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Code · REGISTER · 2007-10-24 · National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce · Notices

Notices. Final rule; correction

25,210 words·~115 min read·/register/2007/10/24/07-5254·

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BILLING CODE 3510-22-S DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 0612242903-7445-03; I.D. 112006I] RIN 0648-AU48 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Cod Allocations in the Bering Sea and Aleutian Islands Management Area; Correction AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Final rule; correction. SUMMARY: NMFS is correcting a final rule that appeared in the **Federal Register** on September 4, 2007.
The final rule implemented Amendment 85 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area
(FMP)as partially approved by NMFS, and implemented recent changes to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Amendment 85 modified the current allocations of Bering Sea and Aleutian Islands Management Area
(BSAI)Pacific cod total allowable catch, and seasonal apportionments thereof, among various harvest sectors. The final rule also included the congressionally mandated increase in the allocation of BSAI Pacific cod to the Community Development Quota
(CDQ)Program. DATES: Effective January 1, 2008. FOR FURTHER INFORMATION CONTACT: Becky Carls, 907-586-7228 or *becky.carls@noaa.gov* . SUPPLEMENTARY INFORMATION: Background A final rule published on September 4, 2007 (72 FR 50788), implemented Amendment 85 to the FMP by modifying the current allocations of BSAI Pacific cod total allowable catch
(TAC)among various harvest sectors and seasonal apportionments thereof. The rule also established a hierarchy for reallocating projected unharvested amounts of Pacific cod from certain sectors to other sectors, revised catcher/processor
(CP)sector definitions, modified the management of Pacific cod incidental catch that occurs in other groundfish fisheries, eliminated the Pacific cod nonspecified reserve, subdivided the annual prohibited species catch
(PSC)limits currently apportioned to the Pacific cod hook-and-line gear fisheries between the catcher vessel and CP sectors, and modified the sideboard restrictions for American Fisheries Act
(AFA)CP vessels. In addition, the rule increased the percentage of the BSAI Pacific cod TAC apportioned to the CDQ Program. That final rule is effective January 1, 2008. After publishing the final rule to implement Amendment 85, NMFS published a separate final rule to implement Amendment 80 to the FMP on September 14, 2007 (72 FR 52668). Amendment 80 primarily allocated several BSAI non-pollock trawl groundfish fisheries among fishing sectors, facilitated the formation of harvesting cooperatives in the non-AFA trawl CP sector, and established a limited access privilege program for that sector. Most provisions of the Amendment 80 final rule were effective October 15, 2007. Need for Corrections Among other regulatory changes, the final rules implementing Amendment 80 and Amendment 85 modified current regulations under § 679.21(e) that concern PSC bycatch management. The regulatory changes made by the Amendment 85 final rule included a rearrangement of portions of § 679.21(e) to improve the organization of the regulations. The proposed rule for Amendment 85 published on February 7, 2007 (72 FR 5654), explained some of this reorganization on page 5668: “The information in § 679.21(e)(1)(i) and (e)(2)(ii), concerning the reserves in the BSAI for the CDQ Program, would be moved to § 679.21(e)(3)(i)(A) and (e)(4)(i)(A) respectively. This regulatory text would be moved from the paragraphs allocating PSC by species, to the more appropriate location under the paragraphs making PSC apportionments to the various fishery categories.” However, because Amendment 85 has a later effective date than Amendment 80, an unintended result of this reorganization is that some regulatory changes made by the Amendment 85 final rule will overwrite some regulatory changes made by the Amendment 80 final rule. Specifically, the final rule for Amendment 85 as published will remove regulatory text allocating prohibited species quota to CDQ groups, a reference to PSC cooperative quota assigned to Amendment 80 cooperatives, and paragraphs concerning Amendment 80 sector bycatch limitations. The preservation of the new regulatory text approved under Amendment 80 in light of the non-substantive reorganization intended by Amendment 85 is the goal of this correction notice. In other words, the intent of the regulatory reorganization made by Amendment 85 was not to change the substance of existing regulations but to move and consolidate several existing regulatory provisions. Therefore, two paragraphs in the Amendment 85 final rule will be corrected to reflect new regulatory language approved under Amendment 80 and an instruction for § 679.21 will be inserted. First, the new regulatory text at § 679.21(e)(1)(i) resulting from Amendment 80 will become § 679.21(e)(3)(i)(A) under this action, with changes made to reflect the new cross-references. Second, the new regulatory text at § 679.21(e)(3)(i) resulting from Amendment 80 will become § 679.21(e)(3)(i)(B) under this action, with a heading added to the paragraph. Last, an instruction will be inserted to prevent the deletion of a new paragraph added at § 679.21(e)(3)(vi) by the Amendment 80 final rule. Classification Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator of Fisheries finds good cause to waive prior notice and opportunity for public comment otherwise required by the section. NOAA finds that prior notice and opportunity for public comment are unnecessary because the editorial changes made by this rule are non-substantive. Neither Amendment 85 nor Amendment 80 intended to remove regulations allocating a portion of the trawl gear PSC limits to the CDQ Program. This action will preserve regulatory language approved in the Amendment 80 final rule when the regulations approved under the Amendment 85 final rule become effective. Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 *et seq.* , are inapplicable. Correction Accordingly, the final rule, FR Doc. E7-17140, published on September 4, 2007, at 72 FR 50788, to be effective January 1, 2008, is corrected as follows: **§ 679.21 [Corrected]** 1. In § 679.21, on page 50817, columns 1 and 2, revise paragraphs (e)(3)(i)(A) and
(B)to read as set forth below and in column 2, add five asterisks in between paragraphs (e)(3)(v) and (e)(4) to account for text not being amended. **§ 679.21 Prohibited species bycatch arrangement.**
(e)* * *
(3)* * *
(i)* * *
(A)*PSQ reserve.* The following allocations of the trawl gear PSC limits are made to the CDQ Program as PSQ reserves. The PSQ reserves are not apportioned by gear or fishery. ( *1* ) *Crab PSQ.* 10.7 percent of each PSC limit set forth in paragraphs (e)(1)(i) through
(iii)of this section. ( *2* ) *Halibut PSQ.* ( *i* ) 276 mt of the total PSC limit set forth in paragraph (e)(1)(iv) of this section in each year for 2008 and 2009. ( *ii* ) 326 mt of the total PSC limit set forth in paragraph (e)(1)(iv) of this section effective in 2010 and each year thereafter. ( *3* ) *Salmon PSQ* —( *i* ) *Chinook salmon.* 7.5 percent of the PSC limit set forth in paragraph (e)(1)(vi) of this section. ( *ii* ) *Non-Chinook salmon.* 10.7 percent of the PSC limit set forth in paragraph (e)(1)(vii) of this section.
(B)*Fishery categories.* NMFS, after consultation with the Council and after subtraction of PSQ reserves and PSC CQ assigned to Amendment 80 cooperatives, will apportion each PSC limit set forth in paragraphs (e)(1)(i) through
(vii)of this section into bycatch allowances for fishery categories defined in paragraph (e)(3)(iv) of this section, based on each category's proportional share of the anticipated incidental catch during a fishing year of prohibited species for which a PSC limit is specified and the need to optimize the amount of total groundfish harvested under established PSC limits. Dated: October 19, 2007. Samuel D. Rauch III, Deputy Assistant Administrator For Regulatory Programs, National Marine Fisheries Service. [FR Doc. E7-20929 Filed 10-23-07; 8:45 am] BILLING CODE 3510-22-S 72 205 Wednesday, October 24, 2007 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Part 35 [Docket No. PRM-35-19] William Stein, III, M.D.; Denial of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission. ACTION: Petition for rulemaking; denial. SUMMARY: The U.S. Nuclear Regulatory Commission
(NRC)is denying a petition for rulemaking (PRM-35-19) submitted by William Stein, III, M.D. (petitioner). The petitioner requested that the NRC amend the regulations that govern medical use of byproduct material concerning training for parenteral administration of certain radioactive drugs—samarium-153 lexidronam (Quadramet), iodine-131 tositumomab (Bexxar), and yttrium-90 ibritumomab tiuxetan (Zevalin)—used to treat cancer. The petitioner believes that these regulations are unduly burdensome for the use of these drugs. The petitioner requested that the regulations be amended to codify an 80-hour Laboratory and classroom, training and appropriate work experience, and written attestation as appropriate and sufficient for physicians desiring to attain authorized user status for therapeutic administrations of these unsealed byproduct materials. ADDRESSES: Copies of the petition for rulemaking, the public comments received, and NRC's letter to the petitioner may be examined at the NRC Public Document Room, Public File Area Room O1F21, 11555 Rockville Pike, Rockville, MD. These documents also may be viewed and downloaded electronically via the rulemaking Web site. The NRC maintains an Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. These documents may be accessed through the NRC's Public Electronic Reading Room on the Internet at *http://www.nrc.gov/reading-rm/adams.html* . If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room
(PDR)Reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to *pdr@nrc.gov* . FOR FURTHER INFORMATION CONTACT: James R. Firth, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone
(301)415-6628; e-mail: *jrf2@nrc.gov* . SUPPLEMENTARY INFORMATION: The Petition On June 14, 2006 (71 FR 34285), the NRC published a notice of receipt of a petition for rulemaking filed by William Stein, III, M.D. The petitioner requested that the NRC amend the regulations that govern medical use of byproduct material concerning training for parenteral administration of certain radioactive drugs—samarium-153 lexidronam (Quadramet), iodine-131 tositumomab (Bexxar), and yttrium-90 ibritumomab tiuxetan (Zevalin)—used to treat cancer. The petitioner believes that these regulations are unduly burdensome for the use of these drugs. The petitioner requested that the regulations be amended to codify an 80-hour training and experience requirement as appropriate and sufficient for physicians desiring to attain authorized user status for these unsealed byproduct materials. The petitioner requested that the NRC amend Title 10 of the Code of Federal Regulation
(CFR)part 35, “Medical Use of Byproduct Material” to recognize that 80 hours of classroom and laboratory training, supervised work experience, and a written attestation for physicians are adequate and sufficient to attain authorized user status for parenteral administrations of Quadramet, Bexxar, and Zevalin. The petitioner provided three options for addressing this issue.
(1)Add a specific requirement to 10 CFR part 35 that is essentially equivalent to the language in § 35.394, “Training for the oral administration of sodium iodide I-131 requiring a written directive in quantities greater than 1.22 Gigabecquerels (33 millicuries),” which governs oral administration of sodium iodide I-131 particularly with regard to the alternate pathway, but requires experience with at least three parenteral administrations of dosages to patients or human research subjects for each of these drugs.
(2)Add a separate requirement for Quadramet, Bexxar, and Zevalin similar to the training and experience codification for administration of sodium iodide I-131 to allow the NRC to evaluate each substance individually so all radioactive drugs can be handled appropriately from a radiation safety perspective.
(3)Revise 10 CFR 35.396, “Training for the parenteral administration of unsealed byproduct material requiring a written directive,” to specify an 80-hour classroom and laboratory training period, appropriate work experience, and a written attestation to apply to the alternate pathway for any physician, not limited to board-certified radiation oncologists. Specifically, remove the current § 35.396(c) and redesignate §§ 35.396(d)(1), (d)(2), and (d)(3) as §§ 35.396(c)(1), (c)(2), and (c)(3). The petitioner recognizes that the Commission may not agree with this change if other more hazardous parenterally-administered radiopharmaceuticals become available, necessitating the increased training currently specified in this requirement. The petitioner stated that the training and experience requirements for physicians who seek authorized user status for parenteral administration of Quadramet, Bexxar, and Zevalin to treat certain cancers should reflect the current requirements in 10 CFR 35.394 and not those currently in 10 CFR 35.396. The petitioner noted that all administrations of Quadramet, Bexxar, and Zevalin require written directives and believes that these drugs are generally less hazardous than oral dosages of sodium iodide I-131. The petitioner therefore believes that the training and experience requirements should not exceed the 80 hours specified for an endocrinologist who treats thyroid disorders with oral dosages of sodium iodide I-131. The petitioner stated that § 35.396 was published in the **Federal Register** on March 30, 2005 (70 FR 16336), as part of the final rule that amended training and experience requirements for administration of radiopharmaceuticals. The petitioner believes that the NRC's rationale for the training and experience requirements in § 35.396 is not known and that an opportunity for public comment period was not provided for this provision before it appeared in the final rule. The petitioner also stated that the NRC has not considered codification of new drugs that require written directives as they become available for medical use and that there is an unmet regulatory need to address the ability of physicians to qualify for medical use authorization for certain unsealed byproduct materials that are currently commercially available and for which written directives are required. The petitioner believes that users of radiopharmaceuticals should be subjected to training requirements according to potential radiation risk as is the case for oral administrations of I-131, rather than being lumped into a collective group, which the petitioner characterized as being the NRC's current practice. The petitioner believes that the current requirements are burdensome and deficient in this regard and that, without regulatory relief, physicians would be discouraged from providing these U.S. Food and Drug Administration (FDA)-approved and commercially available treatments resulting in an adverse impact on their ability to practice medicine. Under the current requirements, the petitioner believes that physicians would be required to become board-certified radiation oncologists under § 35.396 or complete 700 hours of training (including 200 hours of classroom and laboratory training) under § 35.390 to attain authorized user status to parenterally administer Quadramet, Bexxar, or Zevalin. Public Comments on the Petition The notice of receipt of the petition for rulemaking invited interested persons to submit comments. The comment period closed on August 28, 2006. As of July 27, 2007, the NRC had received 25 comment letters from individuals, State government agencies, and non-governmental organizations. In addition, the Advisory Committee on the Medical Uses of Isotopes (ACMUI) took a position on the arguments made in the petition. The NRC received 18 comment letters that supported granting the petition or agreed with the conclusions of the petitioner. Fourteen of these letters were submitted by 29 physicians. Two letters were submitted by State government agencies, the Arkansas Department of Health and Human Services and the Alabama Department of Public Health. Two letters were submitted by three individuals. Most of the commenters supporting the petition submitted form letters, or comments that were otherwise similar to one another. In general, these commenters stated that not granting the petition would intrude into the practice of medicine, discourage physicians from treating patients, and establish barriers to the use of potentially effective therapies, thus adversely impacting patient access to these therapies and increasing health care costs. These commenters also believed that the activity administrations of Quadramet, Bexxar, and Zevalin are from a radiation safety perspective less hazardous than oral administration of sodium iodide I-131 for which the NRC requires only 80 hours of classroom and laboratory training. The NRC received seven comment letters that opposed granting the petition. Two of these were submitted by physicians, one was submitted by a State government agency (i.e., the Iowa Department of Public Health), and four were submitted by non-governmental organizations (i.e., the American Association of Physicists in Medicine (AAPM), American College of Radiation Oncology (ACRO), American College of Radiology (ACR), and American Society for Therapeutic Radiology and Oncology (ASTRO)). In addition, at its October 24, 2006, meeting, the ACMUI passed a unanimous motion rejecting the arguments made by the petitioner. In general, many of these commenters disagreed that there was a shortage of individuals capable of performing these treatments or that patients were unable to access these treatments. Many of these commenters also raised concerns that there would be radiation safety issues and patients would be exposed to additional risk if the petition was granted; e.g., that medical oncology/hematology training does not include the extensive background necessary for administering these radiopharmaceuticals and that significant knowledge regarding handling of these radiopharmaceuticals cannot be imparted with limited training. These commenters also asserted that the amount of training required was debated many times during the revisions to 10 CFR part 35 and the NRC made a deliberate decision that the level of training required to administer these and similar treatments must include 700 hours of training and experience to ensure public health and safety. These commenters also stated that the intent of the regulations was not to regulate “radionuclide by radionuclide,” but to have generally applicable rules to accommodate new agents. Reasons for Denial After reviewing the information provided in the petition, the comment letters, and the views of the ACMUI, the NRC is denying the petition. The NRC believes that the current NRC regulations at 10 CFR 35.390 and 35.396 establish the appropriate amount of training and experience for a physician to become an authorized user for the parenteral administration of unsealed byproduct material requiring a written directive, including Quadramet, Bexxar, and Zevalin. The decision to deny this petition is consistent with the NRC policy statement, “Medical Use of Byproduct Material” (65 FR 47654; August 3, 2000). The NRC indicated in its general statement of policy that “NRC will, when justified by the risk to patients, regulate the radiation safety of patients, primarily to assure the use of radionuclides is in accordance with the physician's directions.” In the discussion of public comments on the medical use policy statement, the NRC indicated that the regulations for the medical use of byproduct material are predicated on the assumption that properly trained and adequately informed physicians will make decisions that are in the best interests of their patients. The training and experience requirements for the medical use of unsealed byproduct material requiring a written directive help to ensure that authorized users are properly trained and adequately informed. The elements of the current training and experience requirements for the use of unsealed byproduct materials were established through two separate rulemakings. The first rulemaking, a major revision to 10 CFR part 35 (67 FR 20250; April 24, 2002), was intended to focus NRC's regulations on those medical procedures that pose the highest risk to workers, patients, and the public, and structure the regulations to be more risk-informed and performance-based. The second rulemaking (70 FR 16336; March 30, 2005) revised the 10 CFR part 35 requirements for the recognition of specialty boards whose certifications may be used to demonstrate the adequacy of the training and experience of individuals for the purpose of serving as authorized persons and certain training and experience requirements for pathways for authorized status other than by the board certification pathways. Both rulemakings involved extensive input from the medical community, Agreement States, and the public, and afforded substantial opportunity for public comment. During the 2002 revision to 10 CFR part 35, the NRC increased the required amount of training and experience from 80 hours to 700 hours for most medical uses of unsealed byproduct material requiring a written directive. The 700 hours spent in training provides assurance that physicians spend an adequate amount of time in an environment in which radioactive drugs are routinely being prepared and/or administered for medical use. In 2005, the NRC clarified that to properly cover the topics important for the safety for these uses, for the alternate pathway to authorized status, the minimum amount of classroom and laboratory training was 200 hours (see 70 FR 16336). In this connection, to achieve authorization via the board certification pathway, the individual must successfully complete multiple year residency training in a radiation therapy or nuclear medicine training program or a program in a related medical specialty, each of which also includes 700 hours of training and experience as described in §§ 35.390(b)(1)(i) through (b)(1)(ii)(E) of the alternate pathway requirements. The required training is that considered appropriate for the purposes of radiation safety of workers, members of the public, and patients. The adequacy of the training of authorized users is an important contributor to radiation safety. An important aspect of the NRC requirements for the medical use of byproduct material is the flexibility provided to medical practitioners. Medical use licensees have the flexibility to use radioactive drugs requiring a written directive for indications and methods of administration that are not listed in the FDA-approved package insert. These licensees are able to depart from the manufacturer's instructions for preparing radioactive drugs. Because of the flexibility offered to physicians, they are expected to have certain training, even if, for example, they choose not to exercise their flexibility, such as using only unit dosages. The petitioner asserted, with regard to the requirements at 10 CFR 35.396, that the NRC's reasoning is not known and that no comment period was offered before this requirement appeared in the final rule. Concerning these assertions, the requirements at § 35.396 were established during the 2005 rulemaking and fully explained in the Supplementary Information accompanying the final rule. As explained in the final rule notice, the NRC established these requirements in the final rule in response to public comments on the proposed rule, published in the **Federal Register** on December 9, 2003 (68 FR 68549). The public comments expressed a concern that the training requirements in § 35.390 should consider the totality of all work experience for individuals trained in radiation oncology. As discussed in the Supplementary Information accompanying the final rule, the NRC agreed that certain physicians, such as those who meet the requirements for training and experience for uses under §§ 35.490 or 35.690, have a good understanding of radiation that includes topics common to the use of sealed sources and unsealed byproduct material. Therefore, the NRC included § 35.396 to provide a pathway to authorized status that allows individuals to take credit for training and experience associated with other medical uses of byproduct material that may be applicable to the use of unsealed byproduct material. To ensure that these individuals would have adequate training and experience to use unsealed byproduct material safely, the NRC requires that these individuals have training and experience applicable to the parenteral administration of unsealed byproduct material for which a written directive is required. The petitioner also asserts that the administrations of Quadramet, Bexxar, and Zevalin are no more hazardous from a radiation safety perspective than the oral administration of sodium iodide I-131, and therefore the training and experience requirements for physicians treating their patients with these drugs should not exceed those for an endocrinologist treating thyroid disorders with oral sodium iodide I-131. The NRC has addressed the difference in the required number of hours of training and experience for the oral administration of sodium iodide I-131 requiring a written directive and other medical uses of unsealed byproduct material requiring a written directive in both the 2002 rulemaking and the 2005 rulemaking. When the proposed rule amending Part 35 was published in 1998 (63 FR 43516; August 13, 1998), the training and experience requirements then in existence pertaining to treatment of hyperthyroidism and thyroid carcinoma were deleted and were to be subsumed within the training requirements that applied to the use of unsealed material for which a written directive is required proposed in § 35.390. Under the proposed revision, individuals wishing to become authorized users of unsealed byproduct material for which a written directive is required (including the use of sodium iodide I-131 to treat hyperthyroidism and thyroid carcinoma) would have been required to obtain 40 hours of supervised practical experience at a medical institution, in addition to the 80 hours of didactic training which had been required by the prior regulations. This would have increased the amount of training and experience required for the use of sodium iodide I-131 to treat hyperthyroidism and thyroid carcinoma. However, as explained in the Supplementary Information accompanying the final rule, commenters were strongly opposed to the proposed changes to the requirements for the administration of sodium iodide I-131 for treatment of hyperthyroidism and thyroid cancer. These commenters indicated that the increased training was not warranted for these purposes in light of endocrinologists' impeccable safety record with the use of sodium iodide I-131 and the fact that there had been no records of therapeutic misadministrations of any byproduct material by endocrinologists, and that in reality most of the practical aspects of handling sodium iodide I-131 that would be covered in the proposed 40 hours of additional training were already covered in the 80 hours of didactic training and supervised clinical training. The NRC considered these comments in making a determination that §§ 35.392 and 35.394 should be added in the final rule to specifically address oral administrations of sodium iodide I-131. These sections did not increase the duration of training for the oral administration of sodium iodide I-131 over the previous requirements for such use in §§ 35.932 and 35.934. However, with regard to all other uses of unsealed byproduct material for which a written directive is required, a specific determination was made to increase the training and experience requirements from 80 hours to 700 hours. The NRC made this determination after considering the potential for greater associated radiation risks of the use of these unsealed byproduct materials and the public comments received on the proposed rule (67 FR 20250; April 24, 2002). Subsequently, during the revision made to the training and experience requirements in 2005, the NRC specifically determined not to change the existing requirements in §§ 35.390, 35.392, or 35.394. The Supplementary Information accompanying the final rule in 2005 notes that although the NRC continued to believe that the increase in training and experience hours was generally necessary for physicians authorized under § 35.390, to qualify as an authorized user under the limited authorization of performing oral administration of sodium iodide I-131, a physician must have 80 hours of classroom and laboratory training and the specified supervised work experience. As noted in the Supplementary Information (70 FR 16336; March 30, 2005), the NRC based its determination on licensee use, NRC inspections, and experience with medical events reported after the effective date of the 2002 rule. The petitioner has not provided sufficient specific information that would warrant the NRC to reconsider this determination. The petitioner has asserted that the training and experience requirements for the parenteral administration of unsealed byproduct material are unduly burdensome and that an entire class of physicians is unfairly discouraged from providing FDA-approved and commercially available treatments. The petitioner believes this results in an adverse impact on their ability to practice medicine and discourages medical oncologists/hematologists from providing these FDA-approved and commercially available treatments. The NRC is unaware of problems in Agreement States or non-Agreement States with patient access to these treatments that would indicate that the training and experience requirements represent an unnecessary burden. Neither the petitioner nor the commenters supporting the petition provided specific information or data supporting the assertion that there is a problem with patient access to these treatments resulting from unnecessarily burdensome requirements for training and experience. The training and experience requirements are intended to ensure that authorized users of byproduct material are properly trained and adequately informed. The NRC believes that the currently required amount of training and experience for the parenteral administration of unsealed byproduct material requiring a written directive is appropriate and does not represent an unnecessary burden. The NRC notes that its requirements are not written to favor or penalize any class of physician (e.g., any physician can qualify as an authorized user for the oral administration of sodium iodide I-131), but are written to reflect the training necessary to ensure that authorized user physicians have adequate training. The alternate pathways for acquiring the training and experience necessary to become an authorized user were developed to provide physicians with a way to qualify for authorized user status, without having to acquire board certification or to have any particular specialty. Consequently, the NRC does not believe that medical oncologists/hematologists or any other class of physician are unfairly discouraged from becoming an authorized user or treating their patients. The NRC's regulatory approach is intended to provide a flexible, risk-informed approach to the regulation of medical uses of byproduct material. In addition, the existing approach reduces the need to revise requirements for individual radiopharmaceuticals. The training and experience requirements for the medical use of byproduct material are a matter of strict compatibility between the NRC and the Agreement States and have been assigned Compatibility Category B. This means that Agreement States should adopt program elements essentially identical to those established by the NRC. In addition, training programs for candidates of the medical specialty boards may have to adapt their training programs to remain current with changes to NRC and Agreement State training and experience requirements. The current approach to training and experience for the medical use of unsealed byproduct material accommodates the introduction of new radiopharmaceuticals without requiring additional rulemaking, with its associated costs to the Agreement States. Attempting to tailor the training and experience requirements to specific uses of unsealed byproduct material and to the amount of flexibility that a user may wish to have would significantly increase the complexity of the regulatory oversight. The NRC does not believe that such added complexity would be of benefit to patients, the Agreement States, licensees, current and prospective authorized users, or the medical specialty boards. The decision to deny the petition is consistent with the NRC strategic goals and strategies as described in the NRC Strategic Plan for fiscal years 2004 through 2009 (NUREG-1614). The training and experience requirements for the parenteral administration of unsealed byproduct material, including Quadramet, Bexxar, and Zevalin, do not present a significant regulatory impediment to the safe and beneficial use of these radioactive materials. In addition, the amount of classroom and laboratory training required to become an authorized user for the administration of these radiopharmaceuticals is necessary to protect public health and safety and the NRC regulations would not be improved by changing the requirements. In conclusion, the NRC is denying the petition because the NRC has determined that the current requirements establish the appropriate amount of training and experience for a physician to become an authorized user for the parenteral administration of Quadramet, Bexxar, and Zevalin and that the NRC requirements do not impose an unnecessary regulatory burden for the use of Quadramet, Bexxar, Zevalin, and similar radiopharmaceuticals. The existing NRC regulations provide the basis for NRC to have reasonable assurance that public health and safety is adequately protected. Neither the petitioner nor the commenters supporting the petition have provided sufficient information such as would warrant the regulatory relief sought by the petitioner. For the reasons cited in this document, the NRC denies this petition. Dated at Rockville, Maryland, this 5th day of October, 2007. For the Nuclear Regulatory Commission. William F. Kane, Acting Executive Director for Operations. [FR Doc. E7-20918 Filed 10-23-07; 8:45 am] BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION 10 CFR Part 63 [Docket No. PRM-63-2] State of Nevada; Denial of a Petition for Rulemaking AGENCY: Nuclear Regulatory Commission. ACTION: Petition for rulemaking: Denial. SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or Commission) is denying a petition for rulemaking submitted by the State of Nevada (PRM-63-2). The petition requests that NRC amend its regulations for the proposed geologic repository at Yucca Mountain, Nevada
(YM)to specify the limits of permissible spent fuel storage at the YM site. Petitioner believes that the U.S. Department of Energy
(DOE)is planning to construct an Aging Facility at the YM site designed to store 21,000 metric tons of heavy metal in what petitioner believes is a manifest violation of the Nuclear Waste Policy Act of 1982, as amended, and the Commission's regulations. NRC is denying the petition because NRC's current regulations are consistent with law and do not permit storage of spent nuclear fuel at the YM site unless such storage is integral to waste handling, necessary treatment, and disposal at the proposed repository, including storage which is integral to the thermal-loading strategy for disposal that DOE may include in its design of the entire repository system. DOE must make the case, in its anticipated license application, that any contemplated storage of spent nuclear fuel is permissible because it is integral to waste handling, necessary treatment, and disposal activities. NRC believes that, without an application currently before the agency, the issues raised by the petition are best addressed during the agency's review of the application when a final design will be available and an opportunity to request a hearing will be offered. ADDRESSES: Publicly available documents related to this petition, including the petition for rulemaking and NRC's letter of denial to the petitioner may be viewed electronically on public computers in NRC's Public Document Room (PDR), 01F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The PDR reproduction contractor will copy documents for a fee. Publicly available documents created or received at NRC after November 1, 1999, are also available electronically at the NRC's Electronic Reading Room at *http://www.nrc.gov/reading-rm/adams.html* . From this site, the public can gain entry into the NRC's Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the PDR reference staff at
(800)387-4209,
(301)415-4737 or by e-mail to *pdr@nrc.gov* . FOR FURTHER INFORMATION CONTACT: E. Neil Jensen, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-1637 or Toll Free: 1-800-368-5642, e-mail: *enj@nrc.gov* . SUPPLEMENTARY INFORMATION: The Petition On December 22, 2006, the State of Nevada (petitioner or the State) submitted a “Petition for Rulemaking to Amend Part 63 to Clarify the Limits on Spent Fuel Storage at the Yucca Mountain Site” (petition) which was docketed as a petition for rulemaking under 10 CFR 2.802 of the Commission's regulations (PRM-63-2) (available in the Agencywide Document Access and Management System (ADAMS) No. ML070030020). The State supplemented its petition by letter of January 23, 2007 (ML070330245). The petition requests amendments to 10 CFR part 63, NRC's regulations governing the disposal of high-level radioactive waste
(HLW)in a proposed geologic repository at YM. The petitioner believes that 10 CFR part 63 must be amended to specify the limits of permissible spent fuel storage at YM, together with related changes to 10 CFR part 71. Petitioner asserts that, at an August 29, 2006 technical exchange and management meeting between NRC and DOE, DOE indicated that its design for the geologic repository included both a “Receipt Facility” and an “Aging Facility” or “Aging Pad”. (Meeting summary, ML062710597). The Receipt Facility would be designed to receive commercial spent nuclear fuel
(SNF)from off-site and prepare it for the Aging Facility. The Aging Facility would be designed to store 21,000 metric tons of heavy metal
(MTHM)on the YM site. See DOE, Office of Civilian Radioactive Waste Management, *Surface Facilities Overview and Canister Receipt and Closure Facility,* slides presented to NRC/DOE Technical Exchange and Management Meeting on Design Changes Approved Through DOE's Critical Decision (CD-1) Process, August 29, 2006, Las Vegas, Nevada (DOE slides) (ML062510423). Petitioner further asserts that, in an NRC Staff response to the State's letter asking about what surface storage of SNF might be allowed at YM under the Nuclear Waste Policy Act of 1982, as amended (NWPA), 42 U.S.C 10101 *et seq.* , and 10 CFR Part 63, NRC stated that surface storage is permissible “to the extent such storage is integral to waste handling and disposal at the proposed repository,” and that “storage may also be integral to the thermal-loading strategy the applicant may adopt in its design of the entire repository system.” See Letter to Robert R. Loux from Jack R. Strosnider, December 4, 2006 (ML062900384). Petitioner believes that it is unclear why a thermal loading strategy must necessarily require the storage of significant quantities of SNF on the YM site and holds that “it is absurd to suppose that storage in capacities approaching anywhere near 21,000 MTHM on the Site could be justified as part of a ‘thermal loading' strategy that ‘is integral to waste handling and disposal.” Petition at 1. Further, petitioner supplemented its petition to state that DOE's preliminary specifications for a transportation, aging and disposal
(TAD)canister system suggest that DOE is planning on long-term storage of SNF at YM. See DOE, Office of Civilian Radioactive Waste Management, *Civilian Radioactive Waste Management System: Preliminary Transportation, Aging and Disposal Canister System Performance Specification, Revision A,* DOE/RW-0585, November 2006 (DOE Performance Specification) (Licensing Support Network No. DN20023585505). Petitioner believes that DOE's plans for an Aging Facility that could contain 21,000 MTHM are “manifestly unlawful” and requests that NRC amend 10 CFR part 63 to specify by rule the limits of permissible spent fuel storage at YM, together with related changes to 10 CFR part 71. As support for its petition, the State provides an analysis of provisions of the NWPA which demonstrate, in petitioner's view, that storage of SNF at YM is unlawful. In brief, petitioner argues that the structure and text of the NWPA show that Congress intended the repository to be for disposal only. This is because Congress provided for a repository for disposal of SNF in Subtitle A of the statute, but separately provided for a limited interim storage program in Subtitle B and for potentially longer term storage in a monitored retrievable storage facility
(MRS)in Subtitle C. Both Subtitle B and Subtitle C contain provisions which would effectively prevent storage in a state being considered for a repository. Petitioner points out that “if Congress had intended a repository site to be used for storage, neither Subtitle B nor Subtitle C would have been necessary, and the statutory prohibition on co-location of a repository and an interim storage facility or MRS would have been nonsensical.” Petition at 3. Thus, petitioner concludes, the structure of NWPA demonstrates that a repository is for disposal only. Petitioner requests three changes to NRC's rules. First, 10 CFR 63.21(c)(22) (regarding the contents of the license application) would be amended to add a new paragraph viii at the end: viii. Plans for the emplacement of spent nuclear fuel in the underground facility within a reasonably short time after it is received (in no event longer than one year), and information to explain why any facilities for the storage of spent nuclear fuel in the repository operations area or on the Site are integral to safe waste handling and disposal in the underground facility. Second, 10 CFR 63.41(b) (regarding required license conditions) would be amended to add a new subsection (c): (c). The license shall include additional conditions as follows:
(1)No spent nuclear fuel may be received in the geologic repository operations area, or on the Site, unless there is reasonable assurance that it can be moved into the underground facility within a reasonably short time (in no event later than one year after receipt);
(2)no spent nuclear fuel may be stored in the geologic repository operations area, or on the Site, unless such storage is necessary for the safe and efficient emplacement of spent fuel in the underground facility; and
(3)no spent nuclear fuel may be stored in the geologic repository operations area, or on the Site, for the purpose primarily of aging (cooling or radioactive decay) prior to emplacement in the underground facility. The foregoing conditions do not preclude the construction of storage space to allow retrieval of spent fuel after its emplacement in the underground facility or for the amelioration of emergency conditions associated with the repository's operation. Third, to ensure proper coordination between DOE and reactor licensees desirous of sending spent fuel to the repository, 10 CFR 71.5 would be amended by adding a new subsection (c): (c). No licensee possessing spent reactor fuel may deliver the fuel to the Department of Energy or to a carrier for transport to Yucca Mountain, or transport the fuel to Yucca Mountain, unless the fuel either complies with waste disposal criteria (including thermal loading criteria) approved by the Commission, or the fuel is expected to do so within one year after receipt at the Yucca Mountain site. In complying with this subsection, a licensee may rely on compliance certifications provided by the Department of Energy. Reasons for Denial Petitioner recognizes that NRC's regulations are currently in harmony with its view of what storage is permissible: In the preamble to the original Part 63, NRC stated that no license to receive waste or spent fuel would be issued until NRC is able to find that DOE has completed construction of sufficient underground storage space for initial operations, and it concluded that Part 63 does not allow early use of surface facilities for storage of spent fuel. 66 FR 55738 (November 2, 2001). This is consistent with the text of 10 CFR 63.41(a)(1), which provides that no license may be issued until NRC finds that construction of “[a]ny underground storage space required for initial operation [is] substantially complete.” Thus, NRC's regulations appear consistent with NWPA in eliminating the possibility of spent fuel storage that is decoupled from actual repository operations and logistics. Petition at 4, n.3. Indeed, NRC recently reaffirmed this interpretation of its regulations when it informed petitioner that surface storage of spent fuel is only permissible, under 10 CFR part 63, to the extent such storage is integral to waste handling and disposal at the proposed repository (including storage which is integral to the thermal-loading strategy the applicant may adopt in its design of the entire repository system). See NRC Staff Letter of December 4, 2006. In the preamble to NRC's final rule incorporating 10 CFR part 63 into its regulations, the Commission stated: The DOE has not indicated to the Commission any intention to seek an authorization for early use of the surface facilities for storage of spent nuclear fuel. Such an authorization likely would necessitate a change to (or an exemption from) the regulations. Before NRC would make changes of this type to its regulations, NRC would need to publish the proposed changes and seek public comment (66 FR 55738; November 2, 2001). These statements make it clear that the Commission does not regard its regulations as sanctioning the type of spent fuel storage imagined by petitioner; i.e., storage of large amounts of spent nuclear fuel on an Aging Pad divorced from waste handling, necessary treatment, and disposal operations. Petitioner's concern about DOE's supposed intent to construct a “gigantic” Aging Facility in violation of law apparently stems from information exchanged between DOE and NRC at the August 29, 2006 NRC/DOE Technical Exchange and Management Meeting. The DOE slides presented design changes that DOE had approved for the repository, including the preliminary hazards analysis
(PHA)performed as part of DOE's process for approving design changes. The radiological consequence analysis of the PHA was based on key assumptions with respect to source terms, site weather and the location of workers and members of the public. One of these assumptions was an assumption of aging pads at full capacity which was identified as being 21,000 MTHM. However, assumptions used in a hazards analysis are not the equivalent of an actual plan for SNF storage. Petitioner also cites DOE's draft Performance Specification for a TAD canister system in support of its claim that DOE is planning for “an illegal Yucca aging pad.” This document explains, *inter alia,* that a TAD canister may be aged in an aging overpack which is used to safely contain a loaded TAD canister on the aging pad until repository emplacement thermal limits are met and that it could take a long period of time (years) for sufficient radioactive decay to take place. Clearly, this document suggests that DOE plans to age some amount of spent nuclear fuel for some period of time on an aging pad at the repository but it provides no information on the actual amount or length of time nor explanation as to how whatever DOE is planning complies with 10 CFR 63.41(a). This information should be part of DOE's license application and will be subject to review by the NRC staff. As stated in NRC Staff's December 4, 2006 letter, “NRC fully expects that DOE would seek authorization for a facility that complies with Federal law. If the application includes an aging facility, the NRC staff would review that facility in the context of the overall repository design to determine if it is integral to waste handling and disposal at the proposed repository * * *.” Precisely what amount of spent nuclear fuel would meet that test, and precisely what amount of time can be justified, is an issue best resolved in the licensing proceeding. DOE's technical rationale supporting its intended use of the Aging Pad is dependent upon the actual repository design DOE intends to implement and will not be fully known until DOE submits its license application. DOE's design will be subject to scrutiny by the NRC staff in the licensing proceeding. Potential parties to the adjudicatory proceeding may seek to raise contentions on this issue if, in their view, DOE's case does not meet NRC's regulations. Conclusion In sum, NRC's rules already bar storage of SNF at the repository which is not integral to waste handling, necessary treatment, and disposal operations. The Commission believes that, without an application currently before the agency, the issues raised by the petition are best addressed during the agency's review of the application when a final design will be available and an opportunity to request a hearing will be offered. For these reasons, the Commission denies PRM-63-2. Dated at Rockville, Maryland, this 18th day of October 2007. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. [FR Doc. E7-20919 Filed 10-23-07; 8:45 am] BILLING CODE 7590-01-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-29138; Directorate Identifier 2007-CE-073-AD] RIN 2120-AA64 Airworthiness Directives; Cessna Aircraft Company Models 172R and 172S Airplanes AGENCY: Federal Aviation Administration (FAA), Department of Transportation (DOT). ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for certain Cessna Aircraft Company (Cessna) Models 172R and 172S. This proposed AD would require you to inspect the fuel return line assembly for chafing; replace the fuel return line assembly if chafing is found; and inspect the clearance between the fuel return line assembly and both the right steering tube assembly and the airplane structure, adjusting as necessary. This proposed AD results from reports of chafed fuel return line assemblies, which were caused by the fuel return line assembly rubbing against the right steering tube assembly during full rudder pedal actuation. We are proposing this AD to detect and correct chafing of the fuel return line assembly, which could result in fuel leaking under the floor and fuel vapors entering the cabin. This condition could lead to fire under the floor or in the cabin area. DATES: We must receive comments on this proposed AD by December 24, 2007. ADDRESSES: Use one of the following addresses to comment on this proposed AD: • *Federal eRulemaking Portal:* Go to *http://www.regulations.gov.* Follow the instructions for submitting comments. • *Fax:*
(202)493-2251. • *Mail:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • *Hand Delivery:* U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, Kansas 67277; telephone:
(316)517-5800; fax:
(316)942-9006. FOR FURTHER INFORMATION CONTACT: Trenton Shepherd, Aerospace Engineer, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone:
(316)946-4143; fax:
(316)946-4107; e-mail: *trent.shepherd@faa.gov.* SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments regarding this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number, “FAA-2007-29138; Directorate Identifier 2007-CE-073-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of the proposed AD. We will consider all comments received by the closing date and may amend the proposed AD in light of those comments. We will post all comments we receive, without change, to *http://www.regulations.gov* , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive concerning this proposed AD. Discussion We have received four reports of fuel return line assembly chafing in Cessna Models 172R and 172S airplanes. The reports indicated the fuel return line assembly rubbed against the right steering tube assembly during full rudder pedal actuation and caused the chafing. This condition, if not corrected, could result in fuel leaking under the cabin floor and fuel vapors entering the cabin. This condition could lead to fire under the floor or in the cabin area. Relevant Service Information We have reviewed Cessna Mandatory Service Bulletin SB07-28-01, dated June 18, 2007. The service information describes the following procedures: • Inspecting the fuel return line assembly; • Replacing the fuel return line assembly if chafing is found; and • Inspecting the clearance between the fuel return line assembly and both the right steering tube assembly and the airplane structure, adjusting as necessary. FAA's Determination and Requirements of the Proposed AD We are proposing this AD because we evaluated all information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design. This proposed AD would require you to detect and correct chafing of the fuel vent line assembly. Differences Between This Proposed AD and the Service Information The service information permits tube damage up to a depth of 0.0035 inch. There is no known method to accurately measure the thickness damage on a tube. We propose to require replacement of the fuel return line assembly if any damage is found. If no chafing is found in the inspection of the fuel return line assembly, the service information does not require inspection for clearance around the fuel return line assembly. We propose to inspect the clearance between the fuel return line assembly and both the right steering tube assembly and airplane structure, for all applicable aircraft. The service information does not specify a minimum clearance requirement between the fuel return line assembly and the right steering tube assembly, only that the fuel return line assembly does not touch either the right steering tube assembly or the airplane structure. We propose to require a minimum of 0.5 inch of clearance between the fuel return line assembly and both the right steering tube assembly and the airplane structure, during full rudder pedal actuation. The requirements of this proposed AD, if adopted as a final rule, would take precedence over the provisions in the service information. Costs of Compliance We estimate that this proposed AD would affect 928 airplanes in the U.S. registry. We estimate the following costs to do the proposed inspection: Labor cost Parts cost Total cost per airplane Total cost on U.S. operators 1 work-hour × $80 per hour = $80 N/A $80 $74,240 We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of airplanes that may need this replacement: Labor cost Parts cost Total cost per airplane 0.5 work-hour × $80 per hour = $40 $123 $163 Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify that the proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. Examining the AD Docket You may examine the AD docket that contains the proposed AD, the regulatory evaluation, any comments received, and other information on the Internet at *http://www.regulations.gov* ; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The Docket Office (telephone
(800)647-5527) is located at the street address stated in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Cessna Aircraft Company:** Docket No. FAA-2007-29138; Directorate Identifier 2007-CE-073-AD. Comments Due Date
(a)We must receive comments on this airworthiness directive
(AD)action by December 24, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to the following airplane models and serial numbers that are certificated in any category: Models Serial No. 172R 17281188 through 17281390. 172S 172S9491 through 172S10489. Unsafe Condition
(d)This AD results from reports of chafed fuel return line assemblies caused by the fuel return line assembly rubbing against the right steering tube assembly during full rudder pedal actuation. We are issuing this AD to detect and correct chafing of the fuel return line assembly, which could result in fuel leaking under the cabin floor and fuel vapors entering the cabin. This condition could lead to fire under the floor or in the cabin area. Compliance
(e)To address this problem, you must do the following, unless already done: Note: The requirements of this AD take precedence over the actions required in the service information. Actions Compliance Procedures
(1)Inspect the fuel return line assembly (Cessna part number (P/N) 0500118-49 or FAA-approved equivalent P/N) for chafing Within the next 100 hours time-in-service
(TIS)after the effective date of this AD or within the next 12 months after the effective date of this AD, whichever occurs first Follow Cessna Service Bulletin SB07-28-01, dated June 18, 2007.
(2)If chafing is found in the inspection required in paragraph (e)(1) of this AD, replace the fuel return line assembly (Cessna P/N 0500118-49 or FAA-approved equivalent P/N) Before further flight after the inspection required in paragraph (e)(1) of this AD where evidence of chafing was found Follow Cessna Service Bulletin SB07-28-01, dated June 18, 2007.
(3)Inspect for a minimum clearance of 0.5 inch between the following parts throughout the entire range of copilot rudder pedal travel and adjust the clearance as necessary: Before further flight after:
(A)The inspection required in paragraph (e)(1) of this AD if no chafing is found; or
(B)The replacement required in paragraph (e)(2) of this AD. Follow paragraph 6 of the Instructions section of Cessna Service Bulletin SB07-28-01, dated June 18, 2007. This AD requires a minimum clearance of 0.5 inch.
(i)The fuel return line assembly (Cessna P/N 0500118-49 or FAA-approved equivalent P/N) and the steering tube assembly (Cessna P/N MC0543022-2C); and
(ii)The fuel return line assembly (Cessna P/N 0500118-49 or FAA-approved equivalent P/N) and the airplane structure. Alternative Methods of Compliance (AMOCs)
(f)The Manager, Wichita Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Send information to ATTN: Trenton Shepherd, Aerospace Engineer, 1801 Airport Road, Room 100, Wichita, Kansas 67209; telephone:
(316)946-4143; fax:
(316)946-4107; e-mail: *trent.shepherd@faa.gov* . Before using any approved AMOC on any airplane to which the AMOC applies, notify your appropriate principal inspector
(PI)in the FAA Flight Standards District Office (FSDO), or lacking a PI, your local FSDO. Related Information
(g)To get copies of the service information referenced in this AD, contact Cessna Aircraft Company, Product Support, P.O. Box 7706, Wichita, Kansas 67277; telephone:
(316)517-5800; fax:
(316)942-9006. To view the AD docket, go to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590, or on the Internet at *http://www.regulations.gov* . The docket number is Docket No. FAA-2007-29138; Directorate Identifier 2007-CE-073-AD. Issued in Kansas City, Missouri, on October 17, 2007. David R. Showers, Acting Manager, Small Airplane Directorate, Aircraft Certification Service. [FR Doc. E7-20862 Filed 10-23-07; 8:45 am] BILLING CODE 4910-13-P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2007-0036; Directorate Identifier 2007-NE-22-AD] RIN 2120-AA64 Airworthiness Directives; Rolls-Royce plc RB211-524 Series Turbofan Engines AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive
(AD)for the products listed above. This proposed AD results from mandatory continuing airworthiness information
(MCAI)provided by the aviation authority of the United Kingdom to identify and correct an unsafe condition on an aviation product. The MCAI states the following: Recently an RB211 HP turbine disc has been found with a crack which had propagated further than expected from the risk model that was used to establish the original inspection. We are proposing this AD to detect cracks that could cause the high pressure
(HP)turbine disc to fail and result in uncontained failure of the engine. DATES: We must receive comments on this proposed AD by November 23, 2007. ADDRESSES: You may send comments by any of the following methods: • *Government-wide rulemaking Web site:* Go to *http://www.regulations.gov* and follow the instructions for sending your comments electronically. • *Mail:* Docket Management Facility, U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001. • *Hand Delivery:* Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. • *Fax:*
(202)493-2251. You can get the service information identified in this proposed AD from Rolls-Royce plc, P.O. Box 31, DERBY, DE24 8BJ, UK, telephone: 44
(0)1332 242424; fax: 44
(0)1332 249936. Examining the AD Docket You may examine the AD docket on the Internet at *http://www.regulations.gov* ; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone
(800)647-5527) is the same as the Mail address provided in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Jason Yang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *jason.yang@faa.gov* ; telephone
(781)238-7747; fax
(781)238-7199. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2007-0036; Directorate Identifier 2007-NE-22-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments. We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact with FAA personnel concerning this proposed AD. Using the search function of the Web site, anyone can find and read the comments in any of our dockets, including, if provided, the name of the individual who sent the comment (or signed the comment on behalf of an association, business, labor union, etc.). You may review the DOT's complete Privacy Act Statement in the **Federal Register** published on April 11, 2000 (65 FR 19477-78). Discussion The Civil Aviation Authority (CAA), which is the aviation authority for the United Kingdom, has issued United Kingdom Airworthiness Directive G-2006-0002, dated February 13, 2006, to correct an unsafe condition for the specified products. The CAA AD states: A population of HP turbine discs that were manufactured between 1989-1999 and which were subject to possible machining anomalies, were believed to have an increased chance of suffering from cooling air hole cracking, compared to the general fleet population of HP turbine discs. As a result of this risk, Rolls-Royce issued Non-Modification Service Bulletin
(NMSB)72-C816, recommending in-service inspections of the subject discs. Recently an RB211 HP turbine disc has been found with a crack which had propagated further than expected from the risk model that was used to establish the original inspection defined in the above NMSB; This has led to the need for a revision of the original inspection requirements. An HP turbine disc fracture would be uncontained and create a potential unsafe condition. Accordingly, this AD introduces revised inspection requirements to reflect the increased risk of HP turbine disc cracking and potential disc fracture. You may obtain further information by examining the CAA AD in the AD docket. Relevant Service Information RR has issued Service Bulletin RB.211-72-AE718, dated January 24, 2006. The actions described in this service information are intended to correct the unsafe condition identified in the CAA AD. FAA's Determination and Requirements of This Proposed AD This product has been approved by the aviation authority of the United Kingdom, and is approved for operation in the United States. Pursuant to our bilateral agreement with the United Kingdom, they have notified us of the unsafe condition described above. We are issuing this AD because we evaluated all the information provided by the CAA and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design. Costs of Compliance Based on the service information, we estimate that this proposed AD would affect about 72 engines installed on airplanes of U.S. registry. We also estimate that it would take about 10.0 work-hours per product to comply with this proposed AD, and that the average labor rate is $80 per work-hour. Required parts would cost about $15,000 per product. Based on these figures, we estimate the total cost of the proposed AD to U.S. operators to be $1,137,600. Our cost estimate is exclusive of possible warranty coverage. Authority for This Rulemaking Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority. We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action. Regulatory Findings We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government. For the reasons discussed above, I certify this proposed regulation: 1. Is not a “significant regulatory action” under Executive Order 12866; 2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979); and 3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act. We prepared a regulatory evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket. List of Subjects in 14 CFR Part 39 Air transportation, Aircraft, Aviation safety, Safety. The Proposed Amendment Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows: PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority: 49 U.S.C. 106(g), 40113, 44701. § 39.13 [Amended] 2. The FAA amends § 39.13 by adding the following new AD: **Rolls-Royce plc:** Docket No. FAA-2007-0036; Directorate Identifier 2007-NE-22-AD. Comments Due Date
(a)We must receive comments by November 23, 2007. Affected ADs
(b)None. Applicability
(c)This AD applies to Rolls-Royce
(RR)RB211-524 series turbofan engines with certain high pressure
(HP)turbine disks, specified by part number (P/N) and serial number
(SN)listed in Table 1 of this AD, installed. These engines are installed on, but not limited to, Boeing 747 series and 767 series airplanes and Lockheed L1011 series airplanes. Reason
(d)Recently an RB211 HP turbine disc has been found with a crack which had propagated further than expected from the risk model that was used to establish the original inspection defined in the above NMSB; This has led to the need for a revision of the original inspection requirements. An HP turbine disc fracture would be uncontained and create a potential unsafe condition. Accordingly, this AD introduces revised inspection requirements to reflect the increased risk of HP turbine disc cracking and potential disc fracture. Actions and Compliance
(e)Unless already done, do the following actions.
(f)Carry out the eddy current inspection as detailed in Section 3—Accomplishment Instructions of Rolls-Royce NMSB 72-AE718, dated January 24, 2006, in accordance with the following schedule:
(1)The HP disc serial numbers listed in table 1 are to be inspected as follows: Table 1.—HP Disk Serial Numbers by Part Number Part No. Serial No. Part No. Serial No. UL29473 LAQDY6043 UL29472 LQDY9125 UL29473 LAQDY6048 UL29472 LQDY9554 UL29473 LAQDY6079 UL29472 LQDY9582 UL29473 LDRCZ10057 UL29472 LQDY9895 UL29473 LDRCZ10264 UL29472 LQDY9910 UL29473 LDRCZ10415 UL29472 LQDY9947 UL29473 LDRCZ11402 UL29472 LQDY9960 UL29473 LDRCZ11425 UL24994 LQDY6777 UL29473 LDRCZ11497 UL24994 LQDY6792 UL29473 LDRCZ11663 UL24994 LQDY6859 UL29473 LDRCZ11679 UL24994 LQDY6860 UL29473 LDRCZ12301 UL24994 LQDY6866 UL29473 LDRCZ12308 UL24994 LQDY6869 UL29473 LDRCZ12316 UL24994 LQDY6934 UL29473 LDRCZ12319 UL24994 LQDY6946 UL29473 LQDY6957 UL24994 LQDY6963 UL29473 LQDY9075 UL23166 LQDY6745 UL29473 LQDY9084 UL23166 LQDY6846 UL29473 LQDY9557 UL23166 LQDY6848 UL29473 LQDY9906 UL23166 LQDY6954 UL29473 LQDY9956 FK24790 LDRCZ12492 UL29473 LQDY9970 FK24790 LDRCZ12694 UL29473 LQDY9985
(2)For all RB211-524 engine marks except RB211-524D4 variants:
(i)If the HP turbine disc cycles are greater than 6150 cycles since new on the effective date of this AD, inspect the HP turbine disc within 500 cycles after the effective date of this AD.
(ii)If the HP turbine disc cycles are less than 6150 cycles since new on the effective date of this AD, inspect the disc by whichever is the soonest of the conditions below:
(A)Prior to reaching 6650 cycles since new. The HP turbine disc life at inspection must be greater than 700 cycles since new.
(B)At next shop visit where the HP turbine rotor is removed from the Combustor Outer Case and the HP turbine disc life is greater than 700 cycles since new. If a HP turbine disc that meets these cyclic life criteria is currently at shop visit, and if, at the effective date of this Airworthiness Directive, it has not yet been reinstalled into the Combustion Outer Case, then the HP turbine disc must be inspected in accordance with the requirements of this Airworthiness Directive at the current shop visit.
(3)For all RB211-524D4 engine mark variants:
(i)If the HP turbine disc cycles are greater than 5000 cycles since new on the effective date of this AD, inspect the HP turbine disc within 500 cycles after the effective date of this AD.
(ii)If the HP turbine disc cycles were less than 5000 cycles since new on the effective date of this AD, inspect the HP turbine disc by whichever is the soonest of the conditions below:
(A)Prior to reaching 5500 cycles since new. The HP turbine disc life at inspection must be greater than 700 cycles since new.
(B)At the next shop visit where the HP turbine rotor is removed from the Combustor Outer Case and the HP turbine disc life is greater than 700 cycles since new. If a HP turbine disc that meets these cyclic life criteria is currently at shop visit, and if, at the effective date of this Airworthiness Directive, it has not yet been reinstalled into the Combustion Outer Case, then the HP turbine disc must be inspected in accordance with the requirements of this Airworthiness Directive at the current shop visit.
(4)For all other HP turbine discs specified in the Applicability of this Directive but not listed in Table 1 on page 2:
(i)Inspect the HP turbine disc at next shop visit where the HP turbine rotor is removed from the Combustor Outer Case and the HP turbine disc life is greater than 700 cycles since new. If a HP turbine disc that meets these cyclic life criteria is currently at shop visit, and if, at the effective date of this Airworthiness Directive, it has not yet been reinstalled into the Combustion Outer Case, then the HP turbine disc must be inspected in accordance with the requirements of this Airworthiness Directive at the current shop visit.
(ii)If a HP turbine disc has previously passed the inspection to Rolls-Royce NMSB 72-C816 or the focused inspection carried out in accordance with Rolls-Royce TS594-J Overhaul Process Manual Task 70-00-00-200-223 at greater than 700 cycles since new, then either of these inspections meets the requirements of this Airworthiness Directive. FAA AD Differences
(g)Wherever the MCAI AD specifies 24 November 2005, this AD specifies the effective date of this AD. Other FAA AD Provisions
(h)*Alternative Methods of Compliance (AMOCs):* The Manager, Engine Certification Office, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. Related Information
(i)Refer to the Civil Aviation Authority Airworthiness Directive G-2006-0002, dated February 13, 2006, and RR Nonmandatory Service Bulletin RB.211-72-AE718, dated January 24, 2006, for related information.
(j)Contact Jason Yang, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; e-mail: *jason.yang@faa.gov;* telephone
(781)238-7747; fax
(781)238-7199, for more information about this AD. Issued in Burlington, Massachusetts, on October 17, 2007. Peter A. White, Acting Manager, Engine and Propeller Directorate, Aircraft Certification Service. [FR Doc. E7-20923 Filed 10-23-07; 8:45 am] BILLING CODE 4910-13-P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 81 [EPA-R03-OAR-2007-0625; FRL-8485-9] Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Redesignation of the York (York and Adams Counties) 8-Hour Ozone Nonattainment Area to Attainment and Approval of the Area's Maintenance Plan and 2002 Base Year Inventory AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. SUMMARY: EPA is proposing to approve a redesignation request and State Implementation Plan
(SIP)revisions submitted by the Commonwealth of Pennsylvania. The Pennsylvania Department of Environmental Protection (PADEP) is requesting that the York (York and Adams Counties) ozone nonattainment area (York Area) be redesignated as attainment for the 8-hour ozone national ambient air quality standard (NAAQS). EPA is proposing to approve the ozone redesignation request for the York Area. In conjunction with its redesignation request, the Commonwealth submitted a SIP revision consisting of a maintenance plan for the York Area that provides for continued attainment of the 8-hour ozone NAAQS for at least 10 years after redesignation. EPA is proposing to make a determination that the York Area has attained the 8-hour ozone NAAQS, based upon three years of complete, quality-assured ambient air quality monitoring data for 2004-2006. EPA's proposed approval of the 8-hour ozone redesignation request is based on its determination that the York Area has met the criteria for redesignation to attainment specified in the Clean Air Act (CAA). In addition, the Commonwealth has also submitted a 2002 base year inventory for the York Area which EPA is proposing to approve as a SIP revision. EPA is also providing information on the status of its adequacy determination for the motor vehicle emission budgets (MVEBs) that are identified in the maintenance plan for the York Area for purposes of transportation conformity, which EPA is also proposing to approve. EPA is proposing approval of the redesignation request and of the maintenance plan and 2002 base year inventory SIP revisions in accordance with the requirements of the CAA. DATES: Written comments must be received on or before November 23, 2007. ADDRESSES: Submit your comments, identified by Docket ID Number EPA-R03-OAR-2007-0625 by one of the following methods: A. *http://www.regulations.gov.* Follow the on-line instructions for submitting comments. B. *E-mail: powers.marilyn@epa.gov.* C. *Mail:* EPA-R03-OAR-2007-0625, Marilyn Powers, Acting Chief, Air Quality Planning Branch, Mailcode 3AP21, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. D. *Hand Delivery:* At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information. *Instructions:* Direct your comments to Docket ID No. EPA-R03-OAR-2007-0625. 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, any form of encryption, and be free of any defects or viruses. *Docket:* All documents in the electronic docket are listed in the *www.regulations.gov* index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in *www.regulations.gov* or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the Pennsylvania Department of Environmental Protection Bureau of Air Quality Control, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania 17105. FOR FURTHER INFORMATION CONTACT: LaKeshia Robertson,
(215)814-2113, or by e-mail at *robertson.lakeshia@epa.gov.* SUPPLEMENTARY INFORMATION: Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. Table of Contents I. What Are the Actions EPA Is Proposing To Take? II. What Is the Background for These Proposed Actions? III. What Are the Criteria for Redesignation to Attainment? IV. Why Is EPA Taking These Actions? V. What Would Be the Effect of These Actions? VI. What Is EPA's Analysis of the Commonwealth's Request? VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the York Area Maintenance Plan Adequate and Approvable? VIII. Proposed Actions IX. Statutory and Executive Order Reviews I. What Are the Actions EPA Is Proposing To Take? On June 14, 2007, PADEP formally submitted a request to redesignate the York Area from nonattainment to attainment of the 8-hour NAAQS for ozone. Concurrently, Pennsylvania submitted a maintenance plan for the York Area as a SIP revision to ensure continued attainment in the area over the next 11 years. Pennsylvania also submitted a 2002 base year inventory for the York Area as a SIP revision. The York Area is currently designated a basic 8-hour ozone nonattainment area. EPA is proposing to determine that the York Area has attained the 8-hour ozone NAAQS and that it has met the requirements for redesignation pursuant to section 107(d)(3)(E) of the CAA. EPA is, therefore, proposing to approve the redesignation request to change the designation of the York Area from nonattainment to attainment for the 8- hour ozone NAAQS. EPA is also proposing to approve the York Area maintenance plan as a SIP revision (such approval being one of the CAA criteria for redesignation to attainment status). The maintenance plan is designed to ensure continued attainment in the York Area for the next 11 years. EPA is also proposing to approve the 2002 base year inventory for the York Area as a SIP revision. Additionally, EPA is announcing its action on the adequacy process for the MVEBs identified in the York maintenance plan, and proposing to approve the MVEBs identified for volatile organic compounds
(VOCs)and nitrogen oxides (NO <sup>X</sup> ) for the York Area for transportation conformity purposes. II. What Is the Background for These Proposed Actions? A. General Ground-level ozone is not emitted directly by sources. Rather, emissions of NO <sup>X</sup> and VOC react in the presence of sunlight to form ground-level ozone. The air pollutants NO <sup>X</sup> and VOC are referred to as precursors of ozone. The CAA establishes a process for air quality management through the attainment and maintenance of the NAAQS. On July 18, 1997, EPA promulgated a revised 8-hour ozone standard of 0.08 parts per million (ppm). This new standard is more stringent than the previous 1-hour standard. EPA designated, as nonattainment, any area violating the 8-hour ozone NAAQS based on the air quality data for the three years of 2001-2003. These were the most recent three years of data at the time EPA designated 8-hour areas. The York Area was designated a basic 8-hour ozone nonattainment area in a **Federal Register** notice signed on April 15, 2004 and published on April 30, 2004 (69 FR 23857), based on its exceedance of the 8-hour health-based standard for ozone during the years 2001-2003. On April 30, 2004, EPA issued a final rule (69 FR 23951, 23996) to revoke the 1-hour ozone NAAQS in the York Area (as well as most other areas of the country) effective June 15, 2005. *See,* 40 CFR 50.9(b); 69 FR at 23966 (April 30, 2004); and 70 FR 44470 (August 3, 2005). However, 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) (hereafter “ *South Coast* ”). On June 8, 2007, in *South Coast Air Quality Management Dist.* v. *EPA,* Docket No. 04-1201, in response to several petitions for rehearing, the D.C. Circuit clarified that the Phase 1 Rule was vacated only with regard to those parts of the rule that had been successfully challenged. Therefore, the Phase 1 Rule provisions related to classifications for areas currently classified under subpart 2 of Title I, part D of the CAA as 8-hour nonattainment areas, the 8-hour attainment dates and the timing for emissions reductions needed for attainment of the 8-hour ozone NAAQS remain effective. The June 8 decision left intact the Court's rejection of EPA's reasons for implementing the 8-hour standard in certain nonattainment areas under Subpart 1 in lieu of subpart 2. By limiting the vacatur, the Court let stand EPA's revocation of the 1-hour standard and those anti-backsliding provisions of the Phase 1 Rule that had not been successfully challenged. The June 8 decision reaffirmed the December 22, 2006 decision that EPA had improperly failed to retain 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 CAA, 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. In addition, the June 8 decision clarified that the Court's reference to conformity requirements was limited to requiring the continued use of 1-hour motor vehicle emissions budgets until 8-hour budgets were available for 8-hour conformity determinations, which is already required under EPA's conformity regulation. The Court thus clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. The Court upheld EPA's authority to revoke the 1-hour standard provided there were adequate anti-backsliding provisions. Elsewhere in this document, mainly in section VI. B. “The York Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) of the CAA,” EPA discusses its rationale why the decision in *South Coast* is not an impediment to redesignating the York Area to attainment of the 8-hour ozone NAAQS. The CAA, Title I, Part D, contains two sets of provisions—subpart 1 and subpart 2—that address planning and control requirements for nonattainment areas. Subpart 1 (which EPA refers to as “basic” nonattainment) contains general, less prescriptive requirements for nonattainment areas for any pollutant—including ozone—governed by a NAAQS. Subpart 2 (which EPA refers to as “classified” nonattainment) provides more specific requirements for ozone nonattainment areas. In 2004, the York Area was classified a basic 8-hour ozone nonattainment area based on air quality monitoring data from 2001-2003. Therefore, the York Area is subject to the requirements of subpart 1 of Part D. Under 40 CFR part 50, the 8-hour ozone standard is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). *See* 69 FR 23857 (April 30, 2004) for further information. Ambient air quality monitoring data for the 3-year period must meet data completeness requirements. The data completeness requirements are met when the average percent of days with valid ambient monitoring data is greater than 90 percent, and no single year has less than 75 percent data completeness as determined in Appendix I of 40 CFR part 50. The ozone monitoring data indicates that the York Area has a design value of 0.081 ppm for the 3-year period of 2004-2006, using complete, quality-assured data. Therefore, the ambient ozone data for the York Area indicates no violations of the 8-hour ozone standard. B. The York Area The York Area consists of York and Adams Counties, Pennsylvania. Prior to its designation as an 8-hour ozone nonattainment area, the York Area was a marginal 1-hour ozone nonattainment area, and therefore, was subject to requirements for marginal nonattainment areas pursuant to section 182(a) of the CAA. *See* 56 FR 56694 (November 6, 1991). EPA determined that the York Area has attained the 1-hour ozone NAAQS by the November 15, 1993 attainment date (60 FR 3349, January 17, 1995). On June 14, 2007, PADEP requested that the York Area be redesignated to attainment for the 8-hour ozone standard. The redesignation request included three years of complete, quality-assured data for the period of 2004-2006, indicating that the 8-hour NAAQS for ozone had been achieved in the York Area. The data satisfies the CAA requirements that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration (commonly referred to as the area's design value), must be less than or equal to 0.08 ppm (i.e., 0.084 ppm when rounding is considered). Under the CAA, a nonattainment area may be redesignated if sufficient complete, quality-assured data is available to determine that the area has attained the standard and the area meets the other CAA redesignation requirements set forth in section 107(d)(3)(E). 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, providing that:
(1)EPA determines that the area has attained the applicable NAAQS;
(2)EPA has fully approved the applicable implementation plan for the area under section 110(k);
(3)EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollutant control regulations and other permanent and enforceable reductions;
(4)EPA has fully approved a maintenance plan for the area as meeting the requirements of section 175A; and
(5)The State containing such area has met all requirements applicable to the area under section 110 and Part D. EPA provided guidance on 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). EPA has provided further guidance on processing redesignation requests in the following documents: • “Ozone and Carbon Monoxide Design Value Calculations,” Memorandum from Bill Laxton, June 18, 1990; • “Maintenance Plans for Redesignation of Ozone and Carbon Monoxide Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, April 30, 1992; • “Contingency Measures for Ozone and Carbon Monoxide
(CO)Redesignations,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, June 1, 1992; • “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992; • “State Implementation Plan
(SIP)Actions Submitted in Response to Clean Air Act
(Act)Deadlines,” Memorandum from John Calcagni, Director, Air Quality Management Division, October 28, 1992; • “Technical Support Documents
(TSDs)for Redesignation Ozone and Carbon Monoxide
(CO)Nonattainment Areas,” Memorandum from G.T. Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 1993; • “State Implementation Plan
(SIP)Requirements for Areas Submitting Requests for Redesignation to Attainment of the Ozone and Carbon Monoxide
(CO)National Ambient Air Quality Standards (NAAQS) on or after November 15, 1992,” Memorandum from Michael H. Shapiro, Acting Assistant Administrator for Air and Radiation, September 17, 1993; • Memorandum from D. Kent Berry, Acting Director, Air Quality Management Division, to Air Division Directors, Regions 1-10, “Use of Actual Emissions in Maintenance Demonstrations for Ozone and CO Nonattainment Areas,” dated November 30, 1993; • “Part D New Source Review (part D NSR) Requirements for Areas Requesting Redesignation to Attainment,” Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, October 14, 1994; and • “Reasonable Further Progress, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,” Memorandum from John S. Seitz, Director, Office of Air Quality Planning and Standards, May 10, 1995. IV. Why Is EPA Taking These Actions? On June 14, 2007, PADEP requested redesignation of the York Area to attainment for the 8-hour ozone standard. On June 14, 2007, PADEP submitted a maintenance plan for the York Area as a SIP revision, to ensure continued attainment of the 8-hour ozone NAAQS over the next 11 years, until 2018. PADEP also submitted a 2002 base year inventory concurrently with its maintenance plan as a SIP revision. EPA has determined that the York Area has attained the 8-hour ozone standard and has met the requirements for redesignation set forth in section 107(d)(3)(E). V. What Would Be the Effect of These Actions? Approval of the redesignation request would change the official designation of the York Area from nonattainment to attainment for the 8-hour ozone NAAQS found at 40 CFR part 81. It would also incorporate into the Pennsylvania SIP a 2002 base year inventory and a maintenance plan ensuring continued attainment of the 8-hour ozone NAAQS in the York Area for the next 11 years, until 2018. The maintenance plan includes contingency measures to remedy any future violations of the 8-hour NAAQS (should they occur), and identifies the NO <sup>X</sup> and VOC MVEBs for transportation conformity purposes for the years 2009 and 2018. These MVEBs are displayed in the following table: Table 1.—Motor Vehicle Emissions Budgets in Tons per Summer Day
(tpsd)Year VOC NO <sup>X</sup> 2009 15.9 22.8 2018 9.0 10.0 VI. What Is EPA's Analysis of the Commonwealth's Request? EPA is proposing to determine that the York Area has attained the 8-hour ozone standard and that all other redesignation criteria have been met. The following is a description of how the PADEP's June 14, 2007 submittal satisfies the requirements of section 107(d)(3)(E) of the CAA. A. The York Area Has Attained the Ozone NAAQS EPA is proposing to determine that the York Area has attained the 8-hour ozone NAAQS. For ozone, an area may be considered to be attaining the 8-hour ozone NAAQS if there are no violations, as determined in accordance with 40 CFR 50.10 and Appendix I of part 50, based on three complete, consecutive calendar years of quality-assured air quality monitoring data. To attain this standard, the design value, which is the 3-year average of the fourth-highest daily maximum 8-hour average ozone concentrations, measured at each monitor within the area over each year, must not exceed the ozone standard of 0.08 ppm. Based on the rounding convention described in 40 CFR part 50, Appendix I, the standard is attained if the design value is 0.084 ppm or below. The data must be collected and quality-assured in accordance with 40 CFR part 58, and recorded in the Air Quality System (AQS). The monitors generally should have remained at the same location for the duration of the monitoring period required for demonstrating attainment. In the York Area, there are two ozone monitors, located in York County
(York)and another in Adams County (Biglerville) that measures air quality with respect to ozone. As part of its redesignation request, Pennsylvania referenced ozone monitoring data for the years 2004-2006 for the York Area. This data has been quality assured and is recorded in the AQS. PADEP uses the AQS as the permanent database to maintain its data and quality assures the data transfers and content for accuracy. The fourth-highest 8-hour daily maximum concentrations, along with the three-year average are summarized in Table 2. Table 2.—York Area Fourth Highest 8-Hour Average Values Monitor/County/AIRS ID Annual 4th highest reading
(ppm)2004 2005 2006 York County Monitor/AQS ID 42-133-0008 .077 .089 .077 Adams County Monitor/AQS ID 42-001-0002 .072 .080 .074 The average for the 3-year period 2004-2006 is 0.081 ppm (based on York Monitor/AQS 42-133-0008). The air quality data for 2004-2006 show that the York Area has attained the standard with a design value of 0.081 ppm. The data collected at the York Area monitor satisfies the CAA requirement that the 3-year average of the annual fourth-highest daily maximum 8-hour average ozone concentration is less than or equal to 0.08 ppm. PADEP's request for redesignation for the York Area indicates that the data is complete and was quality assured in accordance with 40 CFR part 58. In addition, as discussed below with respect to the maintenance plan, PADEP has committed to continue monitoring in accordance with 40 CFR part 58. In summary, EPA has determined that the data submitted by Pennsylvania and data taken from AQS indicate that the York Area has attained the 8-hour ozone NAAQS. B. The York Area Has Met All Applicable Requirements Under Section 110 and Part D of the CAA and Has a Fully Approved SIP Under Section 110(k) of the CAA EPA has determined that the York Area has met all SIP requirements applicable for purposes of this redesignation under section 110 of the CAA (General SIP Requirements) and that it meets all applicable SIP requirements under Part D of Title I of the CAA, in accordance with section 107(d)(3)(E)(v). In addition, EPA has determined that the SIP is fully approved with respect to all requirements applicable for purposes of redesignation in accordance with section 107(d)(3)(E)(ii) of the CAA. In making these proposed determinations, EPA ascertained which requirements are applicable to the York 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 applicable requirements. The September 4, 1992 Calcagni memorandum (“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) with respect to the timing of applicable requirements. Under this interpretation, to qualify for redesignation, States requesting redesignation to attainment must meet only the relevant CAA requirements that came due prior to the submittal of a complete redesignation request. *See also,* Michael Shapiro memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of Detroit-Ann Arbor). Applicable requirements of the CAA that come due subsequent to the area's submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not required as a prerequisite to redesignation. Section 175A(c) of the CAA. *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004). *See also,* 68 FR at 25424, 25427 (May 12, 2003) (redesignation of St. Louis). This section sets forth EPA's views on the potential effect of the Court's rulings on this proposed redesignation action. For the reasons set forth below, EPA does not believe that the Court's rulings alter any requirements relevant to this redesignation action so as to preclude redesignation, and do not prevent EPA from proposing or ultimately finalizing this redesignation. EPA believes that the Court's December 22, 2006 and June 8, 2007 decisions impose no impediment to moving forward with redesignation of this area to attainment, because even in light of the Court's decisions, redesignation is appropriate under the relevant redesignation provisions of the CAA and longstanding policies regarding redesignation requests. 1. Section 110 General SIP Requirements Section 110(a)(2) of Title I of the CAA delineates the general requirements for a SIP, which include enforceable emissions 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 limitations. The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to the following: • Submittal of a SIP that has been adopted by the State after reasonable public notice and hearing; • Provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; • Implementation of a source permit program; provisions for the implementation of part C requirements (Prevention of Significant Deterioration (PSD)); • Provisions for the implementation of part D requirements for NSR permit programs; • Provisions for air pollution modeling; and • Provisions for public and local agency participation in planning and emission control rule development. Section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a State from significantly contributing to air quality problems in another State. To implement this provision, EPA has required certain states to establish programs to address transport of air pollutants in accordance with the NO <sup>X</sup> SIP Call, October 27, 1998 (63 FR 57356), amendments to the NO <sup>X</sup> SIP Call, May 14, 1999 (64 FR 26298) and March 2, 2000 (65 FR 11222), and the Clean Air Interstate Rule (CAIR), May 12, 2005 (70 FR 25162). However, the section 110(a)(2)(D) requirements for a State are not linked with a particular nonattainment area's designation and classification in that State. EPA believes that the requirements linked with a particular nonattainment area's designation and classifications are the relevant measures to evaluate in reviewing a redesignation request. The transport SIP submittal requirements, where applicable, continue to apply to a state regardless of the designation of any one particular area in the State. Thus, we do believe that these requirements are applicable requirements for purposes of redesignation. In addition, EPA believes that the other section 110 elements not connected with nonattainment plan submissions and not linked with an area's attainment status are not applicable requirements for purposes of redesignation. The York Area will still be subject to these requirements after it is redesignated. The section 110 and Part D requirements, which are linked with a particular area's designation and classification, are the relevant measures to evaluate in reviewing a redesignation request. This policy is consistent with EPA's existing policy on applicability of conformity (i.e., for redesignations) and oxygenated fuels requirement. *See,* Reading, Pennsylvania, proposed and final rulemakings (61 FR 53174, October 10, 1996), (62 FR 24826, May 7, 1997); Cleveland-Akron-Lorain, Ohio final rulemaking (61 FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 62748, December 7, 1995). *See also,* the discussion on this issue in the Cincinnati redesignation (65 FR at 37890, June 19, 2000), and in the Pittsburgh redesignation (66 FR at 53099, October 19, 2001). Similarly, with respect to the NO <sup>X</sup> SIP Call rules, EPA noted in its Phase 1 Final Rule to Implement the 8-hour Ozone NAAQS, that the NO <sup>X</sup> SIP Call rules are not “an ‘applicable requirement' for purposes of section 110(1) because the NO <sup>X</sup> rules apply regardless of an area's attainment or nonattainment status for the 8-hour (or the 1-hour) NAAQS.” 69 FR 23951, 23983 (April 30, 2004). EPA believes that section 110 elements not linked to the area's nonattainment status are not applicable for purposes of redesignation. As we explain later in this notice, no Part D requirements applicable for purposes of redesignation under the 8-hour standard became due for the York Area prior to the submission of the redesignation request. Because the Pennsylvania SIP satisfies all of the applicable general SIP elements and requirements set forth in section 100(a)(2), EPA concludes that Pennsylvania has satisfied the criterion of section 107(d)(3)(e) regarding section 110 of the CAA. 2. Part D Nonattainment Requirements Under the 8-Hour Standard Pursuant to an April 30, 2004, final rule (69 FR 23951), the York Area was designated a basic nonattainment area under subpart 1 for the 8-hour ozone standard. Sections 172-176 of the CAA, found in subpart 1 of Part D, set forth the basic nonattainment requirements applicable to all nonattainment areas. Section 182 of the CAA, found in subpart 2 of Part D, establishes additional specific requirements depending on the area's nonattainment classification. 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 of the area cannot now go forward. This belief is based upon:
(1)EPA's longstanding policy of evaluating redesignation requests in accordance with the requirements due at the time the request is submitted; and
(2)consideration of the inequity of applying retroactively any requirements that might in the future be applied. At the time the redesignation request was submitted, the York Area was classified under subpart 1 and was obligated to meet subpart 1 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 a complete redesignation request. *See,* September 4, 1992 Calcagni memorandum (“Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division). *See also,* Michael Shapiro Memorandum, September 17, 1993, and 60 FR 12459, 12465-66 (March 7, 1995) (Redesignation of Detroit-Ann Arbor); *Sierra Club* v. *EPA,* 375 F.3d 537 (7th Cir. 2004), which upheld this interpretation; 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 determination would have resulted in the imposition of additional requirements on that 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. With respect to 8-hour subpart 2 requirements, if the York Area initially had been classified under subpart 2, the first two Part D subpart 2 requirements applicable to the York Area under section 182(a) of the CAA would be a base year inventory requirement pursuant to section 182(a)(1) of the CAA, and the emissions statement requirement pursuant to section 182(a)(3)(B). As stated previously, these requirements are not due for purposes of redesignation of the York Area, but nevertheless, Pennsylvania already has in its approved SIP, an emissions statement rule for the 1-hour standard that covers all portions of the designated 8-hour nonattainment area, and that satisfies the emissions statement requirement for the 8-hour standard. *See,* 25 Pa. Code 135.21(a)(1) codified at 40 CFR 52.2020; 60 FR 2881, January 12, 1995. With respect to the base year inventory requirement, in this notice of proposed rulemaking, EPA is proposing to approve the 2002 base year inventory for the York Area, which was submitted on June 14, 2007, concurrently with its maintenance plan, into the Pennsylvania SIP. EPA is proposing to approve the 2002 base year inventory as fulfilling the requirements, if necessary, of both sections 182(a)(1) and 172(c)(3) of the CAA. A detailed evaluation of Pennsylvania's 2002 base year inventory for the York Area can be found in a Technical Support Document
(TSD)prepared by EPA for this rulemaking. EPA has determined that the emission inventory and the emissions statement for the York Area have been satisfied. In addition to the fact that Part D requirements applicable for purposes of redesignation did not become due prior to submission of the redesignation request, EPA believes that the general conformity and NSR requirements do not require approval prior to redesignation. With respect to section 176, Conformity Requirements, section 176(c) of the CAA requires states to establish criteria and procedures to ensure that Federally-supported or funded projects conform to the air quality planning goals in the applicable SIP. The requirement to determine conformity applies to transportation plans, programs, and projects 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 revisions must be consistent with Federal conformity regulations relating to consultation, enforcement and enforceability that the CAA required the EPA to promulgate. EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of evaluating the redesignation request under section 107(d) since State conformity rules are still required after redesignation and Federal conformity rules apply where State rules have not been approved. *See, Wall* v. *EPA,* 265 F. 3d 426, 438-440 (6th Cir. 2001), upholding this interpretation. *See also,* 60 FR 62748 (December 7, 1995). In the case of the York Area, EPA has also determined that before being redesignated, the York Area need not comply with the requirement that an NSR program be approved prior to redesignation. EPA has also determined that areas being redesignated need not comply with the requirement that an NSR program be approved prior to redesignation, provided that the area demonstrates maintenance of the standard without Part D NSR in effect. The rationale for this position is described in a memorandum from Mary Nichols, Assistant Administrator for Air and Radiation, dated October 14, 1994, entitled “Part D NSR Requirements of Areas Requesting Redesignation to Attainment.” Normally, a State's Prevention of Significant Deterioration
(PSD)program will become effective in the area immediately upon redesignation to attainment. See the more detailed explanations in the following redesignation rulemakings: Detroit, MI (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorrain, OH (61 FR 20458, 20469-70, May 7, 1996); Louisville, KY (66 FR 53665, 53669, October 23, 2001); Grand Rapids, MI (61 FR 31831, 31836-31837, June 21, 1996). In the case of the York Area, the Chapter 127 Part D NSR regulations in the Pennsylvania SIP (codified at 40 CFR 52.2020(c)(1)) explicitly apply the requirements for NSR in section 184 of the CAA to ozone attainment areas within the ozone transport region (OTR). The OTR NSR requirements are more stringent than that required for a marginal or basic ozone nonattainment area. On October 19, 2001 (66 FR 53094), EPA fully approved Pennsylvania's NSR SIP revision consisting of Pennsylvania's Chapter 127 Part D NSR regulations that cover the York Area. EPA has also interpreted the section 184 OTR requirements, including the NSR program, as not being applicable for purposes of redesignation. The rationale for this is based on two considerations. First, the requirement to submit SIP revisions for the section 184 requirements continues to apply to areas in the OTR after redesignation to attainment. Therefore, the State remains obligated to have NSR, as well as reasonably available control technology (RACT), and Vehicle Inspection and Maintenance (I/M) programs even after redesignation. Second, the section 184 control measures are region-wide requirements and do not apply to the York Area by virtue of the area's designation and classification. *See,* 61 FR 53174, 53175-53176 (October 10, 1996) and 62 FR 24826, 24830-32 (May 7, 1997). 3. Part D Nonattainment Area Requirements Under the 1-Hour Standard In its June 8, 2007 decision the Court limited its vacatur so as to uphold those provisions of the anti-backsliding requirements that were not successfully challenged. Therefore the Area must meet the federal anti-backsliding requirements, see 40 CFR 51.900, *et seq.* ; 70 FR 30592, 30604 (May 26, 2005), which apply by virtue of the area's classification for the 1-hour ozone NAAQS. As set forth in more detail below, the area must also address four additional anti-backsliding provisions identified by the Court in its decisions. The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-hour ozone NAAQS requirements that continue to apply after revocation of the 1-hour ozone NAAQS to former 1-hour ozone nonattainment areas. Section 51.905(a)(1)(i) provides that: “The area remains subject to the obligation to adopt and implement the applicable requirements as defined in section 51.900(f), except as provided in paragraph (a)(1)(iii) of paragraph
(b)of this section.” Section 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005), states that: “Applicable requirements means for an area the following requirements to the extent such requirements applied to the area for the area's classification under section 181(a)(1) of the CAA for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS.”
(1)RACT.
(2)I/M.
(3)Major source applicability cut-offs for purposes of RACT.
(4)Rate of Progress
(ROP)reductions.
(5)Stage II vapor recovery.
(6)Clean fuels fleet program under section 183(c)(4) of the CAA.
(7)Clean fuels for boilers under section 182(e)(3) of the CAA.
(8)Transportation Control Measures
(TCMs)during heavy traffic hours as required by section 182(e)(4) of the CAA.
(9)Enhanced (ambient) monitoring under section 182(c)(1) of the CAA.
(10)Transportation control measures
(TCMs)under section 182(c)(5) of the CAA.
(11)Vehicle miles traveled
(VMT)provisions of section 182(d)(1) of the CAA.
(12)NO <sup>X</sup> requirements under section 182(f) of the CAA.
(13)Attainment demonstration or alternative as provided under section 51.905(a)(1)(ii).” Pursuant to 40 CFR 51.905(c), the York Area is subject to the obligations set forth in 51.905(a) and 51.900(f). Prior to its designation as an 8-hour ozone nonattainment area, the York Area was designated a marginal nonattainment area for the 1-hour standard. With respect to the 1-hour standard, the applicable requirements under the anti-backsliding provisions at 40 CFR 51.905(a)(1) for the York Area are limited to the RACT and I/M programs specified in section 182(a) of the CAA and are discussed in the following paragraphs: Section 182(a)(2)(A) required SIP revisions to correct or amend RACT for sources in marginal areas, such as the York Area, that were subject to control technique guidelines
(CTGs)issued before November 15, 1990 pursuant to CAA section 108. On December 22, 1994, EPA fully approved into the Pennsylvania SIP all corrections required under section 182(a)(2)(A) of the CAA (59 FR 65971, December 22, 1994). EPA believes that this requirement applies only to marginal and higher classified areas under the 1-hour NAAQS pursuant to the 1990 amendments to the CAA; therefore, this is a one-time requirement. After an area has fulfilled the section 182(a)(2)(A) requirement for the 1-hour NAAQS, there is no requirement under the 8-hour NAAQS. Section 182(a)(2)(B) of the CAA relates to the savings clause for certain I/M programs. It requires marginal areas to adopt vehicle I/M programs. This provision was not applicable to the York Area because this area did not have nor was required to have an I/M program before November 15, 1990. In addition the Court held that EPA should have retained four additional measures in its anti-backsliding provisions:
(1)Nonattainment area NSR;
(2)Section 185 penalty fees;
(3)contingency measures under section 172(c)(9) or 182(c)(9) of the CAA; and
(4)1-hour motor vehicle emissions budgets that were yet not replaced by 8-hour emissions budgets. These requirements are addressed below: With respect to NSR, EPA has determined that areas being redesignated need not have an approved nonattainment New Source Review program, for the same reasons discussed previously with respect to the applicable Part D requirement for the 8-hour standard. The section 185 penalty fee requirement applies only to severe and extreme nonattainment areas, and was never applicable in the York 1-hour marginal nonattainment area. With respect to the requirement for submission of contingency measures for the 1-hour standard, section 182(a) does not require contingency measures for marginal areas. The conformity portion of the Court's ruling does not impact the redesignation request for the York Area except to the extent that the Court in its June 8 decision clarified that for those areas with 1-hour MVEBs, anti-backsliding requires that those 1-hour budgets must be used for 8-hour conformity determinations until replaced by 8-hour budgets. There are no applicable 1-hour MVEBs for the York Area. (As discussed elsewhere in this document, EPA is proposing to approve 8-hour MVEBs for the York Area.) To meet this requirement, conformity determinations in such areas must comply with the applicable requirements of EPA's conformity regulations at 40 CFR Part 93. The court clarified that 1-hour conformity determinations are not required for anti-backsliding purposes. Thus EPA has concluded that the York Area has met all requirements applicable for redesignation under the 1-hour standard. 4. Transport Region Requirements All areas in the Ozone Transport Region (OTR), both attainment and nonattainment, are subject to additional control requirements under section 184 for the purpose of reducing interstate transport of emissions that may contribute to downwind ozone nonattainment. The section 184 requirements include RACT, NSR, enhanced vehicle inspection and maintenance (I/M), and Stage II vapor recovery or a comparable measure. In the case of the York Area, which is located in the OTR, nonattainment NSR will continue to be applicable after redesignation. On October 19, 2001, EPA approved the 1-hour NSR SIP revision for the area. See 66 FR 53094 (October 19, 2001). EPA has also interpreted the section 184 OTR requirements, including NSR, as not being applicable for purposes of redesignation. Reading, PA Redesignation, 61 FR 53174, (October 10, 1996), 62 FR 24826 (May 7, 1997). The rationale for this is based on two considerations. First, the requirement to submit SIP revisions for the section 184 requirements continues to apply to areas in the OTR after redesignation to attainment. Therefore, the State remains obligated to have NSR, as well as RACT, and I/M even after redesignation. Second, the section 184 control measures are region-wide requirements and do not apply to the area by virtue of the area's nonattainment designation and classification, and thus are properly considered not relevant to an action changing an area's designation. *See* 61 FR 53174, 53175-53176 (October 10, 1996) and 62 FR 24826, 24830-24832 (May 7, 1997). 5. York Area Has a Fully Approved SIP for Purposes of Redesignation EPA has fully approved the Pennsylvania SIP for the purposes of this redesignation. EPA may rely on prior SIP approvals in approving a redesignation request. Calcagni Memo, p. 3; *Southwestern Pennsylvania Growth Alliance* v. *Browner* , 144 F. 3d 984, 989-90 (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 also* , 68 FR at 25425 (May 12, 2003) and citations therein. C. The Air Quality Improvement in the York Area Is Due to Permanent and Enforceable Reductions in Emissions Resulting From Implementation of the SIP and Applicable Federal Air Pollution Control Regulations and Other Permanent and Enforceable Reductions EPA believes that the Commonwealth has demonstrated that the observed air quality improvement in the York Area is due to permanent and enforceable reductions in emissions resulting from implementation of the SIP, Federal measures, and other State-adopted measures. Emissions reductions attributable to these rules are shown in Table 3. Table 3.—Total VOC and NO <sup>X</sup> Emissions for 2002 and 2004 in tons per summer day
(tpsd)Year Point Area Nonroad Mobile Total Volatile Organic Compounds
(VOC)2002 8.5 27.1 25.3 10.4 71.3 2004 5.3 26.8 21.3 10.1 63.5 Diff. (02-04) −3.2 −0.3 −4.0 −0.3 −7.8 Nitrogen Oxides (NO X ) 2002 70.2 2.9 36.6 14.3 124.0 2004 75.3 3.0 31.9 13.7 123.9 Diff. (02-04) 5.1 0.1 −4.7 −0.6 −0.1 Between 2002 and 2004, VOC emissions decreased by 7.8 tpsd, and NO <sup>X</sup> emissions decreased by 0.1 tpsd. These reductions, and anticipated future reductions, are due to the following permanent and enforceable measures. 1. Stationary Point Sources Federal NO <sup>X</sup> SIP Call (66 FR 43795, August 21, 2001). 2. Stationary Area Sources Solvent Cleaning (68 FR 2206, January 16, 2003). Portable Fuel Containers (69 FR 70893, December 8, 2004). 3. Highway Vehicle Sources Federal Motor Vehicle Control Programs (FMVCP). —Tier 1 (56 FR 25724, June 5, 1991). —Tier 2 (65 FR 6698, February 10, 2000). Heavy-duty Engine and Vehicle Standards (62 FR 54694, October 21, 1997, and 65 FR 59896, October 6, 2000). National Low Emission Vehicle
(NLEV)Program
(PA)(64 FR 72564, December 28, 1999). Vehicle Emission Inspection/Maintenance Program (70 FR 58313, October 6, 2005). 4. Non-Road Sources Non-road Diesel (69 FR 38958, June 29, 2004). EPA believes that permanent and enforceable emissions reductions are the cause of the long-term improvement in ozone levels and are the cause of the York Area achieving attainment of the 8-hour ozone standard. D. The York Area Has a Fully Approvable Maintenance Plan Pursuant to Section 175A of the CAA In conjunction with its request to redesignate the York Area to attainment status, Pennsylvania submitted a SIP revision to provide for maintenance of the 8-hour ozone NAAQS in the York Area for at least 11 years after redesignation. The Commonwealth is requesting that EPA approve this SIP revision as meeting the requirement of CAA 175A. Once approved, the maintenance plan for the 8-hour ozone NAAQS will ensure that the SIP for the York Area meets the requirements of the CAA regarding maintenance of the applicable 8-hour ozone standard. What Is Required in a Maintenance Plan? Section 175 of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. Under section 175A, the plan must demonstrate continued attainment of the applicable NAAQS for at least 10 years after approval of a redesignation of an area to attainment. Eight years after the redesignation, the Commonwealth must submit a revised maintenance plan demonstrating that attainment will continue to be maintained for the 10 years following the initial 10-year 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 8-hour ozone violations. Section 175A of the CAA sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. The Calcagni memo provides additional guidance on the content of a maintenance plan. An ozone maintenance plan should address the following provisions:
(a)an attainment emissions inventory;
(b)a maintenance demonstration;
(c)a monitoring network;
(d)verification of continued attainment; and
(e)a contingency plan. Analysis of the York Area Maintenance Plan
(a)Attainment inventory—An attainment inventory includes the emissions during the time period associated with the monitoring data showing attainment. PADEP determined that the appropriate attainment inventory year is 2004. That year establishes a reasonable year within the three-year block of 2004-2006 as a baseline and accounts for reductions attributable to implementation of the CAA requirements to date. The 2004 inventory is consistent with EPA guidance and is based on actual “typical summer day” emissions of VOC and NO <sup>X</sup> during 2004 and consists of a list of sources and their associated emissions. The 2002 and 2004 point source data was compiled from actual sources. Pennsylvania requires owners and operators of larger facilities to submit annual production figures and emission calculations each year. Throughput data are multiplied by emission factors from Factor Information Retrieval
(FIRE)Data Systems and EPA's publication series AP-42, and are based on Source Classification Codes (SCC). The 2002 area source data was compiled using county-level activity data, from census numbers, from county numbers, etc. The 2004 area source data was projected from the 2002 inventory using temporal allocations provided by the Mid-Atlantic Regional Air Management Association (MARAMA). The on-road mobile source inventories for 2002 and 2004 were compiled using MOBILE6.2 and Pennsylvania Department of Transportation (PENNDOT) estimates for VMT. The PADEP has provided detailed data summaries to document the calculations of mobile on-road VOC and NO <sup>X</sup> emissions for 2002, as well as for the projection years of 2004, 2009, and 2018 (shown in Tables 5 and 6 below). The 2002 and 2004 emissions for the majority of non-road emission source categories were estimated using the EPA NONROAD 2005 model. The NONROAD model calculates emissions for diesel, gasoline, liquefied petroleum gasoline, and compressed natural gas-fueled non-road equipment types and includes growth factors. The NONROAD model does not estimate emissions from locomotives or aircraft. For 2002 and 2004 locomotive emissions, the PADEP projected emissions from a 1999 survey using national fuel consumption information and EPA emission and conversion factors. There are no commercial aircraft operations in York and Adams Counties. For 2002 and 2004 aircraft emissions, PADEP estimated emissions using small airport operations statistics from *http://www.airnav.com* , and emission factors and operational characteristics in the EPA-approved model, Emissions and Dispersion Modeling System (EDMS). More detailed information on the compilation of the 2002, 2004, 2009, and 2018 inventories can found in the Technical Appendices, which are part of the June 14, 2007 state submittal.
(b)Maintenance Demonstration—On June 14, 2007, the PADEP submitted a maintenance plan as required by section 175A of the CAA. The York Area maintenance plan shows maintenance of the 8-hour ozone NAAQS by demonstrating that current and future emissions of VOC and NO <sup>X</sup> remain at or below the attainment year 2004 emissions levels throughout the York Area through the year 2018. A maintenance demonstration need not be based on modeling. *See* , *Wall* v. *EPA* , *supra* ; *Sierra Club* v. *EPA* , *supra* . *See also* , 66 FR at 53099-53100; 68 FR at 25430-25432. Tables 4 and 5 specify the VOC and NO <sup>X</sup> emissions for the York Area for 2004, 2009, and 2018. The PADEP chose 2009 as an interim year in the maintenance demonstration period to demonstrate that the VOC and NO <sup>X</sup> emissions are not projected to increase above the 2004 attainment level during the time of the maintenance period. Table 4.—Total VOC Emissions for 2004-2018
(tpsd)Source category 2004 VOC emissions 2009 VOC emissions 2018 VOC emissions Point* 5.3 8.2 10.1 Area 26.8 26.2 28.9 Mobile** 21.3 15.9 9.0 Nonroad 10.1 8.4 6.9 Total 63.5 58.7 54.9 *The stationary point source emissions shown here do not include available banked emission credits as indicated in Appendix A-4 submitted with the maintenance plan. **Includes safety margin identified in the motor vehicle emission budgets for transportation conformity. Table 5.—Total NO <sup>X</sup> Emissions for 2004-2018
(tpsd)Source category 2004 NO <sup>X</sup> emissions 2009 NO <sup>X</sup> emissions 2018 NO <sup>X</sup> emissions Point* 75.3 74.1 79.7 Area 3.0 3.1 3.3 Mobile** 31.9 22.8 10.0 Non-road 13.7 11.2 6.5 Total 123.9 111.2 99.5 *The stationary point source emissions shown here do not include available banked emission credits as indicated in Appendix A-4. **Includes safety margin identified in the motor vehicle emission budgets for transportation conformity. Additionally, the following programs are either effective or due to become effective and will further contribute to the maintenance demonstration of the 8-hour ozone NAAQS: • The Clean Air Interstate Rule
(CAIR)(71 FR 25328, April 28, 2006). • The Federal NO <sup>X</sup> SIP Call (66 FR 43795, August 21, 2001). • Area VOC regulations concerning portable fuel containers (69 FR 70893, December 8, 2004), consumer products (69 FR 70895, December 8, 2004), and architectural and industrial maintenance coatings
(AIM)(69 FR 68080, November 23, 2004). • Federal Motor Vehicle Control Programs (light-duty) (Tier 1, Tier 2; 56 FR 25724, June 5, 1991; 65 FR 6698, February 10, 2000). • Vehicle emission/inspection/maintenance program (70 FR 58313, October 6, 2005). • Heavy duty diesel on-road (2004/2007) and low sulfur on-road
(2006)(66 FR 5002, January 18, 2001). • Non-road emission standards
(2008)and off-road diesel fuel (2007/2010) (69 FR 38958 June 29, 2004). • NLEV/PA Clean Vehicle Program (54 FR 72564, December 28, 1999)—Pennsylvania will implement this program in car model year 2008. • Pennsylvania Heavy-Duty Diesel Emissions Control Program (May 10, 2002). Based on the comparison of the projected emissions and the attainment year emissions along with the additional measures, EPA concludes that PADEP has successfully demonstrated that the 8-hour ozone standard should be maintained in the York Area.
(c)Monitoring Network—There are currently two monitors measuring ozone in the York Area. PADEP will continue to operate its current air quality monitor (located in York and Adams Counties), in accordance with 40 CFR part 58.
(d)Verification of Continued Attainment—In addition to maintaining the key elements of its regulatory program, the Commonwealth will track the attainment status of the ozone NAAQS in the York Area by reviewing air quality and emissions data during the maintenance period. The Commonwealth will perform an annual evaluation of Vehicle Miles Traveled
(VMT)data and emissions reported from stationary sources, and compare them to the assumptions about these factors used in the maintenance plan. The Commonwealth will also evaluate the periodic (every three years) emission inventories prepared under EPA's Consolidated Emission Reporting Regulation (40 CFR part 51, subpart A) to see if they exceed the attainment year inventory
(2004)by more than 10 percent. PADEP will also continue to operate the existing ozone monitoring station in the York Area pursuant to 40 CFR part 58 throughout the maintenance period and submit quality-assured ozone data to EPA through the AQS system. Section 175A(b) of the CAA states that eight years following the redesignation of the York Area, PADEP will be required to submit a second maintenance plan that will ensure attainment through 2028. PADEP has made that commitment to meet the requirement of section 175A(b).
(e)The Maintenance Plan's Contingency Measures—The contingency plan provisions are designed to promptly correct a violation of the NAAQS that occurs after redesignation. Section 175A of the CAA requires that a maintenance plan include such contingency measures as EPA deems necessary to ensure that the State will promptly correct a violation of the NAAQS that occurs after redesignation. The maintenance plan should identify the events that would “trigger” the adoption and implementation of a contingency measure(s), the contingency measure(s) that would be adopted and implemented, and the schedule indicating the timeframe by which the state would adopt and implement the measure(s). The ability of the York Area to stay in compliance with the 8-hour ozone standard after redesignation depends upon VOC and NO <sup>X</sup> emissions in the area remaining at or below 2004 levels. The Commonwealth's maintenance plan projects VOC and NO <sup>X</sup> emissions to decrease and stay below 2004 levels through the year 2018. The Commonwealth's maintenance plan outlines the procedures for the adoption and implementation of contingency measures to further reduce emissions should a violation occur. Contingency measures will be considered if for two consecutive years the fourth highest 8-hour ozone concentrations at the York and Adams Counties monitors are above 84 ppb. If this trigger point occurs, the Commonwealth will evaluate whether additional local emission control measures should be implemented in order to prevent a violation of the air quality standard. PADEP will also analyze the conditions leading to the excessive ozone levels and evaluate which measures might be most effective in correcting the excessive ozone levels. PADEP will also analyze the potential emissions effect of Federal, state, and local measures that have been adopted but not yet implemented at the time the excessive ozone levels occurred. PADEP will then begin the process of implementing any selected measures. Contingency measures will also be considered in the event that a violation of the 8-hour ozone standard occurs at the York and Adams Counties, Pennsylvania monitors. In the event of a violation of the 8-hour ozone standard, PADEP will adopt additional emissions reduction measures as expeditiously as practicable in accordance with the implementation schedule listed later in this notice and the Pennsylvania Air Pollution Control Act in order to return the area to attainment with the standard. Contingency measures to be considered for the York Area will include, but not be limited to the following: *Regulatory measures:* —Additional controls on consumer products. —Additional controls on portable fuel containers. *Non-Regulatory measures:* —Voluntary diesel engine “chip reflash” (installation software to correct the defeat device option on certain heavy-duty diesel engines). —Diesel retrofit, including replacement, repowering or alternative fuel use, for public or private local on-road or off-road fleets. —Idling reduction technology for Class 2 yard locomotives. —Idling reduction technologies or strategies for truck stops, warehouses and other freight-handling facilities. —Accelerated turnover of lawn and garden equipment, especially commercial equipment, including promotion of electric equipment. —Additional promotion of alternative fuel (e.g., biodiesel) for home heating and agricultural use. The plan lays out a process to have any regulatory contingency measures in effect within 19 months of the trigger. The plan also lays out a process to implement the non-regulatory contingency measures within 12-24 months of the trigger. VII. Are the Motor Vehicle Emissions Budgets Established and Identified in the York Area Maintenance Plan Adequate and Approvable? A. What Are the Motor Vehicle Emissions Budgets? Under the CAA, States are required to submit, at various times, control strategy SIPs and maintenance plans in ozone areas. These control strategy SIPs (i.e., RFP SIPs and attainment demonstration SIPs) and maintenance plans identify and establish MVEBs for certain criteria pollutants and/or their precursors to address pollution from on-road mobile sources. In the maintenance plan, the MVEBs are termed “on-road mobile source emission budgets.” Pursuant to 40 CFR part 93 and § 51.112, MVEBs must be established in an ozone maintenance plan. An MVEB is the portion of the total allowable emissions that is allocated to highway and transit vehicle use and emissions. An MVEB serves as a ceiling on emissions from an area's planned transportation system. The MVEB concept is further explained in the preamble to the November 24, 1993, transportation conformity rule (58 FR 62188). The preamble also describes how to establish and revise the MVEBs in control strategy SIPs and maintenance plans. 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 State's air quality plan that addresses pollution from cars and trucks. “Conformity” to the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of or reasonable progress towards the NAAQS. If a transportation plan does not “conform,” most new projects that would expand the capacity of roadways cannot go forward. Regulations at 40 CFR part 93 set forth EPA policy, criteria, and procedures for demonstrating and ensuring conformity of such transportation activities to a SIP. When reviewing submitted “control strategy” SIPs or maintenance plans containing MVEBs, EPA must affirmatively find the MVEB contained therein “adequate” for use in determining transportation conformity. After EPA affirmatively finds the submitted MVEB is adequate for transportation conformity purposes, that MVEB can be used by state and federal agencies in determining whether proposed transportation projects “conform” to the SIP as required by section 176(c) of the CAA. EPA's substantive criteria for determining “adequacy” of a MVEB are set forth in 40 CFR 93.118(e)(4). EPA's process for determining “adequacy” consists of three basic steps: public notification of a SIP submission, a public comment period, and EPA's adequacy finding. This process for 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” on July 1, 2004 (69 FR 40004). EPA consults this guidance and follows this rulemaking in making its adequacy determinations. The MVEBS for the York Area are listed in Table 1 of this document for 2009 and 2018, and are the projected emissions for the on-road mobile sources plus any portion of the safety margin allocated to the MVEBs (safety margin allocation for 2009 and 2018 only). These emission budgets, when approved by EPA, must be used for transportation conformity determinations. 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. The attainment level of emissions is the level of emissions during one of the years in which the area met the NAAQS. The safety margin is the extra emissions that can be allocated as long as the total attainment level of emissions is maintained. The credit, or a portion thereof, can be allocated to any of the source categories. The following example is for the 2018 safety margin: the York Area first attained the 8-hour ozone NAAQS during the 2002 to 2004 time period. The Commonwealth used 2004 as a year to determine attainment levels of emissions for the York Area. The total emissions from point, area, mobile on-road, and mobile non-road sources in 2004 equaled 63.5 tpd of VOC and 123.9 tpd of NO <sup>X</sup> . PADEP projected emissions out to the year 2018 and projected a total of 54.9 tpd of VOC and 99.5 tpd of NO <sup>X</sup> from all sources in the York Area. The safety margin for the York Area for 2018 is the difference between these amounts, or 8.6 tpd of VOC and 24.4 tpd of NO <sup>X</sup> . The emissions up to the level of the attainment year including the safety margins are projected to maintain the area's air quality consistent with the 8-hour ozone NAAQS. Table 6 shows the safety margins for the 2009 and 2018 years. Table 6.—2009 and 2018 Safety Margins for the York Area Inventory year VOC Emissions
(tpd)NO <sup>X</sup> Emissions
(tpd)2004 Attainment 63.5 123.9 2009 Interim 58.7 111.2 2009 Safety Margin 4.8 12.7 2004 Attainment 63.5 123.9 2018 Final 54.9 99.5 2018 Safety Margin 8.6 24.4 PADEP allocated 0.8 tpd VOC and 1.0 tpd NO <sup>X</sup> to the 2009 interim VOC projected on-road mobile source emissions projection and the 2009 interim NO <sup>X</sup> projected on-road mobile source emissions projection to arrive at the 2009 MVEBs. For the 2018 MVEBs, PADEP allocated 1.1 tpd VOC and 1.0 tpd NO <sup>X</sup> from the 2018 safety margins to arrive at the 2018 MVEBs. Once allocated to the mobile source budgets, these portions of the safety margins are no longer available, and may not be allocated to any other source category. Table 7 shows the final 2009 and 2018 MVEBs for the York Area. Table 7.—2009 and 2018 Final MVEBs for the York Area Inventory Year VOC Emissions
(tpd)NO <sup>X</sup> Emissions
(tpd)2009 Projected On-road Mobile Source Projected Emissions 15.1 21.8 2009 Safety Margin Allocated to MVEBs 0.8 1.0 2009 MVEBs 15.9 22.8 2018 Projected On-road Mobile Source Projected Emissions 7.9 9.0 2018 Safety Margin Allocated to MVEBs 1.1 1.0 2018 MVEBs 9.0 10.0 C. Why Are the MVEBs Approvable? The 2009 and 2018 MVEBs for the York Area are approvable because the MVEBs for NO <sup>X</sup> and VOCs continue to maintain the total emissions at or below the attainment year inventory levels as required by the transportation conformity regulations. D. What Is the Adequacy and Approval Process for the MVEBs in the York Area Maintenance Plan? The MVEBs for the York Area maintenance plan are being posted to EPA's conformity Web site concurrently with this proposal. The public comment period will end at the same time as the public comment period for this proposed rule. In this case, EPA is concurrently processing the action on the maintenance plan and the adequacy process for the MVEBs contained therein. In this proposed rule, EPA is proposing to find the MVEBs adequate and also proposing to approve the MVEBs as part of the maintenance plan. The MVEBs cannot be used for transportation conformity until the maintenance plan and associated MVEBs are approved in a final **Federal Register** notice, or EPA otherwise finds the budgets adequate in a separate action following the comment period. If EPA receives adverse written comments with respect to the proposed approval of the York Area MVEBs, or any other aspect of our proposed approval of this updated maintenance plan, we will respond to the comments on the MVEBs in our final action or proceed with the adequacy process as a separate action. Our action on the York Area MVEBs will also be announced on EPA's conformity Web site: *http://www.epa.gov/otaq/stateresources/transconf/index.htm* (once there, click on “Adequacy Review of SIP Submissions). VIII. Proposed Actions EPA is proposing to determine that the York Area has attained the 8-hour ozone NAAQS. EPA is also proposing to approve the redesignation of the York Area from nonattainment to attainment for the 8-hour ozone NAAQS. EPA has evaluated Pennsylvania's redesignation request and determined that it meets the redesignation criteria set forth in section 107(d)(3)(E) of the CAA. EPA believes that the redesignation request and monitoring data demonstrate that the York Area has attained the 8-hour ozone standard. The final approval of this redesignation request would change the designation of the York Area from nonattainment to attainment for the 8-hour ozone standard. EPA is proposing to approve the maintenance plan for the York Area, submitted on June 14, 2007, as a revision to the Pennsylvania SIP. EPA is proposing to approve the maintenance plan for the York Area because it meets the requirements of section 175A as described previously in this notice. EPA is also proposing to approve the 2002 base-year inventory for the York Area, and the MVEBs submitted by Pennsylvania for the York Area in conjunction with its redesignation request. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action. IX. Statutory and Executive Order Reviews Under Executive Order 12866 (58 FR 51735, October 4, 1993), this proposed action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, 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)). This action merely proposes to approve state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Redesignation of an area to attainment under section 107(d)(3)(e) of the CAA does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. Redesignation of an area to attainment under section 107(d)(3)(E) of the CAA does not impose any new requirements on small entities. Redesignation is an action that affects the status of a geographical area and does not impose any new regulatory requirements on sources. 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.* ). 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). Because this action affects the status of a geographical area or allows the state to avoid adopting or implementing other requirements and because this action does not impose any new requirements on sources, this proposed rule also does 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), nor will it 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), because it merely proposes to approve a state rule implementing a Federal requirement, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This proposed rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it approves a state rule implementing a Federal standard. In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a SIP submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a SIP submission, to use VCS in place of a SIP submission that otherwise satisfies the provisions of the CAA. Redesignation is an action that affects the status of a geographical area and does not impose any new requirements on sources. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule, proposing to approve the redesignation of the York Area to attainment for the 8-hour ozone NAAQS, the associated maintenance plan, the 2002 base-year inventory, and the MVEBs identified in the maintenance plan, does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ). List of Subjects 40 CFR Part 52 Environmental protection, Air pollution control, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds. 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas. Authority: 42 U.S.C. 7401 *et seq.* Dated: October 16, 2007. Donald S. Welsh, Regional Administrator, Region III. [FR Doc. E7-20942 Filed 10-23-07; 8:45 am] BILLING CODE 6560-50-P DEPARTMENT OF HOMELAND SECURITY Transportation Security Administration 49 CFR Parts 1540, 1544, and 1560 [Docket No. TSA-2007-28572] RIN 1652-AA45 Secure Flight Program AGENCY: Transportation Security Administration, DHS. ACTION: Proposed Rule: Extension of Comment Period. SUMMARY: The Transportation Security Administration
(TSA)is extending the comment period on the Notice of Proposed Rulemaking regarding the Secure Flight Program published on August 23, 2007. TSA has decided to grant, in part, two requests for an extension of the comment period and will extend the comment period for thirty
(30)days. The comment period will now end on November 21, 2007, instead of October 22, 2007. DATES: The comment period for the proposed rule at 72 FR at 48356, August 23, 2007, is extended until November 21, 2007. ADDRESSES: You may submit comments, identified by the TSA docket number to this rulemaking, to the Federal Docket Management System (FDMS), a government-wide, electronic docket management system, using any one of the following methods: *Electronically:* You may submit comments through the Federal eRulemaking portal at *http://www.regulations.gov* . Follow the online instructions for submitting comments. *Mail, In Person, or Fax:* Address, hand-deliver, or fax your written comments to the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001; Fax 202-493-2251. The Department of Transportation (DOT), which maintains and processes TSA's official regulatory dockets, will scan the submission and post it to FDMS. See SUPPLEMENTARY INFORMATION for format and other information about comment submissions. FOR FURTHER INFORMATION CONTACT: Kevin Knott, Policy Manager, Secure Flight, Office of Transportation Threat Assessment and Credentialing, TSA-19, Transportation Security Administration, 601 South 12th Street, Arlington, VA 22202-4220, telephone
(240)568-5611. SUPPLEMENTARY INFORMATION: Comments Invited TSA invites interested persons to participate in this action by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from this action. See ADDRESSES above for information on where to submit comments. With each comment, please identify the docket number at the beginning of your comments. TSA encourages commenters to provide their names and addresses. The most helpful comments reference a specific portion of the document, explain the reason for any recommended change, and include supporting data. You may submit comments and material electronically, in person, by mail, or fax as provided under ADDRESSES , but please submit your comments and material by only one means. If you submit comments by mail or delivery, submit them in an unbound format, no larger than 8.5 by 11 inches, suitable for copying and electronic filing. If you want TSA to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard on which the docket number appears. We will stamp the date on the postcard and mail it to you. TSA will file in the public docket all comments received by TSA, except for comments containing confidential information and sensitive security information (SSI), 1 TSA will consider all comments received on or before the closing date for comments and will consider comments filed late to the extent practicable. The docket is available for public inspection before and after the comment closing date. 1 “Sensitive Security Information” or “SSI” is information obtained or developed in the conduct of security activities, the disclosure of which would constitute an unwarranted invasion of privacy, reveal trade secrets or privileged or confidential information, or be detrimental to the security of transportation. The protection of SSI is governed by 49 CFR part 1520. Handling of Confidential or Proprietary Information and Sensitive Security Information
(SSI)Submitted in Public Comments Do not submit comments that include trade secrets, confidential commercial or financial information, or SSI to the public regulatory docket. Please submit such comments separately from other comments on the action. Comments containing this type of information should be appropriately marked as containing such information and submitted by mail to the address listed in FOR FURTHER INFORMATION CONTACT section. Upon receipt of such comments, TSA will not place the comments in the public docket and will handle them in accordance with applicable safeguards and restrictions on access. TSA will hold documents containing SSI, confidential business information, or trade secrets in a separate file to which the public does not have access, and place a note in the public docket that TSA has received such materials from the commenter. However, if TSA determines that portions of these comments may be made publicly available, TSA may include a redacted version of the comment in the public docket. If TSA receives a request to examine or copy information that is not in the public docket, TSA will treat it as any other request under the Freedom of Information Act
(FOIA)(5 U.S.C. 552) and the Department of Homeland Security's (DHS”) FOIA regulation found in 6 CFR part 5. Reviewing Comments in the Docket Please be aware that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review the applicable Privacy Act Statement published in the **Federal Register** on April 11, 2000 (65 FR 19477), or you may visit *http://DocketInfo.dot.gov* . You may review TSA's electronic public docket on the Internet at *http://www.regulations.gov* . In addition, DOT's Docket Management Facility provides a physical facility, staff, equipment, and assistance to the public. To obtain assistance or to review comments in TSA's public docket, you may visit this facility between 9 a.m. to 5 p.m., Monday through Friday, excluding legal holidays, or call
(202)366-9826. This docket operations facility is located in the West Building Ground Floor, Room W12-140 at 1200 New Jersey Avenue, SE., Washington, DC 20590. Availability of the Notice of Proposed Rulemaking and Comments Received You can get an electronic copy using the Internet by—
(1)Searching the electronic Federal Docket Management System
(FDMS)Web page at *http://www.regulations.gov* ;
(2)Accessing the Government Printing Office's Web page at *http://www.gpoaccess.gov/fr/index.html* ; or
(3)Visiting TSA's Security Regulations Web page at *http://www.tsa.gov* and accessing the link for “Research Center” at the top of the page. In addition, copies are available by writing or calling the individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to identify the docket number of this rulemaking. Comment Period Extension On August 23, 2007, TSA published a Notice of Proposed Rulemaking
(NPRM)on the Secure Flight Program ( *see* 72 FR 48356, August 23, 2007). The NPRM had a 60-day comment period that would end on October 22, 2007. In a request dated September 28, 2007, the Air Transport Association of America
(ATA)requested that the deadline for filing comments on the Secure Flight NPRM be extended from October 22, 2007 to December 21, 2007. In a request dated October 4, 2007, the International Air Transport Association
(IATA)similarly requested that the deadline for filing comments on the Secure Flight NPRM be extended until January 21, 2008. TSA has decided to grant, in part, ATA and IATA's requests for an extension and will extend the comment period for thirty
(30)days. The comment period will now be a total of 90 days and will end on November 21, 2007. This extension will allow the aviation industry and other interested entities and individuals additional time to complete their comments on the NPRM. With this extension, the comment period for the Secure Flight NPRM will be the same as the comment period that U.S. Customs and Border Protection
(CBP)provided for the NPRM on Passenger Manifests for Commercial Aircraft Arriving in and Departing From the United States; Passenger and Crew Manifests for Commercial Vessels Departing From the United States (“Pre-Departure APIS”). 71 FR 43681 (Aug. 23, 2006) (extending the original comment period from 30 days to 90 days). As discussed in the Secure Flight NPRM, the Pre-Departure APIS rulemaking is related to the Secure Flight NPRM in that together, the two rulemakings explain the Department of Homeland Security's (DHS’) proposed unified approach to watchlist matching for international and domestic passenger flights. Issued in Arlington, Virginia, on October 18, 2007. Gale Rossides, Acting Deputy Administrator. [FR Doc. 07-5254 Filed 10-19-07; 3:33 pm]
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20 references not yet in our index
  • 50 CFR 679
  • 10 CFR 35
  • 10 CFR 63
  • 10 CFR 71
  • 14 CFR 39
  • 472 F.3d 882
  • 40 CFR 50
  • 40 CFR 81
  • 40 CFR 58
  • 375 F.3d 537
  • 285 F.3d 63
  • 265 F.3d 426
  • 40 CFR 93
  • 144 F.3d 984
  • 40 CFR 51
  • 40 CFR 93.118(e)(4)
  • Pub. L. 104-4
  • 40 CFR 52
  • 49 CFR 1520
  • 6 CFR 5
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Notices
Final rule; correction
U.S.C.§ 553
U.S.C.§ 601
C.F.R.§ 35.396
C.F.R.§ 35.394
C.F.R.§ 35.390
C.F.R.§ 2.802
U.S.C.§ 10101
C.F.R.§ 63.21
C.F.R.§ 63.41
F. App'x472 F.3d 882
F. App'x375 F.3d 537
F. App'x285 F.3d 63
Cites 46 · showing 12Cited by 0 across 0 sources
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