On October 7, 2008, the U.S. Office of Personnel Management (OPM) issued a proposed rule (73 FR 58506) to redefine the Buffalo, NY, and Pittsburgh, PA, appropriated fund Federal Wage System wage areas. This proposed rule would redefine McKean and Warren Counties, PA, and the Allegheny National Forest portions of Elk and Forest Counties, PA, from the Pittsburgh wage area to the Buffalo wage area. The proposed rule had a 30-day comment period, during which OPM received no comments.

I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.

After further consultations with Congress and to afford the new administration adequate time for review, RHS is changing the effective date of the direct final rule to March 20, 2009.

This document corrects an erroneous amendatory instruction.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendment to 10 CFR Part 150.

On Tuesday October 28, 2008, the FAA proposed to amend part 71 of the Federal Aviation Regulations (14 CFR) part 71 to amend Class D and E airspace upward from the surface, and from 700 ft. and 1,200 ft. above the surface at Bethel, AK (73 FR 63910). The Bethel Airport and its Navigation Aids will be soon undergoing a magnetic variation change. This change will result in the necessity to amend the airspace descriptions. There will be no visible change to the airspace currently depicted on aeronautical charts. Additionally, the present 1,200 foot airspace description is no longer necessary, because Bethel, Alaska lies within a larger section of Class E5 airspace, called Yukon-Kuskokwim Delta, covering the area required for the airport. The Class E4 description has been slightly modified to address small bearing and radial errors listed in the Notice of Proposed Rulemaking. Class D and E controlled airspace extending upward from the surface, and from 700 ft. and 1,200 ft. above the surface in the Bethel Airport area is amended by this action.

Interested parties were invited to participate in this rulemaking proceeding by submitting written comments on the proposal to the FAA. No comments were received. The rule is adopted as proposed.

The area will be depicted on aeronautical charts for pilot reference. The coordinates for this airspace docket are based on North American Datum 83. The Class D airspace area designations are published in paragraph 5000 of FAA Order 7400.9S, Airspace Designations and Reporting Points , signed October 3, 2008, and effective October 31, 2008, which is incorporated by reference in 14 CFR 71.1. The Class E airspace areas designated as surface areas are published in paragraph 6002 and 6004 in FAA Order 7400.9S, Airspace Designations and Reporting Points , signed October 3, 2008, and effective October 31, 2008, which is incorporated by reference in 14 CFR 71.1. The Class E airspace areas designated as 700/1,200 ft. transition areas are published in paragraph 6005 of FAA Order 7400.9S, Airspace Designations and Reporting Points , signed October 3, 2008, and effective October 31, 2008, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This amendment to 14 CFR part 71 amends Class D and E airspace at the Bethel Airport, Alaska. This Class D and E airspace is amended to accommodate aircraft executing instrument procedures, and will be depicted on aeronautical charts for pilot reference. The intended effect of this rule is to provide adequate controlled airspace for Instrument Flight Rules (IFR) operations at the Bethel Airport, Bethel, Alaska.

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 will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle 1, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.

This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart 1, Section 40103, Sovereignty and use of airspace. Under that section, the FAA is charged with prescribing regulations to ensure the safe and efficient use of the navigable airspace. This regulation is within the scope of that authority because it amends Class D and E airspace to contain aircraft executing instrument procedures for the Bethel Airport and represents the FAA's continuing effort to safely and efficiently use the navigable airspace.

On November 17, 2008, the FAA published in the Federal Register a notice of proposed rulemaking to amend Class E airspace at Houston, TX, adding additional controlled airspace at Lone Star Executive Airport, Conroe, TX (73 FR 67823, Docket No. FAA-2008-1046). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9S signed October 3, 2008, and effective October 31, 2008, which is incorporated by reference in 14 CFRp 71.1. The Class E airspace designations listed in this document will be published subsequently in that Order.

This action amends Title 14 Code of Federal Regulations (14 CFR) Part 71 by amending Class E airspace at Houston, TX, adding additional controlled airspace at Lone Star Executive Airport, Conroe, TX. This rule also updates the geographic coordinates of Chambers County Airport, and changes Sholes Field to Sholes International at Galveston, TX.

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. Therefore, this regulation: (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.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the U.S. Code. Subtitle 1, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it adds additional controlled airspace in the Houston, TX airspace area, at Lone Star Executive Airport, Conroe, TX.

The Attorney General is responsible for enforcing the provisions of the Gun Control Act of 1968 (“the Act”), 18 U.S.C. Chapter 44. He has delegated that responsibility to the Director of ATF, subject to the direction of the Attorney General and the Deputy Attorney General. 28 CFR 0.130(a). ATF has promulgated regulations that implement the provisions of the Act in 27 CFR Part 478.

The regulations in Subpart E of Part 478, §§ 478.71-78, relate to proceedings involving federal firearms licenses, including the denial, suspension, and revocation of a license, and the imposition of a civil fine. Section 478.71 provides that whenever the Director of Industry Operations (“DIO”) has reason to believe that an applicant is not qualified to receive a license under the provisions of § 478.47, he may issue a notice of denial, on ATF Form 4498, to the applicant. The notice will set forth the matters of fact and law relied upon in determining that the application should be denied, and will afford the applicant 15 days from the date of receipt of the notice in which to request a hearing to review the denial. If no request for a hearing is filed within such time, the application will be disapproved and a copy, so marked, will be returned to the applicant.

Under § 478.72, an applicant who has been denied an original or renewal license can file a request with the DIO for a hearing to review the denial of the application. On conclusion of the hearing and after consideration of all relevant facts and circumstances presented by the applicant or his representative, the DIO renders a decision confirming or reversing the denial of the application. If the decision is that the denial should stand, a certified copy of the DIO's findings and conclusions are furnished to the applicant with a final notice of denial, ATF Form 4501. In addition, a copy of the application, marked “Disapproved,” is furnished to the applicant. If the decision is that the license applied for should be issued, the applicant will be so notified, in writing, and the license will be issued.

Section 478.73 provides that whenever the DIO has reason to believe that a firearms licensee has willfully violated any provision of the Act or part 478, a notice of revocation of the license (ATF Form 4500), may be issued. In addition, a notice of revocation, suspension, or imposition of a civil fine may be issued on Form 4500 whenever the DIO has reason to believe that a licensee has knowingly transferred a firearm to an unlicensed person and knowingly failed to comply with the requirements of section 922(t)(1), relating to a NICS (National Instant Criminal Background Check System) background check.

As specified in § 478.74, a licensee who received a notice of suspension or revocation of a license, or imposition of a civil fine, may file a request for a hearing with the DIO. On conclusion of the hearing and after consideration of all the relevant presentations made by the licensee or the licensee's representative, the DIO renders a decision and prepares a brief summary of the findings and conclusions on which the decision was based. If the decision is that the license should be revoked or, in actions under section 922(t)(5), that the license should be revoked or suspended, and/or that a civil fine should be imposed, a certified copy of the summary is furnished to the licensee with the final notice of revocation, suspension, or imposition of a civil fine on ATF Form 4501. If the decision is that the license should not be revoked, or in actions under section 922(t)(5), that the license should not be revoked or suspended, and a civil fine should not be imposed, the licensee will be notified in writing.

Under § 478.76, an applicant or licensee may be represented by an attorney, certified public accountant, or other person recognized to practice before ATF, provided certain requirements are met. The DIO may be represented in proceedings by an attorney in the office of the Assistant Chief Counsel or Division Counsel who is authorized to execute and file motions, briefs and other papers in the proceeding, on behalf of the DIO, in his own name as “Attorney for the Government.”

Section 478.78 provides that if a licensee is dissatisfied with a post-hearing decision revoking or suspending the license or denying the application or imposing a civil fine, as the case may be, he may file a petition for judicial review of such action. In such case, when the DIO finds that justice so requires, he may postpone the effective date of suspension or revocation of a license or authorize continued operations under the expired license, as applicable, pending judicial review.

As indicated above, at present ATF's regulations name the DIO as the deciding official in matters dealing with the denial of an original or renewal firearms license, the suspension or revocation of a license, and the imposition of a civil fine. This interim rule amends the regulations to redesignate the Director as the deciding official. ATF believes that delegating the final authority with respect to those matters to the Director is necessary and proper. ATF further believes that the Director should be able to redelegate this authority to the DIO or any other agency official through issuance of a delegation order, not through regulation. This is consistent with other regulations in part 478. For example, § 478.144 provides that the Director is the deciding authority with respect to applications for relief from firearms disabilities. Pursuant to ATF Order 1120.4 (69 FR 55462, September 14, 2004), the authority to make determinations on applications for relief from federal firearms disabilities was delegated to the Assistant Director (Enforcement Programs and Services).

ATF believes that it is appropriate for the Director to have more flexibility to change the delegation of authority to decide a hearing regarding denial, suspension, or revocation of a federal firearms license, and a hearing regarding imposition of a civil fine, or to exercise that authority himself. Such flexibility will allow ATF to more efficiently decide revocation and denial hearings, because the Director can designate Headquarters officials, field officials, or some combination thereof, as the final agency decision maker. That flexibility will give the agency the ability to ensure consistency in decision making and to address any case backlogs that may occur.

The Attorney General has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. This rule will not have an annual effect on the economy of $100 million, nor will it adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health, or safety, or State, local or tribal governments or communities.

This is a rule of agency organization, procedure, and practice. It merely redesignates the Director as the deciding official with respect to the denial, suspension, or revocation of a federal firearms license and the imposition of a civil fine.

This regulation will not have substantial direct effects on the States, on the relationship between the federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, the Attorney General has determined that this regulation will not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

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

Notice and comment rulemaking is not required for this interim final rule. Under the APA, “rules of agency organization, procedure or practice,” 5 U.S.C. 553(b)(3)(A), that do not “affect[ ] individual rights and obligations,” Morton v. Ruiz, 415 U.S. 199, 232 (1974), are exempt from the general notice and comment requirements of section 553. See JEM Broadcasting Co. v. FCC, 22 F.3d 320, 326 (D.C. Cir. 1994) (section 553(b)(3)(A) applies to “agency actions that do not themselves alter the rights or interests of parties, although [they] may alter the manner in which the parties present themselves or their viewpoints to the agency”). The revisions to the regulations in §§ 478.71-78 are purely matters of agency organization, procedure, and practice. The interim final rule will not affect substantive rights or interests of federal firearms licensees or applicants for federal firearms licensees. Nevertheless, ATF welcomes public comments on the interim final rule.

Furthermore, there is good cause for finding that the interim final rule is exempt from the effective date limitation of section 553(d). The interim final rule will grant the Director more flexibility to change the delegation of authority to decide a hearing regarding denial, suspension, or revocation of a federal firearms license, and a hearing regarding imposition of a civil fine, or to exercise that authority himself. Such flexibility will allow ATF to more efficiently decide revocation and denial hearings, because the Director can designate Headquarters officials, field officials, or some combination thereof, as the final agency decision maker. This will enable the Director to ensure consistency in decision making and to address any case backlogs that may occur.

There is no reason to defer these benefits for thirty days. The interim final rule will not alter the rights or obligations of third parties, although it may alter the manner in which those parties present themselves or their viewpoints to the agency. No matter how the Director delegates his authority to revoke or deny federal firearms licenses pursuant to 18 U.S.C. 923(e), persons who apply for or hold federal firearms licenses will still have a right to due process during the agency administrative proceeding, including a right to a hearing (18 U.S.C. 923(f)(2)), a right to a written notice from the agency specifying the grounds for denial or revocation (18 U.S.C. 923(f)(3)), and a right to judicial review (18 U.S.C. 923(f)(3)). Therefore, there is good cause to make the interim final rule effective immediately.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. , requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b). As noted above, this rule is not subject to notice and comment rulemaking requirements. Id. 553(b)(A). This is a rule of agency organization, procedure, and practice. It merely delegates to the Director the authority to make decisions with respect to the denial, suspension, imposition of a civil fine, or revocation of federal firearms licenses.

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

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

This rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act.

ATF is requesting comments on the interim final rule from all interested persons. ATF is also specifically requesting comments on the clarity of this interim final rule and how it may be made easier to understand.

All comments must reference this document docket number (ATF 27P), be legible, and include your name and mailing address. ATF will treat all comments as originals and will not acknowledge receipt of comments.

Comments received on or before the closing date will be carefully considered. Comments received after that date will be given the same consideration if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before the closing date.

Comments, whether submitted electronically or in paper, will be made available for public viewing at ATF, and on the Internet as part of the President's eRulemaking initiative, and are subject to the Freedom of Information Act. Commenters who do not want their name or other personal identifying information posted on the Internet should submit their comment by mail or facsimile, along with a separate cover sheet that contains their personal identifying information. Both the cover sheet and comment must reference this docket number. Information contained in the cover sheet will not be posted on the Internet. Any personal identifying information that appears within the comment will be posted on the Internet and will not be redacted by ATF.

Any material that the commenter considers to be inappropriate for disclosure to the public should not be included in the comment. Any person submitting a comment shall specifically designate that portion (if any) of his comments that contains material that is confidential under law (e.g., trade secrets, processes, etc.). Any portion of a comment that is confidential under law shall be set forth on pages separate from the balance of the comment and shall be prominently marked “confidential” at the top of each page. Confidential information will be included in the rulemaking record but will not be disclosed to the public. Any comments containing material that is not confidential under law may be disclosed to the public. In any event, the name of the person submitting a comment is not exempt from disclosure.

Comments may be submitted in any of three ways:

• Mail: Send written comments to the address listed in the ADDRESSES section of this document. Written comments must be signed and may be of any length.

• Facsimile: You may submit comments by facsimile transmission to (202) 648-9741. Faxed comments must:

(1) Be legible;

(2) Be on 8 1/2 ″ x 11″ paper;

(3) Contain a legible, written signature; and

(4) Be no more than five pages long. ATF will not accept faxed comments that exceed five pages.

• Federal e-Rulemaking Portal: To submit comments to ATF via the Federal e-rulemaking portal, visit http://www.regulations.gov and follow the instructions for submitting comments.

Any interested person who desires an opportunity to comment orally at a public hearing should submit his or her request, in writing, to the Director of ATF within the 90-day comment period. The Director, however, reserves the right to determine, in light of all circumstances, whether a public hearing is necessary.

Copies of this interim rule and the comments received will be available for public inspection by appointment during normal business hours at: ATF Reading Room, Room 1E-063, 99 New York Avenue, NE., Washington, DC 20226; telephone: (202) 648-7080.

The author of this document is James P. Ficaretta; Enforcement Programs and Services; Bureau of Alcohol, Tobacco, Firearms, and Explosives.

ATF is responsible for implementing Title XI of the Organized Crime Control Act of 1970 (codified at 18 U.S.C. ch. 40) (“Title XI”). One of the stated purposes of that Act is to reduce the hazards to persons and property arising from misuse and unsafe or insecure storage of explosive materials. Under section 847 of title 18, United States Code, the Attorney General “may prescribe such rules and regulations as he deems reasonably necessary to carry out the provisions of this chapter.” Regulations that implement the provisions of chapter 40 are contained in 27 CFR part 555 (“Commerce in Explosives”).

Section 841(d) of title 18, United States Code, sets forth the definition of “explosives.” “Propellant actuated devices,” along with gasoline, fertilizers, and propellant actuated industrial tools manufactured, imported, or distributed for their intended purposes, are exempted from this statutory definition by 27 CFR 555.141(a)(8).

When Title XI was enacted by Congress in 1970, the Judiciary Committee of the United States House of Representatives specifically considered and supported an exception for propellant actuated devices. H.R. Rep. No. 91-1549, at 64 (1970), as reprinted in 1970 U.S.C.C.A.N. 4007, 4041. Neither the statute nor the legislative history defines “propellant actuated device.” In 1981, however, ATF added the following definition of “propellant actuated device” to its regulations: “[a]ny tool or special mechanized device or gas generator system which is actuated by a propellant or which releases and directs work through a propellant charge.” 27 CFR 555.11.

In applying the regulatory definition, ATF has classified certain products as propellant actuated devices. These products include aircraft slide inflation cartridges, inflatable automobile occupant restraint systems, nail guns, and diesel and jet engine starter cartridges.

On August 11, 2006, the Department published in the Federal Register a notice proposing to amend the regulations of the Bureau of Alcohol, Tobacco, Firearms, and Explosives to clarify that the term “propellant actuated device” does not include hobby rocket motors or rocket-motor reload kits consisting of or containing ammonium perchlorate composite propellant, black powder, or other similar low explosives. See Commerce in Explosives—Amended Definition of “Propellant Actuated Device,” 71 FR 46174 (Aug. 11, 2006) (“Notice No. 9P”). ATF engaged in rulemaking with regard to this issue because on March 19, 2004, the United States District Court for the District of Columbia found that ATF has in the past advanced inconsistent positions regarding the application of the propellant actuated device exemption to hobby rocket motors. ATF issued two related letters in 1994 that could be interpreted as taking the position that a fully assembled rocket motor would be considered a propellant actuated device if the rocket motor contained no more than 62.5 grams (2.2 ounces) of propellant material and produced less than 80 newton-seconds (17.92 pound seconds) of total impulse with thrust duration not less than 0.050 second. Prior to assembly, the letters observed, the propellant, irrespective of the quantity, would not be exempt as a propellant actuated device.

The 1994 letters are confusing in that they can be interpreted to intertwine the separate and distinct issues of the “propellant actuated device” exemption found in section 555.141(a)(8) and the long-standing ATF policy exempting rocket motors containing 62.5 grams or less of propellant that has its roots in the exemption then found at 27 CFR 55.141(a)(7). Had these 1994 letters been drafted to reflect accurately ATF's interpretation of the regulations in existence at the time, they would have indicated that sport rocket motors were not propellant actuated devices for purposes of the regulatory exemption found in section 55.141(a)(8), but instead that motors containing 62.5 grams or less of propellant were exempt from regulation pursuant to the exemption for “toy propellant devices” then found at section 55.141(a)(7). Although the “toy propellant device” exemption was removed from the regulations and, due to administrative error, was not replaced as intended with a specific reference to the 62.5-gram threshold, ATF continued to treat hobby rocket motors containing 62.5 grams or less of propellant as exempt from regulation as clearly set forth in a 2000 letter to counsel for the National Association of Rocketry and the Tripoli Rocketry Association, Inc. The Department notes that the administrative error mentioned above, relating to the 62.5-gram exemption threshold for hobby rocket motors, has been corrected and was the subject of another rulemaking proceeding. See Commerce in Explosives—Hobby Rocket Motors, 71 FR 46079 (Aug. 11, 2006). That final rule specifically provided an exemption for model rocket motors that: (1) Consist of ammonium perchlorate composite propellant, black powder, or other similar low explosives; (2) contain no more than 62.5 grams of total propellant weight; and (3) are designed as single-use motors or as reload kits capable of reloading no more than 62.5 grams of propellant into a reusable motor casing. 27 CFR 555.141(a)(10).

To remedy any perceived inconsistency and to clarify ATF's policy, the proposed rule set forth an amended regulatory definition specifically stating that hobby rocket motors and rocket-motor reload kits consisting of or containing APCP, black powder, or other similar low explosives, regardless of amount, do not fall within the “propellant actuated device” exception and are subject to all applicable federal explosives controls pursuant to 18 U.S.C. 841 et seq. , the regulations in 27 CFR part 555, and applicable ATF policy. As proposed, the term “propellant actuated device” read as follows:

The Department noted in Notice No. 9P that implementation of the proposed amendment is important to public safety and consistent regulatory enforcement efforts. In addition, the proposed rule confirmed the position that hobby rocket motors are not exempt from federal explosives regulation, pursuant to the propellant actuated device exception. The proposed rule also clarified that hobby rocket motors cannot legally be classified as propellant actuated devices due to the nature of their design and function.

The comment period for Notice No. 9P closed on November 9, 2006.

ATF received 275 comments in response to Notice No. 9P. Comments were submitted by sport rocketry hobbyists, permittees, one hobby shop owner, two sport rocketry organizations (the National Association of Rocketry and Tripoli Rocketry Association), and others.

In its comment (Comment No. 261), the National Association of Rocketry (“NAR”) stated that it is a non-profit scientific organization dedicated to safety, education, and the advancement of technology in the hobby of sport rocketry in the United States. The commenter further stated that, founded in 1957, it is the oldest and largest sport rocketry organization in the world, with over 4,700 members and 110 affiliated clubs. According to the commenter, it is the recognized national testing authority for safety certification of rocket motors in the United States, and it is the author of safety codes for the hobby that are recognized and accepted by manufacturers and public safety officials nationwide. Ninety-eight comments expressed specific support for NAR's position as set forth in its comments in response to Notice No. 9P.

According to its Web site (http://www.tripoli.org/), the Tripoli Rocketry Association (“TRA”) (Comment No. 219) is an organization dedicated to the advancement and operation of amateur high-power rocketry. Its members are drawn from the United States and 22 other countries.

In general, the commenters expressed opposition to the proposed definition of “propellant actuated device” (“PAD”), arguing that hobby rocket motors are PADs. Their reasons for objecting to the proposed rule are discussed below.

Under the law, the term “explosives” is defined as “any chemical compound[,] mixture, or device, the primary or common purpose of which is to function by explosion.” The definition states that “the term includes, but is not limited to, dynamite and other high explosives, black powder, pellet powder, initiating explosives, detonators, safety fuses, squibs, detonating cord, igniter cord, and igniters.” See 18 U.S.C. 841(d). “Propellant actuated devices,” along with gasoline, fertilizers, and propellant actuated industrial tools manufactured, imported, or distributed for their intended purposes, are exempted from this statutory definition by 27 CFR 555.141(a)(8). Approximately 40 comments contended that rocket motors and rocket propellants (including APCP) are not explosives. These commenters also contended that, even if rocket motors and rocket propellants are explosives, they are propellant actuated devices and exempt from regulation. Some of the arguments raised by the commenters to support their position include the following:

• [APCP] only burns at a rate which is[,] in mm/second, far below that which is even considered deflagration. (Comment No. 54)

• Hobby rocket motors and reloadable motor propellant grains are not designed to explode. Scientific and engineering tests and references confirm that the propellants do not detonate or have a burn rate consistent with explosives. (Comment No. 82)

• Ammonium perchlorate/hydroxy-terminated polybutene propellant does not function via explosion but rather by burning at a rate of ~ 0.1″/second and therefore does not meet the definition of an explosive. Explosives have much higher burn rates. (Comment No. 203)

• APCP does not function by explosion, but by the generation of gases through controlled burning. Recent tests by the BATFE [Bureau of Alcohol, Tobacco, Firearms, and Explosives, or ATF] have indicated that the burn rate of APCP is approximately 36-143 mm/sec, though its testing should concentrate on the actual formulation of APCP used in hobby rocketry, which burns at a much slower rate. The actual burn rate of APCP used in hobby and high-powered rocketry would more closely resemble that of a road flare and is similar to that of common bond paper (4-56 mm/sec). (Comment No. 257)

As stated above, the federal explosives laws define the term “explosives” as “any chemical compound[,] mixture, or device, the primary or common purpose of which is to function by explosion; the term includes, but is not limited to, dynamite and other high explosives, black powder, pellet powder, initiating explosives, detonators, safety fuses, squibs, detonating cord, igniter cord, and igniters.” In order to provide guidance to the public, and in compliance with 27 CFR 555.23, ATF maintains and publishes a list of explosive materials classified in accordance with the statutory definition. Rocket motors generally contain the explosive materials APCP, black powder and/or other similar low explosives. These materials are on the “List of Explosive Materials.” However, there has been some debate regarding the validity of including APCP on the list. Beginning in 2000, the issue of classifying APCP as an explosive material has been litigated in the United States District Court for the District of Columbia. See Tripoli Rocketry Ass'n, Inc. v. Bureau of Alcohol, Tobacco, Firearms and Explosives, 337 F. Supp. 2d 1 (D.D.C. 2004). The district court held that ATF's decision to classify APCP as a deflagrating explosive was permissible. Id. at 9. In February 2006, the District of Columbia Circuit Court of Appeals disagreed with the district court on this issue, because in its view ATF failed to provide sufficient justification to support its classification with a specific, articulated standard for deflagration. Tripoli Rocketry Ass'n, Inc. v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, 437 F. 3d 75 (D.C. Cir. 2006). The circuit court declined to set aside the classification, and APCP thus remains on the “List of Explosive Materials” that ATF is obligated to maintain. Id. at 84. The case was remanded to the district court so that ATF may reconsider the matter and offer an explanation for whatever conclusion it ultimately reaches. ATF submitted the requested information, including test data results, to the United States District Court for review. Pending the outcome of this case, APCP remains an explosive and continues to be regulated as such.

Approximately 40 commenters indicated that ATF's assertion that hobby rocket motors should not be classified as PADs is arbitrary. Some commenters contended that the same arguments used by ATF to disqualify hobby rocket motors as PADs can apply to other products that ATF has classified as propellant actuated devices. Other commenters noted that the proposed rule failed to explain ATF's process by which devices such as nail guns, aircraft slide inflation cartridges, etc., warranted classification as PADs. The following excerpts represent the views of most of the commenters:

The Department's position has been and continues to be that the term “propellant actuated device” does not include rocket motors or rocket-reload kits containing APCP, black powder, or other similar low explosives. The definition of “propellant actuated device” in section 555.11 is “[a]ny tool or special mechanized device or gas generator system which is actuated by a propellant or which releases and directs work through a propellant charge.” It is not the intention of this rulemaking to evaluate other items that have been classified as propellant actuated devices. The intention of the rulemaking is to clarify the Department's position that rocket motors and rocket motor kits are not exempt as propellant actuated devices.

ATF individually reviews each request for a propellant actuated device determination, and the final decision is then relayed in written form to the requestor specifying the reasons for approval or denial. Each submission and response contains detailed and proprietary information on chemical compositions, system designs, and functionality, most of which may not be disclosed to outside entities.

By way of illustration, an airbag inflation module is an example of an item that would fit the description of a propellant actuated device. ATF has exempted airbag modules as propellant actuated devices but has not exempted the propellant inside the gas-generation canister. The airbag module is a self-contained unit that is deployed by an internal initiator or micro gas generator that receives an electronic pulse from a crash sensor. The propellant charge inside the unit is converted into a gas, which is then released to inflate the airbag cushion. ATF ruled that these fully assembled airbag modules constitute a gas-generating system. Other examples of items that would fit the description of propellant actuated devices would be assembled seatbelt pretensioner units and the aircraft parachute deployment devices referenced elsewhere in this rulemaking.

As defined in the current regulations, the term “propellant actuated device” means “[a]ny tool or special mechanized device or gas generator system which is actuated by a propellant or which releases and directs work through a propellant charge.” As several commenters pointed out, there are six possible combinations that would meet the definition of a PAD:

a. A tool which is actuated by a propellant;

b. A tool which releases and directs work through a propellant charge;

c. A special mechanized device which is actuated by a propellant;

d. A special mechanized device which releases and directs work through a propellant charge;

e. A gas generator system which is actuated by a propellant; or

f. A gas generator system which releases and directs work through a propellant charge.

In the proposed rule, ATF stated that the hobby rocket motor cannot be brought within the regulatory definition of propellant actuated device as a “tool” because it is neither “handheld” nor a complete “device” and because it is not a metal-shaping machine or a part thereof. Further, it cannot be considered to be a “special mechanized device” because, although clearly designed to serve a special purpose, it in no way functions as a mechanism. Finally, because it has no interacting mechanical or electrical components, the hobby rocket motor cannot be deemed to be a gas generator system. Therefore, a rocket motor does not meet the first prong of the definition of a PAD. It is noteworthy that a rocket's flight is powered by a propellant, and in a sense, work is produced through a propellant charge. However, a rocket motor by itself accomplishes neither of these actions. Therefore, a rocket motor does not fit either of the descriptions in the second prong of the definition.

In general, the commenters disagreed with ATF's determination that hobby rocket motors are not PADs. Many commenters were critical of ATF's use of a dictionary to define technical terms (e.g., “gas generator system”), while other commenters criticized ATF for what they considered the agency's selective use of the dictionary to define certain terms. Two commenters expressed concerns regarding ATF's use of one dictionary (Merriam-Webster's Collegiate Dictionary) as the sole source in defining terms. Following are excerpts from some of the comments:

Many commenters argued that the hobby rocket motor meets at least one of the combinations of the PAD definition. The NAR (Comment No. 261) maintained that the hobby rocket motor meets all of the combinations of the PAD definition:

Following are excerpts from other comments:

The Department acknowledges that words have numerous definitions, many of which vary between dictionaries. The argument that ATF selectively used Merriam-Webster's Collegiate Dictionary to better fit its interpretation of propellant actuated device is not valid. The Department's use of a universally accepted publication such as Merriam-Webster's Collegiate Dictionary has been common practice upon which the Department has relied to make past decisions and interpretations. The Department continues in part to rely upon the previously mentioned definitions to determine that rocket motors are not propellant actuated devices. Because regulations should be understandable by all members of the public, the Department does not believe it appropriate to rely upon scientific and technical publications to define terms, as suggested by some commenters. This would result in definitions understood only by scientists and specialists in a particular field. The Department believes this final rule adopts a definition that is technically accurate, clear, and capable of being understood by all interested parties.

Agencies are provided broad latitude to incorporate definitions into the regulations. Several commenters have applied broader definitions to illustrate that a rocket motor should be considered a propellant actuated device. Unfortunately, these definitions are sometimes practically inconsistent with the subject matter. For example, one commenter cites definition 2(a) from Merriam-Webster's On-Line Dictionary of “tool”: “something (as an instrument or apparatus) used in performing an operation or necessary in the practice of a vocation or profession.” The usage example in this definition is “a scholar's books are his tools.” Outside of rocketry context, such a definition could mean almost any physical item or abstract concept. These comments certainly illustrate that words have multiple definitions. However, the definitions of the words chosen by the commenters are not particularly helpful in defining “propellant actuated device” within the context of the federal explosives laws. Applying the reasoning of these commenters to the definition of a propellant actuated device would result in a definition under which virtually any item containing a propellant would qualify as a PAD. While not specifically addressing PADs in the law, Congress clearly did not mean for ATF to apply definitions so broadly as to render the term “propellant actuated device” meaningless. Exceptions to statutory prohibitions should be narrowly construed. The Department believes that construing the term “propellant actuated device” to include any item containing a propellant would be inconsistent with its mission to reduce the hazards to the public arising from misuse and unsafe or insecure storage of explosive materials. Exempting all propellants from the permit, licensing, prohibited person provisions, and storage requirements of the law would be irresponsible, particularly in light of potential criminal and terrorist use of such items.

Many of the comments describe certain characteristics of rocket-motor function and state that the definition of propellant actuated device, specifically gas generator systems, speaks to these. These comments are unpersuasive in their argument, as they fail to specify that rocket motors function in the manner described largely due to their interaction with other components of a rocket.

It is undisputed that rocket motors produce a large volume of gas when ignited. Further, it is clear that the gas is forced through a nozzle designed to produce thrust. However, the motor alone does not constitute a system, or a “regularly interacting or interdependent group of items forming a unified whole.” It is apparent that the motor relies upon other items and parts, such as the rocket body, fins, nosecone, and others, to function properly, and to therefore perform as designed. However, this final rule is not intended to govern fully assembled rockets.

Because the rocket motor does not constitute a system, and because the successful direction of energy produced by a rocket motor requires that the motor be integrated into a rocket, complete with other system components, the Department finds that a rocket motor does not constitute a gas generator system that releases and directs work.

Many commenters argued that a hobby rocket motor should be classified as a PAD because it functions in a manner similar to other products classified as PADs by ATF. Following are some of the arguments presented by the commenters:

Several commenters argue that rocket motors are similar in function, construction and composition to other devices previously exempted as PADs and therefore should be exempted as such.

ATF has historically granted propellant actuated device exemptions to devices that are generally aimed at increasing personal safety or enhancing the efficiency of mechanical operations. Each device must contain and be actuated by a propellant, and also must be a complete device, tool component, or mechanism that requires no other parts to perform its intended function, including to whatever degree it may operate within a larger or more complex system. Any such device must not permit ready access to the propellant charge as manufactured.

For example, ATF has exempted airbag modules as propellant actuated devices but has not exempted the propellant inside the unit. The airbag module is a self-contained unit that is deployed by an internal initiator or micro gas generator that receives an electronic pulse from a crash sensor. The propellant charge inside the gas-generation canister is converted into a gas, which is then released to inflate the airbag cushion. ATF ruled that these fully assembled airbag modules constitute a gas-generating system. As demonstrated by this analysis, each item being considered for classification as a PAD is individually assessed based upon design and usage characteristics.

In the proposed rule, ATF stated that in applying the regulatory definition of a PAD it has classified certain products as propellant actuated devices: Aircraft slide inflation cartridges, inflatable automobile occupant restraint systems, nail guns, and diesel and jet engine starter cartridges. Approximately 150 commenters argued that the proposed rule provides no technical standards for those products previously classified by ATF as PADs. According to the NAR,

Another commenter expressed similar concerns:

The commenters expressed concern about the lack of specific technical standards to be used in making propellant actuated device determinations. They suggest that a person would be at a loss to make their own determination regarding a particular item that may be a propellant actuated device.

Congress did not provide extensive guidance as to what size, shape, or specific functions should be taken into account with respect to propellant actuated device determinations. In fact, a description of items determined by the Department to be propellant actuated devices would include a wide variety of explosive weights, various shapes, and a number of work functions to be performed. This great variation in the types, sizes, and functions of devices makes it difficult to specify technical standards for such classifications. Moreover, the law clearly distinguishes between a federal agency's general interpretations of the laws it enforces, which cannot be changed without the notice-and-comment process, and federal agency opinions applying that law to the facts of a particular case, which are not subject to notice-and-comment requirements. York v. Secretary of Treasury , 774 F.2d 417, 420 (10th Cir. 1985) (classification of firearm as machine gun is “not a rulemaking of any stripe”). ATF classification decisions related to particular items fall squarely in the latter category. Id.; Gun South, Inc. v. Brady, 877 F.2d 858, 865 (11th Cir. 1989) (“[A]ctivities which involve applying the law to the facts of an individual case, do not approach the function of rulemaking.”) The Department is not required to disclose the internal deliberative process used in making PAD classifications and wishes to maintain the flexibility to modify evaluation criteria as products and the market evolve. Any person wishing a classification of an explosive device may request one, free of charge, at any time by contacting ATF.

In the proposed rule, ATF stated that the hobby rocket motor cannot be brought within the regulatory definition of propellant actuated device as a “tool” because it is neither “handheld” nor a complete “device” and because it is not a metal-shaping machine or a part thereof. Further, it cannot be considered to be a “special mechanized device” because, although clearly designed to serve a special purpose, it in no way functions as a mechanism. Finally, because it has no interacting mechanical or electrical components, the hobby rocket motor cannot be deemed to be a gas-generator system.

Approximately 130 commenters indicated that Congress intended a broad definition be applied to PADs and they argued that the proposed rule set forth a narrow interpretation of the term. As one commenter stated, “Congress did not specify any particular type of device to be excluded from the definition. Nothing about the size, complexity, work product produced, whether or not a PAD might be used in or with other components was specified in [the] statu[te].” (Comment No. 163)

Congress did not define the term “propellant actuated device,” nor did it provide significant criteria for use in determining which devices should be PADs. The commenter suggested that Congress did not focus on the nature of the explosive materials in question. The Department disagrees with this contention. By the very nature of the term “propellant” it is clear that Congress did not intend for devices actuated by other types of materials ( e.g. , high explosives) to be considered propellant actuated devices.

In addition, a review of the Congressional testimony provides insights as to what Congress may have considered as propellant actuated devices. Frederick B. Lee from Olin Corporation provided testimony, see H.R. Rep. No. 91-1549, at 64 (1970), as reprinted in 1970 U.S.C.C.A.N. 4007, 4041., on smokeless propellants and various Olin smokeless propellant devices that he felt should be exempted. When describing these devices, Mr. Lee stated, “these devices are all aimed at increasing personal safety or enhancing the efficiency of mechanical operations.” Although Congress did not define the term “propellant actuated device,” and did not exempt these devices from the explosives controls in the final legislation, this excerpt provides some indication of the types of devices contemplated by Congress in their deliberations related to propellant actuated devices.

The Department agrees that Congress intended the use of discretion and judgment in determining which devices should be exempted as propellant actuated devices. Further, the Department believes that Congress intended for this term to include devices designed to perform some type of work. However, the Department believes that Congress did not intend for ATF to disregard considerations such as public safety and the potential for misuse of materials under consideration. Rather, Congress intended for ATF to judiciously apply this term to avoid exempting items that could pose a significant danger to the public if left unregulated. Therefore, the Department disagrees with the commenter's conclusion that ATF is precluded from considering factors other than the purpose for which the device is used.

Many commenters (approximately 145) stated that the proposed rule failed to provide for any form of due process regarding the application, review, adjudication, and appeal of organizations or individuals seeking PADs exemptions. According to the NAR, ATF “does not appear to have any such mechanisms as regards PADS but merely pronounces selected devices as receiving PADS classification. There is no transparency around PADS determinations or their denial.” Another commenter noted that “[a] clear process is needed to apply a clear standard rather than arbitrary decision making of an arbitrary standard. This allows one rocket motor to be denied PAD status as a hobby rocket while another similar rocket motor could be granted PAD status due to an arbitrary process.” (Comment No. 249)

The NPRM does not provide specific guidance regarding the application, review, adjudication, and appeal process for propellant actuated device determinations. Moreover, as stated previously, the law clearly distinguishes between a federal agency's general interpretations of the laws it enforces, which cannot be changed without the notice-and-comment process, and federal agency opinions applying that law to the facts of a particular case, which are not subject to notice-and-comment requirements. However, procedures for those seeking review of a PAD determination are standardized in the Administrative Procedure Act, and information regarding past determinations can generally be obtained through Freedom of Information Act requests.

Accordingly, the Department disagrees with the contention that there is any inconsistency or arbitrary application of the PAD exemption. Specifically, 5 U.S.C. 702 et seq. provides for judicial review of an agency action, when a person is adversely affected or aggrieved by the action. Therefore, the judicial system is available to review the agency's actions when an item is submitted for classification under the federal explosives laws. Furthermore, except for confidential, proprietary, or statutorily protected information, copies of classification and exemption letters can be obtained from the Department through the Freedom of Information Act. These letters often contain a description of the submitted item and an analysis applied to the item in order to determine whether it meets the regulatory definition of a propellant actuated device. Finally, classification letters contain the name and phone number of an ATF officer who can be contacted to answer any questions or concerns regarding the classification. It is the Department's position that information regarding PAD classifications is readily and openly available and review of classifications can be addressed through the judicial system.

Approximately 155 commenters noted that ATF failed to list in the proposed rule a product that it has classified as a PAD that is functionally equivalent to a hobby rocket motor—an aircraft safety system rocket motor. The following comment represents the views of most of the commenters:

In this document, the Bureau of Prisons (Bureau) finalizes three proposed rules. The first was published on September 20, 2000 (65 FR 56840) (the 2000 proposed rule), and the second was published on July 1, 2004 (69 FR 39887) (the 2004 proposed rule). The third, published on November 2, 2006, proposed to revise 28 CFR 550.55(a) of the 2004 proposed rule to extend early release consideration to D.C. Code felony offenders pursuant to D.C. Code § 24-403.01 (71 FR 64507) (the 2006 proposed rule).

In this rule, we merge the three proposed rules, which will result in a more uniform and comprehensive revision of our DATP regulations. We discuss our responses to comments received for the three proposed rules separately.

The 2000 rule proposed amendments to requirements for the drug abuse education course and participation in the RDAP. In these rules, we finalize the changes we proposed with regard to the regulations on the Drug Abuse Education Course (new § 550.51), the institution RDAP (new § 550.53), eligibility for performance pay (new § 545.25), and incentives for participation (new § 550.54).

This rule clarifies the distinction between mandatory and voluntary participation in the drug abuse education course, removes eligibility limitations pertaining to cognitive impairments and learning disabilities, and addresses the effects of non-participation both in the drug abuse education course and in the institution RDAP.

For consistency, we also revise the consequences pertaining to work assignment pay in the provisions which pertain to the drug abuse education course. We amend our regulations on inmate work and performance pay (28 CFR 545, subpart C) to conform with these requirements.

Non-U.S. citizen inmates. One commenter was concerned that we routinely deny access to the Drug Abuse Treatment Program (DATP) to “non-U.S. citizens.” The Bureau does not deny drug abuse treatment to inmates based on their citizenship. Instead, we offer several program options, such as a drug abuse education course or non-residential drug abuse treatment to inmates who have drug problems but who do not otherwise meet the admission criteria for the RDAP. These options are currently available for “non-U.S. citizen” inmates.

However, in light of the commenter's misunderstanding of our proposed rule, we do make a revision to clarify our intent. Section 550.53(b) stated that, “[u]pon the expiration of their sentence, inmates are eligible to be transported only to the place of conviction or legal residence within the United States or its territories.” We do not intend this section to be understood to exclude non-U.S. citizens. We intended only that participants must be capable of completing each of the three components of the RDAP program (the unit-based component, follow-up services, and the transitional drug abuse treatment component) when they begin the program. We have therefore clarified this language in the regulation.

Treatment for inmates who voluntarily participate. A commenter believed that the DATP incentives and program are limited to “individuals who may not seek therapy otherwise,” and asks us to “include those inmates who have taken it up on [sic] themselves to seek therapy.”

This commenter mistakenly believes that we routinely deny participation to certain inmates. However, inmates who volunteer for the drug program and otherwise meet the admission requirements can enter the DATP. The program is not limited to only those inmates whom staff designate for treatment.

Delay in getting inmates into DATP. A commenter complained that inmates who wish to participate remain too long on waiting lists.

Currently, the Bureau has over 7000 inmates waiting for residential treatment that is provided with limited Bureau resources. Also, inmates are selected for admission based on their proximity to release. Unfortunately, these two factors result in some inmates being on the waiting list for a long time.

Drug abuse documentation. One commenter complained that it is unfair for inmates who want to participate in the drug abuse program to be rejected because “drug abuse was not in their PSI or * * * they did not have documentation from a doctor.”

Because the early release is such a powerful incentive, as evidenced by over 7000 inmates waiting to enter treatment, the Bureau must take appropriate measures to ensure that inmates requesting treatment actually have a substance abuse problem that can be verified with documentation. For those inmates who want treatment but do not have the requisite documentation to enter the RDAP, non-residential counseling services are available and encouraged. However, because we find it necessary to require documentation of drug abuse problems as a criterion for RDAP participation, we are not altering this requirement in the final rule.

Adding other incentives. Finally, with regard to a regulation on incentives for program participation, which was proposed in the 2000 rule, two commenters requested that we add other possible incentives, such as vocational training. However, residential drug program completers are always encouraged to improve their educational and vocational training when possible. Vocational training, as an incentive, and enhancing skills in a trade are covered by other Bureau policies and regulations.

The commenters suggested possible “incentives” that are already part of other regulations which have other benefits for participation, such as the Bureau's Good Conduct Time regulations (28 CFR part 523), the Education regulations (28 CFR part 544), and Federal Prison Industries Inmate Work Programs (28 CFR part 345). Because we already provide these benefits in other regulations, we need not reiterate them or use them as incentives for drug abuse treatment.

Also, the commenters recommended that, if we were not going to provide the enhanced incentives they recommended, that the incentives proposed in the regulation should be eliminated. The commenters suggested that the incentives we proposed were essentially meaningless and did not provide real motivation to voluntarily participate in the program.

In anticipation of the incentives program, the Bureau conducted pilot programs to determine the usefulness of the enhanced incentives. As a follow up, we conducted focus groups of inmates at several institutions. The results of the pilot programs and the focus groups showed that the majority of inmates considered the enhanced incentives to be motivational. After internal deliberation, we have determined that the proposed incentives will encourage further inmate participation in the drug abuse treatment programs, contrary to the commenters' suggestions. We therefore retain the proposed new incentives in the final rule.

Further, these incentives work in tandem with new § 550.53(h)(1), which provides disincentives for non-completion. This section states that if inmates refuse to participate in RDAP, withdraw, or are otherwise removed from RDAP, they are not eligible for furloughs (other than possibly an emergency furlough); performance pay above maintenance pay level, bonus pay, or vacation pay; and/or Federal Prison Industries work program assignments (unless the Warden makes an exception on the basis of work program labor needs).

Each of these three privileges are available for inmates to earn through various forms of good behavior, including participation in RDAP. It would be inconsistent to award an inmate a privilege in one area, such as a furlough, special pay, or special work assignment, if the inmate has demonstrated poor behavior in other areas, such as refusal, withdrawal, or removal from RDAP. The Bureau's furlough regulations state that an inmate is only eligible for a furlough if, among other things, the inmate “has demonstrated sufficient responsibility to provide reasonable assurance that furlough requirements will be met” (§ 570.34(d)). If an inmate refuses to participate in drug treatment, withdraws, or is removed from drug treatment, the inmate does not demonstrate the level of responsibility necessary to qualify for a furlough.

Additionally, the Bureau has similar disincentives in the literacy program: § 544.74 provides that inmates who do not participate as required in the literacy program may not earn incentive pay or receive special work assignments. Similarly, the disincentives provided in § 550.53(h)(1), work with the incentives described above to maximize encouragement of inmates to participate in drug abuse treatment as necessary.

The 2004 proposed rule streamlined and clarified the regulations on the drug abuse treatment program, eliminating unnecessary text and obsolete language and removing internal agency procedures that need not be in rules text.

In this rule, we added escape and attempted escape to the list of reasons an inmate may be expelled from the Residential Drug Abuse Treatment Program (RDAP). We also clarified language describing “withdrawal/expulsion” by reorganizing and breaking block paragraphs into smaller subdivisions. Essentially, inmates will be removed from RDAP for the reasons given in § 550.53(g) because allowing the participation of inmates who commit serious prohibited acts involving the use of alcohol or drugs, violence or threats of violence, escape or attempted escape, or any of the highest severity (100-level series) prohibited acts, would undermine the spirit and intent of the Bureau's drug abuse treatment programs, minimize the seriousness of these offenses, and threaten the safety, security, and good order of the institution.

Further, the commission of these types of prohibited acts is a violation of the trust given to inmates who are admitted into RDAP. An inmate who is found to have committed any of these prohibited acts demonstrates a propensity to impede or disrupt not only his/her own progress in overcoming a drug abuse problem, but, potentially, the progress of other inmates who are making a true effort to succeed in the program. Providing such consequences for these types of prohibited acts would be greater disincentive to commit such acts.

Also in the 2004 proposed rule, we (1) deleted obsolete language, (2) added as ineligible for early release inmates with a prior felony or misdemeanor conviction for arson or kidnaping, and (3) clarified that inmates cannot earn an early release twice.

Title 18 U.S.C. 3621(e) provides the Director of the Bureau of Prisons the discretion to grant an early release of up to one year upon the successful completion of a residential drug abuse treatment program. The regulation [550.55(b)(4)(i)-(vii)] provides that an inmate who has a prior misdemeanor or felony conviction for homicide, forcible rape, robbery, aggravated assault, arson, kidnaping, or child sexual abuse will not be eligible for early release.

In exercising the Director's statutory discretion, we considered the crimes of homicide, forcible rape, robbery, aggravated assault, arson, and kidnaping, as identified in the FBI's Uniform Crime Reporting Program (UCR), which is a collective effort of city, county, state, tribal, and federal law enforcement agencies to present a nationwide view on crime. The definitions of these terms were developed for the National Incident-Based Reporting System and are identified in the UCR due to their inherently violent nature and particular dangerousness to the public.

The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a prior felony or misdemeanor conviction for these offenses because commission of such offenses rationally reflects the view that such inmates displayed readiness to endanger the public.

Likewise, we also deny early release eligibility to inmates who have a prior felony or misdemeanor conviction for an offense that involves sexual abuse committed against minors. Like the offenses identified in the UCR, sexual abuse offenses committed against minors exhibit a particular dangerousness to the public and often entail violent or threatening elements that resonate with victims and the community as a whole. Because of this, the Director has chosen to use his discretion to exclude offenders of these offenses from early release consideration.

The Director's rationale was mirrored by the enactment of the Adam Walsh Child Protection and Safety Act of 2006 (Walsh Act). The Walsh Act specifically expanded the definition of “sex offense” to include “a criminal offense that is a specified offense against a minor” and to include all offenses by “child predators.” Public Law 109-248, section 111, 120 Stat. 587, 591-92 (2006). The Walsh Act also expanded the National Sex Offender Registry by integrating the information in state sex offender registry systems to ensure that law enforcement has access to the same information across the United States. Section 113, 120 Stat. at 593-94; see also 2006 U.S.C.C.A.N. S35, S36. This evidences the intent of Congress to encompass any offense relating to minors that involves sexual conduct, and to limit public exposure, including early release opportunities, to inmates found to have these types of offenses in their backgrounds. We therefore deny early release eligibility to such inmates in conformance with Congressional intent and recognition of the seriousness of such offenses.

Also, in the new rule, we added language to exempt from early release consideration inmates who previously earned early release under 18 U.S.C. 3621(e) for the following reasons: As we stated in the preamble to the 2004 rule, Congress created the early release incentive to motivate drug-addicted inmates to enter residential drug abuse treatment who would not do so without this incentive. However, in our discretion, it is not appropriate to provide this incentive for inmates who completed RDAP, gained early release, but failed to remain drug and crime free. To provide this incentive to the same inmate twice would be counter to our drug treatment philosophy that inmates must be held accountable for their actions when released to the community. Allowing inmates the opportunity to receive early release twice would undermine the seriousness of the inmate's offense, and essentially benefit recidivists.

It is arguable that recidivists have additional needs for drug abuse treatment programming. We therefore note that such inmates may still receive drug treatment, even if they have already been through the Bureau's programs and received early release. This provision does not prevent an inmate from receiving further treatment programming. It simply removes early release as an incentive for further treatment.

Award time off up to a year. One commenter recommended that the Bureau should, instead of giving a year off, award time off up to a year based on the inmate's level of dedication to their sobriety, as determined by a council consisting of the local DAP Coordinator and specialists.

In fact, we award time off of “up to” a year, based on several factors, including the inmate's level of dedication to sobriety. Title 18 U.S.C. 3621(e)(2)(B) gives the Bureau the discretion to reduce the period of incarceration for an inmate who successfully completes the drug abuse treatment program, but “such reduction may not be more than one year.” In § 550.55(c), we have chosen to exercise this discretion by awarding early release based on successful completion of the program, the length of sentence imposed by the Court, and fulfillment of the inmate's community-based treatment obligations by the presumptive release date.

In § 550.55(c)(2), we add language explaining that, under the Director's discretion allowed by 18 U.S.C. 3621(e), we may limit early release based upon the length of sentence imposed by the Court. We add this provision to adhere to the Court's intent in determining the length of the sentence. An early release of a substantial period of time (e.g., twelve months) for relatively short sentences would diminish the seriousness of the offense and unduly undercut the sentencing court's punitive intent, as manifested in the length of the sentence imposed.

Also, as part of a general review undertaken to measure successful completion of the treatment program, the Bureau takes into consideration the inmate's “level of dedication to their sobriety,” and the determination of successful completion of the treatment program is made by the local DAP coordinator and other specialists, just as the commenter recommends.

Allowing all inmates to participate in drug treatment. The second commenter recommended that all inmates, not just those qualifying under our early release regulation, be allowed to participate in the drug abuse treatment program and be eligible for and receive a year off.

Title 18 U.S.C. 3621(e) only authorizes the Bureau to extend drug abuse treatment participation and eligibility for early release to inmates with “a substance abuse problem,” not to all inmates. Although, by statute, inmates without a substance abuse problem may not have the opportunity for early release consideration, § 550.52 allows all inmates to participate in non-residential drug abuse treatment services. In the new rule, we remove several pre-existing eligibility requirements for the program to make it more inclusive.

Early release eligibility of inmates convicted of an offense involving a firearm. The second commenter also recommended that § 550.55(b)(5)(ii) be altered so that inmates convicted of an offense that involved the carrying or possession (but not use) of a firearm or other dangerous weapon or explosives would be eligible for early release consideration. The commenter further recommended that § 550.55(b)(5)(iii) be deleted, granting eligibility for early release consideration to inmates convicted of an offense that, by its nature or conduct, presents a serious potential risk of physical force against the person or property of another.

Under 18 U.S.C. 3621(e), the Bureau has the discretion to determine eligibility for early release consideration ( See Lopez v. Davis, 531 U.S. 230 (2001)). The Director of the Bureau exercises discretion to deny early release eligibility to inmates who have a felony conviction for the offenses listed in § 550.55(b)(5)(i)-(iv) because commission of such offenses illustrates a readiness to endanger the public. Denial of early release to all inmates convicted of these offenses rationally reflects the view that, in committing such offenses, these inmates displayed a readiness to endanger another's life.

The Director of the Bureau, in his discretion, chooses to preclude from early release consideration inmates convicted of offenses involving carrying, possession or use of a firearm and offenses that present a serious risk of physical force against person or property, as described in § 550.55(b)(5)(ii) and (iii). Further, in the correctional experience of the Bureau, the offense conduct of both armed offenders and certain recidivists suggests that they pose a particular risk to the public. There is a significant potential for violence from criminals who carry, possess or use firearms. As the Supreme Court noted in Lopez v. Davis, “denial of early release to all inmates who possessed a firearm in connection with their current offense rationally reflects the view that such inmates displayed a readiness to endanger another's life.” Id. at 240. The Bureau adopts this reasoning. The Bureau recognizes that there is a significant potential for violence from criminals who carry, possess or use firearms while engaged in felonious activity. Thus, in the interest of public safety, these inmates should not be released months in advance of completing their sentences.

It is important to note that these inmates are not precluded from participating in the drug abuse treatment program. However, these inmates are not eligible for early release consideration because the specified elements of these offenses pose a significant threat of dangerousness or violent behavior to the public. This threat presents a potential safety risk to the public if inmates who have demonstrated such behavior are released to the community prematurely. Also, early release would undermine the seriousness of these offenses as reflected by the length of the sentence which the court deemed appropriate to impose.

The 2006 proposed rule. The proposed rule published in 2006 modified § 550.55(a) from the 2004 proposed rule to state that inmates may be eligible for early release by a period not to exceed twelve months if they were sentenced to a term of imprisonment under either 18 U.S.C. Chapter 227, Subchapter D for a nonviolent offense, or D.C. Code § 24-403.01 for a nonviolent offense, meaning an offense other than those in D.C. Code § 23-1331(4). There was no further change to the provisions in the 2004 rule.

The National Capital Revitalization and Self-Government Improvement Act of 1997, approved August 5, 1997, (Pub. L. 105-33; 111 Stat. 740) (“Revitalization Act”) dictates that D.C. Code felony offenders “shall be subject to any law or regulation applicable to persons committed for violations of laws of the United States consistent with the sentence imposed, and the Bureau of Prisons shall be responsible for the custody, care, subsistence, education, treatment and training of such persons.” D.C. Code § 24-101(b). Therefore, as with federal offenders, it is also within the Director's discretion, as provided by 18 U.S.C. 3621(e), to determine D.C. Code felony offenders' eligibility for early release according to the same criteria used for federal offenders.

We received three comments to the 2006 proposed rule. One was in support of the regulation. We address issues raised by the other two commenters below.

One commenter was concerned that there existed “literal disparity between the regulation as proposed and the plain language” of the D.C. Code, suggesting that § 550.55(a)(1)(ii) “track the statutory language of D.C. Code section 24-403.01(d)(2) so as to prevent any current and more likely future conflict and confusion.”

Section 550.55(a)(1)(ii) states that inmates may be eligible for early release by a period not to exceed twelve months if they were sentenced to a term of imprisonment “under D.C. Code § 24-403.01 for a nonviolent offense, meaning an offense other than those in D.C. Code § 23-1331(4).” D.C. Code § 23-1331(4) begins with the phrase “(4) The term ‘crime of violence' means” and then lists crimes that would constitute crimes of violence.

The Bureau's regulation language at § 550.55(a)(1)(ii) is “offense other than those in D.C. Code § 23-1331(4).” The commenter wishes us to change this to “offense other than those included within the definition of ‘crime of violence’ in D.C. Code § 23-1331(4),” to more closely track the language of D.C. Code § 24-403.01. We have changed this language accordingly.

The second commenter was concerned that “[a]llowing the DC [sic] Superior Court inmates to get time off will only increase the number of serious attitude inmates in the program. These will be additional inmates who will not be expelled from the program for misconduct or lack of programming because it will mess up the statistics.”

While the Revitalization Act authorizes the Bureau to expand the early release option to include D.C. Code felony offenders in Bureau custody, eligibility for participation in the Bureau's drug abuse treatment programs remains the same. In other words, any inmate with a verified substance use disorder (§ 550.53(b)(1)) can be placed on the waiting list to receive drug treatment, but they will not receive early release unless they are eligible for that incentive. D.C. Code felony offenders are now eligible under the statute to receive early release for participation in drug treatment. Therefore, this regulation will result in D.C. Code felony offenders having a greater incentive for participation because of the new applicability of the early release option. For that reason, the number of D.C. Code felony offenders eligible for participation in the program may increase, but despite that, the Bureau does not anticipate significant change to any misconduct in the program or increase in other issues related to the program.

The Revitalization Act dictates that D.C. Code felony offenders “shall be subject to any law or regulation applicable to persons committed for violations of laws of the United States consistent with the sentence imposed, and the Bureau of Prisons shall be responsible for the custody, care, subsistence, education, treatment and training of such persons.” D.C. Code section 24-101(b).

D.C. Code § 24-403.01(d-1), amended on May 24, 2005, states that D.C. Code felony offenders sentenced under D.C. Code § 24-403.01 for a nonviolent offense are eligible for early release consideration in accordance with 18 U.S.C. 3621(e)(2). Accordingly, the Director now extends early release eligibility pursuant to 18 U.S.C. 3621(e)(2) to D.C. Code felony offenders for successful completion of the RDAP.

The Second Chance Act of 2007, approved April 9, 2008, (Pub. L. 110-199; 122 Stat. 657) (“Second Chance Act”), section 231(a)(2)(A), states that, “incentives for a prisoner who participates in reentry and skills development programs * * * may, at the discretion of the Director, include * * * the maximum allowable period in a community confinement facility.” Further, section 251 of the Second Chance Act amends 18 U.S.C. 3624(c) to require that the Director must, “to the extent practicable, ensure that a prisoner serving a term of imprisonment spends a portion of the final months of that term (not to exceed twelve months), under conditions that will afford the prisoner a reasonable opportunity to adjust to and prepare for the reentry of that prisoner into the community.”

The Second Chance Act, section 251, also amends 18 U.S.C. 3624(c)(6) to require the Bureau to issue regulations reflecting these provisions “not later than 90 days after the date of the enactment of the Second Chance Act of 2007 * * *.” In compliance with the Second Chance Act requirement regarding the timely issuance of revised regulations, we make the following two changes to the final regulation text. Both of these changes will be beneficial to inmates, as they will allow the Bureau to consider potentially longer periods of community confinement than previously contemplated by these regulations.

First, we remove a reference in § 550.53(h)(1)(ii) which stated that an inmate who is expelled from the RDAP, withdraws from the RDAP, or refuses to participate, is not eligible for “[m]ore than 90 days community-based program placement.” Because section 251 of the Second Chance Act contemplates a maximum allowable time of up to twelve months, we add a new provision (subparagraph (2)) which states that refusal, withdrawal, and/or expulsion will be a factor to consider in determining length of community confinement. This conforms with the Second Chance Act, section 231 (a)(2)(A). We also make a conforming change to remove § 550.51(e)(1)(iii), which lists ineligibility for “community programs” as a consequence of non-participation in the drug abuse treatment course. The possibility of community confinement is a strong motivation for inmates to participate in drug treatment programs, as emphasized by several inmate comments to the previous proposed rules. Conversely, having a limitation imposed on community confinement as a possible consequence would strongly deter inmates from negative behavior which could jeopardize the effectiveness of their drug treatment.

Second, we remove a parenthetical reference in § 550.54(a)(1)(ii) which states that the “maximum period of time” allowable “in a community-based treatment program” is 180 days. This reference also conflicted with section 251 of the Second Chance Act, as explained above.

Additionally, section 252 of the Second Chance Act amended 18 U.S.C. 3621(e)(5)(A) to describe residential drug abuse treatment as “a course of individual and group activities and treatment, lasting at least 6 months * * *.” Section 252 therefore authorizes the Bureau to offer a residential drug abuse treatment course lasting “at least six months,” but leaves it in the discretion of the Director whether to expand it beyond six months. We therefore alter § 550.53 (a)(1) to conform to the specific language of the Second Chance Act. That regulation will reflect that the unit-based component of the residential drug abuse treatment program should last for “at least six months.”

We make one minor change to § 550.51, regarding drug abuse education course placement. In § 550.51(b)(3)(iii), we previously indicated that inmates may not be considered for course placement if they complete a structured drug abuse treatment program at one of the Bureau's Intensive Confinement Centers (ICC). However, we published a final rule on July 11, 2008 (73 FR 39863) which removed Bureau rules on the intensive confinement center program (ICC). The ICC was a specialized program for non-violent offenders combining features of a military boot camp with traditional Bureau correctional values. Discontinuing this program was a decision made as part of an overall strategy to eliminate programs that do not reduce recidivism. Because the Bureau is no longer offering the ICC program (also known as Shock Incarceration or Boot Camp) to inmates as a program option, we remove it from the list of reasons that render inmates ineligible for the drug abuse treatment course.

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

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications for which we would prepare a Federalism Assessment.

The Director of the Bureau of Prisons, under the Regulatory Flexibility Act (5 U.S.C. 605(b)), reviewed this regulation. By approving it, the Director certifies that it will not have a significant economic impact upon a substantial number of small entities because: This rule is about the correctional management of offenders committed to the custody of the Attorney General or the Director of the Bureau of Prisons, and its economic impact is limited to the Bureau's appropriated funds.

This rule will not cause State, local and tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. We do not need to take action under the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by § 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.

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

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

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

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

(iv) The words State or Utah mean the State of Utah, unless the context indicates otherwise.

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

2. Tips for Preparing Your Comments. When submitting comments, remember to:

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

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

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

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

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

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

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

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

The Consolidated Emission Reporting Rule (CERR), 40 CFR 51, simplifies and consolidates emission inventory reporting requirements for the statewide reporting of ammonia (NH 3 ), carbon monoxide (CO), lead (Pb), nitrogen dioxide (NO X ), particulate matter (PM 10 and PM 2.5 ), sulfur dioxide (SO 2 ) and volatile organic compounds (VOC) for point, nonpoint and mobile source emissions. Many State and local agencies asked EPA to develop the CERR in an effort to consolidate reporting requirements, increase the efficiency of emission inventory programs, and provide for more consistent and uniform data. The CERR was published on June 10, 2002 (67 FR 39602). States were required to begin reporting emissions released during calendar year 2002. Thereafter, States are required to report large point source emissions annually and small point, nonpoint and mobile emissions every three years.

We asked the State of Utah in our letter dated October 15, 2002 to update its emission reporting requirements to meet those specified in the CERR. We also asked the State to withdraw earlier SIP submittals regarding emission reporting requirements because the earlier submittals may have had conflicting requirements compared to those found in the CERR. The State complied with our request by using parts of earlier submittals and a subsequent SIP revision submittal in order to comply with the CERR. It is these submittals that EPA is acting on today.

We address four Utah SIP submittals in today's action:

• September 7, 1999 submittal, which consists of Utah's original revisions to the rules for collecting inventories of air pollution emissions prior to the issuance of the CERR;

• September 20, 1999 submittal, which consists of a reorganization of all Utah's air quality rules and represents no substantive change in Utah's regulations with regard to the CERR;

• October 23, 2000 submittal, which deleted Utah's required reporting of NH 3 emissions; and

• December 1, 2003 submittal, which consists of Utah's revisions to its rule for emission inventories incorporating the requirements of the CERR.

We note that in this action we are approving and incorporating by reference rules that were re-numbered and re-titled in the Governor's reorganization submittal of September 20, 1999 as these represent the current version of the State rule. The air program regulations were previously numbered R307-1 through R307-410 are now located at Rules R307-100 through R307-800. Approving these rules rather than the earlier version will avoid confusion to the public and will obviate the need for a future SIP revision merely to re-number the regulations. Though we are not acting on the submittal itself, in this notice we will refer to the rule by its current numbers as reflected in the September 20, 1999 SIP submittal, unless the context dictates otherwise.

On September 7, 1999, the State of Utah submitted Utah Air Quality Emission Inventory Rules R307-150, R307-155, R307-158 and R307-221, which address emissions from landfills and together comprise a re-numbered and re-titled version of Rules R307-1-2, R307-1-3 and R307-21. The State's September 20, 1999 submittal showed Rules R307-150, R307-155, R307-158 and R307-221 are identical to the text of the re-titled and re-numbered version of Rule R307-1-2, R307-1-3 and R307-21. The State submitted additional revisions to their air quality emission inventory rules on October 23, 2000, which deleted the requirement for emissions reporting of ammonia, located at Utah Rule 307-150-1, -3, and -4. In light of the CERR, the State replaced these revisions with its December 1, 2003 submittal. The December 1, 2003 submittal repealed rules R307-155 and R307-158 and amended Rule 307-150. Of these submittals, we are approving and incorporating by reference only Rules 307-150-1,-2,-3,-5,-6, and -7 (general emission inventory requirements) and R307-221-1 (emission inventory requirements for larger landfills) because they comprise the current version of the State rules that address the CERR requirements.

On September 7, 1999, the State of Utah submitted to EPA a revision to Utah Rule R307-150 (originally Utah Rule R307-1-2 and R307-1-3) which included changes regarding the general applicability, reporting, timing of submittals and recordkeeping requirements for emission inventories as required by federal rule under 40 CFR 51. In the same submittal, Utah revised its rules regarding emission inventory preparation and reporting for hazardous air pollutants (Rule R307-155 and R307-158). The revisions required that all sources of VOC that emit 10 tons per year or more and sources that emit 25 tons per year or more of NO X in Utah and Weber counties must report to the State. Utah also revised Rule R307-221-1 regarding emission inventories for municipal solid waste landfills requiring that inventories be prepared for landfills with a design capacity greater than or equal to 2,755,750 tons in accordance with the general emission inventory requirements of Utah Rule R307-150.

Within the September 7, 1999 submittal, EPA is approving only the emission inventory requirement for landfills located at Utah Rule R307-221-1 under the State's new numbering system since emissions from larger landfills may exceed the reporting thresholds addressed in the CERR and, therefore, require their inclusion in Utah's emission inventory report to EPA. EPA is not acting on the remainder of the September 7, 1999 revision since they do not affect the State's ability to comply with the CERR, the purpose of today's action.

On October 23, 2000, Utah submitted another revision to Utah Rule 307-150, which governs emission inventories. The State deleted all provisions that required the reporting of NH 3 emissions, which were located in Utah Rule 307-150-1, -3, and -4. The State's reasoning at the time was that NH 3 emissions amounted to less than two percent of total emissions from industrial sources and, thus, there was no need to require point sources to submit the information.

EPA never took action on the October 23, 2000 submittal from the State due to the fact that the May 23, 2000 proposed rule for the CERR (65 FR 33268) specified that all states must document NH 3 emissions as part of their emission inventory.

EPA waited for the CERR to become final before taking action on Utah's October 23, 2000 submittal. On June 10, 2002, EPA published the final rule for the CERR (67 FR 39602). In our letter dated October 15, 2002, we advised Utah of its need to update its emission inventory reporting requirements to meet those specified in the CERR. We asked the State to withdraw the October 23, 2000 submittal because it was now contrary to the CERR.

Before EPA could take action on the October 23, 2000 submittal, the State submitted on December 1, 2003 a revision to its State SIP that changed its emission inventory requirements. This submittal replaced the emission inventory requirements in the October 20, 2000 submittal and it is for this reason that we are acting only on the December 1, 2003 submittal. In this revision, the State rewrote Utah Rule R307-150 to incorporate CERR requirements. The State also consolidated all inventory collection requirements into Utah Rule R307-150 and, as a result, repealed Utah Rules R307-155 and R307-158, where the prior inventory requirements were located. EPA is approving the version of Utah Rule R307-150-1,-2,-3,-5,-6, and -7, (but not -4 and -8) and the repeal of Utah R307-155 and Utah R307-158 as they appear in the State's December 1, 2003 submittal as meeting the requirements of the CERR.

The December 1, 2003 revision also included inventory requirements for the Regional Haze State Implementation Plan, which we are not acting on in this action. Specifically, Utah Rule R307-150-4 adopts reporting requirements for stationary sources in Utah to determine whether sulfur dioxide emissions remain below the SO 2 milestones established in the State Implementation Plan for Regional Haze. EPA is not acting on the provisions described in Utah Rule R307-150-4 in the December 1, 2003 submittal, as the Regional Haze regulatory requirements have changed since the 2003 submission. We promulgated revisions to the Regional Haze Rule in response to the court's opinion in Center for Energy and Economic Development (CEED) v. EPA, 398 F. 3d 653 (DC Cir. 2005). Those revisions impacted the method for Section 309 States to use to demonstrate that the milestones in their alternative program provide for better reasonable progress than best available retrofit technology (BART). Rather than act on the 2003 submittal, EPA will wait for Utah's regulations that address the revisions to the Regional Haze Rule.

Utah Rule R307-150-8 exempts specific Hazardous Air Pollutants (HAPs) emissions from being reported to the State if the HAPs emissions were emitted in amounts less than a specific amount. EPA is not acting on this section of Utah Rule R307-150 since the CERR does not require that HAPs emissions be reported to EPA.

Finally, Utah in its December 1, 2003 submittal moved its definition of “chargeable pollutant” from Utah Rule R307-415-9 to Utah Rule R307-101-2. The State's reasoning was to apply the definition to all sources subject to emission inventory requirements rather than limit the definition applicability to sources subject to the Title V Operating Permit program, described in Utah Rule R307-415-9. Moving the definition to Utah Rule R307-101-2 would provide for its application to all sources. EPA is not acting on this because EPA's approval is not needed and the revision does not affect the State's ability to comply with the CERR.

Section 110(l) of the Clean Air Act states that a SIP revision cannot be approved if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress toward attainment of the National Ambient Air Quality Standards (NAAQS) or any other applicable requirement of the Act. The Utah SIP revisions that are subjects of this document do not interfere with attainment of the NAAQS or any other applicable requirement of the Act. The September 7, 1999, and December 1, 2003 submittals EPA is acting on revise requirements for developing and submitting emission inventories by the State to EPA. As a result, they provide the ability to better explain to the public and regulated community the positive aspects of a consistent inventory program. It also provides public documentation of a source's emissions. Disclosure of emissions will provide sources with significant incentives to minimize their emissions, comply with their emission limits, and protect the NAAQS and increments. Therefore, section 110(l) requirements are satisfied.

For the reasons expressed above, we are approving the following portions of Utah's submittals outlined in this action.

• Utah's Rule R307-221-1 as submitted to EPA on September 7, 1999

• Utah's Rule R307-150-1,-2,-3,-5,-6, and -7 (but not -4 and -8) and the repeal of Utah Rule R307-155 and Utah Rule R307-158 in their entirety as submitted December 1, 2003.

EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the “Proposed Rules” section of today's Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective March 16, 2009 without further notice unless the Agency receives adverse comments by February 13, 2009. If the EPA receives adverse comments, EPA will publish a timely withdrawal in the Federal Register informing the public that this rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 16, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

On July 14, 2008, 73 FR 40203, EPA proposed conditional approval of the DFW area's 1997 8-hour ozone attainment demonstration SIP revision, including the attainment MVEBs, RACM demonstration, and failure-to-attain contingency measures plan. We proposed to fully approve two local control measures relied upon in the attainment demonstration—the VMEP and TCMs. We also proposed to fully approve the DFW area SIP as meeting the RACT requirement for VOCs for both the 1-hour ozone standard and the 1997 8-hour ozone standard.

The proposed approval of the attainment demonstration SIP is conditioned upon Texas adopting and submitting to EPA by March 1, 2009, a complete SIP revision that includes an enforceable mechanism that would allow no more than 3.2 tons per day (tpd) of DERCs to be used in 2009 in the DFW area. If Texas intends to allow for more than 3.2 tpd of DERCs to be used beginning January 1, 2010, then the SIP revision must also provide appropriate limits on the use of DERCs and a detailed justification explaining how the future adjustments to the allowed DERC usage will be consistent with continued attainment of the 8-hour ozone standard. The justification must provide sufficient detail such that the public can be assured that attainment will continue to be projected in future years. If Texas meets the commitment to submit the DERC SIP revision, EPA will undertake rulemaking to determine whether to approve the revision and, if approved, EPA would convert the conditional approval of the attainment demonstration to a full approval.

We also proposed that final conditional approval of the attainment demonstration SIP was contingent upon Texas submitting to EPA a complete and approvable SIP revision for the attainment demonstration SIP's failure-to-attain contingency measures plan that meets section 172(c)(9) of the Act. EPA specifically identified in the proposal the elements such submission must contain. The failure-to-attain contingency measures plan was submitted to EPA on November 7, 2008, and we have determined that the plan is consistent with the elements established in our proposed rule (73 FR 40203) and meets section 172(c)(9) of the Act. Because the State submitted a complete failure-to-attain contingency measures plan that relies upon three VOC SIP rules for Offset Lithographic Printing, Degassing or Cleaning of Stationary, Marine, and Transport Vessels, and Petroleum Dry Cleaning, as well as fleet turnover from mobile sources after 2009, EPA can proceed with a final conditional approval. (See page 40205, third column, of the proposed action.)

Our July 14, 2008, proposal provides a detailed description of the revisions and the rationale for EPA's proposed actions, together with a discussion of the opportunity to comment. The public comment period for these actions closed on August 13, 2008. See the Technical Support Documents (TSDs) and our proposed rulemaking at 73 FR 40203 for more information.

EPA is conditionally approving the DFW 1997 8-hour ozone attainment demonstration SIP and, as part of this attainment demonstration SIP, the 2009 attainment MVEBs, RACM demonstration, and failure-to-attain contingency measures plan, submitted to EPA on May 30, 2007 and November 7, 2008, as supplemented on April 23, 2008.

Our conditional approval is based on our determination that, the modeling and weight-of-evidence show that the DFW area will attain the 8-hour ozone standard by its attainment date, as a result of the control strategies relied upon in this plan. In making this determination, we have considered the comments that we have received on our proposal. We have also considered the air quality monitoring information gathered since the proposal, the impact of the Clean Air Interstate rule (CAIR) vacatur, and the progress in implementing control measures. As the area approaches the attainment date, recent monitoring data becomes more important as an indicator of potential success. The preliminary data from 2008 shows 18 of the 20 monitors had fourth highs at 84 ppb or below and only two monitors were slightly above attainment levels at 85 ppb.

With more emissions reductions to occur before the beginning of the 2009 attainment year ozone season, we believe these data provide strong support that the area will attain the standard by its attainment date of June 2010.

As described in the proposed rule, the condition that must be met for EPA to fully approve the attainment demonstration is that the TCEQ must adopt and submit to EPA a complete SIP revision by March 1, 2009, that includes an enforceable mechanism that provides a 3.2 tpd restriction on the amount of DERCs available for use in DFW beginning March 1, 2009. The SIP revision may provide that the amount of DERCs available for use beginning January 1, 2010, could increase above 3.2 tpd if the revision provides an enforceable mechanism and a justification that the increase is consistent with attainment and maintenance of the 1997 8-hour ozone standard. In a letter dated June 13, 2008, TCEQ committed to meeting this condition (the letter is in the docket for this rulemaking).

If Texas intends to allow for more than 3.2 tpd of DERCs to be used beginning January 1, 2010, then the SIP revision must also provide appropriate limits on the use of DERCs and a detailed justification explaining how the future adjustments to the allowed DERC usage will be consistent with continued attainment of the 8-hour ozone standard. The justification must provide sufficient detail such that the EPA and the public can be assured that attainment will continue to be projected in future years. The justification and methodology for any increase in allowable DERC usage must be fully identified in the TCEQ rulemaking and SIP submittal process.

The SIP revision submitted by March 1, 2009, must adequately provide for continued attainment, and include the justification and/or methodology used by TCEQ to increase the amount of DERCs allowed for use in DFW starting in calendar year 2010. The justification provided by TCEQ must satisfy section 110(l) of the Act by demonstrating that the increase will not interfere with attainment or any other applicable measure of the Act. The analysis to satisfy section 110(l) will need to address both quantity and spatial allocation impacts of increased DERC usage on ozone levels.

EPA is fully approving two local control measures relied upon in the attainment demonstration: The VMEP and TCMs. We are also fully approving the DFW area SIP as meeting the RACT requirement for VOCs for both the 1-hour ozone standard and the 1997 8-hour ozone standard.

If Texas fails to adopt and submit to the EPA a complete DERC SIP revision by March 1, 2009, EPA will issue a letter to the State converting the conditional approval of the 1997 8-hour ozone DFW attainment demonstration SIP to disapproval. Such disapproval will start the 18-month clock for sanctions in accordance with section 179(b) and 40 CFR 52.31 and the 2-year clock for a Federal Implementation Plan (FIP) under section 110(c). EPA would publish in the FR a notice announcing the disapproval of the SIP and the start of sanctions and FIP clocks for the DFW area, and would revise the provisions in the Code of Federal Regulation (CFR) to reflect the disapproval of the SIP.

The State proposed the DERC SIP revision for public review on August 6, 2008 and the comment period closed September 12, 2008; final adoption of the revision was on December 10, 2008, in order to meet the condition to submit a complete DERC SIP revision to EPA by March 1, 2009, and implement the DERC SIP revision by March 1, 2009. As described in the proposed rule (73 FR 40203), if the State adopts and submits to EPA by March 1, 2009, a complete DERC SIP revision, and EPA determines through rulemaking that the submitted DERC SIP revision is approvable, we will simultaneously convert the conditional approval of the attainment demonstration SIP to a full approval. If EPA cannot fully approve the SIP revision concerning the use of DERCs in the DFW area, EPA will undertake rulemaking to disapprove the submitted DERC SIP revision and to convert the conditional approval of the attainment demonstration SIP for the DFW area to a disapproval. In such case, the 18-month clock for sanctions and the 2-year clock for a FIP would start on the effective date of final disapproval.

Today's final conditional approval of the attainment demonstration SIP remains in effect until EPA either determines that the State has not submitted a complete DERC SIP revision by March 1, 2009 or EPA completes rulemaking action either approving or disapproving a complete submitted DERC SIP submission and simultaneous with action on the DERC SIP submission takes final action to convert the conditional approval to a full approval or disapproval of the attainment demonstration.

In our proposal, we discussed the elements that must be approved if we are to finalize the conditional approval of the attainment demonstration. In order to finalize conditional approval of the DFW 1997 8-hour ozone attainment demonstration SIP, EPA must fully approve all of the control measures relied upon in the attainment demonstration and the DFW RFP Plan with the RFP MVEBs and RFP contingency measures. We approved the DFW RFP Plan with the RFP MVEBs and RFP contingency measures on October 7, 2008 at 73 FR 58475.

The State committed to submit a rule restricting DERC usage by March 1, 2009. In addition, EPA reviewed all DERC Notice of Intent to Use Forms that the TCEQ Executive Director approved as of November 30 for use in 2009, to ensure that the total amount of DERCs approved for use beginning on March 1, 2009 does not exceed 3.2 tpd.

Table 1 below lists the status of EPA action on the control measures relied upon in the attainment demonstration. The Table documents that, as of this final action, all control measures and reductions relied upon to demonstrate attainment have been reviewed and approved by EPA in this or other Federal Register Actions.

We received 26 comment letters on the proposed rulemaking. These comments are available for review in the docket for this rulemaking. The comment letters came from the following sources:

Comment: Several commenters urge EPA to finalize conditional approval of the attainment demonstration SIP. One supports EPA's proposed rule, recognizes the efforts of the local community, and lists some of the clean air initiatives implemented by the City of Dallas.

Response: We appreciate the support expressed in these comment letters. We applaud the actions taken by the local community and commend the local leaders and implementation staff; their work has and will continue to assist the area in reducing NO X and VOCs, the precursors for ambient ozone pollution. EPA encourages local governments to continue to be involved in these and future local emissions reductions programs.

Comment: Two commenters disagree with EPA's position taken in the proposal that because the DFW area has an attainment deadline of June 15, 2010, air quality monitoring data for the years 2007, 2008, and 2009 would be used to make an attainment determination. Rather, using the years 2008, 2009, and 2010 would be most consistent with the Act's requirements for attainment determination. They note that the Act mandates the attainment determination be made within 6 months after the attainment date, including any extensions thereof, and be based on the area's design value as of the attainment date. Although the Phase 1 Rule defines the “attainment year ozone season” as the ozone season immediately preceding the attainment date, they contend that that regulatory definition can be read as requiring controls timely for attainment in the attainment year, as required by the statute. They do not see the definition as relevant to the timing or content of an attainment determination. EPA's regulations do not specify that the attainment determination is to be conducted using data from the years prior to the attainment date, without considering data from the ozone season that includes the attainment date. They believe such a determination would be inconsistent with the statutory directive that the attainment determination be “based on the area's design value (as of the attainment date).”

Response: As an initial matter, EPA set forth its interpretation on this issue in the preambles to the proposed and final Phase 1 Rule. See 68 FR 32802, at 32817 (June 2, 2003) (In “determining whether an area actually attains the NAAQS at the time of the attainment date, EPA would use the ambient air quality data for the three ozone seasons prior to the attainment date. As an example, if the effective date of the nonattainment designations is May 15, 2004, the maximum attainment date for an area classified marginal would be May 15, 2007. In this example, EPA would consider the 8-hour ozone data for the three previous ozone seasons—2004, 2005 and 2006.”); 69 FR 23951, at 23989 (Apr. 30, 2004) (noting that the ozone seasons from 2007, 2008 and 2009 would be considered for an attainment date in May 2010). However, as noted by the commenter, the statute clearly specifies that a determination of attainment must be “based on the area's design value (as of the attainment date). The attainment date for the DFW area is June 15, 2010 and the design value “as of the attainment date” must be determined using the last three full years of ozone data, i.e. , 2007, 2008 and 2009. We see no argument that the design value “as of the attainment date” could be determined based on air quality data that would not represent a complete ozone season and thus be incomplete as of June 15, 2010.

Comment: We received many comment letters stating that the plan does not reflect recommendations made by the North Texas Clean Air Steering Committee.

Response: We agree that the plan submitted by the State does not reflect all of these recommendations. The resolutions were submitted to the State and addressed by the TCEQ in the SIP package adopted on May 23, 2007, which is in the docket for this rulemaking. The U.S. Supreme Court has consistently held that under the Act, initial and primary responsibility for deciding what emissions reductions will be required from which sources is left to the discretion of the States. Whitman v. Am. Trucking Ass'ns , 531 U.S. 457 (2001); Train v. NRDC , 421 U.S. 60 (1975). The State has discretion under the Act to determine the emissions reductions measures to be included in its attainment demonstration and exercised this authority for this plan. The State's role is to determine which particular emissions reductions measures are appropriate for the nonattainment area in order to comply with the requirements of the Act. As a matter of law, EPA is required to approve a SIP revision if it meets the Act's requirements, regardless of the State's choices. It is not EPA's role to rule out the State's choice of components of its SIP submittal so long as the plan is adequate to meet the standards mandated by EPA. See Train at 79-80 and Union Electric v. EPA , 427 U.S. 246 (1976). The EPA's role in reviewing SIP submittals is to approve state choices, if they meet the criteria of the Act. EPA disapproves a SIP submittal only if it fails to meet the statutory requirements. Seabrook v. Costle , 659 F.2d 1349 (5th Cir. 1981). Federal inquiry into the reasonableness of state action is not allowed under the Act ( see, Union Electric Co. v. EPA , 427 U.S. 246, 255-266 (1976); 42 U.S.C. 7410(a)(2)). As provided in the analyses accompanying this rulemaking, we have explained why we believe the submitted plan meets the requirements of the CAA.

Comment: Many commenters claimed that the SIP sanctions ozone pollution levels above the 1997 standard yet this standard has been determined not to be protective of human health by the EPA and is being replaced.

Response: The Act contemplates the possibility that scientific advances would require amending the ozone NAAQS. As such, Section 109(d)(1) of the Act requires EPA to review the ozone standard every five years based on the current science, and make any revisions that are appropriate in light of the current science. Today's actions are being taken in the context of the ozone standard that was promulgated on July 18, 1997, based on the best available scientific evidence at the time.

The 2008 revised 8-hour ozone standard does not replace the requirements for ozone nonattainment areas to meet the 1997 8-hour ozone standard by their applicable attainment date. The measures implemented in this attainment demonstration SIP will assist the DFW area in progressing toward the 2008 revised 8-hour ozone standard, ensuring progress continues during the time between the designations for the 2008 standard and the submission date for the associated SIP revisions. These measures cannot be removed from the SIP. South Coast Air Quality Management Dist. v. EPA , 472 F.3d 882 (DC Cir. 2006).

Comment: A commenter stated that TCEQ approved a permit revision allowing TXI cement kilns in Ellis County to burn tires as fuel, questioned whether the change would result in a decrease in NO X emissions, and expressed concerns about other pollutants, which result from tire burning. TXI said there would be NO X reductions but they based this by comparing kilns that were not similar to the ones TXI would use. TCEQ allows TXI to self-report, but the checks on the reporting are poor, and TXI also knows when the inspectors are coming.

Response: Each cement plant in Ellis County must comply with both its permits' limits and the State's revised chapter 117 rules for cement kilns relied upon in the DFW attainment demonstration, whichever is stricter. In a related rulemaking in today's Federal Register , EPA is concurrently approving the revised chapter 117 rules for cement kilns. The revised cement kiln rules establish a NO X source cap for each of the three cement plants in Ellis County. We disagree that there will be no decreases in NO X emissions. The revised NO X rules for cement kilns should result in at least 9.7 tpd of reduction in NO X emissions for the DFW area regardless of the fuel used including tires. We note also that all of the cement plants are required to operate continuous emissions monitors for NO X that must meet rigorous quality assurance and quality control criteria. Because these stack monitors must operate continuously, compliance does not rely solely on periodic inspections. As a consequence, EPA is confident that compliance with the NO X limits in these rules will be well monitored.

The commenter's concerns regarding increases of other pollutants besides NO X , TXI's reliance upon non-similar kilns to claim NO X reductions, self-reporting, and TCEQ's inspection program are not pertinent to today's action; the issue in this action is whether the State has shown that the DFW area will attain the 1997 standard by June 15, 2010.

Comment: The public is disadvantaged by “conditional approval” comment periods. Comments concerning the adequacy of Texas' plan depend upon how Texas fulfills the requisite conditions, but the public will not know this information until sometime in the future after the current comment period has passed. After Texas adopts and submits its final plans concerning DERCs and the other “conditions” to EPA, EPA should allow additional public comment regarding the adequacy of the DFW SIP attainment demonstration.

Response: Congress provided for conditional approval as a type of SIP processing. The Congress added section 110(k)(4) to the Act in the 1990 amendments to codify the EPA's authority to conditionally approve SIPs. Section 110(k)(4) provides that EPA may conditionally approve a plan based on a commitment from the State to adopt specific enforceable measures by a date certain, but not later than one year after the date of the final conditional approval action. In this case, if the State submits by March 1, 2009 (the date certain), a complete DERC SIP revision submittal (the specific enforceable measures), EPA must reevaluate the approvability of the DFW attainment demonstration SIP, as revised by this DERC SIP revision submittal. EPA will perform such an evaluation through notice-and-comment rulemaking and the public will have another opportunity to comment upon the adequacy of the DFW plan as affected by the DERC changes.

Comment: A number of commenters are concerned that cities within the DFW nonattainment area continue to be given more time to attain the standard instead of requiring them to clean the air now. If the State had met its responsibilities to submit a timely and approvable 1-hour attainment demonstration SIP, then this SIP would be incrementally stronger and have been submitted and implemented sooner. There is a contention that Texas has not submitted a complete approvable attainment demonstration SIP for the DFW area for over thirty years. Moreover, monitoring began in the early 1970's and the DFW area has never attained the 84 parts per billion (ppb) standard and remains years from doing so.

Response: The lack of approvability of past SIP submittals for the DFW area is not relevant to the requirement for an area to submit a 1997 8-hour ozone attainment demonstration. The State submitted this SIP revision on May 30, 2007, fifteen days before the June 15, 2007 required submission date. The State was on schedule to submit this SIP revision even earlier, but received requests from several stakeholders for an expanded timeline that would allow for a more robust stakeholder discussion and development of additional technical support. 1

This 8-hour ozone attainment demonstration was submitted on time and deemed complete by operation of law (40 CFR part 51, Appendix V). Moreover, the attainment date for the 1997 8-hour ozone standard for the DFW area is June 15, 2010. The State has not requested additional time for the area to attain this standard, nor has additional time been granted. EPA is finding today that the control measures relied upon in this plan, in combination with Federal Measures, and building on measures already approved in the SIP will ensure that the DFW area attains the 1997 8-hour ozone standard by the applicable attainment date of June 15, 2010.

While past efforts to comply with CAA requirements have not been without flaws, we note that there have been extensive efforts and significant progress made over the years in the fast growing DFW area. These past efforts have built the foundation for the plan being approved today. They include the 15% Rate of Progress (ROP) plan, the post-1996 ROP plan, the MVEBs, and the extensive control measures adopted by the State and approved by EPA into the Texas SIP for the DFW area to meet the 1-hour ozone standard. The control measures in these approved plans included among other things: Reformulated gasoline, enhanced I/M, and controls on power plants locally and in the Central and East Texas Region.

Moreover, we note that the area is continuing to look for further ways to address ozone levels and may submit additional revisions to the SIP in the future. Three of the largest cities (Arlington, Dallas and Fort Worth) have passed ordinances addressing the purchase of green cement, which may yield an additional 1 tpd of NO X reductions; and local city and county officials have increased their enforcement of Inspection and Maintenance rules by performing site inspections, which will yield additional reductions through 2009.

The measures discussed above have resulted in significant improvements in air quality. The DFW area now is meeting the 1-hour standard and has made significant progress toward meeting the 1997 8-hour ozone standard. As a moderate nonattainment area, the attainment date for the DFW area is June 15, 2010 and we believe the area will meet the attainment date.

Comment: The plan should require more mass transit and industry to install the latest in air pollution reduction equipment. Airplane engines and related equipment should be less polluting.

Response: As explained in an earlier response, the CAA places responsibility on the State to determine the mix of controls that will bring an area into attainment with a particular standard and EPA is delegated to reviewing whether the State's plan will meet the statutory attainment requirement. Therefore, EPA does not have the authority to require the State of Texas to submit a plan for the DFW area that requires more mass transit or imposes the latest in pollution control equipment on industry.

We note, however, the expansion of mass transit is ongoing in the DFW area and can be viewed at http://www.DART.org. Appendix H of the DFW SIP submittal identifies emission reduction measures for airplanes and related equipment, which are part of the Voluntary Mobile Source Emission Reduction Program (VMEP) we are approving today. These include: Additional electrification of ground support equipment; gate electrification to eliminate use of aircraft auxiliary power units; ground tugs for pushback to minimize use of reverse thrust from main aircraft engines; de-peaking of airline flight schedules; and implementation of airport surface detection equipment to improve efficiency during taxi. Furthermore, the local community has implemented clean air initiatives that include: Outreach for the TERP and AirCheckTexas programs; reducing environmental impacts by purchasing hybrids and alternative fueled vehicles when possible; purchasing 40% of their electric power from renewable resources; green building policies; development of sustainability policies; developing purchasing policies for cleaner cement; and passing an ordinance prohibiting vehicles over 14,000 pounds from idling for more than 5 minutes.

In addition to the measures in Appendix H, TCEQ submitted a Supplement with more accurate and updated data for Love Field and the DFW International Airport, including data on activities and fleet mix. There were more new aircraft engines and the related equipment was less polluting than previously recognized. This information is provided in the docket for this rulemaking.

Comment: Commenters express significant concerns about whether the projected emissions reductions from TERP will occur, as predicted. They believe that the projections are overly optimistic. They provide the following reasons for their concern about the projections being too optimistic: 1. Actual TERP reductions have not met previous projected reductions, and the methodology for calculating the projected TERP reductions may not take into account that in the future, there will be fewer emissions reductions per dollar spent (cost-effectiveness assumption). 2. Although it is clear that TERP emissions reductions occur, there does not seem to be a satisfactory way to confirm the projected reductions will actually occur or not. 3. EPA relies upon the State's assumption that 70% of TERP funds will be used in the DFW area, but since there is no mechanism for ensuring the specified percentage of funding will be met, the projections are not enforceable; the projections should not be relied upon in the attainment demonstration; the 70% assumption should be reduced; and the SIP should include a contingency component to address a potential shortfall.

Response: We agree that for the Increment of Progress SIP revision, the amount of actual TERP reductions was less than the projections. Because of this experience, we worked with the State to revise the methodology for estimating emission reductions in this attainment demonstration SIP. The revised methodology uses assumptions that are more conservative. Specifically, the average project life was increased by 40% and the cost effectiveness was reduced by slightly more than 51%. The formula now relies upon the following assumptions: $6000/ton, 250 days/yr operation and a 7-year project life. Using these revised assumptions, the TERP emission reduction projections relied upon in the demonstration modeling and the WOE are greatly reduced. Increasing the project life has the effect of reducing the emission reductions assumed in any given year. The cut in the revised cost-effectiveness assumption is intended to address, among other things, the commenters' concerns about there being fewer reductions per dollar spent each succeeding year.

For comparison, on January 26, 2007, the cost effectiveness of TERP projects completed in DFW averaged $3730.24/ton; by September 23, 2007, DFW projects averaged $3743.59/ton; and by April 2, 2008, DFW projects averaged $3959/ton. California's experience with the Carl Moyer program  2 has achieved emissions reductions at an average cost of $3900/ton through October 2006. We believe the revised cost effectiveness of $6000/ton provides room for the increase in cost/ton that we are seeing in the DFW area.

In its May 2007 SIP revision, TCEQ indicated as a weight of evidence (WOE) measure that additional TERP reductions were possible if additional monies were appropriated by the legislature for the 2008/2009 legislature. House Bill 1 signed by the Governor on July 15, 2007, appropriated to TCEQ, TERP funds of $297,144,243 for fiscal years (FYs) 2008/2009. In the April 23, 2008 submittal, relying upon these additional appropriated monies, TCEQ projected that the TERP could potentially achieve an additional 14.2 tpd of NO X emissions reductions. Since these emissions reductions were not available early enough to include as control measures in the modeling, their impact on the DFW area's air quality was instead predicted by EPA, using sensitivity modeling runs, to estimate the ppb change on the monitors in the modeling-based weight of evidence (WOE) analysis.

To achieve the projected additional 14.2 tpd of NO X emissions reductions from TERP, using the revised TERP methodology, the Texas legislature needed to appropriate to the TCEQ, sufficient FY2008 and FY2009  3 TERP funds for the TCEQ to allocate a total of $149,100,000  4 to the DFW area for TERP Emission Reduction Incentive Grant (ERIG) projects; this amount does not include the funds required to achieve the IOP shortfall. 5 TCEQ received a sufficient amount of TERP monies to have available $188,475,000 to achieve the IOP SIP shortfall ($39,375,000) and achieve an additional 14.2 tpd ($149,100,000) in 2008 and 2009.

In the April 2008 submittal, the TCEQ posited that it could achieve the additional 14.2 tpd of TERP NO X reductions by spending in the DFW area 50% of the FY2008 TERP funds and 70% of the FY2009 TERP funds. Whether funds are spent in exactly these percentages each year however, is not the issue; the essential point is that TCEQ enters into TERP grant contracts worth at least $149,100,000 in the DFW area for projects to achieve 14.2 tpd in calendar years 2008 and early 2009.

TCEQ roughly split in half for each fiscal year, the $297,144,243 appropriated TERP funds—$148,572,121.50. Of this $148,572,121.50 “split,” TCEQ used approximately $40 million for other TERP programs, including rebate grants and FY2007 unfunded TERP applications, including the IOP SIP shortfall. EPA notes that the IOP shortfall has now been met. Considering the factors meant that TCEQ had approximately $106,000,000 FY2008 TERP monies for the FY2008 to achieve additional reductions beyond those considered in the May 2007 SIP submission through ERIG projects in TERP-eligible counties. Applications submitted to TCEQ during the FY2008 round of project applications totaled approximately $94.5 million for the DFW area. Of these applications however, it appears from the draft September Report that $51,532,511.79 have been selected for funding. 6

As a result, to achieve the 14.2 tpd projection, TCEQ needs to enter into FY2009 TERP grant contracts worth $97,567,488.21 ($149,100,000 − 51,532,511.79 = $97,567,488.21). In summary, after accounting for the tpd of TERP NO X emissions reductions obtained by the FY2008 grant contracts, to obtain the remaining tpd of TERP NO X emissions reductions to achieve a total of 14.2 tpd as projected as part of the WOE, the TCEQ would need to enter into TERP grant contracts with DFW-area applicants worth $149,100,000 for projects to be completed as early as possible in calendar 2009. Due to a number of factors, including Hurricane Ike, the TCEQ will begin its first round of requests for funding from FY2009 TERP grant monies in December 2008. For more information concerning the timing of FY2009 TERP projects due to Hurricane Ike, please see the Supplemental TSD dated December 2008.

TERP has safeguards to ensure that when funds are provided to grantees, they must achieve the associated reductions. Grantees are required to track usage and report to the TCEQ every six months; they must meet the reporting requirements delineated in their specific grant contract. TERP is enforceable against the grant recipient. Over the activity life of each TERP grant-funded activity, the grant recipient commits the generated emissions reductions to the SIP. The recipient is responsible for achieving the annual and total NO X emissions reductions within the eligible areas as defined in the contract. Recipients will be required to return all or a pro rata share of the grant funds to the TCEQ if the emissions reductions are not achieved.

EPA continues to carefully review the biennial reports that TCEQ is required to submit to the Legislature pursuant to Texas Health and Safety Code, 386.057 and 386.116(d). The draft September TERP Biennial Report to the Texas Legislature indicates that 488 projects have been selected for funding in the DFW area, totaling $51,532,511.79 to reduce an estimated 3.72 tpd in NO X emissions beyond what was included in the May 2007 modeling. Based upon the draft September Report, the average cost/ton for these projects increased to $6710.13, versus the revised methodology of $6000/ton. At this rate, to achieve the 14.2 tpd in NO X emissions reductions, the TCEQ must be able to allocate at least $123 million  7 to the DFW area for TERP projects early in calendar 2009. As this report is in draft, these numbers are subject to change but it now seems likely that approximately 70% of these TERP emission reductions will occur before the core ozone season of 2009. We have evaluated the impact of this change on the attainment demonstration modeling and WOE; this evaluation is in Subsection D, below.

In summary, EPA believes that the TERP program is achieving significant reductions in NO X . Consistent with its experience in implementing the program, the State has adjusted its assumptions used in projecting emission reductions to be more conservative. EPA believes these revised assumptions begin to address many of the commenters concerns. Although delays in opening the request for applications mean the reductions based on FY2009 funds will be delayed, many reductions can still occur before the peak of the ozone season. Achieving the 14.2 tpd of reductions from TERP will require substantial continued efforts. See also Subsection D below, in particular the last Response, Comment MC-15.

EPA received a number of comments about the photochemical modeling, the Weight of Evidence Analyses, and our proposed determination that the area would attain the standard by its attainment date of June 15, 2010. EPA has reviewed all the comments on these topics and provided responses below.

The discussion below summarizes our evaluation of the modeling and evidence, the comments we received, and other factors such as the State's progress in implementing control strategies, and recent air quality trends. EPA believes that as the attainment date becomes closer, measured air quality and planned additional emission reductions become more important as a predictive tool (compared to modeling) and the monitoring data should be given additional weight, more so than in situations where the attainment date is still years away. In 2008, the preliminary data shows 18 of the 20 monitors have measured attainment levels with fourth high 8-hour values of 84 ppb or less. The remaining two monitors were only slightly higher than an attainment level measuring fourth high values of 85 ppb. EPA believes additional significant reductions in emissions will occur before the 2009 ozone season such that the area can attain the standard based on 2007-2009 ambient data or at least qualify for a 1-year extension of the attainment date by having each monitor's 4th high ozone concentration in 2009 below 85 ppb.

We evaluated many factors in our WOE evaluation. These items included reductions not included in the modeling based projections (energy efficiencies), unquantifiable measures (AirCheckTexas, Dallas Sustainable Skyline Initiative, etc.), meteorological analyses of severity of ozone seasons (both the base period and recent years including 2007), most recent monitoring in 2007 (a 4th high of 89 ppb at two monitors and the other 18 monitors had 4th high values of 87 ppb or less), the court's vacatur of CAIR, progress in implementing the TERP program, and progress in implementing the early compliance incentive on natural gas compressor engines outside the DFW area. EPA has also considered preliminary 2008 ozone monitoring data (4th high values of 85 ppb at two monitors and at the other 18 monitors the value was 84 ppb or less) and whether that data supports a trend toward attainment for the area. We considered that over half of the NO X estimated emissions reductions between 2007 and 2009 that are estimated to yield a 3-4 ppb drop in ozone levels in the DFW area, are slated to occur between the 2008 ozone season and the 2009 ozone season. We also expect further ozone reductions in 2009 and beyond.

After consideration of all of these analyses, EPA has determined that the State has demonstrated that the DFW nonattainment area will attain the 1997 8-hour ozone standard by its attainment date.

Comment (MC-1): A commenter states that the WOE analysis underestimates the impact of emission increases from facilities outside the DFW nonattainment area, upon the DFW area. This underestimate occurs because the TCEQ issues PSD permits to facilities outside the DFW area that will affect the ozone concentration level in the DFW area and says they should address these ozone impacts in the DFW attainment demonstration SIP. The commenter does not believe that this DFW attainment demonstration accounts for the impacts from these sources that have been and will be permitted outside of the DFW area. There also appears to be no correlation or tracking of these permitted emission increases in relation to the projected point source emissions inventories in this DFW attainment demonstration.

Response (MC-1): The Texas SIP at Section 166.160 (a) (which incorporates 40 CFR 52.21(k) by reference) requires a new source or modification subject to PSD to demonstrate that emissions from the facility will not cause or contribute to a violation of any NAAQS. The Texas PSD SIP permitting program also provides for an opportunity for notice and comment, as well as state court judicial review, of each permitting action.

EPA disagrees with the commenter that this SIP revision does not account for the impact of potential emissions increases. In this final action on the DFW attainment demonstration, we reviewed the analysis to insure that sources impacting the DFW nonattainment area were included in the baseline and future case modeling demonstrations. EPA's modeling guidance (“Guidance on the Use of Models and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and Regional Haze”, EPA-454/B-07-002, April 2007; and earlier modeling guidance) and emission inventory guidance (“Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations”, EPA-454/R-05-001, August, 2005, updated November 2005) indicate that a combination of specific projections and general growth estimates should be utilized to attempt to obtain a best estimate for the future year inventory. Future case emissions must be projected to account for growth and control throughout the modeling domain, which includes states outside of Texas and the attainment areas of Texas (including the new proposed sources raised by the commenter). EPA's guidance has been that new permitted sources, including likely to be permitted sources based on applications that have been received when the future year EI is being generated, should be included in the future year modeling if they are expected to be emitting in the future attainment year. As a practical matter, the focus has usually been to include expected new very large sources (such as electric generating units (EGUs)) and use economic based growth factors to account for growth in emissions from other industrial source categories. Overall, EPA's guidance is to provide the best estimate of the future year emission inventory given the limitations with estimating emissions several years in the future. Texas' emission projections to the future years are very detailed and the methods utilized are discussed in the MOAAD TSD and in TCEQ's DFW SIP submittal, including Appendix B. In nonattainment areas, major new sources are required to obtain offsets larger than the proposed source so there is a net decrease in emissions, so no growth is estimated for these sources in nonattainment areas. Therefore, within Texas the only areas that point source growth is estimated is in the areas that are in attainment and our discussion will briefly explain the methodology for future year estimates of major point sources in attainment areas of Texas.

For existing EGUs in Texas, the State used 2005 continuous emission monitoring data and assumed that there would be no emissions changes. Texas projected increases in emissions because of new EGUs that were expected to be emitting in 2009 (these were included in Table 2-8 of Appendix B of TCEQ's submittal). For all other industrial point source emissions (non-EGUs) in Texas' attainment areas, TCEQ started with the 1999 reported emission inventory and projected growth in point source emissions using point source growth projections derived from the Emissions Growth Analysis System version 4.0 (EGAS 4.0), an EPA-approved methodology. It is worth noting that the EGAS system for projecting emissions tends to overstate future emissions since the system relies principally on economic growth for the projections, and does not include reductions from regulatory or permit controls.

In conclusion, we have reviewed the methodologies that TCEQ utilized to grow EGUs and non-EGUs outside of the DFW area and conclude that the 2009 level emissions of these sources have been appropriately estimated using acceptable methods and contrary to the commenter's concerns the attainment demonstration appropriately accounts for the potential for new source growth by 2009.

Comment (MC-2): Commenters state that ozone exceedances continue to occur in the DFW area and show there still is a serious problem. Specifically, 14 exceedances have been measured at eight of the monitors through August 12, 2008 and eight of which are 90 to 99 ppb. The commenter concluded that this 2008 monitoring data does not seem to support the WOE.

Response (MC-2): EPA has reviewed the ozone monitoring data through November 1, 2008 in response to this comment. While a number of exceedances of the 1997 8-hour ozone standard occurred during the 2008 ozone season by August 12, 2008, it is very important to note that the standard is a statistically based standard. The statistical nature of the standard allows each monitor to have up to 3 days with exceedance levels at each monitor (with potentially multiple 8-hour exceedances for each of the three days) and all the monitors in the area could still have a 4th high value less than 85 ppb (attainment level). The standard is an average of the daily 4th high value at a monitor for each year of a consecutive 3-year period. Therefore, it is even possible to have a 4th high value for one or even two years at a specific monitor be above the standard, but the 3-year average value to be below 85 ppb and thus, in attainment. 8 Furthermore, each monitor in the area could have up to 3 exceedances at each monitor on differing days. Given 20 monitors in the DFW area, a total of 60 exceedances could theoretically occur in the DFW area with all 4th high values at each monitor still less than 85 ppb. This is a theoretical worse-case situation but this demonstrates that having several exceedances does not automatically yield a nonattainment determination.

Since the standard is statistically based, the relevant metric to examine for determining compliance with the NAAQS is the annual 4th high values at each monitor. We therefore evaluated the recent 4th high values for the DFW area 8-Hour Ozone Season (March 1-October 31 for the 85 ppb standard). The 4th high monitoring data from 2008 indicates that the area is near attainment levels (2008 monitoring data is preliminary and awaiting QA/QC  9 ). The 2008 preliminary data shows the DFW area had 4th high values of 85 ppb at two monitors and at the other 18 monitors the value was 84 ppb or less. The 2008 preliminary data indicates the 2006-2008 DV is 91 ppb (down from 95 ppb using 2005-2007 data). For the monitor that has the highest average 2007 and 2008 4th high values and is likely to be the controlling monitor (or one of the highest monitors) for determining if the area reaches attainment based on 2007-2009 data, the monitor's DV for the 2007-2009 period would have to be less than 85 ppb. For this to occur the monitor (Denton monitor) would have to have a 4th high value of 82 ppb or less to reach attainment in 2009. It is important to note that this monitor had a preliminary 4th high value in 2008 of only 84 ppb.

In comparison with ozone monitoring levels in 2007, the preliminary 2008 monitoring data is lower than the 2007 data. Contrary to the commenters concerns, EPA believes that the 2008 preliminary data is consistent with achieving attainment, especially considering that much of the DFW SIP reductions are still to occur and another year of fleet turnover will happen. EPA also believes that even if the area does not attain the standard based on 2007-2009 data, it is very likely to qualify for a one year extension under sections 172(a)(2)(C) and 181(a)(5) of the Act ( see 40 CFR 51.907) by having fourth high at 84 ppb or below at every monitor.

Comment (MC-3): Commenters believe that we should impose a 2009 mid-course review (MCR) obligation upon the State, triggered by exceedances at the monitors or a violation of the standard in 2009.

Response (MC-3): There is no MCR requirement at this time for the 8-hour ozone SIP. In our Phase 2 Implementation Rule, we provided that we would assess the need for MCR for areas with an attainment date beyond 6 years after the effective date of the area's designation (Final Rule To Implement the 8-Hour Ozone National Ambient Air Quality Standard, Phase 2 (70 FR 71612, 71629). The attainment date for DFW is June 15, 2010, which is not more than 6 years beyond the effective date of the area's designation. A mid-course review is for the purpose of assessing whether an area is on-track for attainment and would typically be performed several years before the attainment year. This is because a MCR performed several years before the attainment year would give the area sufficient time to make corrections to the plan if it was not performing as anticipated. A review as suggested by the commenter would not be “mid-course” because it would be performed in the middle of the attainment year ozone season. At that point in time, there would be no steps that the DFW area could take to move the area back on track to achieve attainment by the required date.

Comment (MC-4): Commenters stated that in the DFW area, there are two monitors critical to the attainment demonstration, one in Frisco and one in Denton. The commenters, relying upon a February 22, 2006 Memorandum from ENVIRON, state that there is no measurable impact on these two critical monitors from the TCEQ's chosen controls for the Ellis County cement plants. The commenters contend that TCEQ has not performed any analysis showing that the chosen level of controls on the Ellis County cement plants would assist the DFW area into coming into compliance with the ozone standard.

Response (MC-4): As noted in a previous response, the Act gives the State the primary authority to determine the mix of control measures necessary to demonstrate attainment. One of the measures that TCEQ selected in support of its attainment demonstration is controls at cement plants in Ellis County. EPA evaluated the plan, as a whole, and agrees that the State has demonstrated that the area will attain the standard by its attainment date. Thus, EPA does not have authority to second-guess the mix of controls selected by the State and, in this case, its decision to further control the cement kilns in Ellis County.

Although we cannot second-guess the controls selected by the State, we note that we agree with TCEQ that cement kiln NO X reductions are an important element of the reductions necessary to bring the entire DFW area into attainment and the reductions are expected to reduce high ozone levels and the frequency of ozone exceedances in the DFW area. The record for this action includes the information that was evaluated by the State and EPA and that supports the conclusion that additional NO X controls on cement kilns are a critical component to reducing ozone exceedance levels in the DFW area so that the area can timely attain the 1997 8-hour ozone standard. It is clear from evaluating the SIP, its reports and appendices that TCEQ has performed numerous analyses concerning the impact of the cement kilns NO X and VOC emissions on the ozone concentrations levels of the DFW area. Moreover, contrary to the commenters' assertion, the chosen strategy has an impact on the Frisco and Denton monitors, as well as a significant benefit to the western portion of the nonattainment area, especially in Tarrant County. For further details, see the TCEQ's Response to Comments document, the MOAAD TSD, and the Supplemental TSD.

For the other comments specific to the cement kiln NO X rule itself, not the attainment demonstration SIP, we provide the comments and our responses in our final rule for the Control of Emissions of Nitrogen Oxides from Cement Kilns, concurrently published in today's Federal Register .

Comment (MC-5): The commenter asserted that EPA should not accept TCEQ's revised Relative Response Factor (RRF) calculation. 10 The commenter indicated that contrary to the proposal, a 1 ppb difference between EPA's RRF guidance and TCEQ's revised RRF is significant. The commenter referred to 73 FR 40211, stating that TCEQ RRF calculation did not make significant differences in the future design values (FDVs) with truncation. The commenter wrote that TCEQ's methodology is merely a paper exercise to obtain additional emission credits, and EPA should not approve of such tactics.

Response (MC-5): We recognize the TCEQ's method of projecting the future design value differs from the method provided for in EPA's guidance. EPA's guidance for projecting the future design value is not a legally binding substantive rule. Therefore, other methods of design value projections may be evaluated on a case-by-case basis and used to determine whether an area will meet the standard. Whatever method is used for a specific demonstration—either that from EPA's Guidance or another method—is subject to comment during the State and EPA public participation processes and all substantive concerns about the method would be addressed in responding to any comments.

TCEQ shared their RRF method with EPA during their SIP development process. EPA reviewed the alternate RRF method at the time and indicated to TCEQ that we would utilize both EPA's method and TCEQ's method and weigh the results in our review of the modeling projections. We have continued to follow this approach in our review of this SIP. For details on how both the TCEQ and EPA RRF methods are calculated and results from the two methods, please see the MOAAD TSD starting in Chapter 4.

In this specific case, TCEQ's method yields projected values that when compared to values with EPA's method are more conservative at some monitors and less conservative at other monitors. EPA does not consider the TCEQ RRF method to be superior to EPA's method, just a different way to perform the calculation and yield another set of projected results to consider in our review. We do not believe that either method is biased towards a particular result. As described below, and documented in our MOAAD TSD for this action, we have reviewed projections using both RRF techniques. Both the TCEQ projection and the EPA projection are consistent with the conclusion that the area will meet the standard in 2009.

The results for both RRF (EPA and TCEQ) methods are contained in tables of the MOAAD TSD that have FDV projections, including Tables in Chapter 6 (the Summary Chapter). EPA reviewed the FDVs for all modeling based projections using both RRF techniques and for most monitors, the TCEQ RRF based FDV calculations make minor differences of only one or two tenths of a ppb (compared to EPA's RRF method) and generally do not change the final modeling projected value. Specifically, for the nine monitors that are assessed, the difference between the two RRF techniques ranges from minus 0.22 ppb to +0.19 ppb for 8 of the 9 monitors and is +0.59 ppb for the other monitor. See Table 5 of the proposal notice. As the final step of calculating modeling projections, EPA guidance recommends truncating the tenths digit and only reporting integer ppb values to match with the monitored attainment demonstration procedures that truncate to integer ppb levels. Due to this truncation procedure, modeling projection changes of a few tenths do not generally impact the final FDV value. There were a few cases where the different RRF methods yielded a 1 ppb difference in the final FDV value due to this truncation process (for the Midlothian monitor's data, the different RRF methods yield modeling values of 82.83 ppb and 83.05 ppb and truncation yields final FDVs of 82 ppb and 83 ppb).

We continue to believe that the difference in the results of these two techniques is small overall. As discussed in another response below, we considered the results of both RRF methods (including the few times that the truncated FDV differed by 1 ppb) and determined that both the TCEQ projection and the EPA projection are consistent with the conclusion that the area will meet the standard in 2009.

Comment (MC-6): The commenter indicated it is unclear whether the Photochemical Dispersion Modeling Reanalysis 2009 (PDMR 2009) evaluation uses TCEQ's revised RRF or EPA's guidance. The commenter indicated that it appears as though it uses only TCEQ's RRF and the public should be afforded an opportunity to know the PDMR 2009 FDV under EPA's guidance. The commenter asserted that considering that even with the more lenient TCEQ revised RRF, the modeling still projects a worse air quality picture, and thus the EPA guidance projection will most likely be even worse. The commenter indicated that without this information, the public is unable to meaningfully review and comment not only on the overall demonstration, but also on whether using the TCEQ revised RRF is even proper.

Response (MC-6): There were five tables that included modeling projections in the proposal notice. Tables 2, 3, and 5 had projections for the PDMR 2009 modeling scenario and were marked as TCEQ RRF in the FDV columns. The proposal notice included calculations of modeling projections using both the TCEQ's RRF method and the RRF method from EPA's guidance for the modeling run Combo 10 in Table 1. In referring to values in Table 1 of the proposal notice, EPA stated on page 40211 “Since the TCEQ RRF calculation method did not make significant differences in the FDVs and with the truncation to whole numbers, we have used the TCEQ RRFs for the final assessment with consideration of the FDVs using EPA's RRF method. The results of EPA's RRF method are contained in the MOAAD TSD.” From that point forward in the proposal notice, EPA did not include the results from EPA's RRF method in the Federal Register notice. Tables 2, 3, and 5, including the analyses of PDMR 2009 only include the TCEQ RRFs as the commenter indicates. This was done to try to minimize confusion in the notice. EPA did note in the proposed notice that the results from the EPA RRF method are contained in the MOAAD TSD. The results for both RRF (EPA and TCEQ) methods were contained in tables of the MOAAD TSD that had Future Design Value projections, including Tables in Chapter 6 (the Summary Chapter). EPA reviewed the FDVs for all modeling based projections using both RRF techniques. Examination of the modeling results, which include some WOE adjustments contained in Table 6-3 of the MOAAD TSD, reveals that the TCEQ RRF based FDV calculation makes only minor differences of only one or two tenths of a ppb (compared to EPA's RRF method) for most monitors and did not change the final modeling projected value except for one monitor.

Comment (MC-7): A commenter asserted that full credit for the NO X reductions from gas compressors in 33 East Texas counties seems overly optimistic. The commenter indicated that their understanding is that owners or operators of compressor engines requested a small portion of the $4 million in incentives. The commenter remains skeptical that the full reductions assumed in Combo 10 will be achieved by 2009. The commenter asserted that the attainment modeling thus overstates the ozone reductions from the control strategy and indicated that EPA should consider this effect as part of the Weight of Evidence analysis, and should give more weight to the PDMR 2009.

Several commenters indicated that the 2.4 tpd of NO X reductions from point sources in the DFW area that have 2010 compliance dates are not likely to be in place by the beginning of the 2009 ozone season. These commenters also indicated that EPA assumes too much by relying on the predictions that early compliance will occur for certain control measures with 2010 implementation dates. They claim that because of this reliance, the attainment modeling overstates the ozone reductions from the control strategy. The commenters indicated that EPA should consider this effect as part of the WOE analysis, and should give more weight to the PDMR 2009. Furthermore, a commenter wrote that if any control measure emission reduction will not be enforceable until after the 2009 compliance date, then those emission reductions cannot be used to justify EPA's approval.

Response (MC-7): Combo 10 modeling run was the official attainment demonstration modeling run submitted by TCEQ to EPA in the SIP revision submittal. Because of our concerns stemming from the inclusion of reductions from measures with 2010 compliance dates, it was not the only modeling run considered by EPA in our evaluation of whether the DFW area would attain the standard by the deadline. There was another modeling run available in the TCEQ's public record on its proposed action for EPA to review; in the proposal and TSDs, we label this additional modeling scenario the PDMR 2009. We evaluated this PDMR 2009 modeling run as a worst-case projection of the 2009 modeling picture because it did not project any reductions from the rules with 2010 compliance dates. For example, it did not include the 2.4 tpd of NO X reductions projected from the major and minor Point Source rules in the DFW area and any projected reductions from the East Texas Compressor Engines rules that have 2010 compliance dates. Thus, PDMR 2009 provides an upper boundary of projected ozone FDVs in the attainment year.

The Texas legislature made available to compressor engine owner and operators $4 million to assist in early compliance. As the commenter points out, however, the full $4 million was not requested by owners and operators of compressor engines. Since some requests were made, some early compliance should occur, but the commenter is correct that the level of reductions in East Texas by the 2009 ozone season is probably closer to the PDMR 2009 emission reduction level than the Combo 10 emission reduction level. As a result of this information, EPA is putting more weight on the PDMR 2009 results than on Combo 10.

We have evaluated the modeling outputs based on an approach that looks at the PDMR 2009 outputs, which predict ozone levels that are slightly worse than what is likely to occur, as well as the Combo 10 outputs, which predict ozone levels that are more optimistic. This evaluation of PDMR 2009 sets the upper bound of model predictions for the FDV in 2009 and the Combo 10 run sets the lower bound. In making our determination that the State had demonstrated that the DFW area would attain the 1997 ozone NAAQS by its attainment date, we consider the TCEQ's official attainment demonstration modeling run (Combo 10), the results from the PDMR 2009 modeling, and information that some early compliance would occur by the 2009 ozone season as well as other weight of evidence analyses. The model projections in Table 6.3 of the MOAAD TSD give the non-truncated values for the final modeling with some WOE adjustments for both the modeling runs and both RRF techniques. The difference between the PDMR 2009 and the Combo 10 run for each monitor is 0.30 ppb or less when using either the TCEQ or EPA RRF technique. EPA's modeling guidance recommends the truncation of the decimal places and reporting of only integer values for the final modeling based projection values. When the truncation is done to the MOAAD TSD Table 6.3 values (Modeling-based assessment with some WOE elements included), the results are identical for both the PDMR 2009 and the Combo 10 modeling runs. Using the EPA RRF procedure, both runs result with 7 monitors attaining, one monitor at 87 ppb, and one monitor at 88 ppb. Using the TCEQ RRF procedure, both runs result with 7 monitors attaining, one monitor at 87 ppb, and one monitor at 88 ppb.

We have considered both the PDMR 2009 and Combo 10 modeling results and put less weight on the Combo 10 projections because of concerns over the inclusion of measures with 2010 compliance dates. As discussed above, however, when EPA's procedures for projecting the future design value are followed, there is little difference in the results particularly if one considers that a small amount of early compliance will occur. Therefore, as further discussed in response to other comments, the combination of the Modeling projections and other WOE elements were considered and support the conclusion that the area will attain by the area's attainment date.

Comment (MC-8) : The commenter indicated that TCEQ intends to reduce the amount of DERC values included in the modeling because using the entire balance of the DERC bank is “overly conservative based on past usage of DERCs.” The commenter asserted that DFW's past air quality violations occurred under scenarios of less DERC usage. The commenter concluded that this belies a Weight of Evidence (WOE) “trend” of improving air quality because in the future projection nothing is really changing from the past when violations occurred.

Response (MC-8) : DERCs are banked emission credits generated by reducing emissions beyond required levels that sources can use to exceed certain emission limits on a temporary basis. EPA guidance discusses why emission credits that are being carried in an emissions bank ought to be included in modeled projections. It can be important because these banked emissions come back in to the air if the banked credits are used. As a result, if these banked emissions are not accounted for in the future projections, the modeling would under-predict future ozone levels if some or all of the banked credits are used. EPA guidance advises a conservative approach in which all banked emissions are included in the modeled future projections. This conservative approach assumes that the entire bank would be depleted during the attainment year. The TCEQ Bank held 20.4 tpd of NO X DERCs when TCEQ reviewed the level of credits in the bank and included the banked DERCs in their future year modeling. After finalizing the future year modeling, TCEQ reevaluated the inclusion of all of the banked DERCs in the future projections. TCEQ believed that the inclusion of the entire balance of the DERC bank was overly conservative based on past usage of DERCs. They wished to include 3.2 tpd, rather than 20.4 tpd, of banked DERCs in the future projections. As discussed previously, Texas committed to adopt a restriction on DERC usage to ensure that no more than 3.2 tpd of banked DERCs will be used in 2009 and as a result preventing 17.2 tpd of potential emissions growth. This approval is conditioned on TCEQ's adoption and submittal of a complete SIP revision. Consequently, in order for EPA to fully approve the SIP, the State will need to have an enforceable rule in place that would not allow 17.2 tpd of the 20.4 tpd banked DERCs currently modeled in the state's 2009 Combo 10 and PDMR 2009 modeling, to be used beginning March 1, 2009.

The modeling submitted May 30, 2007 did include 20.4 tpd of banked DERCs in the 2009 future projections. Relying upon the State's commitment to revise the DERC rule to limit the use of banked credits to 3.2 tpd in 2009, it is appropriate to reduce the 2009 future modeling projections to 3.2 tpd in 2009. (For the calendar years after 2009, there will be an enforceable mechanism to equate to the limit of 3.2 tpd.) EPA therefore adjusted the modeling projections in Table 3 of the proposal (also included in the MOAAD TSD) to assess the impacts of the revised future projections. This was done to provide a modeling projection that reflected the inclusion of banked DERCs of 3.2 tpd in 2009. This approach is consistent with what would have been projected if TCEQ had redone the SIP modeling with 3.2 tpd for the banked DERCs instead of the 20.4 tpd that was included in the Combo 10 and PDMR 2009 modeling. EPA then used the revised 2009 modeling projections in conjunction with other modeling based analysis and WOE considerations in our review of the entire attainment demonstration.

The commenter is correct in the assessment that DERCs have not been used in the past and past air quality exceedances did not include any impact from DERC usage (since DERCs have not been used in the DFW area). Now, with the commitment to adopt a restriction on DERC use, it is not appropriate to continue with the assumption that all of the DERCs in the bank will be used in the attainment year in the future year modeling.

Because DERC use did not impact past exceedances (again because DERCs have not been used in the past), EPA did not consider the banked DERCs 2009 usage restriction, as part of our emissions and ambient trends analysis that we performed in our WOE evaluation; rather, it is only in the modeling where it was considered. Consistent with the commenters concerns, EPA was careful in our WOE evaluations and review to not consider the revised 2009-banked DERCs usage restriction in our emission trends analysis and monitoring trends analysis. For example in Table 5-11 of the MOAAD TSD, estimating the actual emission reductions between 2007 and 2009, EPA did not include any reductions due to the restriction on DERC usage. Therefore, EPA believes that we have appropriately considered the revised banked DERCs tpd usage restriction in adjusting assumptions about possible future emissions growth in the modeling but consistent with the commenter's concerns, we have not considered it in evaluating emissions and monitoring trends (analysis included in the WOE analysis). For a full discussion of DERCs and conditional approval, see the DERCs comments section below.

Comment (MC-9) : The commenter indicated that EPA's reliance upon the low 2007 monitor readings is misplaced since extremely unusual weather, rain and low temperatures, dominated the 2007 DFW ozone season. The commenter continued that the first 100+ °F temperature day was not reached until late August. The commenter concluded that EPA should not give TCEQ credit for something achieved only by the grace of God.

Response (MC-9) : We rely on the 2007 monitored air quality levels as part of our Weight of Evidence analysis. We investigated the 2007 meteorology to determine how it compared with the DFW normal ozone season meteorology. To help account for all the different variables that impact the frequency of ozone we utilized a Meteorological Adjusted Trends analysis that was done by EPA personnel at Office of Air Quality Planning and Standards (OAQPS) for the DFW area to assess the ozone conduciveness of the 2007 ozone season. OAQPS's analysis utilizes temperature and precipitation data in addition to several other factors. The results of this analysis were included in our proposal, and indicated that overall 2007 was near the normal meteorology for DFW's ozone season. See Chapter 5, section 5.15 and Chapter 6, section 6.3 in the MOAAD TSD.

The commenter asserts that the 2007 ozone season was biased low due to the influence of more rain than normal and less 100 °F days than normal. EPA reviewed monthly meteorological National Climatic Data Center 2007 data for DFW International Airport (for the DFW ozone season months of March 1-October 31). We evaluated average monthly temperature, monthly average maximum temperature, and monthly precipitation. Looking at this temperature information and precipitation data, EPA's assessment is that, while for several months the precipitation was above average, the ozone season and the core ozone months (June-September) were near normal overall. For more information, see the Supplemental TSD. Ozone formation is affected by a number of meteorological parameters and just looking at these three parameters does not give a complete evaluation of the ozone conduciveness of the 2007 ozone season.

The commenter was concerned that the meteorology was unusually nonconductive for generation of ozone exceedances in 2007. In light of this, EPA also reviewed ozone exceedance data for 2007, and found that the first exceedance occurred April 28th, and a number of exceedance days occurred starting in late July (7/24) and the last exceedance occurred on October 4th. In all, there were 12 days with exceedances at one or more monitors in the DFW area in 2007. This is below the long-term normal trend of approximately 30 exceedance days per year. The limitation of just evaluating the number of exceedance days to determine if meteorology was normal or below normal is that exceedance days are a combination of meteorology and emissions. Emissions decreases due to fleet turnover among other things could also explain part or all of a lower than normal number of exceedance days in 2007.

Finally, we note that one reason we evaluate attainment of a NAAQS based on three years of data is that use of several years tends to mitigate any unusual meteorology that occurs during a specific year. The year 2007 is the first of the three years of data (2007-2009) that will be used for determining if the DFW area reaches attainment in 2009. The 2007 4th high maximums were all in the 80s ppb range or less for monitors that are typically near the area's design value. This is significantly lower than other recent years. Meteorological Trends analysis indicates that 2007 was closer to normal than 2005 and 2006. Therefore, the 2007 data is important from both a trends perspective as well as being the first of three years utilized in determining if the area reaches attainment in 2009.

Comment (MC-10) : The commenter indicated the DFW emissions inventory has gaps and that EPA knows that there are hundreds of industrial sources involved in the gas well drilling and gas pipeline operations that were not modeled by the TCEQ and which TCEQ assumed to be insignificant. The commenter asserted that without modeling these significant sources of NO X emissions, the attainment demonstration may be in greater jeopardy than EPA or TCEQ admits.

Response (MC-10) : The TCEQ projected the future emissions inventory for the industrial sources involved in the gas well drilling and gas pipeline operations with the most recent information available at the time of the emissions inventory development. Photochemical modeling is a very complex process and the emissions from natural gas production in the DFW area were rapidly changing during the last two years of modeling and SIP development and continue to do so. Improving emission estimates and projections is one of the elements of photochemical modeling that always requires an agency to balance the need to incorporate new information with the time available to complete the photochemical modeling tool for SIP development, and still meet the submittal deadline.

TCEQ's basecase and future year (2009) SIP modeling did include estimates for emissions from industrial sources involved in gas well drilling and pipeline operations. During the commissioners meeting when the TCEQ adopted the DFW attainment demonstration SIP in May 2007, there were industry comments indicating emission estimates from natural gas compressor engines should be higher than were in the current modeling. Although the commissioners moved forward to adopt and timely submit the DFW 8-Hour Ozone attainment demonstration SIP, they also directed TCEQ staff to research the accuracy of the emissions inventories for these sources that were relied on in the attainment demonstration modeling. TCEQ staff subsequently conducted an additional survey to re-evaluate the number of stationary, gas-fired engines and other NO X emission sources that are common at natural gas production and gathering (P&G) facilities, in the nine-county DFW area. TCEQ provided that information to EPA as supplemental WOE in a letter dated April 23, 2008, which EPA has considered in its decision on whether to approve the attainment demonstration SIP. Details of this survey, the results, and explanation of how this information was utilized in EPA's review were included in the proposal package (Proposal FRN, MOAAD TSD, etc.).

The survey collected data on existing NO X sources and expected additional installations by 2009 so that a comparison to estimated levels in the 2009 SIP modeling could be conducted. The survey also collected data on when the NO X emitting sources were installed. The survey indicated that P&G operations grew much more rapidly than projected in the SIP. Based on the survey results, TCEQ concluded that the majority of emissions growth would come from the increase in compressor engines and not from other facets of P&G operations. TCEQ therefore provided new estimates for the compressor engines' emissions growth.

The survey indicated that almost all of the rapid growth that created the underestimation of additional engines and other related NO X sources from natural gas P&G emission sources had occurred after the 1999 base year. Fortunately, TCEQ put in place regulations that will control rich and lean burn natural gas fired compressor engines in the DFW area. TCEQ also controlled some engines involved with drilling operations in the Increment of Progress SIP.

From the modeling perspective, using the new survey's results, the underestimation in the growth of emissions is greatly mitigated by TCEQ's implementation of NO X controls on emission sources in this industry group in Chapter 117 rules adopted as part of the May 30, 2007 SIP submission. While mitigated to a large extent, the new survey data indicate that emissions in the demonstration modeling, i.e. , the 2009 Combo 10 modeling, from these natural gas P&G sources would add 3.3 tpd based on our analysis of the TCEQ survey data. Using modeling sensitivity runs, we accounted for this approximate increase of 3.3 tpd in the projected emissions inventory, and we were able to estimate the effect on the modeled ozone levels. See Table 4 in the proposal. In considering the underestimation from a 'real world' standpoint, it is important to note that due to TCEQ's adopted regulations, a much larger amount of actual reductions of NO X emissions (estimated as 35.7 tpd) will occur between 2007 and 2009 from the regulations on compressor engines and these extra reductions will help reduce DFW area ozone levels.

While these emissions were not fully accounted for in the initial photochemical modeling, TCEQ had developed the emission inventory for this industry group consistent with EPA's guidance. EPA appreciates the additional survey information that TCEQ provided and, EPA considered the emissions in reviewing the attainment demonstration and found that TCEQ's revised emission estimates were acceptable. This information was clearly presented as part of the proposed rulemaking action and the commenter has not identified any substantive flaws with that analysis.

Comment (MC-11) : The commenter indicated that the emissions inventory appears flawed, in part from the observation that the latest VOC area source emissions inventory was unaffected despite the substantial revisions to the gas drilling/compressor engine count, as reflected in revised NO X area source inventory revisions. The commenter further indicated that VOC emissions from the engine stacks, and fugitive emissions from the piping and valves that connect the engines, appear not to have been incorporated into the emissions inventory, and more importantly, not to have been considered in the photochemical modeling. The commenter asserted that the absence of these emissions in the revised inventory placed additional doubt on to the accuracy of the photochemical modeling to predict ozone levels in the western part of the nonattainment area.

Response (MC-11) : The commenter is correct that the VOCs from P&G facilities in the DFW area may be underestimated, since the number of P&G facilities and related NO X sources had a large underestimation. As provided above, there are inherent uncertainties with emissions inventories. Unlike the NO X emission discussed previously, however, the VOC emissions from natural gas production are largely compounds that are not significantly reactive in the formation of ozone. EPA defines “Volatile Organic Compounds” (VOCs) per 40 CFR Part 51.100(s) (as amended through January 18, 2007) and specifically lists Methane and Ethane as organic compounds that have been determined to have negligible photochemical reactivity. Methane and ethane are typically 85-90% or more of the compounds present in natural gas from gas wells so emissions from natural gas production would be expected to have a small impact on ozone production. In addition, modeling sensitivity analyses have shown that large reductions in all VOC emissions in the DFW area result in only very small changes in the area's ozone concentration level. Therefore, an underestimation of P&G VOC emissions would not change the Combo 10 and PDMR 2009 modeling projections significantly. See Section 4.2 of ENVIRON's “Ozone Benefits in DFW from Emission Controls in the 2009 and 2012 Future Years,” September 2006, included as a reference to Chapter 2 of the TCEQ TSD.

TCEQ did not collect data on VOC sources in the 2007 survey that they conducted of natural gas P&G facilities in the DFW area. TCEQ focused on NO X emission sources in their survey since numerous photochemical modeling analyses had shown that elevated ozone levels in the DFW area were much more sensitive to changes in NO X emissions than VOC emissions. For these same reasons, EPA does not believe that uncertainty in the natural gas P&G VOC emissions would result in a significant change in modeling projections or change our conclusion that the DFW area will attain the 1997 ozone standard by its attainment date.

Comment (MC-12) : The commenter indicated that the Base Case Monitoring Data is skewed because it relies on the 1999 episode and, focusing on the Frisco Monitor, misrepresents the greater and more current problems associated with monitoring data from monitoring stations to the northwest and west. The commenter continued that the use of this 10-year old base case set results in under-emphasis of the effect of the numerous sources, including the Ellis County cement kilns, Barnett Shale natural gas and oil drilling, and EGU's to the south of the metroplex which often have their plume carried in southeasterly winds into Tarrant County. The commenter asserted that the 1999 data set is flawed due to the unusual meteorological conditions as well as its overall lack of representativeness and that Texas must be directed to develop additional base case data sets for SIP planning efforts.

Response (MC-12): EPA does not agree with the commenters' assertions for several reasons. As discussed in Section 2.3 of EPA's MOAAD TSD, EPA reviewed this 1999 episode and found it to be acceptable and representative of the combination of meteorology and emissions that generate ozone exceedance levels near the DV of the area at the time episodes were being selected for development of this SIP. The 2009 modeling projections evaluate ozone levels at all the monitors in the DFW area and, for this episode, both the Denton and Frisco monitors had the highest FDVs; therefore, the emphasis was not just on the Frisco monitor as the commenter asserts.

Photochemical grid modeling takes several years to develop and thus, at the time of submittal of a SIP, the episodes are typically several years old. Selection of episodes to model for SIP planning is a balance of finding historical periods with several days of exceedances that are representative of the conditions that generate ozone near the design value for the area and developing acceptable base case modeling in time to allow for a timely submittal of an attainment demonstration. At the time that TCEQ proposed the DFW attainment demonstration SIP in December 2006, the episode was just over 7 years old, not 10 years old as the commenter indicated.

Chapter 2 of the MOAAD TSD included sections that detailed EPA's guidance on episode selection, how the episode was originally chosen and further discussion and review that occurred in 2005 about the adequacy of this episode and the potential benefits of other episodes The DFW area monitors that have been DV monitors or had values near the area's DV for the period 1999-2005 (the period that was reviewed for potential episodes was 1998-2004) indicates that all of these monitors have been either north of the DFW area (Frisco monitor) or in the northwest sector (Tarrant and Denton Counties monitors). EPA has done a detailed review of both TCEQ's analyses and EPA's analyses of the conceptual model for high ozone in DFW and what monitors are the DV monitors. In years when light winds are more predominantly from the south, the northern monitors (Denton and Frisco) are the DV monitors. Other years, the winds and frequency of light winds are predominantly from the southeast, resulting in the Tarrant and Denton Counties monitors becoming the DV monitors. The location of the DFW area's DV monitor depends on the distribution of the frequency of wind directions during ozone conducive meteorology, but it is consistently on the downwind side of the DFW area. In fact, assuming the preliminary monitoring data through October 31, 2008 does not change, the Denton monitor will be the DV monitor for the 2006-2008 period. Preliminary data also indicate that the Denton monitor may be the DV monitor for the period 2007-2009 (based on 2007 and 2008 monitoring data). Approximately 70% of the local NO X emissions that lead to high ozone levels are emitted from mobile (On-Road and Nonroad emission sources) and the highest ozone levels typically occur downwind of the core DFW emissions area. Figures 3 & 5 of TCEQ's Appendix B of their SIP submittal illustrate the distribution of NO X emissions from On-Road and Nonroad emissions. Modeling, monitoring, and aircraft flights confirm that the highest levels of ozone occur downwind of the core DFW emissions area. As discussed above, the Frisco and Denton monitors are often downwind of the core DFW emissions area. Therefore, EPA does not agree that this episode, the control strategy, and the SIP overall are biased by the Frisco monitor being one of the highest ozone monitors in the base year.

The commenter asserted that using the 1999 episode results in under-emphasis of the effect of the numerous sources, including the Ellis County cement kilns, Barnett Shale natural gas and oil drilling, and EGU's to the south of the DFW metroplex which often have their plume carried in southeasterly winds into Tarrant County. As discussed elsewhere in this response and in EPA's MOAAD TSD, EPA conducted a thorough review of EPA's episode selection guidance, conceptual model for high ozone events in DFW, and episodes available for modeling at the time of episode selection and EPA determined that this episode was appropriate and acceptable. EPA does not recommend episode selection be based on trying to target specific industry/emission sources but should weigh a number of factors in selecting episodes for photochemical grid modeling to be utilized for SIP development as was done in this situation.

Afternoon wind from the southeast is one of the more prevalent wind directions for high ozone in the DFW area. In TCEQ's conceptual model description for high ozone events in the DFW area, morning winds out of the south or southwest often occur and then transition to out of the southeast or east in the afternoon. Therefore, the sources mentioned can impact the Denton and Frisco monitors for some of the hours of the day (that contribute to a high 8-hour ozone value). This episode has two days with winds from the southeast in the afternoon (8/17 and 8/22). August 17th had winds out of the southwest in the morning that transitioned to winds out of the southeast in the afternoon. Forward wind trajectories for the 17th indicate the emissions from the Ellis County cement kilns were carried over the Frisco and Denton monitors. On the 17th, it is also likely that emissions from the other sources mentioned would also be carried over the Denton and potentially Frisco monitors. Even on days that the winds do not take emissions from these sources over the Frisco and Denton monitors, the modeling still utilizes these emissions (and changes in these emissions) in projecting ozone levels in the modeling domain. Among modeling analyses that can be impacted by emission reductions at these sources are changes in ozone exceedance metrics, such as number of grid cell 8-hour ozone exceedances predicted and other metrics that consider the level of exceedances predicted for each grid cell.

In summary, EPA has reviewed the episode and determined that the episode is representative of the conditions most often associated with high eight-hour ozone in the DFW area.

Comment (MC-13): Commenters indicated that the future case attainment demonstration modeling included NO X reductions from Phase I Clean Air Interstate Rule (CAIR) controls for EGUs outside of Texas. Commenters indicated that since these reductions are now unlikely to occur, at least on the original timeframe, the anticipated ozone air quality benefits will be reduced. Commenters asserted that EPA should consider this effect on the modeling and the WOE analysis.

Response (MC-13): The EPA has considered the impact of a CAIR vacatur and determined that even an immediate vacatur of CAIR would not change our conclusion that the modeling and weight of evidence show that the DFW area will attain the 1997 8-hour ozone standard by the deadline. The principal reasons for this conclusion are: (1) Chapter 117 rules in the Texas SIP implemented in the entire eastern half of Texas are equivalent to the Phase I rules of CAIR; (2) evaluation of controls already installed in the nearest States impacted by CAIR, Arkansas and Louisiana, show that significant reductions will still be implemented; (3) many of the more distant states impacted by the CAIR vacatur are also subject to the NO X SIP call so much of CAIR Phase I NO X reductions will remain in place; and (4) available modeling shows that loss of CAIR only has a small impact on the DFW area.

Texas implemented NO X controls on EGUs in the entire eastern half of Texas that are approved into the Texas SIP, are enforceable, and are equivalent to reductions from CAIR Phase I for East Texas EGUs. The rules can be found in Texas Administrative Code Title 30 Part 1 Chapter 117 Subchapter E Division 1 (117.3000-117.3056). Therefore, the level of NO X reductions from EGUs within the entire eastern half of Texas for the 2009 period is not related to the status of the CAIR rules. With regard to EGU emissions in the western half of Texas, EPA has concluded that emissions from these sources would rarely be transported to the DFW area during periods of high ozone in DFW. Thus, any changes in emissions from Texas EGUs related to a vacatur of CAIR are not expected to impact DFW ozone exceedance levels prior to the attainment date.

In fact, the main change in emissions in the DFW photochemical modeling domain due to a CAIR vacatur is for CAIR states that were not part of the NO X SIP call and were outside of Texas. Of these states, Louisiana and Arkansas are the closest upwind states to DFW and would be expected to have the largest potential impact on ozone level changes in DFW due to the CAIR vacatur. We have reviewed EPA's Clean Air Market's Division National Electric Energy Data System database (July 2008 version) that tracks equipment that has been installed to meet the CAIR requirements for the EGUs in these two states. Our evaluation of controls installed at facilities in Arkansas and Louisiana considered whether installed controls were integral to operation of the unit (example: Low NO X Burners), or if the controls could be shut-off (Example: Over-fire Air) or potentially bypassed (SCR). We have also conferred with Louisiana and Arkansas Departments of Environmental Quality in an attempt to confirm the information in the database.

Our analysis of Louisiana major EGU's indicates that most controls are based on Over-Fire Air or SCR (based on discussions with LDEQ (September/October 2008)). However, the Dolette Hills is the closest large Louisiana coal-fired EGU that is outside Texas and has the highest potential to impact DFW area ozone levels of any coal-fired EGU outside of Texas. It is often upwind of the DFW area when the DFW area has elevated ozone levels. Low NO X burners and Over-Fire air have been installed at the Dolette Hills unit to reduce NO X emissions. In the absence of CAIR, it is possible that the utilization of Over-Fire air could cease, but the Low NO X burners are integral to the boiler operation and cannot be bypassed. Therefore, even if the Over-Fire Air were not operated there would still be permanent large NO X reductions on the order of 2000 to 3000 tpy of NO X (based on Discussions with LDEQ) compared to 4000 to 5000 tpy of NO X with Over-Fire Air and Low NO X Burners.

Our analysis of EGUs in Arkansas indicates that for the coal-fired EGU's, most are being controlled with Over-Fire Air, but one 523 MW unit is being controlled with Low NO X burners that have been installed and should remain installed. For the gas-fired EGUs, most are being controlled with Dry Low NO X burners in combination with SCR. The Low NO X Burners are integral to the operation. The SCR, however, conceivably could be turned off. Dry Low NO X burners can achieve up to a 30% reduction by themselves so significant reductions will still occur.

Therefore, even with a vacatur of CAIR, significant reductions will still occur in Arkansas and Louisiana including at the closest, upwind plant, Dolette Hills. As for the reductions in other States impacted by a CAIR vacatur, many of these States were part of the NO X SIP call. The NO X SIP call reduction requirements remain in place. States affected by the NO X SIP call include: Alabama, Connecticut, Delaware, Georgia, Illinois, Indiana, Kentucky, Maryland, Maine, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Virginia, West Virginia and the District of Columbia. While some states' rules implementing the NO X Budget Trading Program (established by the NO X SIP call) have a sunset provision in anticipation of being replaced by the CAIR ozone-season trading program, EPA expects the majority of controls to remain in place. EPA has asked States with sunset provisions to move quickly to address this concern.

We believe that it is reasonable to consider that the reductions identified above will occur because the previously installed controls are integral to the operation of the EGUs and are not likely to be bypassed or circumvented or are required to comply with regulations implementing the NO X SIP call.

EPA also considered available modeling evidence in considering the impact of a CAIR vacatur. First, the photochemical modeling upon which the CAIR rule itself was based did not result in any other State being included in the CAIR rules because of its impact on the DFW area. In other words, no state was included in CAIR because of its impact on the DFW area.

No modeling exists that directly evaluates the impact of a CAIR vacatur on the modeling episodes used in the final DFW SIP modeling so it is not possible to directly evaluate the impact on Combo 10 or PDMR 2009 control strategy runs. EPA has found two modeling analyses that help to evaluate the potential impact of the CAIR vacatur on DFW ozone levels.

We also have reviewed sensitivity modeling that evaluated potential CAIR impacts conducted on an earlier version of DFW modeling. This modeling was included in the HARC 35 Project Phase II Report (“Dallas/Fort Worth CAMx Modeling: Improved Model Performance and Transport Assessment Project H35, Phase 2”; ENVIRON; August 2005). The H35 Phase II report evaluated the impact of the CAIR emission reductions throughout the Eastern U.S. on DFW ozone levels in 2010. The report included a bar chart (Figure 10-4), showing episode average contributions to high 8-hour ozone in the DFW 9-county NAA by source region and emissions group. Side-by-side bars show the subtle changes due to the CAIR EGU controls. Controls expected from CAIR reduced episode average high ozone in the DFW NAA by 0.3 ppb. The episode peak ozone was also lowered 0.3 ppb over DFW from the CAIR controls. This early modeling did not include some of the later emission inventory and meteorological refinements, but a new evaluation with the modeling submitted with the attainment demonstration would not be expected to yield significantly differing results.

We also looked at some earlier modeling that was included in Table 4-1 of the H35 Phase I Report (HARC Project H35, Transport Contributions From Out-of-State Sources to East Texas Ozone, February 2005). The H35 Phase I report indicated that controlling a 25% NO X reduction on all EGUs in Arkansas, Louisiana, Mississippi, Missouri (NO X SIP call state), Oklahoma (non-CAIR state), Tennessee (NO X SIP call state), and the Gulf of Mexico (non-CAIR area) yielded a 0.1 ppb reduction in ozone on average 2007 elevated ozone levels (evaluated levels above 75 ppb and 85 ppb) in DFW area for the DFW's SIP episode. While this analysis is for 2007 and conservatively includes 25% NO X reductions in two NO X SIP call states, 25% reductions in Oklahoma (non-CAIR state), and 25% reductions in Gulf of Mexico EGUs; all of which are additional reductions not related to the CAIR Phase I rule. The 2007 modeling analysis is further evidence that the DFW area is not influenced by out-of-state EGU emissions at times when elevated ozone levels occur in DFW.

Both of these modeling analyses consistently show a picture that out of state reductions only have a small impact of 0.1 to 0.3 ppb or less on model projected design values in the DFW area. The two CAIR assessment analyses (EPA—Fall 2008 and H35 Phase II) are conservative because they remove all CAIR reductions from the modeling. This does not take into account that for non-NO X SIP call states, some CAIR controls will generate reductions because the controls are integral to the combustion process and will not likely be removed (Low NO X Burners, etc.). These two CAIR modeling analyses also rely on 2010 EGU projections, which include an additional year of EGU growth, compared to the growth that would be included for a 2009 evaluation. These modeling evaluations over predict for NO X during the 2009 ozone season because many states will still have in place NO X controls required by the NO X SIP call.

The worst-case assessment of a 0.1 to 0.3 ppb increase on model projected FDVs, in itself, is small enough that for most model projections, no change in the truncated ppb value would occur. Given that the actual impact of a vacatur on emissions would be smaller than in these worst case analyses, EPA believes that the status of the CAIR rules should not impact our decision to approve the DFW attainment plan.

We have included further discussions of a vacatur of CAIR on the modeling and WOE analysis in a separate response to comment that addresses comments on the adequacy of the WOE analysis and the conclusion of whether the DFW NAA will reach attainment.

Comment (MC-14): The commenter indicated that the DFW attainment demonstration model has considerable challenges as detailed in the Notice of Proposed Rulemaking. The commenter noted that model development is a resource intensive process and the state simply needs to apply additional resources to this process. The commenter stated that throughout the development of the May 2007 SIP revision, the State indicated that it had insufficient resources to improve the attainment demonstration and incorporate alternative and more recent ozone episodes. The commenter concluded that the State has not allocated adequate resources to SIP development, including model development, to develop models robust enough to accurately predict ozone concentrations in the attainment year and beyond. The commenter then concluded that as part of any final action, EPA should advise the state that failures to program sufficient resources to meet CAA requirements in the future will not be accepted as justification of inadequate or incomplete demonstrations of attainment.

Response (MC-14): All states and other entities that conduct photochemical modeling must address competing priorities and determine whether additional work will provide significant additional value. They must consider several factors including the time available for completion of modeling of episode(s), updating of emissions inventories, the resources needed to conduct further refinements or additional episodes, and the overall benefit of delaying the project to conduct additional modeling work.

The commenter is correct that modeling is a very resource intensive process. Photochemical modeling requires creation of very detailed emission inventories and meteorological modeling to be used in photochemical modeling in an attempt to replicate a historical event when ozone exceedances have occurred. Once photochemical modeling has been created that performs sufficiently well, the basecase modeling can then be used in conjunction with future case modeling of the same meteorological conditions to test attainment demonstration strategies. It often takes many iterations of refinement of emissions and/or meteorological fields to result in basecase photochemical modeling that performs sufficiently in accordance with TCEQ's meteorological performance metrics and EPA model performance metrics.

As discussed in the proposal and the MOAAD TSD, TCEQ did consider and complete exploratory work on other episodes. But initial analyses indicated that the additional episodes would not give significantly different results compared to the existing episode. As we explain in Section 2.3 of the TSD, we believe in this case, the one episode is acceptable for control strategy development. EPA evaluated the preliminary analyses of other episodes and concurred that it did not appear that the additional episodes would alter the model projections on what was needed to reach attainment.

EPA believes that the episode selection is appropriate, and that the modeling was sufficiently robust. The demonstration modeling combined with the WOE analyses are sufficient to show that the DFW area will attain by the deadline.

Comment (MC-15): Commenters indicated that the DFW 8-hr ozone SIP proposal by TCEQ is significantly flawed and fails to support the required attainment demonstration by 2010. Commenters continued that the DFW modeling by TCEQ shows that several ozone monitors in 2010 will still exceed the rounded-up standard of 84 ppb. A commenter asserts that the CAA requires that SIPs show clear attainment for all ozone monitors in a nonattainment area and the reason that the air modeling shows exceedances in 2010 is because the proposed reductions by TCEQ are inadequate.

Commenters also indicated that according to Table 5 of the Federal Register notice, TCEQ's plan predicts that 2 monitors in the region would not meet the 8-hour ozone NAAQS after implementation of the control strategy (PDMR 2009) and consideration of TCEQ's Weight of Evidence. Commenters continued that they are aware that EPA's ozone implementation guidance allows a “Weight of Evidence” demonstration to supplement the modeling analysis required by the CAA but assert that this analysis fails to overcome the inadequacy of the TCEQ's proposed control strategy to bring the DFW area into attainment.

Commenters indicated that the proposal establishes repeatedly that ambient air quality is likely to remain above the artificial rounded-up standard of 84 ppb (Tables 2, 3 and 5). The commenters went on to assert that after disclosing that state WOE calculations fall short of meeting the attainment goal, EPA ultimately relies on their “simplistic” analysis concluding that 15% of the NO X emissions inventory will be reduced by existing measures not present in 2007. The commenters continued that given the degree to which design values have to fall, from 95 ppb to 84 ppb, and in light of the 2010 attainment date, EPA should consider that the drop in the NO X and VOC emissions inventories from 2007 to 2009 are completely insufficient, according to EPA's own studies and guidance, to bring about the drop in DVs needed to reach attainment. The commenters further continued that EPA's own analysis of the most recent TCEQ modeling shows that the State was only able to get all the area's predicted DVs below 88 ppb with a non-standard and non-approved calculation of RRF factors and EPA's own analysis with the proper RRF procedure showed that monitors were still above the 88 ppb threshold.

A commenter indicated that the WOE approach by the TCEQ is flawed since it fails to show attainment by 2010 and EPA needs to reject it as bad science.

Response (MC-15): We responded to comments on the TCEQ and EPA RRF methods in a separate response to comments above. Overall, EPA considered both RRF methods and the results of those methods in our review. Also, as explained in previous responses, we considered the results of modeling from both Combo 10 and PDMR 2009 modeling runs.

EPA disagrees with the commenter that the modeling alone must demonstrate attainment in order for EPA to approve the attainment demonstration. EPA discussed both in the DFW MOAAD TSD and the proposal, EPA's guidance on modeling and WOE usage. As with any predictive tool, there are inherent uncertainties associated with photochemical modeling (emission estimates, emission projections, meteorological modeling, chemical reaction equations and simplifications, etc.). EPA's guidance recognizes these limitations and provides approaches for considering other analytical evidence to help assess whether attainment of the NAAQS is likely. This process is called a WOE determination. EPA's modeling guidance (updated in 1996, 1999, and 2002) discusses various WOE approaches. This was further updated in 2005 and 2007 for the 1997 8-hour ozone attainment demonstration procedures to include a WOE analysis as an integral part of any attainment demonstration due to concerns of modeling uncertainties. This guidance strongly recommends that all attainment demonstrations include supplemental analyses beyond the recommended modeling. These supplemental analyses should provide additional information such as monitoring data analyses, and emissions and air quality trends, which help corroborate the overall conclusion from the photochemical modeling. EPA's modeling guidance specifically recommends that a WOE analysis be included as part of any attainment demonstration SIP where the modeling results predict FDVs ranging from 82 to less than 88 ppb (EPA's 2005 and 2007 A.D. guidance documents). It is important to note that EPA recommends a WOE analysis even if the modeling is demonstrating attainment at all the monitors. EPA's interpretation of the Act to allow a WOE analysis has been upheld. See 1000 Friends of Maryland v. Browner, 265 F. 3d 216 (4th Cir. 2001) and BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003).

In this case, the commenters are correct that the final modeling based projections show two monitors above attainment levels. Prior to conducting the model based projections, the highest modeling values were 88/89 ppb (TCEQ/EPA RRF method), but after modeling based adjustments were conducted to account for reduced airport emissions, DERC usage limitations, and back-up generator reductions, the highest value using either RRF was 88 ppb. EPA specifically recommends a WOE analysis be performed when modeling values are within the range indicated by the DFW analysis. 11

EPA's guidance (2005 A.D. Guidance) does indicate that a local 30% NO X reduction may only yield a 3-4 ppb change in modeling values. That assessment was based on coarser resolution photochemical modeling that is typically less responsive to emission changes than the finer grid modeling that was used in DFW. Here, EPA is relying on analyses that were done employing the DFW modeling to determine the potential change in ozone due to the additional NO X reductions that are estimated to occur by 2009. Relying on these DFW analyses, EPA estimates that the 25.4% local DFW area NO X reductions occurring between 2007 and 2009 would reduce ozone concentrations by approximately 3-4 ppb. As discussed in detail below, EPA is considering much more than just the modeling in making our conclusions on the adequacy of the attainment demonstration and determining that the 2005-2007 DV of 95 ppb will drop to attainment levels (84 ppb) in 2009.

EPA evaluated many factors in the WOE. These items include reductions not included in the modeling based projections (energy efficiencies), unquantifiable measures (AirCheckTexas, Dallas Sustainable Skyline Initiative, etc.), meteorological analyses of severity of ozone seasons (the base period and recent years, including 2007), most recent monitoring in 2007 (a 4th high of 89 ppb at two monitors and the other 18 monitors had 4th high values of 87 ppb or less), the court's vacatur of CAIR, progress in implementing the TERP program, and progress in implementing the early compliance incentive on natural gas compressor engines outside the DFW area. The amount of NO X reductions quantified in the SIP from the 2007 period that are estimated to occur by 2009 are approximately 15% of the estimated 2007 EI; these reductions will come from the existing federal, state, and local measures. When one includes the additional reductions due to the underestimation of emission reductions from compressor engines, the backup generators, and the State's progress in implementing TERP, there would be a 25.4% reduction in NO X emissions between 2007 and 2009, which could yield approximately a 3-4 ppb drop in ozone based on modeling projections.

In a response above, we concluded that 2007 had meteorology similar to normal meteorology. We also examined whether the 2008 data indicates a trend toward attainment for the area. We examined the 2008 preliminary data, which is awaiting QA/QC. The 2008 preliminary data show that the DFW area had 4th high values of 85 ppb at two monitors and at the other 18 monitors, the value was 84 ppb or less. The 2008 preliminary data indicate the 2006-2008 DV is 91 ppb (down from 95 ppb in using 2005-2007 monitoring data). For the monitor that has the highest average 4th high values in 2007 and 2008 and is likely to be the controlling monitor (or one of the highest monitors) for determining if the area reaches attainment based on 2007-2009 data, the monitor's DV for the 2007-2009 period would have to be less than 85 ppb. It is important to note that this monitor (Denton) had a preliminary 4th high value in 2008 of 84 ppb. Considering the 2008 preliminary data with most of the 4th highs of 84 ppb or less, and that much of the DFW SIP reductions and another year of fleet turnover are still to occur, the ambient air quality trend strongly supports that the DFW monitors will reach attainment in 2009. EPA believes that the closer an area is to its attainment date, the more weight should be given to the actual ambient data and the expected additional reductions in considering whether an area will reach attainment.

We have considered modeling using two emission reduction scenarios (Combo 10 and PDMR 2009), recognizing that the actual emission control level would be somewhere in between, and two types of RRF calculations. We have also considered the impact of additional measures and reductions documented in the April 23, 2008 letter. With these adjustments, the modeling is demonstrating significant reductions of 7-13 ppb in ozone from the base period, but is still slightly short of attainment. The modeling predicts values greater than 84 ppb at two of the nine monitors, but we believe, after evaluating additional evidence in a WOE analysis, that the area will attain by its attainment date. Specifically, we considered that the model's under-prediction of high ozone levels may be biasing the model predictions, and therefore potentially underestimating the ozone reduction that could occur due to the emission reductions achieved by local and regional rules. We considered the impact of meteorological adjustments to the design value projection, which would further indicate the future projections may be too high. We have recognized emission reduction efforts that have not been quantified and included in the modeling and model-based WOE estimates. We also considered and gave significant weight to non-modeling evidence of recent monitoring and projected NO X emission changes between 2007 and 2009.

We have also considered ambient data in 2008 and progress in implementing control measures in making our final conclusion on the DFW area's 8-hour Ozone SIP's Attainment Demonstration adequacy. For example, we weighed a vacatur of the CAIR rules and its potential impact on the DFW area. As discussed in detail in a response above, we concluded that the removal of CAIR may result in a change in 8-hour ozone modeling values of 0.1-0.3 ppb. We also considered that fewer engine controls were installed using the early compliance incentive money that was available.

We have also considered the progress in implementing the TERP program. This program has achieved all of the reductions that were projected in the May 30, 2007 submissions. These reductions were included in the modeling. In its April 2008 letter, Texas indicated that an additional 14.2 tpd of emission reductions could be achieved through the additional funding made available by the legislature. EPA relied on this projection as part of our weight of evidence evaluation in our proposal. As discussed in the response to comments on the TERP reductions, since our proposal notice, additional information has become available on the status of TERP projects and the State's progress in meeting its WOE projection of 14.2 tpd of NO X emissions reductions in 2008 and early 2009. Recently TCEQ announced they would be delaying the 2009 TERP grant application cycle, due to Hurricane Ike. Due to this unfortunate delay (the grant application cycle opened December 1, 2008), FY2009 grant money will be issued later than originally thought. Approval of grants will not likely occur by the beginning of the DFW ozone season (March 1, 2009), but approval of grants should start in the May to early June timeframe. While this is not by the beginning of the ozone season, it is soon enough that reductions could start occurring before the core ozone season and therefore additional reductions can be considered as weight of evidence.

This is confirmed by an examination of 2004-2007 and preliminary 2008 monitoring values for the typical design value monitors (north and northwest sides of the DFW area) which is included in the supplemental TSD. It shows that the 1st to 4th high 8-hour ozone values (values that are utilized in setting the area's DV) are usually set in the June through September timeframe.

Since the approval of FY2009 grants should start before or during the beginning of the core ozone period for the DFW area, some additional reductions can be considered as WOE. At this point, it seems unlikely that the full 14.2 tpd will be achieved even by the core ozone season. To evaluate the impact, we assumed that TCEQ would achieve approximately 70% of the originally projected 14.2 tpd; consequently, there might be a loss in reductions of approximately 4.2 tpd. See the Supplemental TSD. Then in looking at the modeling based WOE, the increase in projected NO X would yield approximately an additional 0.10 to 0.22 ppb at the monitors with the highest FDVs. We have also revised our estimate of actual reductions between 2007 and 2009 to consider this potential loss in TERP emission reductions. Rather than the 26% we considered at proposal, our new estimate is a 25.4% reduction of the estimated 2007 emission levels.

Finally, over half of the previously discussed 25.4% reductions of NO X emissions (between 2007 and 2009) in the DFW area are slated to occur between the 2008 and 2009 ozone seasons. Due to these large local reductions, we expect the 2009 ozone levels to be lower than 2008 levels.

In summary, EPA has considered a number of factors. As pointed out by commenters, some control strategies, notably CAIR and TERP, are likely not going to achieve the reductions originally expected. As discussed above, we considered the impact of these factors to be relatively small. We believe that at this time, with the attainment date only months away, we should give considerable weight to the recent air quality trends and to expected further reductions that will occur before the 2009 core ozone season. Therefore, considering all of the factors discussed above with the elements we considered in the proposal (available modeling, evidence, analyses, and adopted control strategies) and the comments we received, EPA believes the DFW area will reach attainment of the 1997 8-hour ozone standard by its attainment date.

Comment: A commenter states that EPA's conditional approval of the DFW attainment demonstration does not provide for adequate public review and comment on the measures TCEQ has committed to implement. The commenter is concerned that the public will not have the opportunity to review and comment on the DERC flow control limit.

Response: Section 110(k)(4) of the Act authorizes conditional approval of “a plan revision based on a commitment of the State to adopt specific enforceable measures by a date certain, but not later than 1 year after the date of approval of the plan revision.” Conditional approval is authorized when a SIP contains substantive, but not fully satisfactory, provisions, and the State commits to submit specific enforceable measures to cure the deficiencies. We have proposed to conditionally approve the DFW attainment demonstration conditioned on the TCEQ submitting a complete SIP revision by March 1, 2009, that includes an enforceable mechanism providing a 3.2 tpd restriction on the amount of DERCs available for use in the DFW area starting March 1, 2009. If the State wishes to use more than 3.2 tpd of DERCs in the DFW area after 2009, there must be an enforceable mechanism that provides for increases above 3.2 tpd beginning January 1, 2010 as long as this increase is consistent with attainment and maintenance of the standard.

Section 110(a)(2) of the Act and 40 CFR Part 51 require the State to conduct a 30-day public comment period and hold a public hearing on a proposed SIP revision submittal. Further, the State must include in the adopted SIP revision submittal a response to all the received comments. The TCEQ has proceeded with a proposed rulemaking and held a public comment period, pursuant to the requirements of the Act and 40 CFR Part 51, from August 6 through September 12, 2008, on the proposed DERC SIP revision to meet the condition. Additionally, the State published the proposal in the Texas Register and held public hearings on September 9, 2008, in Dallas, Texas and on September 10, 2008, in Arlington, Texas. EPA and others provided comments.

Upon receipt from the TCEQ of a complete DERC SIP revision, EPA will review it and propose action in the Federal Register . In this notice, we will provide, as required by the Act, an opportunity for a 30-day public comment period.

The public is provided with three separate opportunities to review and comment on the DERC SIP revision—during (1) the comment period for EPA's proposed conditional approval of the DFW attainment demonstration; (2) the comment period for the State's proposed rulemaking; and (3) the comment period for EPA's proposed action on the DERC SIP revision. Thus, EPA finds that there are ample opportunities for public review and comment on the DERC SIP revision.

Comment: A commenter states that EPA's conditional approval of the DFW attainment demonstration relies upon the DERC rule; yet EPA has only conditionally approved the DERC rule into the Texas SIP. The commenter states that emission credits subject to the DERC rule should not be relied upon as part of the attainment demonstration SIP until EPA fully approves the DERC rule.

Response: As noted in the previous response, the Act authorizes conditional approval based on a State's commitment to adopt specific enforceable measures by a date certain. If the State fulfills its commitment with respect to the DERC flow control limit and EPA approves the submission, we believe the attainment demonstration will include all enforceable measures necessary to attain by the attainment date. The attainment demonstration cannot be fully approved until the State submits and EPA approves the revision to the DERC rule providing for the 3.2 TPD flow control limit. In the interim, as provided in the Act, the plan may be conditionally approved with a commitment to submit the necessary DERC rule revision.

As the commenter notes, the DERC rule is already conditionally approved (see 71 FR 52703, September 6, 2006). In our final conditional approval of the DERC rule, we stated that a conditional approval is treated as a full approval until such time that EPA takes action to disapprove the rule. Therefore, it is acceptable for TCEQ to continue allowing DERCs to be used within the DFW nonattainment area.

Further, the terms of the 2006 DERC conditional approval do not directly impact the DFW attainment demonstration and its DERC flow control condition. TCEQ committed to making the following revisions to the DERC rule in their September 8, 2005, commitment letter and to comply with these commitments during the 2006 DERCs conditional approval period:

1. Revise Title 30 Texas Administrative Code (30 TAC) § 101.373 to prohibit the future generation of DERCs from permanent shutdowns and to allow DERCs generated and banked from permanent shutdowns prior to September 30, 2002, to remain available for use for no more than five years from the date of this letter.

2. The TCEQ will perform a credit audit to remove from the emissions bank all DERCs generated from permanent shutdowns after September 30, 2002. Even if the shutdown itself occurred before September 30, 2002, no DERCs can be generated from that event after September 30, 2002.

3. Revise 30 TAC §§ 101.302(f), 101.372(f)(7) and 101.372(f)(8) to clarify that EPA approval is required for individual transactions involving emission reductions generated in another state or nation, as well as those transactions from one nonattainment area to another, or from attainment counties into nonattainment areas. The TCEQ further understands that the EPA would require a SIP revision prior to approving a transaction between another state or nation, as well as those transactions between counties not located within the same nonattainment area.

4. The TCEQ will revise Form DEC-1, Notice of Generation and Generator Certification of Discrete Emission Credits; Form MDEC-1, Notice of Generation and Generator Certification of Mobile Discrete Emission Credits; and Form DEC-2, Notice of Intent to Use Discrete Emission Credits, to include a waiver to the federal statute of limitations defense for generators, and users of DERCs and mobile discrete emission reduction credits (MDERCs). Please be reminded that there is currently no applicable state statute of limitations in the State of Texas. In addition, the TCEQ will maintain its current policy of preserving all records relating to DERC and MDERC generation and use for a minimum of five years after the use strategy has ended.

5. Revise 30 TAC §§ 101.302 and 101.372 to clarify that a proposed quantification protocol may not be used if the TCEQ Executive Director receives a letter from the EPA objecting to the use of the protocol during the 45-day adequacy review period or if the EPA proposes disapproval of the protocol in the Federal Register .

6. Revise 30 TAC § 101.306 to specify that Emission Reduction Credits may be used within the highly reactive volatile organic compounds Emissions Cap and Trade program as an annual allocation of allowances as provided under 30 TAC § 101.399.

TCEQ submitted revisions to the DERC program on October 24, 2006 to address the 2006 condition. EPA is currently reviewing this SIP revision submittal and will take action at a later date and in a separate rulemaking on whether TCEQ's revisions to the DERC program adequately satisfied the terms of the 2006 DERC conditional approval. In the meantime, the DERC program can continue to be used in Texas, including the DFW area. Conditions 1 and 2 pertain to DERCs generated through permanent shutdowns and provide that any shutdown DERCs generated prior to September 30, 2002, in the DFW area would be available for use until September 8, 2010. Projected uses of these pre-September 30, 2002 shutdown DERCs were appropriately modeled and accounted for by TCEQ as part of the overall DERC usage projections in DFW. Emission reductions subject to condition 3 do not impact the DFW attainment demonstration since EPA has not been contacted about using discrete emission reductions in the DFW area that have been generated in another state, nation, nonattainment area, or surrounding attainment counties. Conditions 4 and 5 modify the DERC rule to align the DERC generation and use procedures with EPA's Economic Incentive Program Guidance. These conditions do not negatively impact the projected uses of DERCs that were accounted for in the DFW attainment demonstration. Condition 6 only applies to DERCs used in the Houston/Galveston/Brazoria ozone nonattainment area and is therefore not applicable to the DFW attainment demonstration.

As discussed previously, TCEQ submitted revisions to the DERC program on October 24, 2006 to meet the 2006 DERC condition. EPA is currently reviewing these revisions to the Texas SIP and will take action in a separate rulemaking. These revisions, as noted above, have no impact upon the DFW area's attainment demonstration SIP and its reliance upon DERCs.

Comment: Commenters believe that the DERC usage limitation should be required every year rather than allowing a different approach after 2009. Commenters also believe that the enforceable flow control mechanism lacks specificity, may be backsliding (contrary to the Act's requirements) and may not demonstrate continued attainment of the 1997 ozone standard in the DFW area.

Response: Commenters will be able to address the substance of the DERC flow control SIP revision and its effect on the attainment demonstration once it is submitted to EPA. Until the State adopts and submits this revision to the DERC rule, it is premature to speculate about what the State might choose to do. However, we note that so long as the State demonstrates that the adopted rule will not interfere with attainment by June 2010 and maintenance of the NAAQS in the following years, EPA cannot mandate that the State apply the same approach in subsequent years that it chooses to apply in 2009.

In our proposed conditional approval of the DFW attainment demonstration, we described the requirements of the 2009 DERC flow control condition and the enforceable mechanism that must relate it to the DFW attainment demonstration. We specifically recognized that the DERC usage limitation did not need to be required every year after 2009. For all years after 2009, the TCEQ will have the option to retain the 3.2 tpd DERCs usage restriction or choose to increase the amount of tpd of DERCs usage, as long as there is an enforceable and replicable mechanism in place to ensure the increase in tpd of DERCs usage as offset by other measures, continues to ensure attainment in the area by having the same impact as if the 3.2 tpd DERCs usage restriction remained in effect. This includes the quantity and spatial allocation impacts of increased tpd of DERCs usage on the ozone levels. Therefore there would be no backsliding, even if the amount of tpd of DERC usage increased.

In our proposal, we described a specific enforceable mechanism that would be acceptable concerning the substitution of other measures beginning January 1, 2010, allowing more than 3.2 tpd of DERCs usage in a year. As discussed in our DERC response to comments number 1, the public will receive three opportunities to review and comment on the merits and nature of the 2009 DERCs limit and the after-2009 enforceable mechanism in the DFW area—during (1) the comment period for EPA's proposed conditional approval of the DFW attainment demonstration, (2) the comment period for the State's proposed rulemaking, and (3) the comment period for EPA's proposed action on whether the condition has been met.

EPA believes that with the public review and comment opportunities provided, as well as the specifications outlined in our proposed conditional approval rulemaking, there will be sufficient opportunities to ensure that EPA has received relevant comments and information to allow EPA to make an informed decision on the acceptability and enforceability of the TCEQ's DERCs SIP revision submittal.

Comment: Commenter states that the DERC emission reductions relied on in the DFW attainment demonstration are inadequate.

Response: While EPA appreciates the effort and time of the commenter, the commenter has not provided any substantive description of why the DERC emission reductions relied on are inadequate for attainment.

Comment: Numerous commenters note that the cement plants in the DFW area are the largest source of industrial NO X emissions in the DFW area. They claim there is available technology that would reduce NO X emissions by 90% and the companies should be required to install Selective Catalytic Reduction (SCR) as NO X RACM. They also note that the cement kilns are a large source of VOC emissions in the area but only one of ten kilns in Midlothian uses modern controls to reduce VOC emissions by 90%. Further, they claim that all Midlothian kilns should be required to install this technology, i.e. , Regenerative Thermal Oxidizers (RTOs), as VOC RACM. Moreover, EPA needs to conduct an independent RACM analysis.

Response: EPA interprets the Act's RACM requirement to mean that a measure is not RACM if it would not advance the attainment date (57 FR 13498, 13560). 12 This interpretation has been upheld. See Sierra Club v. EPA , 294 F.3d 155 (DC Cir. 2002) and Sierra Club v. United States EPA , 314 F.3d 735 (5th Cir. 2002). A state must consider all potentially available measures to determine whether they are reasonably available for implementation in the area, and whether they would advance the area's attainment date. The state may reject measures as not meeting RACM, however, if they would not advance the attainment date, would cause substantial widespread and long-term adverse impacts, or would be economically or technologically infeasible. Additionally, potential measures requiring intensive and costly implementation efforts are not RACM. Sierra Club v. EPA at 162-163 (DC Cir. 2002); Sierra Club v. EPA , 314 F.3d 735 (5th Cir. 2002); BCCA Appeal Group v. EPA , 355 F.3d 817 (5th Cir. 2003). To demonstrate measures that advance attainment of the ozone standard, the emission reductions from the measures must occur no later than the start of the 2008 ozone season— i.e. , by March 1, 2008, in order to advance attainment. Because there are no measures that could have been adopted and implemented by a date that has now passed, we believe it is appropriate to conclude that additional measures are not RACM.

EPA expects States to prepare a reasoned justification for rejection of any available control measure. The resulting available control measures should then be evaluated for reasonableness considering their technological and economical feasibility, and whether they will advance attainment. In the case of the DFW SIP, TCEQ performed an analysis to determine whether all RACM were included in the SIP.

To evaluate RACM for VOC measures, the State looked to all available RACM analyses and guidance for all the types of source categories in the DFW area and their potential controls. The State's analysis included evaluation of the potential RACM RTO control technology for cement kilns in the DFW area as VOC RACM. The State's photochemical modeling, however, indicated that the implementation of RTO technology on cement kilns in the DFW area would not advance attainment. The State's analyses indicated that it would take extremely large reductions of VOC emissions, over 100 tpd, to reduce the ozone level at the Denton monitor  13 in the DFW area by 1 ppb. Thus only measures that will provide approximately 100 tpd of VOC emissions reductions will timely advance attainment. We were unable to identify any potential RACM measures in the State's submittal that would provide 100 tpd or more of VOC reductions; this review also examined the use of RTO in cement kilns.

In addition to reviewing the State's submittal, EPA reviewed the State's 2005 and 2007 Emissions Inventories for Point Sources. This review showed that the cement kilns do not emit sufficient amounts of VOCs to achieve 100 tpd in emissions reductions. See the Supplemental TSD for more details. Consequently, EPA agrees with the State that there are no additional RACM for stationary source VOC emissions in the DFW area. Based upon this review, EPA concludes that the use of RTO on cement kilns would not advance timely attainment.

While we agree that one of the sources in the cement kiln source category uses the RTO technology—TXI #5 (Kiln 5), we do not extrapolate from this that use of the RTO technology on the other cement kilns in the DFW area will advance attainment of the 1997 ozone standard. See our previous comments and the Supplemental TSD for additional information.

To evaluate RACM for NO X measures, the TCEQ looked to all available RACM analyses and guidance for all the types of source categories in the DFW area and their potential controls. The State's analysis also included evaluation of Low Temperature Oxidation Technology (LoTOx), SCR and Selective Non-Catalytic Reduction (SNCR) as potential NO X RACM for cement kilns. The State's modeling analyses indicate that reducing on-road mobile and area/non-road sources of NO X is most effective in reducing ozone levels at the Denton and Frisco monitors. Our evaluation of the State's analyses found that reductions of NO X emissions of at least 40 tpd would have the potential to advance the attainment date. See pages 2-29 to 2-30 of the TCEQ SIP Narrative. Thus, only measures that will provide approximately 40 tpd of NO X emissions reductions will timely advance attainment. Neither the State nor EPA was able to identify any potential RACM measures that would provide 40 tpd or more in NO X emissions reductions. TCEQ had additional sensitivity modeling performed for cement kilns, which showed that the most stringent controls on the kilns would not advance the attainment date. See the Supplemental TSD for more detail.

The Fifth Circuit in Sierra Club v. EPA , 314 F.3d 735, 745 (5th Cir. 2002) impressed upon EPA the duty to (1) demonstrate that it has examined relevant data, and (2) provide a satisfactory explanation for its rejection of a proposed RACM and why the proposed RACM, individually and in combination, would not advance the area's attainment date. See Ober, 243 F.3d at 1195 (quoting American Lung Ass'n v. EPA , 134 F.3d 388, 392-93 (DC Cir. 1998)). We reviewed the State's analysis and discussed our evaluation of it in the July 2008 TSD and the December 2008 Supplemental TSD for this rulemaking; both TSDs are in the docket for this rulemaking. EPA evaluated the State's analysis and explained in the TSDs why we agree with the State that no additional measures are RACM for the DFW area and therefore the RACM requirement of the Act is met. We performed an independent analysis by reviewing all available data to determine whether RTO and NO X controls achieving 80-90% reduction are RACM for cement kilns in the DFW area; we agree with the State that additional control measures would not advance the attainment date.

Comment: Some commenters merely state that the contingency measures are insufficient without providing any support. Others comment that the four failure-to-attain contingency measures are insufficient because they will not result in demonstrative, verifiable, and enforceable emission reductions.

Response: Some of the comments simply allege that the contingency measures are insufficient and the commenters provide no support, rationale or data for their claim. EPA explained why we believe the contingency measures are sufficient in the proposed rule and the commenters have not substantively questioned EPA's rationale. Therefore, no further response is necessary.

Other commenters claim that the contingency measures will not result in demonstrative, verifiable and enforceable emission reductions. EPA interpreted sections 172 and 182 of the Act in the General Preamble (57 FR 13498, 13510) to require States with moderate or above ozone nonattainment areas to include contingency measures to implement additional emission reductions of 3% of the adjusted base year inventory in the year following the year in which the failure has been identified. The state must specify the type of contingency measures and the quantity of emissions reductions.

Quantifiable contingency measures are ones that are demonstrative and verifiable. An EPA-approved methodology can be used to calculate projected emissions reductions. The three VOC control measures in the contingency plan (Offset Lithographic Printing; Degassing or Cleaning of Stationary, Marine, and Transport Vessels; and Petroleum Dry Cleaning) rely upon long-established methodologies for calculation of their projected emissions reductions. See EPA's “Introduction to Area Source Emission Inventory Development” (Emission Inventory Improvement Program (EIIP), Volume III, January 2001). The EIIP was developed to estimate the effect of controls and acknowledges that regulatory programs are less than 100 percent effective for most source categories in most areas of the country. Specifically, Chapter 4 of the EIIP document describes the methodology for calculating an emission estimate for an area source with regulations in place that affect any of the individual sources within the source category using three factors: control efficiency, rule effectiveness, and rule penetration. These factors are used to develop more accurate emissions estimates and are defined as follows:

(a) Control efficiency (CE) is the emission reduction efficiency, and is a percentage value representing the amount of a source category's emissions that are controlled. These numbers are often obtained from EPA's Control Technique Guidance documents.

(b) Rule effectiveness (RE) is an adjustment to account for failures and uncertainties that affect the actual performance of the control. A default value of 0.80 is recommended unless better information is available for a particular source category.

(c) Rule penetration (RP) is the percentage of the area source category that is covered by the applicable regulation or is expected to be complying with the regulation. The RP is calculated by taking the uncontrolled emissions covered by regulation and dividing by the total uncontrolled emissions. Default values are not feasible for RP because it is highly category- and location-dependent.

These three factors are multiplied together to estimate the Controlled Area source Emissions (CAE). 14

For the DFW contingency measures plan, Texas estimated emissions for each source category using EPA's EIIP methodology. For Offset Lithographic Printing, the contingency measures plan applies to those sources with emissions below 50 tpy; for Degassing or Cleaning of Stationary, Marine, and Transport Vessels, the plan covers sources which are currently exempt from the State's VOC rules for degassing, including tanks smaller than 1 million gallons; and for Petroleum Dry Cleaning, the plan applies to sources using less than 2,000 gallons of solvent per year. These three contingency measures address sources that have emissions lower than the exemptions in the State's existing VOC RACT rules approved today as meeting RACT for both the standards.

The fourth measure relied on is fleet turnover. Fleet turnover occurs each year—the model year composition of the local motor vehicle fleet changes as new vehicles are purchased and enter the fleet and old vehicles are scrapped. This results in a decrease in fleet average NO X and VOC emissions each year as older model year vehicles, certified to less stringent emission standards, leave the fleet and are replaced by newer vehicles certified to more stringent standards. The emission impacts of fleet turnover are calculated using EPA's MOBILE6.2 emission factor model. MOBILE6.2 calculates emission factors based on the standards that were in effect in each of the model years in the fleet and the relative fraction of each model year expected in the fleet in a specific calendar year. The relative fraction of each model year in the fleet is based on the local age distribution of the vehicle fleet, which is a specific input in MOBILE6.2 supplied by the state or local agency running the model, which in this SIP revision is the NCTCOG.

EPA requires that states use MOBILE6.2 to estimate motor vehicle emissions in a SIP or conformity determination. EPA also specifies in guidance what types of local inputs are appropriate for use in a SIP. For example, EPA does not allow a state or local agency to project that the motor vehicle fleet will be newer in the future than it currently is. In SIPs, EPA accepts projections of future emissions, including the benefits of fleet turnover, calculated using MOBILE6.2 using inputs that conform to our guidance. The NCTCOG used the State vehicle registration database from July 2005; this conforms to EPA's guidance, is the latest available information and provides a more accurate estimation of future emissions levels.

The three VOC measures have been approved into the SIP and therefore are enforceable by the EPA, the State and the public. The fleet turnover measure is a Federal rule and as such is enforceable by the EPA, the State and the public. Today's action makes the fleet turnover measure's projected SIP credits enforceable by the EPA and the public. The measures are surplus because they are not substitutes for mandatory, required emissions reductions and they are not being counted in any other control strategy. 15 Finally, the measures are considered permanent because they continue for as long as the period in which they are used in the failure-to-attain contingency measures plan.

Comment: A commenter states that EPA may not approve contingency measures into the SIP that are already scheduled for implementation and are mandatory federal measures. Moreover, the attainment demonstration SIP relies upon these projected emissions reductions from fleet turnover. The emissions factors models used for projecting the future year's controlled emissions inventory include the improved tailpipe emission. The emissions reductions will occur passively and are not available “to be undertaken” in the likely event of a failure to attain. Accepting these as contingency measures violates the letter of the Act and the intended function of contingency measures—to step in when the SIP's primary control strategy fails. Texas may not rely on tailpipe emissions reductions as a contingency measure.

Response: EPA's position is that the Act allows mandatory federal measures that are already scheduled for implementation to be used as contingency measures, as long as their emission reductions are beyond those needed for attainment or to meet reasonable further progress. The following are some of EPA's actions on the 1-hour ozone SIPs, approving the use of mandatory federal measures as part of the contingency measures plan: 62 FR 15844, (April 3, 1997); 62 FR 66279, (December 18, 1997); 66 FR 30811 (June 8, 2001); 66 FR 586 and 66 FR 634, (January 3, 2001). In the preambles for the proposed and final Phase 2 Rule, we state that Federal measures that result in additional emission reductions beyond those needed for attainment or ROP in an area could serve as contingency measures for a failure to attain or meet the ROP requirements. ( See Phase 2 Rule, proposed in 68 FR 32802 at 32837 (June 2, 2003), and final in 70 FR 71612 at 71651 (November 29, 2005)). Therefore, the State's inclusion of the Federal Motor Vehicle Control programs (FMVCP) occurring after the 2009 ozone season, is acceptable.

The Federal measure in the failure-to-attain contingency measures plan is the projected emissions reductions from the FMVCP occurring after the 2009 ozone season, in addition to the already-identified VOC rules described above. The FMVCP requires controls on both on- and non-road motor vehicles, providing emissions reductions as the fleet is replaced with newer vehicles (turns over). Only the emissions reductions projected to occur after 2009 from the FMVCP are relied upon to meet the 3% of the emissions in the adjusted 1999 base year emissions inventory.

The modeling relies upon emissions reductions from the FMVCP that will become effective during the modeling period from 1999 to 2009. EPA disagrees that the attainment demonstration SIP relies upon the projected emissions reductions from fleet turnover occurring after 2009. Said another way, we disagree that the reductions from fleet turnover used as contingency measures were relied upon in the demonstration that the area would attain by 2009.

Comment: Commenters state that the MVEBs are flawed and are flawed for multiple reasons. In addition, in the absence of a competent attainment demonstration, the MVEBs are not approvable or adequate.

Response: EPA disagrees with the commenters that the MVEBs are flawed. The Commenters provided no data or rationale for their comments. This statement, without any further explanation does not give EPA any guidance on the alleged inadequacy nor how the commenter would have EPA improve upon it. EPA, however, refers the Commenters to our detailed response, below.

As discussed elsewhere, we believe that the plan provides for attainment of the ozone standard. For further explanation of how the attainment demonstration SIP provides for attainment, please see our responses in Section V-D above. Furthermore, we believe the budgets in the plan are consistent with the attainment plan and therefore should be approved.

Further, the budgets in the SIP were established consistent with the process in 40 CFR 93.118(e). Under 40 CFR 93.118, budgets cannot be used for conformity until EPA has either found the budgets “adequate” or approved the SIP in which they are contained. On June 28, 2007, the availability of the budgets was posted on EPA's Web site for public comment. The comment period closed on July 30, 2007, and we received no comments. On March 21, 2008, we published a Notice of Adequacy Determination for the attainment MVEBs (73 FR 15152) where we announced that we found the 2009 attainment MVEBs “adequate.” In that notice we stated that the attainment MVEBs must be used in future DFW transportation conformity determinations.

Comment: Commenters state that the Transportation Emission Reduction Measure (TERM) projects are inadequate.

Response: The comment letter provides no support, rationale or data for its claim that the TERM projects are inadequate. EPA explained its rationale for proposing approval of the VMEP program in the proposed rule and the commenter fails to identify any defect in EPA's analysis. Therefore, no further response is required.

Comment: A commenter states that EPA proposes to accept a series of capacity-increasing traffic projects as substitute control measures in the event that the VMEP NO X emissions are not achieved. The commenter states that the proposed TERMs involve roadway and highway capacity expansion to allow higher vehicle speeds in congested areas. The commenter further states that higher vehicle speeds result in increased NO X emissions and are counter productive to the stated purpose of supplying emissions reductions when VMEP reductions fail, and EPA should reject the TERM control measures' inclusion into the SIP.

Response: EPA finds that the State, through the North Central Texas Council of Governments (NCTCOG), has committed to and is responsible for emissions reductions measures that are permanent, quantifiable, surplus, adequately supported, consistent, enforceable and in accordance with the Act and EPA guidance. The state, through the NCTCOG, also commits to monitor, assess, report, and, in the event that the NO X reductions are not achieved, remedy any shortfall in emissions reductions.

It should be noted that EPA is not approving any TERMs, which would serve as the remedy to a shortfall of the VMEP at this time. The types of TERMs the state may use in the case of a shortfall are traffic signal improvements, Intelligent Transportation Systems (ITS), and/or freeway and/or arterial bottleneck removal. Because the State did not specifically identify or commit to using these additional measures, we did not review them for approvability. In the event of a shortfall, EPA will review the additional measures provided by the State for inclusion into the SIP. If EPA finds, at that time, that the measures would cause an increase in NO X emissions, we would not find them suitable for use to make up for an emissions reduction shortfall.

Finally, the State must account for any such shortfall either by modifying implementation of the existing program to address the shortfall, adopting new measures, or revising the VMEP's emissions credits to reflect actual emissions reductions achieved, provided overall SIP commitments are met. 16 Additions to the VMEP and changes to the VMEP credit in an effort to remedy any shortfall would be made in the form of a SIP revision. If TCMs are used to remedy the shortfall, a SIP revision may not be necessary. 17

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

The EPA approved 30 TAC, Chapter 117, NO X cement kilns rules at 69 FR 15681 published on March 26, 2004, as NO X control emissions requirements for Texas under the 1-hour ozone SIP. On May 30, 2007, TCEQ submitted rule revisions to 30 TAC, Chapter 117, “Control of Air Pollution from Nitrogen Compounds,” as a revision to the Texas SIP. On July 11, 2008 (73 FR 39911), we proposed approval of the May 30, 2007 submittal. Today, we are finalizing our July 11, 2008, proposed approval.

In this rulemaking, we are approving the nonsubstantive renumbering of the rules for cement kilns operating in Bexar, Comal, Ellis, Hays, and McLennan Counties. We are approving the substantive changes to the rules for cement kilns operating in Ellis County as meeting the Act's RACT requirements for NO X emissions for the cement kiln source category in the D/FW 1997 8-hour ozone nonattainment area.

The State's adopted source cap calculation for the cement plants in Ellis County includes all kilns in operation at the three impacted accounts, i.e. , Ash Grove, Texas, L.P. (AG); TXI Operations, L.P. (TXI); and Holcim, L.P. (Holcim). No operating kiln in Ellis County is exempt from the source cap. The State chose 1.7 lb NO X /ton of clinker for dry preheater-precalciner or precalciner kilns and 3.4 lb NO X /ton of clinker for wet kilns, as the emission factors for calculating the source cap for the RACT rule. The NO X source cap for cement manufacturing plants in Ellis County, Texas is calculated by (a) multiplying the average annual production rate in tons plus one standard deviation for the calendar years 2003, 2004, and 2005 from all wet kilns by 3.4 pound NO X /ton, (b) multiplying the average annual production rate in tons plus one standard deviation for the calendar years 2003, 2004, and 2005 from all dry kilns by 1.7 pound NO X /ton, and (c) adding the computed products in “a” and “b” together and dividing the sum by ((2000 (pounds/ton) x (365 (days/year)). Thus, producing a total allowable NO X limit, in tons per day, on a 30-day rolling average basis as a cap not to be exceeded. The source cap only applies during the D/FW ozone season (March 1-October 31). See 117.3123(b).

The rule provides multiple layers of flexibility by: (i) Providing for one NO X limit during the ozone season (March 1 through October 31), and another NO X limit during the non-ozone season (November 1 through end-of February) within the D/FW area; (ii) incorporating actual production rates that were provided by the affected companies to the State, then adding one standard deviation to the production rates as a part of rule development, for source cap allowance determination to account for production variability; (iii) not mandating a specific post combustion control technology; (iv) allowing the source to decide its method of compliance with the source cap; (v) determining compliance with the source cap on a 30-day rolling average basis; and (vi) including all types of existing kilns. Therefore, multiple layers of flexibility have been built into the rule for compliance purposes.

As stated in our proposal, EPA has defined RACT as the lowest emission limitation that a particular source can meet by applying a control technique that is reasonably available considering technological and economic feasibility. See 44 FR 53761, September 17, 1979. Ozone nonattainment areas classified as moderate or above must meet RACT requirements as provided in sections 182(b)(2) and 182(f) of the Act. These two sections, taken together, establish the requirements for Texas to submit a NO X RACT regulation for cement kilns (a major source of NO X ) in ozone nonattainment areas classified as moderate (such as D/FW) and above. Section 183(c) of the Act provides that we will issue technical documents, which identify alternative controls for stationary sources of NO X . The EPA publishes the NO X related Alternative Control Techniques (ACTs) documents for this purpose. The information in the ACT documents is generated from literature sources and contacts, control equipment vendors, EPA papers, engineering firms, and Federal, State, and local regulatory agencies. States can use information in the EPA ACTs to develop their RACT regulations. For a listing of EPA's ACT-related documents, including the ACT document for Cement Manufacturing, see http://www.epa.gov/ttn/naaqs/ozone/ctg_act/index.htm (URL dated April 22, 2008).

The public comment period for our 73 FR 39911 proposal expired on August 11, 2008. We received written comments during the public comment period and we respond to those comments below.

We received written comments on our July 11, 2008 (73 FR 39911) proposal from AG, TXI, and Holcim during the public comment period. Holcim's comments were submitted on this proposed action and on the proposed action to conditionally approve the D/FW area's 1997 8-hour ozone attainment demonstration SIP.

Our responses to those written comments received are as follows:

Comment #1: AG indicated that the applicable source cap in the rule for Ellis County is achievable, AG intends to comply with the source cap limit, and supports its approval by EPA.

Response to Comment #1: We appreciate the AG's statement that it intends to comply with the source cap limit in the rule.

Comment #2: AG, TXI, and Holcim claim that the rule for Ellis County exceeds RACT and has negligible value to air quality planning. The State's photochemical modeling demonstrates that NO X reductions from the cement plants would not have a measurable impact on the critical ozone monitors in the D/FW area. Thus, the stringent emission limitation is not a necessary component of the Texas SIP. TCEQ has not performed any analysis indicating that a high level of reduction of NO X emissions from the Ellis County cement kilns would result in the D/FW area coming into compliance with the 1997 8-hour ozone standard.

Response to Comment #2: As discussed previously, RACT is a requirement of section 182 of the Act, and, regardless of whether the controls are necessary for attainment of the 1997 8-hour ozone NAAQS in the D/FW ozone nonattainment area, the SIP must include rules that meet the VOC and NO X RACT requirements of the Act. In Appendix J of the D/FW attainment demonstration SIP submission, entitled “RACT Analysis,” Texas identifies (1) all Control Techniques Guidelines (CTG) source categories of VOC and NO X emissions within the D/FW area; (2) all non-CTG major sources of VOC and NO X emissions; (3) the state regulation that implements or exceeds RACT for each applicable CTG source category or non-CTG major emission source; and describes the basis for concluding that these regulations fulfill RACT. TCEQ in Appendix J, pages J-3 to J-5 and Table J-1, specifically says that State rules that were consistent with or more stringent than the current control technologies and methodologies implemented in other moderate nonattainment areas were also determined to fulfill RACT requirements for the D/FW area. Texas views the cement kiln rules to be RACT for the D/FW area. It is not appropriate for EPA to question a State's choice of RACT control, as long as the statutory requirements of the Act are met. Florida Power & Light Co. v. EPA, 650 F.2d 570 (5th Cir. 1981). Moreover, States may adopt regulations that are more stringent than those required under the Act. See section 116 of the Act. To meet the statutory requirements, states are to look at available controls to conclude whether they are reasonably available for a specific source or source category. Furthermore, a State is to evaluate RACT for a source or source category by examining existing EPA guidance documents as well as other available information, e.g. , EPA's BACT/RACT/ LAER Clearinghouse, ACTs. RACT can change over time as new technology becomes available or the cost of existing technology adjusts. Today's RACT determination for a source category can be more stringent than a previous determination and thus controls previously considered “beyond RACT” could be considered RACT for sources now.

We disagree that the rules for cement kilns in the D/FW area will have a negligible value to the area's air quality planning. The rules should result in 9.7 tons per day (TPD) of reduction in NO X emissions for the D/FW area, which is a significant improvement. See section 9 at 73 FR 39914 of our proposal. The EPA has reviewed the impact of emission reductions at the cement kilns in the D/FW area and determined that such reductions are beneficial to reducing ozone levels in the D/FW nonattainment area especially in much of Tarrant and Parker Counties.

Today's action only concerns approving the nonsubstantive renumbering of the NO X cement kiln rules into the Texas SIP, and approving the substantive changes to the NO X cement kiln rules for Ellis County as meeting the Act's NO X RACT requirement. Therefore, any comments on the State's choices of control strategies in the D/FW area's attainment demonstration SIP are not relevant. In a separate proposed action published on July 14, 2008 at 73 FR 40203, EPA has taken comment on whether the cement kilns rule, in combination with the other State and Federal Measures, will result in attainment of the 1997 8-hour ozone NAAQS, and we will respond to Holcim's comments on these issues in a final action on that proposal. Additionally, we note that EPA is required to approve a SIP revision if it meets the Act's requirements, and cannot second guess the State's choices if the plan meets the minimum requirements of the Act. The Act assigns to the states initial and primary responsibility for formulating a plan to achieve the NAAQS. It is up to the State to prepare SIPs, which contain specific pollution control measures. The EPA is charged with evaluating the SIP revision submittal, and if it meets the minimum statutory criteria, the EPA must approve it. Train v. NRDC , 421 U.S. 60 (1975). It is not EPA's role to rule out the State's choice of components of its SIP submittal so long as the plan is adequate to meet the standards mandated by EPA. See Train v. NRDC at 79-80, and see Union Electric v. EPA , 427 U.S. 246 (1976). The EPA disapproves a SIP submittal only if it fails to meet the minimum statutory requirements. Seabrook v. Costle , 659 F.2d 1349 (5th Cir. 1981). A state may impose stricter limitations than the Act requires. See section 116 of the Act; Union Electric at 265.

Comment #3: TXI states that Table 5, section 9 of EPA's proposal fails to mention the alternative NO X control options allowed under the Texas 1-hour ozone NO X SIP will be available to Ellis County cement kilns during the non-ozone season.

Response to Comment #3: While Table 5, section 9 of EPA's proposal is factually correct, it does not specifically mention the alternative NO X control option. TCEQ removed these options for cement kilns in Ellis County during the D/FW area's ozone season; EPA recognizes these compliance options are available during the non-ozone season (November 1st through the end of February). For the other four counties, which are not a part of the D/FW 8-hour ozone nonattainment area, cement kilns' NO X alternative control options continue to remain in effect year round. See section 117.3110.

Comment #4: TXI and Holcim commented that improvement in the D/FW ozone situation should come from mobile sources, not the cement kilns.

Response to Comment #4: This comment is not relevant to today's action because this action solely reviews the Ellis County cement kiln rules for purposes of the NO X RACT requirement of the Act. Holcim provided the same comment, however, on our proposed action to conditionally approve the D/FW 1997 8-hour ozone attainment demonstration SIP. We will address this comment in the final rulemaking action on that SIP. See the response to comment #2 of this document for more detail.

Comment #5: TXI and Holcim expressed support for TCEQ not adopting the “high control” option for the Ellis County kilns, due to technical issues associated with the Selective Catalytic Reduction (SCR), and Low Temperature Oxidation (LoTOx) technologies. They further claim that neither SCR nor LoTOx technology constitutes RACT for the control of NO X from the Midlothian Cement kilns.

Response to Comment #5: We agree that the current State-adopted level of NO X control for cement kilns in the D/FW area meets the RACT requirement for these sources at this time. We note, however, that air pollution control technology continues to advance and the State may need to consider additional NO X controls at cement plants as it develops the SIP required for the 2008-revised ozone standard.

Comment #6: TXI commented that the NO X emission factors used in the source cap equation are possibly the lowest specifications adopted by a state agency in the United States because the selected emission specification for the preheater/precalciner kilns of 1.7 lb NO X /ton of clinker represents a significant reduction from NO X specification of 1.95 lb NO X /ton of clinker that has been selected as BACT in recent permitting actions for new PH/PC kilns. Adoption of these very low NO X emission specifications in the source cap equation is extremely aggressive.

Response to Comment #6: We agree that these levels are more aggressive than levels previously included in certain permits issued by the State. We have concluded that, at a minimum, these levels are consistent with RACT. While the commenter implies (but does not directly allege) that the levels are beyond RACT, the Act does not preclude the State from adopting controls that are more stringent than the minimum level required.

We note that this is not the first time TCEQ has adopted a rule in Chapter 117 to meet RACT that is more stringent than past permits' BACT decisions. We recognize that compliance with the levels in the Texas rules will require significant effort from the cement plant owners and operators.

Comment #7: TXI and Holcim state that adoption of the source cap equation is inequitable and does not allow them to have a significant production increase. Holcim claims that over 60% of the total NO X reductions anticipated from the source cap requirement will be from Holcim's two kilns, despite the fact that there are eight other cement kilns operating in Ellis County. Holcim comments that TCEQ has unfairly targeted Holcim as a source of emission reductions in Ellis County. TXI finds the rule to be retroactive because the source cap is based upon the average production for 2003, 2004, and 2005. This figure allegedly does not include the increase in production allowed by a permit issued in late 2005. To meet the source cap, TXI may have to shutdown its wet kilns while operating its dry kiln.

Response to Comment #7: The primary role of the statutory RACT requirement is to impose controls upon existing facilities and equipment. RACT has been a requirement of the Act since 1977. Congress through the 1977 Clean Air Act Amendments imposed stricter minimum requirements by placing RACT limitations on nonattainment areas. CAA Section 172(b)(3), 42 U.S.C. 7502(b)(3) (1977). The use of the term “retroactive” by TXI is misleading in that the RACT controls will apply to TXI's existing sources, but TXI is provided sufficient time to install the controls by a date well after TCEQ has promulgated the RACT regulations.

As discussed previously in response to comment #2 of this document, EPA cannot reject the State regulations because they may apply in an inequitable manner. While TXI alleges it may have to shut down some of its units to operate others, the Act does not preclude the State from adopting controls that are more stringent than the minimum level required. The Act gives the States exclusive control in selecting which sources to regulate and to what degree, and EPA does not have authority to second guess the State's choices so long as the programs adopted meet the minimum statutory requirements. See Union Electric v. EPA , 427 U.S. 246 (1976).

Comment #8: Holcim commented that the ERG cement kiln study cannot be relied upon by TCEQ to establish the NO X controls imposed on the Ellis County cement kilns in the source cap rule. Holcim contends that the ERG cement kiln study is internally inconsistent, inaccurate in its assessment of available NO X control technologies for the Ellis County cement kilns, incomplete in that it did not fully analyze the impacts of kiln feedstocks on the viability of add-on NO X control technologies or address other tasks included in the Scope of Work, and is unreliable as a basis for NO X controls for the Ellis County kilns. It inaccurately estimates the level of reductions achievable using SNCR on some of the Ellis County kilns. Holcim commented that the ERG Final Report fails to include retrofitting costs such as new ID fans for all kilns necessary for utilizing SCR and LoTOx systems. Holcim further claims that the limestone and raw materials used in Ellis County kilns are different from the limestone, and raw materials used by other plants in the world, and deficiencies in the ERG Report is not scientifically or factually valid, and is not a reliable basis for TCEQ's adoption of the Source Cap Rule or EPA's approval of TCEQ's SIP. Holcim also incorporates by reference the comments on the ERG Final Report that were submitted to the State.

Response to Comment #8: As an initial matter, we note that we cannot second guess the State's conclusions, so long as our review determines that the rules developed meet the minimum statutory requirements. Holcim appears to be claiming that the rules are too stringent because they are based on a study with which Holcim finds fault. However, even if such claim were true, we cannot disapprove the rules when they meet the minimum statutory requirements for RACT. Any requirement beyond the basic RACT level of control is not a basis for EPA to disapprove the rule, as the CAA leaves the choice to the State to determine whether to go beyond the minimum statutory requirements of the Act.

The referenced study can be found in Appendix I of the D/FW 1997 8-hour ozone attainment demonstration SIP revision submittal and is available on the TCEQ's Web site at www.tceq.state.tx.us/implementation/air/sip/BSA_settle.html . The ERG, Inc. prepared the Report, and it is entitled “Assessment of NO X Emissions Reduction Strategies for Cement Kilns—Ellis County: Final Report,” dated July 14, 2006. The State relied upon it as well as all other available documentation to determine what should be RACT for the cement kilns.

This Report was prepared because of a study conducted on behalf of TCEQ pursuant to an April 22, 2005, settlement agreement in a lawsuit brought against EPA by Blue Skies Alliance and others. The TCEQ, the Portland Cement Association, several counties, and others were permitted by the Court to intervene. The Portland Cement Association represented Holcim's interests in the lawsuit. The Settlement Agreement was filed with the Federal District Court for the Northern District of Texas in June 2005.

Pursuant to paragraph A.3.b. of the Settlement Agreement entitled, “Cement Kiln Control Technology Study,” TCEQ was required to meet with Plaintiffs, EPA, and the Portland Cement Association to review and comment upon the proposed scope of work to contract with a consultant to perform a cement kiln study to evaluate the potential availability of new air pollution control technologies for cement kilns in the D/FW area. The proposed scope of work also was to include consideration of SCR and to evaluate and establish what type of controls may be technically and economically applied to the three cement plants in Ellis County. Holcim participated in the meetings on the proposed scope of work. The TCEQ's choice of a contractor was required to be made with consultation with the Plaintiffs, EPA, and the Portland Cement Association. Holcim participated in the choice of contractor. Midway through the study's progress, the contractor was required to identify to the Plaintiffs, EPA, and the Portland Cement Association, a list of cement kilns with advanced NO X emission reduction technologies being analyzed as part of the study. Holcim received this information. TCEQ was required to establish channels of communication with the Parties for technical air quality issues and make a good faith effort to address problems identified by the Parties. TCEQ also was required to meet with the Parties on other issues of interest and concern in the cement kiln matter. Holcim was involved in the communications and meetings with TCEQ and provided comments on the Draft Report and the final. The EPA has not been provided with any legal document filed with the Federal District Court asserting that TCEQ failed to meet its legal obligations under the Settlement Agreement of making a good faith effort to address any problems identified by Holcim.

The ERG Report evaluated the applicability, availability, technical feasibility, and cost-effectiveness of NO X control technologies for cement kilns located in the D/FW area beyond the requirements of the NO X rules in the SIP at the time of the Report ( i.e. , rules adopted by the State in 2003 and approved by EPA at 69 FR 15681 (March 24, 2004)). The Report is consistent with EPA's ACT (2000) document, proposed New Source Performance Standard (NSPS) for Portland cement plants at 73 FR 34072 (June 16, 2008), and the BACT/RACT/LAER Clearinghouse.

Comment #9: Holcim commented that for its two PH/PC kilns, the TCEQ proposed equation at section 117.3123(b) for calculating a NO X source cap would establish an emission rate of 2.84 TPD of NO X emissions per PH/PC kiln, with a plant-wide NO X emission limit of 5.68 TPD (2.84 TPD × 2 kilns). In its comments to the State, Holcim alternatively proposed a plant-wide NO X limit of 8.5 tons per day to be applied during the ozone season only. The TCEQ, however, adopted the equation at section 117.3123(b) for calculating a NO X source cap that establishes a more stringent emission rate than Holcim had requested, without going through another round of public comment and hearing.

Response to Comment #9: Courts have consistently held that an agency is not required to start over with a new notice of proposed rulemaking, if the final rule is a “logical outgrowth” of the proposed rule. It is an established administrative law principle that after hearing all public comments, the agency may end up substantially revising the original proposed rule. What is required is that the proposal notice should be sufficiently descriptive of the `subjects and issues involved' so that interested parties may offer informed criticism and comments. See Ethyl Corp. v. EPA, 541 F.2d 1, 48 (DC Cir. 1976). If the final rule is logically connected to the proposed rule, the public is considered to have had an adequate opportunity to make its views known. The State's proposal was clear that the issues were an appropriate emissions limitation, and a corresponding source cap equation. After the close of the public comment period, and upon review and evaluation of the submitted comments, the State merely expanded on prior information, and addressed alleged deficiencies in the pre-existing data. See Rybachek v. EPA, 904 F.2d 1276, 1286 (9th. Cir. 1990).

The resultant equation is in a format consistent with other equations in Chapter 117. The public was provided an ample opportunity to provide comments on the appropriateness of NO X emissions limitations, and what would be the appropriate corresponding equation. An integral part of rulemaking is for the State to have the authority and discretion to revise its initial version of a proposed rule, consistent with the terms of its proposal, based on relevant information it receives during public comment period. It is not an uncommon practice for a state to issue a final rule that differs from the proposal based on the receipt of relevant information during its public comment period.

Comment #10: TXI and Holcim comment that neither SCR nor LoTO X technology constitutes RACT for the control of NO X from the Ellis County cement kilns, and refer to their comments on the draft and final Report.

Response to Comment #10: We believe that these requirements in the State's rules meet the minimum level of control required for RACT rules and, as discussed previously, the issue of whether the rules are more stringent than what is necessary to meet RACT is not pertinent for our review of the rules.

Comment #11: Holcim commented that according to a “New Source Analysis and Technical Review” (Technical Review) in conjunction with Holcim's PSD Permit No. 8996/PSD-TX-454M3, issued in 2005, the TCEQ technical staff stated that NO X reductions using SNCR are “typically 20-40%.” Holcim continues that the Technical Review cited above; however, mentions that a kiln in Sweden, with a high baseline, had demonstrated 83% NO X reduction. Therefore, the State's NO X cement kiln rule for Ellis County is too stringent because it assumes a control level greater than what was in the 2005 permit.

Response to Comment #11: While Holcim accurately describes the conclusion reached as part of the 2005 permitting determination, additional information has become available since that time, as described in the 2006 Report, the documents supporting the EPA's proposed NSPS, etc. This additional information illustrates that using SNCR with well-designed and properly operated process design, e.g. , low-NO X burners, Staged Combustion in the Calciner (SCC) mechanism, can achieve as high as 70% reductions. Air pollution control equipment can often achieve greater percent reduction with higher uncontrolled emission rates (high baseline). This means that if a kiln is already controlled with low-NO X burners and SCC mechanism, then the percent reduction of NO X with the addition of the SNCR from that kiln will be less.

Comment #12: Holcim contends that it cannot meet the ozone season emission factor of 1.7 pounds of NO X per ton of clinker produced. This emission factor is used by the TCEQ in the equation to establish a plant-wide NO X emission source cap for each of the three cement kiln companies in Ellis County. 30 TAC 117.3123(b). Because it allegedly cannot meet this emission factor, Holcim claims it cannot meet the plant-wide NO X emission source cap for its PH/PC kilns. Holcim states that it repeatedly commented on the proposed emission factor to TCEQ during the rulemaking process, claiming that it cannot achieve this emission factor, despite its recent installation of SNCR and based upon testing of the SNCR. According to Holcim, testing for its kiln #2 showed it did not meet the 1.7 pounds NO X /ton of clinker emission factor, but rather it met 1.95 lb NO X /ton of clinker. Holcim claims the 1.95 emission factor was determined to be BACT in a recent air permit for kiln #2, and that TCEQ adopted the 1.7 pounds NO X per ton of clinker emission factor without adequate justification. TCEQ did not adequately consider the technical practicability, and economic reasonableness of the limitations contained in the source cap rule. TCEQ did not adequately consider the reasonable availability of control technology for Holcim's kilns, and the emission limitations are not practically achievable using SNCR.

Response to Comment #12: We believe that the State's rules meet the minimum level of control required for RACT rules and, as discussed previously, the issue of whether the rules are more stringent than what is necessary to meet RACT is not pertinent for our review of the rules. Further, the source cap does rule not mandate the type of control that a source must use.

The source cap includes a NO X emission factor of 1.7 pounds per ton of clinker for dry preheater-precalciner or precalciner kilns, and a NO X emission factor of 3.4 pounds per ton of clinker for wet kilns. According to TCEQ, emission levels of 1.7 pounds per ton of clinker have been demonstrated on a dry preheater-precalciner or precalciner kiln in Ellis County without the addition of the SNCR or other controls considered as part of the cement kiln study. The commenter has two kilns, one of which is a dry preheater-precalciner kiln.

The information in EPA's proposed NSPS (73 FR 34072) indicates that an emission factor of 1.5 pound NO X per ton of clinker produced is achievable and cost effective. In fact, NO X emission factors of 1.62 to 1.97 pound NO X per ton of clinker produced have been demonstrated without adding SNCR.

The information in EPA's proposed NSPS (73 FR 34072) indicates that an emission factor of 1.95 pound NO X per ton of clinker produced can be achieved on average for approximately $2,000 per ton of NO X reduced, and at the 1.5 lb/ton of clinker level for approximately $2,100 per ton of NO X reduced.

The State estimated the cost effectiveness for SNCR presented in the cement kiln study to be $1,400 to $2,300 per ton on NO X .

We reviewed TCEQ's evaluation and find it to be sufficient to support a finding that the cement kiln requirements of 30 TAC Chapter 117 constitute RACT for the D/FW area.

Comment #13: Holcim states that neither TCEQ nor EPA has conducted a proper source-specific RACT analysis for Holcim's cement kilns in Ellis County.

Response to Comment #13: While a State can consider source-specific considerations when setting RACT levels of control, it is not obligated to do so. RACT is most often implemented through source category rules. In setting a source category rule for cement plants, TCEQ set a limit it believes, and EPA agrees, meets the statutory minimum for a RACT level of control at all of the affected cement manufacturers.

Comment #14: Holcim asserts that there are other problems with the source cap provision of the rule which should prevent it from being used to set the NO X emission limitations: a) TCEQ's selection of the 2003-2005 time period to calculate a source's actual production is without any basis; b) TCEQ's source cap equation fails to take into account facility downtime; and c) TCEQ's source cap equation fails to take into account the need for alkali bypass at the Holcim facility.

Response to Comment #14: As discussed previously, the comments are not relevant to determining that the rule at a minimum meets the RACT requirement of the Act.

This is not the first time TCEQ has used the three most recent year production or capacity data for equations in other parts of Chapter 117, and EPA has approved that approach as a part of the Texas SIP. The production information is the actual data reported by the sources to the TCEQ. The source cap equation takes into account facility downtime and operation by using the three years of actual production rate data reported to TCEQ. With regard to the alkali bypass issue; this comment is not relevant to our RACT review because, as noted previously, EPA cannot second guess the State's choices of control level as long as it meets the minimum level required to satisfy RACT.

This concludes our responses to the written comments we received during public comment period.

Table 1 below contains a summary list of the sections of 30 TAC, Chapter 117 that EPA is approving into the Texas SIP.

You can find complete TCEQ's rules and regulations at http://www.tceq.state.tx.us/rules/indxpdf.html.

Per TCEQ's request the following sections, listed in Table 2 below, of the cement kilns rule will not become a part of EPA-approved Texas SIP. These sections mainly pertain to the control of ammonia, that is not a precursor to ozone, and are not required to be a part of the SIP.

Although the above sections of 30 TAC Chapter 117 are not to become a part of Texas SIP, they will continue to remain enforceable at the State level.

Table 3 below lists the five Texas Counties that will be affected by the cement kilns rule.

We approved the NO X control emission requirements for cement kilns at 69 FR 15681 published on March 26, 2004. See Table III of that document. We included that Table in the TSD prepared for our proposal.

Ellis County is located within the D/FW 8-hour ozone nonattainment area. The ozone season for the D/FW area is March 1 through October 31 of each calendar year. See 40 CFR part 58, Appendix D, Table D-3, and 40 CFR 81.39. For Ellis County, during the non-ozone season (November 1 through end-of-February of each calendar year), the cement kilns NO X control requirements that we approved at 69 FR 15681 will continue to remain in effect. However, during the ozone season, March 1 through October 31 of each calendar year, the cement kilns in Ellis County must comply with a source cap formula calculated and expressed in TPD of actual NO X emissions, per site, on a 30-day rolling average basis. See equation 117.3123(b). The following Table 4 contains a summary list of NO X control requirements for cement kilns under the 8-hour ozone SIP.

The cement kilns rule does not require or endorse a specific postcombustion NO X control technology, and allows the owners or operators to choose their preferred method of compliance as long as the source cap limit, per site, is being met. These NO X control requirements will result in a 9.7 TPD of NO X reduction from cement kilns in Ellis County. We have determined the above NO X control requirements for existing cement kilns in the D/FW area are consistent with the RACT requirements of the Act. Therefore, we are approving them into the Texas SIP as meeting the RACT requirement for the D/FW 8-hour ozone nonattainment area. See our TSD prepared in conjunction with this rulemaking action for more information.

The compliance schedule for cement kilns located in Texas Counties of Bexar, Comal, Hays, and McLennan will continue to remain in effect as we approved it at 69 FR 15681. See Table IV of that document. We included that Table in our TSD prepared for the proposal.

The following Table 5 contains a summary of the NO X compliance schedule-related information for cement kilns in Ellis County. See section 117.9320(c) for more information.

We believe that including the compliance dates in the rule provides for enforceability and practicability of the NO X rule, and enhances the Texas SIP. The March 1, 2009 compliance date for cement kilns in Ellis County is consistent with the implementation requirement set forth in 40 CFR 51.912(a)(3). Therefore, we are approving them into Texas SIP, and as meeting the RACT requirement for the D/FW 8-hour ozone nonattainment area.

Today, we are approving revisions to the 30 TAC Chapter 117 into the Texas SIP. In this rulemaking, we are approving the nonsubstantive renumbering of the cement kilns provisions of the May 30, 2007 submittal for cement kilns operating in Bexar, Comal, Ellis, Hays, and McLennan Counties of Texas. We are approving the substantive cement kilns provisions of the May 30, 2007 submittal for cement kilns operating in Ellis County as meeting the Act's RACT requirement for NO X emissions from cement kilns operating in the D/FW 8-hour ozone nonattainment area. We are also making ministerial corrections to the table in 40 CFR 52.2270(c) entitled “EPA-Approved Regulations in the Texas SIP” to reflect our approval of certain revisions to 30 TAC 117 on December 3, 2008 (73 FR 73562). The ministerial corrections apply to table headings and entries for sections 117.323, 117.1110, 117.1205, 117.1210 and 117.2135 under Chapter 117—Control of Air Pollution from Nitrogen Compounds.

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq. , as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by March 16, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This document extends to January 19, 2009, the effective date of the E-Verify rule, in order to comply with the Congressional Review Act (5 U.S.C. 801(a)(3)(A)). Although this rule was published in the Federal Register on November 14, 2008 (73 FR 67650), it was not received by Congress until November 19, 2008. Because of pending litigation, the applicability date for the regulation is being extended until February 20, 2009.

Federal Acquisition Circular (FAC) 2005-29, Amendment-1, is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration.

The Federal Acquisition Regulation (FAR) contained in FAC 2005-29 is effective January 19, 2009, and applicable February 20, 2009.

Black abalone was added to the National Marine Fisheries Service's (NMFS') Candidate Species List on June 23, 1999 (64 FR 33466), and transferred to the NMFS' Species of Concern List on April 15, 2004 (69 FR 19975). We initiated an informal ESA status review of black abalone on July 15, 2003, and formally announced initiation of a status review on October 17, 2006 (71 FR 61021), at the same time soliciting information from the public on the status of and threats facing black abalone. On December 27, 2006, we received a petition from the Center for Biological Diversity (CBD) to list black abalone as either an endangered or threatened species under the ESA and to designate critical habitat for the species concurrently with any listing determination. We published a 90-day finding on April 13, 2007 (72 FR 18616), stating that the CBD petition presented substantial scientific information indicating that the petitioned actions may be warranted.

In June 2007, we assembled a Status Review Team (SRT) to review the available information, assess the extinction risk and threats facing the species, and produce an ESA status review report for black abalone. The status review report (VanBlaricom et al. , 2007) provides a thorough account of black abalone biology and natural history, and assesses demographic risks, threats and limiting factors, and overall extinction risk.

The NMFS Southwest Region initiated a technical peer review of the draft status review report on January 9, 2008. A proposal to list black abalone as endangered, a solicitation for public comment on the proposed rule, and solicitation for additional information regarding black abalone status and habitat needs were published in the Federal Register on January 11, 2008 (73 FR 1986). Technical comments received from reviewers and public comments received on or before April 10, 2008, are addressed in the final status review report and this rule.

A thorough account of black abalone biology and life history may be found in the status review report (VanBlaricom et al. , 2008) and in the proposed rule to list black abalone as endangered under the ESA (73 FR 1986; January 11, 2008).

Section 4 of the ESA (16 U.S.C. 1533) and implementing regulations (50 CFR part 424) set forth the procedures for adding species to the Federal list of threatened and endangered species. Section 4 requires that listing determinations be based solely on the best scientific and commercial data available, without consideration of possible economic or other impacts of such determinations, after conducting a status review of the species and considering conservation efforts being made to protect the species. After assessing a species' level of extinction risk and identifying factors, listed in section 4(a)(1), that have led to its decline, we assess efforts being made to protect the species to determine if those measures ameliorate the risks faced by the species. In judging the efficacy of existing protective efforts, we rely on the joint NMFS/U.S. Fish and Wildlife Service “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” (“PECE;” 68 FR 15100; March 28, 2003).

A joint NMFS/U.S. Fish and Wildlife Service policy requires us to solicit independent expert review from at least three qualified specialists (59 FR 34270; July 1, 1994). The Office of Management and Budget (OMB) Information Quality Bulletin for Peer Review (December 2004) further establishes minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Public Law 106-554), is intended to enhance the quality and credibility of the Federal Government's scientific information and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. Pursuant to our 1994 policy and the OMB Bulletin, we solicited the expert opinions of ten appropriate and independent specialists regarding pertinent scientific or commercial data and assumptions relating to the taxonomic, genetic, biological and ecological information supporting the proposal to list black abalone. We conclude that these expert reviews satisfy the requirements for ''adequate peer review'' under the OMB Bulletin and the requirements of the joint 1994 peer review policy. All of the independent experts found that the scientific information supported listing of black abalone as an endangered species.

No public hearings were requested during the 90-day public comment period on the proposed rule to list the black abalone as an endangered species, and no hearings were held. During the public comment period, however, we received seven written comments on the proposed rule: three from private citizens, three from non-governmental organizations, and one from a local government agency. Of the seven comments we received, four clearly stated their support for listing black abalone as an endangered species. Other commenters felt that the protections provided to black abalone from an ESA listing, namely habitat protection and protection from harvesting, would not benefit the species and that more emphasis needs to be placed on the treatment of withering syndrome, a fatal abalone disease. One commenter expressed concern over the methodology used to estimate the risk of black abalone extinction within the next 30 years and suggested that the risk analysis be reviewed by epidemiologists with expertise in the spread of and resistance to infectious diseases. A summary of the comments and the responses thereto are presented here.

Comment 1: Several commenters indicated that listing black abalone as endangered is not enough to ensure survival of the species and questioned how active management will halt the progression of withering syndrome.

Response: The final listing of black abalone as endangered under the ESA offers protection to the species by prohibiting all of the activities outlined in section 9 of the ESA (e.g., importation, exportation, take, possession, sale, and delivery) that directly or indirectly affect endangered species. These prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. Section 7(a)(2) of the ESA requires Federal agencies to consult with NMFS to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify critical habitat.

We acknowledge that managing the threat of withering syndrome will be difficult, especially because the etiology of the pathogen that causes the disease is unknown. However, the ESA requires that we evaluate all of the threats that a species faces and base our listing determination on that evaluation. Individual threats will be addressed in a recovery plan and through a critical habitat designation, both of which will be developed subsequent to this final rule. The recovery plan and subsequent rulemaking to designate critical habitat will incorporate the best available scientific information on methods to minimize the threat of withering syndrome in areas that have been exposed to it and halt further progression of the disease to areas that remain unaffected.

Comment 2: Several commenters urged NMFS to initiate a multi-step recovery plan. It was suggested that a large part of the recovery process needs to be focused on how to treat and eliminate withering syndrome because that is the major cause for the species' decline. One commenter provided information that there are disease-resistant abalone present at San Nicolas Island and felt that these should be used in a breeding program as part of a recovery plan. Another commenter suggested that the recovery plan identify the Channel Islands as an area for restoration activities because the islands historically supported high abundances of black abalone, are protected from certain stressors because of their isolation from the mainland, have an additional law enforcement presence, and currently support a well-established abalone research and monitoring program.

Response: We recognize the urgent need for a recovery plan and will assemble a team of abalone experts to assist in the development of a recovery plan for the species. This recovery plan will specify recovery actions that should be carried out (e.g., disease treatment and elimination, restoration, enhancement); the geographic scope of recovery actions; and demographic, threats-based and long-term monitoring criteria that must be met in order to remove black abalone from the endangered species list. If the existence of withering syndrome-resistant black abalone is confirmed, we will consider incorporating their use into a captive propagation and enhancement program. The Channel Islands area should be emphasized in the recovery plan both in terms of continued monitoring and research and new restoration activities.

Comment 3: Two commenters were concerned about the threats of anthropogenic green house gas emissions, sea level rise, elevated water temperatures and ocean acidification to black abalone. One commenter was concerned about the entrainment and/or impingement risks posed by activities that involve the intake of seawater (e.g., desalination plants, coastal power generating facilities, and liquefied natural gas terminals). These commenters asserted that the proposed rule failed to identify and assess these threats adequately.

Response: Sea level rise and elevated water temperatures, induced by long-term climate change, were identified as threats to black abalone in the draft status review report that supported our proposed rule (VanBlaricom et al. , 2007). On a scale ranging from low to high overall threat level, sea level rise was assigned a medium threat level and elevated water temperature was assigned a high threat level. A few studies have examined the effects of rising sea surface temperature on abalone at the individual level and indicate that elevated temperatures are likely to have negative consequences on those abalone species associated with cooler water temperatures and on abalone species that are particularly susceptible to withering syndrome. For example, when red abalone were held at elevated laboratory water temperatures over the course of a year (Vilchis et al. , 2005), growth and reproduction halted and mortality due to withering syndrome rose significantly. We are not aware of any studies that have examined the potential effects of sea level rise on abalone. While the extent of future impacts resulting from sea level rise remains uncertain, sea level rise may result in loss of suitable black abalone habitat in preferred depth range because of increased erosion, turbidity and siltation.

We have revised the threat assessment in the status review report to analyze the impacts of ocean acidification resulting from the elevated carbon dioxide levels in the world's oceans (VanBlaricom et al. , 2008). Ocean acidification was assigned an overall threat level of medium. A few studies have examined the effects of elevated ocean acidity on marine gastropods and the coralline algae they graze upon at settlement. Reduced growth and survivorship resulted when marine gastropods were exposed to a small pH reduction over the course of six months (Shirayama and Thornton, 2005), and calcification rates dropped by as much as 40% in coralline algae exposed to increased partial pressure of CO 2 (Feely et al. , 2004). Thus, although the magnitude and timing of ocean acidification remain uncertain, reduced ocean pH levels may result in mortality, lower reproductive potential, and reduced individual growth of black abalone.

While we recognize that long-term climate change in coastal marine systems will result in a number of abiotic shifts that could affect black abalone, the biological responses to these shifts at the population, species and ecosystem levels are complex and not yet predictable. Thus, the magnitude and timing of the risks associated with long-term climate change remain uncertain and require future studies and better predictive models (Harley et al. , 2006). However, the overall threat rankings assigned to sea level rise, elevated water temperatures, and reduced pH levels are correct according to the criteria used in the threats assessment and described in more detail in the status review report (VanBlaricom et al. , 2008).

We acknowledge that entrainment or impingement of young stages of black abalone is possible when activities that require intake of seawater are conducted (e.g., desalination plants, coastal power generating facilities, and liquefied natural gas terminals) and have revised the threats assessment in the status review report accordingly (VanBlaricom et al. , 2008). Entrainment and/or impingement were assigned an overall threat level of low, because their severity and geographic scope were considered to be low and because there is a high degree of uncertainty regarding whether this threat affects black abalone. We are unaware of any studies that have assessed the historic, current or future effects of entrainment and/or impingement on abalone. However, certain aspects of the life history of black abalone suggest that entrainment/impingement risk could be relatively low. Larvae and juveniles are not likely to be in close proximity to seawater intakes because black abalone adults are believed to spawn in relatively protected and confined rocky crevices and cracks, larval dispersal time is limited (about 3-10 days before settlement and metamorphosis; McShane, 1992), larvae may disperse over distances of only a few meters (Chambers et al. , 2005), and genetic analyses support minimal gene flow among populations and a low degree of interchange via larval dispersal (Hamm and Burton, 2000).

Comment 4: Two commenters felt that designating critical habitat should be a top priority and urged NMFS to consider designating critical habitat throughout the historic range of black abalone. One commenter suggested that sufficient higher elevation areas should be considered as critical habitat to account for rising sea level. Another commenter proposed that the Channel Islands should be included in a critical habitat designation for black abalone.

Response: NMFS solicits information on critical habitat features and intends to proceed with a proposed designation in a subsequent rulemaking. A team of experts will be convened to evaluate the best scientific information available on geographical areas occupied by black abalone at the time of listing, including areas of the Channel Islands, that contain physical or biological features essential to the conservation of the species and which may require special management considerations or protection. The team will also evaluate whether areas outside the geographical area occupied by the species at the time of listing, including some areas of the Channel Islands, areas within the historic range of the species, and higher elevation areas along the coast, are essential for the conservation of the species.

Comment 5: One commenter felt that the proposed rule was not an accurate assessment of the extinction risk to black abalone, and to get an accurate assessment, epidemiologists with expertise in withering syndrome would need to be consulted. The commenter also questioned whether withering syndrome should be considered the primary threat to near-term extinction of black abalone given that recent literature suggests that infectious diseases play a limited role in promoting extinction of species.

Response: The methods used for evaluating extinction risk in black abalone provide an accurate assessment of the probability of near-term extinction. The SRT used a simple quantitative model, incorporating uncertainty, to assess the risk that withering syndrome poses to black abalone. The method relies on the expert opinions of the SRT members and quantitative information presented in the status review report. First, a range of categorical probabilities was established for two scenarios: (1) that the spread of withering syndrome will cease, and (2) that black abalone will develop resistance to withering syndrome over the next 30 years. After considering the data collected and analyzed in previous sections of the status review report, SRT members adjusted the probabilities according to how certain they were that a particular probability category would occur. Finally, a single belief-weighted overall probability of effective extinction in 30 years of 96 percent was determined. All of the status review team members were certain that the probabilities of scenario (1) or (2) occurring were very low (less than 15 percent).

Although the commenter refers to recent literature suggesting that infectious diseases play a limited role in promoting extinction, the conclusions reached in the cited literature do not apply in the case of black abalone, as is well documented in the status review report. Specifically, the correlation between increased spread and manifestation of withering syndrome with elevated water temperatures, evidence of a variety of factors that can lead to rising ocean temperatures over large geographic scales, and the unequivocal empirical record of large scale population declines and little evidence of local recovery all suggest that withering syndrome will continue to play a significant role in determining the future of black abalone. In addition, there is now substantial concern among scientists and marine resource managers about the emergence of virulent diseases in marine organisms on a global scale in association with ocean warming in recent decades (e.g., Harvell et al. , 1999; Harvell et al. , 2002). Recent surveys of the literature suggest that the frequency of reporting of new diseases has increased for several major marine taxa, including mollusks (e.g., Ward and Lafferty, 2004).

The commenter questioned whether the status review team members were experts in disease ecology and, if not, was concerned that the team might not be qualified to assess the species' risk of extinction due to withering syndrome. Currently, we are not aware of any epidemiologists that specialize in withering syndrome, as it is a fairly new disease. Because the etiology of the pathogen that causes the disease is unknown and no epidemiological expertise exists, a team of scientists and resource managers familiar with the demography and ecology of black abalone and its decline was sufficient to assess the near-term risk that withering syndrome poses to the species. While our team members may not have had expertise in the evolution of disease resistance, the team's assessment of near-term extinction risk due to withering syndrome is the best scientific information available and an appropriate basis upon which to list black abalone as endangered because: (1) the team considered all of the relevant data on risks associated with the spread of withering syndrome and the disease's prevalence; and (2) emergence of widespread disease resistance within the next 30 years is unlikely given that it has not occurred during the previous 20 years of marked recorded decline.

The ESA defines a species as “any species or subspecies of wildlife or plants, or any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.” Black abalone is a marine invertebrate and is not a subspecies; therefore, we list black abalone at the species level.

Black abalone has experienced major declines in abundance that prompted closure of the commercial and recreational fisheries in 1993 and resulted in local extinctions and low local densities in the majority of long-term monitoring studies in California (Tissot, 2007). These declines have been particularly severe in the Channel Islands which were major foci for the commercial fishery from 1970-1993 and where abalone densities were high (greater than 40 m-2) as late as the mid-1980s. Although the geographic range of black abalone extends to northern California, the vast majority of abalone populations have historically occurred south of Monterey, particularly in the Channel Islands (Cox, 1960; Karpov et al. , 2000). Thus, black abalone populations have been severely reduced in areas that comprised the majority of the adult abalone populations in California.

Natural recovery of severely reduced abalone populations can be a very slow process (e.g., Tegner, 1992). This is largely due to the low reproductive success of widely dispersed adult populations coupled with short larval dispersal distances (see “Reproduction and Spawning Density” in VanBlaricom et al. , 2008). Therefore, severely reduced populations, in addition to providing few reproductive adults, also experience reduced success of fertilization and recruitment of larval abalone.

Moreover, many studies have shown that abalone larvae are generally not widely dispersed. For example, Prince et al. (1988) and McShane (1992) showed a strong correlation between the abundances of adult and newly recruited abalone at several sites in South Australia, which suggests that larvae are not dispersed very far from their point of origin. Similarly, Tegner (1992) showed that recruitment of juvenile green abalone was rare in Palos Verdes, California, where adult abalone were very uncommon even though abundant adult stocks were found less that 30 km away in the Channel Islands. Thus, although more abundant black abalone populations occur in central and perhaps northern California, decimated stocks in southern California are unlikely to receive significant recruitment from these distant populations (Hamm and Burton, 2000).

Studies indicate that a local adult density “threshold” exists and influences local recruitment. Below the critical threshold density gametes released by males and females into the water column do not meet successfully and fertilization does not take place. Recovery will largely depend on the density of local brood stocks and whether this density is below the critical value necessary for successful recruitment (Tegner, 1992). Based on empirical data from three long-term studies of black abalone in California, recruitment failure occurred below adult densities of 0.75-1.10 m-2 (Tissot, 2007). Given that the majority of populations south of Cayucos in central California are below this threshold, many significantly so, it seems unlikely that these populations will be able to recover naturally to their former abundances, at least in the near future. Moreover, given the continued decline of most populations and the continued northward expansion of withering syndrome with warming events (Raimondi et al. , 2002), it seems likely that black abalone populations will continue to decline across their range.

The demographic risks that black abalone face were assessed by considering four demographic criteria (abundance, growth rate/productivity, spatial structure/connectivity, and genetic diversity) and other key risks (e.g., threats). The SRT unanimously viewed black abalone as being at high risk of extinction throughout all or a significant portion of its range due to low abundance, low growth and productivity, compromised spatial structure and population connectivity, low genetic diversity, and the continued manifestation and spread of withering syndrome. This assessment is presented in more detail in the status review report (VanBlaricom et al. , 2008) and in the proposed rule to list black abalone as endangered under the ESA (73 FR 1986; January 11, 2008).

VanBlaricom et al. (2008) calculated the probability of extinction with time using a simple formula that accounts for the main threat that black abalone faces: withering syndrome. The probability of extinction is considered as a function of two parameters (R=the probability that the northward spread of withering syndrome will cease very soon and S=the probability that resistance will emerge very soon in the host). If this threat alone results in a high risk of extinction in a short time (i.e. 30 years- the expected life span of black abalone), then analysis of that factor alone may suffice to evaluate whether the species is in danger of extinction currently or in the foreseeable future. Assuming R and S are independent, the overall probability of functional extinction (i.e. the reproductive potential of isolated survivors is zero and no viable populations remain) in 30 years based on the SRT members' best professional judgment was 96 percent.

According to section 4 of the ESA, the Secretary of Commerce (Secretary) determines whether a species is threatened or endangered as a result of any (or a combination) of the following factors: the present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; or other natural or man-made factors affecting its continued existence. Collectively, these are often referred to as “factors for decline” or “listing factors."

To determine the species' present vulnerability to extinction, we considered the historic, current, and/or potential impact of the listing factors on black abalone, as these relate to current species distribution and abundance, and the other demographic factors discussed above.

Elevated water temperatures are likely to have contributed to the decline of black abalone and pose a serious threat to the ability of the species to persist, because elevated water temperatures are correlated with accelerated rates of withering syndrome transmission and disease-induced mortality. Water temperatures can become elevated because of anthropogenic sources of thermal effluent and long and short-term climate change (e.g., global climate change and El Nino Southern Oscillation). Although there is no explicitly documented causal link between the existence of withering syndrome and long-term climate change, patterns observed over the past three decades suggest that progression of ocean warming associated with large-scale climate change may facilitate further and more prolonged vulnerability of black abalone to effects of withering syndrome.

Other activities leading to substrate destruction, such as coastal development, recreational access, cable repairs, nearshore military operations and benthic community shifts, have a narrow geographic scope, uncertain or indirect effects on black abalone, or occur infrequently. Some exceptions may exist in the cases of sedimentation and sea level rise, because these threats have the potential to produce more widespread impacts; but the certainty that these factors will affect black abalone are low. For example, sea level rise may result in loss of suitable habitat in a preferred depth range because of increased erosion, turbidity and siltation; but we currently lack information to determine whether these habitat changes will be important factors for further decline.

Finally, reduced food quality and quantity were classified as having a relatively low impact. Studies have shown that reductions and increases in kelp abundance are not correlated with black abalone abundance (e.g., Friedman et al. , 1997). Thus, reduced food quality and quantity has likely not played an important role in the overall decline of black abalone, and unless new information surfaces, this factor is not believed to pose a significant threat in the future.

Throughout most of the species' range, local densities are below the critical threshold density required for successful spawning and recruitment. These low densities have occurred in part because of overutilization for commercial and recreational purposes prior to the California fishery closure in 1993. (The other major cause for these mass moralities is withering syndrome. See Disease or Predation below). Data from abalone fisheries in California and Baja California, Mexico indicate a decline in landings of at least 93 percent during the 1990s. These reductions, however, may not be indicative of population declines due only to fishing activities because mass mortalities due to withering syndrome had begun in many locations at approximately the same time. Rogers-Bennett et al. (2002) estimate that the California abalone fisheries may have contributed up to a 99 percent reduction in black abalone abundance in the USA, but the population may have already been declining due to the effects of withering syndrome (see Status of Black Abalone above). Thus, the estimated take of 3.5 million black abalone in California's commercial and recreational abalone fisheries likely contributed to the decline of local densities. This threat no longer exists in California because the black abalone fisheries were closed in 1993. The limited information we have from Mexico makes it difficult to ascertain the relative importance of fishing to overall species decline.

Withering syndrome in black abalone is caused by a Rickettsia-like prokaryotic organism, “ Candidatus Xenohaliotis californiensis ” (Gardner et al. , 1995; Friedman et al. , 1997; Friedman et al. , 2000; Friedman et al. , 2002). Candidatus Xenohaliotis californiensis (hereafter “abalone rickettsia”) occurs in epithelial cells of the gastrointestinal tract. Infected symptomatic animals are unable to transfer digested food materials from the gut lumen into the epithelial cells and beyond, resulting in malnutrition, dramatic loss of tissue mass, and eventual death. The same pathogen is known to cause symptoms of withering syndrome in red abalone, and mortality rate is positively associated with water temperature in both red and black abalone (Moore et al. , 2000a, b; Vilchis et al. , 2005).

The first reported occurrence of significant numbers of black abalone with symptoms of withering syndrome on the California mainland was in San Luis Obispo County in 1988 (Steinbeck et al. , 1992). Afflicted animals were found primarily within a cove receiving warmed effluent seawater from the cooling system of a nearby nuclear power plant. A mass mortality of black abalone occurred at the site between 1988 and 1989, with mortality rates correlating well to local patterns of sea temperature elevation associated with power plant effluent (Steinbeck et al. , 1992).

In wild animals symptomatic for withering syndrome, weakness resulting from the disease may cause the individual to lose the typically secure grip on the rocky substratum in response to wave impacts, allowing attack by predators or scavengers before the individual succumbs to the disease itself. Transfer of pathogens from animal to animal is fecal to oral on a local scale, and is therefore likely facilitated by aggregation of abalone in natural habitats. Transmission pathways on large spatial scales are entirely unknown at present. The pathogen for withering syndrome is now reported to be endemic to all the coastal marine waters of central (Friedman and Finley, 2003) and southern California (Moore et al. , 2002) south of San Francisco.

In the vast majority of cases where long-term monitoring data are available, the appearance of animals symptomatic for withering syndrome in a population lead inevitably to rapid and dramatic declines in population size, most often in excess of 90 percent (Tissot, 2007). The pattern has been documented for black abalone populations throughout the range in California. Reports indicate similar trends for black abalone populations in Mexico. Exceptions exist at San Miguel Island, where rates of decline at some long-term study sites have been atypically slow, and at one location each on Santa Cruz and San Nicolas islands. These exceptions suggest the potential for resilience and recovery in populations reduced dramatically by withering syndrome. However, Tissot (2007) describes the negative impacts of withering syndrome in multiple locations across the entire range of the species, coupled with evidence of increasing geographic scope of impact. Tissot (2007) indicates that withering syndrome continues to damage the size and sustainability of black abalone populations on a large scale.

We conclude that withering syndrome has been and continues to be the primary threat contributing to the decline of black abalone. The disease has caused mass mortality and near extirpation of populations throughout most of the species' range and the disease continues to spread to populations in Monterey County and to the north. The rate at which the disease is spreading northward will likely be exacerbated by warmer water temperatures that may result due to a variety of factors.

Abalone face predatory pressure from a number of consumer species such as gastropods, octopuses, lobsters, sea stars, fishes and sea otters (Ault, 1985; Estes and VanBlaricom, 1985; Shepherd and Breen, 1992). Despite the large number of identified abalone predators, we are aware of no studies that estimate mortality rates of black abalone in association with the predator species that have been identified. In the past black abalone populations were much more robust and able to absorb losses due to predation without compromising viability. Now that the few remaining populations are smaller, more isolated, and still declining throughout the range, predation may pose risk to the future survival of the species. In addition, non-anthropogenic predation could limit the effectiveness of future recovery efforts by interacting with other limiting factors.

Although withering syndrome is spread largely by factors other than aquaculture, there is evidence suggesting that aquaculture operations provide a pathway for the spread of the disease (Friedman and Finley, 2003). Past State and federal regulations were not adequate to prevent the spread of withering syndrome within and outside the United States through the transfer of infected animals from one aquaculture facility to another and outplanting of infected animals from aquaculture facilities to the wild.

Recent State regulations to carefully monitor the health of abalone at aquaculture facilities and control the importation/exportation of abalone among facilities will likely reduce the threat that the aquaculture industry poses in the future. Currently, the State monitors aquaculture facilities for introduced organisms and disease on a regular basis. There is also a restriction on out-planting abalone from facilities which have not met certification standards. If new State regulations to carefully monitor aquaculture facilities are effective, the future threat that they pose to black abalone will be limited. In fact, aquaculture may emerge as an important, and possibly the only effective recovery tool for restoring black abalone populations through captive propagation and outplanting efforts.

Purposeful illegal harvest, typically termed poaching, has been a source of mortality for black abalone throughout their range since the establishment of harvesting regulations by the State of California (Taniguchi, unpublished data). Since the closure of the California black abalone fishery in 1993, a number of black abalone poaching cases along the California mainland coast, particularly in the northern portion of black abalone's geographic range, have been documented by the California Department of Fish and Game (CDFG) from 1993-2003 (Taniguchi, unpublished data). The chronic virtual absence of black abalone populations from highly accessible intertidal habitats near human population centers in California during the twentieth century also supports the conclusion that poaching has been a source of abalone mortality.

Enforcement effort has varied over the ten-year time period of 1993-2003, and was increased in 2000 because of coordinated efforts between CDFG marine and coastal regions and planned overflights along the Central California coast during low tides. The problem of poaching persists, and existing regulatory mechanisms have not yet effectively reduced the risks posed by illegal take.

Environmental pollutants and toxins are likely present in areas where black abalone have occurred and still occur, but evidence suggesting causal and/or indirect negative effects on black abalone due to exposure to pollutants or toxins is limited (e.g., Martin et al. , 1977; Miller and Lawrenz-Miller, 1993). There is ongoing concern that accidentally spilled oil from offshore drilling platforms or various types of commercial vessels could occur near shore in California and could affect a significant proportion of black abalone habitat; however, at this time we are uncertain how such an event would impact the species' overall status. The overall risk that environmental pollutants and toxins have posed is probably low given their limited geographic scope and uncertain effects on black abalone; however, a single event, depending on where it occurs, could irreparably damage one or more of the few remaining viable populations of black abalone.

A small number of studies have examined the effects of elevated ocean acidity on marine gastropods and the coralline algae they graze upon at settlement. Although the magnitude and timing of ocean acidification remain uncertain and no direct linkages have been established between ocean acidification and black abalone, reduced pH levels have the potential to result in mortality, lower reproductive potential, and reduced individual growth.

Entrainment or impingement of young stages of black abalone may result when activities that require intake of seawater are conducted (e.g., desalination plants, coastal power generating facilities, and liquefied natural gas terminals). Entrainment or impingement risk is likely to be relatively low because larvae and juveniles are spatially and temporally restricted (McShane, 1992; Chambers et al. , 2005, Hamm and Burton, 2000). Thus, the potential for large numbers of young black abalone to be present in a volume of water that becomes entrained at a sea water intake is likely low. However, until studies examine the potential for traditional and new power generating methods to entrain or impinge early life stages of black abalone, the effects of these activities on the species remain highly uncertain.

The SRT concluded unanimously that black abalone is in danger of extinction throughout all of its range. The spread of withering syndrome poses imminent and significant risk to the species and exacerbates the high levels of demographic risk to which black abalone are subject as a result of extremely low local densities, low levels of growth and productivity, limited spatial structure and connectivity, and loss of genetic diversity. In addition, the SRT estimated that there is approximately a 96 percent probability that black abalone will suffer functional extinction throughout its range within the next 30 years.

When considering the listing of a species, section 4(b)(1)(A) of the ESA requires consideration of efforts by any State, foreign nation, or political subdivision of a State or foreign nation to protect such species. Such efforts would include measures by Native American tribes and organizations and local governments, and may also include efforts by private organizations. Also, Federal, tribal, state, and foreign recovery actions developed pursuant to 16 U.S.C. 1533(f) constitute conservation measures. On March 28, 2003, NMFS and the U.S. Fish and Wildlife Service (USFWS) published the final Policy for Evaluating Conservation Efforts (PECE)(68 FR 15100). The PECE provides guidance on evaluating current protective efforts identified in conservation agreements, conservation plans, management plans, or similar documents (developed by Federal agencies, state and local governments, tribal governments, businesses, organizations, and individuals) that have not yet been implemented or have been implemented but have not yet demonstrated effectiveness. The PECE establishes two basic criteria for evaluating current conservation efforts: (1) the certainty that the conservation efforts will be implemented, and (2) the certainty that the efforts will be effective. The PECE provides specific factors under these two basic criteria that direct the analysis of adequacy and efficacy of existing conservation efforts. As evaluated pursuant to PECE, the protective efforts described below do not as yet, individually or collectively, provide sufficient certainty of implementation and effectiveness to counter the extinction risk assessment conclusion that the species is in danger of extinction throughout its range.

Black abalone was added to NMFS= Candidate Species List on June 23, 1999 (64 FR 33466), and remained on this list after we redefined the term “candidate species” on April 15, 2004 (69 FR 19975). Candidate species are those petitioned species that are actively being considered for listing as endangered or threatened under the ESA, as well as those species for which we have announced initiation of an ESA status review in the Federal Register . Black abalone was also added to the NMFS' Species of Concern List, which was created on April 15, 2004 (69 FR 19975). Species of concern are those species about which we have some concerns regarding status and threats, but for which insufficient information is available to indicate a need to list the species under the ESA. . Neither the “candidate species” nor “species of concern” classification carries any procedural or substantive protections under the ESA.

Three coastal national marine sanctuaries in California contain intertidal habitat suitable for black abalone: Channel Islands National Marine Sanctuary (CINMS), Monterey Bay National Marine Sanctuary (MBNMS), and Gulf of the Farallones National Marine Sanctuary (GFNMS). These sanctuary sites, administered by NOAA, are protected by federal regulations pursuant to the National Marine Sanctuaries Act of 1972 as amended (16 U.S.C. 1431 et seq. ). See 15 CFR parts 922.71, 922.132, and 922.91, respectively. The regulations, which are similar at all three sites, provide protection against some of the threats to black abalone. At all three sanctuaries, the inshore boundary extends to the mean high water line, thus encompassing intertidal habitat.

Direct disturbance to or development of black abalone intertidal habitat is regulated at all three national marine sanctuaries. The regulations at all three sanctuaries require permits for the alteration of, construction upon, drilling into, or dredging of the seabed (including the intertidal zone), with exceptions for anchoring, installing navigation aids, special dredge disposal sites (MBNMS only), harbor-related maintenance, and bottom tending fishing gear in areas not otherwise restricted.

Water quality in black abalone habitat is regulated by strict discharge regulations at all three national marine sanctuaries. The regulations require permits for the discharge or deposit of pollutants within or into sanctuaries, except for the discharge or deposit of effluents required for normal boating operations (e.g., vessel cooling waters and effluents from marine sanitation devices, fish wastes and bait).

In addition to the permit requirement for the disturbance of the submerged lands of any sanctuary resource, which would be necessary to take black abalone, networks of marine reserves and marine conservation areas have been established by the CDFG and NOAA within the CINMS and by CDFG along portions of the MBNMS. Within these areas, especially within CINMS where the protected areas have been in place since 2003 and are within the Channel Islands National Park, multi-agency patrols provide elevated levels of enforcement presence and increased protection against poaching of black abalone.

We conclude that these regulations do not sufficiently ameliorate the extinction risk facing the species. Though the regulations may help slow the rate at which withering syndrome, the main risk facing the species, is progressing, they are unlikely to stop the progression of withering syndrome in the near future.

The depleted condition of abalone resources prompted the California Fish and Game Commission to close all abalone fisheries south of San Francisco by 1997, beginning with the black abalone fishery in 1993. The southern abalone fishery was closed indefinitely with the passage of the Thompson bill (AB 663) in 1997. This bill created a moratorium on taking, possessing, or landing abalone for commercial or recreational purposes in ocean waters south of San Francisco, including all offshore islands. The Thompson bill also mandated the creation of an Abalone Recovery and Management Plan (ARMP), which was finalized in December 2005. The bill further required the Fish and Game Commission to undertake abalone management in a manner consistent with the ARMP.

The CDFG's ARMP provides a cohesive framework for the recovery of depleted abalone populations in southern California, and for the management of the northern California fishery and future fisheries. All of California's abalone species are included in this plan: red, green, pink, white, pinto ( Haliotis kamtschatkana , including H.k. assimilis ), black, and flat abalone ( H. walallensis ). The ARMP provides a mechanism for helping to slow the progression of disease and invasive/exotic species through better monitoring of aquaculture facilities; however, this effort may only make a relatively small difference to the threat that disease poses given that spread of withering syndrome is due largely to factors other than aquaculture operations. The ARMP also provides a framework for restoring black abalone populations through translocation and captive propagation and enhancement programs; however, detailed plans and methodologies have neither been drafted nor tested and therefore their effectiveness for conserving black abalone remains uncertain.

The International Union for Conservation of Nature and Natural Resources (IUCN) publishes a Red List of species that are at high risk of extinction and, when data are sufficient, categorizes species as either Extinct, Extinct in the Wild, Critically Endangered, Endangered, Vulnerable, Near Threatened, or of Least Concern (IUCN, 2001). In 2003 the IUCN, based on an assessment by Smith et al. (2003), placed black abalone on the Red List as Critically Endangered under criterion A4e. Under criterion A4e, a species may be classified as Critically Endangered, Endangered, or Vulnerable when its population size, measured over the longer of 10 years or three generations, has declined greater than or equal to 80, 50, or 30 percent respectively, due to an “observed, estimated, inferred, projected or suspected population reduction (up to a maximum of 100 years) where the time period must include both the past and the future, and where the causes of reduction may not have ceased or may not be understood or may not be reversible, based on the effects of introduced taxa, hybridization, pathogens, pollutants, competitors or parasites” (IUCN, 2006). Inclusion on the IUCN Red List does not carry any regulatory weight with regard to conserving black abalone.

Section 4(b)(1) of the ESA requires that the listing determination be based solely on the best scientific and commercial data available, after conducting a review of the status of the species and after taking into account those efforts, if any, being made by any state or foreign nation to protect and conserve the species. We have reviewed the petition, the draft status report and the public comments, considered protective efforts being made and other available published and unpublished information, and consulted with species experts and other individuals familiar with black abalone. On the basis of the best available scientific and commercial information, we conclude that black abalone is presently in danger of extinction throughout all of its range. This endangered determination is based on a suite of risks that black abalone face especially: (1) the spread of and mortality caused by a disease called withering syndrome; (2) low adult densities below the critical threshold density required for successful spawning and recruitment; (3) elevated water temperatures that have accelerated the spread of withering syndrome; (4) reduced genetic diversity that will render extant populations less capable of dealing with both long- and short-term environmental or anthropogenic challenges; and (5) illegal harvest. The principal threat to black abalone is withering syndrome and associated conditions that may promote the spread of the disease (e.g., suboptimal water temperatures and introduction of infected animals into previously unaffected areas). Withering syndrome has caused mass mortality and near extirpation of populations in the recent past, and the spread of withering syndrome threatens the species with a very high probability (96 percent) of extinction within the next 30 years. This threat is unlikely to be ameliorated sufficiently by current conservation efforts.

Section 9 of the ESA prohibits certain activities (e.g., importation, exportation, take, sale, and delivery) that directly or indirectly affect endangered species. These activities would constitute a violation of section 9, and prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction. Sections 10(a)(1)(A) and (B) of the ESA authorize NMFS to grant exceptions to the ESA's section 9 take prohibitions. Section 10(a)(1)(A) scientific research and enhancement permits may be issued to entities (Federal and non-federal) for scientific purposes or to enhance the propagation or survival of a listed species. Activities potentially requiring a section 10(a)(1)(A) research/enhancement permit include scientific research that targets black abalone. Under section 10(a)(1)(B), the Secretary may permit takings otherwise prohibited by section 9(a)(1)(B) if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity, provided that the requirements of section 10(a)(2) are met.

Section 7(a)(2) of the ESA requires Federal agencies to consult with NMFS to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or to destroy or adversely modify critical habitat. Under section 7(a)(4), Federal agencies must confer with us on any of these activities to ensure that any such activity is not likely to jeopardize the continued existence of a species proposed for listing or destroy or adversely modify proposed critical habitat. Examples of Federal actions that may affect black abalone include permits and authorizations relating to coastal development and habitat alteration, oil and gas development, military operations, coastal power plant operations, toxic waste and other pollutant discharges, and aquaculture operations.

On July 1, 1994, NMFS and USFWS published a policy to identify, to the maximum extent possible, those activities that would or would not constitute a violation of section 9 of the ESA once a species is listed (59 FR 34272). The intent of this policy is to increase public awareness of the effect of listings on proposed and ongoing activities within the species' range. We identify, to the extent known, specific activities that will be considered likely to result in violation of section 9, as well as activities that will not be considered likely to result in violation. Activities that we believe could result in violation of section 9 prohibitions against ''take'' of black abalone include: (1) unauthorized take; (2) activities that directly result in elevation of sea surface temperatures (e.g. thermal effluent from power plants); (3) substrate destruction in intertidal habitats that adversely affects black abalone (e.g., coastal development, recreational access, oil spills, sea level rise); (4) unauthorized transfer of abalone species among aquaculture facilities or from aquaculture facilities to the wild; (5) discharging or dumping toxic chemicals or other pollutants into areas used by black abalone; and (6) unpermitted scientific research activities. We believe, based on the best available information, the following actions will not result in a violation of section 9: (1) possession of black abalone which are acquired lawfully by permit issued by NMFS pursuant to section 10 of the ESA, or by the terms of an incidental take statement pursuant to section 7 of the ESA; (2) federally funded or approved projects for which ESA section 7 consultation has been completed, and when activities are conducted in accordance with any terms and conditions provided by NMFS in an incidental take statement accompanying a biological opinion. These lists are not exhaustive. They are intended to provide some examples of the types of activities that might or might not be considered by NMFS as constituting a take of black abalone under the ESA and its regulations.

Critical habitat is defined in section 3 of the ESA as: (i) the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed upon a determination that such areas are essential for the conservation of the species (16 U.S.C. 1532(5)(A)). “Conservation” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary (16 U.S.C. 1532(3)). Section 4(a)(3)(A) of the ESA requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the listing of a species (16 U.S.C. 1533(a)(3)(A)(i)). If critical habitat is not determinable at the time of listing, an extension of one year may be given, during which critical habitat must be designated (16 U.S.C. 1533(b)(6)(C)(ii)). Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. Once critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure that they do not fund, authorize or carry out any actions that are likely to destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that Federal agencies ensure that their actions do not jeopardize the continued existence of listed species. We are currently considering critical habitat for black abalone, but a proposed designation is not yet determinable because: (1) we lack information sufficient to perform required analyses of the impacts of the designation; and (2) the habitat requirements of the species are not sufficiently well known to permit identification of an area as critical habitat. Thus, we seek public input to assist in gathering and analyzing the best available scientific data and information to support a critical habitat designation, which will be proposed in a subsequent Federal Register notice. Specifically, we seek information regarding: (1) current or planned activities within the range of black abalone, their possible impact on black abalone, and how those activities could be affected by a critical habitat designation; (2) quantitative evaluations describing the quality and extent of marine intertidal or subtidal habitats occupied in the past or presently by black abalone; and (3) the economic costs and benefits likely to result from the designation of critical habitat. We will continue to meet with co-managers and other stakeholders throughout the designation process.

Joint NMFS/USFWS regulations for listing endangered and threatened species and designating critical habitat at section 50 CFR 424.12(b) state that the agency “shall consider those physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection” (hereafter also referred to as “essential features”). Pursuant to the regulations, such requirements include, but are not limited to the following: (1) space for individual and population growth, and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for breeding, reproduction, rearing of offspring, germination, or seed dispersal; and generally; (5) habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species. These regulations go on to emphasize that the agency shall focus on essential features within the specific areas considered for designation. These features “may include, but are not limited to, the following: spawning sites, feeding sites, seasonal wetland or dryland, water quality or quantity, geological formation, vegetation type, tide, and specific soil types.”

To ensure that a designation of critical habitat will be as accurate and effective as possible, we solicit information from the public, other governmental agencies, the scientific community, industry, and any other interested parties. Specifically, we are interested in any information that will inform the designation including: (1) quantitative evaluations describing the quality and extent of marine intertidal or subtidal habitats (occupied currently or occupied in the past, but no longer occupied) for black abalone as well as information on areas that may qualify as critical habitat for black abalone in the future; (2) biological or other relevant data concerning threats to black abalone including, but not limited to: toxicological studies on the adverse effects of chemicals on black abalone and epidemiological data relating to withering syndrome; (3) current or planned activities within the range of black abalone and their possible impact on black abalone; (4) efforts being made to protect black abalone; (5) activities that could be affected by a critical habitat designation; and (6) the economic costs and benefits of additional requirements of management measures likely to result from the designation of critical habitat (see DATES and ADDRESSES ).

A complete list of all references cited herein is available upon request (see ADDRESSES section).

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus , 675 F. 2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA; See NOAA Administrative Order 216 6.)

As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this rule is exempt from review under Executive Order 12866. This proposed rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

NMFS has conferred with the State of California in the course of assessing the status of black abalone through quarterly coordination meetings between the CDFG and NMFS and CDFG technical peer review of the black abalone draft status review report. The coordination meetings contributed to our consideration of Federal, state and local conservation measures. The CDFG technical peer review comments were considered and comments and information were incorporated into the final version of the status review report. As subsequent issues with ESA compliance and rulemaking arise (e.g., issuance of permits, critical habitat designation, recovery planning), we will continue to communicate with the States, and other affected local or regional entities, giving careful consideration to all concerns and comments received.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

In accordance with § 679.20(a)(8)(iii)(A), owners and operators of vessels using trawl gear for directed fishing for Atka mackerel in the HLA are required to register with NMFS. Fourteen vessels have registered with NMFS to fish in the A season HLA fisheries in areas 542 and/or 543. In accordance with § 679.20(a)(8)(iii)(B), the Administrator, Alaska Region, NMFS, has randomly assigned each vessel to the HLA directed fishery for Atka mackerel for which they have registered and is now notifying each vessel of its assignment in accordance with § 679.20(a)(8)(iii).

For the Amendment 80 cooperative, the vessels authorized to participate in the first HLA directed fishery in area 542 and the second HLA directed fishery in area 543 are as follows: Federal Fishery Permit number (FFP) 2134 Ocean Peace, FFP 2733 Seafreeze Alaska, FFP 3694 Arica, and FFP 3835 Seafisher.

For the Amendment 80 cooperative, the vessels authorized to participate in the first HLA directed fishery in area 543 and the second HLA directed fishery in area 542 are as follows: FFP 1610 Rebecca Irene, FFP 2110 Cape Horn, and FFP 3369 Unimak.

For the Amendment 80 limited access sector, vessels authorized to participate in the first HLA directed fishery in area 542 and in the second HLA directed fishery in area 543 are as follows: FFP 2443 Alaska Juris and FFP 3819 Alaska Spirit.

For the Amendment 80 limited access sector, the vessels authorized to participate in the first HLA directed fishery in area 543 and the second HLA directed fishery in area 542 are as follows: FFP 3423 Alaska Warrior and FFP 4093 Alaska Victory.

For the BSAI trawl limited access sector, the vessels authorized to participate in the first HLA directed fishery in area 542 are as follows: FFP 480 Muir Milach and FFP 11770 Alaska Knight.

For the BSAI trawl limited access sector, the vessel authorized to participate in the second HLA directed fishery in area 542 is as follows: FFP 6202 Epic Explorer.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is unnecessary. This notice merely advises the owners of these vessels of the results of a random assignment required by regulation. The notice needs to occur immediately to notify the owner of each vessel of its assignment to allow these vessel owners to plan for participation in the A season HLA fisheries in area 542 and area 543.

The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

This action is required by § 679.20 and is exempt from review under Executive Order 12866.