Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules 22337

SUPPLEMENTARY INFORMATION: For

additional information see the direct

final rule published in the Final Rules

section of this Federal Register.

Dated: March 14, 1995.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 95–10973 Filed 5–4–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Parts 52 and 81

[OH78–1–6969; FRL–5202–9]

Approval and Promulgation of

Implementation plans and Designation

of Areas for Air Quality Planning

Purposes; Ohio

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The Ohio U.S. Environmental

Protection Agency (USEPA) has

requested the redesignation of the

Cincinnati area (Hamilton, Clermont,

Butler, and Warren Counties) from

moderate nonattainment to attainment

for ozone; and Clinton County from

transitional nonattainment to

attainment. The requests were received

on November 15, 1994. Before the

Cincinnati request can be approved

through final rulemaking, several State

Implementation Plan (SIP) revisions

must be approved. The USEPA is

separately rulemaking on Ohio SIP

revisions involving volatile organic

compounds (VOC) Reasonable Available

Control Technology (RACT) rules, the

1990 Base-year Inventory, the section

182(f) nitrogen oxides (NOX) RACT

waiver request, the 182(b)(1) reasonable

further progress plan, and the 182(b)(4)

inspection and maintenance plan. Upon

final approval of these plans, the

Cincinnati nonattainment area will have

met all of the requirements for

redesignation specified under section

107(d)(3)(E). The approval of the

Clinton County request is not contingent

upon separate rulemaking action by

USEPA. The USEPA is proposing

approval of the redesignation request

and maintenance plan for Butler,

Hamilton, Warren, Clermont, and

Clinton Counties in Ohio.

DATES: Comments on this redesignation

and on the proposed USEPA action

must be received by June 5, 1995.

ADDRESSES: Written comments should

be addressed to: William L. MacDowell,

Chief, Regulation Development Section,

Air Enforcement Branch (AE–17J),

United States Environmental Protection

Agency, 77 West Jackson Boulevard,

Chicago, Illinois 60604.

Copies of the State’s submittal and

other information are available for

inspection during normal business

hours at the following location:

Regulation Development Section, Air

Enforcement Branch (AE–17J), United

States Environmental Protection

Agency, Region 5, 77 West Jackson

Boulevard, Chicago, Illinois 60604.

FOR FURTHER INFORMATION CONTACT:

Randy Robinson, Air Enforcement

Branch, Regulation Development

Section (AE–17J), United States

Environmental Protection Agency,

Region 5, Chicago, Illinois 60604, (312)

353–6713.

SUPPLEMENTARY INFORMATION:

I. Summary of State Submittal

The Ohio Environmental Protection

Agency (OEPA) has requested the

redesignation of the Ohio portion of the

Cincinnati Area (including the counties

of Hamilton, Clermont, Butler, and

Warren) from nonattainment to

attainment for ozone. The Cincinnati

moderate nonattainment area also

includes the Kentucky counties of

Boone, Campbell, and Kenton. These

counties are being addressed in separate

rulemaking. The OEPA is also

requesting the redesignation of Clinton

county from transitional nonattainment

to attainment. The USEPA received both

requests for redesignation to attainment

on November 15, 1994. Public hearing

and response to comment information

was received on February 24, 1995.

Under Section 107(d) of the 1977

amended Clean Air Act, the USEPA

promulgated the ozone attainment

status for each geographic area of the

country. All counties in the Cincinnati

area were designated as an ozone

nonattainment area in March 1978 (43

FR 8962). On November 15, 1990, the

Clean Air Act Amendments of 1990

(CAAA) were enacted. Pursuant to

Section 107(d)(4)(A), Butler, Clermont,

Hamilton, and Warren Counties were

designated as moderate nonattainment

areas, as a result of monitored violations

of the ozone National Ambient Air

Quality Standards (NAAQS) during the

summer of 1988 (56 FR 56694,

November 6, 1991). Clinton County did

not experience a violation during the

three year period from January 1, 1987

through December 31, 1989, and

therefore, pursuant to section 185(A) of

the CAAA, was designated as a

transitional nonattainment area. A

review of the Cincinnati area

redesignation request is presented

below, followed by a review of the

Clinton County request.

II. Redesignation Review Criteria

The CAAA provides the requirements

for redesignating a nonattainment area

to attainment. Specifically, Section

107(d)(3)(E) provides for redesignation

if: (i) The Administrator determines that

the area has attained the National

Ambient Air Quality Standard

(NAAQS); (ii) The Administrator has

fully approved the applicable

implementation plan for the area under

Section 110(k); (iii) The Administrator

determines that the improvement in air

quality is due to permanent and

enforceable reductions in emissions

resulting from implementation of the

applicable implementation plan and

applicable Federal air pollutant control

regulations and other permanent and

enforceable reductions; (iv) The

Administrator has fully approved a

maintenance plan for the area as

meeting the requirements of Section

175(A); and (v) The State containing

such area has met all requirements

applicable to the area under Section 110

and Part D.

The USEPA provided guidance on

redesignation in the General Preamble

for the Implementation of Title I of the

Clean Air Act Amendments of 1990, 57

FR 13498 (April 16, 1992),

supplemented at 57 FR 18070 (April 28,

1992). Three key memoranda provide

further guidance with respect to section

107(d)(3)(E) of the amended Act. The

first, dated September 4, 1992, was

issued by John Calcagni, Director, Air

Quality Management Division, Subject:

Procedures for Processing Requests to

Redesignate Areas to Attainment

(Calcagni Memorandum). The second,

dated September 17, 1993, was issued

by Michael Shapiro, Acting Assistant

Administrator for Air and Radiation,

Subject: State Implementation Plan (SIP)

Requirements for Area Submitting

Requests for Redesignation to

Attainment of the Ozone and Carbon

Monoxide (CO) NAAQS on or after

November 15, 1992 (Shapiro

Memorandum). The third, dated

October 14, 1994, was issued by Mary

Nichols, Assistant Administrator for Air

and Radiation, Subject: Part D New

Source Review Requirements for Areas

Requesting Redesignation to Attainment

(Nichols Memorandum).

Analysis of Cincinnati Area

Redesignation Request

A. The Area Must Have Attained the

Ozone National Ambient Air Quality

Standard (NAAQS)

For ozone, an area may be considered

attaining the NAAQS if there are no

violations, as determined in accordance

with 40 CFR 50.9, based on three
22338 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules

complete, consecutive calendar years of

quality assured monitoring data. The

data that are used should be the product

of ambient monitoring that is

representative of the area believed to

have the highest concentration. A

violation of the NAAQS occurs when

the annual average number of expected

daily exceedances is equal to or greater

than 1.05 at any site under

consideration. A daily exceedance

occurs when the maximum hourly

ozone concentration during a given day

exceeds 0.124 parts per million (ppm).

The data should be collected and

quality-assured in accordance with 40

CFR § 58, and recorded in the

Aerometric Information Retrieval

System (AIRS). The monitors should

have remained at the same location for

the duration of the monitoring period

required for demonstrating attainment.

The OEPA submitted ozone

monitoring data for the April through

October ozone season from 1976 to

1994. The majority of recent

exceedances occurred during 1988. To

demonstrate monitored attainment with

the standard, the OEPA submitted ozone

air quality data for the years 1992

through 1994. This data has been

quality assured and is recorded in AIRS.

No violations were recorded during this

time three-year time period.

The Cincinnati nonattainment area,

including the Kentucky counties of

Boone, Campbell, and Kenton, contains

eleven monitors measuring ambient

concentrations of ozone. The monitors

and the number of exceedances for 1992

through 1994 are detailed in the

technical support document. The site

with the greatest number of expected

exceedances is in Warren County with

0.67 annual average expected

exceedance. The area is currently

attaining the standard.

B. The Area Must Have a Fully

approved State Implementation Plan

(SIP) Under Section 110(k)

The counties of the Cincinnati

moderate nonattainment area were

designated nonattainment for ozone in

March 1978, based on monitored

violations. Additional monitored

violations in 1983 caused USEPA to

propose to disapprove the

nonattainment SIP submitted in 1982 by

OEPA and to require a revised SIP and

attainment demonstration by 1987.

Monitored violations occurred again in

the Cincinnati area during the summer

of 1988.

The CAAA provided that any area

designated nonattainment as of

November 15, 1990, would remain

nonattainment and would be classified

in one of five categories, based on the

severity of the monitored design

concentration value. The Cincinnati

area, including the counties of Butler,

Hamilton, Clermont, and Warren, was

classified as a moderate nonattainment

area and as a result must submit a

revised SIP which meets the

requirements of the Clean Air Act

Amendments and demonstrates

attainment with the ozone standards.

The Shapiro memorandum, cited

above, provides guidance on programs

that must be in the SIP before the

redesignation request can be approved.

The memorandum states that for

redesignation, the States must adopt and

provide for implementation of all the

programs that were due by the date of

the redesignation request. Consequently,

a modeled attainment demonstration is

not required in the Cincinnati area

because the redesignation request was

submitted before the attainment

demonstration due date.

Section E of this notice discusses the

requirements under section 110 and Part

D of Title 1 of the CAAA. As discussed

in that section, USEPA is currently

rulemaking on the Volatile Organic

Compounds (VOC) RACT rules and the

15 Percent (%) Rate of Progress Plan.

Approval of those submittals, along

with the emissions inventory, NOx

RACT waiver, and the I/M plan, will

provide the area with a fully approved

SIP at the time of final rulemaking on

this redesignation request. All of the

above program submittal deadlines

preceded the Cincinnati redesignation

request.

C. The Improvement in Air Quality

Must Be Due to Permanent and

Enforceable Reductions in Emissions

Resulting From the SIP, Federal

Measures and Other Permanent and

Enforceable Reductions

The State must be able to reasonably

attribute the improvement in air quality

to emission reductions which are

permanent and enforceable. To satisfy

this requirement, the State should

estimate the percent reduction from the

year that was used to determine the

design value for designation and

classification achieved from Federal

measures and control measures that

have been adopted and implemented by

the State. Emission rates, production

capacities and other information should

be used in the estimation. Sources

should be assumed to operate at

permitted or historic peak levels unless

evidence is presented that such an

assumption is unrealistic.

The OEPA submittal documents

reductions in emission from 1990 to

1993. The year 1988 was the year which

determined the design value and should

have been the year from which

reductions were calculated. This

comment was made to OEPA in a

January 6, 1995, letter from William L.

MacDowell, Section Chief, Regulation

Development Section, Region 5, to Mary

Cavin, Hearing Clerk, OEPA. The OEPA

responded that the result of using 1988

instead of 1990 as the base year would

be that a greater reduction of emissions

would have been calculated. The

USEPA agrees that the use of 1988 data

would not have affected the conclusion

that the reductions in emissions from

permanent and enforceable programs

have resulted in improved air quality in

the area and therefore accepts the

reductions as calculated.

The OEPA submittal states that the

1993 emissions inventory is reflective of

attainment conditions. The OEPA states

that the reductions in emissions from

the base year are achieved from the

implementation of two federal

programs; lower fuel volatility and the

Federal Motor Vehicle Control Program

(FMVCP). These programs are

permanent and federally enforceable.

The motor fuel volatility Phase I

standards became effective nationwide

in the summer of 1989, and established

a volatility limit in the Cincinnati area

of 10.5 pounds per square inch Reid

Vapor Pressure (RVP). The RVP was

further lowered in 1992 to 9.0 pounds

per square inch. The total reduction in

mobile source VOC emissions in the

four Ohio Counties of the Cincinnati

area, from 1990 to 1993 was 40 tons per

day. These reductions were quantified

using the MOBILE5A model.

From the years 1990 to 1993, area

source and point source VOC emissions

increased slightly, by 0.7 tons per day

(tpd) and 1.9 tpd, respectively. Area

sources were assumed to grow, based on

historical population growth as

interpolated by Bureau of Economic

Analysis (BEA) data for the years 1988

to 1995 and on industrial employment

data. Point source emissions for 1990

were developed from reports submitted

to the Cincinnati Department of

Environmental Services by facilities

with actual combined VOC emissions of

10 tons per year or more. The following

table shows combined Butler, Warren,

Hamilton, and Clermont County VOC

emissions for area, point, and mobile

sources from 1990 to 1993.

1990 1993

Area(TPD) ..................... 69.0 69.8

Point .............................. 70.9 72.8

Mobile ........................... 125.8 85.3

Total ................... 265.7 227.9
Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules 22339

The State has shown that actual total

VOC emissions were reduced by about

38 tons per day from 1990 to 1993; due

exclusively to mobile source reductions.

Although the State did not calculate

reductions based on a design year

(i.e.,1988) emissions inventory, the

demonstration that was submitted is

adequate to show that actual reductions

of VOC emissions have occurred in the

area. The reduction in emissions shown

in the submittal has been reasonably

attributed to two programs: lower fuel

volatility and the Federal Motor Vehicle

Control Program. Both of the programs

result in permanent and enforceable

reductions in VOC emissions, and,

therefore, the requirement of section

107(d)(3)(E)(iii) is satisfied.

D. The Area Must Have a Fully

Approved Maintenance Plan Meeting

the Requirements of Section 175A

Section 175A of the CAA defines

requirements for maintenance plans.

The maintenance plan is a SIP revision

which provides for maintenance of the

relevant NAAQS in the area for at least

10 years after redesignation. There are

five core provisions which the

maintenance plan should address: the

attainment inventory, maintenance

demonstration, monitoring network,

verification of continued attainment,

and a contingency plan. The attainment

inventory should identify the level of

emissions in the area which is sufficient

to attain the ozone NAAQS and should

include the emissions during the time

period associated with the monitoring

data showing attainment. Maintenance

is demonstrated by showing that future

emissions will not exceed the level of

the attainment inventory. Modeling may

also be used to show that the future

combination of sources and emission

rates will not cause a violation of the

NAAQS. The maintenance plan must

also provide for continued operation of

an appropriate air quality monitoring

network to verify attainment status of

the area. The plan must indicate how

the State will track the progress of the

maintenance plan. Finally, the

maintenance plan must include

contingency measures to promptly

correct any violation of the ozone

NAAQS that occurs after redesignation

of the area to attainment.

Attainment Inventory

The Cincinnati area submittal

contained inventories of 1990 actual

VOC emissions from stationary, area,

and mobile sources. The year 1990 was

selected as the base year and used to

project emissions to future years. The

1993 emissions inventory is considered

as the attainment year inventory

because no ozone violations have

occurred since 1991, and the 1993

projections were performed per USEPA

guidance. The approvability of the

emission inventories will be addressed

in a separate rulemaking. However,

Federal approval of the Cincinnati

nonattainment region emission

inventories is needed before the

redesignation request can be approved.

Maintenance Demonstration

The Cincinnati area submittal shows

projected VOC, NOX, and CO emissions

from the 1990 base year for the years

1993, 1996, 1999, 2002 and 2005. The

projections show that the level of

emissions established for the attainment

year inventory will not be exceeded.

Base year and projected emission

inventories were presented for the seven

counties that comprise the interstate

Cincinnati moderate nonattainment

area. The following tables list the VOC,

NOx , and CO emissions for the base

year, final year and interim years for

only the Ohio portion of the inventory.

Summary of VOC Emissions (tons/day)

1990 Base 1993 Attain 1996 Proj. 1999 Proj. 2002 Proj. 2005 Proj.

Point .................................................................................. 70.9 72.8 74.9 77.0 79.2 81.4

Area .................................................................................. 69.0 69.8 70.7 71.4 72.3 73.1

Mobile ............................................................................... 125.8 85.3 67.1 49.6 41.6 36.8

Totals ..................................................................... 265.7 227.9 212.7 198.0 193.1 191.3

Summary of CO Emissions (tons/day)

Point .................................................................................. 88.6 88.5 88.3 88.2 88.1 87.9

Area .................................................................................. 319.4 323.8 328.6 333.4 338.6 343.8

Mobile ............................................................................... 793.2 629.5 529.0 325.7 263.9 226.0

Totals ..................................................................... 1201.2 1041.8 945.9 747.3 690.6 657.7

Summary of NOX Emissions (tons/day)

Point .................................................................................. 280.0 279.4 279.0 278.6 278.3 277.6

Area .................................................................................. 29.8 30.3 30.9 31.4 32.1 32.2

Mobile ............................................................................... 130.7 115.6 101.3 84.4 72.0 65.5

Totals ..................................................................... 440.5 425.3 411.2 394.4 382.4 375.3

The OEPA is revising the base year

emission inventory numbers in response

to comments made by USEPA. Although

the revisions will change the base year

and projected year emission totals, the

changes are not expected to affect the

results of the maintenance

demonstration. The revised base year,

attainment year, and projected

emissions will be presented in the final

rule.

Emission Projections

Projections of stationary source

emissions through year 2005 were

developed based on data provided by

the Bureau of Economic Analysis (BEA),

United States Department of Commerce,

showing manufacturing earnings by

industry. An annual growth factor was

derived from this data and that growth

factor was used to determine future year

inventories. The base year inventory

was developed through reports

submitted by facilities with actual

combined VOC emissions of 10 tons per

year or more. The 1990 base year

inventory reflects tons per typical

summer day emissions as well as an 80

percent rule effectiveness assumption.
22340 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules

The area source emissions inventory

includes sources too small to be

handled individually in the point

source inventory. The emissions in the

area source inventory were reported in

tons per typical summer day.

Projections of area source emissions for

most source categories was based on

population data supplied by the Ohio

Data Users Center: Ohio Department of

Development. Some source categories

(such as degreasing operations,

construction and industrial equipment,

and auto painting/traffic lines) used

industrial employment, from BEA data,

as the growth indicator. State gasoline

consumption was used as a growth

indicator to project emissions from

gasoline distribution.

Mobile source emissions inventories

were generated by applying the

emissions factors from USEPA’s

Mobile5A emissions model to the

projected Vehicle Miles Travelled

(VMT) in the Cincinnati area counties.

The VMTs for the 1990 base year were

based on the TRANPLAN model, which

utilizes actual traffic counting. Forecasts

of VMTs to the year 2005 relied on the

development of future highway

networks, future forecasts of socioeconomic data, and travel patterns in

the Cincinnati area. VMTs are projected

to increase 17 percent by the year 2005

from the 1990 base year. The VOC and

NOX emissions projected for the year

2005 in the table presented earlier are

for purposes of transportation

conformity.

Runs of Mobile5A for the years 1990,

1993, 1996, 2000, and 2005 were

conducted using the following input file

categories: hourly temperature data,

hourly hot/cold start percentage by

roadway type, hourly vehicle mix by

roadway type, hourly directional splits

by roadway type, summer factors by

roadway type, and speed by roadway

type. Several programs account for the

significant reductions in mobile

emissions predicted through the year

2005. These programs, which are

Federally approved or in the process of

being approved, include the enhanced

inspection and maintenance, State II

vapor recover, on-board vapor recovery,

FMVCP, and lower fuel volatility.

Incorporation of enhanced inspection

and maintenance into the Mobile5A

modeling is initiated in 1996. The Stage

II vapor recovery system (VRS) is fully

implemented in 1995, while the onboard vapor recovery system begins in

1998. The on-board vapor recovery

system applies to the four possible

vehicle types; light duty gas, light duty

truck 1 and 2, and heavy duty gas.

Monitoring Network

There are currently eleven monitors

measuring ozone in the Cincinnati area,

as described above. Three are operated

by the State of Kentucky. Seven of the

eight monitors located in the Cincinnati

area are operated by the Cincinnati

Department of Environmental Services.

The remaining monitor is operated by

the Southwest District Office of the

OEPA. The Cincinnati Department of

Environmental Services has committed

to continue operating and maintaining

its ozone monitoring network consistent

with the Federal and State monitoring

guidelines in order to continue to verify

the attainment status of the area.

Contingency Plan

The contingency plan for the

Cincinnati area contains three major

components: Attainment tracking,

contingency measures to be

implemented in the event that a

violation of the ozone NAAQS occurs in

the Ohio/Kentucky Cincinnati region,

and a mechanism with which to trigger

the implementation of the contingency

measures.

Two methods of attainment tracking

will be utilized: (1) air quality

monitoring using the existing ozone

monitoring network, and (2) inventory

updates on a regular schedule.

Stationary, mobile, and area source

inventories will be updated at a

minimum of once every three years

beginning with 1996. Area emission

inventories will be updated using

revised census data. Mobile source

emission inventories will be updated

using new VMT estimates and any new

USEPA mobile emission models.

Annual progress reports will summarize

available VOC emissions data.

The contingency measures to be

considered for implementation are

listed below.

1. Lower Reid Vapor Pressure for

gasoline

2. Reformulated gasoline program

3. Broader geographic coverage of

existing regulations

4. Application of RACT on sources

covered by new control technology

guidelines issued in response to the

1990 Act Amendments

5. Application of RACT to smaller

existing sources

6. Implementation of one or more

transportation control measures

sufficient to achieve at least a 0.5

percent reduction in actual areawide

VOC emissions. The transportation

control measures to be considered

would include: (1) Trip reductions

programs, including but not limited to

employer-based transportation

management programs, areawide

rideshare programs, work schedule

change, and telecommuting; (2) transit

improvements; (3) traffic flow

improvements; and (4) other measures

7. Alternative fuel programs for fleet

vehicle operations

8. Controls on consumer products

consistent with those adopted

elsewhere in the United States

9. VOC offsets for new or modified

major sources

10. VOC offsets for new or modified

minor sources

11. Increased ratio of VOC offsets

required for new sources

12. Requirement of VOC controls on

new minor sources.

Selection of one or more of the

contingency measures will be based on

various considerations including costeffectiveness, VOC reduction potential,

economic and social consideration, and

other factors the State determines to be

appropriate.

Consideration and selection of one or

more of the contingency measures will

take place in the event the ozone

NAAQS is violated. Initially, the State

will conduct an analysis to determine

the level of control measures needed to

assure expedient future attainment. If a

subsequent violation of the ozone

NAAQS occurs after implementation of

the VOC control measures, NOX RACT

will be activated. Contingency measures

will be implemented according to the

following schedule:

Activity Completion time after

triggering event

Verify a violation has

occurred.

1 month.

Identify VOC plan

and submit schedule for implementation.

3 months.

Implement VOC control program.12 months.

Completion time second triggering

event/post VOC

control plan

Verify a violation has

occurred.

1 month.

Submit schedule for

implementation of

NOX RACT.

3 months.

Implement NOX

RACT.

18 months.

Reformulated gasoline and low RVP

gasoline would not be able to be

implemented as contingency measures

by the State of Ohio unless the State

first requested and received from

USEPA a waiver of federal preemption

under section 211(c)(4) of the CAA.

However, in light of the State’s listing of

other potential contingency measures
Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules 22341

and the State’s commitment to

implement contingency measures

within 12 months of a violation, the

identification of reformulated gasoline

and low RVP gasoline does not detract

from the approvability of the

contingency plan.

The Ohio submittal adequately

addresses the five basic components

which comprise a maintenance plan

(attainment inventory, maintenance

demonstration, monitoring network,

verification of continued attainment,

and a contingency plan) and therefore,

satisfies the maintenance plan

requirement in section 107(d)(3)(E)(iv).

E. The Area Must Have Met All

Applicable Requirements Under Section

110 and Part D

Section 107(d)(3)(E) requires that, for

an area to be redesignated, an area must

have met all applicable requirements

under section 110 and Part D. The

USEPA interprets section 107(d)(3)(E)(v)

to mean that for a redesignation to be

approved, the State must have met all

requirements that applied to the subject

area prior to or at the time of the

submission of a complete redesignation

request. Requirements of the Act that

come due subsequently continue to be

applicable to the area at those later dates

(see section 175A(c)) and, if the

redesignation of the area is disapproved,

the State remains obligated to fulfill

those requirements.

Section 110: General Requirements for

Implementation Plans

Section 110(a)(2) of Title I of the

CAAA lists the elements to be included

in each SIP after adoption by the State

and reasonable notice and public

hearing. The elements include, but are

not limited to, provisions for

establishment and operation of

appropriate devices, methods, systems,

and procedures necessary to monitor

ambient air quality; implementation of a

permit program, provisions for Part C

(PSD) and D (NSR) permit programs,

criteria for stationary source emission

control measures, monitoring, and

reporting, provisions for modeling, and

provisions for public and local agency

participation. For purposes of

redesignation, the Cincinnati area SIP

was reviewed to ensure that all

requirements under the amended Act

were satisfied. USEPA has determined

that the Cincinnati area SIP is consistent

with the requirements of section 110 of

the amended Act.

Part D: General Provisions for

Nonattainment Areas

Before the Cincinnati area may be

redesignated to attainment, it must have

fulfilled the applicable requirements of

part D. Under part D, an area’s

classification determines the

requirements to which it is subject.

Subpart 1 of part D sets forth the basic

nonattainment requirements applicable

to all nonattainment areas. Subpart 2 of

part D establishes additional

requirements for nonattainment areas

classified under table 1 of section

181(a). As described in the General

Preamble for the Implementation of

Title 1, specific requirements of subpart

2 may override subpart 1’s general

provisions (57 FR 13501 (April 16,

1992)). The Cincinnati area was

classified as moderate. Therefore, in

order to be redesignated, the State must

meet the applicable requirements of

subpart 1 of part D—specifically

sections 172(c) and 176, as well as the

applicable requirements of subpart 2 of

part D.

Section 172(c) Requirements

The State redesignation request for

Cincinnati has satisfied all of the

relevant submittal requirements under

section 172(c) necessary for the area to

be redesignated to attainment. Some

components have not yet completed

regulatory review. Approval of all

required SIP revisions is necessary

before the redesignation request can be

approved. The reasonable further

progress (RFP) requirement under

section 172(c)(2) is defined as progress

that must be made toward attainment.

This requirement is not relevant because

the Cincinnati area has already

demonstrated monitored attainment of

the ozone NAAQS.

Section 172(c)(3) requires submission

and approval of a comprehensive,

accurate, and current inventory of actual

emissions. The State has submitted such

an inventory under section 182(a)(1). It

is currently being reviewed for

approvability.

Section 172(c)(5) requires permits for

the construction and operation of new

and modified major stationary sources

anywhere in the nonattainment area.

The USEPA has determined that areas

being redesignated need not comply

with the requirement that a New Source

Review (NSR) program be approved

prior to redesignation provided that the

area demonstrates maintenance of the

standard without part D NSR in effect.

The rationale for this view is described

in a memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation, dated October 14, 1994,

entitled ‘‘Part D New Source Review

Requirements for Areas Requesting

Redesignation to Attainment’’. The State

of Ohio has demonstrated that the

Cincinnati area will be able to maintain

the standard without part D NSR in

effect, and, therefore, the State need not

have a fully approved part D NSR

program prior to approval of the

redesignation request for Cincinnati.

The State’s Prevention of Significant

Deterioration (PSD) program will

become effective in the Cincinnati area

upon redesignation to attainment.

Subpart 2 Section 182 Requirements

The Cincinnati area is classified

moderate nonattainment; therefore, part

D, subpart 2, section 182(b)

requirements apply. In accordance with

guidance presented in the Shapiro

memorandum, the requirements which

came due prior to the submission of the

request to redesignate the Cincinnati

area must be fully approved into the SIP

before the request to redesignate the

area to attainment can be approved.

Those requirements are discussed

below:

(a) 1990 Base Year Inventory

The 1990 base year emission

inventory was due on November 15,

1992. It was submitted to USEPA on

March 14, 1994. USEPA is currently

reviewing the base year inventory.

(b) Emission Statements

The emission statements SIP was due

on November 15, 1992. It was submitted

to the USEPA on March 18, 1994. The

USEPA approved this SIP revision

through a direct final rulemaking action

published on October 13, 1994 (59 FR

51863). This approval became effective

on December 12, 1994.

(c) 15% Plan

The 15% Rate of Progress plan for

VOC reductions was required to be

submitted by November 15, 1993, and,

therefore, is applicable to the Cincinnati

Moderate Nonattainment area. The 15%

plan was submitted to USEPA on March

14, 1994, and is currently under review.

This plan must be approved before a

redesignation to attainment can be

finalized.

(d) RACT Requirements

SIP revisions requiring RACT for

three classes of VOC sources are

required under section 182(b)(2). The

categories are:

(i) All sources covered by a CTG

document issued between November 15,

1990 and the date of attainment. The

USEPA has issued a CTG document in

which it lists 11 CTG’s that are planned

to be issued in accordance with section

183. The USEPA has also promulgated

a CTG document entitled ‘‘Control of

Volatile Organic Compound Emissions

from Reactor Processes and Distillation
22342 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules

Operations Processes in the Synthetic

Organic Chemical Manufacturing

Industry’’, August 1993. However, the

Cincinnati redesignation request was

submitted before the November 15, 1994

(57 FR 18070), due date for RACT rule

submission for the 11 CTG’s and the

March 23, 1995 (59 FR 13717), due date

for the more recent CTG. Therefore, this

requirement is not applicable.

(ii) All sources covered by a Control

Technology Guideline (CTG) issued

prior to November 15, 1990. The State

has stated that it has adopted rules

requiring RACT for sources for which a

CTG has been issued.

(iii) All other major non-CTG

stationary sources. The non-CTG rules

were due by November 15, 1992, and

apply to the Ohio submittal. The USEPA

is currently reviewing non-CTG rules

submitted by Ohio.

(e) Stage II Vapor Recovery

Section 182(b)(3) requires States to

submit Stage II rules no later than

November 15, 1992. The Ohio Stage II

rules were submitted as a SIP revision

on June 7, 1993. On October 20, 1994,

the USEPA partially approved and

partially disapproved Ohio’s SIP

revision for implementation of Stage II

(58 FR 52911). As stated in that

rulemaking action, with the exception of

paragraph 3745–21–09 (DDD)(5),

USEPA considers Ohio’s Stage II

program to fully satisfy the criteria set

forth in the USEPA guidance document

for such programs entitled

‘‘Enforcement Guidance for Stage II

Vehicle Refueling Control Programs.’’

Only those Stage II provisions

previously approved by USEPA are part

of the Cincinnati area maintenance plan.

The Shapiro Memorandum states that

once onboard regulations (FMVCP) are

promulgated, the Stage II regulations are

no longer applicable for moderate ozone

nonattainment areas. The USEPA

promulgated onboard rules in February

1994; therefore, pursuant to section

202(a)(6) of the CAAA, Stage II is no

longer required. However, the State has

opted to include reductions in VOCs

from the Stage II program as part of the

maintenance plan and the 15% Rate of

Progress plan.

(f) Vehicle Inspection and Maintenance

(I/M)

The USEPA’s final I/M regulations in

40 CFR Part 85 require the State to

submit to the USEPA a fully adopted I/

M program by November 15, 1993. Ohio

submitted the I/M rules on May 26,

1994. USEPA published a direct final

approval of the rules on April 4, 1995.

If the notice is not withdrawn due to

adverse comments, the rules will

become effective on June 3, 1995.

The legislation authorizing the State

to establish an I/M program also allows

the option of implementation of an

enhanced I/M program into an area’s

maintenance plan. The State is

including enhanced I/M as a part of the

maintenance plan and 15% plan for the

counties of Butler, Clermont, Hamilton,

and Warren. Consequently, approval of

the Cincinnati area redesignation

request is contingent upon USEPA final

approval of the I/M regulation. A

withdrawal of the direct final

rulemaking for I/M would affect the

approval of the Cincinnati

redesignation.

(g) 1.15 to 1.0 Offset

Section 182(b)(5) requires all major

new sources or modifications in a

moderate nonattainment area to achieve

offsetting reductions of VOCs at a ratio

of at least 1.15 to 1.0. The Mary Nichols

memorandum states, under certain

circumstances, that areas being

redesignated need not comply with the

requirement that a NSR program be

approved prior to redesignation. As the

State has demonstrated that

maintenance can be maintained without

NSR offsets in effect, the State need not

have a fully approved NSR program for

the Cincinnati area to be redesignated.

Upon redesignation to attainment, the

sources will become subject to PSD

requirements and offsets will no longer

apply. Emissions will continue to be

tracked on an annual basis.

(h) NOX Requirement

Section 182(f) establishes NOX

requirements for ozone nonattainment

areas. However, it provides that these

requirements do not apply to an area if

the Administrator determines that NOX

reductions would not contribute to

attainment. The Administrator has

proposed such a determination for the

Cincinnati nonattainment area as

requested by the State of Ohio (60 FR

3361). If the NOX waiver is approved as

a final rule, the State of Ohio need not

impose the NOX control measures in

section 182(f) for the Cincinnati area to

be redesignated. However, if the NOX

waiver is not approved, the NOX

requirements must be met for the area

to be redesignated from nonattainment

to attainment. If a violation is monitored

in the Cincinnati area (including the

counties of Butler, Hamilton, Warren,

Clermont, and Clinton in Ohio and

Boone, Campbell, and Kenton in

Kentucky), Ohio has committed to adopt

and implement NOX RACT rules as a

contingency measure to be implemented

upon a violation of the ozone NAAQS

which occurs after initial contingency

measures are in place.

Review of Clinton County Redesignation

Request

Clinton County, located to the

northeast of the City of Cincinnati, is

classified as a transitional area because

it was designated nonattainment prior to

enactment and did not have a monitored

ozone violation between the period

starting January 1, 1987 and ending

December 31, 1989. The OEPA must

demonstrate that the Clinton County

portion of the submittal meets the five

redesignation requirements specifically

identified in Section 107(d)(3)(E). The

requirements are listed below.

A. The Area Must Have Attained the

Ozone NAAQS

Monitoring data was submitted for

Clinton County for the years 1977

through 1994. The monitor recorded 5

exceedances of the ozone NAAQS in

1983 and single exceedances in the

years 1988, 1989, and 1993. The data is

available in AIRS and adequately

demonstrates that Clinton County is

attaining the NAAQS.

B. The Area Must Have a Fully

Approved State Implementation Plan

(SIP) Under Section 110(k)

Clinton County is a transitional area

and therefore is only required to submit

an emissions inventory as a SIP

revision. This rulemaking is proposing

approval of the emissions inventory as

part of the maintenance plan and

redesignation request for Clinton

County. The Calcagni memorandum

allows approval action on the SIP

elements and the redesignation request

to occur simultaneously. Therefore, the

area has satisfied this requirement.

C. The Improvement in Air Quality

Must Be Due to Permanent and

Enforceable Reductions in Emissions

Resulting From the SIP, Federal

Measures and Other Permanent and

Enforceable Reductions

The State has shown that in Clinton

County, actual total VOC emissions

were reduced by about 2 tons per day

from 1990 to 1993; due exclusively to

mobile source emission reductions. The

mobile emission reductions were the

result of the lower fuel volatility

program and the FMVCP. Both of these

programs are Federally enforceable and

permanent.

D. The Area Must Have a Fully

Approved Maintenance Plan Meeting

the Requirements of Section 175(A)

The OEPA has met the applicable

requirements by submitting a
Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules 22343

maintenance plan consisting of

emission inventories for area, point, and

mobile sources of VOC, NOX, and CO.

The maintenance plan also consists of a

contingency plan with specific

contingency measures to be

implemented in accordance with a

specified schedule.

The contingency measures and

schedule presented in Section II.D.

above also apply to Clinton County.

Additionally, a monitored violation in

Clinton County would trigger

contingency measures in the counties

comprising the Cincinnati moderate

nonattainment area.

E. The Area Must Have Met All

Applicable Requirements Under Section

110 and Part D

The USEPA has interpreted section

107(d)(3)(E)(ii) to mean that the

applicable requirements that an area

must satisfy before it can be

redesignated are the requirements under

section 110 (regarding general

provisions in a SIP) and under Part D

(regarding the requirements for

nonattainment area plans) that were due

before the request was submitted. The

General Preamble details the

requirements for transitional areas.

Those requirements and their

applicability to Clinton County are

presented below.

(1) RACT/Reasonably Available Control

Measure (RACM)

In order to satisfy this requirement,

transitional areas must show that any

RACT deficiencies regarding

enforceability of an existing rule are

corrected. Clinton County was not

included in the post 1987 SIP call letters

issued by USEPA to OEPA (dated May

26, 1988, and November 8, 1989) and

therefore was never cited as having

RACT deficiencies. Thus, Clinton

County has satisfied this requirement.

(2) Attainment Demonstration

Section 182(a)(4) specifically exempts

marginal areas from any attainment

demonstration requirement. In

accordance with the General Preamble,

this exemption is also reasonably

applied to transitional areas since such

areas are not violating the standard.

Therefore, Clinton County is not subject

to this requirement.

(3) RFP

Clinton County is already in

attainment. This requirement is not

applicable.

(4) Emissions Inventory

An emissions inventory is required

under section 172(c)(3). Clinton County

submitted an emissions inventory for

VOC’s, NOX, and CO. The inventory was

used to develop a maintenance plan

under section 175(A).

Emission inventories are supplied for

Clinton County for the years 1990 to

2005. The attainment year is considered

to be 1993. The mobile source emissions

were determined using the MOBILE5A

model. The emission factors calculated

by the model were multiplied by the

area VMT’s. Area source emissions were

estimated using growth indicators as

recommended by USEPA. These

indicators included population growth,

industrial activity, and gasoline

consumption. There are no major point

sources of VOC, NOX, or CO in Clinton

County. The reduction in mobile source

emissions from the 1990 base year to the

1993 attainment year are attributed to

the implementation of two federal

programs: Lower fuel volatility and the

FMVCP. The following table shows the

Clinton County inventory figures.

SUMMARY OF VOC EMISSIONS (TONS/DAY)

1990 Base 1993 Attain 1996 Proj. 1999 Proj. 2002 Proj. 2005 Proj.

Point ...................................................................... 0.0 0.0 0.0 0.0 0.0 0.0

Area ...................................................................... 11.3 11.33 11.36 11.39 11.42 11.45

Mobile ................................................................... 5.04 3.27 2.82 2.80 2.31 2.04

Totals ......................................................... 16.34 14.60 14.18 14.19 13.73 13.49

Summary of CO Emissions (tons/day)

Point ...................................................................... 0.0 0.0 0.0 0.0 0.0 0.0

Area ...................................................................... 24.2 24.3 24.4 24.5 24.7 24.8

Mobile ................................................................... 29.2 20.1 17.3 16.9 14.4 13.3

Totals ......................................................... 53.4 44.4 41.7 41.4 39.1 38.1

Summary of NOX Emissions (tons/day)

Point ...................................................................... 0.0 0.0 0.0 0.0 0.0 0.0

Area ...................................................................... 1.62 1.63 1.64 1.64 1.65 1.66

Mobile ................................................................... 4.80 4.19 3.69 3.65 3.13 2.73

Totals ......................................................... 6.42 5.82 5.33 5.29 4.78 4.39

(5) New Source Review

Section 172(c)(5) requires permits for

the construction and operation of new

and modified major stationary sources

anywhere in the nonattainment area.

The USEPA has determined that areas

being redesignated need not comply

with the requirement that a New Source

Review (NSR) program be approved

prior to redesignation provided that the

area demonstrates maintenance of the

standard without part D NSR in effect.

The rationale for this view is described

in a memorandum from Mary Nichols,

Assistant Administrator for Air and

Radiation, dated October 14, 1994,

entitled ‘‘Part D New Source Review

Requirements for Areas Requesting

Redesignation to Attainment’’. The State

of Ohio has demonstrated that Clinton

County will be able to maintain the

standard without part D NSR in effect,

and, therefore, the State need not have

a fully approved part D NSR program

prior to approval of the redesignation

request for Cincinnati. The State’s

Prevention of Significant Deterioration
22344 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules

(PSD) program will become effective in

Clinton County upon redesignation to

attainment.

(6) Monitoring

Nonattainment areas must meet the

applicable monitoring requirements of

section 110(a)(2). Clinton County has

met the monitoring requirement by

conducting ambient air monitoring to

verify the attainment status of the area

and by making the data available in

AIRS.

(7) Contingency Measures

The contingency measures presented

in Section II.D. above also apply to

Clinton County. Additionally, a

monitored violation in Clinton County

would trigger contingency measures in

the counties comprising the Cincinnati

moderate nonattainment area.

The Clinton County portion of the

OEPA submittal demonstrates that: (i)

The area has attained the NAAQS; (ii)

the SIP has been fully approved under

section 110(k); (iii) the improvement in

air quality is due to permanent and

enforceable measures; (iv) the

maintenance plan meets the

requirements of section 175(A); and (v)

the area has met all applicable

requirements under section 110 and Part

D. Therefore, the OEPA has

demonstrated that Clinton County

satisfies the CAAA requirements for

redesignating a nonattainment area to

attainment.

Transport of Ozone Precursors to

Downwind Areas

Preliminary modeling results utilizing

USEPA’s regional oxidant model (ROM)

indicate that ozone precursor emissions

from various States west of the ozone

transport region (OTR) in the

northeastern United States contribute to

increases in ozone concentrations in the

OTR. The State of Ohio has provided

documentation that VOC and NOX

emissions in the Cincinnati

nonattainment area are predicted to

remain below attainment levels for the

next ten years. Should emissions exceed

attainment levels, the contingency plan

will be triggered. In addition, eight years

after redesignation to attainment, Ohio

is required to submit a revision to the

maintenance plan which demonstrates

that the NAAQS will be maintained

until the year 2015. The USEPA is

currently developing policy which will

address long range impacts of ozone

transport. The USEPA is working with

the States and other organizations to

design and complete studies which

consider upwind sources and quantify

their impacts. The USEPA intends to

address the transport issue through

Section 110 based on a domain-wide

modeling analysis.

III. Proposed Rulemaking Action and

Solicitation of Public Comment

The State of Ohio has met the

submission requirements of the CAAA

for revising the Ohio ozone SIP. The

USEPA is proposing approval of the

redesignation of the Cincinnati

moderate nonattainment area, consisting

of the counties of Butler, Warren,

Clermont, and Hamilton, to attainment

for ozone. In addition, USEPA is

proposing approval of the redesignation

to attainment for Clinton County. The

USEPA is also proposing approval of the

maintenance plan for each area into the

ozone SIP. As noted earlier, final

approval of the Cincinnati area request

is contingent upon full approval of the

required VOC RACT rules, Ohio’s I/M

SIP revision, the 15% Rate of Progress

Plan, Cincinnati’s base-year emissions

inventory, and the NOX waiver for

Cincinnati.

Public comments are solicited on

USEPA’s proposed rulemaking action.

Public comments received by June 5,

1995 will be considered in the

development of USEPA’s final

rulemaking action.

Nothing in this action should be

construed as permitting, allowing or

establishing a precedent for any future

request for revision to any SIP. Each

request for revision to any SIP shall be

considered separately in light of specific

technical, economic, and environmental

factors and in relation to relevant

statutory and regulatory requirements.

This action has been classified as a

Table 2 action by the Regional

Administrator under the procedures

published in the Federal Register on

January 19, 1989 (54 FR 2214–2225), as

revised by an October 4, 1993

memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air

and Radiation. The Office of

Management and Budget has exempted

this regulatory action from Executive

Order 12866 review.

Under the Regulatory Flexibility Act,

5 U.S.C. 600 et seq., USEPA must

prepare a regulatory flexibility analysis

assessing the impact of any proposed or

final rule on small entities (5 U.S.C. 603

and 604). Alternatively, USEPA may

certify that the rule will not have a

significant impact on a substantial

number of small entities. Small entities

include small businesses, small not-forprofit enterprises, and government

entities with jurisdiction over

populations of less than 50,000.

SIP approvals under section 110 and

subchapter I, Part D of the CAA do not

create any new requirements, but

simply approve requirements that the

State is already imposing. Therefore,

because the Federal SIP approval does

not impose any new requirements, I

certify that it does not have a significant

impact on any small entities affected.

Moreover, due to the nature of the

federal-state relationship under the

CAA, preparation of a regulatory

flexibility analysis would constitute

federal inquiry into the economic

reasonableness of State action. The CAA

forbids USEPA to base its actions

concerning SIPs on such grounds.

Union Electric Co. v. U.S. E.P.A., 427

U.S. 246, 256–66 (S.Ct. 1976); 42 U.S.C.

7410(a)(2).

Under sections 202, 203, and 205 of

the Unfunded Mandates Reform Act of

1995 (Unfunded Mandates Act), signed

into law on March 22, 1995, USEPA

must undertake various actions in

association with proposed or final rules

that include a Federal mandate that may

result in estimated costs of $100 million

or more to the private sector, or to State,

local, or tribal governments in the

aggregate.

Through submission of the State

implementation plan or plan revisions

approved in this action, the State and

any affected local or tribal governments

have elected to adopt the program

provided for under section 175A of the

Clean Air Act. The rules and

commitments being proposed for

approval in this action may bind State,

local, and tribal governments to perform

certain actions and also may ultimately

lead to the private sector being required

to perform certain duties. To the extent

that the rules and commitments being

proposed for approval by this action

will impose or lead to the imposition of

any mandate upon the State, local, or

tribal governments either as the owner

or operator of a source or as a regulator,

or would impose or lead to the

imposition of any mandate upon the

private sector, EPA’s action will impose

no new requirements; such sources are

already subject to these requirements

under State law. Accordingly, no

additional costs to State, local, or tribal

governments, or to the private sector,

result from this action. The USEPA has

also determined that this action does

not include a mandate that may result

in estimated costs of $100 million or

more to State, local, or tribal

governments in the aggregate or to the

private sector.

List of Subjects

40 CFR Part 52

Air pollution control, Nitrogen

dioxide, Ozone, Reporting and
Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules 22345

recordkeeping requirements, Volatile

organic compounds.

40 CFR Part 81

Air pollution control.

Authority: 42 U.S.C. 7401–7671q.

Dated: April 21, 1995.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 95–11035 Filed 5–4–95; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 216

[Docket No. 950410098–5098–01; I.D.

030395A]

RIN 0648–AH19

Taking and Importing of Marine

Mammals; Deterrence Regulations and

Guidelines

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: The Marine Mammal

Protection Act (MMPA) Amendments of

1994 (the Amendments) provided new

authority to citizens of the United States

to deter marine mammals from:

Damaging fishing gear and catch;

damaging private property; endangering

public safety; or damaging public

property. The Amendments require

NMFS to publish a list of guidelines for

use in safely deterring marine mammals

and to prohibit deterrence measures that

have a significant adverse impact on

marine mammals. This proposed rule

sets forth preliminary versions of the

guidelines and prohibitions, and seeks

public comment upon which to refine

them.

DATES: Comments must be received no

later than July 5, 1995.

ADDRESSES: Written comments on the

proposed rule should be addressed to

Dr. William W. Fox, Jr., Director, Office

of Protected Resources, National Marine

Fisheries Service, 1315 East-West

Highway, Silver Spring, MD 20910–

3226. A copy of the Environmental

Assessment (EA) and list of experts may

be obtained by writing to this address or

by telephoning one of the contacts listed

below.

FOR FURTHER INFORMATION CONTACT: Tom

Eagle or Ken Hollingshead Office of

Protected Resources at (301) 713–2322;

Doug Beach, Northeast Regional Office

at (508) 281–9254; Jeff Brown, Southeast

Regional Office at (813) 893–3366; Irma

Lagomarsino, Southwest Regional Office

at (310) 980–4020; Joe Scordino,

Northwest Regional Office at (206) 526–

6143; or Steve Zimmerman, Alaska

Regional Office at (907) 586–7510.

SUPPLEMENTARY INFORMATION:

Background

The 1994 Amendments to the MMPA

amended section 101(a)(4) to authorize

fishers to deter marine mammals from

damaging fishing gear or catch, property

owners to deter marine mammals from

damaging property, government officials

to deter marine mammals from

damaging public property, and anyone

to deter marine mammals from

endangering personal safety, so long as

such acts of deterrence do not result in

the serious injury or mortality of a

marine mammal. Section 101(a)(4) of

the MMPA directs the NMFS to develop

and publish guidelines for use in safely

deterring marine mammals and to

prohibit deterrence measures

determined to have a significant adverse

effect on the animals. Section

101(a)(4)(B) directs NMFS to

recommend specific measures which

may be used to nonlethally deter marine

mammals listed as endangered or

threatened under the Endangered

Species Act of 1973 (ESA). Such

measures must be consistent with the

provisions of the ESA. Actions to deter

marine mammals consistent with such

guidelines or specific measures would

not be a violation of the MMPA.

The guidelines and prohibitions of

this proposed rule would apply only

with respect to marine mammal species

which are not listed under the ESA.

Specific recommended measures of

nonlethal deterrence for ESA-listed

species will be the subject of a separate

rule. In the meantime, the use of

deterrence measures upon marine

mammal species listed under the ESA

would remain prohibited.

Under the MMPA’s section 114

Interim Exemption Program,

commercial fishers were authorized, in

certain situations, to deter marine

mammals, to take them by harassment,

and to intentionally kill them to protect

fishing gear and catch. The 1994

Amendments to the MMPA changed

this by prohibiting intentional killing

and authorizing only acts of deterrence

that do not cause serious injury or

mortality to marine mammals.

Furthermore, intentional lethal taking is

now explicitly prohibited, except in the

defense of human life, by new sections

101(c) and 118(a)(5) (see 60 FR 6036,

February 1, 1995). Taken together, these

new provisions effect a marked change

in how some fisheries legally interact

with marine mammals. The deterrence

guidelines and prohibitions of this

proposed rule would facilitate that

change, allowing the use of effective

deterrence measures while limiting

injurious force.

New section 101(a)(4) of the MMPA

authorizes the intentional interaction of

private citizens with marine mammals.

Recreational fishers may now deter

marine mammals from damaging fishing

gear or catch; property owners or their

agents may now deter marine mammals

from damaging their property; and the

general public may now deter marine

mammals from endangering personal

safety, provided such deterrence does

not cause a marine mammal’s death or

serious injury. The proposed guidelines

and prohibited measures set forth

activities that are not likely to cause a

marine mammal death or serious injury

and specifically prohibit activities

determined, using the best scientific

information available, to have a

significant adverse effect on marine

mammals. Actions by the public to deter

non-ESA listed marine mammals

consistent with such guidelines would

not be a violation of the MMPA.

Because Federal, state, and local

government officials had the authority

to take marine mammals prior to the

1994 MMPA Amendments if doing so

was for the protection or welfare of the

animals or for the protection of the

public health and welfare, and, because

regulations governing such takings,

which take into account the special

training and experience levels of such

officials, are already in place at 50 CFR

216.22, the proposed guidelines and

prohibitions would not apply to acts of

deterrence by government officials.

Guidelines

The proposed guidelines for use in

safely deterring marine mammals would

provide information on acceptable types

of deterrence actions. The proposed

guidelines incorporate caution and

restraint in their deterrence methods

and should minimize marine mammal

injuries, if followed. The broad

application of these proposed guidelines

to a wide range of marine mammal

species, interaction situations, and

highly variable marine mammal

behavioral reactions requires that the

guidelines be general. They would give

direction to ensure that deterrence

actions do not result in the serious

injury or death of a marine mammal.

‘‘Passive’’ deterrence measures, those

that prevent a marine mammal from

gaining access to property, people, or