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-2010-0891; Directorate Identifier 2009-SW-055-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 because of 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 we receive about this proposed AD.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued Emergency AD No.: 2009-0172-E, dated August 5, 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.

EUROCOPTER has issued Emergency Alert Service Bulletin No. 67.18, dated August 3, 2009. 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 another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, 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 and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.

We estimate that this proposed AD will affect 6 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to comply with the basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Required parts would cost about $100 per product.

Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $2,130, or $355 per product.

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:

Throughout this notice, the words “we”, “us”, or “our” means the Environmental Protection Agency (EPA).

EPA is proposing to approve a portion of Idaho's Interstate Transport State Implementation Plan (SIP) revision for the 1997 8-hour ozone and 1997 PM 2.5 NAAQS submitted by the Idaho Department of Quality (IDEQ) on June 28, 2010. Specifically, we are proposing to approve the portion of the plan that addresses the following elements of CAA section 110(a)(2)(D)(i): (1) Significant contribution to nonattainment of these NAAQS in any other state, (2) interference with maintenance of these NAAQS by any other state, and (3) interference with any other state's required measures to prevent significant deterioration (PSD) of its air quality with respect to these NAAQS. IDEQ addressed element (4), interference with any other state's required measures to protect visibility, by referring to its Regional Haze SIP, which will be submitted separately. EPA will take action on the visibility element in a separate action. EPA will also take action on the portion of Idaho's SIP that addresses the 2006 PM 2.5 NAAQS  1 in a separate action.

Idaho's June 28, 2010, SIP revision replaces a previously submitted section 110(a)(2)(D)(i) SIP revision submitted by IDEQ on January 30, 2007, for the 1997 PM 2.5 standards. EPA proposed approval of that SIP revision on June 26, 2007 (72 FR 35022), but did not take final action. When Idaho submitted its June 28, 2010, SIP revision, Idaho requested that EPA replace the SIP submitted on January 30, 2007, with the revised SIP submitted on June 28, 2010. In light of Idaho's resubmittal of its Interstate Transport SIP, EPA is withdrawing its June 26, 2007, proposal and is issuing this proposal to approve Idaho's June 28, 2010, SIP revision in its place. Accordingly, EPA will not be responding to comments on the June 26, 2007, proposal. Any person who wishes to comment on EPA's proposed approval of Idaho's SIP revision addressing section 110(a)(2)(D)(i) for the 1997 8-hour ozone and 1997 PM 2.5 standards should do so at this time.

Section 110(a) of the CAA requires each state to develop a plan that provides for the implementation, maintenance, and enforcement of the NAAQS. EPA establishes NAAQS under section 109 of the CAA. Currently, the NAAQS address six criteria pollutants: Carbon monoxide, nitrogen dioxide, ozone, lead, particulate matter, and sulfur dioxide.

The plan developed by a state is referred to as the SIP. The content of the SIP is specified in section 110 of the CAA, other provisions of the CAA, and applicable regulations. SIPs can be extensive, containing state regulations or other enforceable measures and various types of supporting information, such as emissions inventories, monitoring networks, and modeling demonstrations.

A primary purpose of the SIP is to provide the air pollution regulations, control strategies, and other means or techniques developed by the state to ensure that the ambient air within that state meets the NAAQS. However, another important aspect of the SIP is to ensure that emissions from within the state do not have certain prohibited impacts upon the ambient air in other states through interstate transport of pollutants. This SIP requirement is specified in section 110(a)(2)(D). Pursuant to that provision, each state's SIP must contain provisions adequate to prevent emissions that significantly contribute to violations of the NAAQS in any other state, interfere with maintenance in any other state, interfere with any other state's required measures to prevent significant deterioration of its air quality, and interfere with any other state's required measures to protect visibility.

States are required to update or revise SIPs under certain circumstances. One such circumstance is EPA's promulgation of a new or revised NAAQS. Each state must submit these revisions to EPA for approval and incorporation into the federally-enforceable SIP.

On July 18, 1997, EPA promulgated new standards for 8-hour ozone and fine particulate matter (PM 2.5 ). This action is being taken in response to the promulgation of the 1997 8-hour ozone NAAQS and 1997 PM 2.5 NAAQS. This action does not address the requirements of the 2006 PM 2.5 NAAQS or the 2008 8-hour ozone NAAQS; those standards will be addressed in a future action.

Section 110(a)(1) of the CAA requires states to submit SIPs to address a new or revised NAAQS within three years after promulgation of such standards, or within such shorter period as EPA may prescribe. Section 110(a)(2) lists the elements that such new SIPs must address, as applicable, including section 110(a)(2)(D)(i) which pertains to interstate transport of certain emissions. On August 15, 2006, EPA issued its “Guidance for State Implementation Plan (SIP) Submission to Meet Current Outstanding Obligations Under Section 110(a)(2)(D)(i) for the 8-hour ozone and PM 2.5 National Ambient Air Quality Standards” (2006 Guidance) for SIP submissions that states should use to address the requirements of section 110(a)(2)(D)(i). EPA developed this guidance to make recommendations to states for making submissions to meet the requirements of section 110(a)(2)(D) for the 1997 8-hour ozone standards and 1997 PM 2.5 standards.

On June 28, 2010, we received a SIP revision from the State of Idaho to address the requirements of section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and 1997 PM 2.5 NAAQS. The “good neighbor” provisions in section 110(a)(2)(D)(i) require each state to submit a SIP that prohibits emissions that adversely affect another state in the ways contemplated in the statute. Section 110(a)(2)(D)(i) identifies four distinct elements related to the evaluation of impacts of interstate transport of air pollutants. In this rulemaking EPA is addressing the first three elements: (1) Significant contribution to nonattainment of these NAAQS in any other state, (2) interference with maintenance of these NAAQS by any other state, and (3) interference with any other state's required measures to prevent significant deterioration (PSD) of its air quality with respect to these NAAQS. Idaho asserts in its SIP submission that its current SIP is adequate to prevent such contribution and interference, and thus no additional controls or revisions are needed with respect to the 1997 8-hour ozone NAAQS and 1997 PM 2.5 NAAQS. EPA is proposing to find that Idaho's Interstate Transport SIP provisions addressing elements (1), (2), and (3) of section 110(a)(2)(D)(i) are consistent with the requirements of the CAA.

Section 110(a)(2)(D)(i) provides that EPA cannot approve a state's SIP for a new or revised NAAQS unless it contains adequate measures to prohibit emissions from sources within the state from contributing significantly to nonattainment of the NAAQS in another state. EPA's August 2006 Guidance concerning section 110(a)(2)(D)(i) recommended various methods by which states might evaluate whether or not their emissions significantly contribute to nonattainment of the 1997 8-hour ozone or the 1997 PM 2.5 NAAQS in another state. Among other methods, EPA recommended consideration of available EPA modeling conducted in conjunction with the Clean Air Interstate Rule (CAIR), 2 or in the absence of such EPA modeling, consideration of other information such as the amount of emissions, the geographic location of violating areas, meteorological data, or various other forms of information that would be relevant to assessing the likelihood of significant contribution to violations of the NAAQS in another state. The assessment of significant contribution to nonattainment is not restricted to impacts upon areas that are formally designated nonattainment. Consistent with EPA's approach in CAIR and in the Transport Rule Proposal, this impact must be evaluated with respect to monitors showing a violation of the NAAQS (70 FR 25172, May 12, 2005, and 63 FR 57371, October 27, 1998). 3 Furthermore, although relevant information other than modeling may be considered in assessing the likelihood of significant contribution to nonattainment of the 8-hour ozone or PM 2.5 NAAQS in another state, EPA notes that no single piece of information is by itself dispositive of the issue. Instead, the total weight of all the evidence taken together is used to evaluate significant contributions to violations of the 1997 8-hour ozone or 1997 PM 2.5 NAAQS in another state.

This proposed approval addresses the significant contribution element for the 1997 8-hour ozone and 1997 PM 2.5 NAAQS in several ways. It takes into account Idaho's SIP submission that addressed the significant contribution element for the 1997 8-hour ozone and 1997 PM 2.5 NAAQS by evaluating potential impacts from Idaho sources on 1997 8-hour ozone and 1997 PM 2.5 nonattainment areas in surrounding states based on a review of meteorological and other characteristics of those areas. The State's SIP submission also relied on provisions in its air quality regulations that address Idaho's authority to address nonattainment issues. In addition to the arguments presented by Idaho to support its demonstration that its SIP satisfies the significant contribution element of the CAA, EPA has supplemented its analysis with monitoring data and other information related to the 1997 PM 2.5 nonattainment areas identified by Idaho, and has also provided monitoring data and other information for the surrounding states generally. Our evaluation below regarding how Idaho's SIP satisfies the significant contribution element of the CAA is organized as follows. Section 1 addresses the 1997 PM 2.5 nonattainment areas in surrounding states (including PM 2.5 monitoring data for those nonattainment areas) and PM 2.5 monitoring data generally for surrounding states. Section 2 addresses the 1997 8-hour ozone nonattainment areas in surrounding states (including ozone monitoring data for those nonattainment areas) and ozone monitoring data generally for surrounding states. Section 3 addresses Idaho's air quality regulations for both the 1997 8-hour ozone and 1997 PM 2.5 NAAQS which pertain to Idaho's authority to address nonattainment issues.

To address whether Idaho sources significantly contribute to nonattainment of the 1997 PM 2.5 NAAQS in another state, Idaho reviewed meteorological and other characteristics of any areas designated nonattainment for the 1997 PM 2.5 NAAQS in surrounding states to determine whether transport of emissions from Idaho significantly contribute to nonattainment in those areas. Relying primarily on technical support documents (TSDs) prepared for EPA's 8-hour ozone and PM 2.5 NAAQS nonattainment designations, Idaho noted that air stagnation is cited as a major contributing factor to nonattainment in those areas and that under air stagnation conditions there is little to no transport of pollutants over long distances. Idaho also noted that none of the TSDs identified Idaho sources as significant contributors to any 1997 PM 2.5 nonattainment areas.

As a part of EPA's analysis of whether or not PM 2.5 emissions from Idaho significantly contribute to nonattainment in another state, EPA reviewed and analyzed information available for the 1997 PM 2.5 nonattainment areas in states surrounding Idaho. Although significant contribution must be measured not just against nonattainment areas, but also against areas with monitors showing violations of the NAAQS, nonattainment areas are a convenient starting point for the analysis. For the 1997 PM 2.5 NAAQS, Libby, in Lincoln County, Montana is the only designated nonattainment area in any state bordering Idaho. 4 In 2005, EPA designated this area nonattainment for the 1997 annual PM 2.5 NAAQS. 70 FR 944 (January 5, 2005) and 40 CFR 81.327.

A number of factors provide evidence that Idaho emissions do not significantly contribute to past violations of the 1997 annual PM 2.5 standards in Libby, Montana. First, in the process of designating Libby nonattainment for both the 1997 PM 2.5 NAAQS and the 2006 PM 2.5 NAAQS, EPA noted the predominantly local origins of PM 2.5 nonattainment in Libby. 5 6 Residential wood-burning stoves during the winter-time, when frequent and persistent temperature inversions occurred, were specifically identified as a key source of PM emissions.

Although local sources were believed to predominate in the Libby nonattainment area, EPA specifically considered in the 1997 PM 2.5 designation process whether Idaho sources contributed to PM 2.5 nonattainment in Libby. While a nonattainment designation analysis is not the same inquiry that is required under CAA section 110(a)(2)(D), some of the factual findings from that effort are helpful in understanding the potential for interstate transport of pollutants in the Libby area. If there were an area in Idaho from which significant contribution would be most likely, it would arguably be from Bonner and Boundary counties in Idaho. These counties are located in Idaho's panhandle and are the only Idaho counties located to the west of the Libby nonattainment area. Transport winds generally flow across Idaho from west to east, and Libby is directly east of Bonner and Boundary counties. In the process of designating Libby nonattainment for the 1997 PM 2.5 NAAQS, EPA concluded that there was insufficient data to justify including those two Idaho counties (or any portion thereof) in the Libby nonattainment area. 7 Monitoring data from 1999 through 2009 show that PM 2.5 design value levels for both Idaho counties have remained below 30 μg/m 3 or 85 percent of the 1997 PM 2.5 NAAQS. This is consistent with a conclusion that local sources in Libby were a key contributor to the area's past nonattainment. Although the predominance of local sources does not rule out the possibility of impacts from interstate transport, this fact taken in conjunction with the mountainous topography of the area, supports a conclusion that Idaho emissions do not contribute significantly to the past NAAQS violations in Libby.

Second, monitoring data from 1999 through 2009 from areas outside of Libby in Montana support a determination that Idaho does not significantly contribute to nonattainment in Libby. At all other sites in Montana, annual PM 2.5 design value levels have remained below the 15 μg/m 3 nonattainment threshold. Annual PM 2.5 design values for this period for most of these monitors remained at levels equal to, or less than, two-thirds of the 1997 NAAQS. Even the three highest design values at these monitors were 20 percent below the level of the annual standard. 8 The lower PM 2.5 levels elsewhere in Montana are evidence that local sources, and not interstate transport, are key contributors to past nonattainment in Libby.

Monitoring data from Idaho likewise supports a finding that Idaho does not significantly contribute to nonattainment elsewhere. In Idaho, annual PM 2.5 design values from 1999 through 2009 have remained below the 1997 NAAQS. The comparatively lower levels of PM 2.5 monitored throughout Idaho and elsewhere in Montana are consistent with a conclusion that local sources, and not sources in another state, are the predominant source of PM 2.5 levels in Libby. The fact that monitors located in Idaho have not registered violations of the 1997 PM 2.5 NAAQS does not conclusively establish that emissions from Idaho could not contribute in the aggregate to violations in Libby, but this fact combined with the localized nature of the violations in Libby supports the conclusion that sources in Idaho do not significantly contribute to PM 2.5 levels in Libby. By 2007-2008, the annual PM 2.5 design values for the Libby nonattainment area itself fell below the levels of the NAAQS. This reduction has been attributed to an effective wood stove replacement program that decreased PM 2.5 emissions by approximately 59 percent. 9 In other words, even if emissions from Idaho sources were reaching Libby, they would not significantly contribute to violations of the 1997 PM 2.5 NAAQS because monitoring data demonstrate that Libby is not violating the 1997 PM 2.5 NAAQS.

Finally, EPA's conclusion that emissions from Idaho do not significantly contribute to nonattainment in Libby, Montana, is further supported by a modeling analysis for monitors in the western United States. 10 This modeling concludes that in 2012 the average design values in Lincoln County, Montana for PM 2.5 will be below the threshold for consideration as a nonattainment receptor.

The next closest 1997 PM 2.5 nonattainment area to the state of Idaho is the San Joaquin Valley in California. 11 This nonattainment area is over 300 miles southwest of the closest point on the Idaho border and is on the other side of the Sierra Nevada Mountains. This 400 mile long north-south range of mountains has peaks of more than 14,000 feet which act as a natural barrier to air movement between Idaho and California. In addition, San Joaquin Valley, California, is not in the predominant direction of winds from Idaho. Transport winds across Idaho generally flow from west to east, and not toward the southwest. Given the relatively long distance between Idaho and the San Joaquin Valley, the intervening mountainous topography, and the general west-to-east direction of transport winds across Idaho, EPA believes it is reasonable to conclude that Idaho sources do not significantly contribute to nonattainment of the 1997 PM 2.5 NAAQS in the San Joaquin Valley.

As mentioned above, EPA considers not only significant contribution to designated nonattainment areas, but also significant contribution to areas with monitors showing violations of the NAAQS. A review of the most recent three years of monitoring data in EPA's Air Quality System (AQS) for the bordering states of Washington, Oregon, Nevada, Utah, Wyoming and Montana shows there are no monitors violating the 1997 PM 2.5 NAAQS. Between 1999 and 2009, just two monitors in any of these bordering states violated the 1997 PM 2.5 NAAQS. Both violations were for the annual NAAQS. The first such monitor is in Libby, Montana, which has not violated the 1997 PM 2.5 NAAQS since 2005. As discussed previously, EPA believes that existing information supports the conclusion that there is not significant contribution to nonattainment from Idaho sources to this area in Montana. The second is a monitor in Salt Lake City, Utah, which violated the 1997 PM 2.5 NAAQS at a single monitor in 2004. Since 2004 it has not violated the NAAQS. Taking into account the total weight of all of the factors discussed above, EPA concludes that Idaho does not significantly contribute to 1997 PM 2.5 NAAQS nonattainment in another state.

To address whether Idaho sources significantly contribute to nonattainment of the 1997 8-hour ozone standard in another state, Idaho's SIP uses the same approach as it used for the 1997 PM 2.5 NAAQS. Relying primarily on TSDs prepared for EPA's 8-hour ozone and PM 2.5 nonattainment designations, Idaho noted that air stagnation is cited as a major contributing factor to nonattainment in those areas and that under stagnant air conditions there is little to no transport of pollutants over long distances. Idaho also noted that none of the TSDs identified Idaho sources as significant contributors to any 1997 8-hour ozone nonattainment area.

EPA also reviewed and analyzed information available for the designated 1997 8-hour ozone nonattainment areas in states surrounding Idaho. Although significant contribution must be measured not just against nonattainment areas, but against areas with monitors showing violations of the NAAQS, nonattainment areas are a convenient starting point for the analysis. For the 1997 8-hour ozone NAAQS, the only nonattainment area in states bordering Idaho is Clark County in southern Nevada (Las Vegas area). In 2005, EPA designated this area nonattainment for violations of the 1997 8-hour ozone standard. 69 FR 23858 (April 30, 2004) and 40 CFR 81.329. EPA has evaluated whether emissions from Idaho contribute significantly to the nonattainment of the 8-hour ozone standard in Clark County. Clark County is about 350 miles south of the closest point on the Idaho border. Distance per se is not an obstacle to long range transport of ozone and/or its precursors, as discussed in the January 30, 2004, notice proposing CAIR (69 FR 4599); NO X (the primary ozone precursor that was the object of the CAIR transport study) may be transported for long distances, contributing significantly to high ozone concentrations in other states. However, with increasing distance there are greater opportunities for ozone and/or NO X dispersion and/or removal from the atmosphere due to the effects of winds and chemical sink processes. In this context, one may conclude that the 350 mile distance between Idaho and the Clark County nonattainment area decreases, but does not exclude, the possibility of significant contribution to this area's nonattainment. Another transport factor is wind direction. Clark County, Nevada is south of Idaho and, therefore, is not in the predominant direction of winds from Idaho. Transport winds across Idaho generally flow from west to east, and not toward the south. Given the relatively long distance between Idaho and Clark County, Nevada and the general west-to-east direction of transport winds across Idaho, EPA believes it is reasonable to conclude that Idaho sources do not significantly contribute to nonattainment of the 1997 8-hour ozone NAAQS in Clark County, Nevada.

As mentioned above, EPA considers not only significant contribution to designated nonattainment areas, but also to areas with monitor readings showing violations of the NAAQS. A review of the most recent monitoring data from EPA's Air Quality System (AQS) for the bordering states of Washington, Oregon, Nevada, Utah, Wyoming and Montana shows no monitors violating for the 1997 8-hour ozone NAAQS. A review of past monitoring data from 1999 through 2008 shows that the only area in any of these border states that violated the 1997 8-hour ozone NAAQS was Salt Lake City, Utah. This area, however, is not currently violating and has not violated the 1997 8-hour ozone NAAQS since a violation occurred at a single monitor in 2007. Observed days of high ozone levels in the Salt Lake City metropolitan area are usually associated with a `bowl effect' resulting from an inversion that has a stagnant air pollution mass surrounded by the Oquirrh Mountains to the west, the Great Salt Lake to the north, and the Wasatch Range on the east. 12 In light of these considerations, it is unlikely that Idaho makes a significant contribution of ozone and/or ozone precursors in the Salt Lake City area.

In addition, none of the ozone monitors in Idaho have themselves indicated a violation of the 1997 8-hour ozone NAAQS, and Boise, Idaho, the area of Idaho with the highest concentrations of ozone, is almost 300 miles from Salt Lake City. The absence of violations in Idaho itself do not rule out the possibility of transport, but taken in conjunction with other relevant information, this fact helps to support the conclusion that there is no such transport from Idaho to Salt Lake City. Distance per se is also not an obstacle to long range transport of ozone and/or its precursors, as discussed above. However, with increasing distance there are greater opportunities for ozone and/or NO X dispersion and/or removal from the atmosphere due to the effects of winds and chemical sink processes. In this context, the 300 mile distance between Idaho and the Salt Lake City area reduces but does not exclude the possibility of significant contribution to this area's nonattainment. Taking into account the total weight of all of the factors discussed above, EPA concludes that Idaho does not significantly contribute to 1997 8-hour ozone NAAQS nonattainment in another state.

In addition to monitoring data providing evidence that Idaho sources do not contribute to nonattainment in any other state, Idaho points to air quality provisions in its regulations that prohibit emissions that contribute significantly to nonattainment. Specifically, the State points to its air quality provisions at IDAPA 58.01.01.203.02 that require that a proposed source's projected emissions will not cause or significantly contribute to a violation of any ambient air quality standard. The state explains that this provision applies to both major and minor sources and that the owner or operator of such a source must demonstrate that the source's projected emissions will not cause or significantly contribute to a violation of any ambient air quality standard. In addition, they point out that the demonstration is not constrained to evaluating impacts solely in Idaho and that all estimates of ambient concentrations must be based on the requirements specified in 40 CFR 51, Appendix W, which look to the point of maximum concentration, not a jurisdictional boundary.

The state also relies on its rules for existing sources at IDAPA 58.01.01.401.03, which provide IDEQ with the authority to require a permit (called a “Tier II permit”) if emission rate reductions are necessary to attain any ambient air quality standard. As part of the Tier II permitting process, the facility operator (or responsible official) must demonstrate the source does not cause or significantly contribute to a violation of any ambient air quality standards. The state asserts that it has used this authority in the past as part of a suite of control measures implemented to address nonattainment and other air quality issues and this authority could be used if the state's emissions were significantly contributing to nonattainment in another state. For example, between 2000 and 2003 the state issued fifteen Tier II permits to sources in two PM 10 nonattainment areas to establish federally-enforceable emission limits on PM 10 emissions in order to ensure that the PM 10 NAAQS would be attained and maintained. A summary of these 15 permits, including links to the permits on the Idaho website, is included in the docket for this rulemaking.

Idaho incorporates by reference annually any updates to the NAAQS ensuring that implementation of the regulatory provisions at IDAPA 58.01.01.203.02 and IDAPA 58.01.01.40.03 are implementing the most recently revised NAAQS.

In light of these air quality provisions in Idaho's regulations and evidence that Idaho has used these air quality provisions to address nonattainment and other air quality issues in the past, EPA believes that in this case these regulatory provisions provide additional support for our conclusion that emissions from Idaho sources do not significantly contribute to nonattainment in any other state and that Idaho has the ability to address nonattainment if, in the future, the state's emissions significantly contribute to nonattainment of the 1997 8-hour ozone and 1997 PM 2.5 NAAQS in another state.

The data and weight of the evidence analysis presented above support EPA's conclusion that the Idaho Interstate Transport SIP (submitted on June 28, 2010) is adequate to ensure that emissions from Idaho do not significantly contribute to nonattainment in any other state for the 1997 8-hour ozone or 1997 PM 2.5 NAAQS, consistent with the requirements of element (1) of CAA section 110(a)(2)(D)(i)

The second element of CAA section 110(a)(2)(D)(i) requires that a state's SIP must prohibit any source or other type of emissions activity in the state from emitting pollutants that would “interfere with maintenance” of the applicable NAAQS in any other state. The CAA does not specifically mandate how interference with maintenance is to be determined. Therefore, EPA has interpreted this term in past regulatory actions, such as the 1998 NO X SIP Call, in which EPA took action to remediate emissions of NO X that significantly contributed to nonattainment, or interfered with maintenance of, the then applicable ozone NAAQS through interstate transport of NO X and the resulting ozone. 13 The NO X SIP Call was the mechanism through which EPA evaluated whether or not the NO X emissions from sources in certain states had such prohibited interstate impacts, and if they had such impacts, required the states to adopt substantive SIP revisions to eliminate the NO X emissions, whether through participation in a regional cap and trade program or by other means.

After promulgation of the 1997 8-hour ozone NAAQS and the 1997 PM 2.5 NAAQS, EPA again recognized that regional transport was a serious concern throughout the eastern United States and therefore developed the 2005 CAIR to address emissions of SO2 and NO X that exacerbate ambient ozone and PM 2.5 levels in many downwind areas through interstate transport. 14 Within CAIR, EPA likewise interpreted the term “interfere with maintenance” as part of the evaluation of whether or not the emissions of sources in certain states had such impacts on areas that EPA determined would either be in violation of the NAAQS, or would be in jeopardy of violating the NAAQS, in a modeled future year unless action were taken by upwind states to reduce SO2 and NO X emissions. Through CAIR, EPA again required states that had such interstate impacts to adopt substantive SIP revisions to eliminate the SO2 and NO X emissions, whether through participation in a regional cap and trade program or by other means.

EPA's 2006 Guidance addressed CAA section 110(a)(2)(D) requirements for the 1997 8-hour ozone NAAQS and 1997 PM 2.5 NAAQS. For those states subject to CAIR, EPA indicated that compliance with CAIR would meet the two requirements of section 110(a)(2)(D)(i)(I) for these NAAQS. For states not within the CAIR region, EPA recommended that states evaluate whether or not emissions from their sources would “interfere with maintenance” in other states, following the conceptual approach adopted by EPA in CAIR. After recommending various types of information that could be relevant for the technical analysis to support the SIP submission, such as the amount of emissions and meteorological conditions in the state, EPA further indicated that it would be appropriate for the state to assess impacts of its emissions on other states using considerations comparable to those used by EPA “in evaluating significant contribution to nonattainment in the CAIR.” 15 EPA did not make specific recommendations for how states should assess “interfere with maintenance” separately, and discussed the first two elements of section 110(a)(2)(D) together without explicitly differentiating between them.

In 2008, however, the U.S. Court of Appeals for the DC Circuit found that CAIR and the related CAIR federal implementation plan were unlawful. 16 Among other issues, the court held that EPA had not correctly addressed the second element of section 110(a)(2)(D)(i)(I) in CAIR. The court noted that “EPA gave no independent significance to the `interfere with maintenance' prong of section 110(a)(2)(D)(i)(I) to separately identify upwind sources interfering with downwind maintenance.”  17 EPA's approach, the court reasoned, would leave areas that are “barely meeting attainment” with “no recourse” to address upwind emissions sources. 18 The court therefore concluded that a plain language reading of the statute requires EPA to give independent meaning to the interfere with maintenance requirement of section 110(a)(2)(D) and that the approach used by EPA in CAIR failed to do so.

In addition to affecting CAIR directly, the court's decision in the North Carolina case indirectly affects EPA's recommendations to states in the 2006 Guidance with respect to the interfere with maintenance element of section 110(a)(2)(D) because the agency's guidance suggested that states use an approach comparable to that used by EPA in CAIR. States such as Idaho have made SIP submissions that rely upon the recommendations in EPA's 2006 Guidance. Given the court decision on CAIR in the interim, however, EPA believes that it is necessary to evaluate these state submissions for section 110(a)(2)(D) in such a way as to assure that the interfere with maintenance element of the statute is given independent meaning and is appropriately evaluated using the types of information that EPA recommended in the 2006 Guidance. To accomplish this, EPA believes it may be necessary to supplement the technical analysis provided the state in order to adequately evaluate the submissions with the respect to the interfere with maintenance element of section 110(a)(2)(D).

EPA has recently proposed a new rule to address interstate transport pursuant to section 110(a)(2)(D), the “Federal Implementation Plans to Reduce Interstate Transport of Fine Particulate Matter and Ozone” (Transport Rule Proposal), in order to address the judicial remand of CAIR. 19 As part of the Transport Rule Proposal, EPA specifically reexamined the section 110(a)(2)(D) requirement that emissions from sources in a state must not “interfere with maintenance” of the 1997 8-hour ozone NAAQS and 1997 PM 2.5 NAAQS in other states. In the proposal, EPA developed an approach to identify areas that it predicts to be close to the level of the 1997 8-hour ozone NAAQS and 1997 PM 2.5 NAAQS, and therefore at risk to become nonattainment for these NAAQS unless emissions from sources in other states are appropriately controlled. This approach starts by identifying those specific geographic areas for which further evaluation is appropriate, and differentiates between areas where the concern is with interference with maintenance, rather than with significant contribution to nonattainment.

As described in more detail below, EPA's analysis evaluates data from existing monitors over three overlapping three year periods ( i.e., 2003-2005, 2004-2006, and 2005-2007), as well as air quality modeling data, in order to determine which areas are predicted as likely to be violating the 1997 8-hour ozone and PM 2.5 NAAQS in 2012, and which areas are predicted to potentially have a difficulty with maintaining attainment as of that date. In essence, if an area's projected data for 2012 indicates that it would be violating the NAAQS based on the average of these three overlapping periods, then this monitor location is appropriate for comparison for purposes of the significant contribution to nonattainment element of section 110(a)(2)(D). If, however, an area's projected data indicate that it would be violating the NAAQS based on the highest single period, but not over the average of the three periods, then this monitor location is appropriate for comparison for purposes of the interfere with maintenance element of the statute. 20

By this method, EPA has identified those areas with monitors that are appropriate “maintenance sites” or maintenance “receptors” for evaluating whether the emissions from sources in another state could interfere with maintenance in that particular area. EPA then uses other analytical tools to examine the potential impacts of emissions from upwind states on these maintenance sites in downwind states. EPA believes that this new approach for identifying those areas that are predicted to have maintenance problems is appropriate to evaluate the section 110(a)(2)(D) SIP submission of a state for the interfere with maintenance element. 21 EPA's 2006 Guidance did not provide this specific recommendation to states, but in light of the court's decision on CAIR, EPA will itself follow this approach in acting upon the Idaho submission.

As explained in the 2006 Guidance, EPA does not believe that section 110(a)(2)(D) SIP submissions from all states necessarily need to follow precisely the same analytical approach of CAIR or the Transport Rule Proposal. In the 2006 Guidance, EPA stated that: “EPA believes that the contents of the SIP submission required by section 110(a)(2)(D) may vary, depending upon the facts and circumstances related to the specific NAAQS. In particular, the data and analytical tools available at the time the State develops and submits a SIP for a new or revised NAAQS necessarily affects the contents of the required submission.”  22 EPA also indicated in the 2006 Guidance that it did not anticipate that sources in states outside the geographic area covered by CAIR were significantly contributing to nonattainment, or interfering with maintenance, in other states. 23 As noted in the Transport Rule Proposal, EPA continues to believe that the more widespread and serious transport problems in the eastern United States are analytically distinct. 24 For the 1997 8-hour ozone NAAQS and the 1997 PM 2.5 NAAQS, EPA believes that nonattainment and maintenance problems in the western United States are relatively local in nature with only limited impacts from interstate transport. In the Transport Rule Proposal, EPA did not calculate interstate ozone or PM 2.5 contributions to or from western states.

Accordingly, EPA believes that section 110(a)(2)(D) SIP submissions for states outside the geographic area of the Transport Rule Proposal may be evaluated using a “weight of the evidence” approach that takes into account available relevant information, such as that recommended by EPA in the 2006 Guidance for states outside the area affected by CAIR. Such information may include, but is not limited to, the amount of emissions in the state relevant to the NAAQS in question, the meteorological conditions in the area, the distance from the state to the nearest monitors in other states that are appropriate receptors, or such other information as may be probative to consider whether sources in the state may interfere with maintenance of the 1997 8-hour ozone NAAQS and 1997 PM 2.5 NAAQS in other states. These submissions can rely on modeling when acceptable modeling technical analyses are available, but EPA does not believe that modeling is necessarily required if other available information is sufficient to evaluate the presence or degree of interstate transport in a given situation.

To show that Idaho emissions, as controlled under its SIP, do not interfere with maintenance of the 1997 8-hour ozone NAAQS and 1997 PM 2.5 NAAQS in another state, Idaho's submittal analyzed several types of factors to support its assertion. First, for its PM 2.5 analysis, Idaho relied on information from the Western Regional Air Partnership (WRAP) Technical Support System (TSS). The WRAP TSS is a system developed in a collaborative effort by state and tribal governments and federal agencies to provide the tools needed to comply with the federal Regional Haze Rule. Idaho used it to provide general insight on how Idaho sources influence PM 2.5 concentrations in Class I areas in surrounding states. For the 8-hour ozone NAAQS, Idaho evaluated NO X and VOC emissions data from Idaho sources. These emissions data were evaluated to understand how Idaho's emissions sources may contribute to ozone impacts in surrounding states. The WRAP TSS results provided in Idaho's submittal to address the 1997 PM 2.5 standard and Idaho's evaluation of NO X and VOC emissions data from Idaho sources to address the 1997 8-hour ozone NAAQS are discussed later.

Idaho also relied on information about air stagnation conditions in other states to show that Idaho sources do not interfere with maintenance of the 1997 8-hour ozone NAAQS and 1997 PM 2.5 NAAQS. Idaho argued that stagnant air conditions are associated with weak transport and were cited in technical support documents for the 8-hour ozone and PM 2.5 designations as a major contributing factor to poor air quality in surrounding states. Idaho also identified its state air quality regulations to demonstrate both that Idaho can, and does, work with other states and tribes to ensure that an Idaho activity would not interfere with maintenance by any other State with respect to the NAAQS.

Idaho also relies on its permitting rules discussed earlier that not only require for new sources a demonstration that the proposed source's emissions will not cause or significantly contribute to a violation of any ambient air quality standard, but also specifically require for existing sources an operating permit if emission rate reductions are necessary to attain or maintain any ambient air quality standard. It also points out that neither of these required demonstrations is limited to an analysis of impacts solely in Idaho. In light of these provisions and evidence that Idaho has used these air quality provisions in the past, as discussed in the section on significant contribution (section IV.A), EPA believes that in this case these regulatory provisions support our conclusion that Idaho does not interfere with maintenance in any other state and that Idaho has the ability to address interference with maintenance if in the future the state's emissions interfere with maintenance of the 1997 8-hour ozone and 1997 PM 2.5 NAAQS in another state.

On July 6, 2010, the EPA proposed a rulemaking proposal (the Transport Rule Proposal) in response to the judicial remand of CAIR. The Transport Rule Proposal includes a new approach to determine whether emissions from a state interfere with maintenance of the 1997 8-hour ozone NAAQS and the 1997 PM 2.5 NAAQS in other states. EPA is using a comparable approach to that of the Transport Rule Proposal in this action in order to evaluate whether emissions from Idaho sources interfere with maintenance of these NAAQS in other states.

In the Transport Rule Proposal, EPA projected future concentrations of ozone and PM 2.5 to identify areas that are expected to be out of attainment with the NAAQS or to have difficulty maintaining compliance with the NAAQS in 2012. These areas are referred to as nonattainment and maintenance receptors, respectively. These nonattainment and maintenance receptors are based on projections of future air quality at existing ozone and PM 2.5 monitoring sites in those locations. EPA then used these sites as the receptors for examining the contributions of emissions from sources located in upwind states to nonattainment and maintenance problems at these monitoring locations. Monitoring data was obtained from AQS.

For the PM 2.5 NAAQS EPA evaluated concentrations of both the annual PM 2.5 NAAQS and the 24-hour PM 2.5 NAAQS. The 1997 annual PM 2.5 NAAQS is met when the 3-year average of the annual mean concentration is 15.0 micrograms per cubic meter (μg/m 3 ) or less. The 3-year average annual mean concentration is computed at each site by averaging the daily Federal Reference Method (FRM) samples by quarter, averaging these quarterly averages to obtain an annual average, and then averaging the three annual averages to get the design value. The 2006 24-hour PM 2.5 NAAQS is met when the 3-year average of the annual 98th percentile PM 2.5 concentrations is 35 μg/m 3 or less. The 1997 24-hour PM 2.5 NAAQS is met when the 3-year average of the annual 98th percentiles is 65 μg/m 3 or less. The 3-year average mean 98th percentile concentration is computed at each site by averaging the 3 individual annual 98th percentile values at each site. The 3-year average 98th percentile concentration is referred to as the 24-hour average design value. In this action, EPA is only evaluating whether Idaho's emissions impact other states' ability to maintain the 1997 annual and 24-hour PM 2.5 NAAQS and the 1997 8-hour ozone NAAQS, because those are the NAAQS at issue in this section 110(a)(2)(D) SIP submission. In later actions, the state and EPA will evaluate the impacts of interstate transport from emissions from Idaho sources with respect to other NAAQS.

For the ozone NAAQS, EPA evaluated concentrations relevant to the 1997 8-hour ozone NAAQS. The level of the 1997 8-hour ozone NAAQS is 0.08 parts per million (ppm). The 8-hour ozone standard is met if the 3-year average of the annual 4th highest daily maximum 8-hour ozone concentration is less than or equal to 0.08 ppm ( i.e., less than 0.085 ppm based on the rounding convention in 40 CFR part 50 Appendix I). This 3-year average is referred to as the “design value.”

To project future ozone and annual PM 2.5 design values, EPA projected future ozone values based on an average of three design value periods which include the years 2003-2007 ( i.e., design values for 2003-2005, 2004-2006, and 2005-2007). The average of the three design values creates a “5-year weighted average” value. The 5-year weighted average values were then projected to the future years that were analyzed for the Transport Rule Proposal. 25 26 EPA used the 5-year weighted average concentrations to project concentrations anticipated in 2012 to determine which monitoring sites are expected to be nonattainment in this future year. EPA also projected 2012 design values based on each of the three year periods ( i.e., 2003-2005, 2004-2006, and 2005-2007). The highest projection is referred to as the “maximum design value” and gives an indication of potential variability in future projections due to differences in actual meteorology and emissions from what was modeled.

EPA identified those sites that are projected to be attainment based on the 5-year weighted average design value, but that have a maximum design value (based on a single three year period) that exceeds the NAAQS, as maintenance sites because EPA anticipates that there will be more difficulty in maintaining attainment of the NAAQS at these locations if there are adverse variations in meteorology or emissions. These projected maintenance sites are the ones that EPA has used to determine if emissions from Idaho sources potentially interfere with maintenance of the 1997 8-hour ozone NAAQS and 1997 annual PM 2.5 NAAQS in other states in this action.

For the annual PM 2.5 NAAQS, EPA identified from the modeling analyses conducted for the Transport Rule Proposal the following sites as maintenance receptors: A site in Cook County, Illinois in the Chicago area; a site in Harris County, Texas, in the Houston/Galveston/Brazoria area. From the modeling analysis conducted for states not included in the Transport Rule Proposal, EPA identified only sites in southern California. Based on recent monitoring data (2007-2009 design values that are under final EPA review), the highest 24-hour PM 2.5 design value in the 47 states of the continental U.S. (not including California) is 50 μg/m 3 , which is well below the level of the 1997 24-hour PM 2.5 NAAQS of 65 μg/m 3 . 27 Therefore, outside of California, there are no areas that we would expect to have difficulty in maintaining the 1997 24-hour PM 2.5 NAAQS.

From the modeling analyses conducted for the Transport Rule Proposal, EPA identified a number of maintenance sites or receptors for the 1997 8-hour ozone NAAQS: Several sites in the Texas area and other sites in Georgia, Pennsylvania, New York and Connecticut. 28 For the modeling analysis conducted for states not included in the Transport Rule Proposal ( i.e. states not included fully in the 12 km Transport Rule Proposal modeling domain), EPA identified several maintenance sites in southern and central California using available 36 km modeling. 29 The 12 km Transport Rule Proposal modeling domain extends from Texas northward to North Dakota and eastward from the Rocky Mountains to the east coast and includes 37 states and the District of Columbia.

Significantly, for both the 1997 PM 2.5 NAAQS and the 1997 8-hour ozone NAAQS, EPA's analysis did not identify any maintenance receptors in the states that border Idaho (Washington, Oregon, Nevada, Utah, Wyoming and Montana).

For the 1997 PM 2.5 NAAQS, the closest maintenance receptor site identified by the Transport Rule Proposal was in Cook County, Illinois. Cook County, Illinois is over 1000 miles east of the closest point on Idaho's border, and on the other side of the Rocky Mountains. Given the relatively long distance and the intervening mountainous topography between Idaho and Cook County, EPA believes it is reasonable to conclude that there is a very low probability that Idaho sources interfere with maintenance in that area. It is also reasonable to conclude that Idaho emissions would not have such impacts at other identified maintenance sites east of Cook County.

In the west, the closest maintenance receptor to Idaho was in Fresno County, California. Fresno County is located almost 400 miles southwest of the closest point on the Idaho border and on the other side of the Sierra Nevada Mountains, which act as a natural barrier to air movement between Idaho and California. In addition, Fresno County, located in southern California, is not in the predominant direction of winds from Idaho. As noted earlier, transport winds across Idaho generally flow from west to east, and not toward the southwest. Given the relatively long distance between Idaho and southern California, the intervening mountainous topography, and the general direction of west-to-east transport winds across Idaho, EPA concludes that there is no reasonable basis to conclude that Idaho sources interfere with maintenance of the 1997 PM 2.5 NAAQS in those areas. It is likewise reasonable to conclude that Idaho emissions would not have such impacts at other identified maintenance sites in California. Based on EPA modeling and all of these factors taken together, EPA believes it is reasonable to conclude that Idaho emissions under the SIP do not interfere with maintenance of the 1997 PM 2.5 NAAQS in any other state.

This conclusion is consistent with the information and analysis Idaho provided in its SIP submittal regarding interference with maintenance of the 1997 PM 2.5 NAAQS. With respect to PM 2.5 , Idaho used the WRAP TSS tools to provide general insight on how Idaho sources influence PM 2.5 concentrations in surrounding states and to conclude that Idaho sources did not interfere with maintenance of the 1997 PM 2.5 NAAQS in any other state. Due to the limitations and purpose of the WRAP TSS, Idaho only evaluated impacts on Class I areas in surrounding states using these tools. Because EPA's analysis did not predict any of these Class I areas to have a difficulty with maintaining attainment of the 1997 PM 2.5 NAAQS, any impact Idaho might have on those areas would not, by definition, interfere with maintenance. Therefore, further evaluation of Idaho's analysis of PM 2.5 impacts on those areas is unnecessary.

For the 1997 8-hour ozone NAAQS, the closest maintenance receptor site to the east of Idaho was the Dallas-Ft Worth area in Texas. Dallas-Ft Worth is located over 1,000 miles southeast of the closest point on Idaho's border and on the other side of the Rocky Mountains. Given the relatively long distance and the intervening mountainous topography between Idaho and Dallas-Ft Worth, it is reasonable to conclude that Idaho sources do not interfere with maintenance in the Dallas-Ft Worth area. It is also reasonable to conclude that Idaho emissions would not have such impacts at other identified maintenance sites elsewhere further east or south of Dallas-Ft Worth.

In the west, the closest maintenance receptor to Idaho was in Nevada County, California. Nevada County is almost 300 miles southwest of the closest point on Idaho's border and located on the other side of the Sierra Nevada Mountains, which act as a natural barrier to air movement between Idaho and California. In addition, Nevada County is in central California and is not in the predominant direction of transport winds. As noted earlier, transport winds across Idaho generally flow from west to east. Although westerly winds are not always the case, meteorological data show that transport winds in Idaho tend to be southerly or westerly during hot and stagnant weather conditions conducive to ozone formation in California. Given the relatively long distance between Idaho and central California, the intervening mountainous topography, and the general direction of west-to-east transport winds across Idaho, EPA believes it is reasonable to conclude that Idaho sources do not interfere with maintenance of the 1997 8-hour ozone NAAQS in Nevada County, California. It is also reasonable to conclude that Idaho emissions would not have such impacts at other identified maintenance receptor sites elsewhere in central or southern California. Based on all of these factors taken together, EPA believes it is reasonable to conclude that Idaho emissions do not interfere with maintenance of the 1997 8-hour ozone NAAQS in any other state.

This conclusion is consistent with the information Idaho provided in its SIP submittal regarding interference with maintenance of the 1997 8-hour ozone NAAQS. For this element for the 8-hour ozone NAAQS, Idaho evaluated NO X and VOC emissions data to understand how Idaho's emissions sources may contribute to ozone impacts in surrounding states and to conclude that Idaho sources do not interfere with maintenance of the 1997 8-hour ozone NAAQS in any other states. Because EPA modeling did not predict any of the areas in states surrounding Idaho to have difficulty with maintaining attainment of the 8-hour ozone NAAQS, any impact Idaho might have on those areas would not, by definition, interfere with maintenance. Therefore, further evaluation of Idaho's analysis of ozone impacts on those areas is unnecessary.

The data and weight of evidence analysis presented above support the conclusion that the Idaho Interstate Transport SIP (submitted on June 28, 2010) is adequate and that emissions from Idaho do not interfere with maintenance in any other state for the 1997 8-hour ozone or 1997 PM 2.5 NAAQS, consistent with the requirements of element (2) of CAA section 110(a)(2)(D)(I).

The third element of section 110(a)(2)(D)(i) requires a SIP to contain adequate provisions prohibiting emissions that interfere with any other state's required measures to prevent significant deterioration of its air quality. EPA's 2006 Guidance made recommendations for SIP submissions to meet this requirement with respect to both the 1997 8-hour ozone NAAQS and the 1997 PM 2.5 NAAQS.

EPA believes that Idaho's submission is consistent with the 2006 Guidance, when considered in conjunction with PSD program revisions that EPA proposed to approve on March 18, 2010 (75 FR 13058). EPA's proposed approval of Idaho's SIP for purposes of meeting the requirements of section 110(a)(2)(D)(i)(II) is contingent upon the final approval of the PSD program revisions in the form specified in EPA's proposed approval, referenced above. The State's submittal indicates in Section 4, “Interfere with Prevention of Significant Deterioration of Air Quality,” that the State's SIP provisions include an EPA-approved PSD program. Idaho's regulations for its PSD program were last approved by EPA and made part of the SIP on January 16, 2003 (68 FR 2217), 40 CFR 52.670, effective February 18, 2003. On March 18, 2010, EPA proposed to approve Idaho's PSD rule revisions incorporating into the State's rules the provisions of EPA's PSD requirements as of July 1, 2008, including the November 29, 2005, Phase 2 rule for the 1997 8-hour ozone NAAQS (70 FR 71612), and the May 16, 2008, PM 2.5 Implementation Rule (73 FR 28321) for the 1997 PM 2.5 NAAQS. We anticipate taking final action approving Idaho's PSD rule revisions before taking final action on this interstate transport proposal. Therefore, EPA proposes to approve this SIP provision as adequate for purposes of section 110(a)(2)(D)(i)(II) if EPA has taken final action to approve the revisions to Idaho's PSD requirements that are consistent with our proposed action.

EPA believes that the PSD revision for the 1997 8-hour ozone NAAQS that makes NO X a precursor for ozone for PSD purposes and the PSD revision for the 1997 PM 2.5 NAAQS that makes SO 2 and NO X precursors for PM 2.5 for PSD purposes, taken together with the revised PSD SIP that EPA proposed to approve on March 18, 2010, and the Interstate Transport SIP that EPA is proposing to approve in this action, satisfy the requirements of the third element of section 110(a)(2)(D)(i) for the 1997 8-hour ozone NAAQS and the 1997 PM 2.5 NAAQS. That is, these provisions ensure that there will be no interference with any other state's required PSD measures because Idaho's SIP, as proposed for approval in this action along with the March 18, 2010 proposed action on the revised PSD rules, will meet current CAA requirements for PSD.

In light of the data and the weight of the evidence analysis presented above, EPA is proposing to approve revisions to the Idaho SIP, submitted on June 28, 2010, which adequately demonstrate that for the 1997 8-hour ozone and 1997 PM 2.5 NAAQS, air pollutant emissions from sources within Idaho do not (1) significantly contribute to nonattainment of the NAAQS in any other state, (2) interfere with maintenance of the NAAQS by any other state, and (3) interfere with any other state's required measures to prevent significant deterioration of its air quality, as required by section 110(a)(2)(D)(i).

As noted previously, EPA will address element (4), interference with any other state's required measures to protect visibility, in a separate action. EPA will also take action on the portion of Idaho's SIP that addresses the 2006 PM 2.5 NAAQS in a separate action.

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

The National Childhood Vaccine Injury Act of 1986, Title III of Public Law 99-660, as amended (42 U.S.C. 300aa-10 et seq. ), established the National Vaccine Injury Compensation Program (VICP) for persons found to be injured by vaccines. Under this Federal program, petitions for compensation are filed with the United States Court of Federal Claims (Court). The Court, acting through special masters, makes findings as to eligibility for, and amount of, compensation. In order to gain entitlement to compensation under Title XXI of the Public Health Service (PHS) Act for a covered vaccine, a petitioner must establish a vaccine-related injury or death, either by proving: (1) That the first symptom of an injury/condition, as defined by the Vaccine Injury Table's (Table's) Qualifications and Aids to Interpretation (QAI), occurred within the time period listed on the Table (copy of the Table can be found at http://www.hrsa.gov/vaccinecompensation ), and is therefore the injury or death presumed to be caused by a vaccine (unless another cause is found); or (2) proof of vaccine causation, if the injury/condition is not on the Table or did not meet the QAIs or the time frame period specified on the Table.

The statute authorizing the VICP provides for the inclusion of additional vaccines in the VICP when they are recommended by the Centers for Disease Control and Prevention (CDC) for routine administration to children. See section 2114(e)(2) of the Public Health Service (PHS) Act, 42 U.S.C. 300aa-14(e)(2). Consistent with section 13632(a)(3) of the Omnibus Budget Reconciliation Act of 1993 (Pub. L. 103-66), the regulations governing the VICP provide that such vaccines will be included in the Table as of the effective date of an excise tax to provide funds for the payment of compensation with respect to such vaccines. See 42 CFR 100.3(c)(5). The statute authorizing the VICP also authorizes the Secretary to create and modify a list of injuries, disabilities, illnesses, conditions, and deaths (and their associated time frames) associated with each category of vaccines included on the Table. See sections 2114(c)(3) and 2114(e)(2) of the PHS Act, 42 U.S.C. 300aa-14(c)(3) and 300aa-14(e)(2).

The prerequisites for adding the hepatitis A, trivalent influenza, meningococcal, and human papillomavirus (HPV) vaccines to the VICP have already occurred. The Secretary previously published notices announcing that each of these categories of vaccines is covered under the VICP (under the Table's provisional category) and explaining that the Secretary planned on adding these vaccines as separate categories to the Table through rulemaking, as proposed in this notice. On December 1, 2004, the Secretary published a notice in the Federal Register announcing that hepatitis A vaccines were covered under the VICP, with an effective date of December 1, 2004. 69 FR 69945. On April 12, 2005, the Secretary published a notice in the Federal Register announcing that trivalent influenza vaccines were covered under the VICP, with an effective date of July 1, 2005. 70 FR 19092. On April 20, 2007, the Secretary published a notice in the Federal Register announcing that meningococcal vaccines and human papillomavirus vaccines were covered under the VICP, with an effective date of February 1, 2007. 72 FR 19937.

Although the vaccines described in this notice are officially covered by the VICP, their placement in the provisional box XIII, rather than as distinct and separate listings, has sometimes led to confusion regarding their coverage status. We propose to add these four vaccines in their own separate categories to the Table in order to help the public identify clearly that these vaccines are covered by the VICP.

To date, the Secretary has not identified any illness, disease, injury, or condition caused by these four vaccines. For this reason, the Secretary proposes adding these four categories of vaccines to the Table with “[n]o condition specified.” If the Secretary learns of any such illness, disease, injury, or condition, she would consider amending the Table. The Secretary views this proposed rule as technical in nature because it will, if implemented, move the four categories of vaccine described in this notice from the placeholder category (category XIII) to separate and distinct listings on the Table with no associated Table injuries. If implemented, the proposals in this rule would not change the fact that these four categories of vaccine are covered under the VICP and will not change the rights of any current or potential VICP petitioners. The Advisory Commission on Childhood Vaccines (ACCV) voted unanimously to approve this proposal at its December 4, 2009 meeting.

Executive Order 12866, as amended by Executive Orders 13258 and 13422, directs agencies to assess all costs and benefits of available regulatory alternatives and, when rulemaking is necessary, to select regulatory approaches that provide the greatest net benefits (including potential economic, environmental, public health, safety, distributive, and equity effects). In addition, under the Regulatory Flexibility Act, if a rule has a significant economic effect on a substantial number of small entities, the Secretary must specifically consider the economic effect of a rule on small entities and analyze regulatory options that could lessen the impact of the rule. Executive Order 12866, as amended by Executive Orders 13258 and 13422, requires that all regulations reflect consideration of alternatives, of costs, of benefits, of incentives, of equity, and of available information. Regulations must meet certain standards, such as avoiding an unnecessary burden. Regulations which are “significant” because of cost, adverse effects on the economy, inconsistency with other agency actions, effects on the budget, or novel legal or policy issues, require special analysis.

The Secretary has determined that no resources are required to implement the requirements in this proposed rule. Therefore, in accordance with the Regulatory Flexibility Act of 1980 (RFA), and the Small Business Regulatory Enforcement Fairness Act of 1996, which amended the RFA, the Secretary certifies that this proposed rule will not, if implemented, have a significant impact on a substantial number of small entities.

The Secretary has also determined that this proposed rule does not meet the criteria for a major rule as defined by Executive Order 12866, as amended by Executive Orders 13258 and 13422, and would have no major effect on the economy or Federal expenditures. The Secretary has determined that this proposed rule is not a “major rule” within the meaning of the statute providing for Congressional Review of Agency Rulemaking, 5 U.S.C. 801.

Similarly, it will not have effects on State, local, and tribal governments and on the private sector such as to require consultation under the Unfunded Mandates Reform Act of 1995.

The Secretary has reviewed this proposed rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This rule would not “have substantial direct effects on the States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

The proposals made in this notice of proposed rulemaking, if implemented, would not adversely affect the following family elements: Family safety, family stability, marital commitment; parental rights in the education, nurture and supervision of their children; family functioning, disposable income, or poverty; or the behavior and personal responsibility of youth, as determined under section 654(c) of the Treasury and General Government Appropriations Act of 1999.

This proposed rule is technical in nature. Because the vaccines being added to the Table as separate categories are already included on the Table under Category XIII, this Table will have no effect on current or potential petitioners other than to help clarify which vaccines are covered by the VICP. If implemented, the proposals made in this notice would not prevent otherwise eligible individuals with claims of injuries or deaths allegedly resulting from the hepatitis A, trivalent influenza, meningococcal and human papillomavirus (HPV) vaccines from filing claims with the VICP and would not otherwise affect such petitioners.

This proposed rule does not have any information collection requirements.

Accordingly, 42 CFR part 100 is proposed to be amended as set forth below:

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

The Federal Emergency Management Agency (FEMA) proposes to make determinations of BFEs and modified BFEs for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).

These proposed BFEs and modified BFEs, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These proposed elevations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after these elevations are made final, and for the contents in those buildings.

Comments on any aspect of the Flood Insurance Study and FIRM, other than the proposed BFEs, will be considered. A letter acknowledging receipt of any comments will not be sent.

National Environmental Policy Act. This proposed rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Consideration. An environmental impact assessment has not been prepared.

Regulatory Flexibility Act. As flood elevation determinations are not within the scope of the Regulatory Flexibility Act, 5 U.S.C. 601-612, a regulatory flexibility analysis is not required.

Executive Order 12866, Regulatory Planning and Review. This proposed rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866, as amended.

Executive Order 13132, Federalism. This proposed rule involves no policies that have federalism implications under Executive Order 13132.

Executive Order 12988, Civil Justice Reform. This proposed rule meets the applicable standards of Executive Order 12988.

Accordingly, 44 CFR part 67 is proposed to be amended as follows:

Interested persons are invited to participate in this rulemaking by submitting written data, views or arguments on all aspects of this proposed rule. Comments should be organized by Homeland Security Acquisition Regulation (HSAR) Part, and address the specific section that is being commented on. All comments received will be posted without change to http://regulations.gov, including any personal information provided. See ADDRESSES above for information on how to submit comments. If you submit comments by mail, please submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you would like DHS to acknowledge receipt of comments submitted by mail, please enclose a self-addressed, stamped post card or envelope. DHS will consider all comments and material received during the comment period.

Docket: For access to the docket in order to read background documents or comments received, go to http://www.regulations.gov, follow the instructions or review the FAQs tab on the home page.

This proposed rule would amend the Department's acquisition regulation which was initially issued in 2003. 68 FR 67871 (Dec. 4, 2003) as amended at 71 FR 25767 (May 2, 2006). Section 695 of the Post-Katrina Emergency Management Reform Act of 2006 (PKEMRA), Public Law 109-295, 120 Stat. 1394, 1460 (Oct. 4, 2006), directed the Secretary to promulgate regulations establishing a 150-day contract period limit for declared disaster-or-recovery-related contracts “entered into using procedures other than competitive procedures.” Contracts to be covered by the proposed section 695 PKEMRA regulation are those awarded in response to or recovery from certain events: (1) A major disaster or emergency declared by the President; (2) an uncontrolled fire that the Federal Emergency Management Agency has approved under a fire management assistance declaration; or (3) an incident for which the National Operations Center (NOC), through the National Response Coordination Center (NRCC), coordinates the activation of the appropriate Emergency Support Functions and the Secretary of Homeland Security has designated a Federal Resource Coordinator (FRC) to manage Federal resource support. Following is a description of events and processes leading to such declarations or designations.

The Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5207 (The Stafford Act), and its implementing regulations at 44 CFR part 206 set forth a process for a Governor to request the President to declare a major disaster or emergency:

○ If an event is beyond the combined response capabilities of the State and affected local governments; and

○ If, based on the findings of a joint Federal-State-local Preliminary Damage Assessment (PDA), the damages are of sufficient severity and magnitude to warrant assistance under the Stafford Act. In a particularly fast-moving or clearly devastating disaster, there may be an expedited declaration, and the PDA may be deferred until after the declaration.

○ The President may direct emergency assistance without a Governor's request if an incident occurs that involves a subject area that is exclusively or preeminently the responsibility of the United States. The President will consult the Governor of any affected State, if practicable.

○ FEMA may provide accelerated Federal assistance and support where necessary to save lives, prevent human suffering, or mitigate severe damage, even in the absence of a specific request. The Governor of the affected State will be consulted if practicable, but this consultation shall not delay or impede the provision of such rapid assistance.

The Governor of a State submits the request for a fire management assistance declaration to the Regional Director while the fire is burning uncontrolled. The Regional Director gathers the State's information, calls upon the Principal Advisor for an assessment, and develops a Regional summary and recommendation to be forwarded to the FEMA Recovery Division Director, or designee. The FEMA Recovery Division Director approves or denies the State's request based on:

There are four criteria in which the FEMA Recovery Division Director, or designee, evaluates the threat posed by a fire or fire complex:

• Threat to lives and improved property, including threats to critical facilities/infrastructure, and critical watershed areas;

• Availability of State and local firefighting resources;

• High fire danger conditions, as indicated by nationally accepted indices such as the National Fire Danger Ratings System; and

• Potential major economic impact.

After rendering a determination, the FEMA Recovery Division Director, or designee, notifies the Regional Director, who in turn notifies the State.

The Department of Homeland Security (DHS) sometimes takes action to support a Federal department or agency that has requested DHS assistance in handling a disaster that falls under the requesting department or agency's jurisdiction. Key operational units that may be activated include the National Response Coordination Center (NRCC), Regional Response Coordination Center (RRCC), and Joint Field Office (JFO).

Federal departments and agencies routinely manage the response to incidents under their statutory or executive authority that do not require the assistance of other Federal agencies. When a Federal entity with primary responsibility and authority for handling an incident requires assistance, that agency may request DHS coordination of Federal multiagency assistance. In such cases, DHS coordinates assistance using the procedures and structures within the National Response Framework. Generally, the requesting agency funds the participation of other Federal departments and agencies in accordance with provisions of the Economy Act unless other pertinent authorities exist.

To initiate Federal-to-Federal support, the requesting agency submits a request for assistance to the DHS Executive Secretary via the National Operations Center (NOC). Requests include a summary of the situation, types and amount of resources needed, financial information, and any other appropriate details. Upon approval of the request, the Secretary of Homeland Security issues an operations order to the NOC. The NOC, through the NRCC, coordinates the activation of the appropriate Emergency Support Functions. The Secretary of Homeland Security designates a Federal Resource Coordinator (FRC) to manage Federal resource support. In circumstances requiring extraordinary coordination, the Secretary may appoint a Principal Federal Official to serve as his or her representative in the field.

The requesting agency then designates a senior official to work in coordination with the FRC as part of the Unified Coordination Group to identify and define specific support requirements. The requesting agency also provides comptrollers to the NRCC, RRCC, and JFO, as appropriate, to oversee financial management activities. An RRCC may be fully or partially activated to facilitate the deployment of resources until a JFO is established. Facilities, such as mobilization centers, may be established to accommodate personnel, equipment, and supplies. Federal agencies provide resources under interagency reimbursable agreements or their own authorities.

Although the Department considered establishing separate disaster declaration standards applicable only to section 695, the Department determined it was not wise. Declaration of a disaster under such separate 695 standards would likely confuse the public if the President or other recognized officials did not make a declaration for the same incident under the Stafford Act or other pre-existing authority.

In addition to fulfilling this Congressional mandate, this proposed rule would further align HSAR with the FAR by, among other changes, adding new departmental procedures to implement recent regulatory changes on contractor disclosures; clarifying existing content or policy, such as release of contract information; making editorial revisions of prior content, such as correcting typographical errors and Web site addresses; and making changes to other administrative information.

This proposed rule would amend 48 CFR parts 3001, 3002, 3003, 3004, 3005, 3006, 3009, 3012, 3018, 3022, 3023, 3033, 3035, 3036, 3042, 3045, 3052, and 3053. The proposed changes to 48 CFR part 3006 would implement section 695 of the PKEMRA. DHS proposes to change the HSAR as described below.

• Add an authority section 3001.103.

• Add one acquisition office, Office of Selective Acquisitions (OSA), to the arrangement of regulations section at HSAR 3001.105-2.

• Update information in HSAR 3001.105-3 for finding the HSAR, including accessing the HSAR online and add an internet site for accessing the Homeland Security Acquisition Manual (HSAM).

• Remove the TSA exception to HSAR in HSAR 3001.301, which was inadvertently not removed when a technical amendment (73 FR 30318, May 27, 2008) was published, and provide edits or corrections for clarity throughout HSAR 3001 subparts.

• Add an additional office within components—the Office of Selective Acquisitions (OSA) within the DHS Management Directorate.

• Amend the definition of “Head of the Contracting Activity (HCA)” to align with the FAR and provide the designated organization positions.

• Amend the definition of “Senior Procurement Executive (SPE)” to identify his or her responsibilities under 41 U.S.C. 414(c).

• Amend the first paragraph in the definition of “Sensitive Information” to conform it to the related HSAR clause in 3052.204-71.

• Remove the definition of “simplified acquisition threshold” because there is no longer a need for a specialized definition given the prior removal of HSAR 48 CFR 3013.7004. 73 FR 30317, 30318, May 27, 2008.

• Amend HSAR 3003.101-3 by expanding the reference to United States Office of Government Ethics regulations on the conduct and responsibilities of employees contained in 5 CFR part 2635, to OGE regulations in parts 2634 through 2641, and by eliminating the reference to a DHS replacement management directive.

• Amend paragraph (a) of HSAR 3003.204 by adding reference to FAR 3.204(a); amend paragraph (b) to make the HCA, rather than the Chief of the Contracting Office (COCO), responsible for ensuring that hearing procedures required by FAR 3.204(b) are afforded the contractor; and amend paragraph (c) to add notification to the Office of Inspector General. References to “Government legal counsel” are changed to “DHS legal counsel” for consistency with the HSAR definition of “legal counsel” at HSAR 3002.101 and usage conventions.

• Add a new HSAR subpart 3003.10, Contractor Code of Business Ethics and Conduct, with instructions to contractors in HSAR 3003.1003 for making disclosure reports. This section lists a DHS Web site for obtaining the online, Contractor Disclosure Form provided by the DHS Office of Inspector General. HSAR section 3003.1004 paragraph (a) contains directions for the contracting officer to insert a clause in solicitations and contracts with instructions for contractor disclosure of violations. Paragraph (b) of HSAR section 3003.1004 advises contracting officers that special posters and instructions may be issued for activities using disaster recovery funds and provides the Web site for obtaining the DHS Hotline Poster described in the clause at FAR 52.203-14.

Revise HSAR 3004.470 content for consistency and correct publication titles for previously identified DHS Security Directive and Handbook, and remove HSAR 3004.804-1 and its $3-million-or-less-estimated-contract-amount limitation on the use of quick closeout procedures to allow for Contracting Officer's flexibilities for contract closeout procedures.

Add HSAR 3005.470, Contractor Award Announcements, Advertisements, and Releases, which addresses DHS policy that precludes contractors from referring to DHS contracts in commercial advertising in a manner that states or implies the Government approves or endorses the product or service or considers it superior to other products or services. It also incorporates the requirement from HSAR 3052.242-71 for advance approval of the contracting officer for release of contract information under contracts that involve sensitive or classified information. DHS is combining the coverage into a single clause, HSAR 3052.205-xx and its alternate, to eliminate the potential for confusion and facilitate post-award contract management.

Add the implementation of section 695 of the Department of Homeland Security Appropriations Act, 2007, Public Law 109-295, Title VI, which establishes a limitation on the length of certain noncompetitive contracts. The law restricts the period of performance to 150 days for contracts above the simplified acquisition threshold that have been entered into by DHS to facilitate the response and recovery from a natural disaster, act of terrorism, or other man-made disaster, where the award was made with other than full and open competition under the FAR subpart 6.302-2, Unusual and Compelling Urgency. In order to implement the statutory requirement, DHS proposes to add: HSAR 3006.302-1, Only one responsible source and no other supplies or services will satisfy agency requirements; HSAR 3006.302-270, Unusual and Compelling Urgency; HSAR 3006.303, Justifications, HSAR 3006.303-270, Contents, and HSAR 3006.304, Approval of the Justification.

Add HSAR 3009.403 to identify the HCA as the debarring and suspending official without authority to redelegate.

Remove the HSAR Part 3012 “Reserved” identification and add new content, including the prescription for the new HSAR clause, 3052.212-XX, Contract Terms and Conditions Applicable to DHS Acquisition of Commercial Items.

Remove HSAR Part 3018 “Reserved” identification and add a reference in HSAR 3018 for Emergency Acquisitions and Available Acquisition Flexibilities.

Amend HSAR Part 3023 to align with the current FAR Part 23 title and provide information regarding the DHS Sustainable Practices policy.

Amend HSAR 3033 to add instructions that ensure protests involving classified information for the Office of Selective Acquisitions (OSA) are transmitted through appropriately cleared individuals at GAO, the United States Federal Court of Claims, or internal protest resolution officials.

Amend HSAR 3035.70 to remove section 3035.7000, add a section 3035.70-1 to clarify DHS policy regarding dissemination of non- sensitive research information by educational institutions, and add a section 3035.70-2 to clarify the prescription for using the clause at HSAR 3052.235-70 for contracts that do not involve sensitive or classified information and to instruct the contracting officer to prepare an appropriate clause for contracts involving sensitive or classified information.

Remove HSAR 3036.2, to align with FAR Case 2006-022 changes (74 FR 31557, July 1, 2009), effective July 1, 2009, which moved the associated FAR 36 content to FAR subpart 42.15.

• Amend HSAR 3042.1502 to identify the Contractors Performance Assessment Reporting System (CPARS) and its modules, Construction Contractor Appraisal Support System (CCASS) for construction contracts and Architect-Engineer Contract Administration Support System (ACASS) for architect-engineer contracts to report contractor performance. CPARS replaces the National Institute of Health's CPS as the designated system for DHS reporting on contractor performance.

• Delete HSAR 3042.202-70 which prescribed the clause at HSAR 3052.242-71. The changes at HSAR 3005.470, 3035.70, 3052.205-XX and 3052.235-70 provide coverage on dissemination of contract information.

Remove the content in HSAR Part 3045 which is obsolete as a result of the FAR Part 45 rewrite. (72 FR 27364, May 15, 2007)

• Add the new clause at HSAR 3052.203-XX Instructions for Contractor Disclosure of Violations.

• Amend HSAR clause 3052.204-71 to provide typographical corrections and remove the Department of State publication which is no longer published and replace with appropriate guidance.

• Add the new clause at HSAR 3052.205-XX Advertisements, Publicizing Awards, and Releases, and its Alternate I.

• Add the new clause HSAR 3052.212-XX, Contract Terms and Conditions Applicable to DHS Acquisition of Commercial Items.

• Amend clause HSAR 3052.216-71, Determination of Award Fee to delete the content addressing rollover of award fee amounts from one period to subsequent periods to align with the OMB guidance, Appropriate Use of Incentive Contracts issued December 4, 2007.

• Amend the reference to the prescription of HSAR 3052.235-70 for consistency with changes to HSAR 3035.70-2.

• Delete the clauses at HSAR 3052.242-71 and 3052.245-70. Procedures for dissemination of information will be incorporated into HSAR 3052.205-XX. HSAR 3052.245-70 clause is rendered obsolete with the Part 3045 removal.

• Add a note to HSAR 3052.101 identifying where the HSAR Provision and Clause matrix can be found on the DHS Web site at http://www.dhs.gov/xopnbiz/ under Policy and Regulations, Homeland Security Acquisition Regulation (HSAR).

Other technical corrections include editing DHS Form numbers in the HSAR regulatory text in Parts 3004, 3022, and 3053 to conform to the DHS published forms numbers and removal of HSAR 3053.245-70, Report of Government property to conform to the removal of Part 3045 content.

This is not a significant regulatory action under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. The Office of Management and Budget has not reviewed it under the Order. This proposed rule is not a major rule under 5 U.S.C. 804.

Under the Regulatory Flexibility Act (5 U.S.C. 601-612), the term “small entities” comprises of small businesses, not for profit organizations that are independently owned and operated and are not dominant in their fields, and government jurisdictions with populations of less than 50,000. DHS certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act because the rule applies to internal approval procedures, supplements the Federal Acquisition Regulations, and is intended to clarify or eliminate existing agency acquisition regulations and policies. DHS has not performed an initial regulatory flexibility analysis. DHS invites comments from small entities and other interested parties. Such comments should be submitted separately and should cite HSAR Case 2009-002. See ADDRESSES above for information on how to submit comments.

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all Departments are required to submit to the Office of Budget and Management (OMB), for review and approval any reporting requirements inherent in a rule.

The Paperwork Reduction Act applies to this proposed rule. However, the information collection requirements imposed by the provisions 3052.205-XX and 3052.212-XX are currently covered by the approved information collection requirements for provisions (OMB Clearance numbers 1600-0003, Post-Contract Award Information, and 1600-0005, Solicitation of Proposal Information for Award of Public Contracts). DHS considers that any changes due to the use of these clauses will be within the estimated hours for the existing approved OMB clearance. The clause at 3052.203-XX does not create a new information collection requirement. It provides a format for contractors to use when making a disclosure under FAR 3.1003 and 52.203-13. The FAR disclosure requirements are approved under OMB Clearance Number 9000-0164.

You need not respond to a collection of information unless it displays a currently valid control number from OMB. Use of these two information collections, 1600-0003 and 1600-0005, has been approved by OMB until January 31, 2012, and October 31, 2011, respectively.

The proposed rule would not have substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, DHS has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism impact statement.

We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 which guides the Department in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule, which does not involve any extraordinary circumstances, appears to be categorically excluded under paragraphs A3(b) and A3(d) in Table I of Appendix A of Directive 023-01 because it implements legislation and amends acquisition regulations without changing the regulations' environmental effect. We seek comments or information pertinent to these determinations.

Accordingly, DHS amends 48 CFR parts 3001, 3002, 3003, 3004, 3005, 3006, 3009, 3012, 3018, 3022, 3023, 3033, 3035, 3036, 3042, 3045, 3052, and 3053 as follows:

1. The authority citation for 48 CFR parts 3001, 3002, 3003, 3004, 3005, 3006, 3009, 3022, 3023, 3033, 3035, 3036, 3042, 3045, 3052 and 3053 continues to read as follows: