I. Background for Small Business Size Standards

To determine eligibility for Federal small business assistance, SBA establishes small business size definitions (usually referred to as “size standards”) for private sector industries in the United States. SBA uses two primary measures of business size for size standards purposes: average annual receipts over the last five years (either three years or five years for SBA financial assistance programs) and average number of employees over the last 24 months. In addition, SBA's Small Business Investment Company (SBIC), Certified Development Company (CDC/504), and 7(a) Loan Programs use either the industry-based size standards ( i.e., average annual receipts or average number of employees), or tangible net worth and net income-based alternative size standards to determine eligibility for those programs.

On September 27, 2010, the Small Business Jobs Act of 2010 (“Jobs Act”) was enacted (Pub. L. 111-240). Section 1116 of the Jobs Act added a new Section 3(a)(5) to the Small Business Act that directed SBA to establish an alternative size standard using maximum tangible net worth and average net income for applicants of the SBA's 7(a) Business and CDC/504 Loan Programs (collectively “Business Loan Programs”). The Jobs Act also established for applicants for the SBA's Business Loan Programs an interim alternative size standard of not more than $15 million in tangible net worth and of not more than $5 million in the average net income after Federal income taxes (excluding any carry-over losses) of the applicant for the two full fiscal years before the date of the application (referred to as “Interim Rule”). Under the Jobs Act, this interim statutory alternative size standard would remain in effect until such time as SBA has established a new alternative size standard for the Business Loan Programs through rulemaking. 15 U.S.C. 632(a)(5). Prior to that, SBA employed a lower regulatory alternative size standard that applied to the CDC/504 Loan Program, and applied temporarily to the 7(a) Loan Program for the period beginning on May 5, 2009, and ending on September 30, 2010. 13 CFR 120.301(b)(2).

On September 29, 2010, SBA issued Information Notice 5000-1175 (available at https://www.sba.gov/sites/default/files/files/bank_5000-1175_0.pdf ) providing that, effective September 27, 2010, the new statutory alternative size standard applied to its Business Loan Programs, thereby replacing and superseding the lower existing alternative size standard of $8.5 million in tangible net worth and $3 million in average net income, as set forth in 13 CFR 121.301(b)(2). The Information Notice further stated that the new statutory alternative size standard would remain in effect until such time as SBA has established a permanent alternative size standard for the Business Loan Programs through rulemaking. The Information Notice also stated that the SBA's disaster loan program, surety bond guarantee program, SBIC program, and small business development and contracting programs, as well as other Federal programs utilizing SBA's industry-based size standards were not affected by the interim statutory alternative size standard, and the current standards for those programs in 13 CFR part 121 remained in effect.

SBA has not established an alternative size standard for its 7(a) and CDC/504 Loan Programs in its regulations. Thus, the Agency continues to use the interim statutory alternative size standard to determine eligibility for a small business concern under SBA's Business Loan Programs, in addition to using the industry-based size standards. A loan applicant is eligible either under its industry-based size standard or if it meets the statutory alternative size standard of $15 million in tangible net worth and $5 million in average net income. However, due to the lack of rulemaking to codify these levels, SBA's current regulations at 13 CFR 120.301(b)(2) continue to show the tangible net worth of $8.5 million and net income of $3 million that existed prior to the enactment of the interim statutory alternative size standard.

A review of SBA's internal data on its Business Loan Programs for fiscal years 2021-2022 shows that the interim statutory alternative size standard may have enabled some small businesses that were not otherwise eligible under their industry-based size standards to receive 7(a) or CDC/504 Loans (“Business Loans”). However, SBA's internal data systems for its Business Loan Programs lack the necessary detailed electronic data that would allow for an assessment of the exact impact of the interim statutory size standard on small business loan applicants. Since the Agency's electronic systems only include data regarding the number of employees, the NAICS industry, and approved loan amount for each SBA loan recipient, but not the data regarding average annual receipts, tangible net worth, average net income, or whether the loan was approved under the industry or alternative size standard, SBA cannot easily calculate the exact number of businesses that qualified under the interim statutory alternative size standard that otherwise could not have qualified under their industry-based size standards. Similarly, due to the lack of data, SBA cannot easily identify industries or industry sectors in which the statutory alternative size standard helped small businesses the most or the least in accessing SBA Business Loans.

In accordance with its regulations, SBA is required to assess the impact of inflation on its monetary-based size standards at least once every five years (67 FR 3041; January 23, 2002) and 13 CFR 121.102(c)). Accordingly, except for the statutory alternative size standard for the SBA Business Loan Programs, SBA adjusted its monetary-based size standards for inflation three times since the Congress enacted the Interim Rule in 2010. 1 In its rulemaking for each adjustment, SBA provided that the statutorily set alternative size standard will remain in effect until SBA establishes a permanent alternative size standard for the SBA Business Loan Programs. Based on the GDP price index, inflation has increased more than 34% since the enactment of the statutory alternative size standard. This has eroded the value of the alternative size standard in real terms. SBA has an important policy objective of maintaining the value of monetary-based size standards in real ( i.e., inflation-adjusted) terms, and by adjusting the statutory alternative size standard for inflation. This rulemaking fulfils that objective. Additionally, one of the comments SBA received to its joint interim and final rule on inflation adjustment of monetary-based size standards, published on November 17, 2022 (87 FR 69118), urged SBA to immediately adjust for inflation the statutory alternative size standard for SBA's 7(a) and CDC/504 Loan Programs and to include it in future inflation adjustments of monetary size standards.

As stated earlier, due to the lack of relevant data, SBA is also not in a position to easily determine whether levels of tangible net worth and net income of the statutory alternative size standard are appropriate under the current economic environment. For the same reason, SBA is unable to develop an analysis to support the creation of a different permanent alternative size standard based on tangible net worth and average net income. The Economic and Agricultural Census data that SBA examines to establish the industry-based size standards does not contain information on tangible net worth or average net income by industry. Furthermore, while SBA collects and maintains limited relevant electronic data on each of the applicants for its Business Loan Programs (such as NAICS industry code, the number of employees, and approved loan amount), SBA's electronic data systems for Business Loan Programs do not maintain the data on average annual receipts, tangible net worth, average net income, and on whether an applicant for its Business Loan Programs was determined to be eligible under its industry based size standard or under the statutory alternative size standard. Similarly, the electronic data does not include information on the numbers or amounts of loan approvals that were issued under the industry-based size standard or under the interim statutory alternative size standard.

SBA is amending the contract limits applicable to its Surety Bond Guarantee (SBG) Program. The SBG Program is designed to increase small business' access to Federal, state, and local government contracting, as well as private-sector contracting, by guaranteeing bid, payment, and performance bonds on contracts for small and emerging contractors who cannot obtain surety bonds through regular commercial channels. 2 Surety bonds are important to small businesses interested in competing for Federal contracts because the Federal Government requires prime contractors, prior to the award of a Federal contract exceeding $150,000 for the construction, alteration, or repair of any building or public work of the United States, to furnish a performance bond issued by a surety satisfactory to the officer awarding the contract, and in an amount the contracting officer considers adequate, to protect the government.

The Housing and Urban Development Act of 1970 (Pub. L. 91-609) authorized the SBA's SBG Program. The act amended Title IV of the Small Business Investment Act of 1958 (15 U.S.C. 694a et seq., as amended) to provide SBA authority to guarantee any surety against loss as the result of a breach of the terms of a bid bond, payment bond, or performance bond by a small business. SBA's guarantee gives Sureties an incentive to provide bonding for small businesses and thereby assists small businesses in obtaining greater access to contracting opportunities. Based on the data for fiscal years 2021-2022, the SBG Program assists about 1,700 small businesses annually. 3 The program guarantees individual contracts of up to $6.5 million, and up to $10 million for Federal contracts if a Federal contracting officer certifies that such a guarantee is necessary. The $6.5 million limit should be periodically adjusted for inflation in accordance with 41 U.S.C. 1908. SBA's guarantee is an agreement between a Surety and SBA that SBA will assume a certain percentage of the Surety's loss should a contractor default on the underlying contract. The SBA's guarantee currently ranges from 80% to 90% of the Surety's loss if a default occurs. For more information about SBA's Surety Bond Guarantee Program, see https://www.sba.gov/funding-programs/surety-bonds. 4

During fiscal years 2021-2022, SBA guaranteed 17,966 bid and final ( i.e., a payment bond, performance bond, or both a payment and performance bond) surety bonds with a total contract value of about $13.1 billion and total bond value of about $8.3 billion. According to Table 1, Distribution of Number of Surety Bonds and Contract Value by Contract Size (FY 2021-2022), during fiscal years 2021-2022, contracts below $6.5 million accounted for 99.9% of total number of surety bonds and 99% of total contract value. That means that contracts between $6.5 million and $10 million contributed to the limited bonding activity, accounting for just 0.1% of total surety bonds and 1% of total contract value.

As stated earlier, the SBG Program is intended to increase small business' access to Federal, state, and local government contracting, as well as private-sector contracting by guaranteeing bid and final surety bonds. Table 2, Distribution of Surety Bonds, Contract Value, and Bond Value by Contract Type (FY 2021-2022), shows that State and Local Government contracting dominates the SBG program, accounting for 72% of the number of surety bonds, 66.5% of total contract value, and 51.7% of total bond value during fiscal years 2021-2022. The Federal Government contracting accounts for 11% of surety bonds, 15% of total contract value, and 18.1% of total bond value. For its part, private-sector contracting accounts for 8.7% of surety bonds, 11.8% of contract value, and 25.5% of bond value.

SBA's guaranteed surety bonds fall in two categories: (1) bid bonds, and (2) final bonds, which consist of a payment bond, performance bond, or both a payment and performance bond. According to the SBG program data for fiscal years 2021-2022, bid bonds account for 67.6% of total surety bonds and 70.7% of total contract value, but just 22.3% of total bond value. Final bonds account for 32.4% of total bonds, 29.3% of total contract value, and 77.7% of total bond value. Average bond value for bid bonds is about $153,000, as compared to more than $1 million for final bonds. These results are provided in Table 3, Distribution of Surety Bonds, Contract Value, and Bond Value by Bond Type (FY 2021-2022).

The statutory surety bond contract limits have not been adjusted since enacted in 2013. Rising inflation costs have eroded the buying power of contractors. The average size of Federal contracts for construction increased 134% from about $400,000 in 2013 to more than $1 million in 2022. Based on the SBG data for fiscal years 2021-2022, the construction sector accounted for more than 95% of total number of surety bonds, total contract value, and total bond amount. See Table 4, Distribution of Surety Bonds, Contract Value, and Bond Value by Business' NAICS Sector (FY 2021-2022), below. In this rule, SBA is amending the contract limits in its regulations to keep pace with inflation, which also will have the effect of keeping up with Federal contracting trends.

The only electronic data on the size of small business applicants approved for loans through the SBA Business Loan Programs available for review is the number of employees and the NAICS industry. In an effort to estimate the percentage of loans that were approved under the statutory alternative size standard, SBA examined its electronic internal data on its Business Loan Programs for fiscal years 2021-2022. During fiscal years 2021-2022, a total of 118,424 loans were issued through SBA Business Loan programs, of which 84% were issued through 7(a) Business Loan Program and 16% were dispersed through CDC/504 Loan Program. The loan amount through those programs totaled $79.64 billion, of which 82.6% was dispersed through 7(a) Program and 17.4% was dispersed through CDC/504 Program.

As stated earlier, SBA's electronic systems for its business loan data do not keep the data on receipts, tangible net worth, and net income of applicants to its Business Loan Programs. Thus, to estimate receipts, tangible net worth, and net income for each loan recipient, SBA first converted the employment level of each SBA business loan recipient to receipts using the receipts-to-employees ratios from the special tabulations of the 2017 Economic Census ( https://www.census.gov/econ/census/ ), 2017 Agricultural Census www.agcensus.usda.gov/ ), and 2017 County Business Patterns ( www.census.gov/econ/cbp/ ). The receipts of each loan applicant thus estimated were then combined with the various financial ratios from the Risk Management Association (RMA) ( https://rmau.org ) to derive the estimates of tangible net worth and net income for each loan applicant using the following steps:  5

Step 1: Estimate receipts equivalent of employment level for the i -th loan recipient in the j -th industry.

Step 2: Estimate net fixed assets (NFA) for the i -th loan recipient in the j -th industry.

Step 3: Estimate tangible net worth (TNW) for the i -th loan recipient in the j -the industry.

Step 4: Estimate net income (NI) for the i -th loan recipient in the j -th industry.

Step 5: Determine if a loan recipient meets an alternative size standard using the estimates of tangible net worth ( and average net income ( NFA/TNW i,j ) and the average net income ( NI i,j ).

Excluding invalid observations ( i.e., those with missing receipts to-job-ratios or missing one or more RMA ratios used to estimate values of tangible net worth and net income), 99.9% of SBA business loan recipients during fiscal years 2021-2022 were found to be at or below the statutory alternative size standard. However, the results do not allow for the estimation of the number of loans in which the lender applied the statutory alternative size standard to approve the loan application. 6

To assess the percentage of loan recipients that met the industry-based size standard, SBA first converted all industry size standards to receipts equivalent size standards as follows: (i) If an industry has a receipt-based size standard, the receipts equivalent size standard is the receipts-based size standard itself; and (ii) If an industry has an employee-based size standard, the receipts equivalent size standard is obtained by multiplying the employee-based size standard (number of employees) by the ratio of small business receipts to small business number of employees for that industry. For each of the loan recipients, the receipts equivalent size standard for their industry was compared with their estimated receipts in Step 1 above. If an applicant's estimated receipts in Step 1 above was less than or equal to the receipts equivalent size standard for its industry, the applicant is deemed to have met the industry-based size standard. Conversely, if the applicant's estimated receipts was higher than its industry receipts equivalent size standard, the applicant is deemed to have exceeded the industry-based size standard.

Mathematically,

The results showed that, excluding invalid observations ( i.e., observations with missing receipts-to-employee ratios or invalid NAICS codes with no size standards), 99.6% of SBA loan recipients during fiscal years 2021-2022 were deemed to be at or below their industry size standards. These results, however, do not enable the estimation of how often lenders applied industry-based size standards in approving loan applications.

Table 5, Applicant's Eligibility Under the Statutory Alternative and Industry-Based Size Standards (FY 2021-2022), summarizes the applicant's eligibility results for the statutory alternative size standard and industry based size standard. The data in Table 5 shows that 99.5% of loan recipients ( i.e., 117,288/117,882 = 0.995) were found to have met both the industry-based and statutory alternative size standard. Similarly, about 0.4% of loan recipients ( i.e., 500/117,882 = 0.004) that exceeded the industry-based size seemed to have qualified under the statutory alternative size standard. There were about 0.1% of loans ( i.e., 81/117,882 = 0.001) that seemed to have exceeded the statutory alternative size standard but appeared to have qualified under the industry-based size standard. Overall, 99.9% ( i.e., 117,788/117,882 = 0.999) of total loan recipients were deemed small under the statutory alternative size standard and 99.6% ( i.e., 117,369/117,882 = 0.996) of loan recipients were deemed small under the industry-based size standard. Only 0.1% of loan recipients were found to have exceeded the statutory alternative size standard and 0.4% of recipients exceeded the industry-based size standard.

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1642; Project Identifier MCAI-2023-00183-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Tim Dowling, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 206-231-3667; email: timothy.p.dowling@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2022-18-14, Amendment 39-22165 (87 FR 56566, September 15, 2022) (AD 2022-18-14), for certain Airbus SAS Model A330-201, -202, -203, -223, and -243 airplanes; Model A330-223F and -243F airplanes; Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes; Model A330-841 airplanes; and Model A330-941 airplanes. AD 2022-18-14 was prompted by MCAI originated by EASA, which is the Technical Agent for the Member States of the European Union. EASA issued AD 2021-0261, dated November 22, 2021 (EASA AD 2021-0261) (which prompted FAA AD 2022-18-14), to correct an unsafe condition.

AD 2022-18-14 requires revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations. The FAA issued AD 2022-18-14 to address fatigue cracking, accidental damage, and corrosion in principal structural elements; such fatigue cracking, accidental damage, and corrosion could result in reduced structural integrity of the airplane.

Since the FAA issued AD 2022-18-14, EASA superseded EASA AD 2021-0261 and issued EASA AD 2022-0187, dated September 13, 2022 (EASA AD 2022-0187), for all Airbus SAS Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, -343, -841 and -941 airplanes. EASA AD 2022-0187 states that new or more restrictive airworthiness limitations have been developed.

EASA also issued EASA AD 2023-0015, dated January 19, 2023 (EASA AD 2023-0015), for all Airbus SAS Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes. EASA AD 2023-0015 states that new or more restrictive airworthiness limitations have been developed. EASA AD 2023-0015 also states that it requires certain tasks also required by EASA AD 2022-0187, and invalidates (terminates) the tasks that are also required by EASA AD 2022-0187. Therefore, for this proposed AD, where EASA AD 2023-0015 affects the same airworthiness limitations as those in EASA AD 2022-0187, the airworthiness limitations referenced in EASA AD 2023-0015 would prevail.

Airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after November 18, 2022, must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet; this proposed AD therefore does not include those airplanes in the applicability.

The FAA is proposing this AD to address fatigue cracking, accidental damage, and corrosion in principal structural elements; such fatigue cracking, accidental damage, and corrosion could result in reduced structural integrity of the airplane. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1642.

The FAA reviewed EASA AD 2022-0187 and EASA AD 2023-0015. This service information specifies new or more restrictive airworthiness limitations for airplane structures. These documents are distinct since they apply to different airplane configurations.

This proposed AD would also require EASA AD 2021-0261, which the Director of the Federal Register approved for incorporation by reference as of October 20, 2022 (87 FR 56566, September 15, 2022).

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would retain all of the requirements of AD 2022-18-14. This proposed AD would also require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, which are specified in EASA AD 2022-0187 and EASA AD 2023-0015 already described, as proposed for incorporation by reference. Any differences with EASA AD 2022-0187 and EASA AD 2023-0015 are identified as exceptions in the regulatory text of this AD.

This proposed AD would require revisions to certain operator maintenance documents to include new actions ( e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance (AMOC) according to paragraph (m)(1) of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to retain the IBR of EASA AD 2021-0261, and incorporate EASA AD 2022-0187 and EASA AD 2023-0015 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0261, EASA AD 2022-0187, and EASA AD 2023-0015 through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0261, EASA AD 2022-0187, or EASA AD 2023-0015 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0261, EASA AD 2022-0187, or EASA AD 2023-0015. Service information required by EASA AD 2021-0261, EASA AD 2022-0187, or EASA AD 2023-0015 for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2023-1642 after the FAA final rule is published.

The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.

For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).

The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions ( e.g., inspections) or intervals may be used unless the actions and intervals are approved as an AMOC in accordance with the procedures specified in the AMOCs paragraph under “Additional AD Provisions.” This new format includes a “New Provisions for Alternative Actions and Intervals” paragraph that does not specifically refer to AMOCs, but operators may still request an AMOC to use an alternative action or interval.

The FAA estimates that this AD, if adopted as proposed, would affect 120 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the total cost per operator for the retained actions from AD 2022-18-14 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.

The FAA estimates the total cost per operator for the new proposed actions to be $7,650 (90 work-hours × $85 per work-hour).

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.

The FAA is 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.

The FAA 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) Would not affect intrastate aviation in Alaska, and

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

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

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1641; Project Identifier MCAI-2023-00598-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Shahram Daneshmandi, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 206-231-3220; email: shahram.daneshmandi@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-10-20, Amendment 39-21553 (86 FR 26373, May 14, 2021) (AD 2021-10-20), for certain ATR-GIE Avions de Transport Régional Model ATR42-500 and ATR72-212A airplanes. AD 2021-10-20 was prompted by an MCAI originated by EASA, which is the Technical Agent for the Member States of the European Union. EASA issued Emergency AD 2021-0120-E, dated May 3, 2021, to correct an unsafe condition.

AD 2021-10-20 requires revising the existing AFM and applicable corresponding operational procedures to update a systems limitation, limiting dispatch with certain equipment inoperative, performing an operational test of a certain contactor and an electrical test of a certain battery toggle switch, and performing corrective actions if necessary. The FAA issued AD 2021-10-20 to address reports of temporary loss of all display units and the integrated electronic standby instrument (IESI), which could result in loss of control of the airplane.

The preamble to AD 2021-10-20 explained that the FAA considered the requirements “interim action” and was considering further rulemaking. The FAA has now determined that further rulemaking is indeed necessary, and this proposed AD follows from that determination.

Since the FAA issued AD 2021-10-20, EASA superseded EASA Emergency AD 2021-0120-E, dated May 3, 2021, and issued EASA AD 2023-0078R1, dated April 20, 2023 (EASA AD 2023-0078R1) (also referred to as the MCAI), to correct an unsafe condition for all ATR-GIE Avions de Transport Régional Model ATR42-400 and -500 airplanes and ATR72-101, -102, -201, -202, -211, -212, -212A airplanes. Model ATR42-400 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this proposed AD therefore does not include those airplanes in the applicability. The MCAI states that new modification instructions have been published that would terminate the requirements of AD 2021-10-20, and expands the applicability to include Model ATR72-101, -102, -201, -202, -211, and -212 airplanes. Temporary loss of all display units and the IESI, if not corrected, could result in loss of control of the airplane.

The FAA is proposing this AD to address the unsafe condition on these products. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1641.

Although this proposed AD does not explicitly restate the requirements of AD 2021-10-20, this proposed AD would retain certain requirements of AD 2021-10-20. Those requirements are referenced in EASA AD 2023-0078R1, which, in turn, is referenced in paragraph (g) of this proposed AD.

EASA AD 2023-0078R1 specifies procedures for revising the existing AFM to update a systems limitation for the transformer rectifier unit (TRU), limiting dispatch with certain equipment inoperative (which can be done by amending the operator's minimum equipment list (MEL)), performing an operational test of the contactor FIN 1PA for discrepancies ( i.e., a lack of power supply to DU 4 or a static inverter 1 INV FAULT not being displayed on 29VU), replacing the battery toggle switch FIN 7PA, modifying the wiring, and performing corrective actions. Corrective actions include replacing the contactor FIN 1PA and restoring wiring. EASA AD 2023-0078R1 also prohibits the installation of affected parts.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would retain certain requirements of AD 2021-10-20. This proposed AD would add airplanes to the applicability and require accomplishing the actions specified in EASA AD 2023-0078R1 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

EASA AD 2023-0078R1 requires operators to “inform all flight crews” of revisions to the existing AFM and MEL, and thereafter to “operate the aeroplane accordingly.” However, this proposed AD would not specifically require those actions as those actions are already required by FAA regulations.

FAA regulations require operators furnish to pilots any changes to the AFM (for example, 14 CFR 121.137), and to ensure the pilots are familiar with the AFM (for example, 14 CFR 91.505). As with any other flightcrew training requirement, training on the updated AFM content is tracked by the operators and recorded in each pilot's training record, which is available for the FAA to review. FAA regulations also require pilots to follow the procedures in the existing AFM including all updates. 14 CFR 91.9 requires that any person operating a civil aircraft must comply with the operating limitations specified in the AFM. FAA regulations (14 CFR 121.628(a)(2)) require operators to provide pilots with access to all of the information contained in the operator's MEL. Furthermore, 14 CFR 121.628(a)(5) requires airplanes to be operated under all applicable conditions and limitations contained in the operator's MEL. Therefore, including a requirement in this proposed AD to operate the airplane according to the revised AFM and MEL would be redundant and unnecessary.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2023-0078R1 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0078R1 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0078R1 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0078R1. Service information required by EASA AD 2023-0078R1 for compliance will be available at regulations.gov under Docket No. FAA-2023-1641 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 21 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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.

The FAA is 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.

The FAA 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) Would not affect intrastate aviation in Alaska, and

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1639; Project Identifier MCAI-2023-00109-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Gabriel Kim, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email 9-avs-nyaco-cos@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2023-03, dated January 20, 2023 (Transport Canada AD CF-2023-03) (also referred to as the MCAI), to correct an unsafe condition for all MHI RJ Aviation ULC Model CL-600-2B19 (Regional Jet Series 100 & 440), CL-600-2C10 (Regional Jet Series 700, 701 & 702), CL-600-2C11 (Regional Jet Series 550), CL-600-2D15 (Regional Jet Series 705), CL-600-2D24 (Regional Jet Series 900), and CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states that in-service reports of PCU rod end fractures due to pitting corrosion led to the issuance of Transport Canada AD CF-2018-29, dated November 2, 2018 (which corresponds to FAA AD 2019-19-08, Amendment 39-19744 (84 FR 60902, November 12, 2019) (AD 2019-19-08). AD 2019-19-08 requires detailed inspections of the elevator PCU rod ends and applicable corrective actions, and prohibits using certain aircraft maintenance manual tasks. Pitting corrosion can cause the PCU end rod spherical bearing to seize, potentially inducing a bending moment on the PCU output rod. The bending moment will eventually fracture the rod end. This condition, if not corrected, could lead to a disconnect between the PCU and the elevator or rudder control surface, resulting in potential loss of the control surface function or inadequate flutter suppression. Since Transport Canada AD CF-2018-29 was issued, MHI RJ conducted further safety analyses and determined that new or more restrictive airworthiness limitations are necessary for the operational check of each individual rudder PCU and elevator PCU. Additionally, Transport Canada determined that certain return-to-service AMM tasks are needed following short-term or long-term airplane storage.

The FAA is proposing this AD to address the unsafe condition on these products. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1639.

The FAA reviewed MHI RJ Temporary Revisions ALI-0757 and ALI-0759, both dated September 24, 2021. This service information specifies new or more restrictive airworthiness limitations for the elevator and rudder PCUs.

The FAA also reviewed the following service information. This service information specifies, among other tasks, operational tests of the rudder control and elevator control systems, and detailed inspections of the rudder PCU rod end spherical ball and elevator PCU rod end spherical ball, and corrective actions. Corrective actions include making sure that the applicable parts are moving or rotating correctly. These documents are distinct since they apply to different airplane models in different configurations.

• Subject 27-23-01, Power Control Unit (PCU)—Rudder, Chapter 27—Flight Controls, MHI RJ CRJ700/900/1000 Aircraft Maintenance Manual, Part 2, CSP B-001, Revision 71, dated December 16, 2022.

• Subject 27-33-01, Power Control Unit (PCU)—Elevator, Chapter 27, Flight Controls, MHI RJ CRJ700/900/1000 Aircraft Maintenance Manual, Part 2, CSP B-001, Revision 71, dated December 16, 2022.

• Task 27-21-00-710-805, Operational Test of the Rudder Control System, Subject 27-21-00, Rudder Control System, Chapter 27, Flight Controls, of MHI RJ CRJ200 Aircraft Maintenance Manual, CSP A-001, Revision 66, dated October 10, 2022.

• Task 27-23-01-220-801, Detailed Inspection of the Rudder PCU Rod End Spherical Ball, Subject 27-23-01, Power Control Unit (PCU), Rudder, Chapter 27, Flight Controls, of MHI RJ CRJ200 Aircraft Maintenance Manual, CSP A-001, Revision 66, dated October 10, 2022.

• Task 27-31-00-710-803, Operational Test of the Elevator Control System, Subject 27-31-00, Elevator Control System, Chapter 27, Flight Controls, of MHI RJ CRJ200 Aircraft Maintenance Manual, CSP A-001, Revision 66, dated October 10, 2022.

• Task 27-33-01-220-801, Detailed Inspection of the Elevator PCU Rod End Spherical Ball, Subject 27-33-01, Power Control Unit (PCU), Elevator, Chapter 27, Flight Controls, of MHI RJ CRJ200 Aircraft Maintenance Manual, CSP A-001, Revision 66, dated October 10, 2022.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI and service information referenced above. The FAA is proposing this AD because the FAA evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. This proposed AD would also require accomplishing certain AMM tasks and corrective actions following short-term or long-term storage.

This proposed AD would require revisions to certain operator maintenance documents to include new actions ( e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (j)(1) of this proposed AD.

The FAA estimates that this AD, if adopted as proposed, would affect 1,125 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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.

The FAA is 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.

The FAA 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) Would not affect intrastate aviation in Alaska, and

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

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

On March 12, 1997, the Federal Trade Commission (“Commission”) published a document in the Federal Register initiating a review of the effectiveness of the Pay-Per-Call Rule. 62 FR 11750. Among other things, the Pay-Per-Call Rule requires disclosures about the cost of telephone-based entertainment or information services that consumers access by dialing a 900 number and mandates that consumers be given the opportunity to hang up the phone before being charged. See 16 CFR 308.1 through 308.8. The Commission also sought comment on whether to expand the scope of the rule to cover audio information and entertainment services accessed by dialing telephone numbers that begin with numbers other than “900”.

After receiving a small number of comments in favor of this approach, the Commission published a notice of proposed rulemaking (“NPRM”) to amend the rule on October 30, 1998. 63 FR 58523. Following two additional rounds of public comment and a two-day public workshop on the proposed changes, support to amend the Pay-Per-Call Rule proved limited. 1 Additionally, technological changes have muted the impact of the proposed amendments. Not only did the use of 900 numbers decline precipitously after issuance of the NPRM, 2 ultimately resulting in the major U.S. telecommunications providers of 900-number services discontinuing those services, 3 but such reduction in use likewise diminished the necessity of Commission enforcement of the Rule. The Commission last brought an action under the rule in 2003. 4 Accordingly, the review of the Pay-Per-Call Rule begun on March 12, 1997, is terminated, and the Commission withdraws this proposed rulemaking.

Table of Contents I. Summary of EPA's Proposed Action II. Background III. Criteria for Redesignation IV. Kentucky's SIP Submittal V. EPA's Analysis of Kentucky's SIP Submittal VI. EPA's Analysis of Kentucky's Proposed NO X and VOC MVEBs VII. EPA's Adequacy Determination for the Proposed NO X and VOC MVEBs VIII. Effect of EPA's Proposed Actions IX. Proposed Actions X. Statutory and Executive Order Reviews I. Summary of EPA's Proposed Action

EPA is proposing to take the following separate but related actions addressing the September 20, 2022, submittal, as supplemented on November 22, 2022:  1 (1) to approve Kentucky's plan for maintaining the 2015 ozone NAAQS (maintenance plan), including the associated MVEBs, for the Northern Kentucky Area and incorporate the plan into the SIP, and (2) to redesignate the Northern Kentucky Area to attainment for the 2015 8-hour ozone NAAQS. EPA is also notifying the public of the status of EPA's adequacy determination for the MVEBs for the Northern Kentucky Area. The Northern Kentucky Area is composed of portions of Boone, Campbell, and Kenton Counties in Kentucky. The Cincinnati, OH-KY Area is composed of the Northern Kentucky Area and the counties of Butler, Clermont, Hamilton, and Warren in Ohio. These proposed actions are summarized below and described in greater detail through this notice of proposed rulemaking.

EPA is proposing to approve Kentucky's maintenance plan for its portion of the Cincinnati, OH-KY Area as meeting the requirements of section 175A (such approval being one of the Clean Air Act (CAA or Act) criteria for redesignation to attainment status) and incorporate it into the SIP. The maintenance plan is designed to keep the Cincinnati, OH-KY Area in attainment of the 2015 8-hour ozone NAAQS through 2035. The maintenance plan includes 2026 and 2035 MVEBs for NO X and VOC for the Northern Kentucky Area for transportation conformity purposes. EPA is proposing to approve these MVEBs and incorporate them into the SIP.

EPA also proposes to determine that the Northern Kentucky Area has met the requirements for redesignation under section 107(d)(3)(E) of the CAA. Accordingly, EPA is proposing to approve a request to change the legal designation of the portions of Boone, Campbell, and Kenton Counties in Kentucky's portion of the Cincinnati, OH-KY Area, as found at 40 CFR 81.318, from nonattainment to attainment for the 2015 8-hour ozone NAAQS.

EPA is also notifying the public of the status of EPA's adequacy process for the MVEBs for the Northern Kentucky Area. The Adequacy comment period began on September 28, 2022, with EPA's posting of the availability of Kentucky's submission on EPA's Adequacy website ( https://www.epa.gov/state-and-local-transportation/state-implementation-plans-sip-submissions-currently-under-epa ). The Adequacy comment period for these MVEBs closed on October 28, 2022. No comments, adverse or otherwise, were received during the Adequacy comment period. Please see section VII of this notice of proposed rulemaking for further explanation of this process and for more details on MVEBs.

In summary, this notice of proposed rulemaking is in response to Kentucky's September 20, 2022, redesignation request and associated SIP submission that addresses the specific issues summarized above and the necessary elements described in section 107(d)(3)(E) of the CAA for redesignation of the Kentucky portion of the Cincinnati, OH-KY Area to attainment for the 2015 8-hour ozone NAAQS and the associated MVEBs.

On October 1, 2015, EPA revised both the primary and secondary NAAQS for ozone to a level of 0.070 parts per million (ppm) to provide increased protection of public health and the environment. See 80 FR 65292 (October 26, 2015). The 2015 ozone NAAQS retains the same general form and averaging time as the 0.075 ppm NAAQS set in 2008 but is set at a more protective level. Under EPA's regulations at 40 CFR part 50, the 2015 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.070 ppm. See Appendix U of 40 CFR part 50. This 3-year average is referred to as the design value.

Upon promulgation of a new or revised ozone NAAQS, section 107(d) of the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS (or that contributes to ambient air quality in a nearby area that is violating the NAAQS). As part of the designations process for the 2015 8-hour ozone NAAQS, the Cincinnati, OH-KY Area was designated as a “Marginal” ozone nonattainment area, effective August 3, 2018. See 83 FR 25776 (June 4, 2018). Areas that were designated as Marginal ozone nonattainment areas were required to attain the 2015 8-hour ozone NAAQS no later than August 3, 2021, based on 2018, 2019, and 2020 monitoring data. See 40 CFR 51.1303. EPA reclassified the Northern Kentucky Area to Moderate on October 7, 2022, after failing to attain by the attainment date. 2 See 87 FR 60897 (October 7, 2022) and 40 CFR 81.318. The October 7, 2022, action requires Moderate areas to attain the 2015 8-hour ozone NAAQS as expeditiously as practicable, but no later than August 3, 2024, six years after the effective date of the initial nonattainment designations. See 40 CFR 51.1303.

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

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

On September 20, 2022, and supplemented on November 22, 2022, Kentucky requested that EPA redesignate the Northern Kentucky Area to attainment for the 2015 8-hour ozone NAAQS and approve the associated SIP revision submitted on the same date containing a maintenance plan for the Area. EPA's evaluation indicates that the Northern Kentucky Area meets the requirements for redesignation as set forth in CAA section 107(d)(3)(E), including the maintenance plan requirements under CAA section 175A and associated MVEBs. As a result of these proposed findings, EPA is proposing to take the actions summarized in Section I of this notice. EPA's analysis and rationale for this proposal is provided below.

As stated above, in accordance with the CAA, EPA proposes to approve the 2015 8-hour ozone NAAQS maintenance plan, including the associated MVEBs, and incorporate it into the Kentucky SIP, and redesignate the Northern Kentucky Area to attainment for the 2015 8-hour ozone NAAQS. The five redesignation criteria provided under CAA section 107(d)(3)(E) are discussed in greater detail for the Area in the following paragraphs of this section.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has attained the applicable NAAQS. See CAA section 107(d)(3)(E)(i). For ozone, an area may be considered to be attaining the 2015 8-hour ozone NAAQS if it meets the 2015 8-hour ozone NAAQS, as determined in accordance with 40 CFR 50.19 and Appendix U of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain the 2015 8-hour ozone NAAQS, the 3-year average of the annual fourth highest daily maximum 8-hour average ozone concentrations measured at each monitor within an area must not exceed 0.070 ppm. Based on the data handling and reporting convention described in 40 CFR part 50, Appendix U, the 2015 8-hour ozone NAAQS are attained if the design value is 0.070 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58 and recorded in EPA's Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment.

EPA reviewed complete, quality-assured, and certified ozone monitoring data from monitoring stations in the Cincinnati, OH-KY Area for the 2015 8-hour ozone NAAQS for 2019 through 2021 and has determined that the design values for each monitor in the Area are equal to or less than the standard of 0.070 ppm for that time period. Based on this air quality monitoring data, EPA is proposing to determine that the Cincinnati, OH-KY Area has attained the 2015 8-hour ozone NAAQS. The fourth-highest 8-hour ozone values at each monitor for 2019 through 2021 and the 3-year averages of these values ( i.e., design values), are summarized in Table 1, below.

The highest 3-year design value for 2019-2021 for the Cincinnati, OH-KY Area is 0.070 ppm at the Hamilton County, Ohio site (39-061-0006) and at the Warren County, Ohio site (39-165-0007), 4 which meets the NAAQS.

EPA will not take final action to approve the redesignation of the Kentucky portion of the Cincinnati, OH-KY Area if the 3-year design value exceeds the NAAQS prior to EPA finalizing the redesignation. Preliminary 2022 ozone monitoring data currently indicates attaining 2022 design values for the Cincinnati, OH-KY Area. As discussed in more detail below, Kentucky has committed to continue monitoring in this Area in accordance with 40 CFR part 58.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the State has met all applicable requirements under section 110 and part D of title I of the CAA, see CAA section 107(d)(3)(E)(v) and that the State has a fully approved SIP under section 110(k) for the area, see CAA section 107(d)(3)(E)(ii). EPA proposes to find that Kentucky has met all applicable SIP requirements for the Northern Kentucky Area under section 110 of the CAA (general SIP requirements) for purposes of redesignation. Additionally, EPA proposes to find that Kentucky has met all applicable SIP requirements for purposes of redesignation under part D of title I of the CAA in accordance with section 107(d)(3)(E)(v), and proposes to determine that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii). In making these proposed determinations, EPA ascertained which requirements are applicable to the Area and, if applicable, that they are fully approved under section 110(k). SIPs must be fully approved only with respect to requirements that were due prior to submittal of the complete redesignation request.

General SIP requirements. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements include, but are not limited to, the following: submittal of a SIP that has been adopted by the State after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and provisions for the implementation of part D requirements (NSR permit programs); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.

Section 110(a)(2)(D)(i)(I) of the Act, referred to as the “good neighbor provision” or the “interstate transport provision,” requires that SIPs contain measures to prevent sources in a State from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain States to establish programs to address the interstate transport of air pollutants. The section 110(a)(2)(D)(i)(I) requirements for a State are not linked with a particular nonattainment area's designation and classification in that State. EPA believes that the requirements linked with a particular nonattainment area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a State regardless of the designation of any one particular area in the State. Thus, EPA does not believe that the CAA's interstate transport requirements should be construed to be applicable for purposes of redesignation.

In addition, EPA believes other section 110 elements that are neither connected with nonattainment plan submissions nor linked with an area's attainment status are not applicable requirements for purpose of redesignation. The area will still be subject to these requirements after the area is redesignated. The section 110 and part D requirements which are linked with a particular area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. This approach is consistent with EPA's existing policy on applicability ( i.e., for redesignations) of conformity and oxygenated fuels requirements, as well as with section 184 ozone transport requirements. See 61 FR 53174 (October 10, 1996) and 62 FR 24826 (May 7, 1997) (Reading, Pennsylvania, proposed and final rulemakings); 61 FR 20458 (May 7, 1996) (Cleveland-Akron-Loraine, Ohio, final rulemaking); and 60 FR 62748, (December 7, 1995) (Tampa, Florida, final rulemaking)). See also 65 FR 37890 (June 19, 2000) (discussion on this issue in Cincinnati, Ohio, redesignation) and 66 FR 50399 (October 19, 2001) (Pittsburgh, Pennsylvania, redesignation).

Title I, part D, applicable SIP requirements. Section 172(c) of the CAA sets forth the basic requirements of attainment plans for nonattainment areas that are required to submit them pursuant to section 172(b). Subpart 2 of part D, which includes section 182 of the CAA, establishes specific requirements for ozone nonattainment areas depending on the area's nonattainment classification. As provided in subpart 2, a Marginal ozone nonattainment area must submit an emissions inventory that complies with section 172(c)(3), but the specific requirements of section 182(a) apply in lieu of the demonstration of attainment (and contingency measures) required by section 172(c). See 42 U.S.C. 7511a(a). A Moderate area must meet the Marginal area requirements of section 182(a) and additional requirements specific to Moderate (and higher) areas under section 182(b), as well as the general requirements of 172(c). A thorough discussion of the requirements contained in sections 172(c) and 182 can be found in the General Preamble for Implementation of Title I. See 57 FR 13498 (April 16, 1992).

Under its longstanding interpretation of the CAA, EPA has interpreted section 107(d)(3)(E) to mean, as a threshold matter, that the part D provisions which are “applicable” and which must be approved in order for EPA to redesignate an area include only those which came due prior to a State's submittal of a complete redesignation request. See Calcagni Memorandum. See also Shapiro Memorandum; 60 FR 12459, 12465-66 (March 7, 1995) (Final Redesignation of Detroit-Ann Arbor, Michigan,); 68 FR 25418, 25424-27 (May 12, 2003) (Final Redesignation of St. Louis, Missouri); and Sierra Club v. EPA, 375 F. 3d 537, 541 (7th Cir. 2004) (upholding EPA's redesignation rulemaking applying this interpretation and expressly rejecting Sierra Club's view that the meaning of “applicable” under the statute is “whatever should have been in the plan at the time of attainment” rather than “whatever actually was in the plan and already implemented or due at the time of attainment”). 5 For the Northern Kentucky Area, no section 182(b) Part D Moderate nonattainment area requirements for the 2015 8-hour ozone standard were due at the time that Kentucky submitted its redesignation request on September 20, 2022; therefore these requirements are not applicable for the purposes of redesignation. See Section II, above (discussing the reclassification of the Northern Kentucky Area to Moderate on October 7, 2022). In addition, as discussed below, several of the Part D requirements under 182(a) are otherwise not applicable for the purposes of redesignation and several of the requirements have already been satisfied by the Commonwealth.

Section 182(a) Requirements. Section 182(a)(1) requires States to submit a comprehensive, accurate, and current inventory of actual emissions from sources of VOC and NO X emitted within the boundaries of the ozone nonattainment area. This required submission was due by August 3, 2020, for the Northern Kentucky Area. See 40 CFR 51.1315(a). Kentucky provided an emissions inventory for the Area to EPA in a December 22, 2021, SIP submission, and EPA approved the emissions inventory in an action published on September 30, 2022. See 87 FR 59320.

Under section 182(a)(2)(A), states with ozone nonattainment areas that were designated prior to the enactment of the 1990 CAA amendments were required to submit, within six months of classification, all rules and corrections to existing VOC reasonably available control technology (RACT) rules that were required under section 172(b)(3) of the CAA (and related guidance) prior to the 1990 CAA amendments. The Area is not subject to the section 182(a)(2) RACT “fix up” requirement for the 2015 ozone NAAQS because it was designated as nonattainment for this standard after the enactment of the 1990 CAA amendments. Furthermore, the Commonwealth complied with this requirement under the 1-hour ozone NAAQS for the Northern Kentucky portion of the Cincinnati, OH-KY Area. See 59 FR 32343 (June 23, 1994).

Section 182(a)(2)(B) requires each State with a Marginal or higher ozone nonattainment area classification that implemented, or was required to implement, a vehicle inspection and maintenance (I/M) program prior to the 1990 CAA amendments to submit a SIP revision providing for an I/M program no less stringent than that required prior to the 1990 amendments or already in the SIP at the time of the amendments, whichever is more stringent. The Northern Kentucky Area is not subject to the section 182(a)(2)(B) requirement because the Area was designated as nonattainment for the 2015 8-hour ozone standard after the enactment of the 1990 CAA amendments.

Regarding the permitting and offset requirements of section 182(a)(2)(C) and section 182(a)(4), Kentucky currently has a fully approved part D NSR program in place. However, EPA has determined that areas being redesignated need not comply with the requirement that a NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the NAAQS without part D NSR, because PSD requirements will apply after redesignation. A more detailed rationale for this view is described in the Nichols Memorandum. Kentucky's PSD program will become applicable in the Northern Kentucky Area upon redesignation to attainment.

Section 182(a)(3) requires States to submit periodic inventories and emissions statements. Section 182(a)(3)(A) requires States to submit a periodic inventory every three years. As discussed below in the section of this notice titled Verification of Continued Attainment, the Commonwealth will continue to update its emissions inventory at least once every three years. Under section 182(a)(3)(B), each State with an ozone nonattainment area must submit a SIP revision requiring emissions statements to be submitted to the State by certain sources within that nonattainment area. Kentucky provided a SIP revision to EPA on October 16, 2020, addressing the section 182(a)(3)(B) emissions statements requirements for the Northern Kentucky Area, and on April 26, 2022, EPA published a final rule approving that SIP revision. See 87 FR 24429 (April 26, 2022).

Section 182(b) Requirements. Section 182(b) of the CAA, found in subpart 2 of Part D, establishes additional requirements for Moderate (and higher) ozone nonattainment areas. As noted above, no section 182(b) Moderate nonattainment area requirements for the 2015 8-hour ozone standard, including RACT under section 182(b)(2), were due at the time that Kentucky submitted its redesignation request on September 20, 2022; therefore, these requirements are not applicable for the purposes of redesignation.

Section 176 Conformity Requirements. Section 176(c) of the CAA requires States to establish criteria and procedures to ensure that federally supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects that are developed, funded, or approved under title 23 of the United States Code (U.S.C.) and the Federal Transit Act (transportation conformity) as well as to all other federally supported or funded projects (general conformity). State transportation conformity SIP revisions must be consistent with Federal conformity regulations relating to consultation, enforcement, and enforceability that EPA promulgated pursuant to its authority under the CAA.

EPA interprets the conformity SIP requirements  6 as not applying for the purposes of evaluating a redesignation request under section 107(d) because State conformity rules are still required after redesignation and Federal conformity rules apply where State rules have not been approved. See Wall v. EPA, 265 F.3d 426 (6th Cir. 2001) (upholding this interpretation); see also 60 FR 62748 (December 7, 1995) (redesignation of Tampa, Florida). 7

Thus, for the reasons discussed above, EPA proposes to find that the Northern Kentucky Area has satisfied all applicable requirements for purposes of redesignation under section 110 and part D of title I of the CAA.

EPA has fully approved the applicable Kentucky SIP for the Northern Kentucky Area under section 110(k) of the CAA for all requirements applicable for purpose of redesignation. EPA may rely on prior SIP approvals in approving a redesignation request, see Calcagni Memorandum at p. 3; Southwestern Pennsylvania Growth Alliance v. Browner, 144 F.3d 984, 989-90 (6th Cir. 1998); and Wall v. EPA, 265 F.3d 426 (6th Cir. 2001), plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25426 (May 12, 2003) (including citations therein). Kentucky has adopted and submitted, and EPA has fully approved at various times, provisions addressing various SIP elements applicable for the ozone NAAQS. See 85 FR 33021 (June 1, 2020) and 85 FR 54507 (September 2, 2020). As discussed above, EPA believes that the section 110 elements that are neither connected with nonattainment plan submissions, nor linked to an area's nonattainment status, are not applicable requirements for purposes of redesignation and believes that Kentucky has met all part D requirements applicable for purpose of this redesignation.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the air quality improvement in the area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, applicable Federal air pollution control regulations, and other permanent and enforceable reductions. See CAA section 107(d)(3)(E)(iii). EPA has preliminarily determined that Kentucky has demonstrated that the observed air quality improvement in the Cincinnati, OH-KY Area is due to permanent and enforceable reductions in emissions resulting from Federal measures and from State measures adopted into the SIP and is not the result of unusually favorable weather conditions or reduced transportation or economic slowdown related to the COVID-19 pandemic. 8

State measures adopted into the SIP and Federal measures enacted in recent years have resulted in permanent emission reductions. Kentucky's September 20, 2022, submittal identifies SIP-approved State measures, some of which implement Federal requirements, that have been implemented to date. Those measures specifically regulate cement kilns and open burning, as well as a variety of other sources, as explained in the following paragraphs.

Cement Kilns. Kentucky adopted regulation 401 Kentucky Administrative Regulation (KAR) 51:170 to regulate NO X emissions from cement kilns, setting a limit of 6.6 pounds per ton of clinker produced, averaged over a 30-day period. Kentucky has regulations in Chapters 59 and 61 of Title 401 of the Kentucky Administrative Regulations (KAR) which limit NO X and VOC emissions for new and existing sources in various source categories.

Open Burning Bans. EPA first incorporated regulation 401 KAR 63:005 Open Burning into the Kentucky SIP on July 12, 1982 (47 FR 30059), with the latest incorporation on October 17, 2007 (72 FR 58759). This regulation prohibits most types of open burning from May through September of each year in areas that have been or are currently in violation of the ozone NAAQS within Kentucky.

Other Sources. Kentucky has regulations in Chapters 59 and 61 of Title 401 of the KAR which limit NOx and VOC emissions for new and existing sources in various source categories.

Additionally, Federal measures enacted in recent years have also resulted in permanent emission reductions in the Northern Kentucky Area. The Federal measures that have been implemented include the following:

Tier 2 Emission Standards for Vehicles and Gasoline Sulfur Standards. Implementation began in 2004 and as newer, cleaner cars enter the national fleet, these standards continue to significantly reduce NO X emissions. 9 These standards require all passenger vehicles in any manufacturer's fleet to meet an average standard of 0.07 grams of NO X per mile. Additionally, in January 2006, the sulfur content of gasoline was required to be on average 30 ppm which assists in lowering the NO X emissions. EPA expects that these standards will reduce NO X emissions from cars by approximately 77 percent, and approximately 86 percent for minivans, light trucks, and small SUVs by 2030, translating to nearly 3 million tons annually by 2030. 10

Tier 3 Motor Vehicle Emission and Fuel Standards. Implementation began in 2017 and will continue to phase in through 2025. 11 These standards set new vehicle emissions standards and lower the allowed sulfur content of gasoline in order to reduce air pollution from passenger cars and trucks. Tailpipe and evaporative emissions will be reduced for passenger cars, light-duty trucks, medium-duty passenger vehicles, and some heavy-duty vehicles. The Tier 3 vehicle standards for light-duty vehicles, light-duty trucks, and medium-duty passenger vehicles will be a fleet average standard of 0.03 gram of non-methane organic gases (NMOG) + NO X per mile as measured on the Federal Test Procedure (FTP), and a fleet average standard 0.05 gram of NMOG + NO X per mile as measured on the Supplemental Federal Test Procedure (SFTP). The Tier 3 vehicle standards for heavy-duty pickup trucks and vans will be 0.178 gram per mile of non-methane organic gases (NMOG) + NO X for Class 2b vehicles and 0.247 gram per mile of NMOG + NO X for Class 3 vehicles, as measured on the FTP. This standard required Federal gasoline to meet an annual average standard of 10 ppm of sulfur by January 1, 2017. The Tier 3 tailpipe standards for light-duty vehicles will reduce the fleet average standards for the sum of NMOG and NO X , NMOG + NO X , by approximately 80 percent from the current fleet average standards, and will reduce the per-vehicle particulate matter (PM) standards by 70 percent. The Tier 3 program for heavy-duty vehicles will reduce the fleet average standards for NMOG + NO X and PM by approximately 60 percent from the current fleet average standards. The Tier 3 program is also reducing the evaporative VOCs by approximately 50 percent from the current standards, and these standards apply to all light-duty and on-road gasoline-powered heavy-duty vehicles.

Heavy-Duty Engine and Vehicle Standards and Highway Diesel Fuel Sulfur Control Requirements. EPA issued this rule in 2001. See 66 FR 5002 (January 18, 2001). This rule includes standards limiting the sulfur content of diesel fuel, which went into effect in 2004. A second phase took effect in 2007, which further reduced the highway diesel fuel sulfur content to 15 ppm, leading to additional reductions in combustion NO X and VOC emissions. EPA expects that this rule will achieve a 95 percent reduction in NO X emissions from diesel trucks and buses and will reduce NO X emissions by 2.6 million tons by 2030 when the heavy-duty vehicle fleet is completely replaced with newer heavy-duty vehicles that comply with these emission standards.

National Greenhouse Gas (GHG) Emission Standards for Passenger Cars and Light Trucks. In 2010 and 2012, EPA issued rulemakings for Federal GHG and fuel economy standards that apply to light-duty cars and trucks in model years 2012-2016 (Phase 1) and 2017-2025 (Phase 2). The final standards are projected to result in an average industry fleet-wide level of 163 grams/mile in carbon dioxide which is equivalent to 54.5 miles per gallon if achieved exclusively through fuel economy improvements. The fuel economy standards result in less fuel being consumed and, therefore, slightly less VOC emissions released.

EPA issued the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule on March 20, 2020, as an update to Phase 2. This new standard sets fuel economy and CO 2 standards that increase 1.5 percent in stringency each year from model years 2021 through 2026 and applies to passenger cars and light trucks. On February 8, 2021, the D.C. Circuit issued an order granting the Federal Government's motion to stay litigation over the SAFE Vehicles Rule ( Union of Concerned Scientists v. NHTSA, Case No. 19-1230 (D.C. Cir.)).

On December 30, 2021, EPA published the Revised 2023 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions Standards (Revised 2023 GHG Standards). See 86 FR 74434. The Revised 2023 GHG Standards revised, and made more stringent, the GHG standards to be more stringent than the SAFE rule standards in each model year from 2023 through 2026. The action also includes temporary targeted flexibilities to address the lead time of the final standards and to incentivize the production of vehicles with zero and near-zero emissions technology and EPA made technical amendments to clarify and streamline regulations. These standards will result in a reduction in GHG emissions. They will also result in a net reduction in NOx emissions by 2050.

National Emission Standards for Hazardous Air Pollutants From Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units. 12 The Mercury and Air Toxics Standard (MATS) and the new source performance standard (NSPS) were published in 2012. See 77 FR 9304 (February 16, 2012). MATS was promulgated to reduce emissions of heavy metals, including mercury (Hg), arsenic (As), chromium (Cr), and nickel (Ni); and acid gases, including hydrochloric acid (HCl) and hydrofluoric acid (HF) from new and existing coal and oil-fired electric utility steam generating units (EGUs). The MATS compliance date for new sources was April 16, 2012, and April 16, 2015, for existing sources.

National Emission Standards for Hazardous Air Pollutants (NESHAPs) for Major Sources: Industrial, Commercial, and Institutional Boilers and Process Heaters; National Emissions Standards for Hazardous Air Pollutants for Stationary Reciprocating Internal Combustion Engines. 13 The NESHAP for industrial, commercial, and institutional boilers (40 CFR part 63 subpart DDDDD) and the NESHAP for Reciprocating Internal Combustion Engines (RICE) (40 CFR part 63 subpart ZZZZ) are projected to reduce VOC emissions. The former applies to boiler and process heaters located at major sources of hazardous air pollutants (HAPs) that burn natural gas, fuel oil, coal, biomass, refinery gas, or other gas and had a compliance deadline of January 31, 2016. The latter applies to existing, new, or reconstructed stationary RICE located at major or area sources of HAPs, excluding stationary RICE being tested at a stationary RICE test cell, and has various compliance dates from August 16, 2004, to October 19, 2013, depending on the type of source and date of construction or reconstruction.

Nonroad Spark-Ignition Engines and Recreational Engines Standards. On November 8, 2002 (67 FR 68242), EPA adopted emission standards for large spark-ignition engines such as those used in forklifts and airport ground service equipment; recreational vehicles such as off-highway motorcycles, all-terrain vehicles, and snowmobiles; and recreational marine diesel engines. These emission standards were phased in from model year 2004 through 2012. When fully implemented by 2030, EPA estimates an overall 75 percent reduction in VOC emissions and an 82 percent reduction in NO X emissions. These controls reduce ambient concentrations of ozone, carbon monoxide, and fine particulate matter.

Category 3 Marine Diesel Engine Standards. On April 30, 2010 (75 FR 22896), EPA issued emission standards for marine compression-ignition engines at or above 30 liters per cylinder. Tier 2 emission standards applied beginning in 2011 and are expected to result in a 15 to 25 percent reduction in NOx emissions from these engines. Final Tier 3 emission standards applied beginning in 2016 and are expected to result in approximately an 80 percent reduction in NOx from these engines.

Transportation Rulemakings. In any given location, ozone pollution levels are impacted by a combination of background ozone concentration, local emissions, and emissions from upwind sources resulting from ozone transport. Downwind States' ability to meet health-based air quality standards such as the NAAQS is challenged by the transport of ozone pollution across State borders. See, e.g., 87 FR 20036 (April 6, 2022). EPA acknowledges the historical account in Kentucky's September 20, 2022, submittal and the historical account of national interstate transport rules and associated NO X ozone season trading programs  14 that addressed interstate transport for previous 1979 1-hour, 1997 8-hour and the 2008 8-hour ozone NAAQS. These programs have provided some benefits in the form of NOx ozone season emission reductions for certain sources in the Commonwealth and regionally.

EPA proposes to find that the improvements in air quality in the Northern Kentucky Area are due to real, permanent and enforceable reductions in NO X and VOC emissions resulting from the Federal and SIP-approved State measures discussed above.

For redesignating a nonattainment area to attainment, the CAA requires EPA to determine that the area has a fully approved maintenance plan pursuant to section 175A of the CAA. See CAA section 107(d)(3)(E)(iv). In conjunction with its request to redesignate the Northern Kentucky Area to attainment for the 2015 8-hour ozone NAAQS, Kentucky submitted a SIP revision to provide for the maintenance of the 2015 8-hour ozone NAAQS for at least 10 years after the effective date of redesignation to attainment. EPA has made the preliminary determination that this maintenance plan meets the requirements for approval under section 175A of the CAA.

Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Pursuant to section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves a redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan which demonstrates that attainment will continue to be maintained for the remainder of the 20-year period following the initial 10-year period. To address the possibility of future NAAQS violations, the maintenance plan must contain contingency measures as EPA deems necessary to assure prompt correction of any future 2015 8-hour ozone violations. The Calcagni Memorandum provides further guidance on the content of a maintenance plan, explaining that a maintenance plan should address five requirements: the attainment emissions inventory, maintenance demonstration, monitoring plan, verification of continued attainment, and a contingency plan. As discussed more fully below, EPA has preliminarily determined that Kentucky's maintenance plan includes all the necessary components and is thus proposing to approve it as a revision to the Kentucky SIP.

As discussed above, the Northern Kentucky Area has an attaining design value for the 2015 8-hour ozone NAAQS based on quality-assured monitoring data for the 3-year period from 2019- 2021. 15 The Northern Kentucky Area's preliminary 2020-2022 design value currently indicates that the area will likely continue to attain the 2015 ozone NAAQS. Kentucky selected 2019 as the attainment emissions inventory year for developing a comprehensive emissions inventory for NO X and VOC, from which projected emissions could be developed for 2026 and 2035. The attainment inventory identifies a level of emissions in the Area that is sufficient to attain the 2015 8-hour ozone NAAQS. Kentucky began development of the attainment inventory by first generating a baseline emissions inventory for the Area. The 2019 attainment year emissions were projected to 2035 for EGU point sources, non-EGU point sources, area sources, non-road mobile sources, and on-road mobile sources. The Commonwealth projected summer day emissions inventories using projected rates of growth in population, traffic, economic activity, and other parameters. In addition to comparing the final year of the plan (2035) to the 2019 attainment year, Kentucky compared interim years to the attainment year to demonstrate that these years are also expected to show continued maintenance of the 2015 8-hour ozone standard.

The emissions inventory is composed of four major types of sources: Point, non-point, on-road, and non-road mobile. Complete descriptions of how the Commonwealth developed these inventories are in Appendices B and C of the September 20, 2022, SIP submittal. Kentucky's emissions inventory for the Northern Kentucky Area provides 2014 and 2019 anthropogenic emissions data for NO X and VOC for the following general source categories: point (EGUs and non-EGUs), area, non-road mobile, on-road mobile. All emissions information provided is based on the partial county boundaries, through the applicable census tracts, that comprise the Northern Kentucky Area. Table 2, below, provides a summary of the 2019 emissions inventory.

Point sources are large, stationary, identifiable sources of emissions that release pollutants into the atmosphere. The inventory contains actual point source emissions data from the years 2014 and 2019 for facilities located within the nonattainment boundary for the Kentucky portion of the Area based on the Kentucky Emissions Inventory database. Kentucky obtained this data from Kentucky State emissions inventory databases (KYEIS) for EGU and non-EGU stationary sources with emissions equal to or exceeding 250 tons per year of VOC or 2,500 tons per year of NO X in Boone, Campbell and Kenton Counties in Kentucky.

Area ( i.e., non-point) sources are small emission stationary sources which, due to their large number, collectively have significant emissions ( e.g., dry cleaners, service stations). For area and non-road sources, the 2014 base year inventory was developed using the 2014v7.1 (version 2014fd) modeling platform. The Emissions Modeling platform 2016v2 (versions 2016j, 2023j, 2026j, and 2023fj) was used to project the inventories for 2023, 2026, and 2032.. The 2014v7.1 modeling platform was selected to represent actual emissions data in the base year of 2014. The 2016v2 modeling platform was used since it included the best available inventory for the projected years. The 2016v1 emissions modeling platform is a product from the National Emissions Inventory Collaborative, a collaboration between State and regional air agencies, EPA, and Federal Land Management agencies, and includes a full suite of 2016 emissions and projection year (2023 and 2028) inventories, ancillary emission data, and scripts and software for preparing the emissions for air quality modeling. The 2016v2 emissions modeling platform was developed by EPA as an update to the 2016v1 platform because new data, model versions, and methods became available following the release of 2016v1. 17 In addition, 2016v2 makes use of a new inventory method for solvents, includes minor corrections to the wildfire inventory, and corrects for double counting of the airport emissions. The commercial marine vessel and rail inventories are consistent with the 2016v1 inventories. The 2016v2 platform includes emissions for the years 2016, 2023, 2026, and 2032.

The 2014 base year emissions were derived from 2014 emissions from the 2014v7.1 (2014fd) platform, without modification. The 2019 attainment year emissions were derived by interpolating between the 2016 and projected 2026 emissions from the 2016v2 (2016fd and 2023fd) platform. Kentucky used census tract population data to determine an approximate percentage that accounts for sources in the nonattainment portion of each county. Since only a portion of each county is contained in the Northern Kentucky Area, the emissions from each partial county were determined by multiplying the emissions for the entire county by the percentage of the county that is in the nonattainment area. Emissions from the county portions were then projected out to the appropriate future years.

On-road mobile sources include vehicles used on roads for transportation of passengers or freight. The 2019 on-road emissions provided in the Kentucky submittal and all projected year inventories were developed using the most recent information from the travel demand model (TDM) designed by the Ohio-Kentucky-Indiana Regional Council of Governments (OKI) and data obtained from MOVES3 (Motor Vehicle Emissions Simulator). The 2019 on-road mobile source (on-road) emissions data provided in the Kentucky submittal were developed by the Ohio-Kentucky-Indiana Regional Council of Governments (OKI) from emission factors produced by EPA's Motor Vehicle Emissions Simulator (MOVES3) software program and data extracted from the region's updated travel-demand model. OKI is the metropolitan planning organization for the Greater Cincinnati area. This updated data for mobile source emissions is in Appendix C.

Non-road mobile sources include vehicles, engines, and equipment used for construction, agriculture, recreation, and other purposes that do not use roadways ( e.g., lawn mowers, construction equipment, and railroad locomotives). The non-road emissions data provided by Kentucky in the submittal were derived by interpolating between the 2016 and projected 2026 emissions from EPA's 2016v2 emissions platform. Kentucky used census tract population data to determine an approximate percentage that accounts for sources in the nonattainment portion of each county. Since only a portion of each county is contained in the Northern Kentucky Area, the emissions from each partial county were determined by multiplying the emissions for the entire county by the percentage of the county that is in the nonattainment area. Emissions from the county portions were then projected out to the appropriate future years.

The 2019 attainment year inventories for all source categories, as well as the projected inventories for other years, were developed consistent with EPA guidance and are summarized in Tables 3 through 6 of the following subsection discussing the maintenance demonstration.

The redesignation request includes a maintenance plan which includes the following features:

(i) Shows compliance with and maintenance of the 2015 8-hour ozone NAAQS by providing information to support the demonstration that current and future emissions of NO X and VOC remain at or below 2019 emissions levels.

(ii) Uses 2019 as the attainment year and includes future emissions inventory projections for 2026 and 2035. The 2019 emissions were obtained from Kentucky databases. The 2026 emissions were derived from 2026 EPA-projected emissions from the 2016v2 (2026fj) emissions modeling platform without modification. The 2035 on-road emissions were obtained from MOVES3. The 2035 emissions for area, non-road, and non-EGUs were derived by extrapolating from the 2016v2 (2032fj) emissions modeling platform for 2032 using the TREND function in Microsoft Excel. The 2035 projected emissions for EGUs were derived by extrapolating from the 2030 EPA-projected emissions from the 2016v2 (2030fj) emissions modeling platform using the TREND function in Microsoft Excel. If the TREND function resulted in a negative value, the emissions were assumed to be the same as 2030. If a 2030 projection was missing, the emissions were assumed to be the same as in 2026.

(iii) Identifies an “out year” at least 10 years after the time necessary for EPA to review and approve the maintenance plan. Per 40 CFR part 93, NO X and VOC MVEBs were established for the last year (2035) of the maintenance plan. MVEBs were also established for an interim year of 2026 (see Section VI, of this preamble). 18

(iv) Provides actual (2019) and projected emissions inventories, in tons per summer day (tpsd), for each county, as well as the total emissions for each county in the Kentucky portion of the Cincinnati, OH-KY Area. See Tables 3 through 6, below.

In support, the Petitioner states that WKNX-TV's proposed channel substitution would serve the public interest by resolving current reception challenges within the Station's existing service area. Viewers within the Station's currently authorized channel 7 service area have experienced difficulty receiving the Station's signal, particularly since the June 12, 2009 digital transition. Petitioner further states that the Commission has recognized that VHF channels pose challenges for their use in providing digital television service, including propagation characteristics that allow undesired signals and noise to be receivable at relatively far distances and large variability in the performance of indoor antennas available to viewers, with most antennas performing very poorly on high VHF channels. The Petitioner's engineering analysis shows that the 50,322 persons currently located in the loss area along the eastern, southern, and western fringes of the proposed channel 21 facility would continue to be within the noise limited contour of least five other full power or Class A television stations, including four other Knoxville television stations.

This is a synopsis of the Commission's Notice of Proposed Rulemaking, MB Docket No. 23-244; RM-11955; DA 23-622, adopted July 20, 2023, and released July 20, 2023. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats (braille, large print, computer diskettes, or audio recordings), please send an email to FCC504@fcc.gov or call the Consumer & Government Affairs Bureau at (202) 418-0530 (VOICE), (202) 418-0432 (TTY).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

Members of the public should note that all ex parte contacts are prohibited from the time a Notice of Proposed Rulemaking is issued to the time the matter is no longer subject to Commission consideration or court review, see 47 CFR 1.1208. There are, however, exceptions to this prohibition, which can be found in Section 1.1204(a) of the Commission's rules, 47 CFR 1.1204(a).

See Sections 1.415 and 1.420 of the Commission's rules for information regarding the proper filing procedures for comments, 47 CFR 1.415 and 1.420.

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