Section 535 of the Department of Homeland Security Appropriations Act, 2008 (the Act), Division E of the Consolidated Appropriations Act, 2008, Public Law 110-161 (approved December 26, 2007), 112 Stat. 1844, enacts new human resource management provisions applicable to specified Customs and Border Protection employees. It provides that individuals defined as “customs and border protection officers” will be prospectively added as a new group with special human resource management provisions essentially similar to those applicable to other special retirement groups including law enforcement officers, nuclear materials couriers, and firefighters. The principal elements of those structures include: (1) A maximum entry age (to permit a career to be completed by mandatory retirement age); (2) Early optional retirement eligibility; (3) Enhanced annuity provisions (to make a shorter career economically feasible); (4) Mandatory retirement (generally at age 57, but with agency authority to extend to age 60), and (5) Higher employer and employee retirement contribution rates. The effective date of section 535 is July 6, 2008.

In addition to the provisions that will be continuing and that will apply to individuals employed as customs and border protection officers on its effective date, section 535 of the Act also includes unique provisions applicable to individuals who are customs and border protection officers on its effective date. These incumbents will not be subject to mandatory retirement, but are eligible for partial annuity computation credit for future service as a customs and border protection officer.

The same definition is applicable to both FERS and CSRS:

The provision for extending coverage to “any successor position” is also novel. Primary coverage is based upon the GS-1895 series as of September 1, 2007, and it is possible that position classification standards and/or the manner in which positions are described may be changed in the future. The logical interpretation is that this is intended to provide authority for coverage should positions with the same elements currently classified in the GS-1895 series be assigned to another series at some time in the future so long as they would have been covered under the GS-1895 series as it existed on September 1, 2007.

Secondary coverage is not limited to positions in the GS-1895 series. However, section 535 of the Act permits secondary coverage using language equivalent to that applicable to other special retirement groups (i.e., law enforcement officers, firefighters, etc.). Thus, as in the law enforcement officer retirement regulations, secondary coverage will generally be limited to continuous employment in supervisory and/or administrative positions that could not be performed by individuals without prior experience in a customs and border protection officer primary position.

As with other special retirement groups, the final authority on position coverage for retirement purposes is OPM, although coverage determinations are delegated to the Department of Homeland Security. Statutorily, OPM is also the final authority on position classification, the other aspect of retirement coverage eligibility.

Section 535 of the Act has provisions concerning mandatory retirement and annuity computation that are applicable to individuals who, depending upon the provision, were first appointed as a customs and border protection officer prior to the effective date, or are customs and border protection officers on the effective date.

Mandatory retirement: Sections 831.1608(c) and 842.1006(d) of the proposed rule address the provisions of section 535(e)(2)(A) of the Act, which provide that mandatory retirement “shall not apply to an individual first appointed as a customs and border protection officer before the effective date” of July 6, 2008. Unlike another provision of section 535, this does not specify that the individual has to be a customs and border protection officer on the effective date. Thus, an individual previously appointed as a customs and border protection officer before July 6, 2008, but not employed on that date would not be subject to mandatory retirement upon returning to customs and border protection officer employment following that break in service.

Prior service and secondary coverage: Sections 831.1604(b) and 842.1003(c) of the proposed rule address the provisions of section 535(e)(2)(B) of the Act, which provide special rules for treatment of pre-enactment customs and border protection officer service. These special rules are relevant to secondary customs and border protection officer coverage determinations. Section 535 of the Act is explicit that its provisions are prospective, stating in section 535(e)(2)(B)—

The meaning of clause (ii) is that if an individual is in a secondary (supervisory or administrative) position on July 6, 2008, that individual's eligibility to be a customs and border protection officer will be determined by looking back at the individual's employment history to determine whether the requirements for coverage would have been met if the provisions of 535 had been in effect during the earlier employment history.

There is one potential issue in this regard resulting from the fact that the GS-1895 series dates back only to July of 2004, and that standard is the one in effect on September 1, 2007. Thus, a cursory reading of this provision could be interpreted to mean that only if there has been three years of post-July 2004 primary service actually classified in the GS-1895 series followed by a direct transfer to a secondary position can an individual in a secondary position be found to be a customs and border protection officer on July 6, 2008. This would permit such coverage only if an individual transferred into a secondary position on or after July 1, 2007. This would mean that some customs and border protection officers in secondary supervisory and administrative customs and border protection officer positions on July 6, 2008, would not be entitled to retirement coverage under the law when the law went into effect.

Despite the lack of relevant legislative history, such a rigid interpretation would be inconsistent with the statutory scheme. There is however an alternative interpretation yielding a reasonable result, which OPM has adopted for this proposed rule. Prior to the establishment of the GS-1895 series, it was preceded by two precursor position series, GS-1816, Immigration Inspection, and GS-1890, Customs Inspection. Most positions classified under those series would now be classified under the GS-1895 series. Accordingly, for purposes of evaluating whether pre-July 2004 service is qualifying as primary service, positions classified prior to July 2004 in either the GS-1816 or GS-1890 series should be considered as meeting the requirement of being a “position within the GS-1895 job series (determined applying the criteria in effect as of September 1, 2007).” However, merely being in one of those two series does not mean that the position was a primary position. The additional requirements relating to the type of work performed must also be satisfied.

Sections 831.1612(c) and 842.1009(c) of the proposed rule address the unique provisions of section 535(e)(2)(C) of the Act, which provide for proportional annuity computations that are applicable only to individuals who are customs and border protection officers on July 6, 2008. Unlike the mandatory retirement exemption, the provisions of section 535(e)(2)(C) of the Act do not apply to a previously appointed customs and border protection officer who is not employed as a customs and border protection officer on July 6, 2008. A previously employed customs and border protection officer who returns after July 6, 2008, would not be eligible, nor would a U.S. Customs and Border Protection employee not in a customs and border protection officer position on July 6, 2008. Under the provisions of section 535(e)(2)(C), individuals do not receive credit for pre-July 6, 2008, service counted towards special retirement eligibility or computation. However, they are eligible to have post-July 5, 2008 customs and border protection officer service credited in their annuity computation at a higher rate even though they may not meet the requirements for special customs and border protection officer retirement. Service in other special retirement categories such as law enforcement officer or firefighter cannot be added to customs and border protection officer service for use in a proportional annuity computation.

Thus, a customs and border protection officer employed on July 6, 2008, and covered by CSRS would have all full months of customs and border protection officer service computed using an annual multiplier of 2.5 percent per year of such service up to 20 years. A customs and border protection officer employed on July 6, 2008, and covered by FERS would have all full months of customs and border protection officer service computed using an annual multiplier of 1.7 percent per year of such service up to 20 years.

Sections 831.1612(a) and 842.1009(a) of the proposed rule address the provisions of section 535(e)(3) of the Act, which require that individuals who are customs and border protection officers on December 26, 2007, must be given the right to elect to be covered by or excluded from its provisions when it becomes effective on July 6, 2008. For such incumbents, section 535 provides a substantial lifetime annuity increase in return for a small increase in retirement contributions deducted from pay. Incumbents on July 6, 2008, are exempt from mandatory retirement. Although the Department of Homeland Security has already provided affected employees with the opportunity to elect to be subject to the customs and border protection officer provisions, the proposed rule describes the terms of the election opportunity provided by the Department of Homeland Security in the event that there is any question about an employee's election opportunity in the future.

Sections 831.1612(a) and 842.1009(a) of the proposed rule address the provisions of section 535(e)(5) of the Act, which specifies that nothing in section 535 or any amendment made by it shall be considered to afford any election or to otherwise apply with respect to anyone who as of December 25, 2007, was a law enforcement officer employed by U.S. Customs and Border Protection.

The proposed rule makes various technical and conforming amendments to 5 CFR 831.502, 841.403, 841.503, 842.208, 842.403, 842.801, and 842.901 to add references to customs and border protection officers. Section 831.502 is also being reissued in its entirety to correct typographical errors in the existing paragraph designations.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Order 12866.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities because the regulation will only affect retirement payments to retired employees, spouses, former spouses, and insurable interest survivors.

Accordingly, the Office of Personnel Management is proposing to amend parts 831, 841, and 842 of title 5 of the Code of Federal Regulations as follows:

NCUA recently finalized changes to its Corporate Credit Union Rule, 12 CFR part 704. These changes, as well as NCUA's other efforts to resolve the problems created by the legacy assets remaining in the corporate credit union system, are likely to result in a fundamental restructuring of the corporate credit union system. As part of this restructuring, NCUA believes that some groups of natural person credit unions may wish to form new corporate credit unions.

NCUA first issued guidance on chartering corporate federal credit unions (corporate FCUs) in 1982, but withdrew this guidance and never reissued it. See NCUA Interpretive Ruling and Policy Statement (IRPS) 82-6. In light of the impending changes to the corporate system, NCUA is now reissuing chartering guidance in the form of a new proposed IRPS. The proposed IRPS explains the requirements for prospective new corporate FCUs and NCUA's standards for evaluating applications and will assist credit union officials in assessing the feasibility of a new corporate charter. The proposed IRPS also lists timeframes for NCUA action on corporate charter applications.

The proposal requires charter applicants submit various information to NCUA, including:

• A detailed business plan;

• NCUA Form 4001, the Federal Credit Union Organization Report;

• NCUA Forms 9500 and 9501, regarding federal share insurance for member accounts;

• NCUA Form 4012, containing key biographical information and authorization of a background check and credit check for each prospective board member, credit and supervisory committee member, and senior management employee; and

• NCUA Form 4008, the credit union's organization certificate.

The proposed IRPS also includes detailed timelines for processing a charter application.

The Board is proposing this IRPS with a 30-day comment period rather than NCUA's standard 60-day comment period. The Board believes that this proposal is neither novel nor complex, and that 30 days should be sufficient for all parties interested in commenting. Any charter application submitted before this IRPS is finalized should conform to the requirements of the proposed IRPS, and NCUA will process applications under the terms of the proposed IRPS until the IRPS is finalized. The possibility of impending charter applications further supports the Board's perceived need for a shorter comment period and a quicker finalization of the IRPS.

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact any proposed regulation may have on a substantial number of small entities (those under $10 million in assets). The proposed IRPS only applies to corporate credit unions, all of which have assets well in excess of $10 million. Accordingly, the proposed IRPS will not have a significant economic impact on a substantial number of small credit unions and, therefore, a regulatory flexibility analysis is not required.

The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or modifies an existing burden. 44 U.S.C. 3507(d); 5 CFR part 1320. For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. The Office of Management and Budget (OMB) has approved the current information collection requirements in part 704 and assigned them control number 3133-0129.

The proposed IRPS contains an additional information collection in the form of an application requirement. Any group of persons creating a new federally chartered corporate credit union must apply for NCUA's approval. As required by the PRA, NCUA is submitting a copy of this proposed IRPS to OMB for its review and approval. Persons interested in submitting comments with respect to the information collection aspects of the proposed IRPS should submit them to OMB at the address noted below.

The following describes the application requirements in the proposed IRPS that create manhour burdens:

The proposed IRPS requires applicants for a corporate FCU charter to submit Form 4001, which lists the prospective credit union's officers, directors and basic information about proposed operations. Form 4001 also requires applicants to submit a business plan. For corporate credit union charter applications, the business plan must address the following items:

• Mission statement;

• Analysis of market conditions ( i.e., economic prospects for the corporate credit union and availability of proposed financial services from alternative depository institutions);

• Summary of survey results and/or customer base analysis;

• Proposed financial services to be offered;

• How and when services are to be implemented;

• Anticipated corporate credit union staffing and credentials of key employees;

• Physical facility—office and equipment;

• Proposed recordkeeping, data processing, and communications systems and/or vendors;

• Budget for the first three years;

• Semiannual pro-forma financial statements for the first three years, including a listing of the assumptions used to develop the financial statements;

• Goals for the number of members and shares under various scenarios;

• Projected break-even or date of achieving independent operations;

• Source of funds to pay expenses during the initial setup and early months of operation;

• Written policies for shares, lending, investments, funds management, capital accumulation as required by part 704, payment systems, and EDP;

• Plan for continuity—directors, committee members, and senior management;

• Evidence of commitment ( i.e., letters and/or contracts used to substantiate projections); and

• Services and marketing strategies for financial and correspondent services, including the ability of the proposed corporate credit union to efficiently deliver these products.

While the precise time necessary to prepare the business plan will vary with the intended complexity and activities of the proposed corporate credit union, NCUA estimates that on average, preparation of Form 4001 and an acceptable business plan will require 300 hours.

NCUA requires each prospective board member, members of key committees, and senior management employees to submit this form providing basic biographical information and authorizing NCUA to conduct a background and credit check. Because the form is straightforward and applicants are likely to have most of the information requested in other formats, such as resumes, NCUA estimates completion of the form will take no more than one hour for each individual required to submit the form.

NCUA requires the prospective chief executive officer and recording officer to submit Form 9500 to certify that the prospective board has adopted a resolution that the prospective FCU will apply for federal share insurance. NCUA requires the chair and the chief financial officer to submit Form 9501 to apply for federal share insurance. NCUA estimates completion of both these forms will require no more than one hour per charter applicant.

Prospective organizers must also submit an organization certificate listing the credit union's name and names and contact information of the initial subscribers. NCUA estimates that collection of the required information and completion of this form should require no more than two hours per charter applicant.

NCUA estimates the total information collection burden represented by the proposal, as follows:

Estimated annual number of respondents: 1 corporate FCU charter applicant.

Preparation of Form 4001 and business plan: 1 charter applicant × 300 hours = 300 hours.

Preparation of NCUA Form 4012: 1 charter applicant × 25 individual officials, committee members and employees per applicant × 1 hour per individual = 25 hours.

Preparation of NCUA Forms 9500 and 9501: 1 charter applicant × 1 hour = 1 hour.

Preparation of NCUA Form 4008: 1 charter applicant × 2 hours = 2 hours.

Total estimated annual burden hours: 328 hours.

The NCUA considers comments by the public on this proposed collection of information in:

• Evaluating whether the proposed collection of information is necessary for the proper performance of the functions of the NCUA, including whether the information will have a practical use;

• Evaluating the accuracy of the NCUA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Enhancing the quality, usefulness, and clarity of the information to be collected; and

• Minimizing the burden of collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.

The Paperwork Reduction Act requires OMB to make a decision concerning the collection of information contained in the proposed regulation between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment to the NCUA on the proposed regulation.

Comments on the proposed information collection requirements should be sent to: Office of Information and Regulatory Affairs, OMB, New Executive Office Building, Washington, DC 20503; Attention: NCUA Desk Officer, with a copy to Mary Rupp, Secretary of the Board, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order.

The proposed IRPS would not have substantial direct effects on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this proposal does not constitute a policy that has federalism implications for purposes of the executive order.

The NCUA has determined that this proposed IRPS will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

These guidelines are intended to achieve the following goals:

• Uphold the provisions of the Federal Credit Union Act (Act);

• Promote safety and soundness within the credit union industry; and

• Provide quality services to members.

NCUA will consider the above criteria as the primary factors in determining whether to approve a corporate federal credit union (FCU) charter. In unusual circumstances, NCUA may consider other information in deciding if a charter should be approved, such as other federal law or public policies.

Seven or more natural person representatives of natural person credit unions (NPCUs)—“the subscribers”—must present to NCUA for approval a sworn organization certificate stating at a minimum:

• The name of the proposed corporate FCU;

• The location of the proposed corporate FCU;

• The names and addresses of the subscribers to the certificate and the number of shares subscribed by each;

• The initial par value of the shares; and

• The proposed field of membership.

False statements on any of the required documentation filed in obtaining an FCU charter may be grounds for federal criminal prosecution.

Before chartering a corporate FCU, NCUA must be satisfied that the institution will be viable and that it will provide needed services to its members. NCUA will conduct an independent investigation of each charter application to ensure that the proposed corporate credit union can be successful. In general, the success of any credit union depends on: (a) The character and fitness of management; (b) the depth of the members' support; and (c) present and projected market conditions.

The Act requires NCUA to ensure that the subscribers of federal charters are of good “general character and fitness.” In addition, employees and officials must be competent, experienced, honest, and of good character.

NCUA will conduct background and credit investigations on prospective officials and employees, and the reports must establish each applicant's character and ability to effectively handle financial matters. Factors that may lead to disapproval of a prospective official or employee include criminal convictions, indictments, and acts of fraud and dishonesty. Other factors, such as serious or unresolved past due credit obligations and bankruptcies disclosed during credit checks, may also disqualify an individual.

NCUA also needs reasonable assurance that the management team will have the requisite skills—particularly in leadership, accounting, funds management, and payment systems risk—and the commitment to dedicate the time and effort needed to make the proposed corporate FCU a success.

Section 701.14 of NCUA's Rules and Regulations sets forth the procedures for NCUA approval of officials of newly chartered FCUs, including corporate FCUs. If the application of a prospective official or employee to serve is not acceptable to NCUA's Director, Office of Corporate Credit Unions (OCCU), the group can propose an alternate to act in that individual's place. If the charter applicant feels it is essential that the disqualified individual be retained, the individual may appeal the OCCU's decision to the NCUA Board. If an appeal is pursued, action on the application may be delayed. If the appeal is denied by the NCUA Board, an applicant acceptable to NCUA must be provided before the charter can be approved.

An important chartering consideration is the degree of support from the field of membership. The charter applicant must demonstrate a sufficient customer base from which to draw business in the form of membership applications, capital and share commitments, and commitments to use the corporate FCU's services. The applicant must provide surveys and/or written commitments certifying to this potential membership base and capital commitment to the levels required by Part 704 of NCUA's Rules and Regulations. Although NCUA may work with a newly chartered corporate on a plan to meet the retained earnings requirements of Part 704, the newly chartered corporate must have a viable plan to solicit and maintain sufficient contributed capital. Generally, the plan must show how the corporate FCU will keep its total capital at 4 percent or more of its moving daily average net assets at all times beginning on the date NCUA issues the charter.

The ability to provide effective service to members, compete in the marketplace, and adapt to changing market conditions are key to the survival of any enterprise. Before NCUA will charter a corporate credit union, a charter applicant must submit a business plan based on realistic and supportable projections and assumptions. The business plan should contain, at a minimum, the following elements:

(1) Mission statement;

(2) Analysis of market conditions (i.e., economic prospects for the corporate credit union and availability of proposed financial services from alternative depository institutions);

(3) Summary of survey results and/or customer base analysis;

(4) Proposed financial services to be offered;

(5) How and when services are to be implemented;

(6) Anticipated corporate credit union staffing and credentials of key employees;

(7) Physical facility—office and equipment;

(8) Proposed recordkeeping, data processing, and communications systems and/or vendors;

(9) Budget for the first three years;

(10) Semiannual pro-forma financial statements for the first three years, including a listing of the assumptions used to develop the financial statements;

(11) Goals for the number of members and shares under various scenarios;

(12) Projected break-even or date of achieving independent operations;

(13) Source of funds to pay expenses during the initial setup and early months of operation;

(14) Written policies for shares, lending, investments, funds management, capital accumulation as required by Part 704, payment systems, and EDP;

(15) Plan for continuity—directors, committee members, and senior management;

(16) Evidence of commitment (i.e., letters and/or contracts used to substantiate projections); and

(17) Services and marketing strategies for financial and correspondent services, including the ability of the proposed corporate credit union to efficiently deliver these products.

The subscribers must submit the following documentation to the NCUA Office of Corporate Credit Unions (OCCU) for processing:

(1) NCUA Form 4001—Federal Credit Union Investigation Report.

(2) NCUA Form 4012—Report of Officials and Agreement to Serve. This form documents general background information for each official and employee of the proposed corporate credit union. Each designee must complete and sign this form. In completing the form, subscribers may disregard any reference to “common bond.” In addition, where Section B.2 of the form requires a potential interest survey sample of at least 250 potential members, subscribers may use a sample of at least 30 potential members.

(3) NCUA Form 4008—Organization Certificate. This document establishes the seven criteria required of subscribers by the Act and is signed by the subscribers and notarized. This document should be executed in duplicate.

(4) NCUA Form 9501—Certification of Resolutions. This document certifies the board of the proposed corporate credit union has resolved to apply for federal insurance of member's accounts and has authorized the chief executive officer and chief financial officer to execute the Application and Agreements for Insurance of Accounts. Both the chief executive officer and recording officer of the proposed corporate credit union must sign this certification.

(5) NCUA Form 9500—Application and Agreements for Insurance of Accounts. This document contains agreements FCUs must comply with in order to obtain NCUA insurance coverage of member accounts. The document must be completed and signed by both the chief executive officer and chief financial officer.

It is the responsibility of the corporate FCU organizers to ensure that the proposed corporate FCU name does not constitute an infringement on the name of any corporation in its trade area. This responsibility also includes researching any service marks or trademarks used by any other corporation (including credit unions) in its trade area. NCUA will ensure, to the extent possible, that the corporate credit union's name:

• Is not already being officially used by another FCU;

• Will not be confused with NCUA or another federal or state agency, or with another credit union; and

• Does not include misleading or inappropriate language.

The last three words in the name of every credit union chartered by NCUA must be “Federal Credit Union.”

OCCU will conduct an independent investigation of the corporate credit union's charter application to assess the economic and long-term viability of the proposed corporate credit union. OCCU field staff will conduct the review and, if necessary, perform an on-site contact with selected officials and others having an interest in the proposed corporate credit union.

The review will include evaluation of proposed management's experience and suitability, commitment of proposed officials, and assessment of economic viability. OCCU field staff may also be called upon to assist subscribers in the proper completion of required forms and the Organization Certificate—NCUA Form 4008.

OCCU field staff will thoroughly analyze the prospective corporate credit union's business plan for realistic projections, attainable goals, and time commitment. Any concerns will be reviewed with the subscribers and discussed with prospective officials.

NCUA will follow the timeline set forth below in processing corporate charter applications:

1. Within 30 days of receipt of the charter package, OCCU field staff will meet with the proposed officials and management team to evaluate the adequacy of management and the information provided and to discuss the FCU's ability to begin operations and meet their financial projections if the charter is approved.

2. On completion of all required reviews, but no later than 60 days after the meeting described above, OCCU field staff will make a recommendation to the OCCU Director regarding the charter application. The recommendation may include provisional requirements to be completed prior to final approval of a corporate FCU charter.

3. Within 30 days of receiving OCCU field staff recommendation, an OCCU analyst will determine if the application package can be forwarded to the NCUA Board for appropriate action, or if it should be returned to the subscribers. The subscribers will receive written notification of this decision.

4. Within 60 days after receipt of a complete application that addresses all of OCCU's concerns, the NCUA Board will vote on the proposed charter. If the charter is approved, the officials must sign a “Letter of Understanding and Agreement” (LUA) before the corporate credit union can commence operations. This LUA will impose certain operational restrictions, require compliance with NCUA's Rules and Regulations and adoption of the standard Corporate FCU Bylaws, and contain several financial performance milestones that the new charter must meet, consistent with Part 704.

If NCUA approves the charter application, the subscribers, as their final duty, will elect the board of directors for the newly chartered corporate FCU. The new board of directors will subsequently appoint the supervisory committee. The corporate FCU must then submit a report of officials to OCCU.

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-2010-0952; Directorate Identifier 2010-NM-131-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.

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 EASA Airworthiness Directive 2010-0089, dated May 10, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a regulation titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, this rule included Special Federal Aviation Regulation No. 88 (“SFAR 88,” Amendment 21-78, and subsequent Amendments 21-82 and 21-83).

Among other actions, SFAR 88 requires certain type design (i.e., type certificate (TC) and supplemental type certificate (STC)) holders to substantiate that their fuel tank systems can prevent ignition sources in the fuel tanks. This requirement applies to type design holders for large turbine-powered transport airplanes and for subsequent modifications to those airplanes. It requires them to perform design reviews and to develop design changes and maintenance procedures if their designs do not meet the new fuel tank safety standards. As explained in the preamble to the rule, we intended to adopt airworthiness directives to mandate any changes found necessary to address unsafe conditions identified as a result of these reviews.

In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: single failures, single failures in combination with a latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.

The Joint Aviation Authorities (JAA) has issued a regulation that is similar to SFAR 88. (The JAA is an associated body of the European Civil Aviation Conference (ECAC) representing the civil aviation regulatory authorities of a number of European states who have agreed to co-operate in developing and implementing common safety regulatory standards and procedures.) Under this regulation, the JAA stated that all members of the ECAC that hold type certificates for transport category airplanes are required to conduct a design review against explosion risks.

We have determined that the actions identified in this AD are necessary to reduce the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.

Airbus has issued the service information identified in the table below.

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 the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an 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.

Based on the service information, we estimate that this proposed AD would affect about 53 products of U.S. registry. We also estimate that it would take about 5 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 $0 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $22,525, or $425 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:

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-2010-0955; Directorate Identifier 2010-NM-013-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We have lengthened the 30-day comment period for proposed ADs that address MCAI originated by aviation authorities of other countries to provide adequate time for interested parties to submit comments. The comment period for these proposed ADs is now typically 45 days, which is consistent with the comment period for domestic transport ADs.

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 EASA Airworthiness Directive 2009-0266, dated December 17, 2009 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

328 Support Services GmbH has issued Service Bulletins SB-328-27-488 (for Model 328-100 airplanes), and SB-328J-27-237 (for Model 328-300 airplanes), both dated August 25, 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 the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an 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.

Based on the service information, we estimate that this proposed AD would affect about 33 products of U.S. registry. We also estimate that it would take about 6 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 $2,252 per product. Where the service information lists required parts costs that are covered under warranty, we have assumed that there will be no charge for these costs. As we do not control warranty coverage for affected parties, some parties may incur costs higher than estimated here. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $91,146, or $2,762 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:

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-2008-1098; Directorate Identifier 2008-NM-108-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.

We issued a notice of proposed rulemaking (NPRM) (the “original NPRM”) to amend 14 CFR part 39 to include an airworthiness directive (AD) that would apply to certain Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747SR, and 747SP series airplanes. That original NPRM was published in the Federal Register on October 16, 2008 (73 FR 61369). That original NPRM proposed to require adding two new indicator lights on the P10 panel to inform the captain and first officer of a low pressure condition in the left and right override/jettison pumps of the center wing tanks. The original NPRM also proposed to require replacing the left and right override/jettison switches on the M154 fuel control module on the P4 panel with improved switches and doing the associated wiring changes. The original NPRM also proposed to require a revision to the maintenance program to incorporate airworthiness limitation No. 28-AWL-22.

We gave the public the opportunity to participate in developing this AD. We considered the comments received from the two commenters.

Boeing requests that the original NPRM be revised to add a requirement to revise Section 3, “Normal Procedures,” of the AFM to require actions by the flight engineer in the event that the pump low pressure light on the flight engineer's panel does not illuminate when the pump is selected off.

We agree that this supplemental NPRM should be revised to require including this information in the AFM. However, we disagree with the specific wording and AFM section proposed by Boeing. In evaluating Boeing's request, we found that there are two causes for an override/jettison pump to run dry. The actions proposed by the original NPRM were intended to prevent an uncommanded-on event that could result in the override/jettison pump running dry, which could lead to an ignition source in the center wing fuel tank. We found that the original proposed actions would address events where the pumps run dry for extended periods of time as might happen when the flight engineer does not shut off the pump at the appropriate time.

However, since the cause of the uncommanded-on event still exists, we find that the AFM must be revised to provide instructions to the flightcrew in the event of a relay failure which leaves the fuel pump powered on after the pump has been switched off (uncommanded-on). We have determined that more precise wording must be used in the supplemental NPRM and that the wording should be added to Section 1, “Certificate Limitations,” of the AFM.

Therefore, we have added a new paragraph (i) to this supplemental NPRM and re-identified subsequent paragraphs. We have also revised the Costs of Compliance section of this supplemental NPRM to include the estimated costs for this new action. In addition, we revised the unsafe condition statement to include the additional cause.

Northwest Airlines (NWA) requests that we reference updated service information ( i.e., Boeing Service Bulletin 747-28A2288, Revision 1, dated January 21, 2010), instead of Boeing Alert Service Bulletin 747-28A2288, dated March 20, 2008, which was referenced in the original NPRM as the appropriate source of service information for doing the required actions. NWA notes that steps 3.B.46.b.(1) through 3.B.46.b.(11) of Boeing Alert Service Bulletin 747-28A2288, dated March 20, 2008, do not state when the two new installed LOW PRESS lights on the P10 panel come on. NWA explains that if the LOW PRESS lights on the P10 panel are not wired correctly, and those steps are used, the lights could be illuminated properly in the `Test' mode, but might not illuminate in the actual non-`test' mode with the override/jettison pump switch in the ON position. NWA states that Boeing responded to this concern and stated that the original issue of the alert service bulletin would be revised and would reference actions that are the same as those provided in AWL No. 28-AWL-22 for the functional tests.

Since we published the original NPRM, Boeing has published Boeing Service Bulletin 747-28A2288, Revision 1, dated January 21, 2010. We agree to reference the updated service bulletin as the appropriate source of service information for accomplishing the installation of indicator lights and replacement of switches required by this supplemental NPRM. Boeing has clarified Steps 3.B.44.b.(1) through 3.B.44.b.(11) of Boeing Service Bulletin 747-28A2288, Revision 1, dated January 21, 2010.

In addition, Boeing has also included installation instructions (which include installing a mounting bracket) of the LOW PRESS indicator lights for airplanes that do not have the warning panel ( i.e., the P10 panel) installed, and revised the airplane groups.

We have revised paragraphs (c) and (g) of this supplemental NPRM to reference Boeing Service Bulletin 747-28A2288, Revision 1, dated January 21, 2010. For certain airplanes, we also revised paragraph (g) of this supplemental NPRM to require adding a mounting bracket.

Boeing requests that we revise the Summary and Discussion sections of the original NPRM to add additional detail to the description of required actions.

For the Summary section, Boeing suggests that the text be revised to point out:

• The redundancy in functionality between the two P4 panel indicator lights and the new indicator lights added to the P10 panel;

• The different configurations of the P10 panel (which means that for some airplanes, a bracket would also be installed to provide a mounting surface for the new indicator lights); and

• To explain which flightcrew member is responsible for responding to indications of a pump uncommanded-on event.

For the Discussion section, Boeing also suggests that the text be revised to point out the redundancy in functionality between the two P4 panel indicator lights and the new indicator lights added to the P10 panel. Boeing suggests that, in addition, the text should be revised to provide further details on the similarities and differences between the indicator lights on the P10 and P4 panels; information on a switch replacement for the P4 panel; and further detail on how and when the indicator lights turn on and off along with a detailed description of how a flight engineer should respond to the indicator lights.

We agree that the sections of text need to be clarified. The Summary section of an AD is intended to provide only a brief summary of the AD. Therefore, we have not revised the Summary section of this supplemental NPRM. Also, while the Discussion section is the appropriate section for the detailed information that Boeing proposes, the Discussion section from the original NPRM is not repeated in this supplemental NPRM.

NWA requests that the work-hour estimate to accomplish the original NPRM be increased from the 28 work-hours estimated in the original NPRM to 56.75 work-hours. NWA states that Boeing Alert Service Bulletin 747-28A2288, dated March 20, 2008, does not include a work-hour estimate for accomplishing access and closeup actions provided in BAE Service Bulletin 65B46124-28-03, dated March 28, 2007. NWA points out that the BAE service bulletins, referenced in the original NPRM (and the following table) as additional sources of guidance, provide an estimate of 10 work-hours for access and closeup actions.

We agree to revise the work-hour estimate. However, we do not agree to include incidental costs such as access and closeup. Boeing Service Bulletin 747-28A2288, Revision 1, dated January 21, 2010, provides an estimate of 28 work-hours to accomplish the proposed modification. The BAE service bulletins referenced in that Boeing service bulletin as additional sources of guidance each provide an estimate of 2 additional work-hours to accomplish the modification actions specified in Boeing Service Bulletin 747-28A2288, Revision 1, dated January 21, 2010. The cost analysis in AD rulemaking actions, however, typically does not include incidental costs such as the time required to gain access and closeup, time necessary for planning, or time necessitated by other administrative actions. Those incidental costs, which might vary significantly among operators, are almost impossible to calculate. We cannot provide specific information regarding the cost of parts from BAE to do the proposed modification. The parts costs will likely vary depending on the airplane group. However, we can reasonably estimate that the cost of the parts from BAE will be at least between $100 and $200 per airplane, depending on airplane group. We specifically invite the submission of comments and other data regarding the costs of this proposed AD.

We have revised the estimate to between 30 and 32 work-hours, depending on airplane group. Also, Boeing Service Bulletin 747-28A2288, Revision 1, dated January 21, 2010, revises the parts cost estimate provided in the original issue of that service bulletin. We have revised the parts costs estimate in the Costs of Compliance section of this supplemental NPRM accordingly.

AWL No. 28-AWL-22 of Section D of the Boeing 747-100/200/300/SP Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D6-13747-CMR, Revision March 2008, contains an incorrect section number. Where the AWL states “28-31-00,” the correct section number is “28-42-00.” Boeing is aware of this discrepancy and plans to issue a revision. We have included this information in paragraph (h) of this AD.

Boeing Service Bulletin 747-28A2288, Revision 1, dated January 21, 2010, contains an incorrect sub-section number and incorrect part numbers. Where Boeing Service Bulletin 747-28A2288, Revision 1, dated January 21, 2010, states “20-60-00,” the correct sub-section number is “28-60-06.” Where Figures 22 through 32 of Boeing Service Bulletin 747-28A2288, Revision 1, dated January 21, 2010, state certain part numbers for a nut, a bolt, and a washer (BACN10JC06CD, BACS12HN06-10, and NAS1149D0632J respectively), the correct part numbers are BACN10NW1, BACS12HN04-6 (for a screw instead of a bolt), and NAS1149DN416J, respectively. Boeing is aware of these discrepancies and plans to issue a revision. We have included this information in paragraph (g) of this AD.

We are proposing this supplemental NPRM because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design. Certain changes described above expand the scope of the original NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this supplemental NPRM.

We estimate that this proposed AD would affect 185 airplanes of U.S. registry. The average labor rate per work-hour is $85. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

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.

You can find our regulatory evaluation and the estimated costs of compliance 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:

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-2010-0953; Directorate Identifier 2010-NM-010-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.

We have received seven reports of cracks found on either the left or right (or in one case, both) sides of the center section ribs of the horizontal stabilizer. These cracks were located on the aft face of the hinge bearing lugs on the horizontal stabilizer. Cracks were reported on MD-90 airplanes that had accumulated 9,051 to 21,183 total flight hours, and 8,939 to 20,893 total flight cycles. The cause of the cracking has not been determined. Undetected cracking in the hinge bearing lugs of the center section of the left and right ribs, if not corrected, could result in failure of the hinge bearing lugs and consequent inability of the horizontal stabilizer to sustain the required loads.

We have reviewed Boeing Alert Service Bulletin MD90-55A016, Revision 1, dated February 17, 2010. Boeing Alert Service Bulletin MD90-55A016, Revision 1, dated February 17, 2010, describes procedures for doing repetitive high frequency eddy current (HFEC) inspections for cracking on the hinge bearing lugs on the aft face of the horizontal stabilizer center section on the left and right ribs, and doing applicable related investigative and corrective actions. The related investigative action is measuring the crack length. The corrective actions include blending out cracks and replacing the rib of the center section of the horizontal stabilizer. For airplanes on which a blend out is done, Boeing Alert Service Bulletin MD90-55A016, Revision 1, dated February 17, 2010, describes procedures for doing repetitive HFEC inspections for cracking of the blend out. For airplanes on which the replacement is done, Boeing Alert Service Bulletin MD90-55A016, Revision 1, dated February 17, 2010, describes procedures for doing repetitive HFEC inspections for cracking of the replaced horizontal stabilizer rib.

For the initial HFEC inspection, Boeing Alert Service Bulletin MD90-55A016, Revision 1, dated February 17, 2010, specifies a compliance time of before the accumulation of 7,200 total flight cycles or within 1,505 flight cycles after the original issue date of Boeing Alert Service Bulletin MD90-55A016, Revision 1, dated February 17, 2010, whichever occurs later.

We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Service Bulletin.”

For Condition 2A specified in Boeing Alert Service Bulletin MD90-55A016, Revision 1, dated February 17, 2010, the service bulletin specifies doing repetitive inspections of the blend out but did not identify corrective actions when cracks are found during those inspections. This proposed AD would require replacing the horizontal stabilizer center section rib when cracks are found during inspections of the blend out. We have coordinated this difference with Boeing.

For Condition 2B specified in Boeing Alert Service Bulletin MD90-55A016, Revision 1, dated February 17, 2010, the service bulletin specifies doing repetitive inspections of the replaced horizontal stabilizer center section rib at intervals not to exceed 1,680 flight cycles. This proposed AD would require doing an inspection of the replaced horizontal stabilizer center section rib and all applicable corrective actions and repetitive inspections (for Condition 1, the repetitive interval is 1,680 flight cycles; for Condition 2A, the repetitive interval is 400 flight cycles).

We consider this proposed AD interim action. The manufacturer is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, we might consider additional rulemaking.

We estimate that this proposed AD would affect 16 airplanes of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $2,720, or $170 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.

You can find our regulatory evaluation and the estimated costs of compliance 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:

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-2010-0951; Directorate Identifier 2010-NM-107-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.

We have received reports of a wire failure associated with the pilot and copilot circuit breaker panel that could result in toxic gases in the crew compartment. Wire damage caused by a short circuit and subsequent burning of wires have been reported on four Model 45 airplanes. In all four incidents, the wire damage was associated with the 28 volts direct current (VDC) power for the fire-suppression system. This condition, if not corrected, could result in wire damage caused by a short circuit, which could result in the loss of systems associated with the wiring (including fire suppression function for one engine and essential avionics systems).

We have reviewed Bombardier Alert Service Bulletin A40-24-11, dated November 16, 2009; and Bombardier Alert Service Bulletin A45-24-16, dated November 16, 2009. The service information describes procedures for doing a general visual inspection for damage of wiring (including chafing, pinched wires, and exposed wires) and correct routing of wires in the left and right circuit breaker panels, and related investigative and corrective actions, if necessary. The related investigative action is doing a general visual inspection for arcing damage on the mounting brackets of the forward circuit breaker panel. Depending on inspection findings, the corrective actions are replacing damaged (chafed, pinched, or exposed) wires, and re-routing any incorrectly routed wires; and contacting the manufacturer for repair instructions and doing the repair.

We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Service Bulletin.”

Although Bombardier Alert Service Bulletin A40-24-11, dated November 16, 2009; and Bombardier Alert Service Bulletin A45-24-16, dated November 16, 2009; specify that operators may contact the manufacturer for disposition of certain repair conditions, this proposed AD would require operators to repair those conditions using a method approved by the FAA.

We estimate that this proposed AD would affect 339 airplanes of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $28,815, or $85 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.

You can find our regulatory evaluation and the estimated costs of compliance 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:

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-2010-0954; Directorate Identifier 2010-NM-078-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.

We have received reports of missing sealant on the left and right pylon firewall structures. The sealant may not have been applied on the firewall at the seams in production. Pylon firewall structures that do not have this sealant do not meet the applicable design intent. In the event of an engine fire, flames could penetrate the seams in the firewall between the engine and the aft fuselage. Missing or inadequate sealant, if not corrected, combined with the event of an engine fire could result in an uncontrolled fire in the aft fuselage.

We have reviewed Hawker Beechcraft Mandatory Service Bulletin SB 54-3946, Revision 2, dated February 2010. This service bulletin describes procedures for doing an inspection of the left and right pylon for coverage of firewall sealant on the seams, and corrective actions. While Hawker Beechcraft Mandatory Service Bulletin SB 54-3946, Revision 1, dated May 2009, provides the procedures for doing the inspection of the left and right pylon for coverage of firewall sealant on the seams and applying sealant, it does not specify the dimensions of the sealant. Corrective actions include cleaning, sealing, or recoating affected areas; and recoating sealant. Figure 4 of Hawker Beechcraft Mandatory Service Bulletin SB 54-3946, Revision 2, dated February 2010, contains the specifications of the sealant depth.

We are proposing this AD because we evaluated all relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of these same type designs. This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between the Proposed AD and Service Information.”

Hawker Beechcraft Mandatory Service Bulletin SB 54-3946, Revision 2, dated February 2010, specifies a compliance time of the next scheduled inspection, but no later than 12 months after the date of the service bulletin revision. This proposed AD would require a compliance time of within 200 flight hours or within 12 months after the effective date of this AD, whichever occurs first. The service bulletin also does not specify what type of inspection to perform. This AD requires that a detailed inspection be performed.

We estimate that this proposed AD would affect 165 airplanes of U.S. registry. We also estimate that it would take about 1 work-hour per product to comply with this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this proposed AD to the U.S. operators to be $14,025, or $85 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.

You can find our regulatory evaluation and the estimated costs of compliance 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:

Under the authority of Section 810 of the United States Information and Educational Exchange Act of 1948, as amended, 22 U.S.C. 1475e, and the Independent Offices Appropriations Act of 1952 (IOAA), 31 U.S.C. 9701, and following the guidelines set forth in Office of Management and Budget (OMB) Circular No. A-25, user fees for Exchange Visitor Program Services were adopted for the first time in 2000. Regulations adopting sufficient fees to recover the full cost of its administrative processing of requests for designation, redesignation, and for requests by program participants for certain services for which application is required were adopted. OMB Circular No. A-25 directs the Agency review of fees and services every two years.

The current fee for an application for designation or an application for redesignation is $1,748.00 and the fee for foreign national exchange participants requesting individual program services, including a change of program category, program extension, reinstatement, etc. is currently $246.00 per request. The Department proposes amendment of both fees to: $2,700 and $233.00 respectively. The new proposed fee for either program designation or redesignation will increase by $952 (redesignation is required every two years) while the fee assessed program participants will decrease by $13.00. The increase in program designation and redesigantion requests is necessary to recoup the costs of application reviews, requests for amendments to program designations, and allotment requests, as well as the cost for enhanced compliance programs, regulatory review and development, outreach and general program administration, as explained below. These changes are necessary because the current fee for program designation and redesignation applications was calculated on a unit cost basis that assumed and projected a larger number of such applications than has proven to be received.

The Fulbright-Hays Act is the organic legislation underpinning the entire Exchange Visitor Program. Section 101 of that Act sets forth the purpose of the Act, viz., “to enable the Government of the United States to increase mutual understanding between the people of the United States and the people of other countries by means of educational and cultural exchange * * * .” The Act authorizes the President to provide for such exchanges when he considers that it would strengthen international cooperative relations. The language of the Act and its legislative history make it clear that Congress considered international educational and cultural exchanges to be a significant part of the public diplomacy efforts of the President in connection with his Constitutional prerogatives in conducting foreign affairs.

On September 27, 1999, the United States Information Agency (USIA) issued an interim final rule on the adoption of fees for all requests for an extension, change of category, reinstatement, or program designation as well as for non-routine requests for the then Form IAP-66. This rule was to be effective on January 1, 2000. The September 27, 1999 interim final rule was amended by a rule dated October 7, 1999 (4 FR 54538), and also by a second rule dated January 5, 2000 (65 FR 352). Those amendments were required due to the consolidation of USIA into the Department of State.

User fees were adopted for the first time under the authority of Section 810 of the United States Information and Educational Exchange Act of 1948, as amended, 22 U.S.C. 1475e, and the Independent Offices Appropriations Act of 1952 (IOAA), 31 U.S.C. 9701, and following the guidelines set forth in Office of Management and Budget (OMB) Circular No. A-25. Following the consolidation of USIA operations and two regulatory amendments, the Interim Final Rule and the fees established under this rule became Final on April 14, 2000, 65 FR 20083.

In 2006, the Department examined its current Exchange Visitor Program fee structure for compliance with applicable laws and policies, and to determine the appropriate level of fees given the expansion of the offices providing services. This analysis was grounded on the guiding principles set forth in the legislative framework and authorities cited above, namely, that user fees should be fair and reflect the full cost to perform the service; and that services performed on behalf of distinct, identifiable beneficiaries (versus the public at large) should, to the extent possible, be self-sustaining. As a result of the review, it was determined that both additional fee categories and increased fees were required, and the Department published a final rule on November 1, 2007 (72 FR 61800), which became effective December 3, 2007.

The 2007 fee rule identified the program redesignation process as a separate and identifiable service for which the cost of such service should be recouped. This fee is collected from some 1226 academic, governmental, and private sector sponsor organizations. This fee also includes the cost of services arising from a program sponsor's requests for amendments to programs, allotment requests, and updates of information, as well as the costs for program compliance, regulatory review and development, outreach, and general program administration. Also established in the 2007 fee rule were fees charged to foreign national exchange participants for services provided on an individual basis and for the sole benefit of the exchange participant. (i.e., requests for exchange visitor status changes of program category, extension beyond maximum duration, requests for reinstatement, requests to update the Student and Exchange Visitor Information System (SEVIS) status, and similar requests). The fees received for these individual services also include an apportioned share of costs for regulatory review and development, outreach, and general program administration.

The Department began its biennial review of these established fees in 2009 by publishing a solicitation for services to conduct a fee study. Deloitte and Touche was awarded a contract. The new proposed fee structure was conducted under the guidelines set forth in OMB Circular A-25, as well as the Statement of Federal Finance and Accounting Standards No. 4 (SFFAS 4). In accordance with SFFAS 4, the Department used an “activity-based costing” (ABC) approach to develop a sustainable cost model to align the costs of the program to the specific services performed on behalf of program sponsors and other program stakeholders. Activity-based costing is a method of identifying the work that is performed, how resources are consumed by that work, and how that work contributes to the production of required outputs. The ABC methodology enabled the development of a bottom-up budget that factored in forecasts for expected demand of program services in the years when the fees are effective and would provide the program with adequate resources to meet that future program demand. This fee study relates only to services provided in the administration of the Exchange Visitor Program. The fee study is available for review at http://exchanges.state.gov/jexchanges.

One of the most critical elements in building the cost models to determine user fees is to identify all of the sources and the appropriate amounts of costs to be included in the analysis. According to the legislative and regulatory guidance as documented in the legal framework, user charges should be based on the full cost to the government of providing the services or things of value. OMB Circular A-25 defines full cost as all direct and indirect costs to any part of the Federal government of providing a good, resource, or service. These costs include, but are not limited to, an appropriate share of:

• Direct and indirect personnel costs, including salaries and fringe benefits such as medical insurance and retirement.

• Physical overhead, consulting, and other indirect costs including material and supply costs, utilities, insurance, travel, and rents or imputed rents on land, buildings, and equipment.

• Management and supervisory costs.

• Costs of enforcement, collection, research, establishment of standards, and regulation, including any required environmental impact statements.

The generally accepted government accounting practices for managerial cost accounting, published in SFFAS 4, provide the standards for cost definition, recognition, accumulation and assignment as they relate to the recognition of full cost. These standards have been applied to the determination of what costs to include in or exclude from the Exchange Visitor Program fees.

In summary, the Cost Accounting Model takes cost data input into the “Civilian Pay Cost Data”, “Activity Model Cost Pools”, and “Other Cost Pools” modules, assigns direct costs or allocates indirect and General and Administrative (G&A) costs using ratios derived from the “SEVIS & FTE (Full Time Equivalent) Data” module, and then uses the direct, indirect, and G&A cost pools to calculate the two recommended user fees for the Fiscal Year (FY) 2011-2012 time frame.

The Cost Accounting Model contains eleven modules described in detail in the following sections. Most modules include an FY 2011 tab and an FY 2012 tab, given the need to enter separate data for each fiscal year. The three modules that only have one tab are “Home”, “SEVIS & FTE Data”, and “Final EVP Fees FY 2011-2012”. The modules are sequenced to follow the general flow of calculations performed by the model.

The “Home” module is displayed when the user opens the model. This module also provides hyperlinks to support navigation to the other areas of the model.

This module allows the user to enter Civilian Pay data for Private Sector Exchange personnel by General Schedule (GS) Level. The Civilian Pay data entered is then escalated for benefits. This calculation is detailed further in the Cost Accounting Model Data Sources section.

This module allows the user to enter Labor Survey results by personnel position in the form of percentages. It then multiplies those percentages by the escalated salary calculated in the “Civilian Pay Cost Data” module to create Activity Model Cost Pools. Finally, this module includes a self-check feature to verify the completeness and accuracy of user entries.

This module allows the user to enter all other costs associated with the EVP, including the following:

• Bureau of Educational and Cultural Affairs, Private Sector Exchange (ECA/EC) non-labor costs

• Bureau of Educational and Cultural Affairs (ECA) labor costs

• Bureau of Educational and Cultural Affairs (ECA) non-labor costs

• Department of State labor costs

• Department of State non-labor costs

There is only one tab for the “SEVIS & FTE Data” module. It allows the user to input SEVIS historical data for Calendar Year (CY) 2007 through CY 2009, as well as FY 2008 and FY 2009 FTE historical data for the following organizational areas:

• Bureau of Educational and Cultural Affairs, Private Sector Exchange, Office of Designation (ECA/EC/D) and Office of Exchange Coordination and Compliance (ECA/EC/ECC)

• Human Resources

• Support Services

• IIP Budget Office (Bureau of International Information Programs)

• ECA Budget Office

• Program Management Office

• Bureau of Educational and Cultural Affairs (ECA)

• Department of State

It then uses these inputs to calculate SEVIS activity projections for Applications for Designation, Applications for Redesignation, and Exchange Visitor Administration Applications for CY 2010 through CY 2012, and FTE projections for FY 2011 and FY 2012. SEVIS and FTE data projections are necessary to create ratios for indirect and G&A cost allocation to each fee later in the model.

This module pulls the data from the previous modules in order to assign direct costs or allocate indirect or G&A costs to each fee. The method for allocating indirect and general and administrative (G&A) cost took into account the volume of services supported by each user fee in terms of SEVIS activity counts. These activity counts can also be viewed as the services procured by the user fees. The method in which the cost is allocated varies by cost pool:

(1) For direct costs, the full cost is assigned to the fee for which it is determined to be a direct cost.

(2) For indirect costs, the full cost in each indirect cost pool is split and each portion is then assigned to the appropriate user fee. This splitting and assignment process is also referred to as cost allocation. This process is accomplished by multiplying the total indirect cost by the ratio of Total Fee-Related SEVIS Activity Counts to Total SEVIS Activity Counts. For example, in order to determine the amount of an indirect cost to be applied to the Application Fee, the full indirect cost was multiplied by the ratio of Total Application Fee-Related SEVIS Activity Counts to Total Activity Counts. This allocates the appropriate fraction of the total indirect cost to the Application Fee. The same would be done with the ratio of Total Administrative Fee-Related SEVIS Activity Counts to Total Activity Counts to determine the complimentary fraction of the indirect cost to be allocated to the Administrative Fee. In so doing, the full indirect cost is appropriately allocated to the two user fees.

For G&A cost, not all G&A cost is allocated to the two EVP user fees since G&A costs support the entire Department not just the cost of the activities supporting the EVP. Deloitte allocated appropriate portions of total G&A cost to the EVP by either FTE ratios or manual percentage as follows:

• For ECA/EC non-labor G&A costs, the full cost was multiplied by the ratio of ECA/EC/D and ECA/EC/ECC FTEs plus the Bureau's Executive Office FTEs to ECA FTEs.

• For ECA labor G&A costs, two separate methods were applied:

• For ECA non-labor G&A costs, the full non-labor G&A cost was multiplied by the ratio of ECA/EC/D and ECA/EC/ECC FTEs to ECA FTEs.

• For Department labor and non-labor G&A costs, the full non-labor G&A cost was multiplied by the ratio of ECA/EC/D and ECA/EC/ECC FTEs to Department FTEs.

After completing the calculations just described, the resulting portions of the full G&A costs are allocated to each of the fees in the same way indirect costs are allocated, using SEVIS activity ratios.

The following information depicts the above described assignment and allocation of costs.

This module pulls data from the “Cost Assignment & Allocation” module and groups it into total direct, indirect, and G&A cost pools. It then divides each of those cost pool amounts by the total projected SEVIS activity units to determine each fee's direct, indirect, and G&A components. It also sums each of these cost components to provide the total for each user fee for FY 2011 and FY 2012. Finally, this module includes a self-check feature to verify the completeness and accuracy of user entries.

This module adds the total costs and SEVIS Activity Units for FY 2011 and FY2012 from the “User Fee Cost Pools” module in order to provide fees that are based on a two-year fee lifecycle consistent with the EVP regulatory framework requiring current Program Sponsors to apply for Redesignation status every two years. It also includes a self-check feature to verify the completeness and accuracy of user entries.

For the data input in the “Civilian Pay Cost Data” module, ECA provided Deloitte with each ECA/EC/D and ECA/EC/ECC employee's GS level, and then Deloitte used the Step 5 salary assumption for each level to determine the salary to be entered for each employee. This figure was then escalated by 36.25% to capture benefits. This percentage is the guidance given for average benefits escalation in OMB Circular A-76 Performance of Commercial Activities, Attachment C—Calculating Public-Private Competition Costs.

The only data input in the “Activity Model Cost Pools” module is the Labor Survey results. This input was accomplished by converting the hours each respondent recorded for their position and for each activity they performed during the Labor Survey into percentages of FTEs.

For the data input in the “Other Cost Pools” module, ECA provided Deloitte with budgetary data.

• Deloitte used the following methods to derive ECA/EC non-labor costs:

• Deloitte used the following methods to derive ECA labor costs:

• For ECA non-labor costs, ECA/EC approved the use of the FY 2010 estimates projected by Grant Thornton in its 2006 Exchange Visitor Program Fee Study—Final Report (Draft). This figure was then escalated by 3% per year for FY 2011 and FY 2012 estimates.

• For Department labor costs, Deloitte assumed GS-15, Step 5 pay with 36.25% benefits escalation for all Categories. These figures were then escalated by 3% per year for FY 2011 and FY 2012 estimates.

• For Department non-labor costs, Deloitte obtained the Total Department-wide GSA Rents from the Department of State Budget in Brief—Fiscal Year 2010. This figure was then escalated by 3% per year for FY 2011 and FY 2012 estimates.

ECA/EC provided Deloitte with historical CY 2007 through CY 2009 SEVIS activity counts associated with each user fee, as well as historical ECA and ECA/EC FTE counts. Deloitte obtained historical Department FTE levels from the Department of State Congressional Budget Justification—Fiscal Year 2010. Deloitte used this data to determine projected SEVIS and FTE data in the following manner:

• For all FTE data projections, Deloitte obtained FY 2008-2010 Department FTE levels from the Department of State Congressional Budget Justification—Fiscal Year 2010. Deloitte calculated a 6.91% average growth rate from FY 2008 through FY 2010 for Department total FTEs. For fiscal years in each of the below organizational areas where FTE data was unavailable, each was projected using this 6.91% growth rate year over year. ECA/EC approved of this projection method.

Deloitte, in close consultation with ECA/EC/D and ECA/EC/ECC, developed a travel cost estimate for Site Visits and On-site Reviews. These two general categories of travel by government officials to Program Sponsor locations will be performed during the FY 2011 and FY 2012 time frame for which the user fees recommended in this report are effective. Site Visits are performed by government officials with entities applying for Designation as an EVP Sponsor. On-site Reviews will take the form of a Liaison Visit, a Redesignation Review, or a Compliance Review. These three types of On-site Reviews are covered in more detail below. Site Visits and On-site Reviews, which will be the responsibility of ECA/EC/D and ECA/EC/ECC respectively, require travel to the potential sponsor or sponsor's place of business. In addition to travel to the sponsors' offices, pre-planning analysis and post-travel reporting will be completed.

In developing the Site Visit Travel Cost Estimate, Deloitte took the top 25 states by Program Sponsor activity (exchange visitor participant) levels as recorded in SEVIS. In addition to using the top 25 states, Deloitte also included other states to provide an accurate picture across the United States. These assumptions were made because, unlike the On-site Review process, Site Visits are planned for entities applying for Designation. Since the cities and states where the potential Program Sponsors will come from are unknown, this method was developed to provide an accurate estimate for costs, while capturing most of the states.

Deloitte mapped appropriate city and state locations based on the above analysis and in consultation with ECA/EC for use in determining per diem, airfare, car rental, and miscellaneous costs in the same manner as the On-site Review Travel Cost Estimate. Deloitte escalated FY 2011 and FY 2012 by 3% to give a more accurate cost for those fiscal years.

Through discussions with ECA/EC, Deloitte set the number of Site Visit travelers to two per trip and concluded that the travelers would range from the GS 9 to 14 levels and include Program Specialists, Program Coordinators and Program Officers. Deloitte also concluded that procedures for pre-visit preparations would also be developed in close coordination with knowledgeable Program Officers and Compliance Officers.

The On-site Review travel cost estimate is based on visiting the top 20 Private Sector Program Sponsors and the top 20 Academic and Government Program Sponsors according to Program Sponsor activity (exchange visitor participant) levels as documented in SEVIS.

Deloitte determined roundtrip airfare, per diem, rental car, and miscellaneous expense costs for single or multiple destination trips. Deloitte used the per diem rates for FY 2010 found on the GSA Web site. Deloitte also conducted research for roundtrip airfare and car rental prices using the kayak.com search engine. Deloitte added all costs, including a set cost for miscellaneous items to cover fees for airline tickets, copying, business calls, etc., to provide a total trip cost. Total trip costs were added together to provide a Total Travel Cost Estimate. Deloitte escalated FY 2011 and FY 2012 per diem rates as well as airfare and car rental prices by 3% each year to provide a more accurate cost for those fiscal years.

The number of travelers for On-site Reviews depends largely on the type of visit or the Program Sponsor. The three types of On-site Reviews that any given sponsor could receive are:

• Liaison Visits

• Redesignation Reviews

• Compliance Reviews.

The primary purpose of a Liaison Visit is to provide ECA/EC with an opportunity for outreach and consultation with Program Sponsors. GS levels of staff conducting these types of visits can vary depending on the purpose of visit and the size of the Program Sponsor. Liaison Visits should include meeting key Program Sponsor staff and touring facilities, and they may last from a half day to one full day. Staff conducting these visits may range from the GS 12 to GS 15 levels, depending on the primary purpose.

The primary purpose of a Redesignation Review is to determine the Program Sponsor's continued eligibility and/or suitability as a designated sponsor. Redesignation Reviews may last from one to two days and should require the participation of both one or more Program Officers and one or more Compliance Officers, usually at the GS 12 to 13 levels, but may also include the GS 9 to 11 levels and the GS 14 level.

The primary purpose of a Compliance Review is to visit Program Sponsors whose performance and compliance with program regulations has come under question. Experience shows that Compliance Reviews may last from two to five days and usually require the participation of both one or more Program Officers and one or more Compliance Officers, with perhaps a supporting Program Coordinator or Program Specialist.

The Department of State is of the opinion that the Exchange Visitor Program is a foreign affairs function of the U.S. Government and that rules implementing this function are exempt from § 553 (Rulemaking) and § 554 (Adjudications) of the Administrative Procedure Act (APA). The U.S. Government supervises programs that invite foreign nationals to come to the United States to participate in exchange visitor programs, either directly or through private sector program sponsors or grantees. When problems occur, the U.S. Government often has been, and likely will be, held accountable by foreign governments for the treatment of their nationals, regardless of who is responsible for the problems.

The purpose of this rule is to set the fees that will fund the office Exchange Visitor Program services to 1,226 sponsor organizations and 350,000 exchange Visitor Program participants. These services include oversight and compliance with program requirements as well as the monitoring of programs to ensure the health, safety and well-being of foreign nationals entering the United States (these exchange programs and participants are often funded by the U.S. Government) under the aegis of the Exchange Visitor Program and in furtherance of its foreign relations mission. The Department of State represents that failure to protect the health and well-being of these foreign nationals and their appropriate placement with reputable organizations will have direct and substantial adverse effects on the foreign affairs of the United States.

Although the Department is of the opinion that this rule is exempt from the rulemaking provisions of the APA, the Department is publishing this rule as a proposed rule, with a 60-day provision for public comment and without prejudice to its determination that the Exchange Visitor Program is a foreign affairs function.

As discussed above, the Department believes that this proposed rule is exempt from the provisions of 5 U.S.C. 553, and that no other law requires the Department to give notice of proposed rulemaking. Accordingly the Department believes that this proposed rule is not subject to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601, et seq. ) or Executive Order 13272, § 3(b).

Nevertheless, the Department has examined the potential impact of this proposed rule on small entities. Entities conducting student exchange programs are classified under code number 6117.10 of the North American Industry Classification System. Some 5,573 for-profit and tax-exempt entities are listed as falling within this classification. Of this total number of so-classified entities, 1,226 are designated by the Department of State as sponsors of an exchange visitor program, designated as such to further the public diplomacy mission of the Department and U.S. Government through the conduct of people to people exchange visitor programs. Of these 1,226 Department designated entities, 933 are academic institutions and 293 are for-profit or tax-exempt entities. Of the 933 academic institutions designated by the Department, none are believed to meet the definition of small entity for Regulatory Flexibility Act analysis purposes. The RFA utilizes the SBA's definition of “small entities” for educational institutions, which are for-profit entities that have annual revenues of less than $7 million. The RFA defines “small organizations” as any not-for-profit educational institution that is independently owned or operated and not dominant in its field. Of the 293 for-profit or tax-exempt entities designated by the Department, 131 have annual revenues of less than $7 million, thereby falling within the analysis purview of the Regulatory Flexibility Act. Although, as stated above, the Department is of the opinion that the Exchange Visitor Program is a foreign affairs function of the United States Government and, as such, that this proposed rule is exempt from the rulemaking provisions of section 553 of the APA, given the projected costs (detailed below) to the approximately 131 small entities designated to conduct exchange visitor programs, the Department has determined that this proposed rule will not have a significant economic impact on a substantial number of small entities. The Department asks the public to comment on the agency's estimates of the numbers of small entities and/or the economic impact of this rule on small businesses.

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

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Section 5 of Executive Order 13175 do not apply to this rulemaking.

This proposed rule is not a major rule as defined by 5 U.S.C. 804 for the purposes of Congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-808). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

As discussed above, the Department is of the opinion that the Exchange Visitor Program is a foreign affairs function of the United States Government and that rules governing the conduct of this function are exempt from the requirements of Executive Order 12866. However, the Department has nevertheless reviewed this proposed regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order. The Department has examined the economic benefits, costs, and transfers associated with this proposed rule, and declares that educational and cultural exchanges are both the cornerstone of U.S. public diplomacy and an integral component of American foreign policy. Though the benefits of these exchanges to the United States and its people cannot be monetized, the Department is nonetheless of the opinion that these benefits outweigh the costs associated with this proposed rule. The Department projects the cost to the government of providing Exchange Visitor Program services to be $3.4 million annually. This rule will provide an estimated $3.4 million annually that will support the operations of the Office of Designation, including funds for designation and redesignation, for individual exchange participant services, and the appropriate share of costs for regulatory review and development, outreach, and general program administration. These costs are divided amongst the 1,226 designated sponsors who will account for $2.7 million of the total $6.8 million over the next two years, with foreign national exchange participants requesting individual-based program services accounting for the remaining $4.1 million. The actual increase in annual costs per designated sponsor is $462 which represents a total annual increase of $378,302. The cost to foreign national exchange participants requesting program services has been decreased by $13 per transaction. Though the costs are borne by sponsors and exchange visitors, a benefit-cost study considers these costs to be economic transfers, since money is “transferred” from sponsors and applicants to the Department of State, but society as a whole has not gained or lost any resources in this transaction. Thus, the Department of State has identified $3.4 million in economic transfers associated with this rule. The Department has not identified any monetized benefits or costs, though it believes that the revenue generated by these fees and charges will enable the Department to administer an effective program and is essential to continuing to support and strengthen the United States' foreign policy goal of promoting mutual understanding between the people of the United States and other countries.

The Department has reviewed this regulation in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

The information collection requirements contained in this proposed rulemaking are pursuant to the Paperwork Reduction Act, 44 U.S.C. chapter 35 and OMB Control Number 1405-0147, expiring on September 30, 2010.

Accordingly, 22 CFR part 62 is proposed to be amended as follows:

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

On July 1, 1987, EPA revised the national ambient air quality standards (NAAQS or “standards”) for particulate matter (52 FR 24634), replacing total suspended particulates as the indicator for particulate matter with a new indicator called PM 10 that includes only those particles with an aerodynamic diameter less than or equal to a nominal 10 micrometers. 1 In order to attain the NAAQS for 24-hour PM 10 , an air quality monitor cannot measure levels of PM 10 greater than 150 micrograms per cubic meter (µg/m 3 ) more than once per year on average over a consecutive three-year period. The rate of expected exceedances, therefore, indicates whether a monitor attains the air quality standard.

Most of Pinal County, Arizona, including the area that is the subject of today's action, was included in the “rest of state” area, which was designated “unclassifiable” for PM 10 by operation of law upon enactment of the 1990 amendments to the Clean Air Act (CAA or “Act”). 2 See section 107(d)(4)(B)(iii). The PM 10 designations established by operation of law under the CAA, as amended in 1990, are known as “initial” designations. The CAA grants EPA the authority to change the designation of, or “redesignate,” such areas in light of changes in circumstances. More specifically, CAA section 107(d)(3) authorizes EPA to revise the designation of areas (or portions thereof) on the basis of air quality data, planning and control considerations, or any other air-quality-related considerations that EPA deems appropriate. Pursuant to CAA section 107(d)(3), EPA in the past has redesignated certain areas in Arizona to nonattainment for the PM 10 NAAQS, including the Payson and Bullhead City areas. See 56 FR 16274 (April 22, 1991); and 58 FR 67334 (December 21, 1993).

As noted above, EPA has the authority under CAA section 107(d)(3) to redesignate areas (or portions thereof) on the basis of air quality data, planning and control considerations, or any other air-quality-related considerations. Last year, under CAA section 107(d)(3)(A), EPA notified the Governor of Arizona and tribal leaders of the four Indian Tribes (whose Indian country is located entirely, or in part, within Pinal County) that the designation for Pinal County, and any nearby areas that may be contributing to the monitored violations in Pinal County, should be revised. Our decision to initiate the redesignation process stemmed from review of 2006-2008 ambient PM 10 monitoring data from PM 10 monitoring stations within the county that showed widespread, frequent, and in some instances, severe, violations of the PM 10 standard. 3

Table 1, below, presents a summary of the latest available quality-assured PM 10 monitoring data (2007-2009). A map showing the location of the monitors is included in our Technical Support Document (TSD), contained in the docket for this rulemaking.

As shown in Table 1, the data from 2007-2009 reveal violations at the PM 10 monitors located in Queen Creek, Casa Grande, Coolidge, Cowtown (which is southeast of Maricopa), Maricopa, Stanfield, at the Pinal County Housing Complex (which is east of Casa Grande, roughly half-way between Coolidge and Eloy), and within the Gila River Indian Reservation. Expected annual exceedances (of the 150 µg/m 3 24-hour standard) at these monitoring sites range from two (at Coolidge) to more than 100 (at Cowtown). (For the purposes of comparison, the NAAQS is met when the 3-year average of the expected exceedances is equal to or less than one.) Maximum 24-hour concentrations measured at a number of these sites (such as Cowtown, Maricopa and Stanfield) can be more than two to three times the level of the standard. In light of the widespread, frequent, and severe violations of the PM 10 standard monitored at various monitoring sites in Pinal County, EPA continues to believe that the SIP planning and control requirements that are triggered by redesignation of an area to nonattainment for the PM 10 NAAQS would be the most appropriate means to ensure that this air quality problem is remedied.

Section III of this document describes the State of Arizona's recommendation with respect to the boundaries of this new PM 10 nonattainment area, and section IV of this document summarizes EPA's review of the State's recommendation and rationale for EPA's proposed boundaries. Section V describes the Indian Tribes' recommendations and our corresponding responses. Section VI describes our proposed action and the corresponding CAA planning requirements that would thereby be triggered.

Pursuant to section 107(d)(3)(B) of the Act, the Governor of Arizona responded to EPA's October 14, 2009 notification that the PM 10 designation of Pinal County, and any nearby areas that may be contributing to violations in Pinal County, should be revised. The Governor responded in a letter dated March 23, 2010 in which the Governor recommended a partial-county nonattainment area. 4

The boundaries of the prospective PM 10 nonattainment area recommended by the Governor of Arizona encompass a portion of central and western Pinal County, and form an area that resembles a backwards “L.”  5 See figure 2 of EPA's TSD for a map of both the State's recommended boundaries as well as EPA's proposed boundaries. The state-recommended area includes all or most of the cities of Maricopa, Coolidge, Casa Grande and the Pinal County portion of the town of Queen Creek, as well as the western-most portion of the town of Florence and the northern-most portion of the city of Eloy. It includes an area that at its western-most boundary includes nearly all of the City of Maricopa. The southern boundary is defined by a line that coincides approximately with Interstate 8. The area continues to the east for approximately 35 miles where it extends to the north, including portions of Florence and Coolidge, and the Pinal County portion of Queen Creek, and terminates just south of Apache Junction. The eastern boundary is defined by the north-south line between Townships 8E and 9E. The northern boundary follows the county line south from the Apache Junction area and then follows the boundary of the Gila River Indian Reservation to close back around to the recommended western boundary. See the Governor's March 23, 2010 letter for the legal description of the State's recommended boundaries by township and range and for an enclosed map illustrating this area.

In support of the Governor's recommendation, on March 26, 2010, the Arizona Department of Environmental Quality (ADEQ) submitted to EPA a technical report entitled, “Arizona Air Quality Designations, Technical Support Document, Boundary Recommendation for the Pinal County 24-hour PM 10 Nonattainment Area (March 15, 2010),” (herein referred to as ADEQ's “technical report”). ADEQ's technical report compiles and evaluates information addressing nine factors  6 derived from and discussed in EPA guidance on designation criteria; see citation on page 2 of ADEQ's technical report to Memorandum from Robert J. Meyers, EPA Acting Assistant Administrator, “Area Designations for the Revised 24-Hour Fine Particle National Ambient Air Quality Standard,” dated June 8, 2007.

ADEQ points to a number of elements that it believes support the recommended boundaries. Specifically, ADEQ claims that its recommended area would include: all of the violating monitors; the majority of PM 10 emissions generated within the county; the vast majority of the county's population; the rapidly growing urbanized and developed areas, high-traffic Interstate corridors and areas with the highest employment densities; the significant growth areas along Interstates 8 and 10; and the agricultural basin where stagnation conditions are known to impact PM 10 concentrations. ADEQ also believes that its recommended redesignation would maintain jurisdictional cohesiveness. To buttress its recommended exclusion of eastern Pinal County from the new nonattainment area, ADEQ compares these factors as they apply to western Pinal County with those for eastern Pinal County. ADEQ asserts that in contrast to the western portion of Pinal County, the eastern portion has no violating monitors, contains few emissions sources (other than certain major sources that are already included in an existing PM 10 nonattainment area), is largely undeveloped and has limited growth potential. As set forth below in more detail, while EPA believes this characterization applies to the eastern half of Pinal County, EPA also believes that the western portion that should be redesignated is far more extensive than the State's recommendation.

CAA section 107(d)(1)(A) generally defines a nonattainment area as any area that does not meet, or that contributes to ambient air quality in a nearby area that does not meet, the national primary or secondary ambient air quality standard for the relevant pollutant. Thus, in reviewing the State's recommended boundaries, EPA has considered not only areas where violations of the relevant NAAQS have been monitored, but also that contribute to such violations.

EPA guidance  7 provides for the use of “a qualitative analysis of the area of representativeness of the monitoring station, together with the consideration of terrain, meteorology, and sources of emissions * * *” in defining nonattainment area boundaries for PM 10 . Consistent with that guidance, EPA generally recommends that States identify nonattainment area boundaries based on the weight of evidence of the following factors and other relevant information:

Air Quality Data. ADEQ's technical report summarizes 2006-2008 PM 10 monitoring data from 12 monitoring sites within Pinal County. Most of the monitoring sites are located in the west central portion of the county (Maricopa, Cowtown, Stanfield, Casa Grande, Pinal County Housing Complex, and Coolidge). Two are located in the southern portion (Eloy and Pinal Air Park); two are located in the northern portion [Apache Junction and Combs School (located in Queen Creek)]; and two are located in the far eastern portion of the county (Riverside and Mammoth). The Apache Junction and Riverside monitoring sites are located within existing PM 10 nonattainment areas.

Based on 2006-2008 data, ADEQ finds six of the monitoring sites to be in violation of the PM 10 NAAQS. EPA has updated this monitoring information by reviewing 2007-2009 data. Although we find that these data are largely consistent with the data presented by ADEQ, the more recent data set shows seven violating monitors (not counting the PM 10 monitoring site on the Gila River Indian Reservation) rather than six. Coolidge is the additional monitoring site that is newly violating based on the more recent data set. In its technical report, ADEQ notes that its proposed boundaries include the locations of all of the violating monitors within Pinal County. While we agree that Arizona's proposed boundaries do in fact include all of the violating monitors ( i.e., other than the monitoring site located within the Gila River Indian Reservation and those located within existing PM 10 nonattainment areas), we disagree with ADEQ's contention that its proposed boundaries include all areas that do not experience violations but nonetheless contribute to the violations that are recorded at the monitoring sites based on an evaluation of the other eight factors as discussed in the following paragraphs.

Emissions Data. ADEQ developed an annual emissions inventory of PM 10 sources in the county for the year 2007 for the purpose of defining a boundary for the new nonattainment area. ADEQ's inventory relies on a number of different data sources, assumptions, and methods (including EPA's MOBILE model and compilation of emissions factors (AP-42)) to calculate annual PM 10 emissions in the county. ADEQ's inventory points to fugitive emissions from vehicular traffic on paved and unpaved roads as the single largest source category, followed in importance by agricultural sources (including concentrated animal feeding operations), industrial sources, and construction. ADEQ's technical report includes maps that show the relative distribution of emissions generated within the county using 4-kilometer grid cells. See in particular the following maps in the State's technical report: Figure 3-3 on page 8 (all PM 10 sources) and figure 3-4 on page 11 (paved and unpaved on-road sources). The maps show that PM 10 emissions in the county are concentrated in the western half of the county, with the highest emissions densities in the west central portion of the county. In contrast, the eastern half of the county (outside of the existing nonattainment areas) is characterized predominantly by the lowest category of emissions densities ( i.e., 0 to 20 tons per year per 4-kilometer grid). See page 8 of ADEQ's technical report.

While EPA finds that the PM 10 emissions inventory for Pinal County and ADEQ's corresponding maps are helpful in defining the boundaries of the new nonattainment area, we do not believe that they justify ADEQ's conclusions about its recommended boundaries. ADEQ claims that the emissions inventory and maps demonstrate that sources in the eastern and southern regions of the county do not “significantly contribute” to violations in the other regions of the county. See page ES-3 of ADEQ's technical report. EPA notes, however, that CAA section 107(d)(1)(A) defines a nonattainment area as one that does not meet, or that “contributes to” ambient air quality in a nearby area that does not meet the NAAQS. The definition of nonattainment areas is not limited to areas that, in ADEQ's words, “significantly” contribute to a violating area. Moreover, ADEQ's maps show that areas immediately to the east and south of the recommended area (but still within the western half of the county) include the same types of emissions sources, with similar emissions densities, as those that predominate within the recommended area. For example, figure 3-3 (page 8 of State's technical report) shows emissions densities similar to those estimated within the State's recommended boundaries to the east in Coolidge and Florence, as well as south to Eloy. In addition, figures 3-4, 3-7, and 3-10 (on pages 11, 14, and 17, respectively, of the State's technical report) illustrate the locations of unpaved roads (with average daily traffic volumes greater than 100) and show that higher relative concentrations of PM 10 emissions from such sources as vehicle entrainment of dust over paved and unpaved roads, tilling and harvesting, and concentrated animal feeding operations (CAFOs) extend to central, and south central Pinal County. Thus, the emissions inventory data and related maps do not support the State's recommended boundaries but rather argue for a larger nonattainment area consisting of the western half of the county.

In contrast, EPA's proposed boundaries include all of the areas for which emissions data show relatively higher PM 10 emissions from the types of sources contributing the most to the overall PM 10 emissions inventory. For instance, based on the information sources described above in the State's technical report, EPA's proposed boundaries include the areas of relatively higher emissions densities in and around Coolidge, Florence, and Eloy that reflect the same types of PM 10 -generating activities (vehicle entrainment of dust over paved and unpaved roads, tilling and harvesting, and CAFOs) as found within the smaller nonattainment area boundaries recommended by the State.

Population density, degree of urbanization, growth rate and patterns. This factor reflects EPA's belief that the size, density, and location of population can be indicative of emissions activity that contributes to violations of the PM 10 NAAQS in an area. ADEQ's technical report presents population growth and density figures for municipalities in Pinal County. The data show that Pinal County has grown dramatically over the past decade (nearly doubling from a population of approximately 180,000 in 2000 to nearly 360,000 in 2008). EPA independently collected and reviewed population-related information and notes that the populations of the largest cities and towns in the western half of the county, such as (the city of) Maricopa (2008 population of approximately 46,000), Casa Grande (41,000), Apache Junction (33,000), Florence (21,000), and Eloy (13,000), contrast sharply with much smaller populations in the largest cities and towns in the eastern half of the county, including Superior (3,000), Kearny (3,000), and Mammoth (3,000). See page 14 of EPA's TSD.

ADEQ also submitted maps showing population densities both under current conditions and projections for the year 2030 when the population of Pinal County is anticipated to exceed 1,000,000. Under existing conditions, higher population densities are found in the west central portion of the county, but there are also population centers in the northern (Apache Junction and Queen Creek) and southern portions (Eloy) of the county. ADEQ's maps show that future growth is expected to be concentrated in the Interstate 8 and 10 corridors, which extend through the west central and southern portions of the county, although a certain amount of growth is also expected in the Falcon Valley area farther to the east.

In its technical report, ADEQ concludes that the eastern and southern portions of the county are largely undeveloped and have very low population densities, and finds that this information provides support for the State's recommended boundaries. However, like the emissions data discussed above, we believe that the data do not justify the restricted nature of the State's recommended boundaries, which exclude much of the western half of the County. Specifically, EPA believes that the State's recommended exclusion of areas in the eastern and southern sections of the western half of the county is contradicted by evidence showing that land use development in Pinal County extends further east and south than the State's recommended boundaries. For example, the State's recommended boundaries fail to include the agricultural and more urbanized uses in and around Eloy and the future growth areas along the two Interstate corridors. See figures 3-13 and 3-14 from the State's technical report. In contrast, EPA's proposed boundaries would include all of the western half of Pinal County (excluding TON's main reservation and the Apache Junction portion of the Phoenix PM 10 nonattainment area) and thereby would include the areas with relatively higher population densities and most of the areas where significant levels of growth are expected.

Traffic and commuting patterns. This factor considers the commuting patterns of residents in, and commuters to, Pinal County. More specifically, this factor considers the number of commuters in each surrounding county who drive to Pinal County, the percent of total commuters in each county who commute to Pinal County, the percent of total commuters in each county who commute into the statistical area in which Pinal County is located, as well as the total vehicle miles traveled (VMT) for each county.

ADEQ's technical report (page 23) presents statistics from the 2000 census quantifying the number of commuters from each county within the State of Arizona to jobs within Pinal County, and the number of commuters residing in Pinal County to jobs in Maricopa and Pima counties. The data from 2000 indicate that approximately 10,000 commuters, or roughly 20% of total commuters to jobs within Pinal County, reside outside of Pinal County. Conversely, approximately 36,000 (roughly 80%) of commuters travel solely within Pinal County. Almost 80% of the out-of-county commuters reside to the north in Maricopa County, and nearly all remaining out-of-county commuters commuting to Pinal County reside to the south in Pima County. Moreover, nearly 40% of commuters residing in Pinal County work in either Maricopa or Pima counties, whereas 60% of commuters residing in Pinal County also work in Pinal County.

EPA independently reviewed these same data and observed that the principal route for traffic through Pinal County (serving in-county as well as out-of-county commuters) is Interstate 10, which bisects the western half of the county and connects metropolitan Phoenix (largely in Maricopa County) to the north with metropolitan Tucson (in Pima County) to the south. ADEQ cites traffic and commuting patterns as a factor supporting the exclusion of the eastern half of the county from the new nonattainment area. While EPA agrees that it is reasonable to distinguish between the eastern and western halves of the county, EPA believes that the data indicate that the entire western half of the county, and not a small portion of it, as the State recommends, should be redesignated to nonattainment. Thus, EPA finds that traffic and commuting patterns do not make a case for the state's recommendation, but rather lend support to the creation of a larger nonattainment area generally encompassing the western half of the County. See figure 3-17 from the State's technical report, which shows much higher employment densities projections for year 2030 in the western half of the county than those in the eastern half but which also show higher employment densities east and south of the State's recommended boundaries (but still within the western half of the county).

Meteorology. Generally, the analysis of meteorology looks to wind data for evidence that emissions originating from areas in certain locations relative to violating monitors may be more prone to contribute than emissions originating from sources located elsewhere. ADEQ's technical report describes the dynamics responsible for region-wide weather patterns and the associated winds blowing across Arizona, as well as the frequent occurrence of “drainage” winds, which occur when large-scale weather influences wane. ADEQ describes how steep pressure gradients result from strong high pressure building over the western United States and low pressure to the east. As the high pressure builds, a steep pressure differential is created that causes strong winds over Arizona to entrain and transport dust from in-county and out-of-county sources. These can cause elevated PM 10 concentrations. ADEQ also notes however, that not all exceedances of the PM 10 standard are wind-related and that stagnation conditions in the fall and winter occur when cold air and the absence of winds trap ambient PM 10 in the lower atmosphere. ADEQ notes that the region of the county most impacted by stagnation conditions is the western agricultural basin.

The State recommends including the agricultural basin region of the county where stagnation conditions are known to impact PM 10 concentrations. While we agree that the new nonattainment area should include the agricultural basin region where stagnation conditions occur, we find that the State's recommended boundaries do not in fact accomplish this. As shown on page 14 of the ADEQ's technical report, the agricultural basin region of the county, roughly defined based on tilling and harvesting emissions within the county, lies in the western half of the county, and also extends south of Interstate 10 towards the southern county line. Moreover, as discussed in the following paragraph, a review of available wind data supports the inclusion of areas to the south and east of the violating monitors ( i.e., beyond the State's recommended boundaries) based on the prevalence of winds from the southeast quadrant.

EPA has considered the information provided by ADEQ but also reviewed available wind data for Pinal County and finds that winds are similar throughout central and western Pinal County in that the predominant wind directions are from the southeast quadrant. See figure 10 of EPA's TSD. (We note that winds blow out of the north and northwest far less frequently, making transport of PM 10 from the metropolitan Phoenix area unlikely under most circumstances.) In this instance, the predominance of southeast winds support boundaries that extend south and east of the violating monitors because PM 10 sources, including agricultural activities and unpaved roads, are found in those directions. EPA's recommended boundaries encompass the types of sources that are believed to cause or contribute to the monitored violations and that are located east and south of the violating monitors, whereas the State's recommended boundaries largely exclude these sources. See figure 2 (PM 10 monitors, ADEQ's recommended nonattainment area boundary, and EPA's proposed nonattainment area boundary), figure 4 (Pinal County agriculture, cattle operations, and unpaved roads), and figure 5 (ADEQ's map illustrating the distribution of emissions in Pinal County) from EPA's TSD.

Lastly, EPA recognizes that high wind events do occur in Pinal County, and that some of these events may result in monitored particulate matter exceedances that qualify as caused by exceptional events under EPA's exceptional events rule. 8 However, as ADEQ itself acknowledges, even if EPA were eventually to determine that all of the exceedances that ADEQ has flagged are caused by “exceptional events,” the area would still clearly be in violation of the PM 10 NAAQS.

Geography/Topography . The geography/topography factor evaluates physical features of the land that might have an effect on the airshed, and therefore, on the distribution of particulate matter over an area. In its technical report, ADEQ describes the topography of Pinal County in terms of a broad basin, low in elevation (roughly 1,200 feet in elevation), surrounded on all sides by mountain ranges. ADEQ finds that topographic considerations support the State's inclusion of the basin region of the county, which is characterized by open-ended valleys with few topographic barriers, within the recommended boundaries. Conversely, ADEQ finds that topographic considerations support the State's exclusion from the recommended boundaries of the eastern portion of the county, which is characterized by rough terrain and steep mountain ranges reaching over 7,000 feet in elevation.

EPA too has considered topography and generally agrees with ADEQ's description of the topography of Pinal County. We believe that the various mountain ranges found on each side of the county inhibit transport of PM 10 (which is largely crustal in composition— see figure 6 of EPA's TSD) from outside the county to the violating monitors within the county. Within the county itself, we believe that the mountains in the eastern quarter of the county, which rise to approximately 6,000 feet near the eastern borders with Gila and Graham counties, inhibit intra-county transport from sources located in the eastern quarter to the violating monitors. See figure 11 of EPA's TSD. (The portion of the San Carlos Apache Reservation that lies within Pinal County is located in the eastern quarter of the county.)

However, the existence of the steep mountain ranges in the eastern quarter of the County does not justify ADEQ's recommendation to exclude from redesignation a much larger section of the western half of the County. EPA believes that, taking other factors into account, the western half of the County, located in the basin region that features few topographic barriers, should be redesignated to nonattainment. Indeed, it is arguable that topography alone would lend support to redesignating a far larger area than EPA is proposing, one that would encompass the entire county, excepting only the eastern quarter. However, EPA believes that topography when evaluated in the context of the various other factors, supports redesignation of the western half of the county, rather than the much more restricted boundaries that ADEQ suggests.

Jurisdictional Boundaries. The analysis of jurisdictional boundaries evaluates the planning and organizational structure of an area to determine if the implementation of controls in a potential nonattainment area can be carried out in a cohesive manner. ADEQ's technical report notes the absence of any certified metropolitan planning organization (MPO) for Pinal County and the exclusion of Indian country from the State's recommendation. As such, ADEQ concludes that the State's recommended boundaries maintain jurisdictional cohesiveness requiring no new institutional arrangements for accomplishing required tasks.

EPA also considered the planning and organizational structure of the State of Arizona and Pinal County (cities, towns, and unincorporated areas), but also took into account Indian country, to ensure that the implementation of controls within the prospective nonattainment area could be carried out in a cohesive manner. ADEQ exercises overall jurisdiction over environmental programs in the State of Arizona ( i.e., excluding Indian country). Under state law, ADEQ has the responsibility for preparing air quality attainment and maintenance plans in Pinal County. With respect to permitting and enforcement, the Pinal County Air Quality Control District (AQCD or “District”) has jurisdiction over most types of stationary sources operating, or proposing to locate, within Pinal County, but state law retains ADEQ's statewide jurisdiction over certain types of stationary sources (smelters, refineries, coal-fired power plants, and agricultural operations). Neither ADEQ nor the District have jurisdiction within Indian country.

In its technical report, ADEQ notes that five cities and towns (Casa Grande, Coolidge, Eloy, Florence, and City of Maricopa), as well as a portion of a sixth (Queen Creek) are located in central and western Pinal County. ADEQ indicates that the incorporated boundaries of these municipalities have been taken into account in developing the nonattainment area boundaries. However, EPA's review of the incorporated boundaries of these municipalities ( see, e.g., figure 2 of EPA's TSD) shows that the State's recommended boundaries omit portions of the City of Maricopa and Coolidge, and most of Florence and Eloy. In contrast, EPA's proposed nonattainment area boundaries encompass all of these cities and towns, where most of the county's population resides. Inclusion of entire cities and towns within the nonattainment area boundaries would facilitate attainment planning to the extent that such local governments will ultimately be relied upon for development and/or implementation of specific PM 10 control measures.

Level of Control of Emission Sources. The level of control factor looks at the emissions controls currently implemented in each area. As a general matter, most existing and proposed stationary sources within Pinal County (excluding Indian country) are subject to the generally applicable prohibitory rules and permitting requirements established by the Pinal County AQCD, or, in the case of certain types of stationary sources (smelters, refineries, coal-fired power plants, and agricultural operations), State prohibitory rules and permitting requirements established by ADEQ.

Pinal County AQCD has established rules for dust abatement purposes that apply within a subarea of Pinal County established under state law (Arizona Revised Statutes section 49-541) and referred to as “Area A.” Within Pinal County, “Area A” generally refers to an area encompassing the Pinal County portions of Apache Junction and Queen Creek. Pinal County has also adopted a number of ordinances that are also intended to reduce dust generated within “Area A.” These include ordinances placing restrictions on residential fireplaces, leaf blowers, open burning, vehicle commute trips, and vehicle idling. For one township located within “Area A,” the township included in the Phoenix Area PM 10 nonattainment area ( i.e., Township 1 north, range 8 east; referred to as “Apache Junction”), Pinal County AQCD has adopted further dust abatement rules. 9 The State's recommended boundaries include a portion, but not all, of “Area A.” In contrast, EPA's proposed boundaries for the new nonattainment area would encompass all of “Area A,” thereby facilitating review and modification of these existing PM 10 emissions controls within the broader SIP attainment planning context.

Conclusion. CAA section 107(d)(3)(C) provides that after notifying the Governor of State of its intent to redesignate an area, EPA shall promulgate the redesignation, if any, of the area or portion thereof, submitted by the Governor, “making such modifications as EPA may deem necessary. * * *” Pursuant to CAA section 107(d)(3), we have reviewed the State's recommendation (dated March 23, 2010) and related technical report (submitted on March 26, 2010).

Both EPA and the State agree that sources outside of the county do not contribute to PM 10 violations at the violating monitors within the county, and that sources in the eastern half of the county do not contribute to the violating monitors (which are concentrated in the central and western portions of the county). But while EPA and the State both use the nine-factor analysis for evaluation of the prospective nonattainment area boundaries, we reach quite different conclusions.

As explained above, and more fully in EPA's TSD, EPA does not believe that the State's recommended boundaries encompass the full geographic area from which emissions-generating activities contribute to the monitored PM 10 violations. More specifically, we believe that the Governor's recommended boundaries, which cut through municipalities and contiguous expanses of agricultural fields, exclude sources that have been identified as dominant sources of PM 10 and that are contributing to elevated levels of PM 10 at violating monitors.

We believe that our proposed boundaries, which are defined as all land geographically located within Pinal County west of the north-south line defined by the boundary between Townships 10E and 11E, but excluding TON's main reservation and excluding the existing Apache Junction portion of the existing Phoenix PM 10 nonattainment area, encompass the areas in which PM 10 violations are being monitored, as well as the areas that contribute to the monitored violations, and that they are thus consistent with the definition of nonattainment areas in CAA section 107(d)(1)(A). Our conclusion is based on EPA's analysis of the factors as set forth in the body of this document and in further detail in the TSD. In sum, we base our proposed boundaries on the following considerations: (1) Monitored violations occur in the west, central and northern portions of the western half of the county, not in the eastern half ( i.e., outside of existing PM 10 nonattainment areas); (2) the emissions from agricultural operations, feedlots, dairies, and other cattle operations, as well as roads, are concentrated in the western half of the county; (3) population densities are much greater in the western half of the county than in the eastern half and growth is expected to be concentrated primarily along the Interstate corridors that extend through the western half of the county; (4) Interstate 10, which connects Pinal County with the employment centers in metropolitan Phoenix and Tucson, bisects the western half of Pinal County; (5) predominant southeasterly winds support inclusion of PM 10 sources in areas to the south and east of the violating monitors; (6) the western half of Pinal County encompasses the incorporated boundaries of all of the cities in Pinal County (Apache Junction, Casa Grande, Coolidge, Eloy, Maricopa), as well as the larger towns (Florence and Queen Creek) thereby potentially facilitating implementation of future control measures; and (7) dust abatement measures already in effect in “Area A” (within Pinal County) can readily be applied, as necessary and appropriate, throughout the other portions of the western half of Pinal County. A map comparing the State's recommended boundaries to EPA's proposed boundaries is included as figure 2 in our TSD.

EPA therefore deems it necessary and appropriate to propose boundaries that differ from the State's recommended boundaries and that we believe better satisfy air quality data, planning, control and other air-quality-related considerations. CAA Section 107(d)(3). Under CAA section 107(d)(3)(C), EPA must notify the State whenever EPA intends to modify State recommendations concerning boundaries for areas to be redesignated, at least 60 days prior to EPA promulgation of final redesignations. EPA intends to notify the State of Arizona of our proposed action soon after this notice is signed.

Ak-Chin Indian Community . The Ak-Chin Indian Community is located in western Pinal County, and is included in the existing “rest of state” unclassifiable area for PM 10 . The Ak-Chin Indian Community does not operate a PM 10 monitoring site, but lies in proximity to several PM 10 monitoring sites that do monitor violations of the PM 10 NAAQS ( e.g., the Maricopa and Cowtown sites). In a letter dated September 2, 2010 the Ak-Chin Indian Community responded to EPA's December 30, 2009 letter concerning the PM 10 designation of Pinal County with a recommendation that the Ak-Chin lands be designated attainment/unclassifiable. We have offered formal consultation to the Ak-Chin Indian Community and have decided to defer action on redesignation of the Ak-Chin Indian Community for PM 10 to allow time for formal consultation to occur and for further consideration of this issue as part of that process. If in the future EPA decides to take action to redesignate the Ak-Chin Indian Community, the Agency will do so in a separate rulemaking.

Gila River Indian Community . The Gila River Indian Community (GRIC) is a community located on 374,000 acres in south central Arizona. Approximately one-third of GRIC lies within Maricopa County and two-thirds lies within Pinal County. The Maricopa County portion of GRIC is included in the Phoenix Area PM 10 nonattainment area. The Pinal County portion of GRIC is included in the existing “rest of state” unclassifiable area for PM 10 . GRIC operates a PM 10 monitoring site in the Pinal County portion of its lands and GRIC's monitor has recorded a number of PM 10 exceedances. See table 1 above in this document. However, GRIC has flagged a significant number of these exceedances as caused by “exceptional events” under EPA's exceptional event rule (50 CFR 50.14), and EPA has not yet taken action to determine whether any of these data should be excluded on that basis from consideration in a redesignation action. In October 2009, EPA approved GRIC's application for treatment in the same manner as a state for the purposes of CAA section 107(d) air quality designations. More recently, we proposed approval of GRIC's submitted tribal implementation plan. See 75 FR 48880, August 12, 2010.

As noted above, on December 30, 2009, EPA notified GRIC that the PM 10 designation for Pinal County should be revised. GRIC first indicated orally, and later confirmed in a letter dated May 27, 2010, that the community would not be making a recommendation for PM 10 until formal consultation is conducted. By letter dated April 30, 2010, EPA responded to GRIC's oral request with an offer of formal consultation. As with the Ak-Chin Indian Community, we have decided to defer action on a decision whether to redesignate GRIC to allow time for formal consultation to occur and for further consideration of this issue as part of that process. In addition, the deferral for GRIC will provide EPA with the time necessary to address the exceptional events issues. If in the future EPA decides to undertake redesignation of the Pinal County portion of the Gila River Indian Community, the Agency will do so in a separate rulemaking.

San Carlos Apache Tribe . The San Carlos Apache Reservation extends over a portion of eastern Pinal County, as well as portions of Gila and Graham counties. A section of the Pinal County portion of the San Carlos Apache Reservation lies in the existing Hayden PM 10 nonattainment area. The rest of the Pinal County portion of the reservation is located within the “rest of state” unclassifiable area for PM 10 . The San Carlos Apache Tribe did not respond to EPA's December 30, 2009 letter concerning the PM 10 designation in Pinal County.

For the reasons discussed in section IV of this document, we believe that emissions sources in the eastern half of Pinal County do not contribute to violations monitored in the western half of the county, and thus are proposing only that the western half of the county (excluding TON's main reservation and the Apache Junction portion of the existing Phoenix PM 10 nonattainment area) be redesignated to nonattainment. Given that the San Carlos Tribe's Indian country extends only into far eastern Pinal County, we propose to retain the Tribe's current designations for the PM 10 standard ( i.e., a portion remains in the existing Hayden PM 10 nonattainment area, and a portion remains in the existing “rest of state” unclassifiable area).

Tohono O'odham Nation . The Tohono O'odham Nation (TON) extends over portions of Pima, Maricopa and Pinal counties. TON's main reservation covers much of southwestern Pinal County and extends over portions of Pima and Maricopa counties. TON's lands also include a small area (approximately 25 acres), known as Florence Village, which is located approximately two miles west of the town of Florence in central Pinal County, and a 3,200-acre parcel east of the main reservation called San Lucy Farm. With the exception of a small portion of TON included within the existing Rillito PM 10 nonattainment area (which is located in Pima County), TON is included in the “rest of state” unclassifiable area for PM 10 .

In a letter dated February 11, 2010, TON responded to EPA's December 30, 2009 letter concerning the PM 10 designation in Pinal County with a recommendation that the TON land within Pinal County be designated attainment/unclassifiable for PM 10 . With respect to the main reservation in southwestern Pinal County, we agree with TON's recommendation and are proposing a nonattainment area with boundaries that exclude TON's main reservation. We agree with TON's recommendation in this regard because (1) the closest violating monitors (Stanfield and Casa Grande) are located in the midst of the county's agricultural basin, well north of TON's main reservation; (2) the types of emissions sources believed to be responsible for the PM 10 violations, such as agricultural operations, feedlots, and dairies ( see figure 4 of EPA's TSD), as well as roads, are largely absent from TON; (3) the population density of TON is very low, and is an order of magnitude less than the average population density of Pinal County ( see table 5 of EPA's TSD); and (4) TON is a separate sovereign not subject to state or county jurisdiction thereby complicating planning and implementation issues. We conclude therefore that TON's main reservation is not contributing to the PM 10 violations monitored elsewhere in Pinal County and propose to exclude TON from the new nonattainment area. Under this proposal, the designation of TON's main reservation would remain unchanged, i.e. , it would remain part of the “rest of state” unclassifiable area for PM 10.

As to Florence Village and San Lucy Farm, EPA is deferring redesignation to allow for further consultation with TON. If in the future EPA decides to take action to redesignate TON's Florence Village and San Lucy Farm, the Agency will do so in a separate rulemaking.

Pursuant to section 107(d)(3) of the Clean Air Act and based on our evaluation of air quality data, planning, control and other air-quality-related information and considerations, and our review of the Governor's recommendation, EPA is proposing to redesignate from “unclassifiable” to “nonattainment” an area generally covering the western half of Pinal County, Arizona, for the 1987 PM 10 NAAQS and therefore to revise the boundaries of the existing “rest of state” unclassifiable area. EPA's proposal to establish this new PM 10 nonattainment area, referred to as “West Pinal,” is based on numerous recorded violations of the PM 10 standard at various monitoring sites within the county, and on the other grounds set forth in this document and in the TSD.

EPA's proposed boundaries for the nonattainment area would encompass all of the area recommended by the State of Arizona, but would extend further to the east and south, and to a lesser degree, to the north and west. EPA's proposed boundaries would encompass all land geographically located within Pinal County west of the north-south line defined by the boundary between Townships 10E and 11E, but excluding TON's main reservation and excluding the Apache Junction portion of the existing Phoenix PM 10 nonattainment area. If finalized as proposed, the new “West Pinal” PM 10 nonattainment area would be classified as “moderate” by operation of law. See figure 2 of EPA's TSD for a map showing EPA's proposed boundaries.

We believe that our proposed boundaries as described above encompass the areas in which PM 10 violations are being monitored, as well as the areas that contributes to the monitored violations, and that they are thus consistent with the definition of nonattainment areas in CAA section 107(d)(1)(A). Our conclusion is based on EPA's analysis of the factors as set forth in the body of this document and in further detail in the TSD. We find support for our proposed boundaries based on the following considerations: (1) Monitored violations occur in the west, central and northern portions of the western half of the county, not in the eastern half ( i.e., outside of existing PM 10 nonattainment areas); (2) the emissions from agricultural operations, feedlots, dairies, and other cattle operations, as well as roads, are concentrated in the western half of the county; (3) population densities are much greater in the western half of the county than in the eastern half and growth is expected to be concentrated primarily along the Interstate corridors that extend through the western half of the county; (4) Interstate 10, which connects Pinal County with the employment centers in metropolitan Phoenix and Tucson, bisects the western half of Pinal County; (5) predominant southeasterly winds support inclusion of PM 10 sources in areas to the south and east of the violating monitors; (6) the western half of Pinal County encompasses the incorporated boundaries of all of the cities in Pinal County (Apache Junction, Casa Grande, Coolidge, Eloy, Maricopa), as well as the larger towns (Florence and Queen Creek) thereby potentially facilitating implementation of future control measures; and (7) dust abatement measures already in effect in “Area A” (within Pinal County) can readily be applied, as necessary and appropriate, throughout the other portions of the western half of Pinal County.

EPA has determined that activities occurring on the main Tohono O'odham Nation (TON) reservation are not causing or contributing to violations occurring in Pinal County and we are therefore proposing to exclude the main TON reservation from the new nonattainment area. San Carlos Apache lands, which are located in the eastern quarter of the county, would be excluded from the proposed nonattainment area along with the rest of the eastern half of the county. EPA is deferring its decision regarding redesignation of the Ak-Chin and Gila River Indian Community lands, as well as TON's Florence Village and San Lucy Farm, pending consideration of issues unique to tribal lands, completion of formal consultation with the tribal governments, and (in the case of GRIC) consideration of exceptional events flags. The existing Phoenix PM 10 nonattainment area (including the Apache Junction portion of western Pinal County) would be unaffected by this action.

Areas redesignated as nonattainment, as proposed herein, are subject to the applicable requirements of part D, title I of the Act and will be classified as moderate by operation of law (see section 188(a) of the Act). Within 18 months of the redesignation, the State is required to submit to EPA an implementation plan for the area containing, among other things, the following requirements: (1) Provisions to assure that reasonably available control measures (including reasonably available control technology) are implemented within 4 years of the redesignation; (2) a permit program meeting the requirements of section 173 governing the construction and operation of new and modified major stationary sources of PM 10 ; (3) quantitative milestones which are to be achieved every 3 years until the area is redesignated attainment and which demonstrates reasonable further progress, as defined in section 171(1), toward timely attainment; and (4) either a demonstration (including air quality modeling) that the plan will provide for attainment of the PM 10 NAAQS as expeditiously as practicable, but no later than the end of the sixth calendar year after the area's designation as nonattainment, or a demonstration that attainment by such date is impracticable ( see, e.g., section 188(c), 189(a), 189(c), and 172(c) of the Act). We have issued detailed guidance on the statutory requirements applicable to moderate PM 10 nonattainment areas [ see 57 FR 13498 (April 16, 1992), and 57 FR 18070 (April 28, 1992)].

If we finalize the proposed redesignation, the State would also be required to submit contingency measures (for the new PM 10 nonattainment area), pursuant to section 172(c)(9) of the Act, which are to take effect without further action by the State or EPA, upon a determination by EPA that an area has failed to make reasonable further progress or attain the PM 10 NAAQS by the applicable attainment date ( see 57 FR 13510-13512, 13543-13544). The EPA is proposing to establish a deadline for submission of contingency measures as called for in section 172(b) of the Act to coincide with the submittal date requirement for the other SIP elements discussed above, i.e., 18 months after redesignation. Lastly, any new PM 10 nonattainment area would be subject to EPA's general and transportation conformity regulations (40 CFR part 93, subparts A and B) upon the effective date of redesignation. See section 176(c) of the Act.

We will accept comments from the public on this proposal for thirty days from the date of publication of this notice, and will consider any relevant comments in taking final action on today's proposal.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA has determined that the redesignation to nonattainment proposed today, as well as the establishment of SIP submittal schedules, would result in none of the effects identified in Executive Order 12866, section 3(f). Under section 107(d)(3) of the Act, redesignations to nonattainment are based upon air quality considerations. The proposed redesignation, based upon air quality data showing that West Pinal is not attaining the PM 10 standard and upon other air-quality-related considerations, does not, in and of itself, impose any new requirements on any sectors of the economy. Similarly, the establishment of new SIP submittal schedules would merely establish the dates by which SIPs must be submitted, and would not adversely affect entities.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et. seq., a redesignation to nonattainment under section 107(d)(3), and the establishment of a SIP submittal schedule for a redesignated area, do not, in and of themselves, directly impose any new requirements on small entities. See Mid-Tex Electric Cooperative, Inc. v. FERC, 773 F.2d 327 (DC Cir. 1985) (agency's certification need only consider the rule's impact on entities subject to the requirements of the rule). Instead, this rulemaking simply proposes to make a factual determination and to establish a schedule to require the State to submit SIP revisions, and does not propose to directly regulate any entities. Therefore, pursuant to 5 U.S.C. 605(b), EPA certifies that today's proposed action does not have a significant impact on a substantial number of small entities within the meaning of those terms for RFA purposes.

Under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, EPA has concluded that this proposed rule is not likely to result in the promulgation of any Federal mandate that may result in expenditures of $100 million or more for State, local or tribal governments in the aggregate, or for the private sector, in any one year. It is questionable whether a redesignation would constitute a Federal mandate in any case. The obligation for the state to revise its State Implementation Plan that arises out of a redesignation is not legally enforceable and at most is a condition for continued receipt of federal highway funds. Therefore, it does not appear that such an action creates any enforceable duty within the meaning of section 421(5)(a)(i) of UMRA (2 U.S.C. 658(5)(a)(i)), and if it does the duty would appear to fall within the exception for a condition of Federal assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C. 658(5)(a)(i)(I).

Even if a redesignation were considered a Federal mandate, the anticipated costs resulting from the mandate would not exceed $100 million to either the private sector or State, local and tribal governments. Redesignation of an area to nonattainment does not, in itself, impose any mandates or costs on the private sector, and thus, there is no private sector mandate within the meaning of section 421(7) of UMRA (2 U.S.C. 658(7)). The only cost resulting from the redesignation itself is the cost to the State of Arizona of developing, adopting, and submitting any necessary SIP revision. Because that cost will not exceed $100 million, this proposal (if it is a federal mandate at all) is not subject to the requirements of sections 202 and 205 of UMRA (2 U.S.C. 1532 and 1535). EPA has also determined that this proposal would not result in regulatory requirements that might significantly or uniquely affect small governments because only the State would take any action as result of today's rule, and thus the requirements of section 203 (2 U.S.C. 1533) do not apply.

Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, because it merely proposes to redesignate an area for Clean Air Act planning purposes and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The area proposed for redesignation does not yet include, and EPA is deferring action on the Ak-Chin Indian Reservation, the Pinal County portion of the Gila River Indian Reservation, and TON's Florence Village and San Lucy Farm. In formulating its further action on these areas, EPA has been communicating with and plans to continue to consult with representatives of the Tribes, as provided in Executive Order 13175. Accordingly, EPA has addressed Executive Order 13175 to the extent that it applies to this action.

This proposed rule is not subject to Executive Order 13045 (“Protection of Children from Environmental Health Risks”) (62 FR 19885, April 23, 1997), because it is not an economically significant regulatory action based on health or safety risks.

This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

Section 12 of the National Technology Transfer and Advancement Act (NTTAA) of 1995 requires Federal agencies to evaluate existing technical standards when developing a new regulation. The EPA believes that the requirements of NTTAA are inapplicable to this action because they would be inconsistent with the Clean Air Act.

Today's action proposes to redesignate an area to nonattainment for an ambient air quality standard. It will not have disproportionately high and adverse effects on any communities in the area, including minority and low-income communities.

In the Final Rules section of this Federal Register , EPA is approving Exxon Mobil's delisting petition as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. For additional information, see the direct final rule which is located in the Rules section of this Federal Register .

DoD is proposing to add language to the DFARS to make electronic distribution procedures a routine part of order issuance. This case establishes a standard method for issuance of orders via electronic means. DoD currently has the capability to distribute orders electronically on a routine basis, and can post those orders centrally to a site any contractor can access.

DoD is proposing the following changes:

• Add the prescription at DFARS 216.506(a) to require a new clause 252.216-70XX, Ordering, in lieu of the clause at FAR 52.216-18, Ordering, in solicitations and contracts when a definite-quantity contract, a requirements contract, or an indefinite-quantity contract is contemplated; and

• Add a new clause at DFARS 252.216-70XX, Ordering.

This change may have a significant impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.

DoD has prepared an initial regulatory flexibility analysis consistent with 5 U.S.C. 603. A copy of the analysis may be obtained from the point of contact specified herein. The objective of this rule is that, as the DoD now has the capability to distribute orders electronically on a routine basis and can post those orders centrally to a Web site that any contractor can access, the DFARS needs to provide language that will make those procedures a routine part of contract issuance. This rule will enable DoD to further the goals of the E-Government Act of 2002.

For Fiscal Year 2009, DoD made awards to 6,097 small business-unique Data Universal Numbering System (DUNS) numbers using the clause at FAR 52.216-18, Ordering. The benefit of this rule to small business is that it will make electronic distribution procedures a routine part of order issuance. This change will ultimately help improve the management and promotion of electronic Government services and processes, and establish a framework to improve public access to Government information and services. DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2009-D037) in correspondence.

The Paperwork Reduction Act does not apply because the rule does not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Therefore, DoD proposes to amend 48 CFR parts 216 and 252 as follows:

1. The authority citation for 48 CFR parts 216 and 252 continues to read as follows:

The muscovy duck is native to Mexico, and Central and South America. However, the species has recently expanded its range into Hidalgo, Starr, and Zapata Counties in south Texas. As a result of this natural expansion into the United States, on March 1, 2010, we published a final rule (75 FR 9282) adding the muscovy duck ( Cairina moschata ) to the List of Migratory Birds protected under the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-12).

The muscovy duck has been introduced through human intervention to many parts of the United States. These feral muscovy ducks may appear much different than the muscovy duck in its native range, but biologically they are still Cairina moschata, and thus are accorded the protection of the MBTA. To reduce the spread of muscovy ducks in the wild, 50 CFR 21.14(g) prohibits the release of captive-reared muscovy ducks to the wild.

On March 1, 2010, we also published a final rule that, among other things, established a control order to manage feral populations (75 FR 9316). The control order at 50 CFR 21.54 allows landowners and Federal, State, Tribal, and local wildlife management agencies, and their tenants, employees, or agents, to remove or destroy muscovy ducks (including hybrids of muscovy ducks), their nests, and eggs, anywhere outside their natural range, without a Federal migratory bird permit. Any muscovy duck removed live under this order must be: (1) placed with a facility where it will be maintained under conditions that will prevent its escape to the wild, (2) donated to public museums or public institutions for scientific or educational purposes, or (3) euthanized and disposed of by burying or incineration.

In that March 1, 2010, final rule (75 FR 9316), we also amended the regulations at 50 CFR 21 to prohibit sale, transfer, or propagation of muscovy ducks for hunting and any other purpose other than for sale as food. This action required revision of regulations governing permit exceptions for captive-reared migratory waterfowl other than mallard ducks and governing waterfowl sale and disposal permits, as well as the addition of the control order described above. We also rewrote the affected regulations to make them easier to understand.

After that final rule (75 FR 9316) was published, we were contacted by many individuals concerned about provisions in the rule that prohibit long-established muscovy duck activities, particularly keeping the ducks for exhibition, or as barnyard animals for personal consumption and egg production (rather than for sale as food). This document proposes changes to the regulations to address these concerns.

In 50 CFR 21.14, we would remove the requirement that muscovy ducks may not be acquired, possessed, propagated, sold, or transferred, except for sale as food. We would add the following provisions to the regulations:

When we published the proposed rule to change the regulations for muscovy ducks on August 22, 2008 (73 FR 49626), we were unaware that muscovy ducks are kept as barnyard animals, for consumption by their owners, and for egg production. We were not made aware of these issues until after our March 1, 2010, final rule was published (75 FR 9316). The changes we are proposing in this document would allow the continued keeping and production of muscovy ducks that were restricted by the March 1, 2010 final rule. We expect that these proposed regulations changes would have a very minimal impact on populations of wild ducks, and would facilitate longstanding activities by muscovy duck owners.

We also propose editorial changes to reorganize the material in this section of the regulations, and to use simpler words and more straight-forward sentences in order to clarify, and use consistent terminology in, the requirements.

In 50 CFR 21.25, we would remove the specific restrictions for muscovy ducks, including:

The proposed regulations at § 21.14 address these issues; therefore, these topics do not need to be repeated in § 21.25.

We would add the following provision to the regulations at § 21.25:

Like the changes we are proposing to § 21.14, these proposed changes would allow the continued keeping and production of muscovy ducks that were restricted by the March 1, 2010, final rule (75 FR 9316). We expect that these proposed regulations changes would have a very minimal impact on populations of wild ducks, and would facilitate longstanding activities by muscovy duck owners.

In § 21.25, we also propose to clarify the marking requirements for live or dead birds transferred or sold by referencing the requirements at § 21.13(b). This should help affected persons more easily understand, and comply with, the regulations.

We propose editorial changes that reorganize the material in this section of the regulations, and clarify regulatory requirements by using simpler words, more straight-forward sentences, and consistent terminology.

We would revise paragraph (c) to better address disposal of muscovy ducks removed from the wild.

We request comments or suggestions on this proposed rule from any interested parties. You may submit your comments and materials concerning this proposed rule by one of the methods listed in the ADDRESSES section. We will not consider comments sent by e-mail or fax or to an address not listed in the ADDRESSES section.

If you submit a comment via http://www.regulations.gov, your entire comment— including any personal identifying information—will be posted on the Web site. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so. We will post all hardcopy comments on http://www.regulations.gov.

Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection at http://www.regulations.gov, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service (see FOR FURTHER INFORMATION CONTACT ). You may obtain copies of our previous actions concerning this subject by mail (see FOR FURTHER INFORMATION CONTACT ) or by visiting the Federal eRulemaking Portal at http://www.regulations.gov.

The Office of Management and Budget (OMB) has determined that this rule is not significant, and has not reviewed this rule under Executive Order 12866. OMB bases its determination upon the following four criteria:

(a) Whether the rule will have an annual effect of $100 million or more on the economy or adversely affect an economic sector, productivity, jobs, the environment, or other units of the government;

(b) Whether the rule will create inconsistencies with other Federal agencies' actions;

(c) Whether the rule will materially affect entitlements, grants, user fees, loan programs, or the rights and obligations of their recipients; and

(d) Whether the rule raises novel legal or policy issues.

Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. , as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121)), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies the rule would not have a significant economic impact on a substantial number of small entities.

SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide the statement of the factual basis for certifying that a rule would not have a significant economic impact on a substantial number of small entities. We have examined this proposed rule's potential effects on small entities as required by the Regulatory Flexibility Act, and have determined that this action would not have a significant economic impact on a substantial number of small entities, because the changes we are proposing are intended primarily to reduce the spread of an invasive species little used in commercial endeavors.

This rule addresses captive-reared muscovy ducks that, for the most part, were already held when the species was added to our List of Migratory Birds at 50 CFR 10.13. We expect no significant economic impacts to result from a regulations change allowing possession and sale of these ducks to continue. Further, there would be very minimal costs, if any, associated with this regulations change. Consequently, we certify that because this proposed rule would not have a significant economic effect on a substantial number of small entities, a regulatory flexibility analysis is not required.

This proposed rule is not a major rule under SBREFA (5 U.S.C. 804(2)). It would not have a significant impact on a substantial number of small entities.

a. This proposed rule would not have an annual effect on the economy of $100 million or more.

b. This proposed rule would not cause a major increase in costs or prices for consumers; individual industries; Federal, State, or local government agencies; or geographic regions.

c. This proposed rule would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ), we have determined the following:

a. This proposed rule would not “significantly or uniquely” affect small governments. A small government agency plan is not required. Actions under the proposed regulation would not affect small government activities in any significant way.

b. This proposed rule would not produce a Federal mandate of $100 million or greater in any year; i.e., it is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

In accordance with E.O. 12630, the rule would not have significant takings implications. This proposed rule would not contain a provision for taking of private property. Therefore, a takings implication assessment is not required.

This proposed rule would not have sufficient Federalism effects to warrant preparation of a Federalism assessment under E.O. 13132. It would not interfere with the States' ability to manage themselves or their funds. This rule addresses captive-reared muscovy ducks that, for the most part, were already held when the species was added to our List of Migratory Birds at 50 CFR 10.13. Therefore, no significant economic impacts are expected to result from a regulations change allowing possession and sale of these ducks to continue.

In accordance with E.O. 12988, the Office of the Solicitor has determined that the rule would not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

We examined this proposed rule under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ). There are no new information collection requirements associated with this proposed rule. We are not requiring any new permits, reports, or recordkeeping in this proposed rule. The FWS form we reference in the Proposed Regulation Promulgation section, FWS Form 3-186, Notice of Waterfowl Sale or Transfer, is approved under OMB Control Number 1018-0022, which expires November 30, 2010. An agency may not collect or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

We have analyzed this proposed rule in accordance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq. ) and part 516 of the U.S. Department of the Interior Manual (516 DM). The change we propose is to allow people and agencies to continue ongoing activities with muscovy ducks. We completed an Environmental Action Statement addressing these changes, in which we concluded that the proposed regulations change requires no additional assessment of potential environmental impacts.

This proposal would allow some activities with captive-reared muscovy ducks that the current regulations prohibit. Because release of muscovy ducks to the wild is currently prohibited, and would remain prohibited under this proposal, the environmental consequences of the proposed regulations changes are negligible. However, because these regulation changes will allow possession of muscovy ducks for uses that were previously prohibited, the number of muscovy ducks held in captivity will likely be higher, which may lead to an increase in the number of muscovy ducks escaping into the wild.

Socioeconomic . This proposed rule would not have significant socioeconomic impacts.

Migratory bird populations . This proposed rule would not affect wild migratory bird populations.

Endangered and threatened species . The proposed rule would not affect endangered or threatened species or critical habitats.

Section 7 of the Endangered Species Act (ESA) of 1973, as amended (16 U.S.C. 1531 et seq. ), requires that “The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter” (16 U.S.C. 1536(a)(1)). It further states that the Secretary must “insure that any action authorized, funded, or carried out... is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of [critical] habitat” (16 U.S.C. 1536(a)(2)).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated potential effects on Federally recognized Indian tribes and have determined that there are no potential effects. This proposed rule would not interfere with the tribes' ability to manage themselves or their funds or to regulate migratory bird activities on tribal lands.

On May 18, 2001, the President issued E.O. 13211 addressing regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. This rule is not a significant regulatory action under E.O. 13211, and would not significantly affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

For the reasons stated in the preamble, we propose to amend part 21 of subchapter B, chapter I, title 50 of the Code of Federal Regulations, as follows:

A copy of the application containing a list of the references used in this document may be obtained by writing to the address specified above, telephoning the contact listed below ( see FOR FURTHER INFORMATION CONTACT ), or visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm.

Documents cited in this notice may be viewed, by appointment, during regular business hours, at the aforementioned address.

Paragraphs 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq. ) direct the Secretary of Commerce (Secretary), upon request, to allow for a period of not more than five years, the incidental, but not intentional, taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and regulations are issued. Alternatively, if the taking is limited to harassment an Incidental Harassment Authorization (IHA) is issued. Upon making a finding that an application for incidental take is adequate and complete, NMFS commences the incidental take authorization process by publishing in the Federal Register a notice of a receipt of an application for the implementation of regulations or a proposed IHA.

An authorization for the incidental takings may be granted if NMFS finds that the taking during the period of the authorization will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth to achieve the least practicable adverse impact.

NMFS has defined “negligible impact” in 50 CFR 216.103 as:

The National Defense Authorization Act of 2004 (NDAA) (Pub. L. 108-36) modified the MMPA by removing the “small numbers” and “specified geographic region” limitations and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA):

On November 6, 2009, NMFS received a letter from the U.S. Air Force requesting an authorization for the take of marine mammals incidental to NEODS training operations. These training operations are properly considered “military readiness activity” under the provisions of the NDAA. On January 15, 2010, NMFS published a Notice of Receipt (75 FR 2490) in the Federal Register for the U.S. Air Force's NEODS training operations and determined that its application was adequate and complete. The U.S. Air Force states and NMFS concurs that underwater explosive detonations could result in the take by harassment of marine mammals by exposing them to sound. The requested regulations would establish a framework for authorizing incidental take with future LOAs. These LOAs, if approved, would authorize the take, by Level B (behavioral) harassment, of Atlantic bottlenose dolphins ( Tursiops truncatus ) incidental to conducting NEODS training operations and testing at Eglin Gulf Test and Training Range (EGTTR) at property off Santa Rosa Island (SRI), Florida, in the northern Gulf of Mexico (GOM). Based on the application, pre-mitigation take would average approximately 10 animals per year; approximately 50 animals over the five year period. NMFS issued annual Incidental Harassment Authorizations (IHA) for almost identical activities in 2005 (70 FR 51341; August 30, 2005), 2006 (71 FR 60639; October 16, 2006), 2007 (72 FR 58290; October 15, 2007), and 2008 (73 FR 56800; September 30, 2008). The past missions have been delayed due to safety issues related to bringing demolition charges under a bridge. No missions have occurred to date under any of the IHAs. NEODS missions would involve underwater detonations of small, live explosive charges adjacent to inert mines. The NEODS training activities are classified as military readiness activities. The U.S. Air Force states that underwater detonation of the specified explosive charges may expose bottlenose dolphins in the area to noise and pressure resulting in non-injurious temporary threshold shift (TTS) (temporary hearing loss).

Additional information on the NEODS training operations is contained in the application, which is available upon request ( see ADDRESSES ).

Potential impacts to listed species and habitat from NEODS testing are limited to the sites offshore of Eglin AFB shown in Figure 1-1 of Eglin AFB's application. The EGTTR encompasses approximately 222,739 km 2 (86,000 mi 2 ) within the GOM and consists of the airspace over the GOM, which is scheduled and operated by Eglin AFB. NEODS test areas are located approximately three nautical miles (nmi) from shore, in approximately 18.3 m (60 ft) of water and in area W-151 of the EGTTR.

The mission of NEODS is to detect, recover, identify, evaluate, render safe, and dispose of unexploded ordnance (UXO) that constitutes a threat to people, material, installations, ships, aircraft, and operations. The U.S. Navy EOD force of approximately 1,000 men and women has the equipment, mobility, and flexibility to tackle the global spectrum of threats in all world environments. Mine Countermeasures (MCM) detonations is one function of the U.S. Navy EOD force, which involves mine-hunting and mine-clearance operations. The NEODS facilities are located at Eglin AFB, Florida. The proposed training at Eglin AFB involves focused training on basic EOD skills. Examples of these fundamental skills are recognizing ordnance, reconnaissance, measurement, basic understanding of demolition charges, and neutralization of conventional and chemical ordnance.

The NEODS at Eglin AFB proposes to use the GOM waters off of SRI for a portion of the NEODS class. The NEODS would utilize areas approximately one to three nmi offshore of Test Site A-15, A-10 or A-3 for MCM training (see Figure 1-1 of Eglin AFB's application). A “test site” is a specific location on EGTTR where the mission activities actually occur. The goal of the training is to give NEODS students the tools and techniques to implement MCM through real scenarios. The students would be taught established techniques to implement MCM through real scenarios. The students would be taught established techniques for neutralizing mines by diving and hand-placing charges adjacent to the mines. The detonation of small, live explosive charges adjacent to the mine disables the mine function. Inert mines are utilized for training purposes. This training would occur offshore of SRI up to eight times annually, at varying times within the year.

MCM training classes are 51 days in duration, with four days of on-site training in the GOM. Two of these four days will be utilized to lay the inert mines prior to the training. The other two days will require the use of live detonations in the GOM. One large safety vessel and five MK V inflatable 3.1 m (10 ft) rubber boats with 50 horsepower (HP) engines would be used to access the GOM waters during training activities. The training procedures during the two “live demolition” days are described as follows.

First Live Demolition Day: Five inert mines will be placed in a compact area on the GOM floor in approximately 60 ft of water. These five mines will be utilized for the one or two live demolition days. Divers will locate the mines by hand-held sonars (AN/PQS-2A acoustic locator and the Dukane Underwater Acoustic Locator System), which detect the mine casings (mine shape reacquisition). The hand-held sonar would not impact any protected marine species because the sonar ranges are below any current threshold for protected marine species ( see Table 1-1 of Eglin AFB's application); therefore, potential noise impacts from sonars are not included in this analysis.

Five charges packed with C-4 explosive material (either 2.3 kg [5 lb] NEW or 4.6 kg [10 lb] NEW) will be set up adjacent to the mines. A charge includes detonation cord, non-electric caps, time fuses and fuse igniters. No more than five charges will be utilized over the two-day period. Live training events will occur eight times annually, averaging once every six to seven weeks. Four of the training events will involve five-lb charges, and four events will involve ten-lb charges. Because five detonations (maximum) are expected during each event, there will be up to twenty five-lb detonations and twenty ten-lb detonations annually, for a total of forty detonations. It is expected that 60 percent of the training events will occur in summer, and 40 percent will occur in winter. Therefore, analyses of potential marine mammal impacts in Section 6 of Eglin AFB's application reflect this seasonal distribution. Overpressure from the detonation is intended to disrupt the electrical charge on the mine, rendering it safe. The five charges will be detonated individually with a maximum separation time of 20 minutes between each detonation. The time of detonation will be limited to an hour after sunrise and an hour before sunset. Mine shapes and debris will be recovered and removed from the GOM waters when training is completed.

Second Live Demolition Day: Each team has two days to complete their entire evolution (detonation of five charges). The second day will be utilized only if the teams cannot complete their evolution on day one.

Additional details regarding the proposed NEODS training operations can be found in Eglin AFB's LOA application and Draft Environmental Assessment on the Promulgation of Regulations and the Issuance of Letters of Authorization to Take Marine Mammals, by Harassment, Incidental to Naval Explosive Ordnance Disposal School Training Operations at Eglin Air Force Base, Florida (Draft EA). The Draft EA can also be found online at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.

NEODS supports the Naval Fleet by providing training to personnel from all four armed services, civil officials, and military students from over 70 countries. The NEODS facility supports the Department of Defense Joint Service Explosive Ordnance Disposal training mission. According to the application, the Navy and the Marine Corps believe that the ability of Sailors and Marines to detect, characterize, and neutralize mines from their operating areas at sea, on the shore, and inland, is vital to their doctrines.

As described in the application, the Navy believes that an array of trans-national, rogue, and sub-national adversaries now pose the most immediate threat to American interests. Because of their relative low cost and ease of use, mines will be among the adversaries' weapons of choice in shallow-water situations, and they will be deployed in an asymmetrical and asynchronous manner. The Navy needs organic means to clear mines and obstacles rapidly in three challenging environments: Shallow water; the surf zone; and the beach zone. The Navy also needs a capability for rapid clandestine surveillance and reconnaissance of minefields and obstacles in these environments. The NEODS mission in the GOM offshore of Eglin AFB is considered a military readiness activity pursuant to the National Defense Authorization Act (NDAA) (Pub. L. 108-136).

NEODS missions will occur over the next five years utilizing resources within the Eglin Military Complex, including three sites in the EGTTR (Figure 1-1 of Eglin AFB's application). There will be eight training events annually, with an average of one event occurring every six to seven weeks. Half of the events will involve 5 lb charges and half will involve 10 lb charges.

Marine mammal species that potentially occur within the EGTTR include several species of cetaceans and one sirenian, the West Indian manatee ( see Table 1 below). Marine mammal species listed as Endangered under the U.S. Endangered Species Act (ESA), includes the humpback, sei, fin, blue, North Atlantic right, sperm whale, and Florida manatee. The marine mammals that generally occur in the proposed training operations area belong to three taxonomic groups: Mysticetes (baleen whales), odontocetes (toothed whales), and sirenians (the manatee). Table 2 below outlines the cetacean species and their habitat in the region of the proposed project area.

During winter months, manatee distribution in the GOM is generally confined to southern Florida. During summer months, a few may migrate north as far as Louisiana. However, manatees primarily inhabit coastal and inshore waters and rarely venture offshore. NEODS missions would be conducted one to three nmi from shore. Therefore, effects on manatees are considered very unlikely, and the discussion of marine mammal species is confined to cetaceans. The primarily cetacean occurring in the NEODS area of interest, EGTTR sub-area 197 (Figure 3-1 of Eglin AFB's application), is the Atlantic bottlenose dolphin and this analysis will focus on that species.