Rules and Regulations. Proposed rule

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A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

BILLING CODE 3510-22-C 72 74 Wednesday, April 18, 2007 Proposed Rules DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 213 [DOD-2006-OS-0107] RIN 0790-AI18 Support for Non-Federal Entities Authorized To Operate on DoD Installations AGENCY: Department of Defense. ACTION: Proposed rule. SUMMARY: This rule establishes policy and assigns responsibilities under DoD Directive 5124.8 for standardizing support to Non-Federal entities authorized to operate on DoD installations.

Designates the Secretary of Army as the DoD executive agent for: Support to Boy Scout and Girl Scout local councils and organizations in areas outside of the United States; support for the national Boy Scout jamboree; the annual DoD audit of the American Red Cross

(ARC)accounts and the subsequent report to Congress; and necessary ARC deployment support. It also designates the Secretary of the Air Force as the DoD Executive Agent for conducting the Armed Forces Entertainment program. It will have minimal impact on the public. DATES: Comments must be received by June 18, 2007. Do not submit comments directly to the point of contact or mail your comments to any address other than what is shown below. Doing so will delay the posting of the submission. ADDRESSES: You may submit comments, identified by docket number and or RIN number and title, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov.* Follow the instructions for submitting comments. • *Mail:* Federal Docket Management System Office, 1160 Defense Pentagon, Washington, DC 20301-1160. *Instructions:* All submissions received must include the agency name and docket number or Regulatory Information Number

(RIN)for this **Federal Register** document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at *http://regulations.gov* as they are received without change, including any personal identifiers or contact information. FOR FURTHER INFORMATION CONTACT: Pam Crespi 703-602-5004. SUPPLEMENTARY INFORMATION: Executive Order 12866, “Regulatory Planning and Review” This proposed regulatory action is not a significant regulatory action, as defined by Executive Order 12866 and does not:

(1)Have an annual effect to the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;

(2)Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3)Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4)Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order. Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4) The proposed regulatory action does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year. Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601) The proposed regulatory action is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. The rule establishes policy and assigns executive agent responsibilities but taken cumulatively, those changes would not have a significant impact on a substantial number of small entities. Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35) The proposed regulatory action does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. Executive Order 13132, “Federalism” The proposed regulatory action does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1)The States;

(2)The relationship between the National Government and the States; or

(3)The distribution of power and responsibilities among the various levels of government. List of Subjects in 32 CFR Part 213 Federal buildings and facilities. Accordingly, 32 CFR part 213 is proposed to be added to read as follows: PART 213—SUPPORT FOR NON-FEDERAL ENTITIES AUTHORIZED TO OPERATE ON DOD INSTALLATIONS Sec. 213.1 Purpose. 213.2 Applicability and scope. 213.3 Definition. 213.4 Policy. 213.5 Responsibilities Authority: 10 U.S.C. 2554 and 2606. § 213.1 Purpose. This part:

(a)Authorizes 32 CFR part 212.

(b)Establishes policy and assigns responsibilities under DoD Directive 5124.8 1 for standardizing support to non-Federal entities authorized to operate on DoD installations. 1 Copies may be obtained at *http://www.dtic.mil/whs/directives/.*

(c)Designates the Secretary of the Army as the DoD Executive Agent (DoD EA) according to DoD Directive 5101.1: 2 2 Copies may be obtained at *http://www.dtic.mil/whs/directives/.*

(1)For DoD support to the Boy Scouts of America

(BSA)and Girl Scouts of the United States of America (GSUSA) local councils and organizations in areas outside of the United States 10 U.S.C. 2606. DoD support will also cover the periodic national jamboree according to 10 U.S.C. 2606. 3 3 A Federal district judge has ruled that support to BSA under section 2554 of Reference

(g)is unconstitutional, and has enjoined the Department of Defense from providing future support under that statute. The Department of Defense is appealing that order. However, unless the order is overturned on appeal, the Department of Defense cannot provide any support to BSA using this statute. Contact your local legal office for further guidance.

(2)To perform the annual audit of the American Red Cross

(ARC)accounts and to prepare and submit the annual report to Congress according to 36 U.S.C. 300110.

(3)To provide the ARC with the necessary deployment support.

(d)Designates the Secretary of the Air Force as the DoD EA responsible for conducting the Armed Forces Entertainment

(AFE)program. § 213.2 Applicability and scope. This part:

(a)Applies to the Office of the Secretary of Defense, the Military Departments, the Chairman of the Joint Chiefs of Staff, the Combatant Commands, the Office of the Inspector General of the Department of Defense, the Defense Agencies, the DoD Field Activities, and all other organizational entities within the Department of Defense (hereafter referred to collectively as the “DoD Components”) and non-Federal entities authorized to operate on DoD installations.

(b)Shall not revise, modify, or rescind any Memorandum of Understanding

(MOU)between a non-Federal entity and the U.S. Government or the Department of Defense or their implementing arrangements in existence as of the effective date of this Directive. Additionally, the Directive shall not revise, modify, or rescind any MOU between the Department of Justice

(DoJ)and the Department of Defense that is in existence as of the effective date of this Directive. Any such agreements shall, as they expire, come up for renewal, or as circumstances otherwise permit, be revised to conform to this Directive and any implementing guidance. (c). Does not apply to banks or credit unions addressed in DoD Directive 1000.11 4 or the Civil Air Patrol according to 10 U.S.C. 2554. 4 Copies may be obtained at *http://www.dtic.mil/whs/directives/.* § 213.3 Definition. *Non-federal entities.* A non-Federal entity is generally a self-sustaining, non-Federal person or organization, established, operated, and controlled by any individual(s) acting outside the scope of any official capacity as officers, employees, or agents of the Federal Government. This Directive addresses only those entities that may operate on DoD installations with the express consent of the installation commander or higher authority under applicable regulations. Non-Federal entities may include elements of state, interstate, Indian tribal, and local government, as well as private organizations. § 213.4 Policy. It is DoD policy that:

(a)DoD support for non-Federal entities shall be in accordance with relevant statutes as well as DoD 5500.7-R. 5 In accordance with DoD 5500.7-R and to avoid preferential treatment, DoD support should be uniform, recognizing that non-Federal entity support of Service members and their families can be important to their welfare. 5 Copies may be obtained at *http://www.dtic.mil/whs/directives/.*

(b)Under DoD Directive 5124.8 procedures shall be established as Instructions and agreements for the operation of non-Federal entities on DoD installations and for the prohibition of official sanction, endorsement, or support by the DoD Components and officials, except as authorized by DoD 5500.7-R and applicable law. Instructions and agreements must be compatible with the primary mission of the Department and provide for Congressionally authorized support to non-Federal entities on DoD installations.

(c)In accordance with DoD 5500.7-R, installation commanders or higher authority may authorize, in writing, logistical support for events, including fundraising events, sponsored by non-Federal entities covered by this part.

(d)Installation commanders or higher authority may coordinate with non-Federal entities in order to support appropriated or nonappropriated fund activities on DoD installations, so long as the support provided by the non-Federal entities does not compete with appropriated or nonappropriated fund activities.

(e)Non-Federal entities are not entitled to sovereign immunity and the privileges given to Federal entities and instrumentalities. § 213.5 Responsibilities.

(a)The Principal Deputy Under Secretary of Defense for Personnel and Readiness (PDUSD(P&R)), under the Under Secretary of Defense for Personnel and Readiness, shall:

(1)Be responsible for implementing all policy matters and Office of the Secretary of Defense oversight of non-Federal entities on DoD installations.

(2)Develop procedures and execute any necessary agreements to implement policy for the operation of non-Federal entities on DoD installations.

(3)Assign responsibilities to the DoD Components to accomplish specific oversight and administrative responsibilities with respect to non-Federal entities operating on DoD installations.

(4)Oversee the activities of the designated DoD EA, assessing the need for continuation, currency, effectiveness, and efficiency of the DoD EA according to 10 U.S.C. 2554. Make recommendations for establishment of additional DoD EA assignments and arrangements as necessary.

(b)The Secretary of the Army, as the designated DoD EA, and according to 10 U.S.C. 2554, shall:

(1)Perform the audit of the annual ARC accounts and prepare and submit the annual report according to 36 U.S.C. 300110 and this part.

(2)Coordinate support to the BSA and GSUSA according to DoD Instruction 1015.9 6 and this part. 6 Copies may be obtained at *http://www.dtic.mil/whs/directives/.*

(3)Provide necessary deployment support to ARC according to an approved DoD and ARC MOU. Initially, the Army will cover costs, except those paid by the ARC. The Army will then be reimbursed, upon its request, by the entity directly benefiting from the ARC support.

(4)Designate a point of contact to coordinate matters regarding the DoD EA responsibilities, functions, and authorities.

(c)The Secretary of the Air Force, as the designated DoD EA with responsibility for conducting the AFE program, shall administer the AFE program according to 10 U.S.C. 2554, DoD Instruction 1330.13, 7 and this part to include the following: 7 Copies may be obtained at *http://www.dtic.mil/whs/directives/.*

(1)Annually determine with the other DoD Components and the PDUSD (P&R) the scope of the program.

(2)Budget, fund, and maintain accountability for approved appropriated fund expenses. Develop and implement supplemental guidance to identify allowable expenses and reimbursements.

(3)Provide centralized services for selecting, declining, scheduling, and processing entertainment groups for overseas.

(4)Designate a point of contact to coordinate matters regarding the DoD EA responsibilities, functions, and authorities. Dated: April 11, 2007. L.M. Bynum, Alternate OSD Federal Register Liaison Officer, DoD. [FR Doc. E7-7247 Filed 4-17-07; 8:45 am] BILLING CODE 5001-06-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R05-OAR-2006-0305; FRL-8301-8] Determination of Attainment, Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Indiana; Redesignation of the South Bend-Elkhart 8-Hour Nonattainment Area to Attainment for Ozone AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: On May 30, 2006, the Indiana Department of Environmental Management

(IDEM)submitted a request for EPA approval of a redesignation of St. Joseph and Elkhart Counties to attainment of the 8-hour ozone National Ambient Air Quality Standard (NAAQS) and of an ozone maintenance plan for St. Joseph and Elkhart Counties as a revision to the Indiana State Implementation Plan (SIP). Today, EPA is proposing to approve Indiana's request and corresponding SIP revision. EPA is also proposing to approve the Volatile Organic Compounds

(VOC)and Nitrogen Oxides (NO X ) Motor Vehicle Emission Budgets (MVEBs) for these Counties, as supported by the ozone maintenance plan for this area, for purposes of transportation conformity determinations. DATES: Comments must be received on or before May 18, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0305, by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: mooney.john@epa.gov.* • *Fax:*

(312)886-5824. • *Mail:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • *Hand Delivery:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois. Such deliveries are only accepted during the Regional Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office's official hours of operation are Monday through Friday, 8:30 AM to 4:30 PM, excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R05-OAR-2006-0305. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *http://www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption, and should be free of any defects or viruses. *Docket:* All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hardcopy. Publicly available docket materials are available either electronically in www.regulations.gov or in hardcopy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. It is recommended that you telephone Steven Rosenthal, Environmental Engineer, at

(312)886-6052, before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Steven Rosenthal, Environmental Engineer, Criteria Pollutant Section, Air Programs Branch (AR-18), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)886-6052, *doty.edward@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. This supplementary information section is arranged as follows: I. What Action Is EPA Proposing to Take? II. What Is the Background for This Action? III. What Are the Criteria for Redesignation to Attainment? IV. What Are EPA's Analyses of the State's Requests and What Are the Bases for EPA's Proposed Action? V. Has Indiana Adopted Acceptable Motor Vehicle Emissions Budgets for the End of the 14-Year Maintenance Plan Which Can Be Used To Support Transportation Conformity Determinations? VI. What Is the Effect of EPA's Proposed Action? VII. Statutory and Executive Order Reviews I. What Action is EPA Proposing to Take? We are proposing to take several related actions for St. Joseph and Elkhart Counties. First, we are proposing to determine that St. Joseph and Elkhart Counties have attained the 8-hour ozone NAAQS based on air quality for the period of 2003 through 2005. Second, we are proposing to approve Indiana's ozone maintenance plan for St. Joseph and Elkhart Counties as a revision of the Indiana SIP. The maintenance plan is designed to keep St. Joseph and Elkhart Counties in attainment of the 8-hour ozone standard through 2020. As supported by and consistent with the ozone maintenance plan, we are also proposing to approve the 2020 VOC and NO X MVEBs for St. Joseph and Elkhart Counties for transportation conformity purposes. Finally, we are proposing to approve the request from the State of Indiana to change the designation of St. Joseph and Elkhart Counties from nonattainment to attainment of the 8-hour ozone NAAQS. We have determined that the State and St. Joseph and Elkhart Counties have met the requirements for redesignation to attainment under section 107(d)(3)(E) of the Clean Air Act (CAA). II. What Is the Background for This Action? A. General Background Information EPA has determined that ground-level ozone is detrimental to human health. On July 18, 1997, EPA promulgated an 8-hour ozone NAAQS of 0.08 parts per million parts of air (0.08 ppm) (80 parts per billion (ppb)) (62 FR 38856). 1 This 8-hour ozone standard replaced a prior 1-hour ozone NAAQS, which had been promulgated on February 8, 1979 (44 FR 8202), and which was revoked on June 15, 2005 (69 FR 23858). 1 This standard is violated in an area when any ozone monitor in the area (or in its impacted downwind environs) records 8-hour ozone concentrations with an average of the annual fourth-highest daily maximum 8-hour ozone concentrations over a three-year period equaling or exceeding 85 ppb. 40 CFR 50.10. Ground-level ozone is not emitted directly by sources. Rather, emitted NO X and VOC react in the presence of sunlight to form ground-level ozone along with other secondary compounds. NO X and VOC are referred to as “ozone precursors.” Control of ground-level ozone concentrations is achieved through controlling VOC and NO X emissions. The CAA required EPA to designate as nonattainment any area that violated the 8-hour ozone NAAQS. The **Federal Register** notice promulgating these designations and classifications was published on April 30, 2004 (69 FR 23857). The CAA contains two sets of provisions—subpart 1 and subpart 2—that address planning and emission control requirements for nonattainment areas. Both are found in title I, part D of the CAA. Subpart 1 contains general, less prescriptive requirements for all nonattainment areas for any pollutant governed by a NAAQS. Subpart 2 contains more specific requirements for certain ozone nonattainment areas, and applies to ozone nonattainment areas classified under section 181 of the CAA. In the April 30, 2004 designation rulemaking, EPA divided 8-hour ozone nonattainment areas into the categories of subpart 1 nonattainment (“basic” nonattainment) and subpart 2 nonattainment (“classified” nonattainment). EPA based this division on the area's 8-hour ozone design values (i.e., on the three-year averages of the annual fourth-highest daily maximum 8-hour ozone concentrations at the worst-case monitoring sites in the areas) and on their 1-hour ozone design values (i.e., on the fourth-highest daily maximum 1-hour ozone concentrations over the three-year period at the worst-case monitoring sites in the areas). 2 EPA classified 8-hour ozone nonattainment areas with 1-hour ozone design values equaling or exceeding 121 ppb as subpart 2, classified nonattainment areas. EPA classified all other 8-hour nonattainment areas as subpart 1, basic nonattainment areas. The basis for area classification was defined in a separate April 30, 2004 final rule (the Phase 1 implementation rule) (69 FR 23951). 2 The 8-hour ozone design value and the 1-hour ozone design value for each area were not necessarily recorded at the same monitoring site. The worst-case monitoring site for each ozone concentration averaging time was considered for each area. Emission control requirements for classified nonattainment areas are linked to area classifications. Areas with more serious ozone pollution problems are subject to more prescribed requirements and later attainment dates. The prescribed emission control requirements are designed to bring areas into attainment by their specified attainment dates. In the April 30, 2004, ozone designation/classification rulemaking, EPA designated St. Joseph and Elkhart Counties as a subpart 1 basic nonattainment area for the 8-hour ozone NAAQS. EPA based designation on ozone data collected during the 2001-2003 period. On May 30, 2006, the State of Indiana requested redesignation of St. Joseph and Elkhart Counties to attainment of the 8-hour ozone NAAQS based on ozone data collected in these Counties from 2003-2005. B. What Is the Impact of the December 22, 2006 United States Court of Appeals Decision Regarding EPA's Phase 1 Implementation Rule? 1. Summary of Court Decision On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard. (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA* , 472 F.3d 882 (D.C.Cir. 2006). The Court held that certain provisions of EPA's Phase I Rule were inconsistent with the requirements of the Clean Air Act. The Court rejected EPA's reasons for implementing the 8-hour standard in nonattainment areas under Subpart 1 in lieu of subpart 2 of Title I, part D of the Act. The Court also held that EPA improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:

(1)Nonattainment area New Source Review

(NSR)requirements based on an area's 1-hour nonattainment classification;

(2)Section 185 penalty fees for 1-hour severe or extreme nonattainment areas;

(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9)of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; and

(4)certain conformity requirements for certain types of Federal actions. The Court upheld EPA's authority to revoke the 1-hour standard provided there were adequate anti-backsliding provisions. This section sets forth EPA's views on the potential effect of the Court's ruling on this redesignation action. For the reasons set forth below, EPA does not believe that the Court's ruling alters any requirements relevant to this redesignation action so as to preclude redesignation, and does not prevent EPA from finalizing this redesignation. EPA believes that the Court's decision, as it currently stands or as it may be modified based upon any petition for rehearing that has been filed, imposes no impediment to moving forward with redesignation of this area to attainment, because in either circumstance redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests. 2. Requirements Under the 8-Hour Standard With respect to the 8-hour standard, the Court's ruling rejected EPA's reasons for classifying areas under Subpart 1 for the 8-hour standard, and remanded that matter to the Agency. Consequently, it is possible that this area could, during a remand to EPA, be reclassified under Subpart 2. Although any future decision by EPA to classify this area under Subpart 2 might trigger additional future requirements for the area, EPA believes that this does not mean that redesignation cannot now go forward. This belief is based upon

(1)EPA's longstanding policy of evaluating requirements in accordance with the requirements due at the time the request is submitted;

(2)consideration of the inequity of applying retroactively any requirements that might in the future be applied; and,

(3)the fact that the redesignation request preceded even the earliest possible due dates of any requirements for Subpart 2 areas. First, at the time the redesignation request was submitted, St. Joseph and Elkhart Counties were classified under Subpart 1 and were obligated to meet Subpart 1 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the Clean Air Act, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. September 4, 1992, Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division) See also Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995)(Redesignation of Detroit-Ann Arbor). See *Sierra Club* v. *EPA* , 375 F.3d 537 (7th Cir. 2004), which upheld this interpretation. See, *e.g.* also 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis). Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The D.C. Circuit has recognized the inequity in such retroactive rulemaking, See *Sierra Club* v. *Whitman* , 285 F. 3d 63 (D.C. Cir. 2002), in which the D.C. Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: “Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.” *Id.* at 68. Similarly here it would be unfair to penalize the area by applying to it for purposes of redesignation additional SIP requirements under Subpart 2 that were not in effect at the time it submitted its redesignation request. For the reasons indicated above, EPA believes it would be inequitable to evaluate a redesignation request based on Subpart 2 requirements that might apply in the future. But even if a future Subpart 2 classification applied retroactively, the applicable requirements for purposes of redesignation are only those that became due prior to submission of the redesignation request. In the case of St. Joseph and Elkhart Counties the redesignation request was submitted on May 30, 2006, and thus preceded even the earliest possible due date of requirements for areas classified under Subpart 2 effective June 2004. The earliest such submission date was June 15, 2006, for the emissions statements requirement under section 182(a)(3)(B) and emissions inventories under section 182(a)(1). Thus for this additional reason alone these additional Subpart 2 requirements would not be applicable for purposes of evaluating a redesignation request for this area. 3. Requirements Under the 1-Hour Standard With respect to the requirements under the 1-hour standard, St. Joseph and Elkhart Counties were an attainment area subject to a Clean Air Act section 175A maintenance plan under the 1-hour standard. The Court's ruling does not impact redesignation requests for these types of areas. First, there are no conformity requirements that are relevant for redesignation requests for any standard, including the requirement to submit a transportation conformity SIP. 3 Under longstanding EPA policy, EPA believes that it is reasonable to interpret the conformity SIP requirement as not applying for 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. 40 CFR 51.390. See *Wall* v. *EPA* , 265 F.3d 426 (6th Cir. 2001), upholding this interpretation. See also 60 FR 62748 (Dec. 7, 1995) (Tampa, FL redesignation). Federal transportation conformity regulations apply in all States prior to approval of transportation conformity SIPs. The one-hour ozone areas in Indiana were redesignated to attainment without approved State Transportation Conformity regulations because the Federal Regulations were in effect in Indiana. When challenged, these 1-hour ozone redesignations, which were approved without State regulations, were upheld by the courts. See *Wall* v. *EPA* , 265 F.3d 426 (6th Cir. 2001). See also 60 FR 62748 (December 7, 1995) (Tampa, Florida). Although Indiana does not have approved State transportation conformity regulations, Indiana has developed memorandums of understanding to address conformity consultation procedures which have been signed by all parties involved in conformity. The Federal transportation conformity regulations, which apply in Indiana, require the approved 1-hour ozone budgets to be used for transportation conformity purposes prior to 8-hour ozone budgets being approved. 3 Clean Air Act section 176(c)(4)(E) currently requires States to submit revisions to their SIPs to reflect certain Federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from the motor vehicle emissions budgets that are established in control strategy SIPs and maintenance plans. Second, with respect to the three other anti-backsliding provisions for the 1-hour standard that the Court found were not properly retained, St. Joseph and Elkhart Counties are an attainment area subject to a maintenance plan for the 1-hour standard, and the NSR, contingency measure (pursuant to section 172(c)(9) or 182(c)(9)) and fee provision requirements no longer apply to an area that has been redesignated to attainment of the 1-hour standard. Thus the decision in *South Coast* should not alter requirements that would preclude EPA from finalizing the redesignation of this area. III. What Are the Criteria for Redesignation to Attainment? The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA allows for redesignation provided that:

(1)The Administrator determines that the area has attained the applicable NAAQS;

(2)the Administrator has fully approved an applicable state implementation plan for the area under section 110(k) of the CAA;

(3)the Administrator determines that the improvement in air quality is due to permanent and enforceable emission reductions resulting from implementation of the applicable SIP, Federal air pollution control regulations, and other permanent and enforceable emission reductions;

(4)the Administrator has fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA; and,

(5)the state containing the area has met all requirements applicable to the area 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 this guidance on April 28, 1992 (57 FR 18070). The two main policy guidelines affecting the review of ozone redesignation requests are the following: “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992 (September 4, 1992 Calcagni memorandum); and, “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995. For additional policy guidelines used in the review of ozone redesignation requests, see our proposed rule for the redesignation of the Evansville, Indiana ozone nonattainment area at 70 FR 53606 (September 9, 2005). IV. What Are EPA's Analyses of the State's Requests and What Are the Bases for EPA's Proposed Action? EPA is proposing to:

(1)Determine that St. Joseph and Elkhart Counties have attained the 8-hour ozone standard;

(2)approve the ozone maintenance plan for St. Joseph and Elkhart Counties and the VOC and NO X MVEBs supported by this maintenance plan; and,

(3)approve the redesignation of St. Joseph and Elkhart Counties to attainment of the 8-hour ozone NAAQS. The bases for our proposed determination and approvals follow. A. St. Joseph and Elkhart Counties Have Attained the 8-Hour Ozone NAAQS For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations of the NAAQS, as determined in accordance with 40 CFR 50.10 and appendix I, based on the most recent three complete, consecutive calendar years of quality-assured air quality monitoring data at all ozone monitoring sites in the area and in its nearby downwind environs. To attain this standard, the average of the annual fourth-high daily maximum 8-hour average ozone concentrations measured and recorded at each monitor (the monitoring site's ozone design value) within the area and in its nearby downwind environs over the three-year period must not exceed the ozone standard. Based on an ozone data rounding convention described in 40 CFR part 50, appendix I, the 8-hour standard is attained if the area's ozone design value 4 is 0.084 ppm (84 ppb) or lower. The data must be collected and quality-assured in accordance with 40 CFR part 58, and must be recorded in EPA's Air Quality System (AQS). The ozone monitors generally should have remained at the same locations for the duration of the monitoring period required to demonstrate attainment (for three years or more). The data supporting attainment of the standard must be complete in accordance with 40 CFR part 50, appendix I. 4 The worst-case monitoring site-specific ozone design value in the area or in its affected downwind environs. As part of the May 30, 2006, ozone redesignation request, IDEM submitted ozone monitoring data indicating the top four daily maximum 8-hour ozone concentrations for each monitoring site in St. Joseph County (the Potato Creek, Harris Township and South Bend ozone monitoring sites) and Elkhart County (the Bristol ozone monitoring site) for each year during the 2003-2005 period. These worst-case ozone concentrations are part of the quality-assured ozone data that have been entered into EPA's AQS. The annual fourth-high 8-hour daily maximum ozone concentrations, along with their three-year averages are summarized in Table 1. Table 1.—Fourth-High 8-Hour Ozone Concentrations [In parts per billion (ppb)] County Monitoring site 2003 2004 2005 Average Elkhart Bristol 87 77 86 83 St. Joseph Potato Creek 81 73 78 77 St. Joseph Harris Twp 86 76 86 83 St. Joseph South Bend 82 72 84 79 These data show that the average fourth-high daily maximum 8-hour ozone concentrations for the monitoring sites in St. Joseph and Elkhart Counties are all below the 85 ppb ozone standard violation cut-off. The data support the conclusion that St. Joseph and Elkhart Counties did not experience a monitored violation of the 8-hour ozone standard from 2003-2005. In addition, the surrounding counties in Indiana and Michigan did not monitor nonattainment during the 2003-2005 period. We also note that the 8-hour ozone NAAQS continued to be attained in St. Joseph and Elkhart as well as the surrounding counties through 2006. Data in the AQS show that, in 2006, the Bristol, Potato Creek, Harris TWP and South Bend monitors recorded daily maximum fourth-high 8-hour ozone concentrations of 67 ppb, 70 ppb, 70 ppb, and 61 ppb, respectively. The State has committed to continue ozone monitoring in this area during the maintenance period, through 2020. IDEM commits to consult with the EPA prior to making any changes in the existing monitoring network. An adequate demonstration has therefore been made that St. Joseph and Elkhart Counties have attained the 8-hour ozone NAAQS. Therefore, we propose to find that St. Joseph and Elkhart Counties have attained the 8-hour ozone standard. B. St. Joseph and Elkhart Counties Have Met All Applicable Requirements Under Section 110 and Part D of the CAA and the Area Has a Fully Approved SIP Under Section 110(k) of the CAA EPA has determined that Indiana has met all currently applicable SIP requirements for St. Joseph and Elkhart Counties under section 110 of the CAA (general SIP requirements). EPA has determined that the Indiana SIP meets currently applicable SIP requirements under part D of title I of the CAA (requirements specific to basic and subpart 2 ozone nonattainment areas). See section 107(d)(3)(E)(v) of the CAA. In addition, EPA has determined that the Indiana SIP is fully approved with respect to all applicable requirements. See section 107(d)(3)(E)(ii) of the CAA. In making these determinations, EPA ascertained what requirements are applicable to the area, and determined that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. We note that SIPs must be fully approved only with respect to currently applicable requirements of the CAA, those CAA requirements applicable to St. Joseph and Elkhart Counties at the time the State submitted the final, complete ozone redesignation request for this area. 1. St. Joseph and Elkhart Counties Have Met All Applicable Requirements Under Section 110 and Part D of the CAA The September 4, 1992, Calcagni memorandum describes EPA's interpretation of section 107(D)(3)(E) of the CAA. Under this interpretation, to qualify for redesignation of an area to attainment, the State and the area must meet the relevant CAA requirements that come due prior to the State's submittal of a complete redesignation request for the area. See also a September 17, 1993, memorandum from Michael Shapiro, Acting Assistant Administrator for Air and Radiation, “State Implementation Plan

(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide

(CO)National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992” and 66 FR 12459, 12465-12466 (March 7, 1995) (redesignation of Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS). Applicable requirements of the CAA that come due subsequent to the State's submittal of a complete redesignation request remain applicable until a redesignation to attainment of the standard is approved, but are not required as a prerequisite to redesignation. See section 175A(c) of the CAA. *Sierra Club* v. * EPA,* 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) redesignation of the St. Louis/East St. Louis area to attainment of the 1-hour ozone NAAQS. *General SIP requirements:* Section 110(a) of title I of the CAA contains the general requirements for a SIP, which include: enforceable emission limitations and other control measures, means, or techniques; provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality; and programs to enforce the emission limitations. SIP elements and requirements are specified in section 110(a)(2) of title I, part A of the CAA. These requirements and SIP elements include, but are not limited to, the following:

(a)Submittal of a SIP that has been adopted by the State after reasonable public notice and a hearing;

(b)provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality;

(c)implementation of a source permit program;

(d)provisions for the implementation of new source part C requirements (Prevention of Significant Deterioration (PSD)) and new source part D requirements (New Source Review (NSR));

(e)criteria for stationary source emission control measures, monitoring, and reporting;

(f)provisions for air quality modeling; and,

(g)provisions for public and local agency participation. SIP requirements and elements are discussed in the following EPA documents: “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992; “State Implementation Plan

(SIP)Actions Submitted in Response to Clean Air Act

(CAA)Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; and “State Implementation Plan

(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide

(CO)National Ambient Air Quality Standards (NAAQS) on or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator, September 17, 1993. Section 110(a)(2)(D) of the CAA requires SIPs to contain certain measures to prevent sources in one state from significantly contributing to air quality problems in another state. To implement this provision, EPA required states to establish programs to address transport of air pollutants (NO X SIP call, Clean Air Interstate Rule (CAIR)). EPA has also found, generally, that states have not submitted SIPs under section 110(a)(1) of the CAA to meet the interstate transport requirements of section 110(a)(2)(D)(i) of the CAA (70 FR 21147, April 25, 2005). However, the section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's classification. EPA believes that the requirements linked with a particular nonattainment area's 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. These requirements should not be construed to be applicable requirements for purposes of redesignation. In addition, the other section 110 elements described above that are not connected with nonattainment plan submissions and that are not linked with an area's attainment status are also not applicable requirements for purposes of redesignation. A state remains subject to these requirements after an area is redesignated to attainment. We conclude that only the section 110 and part D requirements which are linked with an area's designation and classification are the relevant measures in evaluating this aspect of a redesignation request. This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements for redesignation purposes, as well as with section 184 ozone transport requirements. See: Reading, Pennsylvania proposed and final rulemakings (61 FR 53174-53176, October 10, 1996 and 62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio ozone redesignation (65 FR 37890, June 19, 2000), and the Pittsburgh, Pennsylvania ozone redesignation (66 FR 50399, October 19, 2001). In addition, Indiana's response to the CAIR rule was due in September 2006. Because this deadline had not yet passed when the State submitted the final, complete redesignation request, the State's CAIR submittal is also not an applicable requirement for redesignation purposes. It should be noted that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. Nonetheless, we also note that EPA has previously approved provisions in the Indiana SIP addressing section 110 elements under the 1-hour ozone standard. We have analyzed the Indiana SIP as codified in 40 CFR part 52, subpart P and have determined that it is consistent with the requirements of section 110(a)(2) of the CAA. The SIP, which has been adopted after reasonable public notice and hearing, contains enforceable emission limitations; requires monitoring, compiling, and analyzing ambient air quality data; requires preconstruction review of new major stationary sources and major modifications of existing sources; provides for adequate funding, staff, and associated resources necessary to implement its requirements; and requires stationary source emissions monitoring and reporting, and otherwise satisfies the applicable requirements of section 110(a)(2). *Part D SIP requirements:* EPA has determined that the Indiana SIP meets applicable SIP requirements under part D of the CAA. Under part D, an area's classification (marginal, moderate, serious, severe, and extreme) indicates the requirements to which it will be subject. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment area plan requirements applicable to all nonattainment areas. Subpart 2 of part D, found in section 182 of the CAA, establishes additional specific requirements depending on the area's nonattainment classification. *Part D, subpart 1 requirements:* For purposes of evaluating this redesignation request, the applicable subpart 1 part D requirements for all nonattainment areas are contained in sections 172(c)(1)-(9) and 176. A thorough discussion of the requirements of section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498). (See also 68 FR 4852-4853 regarding a St. Louis ozone redesignation notice of proposed rulemaking for a discussion of section 172 requirements.) No requirements under part D of the CAA came due for St. Joseph and Elkhart Counties prior to the State's May 30, 2006, submittal of a complete redesignation request. For example, the requirement for an ozone attainment demonstration, as contained in section 172(c)(1), was not yet applicable, nor were the requirements for Reasonably Available Control Measures

(RACM)and Reasonably Available Control Technology

(RACT)(section 172(c)(1)), Reasonable Further Progress

(RFP)(section 172(c)(2)), and attainment plan and RFP contingency measures (section 172(c)(9)). All of these required SIP elements are required for submittal after May 30, 2006. Therefore, none of the part D requirements are applicable to St. Joseph and Elkhart Counties for 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 activities, including highway projects, conform to the air planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded, or approved under Title 23 U.S.C. and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). State conformity SIP revisions must be consistent with Federal conformity regulations that the CAA required the EPA to promulgate. In addition to the fact that part D requirements did not become due prior to Indiana's submission of the complete ozone redesignation request for St. Joseph and Elkhart Counties, and, therefore, are not applicable for redesignation purposes, EPA has similarly concluded that the conformity requirements do not apply for purposes of evaluating the ozone redesignation request under section 107(d) of the CAA. In addition, it is reasonable to interpret the conformity requirements as not applying for purposes of evaluating the ozone redesignation request under section 107(d) of the CAA because state conformity rules are still required after redesignation of an area to attainment of a NAAQS and Federal conformity rules apply where state rules have not been approved. See *Wall* v. *EPA,* 265 F.3d 426 (6th Cir. 2001). See also 60 FR 62748 (December 7, 1995) (Tampa, Florida). We conclude that the State and St. Joseph and Elkhart Counties have satisfied all applicable requirements under section 110 and part D of the CAA to the extent that the requirements apply for the purposes of reviewing the State's ozone redesignation request. 2. St. Joseph and Elkhart Counties Have a Fully Approved Applicable SIP Under Section 110(k) of the CAA EPA has fully approved the Indiana SIP for St. Joseph and Elkhart Counties under section 110(k) of the CAA for all applicable requirements. EPA may rely on prior SIP approvals in approving a redesignation request (See the September 4, 1992 John Calcagni memorandum, page 3, *Southwestern Pennsylvania Growth Alliance* v. *Browner,* 144 F.3d 984, 989-990 (6th Cir. 1998), *Wall* v. *EPA,* 265 F.3d 426 (6th Cir. 2001)), plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25426 (May 12, 2003). Since the passage of the CAA of 1970, Indiana has adopted and submitted, and EPA has fully approved, provisions addressing the various required SIP elements applicable to St. Joseph and Elkhart Counties for purposes of redesignation. No St. Joseph and Elkhart Counties SIP provisions are currently disapproved, conditionally approved, or partially approved. As indicated above, EPA believes that the section 110 elements not connected with nonattainment plan submissions and not linked to the area's nonattainment status are not applicable requirements for purposes of review of the State's redesignation request. EPA has concluded that the section 110 SIP submission approved under the 1-hour standard will be adequate for purposes of attaining and maintaining the 8-hour standard. EPA also believes that since the part D requirements did not become due prior to Indiana's submission of a final, complete redesignation request, they also are not applicable requirements for purposes of redesignation. C. The Air Quality Improvement in St. Joseph and Elkhart Counties Is Due to Permanent and Enforceable Reductions in Emissions From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Emission Reductions EPA believes that the State of Indiana has demonstrated that the observed air quality improvement in St. Joseph and Elkhart Counties is due to permanent and enforceable emission reductions resulting from implementation of the SIP, Federal measures, and other State-adopted measures. In making this demonstration, the State has documented the changes in VOC and NO X emissions from anthropogenic (man-made or man-based) sources in St. Joseph and Elkhart Counties between 1996 and 2004 and the statewide NO X emissions from Electric Generating Units

(EGUs)from 1999 to 2005. St. Joseph and Elkhart Counties were monitored in violation of the 8-hour ozone NAAQS during the period of 1997 through 1999 and in attainment with the NAAQS during the period of 2003 through 2005. The total VOC and NO X emissions for St. Joseph and Elkhart Counties for various years during the period of 1996 through 2004 are given in Table 2. Table 2.—VOC and NO X Emissions in St. Joseph and Elkhart Counties, All Sources [Emissions in tons/summer day] Pollutant 1996 1999 2002 2004 VOC 127.88 113.82 89.18 85.98 NO X 91.21 74.63 63.4 63.16 The statewide NO X emissions for EGUs from 1999-2005 are given in Table 3. below. Table 3.—NO X Emissions from Electric Generating Units in Indiana Statewide [Emissions in thousands of tons per ozone season (April-October)] Area 1999 2000 2001 2002 2003 2004 2005 Statewide 149.8 133.9 136.1 114.0 99.3 66.6 55.5 The NO X and VOC emissions for St. Joseph and Elkhart Counties and the statewide EGU NO X emissions have decreased from 1999, an 8-hour standard violation years, to 2004 and 2005 (for EGUs), attainment years. IDEM notes that statewide NO X emissions have declined significantly as a result of the implementation of the Indiana NO X SIP (in response to EPA's NO X SIP call) and acid rain control regulations, both of which led to permanent, enforceable emission reductions. VOC and NO X emissions have declined between 1999 and 2004 as a result of enforceable emission reductions. As required by Section 172 of the CAA, Indiana in the mid-1990s promulgated rules requiring RACT for emissions of VOCs. Statewide RACT rules have applied to all new sources locating in Indiana since that time and include the following VOC rules: 326 Indiana Administrative Code

(IAC)8-1-6 (Best Available Control Technology

(BACT)for non-specific sources); 326 IAC 8-2 (surface coating emission limitations); 326 IAC (organic solvent degreasing operations); 326 IAC 8-4 (petroleum sources); and, 326 IAC 8-5 (miscellaneous sources). The VOC emission reductions resulting from the implementation of these VOC emission control rules are permanent and enforceable. Besides the statewide VOC RACT rules and NO X emission control requirements, other Federal emission reduction requirements have resulted in decreased ozone precursor emissions in St. Joseph and Elkhart Counties and will produce future emission reductions that will support maintenance of the ozone standard in St. Joseph and Elkhart Counties. These emission reduction requirements include the following: *Tier 2 Emission Standards for Vehicles and Gasoline Sulfur Standards.* These emission control requirements result in lower emissions from new cars and light duty trucks, including sport utility vehicles. The Federal rules are being phased in between 2004 and 2009. The EPA has estimated that, by the end of the phase-in period, the following vehicle NO X emission reductions will occur: passenger cars (light duty vehicles) (77 percent); light duty trucks, minivans, and sports utility vehicles (86 percent; and larger sports utility vehicles, vans, and heavier trucks (69 to 95 percent). VOC emission reductions are also expected to range from 12 to 18 percent, depending on vehicle class, over the same period. Although some of these emission reductions have already occurred by the 2004 attainment year, most of these emission reductions will occur during the maintenance period for St. Joseph and Elkhart Counties. *Heavy-Duty Diesel Engines.* In July 2000, EPA issued a final rule to control the emissions from highway heavy duty diesel engines, including low-sulfur diesel fuel standards. These emission reductions are being phased in between 2004 and 2007. This rule is expected to result in a 40 percent decrease in NO X emissions from heavy duty diesel vehicle. *Non-Road Diesel Rule.* Issued in May, 2004, this rule generally applies to new stationary diesel engines used in certain industries, including construction, agriculture, and mining. In addition to affecting engine design, this rule includes requirements for cleaner fuels. This rule is expected to reduce NO X emissions from these engines by up to 90 percent, and to significantly reduce particulate matter and sulfur emissions from these engines in addition to the NO X emission reduction. This rule did not affect 2004 emissions from these sources, but will limit emissions from new engines beginning in 2008. Indiana commits to maintain all existing emission control measures that affect St. Joseph and Elkhart Counties after this area is redesignated to attainment of the 8-hour ozone NAAQS. All changes in existing rules affecting St. Joseph and Elkhart Counties and new rules subsequently needed to provide for the maintenance of the 8-hour ozone NAAQS in St. Joseph and Elkhart Counties will be submitted to the EPA for approval as SIP revisions. D. St. Joseph and Elkhart Counties Have a Fully Approvable Ozone Maintenance Plan Pursuant to Section 175A of the CAA In conjunction with its request to redesignate St. Joseph and Elkhart Counties to attainment of the ozone NAAQS, Indiana submitted a SIP revision request to provide for maintenance of the 8-hour ozone NAAQS in St. Joseph and Elkhart Counties for at least 10 years after the redesignation of this area to attainment of the 8-hour ozone NAAQS. 1. What Is Required in an Ozone Maintenance Plan? Section 175A of the CAA sets forth the required elements of air quality maintenance plans for areas seeking redesignation from nonattainment to attainment of a NAAQS. Under section 175A, a maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves the redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan which demonstrates maintenance of the standard for 10 years following the initial 10 year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary, to assure prompt correction of any future NAAQS violations. The September 4, 1992, John Calcagni memorandum provides additional guidance on the content of maintenance plans. An ozone maintenance plan should, at minimum, address the following items:

(1)The attainment VOC and NO X emissions inventories;

(2)a maintenance demonstration showing maintenance for the 10 years of the maintenance period;

(3)a commitment to maintain the existing monitoring network;

(4)factors and procedures to be used for verification of continued attainment; and,

(5)a contingency plan to prevent and/or correct a future violation of the NAAQS. 2. What Are the Attainment Emission Inventories for St. Joseph and Elkhart Counties? IDEM prepared comprehensive VOC and NO X emission inventories for St. Joseph and Elkhart Counties, including point (significant stationary sources), area (smaller and widely-distributed stationary sources), mobile on-road, and mobile non-road sources for 2004 (the base year/attainment year). To develop the attainment year emission inventories, IDEM used the following approaches and sources of data: *Area Sources* —Area source VOC and NO X emissions were projected from Indiana's 2002 periodic emissions inventory, which was previously submitted to the EPA. *Mobile On-Road Sources* —Mobile source emissions were calculated using the MOBILE6 emission factor model and traffic data (vehicle miles traveled, vehicle speeds, and vehicle type and age distributions) extracted from the region's travel-demand model. *Point Source Emissions* —2004 point source emissions were compiled using IDEM's 2004 annual emissions statement database and the 2005 EPA Air Markets acid rain emissions inventory database. *Mobile Non-Road Emissions—* Non-road mobile source emissions were estimated by the EPA and documented in the 2002 National Emissions Inventory (NEI). IDEM used these emissions estimates along with growth factors to grow the non-road mobile source emissions to 2004. To address concerns about the accuracy of some of the emissions for various source categories in EPA's non-road emissions model, the Lake Michigan Air Directors Consortium (LADCO) contracted with several companies to review the base data used by the EPA and to make recommendations for corrections to the model. Emissions were estimated for commercial marine vessels and railroads. Recreational motorboat population and spatial surrogates (used to assign emissions to each county) were updated. The populations for the construction equipment category were reviewed and updated based on surveys completed in the Midwest, and the temporal allocation for agricultural sources was also updated. Based on these and other updates, the EPA provided a revised non-road estimation model, which was used for the 2004 projected non-road mobile source emissions. The 2004 attainment year VOC and NO X emissions for St. Joseph and Elkhart Counties are summarized along with the 2010 and 2020 projected emissions for these counties in Tables 4 and 5, below. They confirm that the State has acceptably derived and documented the attainment year VOC and NO X emissions for St. Joseph and Elkhart Counties. 3. Demonstration of Maintenance As part of the May 30, 2006, redesignation request submittal, IDEM included a requested revision to the SIP to incorporate a 13-year ozone maintenance plan which is consistent with the requirements under section 175A of the CAA. Included in the maintenance plan is a maintenance demonstration. This demonstration shows maintenance of the 8-hour ozone NAAQS by documenting current and projected VOC and NO X emissions and by documenting photochemical modeling results that support maintenance of the standard in this area. 5 5 The attainment year can be any of the three consecutive years in which the area has clean (below violation level) air quality data (2003, 2004, or 2005 for St. Joseph and Elkhart Counties). Table 4 specifies the VOC emissions in St. Joseph and Elkhart Counties for 2004, 2010, and 2020. IDEM chose 2020 as a projection year to meet the 10-year minimum maintenance projection requirement, allowing several years for the State to complete its adoption of the ozone redesignation request and ozone maintenance plan and for the EPA to approve the redesignation request and maintenance plan. IDEM also chose 2010 as an interim year to demonstrate that VOC and NO X emissions will remain below the attainment levels throughout the 10-year maintenance period. Table 5, similar to Table 4, specifies the NO X emissions in St. Joseph and Elkhart Counties for 2004, 2010, and 2020. Together, Tables 4 and 5 and the photochemical modeling results demonstrate that St. Joseph and Elkhart Counties should remain in attainment of the 8-hour ozone NAAQS between 2004 and 2020, for more than 10 years after EPA is expected to approve the redesignation of St. Joseph and Elkhart Counties to attainment of the 8-hour ozone NAAQS. Table 4.—Attainment Year

(2004)and Projected VOC Emissions in St. Joseph and Elkhart Counties [Tons per summer day] Source sector Year 2004 2010 2020 Point 25.63 29.16 39.78 Area 29.43 31.15 35.20 On-Road Mobile 17.52 11.56 6.64 Off-Road Mobile 13.40 10.47 8.06 Total 85.98 82.34 89.68 Table 5.—Attainment Year and Projected NO X Emissions in St. Joseph and Elkhart Counties [Tons per summer day] Source sector Year 2004 2010 2020 Point 6.36 6.32 7.17 Area 7.13 7.54 7.98 On-Road Mobile 30.11 19.29 7.73 Off-Road Mobile 19.56 14.06 9.78 Total 63.16 47.21 32.66 IDEM also notes that the State's EGU NO X emission control rules stemming from EPA's NO X SIP call, implemented beginning in 2004, and CAIR will further lower NO X emissions in upwind areas, resulting in decreased ozone and ozone precursor transport into St. Joseph and Elkhart Counties (the State did not project the emission decreases resulting from CAIR and did not document future NO X emissions in upwind Counties). This will also support maintenance of the ozone standard in St. Joseph and Elkhart Counties. Based upon the data in Table 5, NO X emissions in St. Joseph and Elkhart Counties are projected to decline by more than 48% between 2004 and 2020, but VOC emissions are projected to increase by a modest 4.3% during that period. This slight increase in VOC emissions, however, is more than offset by the significant local and regional decreases in NO X emissions to occur during the same timeframe. This offsetting of an increase in VOC emissions with NO X emission reductions is consistent with EPA's December 1993 NO X Substitution Policy (which specifies that a percentage basis, rather than a mass basis, is used for equivalency calculations) which was transmitted under cover of a December 15, 1993, memorandum from John Seitz,

(then)Director, Office of Air Quality Planning and Standards, as clarified in an August 5, 1994, memorandum also from John Seitz, titled “Clarification of Policy for Nitrogen Oxides Substitution.” As discussed in Indiana's submittal, EPA modeling shows that existing national emission control measures have brought St. Joseph and Elkhart Counties into attainment of the 8-hour NAAQS. Rulemakings to be implemented in the next several years will provide even greater assurance that air quality will continue to meet the standard in the future. Modeling for the NO X SIP call, Heavy Duty Engine Rule, Highway Diesel Fuel and Tier II/Low Sulfur Fuel Rule, and CAIR shows that future year design values for St. Joseph and Elkhart Counties through 2020 will continue to show attainment of the ozone standard, with modeled future ozone design values well below 0.085 ppm. Based on the comparison of the projected emissions and the attainment year emissions, and photochemical modeling results, we conclude that IDEM has successfully demonstrated that the 8-hour ozone standard should be maintained in St. Joseph and Elkhart Counties. We believe that this is especially likely given the expected impacts of the NO X SIP call and CAIR. As noted by IDEM, this conclusion is further supported by the fact that other states in the eastern portion of the United States are expected to further reduce regional NO X emissions through implementation of their own NO X emission control rules for EGUs and other NO X sources and through implementation of CAIR, reducing ozone and NO X transport into St. Joseph and Elkhart Counties. 4. Monitoring Network IDEM commits to continue operating and maintaining an approved ozone monitoring network in St. Joseph and Elkhart Counties in accordance with 40 CFR part 58 through the 13-year maintenance period. This will allow the confirmation of the maintenance of the 8-hour ozone standard in this area and the triggering of contingency measures if needed. 5. Verification of Continued Attainment Continued attainment of the 8-hour ozone NAAQS in St. Joseph and Elkhart Counties depends on the State's efforts toward tracking applicable indicators during the maintenance period. The State's plan for verifying continued attainment of the 8-hour ozone standard in St. Joseph and Elkhart Counties consists, in part, of a plan to continue ambient ozone monitoring in accordance with the requirements of 40 CFR part 58. In addition, IDEM will periodically revise and review the VOC and NO X emissions inventories for St. Joseph and Elkhart Counties to assure that emissions growth is not threatening the continued attainment of the 8-hour ozone standard in this area. Revised emission inventories for this area will be prepared for 2005, 2008, and 2011 as necessary to comply with the emission inventory reporting requirements established in the CAA. The revised emissions will be compared with the 2004 attainment emissions and the 2020 projected maintenance year emissions to assure continued maintenance of the ozone standard. 6. Contingency Plan The contingency plan provisions of the CAA are designed to result in prompt correction or prevention of violations of the NAAQS that might occur after redesignation of an area to attainment of the NAAQS. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the State will promptly correct a violation of the NAAQS that might occur after redesignation. The maintenance plan must identify the contingency measures to be considered for possible adoption, a schedule and procedure for adoption and implementation of the selected contingency measures, and a time limit for action by the State. The State should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the State will implement all measures with respect to control of the pollutant(s) that were controlled in the SIP before the redesignation of the area to attainment. See section 175A(d) of the CAA. As required by section 175A of the CAA, Indiana commits to review its Maintenance Plan eight years after redesignation and to adopt and expeditiously implement any necessary corrective actions (or contingency measures). Contingency measures to be considered will be selected from a comprehensive list of measures deemed appropriate and effective at the time the selection is made. The contingency plan has two levels of actions/responses depending on whether a violation of the 8-hour ozone standard is only threatened (Warning Level Response) or has actually occurred (Action Level Response). A Warning Level Response will be prompted whenever an annual (1-year) fourth-high monitored daily peak 8-hour ozone concentration of 89 ppb (or greater) occurs at any monitor in St. Joseph and Elkhart Counties, or a 2-year averaged annual fourth-high daily peak 8-hour ozone concentration of 85 ppb or greater occurs at any monitor in St. Joseph and Elkhart Counties. A Warning Level Response will consist of a study to determine whether the monitored ozone level indicates a trend toward higher ozone levels or whether emissions are increasing, threatening a future violation of the ozone NAAQS. The study will evaluate whether the trend, if any, is likely to continue, and, if so, the emission control measures necessary to reverse the trend, taking into consideration the ease and timing of implementation, as well as economic and social considerations. Implementation of necessary controls will take place as expeditiously as possible, but in no event later than 12 months from the conclusion of the most recent ozone season. If new emission controls are needed to reverse the adverse ozone trend, the procedures for emission control selection under the Action Level Response will be followed. An Action Level Response will be triggered when a violation of the 8-hour ozone standard is monitored at any of the monitors in St. Joseph and Elkhart Counties (when a 3-year average annual fourth-high monitored daily peak 8-hour ozone concentration of 85 ppb or higher is recorded at any monitor in St. Joseph and Elkhart Counties). In this situation, IDEM will determine the additional emission control measures needed to assure future attainment of the 8-hour ozone NAAQS. IDEM will focus on emission control measures that can be implemented within 18 months from the close of the ozone season in which the ozone standard violation is monitored. Adoption of any additional emission control measures prompted by either of the two response levels will be subject to the necessary administrative and legal processes dictated by State law. This process will include publication of public notices, providing the opportunity for a public hearing, and other measures required by Indiana law for rulemaking by State environmental boards. If a new emission control measure is already promulgated and scheduled for implementation at the Federal or State level, and that emission control measure is determined to be sufficient to address the air quality problem or adverse trend, additional local emission control measures may be determined to be unnecessary. IDEM will submit to the EPA an analysis to demonstrate that the proposed emission control measures or existing emission control measures are adequate to provide for future attainment of the 8-hour ozone NAAQS in St. Joseph and Elkhart Counties. Contingency measures contained in the maintenance plan are those emission controls or other measures that the State may choose to adopt and implement to correct existing or possible air quality problems in St. Joseph and Elkhart Counties. These include, but are not limited to, the following: i. Lower Reid vapor pressure gasoline requirements; ii. Broader geographic applicability of existing emission control measures; iii. Tightened RACT requirements on existing sources covered by EPA Control Technique Guidelines

(CTGs)issued in response to the 1999 CAA amendments; iv. Application of RACT to smaller existing sources; v. Vehicle Inspection and Maintenance (I/M); vi. One or more Transportation Control Measure

(TCM)sufficient to achieve at least a 0.5 percent reduction in actual area-wide VOC emissions, to be selected from the following: A. Trip reduction programs, including, but not limited to, employer-based transportation management plans, area-wide rideshare programs, work schedule programs, and telecommuting; B. Transit improvement; C. Traffic flow improvements; and, D. Other new or innovative transportation measures not yet in widespread use that affect State and local governments as deemed appropriate; vii. Alternative fuel and diesel retrofit programs for fleet vehicle operations; viii. Controls on consumer products consistent with those adopted elsewhere in the United States; ix. VOC or NO X emission offsets for new or modified major sources; x. VOC or NO X emission offsets for new or modified minor sources; xi. Increased ratio of emission offsets required for new sources; and, xii. VOC or NO X emission controls on new minor sources (with VOC or NO X emissions less than 100 tons per year). 7. Provisions for a Future Update of the Ozone Maintenance Plan As required by section 175A(b) of the CAA, the State commits to submit to the EPA an update of the ozone maintenance plan eight years after redesignation of the Counties to attainment of the 8-hour ozone NAAQS. The revision will contain Indiana's plan for maintaining the 8-hour ozone standard for 10 years beyond the first 10-year period after redesignation. V. Has Indiana Adopted Acceptable Motor Vehicle Emissions Budgets for the End of the 14-Year Maintenance Plan Which Can Be Used To Support Transportation Conformity Determinations? A. How Are the Motor Vehicle Emission Budgets Developed and What Are the Motor Vehicle Emission Budgets for St. Joseph and Elkhart Counties? Under the CAA, states are required to submit, at various times, SIP revisions and ozone maintenance plans for applicable areas (for ozone nonattainment areas and for areas seeking redesignations to attainment of the ozone standard or revising existing ozone maintenance plans). These emission control SIP revisions (e.g., reasonable further progress and attainment demonstration SIP revisions), including ozone maintenance plans, must create MVEBs based on on-road mobile source emissions allocated to highway and transit vehicle use that, together with emissions from other sources in the area, will provide for attainment or maintenance of the ozone NAAQS. Under 40 CFR part 93, MVEBs for an area seeking a redesignation to attainment of the NAAQS are established for the last year of the maintenance plan. The MVEBs serve as ceilings on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish the MVEBs in the SIP and how to revise the MVEBs if needed. Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to ( *i.e.* , be consistent with) the part of the SIP that addresses emissions from cars and trucks. Conformity to the SIP means that transportation activities will not cause new air quality standard violations, or delay timely attainment of the NAAQS. If a transportation plan does not conform, most new transportation projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA's policy, criteria, and procedures for demonstrating and assuring conformity of transportation activities to a SIP. When reviewing SIP revisions containing MVEBs, including attainment strategies, rate-of-progress plans, and maintenance plans, EPA must affirmatively find that the MVEBs are “adequate” for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEBs to be adequate for transportation conformity purposes, the MVEBs are used by state and Federal agencies in determining whether proposed transportation projects conform to the SIPs as required by section 176(c) of the CAA. EPA's substantive criteria for determining the adequacy of MVEBs are specified in 40 CFR 93.118(e)(4). EPA's process for determining adequacy of MVEBs consists of three basic steps:

(1)Providing public notification of a SIP submission;

(2)providing the public the opportunity to comment on the MVEBs during a public comment period; and,

(3)making a finding of adequacy. The process of determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999, guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was finalized in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas: Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change” published on July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in making its adequacy determinations. The Transportation Conformity Rule, in 40 CFR section 93.118(f), provides for MVEB adequacy findings through two mechanisms. First, 40 CFR 93.118(f)(1) provides for posting a notice to the EPA conformity Web site at: *http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm* and providing a 30-day public comment period. Second, a mechanism is described in 40 CFR 93.118(f)(2) which provides that EPA can review the adequacy of an implementation plan MVEB simultaneously with its review of the implementation plan itself. The St. Joseph and Elkhart Counties 14-year maintenance plan contains VOC and NO X MVEBs for 2020. EPA has reviewed the submittal and the VOC and NO X MVEBs for St. Joseph and Elkhart Counties and finds that the MVEBs meet the adequacy criteria in the Transportation Conformity Rule. The 30-day comment period for adequacy will be the same as the comment period for approval of the budgets and maintenance plan. Any and all comments on the adequacy or approvability of the budgets should be submitted during the comment period stated in the DATES section of this notice. EPA, through this rulemaking, is proposing to approve the MVEBs for use to determine transportation conformity in St. Joseph and Elkhart Counties because EPA has determined that the budgets are consistent with the control measures in the SIP and that St. Joseph and Elkhart Counties can maintain attainment of the 8-hour ozone NAAQS for the relevant required 13-year period with mobile source emissions at the levels of the MVEBs. IDEM has determined the 2020 MVEBs for St. Joseph and Elkhart Counties to be 6.64 tons per day for VOC and 7.73 tons per day for NO X . B. Are the MVEBs Approvable? The VOC and NO X MVEBs for St. Joseph and Elkhart Counties are approvable because they provide for continued maintenance of the 8-hour ozone standard through 2020. VI. What Is the Effect of EPA's Proposed Action? Approval of the redesignation request would change the official designation of St. Joseph and Elkhart Counties for the 8-hour ozone NAAQS, found at 40 CFR part 81, from nonattainment to attainment. It would also incorporate into the Indiana SIP a plan for maintaining the ozone NAAQS through 2020. The maintenance plan includes contingency measures to remedy possible future violations of the 8-hour ozone NAAQS, and establishes MVEBs of 6.64 tons per day for VOC and 7.73 tons per day for NO X . VII. Statutory and Executive Order Reviews Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. Paperwork Reduction Act This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Regulatory Flexibility Act This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). Unfunded Mandates Reform Act Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 13132: Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTAA do not apply. List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds. 40 CFR Part 81 Air pollution control, Environmental protection, National parks, Wilderness areas. Dated: April 6, 2007. Walter W. Kovalick, Acting Regional Administrator, Region 5. [FR Doc. E7-7347 Filed 4-17-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R05-OAR-2006-0459; FRL-8301-9] Determination of Attainment, Approval and Promulgation of Implementation Plans and Designation of Areas for Air Quality Planning Purposes; Indiana; Redesignation of the LaPorte County 8-Hour Nonattainment Area to Attainment for Ozone AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: On May 30, 2006, the Indiana Department of Environmental Management

(IDEM)submitted a request for EPA approval of a redesignation of LaPorte County to attainment of the 8-hour ozone National Ambient Air Quality Standard (NAAQS) and of an ozone maintenance plan for LaPorte County as a revision to the Indiana State Implementation Plan (SIP). EPA is proposing to approve Indiana's request and maintenance plan SIP revision. EPA is also proposing to approve the Volatile Organic Compounds

(VOC)and Nitrogen Oxides (NO X ) Motor Vehicle Emission Budgets (MVEBs) for LaPorte County, as supported by the ozone maintenance plan for this County, for purposes of conformity determinations. DATES: Comments must be received on or before May 18, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-0459, by one of the following methods: • *www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: mooney.john@epa.gov.* • *Fax:*

(312)886-5824. • *Mail:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • *Hand Delivery:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois. Such deliveries are only accepted during the Regional Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office's official hours of operation are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R05-OAR-2006-0459. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov,* including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through *www.regulations.gov* or e-mail. The *www.regulations.gov* website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov,* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption, and should be free of any defects or viruses *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, *e.g.* , CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hardcopy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hardcopy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. It is recommended that you telephone Edward Doty, Environmental Scientist, at

(312)886-6057, before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Edward Doty, Environmental Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)886-6057, *doty.edward@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. This supplementary information section is arranged as follows: I. What Action Is EPA Proposing To Take? II. What Is the Background for This Action? III. What Are the Criteria for Redesignation to Attainment? IV. What Are EPA's Analyses of the State's Requests and What Are the Bases for EPA's Proposed Action? V. Has Indiana Adopted Acceptable Motor Vehicle Emissions Budgets for the End of the 10-Year Maintenance Plan Which Can Be Used To Support Conformity Determinations? VI. What Is the Effect of EPA's Proposed Action? VII. Statutory and Executive Order Reviews I. What Action Is EPA Proposing To Take? We are proposing to take several related actions for LaPorte County. First, we are proposing to determine that LaPorte County has attained the 8-hour ozone NAAQS based on air quality for the period of 2003 through 2005. Second, we are proposing to approve Indiana's ozone maintenance plan for LaPorte County as a requested revision to the Indiana SIP. The maintenance plan is designed to keep LaPorte County in attainment of the 8-hour ozone standard for the next 14 years, through 2020. As supported by and consistent with the ozone maintenance plan, we are also proposing to approve the 2020 VOC and NO X MVEBs for LaPorte County for conformity purposes. Finally, we are proposing to approve the request from the State of Indiana to change the designation of LaPorte County from nonattainment to attainment of the 8-hour ozone NAAQS. We have determined that the State and LaPorte County have met the requirements for redesignation to attainment under section 107(d)(3)(E) of the Clean Air Act (CAA). II. What Is the Background for This Action? A. General Background Information EPA has determined that ground-level ozone is detrimental to human health. On July 18, 1997, EPA promulgated an 8-hour ozone NAAQS of 0.08 parts per million parts of air (0.08 ppm) (80 parts per billion (ppb)) (62 FR 38856). 1 This 8-hour ozone standard replaced a prior 1-hour ozone NAAQS, which had been promulgated on February 8, 1979 (44 FR 8202), and which EPA revoked on June 15, 2005 (69 FR 23858). 1 This standard is violated in an area when any ozone monitor in the area (or in its impacted downwind environs) records 8-hour ozone concentrations with an average of the annual fourth-highest daily maximum 8-hour ozone concentrations over a three-year period equaling or exceeding 85 ppb. See 40 CFR 50.10. Ground-level ozone is not emitted directly by sources. Rather, emitted NO X and VOC react in the presence of sunlight to form ground-level ozone along with other secondary compounds. NO X and VOC are referred to as “ozone precursors.” Control of ground-level ozone concentrations is achieved through controlling VOC and NO X emissions. Section 107 of the CAA required EPA to designate as nonattainment any area that violates the 8-hour ozone NAAQS. The **Federal Register** notice promulgating the 8-hour ozone designations and classifications was published on April 30, 2004 (69 FR 23857). The CAA contains two sets of provisions—subpart 1 and subpart 2—that address planning and emission control requirements for nonattainment areas. Both are found in title I, part D of the CAA. Subpart 1 contains general, less prescriptive requirements for all nonattainment areas for any pollutant governed by a NAAQS. Subpart 2 contains more specific requirements for certain ozone nonattainment areas, and applies to ozone nonattainment areas classified under section 181 of the CAA. In the April 30, 2004 designation rulemaking, EPA divided 8-hour ozone nonattainment areas into the categories of subpart 1 nonattainment (“basic” nonattainment) and subpart 2 nonattainment (“classified” nonattainment). EPA based this division on the areas 8-hour ozone design values ( *i.e.* , on the three-year averages of the annual fourth-highest daily maximum 8-hour ozone concentrations at the worst-case monitoring sites in the areas) and on their 1-hour ozone design values ( *i.e.* , on the fourth-highest daily maximum 1-hour ozone concentrations over the three-year period at the worst-case monitoring sites in the areas). 2 EPA classified 8-hour ozone nonattainment areas with 1-hour ozone design values equaling or exceeding 121 ppb as subpart 2, classified nonattainment areas. EPA classified all other 8-hour nonattainment areas as subpart 1, basic nonattainment areas. The basis for area classification was defined in a separate April 30, 2004, final rule (the Phase 1 implementation rule) (69 FR 23951). 2 The 8-hour ozone design value and the 1-hour ozone design value for each area were not necessarily recorded at the same monitoring site. The worst-case monitoring site for each ozone concentration averaging time was considered for each area. Emission control requirements for classified nonattainment areas are linked to area classifications. Areas with more serious ozone pollution problems are subject to more prescribed requirements and later attainment dates. The prescribed emission control requirements are designed to bring areas into attainment by their specified attainment dates. In the April 30, 2004, ozone designation/classification rulemaking, EPA designated LaPorte County as a subpart 2 moderate nonattainment area for the 8-hour ozone NAAQS. This designation was based on ozone data collected during the 2001-2003 period. On September 22, 2004 (69 FR 56697), EPA revised the designation of LaPorte County to subpart 2 marginal nonattainment. On May 30, 2006, the State of Indiana requested redesignation of LaPorte County to attainment of the 8-hour ozone NAAQS based on ozone data collected in LaPorte County during the 2003-2005 period. On August 24, 2006, IDEM submitted a summary of an ozone data review and supplementary ozone data to address a shortfall in the data supporting the ozone redesignation request. B. What Is the Impact of the December 22, 2006 United States Court of Appeals Decision Regarding EPA's Phase 1 Implementation Rule? On December 22, 2006, the United States Court of Appeals for the District of Columbia Circuit (the Court) vacated EPA's Phase 1 implementation rule (Phase 1 Rule) for the 8-hour ozone standard (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA,* 472 F.3d 882 (D.C. Cir. 2006). The Court held that certain provisions of EPA's Phase 1 Rule were inconsistent with the requirements of the CAA. The Court rejected EPA's reasons for implementing the 8-hour ozone standard in nonattainment areas under subpart 1 in lieu of subpart 2 of Title I, part D of the CAA. The Court also held that EPA improperly failed to retain four measures required for 1-hour ozone nonattainment areas under the anti-backsliding provisions of the regulations:

(1)Nonattainment area New Source Review

(NSR)requirements based on an area's 1-hour nonattainment classification;

(2)section 185 penalty fees for 1-hour severe or extreme ozone nonattainment areas;

(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the CAA, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour ozone NAAQS, or failing to attain that NAAQS; and,

(4)conformity requirements for certain types of Federal actions. The Court upheld EPA's authority to revoke the 1-hour ozone standard provided that there were adequate anti-backsliding provisions. This section sets forth EPA's views on the potential effect of the Court's ruling on this redesignation action. For the reasons set forth below, EPA does not believe that the Court's ruling alters any requirements relevant to this redesignation action so as to preclude redesignation, and does not prevent EPA from finalizing this redesignation. EPA believes that the Court's decision, as it currently stands or as it may be modified based on any petition for rehearing that has been filed, imposes no impediment to moving forward with redesignation of this area to attainment, because in either circumstance redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests. With respect to the 8-hour ozone standard, LaPorte County is classified as moderate nonattainment under subpart 2 of the CAA. We do not believe that any part of the Court's opinion would require that this subpart 2 classification be changed upon remand to EPA. However, even assuming for present purposes that LaPorte County would become subject to a different classification under a classification scheme created in a future rule in response to the Court's decision, this would not prevent EPA from finalizing a redesignation for this area. For the reasons set forth below, we believe that any additional requirements that might apply based on that different classification would not be applicable for purposes of evaluating the redesignation request. This belief is based on:

(1)EPA's longstanding policy of evaluating redesignation requests in accordance with only the requirements due at the time the complete redesignation request was submitted; and,

(2)consideration of the inequity of retroactively applying any requirements that might be applied in the future. First, at the time the complete redesignation request was submitted (May 30, 2006), LaPorte County was classified under subpart 2 and was required to meet the subpart 2 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the CAA, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of complete redesignation requests. September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division). See also: September 17, 1993 Shapiro memorandum (“State Implementation Plan

(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide

(CO)National Ambient Air Quality Standard (NAAQS) on or after November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator, Air and Radiation Division); 60 FR 12459, 12465-12466 (March 7, 1995) (redesignation of Detroit-Ann Arbor); *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004), which upheld this interpretation; and, 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis). At the time the redesignation request for LaPorte County was submitted, the area was not classified under subpart 1 and no subpart 1 requirements were applicable for purposes of redesignation. Second, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the complete redesignation request was submitted, but which might later become applicable. The D.C. Circuit has recognized the inequity of such retroactive rulemaking. See *Sierra Club* v. *Whitman,* 285 F.3d 63 (D.C. Cir. 2002), in which the D.C. Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory attainment deadline. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: “Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution plans in 1997, even though they were not on notice at the time.” *Id.* at 68. Similarly, here it would be unfair to penalize the area by applying to it for purposes of redesignation additional requirements under subpart 1 that were not in effect at the time Indiana submitted its redesignation request, but that might apply in the future. Because LaPorte County was designated as Unclassifiable/Attainment under the 1-hour ozone standard and was never designated nonattainment for the 1-hour ozone standard, there are no outstanding 1-hour nonattainment area requirements that LaPorte County would be required to meet. Thus, we find that the Court's ruling does not result in any additional 1-hour requirements for purposes of redesignation of LaPorte County. III. What Are the Criteria for Redesignation to Attainment? The CAA provides the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) of the CAA authorizes redesignation provided that:

(1)The Administrator determines that the area has attained the applicable NAAQS;

(2)the Administrator has fully approved an applicable state implementation plan for the area under section 110(k) of the CAA;

(4)the Administrator has fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA; and,

(1)Determine that LaPorte County has attained the 8-hour ozone standard;

(2)approve the ozone maintenance plan for this County and the VOC and NO X MVEBs supported by this maintenance plan; and,

(3)approve the redesignation of this County to attainment of the 8-hour ozone NAAQS. The bases for our proposed determination and approvals follow. 1. LaPorte County Has Attained the 8-Hour Ozone NAAQS For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations of the NAAQS, as determined in accordance with 40 CFR 50.10 and appendix I, based on the most recent three complete, consecutive calendar years of quality-assured air quality monitoring data at all ozone monitoring sites in the area and in its nearby downwind environs. To attain this standard, the average of the annual fourth-high daily maximum 8-hour average ozone concentrations measured and recorded at each monitor (the monitoring site's ozone design value) within the area and in its nearby downwind environs over the three-year period must not exceed the ozone standard. Based on an ozone data rounding convention described in 40 CFR part 50, appendix I, the 8-hour standard is attained if the area's ozone design value 3 is 0.084 ppm (84 ppb) or lower. The data must be collected and quality-assured in accordance with 40 CFR part 58, and must be recorded in EPA's Air Quality System (AQS). The ozone monitors generally should have remained at the same locations for the duration of the monitoring period required to demonstrate attainment (for three years or more). The data supporting attainment of the standard must be complete in accordance with 40 CFR part 50, appendix I. 3 The worst-case monitoring site-specific ozone design value in the area or in its affected downwind environs. As part of the May 30, 2006 ozone redesignation request, IDEM submitted ozone monitoring data indicating the highest four daily maximum 8-hour ozone concentrations for each monitoring site in LaPorte County (the Michigan City and LaPorte ozone monitoring sites) for each year during the 2003-2005 period. These worst-case ozone concentrations are part of the quality-assured ozone data that have been entered into EPA's AQS. The annual fourth-high 8-hour daily maximum ozone concentrations, along with their three-year averages are summarized in Table 1. Table 1.—Fourth-High 8-Hour Ozone Concentrations [In parts per billion (ppb)] County Monitoring site 2003 2004 2005 Average LaPorte Michigan City 82 70 84 79 LaPorte LaPorte 84 68 89 80 These data show that the average fourth-high daily maximum 8-hour ozone concentrations for the monitoring sites in LaPorte County are all below the 85 ppb ozone standard violation cut-off. The data support the conclusion that LaPorte County did not experience a monitored violation of the 8-hour ozone standard during the 2003-2005 period. We also note that the 8-hour ozone NAAQS continued to be attained in LaPorte County through 2006. Data in the AQS show that, in 2006, the Michigan City monitor recorded a daily maximum fourth-high 8-hour ozone concentration of 75 ppb, and the LaPorte monitor recorded a daily maximum fourth-high 8-hour ozone concentration of 69 ppb. The State has committed to continue ozone monitoring in this area during the maintenance period, through 2020. IDEM also commits to consult with the EPA prior to making any changes in the existing monitoring network. During our review of the LaPorte ozone monitoring data contained in EPA's AQS, we noted that the annual percentages of reported daily maximum 8-hour ozone concentrations for the LaPorte monitoring site during the 2003-2005 ozone seasons (April through September in Indiana) were the following: 90 percent in 2003; 65 percent in 2004; and 74 percent in 2005. This is not consistent with the three-year 90 percent annual average completeness requirement and the 75 percent annual minimum completeness requirement of 40 CFR part 50, appendix I. It should be noted, however, that appendix I provides for the consideration of surrounding ozone monitoring data to support alternative conclusions regarding data completeness. More specifically, it provides that, when computing whether the minimum data completeness requirements have been met, meteorological and ambient data may be sufficient to demonstrate that meteorological conditions on missing data days were not conducive to peak ozone concentrations above the level of the standard. Missing days assumed to have peak ozone concentrations less than the standard are counted for purposes of meeting the data completeness requirements as having valid maximum 8-hour ozone concentrations. On August 24, 2006, IDEM submitted supplemental data and documentation to support the conclusion that all days in 2003, 2004, and 2005 with missing ozone data were days in which the ozone standard was likely to not have been exceeded at the LaPorte site. We believe that IDEM's analysis supports an assumption of data completeness for the LaPorte monitoring site and, therefore, agree that the LaPorte ozone data for 2003-2005 meet the data completeness requirements. IDEM has appropriately flagged the ozone data in the AQS for this monitoring site supporting this conclusion. The data submitted by the State demonstrate that LaPorte County has attained the 8-hour ozone NAAQS. Therefore, we propose to find that LaPorte County has attained the 8-hour ozone standard. 2. LaPorte County Has Met All Applicable Requirements Under Section 110 and Part D of the CAA and the Area Has a Fully Approved SIP Under Section 110(k) of the CAA EPA has determined that Indiana has met all currently applicable SIP requirements for LaPorte County under section 110 of the CAA (general SIP requirements). EPA has also determined that the Indiana SIP meets currently applicable SIP requirements under part D of title I of the CAA (requirements specific to basic and subpart 2 ozone nonattainment areas). See section 107(d)(3)(E)(v) of the CAA. In addition, EPA has determined that the Indiana SIP is fully approved with respect to all applicable requirements. See section 107(d)(3)(E)(ii) of the CAA. In making these determinations, EPA ascertained what requirements are applicable to the area, and determined that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. We note that SIPs must be fully approved only with respect to currently applicable requirements of the CAA, those CAA requirements applicable to LaPorte County at the time the State submitted the final, complete ozone redesignation request for this area. a. LaPorte County Has Met All Applicable Requirements Under Section 110 and Part D of the CAA The September 4, 1992 Calcagni memorandum describes EPA's interpretation of section 107(D)(3)(E) of the CAA. Under this interpretation, to qualify for redesignation of an area to attainment, the State and the area must meet the relevant CAA requirements that come due prior to the State's submittal of a complete redesignation request for the area. See also a September 17, 1993 memorandum from Michael Shapiro, Acting Assistant Administrator for Air and Radiation, “State Implementation Plan

(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide

(CO)National Ambient Air Quality Standards (NAAQS) On or After November 15, 1992” and 66 FR 12459, 12465-12466 (March 7, 1995) (redesignation of Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS). Applicable requirements of the CAA that come due subsequent to the State's submittal of a complete redesignation request remain applicable until a redesignation to attainment of the standard is approved, but are not required as a prerequisite to redesignation. See section 175A(c) of the CAA. *Sierra Club* v. *EPA* , 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis area to attainment of the 1-hour ozone NAAQS). *General SIP requirements:* Section 110(a) of title I of the CAA contains the general requirements for a SIP, which include: enforceable emission limitations and other control measures, means, or techniques; provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality; and programs to enforce the emission limitations. SIP elements and requirements are specified in section 110(a)(2) of title I, part A of the CAA. These requirements and SIP elements include, but are not limited to, the following:

(a)Submittal of a SIP that has been adopted by the State after reasonable public notice and a hearing;

(b)provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality;

(c)implementation of a source permit program;

(d)provisions for the implementation of new source part C requirements (Prevention of Significant Deterioration (PSD)) and new source part D requirements (New Source Review (NSR));

(e)criteria for stationary source emission control measures, monitoring, and reporting;

(f)provisions for air quality modeling; and,

(SIP)Actions Submitted in Response to Clean Air Act

(CAA)Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; and “State Implementation Plan

(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide

(CO)National Ambient Air Quality Standards (NAAQS) on or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator, September 17, 1993. See also other guidance documents listed above. Section 110(a)(2)(D) of the CAA requires SIPs to contain certain measures to prevent sources in one state from significantly contributing to air quality problems in another state. To implement this provision, EPA required states to establish programs to address transport of air pollutants (NO X SIP call, Clean Air Interstate Rule (CAIR)). EPA has also found, generally, that states have not submitted SIPs under section 110(a)(1) of the CAA to meet the interstate transport requirements of section 110(a)(2)(D)(i) of the CAA (70 FR 21147, April 25, 2005). However, the section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's classification. EPA believes that the requirements linked with a particular nonattainment area's 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. We believe that these requirements should not be construed to be applicable requirements for purposes of redesignation. Further, we believe that the other section 110 elements described above that are not connected with nonattainment plan submissions and that are not linked with an area's attainment status are also not applicable requirements for purposes of redesignation. A state remains subject to these requirements after an area is redesignated to attainment. We conclude that only the section 110 and part D requirements which are linked with an area's designation and classification are the relevant measures in evaluating this aspect of a redesignation request. This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements for redesignation purposes, as well as with section 184 ozone transport requirements. See: Reading, Pennsylvania proposed and final rulemakings (61 FR 53174-53176, October 10, 1996 and 62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio ozone redesignation (65 FR 37890, June 19, 2000), and the Pittsburgh, Pennsylvania ozone redesignation (66 FR 50399, October 19, 2001). In addition, Indiana's response to the CAIR rule was due in September 2006. Because this deadline had not yet passed when the State submitted the final, complete redesignation request, the State's CAIR submittal is also not an applicable requirement for redesignation purposes. We believe that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. Nonetheless, we also note that EPA has previously approved provisions in the Indiana SIP addressing section 110 elements under the 1-hour ozone standard. We have analyzed the Indiana SIP as codified in 40 CFR 52, subpart P, and have determined that it is consistent with the requirements of section 110(a)(2) of the CAA. The SIP, which has been adopted after reasonable public notice and hearing, contains enforceable emission limitations; requires monitoring, compiling, and analyzing ambient air quality data; requires preconstruction review of new major stationary sources and major modifications of existing sources; provides for adequate funding, staff, and associated resources necessary to implement its requirements; and, requires stationary source emissions monitoring and reporting, and otherwise satisfies the applicable requirements of section 110(a)(2). *Part D SIP requirements:* EPA has determined that the Indiana SIP meets applicable SIP requirements under part D of the CAA. Under part D, an area's classification (marginal, moderate, serious, severe, and extreme) indicates the requirements to which it will be subject. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment area plan requirements applicable to all nonattainment areas. Subpart 2 of part D, found in section 182 of the CAA, establishes additional specific requirements depending on the area's nonattainment classification. *Part D, subpart 1 requirements:* For purposes of evaluating this redesignation request, the applicable subpart 1 part D requirements for all nonattainment areas are contained in sections 172(c)(1)-(9) and 176. A thorough discussion of the requirements of section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498). (See also 68 FR 4852-4853 in a St. Louis ozone redesignation notice of proposed rulemaking for a discussion of section 172 requirements.) As noted in a previous section of this proposed rule, no requirements under part D of the CAA came due for LaPorte County prior to the State's May 30, 2006 submittal of a complete redesignation request. For example, the requirement for an ozone attainment demonstration, as contained in section 172(c)(1), was not yet applicable, nor were the requirements for Reasonably Available Control Measures

(RACM)and Reasonably Available Control Technology

(RACT)(section 172(c)(1)), Reasonable Further Progress

(RFP)(section 172(c)(2)), and attainment plan and RFP contingency measures (section 172(c)(9)). All of these SIP elements were required for submittal after May 30, 2006. Therefore, none of the part D requirements are applicable to LaPorte County for 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 activities, including highway projects, conform to the air planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded, or approved under Title 23 U.S.C. and the Federal Transit Act (transportation conformity) as well as to all other federally-supported or funded projects (general conformity). State conformity SIP revisions must be consistent with Federal conformity regulations that the CAA required the EPA to promulgate. In addition to the fact that part D requirements did not become due prior to Indiana's submission of the complete ozone redesignation request for LaPorte County, and, therefore, are not applicable for redesignation purposes, EPA similarly believes that it is reasonable to interpret the conformity requirements as not applying for purposes of evaluating the ozone redesignation request under section 107(d) of the CAA. In addition, please note that it is reasonable to interpret the conformity requirements as not applying for purposes of evaluating the ozone redesignation request under section 107(d) of the CAA because state conformity rules are still required after redesignation of an area to attainment of a NAAQS and Federal conformity rules apply where state rules have not been approved. See *Wall* v. *EPA* , 265 F.3d 426 (6th Cir. 2001). See also 60 FR 62748 (December 7, 1995) (Tampa, Florida). *Part D, subpart 2 requirements:* Similar to the subpart 1 requirements, EPA believes that the subpart 2 requirements that apply to LaPorte County do not apply to a consideration of Indiana's ozone redesignation request because the State submitted a complete ozone redesignation request for LaPorte County before any of the applicable subpart 2 requirements became due. The May 10, 1995 Seitz memorandum (see “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995) states that certain SIP revisions need not be submitted for EPA to approve a redesignation request since the requirements would no longer be considered applicable requirements as long as the area continues to attain the standard. As set forth in this policy, EPA believes it is reasonable to interpret the provisions regarding RFP and attainment demonstrations, along with certain other related provisions, as not requiring further state submissions to achieve attainment if an area is in fact attaining the standard. In the May 10, 1995 memorandum, EPA articulated in detail its interpretation that certain requirements of subparts 1 and 2 are not applicable once an area has attained the standard, for as long as it continues to do so. The United States Court of Appeals for the Tenth Circuit has upheld this interpretation, *Sierra Club* v. *EPA* , 99 F.3d 1551 (10th Cir. 1996), as has the U.S. Court of Appeals for the Seventh Circuit. *Sierra Club* v. *EPA* , 375 F.3d 537 (7th Cir. 2004). In addition, EPA has explained in rulemaking actions on the 1-hour ozone standard its rationale for the reasonableness of this interpretation of the CAA. See: 67 FR 49600 (July 31, 2002); 65 FR 37879 (June 19, 2000); 65 FR 3630, 3631-32 (January 24, 2000) (Cincinnati-Hamilton, Ohio, Kentucky); 61 FR 20458 (May 7, 1996) (Cleveland-Akron-Lorain, Ohio); 66 FR 53094 (October 19, 2001) (Pittsburgh-Beaver Valley, Pennsylvania); 60 FR 37366 (July 20, 1995); 61 FR 31832-33 (June 21, 1996) (Grand Rapids, Michigan); 60 FR 36723 (July 18, 1995) (Salt Lake and Davis Counties, Utah); 68 FR 4847, 4848, 4851, 4855 (January 30, 2003); 68 FR 25418 (May 12, 2003) (St. Louis, Missouri); and, 66 FR 27484, 27486 (May 17, 2001) (Louisville, Kentucky). EPA has also determined that areas being redesignated need not comply with the requirement that a New Source Review

(NSR)program be approved prior to redesignation, provided that the area demonstrates maintenance of the standard without part D NSR, since Prevention of Significant Deterioration

(PSD)requirements will apply after redesignation. A more detailed rationale for this view is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled, “Part D New Source Review Requirements for Areas Requesting Redesignation to Attainment.” Indiana has demonstrated that LaPorte County will be able to maintain the 8-hour ozone standard without part D NSR in effect, and, therefore, we conclude that the State need not have a fully approved part D NSR program prior to approval of the redesignation request. The State's PSD program will become effective in LaPorte County upon redesignation to attainment. See rulemakings for Detroit, Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorain, Ohio (61 FR 20458, 20469-20470, May 7, 1996); Louisville, Kentucky (66 FR 53665, October 23, 2001); Grand Rapids, Michigan (61 FR 31834-31837, June 21, 1996). We conclude that the State and LaPorte County have satisfied all applicable requirements under section 110 and part D of the CAA to the extent that the requirements apply for the purposes of reviewing the State's ozone redesignation request. b. LaPorte County Has a Fully Approved Applicable SIP Under Section 110(k) of the CAA EPA has fully approved the Indiana SIP for LaPorte County under section 110(k) of the CAA for all applicable requirements. EPA may rely on prior SIP approvals in approving a redesignation request (See the September 4, 1992 John Calcagni memorandum, page 3, *Southwestern Pennsylvania Growth Alliance* v. *Browner,* 144 F.3d 984, 989-990 (6th Cir. 1998), *Wall* v. *EPA,* 265 F.3d 426 (6th Cir. 2001)), plus any additional measures it may approve in conjunction with a redesignation action. See 68 FR 25426 (May 12, 2003). Since the passage of the CAA of 1970, Indiana has adopted and submitted, and EPA has fully approved, provisions addressing the various required SIP elements applicable to LaPorte County for purposes of redesignation. No LaPorte County SIP provisions are currently disapproved, conditionally approved, or partially approved. As indicated above, EPA believes that the section 110 elements not connected with nonattainment plan submissions and not linked to the area's nonattainment status are not applicable requirements for purposes of review of the State's redesignation request. EPA has concluded that the section 110 SIP submission approved under the 1-hour ozone standard will be adequate for purposes of attaining and maintaining the 8-hour standard. EPA also believes that since the part D requirements did not become due prior to Indiana's submission of a final, complete redesignation request, they also are not applicable requirements for purposes of redesignation. 3. The Air Quality Improvement in LaPorte County Is Due To Permanent and Enforceable Reductions in Emissions From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Emission Reductions EPA believes that the State of Indiana has demonstrated that the observed air quality improvement in LaPorte County is due to permanent and enforceable emission reductions resulting from implementation of the SIP, Federal measures, and other State-adopted measures. The State has documented the changes in VOC and NO X emissions from anthropogenic (man-made or man-based) sources in LaPorte County between 1996 and 2004 and the changes in NO X emissions from Electric Generating Units

(EGUs)in Northwest Indiana (Jasper, Lake, LaPorte, and Porter Counties) and statewide between 1999 and 2005. LaPorte County was monitored in violation of the 8-hour ozone NAAQS during the period of 1996 through 1999 and monitored in attainment with the NAAQS during the period of 2003 through 2005. The VOC and NO X emissions for LaPorte County for various years during the period of 1996 through 2004 are given in Table 2. Table 2.—VOC and NO X Emissions Trends in LaPorte County for Anthropogenic Sources [Emissions in tons/summer day] Pollutant 1996 1999 2002 2004 VOC 31.0 29.7 24.5 24.0 NO X 83.7 45.4 71.6 44.4 The NO X emissions trends for EGUs in Northwest Indiana and statewide for Table 3. The NO X emissions for LaPorte County and the EGU NO X emissions from Northwest Indiana and statewide have shown significant downward trends from 1996 and 1999, 8-hour standard violation years, to 2004 and 2005, attainment years (and from 2002, a violation year, to 2004, an attainment year). IDEM notes that the NO X emissions in Northwest Indiana and statewide declined significantly as a result of the implementation of the Indiana NO X SIP (in response to EPA's NO X SIP call) and acid rain control regulations, both of which led to permanent, enforceable emission reductions. Table 3.—NO X Emission Trends for Electric Generating Units in Northwest and Indiana Statewide [Emissions in thousands of tons per ozone season (April-September)] Area 1999 2000 2001 2002 2003 2004 2005 Northwest Indiana 31.8 25.0 27.4 22.7 18.0 11.8 10.6 Statewide 149.8 133.9 136.1 114.0 99.3 66.6 55.5 As noted in Table 2, the total VOC emissions in LaPorte County also declined between 1996 and 2004. IDEM notes that this emissions decline has resulted despite an increase in point source VOC emissions in this County due to source growth. VOC emission control measures have been implemented in LaPorte County constraining the impacts of new source growth in this County. The State's VOC rules were adopted in the mid-1990s, and include the following VOC control rules: 326 Indiana Administrative Code

(IAC)8-1-6 (Best Available Control Technology

(BACT)for non-specific sources); 326 IAC 8-2 (surface coating emission limitations); 326 IAC (organic solvent degreasing operations); 326 IAC 8-4 (petroleum sources, including storage, transport, and marketing sources and petroleum refining); 326 IAC 8-5 (miscellaneous sources); and 326 IAC 8-6 (organic solvent emission limitations). These VOC control rules have been implemented statewide. Compliance with these rules has resulted in a decrease in point source VOC emissions in LaPorte County, offsetting some source growth, as well as decreasing VOC emissions in the remainder of Northwest Indiana and statewide. The VOC emission reductions resulting from the implementation of the VOC emission control rules are permanent and enforceable. Since LaPorte County was not previously designated as a 1-hour ozone nonattainment area, no ozone precursor emission controls were specifically targeted at this County. Therefore, statewide and Federal emission control requirements have provided the majority of the VOC and NO X emission reductions in LaPorte County and in the surrounding area. Besides the statewide VOC RACT rules and NO X emission control requirements, other Federal emission reduction requirements have resulted in decreased ozone precursor emissions in the Northwest Indiana area and/or will produce future emission reductions that will support maintenance of the ozone standard in LaPorte County (see a more detailed discussion on maintenance of the 8-hour ozone standard in LaPorte County below). These emission reduction requirements include the following: *Tier 2 Emission Standards for Vehicles and Gasoline Sulfur Standards.* These emission control requirements result in lower emissions from new cars and light duty trucks, including sport utility vehicles. The Federal rules are being phased in between 2004 and 2009. The EPA has estimated that, by the end of the phase-in period, the following vehicle NO X emission reductions will occur nation-wide: passenger cars (light duty vehicles) (77 percent); light duty trucks, minivans, and sports utility vehicles (86 percent; and larger sports utility vehicles, vans, and heavier trucks (69 to 95 percent). VOC emission reductions are also expected to range from 12 to 18 percent, depending on vehicle class, over the same period. Although some of these emission reductions have already occurred by the 2004 attainment year, most of these emission reductions will occur during the maintenance period for LaPorte County. *Heavy-Duty Diesel Engines.* In July 2000, EPA issued a final rule to control the emissions from highway heavy duty diesel engines, including low-sulfur diesel fuel standards. These emission reductions are being phased in between 2004 and 2007. This rule is expected to result in a 40 percent decrease in NO X emissions from heavy duty diesel vehicles. *Non-Road Diesel Rule.* Issued in May 2004, this rule generally applies to new stationary diesel engines used in certain industries, including construction, agriculture, and mining. In addition to affecting engine design, this rule includes requirements for cleaner fuels. It is expected to reduce NO X emissions from these engines by up to 90 percent, and to significantly reduce particulate matter and sulfur emissions from these engines in addition to the NO X emission reduction. This rule did not affect 2004 emissions from these sources, but will limit emissions from new engines beginning in 2008. Indiana commits to maintain all existing emission control measures that affect LaPorte County after this area is redesignated to attainment of the 8-hour ozone NAAQS. All changes in existing rules affecting LaPorte County and new rules subsequently needed to provide for the maintenance of the 8-hour ozone NAAQS in LaPorte County will be submitted to the EPA for approval as SIP revisions. 4. LaPorte County Has a Fully Approvable Ozone Maintenance Plan Pursuant to Section 175A of the CAA In conjunction with its request to redesignate LaPorte County to attainment of the ozone NAAQS, Indiana submitted a SIP revision request to provide for maintenance of the 8-hour ozone NAAQS in LaPorte County for at least 10 years after the redesignation of this area to attainment of the 8-hour ozone NAAQS. a. What Is Required in an Ozone Maintenance Plan? Section 175A of the CAA sets forth the required elements of air quality maintenance plans for areas seeking redesignation from nonattainment to attainment of a NAAQS. Under section 175A, a maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves the redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan which demonstrates maintenance of the standard for 10 years following the initial 10-year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary, to assure prompt correction of any future NAAQS violations. The September 4, 1992 John Calcagni memorandum provides additional guidance on the content of maintenance plans. An ozone maintenance plan should, at minimum, address the following items:

(1)The attainment VOC and NO X emissions inventories;

(2)a maintenance demonstration showing maintenance for the 10 years of the maintenance period;

(3)a commitment to maintain the existing monitoring network;

(4)factors and procedures to be used for verification of continued attainment; and,

(5)a contingency plan to prevent and/or correct a future violation of the NAAQS. b. What Are the Attainment Emission Inventories for LaPorte County? IDEM prepared comprehensive VOC and NO X emission inventories for LaPorte County, including point (significant stationary sources), area (smaller and widely-distributed stationary sources), mobile on-road, and mobile non-road sources for 2004 (the base year/attainment year). To develop the attainment year emission inventories, IDEM used the following approaches and sources of data: *Area Sources* —Area source VOC and NO X emissions were projected from Indiana's 2002 periodic emissions inventory, which was previously submitted to the EPA. *Mobile On-Road Sources* —Mobile source emissions were calculated using the MOBILE6 emission factor model and traffic data (vehicle miles traveled, vehicle speeds, and vehicle type and age distributions) extracted from the region's travel-demand model. IDEM has provided detailed data summaries to document the calculation of mobile on-road VOC and NO X emissions for 2004, as well as for the projection years of 2010 and 2020 (further discussed below). *Point Source Emissions* —2004 point source emissions were compiled using IDEM's 2004 annual emissions statement database and the 2005 EPA Air Markets acid rain emissions inventory database. *Mobile Non-Road Emissions* —Non-road mobile source emissions were estimated by the EPA and documented in the 2002 National Emissions Inventory (NEI). IDEM used these emissions estimates along with growth factors to grow the non-road mobile source emissions to 2004. To address concerns about the accuracy of some of the emissions for various source categories in EPA's non-road emissions model, the Lake Michigan Air Directors Consortium (LADCO) contracted with several companies to review the base data used by the EPA and to make recommendations for corrections to the model. Emissions were estimated for commercial marine vessels and railroads. Recreational motorboat population and spatial surrogates (used to assign emissions to each county) were updated. The populations for the construction equipment category were reviewed and updated based on surveys completed in the Midwest, and the temporal allocation for agricultural sources was also updated. Based on these and other updates, the EPA provided a revised non-road estimation model, which was used for the 2004 projected non-road mobile source emissions. The 2004 attainment year VOC and NO X emissions for LaPorte County are summarized along with the 2010 and 2020 projected emissions for this County in Tables 4 and 5 below. They confirm that the State has acceptably derived and documented the attainment year VOC and NO X emissions for LaPorte County. c. Demonstration of Maintenance As part of the May 30, 2006 redesignation request submittal, IDEM included a requested revision to the SIP to incorporate a 10-year ozone maintenance plan as required under section 175A of the CAA. The maintenance plan contains a maintenance demonstration. This demonstration shows maintenance of the 8-hour ozone NAAQS by documenting current and projected VOC and NO X emissions and showing that future emissions of VOC and NO X remain at or below the attainment year emission levels. 4 Note that a maintenance demonstration need not be based on modeling. See *Wall* v. *EPA,* 265 F.3d 426 (6th Cir. 2001), *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001) and 68 FR 25430-25432 (May 12, 2003). 4 The attainment year can be any of the three consecutive years in which the area has clean (below violation level) air quality data (2003, 2004, or 2005 for LaPorte County). Table 4 specifies the VOC emissions in LaPorte County for 2004, 2010, and 2020. IDEM chose 2020 as a projection year to meet the 10-year maintenance projection requirement, allowing several years for the State to complete its adoption of the ozone redesignation request and ozone maintenance plan and for the EPA to approve the redesignation request and maintenance plan. IDEM also chose 2010 as an interim year to demonstrate that VOC and NO X emissions will remain below the attainment levels throughout the 10-year maintenance period. Table 5, similar to Table 4, specifies the NO X emissions in LaPorte County for 2004, 2010, and 2020. Together, Tables 4 and 5 demonstrate that LaPorte County should remain in attainment of the 8-hour ozone NAAQS between 2004 and 2020, for more than 10 years after EPA is expected to approve the redesignation of LaPorte County to attainment of the 8-hour ozone NAAQS. Table 4.—Attainment Year

(2004)and Projected VOC Emissions in LaPorte County [Tons per summer day] Source sector Year 2004 2010 2020 Point 4.36 3.61 3.53 Area 7.17 7.51 8.14 On-Road Mobile 7.36 4.75 3.09 Off-Road Mobile 5.13 3.93 3.23 Total 24.02 19.80 17.99 Table 5.—Attainment Year and Projected NO X Emissions in LaPorte County [Tons per summer day] Source sector Year 2004 2010 2020 Point 4.80 4.15 3.63 Area 1.13 1.20 1.26 On-Road Mobile 28.52 17.15 5.91 Off-road Mobile 9.96 7.57 6.41 Total 44.41 30.07 17.21 IDEM also notes that the State's EGU NO X emission control rules stemming from EPA's NO X SIP call, implemented beginning in 2004, and CAIR will further lower NO X emissions in upwind areas, resulting in decreased ozone and ozone precursor transport into LaPorte County (the State did not project the emission decreases resulting from CAIR and did not document future NO X emissions in upwind Counties). This will also support maintenance of the ozone standard in LaPorte County. The emission projections for LaPorte County coupled with the expected impacts of the State's EGU NO X rules and CAIR lead to the conclusion that LaPorte County should maintain the 8-hour ozone standard throughout the 10-year maintenance period. The decrease in local VOC and local and regional NO X emissions indicate that peak ozone levels in LaPorte County may actually further decline during the 10-year ozone maintenance period. IDEM has documented some of the procedures used to project emissions. On-road mobile sources were projected using the MOBILE6 emission factor model and projected traffic data obtained from the Northwest Indiana Regional Planning Commission (NIRPC), who maintains a travel demand forecast model that is capable of projecting changes in total daily Vehicle Miles Traveled (VMT). Emissions for the other major source sectors were determined using projected source activity/growth data provided by LADCO, as well as major source emissions data obtained periodically for all major sources statewide. IDEM's data demonstrate that emissions projections for LaPorte County are consistent with the planning analyses being conducted to attain the 8-hour ozone and fine particle (PM2.5) standards throughout Indiana and throughout the Lake Michigan area. Based on the comparison of the projected emissions and the attainment year emissions, we conclude that IDEM has successfully demonstrated that the 8-hour ozone standard should be maintained in LaPorte County. We believe that this is especially likely given the expected impacts of the NO X SIP call and CAIR. As noted by IDEM, this conclusion is further supported by the fact that other states in the eastern portion of the United States are expected to further reduce regional NO X emissions through implementation of their own NO X emission control rules for EGUs and other NO X sources and through implementation of CAIR, reducing ozone and NO X transport into LaPorte County. d. Monitoring Network IDEM commits to continue operating and maintaining an approved ozone monitoring network in LaPorte County in accordance with 40 CFR part 58 through the 10-year maintenance period. This will allow the confirmation of the maintenance of the 8-hour ozone standard in this area and the triggering of contingency measures if needed. e. Verification of Continued Attainment Continued attainment of the 8-hour ozone NAAQS in LaPorte County depends on the State's efforts toward tracking applicable indicators during the maintenance period. The State's plan for verifying continued attainment of the 8-hour ozone standard in LaPorte County consists, in part, of a plan to continue ambient ozone monitoring in accordance with the requirements of 40 CFR part 58. In addition, IDEM will periodically revise and review the VOC and NO X emissions inventories for LaPorte County to assure that emissions growth is not threatening the continued attainment of the 8-hour ozone standard in this area. Revised emission inventories for this area will be prepared for 2005, 2008, and 2011 as necessary to comply with the emission inventory reporting requirements established in the CAA. The revised emissions will be compared with the 2004 attainment emissions and the 2020 projected maintenance year emissions to assure continued maintenance of the ozone standard. f. Contingency Plan The contingency plan provisions of the CAA are designed to result in prompt correction or prevention of violations of the NAAQS that might occur after redesignation of an area to attainment of the NAAQS. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the State will promptly correct a violation of the NAAQS that might occur after redesignation. The maintenance plan must identify the contingency measures to be considered for possible adoption, a schedule and procedure for adoption and implementation of the selected contingency measures, and a time limit for action by the State. The State should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the State will implement all measures with respect to control of the pollutant(s) that were controlled in the SIP before the redesignation of the area to attainment. See section 175A(d) of the CAA. As required by section 175A of the CAA, Indiana has adopted a contingency plan to address a possible future ozone air quality problem. The contingency plan has two levels of actions/responses depending on whether a violation of the 8-hour ozone standard is only threatened (Warning Level Response) or has actually occurred (Action Level Response). A Warning Level Response will be prompted whenever an annual (1-year) fourth-high monitored daily peak 8-hour ozone concentration of 89 ppb (or greater) occurs at any monitor in LaPorte County, or a 2-year averaged annual fourth-high daily peak 8-hour ozone concentration of 85 ppb or greater occurs at any monitor in LaPorte County. A Warning Level Response will consist of a study to determine whether the monitored ozone level indicates a trend toward higher ozone levels or whether emissions are increasing, threatening a future violation of the ozone NAAQS. The study will evaluate whether the trend, if any, is likely to continue, and, if so, emission control measures necessary to reverse the trend will be adopted, taking into consideration the ease and timing of implementation, as well as economic and social considerations. Implementation of necessary controls will take place as expeditiously as possible, but in no event later than 12 months from the conclusion of the most recent ozone season. If new emission controls are needed to reverse the adverse ozone trend, the procedures for emission control selection under the Action Level Response will be followed. An Action Level Response will be triggered when a violation of the 8-hour ozone standard is monitored at any of the monitors in LaPorte County (when a 3-year average annual fourth-high monitored daily peak 8-hour ozone concentration of 85 ppb or higher is recorded at any monitor in LaPorte County). In this situation, IDEM will determine the additional emission control measures needed to assure future attainment of the 8-hour ozone NAAQS. IDEM will focus on emission control measures that can be implemented within 18 months from the close of the ozone season in which the ozone standard violation is monitored. Adoption of any additional emission control measures prompted by either of the two response levels will be subject to the necessary administrative and legal processes dictated by State law. This process will include publication of public notices, providing the opportunity for a public hearing, and other measures required by Indiana law for rulemaking by State environmental boards. If a new emission control measure is already promulgated and scheduled for implementation at the Federal or State level, and that emission control measure is determined to be sufficient to address the air quality problem or adverse trend, additional local emission control measures may be determined to be unnecessary. IDEM will submit to the EPA an analysis to demonstrate that the proposed emission control measures or existing emission control measures are adequate to provide for future attainment of the 8-hour ozone NAAQS in LaPorte County. Contingency measures contained in the maintenance plan are those emission controls or other measures that the State may choose to adopt and implement to correct existing or possible air quality problems in LaPorte County. These include, but are not limited to, the following: i. Lower Reid vapor pressure gasoline requirements; ii. Broader geographic applicability of existing emission control measures; iii. Tightened RACT requirements on existing sources covered by EPA Control Technique Guidelines

(CTGs)issued in response to the 1999 CAA amendments; iv. Application of RACT to smaller existing sources; v. Vehicle Inspection and Maintenance (I/M); vi. One or more Transportation Control Measure

(TCM)sufficient to achieve at least a 0.5 percent reduction in actual area-wide VOC emissions, to be selected from the following: A. Trip reduction programs, including, but not limited to, employer-based transportation management plans, area-wide rideshare programs, work schedule programs, and telecommuting; B. Transit improvement; C. Traffic flow improvements; and, D. Other new or innovative transportation measures not yet in widespread use that affect State and local governments as deemed appropriate; vii. Alternative fuel and diesel retrofit programs for fleet vehicle operations; viii. Controls on consumer products consistent with those adopted elsewhere in the United States; ix. VOC or NO X emission offsets for new or modified major sources; x. VOC or NO X emission offsets for new or modified minor sources; xi. Increased ratio of emission offset required for new sources; and, xii. VOC or NO X emission controls on new minor sources (with VOC or NO X emissions less than 100 tons per year). g. Provisions for a Future Update of the Ozone Maintenance Plan As required by section 175A(b) of the CAA, the State commits to submit to the EPA an update of the ozone maintenance plan eight years after redesignation of LaPorte County to attainment of the 8-hour ozone NAAQS. The updated maintenance plan will provide for maintenance of the 8-hour ozone standard in LaPorte County for an additional 10 years beyond the period covered by the initial ozone maintenance plan. V. Has Indiana Adopted Acceptable Motor Vehicle Emissions Budgets for the End of the 10-Year Maintenance Plan Which Can Be Used To Support Conformity Determinations? A. How Are the Motor Vehicle Emission Budgets Developed and What Are the Motor Vehicle Emission Budgets for LaPorte County? Under the CAA, states are required to submit, at various times, SIP revisions and ozone maintenance plans for applicable areas (for ozone nonattainment areas and for areas seeking redesignations to attainment of the ozone standard or revising existing ozone maintenance plans). These emission control SIP revisions (e.g., reasonable further progress and attainment demonstration SIP revisions), including ozone maintenance plans, must create MVEBs based on on-road mobile source emissions allocated to highway and transit vehicle use that, together with emissions from other sources in the area, will provide for attainment or maintenance of the ozone NAAQS. Under 40 CFR part 93, MVEBs for an area seeking a redesignation to attainment of the NAAQS are established for the last year of the maintenance plan. The MVEBs serve as ceilings on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993 transportation conformity rule (58 FR 62188). The preamble also describes how to establish the MVEBs in the SIP and how to revise the MVEBs if needed. Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the SIP that addresses emissions from cars and trucks. Conformity to the SIP means that transportation activities will not cause new air quality standard violations, or delay timely attainment of the NAAQS. If a transportation plan does not conform, most new transportation projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA's policy, criteria, and procedures for demonstrating and assuring conformity of transportation activities to a SIP. When reviewing SIP revisions containing MVEBs, including attainment strategies, rate-of-progress plans, and maintenance plans, EPA must affirmatively find that the MVEBs are “adequate” for use in determining transportation conformity. Once EPA affirmatively finds the submitted MVEBs to be adequate for transportation conformity purposes, the MVEBs are used by state and Federal agencies in determining whether proposed transportation projects conform to the SIPs as required by section 176(c) of the CAA. EPA's substantive criteria for determining the adequacy of MVEBs are specified in 40 CFR 93.118(e)(4). EPA's process for determining adequacy of MVEBs consists of three basic steps:

(1)Providing public notification of a SIP submission;

(2)providing the public the opportunity to comment on the MVEBs during a public comment period; and,

(3)making a finding of adequacy. The process of determining the adequacy of submitted SIP MVEBs was initially outlined in EPA's May 14, 1999 guidance, “Conformity Guidance on Implementation of March 2, 1999, Conformity Court Decision.” This guidance was finalized in the Transportation Conformity Rule Amendments for the “New 8-Hour Ozone and PM2.5 National Ambient Air Quality Standards and Miscellaneous Revisions for Existing Areas: Transportation Conformity Rule Amendments—Response to Court Decision and Additional Rule Change” published on July 1, 2004 (69 FR 40004). EPA follows this guidance and rulemaking in making its adequacy determinations. The Transportation Conformity Rule, in 40 CFR 93.118(f), provides for MVEB adequacy findings through two mechanisms. First, section 93.118(f)(1) provides for posting a notice to the EPA conformity Web site at: *http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm* and providing a 30-day public comment period. Second, a mechanism is described in 40 CFR 93.118(f)(2) which provides that EPA can review the adequacy of an implementation plan MVEB simultaneously with its review of the implementation plan itself. The LaPorte County 10-year maintenance plan contains VOC and NO X MVEBs for 2020. EPA has reviewed the submittal and the proposed VOC and NO X MVEBs for LaPorte County and finds that the MVEBs meet the adequacy criteria in the Transportation Conformity Rule. Any and all comments on the approvability of the MVEBs should be submitted during the comment period stated in the DATES section of this notice. EPA, through this rulemaking, is proposing to approve the MVEBs for use to determine transportation conformity in LaPorte County because EPA has determined that the budgets are consistent with the control measures in the SIP and that LaPorte County can maintain attainment of the 8-hour ozone NAAQS for the relevant required 10-year period with mobile source emissions at the levels of the MVEBs. IDEM has determined the 2020 MVEBs for LaPorte County to be 3.40 tons per day for VOC and 6.50 tons per day for NO X . It should be noted that these MVEBs exceed the on-road mobile source VOC and NO X emissions projected by IDEM for 2020, as summarized in Tables 4 and 5 above (“On-Road Mobile” source sector). Through discussions with all organizations involved in transportation planning for LaPorte County, IDEM decided to include safety margins of 0.31 tons per day for VOC and 0.59 tons per day for NO X in the MVEBs to provide for mobile source growth not anticipated in the projected 2020 emissions. Indiana has demonstrated that LaPorte County can maintain the 8-hour ozone NAAQS with mobile source emissions of 3.40 tons per day of VOC and 6.50 tons per day of NO X in 2020 since total source emissions with the increased mobile source emissions will remain under the attainment year levels. B. What Is a Safety Margin? A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan. As noted in Tables 4 and 5, LaPorte County emissions are projected to have safety margins of 7.03 tons per day for VOC and 37.20 tons per day for NO X in 2020, the difference between the 2004, attainment year, and 2020 VOC and NO X emissions for all sources in LaPorte County. The MVEBs requested by IDEM contain mobile source safety margins (selected by the State) significantly smaller than the safety margins reflected in the total emissions for LaPorte County. The State is not requesting allocation of the entire available safety margins actually reflected in the demonstration of maintenance (in Tables 4 and 5). Therefore, even though the State is requesting MVEBs that exceed the on-road mobile source emissions for 2020 contained in the demonstration of maintenance, the increase in on-road mobile source emissions that can be considered for transportation conformity purposes is well within the safety margins of the ozone maintenance demonstration. C. Are the MVEBs Approvable? The VOC and NO X MVEBs for LaPorte County are approvable because they maintain the total emissions for LaPorte County at or below the attainment year emission inventory levels, as required by the transportation conformity regulations. VI. What Is the Effect of EPA's Proposed Action? Approval of the redesignation request would change the official designation of LaPorte County for the 8-hour ozone NAAQS, found at 40 CFR part 81, from nonattainment to attainment. It would also incorporate into the Indiana SIP a plan for maintaining the ozone NAAQS through 2020. The maintenance plan includes contingency measures to remedy possible future violations of the 8-hour ozone NAAQS, and establishes MVEBs of 3.40 tons per day for VOC and 6.50 tons per day for NO X . VII. Statutory and Executive Order Reviews Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. Paperwork Reduction Act This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Regulatory Flexibility Act This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Unfunded Mandates Reform Act Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 13132: Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTAA do not apply. List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds. 40 CFR Part 81 Air pollution control, Environmental protection, National parks, Wilderness areas. Dated: April 6, 2007. Walter W. Kovalick, Acting Regional Administrator, Region 5. [FR Doc. E7-7348 Filed 4-17-07; 8:45 am] BILLING CODE 6560-50-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R05-OAR-2006-1022; FRL-8301-7] Redesignation of the Ohio Portion of the Youngstown Area to Attainment of the 8-Hour Ozone Standard AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: On February 15, 2007, the Ohio Environmental Protection Agency (Ohio EPA), submitted a request for a redesignation of its portion of the Youngstown area to attainment of the 8-hour ozone National Ambient Air Quality Standard (NAAQS), and a request for EPA approval of an ozone maintenance plan for Mahoning, Trumbull, and Columbiana Counties, Ohio. The State public hearing on the submittal was held on January 9, 2007. EPA is proposing to determine that the Youngstown area has attained the 8-hour ozone NAAQS. EPA believes that the State's ozone maintenance plan for the area is acceptable and, in conjunction with projected emissions in the Pennsylvania portion of the area (Mercer County), will provide for maintenance of the 8-hour ozone NAAQS in these Counties through 2018. EPA is proposing approval of the State's request to redesignate Mahoning, Trumbull, and Columbiana Counties, Ohio to attainment of the 8-hour ozone NAAQS. EPA is also proposing to approve the Volatile Organic Compounds

(VOC)and Nitrogen Oxides (NO X ) Motor Vehicle Emission Budgets (MVEBs) for Mahoning, Trumbull, and Columbiana Counties, Ohio for purposes of transportation conformity determinations. DATES: Comments must be received on or before May 18, 2007. ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R05-OAR-2006-1022, by one of the following methods: • * www.regulations.gov:* Follow the on-line instructions for submitting comments. • *E-mail: mooney.john@epa.gov.* • *Fax:*

(312)886-5824. • *Mail:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois 60604. • *Hand Delivery:* John M. Mooney, Chief, Criteria Pollutant Section, Air Programs Branch (AR-18J), U.S. Environmental Protection Agency, 77 West Jackson Boulevard, Chicago, Illinois. Such deliveries are only accepted during the Regional Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information. The Regional Office's official hours of operation are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding Federal holidays. *Instructions:* Direct your comments to Docket ID No. EPA-R05-OAR-2006-1022. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at *www.regulations.gov* , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information

(CBI)or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI, or otherwise protected, through *www.regulations.gov* or e-mail. The *www.regulations.gov* Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through *www.regulations.gov* your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters and any form of encryption, and should be free of any defects or viruses. For additional instructions on submitting comments, go to section I of the SUPPLEMENTARY INFORMATION section of this document. *Docket:* All documents in the docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hardcopy. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hardcopy at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Patricia Morris, Environmental Scientist, at

(312)353-8656, before visiting the Region 5 office. FOR FURTHER INFORMATION CONTACT: Patricia Morris, Environmental Scientist, Criteria Pollutant Section, Air Programs Branch (AR-18), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604,

(312)353-8656, *morris.patricia@epa.gov* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” Is used, we mean the EPA. This supplementary information section is arranged as follows: I. What Should I Consider as I Prepare My Comments for EPA? II. What Action Is EPA Proposing To Take? III. What Is the Background for These Actions? IV. What Are the Criteria for Redesignation to Attainment? V. What Is EPA's Analysis of the State's Request and What Is the Basis for EPA's Proposed Actions? VI. Has Ohio Adopted Acceptable Motor Vehicle Emissions Budgets for the Ozone Maintenance Plan Which Can Be Used To Support Conformity Determinations? VII. What Action Is EPA Taking? VIII. Statutory and Executive Order Reviews I. What Should I Consider as I Prepare My Comments for EPA? When submitting comments, remember to: 1. Identify the rulemaking by docket number and other identifying information (subject heading, **Federal Register** date and page number). 2. Follow directions—The EPA may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations

(CFR)part or section number. 3. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes. 4. Describe any assumptions and provide any technical information and/or data that you used. 5. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. 6. Provide specific examples to illustrate your concerns, and suggest alternatives. 7. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. 8. Make sure to submit your comments by the comment period deadline identified. II. What Action Is EPA Proposing To Take? We are proposing to take several related actions for Mahoning, Trumbull, and Columbiana Counties, Ohio. First, we are proposing to determine that the interstate Youngstown area (officially, the Youngstown-Warren-Sharon PA-OH area as defined for 8-hour ozone designation purposes) has attained the 8-hour ozone NAAQS. Second, we are proposing to approve Ohio's ozone maintenance plan for Mahoning, Trumbull, and Columbiana Counties as a requested revision to the Ohio State Implementation Plan (SIP). The maintenance plan is designed to keep the area in attainment of the 8-hour ozone NAAQS for the next 11 years, through 2018. Thirdly, we are proposing to find that the Ohio portion of this area (Mahoning, Trumbull, and Columbiana Counties), has met the requirements for redesignation to attainment of the 8-hour ozone NAAQS under section 107(d)(3)(E) of the Clean Air Act (CAA). Fourth, as supported by, and consistent with, the ozone maintenance plan, we are also proposing to approve the 2009 and 2018 VOC and NO X MVEBs for Mahoning, Trumbull, and Columbiana Counties for transportation conformity determination purposes. These proposed actions pertain to the designations of Mahoning, Trumbull, and Columbiana Counties, Ohio for the 8-hour ozone NAAQS and to the emission controls in these counties related to the attainment and maintenance of the 8-hour ozone NAAQS. If you own or operate a VOC or NO X emissions source in these counties or live in these counties, this proposed rule may impact or apply to you. It may also impact you if you are involved in transportation planning or implementation of emission controls in this area. It may also impact you if you breathe air which has passed through the Youngstown area, or if you are concerned with clean air, human health or the environment. III. What Is the Background for These Actions? A. General Background In EPA's April 30, 2004, rulemaking establishing designations and classifications for the 8-hour ozone standard, EPA designated the Youngstown area as subpart 1 nonattainment for the 8-hour ozone standard. EPA based the designation on ozone data collected during the 2001-2003 period. On December 4, 2006, the State of Ohio submitted a request for redesignation of Mahoning, Trumbull, and Columbiana Counties to attainment of the 8-hour ozone NAAQS based on ozone data collected in these counties and Mercer County, Pennsylvania during the 2004-2006 period. On January 9, 2007, the State of Ohio held a public hearing on the ozone redesignation request and ozone maintenance plan. Based on a February 15, 2007, submittal from the State, all information contained in the State's December 4, 2006, ozone redesignation request submittal was unchanged through the State's public review process. B. What Is the Impact of the December 22, 2006, United States Court of Appeals Decision Regarding EPA's Phase 1 Implementation Rule? 1. Summary of Court Decision On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit vacated EPA's Phase 1 Implementation Rule for the 8-hour Ozone Standard (69 FR 23951, April 30, 2004). *South Coast Air Quality Management Dist.* v. *EPA* , 472 F. 3d 882 (D.C. Cir. 2006). The Court held that certain provisions of EPA's Phase I Rule were inconsistent with the requirements of the Clean Air Act. The Court rejected EPA's reasons for implementing the 8-hour standard in nonattainment areas under Subpart 1 in lieu of subpart 2 of Title I, part D of the Act. The Court also held that EPA improperly failed to retain four measures required for 1-hour nonattainment areas under the anti-backsliding provisions of the regulations:

(1)Nonattainment area New Source Review

(NSR)requirements based on an area's 1-hour nonattainment classification;

(2)Section 185 penalty fees for 1-hour severe or extreme nonattainment areas;

(3)measures to be implemented pursuant to section 172(c)(9) or 182(c)(9) of the Act, on the contingency of an area not making reasonable further progress toward attainment of the 1-hour NAAQS, or for failure to attain that NAAQS; and

(4)certain conformity requirements for certain types of Federal actions. The Court upheld EPA's authority to revoke the 1-hour standard provided there were adequate anti-backsliding provisions. This section sets forth EPA's views on the potential effect of the Court's ruling on this redesignation action. For the reasons set forth below, EPA does not believe that the Court's ruling alters any requirements relevant to this redesignation action so as to preclude redesignation, and does not prevent EPA from finalizing this redesignation. EPA believes that the Court's decision, as it currently stands or as it may be modified based upon any petition for rehearing that has been filed, imposes no impediment to moving forward with redesignation of this area to attainment, because in either circumstance redesignation is appropriate under the relevant redesignation provisions of the Act and longstanding policies regarding redesignation requests. 2. Requirements Under the 8-Hour Standard With respect to the 8-hour standard, the court's ruling rejected EPA's reasons for classifying areas under Subpart 1 for the 8-hour standard, and remanded that matter to the Agency. Consequently, it is possible that this area could, during a remand to EPA, be reclassified under Subpart 2. although any future decision by EPA to classify this area under subpart 2 might trigger additional future requirements for the area, EPA believes that this does not mean that redesignation cannot now go forward. This belief is based upon

(1)EPA's longstanding policy of evaluating redesignation requirements in accordance with the requirements due at the time the request was submitted; and

(2)consideration of the inequity of applying retroactively any requirements that might be applied in the future. First, at the time the redesignation request was submitted, the Youngstown area was classified under Subpart 1 and was obligated to meet the Subpart 1 requirements. Under EPA's longstanding interpretation of section 107(d)(3)(E) of the Clean Air Act, to qualify for redesignation, states requesting redesignation to attainment must meet only the relevant SIP requirements that came due prior to the submittal of a complete redesignation request. September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division). See also Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor); *Sierra Club* v. *EPA* , 375 F. 3d 537 (7th Cir. 2004), which upheld this interpretation. See, *e.g.,* also 68 FR 25418, 25424, 25427 (May 12, 2003) (redesignation of St. Louis). Moreover, it would be inequitable to retroactively apply any new SIP requirements that were not applicable at the time the request was submitted. The DC Circuit has recognized the inequity in such retroactive rulemaking. See *Sierra Club* v. *Whitman* , 285 F. 3d 63 (D.C. Cir. 2002), in which the DC Circuit upheld a District Court's ruling refusing to make retroactive an EPA determination of nonattainment that was past the statutory due date. Such a determination would have resulted in the imposition of additional requirements on the area. The Court stated: “Although EPA failed to make the nonattainment determination within the statutory time frame, Sierra Club's proposed solution only makes the situation worse. Retroactive relief would likely impose large costs on the States, which would face fines and suits for not implementing air pollution prevention plans in 1997, even though they were not on notice at the time.” *Id.* at 68. Similarly, here it would be unfair to penalize the area by applying to it for purposes of redesignation additional SIP requirements under Subpart 2 that were not in effect at the time it submitted its redesignation request. 3. Requirements Under the 1-Hour Standard With respect to the 1-hour standard requirements, Mahoning and Trumbull Counties and also, separately, Columbiana County were designated as an Attainment area subject to a Clean Air Act section 175A maintenance plan under the 1-hour standard. The Court's ruling does not impact redesignation requests for these types of areas. First, there are no conformity requirements that are relevant for redesignation requests, including the requirement to submit a transportation conformity SIP. 1 Under longstanding EPA policy, EPA believes that it is reasonable to interpret the conformity SIP requirement as not applying for 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. 40 CFR 51.390. See *Wall* v. *EPA* , 265 F. 3d 426 (6th Cir. 2001), upholding this interpretation. See also 60 FR 62748 (Dec. 7, 1995) (Tampa, FL redesignation). EPA approved Ohio's general and transportation conformity SIPs on March 11, 1996 (61 FR 9646) and May 30, 2000 (65 FR 34395), respectively. 1 Clean Air Act section 176(c)(4)(E) currently requires States to submit revisions to their SIPs to reflect certain Federal criteria and procedures for determining transportation conformity. Transportation conformity SIPs are different from the motor vehicle emissions budgets that are established in control strategy SIPs and maintenance plans. Second, with respect to the three other anti-backsliding provisions for the 1-hour standard that the Court found were not properly retained, Mahoning and Trumbull Counties and separately Columbiana County are attainment areas subject to maintenance plans for the 1-hour standard, and the NSR, contingency measure (pursuant to section 172(c)(9) or 182(c)(9)) and fee provision requirements no longer apply to an area that has been redesignated to attainment of the 1-hour standard. Thus the decision in *South Coast* should not alter requirements that would preclude EPA from finalizing the redesignation of this area. IV. What Are the Criteria for Redesignation to Attainment? Section 107(d)(3)(E) of the CAA allows for redesignation from nonattainment to attainment provided that:

(1)The Administrator determines that the area has attained the applicable NAAQS based on current air quality data;

(2)the Administrator has fully approved an applicable state implementation plan for the area under section 110(k) of the CAA;

(4)the Administrator has fully approved a maintenance plan for the area meeting the requirements of section 175A of the CAA; and

(1)Determine that the Youngstown area has attained the 8-hour ozone standard;

(2)approve the ozone maintenance plan for the Ohio portion of this area (Columbiana, Mahoning and Trumbull counties) and the VOC and NO X MVEBs supported by this ozone maintenance plan; and, 3) approve the redesignation of the Ohio portion to attainment of the 8-hour ozone NAAQS. The basis for our proposed determination and approval is as follows: 1. The Youngstown Area Has Attained the 8-Hour Ozone NAAQS For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations of the NAAQS, as determined in accordance with 40 CFR 50.10 and 40 CFR part 50 appendix I based on the most recent three complete, consecutive calendar years of quality-assured air quality monitoring data at all monitoring sites in the area. For each monitor in the area and nearby, the average of the annual fourth-high daily maximum 8-hour average ozone concentrations measured and recorded over a three-year period must not exceed the ozone standard. Based on the ozone data rounding convention described in 40 CFR part 50 appendix I, the 8-hour standard is attained if the area's ozone design value 2 is 0.085 ppm (85 ppb) or lower. The data must be collected and quality-assured in accordance with 40 CFR part 50, and must be recorded in EPA's Air Quality System (AQS). The ozone monitors generally should have remained at the same locations for the duration of the monitoring period required to demonstrate attainment (for three years or more 3 ). 2 The worst-case monitoring site-specific ozone design value in the area. 3 EPA generally opposes terminating or relocating monitors at sites that are currently recording violations of the ozone standard. In addition, EPA encourages states to continue monitoring at most sites over the long term to confirm maintenance of the ozone standard and to support the determination of robust ozone concentration trends. As part of the December 4, 2006, ozone redesignation request, the Ohio EPA submitted summarized ozone monitoring data indicating the top four daily maximum 8-hour ozone concentrations for each monitoring site in the Youngstown area during the 2004-2006 period. When the redesignation request was submitted, the complete 2006 monitoring data had not been quality assured and the data table submitted by Ohio EPA shows less than 75% data for the Ohio monitoring sites. However, now the Ohio EPA has completed all quality assurance procedures and the AQS system has over 75% data completeness for the Ohio sites. The following table summarizes the worst-case ozone concentrations that are part of the quality-assured ozone data collected and recorded in these Counties. These data have been entered into EPA's AQS. The annual fourth-high 8-hour daily maximum ozone concentrations, along with their three-year averages are summarized in Table 1. Table 1.—Fourth-High 8-Hour Ozone Concentrations [In parts per billion (ppb)] County Monitoring site 2004 2005 2006 Average Mahoning OH 345 Oakhill 74 83 76 77 Trumbull OH 6346 Kinsman-Bloomfield Rd 78 83 74 78 Trumbull OH 842 Youngstown-Kingsville Rd 80 87 82 83 Mercer PA Pa518 (New Castle Road) & Pa418 76 87 79 79 These data show that the site-specific ozone design values (average fourth-high daily maximum 8-hour ozone concentrations over the period of 2004-2006) for all monitoring sites in the Youngstown area are below the 85 ppb average ozone standard violation cut-off. These data support the conclusion that the Youngstown area ozone monitors did not record a violation of the 8-hour ozone standard during the 2004-2006 period, and monitored attainment of the standard during this period. As discussed below with respect to the ozone maintenance plan, the State commits to continue ozone monitoring in these Counties. We believe that the data submitted by the State to the AQS provide an adequate demonstration that the Youngstown area has attained the 8-hour ozone NAAQS. Therefore, we propose to find that the Youngstown area, including Mahoning, Trumbull, and Columbiana Counties, Ohio, has attained the 8-hour ozone NAAQS. 2. Mahoning, Trumbull, and Columbiana Counties Have Met All Applicable Requirements Under Section 110 and Part D of the CAA and These Areas Have a Fully Approved SIP Under Section 110(k) of the CAA We have determined that the State of Ohio has met all currently applicable SIP requirements for Mahoning, Trumbull, and Columbiana Counties under section 110 of the CAA (general SIP requirements). We have determined that the Ohio SIP meets currently applicable SIP requirements under subpart 1 part D of title I of the CAA (requirements specific to basic ozone nonattainment areas). See section 107(d)(3)(E)(v) of the CAA. In addition, we have determined that the Ohio SIP is fully approved with respect to all applicable requirements. See section 107(d)(3)(E)(ii) of the CAA. In making these determinations, we noted the CAA requirements that are applicable to the areas, and determined that the applicable portions of the SIP meeting these requirements are fully approved under section 110(k) of the CAA. We note that SIPs must be fully approved only with respect to currently applicable requirements of the CAA, those CAA requirements applicable to Mahoning, Trumbull, and Columbiana Counties at the time the State submits the final, complete ozone redesignation request for these areas. a. Mahoning, Trumbull, and Columbiana Counties Have Met All Applicable Requirements Under Section 110 and Part D of the CAA The September 4, 1992, Calcagni memorandum (see “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992) describes EPA's interpretation of section 107(d)(3)(E) of the CAA. To qualify for redesignation of an area to attainment under this interpretation, the state and the area must meet the relevant CAA requirements that come due prior to the State's submittal of a complete redesignation request for the area. See also the September 17, 1993, Michael Shapiro memorandum and 66 FR 12459, 12465-12466 (March 7, 1995) (redesignation of Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS). Applicable requirements of the CAA that come due subsequent to the state's submittal of a complete redesignation request remain applicable until a redesignation of the area to attainment of the standard is approved, but are not required as prerequisites to redesignation. See Section 175A(c) of the CAA. *Sierra Club* v. *EPA* , 375 F.3d 537 (7th Cir. 2004). See also 68 FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis/East St. Louis area to attainment of the 1-hour ozone NAAQS). *General SIP requirements:* Section 110(a) of title I of the CAA contains the general requirements for a SIP, which include: Enforceable emission limitations and other control measures, means, or techniques; provisions for the establishment and operation of appropriate devices necessary to collect data on ambient air quality; and programs to enforce the emission limitations. General SIP elements and requirements are delineated in section 110(a)(2) of title I, part A of the CAA. These requirements and SIP elements include, but are not limited to, the following:

(a)Submittal of a SIP that has been adopted by the State after reasonable public notice and a hearing;

(b)provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality;

(c)implementation of a source permit program;

(d)provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)) and part D requirements (New Source Review (NSR)) for new sources or major source modifications;

(e)criteria for stationary source emission control measures, monitoring, and reporting;

(f)provisions for air quality modeling; and,

(SIP)Actions Submitted in Response to Clean Air Act

(CAA)Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; and “State Implementation Plan

(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide

(CO)National Ambient Air Quality Standards (NAAQS) on or After November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator, September 17, 1993. Section 110(a)(2)(D) of the CAA requires SIPs to contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state. To implement this provision, EPA required states to establish programs to address transport of air pollutants (NO X SIP call and Clean Air Interstate Rule (CAIR)). EPA has also found, generally, that states have not submitted SIPs under section 110(a)(1) of the CAA to meet the interstate transport requirements of section 110(a)(2)(D)(i) of the CAA (70 FR 21147, April 25, 2005). However, the section 110(a)(2)(D) requirements for a state are not linked with a particular nonattainment area's classification. EPA believes that the requirements linked with a particular nonattainment area's 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. We believe that these requirements should not be construed to be applicable requirements for purposes of redesignation. Further, we believe that the other section 110 elements described above that are not connected with nonattainment plan submissions and that are not linked with an area's attainment status are also not applicable requirements for purposes of redesignation. A state remains subject to these requirements after an area is redesignated to attainment. We conclude that only the section 110 and part D requirements which are linked with an area's designation and classification are the relevant measures for evaluating this aspect of a redesignation request. This approach is consistent with EPA's existing policy on applicability of conformity and oxygenated fuels requirements for redesignation purposes, as well as with section 184 ozone transport requirements. *See:* Reading, Pennsylvania proposed and final rulemakings (61 FR 53174-53176, October 10, 1996 and 62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida final rulemaking (60 FR 62748, December 7, 1995). See also the discussion on this issue in the Cincinnati, Ohio ozone redesignation (65 FR 37890, June 19, 2000), and the Pittsburgh, Pennsylvania ozone redesignation (66 FR 50399, October 19, 2001). We believe that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. Nonetheless, we also note that EPA has previously approved provisions in the Ohio SIP addressing section 110 elements under the 1-hour ozone standard. We have analyzed the Ohio SIP as codified in 40 CFR part 52, subpart KK and have determined that it is consistent with the requirements of section 110(a)(2) of the CAA. The SIP, which has been adopted after reasonable public notice and hearing, contains enforceable emission limitations; requires monitoring, compiling, and analyzing ambient air quality data; requires preconstruction review of new major stationary sources and major modifications of existing sources; provisions for adequate funding, staff, and associated resources necessary to implement its requirements; requires stationary source emissions monitoring and reporting; and, otherwise satisfies the applicable requirements of section 110(a)(2). *Part D SIP requirements:* EPA has determined that the Ohio SIP meets applicable ozone SIP requirements under part D of the CAA. Under part D, for ozone, an area's classification (subpart 1, marginal, moderate, serious, severe, and extreme) indicates the requirements to which it will be subject. Subpart 1 of part D, found in sections 172-176 of the CAA, sets forth the basic nonattainment area plan requirements applicable to all nonattainment areas. Subpart 2 of part D, found in section 182 of the CAA, establishes additional specific requirements for ozone nonattainment areas depending on the area's nonattainment classification. *Part D, subpart 1 requirements:* For purposes of evaluating this redesignation request, the applicable requirements are those contained in Subpart I of Part D, in particular in sections 172(c)(1)-(9) and 176. A thorough discussion of the requirements of section 172 can be found in the General Preamble for Implementation of Title I (57 FR 13498). See also 68 FR 4852-4853, in an ozone redesignation notice of proposed rulemaking for the St. Louis area, for a discussion of section 172 requirements. No requirements for the 8-hour ozone standard under part D of the CAA will come due for Mahoning, Trumbull, and Columbiana Counties prior to June 15, 2007. For example, the requirement for an ozone attainment demonstration, as contained in section 172(c)(1), is not yet applicable, nor are the requirements for Reasonably Available Control Measures

(RACM)and Reasonably Available Control Technology

(RACT)(section 172(c)(1)), Reasonable Further Progress

(RFP)(section 172(c)(2)), and attainment plan and RFP contingency measures (section 172(c)(9)). All of these required SIP elements are required for submittal after June 15, 2007, and Ohio has submitted the public hearing transcript and response to comment to complete the ozone redesignation request and maintenance plan for Mahoning, Trumbull, and Columbiana Counties prior to the due date. Therefore, none of the part D requirements are considered to be applicable to Mahoning, Trumbull, and Columbiana Counties for purposes of redesignation for ozone. *Section 176 conformity requirements:* Section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded activities, including highway projects, conform to the air planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded, or approved under Title 23 U.S.C. and the Federal Transit Act (transportation conformity) as well as to all other Federally-supported or funded projects (general conformity). State conformity SIP revisions must be consistent with Federal conformity regulations that the CAA required the EPA to promulgate. In addition to the fact that part D requirements will not become due prior to Ohio's submittal of the complete ozone redesignation request for Mahoning, Trumbull, and Columbiana Counties, and, therefore, are not believed by the EPA to be applicable for redesignation purposes in this case, EPA similarly believes that it is reasonable to interpret the conformity requirements as not applying for purposes of evaluating the ozone redesignation request under section 107(d) of the CAA. EPA believes that it is reasonable to interpret the conformity requirements as not applying for purposes of evaluating the ozone redesignation request under section 107(d) of the CAA because state conformity rules are still required after redesignation of areas to attainment of a NAAQS and Federal conformity rules apply where state rules have not been approved. See *Wall* v. *EPA,* 265 F.3d 426 (6th Cir. 2001). See also 60 FR 62748 (December 7, 1995) (Tampa, Florida). EPA approved Ohio's general and transportation conformity SIPs on March 11, 1996 (61 FR 9646) and May 30, 2000 (65 FR 34395), respectively. We conclude that Mahoning, Trumbull, and Columbiana Counties have satisfied all applicable requirements under section 110 and part D of the CAA to the extent that these requirements apply for purposes of reviewing the State's ozone redesignation request. b. Mahoning, Trumbull, and Columbiana Counties have a fully approved applicable SIP under section 110(k) of the CAA EPA has fully approved the Ohio SIP for Mahoning, Trumbull, and Columbiana Counties under section 110(k) of the CAA for all applicable requirements. EPA may rely on prior SIP approvals in approving a redesignation request, plus any additional measures it may approve in conjunction with a redesignation action. See the September 4, 1992 John Calcagni memorandum, page 3, *Southwestern Pennsylvania Growth Alliance* v. *Browner,* 144 F.3d 984, 989-990 (6th Cir. 1998), *Wall* v. *EPA,* 265 F.3d 426 (6th Cir. 2001) 68 FR 25426 (May 12, 2003). Since the passage of the CAA of 1970, Ohio has adopted and submitted, and EPA has fully approved, provisions addressing the various required SIP elements applicable to Mahoning, Trumbull, and Columbiana Counties for purposes of redesignation. No Mahoning, Trumbull, or Columbiana County SIP provisions are currently disapproved, conditionally approved, or partially approved. As indicated above, EPA believes that the section 110 elements not connected with nonattainment plan submissions and not linked to the area's nonattainment status are not applicable requirements for purposes of review of the State's redesignation request. EPA also believes that since the part D requirements did not become due prior to Ohio's submittal of the final, complete redesignation request, they also are not applicable requirements for purposes of redesignation. 3. The Air Quality Improvements in Mahoning, Trumbull, and Columbiana Counties Are Due To Permanent and Enforceable Reductions in Emissions We believe that the State of Ohio has adequately demonstrated that the observed air quality improvements in Mahoning, Trumbull, and Columbiana Counties are due to permanent and enforceable emission reductions resulting from the implementation of the SIP, Federal measures, and other State-adopted measures. In making this demonstration, the State has documented the changes in VOC and NO X emissions from all anthropogenic (man-made or man-based) sources in Mahoning, Trumbull, and Columbiana Counties between 2002, an ozone standard violation year, and 2004, one of the years in which Mahoning, Trumbull, and Columbiana Counties recorded attainment of the 8-hour ozone standard. The Ohio EPA has also discussed permanent and enforceable emission reductions have occurred elsewhere in the State and in other upwind areas that have contributed to the air quality improvement in Mahoning, Trumbull, and Columbiana Counties. Table 2 summarizes the VOC and NO X emissions totals from the anthropogenic sources in 2002 and 2004 for all counties (Mahoning, Trumbull, Columbiana, and Mercer) in the nonattainment area as summarized in the State's ozone redesignation submittal. The Youngstown 8-hour ozone nonattainment area, which is a bi-state area, must show emission reductions across the entire area. The table shows all the counties in the area including the Ohio and Pennsylvania counties. Table 2.—Total Anthropogenic VOC and NO X Emissions for 2002 and 2004 in Mahoning, Trumbull, and Columbiana Counties, Ohio and Mercer County, Pennsylvania [Tons per summer day] 2002 2004 Mahoning, Trumbull, and Columbiana Counties Volatile Organic Compounds Emissions Total All Source Categories 70.51 64.60 Mahoning, Trumbull, and Columbiana Counties Nitrogen Oxides Emissions Total All Source Categories 95.53 82.50 Mercer County Volatile Organic Compounds Emissions Total All Source Categories 20.80 19.05 Mercer County Nitrogen Oxides Emissions Total All Source Categories 25.44 22.43 Combined Total for Youngstown/Warren/Sharon OH-PA VOCs 91.31 83.65 Combined Total for Youngstown/Warren/Sharon OH-PA NO X 120.97 104.93 From the above table, it can be seen that the Youngstown area experienced decreases in VOC and NO X anthropogenic emissions between 2002 and 2004. The State of Ohio concludes that the differences in the 2002 and 2004 emissions are due primarily to the implementation of permanent and enforceable emission control requirements. The State asserts that these emission reductions along with those occurring elsewhere in the State and in upwind areas have led to observed improvements in ozone air quality in the Youngstown area. Also, the State notes a significant decline in regional NO X emissions between 2002 and 2004 as the result of the implementation of State NO X emission control rules for combustion sources, primarily Electric Generating Units (EGUs), in compliance with EPA's NO X SIP call and acid rain control requirements under title IV of the CAA. Besides the NO X emission reductions occurring within the State itself, the implementation of statewide NO X emission control rules occurred in many States east of the Mississippi River. These emission reductions are assumed to have contributed significantly to the air quality improvements in the Youngstown area through the reduction of transported ozone and ozone precursors. The Youngstown area has several EGUs which show reductions between 2002 and 2004. The EGU NO X emissions are reduced from 23.36 tons per year in 2002 to 17.93 tons per day in 2004. These reductions are documented in Table 23 of the Ohio submittal. In addition, the area has benefited from the NO X emission reductions occurring throughout the State of Ohio and in the surrounding areas. These regional NO X emission reductions are considered to be permanent and enforceable. Besides the implementation of the regional NO X emission controls, the State of Ohio notes that, in the mid-1990's, the State of Ohio promulgated statewide rules requiring Reasonably Available Control Techniques

(RACT)for significant new sources of VOC emissions. The RACT rules have been implemented for significant new VOC sources locating in Ohio subsequent to the State's adoption of the rules. The Ohio rules are found in OAC Chapter 3745-21. Additional implemented, or soon to be implemented, emission control rules include several Federal rules:

(1)Tier II emission standards for vehicles and gasoline sulfur content standards (promulgated by EPA in February 2000 and currently being implemented);

(2)heavy-duty diesel engine emission control rules (promulgated by the EPA in July 2000 and currently being implemented); and,

(3)clean air non-road diesel rule (promulgated by the EPA in May 2004 and currently being phased in through 2009). All of these rules have contributed to reducing VOC and NO X emissions throughout the State of Ohio (and in other States surrounding Ohio) and will contribute to further, future emission reductions in Ohio. The State of Ohio commits to maintain the existing VOC and NO X emission controls after Mahoning, Trumbull, and Columbiana Counties are redesignated to attainment of the 8-hour ozone NAAQS, and these reductions are required to be maintained under the Ohio SIP. 4. Mahoning, Trumbull, and Columbiana Counties Have a Fully Approvable Ozone Maintenance Plan Pursuant to Section 175A of the CAA In conjunction with its request to redesignate Mahoning, Trumbull, and Columbiana Counties to attainment of the 8-hour ozone NAAQS, Ohio submitted SIP revision requests to provide for maintenance of the 8-hour ozone NAAQS in the Youngstown area through 2018, exceeding the 10 year minimum maintenance period required by the CAA. a. What Is Required in an Ozone Maintenance Plan? Section 175A of the CAA sets forth the required elements of air quality maintenance plans for areas seeking redesignation from nonattainment to attainment of a NAAQS. Under section 175A, a maintenance plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after the Administrator approves the redesignation to attainment. Eight years after the redesignation, the State must submit a revised maintenance plan which demonstrates that maintenance of the standard will continue for 10 years following the initial 10 year maintenance period. To address the possibility of future NAAQS violations, the maintenance plan must contain such contingency measures, with a schedule for implementation, as EPA deems necessary, to assure prompt correction of any future NAAQS violations. The September 4, 1992, John Calcagni memorandum provides additional guidance on the content of maintenance plans. An ozone maintenance plan should, at minimum, address the following items:

(1)The attainment VOC and NO X emissions inventories;

(2)a maintenance demonstration showing maintenance for the first 10 years of the maintenance period;

(3)a commitment to maintain the existing monitoring network;

(4)factors and procedures to be used for verification of continued attainment; and,

(5)a contingency plan to prevent and/or correct a future violation of the NAAQS. The Ohio maintenance plan is designed to work in conjunction with Pennsylvania's maintenance plan to keep the Youngstown area in attainment for the 8-hour ozone NAAQS. b. What Are the Attainment Emission Inventories for Mahoning, Trumbull, and Columbiana Counties? Ohio EPA prepared VOC and NO X emission inventories for Mahoning, Trumbull, and Columbiana Counties, including point (significant stationary sources), other (area sources, smaller and widely-distributed stationary sources), Marine, Aircraft, and Railroad

(MAR)mobile sources, non-road (off-road) mobile sources, and on-road mobile sources for 2002 (the base nonattainment year), 2004 (the attainment year), 2009, and 2018 (the projected maintenance year). To develop the 2004, 2009, and 2018 emission inventories, the Ohio EPA projected the 2002 emissions applying various source category-specific growth factors and emission control factors. The State has documented how the 2002 base year emissions were derived and how these emissions were projected to derive the 2004, 2009, and 2018 emissions. The following summarizes the procedures and sources of data used by the Ohio EPA to derive the 2002 emissions. i. Point Sources The primary source of point source information was facility-specific emissions and source activity data collected annually by the State for sources covered by Title V 4 source permits. This information includes emissions, process rates, source operating schedules, emissions control data, and other relevant source information. The State also used emissions data provided by EPA's EGU emission inventory, maintained to support the NO X SIP call emissions trading program and the acid rain control/trading program. The sources included in the 2002 point source emissions inventory were identified using Ohio's Title V STARS database system. The emissions included in this database are facility-reported actual emissions. 4 Title V of the CAA requires source-specific emission permits detailing all applicable emission control requirements and emission limits, as specified in the SIP, for each source facility covered by the State's Title V source permit program and requirements. Ohio EPA defines point source emissions as those which occur at an identifiable stationary stack or vent. Point source emissions not emitted from discrete stacks or vents are defined to be fugitive emissions. Facility-specific fugitive emissions are also reported by each Title V facility and stored in the Title V STARS database. Point source emissions included in the 2002 base year emissions inventory were provided to the Lake Michigan Air Directors Consortium (LADCO). LADCO applied temporal and spatial profiles to calculate July weekday emissions rates. The Mahoning, Trumbull, and Columbiana Counties' emissions derived from this set of emissions data were split into EGU emissions and non-EGU emissions for inclusion in the base year emissions inventory used to support the Mahoning, Trumbull, and Columbiana Counties ozone redesignation request. ii. Area (Other) Sources Area sources are those sources which are generally small, numerous, and have not been inventoried as specific point, mobile, or biogenic sources. The emissions for these sources are generally calculated using various surrogates, such as population, estimates of employees in various occupational groups, etc., and grouped by general source types. The area source emissions are typically defined at the county level. Ohio EPA has either used published Emission Inventory Improvement Program

(EIIP)emissions estimation methodologies or other methodologies typically used by other states to estimate the area source emissions. Area source categories include: Various stationary combustion sources (not including the EGU sources included in the point source portion of the emissions inventory); agricultural pesticides; architectural surface coatings; auto body refinishing; consumer and commercial solvent usage; solvent cleaning; fuel marketing; graphic arts; hospital sterilizers; industrial surface coating (minus point source emissions for this source category); municipal solid waste disposal; portable fuel containers; privately owned treatment works; traffic markings; human cremation; industrial fuel combustion; residential fuel combustion; structural fires; and miscellaneous source categories. The State has documented the data sources used for each of these source categories. iii. Non-Road Mobile Sources The non-road mobile source emissions inventory was generated regionally by running EPA's National Mobile Inventory Model (NMIM). LADCO applied spatial and temporal allocations to derive emissions for a July weekday. The basic non-road algorithm for calculating emissions in NMIM uses base year equipment populations, average load factors, available engine powers, activity hours and emission factors to calculate the emissions. iv. Marine, Aircraft, and Rail

(MAR)Sources Due to the significance of the emissions from these mobile source types, the Ohio EPA has decided to treat these source categories separately from other non-road mobile sources. The MAR emissions include emissions from commercial marine, aircraft, and locomotive sources. Commercial marine vessels consist of several different categories of vessel types. For each vessel type, there are unique engine types, emission rates, and activity data sets. The emissions inventory documentation lists the vessel types and activity data sources by vessel type, along with special distribution of each vessel type. Locomotive activity was divided into various rail categories: Class I operations; Class II/III operations; passenger trains; commuter lines; and yard operations. Since Class I operations are expected to be the most significant rail operations in the three Counties, operators of Class I operations were queried for activity and emissions-related information for each railroad line. This approach provided for more specific estimates of emissions by railroad line. Class II/III emissions were based on national fuel consumption and per employee fuel consumption estimates. The number of railroad employees in each county was used to allocate the fuel consumption to each county and, therefore, the emissions to each county. EPA provided the aircraft emission estimates based on Federal Aviation Administration

(FAA)published Landing and Take-Off

(LTO)rates by engine type for each airline and major airport in the State of Ohio. The LTO-engine information was combined with engine type-specific emission factors developed by the International Civil Aviation Organization (ICAO), and, through use of a FAA Emissions and Dispersion Modeling System (EDMS), emissions were calculated and assigned to each county in the State, including Mahoning, Trumbull, and Columbiana Counties. The MAR data were processed by LADCO to calculate July 2002 daily emissions of VOC and NO X . v. On-Road Mobile Sources The inventories of on-road mobile source emissions for Mahoning, Trumbull, and Columbiana Counties were developed by the Ohio EPA in conjunction with the Ohio Department of Transportation (Ohio DOT), the Eastgate Regional Council of Governments (Eastgate), LADCO, and EPA. Eastgate utilized a regional travel demand forecast model to simulate traffic and to forecast traffic flow for given growth expectations in the metropolitan areas of Mahoning and Trumbull counties. In rural areas that are not covered by the network model, such as Columbiana County, the Highway Performance Monitoring System

(HPMS)data was used to estimate vehicle mile of travel (VMT). The travel demand forecasting model was used to predict the total daily vehicle miles traveled and speeds on roadways. MOBILE6.2 is used to calculate emissions per mile based on the VMT and speed projections from the travel demand forecast model. The most current vehicle age distribution data, temperature data and fuel properties data provided by Ohio EPA was used in the analysis. vi. Projected Emissions for the Attainment Year Ambient ozone air quality data showed that Mahoning, Trumbull, and Columbiana Counties met the 8-hour ozone NAAQS in the 2004-2006 period. Ohio EPA used emission estimates for 2004 as the “attainment year” emissions for the area, to represent the base period emissions for the demonstrations of maintenance. See the discussion of the demonstrations of maintenance below. The 2004 emissions were estimated by growing the emissions from the 2002 base year emission levels. Ohio EPA used point source growth data provided by individual point source facilities along with other source category-specific growth estimates and emission control estimates to estimate stationary source VOC and NO X emissions for Mahoning, Trumbull, and Columbiana Counties. LADCO provided growth and source control projection data to project VOC and NO X area source emissions. The Metropolitan Planning Organization for the area, Eastgate, provided projections of vehicle travel estimates (Vehicle Miles Traveled (VMT)) and emissions, with MOBILE 6.2 providing the expected changes in vehicle emission factors. The estimated 2004 emissions have been compared to the 2002 base year emissions to demonstrate the basis for the improved air quality in Mahoning, Trumbull and Columbiana Counties. See Table 2 above for a summary of the 2004 VOC and NO X emissions and for a comparison of these emissions with the 2002 emissions. c. Demonstration of Maintenance As part of the December 4, 2006, redesignation request submittal, Ohio EPA included requested revisions to the Ohio SIP to incorporate the ozone maintenance plan for Mahoning, Trumbull, and Columbiana Counties as required under section 175A of the CAA. Included in the maintenance plan is the ozone attainment maintenance demonstration. This demonstration shows maintenance of the 8-hour ozone NAAQS through 2018 by documenting attainment year and future projected VOC and NO X emissions and showing that future emissions of VOC and NO X will remain at or below the attainment year emission levels. Note that an ozone maintenance demonstration need not to be based on ozone modeling. See *Wall* v. *EPA* , 265 F.3d 426 (6th Cir. 2001), Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 66 FR 53094, 53099-53100 (October 19, 2001) and 68 FR 25430-25432 (May 12, 2003). The Ohio EPA projected the VOC and NO X emissions in Mahoning, Trumbull, and Columbiana Counties to the years of 2009 and 2018 to demonstrate maintenance of the 8-hour ozone NAAQS for at least 10 years after the expected redesignation dates for these areas. For all counties, Ohio EPA used source growth estimates provided by LADCO along with mobile source growth estimates provided by the Eastgate travel demand model and MOBILE 6.2 to project the Mahoning, Trumbull, and Columbiana Counties VOC and NO X emissions. Table 3 summarizes the VOC and NO X emissions projected to occur in Mahoning, Trumbull, and Columbiana Counties Ohio during the demonstrated maintenance period. The State of Ohio chose 2018 as a maintenance year to meet the 10-year maintenance requirement of the CAA, allowing several years for EPA to complete the redesignation rulemaking process. The State also chose 2009 as an interim year to demonstrate that VOC and NO X emissions will remain below the attainment year levels throughout the 10-year maintenance period. Table 4 summarizes the VOC and NO X emissions projected to occur in Mercer County, Pennsylvania over the same maintenance period. Table 3.—Projected VOC and NO X Emissions In Mahoning, Trumbull, and Columbiana Counties, Ohio [Tons/day] Source sector 2004 Attainment 2009 Interim 2018 Maintenance Safety margin VOC Emissions: Point (includes EGU) 6.02 6.39 7.75 Area (Other) 24.10 22.86 23.03 Non-Road Mobile 7.95 6.24 4.90 On-Road Mobile 26.21 17.03 9.01 Marine-Air-Railroad 0.32 0.29 0.29 Total VOC Emissions 64.60 52.81 44.98 *19.62 NO X Emissions: Point 20.25 8.32 12.69 Area (Other) 2.49 2.79 2.96 Non-Road Mobile 10.26 8.23 4.21 On-Road Mobile 43.50 29.32 11.56 Marine-Air-Railroad 6.00 4.30 4.01 Total NO X Emissions 82.50 52.96 35.43 *47.07 * Difference between 2004 attainment year emissions and 2018 maintenance year emissions. Table 4.—Projected VOC and NO X Emissions In Mercer County, Pennsylvania [Tons/day] Source sector 2004 Attainment 2009 Interim 2018 Maintenance Safety margin VOC Emissions: Point 1.73 2.73 3.66 Area (Other) 7.61 7.36 7.83 Non-Road (includes MAR) 3.78 3.41 2.59 On-Road Mobile 5.93 4.23 2.63 Total VOC Emissions 19.05 17.73 16.71 *2.34 NO X Emissions: Point 2.93 4.30 5.52 Area (Other) 0.85 0.88 0.89 Non-Road (includes MAR) 2.82 2.35 1.44 On-Road Mobile 15.83 11.22 4.89 Total NO X Emissions 22.43 18.75 12.74 *9.69 * Difference between 2004 attainment year emissions and 2018 maintenance year emissions. The Ohio EPA also notes that the State's EGU NO X emissions control rules stemming from EPA's NO X SIP call and Clean Air Interstate Rule (CAIR), to be implemented after 2006, will further lower NO X emissions throughout the State and upwind of Mahoning, Trumbull, and Columbiana Counties. This will result in decreased ozone and ozone precursor transport into Mahoning, Trumbull, and Columbiana Counties, and will support maintenance of the 8-hour ozone standard. The emissions projections for Mahoning, Trumbull, and Columbiana Counties, Ohio and Mercer County, Pennsylvania along with the expected impacts of the State's EGU NO X control rules lead to the conclusion that the Youngstown area should maintain the 8-hour ozone NAAQS throughout the required 10-year maintenance period and through 2018. The projected decreases in local VOC and local and regional NO X emissions indicate that peak ozone levels in the Youngstown area may actually further decline during the maintenance period. Based on the comparison of the projected emissions and the attainment year emissions, we conclude that Ohio EPA has successfully demonstrated that the 8-hour ozone standard should be maintained in Mahoning, Trumbull, and Columbiana Counties. We believe that this is especially likely given the expected impacts of the NO X SIP call and CAIR. This conclusion is further supported by the fact that other states in the eastern portion of the United States are also expected to reduce regional NO X emissions through implementation of their NO X emission control rules for EGUs and other NO X sources through the implementation of the NO X SIP call and CAIR. d. Contingency Plan Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to assure that the State will promptly correct a violation of the NAAQS that might occur after redesignation. The maintenance plan must identify the contingency measures to be considered for possible adoption, a schedule and procedure for adoption and implementation of the selected contingency measures, and a time limit for action by the State. The State should also identify specific indicators to be used to determine when the contingency measures need to be adopted and implemented. The maintenance plan must include a requirement that the State will continue to implement all measures with respect to control of the pollutant(s) that were included in the SIP before the redesignation of the area to attainment. See section 175A(d) of the CAA. As required by section 175A of the CAA, Ohio has adopted contingency plans to help address possible future ozone air quality problems in the Youngstown area. The contingency plans have two levels of actions/responses depending on whether a violation of the 8-hour ozone standard is only threatened (Warning Level Response), has actually occurred or appears to be very imminent (Action Level Response). A Warning Level Response will be triggered whenever an annual (1-year) fourth-high monitored 8-hour ozone concentration of 88 ppb occurs in a single ozone season in the Youngstown area. A Warning Level Response will consist of a study to determine whether the high ozone value indicates a trend toward higher ozone concentrations or whether emissions appear to be increasing. The study will evaluate whether the trend, if any, is likely to continue and, if so, the control measures necessary to reverse the trend will be selected for evaluation and possible adoption. Implementation of necessary controls in response to a Warning Level Response triggering will take place as expeditiously as possible, but in no event later than 12 months from the conclusion of the most recent ozone season (September 30). An Action Level Response will be triggered whenever a two year averaged annual fourth-high monitored 8-hour ozone concentration of 85 ppb occurs within the Youngstown area, or whenever a violation of the 8-hour ozone standard is actually monitored in either the Ohio or Pennsylvania portions of the Youngstown area. Ohio and Pennsylvania have agreed to work together to address any possible future violation of the 8-hour ozone standard. In the event that an Action Level Response is triggered and is not due to an exceptional event, malfunction, or noncompliance with a source permit condition or rule requirement, Ohio EPA will determine the additional emission control measures needed to assure future attainment of the ozone NAAQS. Emission control measures that can be implemented in a short time will be selected in order to be in place within 18 months from the close of the ozone season that prompted the Action Level Response. Any new emission control measure that is selected for implementation will be given a public review. If a new emission control measure is already promulgated and scheduled to be implemented at the Federal or State level and if that emission control measure is determined to be sufficient to address the ozone air quality problem, additional local measures may be unnecessary. Ohio EPA will submit to the EPA an analysis to assess whether the proposed emission control measures are adequate to reverse the increase in peak ozone concentrations and to maintain the 8-hour ozone standard in the maintenance area. The selection of emission control measures will be based on cost-effectiveness, emission reduction potential, economic and social considerations, or other factors that the Ohio EPA deems to be appropriate. Selected emission control measures will be subjected to public review and the State will seek public input prior to selecting new emission control measures. Finally, emission control measures that can be implemented in a short period of time will be selected in order to be in place within 18 months from the close of the ozone season in which the Action Level Response is triggered. The State's redesignation request indicates that the contingency measures to be considered will be selected from a comprehensive list of measures deemed appropriate and effective at the time the selection is made (after the need for contingency measures is triggered). The selection of candidate contingency measures will be based on cost-effectiveness, emission reduction potential, economic and social considerations, and other factors that the Ohio EPA deems to be appropriate. Ohio will solicit input from interested and affected persons in the subject maintenance area prior to final selection of contingency measures. Although it is not possible at this time to specify which contingency measures would actually be implemented, the Ohio EPA has listed possible contingency measures. These include: • Low Reid vapor pressure gasoline; • Tightening of RACT on existing sources covered by EPA Control Technique Guidelines issued in response to the 1990 Clean Air Act amendments; • Application of RACT to smaller existing sources; • One or more transportation control measures sufficient to achieve at least half of a percent reduction in actual area-wide VOC emissions. The transportation control measures to be considered include: • Trip reduction programs, including: Employer-based transportation management plans; area-wide rideshare programs; work schedule changes; and telecommuting; • Traffic flow and transit improvements; and • Other new or innovative transportation measures not yet in widespread use that affected state and local governments deem appropriate; • Alternative fuel and diesel retrofit programs for fleet vehicle operations; • Controls on consumer products consistent with those adopted elsewhere in the United States; • Requirements for VOC or NO X emission offsets for new and modified major sources; • Requirements for VOC or NO X emission offsets for new and modified minor sources; • Increase of the ratio of emission offsets required for new sources; and • Requirements for VOC or NO X emission controls on new minor sources (with emissions of less than 100 tons per year). No contingency measures will be adopted and implemented without providing the opportunity for full public participation and comment in the contingency measure selection process. A list of VOC and NO X source types potentially subject to future emission controls include: *NO* X *RACT* : • EGUs • Asphalt batching plants • Industrial/commercial and institutional boilers • Process heaters • Internal combustion engines • Combustion turbines • Other sources with NO X emissions exceeding 100 tons per year *VOC RACT:* • Consumer products • Architectural and industrial maintenance coatings • Stage I gasoline dispensing facilities • Automobile refinishing shops • Cold cleaner degreasers • Portable fuel containers • Synthetic organic compound manufacturing • Wood manufacturing • Industrial wastewater • Aerospace industry • Ship building • Bakeries • Plastic parts coating • Volatile organic liquid storage • Industrial solvent cleaning • Offset lithography • Industrial surface coating • Other VOC sources with emissions exceeding 50 tons per year. e. Provisions for a Future Update of the Ozone Maintenance Plan As required by section 175A(b) of the CAA, the State commits to review the maintenance plans 8 years after redesignation of Mahoning, Trumbull, and Columbiana Counties to attainment of the 8-hour ozone NAAQS as required by section 175A of the CAA. We consider Ohio's ozone maintenance demonstration and contingency plan to be acceptable. VI. Has Ohio Adopted Acceptable Motor Vehicle Emissions Budgets for the Ozone Maintenance Plan Which Can Be Used To Support Conformity Determinations? A. How Are the Motor Vehicle Emission Budgets Developed and What Are the Motor Vehicle Emission Budgets for Mahoning, Trumbull, and Columbiana Counties? Under the CAA, states are required to submit, at various times, SIP revisions and ozone maintenance plans for applicable areas (for ozone nonattainment areas and for areas seeking redesignations to attainment of the ozone standard or revising existing ozone maintenance plans). These emission control SIP revisions (e.g. reasonable further progress and attainment demonstration SIP revisions), including ozone maintenance plans, must create MVEBs based on on-road mobile source emissions that are allocated to highway and transit vehicle use that, together with emissions from other sources in the area, will provide for attainment or maintenance of the ozone NAAQS. Under 40 CFR part 93, MVEBs for an area seeking a redesignation to attainment of the NAAQS are established for the last year of the maintenance plan (for the maintenance demonstration year). The State has the option to establish additional MVEBs for additional years as deemed appropriate by the interagency consultation process. The MVEBs serve as ceilings on mobile source emissions from an area's planned transportation system and are used to test planned transportation system changes or projects to assure compliance with the emission limits assumed in the SIP. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish the MVEBs in the SIP and how to revise the MVEBs if needed. Under section 176(c) of the CAA, new transportation projects, such as the construction of new highways, must “conform” to (i.e., be consistent with) the part of the SIP that addresses emissions from cars, trucks, and other on-roadway vehicles. Conformity to the SIP means that transportation activities will not cause new air quality standard violations, or delay timely attainment of the NAAQS. If a transportation plan does not conform, most new transportation projects that would expand the capacity of the roadways cannot go forward. Regulations at 40 CFR Part 93 set forth EPA's policy, criteria, and procedures for demonstrating and assuring conformity of transportation activities to a SIP. The Transportation Conformity Rule, in 40 CFR 93.118(f), provides for adequacy findings through two mechanisms. First, 40 CFR 93.118(f)(1) provides for posting a notice to the EPA conformity Web site at: *http://www.epa.gov/otaq/stateresources/transconf/adequacy.htm* and providing a 30-day public comment period. Second, a mechanism is described in 40 CFR 93.118(f)(2) which provides that EPA can review the adequacy of an implementation plan submission simultaneously with its review of the implementation plan itself. For this area, EPA is using the first process and posted the notice on our adequacy Web site on December 11, 2006. The comment period closed January 11, 2007, without any comments from the public on the adequacy of the MVEBs. Both Ohio and Pennsylvania are establishing separate State budgets in the Ohio and Pennsylvania maintenance plans. When conducting transportation conformity determinations, the Eastgate Regional Council of Governments will use the budgets established for Mahoning, Trumbull, and Columbiana Counties. Mobile source emissions will be constrained by both the Ohio maintenance plan budgets and the budgets established for Mercer County by Pennsylvania. These budgets will assure that mobile source emissions do not increase and that the air quality remains below the 8-hour ozone NAAQS. The Mahoning, Trumbull, and Columbiana Counties ozone maintenance plan contains VOC and NO X MVEBs for the years 2009 and 2018. EPA has reviewed the submittal and has found that the MVEBs for Mahoning, Trumbull, and Columbiana Counties meet the adequacy criteria in the Transportation Conformity Rule. EPA, through this rulemaking, is proposing to approve the MVEBs for Mahoning, Trumbull, and Columbiana Counties because EPA has determined that the budgets are consistent with the control measures and future emissions projected in the SIP and that Mahoning, Trumbull, and Columbiana Counties can maintain attainment of the 8-hour ozone NAAQS for the relevant required 10-year period with mobile source emissions at the levels of the MVEBs. Ohio EPA has determined the 2018 MVEBs for Mahoning, Trumbull, and Columbiana Counties to be 10.36 tons per day for VOC and 13.29 tons per day for NO X and the 2009 MVEBs for Mahoning, Trumbull, and Columbiana Counties to be 19.58 tons per day for VOC and 33.71 tons per day for NO X . These MVEBs exceed the on-road mobile source VOC and NO X emissions projected by the Ohio EPA for 2009 and 2018, but do not exceed the levels necessary for continued maintenance of the NAAQS. Through discussions with all organizations involved in transportation planning for Mahoning, Trumbull, and Columbiana Counties, Ohio EPA decided to include 15 percent safety margins in the MVEBs to provide for mobile source growth not anticipated in the projected 2009 and 2018 emissions. Ohio EPA has demonstrated that Mahoning, Trumbull, and Columbiana Counties can maintain the 8-hour ozone NAAQS with mobile source emissions at the levels of the MVEBs since total source emissions with the increased mobile source emissions will remain under the attainment year levels. These MVEBs will be separate state area budgets for Mahoning, Trumbull, and Columbiana Counties, Ohio. Pennsylvania established MVEBs for Mercer County through the 8-hour ozone maintenance plan that was submitted with Pennsylvania's request for redesignation. Action on the Pennsylvania MVEBs will be taken through separate rulemaking. B. What Is a Safety Margin? A “safety margin” is the difference between the attainment level of emissions (from all sources) and the projected level of emissions (from all sources) in the maintenance plan for a future maintenance year. As noted in Tables 3 and 4 above, Mahoning, Trumbull, and Columbiana Counties are projected to have a VOC safety margin of 22.42 tons per day and a NO X safety margin of 47.07 tons per day in 2018. The addition of a portion of the safety margin to the MVEBs continues to maintain the emissions levels below the attainment level. C. Are the MVEBs Approvable? The 2009 and 2018 VOC and NO X MVEBs for Mahoning, Trumbull, and Columbiana Counties (see Table 5) are approvable because they maintain the total emissions for Mahoning, Trumbull, and Columbiana Counties at or below the attainment year emission inventory levels, as required by the transportation conformity regulations. Table 5.—Motor Vehicle Emission Budgets for Columbiana, Mahoning and Trumbull Counties, Ohio Mahoning, Trumbull, and Columbiana Counties Ohio budgets Year 2009 Year 2018 VOC (tons/day) 19.58 10.36 NO X (tons/day) 33.71 13.29 VII. What Action Is EPA Taking? EPA is proposing to make a determination that the Youngstown area is attainment the 8-hour ozone NAAQS and EPA is proposing to approve Ohio's maintenance plan for assuring that the area will continue to attain this standard. The maintenance plan demonstrates maintenance to the year 2018 and includes contingency measures to remedy possible future violations of the 8-hour ozone NAAQS, and establishes 2009 and 2018 MVEBs for these Counties. EPA is proposing to approve the 2018 MVEBs submitted by Ohio in conjunction with the redesignation request. VIII. Statutory and Executive Order Reviews Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 (58 FR 51735, September 30, 1993), this action is not a “significant regulatory action” and, therefore, is not subject to review by the Office of Management and Budget. Paperwork Reduction Act This proposed rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). Regulatory Flexibility Act This proposed action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this proposed rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Unfunded Mandates Reform Act Because this rule proposes to approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Order 13132: Federalism This action also does not have Federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This action merely proposes to approve a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This proposed rule also does not have tribal implications because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Executive Order 13045: Protection of Children From Environmental Health and Safety Risks This proposed rule also is not subject to Executive Order 13045 “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because it is not economically significant. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use Because it is not a “significant regulatory action” under Executive Order 12866 or a “significant regulatory action,” this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). National Technology Transfer Advancement Act Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), 15 U.S.C. 272, requires Federal agencies to use technical standards that are developed or adopted by voluntary consensus to carry out policy objectives, so long as such standards are not inconsistent with applicable law or otherwise impractical. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Absent a prior existing requirement for the state to use voluntary consensus standards, EPA has no authority to disapprove a SIP submission for failure to use such standards, and it would thus be inconsistent with applicable law for EPA to use voluntary consensus standards in place of a program submission that otherwise satisfies the provisions of the Clean Air Act. Therefore, the requirements of section 12(d) of the NTTA do not apply. List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Intergovernmental relations, Nitrogen dioxide, Ozone, Volatile organic compounds. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Dated: April 6, 2007. Walter W. Kovalick, Acting Regional Administrator, Region 5. [FR Doc. E7-7352 Filed 4-17-07; 8:45 am] BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [DA 07-1448, MB Docket No. 05-228; RM-11255] Radio Broadcasting Services; Kiowa, KS AGENCY: Federal Communications Commission. ACTION: Proposed rule; dismissal. SUMMARY: This document dismisses a pending petition for rulemaking filed by Charles Crawford to allot Channel 233A at Kiowa, Kansas for failure to state a continuing interest in the requested allotment. The document therefore terminates the proceeding. ADDRESSES: Federal Communications Commission, Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Helen McLean, Media Bureau

(202)418-2738. SUPPLEMENTARY INFORMATION: This is a synopsis of the Commission's Report and Order, MB Docket No. 05-228, adopted March 28, 2007, and released March 30, 2007. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC Reference Information Center (Room CY-A257), 445 12th Street, SW., Washington, DC 20554. This document may also be purchased from the Commission's duplicating contractors, Best Copy and Printing, Inc., 445 12th Street, SW., Room CY-B402, Washington, DC 20554, telephone 1-800-378-3160 or *www.BCPIWEB.com* . This document is not subject to the Congressional Review Act. (The Commission, is, therefore, not required to submit a copy of this Report and Order to Government Accountability Office, pursuant to the Congressional Review Act, *see* 5 U.S.C. Section 801(a)(1)(A) because the proposed rule is dismissed). Federal Communications Commission. John A. Karousos, Assistant Chief, Audio Division, Media Bureau. [FR Doc. E7-7289 Filed 4-17-07; 8:45 am] BILLING CODE 6712-01-P FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [MB Docket No. 07-51; FCC 07-32] Exclusive Service Contracts for Provision of Video Services in Multiple Dwelling Units and Other Real Estate Developments AGENCY: Federal Communications Commission. ACTION: Proposed rule. SUMMARY: In this document, the Commission takes steps to encourage greater competition in the market for the delivery of multichannel video programming by soliciting comment on the use of exclusive contracts for the provision of video services to multiple dwelling units (“MDUs”) or other real estate developments. The Commission also seeks comment on whether the use of exclusive contracts in the MDU video provider market unreasonably impedes the achievement of the interrelated federal goals of enhanced multichannel video competition and accelerated broadband deployment and, if so, how the Commission should act to address that problem. DATES: Comments for this proceeding are due on or before June 18, 2007; reply comments are due on or before July 18, 2007. ADDRESSES: You may submit comments, identified by MB Docket No. 07-51, by any of the following methods: • *Federal eRulemaking Portal: http://www.regulations.gov* . Follow the instructions for submitting comments. • *Federal Communications Commission's Web site: http://www.fcc.gov/cgb/ecfs/.* Follow the instructions for submitting comments. • *People with Disabilities:* Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by e-mail: *FCC504@fcc.gov* or phone: 202-418-0530 or TTY: 202-418-0432. For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: For additional information on this proceeding, contact Holly Saurer, *Holly.Saurer@fcc.gov* of the Media Bureau, Policy Division,

(202)418-2120. SUPPLEMENTARY INFORMATION: This is a summary of the Commission's Notice of Proposed Rulemaking (NPRM), FCC 07-32, adopted on March 22, 2007, and released on March 27, 2007. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS ( *http://www.fcc.gov/cgb/ecfs/* ). (Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat.) The complete text may be purchased from the Commission's copy contractor, 445 12th Street, SW., Room CY-B402, Washington, DC 20554. To request this document in accessible formats (computer diskettes, large print, audio recording, and Braille), send an e-mail to *fcc504@fcc.gov* or call the Commission's Consumer and Governmental Affairs Bureau at

(202)418-0530 (voice),

(202)418-0432 (TTY). Initial Paperwork Reduction Act of 1995 Analysis This document does not contain proposed 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). Summary of the NPRM of Proposed Rulemaking I. Introduction In this Notice of Proposed Rulemaking (“NPRM”), we solicit comment on the use of exclusive contracts for the provision of video services to multiple dwelling units (“MDUs”) or other real estate developments. Greater competition in the market for the delivery of multichannel video programming is one of the primary goals of Federal communications policy. Moreover, for many participants in the marketplace, the ability to offer video to consumers and the ability to deploy broadband networks rapidly are linked intrinsically. However, potential competitors seeking to enter the multichannel video programming distributor (“MVPD”) marketplace have alleged that the use of exclusive contracts for the provision of video services to MDUs or other real estate developments serves as a barrier to entry. Accordingly, this *NPRM* is designed to solicit comment on whether the use of exclusive contracts in the MDU video provider market unreasonably impedes the achievement of the interrelated federal goals of enhanced multichannel video competition and accelerated broadband deployment and, if so, how the Commission should act to address that problem. II. Background 1. In 1997, the Commission issued an NPRM regarding the use of exclusive access arrangements in MDUs. The Commission stated that exclusive service contracts between MDU owners and MVPDs could be considered pro-competitive or anti-competitive, depending upon the circumstances involved. Commenters who were effectively prohibited from providing service due to the existence of exclusive contracts argued that those contracts were anti-competitive. Other commenters argued that exclusive contracts were necessary to enhance their ability to recover investment costs. In the corresponding Report and Order, the Commission declined to take any action regarding exclusive agreements, concluding that there was insufficient evidence in the record to determine the extent of use of such exclusive contracts, and whether or not such contracts had significantly impeded access by competitive providers into the MDU market. 2. We note that the Commission is considering MDU access with respect to other services. In the context of commercial telecommunications services, the Commission has prohibited the enforcement of exclusive access arrangements in multiple tenant environments (“MTEs”). In the *Competitive Networks Order* , the Commission concluded that a ban on exclusive contracts for telecommunications service in commercial MTEs would foster competition in that market. Unlike parties in the inside wiring proceeding, no party in the competitive networks proceeding argued in support of exclusive contracts in the commercial setting. Further, in *Competitive Networks FNPRM,* the Commission sought comment on other issues related to the imposition of a nondiscriminatory access requirement, including possibly extending the *Competitive Networks Order* findings to residential MTEs. We intend to issue a public notice seeking to refresh the record in that proceeding. Also, in the *Cox Inside Wiring* proceeding, the Commission is considering issues relating to the scope of competitors' right to access incumbent LECs' inside wire in multiunit premises for purposes of offering competing telephone service. 3. The Commission recently adopted a Report and Order (“ *Franchising Reform Order* ”) relating to Section 621 of the Act. The *Franchising Reform Order* adopted several provisions to remedy unreasonable local government procedures and behavior with respect to the franchising process that result in unreasonable refusals to grant additional competitive franchises. The NPRM in that proceeding asked for comment on the specific rules or guidance that we should adopt to ensure that the local cable franchising process does not unreasonably impede competitive entry. Among other issues, commenters discussed the impediment presented by the use of exclusive contracts for the provision of video services to MDUs and other real estate developments. 4. Specifically, SureWest Communications, which provides bundled offerings of voice, data, and video services, filed an *ex parte* statement asking the Commission to prohibit MVPDs from excuting new, or enforcing existing, exclusive access agreements with MDUs and other real estate developments. SureWest argues that exclusive agreements are used by incumbent providers to undercut the competitive market for video services and states that over 25% of the MDUs that its network passes are locked into exclusive agreements, which effectively bar SureWest from offering its services to residents in those MDUs. Manatee County, Florida submitted comments arguing that exclusive access agreements, if permitted at all, should be of limited duration. Manatee County stated that exclusive long-term contracts harm competition and permit incumbent providers to become complacent, imposing antiquated systems on their subscribers. The County noted that it recently adopted an ordinance which prohibits any of its franchisees from entering into exclusive agreements of more than five years. Verizon filed *ex parte* statements arguing that the Commission should prohibit MVPDs from entering into new, or enforcing existing, exclusive access agreements with owners of MDUs. Verizon stated that it had “repeatedly encountered exclusive access arrangements which have prevented it from providing cable services to significant numbers of residents.” Verizon provided examples of requests to cease and desist the marketing of its FiOS video service offerings (discussing various examples, including a cease and desist letter from Bright House Networks regarding marketing of FiOS in the River Chase apartment complex in Tampa, Florida; a letter from BDR Broadband, LLC regarding the provision of FiOS in apartment complexes in Plano and Carrollton, Texas; negotiations with Ariger Management in Maryland that have an exclusive contract with Comcast; and negotiations with Post Properties in Fairfax County, Virginia that have a perpetual contract with Cox). Verizon stated that some landlords would like to give tenants a greater variety of cable choices, but are unable to do so because of exclusive contracts. Further, Verizon notes that exclusive contracts do not provide video providers any incentives to upgrade equipment or improve services, which adversely impacts consumers. In contrast, the National Multi-Housing Council filed an *ex parte* statement urging the Commission to reject calls for regulation of exclusive access agreements, stating that exclusive contracts give competitive providers assurance that they will be able to recover the capital costs of installing their facilities, thereby increasing the prospects of competition. III. Discussion 5. Potential competitive video providers have alleged that the use of exclusive contracts for MDUs or other real estate developments serves as a barrier to entry, and that these exclusive contracts unreasonably delay competitive entry. As noted in the *621 Order,* the video provider marketplace is currently undergoing a change, with the entrance of traditional phone companies that are primed to offer a “triple play” of voice, high-speed Internet access, and video services over their respective networks. Given the interrelated Federal goals of enhanced cable competition and rapid broadband deployment, we seek comment on a number of issues relating to the prevalence and use and effect of exclusive contracts in today's marketplace. A. Potential Competitors' Current Ability to Obtain Access to MDUs 6. As an initial matter, we request comment on the current environment for MVPDs attempting to obtain access to MDUs or other real estate developments. To what extent do exclusive contracts impede the realization of our policy goals? How often have competitive entrants confronted exclusive access agreements, what are the terms of those agreements, and are those agreements becoming more prevalent? How has the multichannel video marketplace changed since adoption of our *Inside Wiring Report and Order* , and what effect have those changes had for consumers who live in MDUs or other real estate developments? What is the current status of state mandatory access laws and what impact do they have on the issues raised herein? 7. We also ask for additional information on the MVPDs operating pursuant to such exclusive contracts. In the *Inside Wiring Second Report and Order* we stated that exclusive contracts may benefit new entrants by reducing investment risk. Verizon indicates, however, that incumbent providers are soliciting such exclusive contracts when a potential competitor is actively seeking a local franchise to provide service in the MDU's franchise area. We seek comment on whether MVPDs seek exclusive contracts in an effort to frustrate competitive entry. Do incumbent providers use the time during which new entrants are negotiating local franchises in order to obtain exclusive contracts? We also seek comment on whether, in today's market, exclusive contracts benefit new entrants, incumbent providers, or both. We also ask whether the video providers entering into such exclusive contracts would be unable to provide service to these MDUs or other real estate developments absent the protections afforded by exclusive contracts. B. The Commission's Authority to Prohibit the Use of Exclusive Contracts 8. We tentatively conclude that the Commission has authority to regulate exclusive contracts for the provision of video services to MDUs or other real estate developments where we find that such contracts may impede competition and impair deployment of those services. We seek comment on this tentative conclusion, particularly with regard to our authority under, and the scope and applicability of, Section 628(b) of the Communications Act of 1934 and Section 706 of the 1996 Telecommunications Act. We also seek comment on the scope and applicability of Section 623, Section 1, Section 4(i), and Section 303(r) of the Communications Act of 1934 to this issue as well as other provisions that may provide us with authority to regulate exclusive contracts. We note that Section 628(b) states [i]t shall be unlawful for a cable operator, a satellite, cable programming vendor in which a cable operator has an attributable interest, or a satellite broadcast programming vendor to engage in unfair methods of competition or unfair or deceptive acts or practices, the purpose or effect of which is to hinder significantly or to prevent any multichannel video programming distributor from providing satellite cable programming or satellite broadcast programming to subscribers or consumers. We also seek comment on how we should define what constitutes “unfair methods of competition or unfair or deceptive acts or practices” under Section 628(b). We note that this language is similar to that used in the Federal Trade Commission Act. Commenters should address the relevance to our interpretation of Section 628(b) of any interpretation of similar language by the FTC or Federal courts. 9. In addition, Section 706 of the 1996 Telecommunications Act, charges the Commission to “encourage the deployment of * * * advanced telecommunications capability to all Americans.” Given the relationship between a company's ability to offer video programming to customers and its ability to invest in broadband facilities, does Section 706 provide the Commission authority to address competitive concerns relating to exclusive contracts? Moreover, the Commission is empowered by Section 1 of the Act “to execute and enforce the provisions of this Act,” and by Section 4(i) “to perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this Act, as may be necessary in the execution of its functions.” We also note that, with respect to MDU “home run” wiring, the Commission concluded that it had authority under Title VI (particularly Section 623) in conjunction with Sections 4(i) and 303(r) to regulate the disposition of such wiring upon termination of service. “Home run” wiring in an MDU is the wiring that runs from the demarcation point to the point at which the MVPD's wiring becomes devoted to an individual subscriber or individual loop. We invite commenters to address whether these provisions, or others, can or should serve as a basis for regulating exclusive contracts for the provision of video services to MDUs or other real estate developments. In addition, we ask parties to address the scope of the Commission's authority. Does the Commission have authority to regulate only exclusive contracts entered into after the effective date of the regulations or could it declare existing exclusive contracts void or voidable? Does the Commission have authority to regulate exclusive contracts entered into by MVPDs other than cable operators? Finally, we seek comment on the effect, if any, of state mandatory access laws or other statutory or constitutional considerations on the Commission's authority in this area. C. Whether Commission Action Is Needed to Ensure Competitive Video Access to MDUs 10. We seek comment on the impact of exclusive contracts on consumer choice and video competition. We note that, in the context of telecommunications services, the Commission has prohibited the enforcement of exclusive access arrangements in commercial MDUs. Does the existence of exclusive contracts within a community reduce the likelihood of competitive entry in the community? What are the typical durations of existing exclusive contracts? Are the costs associated with providing service to MDUs or other real estate developments significantly more than the costs of providing service in other areas? Is there more risk associated with serving these types of developments? Are the marketing costs higher in these areas? Is customer churn higher? How do the prices and services offered under the exclusive contracts compare to those offered to other customers? Are additional payments made to or by the MVPD in return for exclusive contracts? Do existing exclusive contracts provide the MVPD with a right of first refusal when renegotiating the contract? To the extent that some exclusive contracts can be pro-competitive and benefit consumers, we seek comment on those circumstances. If the Commission determines that it would serve the public interest to regulate exclusive contracts, we seek comment on how we should regulate such contracts. 11. We seek comment on whether the Commission should limit exclusive contracts only where the video provider at issue possesses market power. In this regard, we call for comment on how the video programming market has changed since the issue was last posed in the *Inside Wiring FNPRM* , and whether the Commission should reconsider restriction or prohibition of the use of exclusive contracts by video providers with market power. In particular, we seek comment on how to define “market power” for these purposes. We also seek input on any other issues relevant to the analysis of market power and exclusive contracts. Does the competitive impact of exclusive contracts differ depending on whether a competing terrestrial MVPD was able to provide service to the MDU or other real estate development at the time the exclusive contract was negotiated? 12. We also call for comment regarding the existence of “perpetual” contracts. Perpetual contracts are contracts that grant the incumbent provider the right to maintain its wiring and provide service to the MDU for indefinite or very long periods of time, or for the duration of the cable franchise term, and any extensions thereof. Perpetual contracts present some of the same competitive issues as exclusive contracts, and were also discussed in the *Inside Wiring Report and Order* . Are perpetual contracts currently being executed? If so, are perpetual contracts anti-competitive, as they effectively bar any competitive entry, or are there instances in which the use of perpetual contracts does not impede our policy goals of enhanced cable competition and accelerated broadband deployment? Commenters should address the Commission's authority to nullify or otherwise regulate perpetual contracts. 13. We also solicit comment on the specific rules or guidance that we should adopt to ensure that exclusive contracts do not unreasonably impede competitive video entry. Should the Commission establish explicit rules to which contracting parties must adhere or specific guidelines for MVPDs? Are there certain practices that we should find unreasonable through rules or guidelines? If so, what are these practices? IV. Procedural Matters A. Initial Regulatory Flexibility Analysis 14. As required by the Regulatory Flexibility Act, the Commission has prepared an Initial Regulatory Flexibility Analysis

(IRFA)of the possible significant economic impact on a substantial number of small entities of the proposals addressed in this *Notice of Proposed Rulemaking* . The IRFA is set forth in the Appendix. Written public comments are requested on the IRFA. These comments must be filed in accordance with the same filing deadlines for comments on the *NPRM* , and they should have a separate and distinct heading designating them as responses to the IRFA. B. Ex Parte Rules 15. *Permit-But-Disclose.* This proceeding will be treated as a “permit-but-disclose” proceeding subject to the “permit-but-disclose” requirements under section 1.1206(b) of the Commission's rules. *Ex parte* presentations are permissible if disclosed in accordance with Commission rules, except during the Sunshine Agenda period when presentations, ex parte or otherwise, are generally prohibited. Persons making oral ex parte presentations are reminded that a memorandum summarizing a presentation must contain a summary of the substance of the presentation and not merely a listing of the subjects discussed. More than a one- or two-sentence description of the views and arguments presented is generally required. Additional rules pertaining to oral and written presentations are set forth in section 1.1206(b). C. Filing Requirements 16. *Comment Information.* Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, *interested* parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using:

(1)The Commission's Electronic Comment Filing System (ECFS),

(2)the Federal Government's eRulemaking Portal, or

(3)by filing paper copies. *See Electronic Filing of Documents in Rulemaking Proceedings,* 63 FR 24121 (1998). • *Electronic Filers:* Comments may be filed electronically using the Internet by accessing the ECFS: *http://www.fcc.gov/cgb/ecfs/* or the Federal eRulemaking Portal: *http://www.regulations.gov* . Filers should follow the instructions provided on the Web site for submitting comments. • For ECFS filers, if multiple docket or rulemaking numbers appear in the caption of this proceeding, filers must transmit one electronic copy of the comments for each docket or rulemaking number referenced in the caption. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket or rulemaking number. Parties may also submit an electronic comment by Internet e-mail. To get filing instructions, filers should send an e-mail to *ecfs@fcc.gov* , and include the following words in the body of the message, “get form.” A sample form and directions will be sent in response. • *Paper Filers:* Parties who choose to file by paper must file an original and four copies of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail (although we continue to experience delays in receiving U.S. Postal Service mail). All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission. • The Commission's contractor will receive hand-delivered or messenger-delivered paper filings for the Commission's Secretary at 236 Massachusetts Avenue, NE., Suite 110, Washington, DC 20002. The filing hours at this location are 8 a.m. to 7 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes must be disposed of *before* entering the building. • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. • U.S. Postal Service first-class, Express, and Priority mail should be addressed to 445 12th Street, SW., Washington, DC 20554. *People with Disabilities:* To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to *fcc504@fcc.gov* or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). 17. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW., CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Word 97, and/or Adobe Acrobat. Initial Regulatory Flexibility Analysis 18. As required by the Regulatory Flexibility Act of 1980, as amended (the “RFA”), the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) of the possible significant economic impact of the policies and rules proposed in the Notice of Proposed Rulemaking (“NPRM”) on a substantial number of small entities. Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided in paragraphs 17-18 of the item. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (“SBA”). In addition, the NPRM and IRFA (or summaries thereof) will be published in the **Federal Register** . Need for, and Objectives of, the Proposed Rules 19. The NPRM initiates a proceeding to investigate the use of exclusive contracts for the provision of video services to multiple dwelling units (“MDUs”) and other real estate developments, in order to further the interrelated goals of enhanced cable competition and accelerated broadband deployment. Specifically, the NPRM solicits comment on the existence of exclusive contracts for the provision of video services to MDUs and other real estate developments, and whether such exclusive contracts are ever pro-competitive, and if not, whether the Commission has authority to prohibit the use of such agreements. Legal Basis 20. The NPRM asks whether the Commission has authority to regulate the use of exclusive contracts for the provision of video services to MDUs or other real estate developments. It specifically asks whether such authority can be found in Sections 1, 4(i), 303(r), 623 and 628(b) of the Communications Act of 1934, as amended, and Section 706 of the Telecommunications Act of 1996. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply 21. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which:

(1)Is independently owned and operated;

(2)is not dominant in its field of operation; and

(3)satisfies any additional criteria established by the Small Business Administration (“SBA”). 22. *Small Businesses.* Nationwide, there are a total of approximately 22.4 million small businesses, according to SBA data. 23. *Small Organizations.* Nationwide, there are approximately 1.6 million small organizations. 24. *Small Governmental Jurisdictions.* The term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2002 indicate that there were 87,525 local governmental jurisdictions in the United States. We estimate that, of this total, 84,377 entities were “small governmental jurisdictions.” We assume that the villages, school districts, and special districts are small, and total 48,558. For 2002, Census Bureau data indicate that the total number of county, municipal, and township governments nationwide was 38,967, of which 35,819 were small. Thus, we estimate that most governmental jurisdictions are small. 25. The Commission has determined that the group of small entities possibly directly affected by our action consists of small governmental entities. In addition the Commission voluntarily provides, below, descriptions of certain entities that may be merely indirectly affected by any rules that may ultimately result from the NPRM. Cable Operators 26. *Cable and Other Program Distribution.* The Census Bureau defines this category as follows: “This industry comprises establishments primarily engaged as third-party distribution systems for broadcast programming. The establishments of this industry deliver visual, aural, or textual programming received from cable networks, local television stations, or radio networks to consumers via cable or direct-to-home satellite systems on a subscription or fee basis. These establishments do not generally originate programming material.” The SBA has developed a small business size standard for Cable and Other Program Distribution, which is: all such firms having $13.5 million or less in annual receipts. According to Census Bureau data for 2002, there were a total of 1,191 firms in this category that operated for the entire year. Of this total, 1,087 firms had annual receipts of under $10 million, and 43 firms had receipts of $10 million or more but less than $25 million. An additional 61 firms had annual receipts of $25 million or more. Thus, under this size standard, the majority of firms can be considered small. 27. *Cable Companies and Systems.* The Commission has also developed its own small business size standards, for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers, nationwide. The Commission determined that this size standard equates approximately to a size standard of $100 million or less in annual revenues. Industry data indicate that, of 1,076 cable operators nationwide, all but eleven are small under this size standard. In addition, under the Commission's rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Industry data indicate that, of 7,208 systems nationwide, 6,139 systems have under 10,000 subscribers, and an additional 379 systems have 10,000-19,999 subscribers. Thus, under this second size standard, most cable systems are small. 28. *Cable System Operators.* The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” The Commission has determined that an operator serving fewer than 677,000 subscribers shall be deemed a small operator, if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Industry data indicate that, of 1,076 cable operators nationwide, all but ten are small under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, and therefore we are unable to estimate more accurately the number of cable system operators that would qualify as small under this size standard. The Commission does receive such information on a case-by-case basis if a cable operator appeals a local franchise authority's finding that the operator does not qualify as a small cable operator pursuant to section 76.901(f) of the Commission's rules. 29. *Open Video Services.* Open Video Service (“OVS”) systems provide subscription services. As noted above, the SBA has created a small business size standard for Cable and Other Program Distribution. This standard provides that a small entity is one with $13.5 million or less in annual receipts. The Commission has certified approximately 25 OVS operators to serve 75 areas, and some of these are currently providing service. Affiliates of Residential Communications Network, Inc.

(RCN)received approval to operate OVS systems in New York City, Boston, Washington, D.C., and other areas. RCN has sufficient revenues to assure that they do not qualify as a small business entity. Little financial information is available for the other entities that are authorized to provide OVS and are not yet operational. Given that some entities authorized to provide OVS service have not yet begun to generate revenues, the Commission concludes that up to 24 OVS operators (those remaining) might qualify as small businesses that may be affected by our action. Telecommunications Service Entities 30. As noted above, a “small business” under the RFA is one that, inter alia, meets the pertinent small business size standard ( *e.g.* , a telephone communications business having 1,500 or fewer employees), and “is not dominant in its field of operation.” The SBA's Office of Advocacy contends that, for RFA purposes, small incumbent local exchange carriers are not dominant in their field of operation because any such dominance is not “national” in scope. 31. Wired Telecommunications Carriers. The SBA has developed a small business size standard for wireline firms within the broad economic census category, “Wired Telecommunications Carriers.” Under this category, the SBA deems a wireline business to be small if it has 1,500 or fewer employees. Census Bureau data for 2002 show that there were 2,432 firms in this category that operated for the entire year. Of this total, 2,395 firms had employment of 999 or fewer employees, and 37 firms had employment of 1,000 employees or more. The census data do not provide a more precise estimate of the number of firms that have employment of 1,500 or fewer employees; the largest category provided is for firms with “1000 employees or more.” Thus, under this category and associated small business size standard, the majority of firms can be considered small. Dwelling Units 32. *MDU Operators.* The SBA has developed definitions of small entities for operators of nonresidential buildings, apartment buildings, and dwellings other than apartment buildings, which include all such companies generating $6 million or less in revenue annually. According to the Census Bureau, there were 31,584 operators of nonresidential buildings generating less than $6 million in revenue that were in operation for at least one year at the end of 1997. Also according to the Census Bureau, there were 51,275 operators of apartment dwellings generating less than $6 million in revenue that were in operation for at least one year at the end of 1997. The Census Bureau provides no separate data regarding operators of dwellings other than apartment buildings, and we are unable at this time to estimate the number of such operators that would qualify as small entities. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements 33. We anticipate that any rules that result from this action would have at most a *de minimis* compliance burden on cable operators and telecommunications service entities. Any rules that might be adopted pursuant to this NPRM likely would not require any reporting or recordkeeping requirements. Steps Taken To Minimize Significant Economic Impact on Small Entities and Significant Alternatives Considered 34. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

(2)the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;

(3)the use of performance rather than design standards; and

(4)an exemption from coverage of the rule, or any part thereof, for such small entities.” 35. As discussed in the NPRM, the Commission has initiated this proceeding to ensure that use of exclusive contracts for the provision of video services to MDUs and other real estate developments are pro-competitive. As noted above, applying any rules regarding the use of exclusive contracts in the provision of video services to MDUs or other real estate developments likely would have at most a *de minimis* impact on small governmental jurisdictions. We seek comment on the impact that any rules might have on such small governmental entities, as well as the other small entities described, and on what effect alternative rules would have on those entities. For instance, should a definition of “market power,” if such a definition is appropriate, make reference to small entities? We also invite comment on ways in which the Commission might impose restrictions on the use of exclusive contracts for the provision of video services while at the same time imposing lesser burdens on small entities. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules 36. None. V. Ordering Clauses 37. Accordingly, it is ordered that, pursuant to Sections 1, 4(i), 303(r), 623 and 628(b) of the Communications Act of 1934, as amended, and Section 706 of the Telecommunications Act of 1996, 47 U.S.C. 151, 154(i), 303(r), 543, 548(b) and 157, this Notice of Proposed Rulemaking is hereby adopted. 38. It is further ordered that the Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration. Federal Communications Commission. Marlene H. Dortch, Secretary. [FR Doc. E7-7254 Filed 4-17-07; 8:45 am] BILLING CODE 6712-01-P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 070402075-7075-01; I.D. 022807F] RIN 0648-AU73 Fisheries Off West Coast States; Highly Migratory Species Fisheries AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. SUMMARY: NMFS issues a proposed rule to amend vessel identification regulations of the Fishery Management Plan for U.S. West Coast Fisheries for Highly Migratory Species (HMS FMP). The current regulatory text requires all commercial fishing vessels and recreational charter vessels to display their official numbers on the port and starboard sides of the deckhouse or hull, and on an appropriate weather deck (horizontal or flat surface) so as to be visible from enforcement vessels and aircraft. The proposed rule would amend the regulatory text to provide an exemption to HMS recreational charter vessels in complying with the vessel identification requirements. The regulation is necessary to clarify that vessel identification requirements apply to HMS commercial fishing vessels and not to HMS recreational charter vessels. DATES: Comments must be received by May 18, 2007. ADDRESSES: You may submit comments on this proposed rule, I.D. 022807F, by any of the following methods: • E-mail: *0648-AU73.SWR@noaa.gov* . Include the I.D. number in the subject line of the message. • Federal eRulemaking Portal: *www.regulations.gov* . Follow the instructions for submitting comments. • Mail: Rodney R. McInnis, Regional Administrator, Southwest Region, NMFS, 501 West Ocean Blvd., Suite 4200, Long Beach, CA 90802 4213. • Fax:

(562)980 4047. FOR FURTHER INFORMATION CONTACT: Craig Heberer, Sustainable Fisheries Division, NMFS, 760-431-9440, ext. 303. SUPPLEMENTARY INFORMATION: On April 7, 2004, NMFS published a final rule to implement the HMS FMP (69 FR 18444) that included regulatory text in 50 CFR 660.704 requiring display of vessel identification markings for commercial fishing vessels and recreational charter fishing vessels that fish for HMS off or land HMS in the States of California, Oregon, and Washington. The identification markings are consistent in size, shape, and location with vessel identification markings required on commercial fishing vessels operating under the Pacific Fishery Management Council's (Council) Groundfish Fishery Management Plan. The marking requirements at 50 CFR 660.704(b) state that the official number must be affixed to each vessel in block Arabic numerals at least 10 inches (25.40 cm) in height for vessels more than 25 ft (7.62 m) but equal to or less than 65 ft (19.81 m) in length; and 18 inches (45.72 cm)in height for vessels longer than 65 ft (19.81 m) in length. Markings must be legible and of a color that contrasts with the background. As discussed during the HMS FMP Plan Development phase, the Council's intent in recommending the current requirement, was to address marking for identification purposes on HMS commercial fishing vessels, not recreational charter vessels. Our intent in promulgating the rule was to exempt recreational charter vessels from the marking requirements, similar to exemptions granted under the Council's Groundfish FMP. The current inclusion of HMS recreational charter vessels as part of the vessel identification requirements in the HMS FMP is not consistent with how vessel marking requirements are applied in the Groundfish FMP. The Council recommended to NMFS that meeting this requirement was not necessary as the HMS recreational charter vessels were already adequately marked, under existing state and U.S. Coast Guard regulations, so as to be identified by enforcement assets from both air and sea. In addition to being unnecessary for enforcement purposes, compliance with the current marking requirement would detract from the aesthetics of the charter vessels and degrade the “attraction factor” for future clients. Classification NMFS has determined that the proposed rule is consistent with the HMS FMP and preliminarily determined that this proposed rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Approximately 327 vessels were permitted under the HMS FMP to operate in the HMS recreational charter fishery off the U.S. West Coast in 2006. This proposed rule would exclude owners of HMS permitted recreational charter vessels from the vessel identification regulations at 50 CFR 660.704. The cost of maintaining/applying the identification numbers is approximately one and one-half hours of labor and the cost of approximately 3 gallons of marine paint, or about $20. All vessels affected by this rule are considered small business entities; the rule should not only have no adverse economic impact to them, but should have a direct positive impact to them (i.e., it simply would relieve a burden). List of Subjects in 50 CFR Part 660 Fisheries, Fishing, Reporting and recordkeeping requirements. Dated: April 13, 2007. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows: PART 660—FISHERIES OFF THE WEST COAST STATES 1. The authority citation for part 660 continues to read as follows: Authority: 16 U.S.C. 1801 *et seq.* 2. Section 660.704 is revised to read as follows: § 660.704 Vessel identification.

(a)*General.* This section only applies to commercial fishing vessels that fish for HMS off or land HMS in the States of California, Oregon, and Washington. This section does not apply to recreational charter vessels that fish for HMS off or land HMS in the States of California, Oregon, and Washington.

(b)*Official number.* Each fishing vessel subject to this section must display its official number on the port and starboard sides of the deckhouse or hull, and on an appropriate weather deck so as to be visible from enforcement vessels and aircraft.

(c)*Numerals.* The official number must be affixed to each vessel subject to this section in block Arabic numerals at least 10 inches (25.40 cm) in height for vessels more than 25 ft (7.62 m) but equal to or less than 65 ft (19.81 m) in length; and 18 inches (45.72 cm)in height for vessels longer than 65 ft (19.81 m) in length. Markings must be legible and of a color that contrasts with the background. [FR Doc. E7-7381 Filed 4-17-07; 8:45 am] BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 070322067-7067-01; I.D. 031407A] RIN 0648-AU03 Fisheries of the Exclusive Economic Zone Off Alaska; Prohibited Species Bycatch Management AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule. SUMMARY: NMFS proposes to amend regulations governing salmon bycatch in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to enhance the effectiveness of salmon bycatch measures by

(1)exempting pollock vessels from Chinook and chum salmon savings area closures if they participate in an inter-cooperative agreement

(ICA)to reduce salmon bycatch, and

(2)exempting vessels participating in non-pollock trawl fisheries from chum salmon savings area closures because these fisheries intercept minimal amounts of salmon. The proposed rule is intended to promote the goals and objectives of the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP). DATES: Written comments must be received by June 4, 2007. ADDRESSES: Send comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Sebastian, Records Officer. Comments may be submitted by any of the following methods: • E-mail: *0648-au03-BSA84-A-PR@noaa.gov* . Include in the subject line the following identifier: BS salmon proposed rule. E-mail comments, with or without attachments, are limited to 5 megabytes; • Federal e-Rulemaking Portal: *http:www.regulations.gov* ; • Mail to P.O. Box 21668, Juneau, AK 99802; • Fax: to

(907)586-7557; or • Hand Delivery to the Federal Building, 709 West 9th Street, Room 420A, Juneau, AK. Copies of the Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action may be obtained from the same mailing address listed here or from the NMFS Alaska Region Web site at www.fakr.noaa.gov. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS at ADDRESSES above and by e-mail to *David_Rostker@omb.eop.gov* , or fax to

(202)395-7285. FOR FURTHER INFORMATION CONTACT: Jason Anderson, 907-586-7228, or *jason.anderson@noaa.gov* . SUPPLEMENTARY INFORMATION: Background NMFS manages the U.S. groundfish fisheries of the BSAI in the Exclusive Economic Zone under the FMP. The North Pacific Fishery Management Council (Council) prepared the FMP pursuant to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations implementing the FMP appear at 50 CFR part 679. General regulations that pertain to U.S. fisheries appear at subpart H of 50 CFR part 600. Pacific salmon are caught incidentally in the BSAI trawl fisheries, especially in the pollock fishery. Of the five species of Pacific salmon, Chinook salmon ( *Onchorynchus tshawytscha* ) and chum salmon ( *O. keta* ) are most often incidentally caught in the pollock fishery. Pacific salmon are placed into two categories for purposes of salmon bycatch management: Chinook and non-Chinook. The non-Chinook category is comprised of chum, sockeye ( *O. nerka* ), pink ( *O. gorbuscha* ), and coho ( *O. kisutch* ) salmon. However, from 2001 through 2004, chum salmon represented about 98 percent of non-Chinook salmon harvested incidentally in the pollock trawl fisheries. For convenience, all non-Chinook salmon are referred to as chum salmon. To address Chinook salmon bycatch concerns, the Council adopted several management measures designed to reduce overall Chinook salmon bycatch in the BSAI trawl fisheries. In 1995, the Council adopted, and NMFS approved, Amendment 21b to the FMP. Based on historic information on salmon bycatch, Amendment 21b established a Chinook salmon savings area (60 FR 31215, November 29, 1995). Under Amendment 21b, the Chinook salmon savings area closed when the incidental catch of Chinook salmon in BSAI trawl fisheries reached 48,000 fish. Amendment 58 to the FMP revised the Chinook salmon savings area measures (65 FR 60587, October 12, 2000). Amendment 58 reduced the Chinook salmon bycatch limit from 48,000 fish to 29,000 fish, mandated year-round accounting of Chinook bycatch in the directed pollock fishery, revised the boundaries of the Chinook salmon savings area closure, and implemented new closure dates. The timing of the closure depends on when the limit is reached. If the limit is reached: • Before April 15, the area closes immediately through April 15. After April 15, the area re-opens, but closes again from September 1 through December 31. • Between April 15 and September 1, the area would close from September 1 through the end of the year. • After September 1, the area closes immediately through the end of the year. The Chinook salmon savings area was further modified by Amendment 82 to the FMP (70 FR 9856, March 1, 2005). Amendment 82 established a separate Aleutian Islands subarea bycatch limit that, when reached, closes the existing Chinook salmon savings area located in the Aleutian Islands subarea (Area 1). The Chinook salmon savings area located in the Bering Sea subarea remained unchanged, but was designated as Area 2. The Council also adopted a time-area closure designed to reduce overall chum salmon bycatch in the BSAI trawl fisheries. In 1995, Amendment 35 to the FMP established the chum salmon savings area (60 FR 34904, July 5, 1995). This area is closed to all trawling from August 1 through August 31 of each year. Additionally, if 42,000 chum salmon are caught in the Catcher Vessel Operational Area

(CVOA)during the period August 15 through October 14, the area remains closed for the remainder of the calendar year. Community development quota

(CDQ)groups receive, along with allocations of groundfish CDQ, individual allocations of Chinook and non-Chinook annual bycatch amounts. Vessels groundfish CDQ fishing are not subject to the chum and Chinook salmon savings area closures that apply to the non-CDQ pollock fisheries. Rather, the Chinook salmon savings area closes to vessels directed fishing for pollock for a CDQ group once that CDQ group has reached its Chinook salmon bycatch limit. The chum salmon savings area closes to vessels using trawl gear to fish for groundfish CDQ once that CDQ group has reached its non-Chinook salmon bycatch limit. Thus, individual CDQ groups are subject to salmon savings area closures based on their respective catch of chum or Chinook salmon while groundfish CDQ fishing. The Chinook and chum salmon savings areas were adopted based on historic observed salmon bycatch rates and were designed to avoid high spatial and temporal levels of salmon bycatch. From 1990 through 2001, the BSAI salmon bycatch average was 37,819 Chinook and 69,332 chum annually. Recently, however, salmon bycatch numbers have increased substantially. In 2003, 54,911 Chinook salmon and 197,091 chum salmon were taken incidentally in the trawl fisheries. In 2004, salmon bycatch increased substantially to 62,493 Chinook and 465,650 chum salmon. Bycatch amounts remained high in 2005 and totaled 67,541 Chinook and 116,999 chum salmon. Since its establishment in 1995, the Chinook salmon savings area closure only has been triggered since 2003. The Chinook salmon bycatch limit was not reached prior to 2003. In 2003, the Chinook salmon savings area closed to directed trawl fishing for non-CDQ pollock on September 1, with the closure remaining in effect until the end of the calendar year. In 2004, the Chinook salmon savings area closed to directed trawl fishing for non-CDQ pollock on September 5 through the end of the year. In 2005, the Chinook salmon savings area in the Bering Sea subarea was closed to directed trawl fishing for non-CDQ pollock on September 1 through the end of the year. Since establishment of the chum salmon savings area in 1995, the bycatch of non-Chinook salmon triggered closures in 2002, 2003, 2004, and 2005. In these years, the chum salmon savings area closed to non-CDQ trawl fisheries in September and October. Anecdotal information from participants in the BSAI trawl fisheries indicated that salmon bycatch rates may be higher outside the Chinook and chum salmon savings area. In February 2005, the Council initiated an EA/RIR/IRFA to explore alternatives to the current salmon bycatch measures. Spatial and temporal comparisons of non-CDQ vessels fishing outside of the salmon savings areas with CDQ vessels fishing inside of the salmon savings areas indicated that bycatch rates were much higher outside of the savings areas. In October 2005, the Council adopted Amendment 84 to the FMP. Amendment 84 would exempt non-CDQ and CDQ pollock vessels participating in a salmon bycatch reduction ICA from closures of the Chinook and chum salmon savings areas in the Bering Sea. Additionally, vessels participating in trawl fisheries for species other than pollock would be exempt from chum salmon savings area closures. The Council and NMFS intend to use NMFS salmon bycatch information to assess the effectiveness of regulations implementing Amendment 84 at reducing salmon bycatch in the directed pollock fisheries. The Council also asked for participants in the salmon bycatch reduction ICA to report annually on how effective the ICA appears to be at reducing salmon bycatch. The Council also will gather additional information to assess the effectiveness of the ICA in coordinating voluntary salmon bycatch reduction efforts by participants in the Bering Sea pollock fisheries. Additionally, this information could be used to further assess whether participants fishing in the current salmon savings areas continue to encounter lower salmon bycatch rates than participants fishing outside of salmon savings areas. The Council is also developing a separate FMP amendment that could result in additional management measures to reduce salmon bycatch. These measures could include altering the geographic coordinates of the Chinook and chum salmon savings areas based on recent bycatch rates, and implementing an individual salmon bycatch accountability program. However, the Council determined that consideration of these management measures would require additional time and chose to expedite Amendment 84 while the Council develops the second amendment. Salmon Bycatch Reduction ICA Amendment 84 proposes a management program intended to enable the pollock fleet to utilize its internal cooperative structure to reduce salmon bycatch. If Amendment 84 is approved and implemented, salmon savings area closures would not apply to vessels that operate under a salmon bycatch reduction ICA. Rather, the agency intends that salmon bycatch would be reduced as ICA parties comply with the provisions of the ICA. The ICA, including its enforcement mechanism, is discussed further below. The salmon bycatch reduction ICA is intended to reduce salmon bycatch in the BSAI non-CDQ and CDQ pollock fisheries. American Fisheries Act

(AFA)pollock fishery participants would incorporate the ICA into existing cooperative agreements. CDQ groups, western Alaska community organizations, and AFA cooperatives would be eligible to become parties to the ICA. Parties to the ICA could include the following AFA cooperatives: Pollock Conservation Cooperative, the High Seas Catchers Cooperative, the Mothership Fleet Cooperative, the Inshore Cooperatives (Akutan Catcher Vessel Association, Arctic Enterprise Association, Northern Victor Fleet Cooperative, Peter Pan Fleet Cooperative, Unalaska Fleet Cooperative, Unisea Fleet Cooperative and Westward Fleet Cooperative) and all six CDQ groups. Additionally, western Alaskan groups who have an interest in the sustainability of salmon resources could be parties in the ICA. The ICA must identify at least one third party group representing western Alaskans who depend on salmon and have an interest in salmon bycatch reduction. The purpose of the ICA would be to use real-time salmon bycatch information to avoid high incidental catch rates of chum and Chinook salmon. The ICA would be a contractual agreement among the parties. All parties to the ICA would agree to comply with ICA provisions, including requirements to retain the services of a private contractor to collect and analyze bycatch data and report salmon bycatch information to the ICA parties. The ICA would require that the third party hired to facilitate salmon bycatch avoidance compare the bycatch rate of a participating cooperative to a pre-determined bycatch rate (base rate). All ICA provisions for fleet bycatch avoidance behavior, closures, and enforcement would be based on the ratio of the cooperative's rate to the base rate. The third party entity hired to facilitate salmon bycatch avoidance would assign an ICA cooperative to one of three tiers based on its bycatch rate relative to the base rate. Higher tiers correspond to higher bycatch rates. Tier assignments determine access privileges to specific fishing areas. The ICA would prohibit a participant assigned to a high tier from fishing in a relatively larger geographic area to avoid high bycatch areas. Conversely, the ICA would grant access to a wider range of fishing areas to a participant assigned to a low tier based on fishing behavior that results in relatively low bycatch. The contractor would track bycatch rates for each participant. The ICA would specify a participant's tier assignment each week based on that participant's bycatch rate for the previous week. Thus, participants would have incentives to avoid fishing behavior that results in high bycatch rates. Monitoring and enforcement would be facilitated through the ICA. Any of the parties to the ICA may bring civil suit or initiate a binding arbitration action against another party for violating the ICA. For example, a participant that fishes for pollock in a prohibited area based on its tier assignment would be subject to a monetary penalty. The ICA would include a penalty schedule for violating these tier closures. As described above, two western Alaska salmon user groups could be parties to the ICA. These groups do not participate in commercial groundfish fisheries off Alaska. However, they represent subsistence salmon users, and are concerned about the amount of salmon bycatch taken in the groundfish fisheries. Because their members are partially dependent on healthy salmon returns, the western Alaska user groups have incentives to reduce salmon bycatch in the groundfish fisheries and monitor performance of the ICA's bycatch reduction measures. The Council's intent is that their participation in the ICA may improve monitoring and compliance among the parties. If either of these western Alaska user groups determines that fishing is not in compliance with the ICA, the user group could bring civil suit against the offending parties. Chum Salmon Savings Area Exemption Vessels participating in non-pollock trawl fisheries currently are subject to the chum salmon savings area closure. However, the best available information summarized in the EA/RIR/IRFA prepared for this action indicates that 97 percent of the 2002 and 2003 chum salmon bycatch occurred in the pollock fisheries. Because the non-pollock trawl sector accounts for such a small portion of the chum bycatch, the Council recommended exempting all non-pollock trawl vessels from the chum salmon savings area closure. While this proposed rule would exempt non-pollock trawl vessels from this closure, any chum salmon bycatch by these vessels would continue to contribute towards triggering closures. Proposed Changes to Regulations The salmon bycatch reduction ICA would be defined at § 679.2 as a voluntary civil agreement among pollock cooperatives, CDQ groups, and western Alaska subsistence salmon user groups that is intended to coordinate the pollock fishery in a manner that reduces incidental catch rates of salmon. Prohibitions at § 679.7 would be revised to incorporate the primary elements of this proposed action into two existing prohibitions specific to CDQ fisheries. Section 679.7(d)(9) and

(10)would be revised to extend the exemptions from salmon savings area closures to vessels participating in the pollock CDQ fishery under a salmon bycatch reduction ICA. Additionally, §§ 679.7(d)(10), 679.21(e)(7)(vii), and 679.22(a)(10) would be revised to exempt trawl vessels directed fishing for groundfish other than pollock from the chum salmon savings area closure. Regulations at §§ 679.21(e)(7)(ix) would be revised to exempt pollock trawl vessels participating in a salmon bycatch reduction ICA from closures in Area 2 of the Chinook salmon savings area. Vessels that are not participating in the salmon bycatch reduction ICA would remain subject to Chinook and chum salmon savings area closures. As noted above, NMFS would not enforce provisions of the salmon bycatch reduction ICA. However, these proposed regulations would require the ICA to include basic provisions necessary to reduce salmon bycatch in the pollock fisheries. Additionally, NMFS would review the ICA for compliance with regulations. An ICA that includes these basic provisions would be approved by NMFS. If NMFS does not approve an ICA, participants would be able to appeal that determination, subject to current regulations at § 679.43. The process for submitting and obtaining NMFS approval of an ICA would be described at § 679.21(g). Additionally, § 679.21(g)(4) would establish an initial deadline of December 1, 2007, for the 2008 fishing year, and the ICA would remain in effect until it expires or is amended. An amendment of the ICA would require submission of an amended ICA signed by all parties and approval by final agency action of the amended ICA by NMFS. Minimum requirements for an ICA would be described at § 679.21(g)(6). The proposed rule would require the salmon bycatch reduction ICA to list the parties to the agreement, describe how participants would avoid salmon bycatch in directed pollock fisheries, and describe internal monitoring and enforcement mechanisms for the ICA. It would require the ICA to identify at least one private firm retained to facilitate bycatch avoidance behavior and information sharing. It would require the ICA to dictate salmon bycatch avoidance behaviors for vessel operators subject to the ICA. In addition, it would require the ICA to specify a salmon bycatch base rate, a method for assigning a cooperative or CDQ group to one of three tiers based on its salmon bycatch rate relative to the salmon bycatch base rate and provisions for governing access to fishing areas by cooperatives or CDQ groups assigned to each tier. Finally, it would require the ICA to require all parties to comply with the provisions of the ICA. The proposed rule also would require the ICA to include the names, Federal fisheries permit numbers, and United States Coast Guard

(USCG)vessel identification numbers of vessels subject to the salmon bycatch reduction ICA. Finally, the proposed rule would require the ICA to list the name, business address, and phone number of the person who will annually file the ICA with NMFS. The proposed rule also would require participants to procure an external compliance audit. If the compliance audit reveals a previously unidentified violation of the terms of the ICA, the information used to determine that this violation occurred would be required to be disseminated to all participants. Furthermore, if a violation of the ICA is identified at any time, but a penalty is not assessed, the information used to identify that violation would be required to be disseminated to all participants. These provisions are intended to increase transparency for the participants, and allow each participant to monitor compliance with the terms of the ICA. If the Council determined that the salmon bycatch reduction ICA did not effectively reduce salmon bycatch, it could initiate a separate action to accomplish salmon bycatch reduction goals. Additionally, NMFS is concerned about the effective execution of the terms and conditions of the ICA. To address these concerns, regulations at § 679.61(f)(2)(vi) would require AFA annual reports to include the number of violations of the ICA, the nature of those violations, and the penalty imposed, if any, against the violating party. Public comments are being solicited on the FMP amendment through the end of the comment period stated in the NOA. Public comments on the proposed rule must be received by the end of the comment period on the amendment, as published in the NOA, to be considered in the approval/disapproval decision on the amendment. All comments received by the end of the comment period on the amendment, whether specifically directed to the amendment, or the proposed rule, will be considered in the approval/disapproval decision. Comments received after that date will not be considered in the approval/disapproval decision on the amendment. To be considered, comments must be received by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date. Classification At this time, NMFS has not determined that the FMP/amendment that this rule would implement is consistent with the national standards of the Magnuson-Stevens Act and other applicable laws. NMFS, in making that determination, will take into account the data, views, and comments received during the comment period. This proposed rule has been determined to be not significant for purposes of Executive Order 12866. NMFS prepared an initial regulatory flexibility analysis

(IRFA)as required by section 603 of the Regulatory Flexibility Act. The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained at the beginning of the preamble and in the SUMMARY section of the preamble. A copy of the IRFA is available from NMFS (see ADDRESSES ). A summary of the analysis follows. This action proposes to exempt vessels participating in directed pollock fishing from Chinook and chum salmon savings area closures if they participate in a salmon bycatch reduction ICA. The ICA is intended to reduce salmon bycatch in the BSAI AFA and CDQ pollock fisheries. Additionally, this proposed rule would exempt all non-pollock trawl vessels from the chum salmon savings area closure. In 2003, about 116 trawl catcher vessels operated in the BSAI with gross revenues less than $3.5 million. NMFS records indicate that 112 BSAI catcher vessels were members of AFA cooperatives. Because of Small Business Administration affiliation guidelines, all AFA vessels are considered large entities. Therefore, four BSAI trawl catcher vessels appear to qualify as small entities. Additionally, NMFS' 2003 data indicates that three non-AFA catcher processor trawl vessels had gross revenues less than $3.5 million. Alternative 1, the status quo, has resulted in increases in salmon bycatch in the Bering Sea pollock trawl fishery in recent years. This translates into foregone salmon value, assuming full terminal harvest of salmon bycatch, of nearly $1 million for Chinook and more than $250 thousand for chum in 2003. These values very likely overstate the actual harvest that might have occurred if salmon bycatch had not been taken in the Bering Sea pollock trawl fishery. Unfortunately, it is not possible to estimate actual harvest value more accurately at this time. However, the increases in salmon bycatch under the status quo likely results in increases in foregone value and decreased benefits of bycatch reduction. The status quo could also lead to future restrictions on the Bering Sea pollock trawl fleet to reduce the incidental take of Chinook salmon listed under the Endangered Species Act. Alternative 2 would eliminate the salmon savings closure areas altogether. The result would likely be reduced operational costs, improved vessel safety, improved product quality, and reduced management and enforcement costs. However, in the absence of any bycatch reduction measures this alternative may result in further increase in salmon bycatch in the Bering Sea pollock trawl fishery. Were that to occur, the foregone value of such bycatch would increase and the associate benefits of bycatch reduction would decrease, possibly dramatically. This could also result in the increased take of listed Chinook salmon in the Bering Sea pollock trawl fisheries. Alternative 3 would be implemented by this proposed rule. It would exempt vessels participating in a salmon bycatch reduction ICA from the BSAI salmon savings area closures. It is expected to reduce salmon bycatch in the BSAI pollock fisheries by penalizing participants that exhibit high salmon bycatch rates and rewarding participants that exhibit low salmon bycatch rates. Vessels participating in a salmon bycatch reduction ICA would be subject to a dynamic system of rolling “hot spot” closures dictated by the ICA and designed to reduce salmon bycatch. This alternative would likely reduce operational costs, improve vessel safety, and improve product quality. Alternative 3 also has the potential to reduce salmon bycatch more than the status quo management measures. If that potential is realized, Alternative 3 would reduce foregone value of salmon bycatch and increase the overall benefits of bycatch reduction. Alternative 3 also provides some mitigation possibilities for western Alaska subsistence salmon user groups by including them as parties to the ICA and enabling them to enforce compliance with the ICA's salmon bycatch reduction measures in Bering Sea pollock fisheries. Alternative 3 would reduce management and enforcement costs for government agencies by transferring much of that cost to the fishing industry. The industry has volunteered to bear this cost in hopes of reducing operational costs associated with the status quo while at the same time attempting to reduce salmon bycatch. If bycatch is not reduced under Alternative 3, additional restrictions on the fleet could result. This proposed rule contains collection-of-information requirements subject to review and approval by OMB under the Paperwork Reduction Act (PRA). This requirement has been submitted to OMB for approval under OMB control number 0648-0401. Public reporting burden is estimated per response to average: 40 hours for salmon bycatch reduction inter-cooperative agreement (ICA); 15 minutes for renewal of ICA; 28 hours for preliminary annual report; 12 hours for final annual report; 4 hours for ICA appeal. Reporting burden includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed , and completing and reviewing the collection of information. Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS (see ADDRESSES ) and e-mail to *David_Rostker@omb.eop.gov* , or fax to

(202)395-7285. Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number. The analysis did not reveal any Federal rules that duplicate, overlap, or conflict with the proposed action. List of Subjects in 50 CFR Part 679 Alaska, Fisheries, Reporting and recordkeeping requirements. Dated: April 11, 2007. Samuel D. Rauch III, Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service. > For the reasons set out in the preamble, 50 CFR part 679 is proposed to be amended as follows: PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 1. The authority citation for part 679 continues to read as follows: Authority: 16 U.S.C. 773 *et seq.* ; 1540(f); 1801 *et seq.* ; 1851 note; 3631 *et seq.* 2. In § 679.2, the definition of “Salmon bycatch reduction inter-cooperative agreement” is added in alphabetical order to read as follows: § 679.2 Definitions. *Salmon bycatch reduction inter-cooperative agreement (ICA)* is a voluntary chum and Chinook salmon catch avoidance agreement, as described at § 679.21(g) and approved by NMFS, for directed pollock fisheries in the Bering Sea subarea. 3. In § 679.7, paragraphs (d)(9) and (d)(10) are proposed to be revised to read as follows: § 679.7 Prohibitions.

(d)* * *

(9)For the operator of an eligible vessel, use trawl gear to harvest pollock CDQ in the Chinook Salmon Savings Area between January 1 and April 15, and between September 1 and December 31, after the CDQ group's Chinook salmon PSQ is attained, unless the vessel is participating in a salmon bycatch reduction ICA under § 679.21(e)(7)(ix).

(10)For the operator of an eligible vessel, use trawl gear to harvest pollock CDQ in the Chum Salmon Savings Area between September 1 and October 14 after the CDQ group's non-Chinook salmon PSQ is attained, unless the vessel is participating in a salmon bycatch reduction ICA under § 679.21(e)(7)(ix). 4. In § 679.21, paragraph (e)(7)(vii) is revised and paragraphs (e)(7)(ix) and

(g)are added to read as follows: § 679.21 Prohibited species bycatch management.

(e)* * *

(7)* * *

(vii)*Chum salmon.* If the Regional Administrator determines that 42,000 non-Chinook salmon have been caught by vessels using trawl gear during August 15 through October 14 in the CVOA, defined under § 679.22(a)(5) and in Figure 2 to this part, NMFS will prohibit directed fishing for pollock for the remainder of the period September 1 through October 14 in the Chum Salmon Savings Area as defined in Figure 9 to this part.

(ix)*Exemptions.*

(A)Trawl vessels participating in directed fishing for pollock and operating under a salmon bycatch reduction ICA approved by NMFS are exempt from closures in the Chum Salmon Savings Area described at § 679.21(e)(7)(vii). See also § 679.22(a)(10).

(B)Trawl vessels participating in directed fishing for pollock and operating under a salmon bycatch reduction ICA approved by NMFS are exempt from closures in area 2 of the Chinook Salmon Savings Area described at § 679.21(e)(7)(viii).

(g)*Requirements for vessels participating in a salmon bycatch reduction ICA.*

(1)*Who must file the salmon bycatch reduction ICA?* The representative for the salmon bycatch reduction ICA identified at (5)(v) of this paragraph must file a copy of the initial ICA and any amended salmon bycatch reduction ICA with NMFS.

(2)*With whom must the initial salmon bycatch reduction ICA and an amended salmon bycatch reduction ICA be filed?* The ICA representative must send a signed copy of the initial salmon bycatch reduction ICA and any amended salmon bycatch reduction ICA to the NMFS Alaska Region. The mailing address for the Regional Administrator, NMFS Alaska Region is P.O. Box 21668, Juneau, AK 99802. The street address for courier delivery is 709 West 9th St., Suite 401, Juneau, AK 99801.

(3)*What is the deadline for filing?* In order for any ICA participant to be exempt from salmon savings area closures as described at § 679.21(e)(7)(ix)(A), § 679.21(e)(7)(ix)(B) and § 679.22(a)(10), the salmon bycatch reduction ICA must be filed in compliance with the requirements of this section, and approved by NMFS. The initial salmon bycatch reduction ICA must be received by NMFS by December 1, 2007, for the 2008 fishing year. Exemptions from salmon savings area closures will expire upon termination of the initial ICA, expiration of the initial ICA, or if superseded by a NMFS-approved amended salmon bycatch reduction ICA.

(4)*How is the initial and an amended salmon bycatch reduction ICA approved by NMFS?* NMFS will approve the initial or an amended salmon bycatch reduction ICA if it meets all the requirements specified in paragraph (g)(5) of this section. If NMFS disapproves a salmon bycatch reduction ICA, the representative identified at (5)(v) of this section may resubmit a revised salmon bycatch reduction ICA or file an administrative appeal as set forth under the administrative appeals procedures described at § 679.43.

(5)*What are the minimum information requirements for the salmon bycatch reduction ICA?* The salmon bycatch ICA must include the following provisions:

(i)The names of the AFA cooperatives, CDQ groups, and third party groups that are parties to the ICA. The ICA must identify at least one third party group. Third party groups include any organizations representing western Alaskans who depend on Chinook and chum salmon and have an interest in salmon bycatch reduction but do not directly fish in a groundfish fishery. The ICA must identify one entity retained to facilitate vessel bycatch avoidance behavior and information sharing. Collectively, these groups are known as parties to the ICA. Parties to the ICA must agree to comply with all provisions of the ICA;

(ii)The names, Federal fisheries permit numbers, and USCG vessel identification numbers of vessels subject to the salmon bycatch reduction ICA;

(iii)Provisions that dictate salmon bycatch avoidance behaviors for vessel operators subject to the ICA, including:

(A)“A” season salmon bycatch management. ( *1* ) Initial base rate calculation for Chinook salmon. The initial “A” season Chinook base rate shall be calculated by dividing the total number of Chinook taken incidentally in the “A” season prior year by the total number of metric tons of “A” season pollock catch during the prior year, except that if the initial “A” season Chinook base rate for any given year is less than or equal to .04 Chinook per metric ton of pollock, the initial base rate shall be .04 Chinook per metric ton, and if the initial base rate for any given year is equal to or greater than .06 Chinook per metric ton of pollock, the initial base rate shall be .06 Chinook per metric ton. Base rate calculations shall include Chinook salmon and pollock caught in both the CDQ and non-CDQ pollock directed fisheries. ( *2* ) Inseason adjustments to the Chinook salmon base rate calculation. On February 14 of each year, the “A” season Chinook base rate shall be recalculated. The recalculated base rate shall be the Chinook bycatch rate for the current year, calculated by dividing the total number of Chinook salmon taken incidentally in the current “A” season by the total number of metric tons of “A” season pollock catch during the current season. The recalculated base rate shall be used to determine bycatch avoidance areas. ( *3* ) ICA salmon savings area notices. On January 30 of each year and each Thursday and Monday thereafter for the duration of the pollock “A” season, the non-party entity retained to facilitate vessel bycatch avoidance behavior and information sharing identified in paragraph (g)(6)(i) of this section must provide notice to the parties to the salmon bycatch reduction ICA and NMFS identifying one or more areas designated as “ICA Chinook Savings Areas” by a series of latitude and longitude coordinates. The Thursday notice of ICA Chinook savings area designations must be effective from 6 pm Alaska local time the following Friday through 6 pm Alaska local time the following Tuesday. The Monday notice must be effective from 6 pm Alaska local time the following Tuesday through 6 pm Alaska local time the following Friday. For any ICA salmon savings area notice, the maximum total area closed must be at least 1000 square miles. ( *4* ) Fishing restrictions for vessels assigned to Tiers as described at paragraph (g)(6)(iii)(C) of this section. ICA Chinook savings area closures announced on Thursdays must be closed to directed fishing for pollock, including pollock CDQ, by vessels assigned to Tier 3 for seven days. ICA Chinook savings area closures announced on Thursdays must be closed to vessels assigned to Tier 2 through 6 pm Alaska local time on the following Tuesday. Vessels assigned to Tier 1 may operate in any area designated as an ICA Chinook savings area.

(B)“B” season salmon bycatch management. ( *1* ) “B” season Chinook salmon. For the “B” season of the 2008 fishing year, the Chinook salmon base rate shall be .05 Chinook salmon per metric ton of pollock. For the “B” season of the 2009 fishing year and each “B” season thereafter, the base rate shall be based on the Chinook salmon bycatch during a representative period of the prior year's “B” season. The recalculated base rate shall be used to determine bycatch avoidance areas. Base rate calculations shall include Chinook salmon and pollock caught in both the CDQ and non-CDQ pollock directed fisheries. ( *2* ) Non-Chinook salmon. The initial “B” season non-Chinook salmon base rate shall be 0.19 non-Chinook salmon per metric ton of pollock. ( *3* ) Inseason adjustments to the non-Chinook base rate calculation. Beginning July 1 of each fishing year, and on each Thursday during “B” season, the “B” season non-Chinook base rate shall be recalculated. The recalculated non-Chinook base rate shall be the three week rolling average of the “B” season non-Chinook bycatch rate for the current year. The recalculated base rate shall be used to determine bycatch avoidance areas. ( *4* ) ICA salmon savings area notices. On each Thursday and Monday after June 10 of each year for the duration of the pollock “B” season, the non-party entity retained to facilitate vessel bycatch avoidance behavior and information sharing identified in paragraph (g)(6)(i) of this section must provide notice to the parties to the salmon bycatch reduction ICA and NMFS identifying one or more areas designated as “ICA Chinook Savings Areas” and/or “ICA Chum Savings Areas” by a series of latitude and longitude coordinates. The Thursday notice of ICA Chinook savings area designations must be effective from 6 pm Alaska local time the following Friday through 6 pm Alaska local time the following Tuesday. The Monday notice must be effective from 6 pm Alaska local time the following Tuesday through 6 pm Alaska local time the following Friday. For any ICA salmon savings area notice, the maximum total area closed must be at least 3000 square miles for ICA chum savings area closures, and 500 square miles for ICA Chinook savings area closures. ( *5* ) Fishing restrictions for vessels assigned to Tiers as described at paragraph (g)(6)(iii)(C) of this section. ICA chum savings area closures announced on Thursdays must be closed to directed fishing for pollock, including pollock CDQ, by vessels assigned to Tier 3 for seven days. ICA chum savings area closures announced on Thursdays must be closed to vessels assigned to Tier 2 through 6 pm Alaska local time on the following Tuesday. Vessels assigned to Tier 1 may operate in any area designated as an ICA chum savings area. ICA Chinook savings areas must be closed to fishing by all vessels identified at paragraph (g)(6)(iii)(C) of this section.

(C)*Cooperative tier assignments.* Initial and subsequent base rate calculations must be based on each cooperative's pollock catch for the prior two weeks and the associated bycatch of Chinook or non-Chinook salmon taken by its members. Base rate calculations shall include salmon bycatch and pollock caught in both the CDQ and non-CDQ pollock directed fisheries. Coops with salmon bycatch rates of less than 75 percent of the base rate shall be assigned to Tier 1. Coops with salmon bycatch rates of equal to or greater than 75 percent but equal to or less than 125 percent of the base rate shall be assigned to Tier 2. Coops with salmon bycatch rates of greater than 125 percent of the base rate shall be assigned to Tier 3. Bycatch rates for Chinook salmon must be calculated separately from non-Chinook salmon, and cooperatives must be assigned to tiers separately for Chinook and non-Chinook salmon bycatch.

(iv)Internal monitoring and enforcement provisions to ensure compliance of fishing activities with the provisions of the ICA. The ICA must include provisions allowing any party of the ICA to bring civil suit or initiate a binding arbitration action against another for breach of the ICA. The ICA must include minimum annual uniform assessments for any violation of savings area closures of $10,000 for the first offense, $15,000 for the second offense, and $20,000 for each offense thereafter;

(v)The name, phone number, and business address of the person who will annually file ICA with NMFS;

(vi)Provisions requiring the parties to conduct an annual compliance audit, and to cooperate fully in such audit, including providing information required by the auditor. The compliance audit must be conducted by a non-party entity, and each party must have an opportunity to participate in selecting the non-party entity. If the non-party entity hired to conduct a compliance audit discovers a previously undiscovered failure to comply with the terms of the ICA, the non-party entity must notify all parties to the ICA of the failure to comply and must simultaneously distribute to all parties of the ICA information used to determine the failure to comply occurred and must include such notice(s) in the compliance report described in § 679.61(f)(2)(vii).

(vii)Provisions requiring data dissemination in certain circumstances. If the entity retained to facilitate vessel bycatch avoidance behavior described at § 679.61(g)(6)(i) determines that an apparent violation of an ICA savings are closure has occurred, that entity must promptly notify the Board of Directors of the cooperative to which the vessel involved belongs. If this Board of Directors fails to assess a minimum uniform assessment within 60 days of receiving the notice, the information used by the entity retained to facilitate vessel bycatch avoidance behavior to determine if an apparent violation was committed must be disseminated to all parties to the ICA. 5. In § 679.22, paragraph (a)(10) is revised to read as follows: § 679.22 Closures.

(a)* * *

(10)*Chum Salmon Savings Area.* Directed fishing for pollock by vessels using trawl gear is prohibited from August 1 through August 31 in the Chum Salmon Savings Area defined at Figure 9 to this part (see also § 679.21(e)(7)(vii)). Vessels using trawl gear participating in directed fishing for pollock, including pollock CDQ, and operating under a salmon bycatch reduction ICA are exempt from closures in the Chum Salmon Savings Area. See also § 679.21(e)(7)(vii). 6. In § 679.61, paragraph (f)(2)(vii) is added to read as follows: § 679.61 Formation and operation of fishery cooperatives.

(f)* * *

(2)* * *

(vii)The annual report must indicate the number of salmon taken by species and season, estimate number of salmon avoided as demonstrated by the movement of fishing effort away from salmon savings areas, include the results of the compliance audit described at § 679.21(g)(6)(vi), and list of each vessels number of appearances on the weekly dirty 20 lists for both salmon species. [FR Doc. E7-7380 Filed 4-17-07; 8:45 am] BILLING CODE 3510-22-S 72 74 Wednesday, April 18, 2007 Notices DEPARTMENT OF AGRICULTURE Forest Service Information Collection; Northern Research Station's Outreach Opportunity Questionnaire AGENCY: Forest Service, USDA. ACTION: Notice; request for comment. SUMMARY: In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the Northern Research Station's

(NRS)Outreach Opportunity Questionnaire. DATES: Comments must be received in writing on or before June 18, 2007 to be assured of consideration. Comments received after that date will be considered to the extent practicable. ADDRESSES: Comments concerning this notice should be addressed to the Northern Research Station, Attention: Judy Terrell, Forest Service, USDA, 11 Campus Boulevard, Suite 200, Newtown Square, PA 19073. Comments also may be submitted via facsimile to 610-557-4095 or by e-mail to: *jterrell@fs.fed.us.* The public may inspect comments received at USDA Forest Service, 11 Campus Boulevard, Suite 200, Newtown Square, PA 19073 during normal business hours. Visitors are encouraged to call ahead to 610-557-4257 to facilitate entry to the building. FOR FURTHER INFORMATION CONTACT: Judy Terrell, Administrative Services, 610-557-4257. Individuals who use TDD may call the Federal Relay Service

(FRS)at 1-800-877-8339, 24 hours a day, every day of the year, including holidays. SUPPLEMENTARY INFORMATION: *Title:* Northern Research Station's Outreach Opportunity Questionnaire. *OMB Number:* 0596-NEW. *Type of Request:* New. *Abstract:* This information collection is proposed in order to gather information from students attending local college and university career fairs regarding the effectiveness of the information provided by Forest Service personnel on career opportunities in the Forest Service. The information collection is necessary to evaluate and determine the effectiveness of the Forest Service Northern Research Station's

(NRS)Civil Rights Outreach Program. Forest Service Civil Rights personnel will use a postcard size form to collect evaluation information from students regarding presentations at career day events at colleges and universities. Data received will appear in reports provided to the Department of Agriculture, senior Forest Service officials, the NRS Director, and the NRS Civil Rights Diversity Committee. This information is a vital component in the analysis of Agency outreach efforts. *Estimate of Annual Burden:* 10 minutes (.17 hours). *Type of Respondents:* University/College students. *Estimated Annual Number of Respondents:* 500. *Estimated Annual Number of Responses per Respondent:* 1. *Estimated Total Annual Burden on Respondents:* 85 hours. Comment is invited on:

(1)Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility;

(2)the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

(3)ways to enhance the quality, utility, and clarity of the information to be collected; and

(4)ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval. Dated: April 13, 2007. Ann M. Bartuska, Deputy Chief, Research and Development. [FR Doc. E7-7372 Filed 4-17-07; 8:45 am] BILLING CODE 3410-11-P DEPARTMENT OF AGRICULTURE Forest Service National Urban and Community Forestry Advisory Council AGENCY: Forest Service, USDA. ACTION: Notice of meeting. SUMMARY: The National Urban and Community Forestry Advisory Council will meet in Biloxi, Mississippi, June 5-7, 2007. The purpose of the meeting is to discuss emerging issues in urban and community forestry. DATES: The meeting will be held on June 5-7, 2007. ADDRESSES: The business meetings on June 5 and 7 will be held at the Quality Inn, 2416 Beach Blvd., Biloxi, MS. A *Catastrophic Storms and Urban Forests* public listening session will be held on June 6 at the Mississippi Coast Coliseum and Convention Center, 2350 Beach Blvd., Biloxi, MS. Written comments concerning this meeting should be addressed to Suzanne M. del Villar, Executive Assistant, National Urban and Community Forestry Advisory Council, P.O. Box 1003, Sugarloaf, CA 92386-1003. Comments may also be sent via e-mail to *sdelvillar@fs.fed.us,* or via facsimile to

(909)585-9527. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at USDA Forest Service, Urban and Community Forestry, 201 14th Street, SW., 1 Central Yates Building, Washington, DC. Visitors are encouraged to call ahead to 202-205-1057 to facilitate entry into the building. FOR FURTHER INFORMATION CONTACT: Suzanne M. del Villar, Urban and Community Forestry Staff,

(909)585-9268, or via e-mail at *sdelvillar@fs.fed.us,* Individuals who use telecommunication devices for the deaf

(TDD)may call the Federal Information Relay Service

(FIRS)at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday. SUPPLEMENTARY INFORMATION: The Council will be hosting a groundbreaking public listening session on *Catastrophic Storms and Urban Forests* on June 6, 2007, at the Mississippi Coast Coliseum and Convention Center, 2350 Beach Blvd., Biloxi, MS. There are several ways for the public to offer their testimony as explained on the Council's Web site at *http://www.treelink.org/nucfac.* Participants may give an on-site presentation, Web cast, written form, fax or e-mail. All testimony will be recorded, compiled, and tabulated into a final report to the Secretary of Agriculture. Dated: April 11, 2007. Robin L. Thompson, Associate Deputy chief, State & Private Forestry. [FR Doc. 07-1928 Filed 4-17-07; 8:45 am]

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