP to ensure that the requirements are enforceable by EPA.

Also, although Missouri and EPA are not aware of any such sources, any remaining sources not identified in the demonstration or currently “unknown” are required to determine and comply with RACT. This requirement is enforceable by EPA and by citizen groups under section 304 of the Act. Although this rule is proposed for approval as meeting RACT, if EPA later determines that sources remain unregulated under the Federally approved SIP, EPA could issue a SIP call or, possibly, a finding of nonimplementation of the SIP.

This rule limits the VOC emissions from wood furniture manufacturing operations that have the potential to emit equal to or greater than twenty-five (25) tons per year of VOC emissions.

The RACT measures defined in this rule include limiting VOC emissions from finishing operations or installation of a control system that will achieve an equivalent reduction, and developing and maintaining work practice standards which further reduce VOC emissions. Facilities may use low VOC emissions coatings, higher solids coatings, emissions averaging, or a control device to meet the emissions limits. Control devices which meet the requirement of this rule include thermal incinerators, catalytic incinerators with a fixed or fluidized catalyst bed, and carbon adsorbers.

The RACT requirements as established in the rule are equivalent with the RACT controls recommended in EPA's “Control Techniques Guideline Series Document: Control of Volatile Organic Emissions from Wood Furniture Manufacturing Operations” (EPA-453/R-96-007), published in April 1996.

This rule establishes RACT controls to limit the VOC emissions from batch process operations. The control requirements apply to batch operation sources that have the potential to emit equal to or greater than 100 tons per year of VOC emissions and that are identified by one of seven different four digit standard industrial classification codes under the chemical manufacturing category.

RACT as established by this rule requires the installation of control devices which reduce uncontrolled VOC emissions from a single unit operation by an overall efficiency, on an annual average of at least ninety percent (90 percent), or emission limit of twenty (20) ppmv, per batch cycle. The control equipment specified in this rule to meet the VOC emission reductions include thermal or catalytic afterburners, flares, scrubbers, condensers, or carbon adsorbers.

The RACT requirements as established in the rule are consistent with the control options described in EPA's “Control of Volatile Organic Compound Emissions from Batch Processes—Alternative Control Techniques (ACT) Information Document” (EPA-453/R-93-017), published in February 1994. EPA believes this document identifies appropriate RACT levels for batch process operation emissions.

This new rule implements RACT control of VOC emissions from the synthetic organic chemical manufacturing industry (SOCMI). Specifically, this rule requires RACT for control of VOC emissions from any vent stream originating from a process unit in which a reactor process or distillation operation is located.

The control level for RACT in this rule is represented by a VOC emission reduction of 98 weight-percent or reduction to 20 ppmv dry basis, corrected to 3 percent oxygen. This level of control can be achieved by combustion through either thermal incineration or flaring.

The RACT requirements as established in the rule are consistent with the RACT control measures recommended in EPA's “Control Techniques Guideline (CTG) for Control of Volatile Organic Compound Emissions from Reactor Processes and Distillation Operations Processes in the SOCMI Industry” (EPA-450/4-91-031), published in August 1993.

These source-specific RACT rules and the generic RACT rule were submitted to ensure that all source categories addressed by a CTG or ACT and all major sources of VOC not addressed by a CTG or ACT in the St. Louis nonattainment area are subject to RACT level controls.

On November 15, 1999, MDNR submitted a letter to EPA stating that there are no existing unregulated or uncontrolled shipbuilding and ship repair operations located in the St. Louis ozone nonattainment area. In addition, on December 17, 1999, MDNR submitted an additional letter stating that there are no other known, unregulated major sources of VOC in the St. Louis nonattainment area.

These new VOC RACT rules are consistent with Federal regulations and are consistent with the appropriate EPA control techniques guidelines or alternative control techniques documents. The rules contain enforceable emission limits, appropriate compliance methods, require recordkeeping to determine compliance, and meet all applicable enforceability requirements.

The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR section 51.102. The submittal also satisfied the completeness criteria of 40 CFR Part 51, Appendix V. In addition, as explained above and in more detail in the technical support document which is part of this notice, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

We are proposing to approve as an amendment to the Missouri SIP the following rules applicable to the St. Louis nonattainment area: 10 CSR 10-5.220 Control of Petroleum Liquid Storage, Loading, and Transfer; 10 CSR 10-5.295 Control of Emissions From Aerospace Manufacture and Rework Facilities; 10 CSR 10-5.500 Control of Emissions from Volatile Organic Liquid Storage; 10 CSR 10-5.520 Control of Volatile Organic Compound Emissions From Existing Major Sources; 10 CSR 10-5.530 Control of Volatile Organic Compound Emissions From Wood Furniture Manufacturing Operations; 10 CSR 10-5.540 Control of Emissions from Batch Process Operations; 10 CSR 10-5.550 Control of Volatile Organic Compound Emissions From Reactor Processes and Distillation Operations Processes in the Synthetic Organic Chemical Manufacturing Industry

These rules will reduce VOC emissions in the St. Louis area and meet the RACT requirements of section 182(b)(2) of the Act as amended in 1990.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve preexisting requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this proposed rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This proposed 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

The CAA, as amended in 1990, requires that certain ozone nonattainment areas adopt either “basic” or “enhanced” I/M programs, depending on the severity of the problem and the population of the area. An I/M program is a way to check whether the emission control system on a vehicle is working correctly and to repair those that are not. All new passenger cars and trucks sold in the United States must meet stringent pollution standards, but they can only retain this low pollution profile if the emission controls and the engine are functioning properly. I/M is designed to ensure that vehicles stay clean in actual customer use. Through periodic vehicle checks and required repairs for vehicles which fail the test, I/M encourages proper vehicle maintenance and discourages tampering with emission control devices.

Since the CAA's inception in 1970, Congress has directed EPA to set national ambient air quality standards for common air pollutants, one of which includes ozone. Under the CAA, these standards must be set at levels that protect public health and welfare with an adequate margin of safety and without consideration of cost. These standards provide information to the American people about whether the air in their community is healthful. Also, the standards present state and local governments with the targets they must meet to achieve clean air.

Moderate ozone nonattainment areas, e.g., St. Louis, fall under the “basic” I/M requirements. However, moderate areas such as St. Louis have the option of implementing an enhanced I/M program. The State of Missouri chose to implement an I/M program containing most of the features of an “enhanced” program in St. Louis as part of its overall plan for achieving emission reductions to attain the 1-hour ozone standard.

Missouri has developed its I/M program not only to meet the requirements of section 182(b)(4) of the CAA but also to meet the reasonable further progress requirements of section 182. Section 182(b)(1) of the CAA requires states with nonattainment areas classified as moderate and above for ozone to develop a plan to reduce areawide volatile organic compound (VOC) emissions from a 1990 baseline by 15 percent. However, the Act prohibits credit toward the 15 percent reduction for correcting deficiencies in previously established basic I/M programs. Missouri decided to pursue an I/M program containing most of the features of an enhanced program to help the state meet the 15 percent plan requirements.

Section 182(a)(2)(B) of the Act directed EPA to publish updated guidance for state I/M programs, taking into consideration findings of EPA's audits and investigations of these programs. Based on these requirements, EPA promulgated I/M regulations on November 5, 1992 (57 FR 52950), and has promulgated subsequent amendments, codified in 40 Code of Federal Regulations (CFR) Part 51, Subpart S.

The Federal I/M rule establishes minimum performance standards for basic and enhanced I/M programs. The I/M regulations include the following: network type and program evaluation; adequate tools and resources; test frequency and convenience; vehicle coverage; test procedures and standards; test equipment; quality control; waivers and compliance via diagnostic inspection; motorist compliance enforcement; motorist compliance enforcement program oversight; quality assurance; enforcement against contractors, stations, and inspectors; data collection; data analysis and reporting; inspector training and licensing or certification; public information and consumer protection; improving repair effectiveness; compliance with recall notices; and on-road testing.

The performance standard for basic I/M programs remains the same as it has been since the initial I/M policy was established in 1978, pursuant to the 1977 CAA Amendments.

Although Missouri has submitted an I/M program containing most of the features of an enhanced program, EPA is proposing to act on the submittal with regard to compliance with the basic I/M requirements in section 182(b)(4) and 40 CFR Part 51, Subpart S, because those are the I/M requirements applicable to St. Louis. However, because the state has chosen to adopt an I/M program containing many features of an enhanced program so that additional emission reductions can be achieved and credit claimed as part of the 15% Rate-Of-Progress Plan and attainment demonstration, EPA's review also includes an analysis of the submission as it relates to requirements for enhanced I/M.

On January 1, 1984, the State of Missouri implemented a basic motor vehicle I/M program in the St. Louis metropolitan area. The St. Louis program is currently decentralized and is jointly administered by the Missouri State Highway Patrol (MSHP) and the Missouri Department of Natural Resources (MDNR).

EPA first audited the St. Louis, Missouri, I/M program in 1985. The audit found that the St. Louis I/M program experienced a significant shortfall in achieving the minimum required VOC emission reductions necessary for an acceptable basic I/M program. As a follow-up to the 1985 audit, EPA conducted a second audit of the St. Louis I/M program in 1987. The follow-up audit showed that the state had not made sufficient progress toward improving the program. Based on the continued low failure rate, unrepresentative reporting on the tampering rate, and an excessive waiver rate, the I/M program again failed to achieve a level of emission reduction consistent with the minimum emission reduction requirement (MERR).

Because the St. Louis I/M program did not meet the MERR, EPA requested the state to submit a corrective action plan (CAP) to correct the St. Louis I/M program deficiencies. As part of the CAP, Missouri implemented computerized BAR-90 (Bureau of Automotive Repair) type analyzers on December 1, 1990.

EPA conducted an audit of the revised program during the week of August 24-28, 1992. Despite improvements following EPA's two previous audits, the St. Louis I/M program still had not shown a level of VOC emission reductions consistent with the MERR for a basic program. The I/M program is an important strategy toward achieving healthful air quality in St. Louis. To maximize progress toward that goal, the State of Missouri and EPA believed the most effective approach would be to implement a centralized, test-only program that includes high-tech testing.

As discussed in EPA's I/M rule, states such as Missouri are required to submit a SIP, including a schedule, analysis, description, legal authority, and adequate evidence of funding and resources for program implementation discussed in 40 CFR 51.372 (a)(1)-(a)(8). The SIP must correct deficiencies in the preexisting program.

In a letter dated November 10, 1999, to Dennis Grams, Regional Administrator, Stephen Mahfood, MDNR Director, submitted a revised I/M program as an amendment to the SIP. This submittal revises the program which Missouri submitted in 1997, and which EPA proposed to conditionally approve in February 1999 (64 FR 9460, February 26, 1999). The submittal included the SIP revision and a number of attachments including the adopted state statute and regulation, the signed I/M contract, a Memorandum of Understanding with the MSHP, an interagency agreement with the Missouri Department of Revenue (MDOR),the I/M budget, modeling input and output files, sample calculations, a table showing the number of vehicles in the I/M program, procedures and specifications, a list of zip codes for the I/M program, the public education program, and an example of the MDOR contract with fee offices. As explained in more detail below, EPA is proposing action on the November 1999 submission.

As discussed above, sections 182(b)(4), 182(c)(3), 184(b)(1)(A), 187(a)(6), and 187(b)(1) of the Act require that states adopt and implement regulations for a basic or an enhanced I/M program in certain areas. The following sections of this document summarize the requirements of the Federal I/M regulations and address whether the elements of the state's submittal comply with the Federal rule. The specific requirements for I/M plan submissions are in 40 CFR Part 51, Subpart S, and a list of required SIP elements are in 40 CFR 51.372. For a more detailed discussion of EPA's analysis, the reader should consult the technical support document (TSD) which can be obtained by contacting the EPA Regional Office noted above. EPA's decision for approval is based solely on the state's ability to meet the I/M requirements for a basic program.

As required in the I/M rule, any area classified as moderate ozone nonattainment and not required to implement an enhanced I/M program shall implement a basic I/M program in any 1990 census-defined, urbanized area within the nonattainment area with a population of 200,000 or more.

The legal authority for the I/M program is contained in the Missouri Revised Statutes, Sections 643.300-643.355 and implementing regulations in Missouri rule 10 CSR 10-5.380. The statute defines the boundaries for the I/M program which include three counties in Missouri (Jefferson, St. Charles, and St. Louis) and St. Louis City.

The state's submittal contains legal authority and regulations necessary to establish the program boundaries for the areas required by EPA's rule to be included in a basic IM program. Thus, this portion of the SIP is approvable. Missouri's program boundaries are also adequate to meet EPA's enhanced I/M program requirements.

In addition, RSMo Section 307.366 provides authority for the state to implement a basic I/M program in Franklin County. The statute was amended during 1999 in Senate Bill 019 to give the residents of Franklin County the option of annual or biennial emission inspection cycle. The Missouri rule 11 CSR 50-2 has not been amended at this time.

The state intends to extend the program to Franklin County and submit appropriate revisions to EPA.

Section 51.351 contains the performance standard for enhanced I/M programs, and 40 CFR 51.352 contains the performance standard for basic I/M programs. In accord with the Federal I/M rule, Missouri's I/M program is designed to meet or exceed the minimum basic performance standard, which is expressed as emission levels in areawide average grams per mile (gpm), for certain pollutants. The performance standards are established using local characteristics, such as vehicle mix and local fuel controls, and the following model I/M program parameters: network type, start date, test frequency, model year coverage, vehicle type coverage, exhaust emission test type, emission standards, emission control device inspections, evaporative system function checks (for the enhanced programs I/M performance standard), stringency, waiver rate, compliance rate, and evaluation date. The emission levels achieved by the state's program design are calculated using EPA's most current mobile source emission factor model (MOBILE5b) at the time of submittal. The program meets the high enhanced performance standard for VOCs and NOx for the applicable milestone dates. Therefore, this portion of the SIP meets the performance standard for an high enhanced I/M program which exceeds the requirements for a basic program and is approvable.

Basic I/M programs can be centralized, decentralized, or a hybrid at the state's discretion. Missouri has the legal authority for and a contract in place to implement and operate a centralized, test-only network that meets the Federal requirements. By state statute, RSMo Section 643.310, no one operating or employed by an emission inspection station shall repair, diagnose, or maintain motor vehicle emission systems or pollution control devices for compensation of any kind. This portion of the SIP meets the Federal requirements relating to the network type.

A state program is required to demonstrate that it achieves the same emission reductions as the model program described in the Federal rule (40 CFR 51.353) and submit a report every two years starting two years after the initial start date. The SIP shows the random evaluation program will monitor 0.1 percent of 1971 and later model year vehicles. The results will be incorporated into an annual report. The first report will be submitted to EPA two years after the start date and subsequent reports submitted annually by January 1. Therefore, the SIP is approvable with regard to the program evaluation requirements.

The Federal regulation requires Missouri to provide a description of the resources to be used in the program. The state must provide a detailed budget plan that describes the source of funds for personnel, program administration, program enforcement, and purchase of equipment. In addition, the SIP must include public education and assistance and funding for other necessary functions.

The SIP includes a detailed budget plan that describes the source of funds for personnel, program administration, program enforcement, and purchase of equipment. The SIP also details the number of personnel dedicated to the quality assurance program, data analysis, program administration, enforcement, public education and assistance, and other necessary functions. The SIP meets the Federal requirements for evidence of adequate tools and resources under 40 CFR 51.372 and 51.354.

The I/M performance standard assumes an annual test frequency; however, other schedules may be approved if the performance standard is achieved. The Missouri legislation provides the legal authority to implement the biennial program. Missouri's I/M regulation provides for a biennial test frequency and provides for enforcement of the biennial test frequency. The Missouri submittal meets the performance standard. This portion of the SIP meets the Federal requirements.

Although not required for a basic program, enhanced I/M programs shall be designed in such a way as to provide convenient service to motorists required to get their vehicles tested. To meet the enhanced requirements, the state must show that the network of stations is sufficient to ensure short waiting times, short driving distances, and regular testing hours. The state has ensured consumer convenience by both state law, rule and contract provisions regarding station location, accessibility, and operation; equipment availability and reliability; and wait time penalties. Therefore, this portion of the SIP meets the test frequency and convenience requirements for an enhanced I/M program which exceed the requirements for a basic program.

The performance standards for enhanced I/M programs assume coverage of all 1968 and later model year light-duty vehicles and light-duty trucks (LDT) up to 8500 pounds gross vehicle weight rating and includes vehicles operating on all fuel types. The standard for basic I/M programs does not include LDTs. Other levels of coverage may be approved if the necessary emission reductions are achieved. Missouri's submittal includes: legal authority necessary to implement and enforce program with respect to vehicles required to be covered in a basic and an enhanced program; a detailed description of the number and types of vehicles to be covered by the program; a plan for how those vehicles are identified, including vehicles that are routinely operated in the area but may not be registered in the area; a description of any special exemptions.

In addition, the I/M rule and the implementing contract provide for an alternative to the emissions inspection for up to 40 percent of the motor vehicles. This provision includes the statutory exemption for the most recent two model year vehicles. Other vehicles that are checked and pass a remote-sensing, clean-screening test twice during a year do not have to have the emission inspection. To reach the 40 percent goal, additional remote-sensing, clean-screening testing, additional model year exemption, or the use of vehicle profiling may be used.

Missouri is authorized in its enabling legislation to impose fleet-testing requirements. Fleet testing will be conducted at official test-only stations. The state's plan for testing fleet vehicles is acceptable and meets the requirements of the Federal I/M regulation. EPA is in the process of revising the regulatory requirements applicable to federal fleets. After EPA revises its rule, the state may need to revise its SIP to reflect the Federal revisions.

This level of coverage is approvable as it meets the requirements for an enhanced I/M program which exceed the requirements for a basic program. In addition, Missouri has legal authority to implement fleet-testing requirements and to implement requirements for special exemptions. Therefore, this portion of the SIP is approvable as it meets the requirements for a basic and an enhanced I/M program.

The Federal rule requires Missouri to have written test procedures and pass/fail standards to be established and followed for each model year and vehicle type included in the program. Test procedures and standards are detailed in 40 CFR 51.357 and in the EPA document entitled “IM 240 & Evap Technical Guidance,” EPA-AA-RSPD-IM-98-1, dated August 1998.

The state's I/M regulation, Missouri rule 10 CSR 10-5.380, includes a description of the test procedures for a transient, idle, evaporative system purge; evaporative system pressure testing; on-board diagnostic (OBD) checks, and for a visual emission control device inspection. The checks of the OBD system will begin no later than January 1, 2001. These test procedures conform to EPA-approved test procedures and are approvable. The state I/M regulation establishes pass/fail exhaust standards (hydrocarbons, carbon monoxide, carbon dioxide, and oxides of nitrogen) and test procedures for each applicable model year and vehicle type. The exhaust standards adopted by the state conform to EPA-established standards and are approvable. Initial exhaust standards will be in effect for the first two years and the final standards will start April 5, 2002. This portion of the SIP is approvable.

As required by Federal rule, the state submittal contains the written technical specifications for all test equipment to be used in the program. The specifications require the use of computerized test systems. The specifications also include performance features and functional characteristics of the computerized test systems that meet the applicable Federal I/M regulations and are approvable. The SIP meets the requirements of this section.

The Federal rule requires that quality control measures shall insure that emission measurements equipment is calibrated and maintained properly, and that inspection, calibration records, and control charts are accurately created, recorded, and maintained. In accordance with these requirements, the state's I/M rule and contract address the quality control provisions by providing: quality control standards and criteria for all test equipment; procedures and specifications for the calibration and maintenance of all test equipment; procedures manual for station operations, lane operators, waiver inspector's and station manager's computer handbook, host computer manual, and station installation manual; recordkeeping requirements for equipment maintenance and calibration records, emissions test data, and vehicle repair records; document security measures for inspection result forms, emission inspection certificates of compliance, and emission inspection stickers; and maintenance of an audit trail.

This portion of the submittal complies with the quality control requirements set forth in the Federal I/M regulation and is approvable.

The Federal I/M regulation allows for the issuance of a waiver, which is a form of compliance with the program requirements, that permits a motorist to comply without meeting the applicable test standards. For enhanced I/M programs, an expenditure of at least $450 in repairs, adjusted annually to reflect the change in the Consumer Price Index (CPI) as compared with the CPI for 1989, is required to qualify for a waiver. For the basic program the minimum expenditure is $75 for pre-1981 vehicles and $200 for 1981 and newer vehicles.

As required, RSMo 643.335 provides legislative authority to issue waivers, set and adjust cost limits, and administer and enforce the waiver system. The Missouri legislation set a $75 waiver cost limit for 1980 and older model year vehicles, a $200 waiver cost limit for 1981 to 1996 model year vehicles, and $450 waiver cost limits for 1997 and newer model year vehicles. The state statute allows these amounts to be adjusted for inflation after January 1, 2001, consistent with an enhanced I/M program. Waivers will be issued for vehicles that do not pass the emission inspection, provided the minimum dollar amount was spent for repairs. The repair record must show that the repair expenditures were not covered by either a recall or manufacturer warranty, and that parts costs and labor costs of recognized technicians total the minimum applicable amount for the model year of the vehicle. However, because Missouri is subject to the basic program requirements, it is only required to meet or exceed the basic I/M requirements of a minimum of $75 for pre-1981 vehicles and $200 for 1981 and newer vehicles. The SIP meets this portion of the regulation and is acceptable.

The Federal regulation requires that compliance will be ensured through the denial of motor vehicle registration in enhanced I/M programs unless an exception for use of an existing alternative is approved. A basic I/M area may use an alternative enforcement mechanism if it demonstrates that the alternative will be as effective as registration denial.

To register a vehicle subject to the I/M requirements, the MDOR by rule, 12 CSR 10-23.170, requires an owner to present an original, current certificate of emissions inspection no older than 60 days. Thus, the enforcement method used is registration denial. The Missouri SIP commits to a compliance rate of 96 percent which was used in the performance standard modeling demonstration and is approvable. The submittal includes detailed information concerning the registration denial enforcement process, the identification of agencies responsible for performing each applicable activity, and a plan for testing fleet vehicles. Therefore, this portion of the SIP is approvable.

The Federal I/M regulation requires that the enforcement program shall be audited regularly and shall follow effective program management practices, including adjustments to improve operation when necessary. The SIP shall include quality control and quality assurance procedures to be used to ensure the effective overall performance of the enforcement system. An information management system shall be established which will characterize, evaluate and enforce the program.

In accord with Federal regulation, Missouri's SIP includes regulations and descriptions of procedural manuals and supporting documents describing how the enforcement program oversight will be quality-controlled and quality-assured and includes the establishment of an information management system. Therefore, this portion of the SIP is approvable.

An ongoing quality assurance program must be implemented to discover, correct, and prevent fraud, waste, and abuse in the program. The program shall include covert and overt performance audits of the inspectors, audits of station and inspector records, equipment audits, and formal training of all state I/M enforcement officials and auditors.

The Missouri submittal includes a quality assurance program that includes quality control and quality assurance procedures describing methods for reviewing inspector records, performing equipment audits, and providing formal training to all state enforcement officials. Performance audits of inspectors and stations will consist of both covert and overt audits. Reports will be provided weekly, monthly, quarterly, and annually. In addition, an annual independent audit by a third party will be performed. The SIP meets the requirements of this section.

The EPA regulation requires that enforcement against stations, contractors, and inspectors shall include swift, sure, effective, and consistent penalties for violation of program requirements. Implementation and operation of Missouri's centralized program is done by one contractor. Enforcement of violations performed by the contractor, station, or contractor employee is through provisions of the contract. The contract includes appropriate penalty provisions and includes recordkeeping and enforcement procedures. The SIP meets the requirements of this section.

Accurate data collection is essential to the management, evaluation, and enforcement of an I/M program. The Federal I/M regulation requires data to be gathered on each individual test conducted and on the results of the quality control checks of test equipment, as required under 40 CFR 51.359. The SIP provides a commitment to gather, maintain, summarize, and report all of the data requirements and has listed all the data which will be collected. The contract details the functions the contractor will fulfill and specifies the data to be collected and the record storage format. This test data and quality control will be maintained and summarized by MDNR. The SIP meets the requirements of this section.

Data analysis and reporting are required to allow for monitoring and evaluating the program by the state and EPA. The Federal I/M regulation requires annual reports to be submitted which provide information and statistics and summarize activities performed for each of the following programs: testing, quality assurance, quality control, and enforcement. These reports are to be submitted by July and will provide statistics during January to December of the previous year. A biennial report will be submitted to EPA that addresses changes in program design, regulations, legal authority, program procedures, and any weaknesses in the program found during the two-year period and how these problems will be or were corrected.

The state has committed to meet all of the data analysis and reporting requirements of this section. The contract specifies the data analysis and reporting the contractor will fulfill. The state commits to submit the reports to EPA as required. The SIP meets the requirements of this section.

The Federal I/M regulation requires all inspectors to be formally trained and licensed or certified to perform inspections.

The SIP states that all inspectors are to receive formal training, lists the curricula, sets the minimum examination requirements and states that inspectors must be reexamined every two years. The curricula and certification examinations will be approved by the state. The contractor will conduct the training and certification examination. The SIP meets the requirements of this section.

The Federal I/M regulation requires the SIP to include public information and consumer protection programs.

The state has committed to conduct public information and consumer protection programs. The contract specifies and lists the activities the contractor will perform to provide information to the public. It also specifies the minimum amount of funds to be spent during the life of the contract for public information. Both the state and the contractor will aid motorist to obtain warranty covered repairs whenever a vehicle fails a test. The state will also have a Quality Assurance Facility available to motorists so they can challenge the results of their inspection and report fraud and abuse by inspectors. The state has committed to following up and responding to complaints made by the motorist and the public.

A whistle blower protection component is included in the contract. In addition, state employees are protected from repercussions by a whistle blower statute, RSMo Section 105.055. These portions of the SIP submittal meet the requirements of this section.

Effective repair work is the key to achieving program goals. The Federal regulation requires states to take steps to ensure that the capability exists in the repair industry to repair vehicles. The SIP must include a description of the technical assistance program; in enhanced areas, a description of the procedures and criteria to be used in meeting the performance monitoring requirements; and a description of the technician training resources available in the community.

Training is required for state-recognized repair technicians and will be provided by non-profit and for-profit schools as well as independent trainers. The state will review and approve courses and set criteria for course curricula and number of class hours. The contractor will provide a telephone information service line to help the repair industry identify and repair emission problems. The state will use a newsletter to provide information and assistance related to the program and vehicle repair.

The motorist must present a completed repair data sheet prior to the vehicle being retested. The sheet will include information on the types of repairs performed, repair costs, and the name of the repair facility. This information together with the results from the retest will be used to evaluate the effectiveness of the repair industry. An annual report will be prepared by the contractor. These portions of the SIP submittal meet the requirements of this section.

The CAA and Federal regulation require states subject to the enhanced I/M requirements to establish methods to ensure that vehicles that have been recalled for emission-related repairs do receive the repair prior to completing the emission test and/or renewing the vehicle registration.

The Missouri I/M regulation requires owners to comply with emission-related recalls before completing the emission test or renewing the vehicle registration. The contractor will maintain a database of vehicles that have been recalled and can identify them at the test station. Those that have obtained the needed repairs can complete the inspection. The submittal includes a commitment to submit an annual report to EPA that includes the information as required. Therefore, this portion of the SIP meets the requirements for an enhanced I/M program which exceed the requirements for a basic program.

On-road testing is required in enhanced I/M areas and is an option for basic areas. The on-road testing program shall provide information about the emission performance of in-use vehicles. The use of either remote sensing devices (RSD) or roadside pullovers where tailpipe emission testing is done can be used to meet the Federal regulations. The program must include on-road testing of 0.5 percent of the vehicles or 20,000 vehicles, whichever is less in the nonattainment area or the I/M program area. Motorists that have passed an emission test and are found to be high emitters as a result of an on-road test shall be required to pass another emission test.

Enabling authority to implement the on-road testing program and enforce off-cycle inspection and repair requirements is contained in Missouri's legislation. The contractor will use RSD to test 0.5 percent of the vehicles in the I/M program area. The contract contains a description of the program and methods of collecting, analyzing, and reporting data. The state plans to select test limits and perform on-road testing. The on-road testing requirements are optional for basic programs. Therefore, this is not relevant to EPA's proposed action with respect to the basic I/M requirement.

States such as Missouri are required to submit a SIP, including a schedule, analysis, description, legal authority, and adequate evidence of funding and resources for program implementation as discussed in EPA's I/M rule. The Federal regulation lists a number of elements that the submittal shall include such as the statutory authority and regulations, specifications and procedures, licensing or certification of station inspectors, date mandatory testing will begin, date full-stringency cutpoints will take effect, an analysis showing the performance standard is met, a description of the geographic coverage of the program, a discussion of the design elements including provisions for Federal facility compliance, and adequate funding. Although the state's submission was not made in the time frames called for in 40 CFR 51.372 (a schedule by November 15, 1992, and a complete program by November 15, 1993), the submittal has addressed the requirements of that section as described above. Missouri's efforts to develop the I/M program are described in more detail in the TSD. The lateness of this submittal does not effect the approvability of the program.

For the I/M rule, MDNR provided a 30-day public comment period and held a public hearing before the Missouri Air Conservation Commission (MACC) on September 23, 1999. The revision was adopted by the MACC on October 28, 1999, and became effective on December 30, 1999. MDNR followed all applicable administrative procedures in proposing and adopting the rule revisions.

In addition, MDNR complied with the requirements of 40 CFR Part 51, Appendix V, for SIP submittals. Missouri has met all the applicable requirements for a SIP revision.

On February 26, 1999, at 64 FR 9460, EPA proposed conditional approval of a prior submittal of Missouri's I/M SIP. As discussed above, Missouri submitted a revised final I/M SIP to EPA on November 12, 1999, which is the subject of today's action. The submission revises and replaces the submission on which EPA based its February 26, 1999, proposal. Commenters on the February 26, 1999, proposal are encouraged to resubmit comments in light of this reproposal. EPA intends to address only those comments which are relevant to this reproposal. Anyone wishing to submit comments should do so during the comment period established by today's notice.

The SIP commits to starting the I/M program on April 5, 2000. Before testing can begin, a number of tasks, as described in the SIP submittal and the EPA TSD, must be completed. They include the acquisition of the sites, construction of the test stations, purchase and installation of equipment, writing computer programs, writing procedure manuals, and hiring and training employees. Missouri and its contractor are in the process of completing these tasks. Although EPA regulations call for earlier start dates for I/M programs, EPA believes that the start date of April 5, 2000, is as expeditious as practicable and that the program is not deficient because of the April 5, 2000, start date. It is EPA policy that once the start date in the regulations has passed, SIPs are approvable if the program starts as expeditiously as practicable. EPA anticipates that it will not be taking final action on this proposal prior to the projected start date.

EPA's review of the material submitted indicates that the state has adopted an I/M program in accordance with the requirements of the Act and the Federal rule. EPA is proposing to approve the Missouri SIP revision for the St. Louis I/M program which was submitted on November 12, 1999. EPA solicits comments on this proposed action. Final rulemaking will occur after consideration of any comments. EPA anticipates that it will not take final action until after the April 5, 2000, start date. Therefore, EPA is not proposing conditional approval based on the start date.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. This proposed action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Because this rule proposes to approve preexisting requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this proposed rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This proposed 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the state to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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

The USEPA is proposing to approve the incorporation into the Illinois State Implementation Plan of revised air pollution permitting and emissions standards rules, which the State of Illinois requested. Specifically, we are proposing to approve the incorporation of revisions to Title 35 of the Illinois Administrative Code (35 IAC) 201.146, Exemptions from State Permit Requirements into the Illinois State Implementation Plan. These revisions clarify, modify and add to the list of emission units and activities which are exempt from State permitting requirements. The State submitted its plan request to USEPA on February 5, 1998.

In the final rules section of this Federal Register , we are approving Illinois' request for a change to the Illinois State Implementation Plan as a direct final rule without prior proposal because we view this action as noncontroversial and anticipate no adverse comments. A detailed rationale for approving the State's request is set forth in the direct final rule. The direct final rule will become effective without further notice unless we receive relevant adverse written comment on this action. Should we receive such comment, we will publish a final rule informing you that the direct final rule will not take effect and such public comment received will be addressed in a subsequent final rule based on this proposed rule. If no adverse written comments are received, the direct final rule will take effect on the date stated in that document and no further activity will be taken on this proposed rule. We do not plan to institute a second comment period on this action. Any parties interested in commenting on this action should do so at this time.

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

Section 4(b)(3)(A) of the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq. ), requires that we make a finding on whether a petition to list, delist, or reclassify a species presents substantial information indicating that the petitioned action may be warranted. To the maximum extent practicable, we must make this finding within 90 days of the receipt of the petition and publish it promptly in the Federal Register . If the finding is that substantial information was presented, we are also required to promptly commence a review of the status of the involved species. This finding is based on information contained in the petition, supporting information submitted with the petition, and information otherwise available to us at the time the finding was made. While the Act does not provide for petitions to designate critical habitat, the specific critical habitat designation is petitionable under the Administrative Procedures Act. As required by section 4(a)(3) of the Act, we will consider critical habitat designation if we determine that listing is warranted.

The processing of this petition conforms with our Listing Priority Guidance published in the Federal Register on October 22, 1999 (64 FR57114). The guidance clarifies the order in which we will process rulemakings. Highest priority is processing emergency listing rules for any species determined to face a significant and imminent risk to its well-being (Priority 1). Second priority (Priority 2) is processing final determinations on proposed additions to the lists of endangered and threatened wildlife and plants. Third priority is processing new proposals to add species to the lists. The processing of administrative petition findings (petitions filed under section 4 of the Act) is the fourth priority. The processing of this 90-day petition finding is a Priority 4 action and is being completed in accordance with the current Listing Priority Guidance.

We were previously petitioned to list the western yellow-billed cuckoo ( Coccyzus americanus occidentalis ) in 1986 as endangered in the States of California, Washington, Oregon, Idaho, and Nevada (Manolis et al. 1986). We received this petition from Dr. Tim Manolis, Western Field Ornithologists, and it was cosigned by the Animal Protection Institute, Defenders of Wildlife, Sacramento River Preservation Trust, Friends of the River, Planning and Conservation League, Davis Audubon Society, Sacramento Audubon Society, and the Sierra Club. We published a 90-day finding on January 21, 1987, in the Federal Register (52 FR 2239) that the petition presented substantial information indicating that the requested action may be warranted. We acknowledged, in that finding, the difficulties in defining distinct, biologically defensible populations of western yellow-billed cuckoos for possible listing, and the existence of gaps in available information as to its status in certain parts of its range. We published a 12-month finding on December 29, 1988, in the Federal Register (53 FR 52746) that the petitioned action was not warranted, finding that the petitioned area did not encompass either a distinct subspecies or a distinct population segment. The finding cited—(1) a study of geographic variation in the species that concluded the morphological differences between eastern and western birds were too small to merit separate subspecies (Banks 1988), and (2) that the petitioned area did not encompass a distinct population segment. It noted that yellow-billed cuckoos near a State line within the petitioned area, such as on the California side of the lower Colorado River, are part of the same population and interbreed with birds immediately across the same State border and outside the petitioned area.

We received another petition on February 9, 1998, and dated February 2, 1998, to list the yellow-billed cuckoo ( Coccyzus americanus ) as an endangered species. The petition was submitted by Robin Silver, Kieran Suckling, and David Noah Greenwald of Southwest Center for Biological Diversity on behalf of 22 groups. The 22 groups are the Maricopa Audubon Society, Tucson Audubon Society, Huachuca Audubon Society, White Mountain Audubon Society, White Mountain Conservation League, Wildlife Damage Review, Sky Island Alliance, San Pedro 100, Zane Grey Chapter of Trout Unlimited, T and E Inc., Biodiversity Legal Foundation, Environmental Protection Information Center, Sierra Nevada Alliance, Wetlands Action Network, Rangewatch, Oregon Natural Desert Association, Oregon Natural Resources Center, Klamath-Siskiyou Wildlands Center, Southern Utah Wilderness Alliance, Wild Utah Forest Campaign, Friends of Nevada Wilderness, and Toiyabe Chapter of the Sierra Club. The petitioners requested that we list the yellow-billed cuckoo as endangered, stating that they believe the yellow-billed cuckoo “is endangered in a significant portion of its range ( i.e. , the western United States).” The petitioners also stated they “believe this range of endangerment is coterminous with a valid subspecies, the western yellow-billed cuckoo ( Coccyzus americanus occidentalis )” and that they would concur with a decision to list only this subspecies. The petitioners also requested that critical habitat be designated. Included in the petition was supporting information relating to the species' taxonomy and ecology, adequacy of existing regulatory mechanisms for the species, the historic and present distribution, current status, and causes of decline in the western United States. This notice announces our 90-day finding for the 1998 petition.

The yellow-billed cuckoo is a medium-sized bird of about 30 centimeters (12 inches) in length, and weighing about 60 grams (2 ounces). The species has a slender, long-tailed profile, with a fairly stout and slightly down-curved bill, which is blue-black with yellow on the basal half of the lower mandible (bill). Plumage is grayish-brown above and white below, with rufous primary flight feathers. The tail feathers are boldly patterned with black and white below. The legs are short and bluish-gray, and adults have a narrow, yellow eye ring. Juveniles resemble adults, except the tail patterning is less distinct, and the lower bill may have little or no yellow. Males and females differ slightly. Males tend to have a slightly larger bill, and the white in the tail tends to form oval spots, whereas in females the white spots tend to be connected and less distinct (Hughes 1999).

In the west, based on historic accounts, the species was widespread and locally common in California and Arizona; locally common in a few river reaches in New Mexico; common very locally in Oregon and Washington; generally local and uncommon in scattered drainages of the arid and semiarid portions of western Colorado, western Wyoming, Idaho, Nevada, and Utah; and, probably uncommon and very local in British Columbia. Hughes (1999) summarizes the species' historic range and status in these areas. The species was listed by the State of California as threatened in 1971 and was reclassified as endangered in 1987. Based on a 1986-87 statewide survey, only three areas in the State support more than about five breeding pairs on a regular basis. In the Pacific Northwest, the last confirmed breeding records were in the 1930s in Washington and in the 1940s in Oregon. The species may now be extirpated from Washington. Arizona probably contains the largest remaining cuckoo population among States west of the Rocky Mountains, but cuckoo numbers in 1999 are substantially less than some previous estimates for Arizona as habitat has declined. In Colorado and Idaho, the species is rare, and in Nevada, the remaining breeding populations are threatened with extinction, if not already extirpated (Hughes 1999). The portion of Texas west of the Pecos River has been identified as within the range of the historic western subspecies (Oberholser and Kincaid 1974), but other authors consider birds from this area most similar to eastern cuckoos (Hughes 1999). The species still occurs in this area, but its conservation status is unknown (Groschupf 1987). The species is widespread and uncommon to common in central and eastern Texas (Oberholser and Kincaid 1974; Rappole and Blacklock 1994).

The species breeds from extreme southern Canada (Quebec and Ontario) south to the Greater Antilles and Mexico (American Ornithologist Union (AOU) 1998). The cuckoo occurs widely and is an uncommon to common breeding bird in the United States east of the Continental Divide. Habitat for the species in the eastern United States, mainly riparian and other broad-leaved woodlands, is widespread. This habitat is in contrast to habitat west of the Continental Divide, where suitable habitat is limited to narrow, and often widely separated, riparian patches. Distribution, population, and trend data we obtained from the Breeding Bird Survey (BBS) program and other available sources indicate that, although regional declines have occurred, the yellow-billed cuckoo is relatively common as a breeding bird in much of the eastern United States (Oberholser and Kincaid 1974; Rappole and Blacklock 1994; BBS 1999; Hughes 1999).

The petitioners included information on factors affecting the species in the western United States, which they define as the historic range of the western subspecies. The petition identifies habitat loss, overgrazing, tamarisk invasion of riparian areas, river management, logging, and pesticides as causes of decline. These factors are consistent with loss, degradation, and fragmentation of riparian habitat as the primary factor causing yellow-billed cuckoo declines in the western United States. Estimates of riparian habitat losses include 90-95 percent for Arizona, 90 percent for New Mexico, 90-99 percent for California, and more than 70 percent nationwide (Noss et al. 1995; Ohmart 1994). Much of the remaining habitat is in poor condition and heavily affected by human use (U.S. Department of Interior 1994; Almand and Krohn 1978). Local extinctions and low colonization rates have also been identified as factors, and pesticides and loss of wintering habitat as potential factors (Hughes 1999).

We reviewed the petition, supporting documentation, and other information available in our files to determine if substantial information is available to indicate that the requested actions may be warranted. We find that the petition presents substantial information indicating that listing a western yellow-billed cuckoo subspecies ( Coccyzus americanus occidentalis ) may be warranted, although the taxonomy of this subspecies is currently unclear. The petitioners stated that “all existing scientific data supports the AOU conclusion that the western yellow-billed cuckoo is a valid sub-species.” However, this statement does not represent the AOU's current position. The AOU does not have a current position on the validity of yellow-billed cuckoo subspecies and has stated the need to evaluate the taxonomic standing of the subspecies of North American birds (AOU 1998). The AOU's Committee on Classification and Nomenclature (the body that makes taxonomic decisions for North American birds) has begun a comprehensive review of the taxonomic status of subspecies for North American birds, a task that is expected to take at least several years (Richard C. Banks, U.S. National Museum of Natural History, chair of AOU Committee on Classification and Nomenclature (North America), pers. comm., 1999). The existing scientific data, including that provided by the petitioners, is equivocal (of uncertain significance) on the taxonomic status of western yellow-billed cuckoo subspecies.

The yellow-billed cuckoo was separated into eastern ( Coccyzus americanus americanus ) and western ( Coccyzus americanus occidentalis ) subspecies by Ridgway (1887), who cited a larger average size for birds from the western versus eastern United States. Several ornithologists who have questioned the validity of these subspecies since that time (Todd and Carriker 1922; Swarth 1929; Van Tyne and Sutton 1937; Bent 1940; Monson and Phillips 1981) noted the small magnitude and inconsistency of differences between eastern and western cuckoos and the broad overlap in the size of eastern and western individuals. The yellow-billed cuckoo has been the subject of two taxonomic studies published since 1980. One study concluded that the division of yellow-billed cuckoos into two subspecies was not supported by the morphological data and that all yellow-billed cuckoos in North America should be classified simply as C. americanus (Banks 1988, 1990). The second study found small but statistically significant size differences between western and eastern cuckoos (Franzreb and Laymon 1993). This study stated that the recognition of subspecies on the basis of these differences was equivocal (of uncertain significance) and recommended that the subspecies described by Ridgway (1887) be retained, pending further studies (Franzreb and Laymon 1993).

The petitioners cited the above studies' findings of statistically significant differences in morphological measurements between western and eastern cuckoos, but did not provide evidence that these differences meet traditional or other accepted criteria for defining avian subspecies. Banks (1988, 1990) concluded that these differences were not adequate for subspecies recognition. The petition and other information currently available to us do not resolve this taxonomic question for this species. However, we are funding ongoing genetic work that may aid in resolving this issue. Although the available information does not conclusively resolve this issue, we find that the petition presents substantial information that leads us to conclude that further investigation is required, through a status review, to determine if listing the western yellow-billed cuckoo as a subspecies is warranted.

The petitioners stated that they believed the western States constitute a significant portion of the species' range. However, we find that the petition does not provide information to support this statement. The petition does not provide information on the conservation status of the yellow-billed cuckoo outside the western United States and British Columbia, Canada, and the available data do not indicate that the species as a whole may be threatened or endangered in a significant portion of its range. On a gross level, the area of the western States within the species' historic range represents about 27 percent of the total area within the species' U.S. range. However, this number includes the entire area of States and does not represent the distribution or area of habitat suitable or available for the species. The species nests almost exclusively in riparian habitats in the west and occurs widely in riparian habitats in the east (Hughes 1999). More than 95 percent of the riparian habitat area within the species' U.S. range is located east of the Continental Divide, and less than 5 percent is located west of the divide. Further, these percentages overestimate the proportion of cuckoo habitat occurring west of the Continental Divide, as they do not account for the fact that, east of the divide, the cuckoo also nests in a variety of nonriparian habitats, including woodlands, hardwood forests, abandoned farmlands, fencerows, shade trees, and gardens (Hughes 1999).

Although not specifically addressed by the petitioners, we also considered whether substantial information exists indicating that listing of the western yellow-billed cuckoo as a distinct population segment (DPS) as described in our 1996 Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (61 FR 4721) may be warranted. The policy states that we will consider three elements in decisions regarding the status of a possible DPS as endangered or threatened under the Act: (1) Distinctness of a population segment in relation to the remainder of the species to which it belongs, (2) significance of the population segment in relation to the species as a whole, and (3) conservation status of the population segment in relation to the Act's standards for listing as threatened or endangered. Criteria for all three elements must be satisfied to be considered a DPS.

Anecdotal reports have suggested differences between eastern and western birds based on bill color and vocalizations (Franzreb and Laymon 1993), but these differences have not been documented. Western cuckoos have been reported to nest later, on average, than eastern cuckoos (Franzreb and Laymon 1993; Hughes 1999), but the species demonstrates considerable plasticity in timing of nesting (Hamilton and Hamilton 1965; Hughes 1999). These observed differences could represent distinct populations with genetically based adaptations to local conditions, however, equally plausible alternative explanations exist. For example, the observed differences could also represent the interaction between individuals of a relatively uniform but flexible species and local environmental factors. We are not currently aware of any study that has tested the alternative explanations, although the principal study of nesting biology published in a scientific journal (Hamilton and Hamilton 1965) favored the latter interpretation (differences are due to interactions of individuals of a flexible species). This study questioned whether eastern and western cuckoos were distinct, based on observations of ecology, adaptation to the physical environment, and timing and duration of breeding season. Based on the available scientific information, it is unclear that eastern and western yellow-billed cuckoos are distinct. However, we find that the petition presents substantial information that leads us to conclude that further investigation is required, through a status review, to determine if listing the western yellow-billed cuckoo as a distinct population segment may be warranted.

In making these findings, we recognize that yellow-billed cuckoo populations have declined in portions of their range in the United States, particularly west of the Continental Divide. Loss and degradation of western riparian habitats appears to be a primary factor in these declines. The range of the species has contracted substantially in many regions of the western United States, compared to the range reported for the species in the first several decades of the twentieth century (Gaines and Laymon 1984; Laymon and Halterman 1987; Hughes 1999). Population numbers have also declined substantially in the western United States (Hughes 1999), although scientific data on the magnitude of population changes are unavailable for most regions.

We solicit information regarding the taxonomic status, occurrence, and distribution of the species, and any additional data or scientific information from the public, scientific community, Tribal, local, State, and Federal governments, and other interested parties concerning the status of the yellow-billed cuckoo. Of particular interest is information regarding:

(1) The taxonomy and genetics of the species and whether this information supports classifying the western yellow-billed cuckoo as a valid subspecies;

(2) Behavioral and ecological differences between eastern and western yellow-billed cuckoos; and

(3) Significance of the western population in relation to the species as a whole that may aid in differentiating population segments.

After consideration of additional information received during the public information collection period (see DATES section of this notice), we will prepare a 12-month finding as to whether listing the yellow-billed cuckoo as a species, subspecies, or distinct population segment is warranted.

You may request a complete list of all references we cited, as well as others, from the Sacramento Fish and Wildlife Office (see ADDRESSES section).

Authority. The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).

A notice of public hearings was published in the Federal Register on February 3, 2000, notifying the public of the hearings that would be conducted regarding draft options for an amendment to the Golden Crab Fishery Management Plan. That document misidentified the amendment, which must be corrected.

NMFS is correcting the error but is making no other change to the document.

Under the Proposed Rules Section, South Atlantic Fishery Management Council; Public Hearings, FR Doc. 00-2404, published on February 3, 2000 (65 FR 5300), on page 5300, please correct the text “Amendment 1” to read “Amendment 3” in both places: (1) first column, last line and (2) third column, fourth line from the top.

The Hawaii-based pelagic longline fishery is managed under the Fishery Management Plan for the Pelagics Fisheries of the Western Pacific Region (FMP). The FMP was prepared by the Western Pacific Fishery Management Council (Council) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 660.

All sea turtles that occur in U.S. waters are listed as either endangered or threatened under the Endangered Species Act (ESA). The Olive ridley ( Lepidochelys olivacea ) is listed as threatened in the Pacific, except for the Mexican nesting population, which is classified as endangered. The leatherback ( Dermochelys coriacea ) and hawksbill ( Eretmochelys imbricata ) are listed as endangered. The loggerhead ( Caretta caretta ) is listed as threatened, and green ( Chelonia mydas ) sea turtles are listed as threatened, except for populations in Florida and on the Pacific coast of Mexico, which are listed as endangered.

Under the ESA and its implementing regulations, the take of sea turtles is generally prohibited, with exceptions as identified in 50 CFR 223.206 and as authorized under section 7 of the ESA. For the purposes of the ESA and for this proposed rule, the term “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. Under section 7 of the ESA, NMFS must consult on any Federal actions that may affect listed species under NMFS' jurisdiction and may issue Incidental Take Statements (ITSs) that authorize take incidental to the proposed action, if such take does not jeopardize the continued existence of any listed species. The Hawaii-based pelagic longline fishery is known to take sea turtles incidentally to fishing operations and, therefore, NMFS consulted on the FMP and its subsequent amendments and issued biological opinions with accompanying ITSs in 1985, 1991, 1993, 1994, and 1998. The 1994 ITS required NMFS to conduct a workshop to evaluate procedures for the handling of incidentally caught sea turtles. NMFS held this workshop in March 1995 and guidelines were produced (NMFS Technical Memorandum SWFSC-222, November 1995). In the workshop report, NMFS stated that additional injury may occur as turtles caught on longline gear are retrieved and that turtles cut free with varying lengths of line trailing from the mouth or body may later ingest or become entangled in the line, thereby suffering injury or eventual death by strangulation. Among the recommended guidelines was a requirement to remove any line if the turtle is entangled, to remove the hook or cut the line at the eye of the hook if the turtle is hooked externally, and to cut the line as close to the eye of the hook as possible if the hook is ingested—leaving as little line attached as possible. The 1998 ITS required NMFS to translate the guidelines and educate longline fishermen on turtle handling and release techniques no later than November 2000.

The 1998 ITS also required NMFS to review, within 90 days of notification of an observed leatherback take, the circumstances surrounding the take. During the review of a leatherback take in which 5 meters of line were left attached to the turtle, NMFS determined that an immediate practical method for mitigating the effects of hooking on individual turtles is to cut the leader as close to the hook as possible. A long-handled pruning pole fitted with a specially configured knife was discussed as an option to be used by NMFS' observers to cut line from incidentally caught sea turtles.

In response to litigation, NMFS restated before the U.S. District Court, District of Hawaii, its commitment to developing a line clipping device that would reduce or eliminate line attached to sea turtles incidentally caught in longline gear, and to educating longline fishermen and vessels operators in procedures to safely handle and dehook sea turtles, and to using a line clipping device that would reduce or eliminate line attached to sea turtles incidentally caught in longline gear. Subsequently, on November 26, 1999, the United States District Court, District of Hawaii, entered an Order in CMC v. NMFS directing NMFS to require, within 4 months of the date of entry of the Order, “every vessel with a Hawaii longline limited entry permit to carry and use line clippers and dip nets to disengage any hooked or entangled sea turtles with the least harm possible to the turtles.” Magnuson-Stevens Act National Standard 9, (16 U.S.C. 301(a)(9)), requires NMFS to minimize, to the extent practicable, any sea turtle bycatch.

While specific line clipper devices are not available in the commercial market, line clippers meeting the minimum design standards of this proposed rule may be fashioned from readily available tools and components. One model is an extended reach garden pruning tool, which may be adapted to meet the minimum prescribed design standards. Another model, which may be easily fabricated, is the Arceneaux Line Clipper depicted in figure 1 of this proposed rule. Consequently, line clippers may be fabricated or obtained and put into use in the fishery with little expense or delay. NMFS' proposed minimum design standards are intended to allow users flexibility in adapting line clippers and dip nets for optimum use aboard individual vessels.

The proposed rule would also impose specified handling, resuscitation, and release requirements. All sea turtles brought aboard for dehooking and/or disentanglement would have to be handled in a manner which minimizes injury and promotes post-hooking survival. No other methods of handling would be allowed. Where practicable, comatose sea turtles would have to be brought aboard immediately with a minimum of injury and handled in accordance with the resuscitation and release requirements specified in this proposed rule. If the turtle is too large or hooked in such a manner as to preclude it being brought aboard without causing further damage or injury to the turtle, line clippers would have to be used to clip the line and remove as much line as possible prior to releasing the turtle. If a sea turtle brought aboard appears dead or comatose, resuscitation would have to be performed. The methods and procedures for resuscitation are similar to those imposed by NMFS in shrimp trawl fisheries. Sea turtles that revive and become active or that fail to revive within a 24-hour period would have to be returned to the sea in accordance with this proposed rule release requirements. These release provisions would require that the vessel engine be put in neutral gear so that the propeller is disengaged, the vessel is stopped, and the sea turtle is released away from any deployed fishing gear. The sea turtle would have to be observed to be safely away from the vessel before the propeller is engaged and operations are continued.

NMFS is issuing this proposed rule with a 15-day comment period. Although the line clipper and dip net requirements are ordered by the Court, NMFS is soliciting public comments on the specifics of these requirements, such as the design elements. NMFS will consider public comments as well as further information provided by NMFS observers on the efficiency of line clipping devices and will make a final determination on any necessary modifications to the design standards through final rulemaking.

This proposed rule has been determined to be not significant for purposes of E.O. 12866.

The NOAA Assistant Administrator for Fisheries finds that this proposed rule must be finalized and become effective on March 24, 2000, to comply with the Order issued by the U.S. District Court, District of Hawaii.

NMFS prepared an initial regulatory flexibility analysis that describes the impact this proposed rule, if adopted, would have on small entities. A copy of this analysis is available from NMFS (see ADDRESSES ). A summary of the analysis follows.

The analysis describes the reasons why the action is being considered and contains a succinct statement of the objectives of and the legal basis for the proposed rule. These are described earlier in this preamble.

The fishery consists of 114 active vessels, all of which are considered small entities, and all of which would be affected. The rule does not contain any reporting or record keeping requirements and does not duplicate, overlap, or conflict with any other relevant Federal rules.

The preferred alternative, as set forth in this proposed rule, meets the objective of the District Court order while minimizing economic impacts on fishery participants by establishing gear requirements based on performance and design standards, rather than requiring the purchase and use of specific devices. Total cost for the materials to fabricate and/or purchase line clippers and dip nets is estimated to be $250. The exact cost of resuscitating a sea turtle, as described herein, is not known, however, it is expected to be minimal.

In addition to the preferred alternative, two other alternatives were evaluated. The first, a “no action” alternative, would impose the least cost burden on small entities; however, this alternative would fail to comply with the November 26, 1999, District Court order. The other alternative would require each permitted Hawaii longline vessel to purchase and carry on board a specific, prefabricated line clipper and sea turtle dip net, as well as require vessel operators to try and resuscitate inactive or comatose turtles. This alternative was rejected in favor of the preferred. Though the preferred alternative also requires resuscitation, it proposes design standards for line clippers and dip nets rather than requiring the purchase of prefabricated items. Specifying design standards encourages innovation and is likely to minimize compliance costs. Moreover, such prefabricated line clippers and dip nets are not readily available in the commercial market.

An informal ESA section 7 consultation on the proposed action was completed on January 20, 2000. The consultation concluded that this action is not likely to adversely affect endangered and threatened species or critical habitat.

For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows: