Comments Invited

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

Submit comments using the following format:

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

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

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

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

Commenters wishing the FAA to acknowledge receipt of their comments submitted in response to this action must submit a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Number 2000-NM-409-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-409-AD, 1601 Lind Avenue, SW., Renton, Washington 98055-4056.

A proposal to amend part 39 of the Federal Aviation Regulations (14 CFR part 39) to add an airworthiness directive (AD), applicable to certain Boeing Model 767-200, -300, and -300F series airplanes, was published as a notice of proposed rulemaking (NPRM) in the Federal Register on October 26, 2001 (66 FR 54171). That NPRM proposed to require a one-time inspection for discrepancies of certain wire bundles in the forward cargo compartment, and corrective actions, if necessary. That NPRM was prompted by a report indicating that, prior to engine start-up on a Boeing Model 767 series airplane, several circuit breakers tripped and the flight crew observed unusual messages on the engine indication and crew alerting system display. An investigation revealed that numerous wires in certain wire bundles had melted and burned. The affected wire bundles were located on the ceiling of the forward cargo compartment, and had chafed. Wires for the fuel quantity indication system (FQIS), which penetrate the fuel tank, are routed through one of the wire bundles that was damaged in the reported incident. Damage of FQIS wires could cause arcing between those wires and power wires in the damaged wire bundle, and may lead to transmission of electrical energy into the fuel tank, which would result in a potential source of ignition in the fuel tank.

Due consideration has been given to the comments received in response to the original NPRM. Some of the comments have resulted in changes to the original NPRM.

One operator supports the original NPRM.

One commenter, an operator, has identified three problems in Boeing Service Bulletin 767-24A0128, dated May 11, 2000, which was identified as the appropriate service information for the actions specified in the original NPRM. First, the Panduit strap does not fit into the cable spacer, as described in that service bulletin. Second, the specified 0.5-inch clearance between the wire bundles and the cargo liner is impossible to achieve. Third, the cargo liner panel is mislabeled in Figure 1, Sheet 2, of the service bulletin.

The FAA agrees. Boeing has revised the service bulletin, which the FAA has reviewed and approved. Boeing Service Bulletin 767-24A0128, Revision 2, dated May 23, 2002, addresses all of the commenter's concerns: The new Panduit straps will fit the cable spacers; the space requirements between the wire bundles and the cargo ceiling liner standoff have been revised to 0.25 inch for sleeving and 0.13 inch for sleeving and spacers; and Figure 1, Sheet 2, has been revised to identify the “floor beam” rather than the “ceiling liner.” The FAA has revised this supplemental NPRM to cite Revision 2 of the service bulletin as the appropriate service information for the proposed actions. Revision 2 of the service bulletin expands the inspection to include areas that were inadvertently omitted from the original service bulletin and Revision 1. Specifically, this supplemental NPRM would require inspection of wire bundles between right buttock line (RBL) 40 and RBL 70. (The original NPRM proposed to require inspection of bundles between RBL 40 and RBL 54.)

One commenter, an operator, recommends revising the Cost Impact section. Rather than 2 work hours to accomplish all the actions specified in the original NPRM, the commenter suggests that this figure be revised to 32 work hours per airplane, broken down as follows: 2 work hours to access the area, 2 work hours to inspect the wire bundles, 26 work hours to protect the wire bundles (the commenter reports finding inadequate clearance on the wire bundles on nearly all its airplanes and is adding protection to the bundles on each airplane), and 2 work hours for restoration.

The FAA partially agrees. Although moderating the clearance requirements (as described previously) would considerably reduce the time necessary to accomplish the corrective actions, only the inspection and clearance measurement of the wire bundles would actually be required by this supplemental NPRM. The economic analysis of an AD is limited to the cost of actions actually required by the rule. It does not consider the cost of conditional actions, which would be required to be accomplished—regardless of AD direction—to correct an unsafe condition identified on an airplane and to ensure operation of that airplane in an airworthy condition, as required by the Federal Aviation Regulations.

Two commenters, both operators, request that the compliance time be extended from 15 months to 18 months. One operator states that an 18-month compliance time would correspond to available maintenance opportunities for the fleet, based on the work-hour estimates, without compromising safety. The other operator requests that the compliance time reflect ATA “Spec 111” recommended guidelines for such non-emergency-related safety issues, and suggests that an 18-month compliance time would coincide with regularly scheduled “C” check visits.

The FAA agrees. In light of the revised work-hour estimates provided in Revision 2 of the service bulletin, the FAA finds that the proposed 18-month compliance time is more appropriate for the majority of operators to accomplish the corrective action that would be mandated by this supplemental NPRM and still ensure the safety of the fleet. This supplemental NPRM has been revised accordingly.

One commenter, an operator, requests that the proposed AD be revised to clarify that only the inspection is required and operators may choose to rework the wire bundles if “deemed necessary.” The commenter requests that the difference between the service bulletin instructions and the AD inspection requirements be clearly defined.

The FAA partially agrees. The rework instructions in Revision 2 of the service bulletin correspond to the proposed requirements in this supplemental NPRM. However, the FAA disagrees with the request to require only the inspection of the wire bundles and to permit operators to determine whether corrective action is needed. The FAA finds that the need to rework the wire bundles is not a discretionary option for operators. If conditions exist that require the rework (as specified in this supplemental NPRM and clarified in Revision 2 of the service bulletin), then operators are required to comply with the rework requirements. The rework conditions proposed in this supplemental NPRM are the same as those recommended in Revision 2 of the service bulletin. No further change to this supplemental NPRM is necessary.

Revision 2 of the service bulletin specifies additional areas to be inspected. Since this change expands the scope of the original NPRM, the FAA has determined that it is necessary to reopen the comment period to provide additional opportunity for public comment.

The service bulletin recommends accomplishing the inspection “at the earliest opportunity when manpower and facilities are available.” However, the FAA has determined that such a compliance time will not ensure that operators address the unsafe condition in a timely manner. In developing an appropriate compliance time for this supplemental NPRM, we considered not only the manufacturer's recommendation, but the degree of urgency associated with addressing the subject unsafe condition, and the time necessary to accomplish the actions. In light of all of these factors, the FAA finds that an 18-month compliance time represents an appropriate length of time to allow affected airplanes to continue to be operated without compromising safety.

While the service bulletin specifies that operators “inspect” (for chafing or damage of wire bundles), this supplemental NPRM would require a “detailed inspection.” The FAA has determined that the procedures as described in the service bulletin should be considered a detailed inspection. Note 2 has been revised in this supplemental NPRM to define this type of inspection.

There are approximately 774 airplanes of the affected design in the worldwide fleet. The FAA estimates that 303 airplanes of U.S. registry would be affected by this supplemental NPRM, that it would take approximately 2 work hours per airplane to accomplish the proposed inspection, and that the average labor rate is $60 per work hour. Based on these figures, the cost impact of this supplemental NPRM on U.S. operators is estimated to be $36,360, or $120 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 supplemental NPRM were not adopted. The cost impact figures discussed in AD rulemaking actions represent only the time necessary to perform the specific actions actually required by the AD. These figures typically do not include incidental costs, such as the time required to gain access and close up, planning time, or time necessitated by other administrative actions.

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

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

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

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify the airspace docket number and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket Nos. FAA-2002-13414/Airspace Docket No. 02-AGL-7.” The postcard will be date/time stamped and returned to the commenter. All communications received on or before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of comments received. All comments submitted will be available for examination in the Rules Docket both before and after the closing date for comments. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at http://dms.dot.gov.

Additionally, any person may obtain a copy of this notice by submitting a request to the Federal Aviation Administration, Office of Air Traffic Airspace Management, ATA-400, 800 Independence Avenue, SW., Washington, DC 20591, or by calling (202) 267-8783. Communications must identify both docket numbers of this NPRM. Persons interested in being placed on a mailing list for future NPRM's should call the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.

By letter, the USAF requested that the FAA take action to increase the vertical limits of R-6904A and R-6904B from 17,000 feet above MSL to FL 230. Currently, participating aircraft must change their flight profile when crossing the 1,000 feet of airspace located above the restricted areas and below the Volk West ATCAA. This requested action would facilitate the transition of participating aircraft between these restricted areas and the overlying Volk West ATCAA by eliminating the 1,000-foot gap between the restricted areas and the ATCAA. This proposed action would also provide additional airspace needed to fulfill new USAF training requirements. Specifically, new training requirements call for practicing the release of bombs from higher altitudes than are currently available within the existing airspace structure. The current upper limit of 17,000 feet above MSL is not suitable for meeting this new training requirement. Raising the ceiling to FL 230 would allow for the required practice. No other changes to R-6904A or R-6904B are requested.

The FAA is proposing an amendment to 14 CFR part 73 to raise the vertical limits of R-6904A and R-6904B from 17,000 feet above MSL to FL 230. This additional altitude is required to eliminate the 1,000-foot gap between the restricted areas and the overlying Volk West ATCAA, and to meet the Air Force's requirement to practice the release of bombs from higher altitudes than are currently available within the existing restricted area airspace. No other changes to R-6904A or R-6904B are proposed.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

This proposal will be subjected to an environmental analysis in accordance with FAA Order 1050.1D, Procedures for Handling Environmental Impacts, prior to any FAA final regulatory action.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 73 as follows:

Background

The Comprehensive Crime Control Act of 1984 (Pub. L. 98-473) amended section 201 of the CSA (21 U.S.C. 811) to give the Attorney General the authority to temporarily place a substance into Schedule I of the CSA for one year without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid an imminent hazard to the public safety. The Attorney General may extend the temporary scheduling up to 6 months. A substance may be temporarily scheduled under the emergency provision of the CSA if that substance is not listed in any other schedule under section 202 of the CSA (21 U.S.C. 812) or if there is no exemption or approval in effect under 21 U.S.C. 355 for the substance. The Attorney General has delegated his authority under 21 U.S.C. 811 to the Deputy Administrator of DEA (28 CFR 0.100).

Section 201(h)(4) of the CSA (21 U.S.C. 811(h)(4)) requires the Deputy Administrator to notify the Assistant Secretary for Health, delegate of the Secretary of Health and Human Services, of his intention to temporarily place a substance into Schedule I of the CSA. Comments submitted by the Assistant Secretary for Health in response to this notification, including whether there is an exemption or approval in effect for the substance in question under the Federal Food, Drug and Cosmetic Act, shall be taken into consideration before a final order is published.

In making a finding that places a substance temporarily into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Deputy Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA (21 U.S.C. 811(c)). These factors are as follows: (4) History and current pattern of abuse; (5) The scope, duration and significance of abuse; and (6) What, if any, risk there is to the public health.

Alpha-methyltryptamine (AMT) and 5-methoxy-N,N-diisopropyltryptamine (5-MeO-DIPT) are tryptamine (indoleethylamine) derivatives and share several similarities with the Schedule I tryptamine hallucinogens, alpha-ethyltryptamine (AET) and N,N-dimethyltryptamine (DMT), respectively. Several other tryptamines also produce hallucinogenic/stimulant effects and are controlled as Schedule I substances under the CSA (bufotenine, diethyltryptamine, psilocybin and psilocin). Although tryptamine itself appears to lack consistent hallucinogenic/stimulant effects, substitutions on the indole ring and the ethylamine side-chain of this molecule result in pharmacologically active substances (McKenna and Towers, J. Psychoactive Drugs, 16: 347-358, 1984).

The chemical structures of AMT and 5-MeO-DIPT possess the critical features necessary for hallucinogenic/stimulant activity. Thus, both AMT and 5-MeO-DIPT are likely to have a pharmacological profile substantially similar to other Schedule I tryptamine derivatives such as DMT and AET. In drug discrimination studies, both AMT and 5-MeO-DIPT substitute for 1-(2,5-dimethoxy-4-methylphenyl)-aminopropane (DOM), a phenethylamine-based hallucinogen in Schedule I of the CSA. The potencies of DOM-like discriminative stimulus effects of these and several other similar tryptamine derivatives correlate well with their hallucinogenic potencies in humans (Glennon et al., Eur. J. Pharmacol. 86:453-459, 1983).

AMT shares other pharmacological properties with Schedule I hallucinogens such as AET. AMT increases systolic and diastolic arterial blood pressures. The behavioral effects of orally administered AMT (20 mg) in humans are slow in onset, occurring after 3 to 4 hours and gradually subside after 12 to 24 hours, but may last up to 2 days in some subjects. The majority of the subjects report nervous tension, irritability, restlessness, inability to sleep, blurry vision, mydriasis and equate the effects of a 20 mg dose to those of 50 micrograms of lysergic acid diethylamide (LSD) (Hollister et al., J. Nervous Ment. Dis., 131: 428-434, 1960; Murphree et al., Clin. Pharmacol. Ther., 2: 722-726, 1961). AMT also produces hallucinations and dextroamphetamine-like mood elevating effects.

5-MeO-DIPT also produces pharmacological effects similar to those of other Schedule I hallucinogens such as DMT. The synthesis and preliminary human psychopharmacology study on 5-MeO-DIPT was first published in 1981 (Shulgin and Carter, Comm. Psychopharmacol. 4: 363-369, 1981). 5-MeO-DIPT is an orally active hallucinogen. Following oral administration of 6-10 mg, 5-MeO-DIPT produces subjective effects with an onset at about 20-30 minutes, a peak at about 1-1.5 hours and a duration of about 3-6 hours. Subjects who have been administered 5-MeO-DIPT are talkative and disinhibited. 5-MeO-DIPT causes mydriasis. High doses of 5-MeO-DIPT produce nausea, jaw clenching, muscle tension and overt hallucinations with both auditory and visual distortions.

The popularity and use of hallucinogenic/stimulant substances at raves (all-night dance parties) and other social venues have been a major problem in Europe since the 1990s. In the past several years, this activity has spread to the United States. The Schedule I controlled substance 3,4-methylenedioxymethamphetamine (MDMA or Ecstasy) and its analogues are the most frequently abused drugs at these raves. Their abuse has been associated with both acute and long-term public health and safety problems. Raves have also become venues for the trafficking and abuse of new, non-controlled substances distributed as legal substitutes for, or in addition to, MDMA. 5-MeO-DIPT and AMT belong to such a group of substances.

Data gathered from published studies, supplemented by reports on Internet websites indicate that these are often administered orally at doses ranging from 15-40 mg for AMT and 6-20 mg for 5-MeO-DIPT. Other routes of administration include smoking and snorting. Data from law-enforcement officials indicate that 5-MeO-DIPT is often sold as “Foxy” or “Foxy Methoxy”, while AMT has been sold as “Spirals” at least in one case. Both substances have been commonly encountered in tablet and capsule forms.

According to forensic laboratory data, the first encounter of AMT and 5-MeO- DIPT occurred in 1999. Since then, law enforcement officials in Arizona, California, Colorado, Delaware, Florida, Idaho, Illinois, Iowa, New Jersey, Oregon, Texas, Virginia, Washington, Wisconsin and the District or Columbia have encountered these substances. According to the Florida Department of Law Enforcement (FDLE), the abuse by teens and young adults of AMT and 5-MeO-DIPT is an emerging problem. There have been reports of abuse of AMT and 5-MeO-DIPT at clubs and raves in Arizona, California, Florida and New York. Many tryptamine-based substances are illicitly available from United States and foreign chemical companies and from individuals through the Internet. A gram of AMT or 5-MeO-DIPT as bulk powder costs less than $150 from illicit sources on the Internet. DEA is not aware of any legitimate medical or scientific use of AMT and 5-MeO-DIPT. There is recent evidence suggesting the attempted clandestine production of AMT and 5-MeO-DIPT in Nevada, Virginia and Washington, DC.

AMT and 5-MeO-DIPT share substantial chemical and pharmacological similarities with other Schedule I tryptamine-based hallucinogens in Schedule I of the CSA (AET and DMT). This makes it likely that these drugs cause similar health hazards. Tryptamine, the parent molecule of AMT and 5-MeO-DIPT, is known to produce convulsions and death in animals (Tedeschi et al. , J. Pharmacol. Exp. Ther. 126:223-232, 1959). AMT and 5-MeO-DIPT, similar to other tryptaine- or phenethylamine-based hallucinogens, through the alteration of sensory perception and judgment can pose serious health risks to the user and the general public. Further, there have been several self-reports on Internet websites describing the reported abuse of these substances in combination with other controlled drugs, namely MDMA, marijuana, gamma hydroxybutyric acid (GHB) and 2,5-dimethoxy-4-(n)-propylthiophenethylamine (2C-T-7). This practice of drug abuse involving combinations poses additional health risks to the users and the general public. Available information indicates that AMT and 5-MeO-DIPT lack any approved therapeutic use in the United States. The safety of these substances for use in humans has not been studied.

DEA has considered the three criteria for placing a substance into Schedule I of the CSA (21 U.S.C. 812). The data available and reviewed for AMT and 5-MeO-DIPT indicate that these substances each have a high potential for abuse, no currently accepted medical use in treatment in the United States and are not safe for use under medical supervision.

Section 201(h)(4) of the CSA (21 U.S.C. 811(h)(4)) requires the Deputy Administrator to notify the Assistant Secretary for Health, delegate of the Secretary of Health and Human Services, of his intention to temporarily place substances into Schedule I of the CSA. Comments submitted by the Assistant Secretary for Health in response to the notification regarding AMT and 5-MeO-DIPT, including whether there is an exemption or approval in effect for the substances in question under the Federal Food, Drug and Cosmetic Act, shall be taken into consideration before a final order is published.

Based on the above data, the continued uncontrolled distribution and abuse of AMT and 5-MeO-DIPT pose an imminent risk to the public safety. DEA is not aware of any recognized therapeutic uses of these substances in the United States.

In accordance with the provisions of section 201(h) of the CSA (21 U.S.C. 811(h)) and 28 CFR 0.100, the Deputy Administrator has considered the available data and the three factors required for a determination to temporarily schedule AMT and 5-MeO-DIPT in Schedule I of the CSA and finds that placement of AMT and 5-MeO-DIPT into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety.

Because the Deputy Administrator finds that it is necessary to temporarily place AMT and 5-MeO-DIPT into Schedule I to avoid an imminent hazard to the public safety, the final order, if issued, will be effective on the date of publication of the Federal Register . AMT and 5-MeO-DIPT will be subject to the regulatory controls and administrative, civil and criminal sanctions applicable to the manufacture, distribution, possession, importing and exporting of a Schedule I controlled substance under the CSA. Further, it is the intention of the Deputy Administrator to issue such a final order as soon as possible after the expiration of thirty days from the date of publication of this notice and the date that notification was transmitted to the Assistant Secretary for Health.

The Deputy Administrator hereby certifies that this rulemaking has been drafted in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation, and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. This action provides a notice of intent to temporarily place AMT and 5-MeO-DIPT into Schedule I of the CSA. DEA is not aware of any legitimate uses of AMT and 5-MeO-DIPT in the United States.

This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule will not has sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This rule will not result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

We encourage you to participate in this rulemaking by submitting comments and related material. If you do so, please include your name and address, identify the docket number for this rulemaking (CCGD8-02-018), indicate the specific section of this document to which each comment applies, and give the reason for each comment. Please submit all comments and related material in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying. If you would like to know they reached us, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period. We may change this proposed rule in view of them.

We do not now plan to hold a public meeting. But you may submit a request for a meeting by writing to Commander, Eighth Coast Guard District (m) at the address under ADDRESSES explaining why one would be beneficial. If we determine that a public meeting would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

At its February 2002 meeting the Houston/Galveston Navigation Safety Advisory Committee (HOGANSAC) recommended establishment of a third anchorage area in the Galveston Bay area. HOGANSAC, a Congressionally-chartered Federal advisory committee, is responsible for advising, consulting with and making recommendations to the Secretary of Transportation on matters relating to the transit of vessels to and from the ports of Galveston, Houston and Texas City and the safety of maritime navigation in the Galveston Bay area. Participants at the February 2002 HOGANSAC meeting noted that a third anchorage in the Bolivar Roads area was necessary to address port security and navigation safety concerns. After extensive discussion, including the observations of and comments from members of the public in attendance, HOGANSAC recommended that the Coast Guard establish a third anchorage area in Bolivar Roads.

Based on the recommendation of HOGANSAC the Coast Guard proposes a third anchorage area, anchorage area (C), in Bolivar Roads. The proposed anchorage area, located inside the Galveston Bay Entrance Jetties, would provide a sheltered location for vessels to anchor during heavy weather or reduced visibility conditions. The existing anchorages, anchorage area (A) and anchorage area (B), are generally full during these same periods and there is no alternative sheltered anchorage in Bolivar Roads. The proposed location of anchorage area (C), abuts the western edge of anchorage area (B), is in a naturally deep portion of Bolivar Roads, and is outside any heavily traveled section of the waterway.

This third anchorage area is also necessary because port security-related initiatives adopted by various terminals and facilities in the Galveston Bay area have restricted pier side operations critical to the efficient flow of maritime commerce. For example, bunkering, provisions deliveries, and personnel transfer operations are restricted or prohibited by numerous facilities in the ports of Galveston, Houston and Texas City. The nature of those activities requires that they be accomplished in calm water conditions and relatively close to shore. As a result, vessel operators and ship owners rely upon the existing anchorage areas (anchorage areas (A) and (B)) in Galveston Bay to conduct these operations. Increasingly, anchorage space in those areas is in high demand. A third designated anchorage area would relieve congestion and provide anchorage space to accommodate the ever-increasing volumes of traffic in the Galveston Bay area.

The proposed amendment would create a new anchorage area, to be known as anchorage area (C), bounded by rhumb lines joining points at:

The anchorage area would be for the temporary use by vessels of all types. Vessels may occupy the anchorage area during a wide range of conditions and for a broad variety of purposes. For example, vessels would be allowed to anchor temporarily while taking on stores, transferring personnel, or engaging in bunkering or lightering operations. Vessels would also be allowed to use the anchorage area while awaiting weather and other conditions favorable to resuming their voyage. Except when stress of weather makes sailing impractical or hazardous, vessels would not be allowed to anchor in anchorage area (C) for more than 48 hours unless authorized by the Captain of the Port Houston-Galveston. Authorization to remain for more than 48 hours would be obtained via VHF-FM radio through Coast Guard Vessel Traffic Service Houston/Galveston. No vessel with a draft of less than 16 feet would be allowed to occupy anchorage area (C) without prior approval of the Captain of the Port Houston-Galveston. Vessels would not be allowed to anchor so as to obstruct the passage of other vessels proceeding to and from other anchorage spaces. Anchors would not be placed in the channel and no portion of the hull or rigging of any anchored vessel would be allowed to extend outside the limits of the anchorage area. Vessels using spuds for anchors would have to anchor as close to shore as practicable. Fixed moorings, piles or stake and floats, and buoys for marking anchorages or moorings in place would be prohibited. Whenever the maritime or commercial interests of the United States so require, the Captain of the Port Houston-Galveston or his designated representative may direct the movement of any vessel anchored or moored within the anchorage areas.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order. It is not “significant” under the regulatory policies and procedures of the Department of Transportation (DOT) (44 FR 11040, February 26, l979).

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation under paragraph 10 (e) of the regulatory policies and procedures of DOT is unnecessary. The proposed anchorage area would not unnecessarily restrict traffic as it is located outside of the established navigation channel. Vessels would be able to maneuver in, around and through the anchorage. Operators who choose to maneuver their vessels around the limits of the proposed anchorage area would not be significantly impacted because the total route deviation to cross from one side of the anchorage to the other following the perimeter of the anchorage is only 1.4 nautical miles.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule could potentially affect the following entities, some of which might be small entities: the owners or operators of vessels intending to fish or anchor in, or transit through, the proposed anchorage area (C) in Bolivar Roads.

The number of small entities impacted and the extent of the impact, if any, is expected to be minimal. The proposed anchorage would be located in an area of Bolivar Roads that is not a popular or productive fishing location. Further, the proposed location is in an area not routinely transited by vessels heading to, or returning from, known fishing grounds. Finally, the anchorage would be located in an area that is not currently used by small entities, including small vessels, for anchoring due to the depth of water naturally present in the area.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Karrie Trebbe, Project Manager for Eighth Coast Guard District Commander, at (504) 589-6271.

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

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

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

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

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

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

This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

To help the Coast Guard establish regular and meaningful consultation and collaboration with Indian and Alaskan Native tribes, we published a notice in the Federal Register (66 FR 36361, July 11, 2001) requesting comments on to best carry out the order. We invite your comments on how this proposed rule might impact tribal governments, even if that impact may not constitute a “tribal implication” under the Order.

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

We have considered the environmental impact of this proposed rule and concluded that, under figure 2-1, paragraph (34)(f), of Commandant Instruction M16475.lD, this rule is categorically excluded from further environmental documentation because it is a regulation establishing an additional anchorage ground. A “Categorical Exclusion Determination” is available in the docket where indicated under ADDRESSES.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 110 as follows:

A series of court orders in the class-action litigation in Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.), requires VA to assign retroactive effective dates for certain awards of disability compensation and DIC in a manner not provided for in any existing statute or regulation. The court orders require that, when VA awards disability compensation or DIC pursuant to a regulatory presumption of service connection under the Agent Orange Act of 1991, Pub. L. 102-4, VA must in certain cases make the award effective retroactive to the date of the claimant's application or the date of a previously-denied application, even if such date is earlier than the effective date of the regulation establishing the presumption. Current regulations, however, prohibit VA from making a benefit award effective any earlier than the effective date of the regulation establishing the presumption. Because the conflict between current statutes and regulations and the Nehmer court orders may create confusion, we propose to amend our regulations to reflect the requirements of the Nehmer court orders.

In 1991, Congress enacted the Agent Orange Act of 1991, Pub. L. 102-4 (codified at 38 U.S.C. 1116 and in the notes to that section). That Act established presumptions for chloracne, non-Hodgkins lymphoma, and soft-tissue sarcoma. It further provided that VA would obtain reports from the National Academy of Sciences (NAS) every two years for a ten-year period, assessing the available scientific evidence regarding the association between exposure to herbicides and the development of diseases in humans. After receiving each report, VA must determine whether there is a “positive association” between herbicide exposure and any of the diseases discussed in the report. If a positive association exists for any such disease, VA must issue regulations to establish a presumption of service connection for that disease in veterans exposed to herbicides during service. VA has established presumptions of service connection for seven additional diseases or categories of disease, which are listed in 38 CFR 3.309(e).

The Agent Orange Act of 1991 provides that regulations issued pursuant to that act shall take effect on the date they are issued. Under generally applicable effective-date rules in 38 U.S.C. 5110(g) and 38 CFR 3.114, when VA awards benefits pursuant to a liberalizing regulation, the award may not be made effective any earlier than the effective date of the liberalizing regulation. Under those provisions, awards based on presumptions of service connection established under the Agent Orange Act of 1991 can be made effective no earlier than the date VA issued the regulation authorizing the presumption.

However, the district court orders in the Nehmer litigation create an exception to the generally applicable rules in 38 U.S.C. 5110(g) and 38 CFR 3.114, and require VA to assign retroactive effective dates for certain awards of disability compensation and DIC that are based on VA's regulations under the Agent Orange Act of 1991, Pub. L. 102-4. This exception applies only to claims by members of the Nehmer class. VA is required to comply with the district court's orders, which have been affirmed by the United States Court of Appeals for the Ninth Circuit to the extent they were appealed. Accordingly, we propose to issue a regulation explaining the requirements established by those orders to ensure timely and consistent adjudication under those orders without further need for special instructions.

The Nehmer court orders also require that, if an individual was entitled to retroactive benefits as a result of the court orders but died prior to receiving such payment, VA must pay the entire amount of such retroactive payments to the veteran's estate, without regard to statutory limits on payment of benefits following a beneficiary's death. Section 5121(a) of title 38, United States Code, provides that, when VA benefits remain due and unpaid at the time of a beneficiary's death, VA may pay to certain survivors only the portion of such benefits that accrued during the two-year period preceding death. Current VA regulations reflect the requirements of section 5121(a), and contain no exception for cases covered by the Nehmer court orders. Because the conflict between current regulations and the Nehmer court orders may create confusion, we propose to amend our regulations to reflect the requirements of the Nehmer court orders. Accordingly, we propose to issue rules reflecting the limited exception to section 5121(a) established by the Nehmer court orders. This exception applies only to certain benefits for members of the Nehmer class. As stated above, the intent of this rule is to ensure timely and consistent compliance with the court's orders without the need for further special instructions.

The Nehmer litigation was initiated in 1986 to challenge a VA regulation, former 38 CFR 3.311a (which has since been rescinded) that stated, among other things, that chloracne was the only disease shown by sound medical and scientific evidence to be associated with herbicide exposure. In 1987, the district court certified the case as a class action on behalf of all Vietnam veterans and their survivors who had been denied VA benefits for a condition allegedly associated with herbicide exposure or who would be eligible to file a claim for such benefits in the future. In an order issued on May 3, 1989, the court invalidated the portion of the regulation providing that no condition other than chloracne was associated with herbicide exposure and voided all VA decisions denying benefit claims under that portion of the regulation. Nehmer v. United States Veterans' Admin., 712 F. Supp. 1404 (N.D. Cal. 1989).

After Congress enacted the Agent Orange Act of 1991, Pub. L. 102-4, VA and the plaintiff class in Nehmer entered into a stipulation to address remedial issues resulting from the May 1989 order. The stipulation provided that VA would not deny any claims of the Nehmer class members until VA had acted on the first NAS report issued under the Agent Orange Act of 1991, Pub. L. 102-4. The stipulation further stated that, once VA issued regulations establishing a presumption of service connection for any disease pursuant to the Act, VA would readjudicate all claims for any such disease in which a prior denial had been voided by the district court's May 3, 1989 order and would adjudicate all similar claims filed after May 3, 1989. The stipulation stated that, if benefits were granted upon readjudication of a claim where a prior denial was voided, the effective date of the benefit award would be the date VA received the claim underlying the voided decision or the date the disability arose or the death occurred, whichever was later. In claims filed after May 3, 1989, the stipulation stated that the effective date of any benefits awarded would be the date VA received the claim or the date the disability arose or the death occurred, whichever was later. The district court incorporated the stipulation in a final order.

On October 15, 1991, VA issued a regulation establishing a presumption of service connection for soft-tissue sarcomas based on herbicide exposure. On February 6, 1991, the Agent Orange Act of 1991, Pub. L. 102-4, established statutory presumptions of service connection for non-Hodgkin's lymphoma, soft-tissue sarcomas, and chloracne. In June 1993, VA received the first NAS report under the Agent Orange Act of 1991. Thereafter, VA issued regulations establishing presumptions of service connection for four additional diseases (Hodgkin's disease, February 3, 1994; porphyria cutanea tarda, February 3, 1994; respiratory cancers, June 9, 1994; multiple myeloma, June 9, 1994). In 1994, VA began to readjudicate the claims where a prior denial had been voided by the 1989 court order and to adjudicate claims filed subsequent to that order. In cases where VA granted benefits upon such readjudication or adjudication, it assigned effective dates as required by the Nehmer stipulation and order, even though the effective dates in many cases were earlier than the effective dates of the statute or liberalizing regulations that authorized the awards.

In 1996, VA received the second NAS report under the Agent Orange Act of 1991. Based on new information contained in that report, VA issued regulations on November 7, 1996 establishing presumptions of service connection for prostate cancer and acute and subacute peripheral neuropathy. In 2001, based on new information in a later NAS report, VA established a presumption of service connection for type 2 diabetes effective July 9, 2001.

In 2000, the parties to the Nehmer case disagreed as to whether the retroactive-payment provisions of the Nehmer stipulation and order applied to all eight diseases that were associated with herbicide exposure at that time (type 2 diabetes had not yet been recognized) or only to the seven diseases that were presumptively service connected based on the Agent Orange Act of 1991, Pub. L. 102-4, and the first NAS report under that statute. The plaintiffs argued that the stipulation required VA to pay retroactive benefits for all diseases that are service connected at any time under the Agent Orange Act of 1991, Pub. L. 102-4. VA argued that the stipulation required retroactive payment only for disease service connected based on the first NAS report, and that the broader interpretation urged by the plaintiffs was contrary to the Agent Orange Act of 1991, Pub. L. 102-4 and 38 U.S.C. 5110(g).

In a December 12, 2000 order, the district court held that the stipulation and order required VA to give retroactive effect to all regulations issued under the Agent Orange Act of 1991, Pub. L. 102-4. VA appealed that order to the United States Court of Appeals for the Ninth Circuit. On April 1, 2002, the Court of Appeals affirmed the district court's order.

We propose to issue a new regulation, to be codified at 38 CFR 3.816, to explain the rules VA is required to apply as a result of the court orders in the Nehmer case. Those rules are complex and are not reflected in any current statute or regulation. Moreover, the public may have difficulty accessing and understanding the court orders establishing those rules. Accordingly, we believe a regulation explaining the Nehmer rules is necessary to provide guidance to VA personnel as well as to VA claimants and their representatives.

To the extent the rules required by the Nehmer court orders depart from the generally-applicable rules in 38 U.S.C. 5110(g) and 5121(a), they are judicially-created exceptions to those general rules. VA is required to comply with the Nehmer court orders. In order to clarify the basis for this regulation, we propose to state, in § 3.816(a), that these rules are required by the Nehmer court orders.

The effective-date rules required by the Nehmer court orders apply only to members of the plaintiff class certified by the district court in that case. In a 1987 order, the district court ruled that the Nehmer class would consist of all veterans and their survivors who have applied for VA benefits for disability or death due to exposure in service to an herbicide containing dioxin or who would become eligible in the future to apply for such benefits. Accordingly, any Vietnam veteran would potentially be a Nehmer class member, as would any survivors of such veteran who would be eligible to apply for DIC. The effective-date provisions of this rule would apply only to class members entitled to disability compensation or DIC for disability or death due to a disease associated with herbicide exposure. Accordingly, for purposes of this rule, we propose to define a “ Nehmer class member” as a Vietnam veteran who has a covered herbicide disease, or a surviving spouse, child, or parent of a deceased Vietnam veteran who died from a covered herbicide disease.

The effective-date rules required by the Nehmer court orders apply only to benefits for disability or death caused by a disease for which VA has established a presumption of service connection under the Agent Orange Act of 1991, Public Law 102-4. For purposes of this rule, we propose to use the term “covered herbicide disease” and to define that term to mean a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991, Public Law 102-4, excluding chloracne. As explained below in this notice, the effective-date rules of the Nehmer stipulation and court orders apply only to diseases for which a presumption of service connection is established under the authority granted by the Agent Orange Act of 1991, Public Law 102-4. Because the authority granted by that Act at the time the stipulation was entered extended only until September 30, 2002, any presumptions established after that date based on other legislative grants of rule-making authority are not within the scope of the Nehmer stipulation and court orders.

Although chloracne is a presumptive herbicide disease, we propose to exclude it from the definition of covered herbicide disease for purposes of this rule because claims and awards based on chloracne were not affected by any of the Nehmer court orders. VA established a presumption of service connection for chloracne effective September 25, 1985, and that presumption has remained in effect throughout the period relevant to the Nehmer litigation. In its May 3, 1989, order, the district court invalidated the portion of VA's regulation providing that conditions other than chloracne were not shown to be associated with herbicide exposure and it voided decisions made under that portion of the regulation. The court left intact the provision establishing a presumption of service connection for chloracne and did not void any decisions involving chloracne. Moreover, the Nehmer stipulation and order states that it applies to diseases service connected by VA “in the future” under the Agent Orange Act of 1991, Public Law 102-4. Because chloracne had been presumptively service connected since 1985, it was not affected by the stipulation and order.

The effective-date rules stated in the proposed regulation reflect paragraph 5 of the Nehmer stipulation and order. That paragraph states separate rules governing the effective dates of awards granted upon readjudication of a claim where a prior denial was voided by the May 3, 1989 Nehmer order and the effective dates of awards granted upon adjudication of a claim filed after May 3, 1989.

With respect to the voided decisions, the stipulation and order provides that the effective date of an award made upon readjudication of the claim will be the later of the date the claim giving rise to the voided decision was filed (provided that the basis of the award is the same basis upon which the original claim was filed) or the date the disability arose or the death occurred. The stipulation and order states that the “basis” of the original claim refers to the disease or condition required, under provisions of a VA procedural manual, to be coded in the VA rating decision on the claim. The stipulation and order further states that the provisions of 38 U.S.C. 5110(b)(1) and (d)(1) will govern when applicable. Section 5110(b)(1) provides for a disability compensation effective date corresponding to the day following the veteran's release from service if the veteran's application is received within one year of that date. Section 5110(d)(1) provides for a DIC effective date corresponding to the first day of the month in which death occurred if the claimant's application is received within one year from the date of death.

With respect to claims filed after May 3, 1989, the stipulation and order provides that the effective date of benefits shall be the later of the date VA received the claim asserting the basis upon which the claim was granted or the date the disability arose or the death occurred.

We propose to provide paragraphs separately explaining the application of these rules to disability compensation awards and DIC awards. In view of the complexity of the Nehmer rules, we believe this level of detail will provide greater clarity.

Section 3.816(c)(1) states that, if a Nehmer class member is entitled to disability compensation for a covered herbicide disease, and VA previously denied service connection for the same disease in a decision issued between September 25, 1985, the effective date of the invalidated regulation, and May 3, 1989, the effective date will be the later of the date VA received the claim on which the prior decision was based or the date the disability arose. This rule governs cases where a prior denial was voided by the district court's May 3, 1989 order. In an order dated February 11, 1999, the district court in Nehmer held that its 1989 order had voided claims rendered while former 38 CFR 3.311a(d) was in effect, provided that such claims denied compensation for a disease that VA later recognized as being associated with herbicide exposure. The court held that it is irrelevant whether the prior claim alleged that the disease was caused by herbicide exposure or whether the prior decision had referenced former § 3.311a(d). Accordingly, the only requirements for retroactive payment to a class member under proposed § 3.816(c)(1) would be that the decision have been rendered between September 25, 1985 and May 3, 1989—the period when former § 3.311a(d) was in effect—and that the decision have denied service connection for the same covered herbicide disease for which compensation has now been awarded.

Paragraph 5 of the Nehmer stipulation and order provides that the basis of the prior claim will be determined by reference to the diseases or conditions coded in the prior rating decision as required by provisions of a VA procedural manual. In accordance with the manual, VA rating decisions on claims for disability compensation ordinarily identify each claimed disease or injury by name and by a diagnostic code found in VA's Schedule for Rating Disabilities, which is located in 38 CFR part 4. There may be variations in both the terminology and diagnostic codes assigned to a particular disease depending on various aspects of the disease or associated conditions. For example, disability due to cancer of the larynx may have been rated as either a malignant neoplasm of the respiratory system (diagnostic code 6844) or residuals of a laryngectomy (diagnostic code 6819). Similarly, soft-tissue sarcomas may be described using different terminology or different diagnostic codes depending upon the body part or system primarily involved. Additionally, some diagnostic codes refer to broad classes of disease that encompass both covered and non-covered diseases. For example, diagnostic code 6819 (Neoplasms, malignant, any specified part of respiratory system exclusive of skin growths) may refer to either a covered disease ( e.g. , lung cancer) or a non-covered disease ( e.g. , nasal cancer).

We do not intend that minor, immaterial variations in terminology or diagnostic code would preclude application of the Nehmer rules. However, it must be established that the prior decision involved the same disease for which compensation has now been awarded, rather than a distinct condition arguably bearing some relation to the compensable disease because, for example, it involves the same body part or system. Accordingly, we propose to state that a prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. We further propose to state that minor variations in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the decision denied service connection for the same covered herbicide disease.

Proposed § 3.816(c)(2) states that, if a class member is entitled to compensation for a covered herbicide disease and the class member's claim for compensation for that same disease was either pending on May 3, 1989 or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the disease, the effective date of compensation will be the later of the date VA received such claim or the date the disability arose. The Nehmer stipulation and order refers only to claims denied prior to May 3, 1989 and claims filed after that date. It does not expressly provide effective dates for claims that were filed prior to May 3, 1989 but not yet adjudicated by that date. Notwithstanding this apparent oversight, we propose to treat such claims in the same manner as claims filed after May 3, 1989, as no decision on a claim pending on May 3, 1989, could have been voided by the court order.

We propose to state that a claim will be considered a claim for compensation for a particular covered herbicide disease if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability. This will merely ensure that the generally applicable provisions of statute and regulation governing claims will apply in determining whether and at what date a particular claim was filed for purposes of this rule.

We propose to state in § 3.816(c)(3) that, if a claim referenced in paragraph (c)(1) or (c)(2) was received by VA within one year after the date of the veteran's separation from service, the effective date of compensation will be the day following such separation. This would ensure that the principle stated in 38 U.S.C. 5110(b)(1) is applied, as required by the Nehmer stipulation and order. We note that the stipulation and order requires VA to apply section 5110(b)(1) to awards made upon readjudication of claims where a prior decision was voided by the court's 1989 order, but not to awards made in claims pending on or filed after May 3, 1989. Nevertheless, we propose to apply section 5110(b)(1) to claims pending on or filed after May 3, 1989, in order to ensure that the generally applicable provisions of that statute are applied in a consistent manner.

We propose to state in § 3.816(c)(4) that, if the requirements of paragraph (c)(1) or (c)(2) are not met, the effective date of the award shall be determined in accordance with 38 CFR 3.114 and 3.400, the provisions generally governing the effective dates of disability compensation. The United States Court of Appeals for Veterans Claims has held that the provisions of the Nehmer stipulation and order do not apply where a prior claim was denied before September 25, 1985. See Williams v. Principi, 15 Vet. App. 189 (2001) (en banc).

Similarly, the stipulation and order does not apply in cases where the veteran's initial claim for a covered herbicide disease was filed after the effective date of the regulations establishing a presumption of service connection for that disease. Further, application of the Nehmer stipulation to such cases would ordinarily be detrimental to veterans. Under 38 CFR 3.114, when disability compensation is awarded pursuant to a liberalizing regulation, the award may be made effective up to one year prior to the date of the claim, but no earlier than the effective date of the liberalizing regulation. In contrast, the Nehmer stipulation and order generally does not permit payment for any period prior to the date of the veteran's claim, except in the limited circumstances described in 38 U.S.C. 5110(b)(1) and (d)(1) involving claims filed within one year of the date of separation from service or the date of death.

Section 3.816(d)(1) states that, if a Nehmer class member is entitled to DIC for death caused by a covered herbicide disease, and VA previously denied DIC for the death in a decision issued between September 25, 1985 and May 3, 1989, the effective date will be the later of the date VA received the claim on which the prior decision was based or the date the death occurred. This rule governs cases where a prior denial was voided by the district court's May 3, 1989 order. Because DIC claims do not require assignment of disability ratings, decisions on DIC claims do not assign a diagnostic code corresponding to VA's rating schedule and may not identify the disease causing death with the same specificity necessary to decisions concerning disability compensation. Moreover, because the cause of death is usually established by the death certificate and medical records existing at death, DIC claims filed at different times ordinarily will not involve different conditions, as often occurs with respect to disability compensation claims. Accordingly, rather than requiring a specific finding that the prior denial of DIC expressly referenced the same covered herbicide disease that provided the basis for the current DIC award, we propose to require only that the prior decision issued between September 25, 1985 and May 3, 1989, have denied DIC for the same death.

Proposed § 3.816(d)(2) states that, if the class member's claim for DIC for the death was either pending on May 3, 1989 or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the disease causing the death, the effective date of DIC will be the later of the date VA received such claim or the date the death occurred. For the reasons stated above with respect to disability compensation, we propose to include claims filed before May 3, 1989, but still pending on that date, even though the Nehmer stipulation and order does not expressly provide for such claims.

The provisions of 38 U.S.C. 5101(b)(1) and 38 CFR 3.152(b)(1) state that a claim by a surviving spouse or child for death pension shall be considered a claim for DIC as well. We propose to reference this requirement in the proposed rule. Further, for the same reasons stated above with respect to disability compensation claims, we propose to state that a claim will be considered a claim for DIC if the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing DIC claims, as indicating an intent to apply for DIC.

We propose to state in § 3.816(d)(3) that, if a claim referenced in paragraph (d)(1) or (d)(2) was received by VA within one year after the date of the veteran's death, the effective date of DIC will be the first day of the month of death. This would ensure that the principle stated in 38 U.S.C. 5110(d)(1) is applied, as required by the Nehmer stipulation and order. We note that the stipulation and order requires VA to apply section 5110(d)(1) to awards made upon readjudication of claims where a prior decision was voided by the court's 1989 order, but not to awards made in claims pending on or filed after May 3, 1989. Nevertheless, we propose to apply section 5110(d)(1) to claims pending on or filed after May 3, 1989, in order to ensure that the generally applicable provisions of that statute are applied in a consistent manner.

For the reasons stated above with respect to disability compensation, we propose to state in § 3.816(d)(4) that, if the requirements of paragraph (d)(1) or (d)(2) are not met, the effective date of DIC will be governed by 38 CFR 3.114 and 3.400.

We propose to state in § 3.816(e)(1) that, if the requirements of paragraphs (c)(1) or (c)(2) or (d)(1) or (d)(2) are met, the effective date of benefits will be determined as provided by this rule, without regard to any contrary provision in 38 U.S.C. 5110(g) or 38 CFR 3.114. As noted above, the effective-date rules required by the Nehmer court create a limited exception to that statute and regulation. In order to avoid confusion among VA personnel, claimants, and claimants' representatives regarding the effect of this exception, we believe it is necessary to state clearly that the Nehmer rules shall be applied, when they are applicable, without regard to 38 U.S.C. 5110(g) or 38 CFR 3.114.

We also propose to state that the effective-date provisions in this rule will not apply if a statute or regulation other than 38 U.S.C. 5110(g) or 38 CFR 3.114 would bar a retroactive payment that would otherwise be available under the Nehmer rules. For example, if a DIC claimant did not qualify as a surviving spouse at the time of the prior DIC claim, VA would lack authority to pay DIC to the claimant for periods relevant to such claim, even if the claimant later attains the status of a surviving spouse, based, for example, upon termination of remarriage. The Nehmer court orders require VA to give retroactive effect to its herbicide regulations, but do not purport to eradicate statutory bars to benefits that would preclude payment even if the herbicide regulations apply retroactively.

Proposed paragraph (e)(2) would explain the effect of section 505 of Public Law 104-275, which prohibits VA from making retroactive payments in certain circumstances where a benefit award is based on service in the Republic of Vietnam prior to August 5, 1964. Prior to January 1, 1997, the presumptions of service connection for diseases associated with herbicide exposure applied only to veterans who served in the Republic of Vietnam during the Vietnam era, which was then defined by statute and regulation to encompass the period beginning on August 5, 1964 and ending on May 7, 1975. In 1996, Congress enacted Public Law 104-275, section 505(b) of which extended those presumptions to veterans who served in the Republic of Vietnam during the period between January 9, 1962, and August 4, 1964. Congress specified, in section 505(d) of Public Law 104-275, that the amendment would take effect on January 1, 1997, and that “[n]o benefit may be paid or provided by reason of such amendments for any period before such date.” Accordingly, some claims may have been denied prior to January 1, 1997, because the claimants' service did not meet the then-existing statutory requirement of service during the Vietnam era. Although some such claimants may now be entitled to presumptive service connection under the liberalizing 1996 statute, Congress has prohibited VA from paying retroactive benefits based on the amendment made by Public Law 104-275.

We propose to state that the retroactive payment provisions of these proposed rules do not apply if the veteran's Vietnam service ended before August 5, 1964 and the class member's prior claim for benefits was denied by VA before January 1, 1997. In such cases, the denial was required by statute and VA is prohibited from paying retroactive benefits based on the prior claim. We propose to state that the effective date of any subsequent award in such cases will be governed by 38 U.S.C. 5110(g). We further propose to state that, if a veteran's Vietnam service ended before August 5, 1964 and the class member's claim for benefits was pending on or was received by VA after January 1, 1997, the effective date shall be the later of the effective date provided for in the proposed rules or January 1, 1997. This would conform to the requirement in Public Law 104-275 that VA may not pay benefits in such cases for any period before January 1, 1997.

In its December 12, 2000 order, the district court held that, when a Nehmer class member entitled to retroactive benefits under the Nehmer stipulation and order dies prior to receiving payment of such benefits, VA must pay the full amount of such benefits to the class member's estate. Under 38 U.S.C. 5121 and 38 CFR 3.1000, when any monetary benefits remain due and unpaid at the time of a beneficiary's death, VA may pay to certain individuals only the portion of such benefits that accrued during the two-year period preceding death. Further, VA cannot pay any such accrued benefits unless the appropriate payee files a claim for accrued benefits within one year after the date of death. However, the Nehmer court held that these restrictions do not apply to payments of amounts payable pursuant to the Nehmer stipulation and order. Rather, the court held that VA must pay the entire amount of such retroactive payment to the class member's estate and must do so without requiring a claim for accrued benefits.

In implementing the court's order, VA found that it was impractical in most cases to pay retroactive benefits to a class member's estate. Although VA claims files ordinarily contain information identifying persons who would be eligible for accrued benefits under section 5121 of title 38, United States Code, they generally do not contain information concerning the estates of veterans and other class members. Further, in a substantial number of cases, entitlement to retroactive payments under the Nehmer stipulation and order is established several months or even years after the class member's death, at a time when the decedent's estate would have been finally settled. In such cases, there may be no existing estate to receive payment. Even if an estate exists, paying benefits to the estate would arguably contravene the fundamental purpose of the veterans' benefits laws to provide payments for the use of the veteran and his or her family. Section 5121 provides that accrued benefits shall be paid to the decedent's surviving spouse, children, or dependent parents (in that line of succession), but does not permit payment to a decedent's estate. Although this statute limits the amount of accrued benefits payable, it clearly indicates that the accrued benefits are intended for the use of the decedent's family rather than the decedent's estate and creditors. If benefits were paid to a decedent's estate, they would potentially be subject to claims of creditors of the estate, with the possibility that the decedent's family would obtain no benefit from such payments. This would improperly deprive the decedent's family of the benefits expressly authorized by section 5121(a) (to the extent the payment to the estate encompassed benefits due and unpaid for the two-year period preceding death), and would contravene the general purpose of veterans benefits laws to provide benefits for the personal use of the veteran and his or her family.

After consulting with representatives of the Nehmer class, VA decided to issue payment directly to the persons who would have been eligible to receive accrued benefits under 38 U.S.C. 5121(a) at the time of the class member's death, rather than withholding all payment. We believe this procedure is consistent with the purpose of the Nehmer court orders and is more beneficial to class members, in view of the impracticability of locating and paying estates and the possibility that payments to estates may not inure to the benefit of the class member's survivors. We also believe that this procedure ensures that payments are made in the manner most consistent with the language and purpose of existing law.

Consistent with this practice, we propose to state in paragraph 3.816(f)(1) that, if a Nehmer class member dies prior to receiving payment of retroactive benefits due pursuant to the Nehmer stipulation and order, VA will pay the full amount of such unpaid benefits directly to the person or persons who would have been eligible to receive accrued benefits under 38 U.S.C. 5121(a)(2)-(a)(4) at the time of the class member's death ( i.e. , the class member's spouse, children (in equal shares), or dependent parents (in equal shares), in that order of preference). If no such survivors are in existence, VA would pay as much of the unpaid retroactive benefits as necessary to reimburse the person who bore the expense of the class member's last sickness and burial, in the same manner as provided in 38 U.S.C. 5121(a)(5) for accrued benefits.

Paragraph (f)(1) would further provide that a person's status as the spouse, child, or dependent parent of the class member would be determined as of the date of the class member's death, rather than the date that payment is made under this rule. As noted above, some class members may have died several months or years before payment can be made under these rules. Due to the lapse of time, a person who qualified as the class member's spouse or child on the date of the class member's death may no longer meet the statutory or regulatory definition of spouse or child, due to changes in their age or marital status. For example, a “child” is generally defined in 38 U.S.C. 101(4)(A) to refer to an unmarried child who is (with certain exceptions) under the age of eighteen years. A person who met this definition on the date of a class member's death may have married or attained the age of eighteen years before VA releases payment of unpaid retroactive benefits due to the class member. Because the Nehmer court orders were generally intended to correct past errors, we propose to authorize payment to persons who would have been eligible for payment as a spouse, child, or dependent parent on the date of the class member's death, irrespective of subsequent changes in age or marital status that would otherwise affect their entitlement to payment.

In view of language in the Nehmer court's order requiring payments to estates, however, we believe it is necessary to seek an order from that court clarifying or modifying its prior order to make clear that VA may release payments in the manner proposed. Accordingly, we intend to request such an order from the district court concurrently with the publication of these proposed rules.

As stated above, the district court indicated that the statutory two-year limit on payment of accrued benefits and the statutory requirement that a qualified payee or payees file a claim for accrued benefits do not apply to payments of retroactive benefits due and unpaid to a Nehmer class member at the time of death. Accordingly, we propose to state, in paragraph (f)(2), that those requirements do not apply. We further propose to state that, if a class member dies before receiving payment of retroactive benefits due to him or her, VA will pay the amount to the known payee(s) without requiring a claim. A veteran's VA claim file will often contain information identifying the surviving spouse, children, or parents of a class member. By clarifying that VA will release payment based on such information without awaiting communication from such survivors, this provision would permit expeditious release of payments.

We propose to state, in paragraph (f)(3), that VA shall make reasonable efforts to identify appropriate payees based on information contained in the veteran's claims file. We propose to state that, if further information is needed to determine whether an appropriate payee exists, or whether there is any person having precedence equal to or greater than a known survivor, VA will request such information from a known survivor or the class member's authorized representative if the claims file contains sufficient contact information. We also propose to state that, before releasing payment to a known survivor, VA will request information from the survivor concerning the possible existence of other survivors with equal or greater priority for payment, unless the circumstances clearly indicate that such a request is unnecessary. For example, if the claims file contained the name and address of a child of the deceased class member, VA would contact the child to inquire whether there is a surviving spouse or any other children of the class member in existence. In seeking to identify appropriate payees, VA necessarily must rely on information in the claims file. VA does not have the resources to conduct independent investigations of estate issues.

We propose to state that, after making reasonable efforts to identify the appropriate payee(s), if VA releases the full amount of retroactive payments to a payee, VA generally may not thereafter pay any portion of such benefits to any other individual, unless VA is able to recover any payment previously released.

We propose to state, in paragraph (f)(4), that, payment of benefits pursuant to this rule shall bar a later claim by any individual for payment of all or any part of such benefits as accrued benefits under 38 U.S.C. 5121 and 38 CFR 3.1000. The district court ordered VA to release all retroactive amounts due a class member at the time of death under the Nehmer stipulation and order. This would necessarily include amounts that otherwise would be payable as accrued benefits under 38 U.S.C. 5121. Accordingly, once payment has been made pursuant to the court's order, no retroactive benefits would remain for payment to any person as accrued benefits. Inasmuch as this rule applies only to retroactive benefits payable for a covered herbicide disease pursuant to the 1991 stipulation and order, it would not preclude a survivor's right to seek accrued benefits under section 5121 in the event a deceased class member was entitled at death to benefits for conditions other than a covered herbicide disease.

We propose to state, in §  3.816(g), that the provisions of this rule do not apply to awards of disability compensation or DIC for disability or death due to a disease for which the Secretary of Veterans Affairs establishes a presumption of service connection after September 30, 2002. The Nehmer stipulation and order applies to awards based on diseases for which the Secretary establishes a presumption of service connection pursuant to the Agent Orange Act of 1991, Public Law 102-4. The Act established a sunset date of September 30, 2002, for the Secretary to establish such presumptions. Accordingly, the Nehmer stipulation and order applies only to awards based on presumptions established within the time frame specified in the Agent Orange Act of 1991, Public Law 102-4.

The Agent Orange Act of 1991, Public Law 102-4, added section 1116 to title 38, United States Code. Section 1116(b) authorized the Secretary of Veterans Affairs to issue regulatory presumptions of service connection for diseases associated with herbicide exposure. Section 1116(e), as added by the Act, stated that section 1116(b) would cease to be effective 10 years after the first day of the fiscal year in which the NAS transmitted its first report to VA. The first NAS report was transmitted in June 1993, during the fiscal year that began on October 1, 1992. Accordingly, under the Act, VA's authority to issue regulatory presumptions as specified in section 1116(b) would have expired on September 30, 2002.

In December 2001, Congress enacted the Veterans Education and Benefits Expansion Act of 2001 (Benefits Expansion Act), Public Law 107-103, section 201(d) of which extended VA's authority under section 1116(b) through September 30, 2015. Pursuant to this statute, VA may issue new regulations between October 1, 2002 and September 30, 2015 establishing additional presumptions of service connection for diseases that are found to be associated with herbicide exposure based on evidence contained in future NAS reports. Because presumptions established pursuant to the authority of the Benefits Expansion Act would be beyond the scope of the Nehmer stipulation and order, the effective-date provisions of the stipulation and order, as stated in this proposed rule, would not apply to claims based on diseases service-connected pursuant to the Benefits Expansion Act of 2001.

Both the district court and the Court of Appeals for the Ninth Circuit stated that the Nehmer stipulation and order applies only to awards based on presumptions issued within the time period established by the Agent Orange Act of 1991, Public Law 102-4. The district court noted that the retroactive payment provisions of the stipulation and order are “expressly tied” to the Agent Orange Act of 1991, Public Law 102-4, and that “the Stip. & Order is not therefore boundless.” Nehmer v. United States Department of Veterans Affairs , No. CV-86-6160 TEH (N.D. Cal. Dec. 12, 2000). In a decision issued April 1, 2002, the Ninth Circuit stated that, “the district court was careful to prescribe temporal limits on the effect of the consent decree, with which we agree.” Nehmer v. Veterans' Administration, 284 F.3d 1158, 1162 n.3. (9th Cir. 2002), reh'g denied .

In its December 12, 2000, order, the district court held that the 1991 stipulation and order must be interpreted in accordance with general principles of contract law. It is well established that, unless the parties provide otherwise, a contract is presumed to incorporate the law that existed at the time the contract was made. See Norfolk & Western Ry. Co. v. American Train Dispatchers' Ass'n , 499 U.S. 117, 129-30 (1991). A subsequent change in the law cannot retrospectively alter the terms of the agreement. See Florida East Coast Ry. Co. v. CSX Transportation , Inc., 42 F.3d 1125, 1129-30 (7th Cir. 1994). Accordingly, the enactment of the Benefits Expansion Act of 2001 does not alter the scope of the 1991 stipulation and order.

Because the Benefits Expansion Act of 2001, Public Law 107-103, established rights and duties that did not exist under the Agent Orange Act of 1991, Public Law 102-4, any regulations issued pursuant to the authority of the Benefits Expansion Act of 2001 are beyond the express scope of the Nehmer stipulation and order. Accordingly, the stipulation and order provides no authority for VA to pay retroactive benefits under such regulations in a manner contrary to the governing statutes and regulations concerning the effective dates of awards. Proposed paragraph 3.406(g) would reflect this fact. This provision would make clear that awards based on regulations issued pursuant to the Benefits Expansion Act of 2001 would be governed by the generally applicable provisions governing the effective dates of benefit awards.

This regulatory amendment has been reviewed by the Office of Management and Budget under the provisions of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993.

This document contains no provisions constituting a collection of information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before developing any rule that may result in an expenditure by State, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any given year. This rule would have no consequential effect on State, local, or tribal governments.

The Secretary hereby certifies that this regulatory amendment will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The reason for this certification is that these amendments would not directly affect any small entities. Only VA beneficiaries and their survivors could be directly affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are exempt from the initial and final regulatory flexibility analysis requirements of sections 603 and 604.

For the reasons set forth in the preamble, 38 CFR part 3 is proposed to be amended as follows:

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

Carbon monoxide (CO) is a colorless, odorless gas emitted in combustion processes. In Clark County, like most urban areas, CO comes primarily from tailpipe emissions of cars and trucks. 1 Exposure to elevated CO levels is associated with impairment of visual perception, work capacity, manual dexterity, and learning ability, and with illness and death for those who already suffer from cardiovascular disease, particularly angina or peripheral vascular disease.

Under section 109 of the Act, we have established primary, health-related NAAQS for CO: 9 parts per million (ppm) averaged over an 8-hour period, and 35 ppm averaged over 1 hour. Attainment of the 8-hour CO NAAQS is achieved if not more than one non-overlapping 8-hour average per monitoring site per year exceeds 9 ppm in any consecutive 2-year period (values below 9.5 are rounded down to 9.0 and are not considered exceedances).

Clark County has never exceeded the 1-hour NAAQS. For this reason, the Clark County CO plan and this action address only the 8-hour NAAQS. The area has been monitoring ambient air for CO levels since the early 1980's. In 1985, the Las Vegas area recorded 41 exceedances of the 8-hour NAAQS; however, the area has recorded less than 5 exceedances each year since the early 1990's. Most of the CO exceedances in Clark County occur during the months of January, February, and December, with peak concentrations typically in the evenings. The last exceedances of the eight-hour CO NAAQS were recorded in 1998 at the Sunrise Avenue site in Las Vegas, and while the ambient monitoring data provides a preliminary basis for EPA to propose an attainment finding for Las Vegas Valley, this notice does not address that issue. EPA will publish an attainment finding for Las Vegas Valley in a separate notice, if appropriate following a detailed review of the monitoring data.

Las Vegas Valley was first designated as a CO nonattainment area in 1978. See 43 FR 8962, 9012 (March 3, 1978). The CAA Amendments of 1977 required states to prepare plans to achieve the NAAQS in nonattainment areas. The original attainment deadline was 1982. EPA conditionally approved the initial CO plan for Las Vegas Valley into the Nevada SIP in 1981. See 46 FR 21758 (April 14, 1981). EPA removed the conditions on the CO plan in 1982. See 47 FR 15790 (April 13, 1982.) Updated plans were required for nonattainment areas, like Las Vegas Valley, that did not achieve the original 1982 deadline. EPA approved this updated plan into the Nevada SIP in 1984. See 49 FR 44208 (November 5, 1984) and 40 CFR 52.1470(c)(32).

The Federal CAA was substantially amended in 1990 to establish new planning requirements and attainment deadlines for the NAAQS. Under section 107(d)(1)(C) of the Act, areas designated nonattainment prior to enactment of the 1990 amendments, including Las Vegas Valley, were designated nonattainment by operation of law. 2 Under section 186(a) of the Act, each CO area designated nonattainment under section 107(d) was also classified by operation of law as either moderate or serious, depending on the severity of the area's air quality problem. CO areas with design values between 9.1 and 16.4 parts per million (ppm), such as the Las Vegas Valley area, were classified as moderate. (The design value for Las Vegas Valley for initial classification purposes was 14.4 ppm, which was based on monitoring data from the late 1980's.) These nonattainment designations and classifications were codified into 40 CFR part 81. See 56 FR 56694 (November 6, 1991). Section 172 of the Act contains general requirements applicable to SIP revisions for nonattainment areas, and sections 186 and 187 of the Act set out additional air quality planning requirements for CO nonattainment areas.

The most fundamental of these provisions is the requirement that CO nonattainment areas with design values greater than 12.7 ppm submit a SIP revision demonstrating attainment of the NAAQS as expeditiously as practicable but no later than the deadline applicable to the area's classification: December 31, 1995, for moderate areas. See CAA sections 186(a)(1) and 187(a)(7). Such a demonstration must provide enforceable measures to achieve emission reductions each year leading to emissions at or below the level predicted to result in attainment of the NAAQS throughout the nonattainment area.

Las Vegas Valley failed to reach attainment by December 31, 1995, but, under section 186(a)(4) of the Act, the State of Nevada requested, and EPA granted, a one-year extension of the attainment date to December 31, 1996. See 61 FR 57331 (November 6, 1996). However, in the first quarter of 1996, Clark County recorded three exceedances of the CO standard at the East Charleston monitoring station and thus was unable to show attainment of the standard by the new attainment date and could not qualify for an additional one-year extension under section 186(a)(4) of the Act.

Subsequently, on October 2, 1997, we published a final rule that found that the Las Vegas Valley CO nonattainment area did not attain the CO NAAQS by the applicable attainment date and that reclassified the area from “moderate” to “serious” nonattainment under section 186(b)(2) of the Act. 3 See 62 FR 51604 (October 2, 1997). Areas reclassified as serious are given more time to develop a SIP revision and a new attainment date but are subject to additional requirements beyond those that are required in moderate nonattainment areas. For Las Vegas Valley, the effect of the reclassification to “serious” was to allow Nevada 18 months from the effective date of the reclassification to submit a new SIP demonstrating attainment of the CO NAAQS as expeditiously as practicable but no later than December 31, 2000, the CAA attainment date for serious CO nonattainment areas.

We have issued a “General Preamble” describing the agency's preliminary views on SIP revisions submitted under Title I of the Act. See generally 57 FR 13498 (April 16, 1992) and 57 FR 18070 (April 28, 1992). The reader should refer to the General Preamble for a more detailed discussion of our preliminary interpretations of Title I requirements. In this proposed rulemaking action, we are applying these interpretations to the Las Vegas Valley CO SIP submittals, taking into consideration the specific factual issues presented.

Under a letter dated November 13, 1992, the Nevada Division of Environmental Protection (“NDEP”) submitted the first CO attainment plan for Las Vegas Valley (“1992 CO plan”) under the Clean Air Act Amendments of 1990. Because the 1992 CO plan was superceded by the 1995 CO plan, discussed below, we will be taking no action on that plan.

From 1992 through 1994, the State of Nevada submitted various required CO SIP elements to us for Las Vegas Valley, and, in 1995, the State of Nevada submitted a new CO attainment plan for Las Vegas Valley under a letter from NDEP dated November 8, 1995 (“1995 CO plan”). The 1995 CO plan was adopted by the Clark County Board of Commissioners on October 17, 1995. The 1995 CO plan was deemed complete by operation of law on May 13, 1996 under section 110(k)(1)(B) of the Act. The 1995 CO plan included emissions inventories, including motor vehicle emissions estimates referred to as budgets, and several CO control measures, including a specification for Reid Vapor Pressure (RVP) of wintertime gasoline sold in Clark County, a wintertime oxygenated fuels program, contingency measures related to technician training for the vehicle inspection and maintenance (“I/M”) program and heavy duty vehicle inspection, and an additional commitment to implement an expanded remote vehicle sensing program.

Until today's notice, the only portion of the 1995 CO plan that was acted upon by us was the motor vehicle emission budgets. We were required to make positive or negative adequacy determinations on all emission budgets in response to the March 2, 1999 court decision in Environmental Defense Fund v. EPA, 167 F.3d 641 (D.C. Cir. 1999). We acted on the motor vehicle emission budgets contained in the 1995 CO plan on May 5, 1999. See 64 FR 31217 (June 10, 1999). We found the conformity emission budget (298.6 tons per day, or tpd) in the 1995 CO plan inadequate since the area failed to meet attainment by the required date for moderate nonattainment areas and was subsequently reclassified to “serious.”

In today's action, we are proposing to approve several control measures derived from those cited in the 1995 CO plan, including the State's wintertime RVP regulation for gasoline sold in Clark County, into the Nevada SIP. In addition, we are proposing to approve Nevada's vehicle I/M program, which now includes training and certification requirements for vehicle I/M repair technicians and which now requires annual inspection of heavy-duty gasoline-powered vehicles.

One of the individual SIP elements submitted in the 1992 to 1994 timeframe referred to above was the vehicle I/M program. Under a letter dated July 28, 1994, NDEP submitted a SIP revision related to the State's vehicle I/M program, and we determined that submittal to be complete on January 31, 1995. In the wake of changes to our requirements for such programs, NDEP submitted another SIP revision related to the vehicle I/M program under a letter dated March 20, 1996. This 1996 vehicle I/M submittal superceded the 1994 vehicle I/M submittal and was deemed complete by operation of law on September 20, 1996. Subsequent revisions of the I/M regulations were submitted in August 2000 as part of the 2000 CO plan, described below, and in 2002, the State submitted additional adopted revisions to the I/M regulations, a draft revision to the I/M provisions related to inspection of model year 1996 and newer vehicles, and supplemental materials related to vehicle roadside remote sensing (on-road testing). In today's action, we are proposing to approve the 1996 vehicle I/M program submittal as revised to reflect the changes in that program through 2002.

As noted above, the “serious area” CO SIP revision was due 18 months from the effective date ( i.e. , November 3, 1997) of reclassification to “serious,” or May 3, 1999. By that date, Nevada had not submitted the required SIP revision, and on September 10, 1999, we published a Federal Register notice finalizing a finding of failure to submit a “serious area” SIP revision for CO. See 64 FR 49084 (September 10, 1999). This finding, which was effective on August 31, 1999, triggered an 18-month time clock for sanctions and a 2-year time clock for a federal implementation plan (FIP) under the Act.

Subsequently, under a letter dated September 29, 1999, NDEP submitted the “Carbon Monoxide Air Quality Implementation Plan—September 1999.” This plan, referred to herein as the 1999 CO plan, was adopted by the Clark County Board of Commissioners on September 21, 1999 and was developed to respond to the CO serious area requirements. On January 12, 2000, we sent a letter to John Schlegel, Director of the Clark County Department of Comprehensive Planning (CCDCP), summarizing problems with the plan and stating the we had made an inadequacy finding on the emission budgets in the plan, and in February of 2000, we published an inadequacy notice on conformity budgets contained in the 1999 CO plan. See 65 FR 4965 (February 2, 2000). The budgets in that CO plan were found inadequate because we determined that the measures contained in the 1999 CO plan would not be sufficient to reach attainment. Since the 1999 CO plan was superceded by the 2000 CO plan discussed below, we will be taking no action on that plan.

Under a letter dated August 9, 2000, NDEP submitted the 2000 CO plan for Las Vegas Valley, adopted by the Clark County Board of Commissioners on August 1, 2000 (referred to herein as the 2000 CO plan). We determined this submittal to be complete on September 12, 2000, with respect to portions of the plan relating to CO SIP requirements. 4 On November 20, 2000, we also found that the motor vehicle emission budgets in the 2000 CO plan were adequate for transportation purposes.

In June 2001, the Governor of Nevada designated the Clark County Board of Commissioners as the regulatory, enforcement and permitting authority for implementing the Federal Clean Air Act within Clark County. This action by the Governor necessitated a transfer of certain pre-existing authorities from the Clark County Board of Health to the County Board of Commissioners. In response to the Governor's designation, the Clark County Board of Commissioners created the Clark County Air Quality Management Board (CCAQMB) as the governing agency for air quality programs and regulations in Clark County. CCAQMB acts through a new County department, referred to as the Clark County Department of Air Quality Management (CCDAQM), which has assumed the responsibilities for air quality enforcement functions that had been performed by the Clark County Health District as well as for air quality planning functions previously performed by CCDCP.

Lastly, under letters dated January 30, 2002 and June 4, 2002, NDEP submitted additional information to supplement the 2000 CO plan, including, among other items, current versions of certain adopted I/M and fuel regulations, a draft version of revised I/M regulations and a request that EPA “parallel process”  5 these draft regulations as part of our proposed action on the 2000 CO plan, and the current statutory authority for the I/M program in Las Vegas Valley. In today's action, we are proposing to approve the plan elements and measures contained in this 2000 CO plan as supplemented by the materials submitted by NDEP in January and June 2002.

This 2000 CO plan provides, among other things, a revised CO attainment demonstration based on updated vehicle miles traveled (VMT) projections reflecting new forecasts prepared by the Clark County Regional Transportation Commission (RTC), revised motor vehicle emission modeling, new emissions inventories, amended control measures, and updated areawide Urban Airshed Modeling (UAM) and hotspot (CAL3QHC) air quality modeling analyses using the updated inventories and improvements to other modeling inputs.

In this document, we are proposing to approve the 2000 CO plan, with respect to the CAA requirements for notice and adoption, baseline and projected emissions inventory, the reasonable further progress (RFP) demonstration, the attainment demonstration, and VMT forecasts. In addition, we are proposing to approve Nevada's low enhanced I/M program for Clark County under section 187(a)(6) of the Act, Clark County's wintertime Cleaner Burning Gasoline program under section 211(c)(4)(C) of the Act, and Nevada's wintertime gasoline specification for Clark County related to Reid Vapor Pressure (RVP). These three programs, along with previously-approved oxygenated fuel regulations and natural vehicle turnover (replacement of older higher-emitting vehicles with newer models manufactured to meet increasingly stringent emissions standards), are the main control programs relied upon to reach attainment. We are also proposing to approve an alternative fuel program for government vehicles, voluntary transportation control measures, a determination that stationary sources do not contribute significantly to CO levels for the purposes of section 187(c) of the Act, a contingency measure, commitments for further submittals and control measures, as needed, and CO emissions budgets for conformity purposes.

As noted in our earlier completeness finding for the 2000 CO plan (letter dated September 12, 2000 from Amy Zimpfer to Allen Biaggi), the CCDCP has satisfied applicable statutory and regulatory requirements for reasonable public notice and hearing prior to adoption of the plan and each of the plan amendments. The CCDCP conducted numerous public workshops and public hearings prior to the adoption hearing on August 1, 2000, at which the 2000 CO plan was adopted by the Clark County Board of County Commissioners, the lead agency for local air quality planning in the Las Vegas Valley area. The SIP submittal  6 includes a description of public meetings and hearings where the public had the opportunity to comment on the issues addressed in the plan. Public noticing for these meetings occurred through advertisements in the Las Vegas Review Journal and the Las Vegas Sun as well as on the Internet. Also included are the comments received from the public and responses developed by the CCDCP staff. Therefore, we propose to approve the 2000 CO plan as meeting the procedural requirements of section 110(a)(2) of the Act.

The revised and updated emissions inventory included in the 2000 CO plan is consistent with our guidance documents. 7 The motor vehicle emissions factors used in the plan were generated by the EPA MOBILE5 model. The base-year (1996) inventory was developed using MOBILE5a (as adjusted to account for off-cycle emissions); MOBILE5b was used for emissions projections for years 2000, 2010, and 2020 (also adjusted to account for off-cycle emissions). The gridded CO inventory for motor vehicles was then produced using the Direct Travel Impact Model version 2.0 (DTIM2), distributed by the California Department of Transportation, which combines motor vehicle emission factors with transportation modeling performed by RTC.

The point source inventory was prepared primarily from a mail survey by the Clark County Health District (CCHD). Survey results were supplemented by information obtained through personal contacts during compliance inspections. VMT data necessary to calculate on-road mobile source emissions was provided by RTC. Table 1 below contains demographic information for Clark County.

The results of the Las Vegas Valley 1996 base year CO emissions inventory for stationary point and area sources, on-road mobile sources, and nonroad mobile sources categories are tabulated in this section. The biogenics category has been omitted, as it is not applicable to CO emissions. Table 2 below contains a detailed listing of average daily CO season emissions by source category. Large stationary sources at the periphery of the nonattainment area (State hydrographic area No. 212) have also been included in the inventory.

Total average daily, CO season emissions associated with the Las Vegas Valley nonattainment area for the 1996 base year are 473.56 tons per day. The methodologies used to prepare the base year emissions inventory, as described in chapter 3 and appendix A of the 2000 CO plan, are acceptable. Accordingly, we propose to approve the 2000 CO plan with respect to the base year emissions inventory requirements of sections 172(c)(3) and 187(a)(1) of the Act.

The plan must estimate future year emission levels to determine if Las Vegas Valley can reduce CO levels to acceptable levels. Emission estimates for the year 2000 are projected using growth factors from the Bureau of Economic Analysis (for stationary, area and nonroad sources) and using projected population, employment and VMT data from RTC (for on-road sources). Levels are estimated both with and without the impact of the new control programs included in the 2000 CO plan. A summary of these emission estimates is given in Table 3.

The decline in emissions from uncontrolled to controlled shown in Table 3, above, is attributed to the wintertime Cleaner Burning Gasoline regulation, on-road vehicle fleet turnover, the technician training and certification requirements of the State's vehicle I/M program, an alternative fuels program for government fleets and voluntary transportation control measures. Also, as described in the following section, the CO emissions reductions under the 2000 CO plan are sufficient to demonstrate attainment by the applicable date. Thus, the 2000 CO plan includes a control strategy that has been implemented to produce annual incremental reductions of emissions and that has thereby provided for RFP toward attainment of the standard by the applicable attainment date (December 31, 2000).

In this action, therefore, we propose to approve the projected emissions inventories, under sections 172(c)(3) and 187(a)(1) of the Act, and approve the 2000 CO plan with respect to the RFP requirements in sections 172(c)(2) and 187(a)(7) of the Act.

The attainment demonstration includes both an areawide and a hot-spot modeling analysis at heavily-traveled intersections. The areawide analysis was conducted using the Urban Airshed Model (UAM), according to our “Guidance for Application of Urban Areawide Models for CO Attainment Demonstrations” (1992). The UAM analysis uses a December 8-9, 1996 episode. This episode predicted an 8-hour concentration of 11.2 ppm after all adjustments were incorporated. In addition to high 8-hour values on this day, the highest one-hour value (11.8 ppm) was also recorded on this episode day.

Emissions inventory data used in the base year (1996) UAM analysis were derived from the data shown in Table 2, above. The emissions inventory data used for the UAM analysis were disaggregated into 5 kilometer grid cells throughout the modeling domain. On-road emissions were distributed using the 1996 roadway network and emission factors. Model performance for the base year UAM simulation is within our acceptable range of accuracy: +17 percent for the unpaired peak prediction, 0 percent for the paired peak prediction, and 3 hours for the timing error. See 2000 CO plan, page 5-5.

For the attainment year (2000) and for additional future years, on-road emissions were distributed using the Direct Travel Impact Model (DTIM) with latest projected roadway networks including future transportation projects from RTC. Thus, projected changes in Vehicle Miles Traveled (VMT), speed and vehicle occupancy rates were incorporated into the modeling.

The table shows the results of the UAM analysis for the 8-hour average (the corresponding NAAQS is 9 ppm). Concentrations for the 8-hour average are shown for the maximum concentration predicted over the modeling domain. The predicted regional maximum 8-hour average CO concentration is 8.1 ppm in the year 2000, assuming implementation of all new control measures. The UAM analysis thus shows attainment with a margin of safety based on fully adopted regulations. However, an additional model, CAL3QHC must be used to determine the maximum CO levels in the area. CAL3QHC is needed to predict the micro-scale impacts of vehicles operating at congested intersections. Vehicles operating within congested conditions spend more time in idle modes that can contribute to high levels of CO near the roadways.

Microscale modeling was conducted for three intersections within Las Vegas Valley; (1) Charleston Blvd./Eastern Avenue, (2) Charleston Blvd./Fremont Street and (3) Eastern Avenue/Fremont Street. These three intersections comprise the “5 points” area which is near the Sunrise Acres CO monitoring station. For years 2000, 2010, and 2020, traffic data from the roadways were combined with emission factors from MOBILE5b and meteorological data to predict local hotspot concentrations. These hourly results from the microscale model were then combined with hourly concentrations from the background UAM grid cell to compute maximum running 8-hour concentrations. The combined results of the CAL3QHC and UAM results are shown in Table 5 below.

Source: 2000 CO plan, Table 6-4.

In addition to roadway intersections, high microscale CO levels can occur at airports. To model the impact of airport sources, the Emissions and Dispersion Modeling System (EDMS) model was used. This model was developed for evaluating the specific emission sources typically located at airports. As with CAL3QHC, the hotspot results from EDMS must be combined with the results of the UAM analysis to predict the concentrations at receptors around the airports. The 2000 CO plan presents results of the combined UAM and EDMS models for the base case (uncontrolled). Even without controls, no values above the 9.0 ppm standard are shown for the attainment year (2000). The peak combined concentration at McCarran International Airport for future years is 9.07 ppm for 2020. However, with the addition of just one of the controls included in the plan (specifically, Cleaner Burning Gasoline), the predicted concentration is reduced to 7.67 ppm, well below the 8-hour standard. Therefore, we propose to grant approval to the 2000 CO plan with respect to the attainment demonstration requirement of section 187(a)(7) of the Act.

Motor vehicle emissions in Las Vegas Valley are reduced primarily by a combination of natural fleet turnover, which effectively replaces older higher-emitting vehicles with models manufactured to meet more stringent exhaust emissions standards established under the federal motor vehicle control program, a vehicle I/M program for in-use vehicles, and wintertime specifications for gasoline. Other measures that contribute to lower CO emissions include an alternative fuel program for government vehicles and voluntary transportation control measures. This section addresses the vehicle I/M program, and following sections address wintertime gasoline specifications and the other control measures.

The State of Nevada has implemented an I/M program for vehicle emissions in Las Vegas Valley since 1978. In 1981, we approved the statutory basis for the vehicle I/M program for Las Vegas Valley. See 46 FR 21758 (April 14, 1981) and 40 CFR 52.1470(14)(iv) and (16)(vi). In 1984, we approved the regulatory basis for that program into the Nevada SIP. See 49 FR 44208 (November 5, 1984) and 40 CFR 52.1470(c)(26)(iii). Because Las Vegas Valley was designated as a moderate CO nonattainment area with a design value greater than 12.7 ppm under the 1990 CAA Amendments, the State of Nevada was required under section 187(a)(6) of the Act, as amended in 1990, to revise the vehicle I/M program within Las Vegas Valley to meet “enhanced” performance standards, referred to as an enhanced vehicle I/M program.

On November 5, 1992, we published rules in the Federal Register related to plans for vehicle I/M programs (see 57 FR 52950). The Act was prescriptive regarding the various elements that are required as part of an enhanced I/M performance standard. It also required that we provide states with flexibility in meeting the requirement for enhanced or basic I/M programs. Title 40, part 51, § 51.351(g) Alternate Low Enhanced I/M Performance Standard in the Code of Federal Regulations (40 CFR 51.351(g)) allows states that meet certain specific criteria to select the alternate “low” enhanced I/M performance standard instead of the “high” enhanced performance standards. We established an alternate low enhanced I/M performance standard for those areas that are required to implement enhanced I/M but do not have a major mobile source component to the air quality problem or can obtain adequate emission reductions from other sources to demonstrate RFP and attainment.

The State of Nevada chose to adopt a low enhanced vehicle I/M program and submitted this program to us as a SIP revision on March 20, 1996. The 1996 SIP Submittal for Nevada's vehicle I/M program supercedes and builds upon the “basic” program that we approved in 1984.

The 1996 SIP Submittal contained an overview of the State's I/M program, a checklist/review of the plan relating it to our requirements, legislation, rules, implementation of the program, MOBILE5a analysis (the 2000 CO plan included a revised analysis of the I/M program based on MOBILE5b), motor vehicle fleet characteristics, and numerous other appendices containing material describing the program.

The State Environmental Commission (SEC) and the Department of Motor Vehicles and Public Safety (DMV&PS), which was the predecessor agency to today's DMV and Department of Public Safety, revised the I/M regulations in 1996, 1998, and 2000 to, among other things, increase the cost enabling a registrant to qualify for a waiver (to $450) and exempt “restored vehicles” from certain provisions of the program. The 2000 CO plan included a revised emissions analysis using MOBILE5b (see appendix E, section 7 of the plan) taking into account the changes in the program through 2000, including 100% emissions credit for their technician training and certification program.

In two supplemental SIP submissions dated January 30, 2002 and June 4, 2002, NDEP submitted current versions of the statutory and regulatory authority for the low enhanced I/M program in Clark County, draft revisions to Nevada Administrative Code (“NAC”) 445B.580 relating to procedures for inspecting on-board diagnostics (OBD) systems on light-duty MY 1996 or newer vehicles (and a request that we “parallel process” those draft revisions), contractural materials related to emissions inspections analyzer equipment for licensed emission inspection stations, and contractual materials related to on-road testing.

The technical support document (TSD) provides an evaluation of the State's complete low enhanced vehicle I/M program relative to our requirements for such programs, including applicability; low enhanced I/M performance standard, network type and program evaluation; adequate tools and resources; test frequency and convenience; vehicle coverage, test procedures and standards; test equipment; quality control; waivers; motorist compliance enforcement; quality assurance; enforcement against contractors, stations, and inspectors; data collection; data analysis and reporting; inspector training and certification; public information and consumer protection; improving repair effectiveness; compliance with recall notices; and on-road testing.

EPA's requirements for basic and enhanced I/M programs are contained in 40 CFR part 51, subpart S. The SIP revisions submitted by NDEP must be consistent with these requirements and must meet EPA's requirements for enforceability, as well as, CAA section 110(l) requirements. Although the required elements under Nevada's low enhanced I/M program differ from those described in EPA's I/M requirements for low enhanced programs, a side-by-side comparison demonstrates that, overall, they are not less stringent (see discussion of emissions modeling results in subsection 8, below).

Basic and enhanced I/M programs can be centralized (i.e., state-run or a single contractor), decentralized (i.e., private small businesses), or a hybrid of the two, but the network type selected by a given state together with the other elements of the state I/M program must achieve the same or better level of emission reduction as the applicable performance standard. The low enhanced I/M performance standard assumes annual testing through a centralized testing network of all model year (MY) 1968 and newer light duty vehicles and light duty trucks, rated up to a gross vehicle weight rating (GVWR) of 8,500 pounds. The low enhanced ­I/M performance standard assumes that the exhaust emissions of the subject vehicles are subject to the idle test.

The current low enhanced vehicle I/M program for Las Vegas Valley and Boulder City requires two speed idle testing of all light-duty gasoline-powered vehicles MY 1968 through 1995, and for all heavy-duty gasoline-powered vehicles MY 1968 and newer on an annual basis. Until recently, light-duty gasoline-powered vehicles MY 1996 and newer were also subject to two speed idle testing; but recent changes in the State I/M program now require that such vehicles be tested via on-board diagnostic systems checks instead of the two speed idle test. For the State I/M program, “light-duty vehicles” refers to passenger cars and trucks up to 8,500 pounds GVWR; “heavy-duty vehicles” refers to trucks which have a GVWR of 8,500 pounds or more. The network is decentralized and includes both test-and-repair and test-only stations. All 304 stations are privately owned stations, 96 of which are test-only stations.

Standards for exhaust emission testing are specified in 40 CFR part 85, subpart W. Consistent with those standards, the State I/M program establishes, for those vehicles that are subject to emissions testing, maximum exhaust emissions for MY 1981 and newer vehicles of 1.2% for CO and 220 ppm for HC. For older light-duty vehicles (MY 1968 through 1980), maximum CO (%) and HC (ppm) range from 4.0%-2.0% and 800 ppm-500 ppm, respectively. The standards for heavy-duty gasoline-powered trucks MY 1981 and newer are 3.5% for CO and 1000 ppm for HC; for older heavy-duty vehicles (MY 1968 through 1980), maximum CO (%) and HC (ppm) range from 7.0%-4.0% and 1,400 ppm-1,000 ppm, respectively. As stated previously, all light-duty motor vehicles MY 1996 and newer are subject to on-board diagnostic system checks.

Diesel vehicles are tested under separate requirements, and the requirements that relate to diesel vehicles are not being approved into the SIP.

EPA's I/M regulations require that state I/M programs be implemented in the entire urbanized area, based on the 1990 census. See 40 CFR 51.350. The designation for the low enhanced I/M areas are the boundaries of Hydrographic Basin 212, as established by the State Engineer, and the city limits of Boulder City.

The performance standard for low enhanced I/M programs assumes coverage of all MY 1968 and later light-duty vehicles and trucks up to 8,500 pounds GVWR. Other levels of coverage may be approved if the necessary emission reductions are achieved. See 40 CFR 51.356.

As mentioned above, the Nevada low enhanced I/M program applies to light-duty, gasoline-powered vehicles up to 8,500 pounds GVWR, and heavy-duty, gasoline-powered vehicles within the CO nonattainment area of Clark County and Boulder City. While still subject to annual vehicle registration requirements, new vehicles are exempt from emissions inspections under the Nevada I/M program until the third registration cycle. Subsequent annual registration or re-registration will require proof of compliance with emission testing. Vehicles MY 1967 and older, and motorcycles are also exempt from the I/M testing. The two-year exemption of newer model year vehicles from emissions testing results in a relatively small loss in emission benefit since newer vehicles are generally anticipated to be cleaner than older vehicles. Furthermore, recent data suggest that newer vehicles stay cleaner longer due to the slower rate of emission control system deterioration.

The federal regulations also require basic and enhanced I/M programs to include inspection of all 1996 and later motor vehicles equipped with on-board diagnostic (OBD) systems. EPA has required that I/M programs begin OBD checks on January 1, 2002 (OBD mandatory start-up dates were delayed for one year). See 40 CFR 51.373. OBD consists of a computer which performs checks of a number of different vehicle systems for malfunctions or deterioration which could result in the vehicle exceeding its emissions standards and a malfunction indicator light which is required to be illuminated when the system detects a problem.

Some inspection stations in Las Vegas began OBD testing MY 1996 and newer OBD-equipped light-duty vehicles in February 2002 using the NV2000 analyzer (Nevada's previous I/M emissions analyzer, referred to as the “Nevada 94” analyzer, was not programmed to conduct OBD testing). By May 1, 2002, all inspection stations in Las Vegas Valley were conducting OBD tests for MY 1996 and newer OBD-equipped vehicles. Vehicles which receive an OBD inspection do not receive a two speed idle tailpipe test.

The low enhanced I/M performance standard assumes visual inspection of the positive crankcase ventilation valve on all 1968 through 1971 MY vehicles, inclusive, and of the exhaust gas recirculation valve on all 1972 and newer MY vehicles. Nevada's program requires visual inspection of the presence of a properly installed gas cap on all gasoline-powered vehicles MY 1968 through 1980, and on heavy-duty gasoline-powered MY 1968 and newer. For light-duty, gasoline-powered vehicles MY 1981 through 1995 vehicles visual inspections include: (1) Determining the presence of an exhaust gas recirculation valve, (2) examining the catalytic converter, air injection system and fuel inlet restricter; and (3) determining whether that equipment appears to be operating in accordance with the specifications of the manufacturer of the vehicle.

EPA regulations require on-road testing in enhanced I/M programs; on-road testing is optional for basic I/M programs. The on-road testing requirement may be met by measuring on-road emissions through the use of remote sensing devices or through roadside pullovers including tailpipe or evaporative emission testing or a check of the OBD system. The federal regulations require on-road testing to evaluate annually the emission performance of 0.5% of the subject fleet statewide or 20,000 vehicles, whichever is less, per inspection cycle. See 40 CFR 51.371.

Nevada's legal authority for on-road testing was adopted by its Legislature in Senate Bill 570, which was signed into law by the Governor on July 5, 1995. This legislation added a new section to Chapter 445B of the Nevada Revised Statutes (NRS) providing authority to implement a remote sensing program as part of the vehicle I/M program ( i.e. , NRS 445B.798). In the June 2002 SIP Submittal, Nevada submitted a copy of the executed contract between the State and MD Laser Tech for on-road testing services, effective through June 30, 2003. DMV has contracted with MCI Worldcom to develop and maintain the vehicle information emission database (VID). The MCI Worldcom VID communicates with the DMV registration database. All emission test results are transmitted from the vehicle information emission database to the DMV's registration database. The MCI Worldcom system (VID) also maintains the licensee and administrative programs which are used to identify emission stations and produce program statistical reports. On-road testing is located in the administrative program which can be used to store statistical records for vehicles tested through this process. Letters can also be generated to vehicle owners when regulatory action is determined to be proper. The MD Laser Tech contract calls for the contractor to perform remote sensing of motor vehicle exhaust emissions for a specified time period at specified locations within Clark County. The primary operational objective is to obtain information concerning gross emitting vehicles and use this information to ensure that these vehicles are brought into compliance with Nevada's motor vehicle regulations. Failure of a test conducted under the on-road testing program may lead to cancellation of vehicle registration under NRS 482.461 unless, within the prescribed period, the registered owner has the vehicle inspected and repaired (if necessary) and provides the DMV with evidence of compliance with the I/M requirements.

EPA's requirements allow I/M programs to provide a waiver which lets the motorist comply with the program without meeting applicable test standards so long as certain prescribed criteria are met. See 40 CFR 51.360. In basic programs, a minimum of $75 for pre-1981 vehicles and $200 for 1981 and newer vehicles must be spent by the motorist for appropriate repairs in order to qualify for a waiver. See 40 CFR 51.360(a)(6). Beginning January 1, 1998, enhanced programs must require motorists to spend at least $450 for appropriate repairs. See 40 CFR 51.360(a)(7).

Nevada's I/M regulations (NAC 445B.590) require at least $450 in expenditures on emissions-related vehicle repairs to qualify for a waiver in Clark County. Only the DMV may grant a waiver from the standards for emissions. Nevada's rules provide that a waiver from the applicable standards may only be issued after a retest is failed after qualifying repairs. The number of failed vehicles that require waivers is not expected to exceed the current waiver rate of approximately 1 percent. If the waiver rate exceeds 1 percent, Nevada will re-evaluate their procedures. EPA's model waiver rate is a 3 percent waiver rate, as a percentage of failed vehicles. Under the State's program, waivers are denied if the parts have not been installed or the repairs have not been performed as indicated on the receipts. A waiver applies for only the one year vehicle registration period. If a vehicle were to fail the next year, the procedure must be performed again.

EPA's I/M regulations require that the state perform modeling using the most current version of EPA's mobile source emissions model to determine that the emissions levels achieved by the state I/M program meet the minimum performance standard. See 40 CFR 51.351(g). The minimum performance standard reflects the “model program” elements list in 40 CFR 52.351(g) ( e.g. centralized annual testing of light-duty vehicles and trucks up to 8,500 GVWR MY 1968 and newer).

For the 2000 CO plan, Clark County updated the emissions analysis of the Nevada I/M program design using MOBILE5b. (The 1996 I/M SIP submittal included emissions analysis based on MOBILE5a.) The Nevada vehicle I/M program design includes: computerized test and repair (50% default values were used to discount emissions reduction benefits of Nevada's largely test-and-repair network relative to a test-only network); 1983 start date; 1999 last model year covered (reflects the first two years exemption on new vehicles and a model run for calendar year 2002); annual frequency; 1968 and newer model year coverage; vehicle types include light duty gasoline-powered autos and trucks (LDGV, LDGT1, and LDGT2) and heavy-duty gasoline-powered vehicles (HDGV); five-element visual inspection and gas cap check on all vehicles MY 1981 and newer; stringency rate for pre-1981 vehicles of 20 percent; waiver rate of 1 percent; a 96 percent compliance rate; and 100 percent emissions credit for the State's technician training and certification program.

The emissions evaluation of the State's I/M program reflects two speed idle testing for all subject vehicles. Given an analysis year of 2002 and the State's two-year exemption for new vehicles, the emissions evaluation reflects two speed idle testing for all subject vehicles MY 1968 through MY 1999. The additional emissions reductions associated with OBD checks were not included in the emissions evaluation of the State's program or in the emissions evaluation of the low enhanced I/M performance standard with which the State's program is compared. (Recent changes in the State program now require OBD checks for subject vehicles MY 1996 and newer instead of the two speed idle test).

Section 7 of appendix E of the 2000 CO plan includes the input and output files from MOBILE5b. As shown in these files, the composite CO emissions factor for January 1, 2002 under the State's program (15.18 grams per mile) is below the corresponding emission level target (15.49 grams per mile) that reflects the EPA model program; and thus, the State's low enhanced I/M program for Las Vegas Valley and Boulder City meets the EPA performance standard for CO.

The federal I/M rule requires that a state I/M SIP submittal cover the legal authority requiring or allowing implementation of the I/M program and providing either broad or specific authority to perform all required elements of the program as well as implementing regulations, interagency agreements, and memoranda of understanding. See 40 CFR 51.372(a)(5) and (7). Nevada's 1996 I/M SIP submittal included the legal authority and implementing regulations for the low enhanced vehicle I/M program in Las Vegas Valley and Boulder City. The 2000 CO plan, submitted as a SIP revision in 2000, and the two supplemental SIP submittals in 2002 provided updated statutes and regulations for this State program.

The legal authority for the program is vested in the Nevada SEC under Title 40 (Public Health & Safety) of the Nevada Revised Statutes (NRS), section 445B.210 and sections 445B.700 through 445B.845, and in the DMV under Title 43 (Public Safety; Vehicles; Watercraft) of NRS, sections 481.047-481.083, 482.155-482.283, 482.385, 482.461, 482.565, and 484.644-484.6441. The implementing regulations are found at Nevada Administrative Code (NAC) 445B.400 through 445B.735.

The federal I/M rule requires the state I/M program to remain in operation until it is no longer necessary. See 40 CFR 51.372(a)(6). Nevada's I/M program does not undergo a sunset review. We believe that NDEP has demonstrated that the Nevada I/M programs will remain in operation as long as necessary and the requirements of 40 CFR 51.372 have been satisfied.

We conclude, based on our review of the vehicle I/M program relative to our requirements and within the context of the 2000 CO plan, that the 1996 SIP Submittal for the low enhanced vehicle I/M program, as revised and supplemented through 2002, meets our requirements and contributes to the demonstration of attainment of the CO NAAQS by the applicable date. We, therefore, propose to approve the vehicle I/M program for Las Vegas Valley and Boulder City into the Nevada SIP. Specifically, we propose to approve the statutory and regulatory basis for the revised program in NRS, title 40, section 445B.210 and sections 445B.700 through 445B.845, and title 43, sections 481.047-481.083, 482.155-482.283, 482.385, 482.461, 482.565, and 484.644-484.6441, as amended by Nevada through 2001, and NAC sections 445B.400 through 445B.735 (not including 445B.576, 445B.577, and 445B.578), as adopted through March 8, 2002, by SEC and DMV, and, in the case of draft revisions to NAC 445B.580 Inspection of vehicle: Procedure (NRS 445B.785), as submitted by NDEP by letter dated January 30, 2002. We will consider final action on the vehicle I/M program once we receive the final adopted version of NAC 445B.580. (This section includes final test procedures and equipment used for inspecting certified OBD systems. A new section number will replace NAC 445B.580.) Our approval of the statutory and regulatory basis for the revised vehicle low enhanced I/M program would supercede the existing statutory and regulatory basis for vehicle I/M in the Nevada SIP (as approved by EPA in 1981 and 1984) as it relates to Las Vegas Valley.

Wintertime gasoline specifications in Clark County reduce CO emissions in Las Vegas Valley. Specifically, these wintertime specifications relate to oxygen, Reid Vapor Pressure (RVP), sulfur content and aromatic hydrocarbons (“aromatics”). In a separate, prior action, we approved the wintertime oxygenated fuels regulation in Clark County under sections 187(b)(3) and 211(m) of the Act. See 64 FR 29573 (June 2, 1999). The low RVP wintertime gasoline regulation was submitted as part of the 1995 CO plan and the most recent version of that regulation was submitted to EPA on June 4, 2002. EPA is proposing to approve that regulation into the Nevada SIP in this notice, as discussed below. The wintertime sulfur and aromatics specifications are contained in Clark County's Cleaner Burning Gasoline regulation, which has been submitted as an additional control measure in the 2000 CO plan and which is discussed following the low RVP wintertime gasoline discussion.

RVP is a measure of the stabilized pressure exerted by a volume of liquid at 100° F, and is generally used as a measure of the volatility of gasoline fuel. Fuels with high RVP values volatilize more readily than fuels with low RVP values. The effect of the increased rate of volatilization at any given RVP value is largely dependent on ambient temperature. Lowering the RVP specification of gasoline reduces CO emissions from vehicles equipped with functional evaporative control systems ( e.g. , on-board carbon-canister). The evaporative control systems adsorb gasoline vapors which are then desorbed into the vehicle's fuel intake system causing enrichment of the fuel mixture and an increase in CO exhaust emissions. A lower volatility gasoline decreases the amount of vapors adsorbed by carbon canisters which in turn lowers subsequent fuel mixture enrichment and CO exhaust emissions. Newer vehicles operate “closed-loop,” using oxygen sensors and constantly adjusting the air/fuel ratio. Such vehicles, which represent virtually all 1990 and later cars, are programmed to make adjustments to avoid undue enrichment (and associated emission increases) during canister purge. As a result, the effect of lower RVP on CO emissions on average will be larger for open-loop than for closed-loop cars, but there is considerable variation among manufacturers, models and model years.

The Nevada legislature granted authority to adopt regulations relating to fuel standards to the State Board of Agriculture through NRS chapter 590, section 590.070. Nevada Board of Agriculture's wintertime RVP regulations are found in chapter 590, section 590.065 of the Nevada Administrative Code (“NAC 590.065”). The specific regulation that was submitted as a control measure in the 1995 CO plan was adopted by the Board of Agriculture on September 21, 1995. Since that date, this regulation has been revised several times, e.g. to modify the applicable wintertime period, most recently on October 28, 1998. The current regulation, NAC 590.065 paragraphs (3) and (4), limits the RVP of gasoline sold in Clark County during the winter season (October 1 through March 31) to 9.0 pounds per square inch (psi) with no allowance for ethanol blended fuel. NDEP submitted the current adopted regulation to us for incorporation into the SIP under a letter dated June 4, 2002.

The wintertime low RVP requirement is enforced through random sampling and testing conducted by the Nevada Department of Agriculture. Funding for enforcement and monitoring activities associated with the RVP requirement is provided through a portion of the annual vehicle emission testing certificate fee.

To evaluate the effects of RVP on exhaust emissions, state and local air agencies use our MOBILE model. CCDCP used MOBILE5a to evaluate the CO emissions benefits of low RVP under wintertime conditions for the 1995 CO plan. At the time of the 1995 CO plan, the supporting documentation indicated that CCDCP properly modeled RVP controls using appropriate temperatures. However, members of the Western States Petroleum Association (WSPA) objected to the 1995 CO plan's conclusion that gasoline with higher RVP results in higher CO emissions, especially during vehicle startup. They asserted that MOBILE5a overestimated the benefit of reducing RVP and expressed their concern over the related emission reduction predictions contained in the plan.

To address these concerns, CCHD commissioned a study of vehicle emissions to assess the validity of MOBILE5a results. Because of the unusual meteorological conditions in Las Vegas Valley that are associated with historic CO exceedances, and the relative lack of data within the MOBILE5a model for evaluating the RVP effects on CO emissions under colder temperatures, the study called for a shift in the normal series of events specified by the Federal Test Procedure for vehicle certification to simulate the effect of a diurnal temperature profile accompanied by a morning and evening commute.

This study culminated in the publication of the Society of Automotive Engineers' (SAE971726), Effects of RVP Reduction on Vehicle CO Emissions During Las Vegas and Los Angeles Winter Conditions—Petroleum Environmental Research Forum Project Number 95-06 in May 1997. As part of this study, two fleets of vehicles were emissions-tested to determine the effect of gasoline RVP reductions on tailpipe CO emissions in Las Vegas and Los Angeles under conditions typical of winter CO exceedances. The analyses had two locations and two RVP's (9 and 12 psi), including separate sets of temperature ranges, base gasoline types, and oxygenate types and levels. The conclusion was that RVP reduction is a significant control measure for reducing CO emissions under conditions typical of CO exceedances in Las Vegas and Los Angeles. It was estimated that reducing RVP by 3 psi (from 12 psi to 9 psi) would reduce winter CO emissions by 12% in Las Vegas and between 0 and .8% in Los Angeles.

As part of our decision whether to approve the State's low RVP wintertime gasoline regulation into the Nevada SIP, we also must consider whether the fuel specification in that regulation is preempted under the Act. Under section 211(c)(4)(A) of the Act preempts certain state fuel regulations by prohibiting a state from prescribing or attempting to enforce “any control or prohibition respecting any characteristic or component of a fuel or fuel additive” for the purposes of motor vehicle emission control, if EPA has prescribed under section 211(c)(1), “a control or prohibition applicable to such characteristic or component of the fuel or fuel additive,” unless the state prohibition is identical to the prohibition or control prescribed by EPA. The Federal controls on RVP, promulgated under section 211(h) and section 211(c)(1), apply only in the summer months. There is no Federal RVP control applicable to gasoline in the wintertime, and thus no Federal preemption of the State's wintertime low RVP requirement.

Therefore, we are proposing to approve the State's wintertime low RVP requirement into the Nevada SIP as a CO control measure [ i.e. , NAC 590.065, as adopted on October 28, 1998] because the State has demonstrated that the measure is enforceable, contributes to the attainment demonstration by reducing vehicular CO emissions in the Las Vegas Valley nonattainment area, and is not preempted under section 211(c)(4) of the Act. The TSD provides a copy of the State's low RVP wintertime regulation and additional information on the emissions effects of the regulation.

The Clark County Board of Health, which governs the CCHD, adopted a wintertime Cleaner Burning Gasoline (CBG) regulation in 1999 that results in lower CO emissions from motor vehicles. The CBG regulation was included as one of the principal additional control measures included in the 2000 CO plan. The CBG regulation requires that gasoline sold in Clark County comply with limits on the maximum levels of sulfur and aromatics during the period from November 1 to March 31.

As noted previously, the air-quality-related regulatory authority that had been vested in the County Board of Health was transferred to the County Board of Commissioners in 2001. On July 24, 2001, the Clark County Board of Commissioners adopted County ordinance #2627, which, among other items, adopted the Board of Health's air quality regulations then in effect, including the CBG regulation, except for substitutions in the references to the applicable agency ( e.g. , “Clark County Air Quality Management Board” was substituted for “Clark County District Board of Health”). We have not yet received CCAQMB's wintertime CBG regulation ( i.e. , CCDAQM regulation, section 54) from NDEP as a SIP submittal, but are proposing approval of the CCAQMB's CBG rule at this time based on the condition that the State submit to EPA the CCAQMB version of the rule prior to our taking final action. In so doing, and as discussed more fully below, we are proposing approval of CCAQMB's CBG rule based on the substance of the Board of Health's CBG regulation and our review of the analysis of that regulation contained in the 2000 CO plan because the two versions of the CBG rule are the same (but for the substitution in agency references as noted above).

The Board of Health's CBG regulation (CCHD regulation, section 54) and the related technical support document are in appendix D, section one, of the 2000 CO plan. The regulation includes sections on: Definitions; applicability of the standards; the standards for sulfur content and aromatics content; sampling, testing and recordkeeping; requirements pertaining to CBG blendstock for oxygenated blending and downstream blending; and enforcement.

The CBG regulation provides two alternative ways to be in compliance for the specifications on sulfur and aromatics: (1) marketers can meet a flat limit on a per gallon basis or (2) marketers can comply via averaging, with each per gallon sample not to exceed a certain cap. (The CBG rule does not change current State and local regulations for wintertime RVP (9 psi) and minimum oxygen content (3.5%).) A summary of the limitations is shown in Table 6.

As noted above, the CBG regulation establishes gasoline standards for sulfur and aromatics, and as noted above in connection with low RVP gasoline, under section 211(c)(4) of the Act, states are preempted from prescribing any control or prohibition respecting any characteristic or component of a fuel, where there is a nonidentical Federal control or prohibition applicable to such characteristic or component. See section 5 of the TSD for further discussion of this prohibition and EPA's guidance on approval of a state fuel measure under section 211(c)(4)(C).

Our analysis of preemption of the CBG regulation addresses the specifications for sulfur and aromatics. To determine whether a state fuel requirement is preempted by a federal requirement, we compare the applicable federal fuel requirements in the area with the proposed state fuel requirements. For the purposes of this analysis, the federal fuel requirement in the Las Vegas Valley CO nonattainment area is federal conventional gasoline.

In this proposed rulemaking, EPA does not need to determine whether the federal requirements for conventional gasoline include requirements for sulfur and aromatics which would preempt the CBG regulation under section 211(c)(4)(A). If the sulfur and aromatics requirements are not preempted, there is no bar to our approving them as a SIP revision. 8 If they are preempted, we may approve the CBG regulation as necessary under section 211(c)(4)(C) if we could approve each of these requirements as a SIP revision, i.e. , if CCHD's documentation for the regulation shows that each requirement ( i.e. , the sulfur limit and the aromatics limit) is “necessary” to achieve the CO NAAQS.

Sulfur and aromatics specifications both reduce CO emissions. Emissions modeling data shows that each of these controls, independently, contributes to CO emissions reductions. Thus, each requirement can be determined “necessary” to achieve the CO NAAQS if the remaining requirements of the necessity determination are met.

To make a necessity determination, we must consider whether there are other reasonable and practicable measures available that would produce sufficient emissions reductions to attain the CO NAAQS without implementation of the CBG requirements. Section 211(c)(4) is intended to ensure that a state resorts to a fuel measure only if there are no available practicable and reasonable non-fuel measures. In demonstrating that measures other than sulfur and aromatics requirements for wintertime CBG are unreasonable or impracticable, a state need not address the reasonableness or practicability of other state fuel measures.

CCHD conducted an extensive public process to evaluate possible future emissions control options, including revisions to the current I/M program. CCHD considered eight control options other than wintertime CBG requirements for sulfur and aromatics. These options were: (1) Separation of test and repair stations to make its I/M program a “high” enhanced program, (2) creation of one-way streets, (3) adding powerful air propellers to certain developments, (4) adding 600 non-conventional-fueled buses to its municipal fleet, (5) transportation control measures, (6) alternative fuels requirements for municipal fleets, (7) lower smog cutpoints for the I/M program, and (8) episodic woodburning control. The first four options were rejected as unreasonable or impracticable due to unavailability and/or ineffectiveness.

The remaining four control measures were subject to further evaluation, but none of these measures provides significant emissions reductions. CCHD's modeling calculations show that, even with emissions reductions attributed to these four remaining measures, the CO design value would not reach 9.0 ppm by the end of 2000 without adding the reductions due to sulfur and aromatics controls for wintertime CBG.

Estimates prepared for the 2000 CO plan indicate that implementation of the CBG regulation would reduce CO emissions by 31.9 tons per day and 53.96 tons per day in years 2000 and 2020, respectively. These estimates are based on use of the Complex model (with CO added), (“CO Complex model”), in combination with the MOBILE5b model to show the emissions effects that are directly related to the specific fuel specifications in the CBG regulation. (See appendix E, section 1, of the 2000 CO plan.) In March of 1999, EPA reviewed and approved the use of the CO Complex model for CO SIP development purposes, due to the unique fuel program in use in Clark County and the inability of MOBILE5b to fully assess the impact of all of the fuel parameters. At that time, the CO Complex model was the best approach available to assess these fuel parameters.

The CO Complex model was approved for SIP development purposes in a letter dated March 23, 1999 from Roxanne Johnson, EPA Region 9, to Michael Naylor, Director, Air Pollution Control Division, CCHD.

All future transportation conformity determinations for CO in Clark County must be based on the CO Complex model with MOBILE5b until the grace period for MOBILE6 has concluded. Because MOBILE6 is not capable of estimating the benefits of this exact fuels program, EPA will work with Clark County prior to the end of the MOBILE6 conformity grace period to determine how the benefits of this program should be estimated.

Results from the modeling demonstration showed that, by implementing the wintertime CBG regulation, along with the other measures identified in the CO attainment SIP, the Las Vegas Valley should achieve the 8-hour CO NAAQS of 9 ppm by the December 31, 2000 attainment deadline.

Although CCHD did not identify the estimated quantity of CO emissions that must be reduced in order to achieve the CO NAAQS, it did estimate the CO emissions reductions attributable to each of the individual control measures (including the CBG regulation) that were subject to further evaluation. CCHD's modeling calculations showed that, without the emissions reductions attributable to the CBG regulation, Las Vegas Valley would not achieve the CO NAAQS by the end of the year 2000. Therefore, the emission reductions from the CBG regulation are necessary to achieve the CO NAAQS.

In general, to be approved as part of a SIP, regulations must include adequate enforceability provisions, such as clear indications of what constitutes a violation, who is liable, and what defenses are available. Under the CBG regulation, those who fail to comply with the CBG regulation are subject to enforcement action and may be assessed penalties of up to $10,000 per day per section violated. CCDAQM has adopted the requirements developed by CCHD for every entity in the gasoline distribution system to ensure that Las Vegas Valley will receive gasoline that meets the wintertime CBG standards. The requirements, which include registration of gasoline suppliers, testing and sampling, compliance surveys, and record keeping and reporting, apply to any producer, importer, terminal, pipeline operator, trucker, rail carrier, or retailer.

The requirements imposed by the wintertime CBG regulation apply to activity occurring both within and outside of Clark County and the State of Nevada. CCDAQM has been assigned the rights and duties of an agreement between CCHD and the California Air Resources Board (CARB) to have CARB sample and test CBG at the refineries in Southern California.

Clark County also made an agreement with the Nevada Department of Agriculture to check fuel at the final destination ( i.e. , Clark County). The Department of Agriculture agreed to check sulfur and aromatics content of CBG fuel along with their normal testing. They would notify the CCDAQM in the event that any sample exhibits non-compliant CBG characteristics.

We have evaluated the wintertime CBG regulation and have determined that it is consistent with section 110 of the CAA and EPA regulations. We have also found that the various wintertime CBG requirements are necessary for the Las Vegas Valley nonattainment area to achieve the CO NAAQS, pursuant to section 211(c)(4)(C) of the Act. Therefore, based on the substance of the submitted Board of Health wintertime CBG regulation, and the County ordinance adopting the CBG regulation as in effect in mid-2001 (except for changes to agency references), we are proposing to approve the CCAQMB's wintertime CBG regulation ( i.e. , CCDAQM regulation, section 54) into the Nevada SIP for the Las Vegas Valley CO nonattainment area based on the condition that the State submit to EPA the CCAQMB version of the rule prior to our taking final action.

The 2000 CO plan includes two additional programs to reduce overall emissions of motor vehicles. These programs are a Transportation Control Measure/Transportation Demand Measure (“TCM/TDM”) program and an alternative fuel program for government fleets.

Section 187(b)(2) of the Act requires states with serious CO nonattainment areas to submit a SIP revision that includes transportation control strategies and measures to offset any growth in emissions due to growth in vehicle miles traveled (VMT) or vehicle trips. In developing such strategies, a state must consider measures specified in section 108(f) of the Act and choose from among and implement such measures as necessary to demonstrate attainment with the NAAQS.

Transportation control measures (“TCMs”) are designed to reduce mobile pollutant emissions by either improving transportation efficiency or reducing single-occupant vehicle trips. TCMs can be divided into two general strategies: Transportation System Management (TSM) and Transportation Demand Management (TDM). The former is intended to improve efficiency of existing transportation infrastructure such as optimized use of capacity and improved speeds to reduce travel time delays, and the latter is intended to reduce the number of single-occupant vehicles on roadways by shifting people from single-occupant vehicles to transit and high-occupancy vehicles. In the process of preparing the 2000 CO plan, Clark County commissioned a study to estimate the CO reductions due to various individual TCMs and packages of TCMs and to identify those TCMs that showed the greatest potential for reducing CO emissions in the Valley.

The findings and recommendations of this TCM study led to the development by RTC of the CAT MATCH commuter services program, which is a voluntary TDM program that includes employer-based commuter incentive programs, telecommuting incentives and area-wide ridesharing programs. On June 10, 1999, RTC adopted Resolution No. 177, which establishes guidelines for administering the CAT MATCH commuter services program. Portions of the CAT MATCH program became operational in July 1999. Also, in connection with the CAT MATCH program, RTC adopted Resolution No. 186 (on June 8, 2000), which commits that agency to implement the CAT MATCH program, monitor participation levels, prepare annual reports comparing actual participation levels with projected levels, and remedy any shortfall of CO emission reductions resulting from actual participation levels being lower than predicted levels.

The CAT MATCH program was included as an additional control measure in the 2000 CO plan. The 2000 CO plan estimates that the CAT MATCH program would reduce CO emissions by 0.3 tpd in 2000, 1.8 tpd in 2010, and 2.3 tpd in 2020, and refers to our Voluntary Mobile Source Emission Reduction Program (VMEP) policy, described below, in support of the identification of the CO emissions reductions from that voluntary program as part of the overall CO control strategy.

A memorandum from Richard Wilson dated October 24, 1997 sets forth our policy and interpretation regarding the granting of explicit credit for VMEPs under section 110 of the Act. The VMEP policy was developed since we wanted to encourage areas to consider innovative methods in achieving air quality goals. Under the VMEP policy, emissions credit can be approved under certain circumstances and if the appropriate agency has committed to monitoring and evaluating the effectiveness of the voluntary measure, to reporting on the results of the evaluation, and to remedying any emissions shortfall if the voluntary measure proves to be less effective than projected in the plan.

We have evaluated the CAT MATCH program under our VMEP policy and conclude that the emissions reduction credit in the 2000 CO plan for that voluntary program is appropriate. We also have determined that the CAT MATCH program complies with section 187(b)(2) of the Act. Therefore, we propose to approve the CAT MATCH program under section 187(b)(2) of the Act, and we propose to approve into the Nevada SIP the commitments by RTC to develop, implement, monitor, report, and remedy any emissions shortfalls from this voluntary program under RTC's Resolution No. 177 (adopted June 10, 1999) and Resolution No. 186 (adopted June 8, 2000). Our full review of the TCM/TDM measure is included in the TSD for this proposed action.

The Energy Policy Act of 1992 (EPACT) requires federal, state, and fuel provider fleets to acquire alternative fuel vehicles. The State of Nevada has chosen to develop a program that extends alternative fuel requirements to local government agencies in their two most populated counties, Washoe and Clark, and that provides for a more aggressive schedule for implementation than would otherwise be required under EPACT. The State law establishing this program is set forth at NRS chapter 486A. NRS chapter 486A authorizes the State Environmental Commission (SEC) to promulgate implementing regulations, and SEC's regulations are set forth in NAC chapter 486A. Specifically, SEC's regulations require applicable government agencies to acquire and use an increasing proportion of alternative fuel vehicles up to 90% for year 2001 and beyond when acquiring additional or replacement vehicles for its fleet. The program began in 1995, and the 2000 CO plan indicates that nearly all applicable agencies have chosen to comply by acquiring natural gas vehicles and that presently there are over 1,400 alternative fuel vehicles operating in Las Vegas Valley. The regulations also include record keeping and reporting requirements. Under the regulatory scheme, the State Department of Conservation and Natural Resources is responsible for enforcement.

The 2000 CO plan included the alternative fuels program set forth in NAC chapter 486A, as revised through April 2000, as an additional control measure. In estimating emission reductions in Clark County associated with this measure, the 2000 CO plan assumes that most fleets have chosen to purchase CNG vehicles to comply with the alternative fuel regulations and that the number of CNG vehicles is expected to be 2,925 by year 2010, and 3,568 by year 2020. Under these assumptions, implementation of the alternative fuel vehicle programs results in emission reductions of 0.4 tpd in 2000, 1.1 tpd in 2010 and 1.4 tpd in 2020. The State's alternative fuel program contributes to the effort to attain and maintain the CO NAAQS within Las Vegas Valley and meets all CAA requirements (see the TSD for more details). Therefore, we are proposing to approve the alternative fuel program into the Nevada SIP for the Las Vegas Valley CO nonattainment area. Specifically, we propose to approve, into the Nevada SIP, the legal authority vested in SEC under NRS Chapter 486A and the implementing regulations set forth in NAC Chapter 486A, as amended through April 20, 2000 by the State Environmental Commission.

Section 172(c)(5) of the Act requires states with nonattainment areas to revise their SIPs to include a permit program for the construction and operation of new or modified major stationary sources in the nonattainment areas.

Within Clark County, the State of Nevada, rather than the county, has jurisdiction over plants which generate electricity by using steam produced by the burning of fossil fuel. See NRS 445B.500. With respect to such plants, EPA is not requiring the State to submit new source review permit regulations under section 172(c)(5) of the Act because the State has adopted a regulation that prohibits new power plants or major modifications to existing power plants under its jurisdiction within the Las Vegas Valley nonattainment area ( i.e. , hydrographic area 212). See NAC 445B.22083.

Clark County has jurisdiction over all other stationary sources within the county, and with respect to those sources, we approved the new source review permit program for Clark County in 1999. See 64 FR 25210 (May 11, 1999). This program defines major stationary sources of CO within Las Vegas Valley as those that have the potential to emit 70 tons per year or more, which is more stringent than required under section 302(j) of the Act and requires such new or modified sources locating within the nonattainment area to obtain offsets in addition to installing control equipment representing the lowest achievable emission rate.

However, on August 29, 2001, the U.S. Court of Appeals for the Ninth Circuit vacated our approval of Clark County's new source review program. See Hall v. EPA , 273 F.3d 1146 (9th Cir. 2001). The court vacated our approval, not because EPA had acted unreasonably in finding that the program complies with the specific requirements of section 172(c)(5), but rather, because EPA did not have an adequate basis under section 110(l) of the Act to conclude that the new program, even if it met the minimum requirements of section 172(c)(5), would not interfere with attainment of the NAAQS by the applicable deadline.

We intend to re-propose an action on the new source review program in a separate notice in the near future. However, we note here that the emissions inventory and attainment demonstration from the 2000 CO plan that we are proposing to approve in this notice includes stationary sources and the projections of emissions from those sources appear to be generally consistent with the new source review program as submitted to EPA. Specifically, the 2000 CO plan assumes that CO emissions from major CO stationary sources will remain unchanged (which is consistent with the offset requirement in their new source review program) whereas the plan projects growth in CO emissions from non-major stationary sources (which are not subject to federally-enforceable offsets under their program).

Section 187(c) of the Act requires that, in the case of CO nonattainment areas classified as serious and subject to significant stationary source emissions of CO, the term “major stationary source” is to include any stationary source which emits, or has the potential to emit, 50 tons per year or more of CO. The 2000 CO plan concludes that Las Vegas Valley is not subject to significant stationary source emissions of CO and thus not subject to the requirements of section 187(c). Generally, significance in this context is associated with areas with individual stationary sources that generate 5,000 tons of CO per year or more. (See guidance provided in a memorandum from William G. Laxton, Director, Technical Support Division, EPA, dated May 13, 1991.) Since the highest CO-emitting facility shown in the stationary source inventory for the 2000 CO plan emits only 1,100 tons per year of CO, we agree with the conclusion that stationary sources are not significant contributors to ambient CO levels in Las Vegas Valley and that section 187(c) of the Act does not apply within the Las Vegas Valley CO nonattainment area.

Section 187(a)(2)(A) of the Act requires states with CO nonattainment areas with design values greater than 12.7 ppm, such as Las Vegas Valley, to submit a plan revision that contains a forecast of vehicle miles traveled (VMT) in the nonattainment area for each year until attainment of the CO NAAQS. Also, this plan revision must provide for annual updates of the VMT forecasts to be submitted to EPA along with annual reports regarding the extent to which the preceding annual forecasts proved to be accurate. These annual reports must contain estimates of actual VMT in each year for which a VMT forecast was required.

The 2000 CO plan provides VMT forecasts for every year from 1997 through the attainment year of 2000 and then nearly every year between 2001 and 2030. The VMT forecasts were estimated using recent transportation modeling results from RTC that incorporated more recent socioeconomic data than had been used for VMT forecasts contained in the earlier plans. The VMT forecasts are displayed in Table 7-1 of Chapter 7 of the 2000 CO plan. The forecasts are broken down by roadway type. The forecasts predict increases in VMT of roughly 5% each year through 2005 consistent with recent trends, then roughly 4% each thereafter until 2020, and then marginal decreases each year between 2020 and 2030 based on an assumption of highway saturation by that time resulting in a mode shift to mass transit, ride sharing, and other modes.

RTC is the local agency responsible for preparing VMT forecasts. Through Resolution No. 149, as adopted on July 13, 1995, RTC has committed to preparing annual VMT estimates and forecasts and to submitting these reports (“VMT tracking reports”) to EPA. Under section 187(a)(3) of the Act, annual VMT tracking reports provide a potential basis for triggering implementation of contingency measures in the event that estimates of actual VMT exceed the forecasts contained in the prior annual VMT tracking report.

We propose to approve the VMT forecasts contained in the 2000 CO plan as meeting the section 187(a)(2)(A) requirements. However, it is noted that section 187(a)(2)(A) does not require forecasts extending as far into the future as those provided in the 2000 CO plan, and, while our approval of the emissions budgets through 2020 discussed in this notice implies approval of the VMT forecasts through 2020, no such implied approval is intended for VMT forecasts beyond 2020. Also, we propose to approve RTC's commitment through Resolution No. 149 to prepare and submit annual VMT tracking reports.

Section 187(a)(3) of the Act requires states with CO nonattainment areas with design values greater than 12.7 ppm, such as Las Vegas Valley, to submit a plan revision that provides for contingency measures. The Act specifies that such measures are to be implemented if any estimate of VMT submitted in an annual VMT tracking report exceeds the VMT predicted in the most recent prior forecast or if the area fails to attain the NAAQS by the attainment date. As a general rule, contingency measures must be structured to take effect without further action by the state or EPA upon the occurrence of certain triggering events.

EPA believes that, for exceedances of a VMT forecast, one appropriate choice of contingency measures would be to provide for the implementation of sufficient VMT reductions or emissions reductions to counteract the effect of 1 year's growth in VMT while the state revised its SIP (including VMT projections) to provide for attainment by the applicable date. These measures may offset either the excess VMT in the nonattainment area or the additional CO emissions in the area that are attributable to the additional VMT. In the case of Las Vegas Valley, the annualized rate of growth in VMT over the 2000 to 2005 period is approximately 5 percent; therefore, the contingency measures should have the potential to achieve that level of reduction in VMT or a corresponding reduction in CO emissions, which would be approximately 16 tons per day based on the 2000 CO motor vehicle estimate of 310 tons per day.

For a failure to attain the CO NAAQS by the attainment date, EPA believes that contingency measures should have the potential to provide a reduction in CO emissions equivalent to 3 percent of the CO inventory. In this instance, 3 percent of the total CO inventory projection in 2000 (387 tons per day) is approximately 12 tons per day.

The three contingency measures included in the 2000 CO plan include:

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

This is a synopsis of the Commission's notice of proposed rulemaking, MB Docket No. 03-20, adopted January 22, 2003, and released January 29, 2003. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC, 20554. This document may also be purchased from the Commission's duplicating contractor, Qualex International, Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC, 20554, telephone 202-863-2893, facsimile 202-863-2898, or via-e-mail qualexint@aol.com.

Provisions of the Regulatory Flexibility Act of 1980 do not apply to this proceeding.

Members of the public should note that from the time a notice of proposed rulemaking is issued until the matter is no longer subject to Commission consideration or court review, all ex parte contacts are prohibited in Commission proceedings, such as this one, which involve channel allotments. See 47 CFR 1.1204(b) for rules governing permissible ex parte contacts.

For information regarding proper filing procedures for comments, see 47 CFR 1.415 and 1.420.

For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 47 CFR part 73 as follows:

Background

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

Critical habitat receives protection from destruction or adverse modification through required consultation under section 7 of the Act (16 U.S.C. 1531 et seq. ) with regard to actions carried out, funded, or authorized by a Federal agency. Section 4(b)(2) of the Act requires that the Secretary shall designate or revise critical habitat based upon the best scientific and commercial data available, and after taking into consideration the economic impact of specifying any particular area as critical habitat. A draft economic analysis of the proposed critical habitat designation was prepared and a notice of availability was published in the Federal Register on December 5, 2002 (67 FR 72407); with a request for public comment on both the proposed rule and economic analysis by January 6, 2003. The draft economic analysis shows that over a 10-year period, the estimated total direct cost on Guam would be approximately $1.4 million and the estimated total direct cost on Rota would be approximately $149,000. The draft economic analysis is available on the Internet and from the mailing address in the Public Comments Solicited section below.

We are now announcing the reopening of the comment period for the proposed designation of critical habitat for the Mariana fruit bat and the Guam Micronesian kingfisher on Guam, and the Mariana crow on Guam and Rota and associated draft economic analysis. On December 8, 2002, Guam and Rota sustained extensive damage from Super Typhoon Pongsona and were declared Federal disaster areas. We are reopening the comment period until the date specified in DATES . The reopening of the comment period gives additional time for all interested parties to consider the information and submit written comments on the proposal and the associated draft economic analysis.

We will accept written comments and information during this reopened comment period. If you wish to comment, you may submit your comments and materials concerning this proposal by any of several methods:

(1) You may submit written comments and information to the Field Supervisor, U.S. Fish and Wildlife Service, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Blvd., PO Box 50088, Honolulu, HI 96850-0001.

(2) You may send comments by electronic mail (e-mail) to: Guam_crithab@r1.fws.gov . If you submit comments by e-mail, please submit them as an ASCII file and avoid the use of special characters and any form of encryption. Please also include “Attn: RIN 1018-AI25” and your name and return address in your e-mail message.

(3) You may hand-deliver comments to our Honolulu Fish and Wildlife Office at the address given above.

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for inspection, by appointment, during normal business hours at the address under (1) above. Copies of the draft economic analysis are available on the Internet at http://pacificislands.fws.gov or by request from the Field Supervisor at the address under ADDRESSES and phone number under FOR FURTHER INFORMATION CONTACT above.

The primary author of this notice is Fred Amidon (see ADDRESSES ).

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

The Preble's meadow jumping mouse (Preble's), a small rodent in the family Zapodidae, is known to occur only in eastern Colorado and southeastern Wyoming. It lives primarily in heavily vegetated riparian habitats and immediately adjacent upland habitats. Habitat loss and degradation caused by agricultural, residential, commercial, and industrial development resulted in the Preble's being listed as a threatened species throughout its range on May 13, 1998 (62 FR 26517).

On July 17, 2002 (67 FR 47153), we proposed to designate critical habitat for the Preble's meadow jumping mouse pursuant to the Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et seq. ). The proposed designation includes 19 habitat units totaling approximately 23,248 hectares (57,446 acres) found along 1,058.1 kilometers (657.5 miles) of rivers and streams in the States of Colorado and Wyoming.

Critical habitat identifies specific areas, both occupied and unoccupied, that are essential to the conservation of a listed species and that may require special management considerations or protection. If the proposed rule is made final, section 7 of the Act will prohibit destruction or adverse modification of critical habitat by any activity funded, authorized, or carried out by any Federal agency, and Federal agencies proposing actions affecting areas designated as critical habitat must consult with us on the effects of their proposed actions, pursuant to section 7(a)(2) of the Act.

Section 4 of the Act requires that we consider economic and other relevant impacts prior to making a final decision on what areas to designate as critical habitat. We have developed a draft economic analysis and environmental assessment for the proposal to designate certain areas as critical habitat for the Preble's meadow jumping mouse. We solicit data and comments from the public on these draft documents, as well as on all aspects of the proposal. We may revise the proposal, or its supporting documents, to incorporate or address new information received during the comment period. In particular, we may exclude an area from critical habitat if we determine that the benefits of excluding the area outweigh the benefits of including the area as critical habitat, provided such exclusion will not result in the extinction of the species.

We intend any final action resulting from this proposal to be as accurate and as effective as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. We do not anticipate extending or reopening the comment period on the proposed rule after the comment period extension provided in this document ends (see DATES ). We particularly seek comments concerning:

(1) The likely economic and other impacts on farming and ranching in Wyoming and Colorado;

(2) Costs of developing and implementing Habitat Conservation Plans for the Preble's meadow jumping mouse;

(3) Are data available to better model residential growth patterns in Boulder, Douglas, El Paso, Jefferson, Larimer, and Weld Counties, Colorado?

(4) Are data available to better model the characteristics of future developments?

(5) Are data available to better model administrative and project modification costs to developers and private landowners?

(6) Are data available to develop more accurate estimates of the number of future consultations, project modifications, and the costs for the following activities:

(i) Farm Service Agency (FSA) funding for agriculture operational improvements;

(ii) Natural Resource Conservation Service/FSA funding for voluntary conservation programs;

(iii) Grazing leases on Bureau of Land Management lands;

(iv) Utility projects, such as projects requiring a Clean Water Act section 404 permit from the Army Corps of Engineers and Federal Energy Regulatory Commission licensing of natural gas pipelines;

(v) Bank stabilization projects;

(vi) Development and implementation of Habitat Conservation Plans;

(vii) Dam/reservoir projects; and

(viii) Gravel mining projects?

(7) Specific information on additional land use practices, and current or planned activities in proposed critical habitat areas, as well as the anticipated impact of the proposed critical habitat designation on these activities.

We are also continuing to accept comments on the proposed critical habitat designation. If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES ). If you would like to submit comments by electronic format, please submit them in ASCII file format and avoid the use of special characters and encryption. Please include your name and return e-mail address in your e-mail message.

Comments previously submitted need not be resubmitted as they have already been incorporated into the public record and will be fully considered in the final rule. Comments submitted during this comment period also will be incorporated into the public record and will be fully considered in the final rule. In order to comply with the terms of a settlement agreement, we are required to complete the final designation of critical habitat for the Preble's meadow jumping mouse by June 4, 2003 (Civil Action Number 00-D-1180). To meet this date, all comments or proposed revisions to the proposed rule, associated draft economic analysis, and environmental assessment need to be submitted to us during the comment period reopened by this document (see DATES ).

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address, which we will honor to the extent allowable by law. If you wish us to withhold your name or address, you must state this request prominently at the beginning of your comments. However, we will not consider anonymous comments. To the extent consistent with applicable law, we will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.

Comments and materials received, as well as supporting documentation used in preparation of the proposal to designate critical habitat, will be available for public inspection, by appointment, during normal business hours at the Colorado Field Office (see ADDRESSES ).

The primary author of this notice is the Colorado Field Office staff (see ADDRESSES ).

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

On December 12, 2002 (67 FR 76329), NMFS published a proposed rule in the Federal Register that would implement regulations for a program to reduce excess capacity and promote economic efficiency in the crab fishery under the FMP. NMFS would finance the voluntary program's $100 million cost with a 30-year loan to be repaid by post-reduction fishermen. The proposed rule was corrected in the Federal Register on December 30, 2002 (67 FR 79550).

The deadline for comments on the proposed rule was January 27, 2003, and January 29, 2003 on the correction. This extension of the comment period until February 27, 2003 is in response to requests made by the public. Moreover, as the Bering Sea and Aleutian Islands C. opilio fishery was open during part of the original comment period, NMFS notes that an extension of comment period would give these members of the affected public a better chance to comment on the rule.

This action is authorized by the FMP and implementing regulations at 50 CFR 600.745 and 50 CFR 660.350.

On December 12, 2002, NMFS received three completed EFP applications from the Washington State Department of Fish and Wildlife. The primary purpose of the exempted fishing activity is to measure bycatch rates for overfished and other rockfish species associated with the fishing strategies currently used to harvest dogfish shark, walleye pollock, and arrowtooth flounder.

Each EFP requires that the participating vessels carry a State-sponsored sampler or Federal groundfish observer to collect data from which incidental catch rates and total catch of various species and species groups can be estimated. Samplers/observers would also collect and retain specimens, that may not be kept under current regulations. Because the retention of such fish is prohibited by Federal regulations, an EFP is needed to allow State-sponsored samplers to retain these specimens. To the extent possible, data provided by the State-sponsored samplers will be compatible with that collected by the NMFS coastwide observer program. The information gathered through these EFPs may lead to future rulemakings.

At the Pacific Fishery Management Council's (Council) November 2002, meeting in Foster City, CA, the applicants presented the EFP applications. The Council considered the applications and recommended that NMFS issue the EFPs for the proposed activity. All EFP harvests are expected to be within set asides optimum yields (OYs) for 2003 EFP harvests and, therefore, no OY is expected to be exceeded. Copies of the applications are available for review from NMFS (see ADDRESSES ).

Spiny dogfish is an abundant and important species in the groundfish fishery off Washington State. Fixed gear is used to directly harvest spiny dogfish. For 2003, fishing with fixed gear in areas where spiny dogfish have historically been harvested will be prohibited because the areas fall within the Non-trawl Rockfish Conservation Area. Rockfish conservation areas are large-scale depth-related areas where low abundance groundfish species are commonly found. Little is known about the bycatch catch rates of other groundfish, including overfished species, by vessels specifically targeting spiny dogfish. However, fishers believe that spiny dogfish can be harvested with much lower bycatch rates than are currently assumed.