On May 21, 2009, DOE published a NOPR proposing to amend the regulations for the Weatherization Assistance Program. 74 FR 23804. DOE believes that the proposed rule would reduce the procedural burdens on evaluating the eligibility of buildings that are part of HUD assisted housing and U.S. Department of Treasury tax credit programs for the purpose of the Weatherization Assistance Program.

DOE must receive requests to present or speak at the public meeting/webinar no later than 4 p.m., Wednesday, June 17, 2009. DOE must receive a signed original and an electronic copy of statements to be given at the public meeting no later than 4 p.m., Tuesday, June 16, 2009. Please note that foreign nationals visiting DOE Headquarters are subject to advance security screening procedures, requiring advance notice. If you are a foreign national and wish to participate in the public meeting, please inform DOE as soon as possible and no later than 5 p.m. Friday, June 12, 2009, by contacting Ms. Brenda Edwards at (202) 586-2945, or e-mail: brenda.edwards@ee.doe.gov.

The meeting is open to the public. DOE invites participation by all interested parties. For information on the agenda, bridge line and Web link for the conference call of June 18, 2009, please send an e-mail to wxhudnopr@ee.doe.gov. For information on facilities or services for individuals with disabilities or to request special assistance, please e-mail your request to wxhudnopr@ee.doe.gov by Tuesday, June 16, 2009. Please note that participants will need to be pre-cleared in advance of the meeting in order to enter the DOE headquarters building. By 4 p.m. EDT, Wednesday, June 17, 2009, e-mail wxhudnopr@ee.doe.gov, if you plan to attend the meeting to facilitate the pre-clearance process.

Conduct of Public Meeting: DOE will designate a DOE official to preside at the public meeting and may also use a professional facilitator to aid discussion. Representatives from HUD will participate in the discussions. The meeting will not be a judicial or evidentiary-type public hearing. A court reporter will be present to record and transcribe the proceedings. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting, interested parties may submit further comments about the proceedings, and any other aspect of the proposed rulemaking, by 5 p.m. EDT, Monday, July 6, 2009. The public meeting will be conducted in an informal, conference style. Each participant will be allowed to make a prepared general statement (within time limits determined by DOE) before discussion of a particular topic. DOE will permit other participants to comment briefly on any general statements. At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. Participants should be prepared to answer questions by DOE and by other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to the proposed rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for proper conduct of the public meeting.

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2009-0503; Directorate Identifier 2009-NE-12-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477-78).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2009-0002, dated January 7, 2009, (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

Turbomeca has issued Mandatory Service Bulletin No. 292 72 0276, Version B, dated November 6, 2008. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

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

Based on the service information, we estimate that this proposed AD would affect about 13 products of U.S. registry. We also estimate that it would take about 6 work-hours per product to comply with this proposed AD. The average labor rate is $80 per work-hour. Required parts would cost about $1,272 per product. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $22,776. Our cost estimate is exclusive of possible warranty coverage.

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

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

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

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

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

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

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

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

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

Background and Explanation of Provisions

The temporary regulations in the Rules and Regulations section of this issue of the Federal Register amend the Income Tax Regulations (26 CFR part 1) relating to section 7874 of the Code. The temporary regulations address certain issues relating to the treatment of a foreign corporation as a surrogate foreign corporation under section 7874(a)(2)(B). The text of the temporary regulations serves as the text of these proposed regulations, and the preamble to the temporary regulations explains these proposed regulations.

It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. Chapter 5) does not apply to these regulations. These regulations do not impose a collection of information. Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that this regulation will not have a significant economic impact on a substantial number of small entities. The complexity and cost of a transaction to which section 7874 may apply make it unlikely that a substantial number of small entities will engage in such a transaction. In addition, any economic impact to entities affected by section 7874, large or small, is derived from the operation of the statute or its intended application, not the regulations in this notice of proposed rulemaking. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The IRS and the Treasury Department request comments on the clarity of the proposed rules and how they can be made easier to understand. All comments will be available for public inspection and copying. A public hearing may be scheduled if requested by any person who timely submits comments. If a public hearing is scheduled, notice of the date, time and place for the public hearing will be published in the Federal Register .

The principal author of these proposed regulations is S. James Hawes of the Office of Associate Chief Counsel (International). However, other personnel from the IRS and the Treasury Department participated in their development.

Accordingly, under the authority of 26 USC 7805, the notice of proposed rulemaking (E6-8698) that was published in the Federal Register on June 6, 2006 (71 FR 32495) is withdrawn.

Accordingly, 26 CFR part 1 is proposed to be amended as follows:

Public Participation and Request for Comments

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2008-0171), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and mailing address, an e-mail address, or a phone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, select the Advanced Docket Search option on the right side of the screen, insert “USCG-2008-0171” in the Docket ID box, press Enter, and then click on the balloon shape in the Actions column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the Facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, select the Advanced Docket Search option on the right side of the screen, insert “USCG-2008-0171” in the Docket ID box, press Enter, and then click on the item in the Docket ID column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But, you may submit a request for a public meeting on or before July 13, 2009 using one of the four methods specified under ADDRESSES . Please explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

The Coast Guard proposes to establish seven anchorage grounds in Long Island Sound in accordance with 33 CFR 109.05 and 110.1(b).

The Coast Guard consulted with several agencies in the development of these proposed anchorage grounds, including: The Army Corps of Engineers New England District; the Army Corps of Engineers New York District; the National Oceanic and Atmospheric Administration (NOAA); the National Marine Fisheries Service (NMFS); the Connecticut Department of Environmental Protection—Office of Long Island Sound Programs; the New York Department of State; and the New York Department of Conservation. Additionally, the licensed marine pilot organizations of both Connecticut and New York were consulted due to their extensive knowledge of the usage and need for anchorage grounds in Long Island Sound.

In determining the need for, and appropriate location of, the proposed anchorage grounds, we considered several factors, including: The commercial need for anchorage grounds; proximity to ports; safety of navigation; potential impact on commercial fishing; location of dredged material disposal sites; maritime security; environmental implications; and location of known underwater obstructions, cables, pipelines, and wrecks.

The proposed anchorage grounds are designated for general purposes, but are intended primarily for use by commercial vessels of 300 gross tons and greater and all tank vessels including tank barges. This proposed regulation would not restrict anchorage in any other area of the Sound.

Creating official anchorage areas through this rulemaking would cause more vessels to anchor in these areas, in addition to the large number that already do so, thereby providing the Captain of the Port with increased options for vessels needing to anchor while awaiting authorization to enter port. The designation of anchorage grounds would provide for the safety of navigation by providing designated locations for anchorage of deep draft vessels throughout Long Island Sound, in close proximity to the major ports of Bridgeport, New Haven, and New London, Connecticut, and Riverhead, Northport, and Port Jefferson, New York. Vessels transiting Long Island Sound would be on notice that vessels may be anchored in the anchorage grounds, thus providing for the safety of navigation. There are no cable or pipeline areas running through any of the seven proposed areas. Designation of these anchorage grounds would help guide the installation of future cables or pipelines so that they are located outside of the anchorage grounds. Keeping these areas free of underwater obstructions helps ensure safe navigation.

Recently, the U.S. Environmental Protection Agency (EPA) considered the designation of one or more open-water dredged material disposal sites in the western and central regions of Long Island Sound, off the coasts of Connecticut and New York. An Environmental Impact Statement for the Designation of Dredged Material Disposal Sites in Central and Western Long Island Sound is available at: http://www.epa.gov/region01/eco/lisdreg/index.html. Two of the proposed dredged material disposal site areas are located off the coasts of Bridgeport and New Haven, Connecticut. In order to prevent disturbance of contaminated sediment, the proposed anchorage grounds off of Bridgeport and New Haven have been configured so that they are at least 1,000 yards, or one-half nautical mile, from the proposed disposal areas.

Additionally, the proposed anchorage grounds have been examined in relation to historic disposal sites. None of the proposed anchorages overlaps with a historic dredge disposal site.

The location of several submarine cables and pipelines carrying electricity and natural gas are de facto limitations on anchoring as these are hazards for vessels anchoring elsewhere in the Sound. Past anchor snags of submarine cables have interrupted use of the cable; snags also present potential hazards to the stability of vessels, as well as to the marine environment should the housing of the cable contain any environmentally harmful materials. Establishment of these anchorage grounds would provide for protection of the environment in that vessels may anchor in an area free from cables. This would provide protections against anchor strikes of submarine cables and pipelines.

We anticipate no negative impact to the fishing community, including dragging, lobster, and shellfish fishing. This proposed rule does not intend to exclude fishing activity or the transit of vessels in the anchorage grounds. Rather, the regulations would only require that all vessels maintain a distance of 500 yards from an anchored vessel that is carrying petroleum or other flammable cargo, or that is conducting bunkering or lightering operations. Such anchored vessels are readily identified as, under the proposed rule, they must display a red flag by day or a red light at night in addition to the required navigation lights and shapes. This rule would require that vessels fishing and/or transiting through the anchorages maintain that pre-established distance from said anchored vessels. We anticipate the designation of these anchorage grounds may increase the number of anchored vessels in the area; however such increase will cause only minimal interference to transiting vessels as the proposed areas have historically been utilized for anchoring. Additionally, the proposed anchorage grounds have been configured so they do not overlap with leased shellfish beds.

The NOAA Navigation Manager for the Northeast Region has provided information regarding the location of wrecks within Long Island Sound. No historical wrecked vessels are located within any of the proposed anchorage grounds.

The proposed rule would create seven new anchorage grounds named for proximity to geographical locations. The geographic locations are described below:

(1) Bridgeport Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

(2) New Haven North Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

(3) New Haven South Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

(4) New London Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

(5) Northport Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

(6) Port Jefferson Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

(7) Riverhead Anchorage Ground. That portion of Long Island Sound enclosed by a line connecting the following points:

All coordinates referenced use datum: NAD 83.

These proposed anchorage grounds are designated for general purposes, but are primarily intended for commercial vessels of 300 gross tons and greater and all tank vessels including tank barges. Except in cases of emergencies, commercial vessels of 300 gross tons and greater and all tank vessels, including tank barges anchoring in the Captain of the Port Long Island Sound Zone inside the line of demarcation, would anchor in the anchorage grounds described above.

Prior to entering any of the proposed anchorage areas, all vessels would be required to notify the Coast Guard Captain of the Port via VHF-FM Channel 16. The Captain of the Port may prescribe specific conditions for vessels anchoring within the proposed zones described in this section, pursuant to 33 CFR 109.05.

This proposed rule would require that anchors be placed well within the anchorage areas, so that no portion of the hull or rigging will at any time extend outside of the anchorage area. All anchored vessels within the designated anchorage areas would be required to comply with the regulations in 33 CFR 164.19 and maintain a continuous bridge watch by a licensed deck officer proficient in English, monitoring VHF-FM Channel 16. This individual would be required to confirm that the ship's crew performs frequent checks of the vessel's position to ensure the vessel is not dragging anchor.

Existing regulations at 33 CFR 156.118 require that, in anchorages where lightering is authorized, the Captain of the Port must be notified at least four hours in advance of a vessel conducting lightering operations. Under the proposed rule, any vessel conducting lightering or bunkering operations would be required to display by day a red flag at its mast head or at least 10 feet above the upper deck if the vessel has no mast, and by night a red light in the same position specified for the flag. These signals would be in addition to day signals, lights, and sound signals required to be shown or sounded by all vessels when at anchor in a general anchorage.

Within the proposed anchorages, fishing and navigation would be prohibited within 500 yards of an anchored vessel that is carrying petroleum or other flammable cargo, or that is conducting bunkering or lightering operations. Such anchored vessels are readily identified as they would be required to display a red flag by day or a red light at night in addition to the required navigation lights and shapes.

This proposed rule would prohibit a vessel from occupying an anchorage for more than 30 days, unless the vessel obtains permission from the Captain of the Port. In the event of a request for the long-term lay up of a vessel, the Captain of the Port may establish special conditions with which the vessel must comply in order for such a request to be approved.

No vessel in such condition that it is likely to sink or otherwise become a menace or obstruction to navigation or anchorage of other vessels would be allowed to occupy an anchorage, except in cases where unforeseen circumstances create conditions of imminent peril to personnel, and then only for such period as may be authorized by the Captain of the Port.

The proposed rule specifies that the Coast Guard Captain of the Port may close the anchorage area and direct vessels to depart the anchorage during periods of adverse weather or at other times as deemed necessary in the interest of port safety and security. Under the proposed rule, any vessel anchored in these areas must be capable of getting underway if ordered by the Captain of the Port and must do so within 2 hours. If a vessel would not be able to get underway within 2 hours of notification, it would be required to request permission from the Captain of the Port to remain. No vessel would be allowed to anchor in a “dead ship” status (propulsion or control unavailable for normal operations) without prior approval from the Captain of the Port.

Finally, fixed moorings, piles or stakes are prohibited.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

The proposed rule is not significant because there are no fees, permits, or special requirements for the maritime industry to utilize these anchorage areas. The regulation is solely for the purpose of advancing the safety of maritime commerce. We anticipate no negative impact to the fishing community, including dragging, lobster, and shellfish fishing. This rule would not exclude fishing activity or vessel transit in the anchorage grounds. It would only require that vessels fishing and or transiting through the anchorages maintain a distance of 500 yards from an anchored vessel displaying a red flag by day or a red light by night. The Coast Guard anticipates the proposed anchorage grounds would cause minimal transit interference, by way of increased vessel anchorage, as these areas have historically been utilized for anchoring. This regulation would add to existing regulations in order to make best use of available water. Some of the proposed requirements in this regulation reflect existing regulatory requirements and many of the proposed requirements in this regulation are already practiced as a matter of prudent seamanship. Moreover, all of the regulatory changes are proposed in the interest of safe navigation and protection of the Captain of the Port zone.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule would affect the following entities, some of which may be small entities: Commercial vessels wishing to transit or fish in the portions of Long Island Sound covered by this regulation. This proposed rule should have minimal economic impact on lobster fishing vessels, small commercial vessels, or recreational boaters. This conclusion is based upon the fact that the only restriction for entry or use of the proposed anchorages targeting small entities is for all vessels to maintain a distance of 500 yards from an anchored vessel displaying a red flag by day or a red light by night. The proposed regulation would only create seven new anchorage grounds. These areas historically have been, and routinely are, used for anchorage by both deep draft and smaller vessels. The proposed anchorage grounds do not interfere with or overlap existing ferry routes between Connecticut and Long Island, New York.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact LT Doug Miller at (203) 468-4596 or e-mail Douglas.J.Miller@uscg.mil. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination under the Instruction that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under ADDRESSES . This proposed rule involves the establishment of anchorages and falls under the categorical exclusion for promulgation of regulations, specifically Categorical Exclusion paragraph 34(f) of the Instruction.

We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided.

If you submit a comment, please include the docket number for this rulemaking (USCG-2009-0359), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via http://www.regulations.gov ) or by fax, mail, or hand delivery, but please use only one of these means. If you submit a comment online via www.regulations.gov, it will be considered received by the Coast Guard when you successfully transmit the comment. If you fax, hand deliver, or mail your comment, it will be considered as having been received by the Coast Guard when it is received at the Docket Management Facility. We recommend that you include your name and a mailing address, an e-mail address, or a telephone number in the body of your document so that we can contact you if we have questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov, select the Advanced Docket Search option on the right side of the screen, insert “USCG-2009-0359” in the Docket ID box, press Enter, and then click on the balloon shape in the Actions column. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. We will consider all comments and material received during the comment period and may change the rule based on your comments.

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, select the Advanced Docket Search option on the right side of the screen, insert USCG-2009-0359 in the Docket ID box, press Enter, and then click on the item in the Docket ID column. You may also visit the Docket Management Facility in Room W12-140 on the ground floor of the Department of Transportation West Building, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. We have an agreement with the Department of Transportation to use the Docket Management Facility.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the Federal Register (73 FR 3316).

We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under ADDRESSES explaining why one would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register .

The City of Orange is sponsoring high speed boat races on the Sabine River in Orange, TX on September 19 and September 20, 2009. Race boats will be traveling at a very high rate of speed and at times may not be able to stop or avoid a collision if spectator or other vessels are operating in close proximity to the race course. The proposed safety zone is needed to protect the race boats, persons and spectators from the potential safety hazards associated with high speed boat races.

The Coast Guard proposes to establish a temporary safety zone for a portion of the Sabine River, shoreline to shoreline, adjacent to the Naval Reserve Center and the Orange public boat ramps located in Orange, TX. The northern boundary is from the end of Navy Pier One at 30°05′45″ N 93°43′24″ W then easterly to the river's eastern shore. The southern boundary is a line shoreline to shoreline at latitude 30°05′33″ N.

All vessels except event participants and patrol craft are prohibited from entering the safety zone unless authorized by the Captain of the Port, Port Arthur or his designated representative. For authorization to enter the proposed safety zone, vessels can contact the Captain of the Port's on scene representative on VHF Channel 16 or Vessel Traffic Service Port Arthur on VHF Channel 65A, by telephone at (409) 719-5070, or by facsimile at (409) 719-5090.

We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.

This proposed rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.

We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. The basis of this finding is that the safety zone will only be in effect for 10 hours each day and notifications to the marine community will be made through broadcast notice to mariners and Marine Safety Information Bulletin. During non-enforcement hours all vessels will be allowed to transit through the safety zone without permission of the Captain of the Port, Port Arthur or a designated representative. Additionally, breaks will be provided to allow waiting vessels to transit safely through the safety zone. The impacts on routine navigation are expected to be minimal.

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

The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

This proposed rule would not have a significant economic impact on a substantial number of small entities for the following reasons: (1) This rule will only be enforced from 9 a.m. until 6 p.m. each day that it is effective; (2) during non-enforcement hours all vessels will be allowed to transit through the safety zone without having to obtain permission from the Captain of the Port, Port Arthur or a designated representative; and (3) vessels will be allowed to pass through the zone with permission of the Coast Guard Patrol Commander during scheduled break periods between races and at other times when permitted by the Coast Guard Patrol Commander.

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact Mr. Scott Whalen at (409) 719-5086. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

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

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

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

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

The National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This proposed rule would not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this preliminary determination is available in the docket where indicated under ADDRESSES . This proposed rule involves establishing a temporary safety zone. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:

The location of NARA's Kansas City regional archives has changed. This document proposes to update 36 CFR Part 1253 with the new location information. Also, NARA proposes a change of hours for our Kansas City location and existing New York City location.

NARA published a notice in the Federal Register on October 20, 2008 (73 FR 62340), announcing a temporary change in hours for our Kansas City regional archives to prepare for the move to the location covered in this proposed rule. On March 17, 2009, the Kansas City regional archives relocated to the Union Station Complex at 400 West Pershing Road, Kansas City, Missouri. We are proposing to revise 36 CFR 1253.7(c) to include the new address for that regional archives, as well as the new research room hours, 8 a.m.-4 p.m., Tuesday-Saturday. These hours correspond with public hours for other institutions in the Union Station/Crossroads cultural district, including the Kansas City Museum at Union Station and the National World War I Museum.

Other hours at the new Kansas City location are as follows:

• Exhibits Galleries: 9 a.m.-5 p.m., Tuesday-Saturday.

• Administration and Records Management Services to Federal Agencies: 8 a.m.-4:30 p.m., Monday-Friday.

• Kansas City Store at the National Archives: 10 a.m.-4 p.m., Tuesday-Saturday.

These hours, while not proposed for inclusion in § 1253.7(c) of this part, will be available on NARA's Web site, http://www.archives.gov.

NARA is also proposing to shift the hours open to the public at the New York City regional archives to better serve patrons for the range of hours the vast majority want to visit. There will be slightly fewer hours per week but with little, if any, anticipated adverse impact upon the public. This location is currently open Monday through Friday, 8 a.m. until 4:30 p.m. and the first Saturday of each month from 8:30 a.m. until 4:30 p.m. (42.5 hours per week, plus 8 extended hours per month). Proposed new hours would be Monday through Friday, 9 a.m. until 5 p.m. and on the first Saturday of each month, 9 a.m. until 4:30 p.m. (40 hours per week, plus 7.5 extended hours per month). This change would result in a slight reduction of hours (2.5 hours per week, plus half an hour per month).

Since October 2007, the New York regional archives has had an average of less than one visitor during the hour from 8 to 9 a.m.

As seen in Figure 1, from October 2007 through September 2008, New York had no visitors before 9 a.m. on just under 30 percent of the days open to the public. From October 2008 through February 2009, there were no visitors before 9 a.m. on 38 percent of the days open to the public. As a result, we do not anticipate that opening one hour later will negatively impact public use. Visitors who do arrive before 9 a.m. usually are regular researchers who remain at the facility most of the day. We also believe that remaining open until 5 p.m. will benefit those who come to us later in the day. In many cases, these visitors arrive after 4 p.m. and have been sent to our offices by other Federal agencies.

This proposed rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget (OMB). As required by the Regulatory Flexibility Act, it is hereby certified that this proposed rule will not have a significant impact on a substantial number of small entities because this rule applies to individual researchers. This proposed rule does not have any federalism implications.

For the reasons set forth in the preamble, NARA proposes to amend part 1253 of title 36, Code of Federal Regulations, as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

When submitting comments, remember to:

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

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

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

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

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

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

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

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

EPA is proposing to take several related actions. EPA is proposing to make a determination that the Cleveland-Akron-Lorain nonattainment area has attained the 8-hour ozone standard and that this area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus proposing to approve Ohio's request to change the legal designation of the Cleveland-Akron-Lorain area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve Ohio's maintenance plan SIP revision for Cleveland-Akron-Lorain (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep the Cleveland-Akron-Lorain area in attainment of the ozone NAAQS through 2020. EPA is proposing to approve the 2002 base year emissions inventory for the Cleveland-Akron-Lorain area as meeting the requirements of section 182(a)(1) of the CAA. EPA is proposing to approve a waiver from the requirement for NO X reasonably available control technology (RACT) rules in the Cleveland-Akron-Lorain area. EPA is also proposing to approve Ohio's 15% ROP plan as meeting the requirements of section 182(b)(1) of the CAA for the 1-hour ozone standard. Additionally, if EPA's proposal to determine that the area has attained the 1997 8-hour NAAQS is finalized, pursuant to the provisions of 40 CFR 51.918, the requirement to submit certain planning SIPs related to attainment (the RACM requirement of section 172(c)(1) of the CAA, the RFP and attainment demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) of the CAA, and the requirement for contingency measures of section 172(c)(9) of the CAA) are not applicable to the area as long as it continues to attain the NAAQS. (These requirements would cease to apply upon redesignation.) Finally, EPA is proposing to approve the newly established 2012 and 2020 MVEBs for the Cleveland-Akron-Lorain area. The adequacy comment period for the MVEBs began on February 18, 2009, with EPA's posting of the availability of the submittal on EPA's Adequacy Web site (at http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm ). The adequacy comment period for these MVEBs ended on March 20, 2009. EPA did not receive any requests for this submittal, or adverse comments on this submittal during the adequacy comment period. In a letter dated March 20, 2009, EPA informed Ohio EPA that we had found the 2012 and 2020 MVEBs to be adequate for use in transportation conformity analyses. Please see section VII.B. of this rulemaking, “Adequacy of Ohio's MVEBs,” for further explanation on this process. Therefore, we find adequate, and are proposing to approve, the State's 2012 and 2020 MVEBs for transportation conformity purposes.

Ground-level ozone is not emitted directly by sources. Rather, emissions of NO X and volatile organic compounds (VOCs) react in the presence of sunlight to form ground-level ozone. NO X and VOCs are referred to as precursors of ozone.

The CAA establishes a process for air quality management through the NAAQS. Before promulgation of the 8-hour standard, the ozone NAAQS was based on a 1-hour standard. On November 6, 1991 (56 FR 56693 and 56813), the Cleveland-Akron-Lorain area was designated as a moderate nonattainment area under the 1-hour ozone NAAQS. The area was subsequently redesignated to attainment of the 1-hour standard on May 7, 1996 (61 FR 20454). At the time EPA revoked the 1-hour ozone NAAQS, on June 15, 2005, the Cleveland-Akron-Lorain area was designated as attainment under the 1-hour ozone NAAQS.

On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone standard of 0.08 parts per million parts (ppm). On April 30, 2004 (69 FR 23857), EPA published a final rule designating and classifying areas under the 8-hour ozone NAAQS. These designations and classifications became effective June 15, 2004. EPA designated as nonattainment any area that was violating the 8-hour ozone NAAQS based on the three most recent years of air quality data, 2001-2003.

The CAA contains two sets of provisions, subpart 1 and subpart 2, that address planning and control requirements for nonattainment areas. (Both are found in Title I, part D, 42 U.S.C. 7501-7509a and 7511-7511f, respectively.) Subpart 1 contains general requirements for nonattainment areas for any pollutant, including ozone, governed by a NAAQS. Subpart 2 provides more specific requirements for ozone nonattainment areas.

Under EPA's implementation rule for the 1997 8-hour ozone standard, (69 FR 23951 (April 30, 2004)), an area was classified under subpart 2 based on its 8-hour ozone design value (i.e. the three-year average annual fourth-highest daily maximum 8-hour average ozone concentration), if it had a 1-hour design value at the time of designation at or above 0.121 ppm (the lowest 1-hour design value in Table 1 of subpart 2) (69 FR 23954). All other areas were covered under subpart 1, based upon their 8-hour design values (69 FR 23958). The Cleveland-Akron-Lorain area was designated as a subpart 2, 8-hour ozone moderate nonattainment area by EPA on April 30, 2004 (69 FR 23857, 23926-23927) based on air quality monitoring data from 2001-2003 (69 FR 23860).

40 CFR 50.10 and 40 CFR part 50, Appendix I provide that the 8-hour ozone standard is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm, when rounded. The data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness. See 40 CFR part 50, Appendix I, 2.3(d).

On March 17, 2009, Ohio EPA requested that EPA redesignate the Cleveland-Akron-Lorain area to attainment for the 8-hour ozone standard. The State supplemented the submittal on April 24, 2009. The redesignation request included three years of complete, quality-assured data for the period of 2006 through 2008, indicating the 8-hour NAAQS for ozone, as promulgated in 1997, had been attained for the Cleveland-Akron-Lorain area. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient complete, quality-assured data are available for the Administrator to determine that the area has attained the standard, and the area meets the other CAA redesignation requirements in section 107(d)(3)(E).

On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of 0.075. EPA has not yet promulgated area designations for this standard. While both the 1997 and 2008 8-hour ozone standards are currently in place, the actions addressed in this proposed rulemaking relate only to the 1997 8-hour ozone standard.

On December 22, 2006, in South Coast Air Quality Management Dist. v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). 472 F.3d 882 (D.C. Cir. 2006). On June 8, 2007, in response to several petitions for rehearing, the D.C. Circuit Court clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Id., Docket No. 04 1201. Therefore, several provisions of the Phase 1 Rule remain effective: Provisions related to classifications for areas currently classified under subpart 2 of Title I, part D, of the CAA as 8-hour nonattainment areas; the 8-hour attainment dates; and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS. The June 8, 2007, decision also left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8, 2007, decision reaffirmed the December 22, 2006, decision that EPA had improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) Section 185 penalty fees for 1-hour severe or extreme nonattainment areas; (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; and (4) certain transportation conformity requirements for certain types of Federal actions. The June 8, 2007, decision clarified that the Court's reference to conformity requirements was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations.

This section sets forth EPA's views on the potential effect of the Court's rulings on this proposed redesignation action. For the reasons set forth below, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation or prevent EPA from proposing or ultimately finalizing this redesignation. EPA believes that the Court's December 22, 2006, and June 8, 2007, decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests.

With respect to the 8-hour standard, the Cleveland-Akron-Lorain area is classified under subpart 2. The June 8, 2007, opinion clarifies that the Court did not vacate the Phase 1 Rule's provisions with respect to classifications for areas under subpart 2. The Court's decision therefore upholds EPA's classifications for those areas classified under subpart 2 for the 8-hour ozone standard.

With respect to the 1-hour standard requirements, the Cleveland-Akron-Lorain area was an Attainment area subject to a CAA section 175A maintenance plan under the 1-hour standard. The Court's decisions do not impact redesignation requests for these types of areas, except to the extent that the Court, in its June 8, 2007, decision, clarified that for those areas with 1-hour motor vehicle emissions budgets in their maintenance plans, anti-backsliding requires that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93.

With respect to the three other anti-backsliding provisions for the 1-hour standard that the Court found were not properly retained, the Cleveland-Akron-Lorain area is an attainment area subject to a maintenance plan for the 1-hour standard, and the NSR, contingency measures (pursuant to section 172(c)(9) or 182(c)(9)), and fee provision requirements no longer apply to an area that has been redesignated to attainment of the 1-hour standard.

Thus the decision in South Coast should not alter requirements that would preclude EPA from proposing or finalizing the redesignation of this area.

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

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

Approval of the redesignation request would change the official designation of the area for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Ohio SIP a plan for maintaining the 8-hour ozone NAAQS through 2020. The maintenance plan includes contingency measures to remedy future violations of the 8-hour NAAQS. It also establishes MVEBs of 46.64 and 31.48 tons per day (tpd) VOC and 95.89 and 42.75 tpd NO X for the years 2012 and 2020, respectively.

EPA is proposing to make a determination that the Cleveland-Akron-Lorain area has attained the 8-hour ozone standard and that the area has met all other applicable section 107(d)(3)(E) redesignation criteria. The basis for EPA's determination is as follows:

EPA is proposing to make a determination that the Cleveland-Akron-Lorain area has attained the 8-hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and part 50, Appendix I, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the three-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in the Aerometric Information Retrieval System (AIRS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

Ohio EPA submitted ozone monitoring data for the 2006 to 2008 ozone seasons. Ohio EPA quality-assured the ambient monitoring data in accordance with 40 CFR 58.10, and recorded it in the AIRS database, thus making the data publicly available. The data meet the completeness criteria in 40 CFR Part 50, Appendix I, which requires a minimum completeness of 75 percent annually and 90 percent over each three year period. Monitoring data is presented in Table 1 below.

In addition, as discussed below with respect to the maintenance plan, Ohio EPA has committed to continue to operate an EPA-approved monitoring network as necessary to demonstrate ongoing compliance with the NAAQS. Ohio EPA commits to continue monitoring ozone at the sites indicated in Table 1. Ohio EPA also commits to consult with EPA prior to making changes to the existing monitoring network, should changes become necessary in the future. Ohio EPA remains obligated to continue to quality assure monitoring data in accordance with 40 CFR part 58 and enter all data into the Air Quality System in accordance with Federal guidelines. In summary, EPA believes that the data submitted by Ohio provide an adequate demonstration that the Cleveland-Akron-Lorain area has attained the 8-hour ozone NAAQS, and currently available data show that the area continues to attain the standard. Should the area violate the standard before the redesignation is finalized, EPA will not go forward with the redesignation.

We have determined that Ohio has met all currently applicable SIP requirements for purposes of redesignation for the Cleveland-Akron-Lorain area under section 110 of the CAA (general SIP requirements). We have also determined that the Ohio SIP meets all SIP requirements currently applicable for purposes of redesignation under part D of Title I of the CAA (requirements specific to subpart 1 nonattainment areas), in accordance with section 107(d)(3)(E)(v). In addition, with the exception of the base year emissions inventory, certain VOC RACT regulations, and the section 182(f) NO X exemption, we have determined that the Ohio SIP is fully approved with respect to all applicable requirements for purposes of redesignation, in accordance with section 107(d)(3)(E)(ii). As discussed below, in this action EPA is proposing to approve Ohio's 2002 base year emissions inventory and NO X RACT waiver. In a separate action, EPA is proposing to approve Ohio's VOC RACT submittal.

In making these determinations, we have ascertained what SIP requirements are applicable to the area for purposes of redesignation, and have determined that the portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. As discussed more fully below, SIPs must be fully approved only with respect to currently applicable requirements of the CAA.

The September 4, 1992, Calcagni memorandum (see “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) of the CAA. Under this interpretation, a State and the area it wishes to redesignate must meet the relevant CAA requirements that are due prior to the State's submittal of a complete redesignation request for the area. See also the September 17, 1993, Michael Shapiro memorandum and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS). Applicable requirements of the CAA that come due subsequent to the State's submittal of a complete request remain applicable until a redesignation to attainment is approved, but are not required as a prerequisite to redesignation. See section 175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis area to attainment of the 1-hour ozone NAAQS).

Since EPA is proposing here to determine that the area has attained the 1997 8-hour ozone standard, under 40 CFR 51.918, if that determination is finalized, the requirements to submit certain planning SIPs related to attainment, including attainment demonstration requirements (the RACM requirement of section 172(c)(1) of the CAA, the RFP and attainment demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) of the CAA, and the requirement for contingency measures of section 172(c)(9) of the CAA) would not be applicable to the area as long as it continues to attain the NAAQS and would cease to apply upon redesignation. In addition, in the context of redesignations, EPA has interpreted requirements related to attainment as not applicable for purposes of redesignation. For example, in the General Preamble EPA stated that:

Section 110(a) of Title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a State must have been adopted by the State after reasonable public notice and hearing, and that, among other things, it includes enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; provides for establishment and operation of appropriate devices, methods, systems and procedures necessary to monitor ambient air quality; provides for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; includes provisions for the implementation of part C, Prevention of Significant Deterioration (PSD) and part D, NSR permit programs; includes criteria for stationary source emission control measures, monitoring, and reporting; includes provisions for air quality modeling; and provides for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a State from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain States to establish programs to address transport of air pollutants (NO X SIP Call  1 and Clean Air Interstate Rule (CAIR) (70 FR 25162, May 12 2005)). However, the section 110(a)(2)(D) requirements for a State are not linked with a particular nonattainment area's designation and classification. EPA believes that the requirements linked with a particular nonattainment area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a State regardless of the designation of any one particular area in the State. Thus, we believe that these requirements should not be construed to be applicable requirements for purposes of redesignation.

Further, we believe that the other section 110 elements described above that are not connected with nonattainment plan submissions and not linked with an area's attainment status are also not applicable requirements for purposes of redesignation. A State remains subject to these requirements after an area is redesignated to attainment. We conclude that only the section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures which we may consider in evaluating a redesignation request. This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements for redesignation purposes, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio ozone redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania ozone redesignation (66 FR 50399, October 19, 2001).

We have reviewed Ohio's SIP and have concluded that it meets the general SIP requirements under section 110 of the CAA, to the extent those requirements are applicable for purposes of redesignation. EPA has previously approved provisions of the Ohio SIP addressing section 110 elements under the 1-hour ozone standard (40 CFR 52.1870). Further, in submittals dated December 5, 2007, and September 19, 2008, Ohio confirmed that the State continues to meet the section 110 requirements for the 8-hour ozone standard. EPA has not yet taken rulemaking action on these submittals; however, such approval is not necessary for redesignation.

EPA has determined that, with the approval of the base year emissions inventory and the NO X waiver, discussed in section VII.C. of this rulemaking, and the VOC RACT submittal, discussed below under the heading “Subpart 2 Section 182(a) and (b) Requirements,” the Ohio SIP will meet the SIP requirements applicable for purposes of redesignation under part D of the CAA for the Cleveland-Akron-Lorain area. Under part D of the CAA, an area's classification determines the requirements to which it will be subject. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. Subpart 2 of part D, which includes section 182 of the CAA, establishes additional specific requirements depending on the area's nonattainment classification.

The Cleveland-Akron-Lorain area was classified as a moderate area under subpart 2; therefore the State must meet both the applicable requirements of subpart 1 and subpart 2 of part D. The applicable subpart 1 requirements are contained in sections 172(c)(1)-(9) and in section 176. The subpart 2 requirements applicable to the Cleveland-Akron-Lorain area are contained in sections 182(a) and (b) (marginal and moderate nonattainment area requirements).

Subpart 1 Section 172 Requirements.

For purposes of evaluating this redesignation request, the applicable section 172 SIP requirements for the Cleveland-Akron-Lorain area are contained in sections 172(c)(1)-(9). A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).

Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all RACM as expeditiously as practicable. The EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in the area as components of the areas attainment demonstration. Because attainment has been reached, no additional measures are needed to provide for attainment.

The RFP requirement under section 172(c)(2) is defined as progress that must be made toward attainment. This requirement is not relevant because the Cleveland-Akron-Lorain area has demonstrated monitored attainment of the ozone NAAQS (General Preamble, 57 FR 13564). In addition, because the Cleveland-Akron-Lorain area has attained the ozone NAAQS and is no longer subject to an RFP requirement, the section 172(c)(9) contingency measures are not applicable.

Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. This requirement was superseded by the inventory requirement in section 182(a)(1).

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

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

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

Subpart 1 Section 176 Conformity Requirements.

Section 176(c) of the CAA requires States to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway projects, conform to the air quality planning goals in the applicable SIPs. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under Title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). State conformity revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability, which EPA promulgated pursuant to CAA requirements.

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

EPA approved Ohio's general and transportation conformity SIPs on March 11, 1996 (61 FR 9646), and May 30, 2000 (65 FR 34395), respectively. Ohio has submitted onroad motor vehicle budgets for the Cleveland-Akron-Lorain area of 46.64 and 31.48 tpd VOC and 95.89 and 42.75 tpd NO X for the years 2012 and 2020, respectively. The area must use the MVEBs from the maintenance plan in any conformity determination that is effective on or after the effective date of the maintenance plan approval.

Subpart 2 Section 182(a) and (b) Requirements.

As set forth in the September 4, 1992, and September 17, 1993, EPA guidance memoranda referenced in section IV of this action, “What Are the Criteria for Redesignation?,” only those requirements which came due prior to Ohio's submittal of a request to designate the Cleveland-Akron-Lorain area must be fully approved into the SIP before or at the time EPA approves the redesignation of the area to attainment. These requirements are discussed below.

Base Year Emissions Inventory. Section 182(a)(1) requires the submission of a base year emissions inventory. As part of Ohio's redesignation request for the Cleveland-Akron-Lorain area, the State submitted a 2002 base year emissions inventory. As discussed below, EPA is proposing to approve the 2002 base year inventory that Ohio submitted with the redesignation request as meeting the section 182(a)(1) emissions inventory requirement.

Emissions Statements. EPA approved Ohio's emission statement SIP, as required by section 182(a)(3)(B), on October 13, 1994 (59 FR 51863).

Reasonable Further Progress and Attainment Demonstration. On June 15, 2007, and February 22, 2008, Ohio EPA submitted an attainment demonstration and reasonable further progress plans for the Cleveland-Akron-Lorain area as required by section 182(b)(1) of the CAA. In this submittal, Ohio EPA requested that EPA act on the 15% ROP plan that was originally submitted by Ohio to meet section 182(b)(1) requirements under the 1-hour ozone standard. Because attainment has been reached, section 182(b)(1) requirements are no longer considered to be applicable as long as the area continues to attain the standard. Nevertheless, as discussed below, EPA is proposing to approve Ohio's 15% ROP plan as meeting the requirements of section 182(b)(1) of the CAA for the 1-hour ozone standard.

VOC RACT Requirements. Section 182(b)(2) requires States with moderate nonattainment areas to implement RACT under section 172(c)(1) with respect to each of the following: (1) All sources covered by a Control Technology Guideline (CTG) document issued between November 15, 1990, and the date of attainment; (2) all sources covered by a CTG issued prior to November 15, 1990; and, (3) all other major non-CTG stationary sources. As required under the 1-hour ozone standard, Ohio submitted VOC RACT rules covering the second and third categories. The EPA approved these VOC RACT rules on April 25, 1996 (61 FR 18255), September 7, 1994 (59 FR 46182), and October 23, 1995 (60 FR 54308). With respect to the first category, EPA issued CTGs for five source categories in September 2006 and three additional source categories in September 2007. Areas classified as moderate and above were required to submit VOC RACT for the source categories covered by these CTGs, by September 2007, and September 2008, respectively. Ohio submitted a SIP revision to address these CTGs on March 23, 2009. On May 7, 2009 (74 FR 21295), EPA proposed to approve Ohio's RACT submittal. Full approval of Ohio's RACT submittal is a prerequisite for approval of the redesignation of the Cleveland-Akron-Lorain area to attainment.

NO X RACT. Section 182(f) establishes NO X requirements for ozone nonattainment areas. However, it provides that these requirements do not apply to an area if the Administrator determines that NO X reductions would not contribute to attainment. As discussed in section VI.E. below, we are proposing such a determination for the Cleveland-Akron-Lorain nonattainment area as requested by the State of Ohio. If the NO X waiver is approved as a final rule, the State of Ohio need have fully approved NO X control measures under section 182(f) for the Cleveland-Akron-Lorain area to be redesignated to attainment.

Stage II Vapor Recovery. Section 182(b)(3) requires States to submit Stage II rules no later than November 15, 1992. The EPA partially approved and partially disapproved Ohio's SIP revision for implementation of Stage II on October 20, 1994 (59 FR 52911). As stated in that rulemaking action, with the exception of paragraph 3745-21-09 (DDD)(5), EPA considers Ohio's Stage II program to fully satisfy the criteria set forth in the September 17, 1993, EPA guidance document for such programs entitled “Enforcement Guidance for Stage II Vehicle Refueling Control Programs.” Furthermore, the September 17, 1993, guidance memorandum states that once onboard vapor recovery regulations are promulgated, the requirement for Stage II regulations no longer applies to moderate ozone nonattainment areas. The EPA promulgated onboard vapor recovery rules in February 1994. Therefore, pursuant to section 202(a)(6) of the CAA, Stage II regulations are no longer required.

Vehicle Inspection and Maintenance (I/M). The EPA's final I/M regulations in 40 CFR part 85 require the States to submit a fully adopted I/M program by November 15, 1993. EPA approved Ohio's enhanced I/M program (E-Check), on April 4, 1995 (60 FR 16989) and January 6, 1997 (62 FR 646).

Thus, as discussed above, with approval of the base year inventory, the section 182(f) NO X exemption, and Ohio's VOC RACT submittal, the Cleveland-Akron-Lorain area will satisfy the requirements applicable for purposes of redesignation under section 110 and part D of the CAA.

b. The Cleveland-Akron-Lorain Area Has a Fully Approved Applicable SIP for Purposes of Redesignation Under Section 110(k) of the CAA.

If EPA finalizes approvals of the base year emissions inventory, Ohio's VOC RACT submittal, and the section 182(f) NO X exemption, EPA will have fully approved the Ohio SIP for the Cleveland-Akron-Lorain area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (See page three of the September 4, 1992, John Calcagni memorandum; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25413, 25426 (May 12, 2003). Since the passage of the CAA of 1970, Ohio has adopted and submitted, and EPA has fully approved, provisions addressing the various required SIP elements applicable to the Cleveland-Akron-Lorain area under the 1-hour ozone standard. In this action, EPA is proposing to approve Ohio's 2002 base year emissions inventory for the Cleveland-Akron-Lorain area as meeting the requirement of section 182(a)(1) of the CAA. EPA is also proposing to approve Ohio's NO X waiver for the Cleveland-Akron-Lorain area. In a separate action, EPA is proposing to approve Ohio's VOC RACT submission. No Cleveland-Akron-Lorain area SIP provisions are currently disapproved, conditionally approved, or partially approved.

EPA finds that Ohio has demonstrated that the observed air quality improvement in the Cleveland-Akron-Lorain area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other State-adopted measures.

In making this demonstration, the State has calculated the change in emissions between 2002 and 2006. Ohio used the 2002 nonattainment area base year emissions inventory required under section 182(a)(1) of the CAA as the nonattainment inventory for redesignation purposes. The State developed an attainment inventory for 2006, one of the years the Cleveland-Akron-Lorain area monitored attainment. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that Cleveland-Akron-Lorain and upwind areas have implemented in recent years.

a. Permanent and Enforceable Controls Implemented.

The following is a discussion of permanent and enforceable measures that have been implemented in the areas:

i. VOC Controls. Ohio adopted rules to limit VOC emissions from portable fuel containers and consumer and commercial products.

ii. Automobile Inspection and Maintenance (I/M) program. Ohio operates an enhanced automobile inspection and maintenance program in the Cleveland-Akron-Lorain area.

iii. Stationary Source NO X Rules. Ohio EPA developed rules governing the control of NO X emissions from Electric Generating Units (EGUs), major non-EGU industrial boilers, and major cement kilns. EPA approved Ohio's rules as fulfilling Phase I of the NO X SIP Call on August 5, 2003 (68 FR 46089,) and June 27, 2005 (70 FR 36845), and as fulfilling Phase II of the SIP call on February 4, 2008 (73 FR 6427). Beginning in 2004, this rule accounts for approximately a 31 percent reduction in statewide NO X emissions.

iv. Federal Emission Control Measures. Reductions in VOC and NO X emissions have occurred Statewide and in upwind areas as a result of Federal emission control measures, with additional emission reductions expected to occur in the future. Federal emission control measures include: The National Low Emission Vehicle (NLEV) program, Tier 2 emission standards for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and heavy-duty diesel engine standards. In addition, on June 29, 2004 (69 FR 38958), EPA issued the Clean Air Non-road Diesel Rule, which phases in Tier 4 emissions standards over the 2008-2015 time period.

v. Control Measures in Upwind Areas. On October 27, 1998 (63 FR 57356), EPA issued a NO X SIP call requiring the District of Columbia and 22 States to reduce emissions of NO X . The reduction in NO X emissions has resulted in lower concentrations of transported ozone entering the Cleveland-Akron-Lorain area. Emission reductions resulting from regulations developed in response to the NO X SIP call are permanent and enforceable.

b. Emission Reductions.

Ohio is using the 2002 base year inventory developed pursuant to section 182(a)(1) of the CAA as the nonattainment inventory. In developing the 2002 base year inventory, Ohio EPA provided point and area source inventories to the Lake Michigan Air Directors Consortium (LADCO). The main purpose of LADCO is to provide technical assessments for and assistance to its member States on problems of air quality. LADCO's primary geographic focus is the area encompassed by its member States (Illinois, Indiana, Michigan, Ohio and Wisconsin) and any areas which affect air quality in its member States. LADCO processed these inventories through the Emission Modeling System (EMS) to generate summer weekday emissions for VOC and NO X . The processed modeling inventories were used for the base year inventory. The point source data provided to LADCO is a combination of EPA's EGU inventory and source-specific data reported to Ohio EPA for non-EGU sources. Area source emissions were estimated by Ohio EPA using published Emission Inventory Improvement Program methodologies or methodologies shared by other States. Ohio EPA documented the methodology used for each area source category. Nonroad mobile emissions were generated for LADCO using EPA's National Mobile Inventory Model (NMIM), with the following exceptions: recreational motorboat populations and spatial surrogates were updated; emissions estimates were developed for commercial marine vessels, aircraft, and railroads (MAR), three nonroad categories not included in NMIM; and, onroad mobile emissions were calculated using the MOBILE6.2 emissions model.

Ohio is using 2006 for the attainment year inventory. Ohio EPA developed a 2005 base year inventory, in conjunction with LADCO, using the methodology described above for base year 2002. With the exception of the onroad mobile sector, Ohio EPA used growth factors provided by LADCO to project this inventory to 2006. Onroad mobile emissions were calculated for 2006 using the MOBILE6.2 emissions model.

Using the inventories described above, Ohio's submittal documents changes in VOC and NO X emissions from 2002 to 2006 for the Cleveland-Akron-Lorain area. Emissions data are shown in Tables 3 through 5 below.

Table 5 shows that the Cleveland-Akron-Lorain area reduced VOC emissions by 34.58 tpd and NO X emissions by 120.18 tpd between 2002 and 2006. Based on the information summarized above, Ohio has adequately demonstrated that the improvement in air quality is due to permanent and enforceable emissions reductions.

In conjunction with its request to redesignate the Cleveland-Akron-Lorain nonattainment area to attainment status, Ohio submitted a SIP revision to provide for the maintenance of the 8-hour ozone NAAQS in the area through 2020.

a. What Is Required in a Maintenance Plan ?

Section 175A of the CAA sets forth the required elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least ten years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for ten years following the initial ten-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures with a schedule for implementation as EPA deems necessary to assure prompt correction of any future 8-hour ozone violations.

The September 4, 1992, John Calcagni memorandum provides additional guidance on the content of a maintenance plan. The memorandum clarifies that an ozone maintenance plan should address the following items: The attainment VOC and NO X emissions inventories, a maintenance demonstration showing maintenance for the ten years of the maintenance period, a commitment to maintain the existing monitoring network, factors and procedures to be used for verification of continued attainment of the NAAQS, and a contingency plan to prevent or correct future violations of the NAAQS.

b. Attainment Inventory.

The Ohio EPA developed an emissions inventory for 2006, one of the years Ohio used to demonstrate monitored attainment of the 8-hour NAAQS, as described above. The attainment level of emissions is summarized in Table 4, above.

c. Demonstration of Maintenance.

Along with the redesignation request, Ohio submitted a revision to the 8-hour ozone SIP to include a maintenance plan for the Cleveland-Akron-Lorain area, in compliance with section 175A of the CAA. This demonstration shows maintenance of the 8-hour ozone standard through 2020 by assuring that current and future emissions of VOC and NO X for the Cleveland-Akron-Lorain area remain at or below attainment year emission levels. A maintenance demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25413, 25430-25432 (May 12, 2003).

Ohio is using emissions inventories for the years 2012 and 2020 to demonstrate maintenance. Onroad emissions for 2012 and 2020 were calculated using the MOBILE6.2 emissions model. Emissions estimates for the remaining source categories were based on future year inventories developed by LADCO for the years 2012 and 2018. With the exception of MAR, nonroad emissions for these years were estimated using NMIM. MAR emissions were derived by applying growth and control factors to the 2005 inventory. Area source and point source emissions were derived by applying growth and control factors to the 2005 inventory. EGU emissions estimates assume no credit for implementation of CAIR in the area. To derive 2020 emissions estimates, Ohio EPA applied LADCO growth factors to the 2018 LADCO inventory.

Ohio is in the process of revising its State rules for its Best Available Technology (BAT) minor source permitting program. As discussed above, a State can demonstrate maintenance of the standard by showing that future emissions of VOC and NO X for the area remain at or below attainment year emission levels. Ohio EPA's emissions projections for this maintenance plan assume no emissions benefits from implementation of the BAT program. The LADCO growth factors used to project future emissions were developed using techniques consistent among the LADCO States and assume implementation of no minor source permitting programs for any State, including Ohio. The emission projections show that Ohio EPA does not expect emissions in the Cleveland-Akron-Lorain area to exceed the level of the 2006 attainment year inventory during the maintenance period. Ohio's maintenance plan demonstrates that the area can maintain the standard through 2020 applying standard growth factors and without the BAT program. EPA believes that Ohio has provided adequate demonstration of maintenance, and that any changes to the BAT program should not impact the Cleveland-Akron-Lorain area's ability to attain or maintain the 1997 8-hour ozone NAAQS. Therefore, the issues associated with the BAT program are not being considered for purposes of this redesignation. Nothing in this rule or redesignation is intended to affect the SIP approvability or non-approvability of any revised Ohio BAT rules, and EPA will evaluate the approvability of such rules when Ohio submits them. Emissions data are shown in Table 6 below.

The emission projections show that Ohio EPA does not expect emissions in the Cleveland-Akron-Lorain area to exceed the level of the 2006 attainment year inventory during the maintenance period. In the Cleveland-Akron-Lorain area, Ohio EPA projects that VOC and NO X emissions will decrease by 84.94 tpd and 186.68 tpd, respectively, between 2006 and 2020.

In addition, LADCO performed a regional modeling analysis to address the effect of the recent court decision vacating CAIR. This analysis is documented in LADCO's “Regional Air Quality Analyses for Ozone, PM2.5, and Regional Haze: Final Technical Support Document (Supplement), September 12, 2008.” LADCO produced a base year inventory for 2005 and future year inventories for 2009, 2012, and 2018. To estimate future EGU NO X emissions without implementation of CAIR, LADCO projected 2007 EGU NO X emissions for all States in the modeling domain based on Energy Information Administration growth rates by State (North American Electric Reliability Corporation (NERC) region) and fuel type for the years 2009, 2012 and 2018. The assumed 2007-2018 growth rates were 8.8% for Illinois, Iowa, Missouri and Wisconsin; 13.5% for Indiana, Kentucky, Michigan and Ohio; and 15.1% for Minnesota. Emissions were adjusted by applying legally enforceable controls, e.g., consent decree or rule. EGU NO X emissions projections for the States of Illinois, Indiana, Michigan, Ohio, and Wisconsin are shown below in Table 7. The emission projections used for the modeling analysis do not account for certain relevant factors such as allowance trading and potential changes in operation of existing control devices. The NO X projections indicate that, due to the NO X SIP call, certain State rules, consent decrees resulting from enforcement cases, and ongoing implementation of a number of mobile source rules, EGU NO X is not expected to increase in Ohio or any of the States in the immediate region, and overall NO X emissions in Ohio and the nearby region are expected to decrease substantially between 2005 and 2020. 2 Total NO X emissions projections are shown in Table 8, below.

Given that 2007 is one of the years Ohio used to demonstrate monitored attainment of the 8-hour NAAQS, Table 7 shows that EGU NO X emissions will remain below attainment levels through 2018. If the rate of emissions increase between 2012 and 2018 continues through 2020, EGU NO X emissions would still remain below attainment levels in 2020. Furthermore, as shown in Table 8, total NO X emissions clearly continue to decrease substantially throughout the maintenance period.

Ozone modeling performed by LADCO using this emissions data supports the conclusion that the Cleveland-Akron-Lorain area will maintain the standard throughout the maintenance period. Peak modeled ozone levels in the area for 2009, 2012 and 2018 are 0.084 ppm, 0.081 ppm, and 0.078 ppm, respectively. These projected ozone levels were modeled applying only legally enforceable controls; e.g., consent decrees, rules, the NO X SIP call, Federal motor vehicle control programs (FMVCP), etc. Because these programs will remain in place, emission levels, and therefore ozone levels, would not be expected to increase significantly between 2018 and 2020. Given that projected emissions and modeled ozone levels continue to decrease substantially through 2018, it is reasonable to infer that a 2020 modeling run would also show levels well below the 1997 8-hour ozone standard.

As part of its maintenance plan, the State elected to include a “safety margin” for the area. A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan which continues to demonstrate attainment of the standard. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. The Cleveland-Akron-Lorain area attained the 8-hour ozone NAAQS during the 2006-2008 time period. Ohio used 2006 as the attainment level of emissions for the area. In the maintenance plan, Ohio EPA projected emission levels for 2020. For the Cleveland-Akron-Lorain area, the emissions from point, area, nonroad, and mobile sources in 2006 equaled 296.85 tpd of VOC. Ohio EPA projected VOC emissions for the year 2020 to be 212.01 tpd of VOC. The SIP submission demonstrates that the Cleveland-Akron-Lorain area will continue to maintain the standard with emissions at this level. The safety margin for VOC is calculated to be the difference between these amounts or, in this case, 84.946 tpd of VOC for 2020. By this same method, 186.68 tpd ( i.e., 369.90 tpd less 183.22 tpd) is the safety margin for NO X for 2020. The safety margin, or a portion thereof, can be allocated to any of the source categories, as long as the total attainment level of emissions is maintained.

d. Monitoring Network.

Ohio currently operates eleven ozone monitors in the Cleveland-Akron-Lorain area. Ohio EPA has committed to continue to operate these ozone monitors. Further, Ohio EPA commits to consult with EPA prior to making changes to the existing monitoring network, should changes become necessary in the future. Ohio EPA remains obligated to continue to quality assure monitoring data in accordance with 40 CFR part 58 and enter all data into the Air Quality System in accordance with Federal guidelines.

e. Verification of Continued Attainment.

Continued attainment of the ozone NAAQS in the Cleveland-Akron-Lorain area depends, in part, on the State's efforts toward tracking indicators of continued attainment during the maintenance period. Ohio's plan for verifying continued attainment of the 8-hour standard in the Cleveland-Akron-Lorain area consists of plans to continue ambient ozone monitoring in accordance with the requirements of 40 CFR part 58. Ohio EPA will also continue to develop and submit periodic emission inventories as required by the Federal Consolidated Emissions Reporting Rule (67 FR 39602, June 10, 2002) to track future levels of emissions.

f. Contingency Plan.

The contingency plan provisions are designed to promptly correct or prevent a violation of the NAAQS that might occur after redesignation of an area to attainment. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the State will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the contingency measures to be adopted, a schedule and procedure for adoption and implementation of the contingency measures, and a time limit for action by the State. The State should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the State will implement all measures with respect to control of the pollutant(s) that were contained in the SIP before redesignation of the area to attainment. See section 175A(d) of the CAA.

As required by section 175A of the CAA, Ohio has adopted a contingency plan for the Cleveland-Akron-Lorain area to address possible future ozone air quality problems. The contingency plan adopted by Ohio has two levels of response, depending on whether a violation of the 8-hour ozone standard is only threatened (warning level response) or has occurred (action level response).

A warning level response will be triggered when an annual fourth high monitored value of 0.088 ppm or higher is monitored within the maintenance area. A warning level response will consist of Ohio EPA conducting a study to determine whether the ozone value indicates a trend toward higher ozone values or whether emissions appear to be increasing. The study will evaluate whether the trend, if any, is likely to continue and, if so, the control measures necessary to reverse the trend. The study will consider ease and timing of implementation as well as economic and social impacts. Implementation of necessary controls in response to a warning level response trigger will take place within 12 months from the conclusion of the most recent ozone season.

An action level response will be triggered when a two-year average fourth high value of 0.085 ppm is monitored within the maintenance area. A violation of the standard (a three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration of 0.085 ppm or greater) also triggers an action level response. When an action level response is triggered, Ohio EPA will determine what additional control measures are needed to assure future attainment of the ozone standard. Control measures selected will be implemented within 18 months from the close of the ozone season that prompted the action level. Ohio EPA will also consider if significant new regulations not currently included as part of the maintenance provisions will be implemented in a timely manner and would thus constitute a response.

Ohio EPA included the following list of potential contingency measures in the maintenance plan:

i. Lower Reid vapor pressure gasoline program;

ii. Tighten RACT on existing sources covered by CTGs issued in response to the 1990 CAA;

iii. One or more transportation control measures sufficient to achieve at least half a percent reduction in actual area wide VOC emissions;

iv. Alternative fuel and diesel retrofit programs for fleet vehicle operations;

v. Require VOC or NO X emission offsets for new and modified major sources;

vi. Require VOC or NO X emission offsets for new and modified minor sources;

vii. Increase the ratio of emission offsets required for new sources;

viii. Require VOC or NO X controls on new minor sources (less than 100 tpy); and

ix. Adopt NO X RACT for existing combustion sources.

g. Provisions for Future Updates of the Ozone Maintenance Plan.

As required by section 175A(b) of the CAA, Ohio commits to submit to the EPA an updated ozone maintenance plan eight years after redesignation of the Cleveland-Akron-Lorain area to cover an additional ten-year period beyond the initial ten-year maintenance period. As required by section 175(A) of the CAA, Ohio has committed to retain the VOC and NO X control measures contained in the SIP prior to redesignation.

EPA has concluded that the maintenance plan adequately addresses the five basic components of a maintenance plan: Attainment inventory, maintenance demonstration, monitoring network, verification of continued attainment, and a contingency plan. The maintenance plan SIP revision submitted by Ohio for the Cleveland-Akron-Lorain area meets the requirements of section 175A of the CAA.

Under the CAA, States are required to submit, at various times, control strategy SIP revisions and ozone maintenance plans for ozone nonattainment areas and for areas seeking redesignations to attainment of the ozone standard. These emission control strategy SIP revisions ( e.g., reasonable further progress SIP and attainment demonstration SIP revisions) and ozone maintenance plans create MVEBs based on onroad mobile source emissions for criteria pollutants and/or their precursors to address pollution from cars and trucks. The MVEBs are the portions of the total allowable emissions that are allocated to highway and transit vehicle use that, together with emissions from other sources in the area, will provide for attainment or maintenance.

Under 40 CFR part 93, a MVEB for an area seeking a redesignation to attainment is established for the last year of the maintenance plan. The MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish the MVEB in the SIP and how to revise the MVEB if needed.

Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to ( i.e., be consistent with) the part of the SIP that addresses emissions from cars and trucks. Conformity to the SIP means that transportation activities will not cause new air quality violations, worsen existing air quality violations, or delay timely attainment of the NAAQS. If a transportation plan does not conform, most new transportation projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and assuring conformity of such transportation activities to a SIP.

When reviewing SIP revisions containing MVEBs, including attainment strategies, rate-of-progress plans, and maintenance plans, EPA must affirmatively find that the MVEBs are “adequate” for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEBs to be adequate for transportation conformity purposes, the MVEBs are used by State and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining the adequacy of MVEBs are set out in 40 CFR 93.118(e)(4).

EPA's process for determining adequacy of a MVEB consists of three basic steps: (1) Providing public notification of a SIP submission; (2) providing the public the opportunity to comment on the MVEB during a public comment period; and (3) EPA's finding of adequacy. The process of determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was codified in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM 2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas; Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change,” published on July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in making its adequacy determinations.

The Cleveland-Akron-Lorain area's maintenance plan contains new VOC and NO X MVEBs for the years 2012 and 2020. The availability of the SIP submission with these 2012 and 2020 MVEBs was announced for public comment on EPA's Adequacy Web site on February 18, 2009 at: http://www.epa.gov/otaq/stateresources/transconf/currsips.htm. The EPA public comment period on adequacy of the 2012 and 2020 MVEBs for the Cleveland-Akron-Lorain area closed on March 20, 2009. No requests for this submittal or adverse comments on the submittal were received during the adequacy comment period. In a letter dated March 30, 2009, EPA informed Ohio EPA that we had found the 2012 and 2020 MVEBs to be adequate for use in transportation conformity analyses.

EPA, through this rulemaking, is proposing to approve the MVEBs for use to determine transportation conformity in the Cleveland-Akron-Lorain area because EPA has determined that the area can maintain attainment of the 8-hour ozone NAAQS for the relevant maintenance period with mobile source emissions at the levels of the MVEBs. Ohio EPA has determined the 2012 MVEBs for the Cleveland-Akron-Lorain area to be 46.64 tpd for VOC and 95.89 tpd for NO X . Ohio EPA has determined the 2020 MVEBs for the area to be 31.48 tpd for VOC and 42.75 tpd for NO X . These MVEBs are consistent with the onroad mobile source VOC and NO X emissions projected by Ohio EPA for 2012 and 2020, as summarized in Table 6 above. Ohio has demonstrated that the Cleveland-Akron-Lorain area can maintain the 8-hour ozone NAAQS with mobile source emissions of 46.64 tpd and 31.48 tpd of VOC and 95.89 tpd and 42.75 tpd of NO X in 2012 and 2020, respectively, since emissions will remain under attainment year emission levels.

A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. As noted in Table 6, the Cleveland-Akron-Lorain area emissions are projected to have safety margins of 70.19 tpd for VOC and 114.12 tpd for NO X in 2012 (the difference between the attainment year, 2006, emissions and the projected 2012 emissions for all sources in the Cleveland-Akron-Lorain area). For 2020, the Cleveland-Akron-Lorain area emissions are projected to have safety margins of 84.94 tpd for VOC and 186.68 tpd for NO X . Even if emissions reached the full level of the safety margin, the counties would still demonstrate maintenance since emission levels would equal those in the attainment year.

The MVEBs requested by Ohio EPA contain safety margins for mobile sources smaller than the allowable safety margins reflected in the total emissions for the Cleveland-Akron-Lorain area. The State is not requesting allocation of the entire available safety margins reflected in the demonstration of maintenance. Therefore, even though the State is requesting MVEBs that exceed the projected onroad mobile source emissions for 2012 and 2020 contained in the demonstration of maintenance, the increase in onroad mobile source emissions that can be considered for transportation conformity purposes is well within the safety margins of the ozone maintenance demonstration. Further, once allocated to mobile sources, these safety margins will not be available for use by other sources.

As discussed above, section 182(a)(1) of the CAA requires areas classified as marginal and above to submit a base year emissions inventory. As part of Ohio's redesignation request for the Cleveland-Akron-Lorain area, the State submitted a 2002 base year emissions inventory. This inventory is discussed above and summarized in Table 3. EPA is proposing to approve this 2002 base year inventory as meeting the section 182(a)(1) emissions inventory requirement.

On June 15, 2007, and February 22, 2008, Ohio EPA submitted an attainment demonstration and reasonable further progress plans for the Cleveland-Akron-Lorain area as required by section 182(b)(1) of the CAA. In those submittals, Ohio EPA requested that EPA act on the 15% ROP plan that was originally submitted by Ohio to meet section 182(b)(1) requirements under the 1-hour ozone standard. The 1-hour ozone 15% ROP plan was originally submitted on March 14, 1994, and supplemented on June 9, 1995. Because the area subsequently attained the 1-hour ozone standard, EPA redesignated the area on May 7, 1996 and did not take action on the 15% ROP plan.

As discussed in greater detail below, EPA has evaluated Ohio's 15% ROP plan and has found it to be consistent with section 182(b)(1) of the CAA and EPA policy documents. Therefore, we are proposing to approve Ohio's 15% plan as meeting the 182(b)(1) requirements for the Cleveland-Akron-Lorain area under the 1-hour ozone standard. Approval of Ohio's 1-hour ozone 15% ROP plan is not required for purposes of the 8-hour redesignation. However, because the plan meets the requirements of the CAA and may be helpful in future implementation of ozone standards, we are acting on the State's request to approve this plan.

Section 182(b)(1) of the CAA requires that the ROP plan provide for a 15% reduction from baseline VOC emissions in the ozone nonattainment area, accounting for any growth in emissions after 1990. This emission reduction must be achieved within six years after the date of the enactment of the 1990 Clean Air Act revisions (by November 15, 1996).

The CAA defines the baseline emissions to be the total amount of actual VOC emissions from all anthropogenic sources in the area during the calendar year of 1990, excluding emissions that would be eliminated under Federal Motor Vehicle Control Program (FMVCP) measures promulgated by the EPA by January 1, 1990, and any gasoline Reid Vapor Pressure (RVP) regulations promulgated by EPA by November 15, 1990, or required to be promulgated under section 211 of the CAA.

Section 182(b)(1) of the CAA allows emission reductions to be creditable except for the RVP and FMVCP emission reductions mentioned above, any emission reductions from measures resulting from EPA-required corrections to motor vehicle Inspection and Maintenance (I/M) programs required to be submitted immediately after enactment of the 1990 Clean Air Act revisions, and emission reductions resulting from EPA-required corrections to the State VOC RACT rules that were required by section 182(a)(2)(A) of the CAA concerning RACT fix-up requirements. In general, VOC emission reductions are creditable toward the ROP emission reduction requirement to the extent that they have actually occurred, as of six years after November 15, 1990, resulting from the implementation of measures required under the applicable implementation plan, rules promulgated by the Administrator (EPA), or a permit issued under Title V of the CAA.

a. Calculation of the Adjusted Base Year Inventory.

The CAA specifies the emission baseline from which the 15% VOC-only reduction is calculated. This baseline value is termed the 1990 adjusted base year inventory. Section 182(b)(1)(D) of the CAA excludes from the baseline the emissions that would be eliminated by FMVCP regulations promulgated by January 1, 1990, and RVP regulations (55 FR 23666, June 11, 1990) promulgated by EPA prior to November 15, 1990.

The adjusted base year inventory is determined by starting with the 1990 base year emission inventory, and then removing all biogenic emissions as well as emissions from sources located outside of the designated nonattainment boundary. (The 1990 base year emissions inventory was submitted to the EPA on March 14, 1994, at the same time that the 15% VOC-only ROP plan was submitted for the Cleveland-Akron-Lorain, OH 1-hour ozone nonattainment area.) The resulting inventory is termed the 1990 ROP base year inventory. The 1990 ROP base year inventory is then adjusted by removing the expected FMVCP and RVP reductions to derive the adjusted base year inventory. These calculations are summarized in Table 7, below, and result in an adjusted base year inventory of 366.97 tpd VOC.

b. Required VOC Emission Reductions.

The 1990 adjusted base year inventory is multiplied by 0.15 to calculate 15% of the adjusted base year emissions. Therefore, to meet the ROP requirement, Ohio's plan must provide for at least a 55.05 tpd reduction in VOC emissions (366.97 tpd VOC multiplied by 0.15), in addition to the reduction needed to offset growth.

As noted above, under section 182(b)(1)(D) of the CAA, the following reductions are not creditable toward the ROP reductions: (1) FMVCP regulations promulgated by January 1, 1990; (2) RVP regulations promulgated by EPA before enactment of the 1990 Clean Air Act Amendments; (3) certain corrections to VOC RACT rules and; (4) corrections to basic automobile I/M programs. Thus, the total expected reductions are comprised of the reductions necessary to meet the ROP requirement and the expected emissions reductions from the four noncreditable programs. The total expected emissions reductions are 171.87 tpd VOC (55.05 tpd + 109.06 tpd FMVCP & RVP reductions + 7.76 tpd RACT & I/M corrections reductions).

The amount of reduction necessary to meet the contingency plan requirement is 3% of the adjusted base year inventory. Therefore, to meet the contingency requirement, the State's plan must provide for at least 11.01 tpd reduction in VOC emissions (366.97 tpd VOC multiplied by 0.03). The 1996 target level of VOC emissions is 304.16 tpd, the 1990 ROP base year inventory minus the total expected emission reductions (476.03 tpd−171.87 tpd).

c. Projected Emission Inventory.

Emission projections are needed to determine if the ROP requirements in the CAA are met. Growth factors are not included in the calculations of the 1990 adjusted base year inventory or the 1996 target level of emissions. Growth factors are needed, however, to project emissions to 1996 for the ROP demonstration as part of the ROP plan.

Ohio calculated point source emissions growth based on earnings data obtained from the Bureau of Economic Analysis. Area source emissions were projected based on population, industrial employment, and State gasoline consumption growth. For mobile source emissions, a travel demand model was run to estimate 1996 VMT. Total 1996 VOC emissions including growth were estimated to be 373.00 tpd.

d. Total VOC Emission Reductions Necessary To Meet the 15% VOC-Only ROP Requirement.

The required VOC emissions reduction to meet the 15% ROP requirements is 68.84 tpd. This is the difference between the projected 1996 emissions with growth and no additional controls, and the 1996 target level of emissions (373.00 tpd VOC−304.16 tpd VOC).

Provided in Table 9 is a summary of the results of the emissions calculations used to determine the required 15% VOC-only ROP plan reductions.

e. Control Measures.

The control measures adopted by Ohio to achieve a 69.77 tpd reduction in VOC emissions are listed in Table 10, below. The table does not include any Federal measures used to reduce the mobile source emissions. These reductions are already accounted for in the MOBILE5a emissions model that, in combination with the projected VMT for the area, was used to estimate the future emissions for the area.

Overall, Ohio's ROP plan provides for a 69.77 tpd VOC emissions reduction, which meets the ROP requirements. The contingency plan provides for the necessary 3% emission reduction.

Section 182(f) establishes NO X emission control requirements for ozone nonattainment areas. It provides that these emission control requirements, however, do not apply to an area if the Administrator determines that NO X emission reductions would not contribute to attainment of the ozone standard. EPA's January 2005 document, “Guidance on Limiting Nitrogen Oxides Requirements Related to 8-Hour Ozone Implementation,” provides guidance for demonstrating that further NO X reduction in an ozone nonattainment area will not contribute to ozone attainment. The guidance provides that three consecutive years of monitoring data showing attainment of the standard without implementation of section 182(f) NO X provisions is adequate to demonstrate that “additional reductions of oxides of nitrogen would not contribute to attainment * * *.” CAA section 182(f)(1)(A). As described in the guidance document, approval of this type of NO X exemption is contingent on continued monitored attainment of the standard.

On March 17, 2009, Ohio submitted a request for a waiver from the section 182(f) NO X requirements for the Cleveland-Akron-Lorain area based on monitoring data for the years 2006-2008 showing attainment of the 8-hour ozone standard in the area. Based on these data, EPA is proposing to approve Ohio's request for an exemption from the section 182(f) NO X requirements in the Cleveland-Akron-Lorain area. Upon final approval of the NO X waiver, the Ohio EPA will not be required to adopt and implement NO X emission control regulations pursuant section 182(f) for Cleveland-Akron-Lorain area to qualify for redesignation. The waiver request notwithstanding, Ohio EPA submitted NO X RACT rules to EPA on January 3, 2008, and has included NO X RACT in the list of contingency measures in the maintenance plan for the area.

Furthermore, as discussed in section III.A. of this rule, EPA promulgated a tightened ozone standard on March 27, 2008. Ohio has recommended that the Cleveland-Akron-Lorain area be designated nonattainment for this standard. Although EPA is proposing to determine that NO X reductions would not contribute to attainment of the 1997 ozone standard because the area already attains that standard, EPA believes that NO X reductions may contribute to attainment of the 2008 standards. Indeed, while EPA proposes that Ohio need not adopt NO X RACT rules as a prerequisite for redesignation with respect to the 1997 standards, it would not prevent EPA in the future from determining that NO X RACT rules should be required in this area with respect to the 2008 standards.

EPA is proposing to make a determination that the Cleveland-Akron-Lorain area has attained the 8-hour ozone NAAQS. EPA is also proposing to approve the maintenance plan SIP revision for the Cleveland-Akron-Lorain area. EPA's proposed approval of the maintenance plan is based on Ohio's demonstration that the plan meets the requirements of section 175A of the CAA, as described more fully above. After evaluating Ohio's redesignation request, EPA has determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. Therefore, EPA is proposing to approve the redesignation of the Cleveland-Akron-Lorain area from nonattainment to attainment for the 8-hour ozone NAAQS. The final approval of this redesignation request would change the official designation for the Cleveland-Akron-Lorain area from nonattainment to attainment for the 8-hour ozone standard. EPA is also proposing to approve the 2002 base year emissions inventory for the Cleveland-Akron-Lorain area as meeting the requirements of section 182(a)(1) of the CAA. EPA is proposing to approve a waiver from the section 182(f) NO X emission control requirements in the Cleveland-Akron-Lorain area. EPA is also proposing to approve Ohio's 15% ROP plan as meeting the requirements of section 182(b)(1) of the CAA for the 1-hour ozone standard. If EPA's determination of attainment is finalized, pursuant to 40 CFR 51.918, certain SIP planning requirements related to attainment (the RACM requirement of section 172(c)(1) of the CAA, the RFP and attainment demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) of the CAA, and the requirement for contingency measures of section 172(c)(9) of the CAA) are not applicable to the area as long as it continues to attain the NAAQS. (These requirements would cease to apply upon redesignation.) Finally, EPA is proposing to approve the newly-established 2012 and 2020 MVEBs for the Cleveland-Akron-Lorain area.

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

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

When submitting comments, remember to:

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

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

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

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

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

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

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

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

EPA is proposing to take several related actions. EPA is proposing to make a determination that the Columbus nonattainment area has attained the 8-hour ozone standard and that this area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. EPA is thus proposing to approve Ohio's request to change the legal designation of the Columbus area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA is also proposing to approve Ohio's maintenance plan SIP revision for Columbus (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to keep the Columbus area in attainment of the ozone NAAQS through 2020. EPA is proposing to approve the 2002 base year emissions inventory for the Columbus area as meeting the requirements of section 172(c)(3) of the CAA. If EPA's determination of attainment is finalized, under the provisions of 40 CFR section 51.918, the requirement to submit certain planning SIPs related to attainment (the RACM requirement of section 172(c)(1) of the CAA, the RFP and attainment demonstration requirements of sections 172(c)(2) and (6) of the CAA, and the requirement for contingency measures of section 172(c)(9) of the CAA) are not applicable to the area as long as it continues to attain the NAAQS and would cease to be applicable upon redesignation. Finally, EPA is proposing to approve the newly-established 2012 and 2020 MVEBs for the Columbus area. The adequacy comment period for the MVEBs began on February 18, 2009, with EPA's posting of the availability of the submittal on EPA's Adequacy Web site (at http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm ). The adequacy comment period for these MVEBs ended on March 20, 2009. EPA did not receive any requests for this submittal, or adverse comments on this submittal during the adequacy comment period. In a letter dated March 30, 2009, EPA informed Ohio EPA that we had found the 2012 and 2020 MVEBs to be adequate for use in transportation conformity analyses. Please see section VII. B. of this rulemaking, “Adequacy of Ohio's MVEBs,” for further explanation on this process. Therefore, we find adequate, and are proposing to approve, the State's 2012 and 2020 MVEBs for transportation conformity purposes.

Ground-level ozone is not emitted directly by sources. Rather, emissions of NO X and volatile organic compounds (VOCs) react in the presence of sunlight to form ground-level ozone. NO X and VOCs are referred to as precursors of ozone.

The CAA establishes a process for air quality management through the NAAQS. Before promulgation of the 8-hour standard, the ozone NAAQS was based on a 1-hour standard. On November 6, 1991 (56 FR 56693 and 56813), the Columbus area was designated as a moderate nonattainment area under the 1-hour ozone NAAQS. The area was subsequently redesignated to attainment of the 1-hour standard on February 1, 1996 (61 FR 3591). At the time EPA revoked the 1-hour ozone NAAQS, on June 15, 2005, the Columbus area was designated as attainment under the 1-hour ozone NAAQS.

On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone standard of 0.08 parts per million parts (ppm). On April 30, 2004 (69 FR 23857), EPA published a final rule designating and classifying areas under the 8-hour ozone NAAQS. These designations and classifications became effective June 15, 2004. EPA designated as nonattainment any area that was violating the 8-hour ozone NAAQS based on the three most recent years of air quality data, 2001-2003.

The CAA contains two sets of provisions, subpart 1 and subpart 2, that address planning and control requirements for nonattainment areas. (Both are found in Title I, part D, 42 U.S.C. 7501-7509a and 7511-7511f, respectively.) Subpart 1 contains general requirements for nonattainment areas for any pollutant, including ozone, governed by a NAAQS. Subpart 2 provides more specific requirements for ozone nonattainment areas.

Under EPA's implementation rule for the 1997 8-hour ozone standard, (69 FR 23951 (April 30, 2004)), an area was classified under subpart 2 based on its 8-hour ozone design value ( i.e., the three-year average annual fourth-highest daily maximum 8-hour average ozone concentration), if it had a 1-hour design value at the time of designation at or above 0.121 ppm (the lowest 1-hour design value in Table 1 of subpart 2) (69 FR 23954). All other areas were covered under subpart 1, based upon their 8-hour design values (69 FR 23958). The Columbus area was designated as a subpart 1, 8-hour ozone nonattainment area by EPA on April 30, 2004 (69 FR 23857, 23927) based on air quality monitoring data from 2001-2003 (69 FR 23860).

40 CFR 50.10 and 40 CFR part 50, Appendix I provide that the 8-hour ozone standard is attained when the three-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm, when rounded. The data completeness requirement is met when the average percent of days with valid ambient monitoring data is greater than 90%, and no single year has less than 75% data completeness. See 40 CFR part 50, Appendix I, 2.3(d).

On March 17, 2009, Ohio EPA requested that EPA redesignate the Columbus area to attainment for the 8-hour ozone standard. The redesignation request included three years of complete, quality-assured data for the period of 2006 through 2008, indicating the 8-hour NAAQS for ozone, as promulgated in 1997, had been attained for the Columbus area. Under the CAA, nonattainment areas may be redesignated to attainment if sufficient complete, quality-assured data are available for the Administrator to determine that the area has attained the standard, and the area meets the other CAA redesignation requirements in section 107(d)(3)(E).

On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour ozone standard of 0.075. EPA has not yet promulgated area designations for this standard. While both the 1997 and 2008 8-hour ozone standards are currently in place, the actions addressed in this proposed rulemaking relate only to the 1997 8-hour ozone standard.

On December 22, 2006, in South Coast Air Quality Management Dist. v. EPA, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). 472 F.3d 882 (DC Cir. 2006). On June 8, 2007, in response to several petitions for rehearing, the DC Circuit Court clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Id., Docket No. 04 1201. Therefore, several provisions of the Phase 1 Rule remain effective: Provisions related to classifications for areas currently classified under subpart 2 of Title I, part D, of the Act as 8-hour nonattainment areas; the 8-hour attainment dates; and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS. The June 8, 2007, decision also left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8, 2007, decision reaffirmed the December 22, 2006, decision that EPA had improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations: (1) Nonattainment area New Source Review (NSR) requirements based on an area's 1-hour nonattainment classification; (2) section 185 penalty fees for 1-hour severe or extreme nonattainment areas; (3) measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; and (4) certain transportation conformity requirements for certain types of Federal actions. The June 8, 2007, decision clarified that the Court's reference to conformity requirements was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations.

This section sets forth EPA's views on the potential effect of the Court's rulings on this proposed redesignation action. For the reasons set forth below, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation or prevent EPA from proposing or ultimately finalizing this redesignation. EPA believes that the Court's December 22, 2006, and June 8, 2007, decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests.

With respect to the 8-hour standard, the Court's ruling rejected EPA's reasons for classifying areas under subpart 1 for the 8-hour standard, and remanded that matter to the Agency. In its January 16, 2009 proposed rulemaking in response to the South Coast decision, EPA has proposed to classify Columbus under subpart 2 as a moderate area. 74 FR 2936, 2944. If EPA finalizes this rulemaking, the requirements under subpart 2 will become applicable when they are due, a deadline that EPA has proposed to be one year after the effective date of a final rulemaking classifying areas as moderate or marginal. 74 FR 2940-2941. Although a future final decision by EPA to classify this area under subpart 2 would trigger additional future requirements for the area, EPA believes that this does not mean that redesignation cannot now go forward. This belief is based upon: (1) EPA's longstanding policy of evaluating requirements in accordance with the requirements due at the time the request is submitted; and (2) consideration of the inequity of applying retroactively any requirements that might in the future be applied.

First, at the time the redesignation request was submitted, the Columbus area was not classified under subpart 2, nor were there any subpart 2 requirements yet due for this area. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the CAA, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. See September 4, 1992, Calcagni memorandum (“Procedures for Processing Requests To Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division). See also Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (Redesignation of Detroit-Ann Arbor). See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004), which upheld this interpretation. See, e.g. also 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis).

Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The DC Circuit has recognized the inequity in such retroactive rulemaking. In Sierra Club v. Whitman, 285 F. 3d 63 (DC Cir. 2002), the DC Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: “Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.” Id. at 68. Similarly here it would be unfair to penalize the area by applying to it for purposes of redesignation additional SIP requirements under subpart 2 that were not in effect or yet due at the time it submitted its redesignation request.

With respect to the 1-hour standard requirements, the Columbus area was an attainment area subject to a CAA section 175A maintenance plan under the 1-hour standard. The DC Circuit's decisions do not impact redesignation requests for these types of areas, except to the extent that the Court in its June 8, 2007, decision clarified that for those areas with 1-hour motor vehicle emissions budgets in their maintenance plans, anti-backsliding requires that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR part 93.

With respect to the three other anti-backsliding provisions for the 1-hour standard that the Court found were not properly retained, the Columbus area is an attainment area subject to a maintenance plan for the 1-hour standard, and the NSR, contingency measure (pursuant to section 172(c)(9) or 182(c)(9)), and fee provision requirements no longer apply to an area that has been redesignated to attainment of the 1-hour standard.

Thus, the decision in South Coast Air Quality Management Dist. would not preclude EPA from finalizing the redesignation of this area.

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

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

“Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from William G. Laxton, Director, Technical Support Division, June 18, 1990;

“Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992;

“Contingency Measures for Ozone and Carbon Monoxide (CO) Redesignations,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992;

“Procedures for Processing Requests To Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992;

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

“Technical Support Documents (TSDs) for Redesignation Ozone and Carbon Monoxide (CO) Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993;

“State Implementation Plan (SIP) Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide (CO) National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993;

“Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, to Air Division Directors, Regions 1-10, November 30, 1993.

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

“Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995.

Approval of the redesignation request would change the official designation of the area for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Ohio SIP a plan for maintaining the 8-hour ozone NAAQS through 2020. The maintenance plan includes contingency measures to remedy future violations of the 8-hour NAAQS. It also establishes MVEBs of 54.86 and 36.60 tons per day (tpd) VOC and 91.64 and 46.61 tpd NO X for the years 2012 and 2020, respectively.

EPA is proposing to make a determination that the Columbus area has attained the 8-hour ozone standard and that the area has met all other applicable section 107(d)(3)(E) redesignation criteria. The basis for EPA's determination is as follows:

EPA is proposing to make a determination that the Columbus area has attained the 8-hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and part 50, Appendix I, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the three-year average of the fourth-highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area over each year must not exceed 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in the Aerometric Information Retrieval System (AIRS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

Ohio EPA submitted ozone monitoring data for the 2006 to 2008 ozone seasons. Ohio EPA quality-assured the ambient monitoring data in accordance with 40 CFR 58.10, and recorded it in the AIRS database, thus making the data publicly available. The data meet the completeness criteria in 40 CFR 50, Appendix I, which requires a minimum completeness of 75 percent annually and 90 percent over each three year period. Monitoring data is presented in Table 1 below.

In addition, as discussed below with respect to the maintenance plan, Ohio EPA has committed to continue to operate an EPA-approved monitoring network as necessary to demonstrate ongoing compliance with the NAAQS. Ohio EPA commits to continue monitoring ozone at the sites indicated in Table 1. Ohio EPA also commits to consult with EPA prior to making changes to the existing monitoring network, should changes become necessary in the future. Ohio EPA remains obligated to continue to quality assure monitoring data in accordance with 40 CFR part 58 and enter all data into the Air Quality System in accordance with Federal guidelines. In summary, EPA believes that the data submitted by Ohio provide an adequate demonstration that the Columbus area has attained the 8-hour ozone NAAQS, and currently available data show that the area continues to attain the standard. Should the area violate the standard before the redesignation is finalized, EPA will not go forward with the redesignation.

We have determined that Ohio has met all currently applicable SIP requirements for purposes of redesignation for the Columbus area under section 110 of the CAA (general SIP requirements). We are also proposing to determine that the Ohio SIP meets all SIP requirements currently applicable for purposes of redesignation under part D of Title I of the CAA (requirements specific to subpart 1 nonattainment areas), in accordance with section 107(d)(3)(E)(v). In addition, with the exception of the base year emissions inventory, we have determined that the Ohio SIP is fully approved with respect to all applicable requirements for purposes of redesignation, in accordance with section 107(d)(3)(E)(ii). As discussed below, in this action EPA is proposing to approve Ohio's 2002 base year emissions inventory.

In proposing these determinations, we have ascertained what SIP requirements are applicable to the area for purposes of redesignation, and have determined that the portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. As discussed more fully below, SIPs must be fully approved only with respect to currently applicable requirements of the CAA.

The September 4, 1992, Calcagni memorandum (see “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) of the CAA. Under this interpretation, a state and the area it wishes to redesignate must meet the relevant CAA requirements that are due prior to the state's submittal of a complete redesignation request for the area. See also the September 17, 1993, Michael Shapiro memorandum and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS). Applicable requirements of the CAA that come due subsequent to the state's submittal of a complete request remain applicable until a redesignation to attainment is approved, but are not required as a prerequisite to redesignation. See section 175A(c) of the CAA. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis area to attainment of the 1-hour ozone NAAQS).

Since EPA is proposing here to determine that the area has attained the 1997 8-hour ozone standard, under 40 CFR 51.918, if that determination is finalized, the requirements to submit certain planning SIPs related to attainment, including attainment demonstration requirements (the RACM requirement of section 172(c)(1) of the CAA, the RFP and attainment demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) of the CAA, and the requirement for contingency measures of section 172(c)(9) of the CAA) would not be applicable to the area as long as it continues to attain the NAAQS and would cease to apply upon redesignation. In addition, in the context of redesignations, EPA has interpreted requirements related to attainment as not applicable for purposes of redesignation. For example, in the General Preamble EPA stated that:

Section 110(a) of Title I of the CAA contains the general requirements for a SIP. Section 110(a)(2) provides that the implementation plan submitted by a state must have been adopted by the state after reasonable public notice and hearing, and that, among other things, it includes enforceable emission limitations and other control measures, means or techniques necessary to meet the requirements of the CAA; provides for establishment and operation of appropriate devices, methods, systems and procedures necessary to monitor ambient air quality; provides for implementation of a source permit program to regulate the modification and construction of any stationary source within the areas covered by the plan; includes provisions for the implementation of part C, Prevention of Significant Deterioration (PSD) and part D, NSR permit programs; includes criteria for stationary source emission control measures, monitoring, and reporting; includes provisions for air quality modeling; and provides for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D) of the CAA requires that SIPs contain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA has required certain states to establish programs to address transport of air pollutants (NO X SIP Call  1 and Clean Air Interstate Rule (CAIR) (70 FR 25162, May 12, 2005)). However, the section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's designation and classification. EPA believes that the requirements linked with a particular nonattainment area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the state. Thus, we believe that these requirements should not be construed to be applicable requirements for purposes of redesignation.

Further, we believe that the other section 110 elements described above that are not connected with nonattainment plan submissions and not linked with an area's attainment status are also not applicable requirements for purposes of redesignation. A state remains subject to these requirements after an area is redesignated to attainment. We conclude that only the section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures which we may consider in evaluating a redesignation request. This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements for redesignation purposes, as well as with section 184 ozone transport requirements. See Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174-53176, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio ozone redesignation (65 FR 37890, June 19, 2000), and in the Pittsburgh, Pennsylvania ozone redesignation (66 FR 50399, October 19, 2001).

We have reviewed Ohio's SIP and have concluded that it meets the general SIP requirements under section 110 of the CAA to the extent they are applicable for purposes of redesignation. EPA has previously approved provisions of the Ohio SIP addressing section 110 elements under the 1-hour ozone standard (40 CFR 52.1870). Further, in submittals dated December 5, 2007, and September 19, 2008, Ohio confirmed that the State continues to meet the section 110 requirements for the 8-hour ozone standard. EPA has not yet taken rulemaking action on these submittals; however, such approval is not necessary for redesignation.

EPA has determined that, if EPA finalizes the approval of the base year emissions inventory discussed in section VII.C. of this rulemaking, the Ohio SIP will meet the applicable SIP requirements for the Columbus area applicable for purposes of redesignation under part D of the CAA. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment requirements applicable to all nonattainment areas. Subpart 2 of part D, which includes section 182 of the CAA, establishes additional specific requirements depending on the area's nonattainment classification.

Since the Columbus area was not classified under subpart 2 of part D at the time its redesignation request was submitted, the subpart 2 requirements do not apply for purposes of redesignation. The applicable subpart 1 requirements are contained in sections 172(c)(1)-(9) and in section 176.

For purposes of evaluating this redesignation request, the applicable section 172 SIP requirements for the Columbus area are contained in sections 172(c)(1)-(9). A thorough discussion of the requirements contained in section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).

Section 172(c)(1) requires the plans for all nonattainment areas to provide for the implementation of all RACM as expeditiously as practicable and shall provide for attainment of the national primary ambient air quality standards. The EPA interprets this requirement to impose a duty on all nonattainment areas to consider all available control measures and to adopt and implement such measures as are reasonably available for implementation in the area as components of the area's attainment demonstration. On November 25, 2008 and February 2, 2009, Ohio EPA submitted an attainment demonstration and identified the control measures necessary to attain the NAAQS in the Columbus area. However, because attainment has been reached, no additional measures are needed to provide for attainment, and section 172(c)(1) requirements are no longer considered to be applicable as long as the area continues to attain the standard.

The RFP requirement under section 172(c)(2) is defined as progress that must be made toward attainment. This requirement is not relevant because the Columbus area has demonstrated monitored attainment of the ozone NAAQS. (General Preamble, 57 FR 13564). In addition, because the Columbus area has attained the ozone NAAQS and is no longer subject to an RFP requirement, the requirement to submit the section 172(c)(9) contingency measures are not applicable

Section 172(c)(3) requires submission and approval of a comprehensive, accurate and current inventory of actual emissions. As part of Ohio's redesignation request for the Columbus area, the state submitted a 2002 base year emissions inventory. As discussed below, EPA is proposing to approve the 2002 base year inventory that Ohio submitted with the redesignation request as meeting the section 182(a)(1) emissions inventory requirement.

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

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

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

Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway projects, conform to the air quality planning goals in the applicable SIPs. The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under Title 23 of the U.S. Code and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). State conformity revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability, which EPA promulgated pursuant to CAA requirements.

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

EPA approved Ohio's general and transportation conformity SIPs on March 11, 1996 (61 FR 9646), and May 30, 2000 (65 FR 34395), respectively. Ohio has submitted onroad motor vehicle budgets for the Columbus area of 54.86 and 36.60 tpd VOC and 91.64 and 46.61 tpd NO X for the years 2012 and 2020, respectively. The area must use the MVEBs from the maintenance plan in any conformity determination that is effective on or after the effective date of the maintenance plan approval.

If EPA issues a final approval of the base year emissions inventory, EPA will have fully approved the Ohio SIP for the Columbus area under section 110(k) of the CAA for all requirements applicable for purposes of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request (See page 3 of the September 4, 1992, John Calcagni memorandum; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-990 (6th Cir. 1998); Wall v. EPA, 265 F.3d 426 (6th Cir. 2001)) plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25413, 25426 (May 12, 2003). Since the passage of the CAA of 1970, Ohio has adopted and submitted, and EPA has fully approved, provisions addressing the various required SIP elements applicable to the Columbus area under the 1-hour ozone standard. In this action, EPA is proposing to approve Ohio's 2002 base year emissions inventory for the Columbus area as meeting the requirement of section 172(c)(3) of the CAA. No Columbus area SIP provisions are currently disapproved, conditionally approved, or partially approved.

EPA finds that Ohio has demonstrated that the observed air quality improvement in the Columbus area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other State-adopted measures.

In making this demonstration, the State has calculated the change in emissions between 2002 and 2006. Ohio used the 2002 nonattainment area base year emissions inventory required under section 172(c)(3) of the CAA as the nonattainment inventory for redesignation purposes. The State developed an attainment inventory for 2006, one of the years the Columbus area monitored attainment. The reduction in emissions and the corresponding improvement in air quality over this time period can be attributed to a number of regulatory control measures that Columbus and upwind areas have implemented in recent years.

The following is a discussion of permanent and enforceable measures that have been implemented in the areas:

i. Stationary Source NO X Rules. Ohio EPA developed rules governing the control of NO X emissions from Electric Generating Units (EGUs), major non-EGU industrial boilers, and major cement kilns. EPA approved Ohio's rules as fulfilling Phase I of the NO X SIP Call on August 5, 2003 (68 FR 46089), and June 27, 2005 (70 FR 36845), and as fulfilling Phase II of the SIP call on February 4, 2008 (73 FR 6427). Beginning in 2004, this rule accounts for approximately a 31 percent reduction in statewide NO X emissions.

ii. Federal Emission Control Measures. Reductions in VOC and NO X emissions have occurred statewide and in upwind areas as a result of Federal emission control measures, with additional emission reductions expected to occur in the future. Federal emission control measures include: The National Low Emission Vehicle (NLEV) program, Tier 2 emission standards for vehicles, gasoline sulfur limits, low sulfur diesel fuel standards, and heavy-duty diesel engine standards. In addition, on June 29, 2004 (69 FR 38958), EPA issued the Clean Air Non-road Diesel Rule, which phases in Tier 4 emissions standards over the 2008-2015 time period.

iii. Control Measures in Upwind Areas. On October 27, 1998 (63 FR 57356), EPA issued a NO X SIP call requiring the District of Columbia and 22 states to reduce emissions of NO X . The reduction in NO X emissions has resulted in lower concentrations of transported ozone entering the Columbus area. Emission reductions resulting from regulations developed in response to the NO X SIP call are permanent and enforceable.

Ohio is using the 2002 base year inventory developed pursuant to section 172(c)(3) of the CAA as the nonattainment inventory. In developing the 2002 base year inventory, Ohio EPA provided point and area source inventories to the Lake Michigan Air Directors Consortium (LADCO). The main purpose of LADCO is to provide technical assessments for and assistance to its member states on problems of air quality. LADCO's primary geographic focus is the area encompassed by its member states (Illinois, Indiana, Michigan, Ohio and Wisconsin) and any areas which affect air quality in its member states. LADCO processed these inventories through the Emission Modeling System (EMS) to generate summer weekday emissions for VOC and NO X . The processed modeling inventories were used for the base year inventory. The point source data provided to LADCO is a combination of EPA's EGU inventory and source specific data reported to Ohio EPA for non-EGU sources. Area source emissions were estimated by Ohio EPA using published Emission Inventory Improvement Program methodologies or methodologies shared by other states. Ohio EPA documented the methodology used for each area source category. Nonroad mobile emissions were generated for LADCO using EPA's National Mobile Inventory Model (NMIM), with the following exceptions: Recreational motorboat populations and spatial surrogates were updated; emissions estimates were developed for commercial marine vessels, aircraft, and railroads (MAR), three nonroad categories not included in NMIM; and onroad mobile emissions were calculated using the MOBILE6.2 emissions model.

Ohio is using 2006 for the attainment year inventory. Ohio EPA developed a 2005 base year inventory, in conjunction with LADCO, using the methodology described above for base year 2002. With the exception of the onroad mobile sector, Ohio EPA used growth factors provided by LADCO to project this inventory to 2006. Onroad mobile emissions were calculated for 2006 using the MOBILE6.2 emissions model.

Using the inventories described above, Ohio's submittal documents changes in VOC and NO X emissions from 2002 to 2006 for the Columbus area. Emissions data are shown in Tables 3 through 5 below.

This is a summary of a Public Notice released by the Media Bureau on May 22, 2009. The full text of this document is available for public inspection and copying during regular business hours in the Commission's Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. The complete text of this document also may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone (202) 488-5300, facsimile (202) 488-5563 or via e-mail FCC@BCPIWEB.com. The full text may also be downloaded at: http://www.fcc.gov. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using: (1) The Commission's Electronic Comment Filing System (ECFS), (2) the Federal Government's eRulemaking Portal, or (3) by filing paper copies. See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://www.fcc.gov/cgb/ecfs/ or the Federal eRulemaking Portal: http://www.regulations.gov. Filers should follow the instructions provided on the Web site for submitting comments.

• For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to ecfs@fcc.gov, and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response.

• Paper Filers: Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

• The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of before entering the building.

• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW., Washington DC 20554.

People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an e-mail to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (Voice), 202-418-0432 (TTY).

On October 23, 2008, the Media Bureau released the “October 23, 2008, Public Notice” soliciting comment on both a request filed June 10, 2008, asking the Commission to modify the technical specifications for FM digital audio broadcasting (DAB), and on two related technical studies. Comment Sought on Joint Parties Request for FM Digital Power Increase and Associated Technical Studies, MM Docket No. 99-325, Public Notice, DA 08-2340 (MB rel. Oct. 23, 2008). The request was filed by a group consisting of 18 broadcasters that operate over 1200 commercial and noncommercial educational (“NCE”) FM radio stations throughout the United States and the 4 largest manufacturers of broadcast transmission equipment, collectively identifying themselves as the “Joint Parties.” The Joint Parties requested that the Commission increase the maximum permissible digital operating power of FM stations from the current level of 1 percent of a station's authorized analog power (−20 dB) to a maximum of 10 percent of a station's authorized analog power (−10 dB) (the “Joint Parties' Request”).

The October 23, 2008, Public Notice also sought comment on two related technical studies. Filed concurrently with and in support of the Joint Parties' Request was a technical report prepared by iBiquity Digital Corporation (“iBiquity”). In addition, National Public Radio (“NPR”) submitted on July 18, 2008, its Corporation for Public Broadcasting (“CPB”)-supported research on digital radio coverage and interference. The October 23, 2008, Public Notice sought comment on the Joint Parties' Request and these related technical studies.

Developments since the release of the October 23, 2008, Public Notice prompt the solicitation of further public comment. Specifically, in response to the October 23, 2008, Public Notice, the Media Bureau has received comments and reply comments both supporting and opposing the Joint Parties' Request. The Joint Parties have urged the Commission to move expeditiously on its request to ameliorate the coverage shortfalls and reception difficulties that result from digital transmissions at currently authorized power levels. NPR has announced the commencement of additional CPB-supported testing of FM DAB. NPR, NPR Labs Launches CPB-Funded Study on Power Increase for HD Radio (press release), http://www.npr.org/about/press/2009/040209.CPBLabs.html, Apr. 2, 2009. See also NPR ex parte filings, MM Docket No. 99-325. NPR states that its additional testing will result in a recommendation of the amount of power increase needed to improve digital radio coverage while also protecting analog FM signals, including subcarrier transmissions, from interference. The study also proposes to consider the minimum spacing distances needed to protect analog signals from higher powered digital operations. NPR states that the findings of its study will be presented in September 2009. Letter from Gregory A. Lewis, Counsel for NPR, to Marlene H. Dortch, Secretary, FCC, Attach. (Mar. 30, 2009). In response to the record before the Commission, as well as NPR's plans for additional testing of FM DAB, the Media Bureau solicits further comment on the previously submitted iBiquity and NPR technical studies and on the following issues: (1) Whether the Bureau should defer consideration of the Joint Parties' requested power increase until the completion of and comment on the further NPR studies; (2) whether the record in this proceeding, the real world experience gained from over 1,400 FM stations operating for several years in the hybrid mode and the record of experimental authorizations at higher digital power levels warrant an increase in maximum digital operating power as proposed by the Joint Parties or support a provisional power increase of some lesser extent than that requested by the Joint Parties; (3) if the Commission does adopt a power increase, whether it should also establish standards to ensure the lack of interference to the analog signals of stations operating on first adjacent channels; and whether such standards should apply to, i.e., require the protection of, LPFM stations operating on first adjacent channels; and (4) if the Commission does adopt a power increase, whether it should also establish more explicit procedures to resolve digital-into-analog interference complaints.

The Joint Parties' Request and the iBiquity and NPR technical studies are available electronically at http://fjallfoss.fcc.gov//prod/ecfs/comsrch_v2.cgi under MM Docket No. 99-325, or from the Commission's duplicating contractor, Best Copy and Printing, Inc. (“BCPI”), 445 12th Street, SW., Room CY-B402, Washington, DC 20554, 1-800-378-3160. The Media Bureau seeks comment on the issues identified above. The Bureau also seeks comment on the Initial Regulatory Flexibility Analysis below. This action is taken under delegated authority pursuant to §§ 0.61 and 0.283 of the Commission's rules, 47 CFR 0.61, 0.283, and the Second Report and Order, 22 FCC Rcd at 10383, ¶ 99.

The proposal under consideration may result in a new or revised information collection requirement being adopted by the Commission when the final rules are adopted. If the Commission adopts any new or revised information collection requirement, the Commission will publish a separate notice in the Federal Register inviting the public to comment on the requirement, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3501-3520). In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the Commission will seek specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”

This proceeding has been designated “permit but disclose” for purposes of the Commission's ex parte rules, 47 CFR 1.1200-1.1216. Ex parte presentations will be governed by the procedures set forth in 47 CFR 1.1206 applicable to non-restricted proceedings.

1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), 1 the Commission has prepared this present Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the proposed rule as provided in the “Dates” paragraph of the item. The Commission will send a copy of the proposed rule, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). 2 In addition, the proposed rule and IRFA (or summaries thereof) will be published in the Federal Register . 3

2. This document seeks comment on issues, discussed infra in paragraph 4, concerning the Joint Parties' proposed increase in maximum permissible digital operating power for FM stations utilizing DAB from the current level of 1 percent of a station's authorized analog power (−20 dB) up to a maximum of 10 percent of a station's authorized analog power (−10 dB). The proposed voluntary increase by FM stations to any digital power level up to 10% of a station's authorized analog power would serve to facilitate the ability of FM stations to achieve digital replication of their analog signals and to overcome in-building digital reception problems.

3. This document seeks comment on relevant technical studies submitted by iBiquity and NPR. The iBiquity study, filed in support of the Joint Parties' Request, examined the benefits to digital broadcasting, the compatibility with analog broadcasting, and the potential interference effects resulting from the proposed increase in maximum permissible FM digital operating power. The iBiquity study concluded that an increase in authorized FM digital power levels to 10 percent of a station's authorized analog power would significantly improve digital coverage while avoiding, in the majority of instances, increased interference to reception of analog signals of FM stations operating on first adjacent channels. The NPR study concluded that, although such an increase in authorized FM digital power levels would improve digital coverage in most instances, it could also result in substantial interference to reception of the analog signals of FM stations operating on first and second adjacent channels, and that further testing would be necessary to determine if increased digital operating power should be permitted for FM stations.

4. In response to the record before the Commission in MM Docket 99-325, as well as NPR's announced plans for additional testing of FM DAB, 4 the Media Bureau also solicits comment on the following issues: (1) Whether the Bureau should defer consideration of the Joint Parties' requested power increase until the completion of and comment on the further NPR studies; (2) whether the record in this proceeding, the real world experience gained from over 1,400 FM stations operating for several years in the hybrid mode and the record of experimental authorizations at higher digital power levels warrant an increase in maximum digital operating power as proposed by the Joint Parties or support a provisional power increase of some lesser extent than that requested by the Joint Parties; (3) if the Commission does adopt a power increase, whether it should also establish standards to ensure the lack of interference to the analog signals of stations operating on first adjacent channels, and whether such standards should apply to, i.e., require the protection of, LPFM stations operating on first adjacent channels; and (4) if the Commission does adopt a power increase, whether it should also establish more explicit procedures to resolve digital-into-analog interference complaints.

5. The authority for this notice is contained in Sections 1, 2, 4(i) and (j), 301, 302, 303, 307, 308, and 309 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 154(i) and (j), 301, 302, 303, 307, 308, and 309.

6. The RFA directs the Commission to provide a description of and, where feasible, an estimate of the number of small entities that will be affected by the proposed rules. 5 The RFA generally defines the term “small entity” as encompassing the terms “small business,” “small organization,” and “small governmental entity.”  6 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. 7 A small business concern is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (“SBA”). 8 The proposed rules and policies potentially will apply to all FM radio broadcasting licensees and potential licensees.

7. The SBA defines a radio broadcasting station that has $7 million or less in annual receipts as a small business. 9 A radio broadcasting station is an establishment primarily engaged in broadcasting aural programs by radio to the public. 10 Included in this industry are commercial, religious, educational, and other radio stations. 11 Radio broadcasting stations which primarily are engaged in radio broadcasting and which produce radio program materials are similarly included. 12 However, radio stations that are separate establishments and are primarily engaged in producing radio program material are classified under a separate NAICS number. 13 According to Commission staff review of the BIA Financial Network, Inc. Media Access Radio Analyzer Database as of February 19, 2009, about 10,600 (96 percent) of 11,050 commercial radio stations in the United States have revenues of $7 million or less. We note that many radio stations are affiliated with much larger corporations having much higher revenue. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action.

8. In the Second Report and Order, the Commission declined to establish a deadline for radio stations to convert to digital broadcasting, 22 FCC Rcd at 10351. Presently, radio stations may choose to commence DAB operation pursuant to Section 73.404 of the Commission's rules, 47 CFR 73.404, which requires in part that licensees provide notification to the Commission within 10 days of commencing DAB operation. The proposed rule change may impose additional reporting or recordkeeping requirements on FM radio stations choosing to upgrade DAB operating power above the current limitation of 1 percent of a station's authorized analog power. For example, licensees choosing to increase DAB operating power above 1 percent of authorized analog power could be required to notify the Commission of the increase in power.

9. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. 14 This document has proposed for commenter evaluation the issue of taking steps to minimize significant impact on small entities, focusing on the four issues, enumerated supra in paragraph 6, relevant to the Joint Parties' Request, as well as on any issues raised by the technical studies previously submitted by iBiquity and NPR. To assist in the analysis, commenters are requested to provide information, studies, and/or opinions regarding how small entities would be affected if the Commission were to adopt an increase in maximum digital operating power as proposed by the Joint Parties or a provisional power increase of some lesser extent than that requested by the Joint Parties, and whether such adoption could result in the disparate treatment of small entities with limited financial and/or technical resources. Commenters should also provide information, studies, and/or opinions on alternative approaches to alleviate any potential burdens on small entities.

10. None.

Background documents on the biology of the Hawaiian monk seal, the July 2, 2008, petition requesting revision of its critical habitat, and documents explaining the critical habitat designation process, can be downloaded from http://www.fpir.noaa.gov/PRD/prd_index.html , or requested by phone or e-mail from the NMFS staff in Honolulu (area code 808) listed under “ FOR FURTHER INFORMATION CONTACT ”. The October 3, 2008, 90-day finding in response to the petition and the information received in response to the 90-day finding can be viewed at www.regulations.gov by searching for docket number “NOAA-NMFS-2008-0290”.

On July 9, 2008, we received a petition dated July 2, 2008, from the Center for Biological Diversity, Kahea, and the Ocean Conservancy (Petitioners) to revise the Hawaiian monk seal critical habitat designation (Center for Biological Diversity et al. , 2008) under the ESA. Currently designated critical habitat is described below in “ Listing Status and Existing Critical Habitat Under the ESA .” The Petitioners seek to revise critical habitat by adding the following areas in the main Hawaiian Islands (MHI): key beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 200 meters. In addition, The Petitioners request that currently designated critical habitat in the Northwestern Hawaiian Islands (NWHI) be extended to include Sand Island at Midway, as well as ocean waters out to a depth of 500 meters (Center for Biological Diversity et al. , 2008).

On October 3, 2008, we published a 90-day finding in response to the petition, finding that the petition presented substantial scientific information indicating that a revision to the current critical habitat designation may be warranted (73 FR 57583; October 3, 2008). The 90-day finding requested that the public submit information by December 2, 2008, to help us determine whether a revision of critical habitat is warranted for the Hawaiian monk seal. The purpose of this 12-month finding is to announce that we intend to proceed with a revision of critical habitat for the monk seal and to provide details on the revision process.

In the following sections, we provide information on the Hawaiian monk seal's listing status and existing critical habitat under the ESA, population status and trend, Hawaiian monk seal biology, summary of the information received from the public in response to our 90-day finding (73 FR 57583; October 3, 2008), our determination that we will proceed with a revision of critical habitat, and the criteria we intend to use for the revision.

The Hawaiian monk seal ( Monachus schauinslandi ) was listed as endangered under the ESA in 1976 (41 FR 33922; November 23, 1976). This species occurs throughout the Hawaiian Archipelago and on Johnston Atoll, and has been sighted at other atolls and islands to the south of Hawaii. In 1986, critical habitat was designated for all beach areas, sand spits and islets, including all beach crest vegetation to its deepest extent inland, lagoon waters, inner reef waters, and ocean waters out to a depth of 10 fathoms (18.3 m) around Kure Atoll, Midway Islands (except Sand Island), Pearl & Hermes Reef, Lisianski Island, Laysan Island, Gardner Pinnacles, French Frigate Shoals, Necker Island, and Nihoa Island in the NWHI (51 FR 16047; April 30, 1986). In 1988, critical habitat was extended to include Maro Reef and waters around previously recommended areas out to the 20 fathom (36.6 m) isobath (53 FR 18988; May 26, 1988). A recovery plan was completed in 1983 (NMFS, 1983) and revised in 2007 (NMFS, 2007a). The species is endemic (found nowhere else) to the Hawaiian Archipelago, and is one of the most endangered marine mammals in the United States (NMFS, 2007a).

The Hawaiian monk seal is a mammal in the Order Carnivora, Family Phocidae, Genus Monachus . Only two other species occur in this genus, the recently extinct Caribbean monk seal ( M. tropicalis ) and the critically endangered Mediterranean monk seal ( M. monachus ). Following is an overview of the Hawaiian monk seal's biology, including Range, Population Status and Trends, Natural History, Habitat, and Northwestern Hawaiian Islands vs. Main Hawaiian Islands (a description of differences in monk seal habitat between these two areas).

Hawaiian monk seals are found throughout the Hawaiian Archipelago and on Johnston Atoll. The six main reproductive sites for the species are in the NWHI: Kure Atoll, Midway Islands, Pearl and Hermes Reef, Lisianski Island, Laysan Island, and French Frigate Shoals. Smaller reproductive sites also occur on Necker Island and Nihoa Island, and monk seals have been observed at Gardner Pinnacles and Maro Reef. Monk seals are found throughout the MHI, where births have been documented on most of the major islands (NMFS, 2001, 2007a). In 1994, we relocated 21 adult male monk seals from the NWHI to the MHI in order to reduce male aggression and female deaths at Laysan Island, where males greatly outnumbered females at the time. We have relocated three female monk seals (a juvenile in 1981, a pup in 1991, and an adult in 2009) from the MHI to the NWHI. Thus, we have relocated 21 males from the NWHI to the MHI, and three females from the MHI to the NWHI.

At Johnston Atoll, a tagged yearling male monk seal from Laysan Island was first seen in July 1968 (Schreiber and Kilder, 1969) and remained until at least August 1972. In January 1969, an untagged adult female monk seal arrived on Sand Island, a secondary island within Johnston Atoll, and gave birth to a female pup. The mother-pup pair remained on or near the pupping beach until March 1969, when the pup was weaned and the mother disappeared. The pup remained until 1971 when it died from a deep flesh wound, probably from a shark attack (Amerson and Shelton, 1976). In July 1999, a tagged adult female from French Frigate Shoals arrived at Johnston Atoll and remained there for about a year (NMFS, 2001).

In addition to the above reported natural occurrences of monk seals at Johnston Atoll, a 12 male monk seals have been relocated there from the Hawaiian Archipelago. In 1984, nine adult males were relocated from the NWHI to Johnston Atoll, because of attacks on adult females and immature seals. At least three of these males were still at Johnston Atoll the following year, and at least one male was still there in 1986. In 1989, two adult males were relocated from the NWHI to Johnston Atoll because they were drowning pups. In 2003, an adult male was relocated from the MHI to Johnston Atoll because it was habituated to humans and exhibiting dangerous behavior. No sighting history is available for the latter three monk seals (NMFS unpublished data).

Unconfirmed but probable sightings of Hawaiian monk seals outside the Hawaiian Archipelago and Johnston Atoll have been reported from Palmyra Atoll (1,800 km south of NWHI) and Wake Island (2,000 km southwest of NWHI); two seals were sighted on Palmyra Atoll in 1990, a seal was sighted on Wake Island in early summer 1966, and a tagged seal was sighted on Wake Island in February 1987 (Westlake and Gilmartin, 1990, NMFS unpublished data). Other more poorly-documented sightings have also been reported from Bikini Atoll and Mejit Island in the Marshall Islands (2,400 km southwest of NWHI, NMFS unpublished data).

The best estimate of Hawaiian monk seal total population size is 1,208 seals in 2006 (1,125 in the NWHI, 83 in the MHI; NMFS, 2008a). Additional population information can be found in the annual Stock Assessment Reports (e.g., NMFS, 2006, 2007b, 2008a). The first rangewide beach count surveys of Hawaiian monk seals were conducted in the late 1950s. Beach counts of juveniles and adults (i.e., all seals except pups) declined by 66 percent between the years 1958 and 2006 (Figure I.C.6 in NMFS, 2007a). More recently, beach counts declined rapidly from 1985 to 1993, and then became relatively stable until the current decline began in 2001. Total abundance at the six primary NWHI sites (French Frigate Shoals, Laysan, Lisianski, Pearl and Hermes, Midway, and Kure) is declining at a rate of about four percent per year (NMFS 2007a, 2007b, 2008a).

Since 2000, many sites have shown indications of decline in abundance, apparently due to low juvenile survival. The decline at French Frigate Shoals is of particular consequence to the welfare of the overall population because this site once accounted for over 50 percent of the total non-pup beach counts in the NWHI. While that proportion has now dropped to approximately 25 percent of its observed peak, there are still more seals at French Frigate Shoals than any other island or atoll. More detail on Hawaiian monk seal population status and trends in the NWHI is provided in the recovery plan (NMFS, 2007a). As noted above, in 1994, we relocated 21 adult male monk seals from the NWHI to the MHI in order to reduce male aggression and female deaths at Laysan Island, where males greatly outnumbered females at the time. All female monk seals in the MHI occur there naturally. In 2008, only five of the 21 relocated male monk seals remained in the MHI.

Although monk seals historically occurred throughout the Hawaiian Archipelago, the majority of the population now occurs in the NWHI. Human settlement appears to have largely excluded monk seals from the MHI, although seal bones have been found at archeological sites dating from 1400 - 1700 (Rosendahl, 1994). In 1900, Hilo residents reported that solitary monk seals were seen in the area about once every 10 years (Bailey, 1952). From 1928 to 1956, seven monk seal sightings were documented in the MHI (Kenyon and Rice, 1959), and Niihau residents reported that seals appeared there in the 1970s. By 1994 there was a small naturally-occurring population of male and female monk seals in the MHI. This population appeared to be growing, and at least six pups had been born (one in 1962, and five between 1988 and 1993). Since the mid-1990s, an increasing number of documented sightings and annual births of monk seal pups have occurred in the MHI. Combined aerial and ground surveys in the MHI counted 45 hauled-out monk seals in 2000, and 52 in 2001 (Baker and Johanos, 2004). Sightings in the MHI tallied 77 individually identifiable monk seals in 2005 (NMFS, 2007b), and 83 in 2006 (NMFS, 2008a). Together, these observations suggest that monk seals are recolonizing the MHI.

Hawaiian monk seals are wide-ranging, air-breathing predators that forage underwater, preying primarily on small benthic fishes, cephalopods (e.g., octopus), and crustaceans (Goodman-Lowe, 1998). They spend the majority of their time in the ocean, where they are highly mobile and may have very large home ranges (Antonelis et al. , 2006). Monk seals are typical large predators, in that they can rapidly cover large areas in search of food. Individuals may travel hundreds of miles in a few days (Littnan et al. , 2007) and dive to 500 m (1,600 ft; Parrish et al. , 2002). Monk seals haul out on land to rest, molt, pup (give birth), and nurse. Resting may also occur at sea or in shallow, submerged caves. Monk seals are often solitary, both on land and in the water, but may congregate in favorable haul-out areas (Antonelis et al. , 2006). Adult monk seals reach a length of 2.3 m (7.5 ft) and weigh up to 273 kg (600 lb). Unlike most other pinnipeds, monk seals completely molt, whereby the entire layer of pelage (skin and hair) is shed annually. The old pelage strips away, leaving a dark grey coat underneath. Pups are black until first molt, and mostly grey thereafter, although coloration varies by individual and with age. When monk seals stay at sea for an extensive period, they may develop a red or green tinge from algal growth on their pelage (Kenyon and Rice, 1959).

It is thought that Hawaiian monk seals have a lifespan of up to 30 years. Females reach breeding age at about 6 to 11 years of age, depending on their condition, and give birth no more than once annually. Mating occurs at sea, and gestation is thought to be approximately 11 months. Monk seal births are most common between February and August, peaking in March and April at Laysan Island. Females give birth to a single pup and nurse it for about 6 weeks, followed by an abrupt weaning, when the mother abandons the pup (Johanos et al. , 1994). At least several months are required for the pup to learn to forage successfully on its own, during which time it survives on fat stores built up during nursing, resulting in considerable weight loss. Juveniles (up to 3 years old) are typically longer but thinner than recently-weaned pups, and juveniles in the NWHI typically do not regain their weaning weight until approximately 2 years of age (Johanos et al. , 1994). Male aggression, in which a single male or multiple males repeatedly attempt to mount and mate with a female or immature seal, is most common where males outnumber females, and sometimes results in death or severe injury to the targeted seal. Individual adult males sometimes attack pups in the same manner, also sometimes killing the pup (Hiruki et al. , 1993).

While Hawaiian monk seals spend most of their time in the water, they frequently haul out on land to rest, molt, pup (give birth), and nurse. Monk seals may remain at sea for several days or more at a time, but resting on land is necessary to conserve energy. Resting is commonly on sandy beaches, but may also occur on rocky shores, rock ledges, emergent reefs, and even shipwrecks (Antonelis et al. , 2006). Monk seals may take shelter from wind and rain under shoreline vegetation. Resting on land is typically done for a few hours to several days at a time, after which the monk seal returns to the water to continue foraging. When ocean conditions are rough, monk seals may spend a greater proportion of time resting on land. Hauling-out on land is also required for molting, when old pelage is shed. Molting is an annual process taking 1 to 2 weeks, during which time the monk seal usually remains on land (Kenyon and Rice, 1959).

Pupping and nursing areas are usually sandy beaches adjacent to shallow protected water (Westlake and Gilmartin, 1990). Individual females appear to favor certain pupping locations, returning to them year after year. Pregnant females come ashore a few days before giving birth to a pup weighing approximately 16 kg (35 lb). Pups nurse for 5 to 6 weeks (Johanos et al. , 1994), and weigh 50 - 100 kg (110 - 220 lb) at weaning. During nursing, the mother-pup pair remain close to each other, and the mother is protective of her pup. Although the pup is able to swim at birth, nursing is done on land, and the mother-pup pair usually remain on land for the first few days after the pup is born. The mother gradually begins swimming with her pup in the shallows, returning to the general area around the pupping site. As weaning approaches, the mother-pup pair spend more time in the water, venturing further away from the pupping site. After weaning, pups typically remain in the shallows near their nursing areas for several weeks before venturing into deeper foraging areas (Kenyon and Rice, 1959; Henderson and Johanos, 1988).

Monk seals are generalists that forage primarily over low-relief substrates such as sand and talus. Live fish are generally the preferred prey, and over 150 fish species have been recorded in the monk seal diet (Iverson et al. , 2006). NWHI camera studies have shown that adult male monk seals forage mainly on sand terraces and talus slopes 50 - 100 m (160 - 325 ft) deep around their home atoll and nearby seamounts (Parrish and Littnan, 2008). Premium adult foraging habitat is comprised of large, loose talus fragments, which the seals move to reach the hiding prey underneath (Parrish et al. , 2000). Studies in the NWHI (Parrish et al. , 2002; Stewart et al. , 2006) have shown that adult monk seals may forage at 300 - 500 m (1,000 - 1,600 ft), sometimes visiting patches of deep corals (Parrish et al. , 2002). Recent surveys of deep fish assemblages across seamounts of the NWHI show a pattern of reduced fish biomass at sites close to colonies of monk seals (Parrish, 2009). Juvenile monk seals (1 - 3 years old) forage both within shallow atoll lagoons 10 - 30 m (30 - 100 ft) and on deep reef slopes (50 - 100 m/160 - 325 ft), usually over sand rather than talus. Juvenile seals likely do not yet have the size or experience to engage in the large talus-foraging behavior exhibited by adults (Parrish et al. , 2005).

Although much less information is available for monk seals in the MHI, 11 juvenile and adult monk seals were tracked there in 2005 using satellite-linked radio transmitters showing location but not depth. This study indicated that seals usually remained in nearshore waters within the 200 m (650 ft) isobath. As in the NWHI, this study suggested that monk seals in the MHI forage mainly in deeper, low-relief (talus, sand) areas, commuting over shallower, high-relief (coral reefs, rock outcrops) without foraging (Littnan et al. , 2007). However, as in the NWHI, shallow areas adjacent to pupping areas are important for pups to develop foraging behavior. Otherwise, coral reefs and other high-relief shallows are not usually primary monk seal foraging habitat. Generally, juvenile and adult monk seals bypass these shallow high-relief substrates in transit to their primary foraging areas over low-relief substrates in deeper water, sometimes making no attempt to hunt the same fish species in the shallows that they were actively hunting in the deep (Parrish and Littnan, 2008).

In summary, the physical and biological habitat features that support resting, reproduction, and foraging are essential for the conservation of this species. For the Hawaiian monk seal, essential habitat includes terrestrial and marine areas. Terrestrial areas include both resting and reproductive habitat. Resting habitat consists of nearshore or emergent surfaces where monk seals can haul out, whereas reproductive habitat consists of a subset of resting habitat on sandy beaches that are also suitable for pupping and nursing. Marine areas include foraging habitat for pups, juveniles, and adults. Pup foraging habitat consists of shallow areas adjacent to pupping beaches where pups become accustomed to the marine environment and begin learning to forage on their own. Juveniles and adults forage widely, primarily in deeper areas.

The Hawaiian monk seal consists of one population distributed throughout the Hawaiian Archipelago. That is, there is no evidence that monk seals occurring in any part of the archipelago are genetically distinct from those elsewhere in the archipelago (Schultz et al. , 2008). This suggests that the population is genetically well-mixed, with individual seals sometimes moving between the NWHI and the MHI, which has been confirmed with resightings of flipper-tagged or otherwise identifiable (e.g., scar patterns; Littnan et al. , 2007). However, monk seals in the MHI are typically in better physical condition than those in the NWHI. For example, weaned pups in the MHI are larger and fatter than those in the NWHI, which is thought to reflect better foraging conditions in the MHI (Baker and Johanos, 2004; Baker et al. , 2006). Although the NWHI is one of the largest and best-protected natural areas in the world, and the MHI are populated by over a million people, the latter appears to currently provide superior monk seal foraging conditions.

Despite its large human population, the MHI may currently provide better monk seal foraging conditions than the NWHI because: (1) There are only about one-tenth the number of seals in the MHI than in the NWHI, thus the availability of prey may be higher per seal in the MHI than the NWHI (Baker and Johanos, 2004); and (2) Large sharks, jacks and other demersal fish compete directly with monk seals, but are much less abundant in the MHI than the NWHI (Parrish et al. , 2008). Competition is limited between humans and monk seals in the MHI because seals prefer small (usually < 20 cm/8 in) eels, wrasses, and other benthic species not commonly sought by fishermen, (Parrish et al. , 2000). However, while foraging conditions are currently better in the MHI than the NWHI for monk seals, pollution and runoff pose health hazards to the species in the MHI not found in the NWHI (Littnan et al. , 2007).

As described above in Population Status and Trends , since 1990, the total number of Hawaiian monk seals has decreased, while simultaneously the number of monk seals in the MHI appear to have increased (NMFS, 2006, 2007b, 2008a). As described in the above paragraph, foraging conditions currently appear better in the MHI than in the NWHI (Parrish et el., 2000, 2008), likely resulting in better physical condition and higher survival of seals in the MHI than in the NWHI (Baker and Johanos; 2004; NMFS, 2007a). In addition, sea level rise may reduce or eliminate monk seal haul-out habitat more rapidly in the low-lying NWHI than the MHI (Baker et al. , 2006). Given the overall downward trend of the species (see Population Status and Trends above), generally poor physical condition and survival of seals in the NWHI, and proportionally greater sea level effects on the NWHI than the MHI, the MHI appears essential for the survival and recovery of this species.

In our 90-day finding (73 FR 5l7583; October 3, 2008) in response to the petition (Center for Biological Diversity et al. , 2008), we solicited information from the public pertaining to the Hawaiian monk seal's essential habitat needs. The 90-day finding, and the information we received in response to it, can be viewed at www.regulations.gov by searching for docket number “NOAA-NMFS-2008-0290”. The great majority of the monk seal habitat-related information received was based on programs and studies conducted, funded, or supported by NMFS; therefore, we did not receive any new information on the monk seal's essential habitat needs. The information received is summarized below.

Comment 1: Over 100 comments argued that the MHI provide essential habitat for the Hawaiian monk seal because: (1) the MHI component of the monk seal population has increased in recent years while simultaneously the overall population has decreased; (2) monk seals in the MHI are in better physical condition than those in the NWHI; and (3) monk seal habitat loss is likely to be much more rapid in the NWHI than in the MHI in the near future due to sea level rise.

Response: We concur that the MHI component of the monk seal population appears to have increased in recent years while simultaneously the overall population has decreased (see “ Population Size and Trends ” above), that monk seals in the MHI are in better physical condition than those in the NWHI, and that monk seal haul-out habitat loss is likely to be more rapid in the NWHI than in the MHI in the future due to sea level rise (see “ Northwestern Hawaiian Islands vs. Main Hawaiian Islands ” above). For these three reasons, and also because of the current precarious state of the Hawaiian monk seal, we agree that monk seal habitat within the MHI is essential for the survival and recovery of the species.

Comment 2: Several comments argued that the MHI do not provide essential habitat for the Hawaiian monk seal, because: (1) monk seals are not indigenous to the MHI; and (2) various human threats to monk seals in the MHI outweigh benefits to the species of MHI habitat.

Response: Little evidence has been found that monk seals occurred in the MHI before the arrival of humans approximately 2,000 years ago, or during pre-European times before the late 1700s. However, before the arrival of humans, monk seal remains would typically have occurred on or near coastlines where wave action and erosion likely would have prevented preservation of remains. After the arrival of humans, monk seals may have been consumed by humans, in which case monk seal bones would likely occur in middens. However, if the seals were quickly extirpated after the arrival of humans, this would reduce the likelihood of finding bone fragment evidence in middens. An archeological dig of a midden on the Big Island identified monk seal bones, and estimated that the bones were deposited during the years 1400 to 1700 (Rosendahl, 1994). Furthermore, monk seals commonly travel long distances between atolls or islands, and even between the NWHI and MHI (Littnan et al. , 2007). Thus, before the arrival of humans, it is highly unlikely that monk seals occurred only in the NWHI, while the MHI were vacant of both monk seals and humans. Finally, large, easily-hunted animals such as seals are typically extirpated or driven to extinction when humans arrive in an area for the first time (Grayson, 2001). Arrival of humans in Hawaii likely resulted in a rapid reduction in monk seal numbers in the MHI, such that the species was mostly restricted to the NWHI until recently (Baker and Johanos, 2004). For these reasons, we believe that the Hawaiian monk seal commonly occurred in the MHI before the arrival of humans, and that this species is indigenous to at least the entire Hawaiian Archipelago.

We agree that the Hawaiian monk seal faces a multitude of human threats in the MHI. The recovery plan identifies the most serious human threats to monk seals in the MHI as infectious diseases, fisheries interactions, habitat loss, and human interactions (NMFS, 2007a). In the MHI, monk seals forage near shore, and they haul out on beaches near sources of pathogens associated with human population centers, sewage spills, and stream mouths. Of 12 dead monk seals that were thoroughly necropsied in the MHI between 1996 and 2006, four appeared to have died of infectious disease (Littnan et al. , 2007). In the MHI from 1989 to 2007, 44 monk seals were confirmed to be hooked by fishing gear (one of which died, possibly from the hooking), another five entangled in lay gillnets (three of which drowned in the gillnets), and one seal hooked and entangled (but survived). Many hooks are removed from monk seals by the monk seal response program, most often resulting in healing of the wound and recovery of the monk seal. However, entanglement in lay gillnets often results in the drowning of the monk seal (NMFS, 2008b). Monk seal haul-out beaches in the MHI are being degraded or lost by development adjacent to the beaches, and increasing human activity on the beaches. The high and ever-increasing human use of MHI beaches and coastlines results in humans frequently interacting with monk seals, both unintentionally and intentionally (NMFS, 2007a). However, despite the numerous anthropogenic threats to monk seals in the MHI, the MHI component of the monk seal population appears to have increased in recent years, and monk seals in the MHI are generally in good physical condition. In contrast, the NWHI component of the monk seal population continues to decrease, and monk seals in the NWHI are often in poor physical condition (see “Population Size and Trends” and “ Northwestern Hawaiian Islands vs. Main Hawaiian Islands ” above). Thus, although monk seals are more often exposed to infectious diseases in the MHI than in the NWHI, the MHI appear to currently provide a favorable environment for monk seals. In addition, the loss of monk seal haul-out habitat is likely to occur more rapidly in the NWHI than the MHI due to sea level rise (see “ Northwestern Hawaiian Islands vs. Main Hawaiian Islands ” above). For these reasons, we believe that the benefits of MHI habitat to the monk seal outweigh the various human threats to monk seals in the MHI.

Comment 3: Over 100 comments argued that areas out to a depth of 500 m (1,625 ft) in the NWHI provide essential foraging habitat for the Hawaiian monk seal.

Response: As discussed above in “ Habitat ,” studies in the NWHI have documented adult monk seal foraging to a maximum depth of approximately 500 m (1,600 ft; Parrish et al. , 2002; Stewart et al. , 2006). The relative importance of these deep foraging areas, compared to more frequently-used shallower areas, is currently unknown.

Comment 4: Several comments did not provide any information about habitat use by the Hawaiian monk seal, but rather expressed opinions about the effects of revising monk seal critical habitat on various human activities, such as beach use, fishing, economics, national security, and natural resource management.

Response: The economic, national security, and other effects of revising monk seal critical habitat will be addressed in the forthcoming proposed rule.

Since critical habitat for the Hawaiian monk seal was designated in 1986 (51 FR 16047; April 30, 1986) and revised in 1988 (53 FR 18988; May 26, 1988), a great deal of new information has become available regarding habitat use by this species, such as the literature cited in the petition (Center for Biological Diversity et al. , 2008) and in the Recovery Plan (NMFS, 2007a). For example, studies of monk seal foraging made possible by new technology (e.g., Parrish et al. 2000, 2002, 2005, 2008; Littnan et al. , 2007) have resulted in substantial progress since 1988 in understanding how this species uses foraging habitat (Parrish and Littnan, 2008). Also, since critical habitat was designated in 1988, monk seals appear to have begun recolonizing the MHI (Baker and Johanos, 2004; Baker et al. , 2006; NMFS, 2007a). Other information has also become available about other aspects of monk seal life history and habitat use (summarized in NMFS, 2007a). Because of this new information regarding habitat use by the Hawaiian monk seal that has become available since critical habitat for the species was revised in 1988 (53 FR 18988; May 26, 1988), we will proceed with a revision of critical habitat for the species.

We intend to undertake rulemaking to revise critical habitat for the Hawaiian monk seal. Critical habitat is defined by 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 provisions of section 1533 of this title, 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 in accordance with the provisions of section 1533 of this title, upon a determination by the Secretary that such areas are essential for the conservation of the species.” Further, our critical habitat regulations (50 CFR 424.12(c)) state that critical habitat will be defined by specific limits using reference points and lines on standard topographic maps of the area. Finally, section 4(b)(2) of the ESA requires that we consider economic, national security, and other impacts of designating critical habitat before designating critical habitat.

Based on the above definition and guidance, the following steps will be followed to propose the revision of designated critical habitat for the Hawaiian monk seal: (1) Determine the geographical area occupied by the species at the time of listing; (2) Identify the physical or biological features essential to the conservation of the species; (3) Delineate areas within the geographical area occupied by the species that contain these features, and that may require special management considerations or protections; (4) Delineate any areas outside of the geographical area occupied by the species that are essential for the conservation of the species; and (5) Conduct economic, national security, and other analyses to determine if any areas identified in steps 3 and 4 could be excluded from critical habitat consideration under section 4(b)(2) of the ESA. Steps 1 and 2 above are included in this 12-month finding, as described below. Steps 3 - 5 will be completed in the forthcoming proposed rule.

Step 1: Determine Geographical Area Occupied by the Species at the Time of Listing: The final rule listing the Hawaiian monk seal as endangered, published on November 23, 1976 (41 FR 51611), stated that the “Hawaiian monk seal is found throughout the Hawaiian Archipelago,” with no mention of areas outside the archipelago. For reasons described above in “ Range ,” in 2001, we determined that Johnston Atoll is within the range of the Hawaiian monk seal (NMFS, 2001). Therefore, the geographical area occupied by the Hawaiian monk seal at the time of listing (1976) is considered to be the Hawaiian Archipelago and Johnston Atoll.

Step 2: Identify Physical or Biological Features Essential to Conservation: In this step, the physical and biological features essential to conservation are identified (hereafter referred to as “essential features”). Section 3 of the ESA (16 U.S.C. 1532(3)) defines the terms “conserve,” “conserving,” and “conservation” to mean: “to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” Our critical habitat regulations (50 CFR 424.12(b)) state that essential features “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.”

The regulations also instruct us to “focus on the principal biological or physical constituent elements within the defined area that are essential to the conservation of the species. Known primary constituent elements shall be listed with the critical habitat description” (50 CFR 424.12(b)). Thus, the essential features will be defined here in terms of primary constituent elements (PCEs). The PCEs can include sites used by the listed species for resting, reproduction, and feeding (examples given in the regulations include “nesting grounds, spawning sites, feeding sites”), and physical features of the species' habitat (examples given in the regulations include “geological formation, vegetation type, tide, and specific soil types”; 50 CFR 424.12(b)).

As described above in “ Habitat ,” the physical and biological habitat features that support resting, molting, reproduction, and foraging are essential for the conservation of this species. For the Hawaiian monk seal, essential habitat includes terrestrial and marine areas. Terrestrial areas include resting, molting, and reproductive habitat. Resting and molting habitat consists of nearshore or emergent surfaces where monk seals can haul out, whereas reproductive habitat consists of a subset of resting and molting habitat (i.e., sandy beaches suitable for pupping and nursing). Marine areas include foraging habitat for pups, juveniles, and adults. Pup foraging habitat consists of shallow areas adjacent to pupping beaches where pups become accustomed to the marine environment and begin learning to forage on their own. Juveniles and adults forage widely, primarily in deeper areas. Thus, at this time, we believe that the following PCEs constitute the physical and biological features essential to conservation of the Hawaiian monk seal: (1) sandy beaches preferred by monk seals for pupping and nursing; (2) marine areas less than 20 m depth adjacent to pupping and nursing beaches where young pups learn to forage; (3) marine areas approximately 20 - 200 m depth in the MHI, and approximately 20-500 m depth in the NWHI, preferred by juvenile and adult monk seals for foraging; (4) low levels of unnatural disturbance; and (5) high prey quantity and quality.

Steps 3 - 5: Steps 3 - 5 of the critical habitat proposed revision process will be completed in the forthcoming proposed rule. In the proposed rule, the PCEs could differ slightly from the PCEs identified above, but these identified PCEs will give the public an idea of what we are considering. When we publish our proposed rule, we will solicit public comments on it and incorporate comments as appropriate.

Amerson, A.B., Jr., and P.C. Shelton. 1976. The natural history of Johnston Atoll, Central Pacific Ocean: Hawaiian Monk Seal. Atoll Research Bulletin 192: 384.

Antonelis, G.A., J.D. Baker, T.C. Johanos, R.C. Braun, and A.L. Harting. 2006. Hawaiian monk seal (( Monachus schauinslandi ): Status and conservation issues. Atoll Research Bulletin 543:75-101.

Bailey, A.M. 1952. The Hawaiian monk seal. Denver Museum of Natural History, Museum Pictorial 7:1-32.

Baker, J.D., and T.C. Johanos. 2004. Abundance of the Hawaiian monk seal in the main Hawaiian Islands. Biological Conservation 116: 103-110.

Baker, J.D., C.L. Littnan, and D.W. Johnston. 2006. Potential effects of sea level rise on the terrestrial habitats of endangered and endemic megafauna in the Northwestern Hawaiian Islands. Endangered Species Research 2:21-30.

Center for Biological Diversity, Kahea, and Ocean Conservancy. 2008. Petition to revise critical habitat for the Hawaiian monk seal ( Monachus schauinslandi ) under the Endangered Species Act. 41 pp. Available at: http://www.fpir.noaa.gov/Library/PRD/Critical%20Habitat/Petition-Monk-Seal-CH-07-02-08.pdf

Goodman-Lowe, G.D. 1998. Diet of the Hawaiian monk seal ( Monachus schauinslandi ) from the Northwestern Hawaiian Islands during 1991-1994. Marine Biology 132:535-546.

Grayson, D.K. 2001. The archaeological record of human impacts on animal populations. Journal of World Prehistory 15:1-68.

Henderson, J.R. and Johanos T.C. 1988. Effects of tagging on weaned Hawaiian monk seal pups. Wildlife Society Bulletin 16:312-317.

Hiruki, L.M., W.G. Gilmartin, B.L. Becker, and I. Stirling. 1993. Wounding in Hawaiian monk seals ( Monachus schauinslandi ). Canadian Journal of Zoology 71:458-468.

Iverson, S., J. Piche, and W. Blanchard. 2006. Hawaiian monk seals and their prey in the Northwestern Hawaiian Islands: Assessing characteristics of prey species fatty acid signatures and consequences for estimating monk seal diets using quantitative fatty acid signature analysis (QFASA). Unpublished report. Pacific Islands Fisheries Science Center, Honolulu, HI. 134 p.

Johanos, T.C., B.L. Becker, and T.J. Ragen. 1994. Annual reproductive cycle of the female Hawaiian monk seal ( Monachus schauinslandi ). Marine Mammal Science 10:13-30.

Kenyon, K.W. and D.W. Rice. 1959. Life history of the Hawaiian monk seal. Pacific Science 13:215-252.

Littnan, C.L., B.S. Stewart, P.K. Yochem, and R. Braun. 2007. Survey of selected pathogens and evaluation of disease risk factors for endangered Hawaiian monk seals in the main Hawaiian Islands. EcoHealth 3:232-244.

National Marine Fisheries Service (NMFS). 1983. Recovery Plan for the Hawaiian Monk Seal ( Monachus schauinslandi ). NMFS, Silver Spring, MD.

National Marine Fisheries Service (NMFS). 2001. May 31, 2001, letter from Rebecca Lent, Regional Administrator, Southwest Region, and attachment “Johnston Atoll and Range of the Hawaiian Monk Seal”, 8 p.

National Marine Fisheries Service (NMFS). 2006. 2006 Stock Assessment Report for the Hawaiian Monk Seal ( Monachus schauinslandi ). Revised 12/15/2006. NMFS, Silver Spring, MD. Available at: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2006sehm-hi.pdf

National Marine Fisheries Service (NMFS). 2007a. Recovery Plan for the Hawaiian Monk Seal ( Monachus schauinslandi ). Revision. NMFS, Silver Spring, MD. 165 pp. Available at: http://www.nmfs.noaa.gov/pr/pdfs/recovery/hawaiianmonkseal.pdf

National Marine Fisheries Service (NMFS). 2007b. 2007 Stock Assessment Report for the Hawaiian Monk Seal ( Monachus schauinslandi ). Revised 10/30/2007. NMFS, Silver Spring, MD. Available at: http://www.nmfs.noaa.gov/pr/pdfs/sars/po2007sehm-hi.pdf

National Marine Fisheries Service (NMFS). 2008a. 2008 Stock Assessment Report for the Hawaiian Monk Seal ( Monachus schauinslandi ). Revised 12/15/2008. NMFS, Silver Spring, MD.

National Marine Fisheries Service (NMFS). 2008b. March 18, 2008, biological opinion on effects of Implementation of Bottomfish Fishing Regulations within Federal Waters of the Main Hawaiian Islands on ESA-listed marine species. Pacific Islands Regional Office, 35 p.

Parrish, F.A., M.P. Craig, T.J. Ragen, G.J. Marshall, and B.M. Buhleier. 2000. Identifying diurnal foraging habitat of endangered Hawaiian monk seals using a seal-mounted video camera. Marine Mammal Science 16:392-412.

Parrish, F.A., K. Abernathy, G.J. Marshall, and B.M. Buhleier. 2002. Hawaiian monk seals ( Monachus schauinslandi ) foraging in deepwater coral beds. Marine Mammal Science 18:244 258.

Parrish, F.A., G.J. Marshall, C.L. Littnan, M. Heithaus, S. Canja, B.L. Becker, R.C. Braun, and G.A. Antonelis. 2005. Foraging of juvenile monk seals at French Frigate Shoals, Hawaii. Marine Mammal Science. 21:93-107.

Parrish, F.A., G.J. Marshall, B. Buhleier, and G.A. Antonelis. 2008. Foraging interaction between monk seals and large predatory fish in the Northwestern Hawaiian Islands. Endangered Species Research 4:299-3078.

Parrish, F.A. and C.L. Littnan. 2008. Changing perspectives in Hawaiian monk seal research using animal-borne imaging. Marine Technology Society Journal 41:30-34.

Parrish, F.A. 2009. Do monk seals exert top-down pressure in subphotic ecosystems? Marine Mammal Science 25:91-106.

Rosendahl, P.H. 1994. Aboriginal Hawaiian structural remains and settlement patterns in the upland archeological zone at Lapakahi, Island of Hawaii. Journal of Hawaiian Archeology (3): 14 - 70.

Schreiber, R.W. and E. Kridler. 1969. Occurrence of an Hawaiian monk seal ( Monachus schauinslandi ) at Johnston Atoll, Pacific Ocean. Journal of Mammalogy 50:841-842.

Schultz, J.K., J.D. Baker, R.J. Toonen, and B.W. Bowen. 2008. Extremely low genetic diversity in the endangered Hawaiian monk seal (Monachus schauinslandi). Journal of Heredity doi:10.1093/jhered/esn077.

Stewart, B.S., G.A. Antonelis, J.D. Baker, and P.K.Yochem. 2006. Foraging biogeography of Hawaiian monk seals in the Northwestern Hawaiian Islands. Atoll Research Bulletin 543:131-146.

Westlake, R.L. and W.G. Gilmartin. 1990. Hawaiian monk seal pupping locations in the Northwestern Hawaiian Islands. Pacific Science 44:366-383.

All references are available upon request (see FOR FURTHER INFORMATION CONTACT ).