        DEPARTMENT OF DEFENSE
        GENERAL SERVICES ADMINISTRATION
        NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
        48 CFR Parts 2, 7, 12, 25, 52
        [FAR Case 2005-011; Docket 2006-0020; Sequence 3]
        RIN:  9000-AK42
        Federal Acquisition Regulation; FAR Case 2005-011, Contractor Personnel in a Theater of Operations or at a Diplomatic or Consular Mission

          AGENCIES:
           Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

          ACTION:
           Proposed rule.

          SUMMARY:
           The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to address the issues of contractor personnel that are providing support to the mission of the United States Government in the theater of operations or at a diplomatic or consular mission outside the United States, but are not covered by the DoD clause for contractor personnel authorized to accompany the U.S. Armed Forces.

          DATES:
           Interested parties should submit written comments to the FAR Secretariat on or before September 18, 2006 to be considered in the formulation of a final rule.

          ADDRESSES:
           Submit comments identified by FAR case 2005-011 by any of the following methods:

        • Federal eRulemaking Portal: http://acquisition.gov. Follow the instructions for submitting comments.
        • Agency Web site: http:// acquisition.gov/far/ProposedRules/proposed.htm. Click on the FAR case number to submit comments.
        • E-mail:  farcase.2005-011@gsa.gov. Include FAR case 2005-011 in the subject line of the message.
        • Fax:  202-501-4067.
        • Mail:  General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN:  Laurieann Duarte, Washington, DC  20405.

          Instructions: Please submit comments only and cite FAR case 2005-011 in all correspondence related to this case.  All comments received will be posted without change to http://acquisition.gov/far/ProposedRules/proposed.htm, including any personal and/or business confidential information provided.

          FOR FURTHER INFORMATION CONTACT:
           For clarification of content, contact Linda Nelson, Procurement Analyst, at (202) 501-1900. The TTY Federal Relay Number for further information is 1-800-877-8973.  Please cite FAR case 2005-011.  For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755.

        SUPPLEMENTARY INFORMATION:
        A.  Background-
        This rule proposes to create a new FAR Subpart 25.3 to address issues relating to contractors outside the United States, including new section 25.302, Contractor personnel in a theater of operations or at a diplomatic or consular mission outside the United States.  The rule also proposes a new clause entitled “Contractor Personnel in a Theater of Operations or at a Diplomatic or Consular Mission Outside the United States.”
        The clause applies when contractor personnel are employed outside the United States—
        • In a theater of operations during—
        • Contingency operations;
        • Humanitarian or peacekeeping operations;
        • Other military operations; or
        • Military exercises designated by the combatant commander; or
        • At a diplomatic or consular mission, when specified by the chief of mission.
        This new clause clarifies that contractor personnel are civilians.  Contractor personnel, except private security contractor personnel, are not authorized to use deadly force against enemy armed forces other than in self defense.  Private security contractor personnel are only authorized to use deadly force when necessary to execute their security mission to protect assets/persons, consistent with the mission statement contained in their contract.  It is the responsibility of the Combatant Commander to ensure that private security contract mission statements do not authorize the performance of any inherently Governmental military functions, such as preemptive attacks, or any other types of attacks.
        The clause also addresses such issues as responsibility for logistical and security support, compliance with laws and regulations, preliminary personnel requirements, processing and departure points, personnel data lists, removal of contractor personnel, authorization of weapons and ammunition, vehicle or equipment licenses, wearing of military clothing and protective equipment, evacuation, personnel recovery, notification and return of personal effects, mortuary affairs, changes in place of performance or Government-furnished facilities, equipment, material, services, or site, and flowdown of the clause to subcontracts.

        In preparation of this proposed rule, the Councils reviewed the proposed rule published by the Department of State in the Federal Register on December 22, 2004 (69 FR 76660).  The Councils also considered the final rule issued by the Department of Defense on May 5, 2005 (70 FR 23790) (DFARS Case 2003-D087, Contractor Personnel Supporting a Force Deployed Outside the United States).
        This is a significant regulatory action and, therefore, was subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993.  This rule is not a major rule under 5 U.S.C. 804.
        B.  Regulatory Flexibility Act-

        The Councils do not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule does not impose economic burdens on contractors.  The purpose and effect of this rule is to relieve the current perceived burden on contractors operating in a contingency environment without consistent guidance or a standardized clause.  By establishing a standardized clause spelling out the standardized rules, this rule effectively reduces the burden on small business.  It establishes a framework within which it will be easier for contractors to operate overseas.  In addition, the availability of Government departure centers in the United States will make it easier for small businesses to meet all pre-departure requirements.  An Initial Regulatory Flexibility Analysis (IRFA) has therefore not been prepared.  The Councils will also consider comments from small entities concerning the affected FAR parts 2, 7, 12, 25, and 52 in accordance with 5 U.S.C. 610.  Interested parties should submit such comments separately and should cite 5 U.S.C. 601, et seq. (FAR Case 2005-011), in correspondence.

        C.  Paperwork Reduction Act

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

          List of Subjects in 48 CFR Parts 2, 7, 12, 25, and 52
          Government procurement.

          Dated: July 10, 2006.
          Linda K. Nelson-
          Acting Director, Contract Policy Division.

        Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 7, 12, 25, and 52 as set forth below:
        1.  The authority citation for 48 CFR parts 2, 7, 12, 25, and 52 continues to read as follows:

          Authority:
           40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).

          PART 2—DEFINITIONS OF WORDS AND TERMS

        2.  Amend section 2.101(b)(2)by adding, in alphabetical order, the definitions “At a diplomatic or consular mission” and “Theater of operations” to read as follows:

          2.101
          Definitions.
          (b)  * * *
          (2)  * * *

            At a diplomatic or consular mission means any location outside the United States where a contractor performs a contract administered by Federal agency personnel subject to the direction of a Chief of Mission pursuant to Section 207 of the Foreign Service Act of 1980 (22 U.S.C. 3927).

            Theater of operations means an area defined by the combatant commander for the conduct or support of specific operations.

          PART 7—ACQUISITION PLANNING
          3.  Amend section 7.105 by revising paragraphs (b)(13)(i) and (b)(19) to read as follows:

            7.105
            Contents of written acquisition plans.
            (b)  * * *
            (13) Logistics consideration. Describe—
            (i)  The assumptions determining contractor or agency support, both initially and over the life of the acquisition, including consideration of contractor or agency maintenance and servicing (see Subpart 7.3), support for contracts to be performed in a theater of operations or at a diplomatic or consular mission (see 25.302-3); and distribution of commercial items;
            (19) Other considerations. Discuss, as applicable, standardization concepts, the industrial readiness program, the Defense Production Act, the Occupational Safety and Health Act, foreign sales implications, special requirements for contracts to be performed in a theater of operations or at a diplomatic or consular mission, and any other matters germane to the plan not covered elsewhere.

          PART 12—ACQUISITION OF COMMERCIAL ITEMS-
          4.  Revise section 12.301 by adding paragraph (b)(5) to read as follows:

            12.301
            Solicitation provisions and contract clauses for the acquisition of commercial items.

        (b)(5)  Insert the clause at 52.225-XX, Contractor Personnel in a Theater of Operations or at a Diplomatic or Consular Mission outside the United States, as prescribed in 25.302-5.

          PART 25—FOREIGN ACQUISITION
          5.  Revise section 25.000 to read as follows:

            25.000
            Scope of part.
            (a)  This part provides policies and procedures for—
            (1)  Acquiring foreign supplies, services, and construction materials; and
            (2)  Performance of contractor personnel outside the United States.
            (b)  It implements the Buy American Act, trade agreements, and other laws and regulations.

        6.  Add Subpart 25.3  to read as follow:

            Subpart 25.3—Contractors Outside the United States

              Sec

            25.301
            [Reserved]
            25.302
             Contractor personnel in a theater of operations or at a diplomatic or consular mission outside the United States.
            25.302-1
             Scope.
            25.302-2
            Definitions.
            25.302-3
            Government support.
            25.302-4
            Weapons.
            25.302-5
            Contract clauses.

          Subpart 25.3—Contractors Outside the United States

            25.301
             [Reserved]

            25.302
            Contractor personnel in a theater of operations or at a diplomatic or consular mission outside the United States.

            25.302-1
            Scope.
            This section applies to contracts requiring contractor personnel to perform outside the United States—
            (a)  In a theater of operations during— -
            (1)  Contingency operations; -
            (2)  Humanitarian or peacekeeping operations;-
            (3)  Other military operations; or -
            (4)  Military exercises designated by the combatant commander; or
            (b)  At a diplomatic or consular mission, when designated by the chief of mission.

            25.302-2
            Definitions.

              Chief of mission means the principal officer in charge of a diplomatic mission of the United States or of a United States office abroad which is designated by the Secretary of State as diplomatic in nature, including any individual assigned under section 502(c) of the Foreign Service Act of 1980 (Public Law 96-465) to be temporarily in charge of such a mission or office.

              Combatant Commander means the commander of a unified or specified combatant command established in accordance with 10 U.S.C. 161.

              Other military operations means a range of military force responses that can be projected to accomplish assigned tasks.  Such operations may include one or a combination of the following: civic action, humanitarian assistance, civil affairs, and other military activities to develop positive relationships with other countries; confidence building and other measures to reduce military tensions; military presence; activities to convey messages to adversaries; military deceptions and psychological operations; quarantines, blockades, and harassment operations; raids; intervention operations; armed conflict involving air, land, maritime, and strategic warfare operations; support for law enforcement authorities to counter international criminal activities (terrorism, narcotics trafficking, slavery, and piracy); support for law enforcement authorities to suppress domestic rebellion; and support for insurgency, counterinsurgency, and civil war in foreign countries.

            25.302-3
            Government support.

            (a)   Generally, contractors are responsible for providing their own logistical and security support, including logistical and security support for their employees.  The agency shall provide logistical or security support only when the appropriate agency official, in accordance with agency guidance, determines that Government provision of such support is needed to ensure continuation of essential contractor services and adequate support cannot be obtained by the contractor from other sources.
            (b)  The contracting officer shall specify in the contract the exact support to be provided, and whether this support is provided on a reimbursable basis, citing the authority for the reimbursement.

            25.302-4
            Weapons.
            The contracting officer shall follow agency procedures and the weapons policy established by the combatant commander or the chief of mission when authorizing contractor personnel to carry weapons (see paragraph (i) of the clause at 52.225-XX, Contractor Personnel in a Theater of Operations or at a Diplomatic or Consular Mission outside the United States).

            25.302-5
            Contract clauses.
            Insert the clause at 52.225-XX, Contractor Personnel in a Theater of Operations or at a Diplomatic or Consular Mission outside the United States, in solicitations and contracts when contract performance requires that contractor personnel be available to perform outside the United States—
            (a)  In a theater of operations during—
            (1)  Contingency operations; -
            (2)  Humanitarian or peacekeeping operations;
            (3)  Other military operations; or -
            (4)  Military exercises designated by the combatant commander; or
            (b) At a diplomatic or consular mission, when specified by the chief of mission.

          PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

        7.  Add section 52.225-XX to read as follows:

          52.225-XX
          Contractor Personnel in a Theater of Operations or at a Diplomatic or Consular Mission outside the United States.
          As prescribed in 25.302-5, insert the following clause: -

            CONTRACTOR PERSONNEL IN A THEATER OF OPERATIONS OR AT A DIPLOMATIC OR CONSULAR MISSION OUTSIDE THE UNITED STATES ([INSERT ABBREVIATED MONTH AND YEAR OF PUBLICATION IN THE FEDERAL REGISTER])
            (a)  Definitions.  As used in this clause—

              At a diplomatic or consular mission means any location  outside the United States where a Contractor performs a contract administered by Federal agency personnel subject to the direction of a Chief of Mission pursuant to Section 207 of the Foreign Service Act of 1980 (22 U.S.C. 3927).

              Chief of mission means the principal officer in charge of a diplomatic mission of the United States or of a United States office abroad which is designated by the Secretary of State as diplomatic in nature, including any individual assigned under section 502(c) of the Foreign Service Act of 1980 (Public Law 96-465) to be temporarily in charge of such a mission or office.

              Combatant Commander means the commander of a unified or specified combatant command established in accordance with 10 U.S.C. 161.

              Other military operations means a range of military force responses that can be projected to accomplish assigned tasks.  Such operations may include one or a combination of the following: civic action, humanitarian assistance, civil affairs, and other military activities to develop positive relationships with other countries; confidence building and other measures to reduce military tensions; military presence; activities to convey messages to adversaries; military deceptions and psychological operations; quarantines, blockades, and harassment operations; raids; intervention operations; armed conflict involving air, land, maritime, and strategic warfare operations; support for law enforcement authorities to counter international criminal activities (terrorism, narcotics trafficking, slavery, and piracy); support for law enforcement authorities to suppress domestic rebellion; and support for insurgency, counterinsurgency, and civil war in foreign countries.

              Theater of operations means an area defined by the combatant commander for the conduct or support of specific operations.
            (b) General. (1)  This clause applies when contractor personnel are employed outside the United States—
            (i)  In a theater of operations during—
            (A)  Contingency operations;
            (B)  Humanitarian or peacekeeping operations;
            (C)  Other military operations; or -
            (D)  Military exercises designated by the combatant commander; or
            (ii)  At a diplomatic or consular mission, when specified by the chief of mission.
            (2)  Contract performance may require work in dangerous or austere conditions.  The Contractor accepts the risks associated with required contract performance in such operations.
            (3)  Contractor personnel are civilians.
            (i)  Except as provided in paragraph (b)(3)(ii) of this clause, Contractor personnel are not authorized to use deadly force against enemy armed forces other than in self defense.
            (ii)  Private security Contractor personnel are authorized to use deadly force only when necessary to execute their security mission to protect assets/persons, consistent with the mission statement contained in their contract.
            (iii)  Civilians lose their law of war protection from direct attack if and for such time as they take a direct part in hostilities.
            (4)  Service performed by Contractor personnel subject to this clause is not active duty or service under 38 U.S.C. 106 note.
            (c) Support. Unless specified elsewhere in the contract, the Contractor is responsible for all logistical and security support required for Contractor personnel engaged in this contract.
            (d) Compliance with laws and regulations. The Contractor shall comply with, and shall ensure that its personnel in the area of performance in the theater of operations or at the diplomatic or consular mission are familiar with and comply with, all applicable—
            (1)  United States, host country, and third country national laws;
            (2)  Treaties and international agreements;
            (3)  United States regulations, directives, instructions, policies, and procedures; and
            (4)  Orders, directives, and instructions issued by the Chief of Mission or the Combatant Commander relating to mission accomplishments, force protection, security, health, safety, or relations and interaction with local nationals.
            (e) Preliminary personnel requirements. (1)  Specific requirements for paragraphs (e)(2)(i) through (e)(2)(vi) of this clause will be set forth in the statement of work, or elsewhere in the contract.
            (2)  Before Contractor personnel depart from the United States or a third country, and before Contractor personnel residing in the host country begin contract performance in the theater of operations or at the diplomatic or consular mission, the Contractor shall ensure the following:
            (i) All applicable specified security and background checks are completed.
            (ii) All personnel are medically and physically fit and have received all required vaccinations.
            (iii) All personnel have all necessary passports, visas, entry permits, and other documents required for contractor personnel to enter and exit the foreign country, including those required for in-transit countries.
            (iv) All personnel have received—
            (A)  A country clearance or special area clearance, if required by the chief of mission; and
            (B)  A theater clearance, if required by the Combatant Commander.
            (v)  All personnel have received personal security training.  The training must at a minimum—
            (A)  Cover safety and security issues facing employees overseas;
            (B)  Identify safety and security contingency planning activities; and
            (C)  Identify ways to utilize safety and security personnel and other resources appropriately.
            (vi) All personnel have received isolated personnel training, if specified in the contract.

            (vii)  All personnel who are U.S. citizens are registered with the U.S. Embassy or Consulate with jurisdiction over the area of operations on-line at http://www.travel.state.gov.

            (3)  The Contractor shall notify all personnel who are not a host country national or ordinarily resident in the host country that—

            (i)  If this contract is with the Department of Defense, or the contract relates to supporting the mission of the Department of Defense outside the United States, such employees, and dependents residing with such employees, who engage in conduct outside the United States that would constitute an offense punishable by imprisonment for more than one year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States, may potentially be subject to the criminal  jurisdiction of the United States (see the Military Extraterritorial Jurisdiction Act of 2000 (18 U.S.C. 3261 et seq.);
            (ii)   Pursuant to the War Crimes Act, 18 U.S.C. 2441, Federal criminal jurisdiction also extends to conduct that is determined to constitute a violation of the law of war when committed by a civilian national of the United States;
            (iii)  Other laws may provide for prosecution of U.S. nationals who commit offenses on the premises of United States diplomatic, consular, military or other United States Government missions outside the United States (18 U.S.C. 7(9)).
            (f) Processing and departure points. The Contractor shall require its personnel who are arriving from outside the area of performance to perform in the theater of operations or at the diplomatic or consular mission to—
            (1)  Process through the departure center designated in the contract or complete another process as directed by the Contracting Officer;
            (2)  Use a specific point of departure and transportation mode as directed by the Contracting Officer; and
            (3)  Process through a reception center designated by the Contracting Officer upon arrival at the place of performance.
            (g) Personnel data list. (1)  The Contractor shall establish and maintain with the designated Government official a current list of all contractor personnel in the areas of performance.  The Contracting Officer will inform the Contractor of the Government official designated to receive this data and the appropriate system to use for this effort.
            (2)  The Contractor shall ensure that all employees on this list have a current record of emergency data, for notification of next of kin, on file with both the Contractor and the designated Government official.
            (h) Contractor personnel. The Contracting Officer may direct the Contractor, at its own expense, to remove and replace any Contractor personnel who jeopardize or interfere with mission accomplishment or who fail to comply with or violate applicable requirements of this clause.  Such action may be taken at the Government’s discretion without prejudice to its rights under any other provision of this contract, including termination for default or cause.
            (i)  Weapons. (1)  If the Contracting Officer, subject to the approval of the Combatant Commander or the Chief of Mission, authorizes the carrying of weapons—
            (i)  The Contracting Officer may authorize an approved Contractor to issue Contractor-owned weapons and ammunition to specified employees;  or
            (ii)  The [specify individual, e.g. Contracting Officer Representative, Regional Security Officer, etc,] may issue Government-furnished weapons and ammunition to the Contractor for issuance to specified contractor employees.
            (2)  The Contractor shall provide to the Contracting Officer a specific list of personnel for whom authorization to carry a weapon is requested.
            (3)  The Contractor shall ensure that its personnel who are authorized to carry weapons—
            (i)  Are adequately trained to carry and use them—
            (A)  Safely;
            (B)  With full understanding of, and adherence to, the rules of the use of force issued by the Combatant Commander or the Chief of Mission; and
            (C)  In compliance with applicable agency policies, agreements, rules, regulations, and other applicable law;
            (ii)  Are not barred from possession of a firearm by 18 U.S.C. 922; and
            (iii)  Adhere to all guidance and orders issued by the Combatant Commander or the Chief of Mission regarding possession, use, safety, and accountability of weapons and ammunition.
            (4)  Upon revocation by the Contracting Officer of the Contractor’s authorization to possess weapons, the Contractor shall ensure that all Government-furnished weapons and unexpended ammunition are returned as directed by the Contracting Officer.
            (5)  Whether or not weapons are Government-furnished, all liability for the use of any weapon by Contractor personnel rests solely with the Contractor and the Contractor employee using such weapon.
            (j) Vehicle or equipment licenses. Contractor personnel shall possess the required licenses to operate all vehicles or equipment necessary to perform the contract in the area of performance.
            (k) Military clothing and protective equipment. (1)  Contractor personnel are prohibited from wearing military clothing unless specifically authorized by the Combatant Commander.  If authorized to wear military clothing, Contractor personnel must wear distinctive patches, arm bands, nametags, or headgear, in order to be distinguishable from military personnel, consistent with force protection measures.
            (2)  Contractor personnel may wear specific items required for safety and security, such as ballistic, nuclear, biological, or chemical protective equipment.
            (l) Evacuation. (1)  If the Chief of Mission or Combatant Commander orders a mandatory evacuation of some or all personnel, the Government will provide to United States and third country national Contractor personnel the level of assistance provided to private United States citizens.
            (2)  In the event of a non-mandatory evacuation order, the Contractor shall maintain personnel on location sufficient to meet contractual obligations unless instructed to evacuate by the Contracting Officer.
            (m) Personnel recovery. (1)  In the case of isolated, missing, detained, captured or abducted Contractor personnel, the Government will assist in personnel recovery actions.
            (2)  Personnel recovery may occur through military action, action by non-governmental organizations, other U.S. Government-approved action, diplomatic initiatives, or through any combination of these options.
            (3)  The Department of Defense has primary responsibility for recovering DoD contract service employees and, when requested, will provide personnel recovery support to other agencies in accordance with DoD Directive 2310.2, Personnel Recovery.
            (n) Notification and return of personal effects. (1)  The Contractor shall be responsible for notification of the employee-designated next of kin, and notification as soon as possible to the U.S. Consul responsible for the area in which the event occurred, if the employee—
            (i)  Dies;
            (ii)  Requires evacuation due to an injury; or - -
            (iii) Is isolated, missing, detained, captured, or abducted.
            (2)  The Contractor shall also be responsible for the return of all personal effects of deceased or missing Contractor personnel, if appropriate, to next of kin.
            (o) Mortuary affairs. Mortuary affairs for Contractor personnel who die in the area of performance will be handled as follows:
            (1)  If this contract was awarded by DoD, the remains of Contractor personnel will be handled in accordance with DoD Directive 1300.22, Mortuary Affairs Policy.
            (2)(i)  If this contract was awarded by an agency other than DoD, the Contractor is responsible for the return of the remains of Contractor personnel from the point of identification of the remains to the location specified by the employee or next of kin, as applicable, except as provided in paragraph (o)(2)(ii) of this clause.
            (ii)  In accordance with 10 U.S.C. 1486, the Department of Defense may provide, on a reimbursable basis, mortuary support for the disposition of remains and personal effects of all U.S. citizens upon the request of the Department of State.
            (p) Changes. In addition to the changes otherwise authorized by the Changes clause of this contract, the Contracting Officer may, at any time, by written order identified as a change order, make changes in place of performance or Government-furnished facilities, equipment, material, services, or site.  Any change order issued in accordance with this paragraph shall be subject to the provisions of the Changes clause of this contract.

            (q) Subcontracts. The Contractor shall incorporate the substance of this clause, including this paragraph (q), in all subcontracts that require subcontractor personnel to perform outside the United States—
            (1)  In a theater of operations during—
            (i)  Contingency operations;
            (ii)  Humanitarian or peacekeeping operations;
            (iii)  Other military operations; or
            (iv)  Military exercises designated by the Combatant Commander; or
            (2)  At a diplomatic or consular mission, when specified by the chief of mission.
            (End of clause)

      - [FR Doc. 06-6278 Filed 7-17-06; 8:45 am]
      BILLING CODE 6820-EP-S


        DEPARTMENT OF COMMERCE
        National Oceanic and Atmospheric Administration
        50 CFR Part 679
        [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

          AGENCY:
          National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

          ACTION:
          Notice of availability; request for comments.

          SUMMARY:
          The North Pacific Fishery Management Council (Council) has submitted Amendment 85 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) to NMFS for review. If approved, Amendment 85 would revise the current Bering Sea and Aleutian Islands management area (BSAI) Pacific cod allocations of total allowable catch (TAC) among various harvest sectors, modify the management of Pacific cod incidental catch in other non-target fisheries, eliminate the groundfish reserve for Pacific cod, increase the percentage of the BSAI Pacific cod TAC apportioned to the Community Development Quota (CDQ) Program, and add a new appendix to the FMP that summarizes the Consolidated Appropriations Act of 2005. Amendment 85 is necessary to reduce uncertainty about the availability of yearly harvests within sectors caused by reallocations, and to maintain stability between sectors in the BSAI Pacific cod fishery. This would be accomplished by establishing allocations that more closely reflect actual use by sector than do current allocations while considering socioeconomic and community factors, thus reducing the need for reallocations during the fishing year. This proposed amendment also is necessary to implement recent changes to the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) that require a directed fishing allocation of 10 percent to the CDQ Program upon the establishment of a sector allocation. This action is intended to promote the goals and objectives of the Magnuson-Stevens Act, the FMP, and other applicable laws. The amendment is available for public review and comment.

          DATES:
          Comments on Amendment 85 must be received on or before February 5, 2007.

          ADDRESSES:
          Send written comments to Sue Salveson, Assistant Regional Administrator, Sustainable Fisheries Division, Alaska Region, NMFS, Attn: Ellen Walsh, Records Officer. Comments may be submitted by:
          • Hand delivery: 709 West 9th Street, Room 420A, Juneau, AK;
          • E-mail: 0648-AU48-BSA85-NOA@noaa.gov. Include in the subject line the following document identifier: “Pacific cod RIN 0648 AU48.” E-mail comments, with or without attachments, are limited to 5 megabytes;
          • Fax: 907-586-7557;
          • Mail: P.O. Box 21668, Juneau, AK 99802-1668; or
          • Webform at the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions at that site for submitting comments.

          Copies of the Amendment 85 Environmental Assessment/Regulatory Impact Review/Initial Regulatory Flexibility Analysis (EA/RIR/IRFA) prepared for this action are available from the NMFS Alaska Region website at www.fakr.noaa.gov or from the mailing and street addresses listed above.

          FOR FURTHER INFORMATION CONTACT:
          Becky Carls, 907-586-7228 or becky.carls@noaa.gov.

        SUPPLEMENTARY INFORMATION:

        The Magnuson-Stevens Act requires that each regional fishery management council submit any FMP or FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary. The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a notice in the Federal Register that the FMP or amendment is available for public review and comment. This requirement is satisfied by this notice of availability for Amendment 85.

        The BSAI Pacific cod TAC, after subtraction of reserves, currently is subdivided, or allocated, among eight non-CDQ fishing industry sectors based on the type of fishing gear used pursuant to regulations at 50 CFR 679.20(a)(7). Basically, these gear sectors include trawl gear, fixed gear (hook-and-line and pot), and jig gear. These basic allocations are further subdivided between catcher/processor vessels (CPs) that process their catch and catcher vessels (CVs) that catch fish but do not process it, and by length of vessel in some cases. Some allocations are further apportioned between seasons. The purpose of these allocations and apportionments is to prevent one industry sector from unfairly affecting the harvesting opportunities of other sectors and to ensure temporal dispersion of harvest to protect Steller sea lions. Several FMP amendments, implemented beginning in 1994, have allocated Pacific cod among these harvesting sectors. The previous and current allocations by sector, and those proposed under Amendment 85, are summarized in the following table.

          Percent sector allocations by amendment of BSAI Pacific cod non-CDQ TAC

            Sector
            Amendment 24(59 FR 4009, January 28, 1994)

            Amendment 46(61 FR 59029, November 20, 1996)

            Amendment 64(65 FR 51553, August 24, 2000)

            Amendment 77(68 FR 49416, August 18, 2003)(Current)

            Proposed Amendment 85

            Jig
            2.0
            2.0
            2.0
            2.0
            1.4

            Hook-and-line/pot CV < 60ft (18.3 m) LOA
            44.0
            51.0
            0.7
            0.7
            2.0

            Hook-and-line CV ≥ 60ft (18.3 m) LOA

            0.2
            0.2
            0.2

            Hook-and-line CP

            40.8
            40.8
            48.7

            Pot CP

            9.3
            1.7
            1.5

            Pot CV ≥ 60ft (18.3 m) LOA

            7.6
            8.4

            Trawl CV
            54.0
            23.5
            23.5
            23.5
            22.1

            AFA trawl CP

            23.5
            23.5
            23.5
            2.3

            Non-AFA trawl CP

            13.4

          Abbrevations: AFA = American Fisheries Act and LOA = length overall.

        The BSAI Pacific cod non-CDQ TAC currently is fully distributed among eight competing harvest sectors. The Pacific cod TAC allocations and apportionments for 2006 and 2007 are located in Table 5 of the groundfish specifications published March 3, 2006 (71 FR 10900), and may be changed as necessary during any fishing year pursuant to 50 CFR 679.20(a)(7)(ii) and 679.25(a).
        Under the existing allocations, one or more sectors are typically unable to harvest their annual allocation of the Pacific cod TAC. To provide an opportunity for the full harvest of the BSAI Pacific cod non-CDQ TAC, existing allocations of Pacific cod that are projected to be unharvested by some sectors are annually reallocated by NMFS to other sectors. Since 1994, NMFS has reallocated Pacific cod each year from the trawl and jig sectors to fixed gear sectors. In 2002 and in 2004, reallocations also were made from the pot gear sectors to the hook-and-line CP sector. Reallocations within gear types (e.g., trawl CPs to trawl CVs, or hook-and-line CVs to hook-and-line CPs) have occurred less frequently and in lower amounts. Unharvested amounts typically result from gear specific PSC limitations closing directed fishing for Pacific cod, low catch rates during certain times of the year that can result from seasonal apportionments of the Pacific cod TAC, or insufficient effort by a sector.
        In developing Amendment 85, the Council determined that current allocations do not correspond with actual dependence and use by the existing sectors, as demonstrated by the need for annual reallocations. Reallocations maintain a level of uncertainty for some sectors regarding the amount of Pacific cod available for harvest. The Council expects that uncertainty to decrease due to the revisions to the Pacific cod non-CDQ allocations under this proposed amendment. Members of various gear sectors expressed concern that the current allocations are overdue for review, as the overall division of TAC among the trawl, jig, and fixed gear sectors has been in place since 1997. Participants in the BSAI Pacific cod fishery that have made significant investments and have a long-term dependence on the resource, assert that they need enhanced stability in the sector allocations.
        Under Amendment 85, the Council selected nine individual non-CDQ sectors to receive separate BSAI Pacific cod non-CDQ TAC allocations (see table above). These sectors are jig, fixed gear (pot and hook-and-line gear) CVs less than 60 ft (18.3 m) length overall (hereafter, < 60 ft LOA), hook-and-line CVs greater than or equal to 60 ft LOA (hereafter, ≥ 60 ft LOA), hook-and-line CPs, pot CVs ≥ 60 ft LOA, pot CPs, trawl CPs, and trawl CVs. The Council selected allocations using catch histories from 1995 through 2003 and other socio-economic and community considerations. The Council determined that the new allocations better reflect actual dependency and use by sector, with specific consideration to allow for additional growth in the small boat, entry-level sectors (fixed gear CVs < 60 ft LOA and jig). The primary objective of the Council in revising the BSAI Pacific cod non-CDQ TAC allocations to each sector was to reduce the level and frequency of annual reallocations, and thus enhance sector stability so that each sector may better plan its fishing year and operate more efficiently.
        The proposed rule to implement Amendment 85 would make the following changes in regulations for the management of the BSAI directed Pacific cod fishery:

        • Increase the percentage of the BSAI Pacific cod TAC apportioned to the CDQ Program.

        • Revise the allocations of BSAI Pacific cod non-CDQ TAC among various gear sectors.
        • Modify the management of Pacific cod incidental catch that occurs in other groundfish fisheries.
        • Eliminate the Pacific cod nonspecified reserve.
        • Establish a hierarchy for the reallocation of projected unused sector allocations to other sectors.
        • Adjust the seasonal allowances of Pacific cod to various sectors.
        • Subdivide among sectors the annual PSC limits apportioned to the Pacific cod trawl and hook-and-line gear fisheries.
        • Modify the sideboard restrictions for Pacific cod that are applied to the CP vessels listed as eligible under the American Fisheries Act (AFA).
        • Revise the definition for AFA trawl catcher/processor and add definitions for hook-and-line catcher/processor, non-AFA trawl catcher/processor, and pot catcher/processor.
        Two additional pieces of Federal legislation affect Amendment 85. First, on December 8, 2004, the President signed into law the Consolidated Appropriations Act of 2005 (Act; Public Law 108-447). With respect to fisheries off Alaska, the Act establishes catcher processor sector definitions for participation in: (1) the catcher processor subsectors of the BSAI non-pollock groundfish fisheries, and (2) the BSAI Catcher Processor Capacity Reduction Program. The following subsectors are defined in section 219(a) of the Act and are not repeated here: AFA trawl catcher processor; non-AFA trawl catcher processor; longline catcher processor; and pot catcher processor.
        Section 219(a) of the Act also defines “non-pollock groundfish fishery” as target species of Atka mackerel, flathead sole, Pacific cod, Pacific ocean perch, rock sole, turbot, or yellowfin sole harvested in the BSAI. Thus, the Act provides the qualification criteria that each participant in the CP subsectors must meet in order to operate as a CP in the BSAI non-pollock groundfish fishery and/or participate in the BSAI Catcher Processor Capacity Reduction Program.
        The Act includes numerous provisions that are not related to the management of groundfish and crab fisheries off Alaska. Only the portions of the legislation related to eligibility of the catcher processor subsectors would be provided for reference in a new appendix to the FMP, Appendix J. The portions of the legislation authorizing and governing the development of the BSAI Catcher Processor Capacity Reduction Program would not be provided in the appendix.
        Second, the Coast Guard and Maritime Transportation Act of 2006 (Public Law 109-241), signed into law on July 11, 2006, amended section 305(i)(1) of the Magnuson-Stevens Act. Section 305(i)(1)(B)(ii)(I) of the Magnuson-Stevens Act now requires that a directed fishing allowance of 10 percent be allocated to the CDQ Program upon the establishment of sector allocations in a fishery. Currently, the CDQ Program receives a fishing allocation of 7.5 percent of the Pacific cod TAC, as the CDQ reserve, that is used by CDQ groups for directed fishing for Pacific cod (targeted fishing for Pacific cod), plus incidental catch (Pacific cod that are caught and retained while targeting other species) and bycatch (Pacific cod that are caught and released while targeting other species). Because Amendment 85, if approved, would establish sector allocations in the BSAI Pacific cod fishery, this action would allocate 10 percent of the BASI Pacific cod TAC to the CDQ reserve as a directed fishing allowance. The 10 percent directed fishing allocation of Pacific cod to the CDQ reserve is only for directed fishing and does not include amounts of Pacific cod needed for incidental catch or bycatch in other CDQ groundfish fisheries. Therefore, this proposed amendment also would allocate a CDQ incidental catch allowance for Pacific cod to the CDQ reserve. Currently, the CDQ reserve is deducted from the Pacific cod TAC before the remaining Pacific cod TAC is allocated to the other fishing sectors. As intended by the Council, this amendment would continue this procedure: the 10 percent directed fishing allowance and the CDQ incidental catch allowance would be subtracted from the Pacific cod TAC before allocations of Pacific cod are made to the non-CDQ sectors.

        Public comments are being solicited on proposed Amendment 85 through the end of the comment period stated (see DATES). A proposed rule to implement Amendment 85 will be published in the Federal Register for public comment, following NMFS' evaluation under Magnuson-Stevens Act procedures. Public comments on the proposed rule must be received by the end of the comment period on Amendment 85 to be considered in the approval/disapproval decision on the amendment. All comments received by the end of the comment period on Amendment 85, whether specifically directed to the amendment or the proposed rule, will be considered in the decision to approve, partially approve, or disapprove the proposed amendment. Comments received after the comment period for the amendment will not be considered in that decision. To be considered, written comments must be received by NMFS, not just postmarked or otherwise transmitted, by the close of business on the last day of the comment period.

          Authority:
          16 U.S.C. 773 et seq.; 1540(f); 1801 et seq.; 1851 note; 3631 et seq.

          Dated: November 30, 2006.
          James P. Burgess,
          Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.

      [FR Doc. E6-20700 Filed 12-6-06; 8:45 am]
      BILLING CODE 3510-22-S


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Part 52
        [EPA-R10-OAR-2020-0649; FRL-8788-01-R10]

        Air Plan Approval; AK; Juneau's Mendenhall Valley Second 10-Year PM10 Limited Maintenance Plan

          AGENCY:
          Environmental Protection Agency (EPA).

          ACTION:
          Proposed rule.

          SUMMARY:

          The Environmental Protection Agency (EPA) is proposing to approve the Juneau, Mendenhall Valley, Alaska (AK) limited maintenance plan (LMP) submitted on November 10, 2020, by the Alaska Department of Environmental Conservation (ADEC or “the State”). This plan addresses the second 10-year maintenance period beyond redesignation for particulate matter with an aerodynamic diameter less than or equal to a nominal 10 micrometers (PM10). A LMP is used to meet Clean Air Act (CAA) requirements for formerly designated nonattainment areas that meet certain qualification criteria. The EPA is proposing to determine that Alaska's LMP meets CAA requirements. The plan relies upon control measures contained in the first 10-year maintenance plan and the determination that the Mendenhall Valley area currently monitors PM10 levels well below the PM10 National Ambient Air Quality Standards (NAAQS or “the standard”).

          DATES:
          Comments must be received on or before September 10, 2021.

          ADDRESSES:

          Submit your comments, identified by Docket ID No. EPA-R10-OAR-2020-0649, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

          FOR FURTHER INFORMATION CONTACT:

          Christi Duboiski, EPA Region 10, 1200 Sixth Avenue, Suite 155, Seattle, WA 98101, at (360) 753-9081, or duboiski.christi@epa.gov.

        SUPPLEMENTARY INFORMATION:
        Throughout this document, wherever “we”, “us” or “our” is used, it means the EPA.
        Table of Contents

          I. Background
          II. Limited Maintenance Plan Option for PM10 Areas
          A. Requirements for the Limited Maintenance Plan Option
          B. Conformity Under the Limited Maintenance Plan Option
          III. Review of the State's Submittal
          A. Qualifying for the Limited Maintenance Plan Option
          B. Attainment Inventory
          C. Air Quality Monitoring Network
          D. Verification of Continued Attainment
          E. Contingency Provisions
          IV. Proposed Action
          V. Statutory and Executive Order Reviews

        I. Background

        On August 7, 1987, the EPA designated the City of Juneau, Mendenhall Valley area (Mendenhall Valley) as a PM10 nonattainment area (NAA) due to measured violations of the 24-hour PM10 NAAQS (52 FR 29383). The publication announcing the designation upon enactment of the 1990 CAA Amendments was published on March 15, 1991 (56 FR 11101). On November 6, 1991, the Mendenhall Valley NAA was subsequently classified as moderate under sections 107(d)(4)(B) and 188(a) of the CAA (56 FR 56694). ADEC worked with the City of Juneau and the community of Mendenhall Valley to develop a plan to bring the area into attainment no later than December 31, 1994. The State submitted the plan to the EPA on June 22, 1993, as a moderate PM10 State Implementation Plan (SIP) under section 189(a) of the CAA. The primary control measures the plan relied on were a wood smoke control program and paving unpaved roads to control fugitive dust. The EPA took final action to approve the State's moderate PM10 SIP on March 24, 1994 (59 FR 13884).

        On May 8, 2009, the State requested the EPA redesignate the Mendenhall Valley NAA to attainment for PM10 and submitted the Mendenhall Valley PM10 LMP to the EPA for approval. On July 16, 2010, the EPA determined the Mendenhall Valley NAA had attained the PM10 NAAQS as of the extended attainment date of December 31, 1995 (75 FR 41379). On May 9, 2013, the EPA took direct final action to approve the LMP submitted by the State for the Mendenhall Valley NAA and concurrently redesignated the area to attainment for the PM10 NAAQS (78 FR 27071).

        The purpose of the State's November 10, 2020 LMP is to fulfill the second 10-year planning requirement of CAA section 175A(b) to ensure PM10 NAAQS compliance through 2033.
        II. Limited Maintenance Plan Option for PM10 Areas
        A. Requirements for the Limited Maintenance Plan Option
        Section 175A of the CAA sets forth the elements of a maintenance plan. Under section 175A, a state must submit a plan to demonstrate continued attainment of the applicable NAAQS for at least 10 years after an area is redesignated to attainment. The state must then submit a revised maintenance plan demonstrating that the area will continue to attain for the 10 years following the initial 10-year period. On September 4, 1992, the EPA issued guidance on the content of a maintenance plan (Memorandum from John Calcagni, Director, Air Quality Management Division, entitled “Procedures for Processing Requests to Redesignate Areas to Attainment,” (Calcagni Memo)).1
           The Calcagni Memo states that a maintenance plan should include the following provisions: (1) An attainment emissions inventory; (2) a maintenance demonstration showing maintenance for 10 years; (3) a commitment to maintain the existing monitoring network; (4) verification of continued attainment; and (5) a contingency plan to prevent or correct future violations of the NAAQS.

            1 The Memorandum from the EPA's Air Quality Management Division Director to EPA Regional Air Directors entitled “Procedures for Processing Requests to Redesignate Areas to Attainment,” dated September 4, 1992 (Calcagni Memo) can be found at https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/19920904_calcagni_process_redesignation_guidance.pdf.

        On August 9, 2001, the EPA issued guidance on streamlined maintenance plan provisions for certain moderate PM10 nonattainment areas (see Memo from Lydia Wegman, Director, Air Quality Standards and Strategies Division, entitled “Limited Maintenance Plan Option for Moderate PM10 Nonattainment Areas” (LMP Option memo).2
           The LMP Option memo contains a statistical demonstration states can use to show that areas are meeting certain air quality criteria with a high degree of probability and therefore will maintain the standard 10 years into the future. By providing this statistical demonstration, the EPA can consider the maintenance demonstration requirement of the CAA to be satisfied for the moderate PM10 nonattainment area meeting this air quality criteria. If the tests described in section IV of the LMP Option memo are met, the EPA will treat that as a demonstration that the area will maintain the NAAQS. Consequently, it follows that future year emission inventories for these areas, and some of the standard analyses to determine transportation conformity with the SIP are no longer necessary.

            2 The “Limited Maintenance Plan Option for Moderate PM10 Nonattainment Areas” Memo outlines the criteria for development of a PM10
            limited maintenance plan and can be found at https://www.epa.gov/sites/production/files/2016-06/documents/2001lmp-pm10.pdf.

        To qualify for the LMP Option, a State must demonstrate the area meets the following criteria. First, the area should have attained the PM10 NAAQS. Second, the most recent five years of air quality data at all monitors in the area, called the 24-hour average design value, should be at or below 98 micrograms per cubic meter (μg/m3). Third, the State should expect only limited growth in on-road motor vehicle PM10 emissions and should have passed a motor vehicle regional emissions analysis test. Lastly, the LMP Option Memo identifies core provisions that must be included in all limited maintenance plans. These provisions include an attainment year emissions inventory, assurance of continued operation of an EPA-approved air quality monitoring network, and contingency provisions.
        B. Conformity Under the Limited Maintenance Plan Option
        The transportation conformity rule and the general conformity rule (set forth in the Code of Federal Regulations (CFR) at 40 CFR parts 51 and 93) apply to nonattainment areas and maintenance areas covered by an approved maintenance plan. Under either conformity rule, an acceptable method of demonstrating that a Federal action conforms to the applicable SIP is to demonstrate that expected emissions from the planned action are consistent with the emissions budget for the area.

        While the EPA's LMP option does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without conforming to an emissions budget. Under the LMP option, emissions budgets are treated as essentially not constraining for the length of the maintenance period because it is unreasonable to expect that the qualifying areas would experience so much growth in that period that a violation of the PM10 NAAQS would result. For transportation conformity purposes, the EPA would conclude that emissions in these areas need not be capped for the maintenance period and therefore a regional emissions analysis would not be required. Similarly, Federal actions subject to the general conformity rule could be considered to satisfy the “budget test” specified in 40 CFR 93.158 (a)(5)(i)(A) for the same reasons that the budgets are essentially considered to be unlimited.
        While areas with maintenance plans approved under the LMP option are not subject to the budget test (see 40 CFR 93.109(e)), the areas remain subject to the other transportation conformity requirements of 40 CFR part 93, subpart A. Thus, the metropolitan planning organization (MPO) in the area or the state must document and ensure that:
        a. Transportation plans and projects provide for timely implementation of SIP transportation control measures (TCMs) in accordance with 40 CFR 93.113;
        b. transportation plans and projects comply with the fiscal constraint element as set forth in 40 CFR 93.108;
        c. the MPO's interagency consultation procedures meet the applicable requirements of 40 CFR 93.105;
        d. conformity of transportation plans is determined no less frequently than every four years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104;
        e. the latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111;
        f. projects do not cause or contribute to any new localized carbon monoxide or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and
        g. project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.
        If the EPA approves the second 10-year LMP, the Mendenhall Valley maintenance area will continue to be exempt from performing a regional emissions analysis but must meet project-level conformity analyses as well as the transportation conformity criteria described above.
        III. Review of the State's Submittal
        A. Qualifying for the Limited Maintenance Plan Option

        As discussed in Section II.A. of this preamble, the LMP Option Memo outlines the requirements for an area to qualify for an LMP. First, the area should be attaining the PM10 NAAQS. The PM10 NAAQS is attained when the expected number of days per calendar year with a 24-hour average concentration above 150 μg/m3 is equal to or less than one (40 CFR 50.6). We have evaluated the most recent ambient air quality data for the 24-hour PM10 NAAQS and determined that the Mendenhall Valley area continues to attain the NAAQS with zero annual exceedances for the period 2018 through 2020. Table 1 of this preamble shows the Mendenhall Valley area has not exceeded the standard of 150 μg/m3 for the 24-hour maximum PM10 concentrations measured at the Floyd Dryden monitoring site from 2010-2020.

          Table 1—Floyd Dryden 24-Hour Maximum PM10 Concentrations 2010-2020

            Year
            24-Hr max μg/m3

            Number of daysexceeding NAAQS

            2010
            30
            0

            2011
            24
            0

            2012
            26
            0

            2013
            33
            0

            2014
            38
            0

            2015
            21
            0

            2016
            34
            0

            2017
            30
            0

            2018
            24
            0

            2019
            64
            0

            2020
            35
            0

        Second, the 24-hour average design value for the most recent five years of monitoring data must be at or below the critical design value of 98 μg/m3 for the PM10 NAAQS. The critical design value is a margin of safety in which an area has a one in ten probability of exceeding the NAAQS. The 5-year average design value for Mendenhall Valley, based on PM10 monitoring data from 2014 through 2018, is 49 μg/m3. In addition, the EPA calculated the 5-year average design value for the Mendenhall Valley based on PM10 monitoring data from 2016 through 2020 and found the most conservative average design value estimate to be 62 μg/m3, which is below the critical design value of 98 μg/m3. The EPA's attainment and average design value evaluation used to determine if the area qualifies for the LMP option is included in the docket for this action. The EPA reviewed the data and methodology provided by the State and the most recent 5-year average design value and finds that the Mendenhall Valley area's 5-year average design value is below the critical design value of 98 μg/m3 outlined in the LMP Option Memo. Therefore, the EPA finds that the Mendenhall Valley area meets the design value criteria outlined in the LMP Option Memo.

        Third, the area must meet the motor vehicle regional emissions analysis test described in the LMP Option Memo. The State submitted an analysis showing that growth in on-road mobile PM10 emissions sources was minimal and would not threaten the assumption of maintenance that underlies the LMP policy. Using the EPA's methodology, the State calculated total projected growth in on-road motor vehicle PM10 emissions through 2033 (the end of the maintenance planning period) for the Mendenhall Valley area. This calculation is derived using Attachment B of the EPA's LMP Option Memo, where the projected percentage increase in vehicle miles traveled over the next ten years (VMTpi) is multiplied by the on-road mobile portion of the attainment year inventory (DVmv), including re-entrained road dust. This test is met when (VMTpi × DVmv) plus the design value for the most recent five years of quality assured data is below the margin of safety (MOS) for the relevant PM10 standard in µg/m3 for a given area. This MOS value can be 98 µg/m3 or a site-specific value computed from data collected at the site of interest using methods outlined in Attachment A of the LMP Option Memo. The 24-hour average design value of 49 µg/m3 was used to compute a MOS selected for the Floyd Dryden monitoring site in Mendenhall Valley of 50.2 µg/m3, which is below the MOS value of 98 µg/m3. See the Mendenhall Valley LMP, Section III.D.3.4 and associated appendix, placed in the docket for this action, for details of this computation. The EPA reviewed the calculations in the State's LMP submittal and concurs with the determination that the area meets the motor vehicle regional emissions analysis test.
        As described above, the Mendenhall Valley PM10 maintenance area meets the qualification criteria set forth in the LMP Option Memo and accordingly qualifies for the LMP option. To ensure these requirements continue to be met, the State commits to evaluate monitoring data annually to ensure the area continues to qualify for the LMP option. However, if after performing the annual recalculation of the area's average design value in a given year, the State determines that the area no longer qualifies for the LMP, the State will take action to attempt to reduce PM10 concentrations enough for the area to requalify for the LMP. One possible approach the State could take is to implement a contingency measure found in its SIP. See Section III.D.3.9 of the State's submittal, placed in the docket for this action, for a description of the contingency measures.
        B. Attainment Inventory
        Pursuant to the LMP Option Memo, the State's submission should include an emissions inventory, which can be used to demonstrate attainment of the relevant NAAQS. The inventory should represent emissions during the same five-year period associated with air quality data used to determine whether the area meets the applicability requirements of the LMP option. The State should review its inventory every three years to ensure emissions growth is incorporated in the inventory if necessary.
        Alaska's Mendenhall Valley PM10 LMP includes an emissions inventory, with a base year of 2017. The assumptions, methods and computations used to generate the 2017 emissions inventory are described in detail in Appendix III.D.3.6 of the Mendenhall Valley LMP submittal in the docket for this action. The 2017 base year represents the most recent emissions inventory data available, is representative of the level of emissions during a period of time used to calculate the area is attaining the NAAQS, and is consistent with the data used to determine applicability of the LMP option (i.e., having no violations of the NAAQS during the five-year period used to calculate the design value).

        Like the first 10-year LMP, four main source categories were inventoried for the second 10-year LMP. These include (1) On-Road; (2) Non-Road; (3) Area Sources; and (4) Point Sources. The same assumptions and methods used to develop the first 10-year LMP were used to develop the 2017 base year PM10 emissions inventory for the second 10-year LMP. The analysis of the emissions inventory for the second 10-year LMP indicates that that the PM10 emissions in the maintenance area declined by about 78% between 2004 and 2017 and shows paved roads remain the most significant source of fugitive emissions in the maintenance area. Fugitive dust from paved roads accounted for 46.2% of the overall inventory; fugitive dust from unpaved roads accounted for 0.53%; and emissions from wood burning accounted for 8.4% of the overall inventory.

        Efforts by the City and Borough of Juneau and the State to pave sections of unpaved roads and sweeping and sanding mitigation programs in the Valley, as well as the woodsmoke control program, have led to significant reduction in PM10 emissions. In accordance with the LMP Option Memo, all controls relied on to demonstrate attainment and continued maintenance will remain in place, and ADEC asserts that no additional control measures are necessary to maintain the NAAQS.

        The submittal meets the EPA guidance for purposes of an attainment emissions inventory, and the emissions inventory data supports the State's conclusions that the existing control measures will continue to protect and maintain the PM10 NAAQS.
        C. Air Quality Monitoring Network

        Once an area is redesignated, the state must continue to operate an appropriate air monitoring network in accordance with 40 CFR part 58 to verify the attainment status of the area. From 1986 until the present, Alaska has operated a PM10 monitor at the Floyd Dryden Middle School in the Mendenhall Valley NAA. The Floyd Dryden monitor was sited and maintained in accordance with Federal siting and design criteria in 40 CFR part 58, and in consultation with the EPA Region 10. On June 26, 2020, ADEC submitted the 2020 Annual Monitoring Network Plan, which the EPA approved on January 25, 2021. ADEC's network plan and the EPA's approval letter are included in the docket for this action.

        The State commits to continued operation of at least one EPA-approved PM10 monitoring site in the Mendenhall Valley maintenance area through the end of the maintenance planning period, 2033, and will continue to operate the monitor consistent with the EPA-approved ADEC annual network plan in order to meet the EPA requirements at 40 CFR part 58.
        D. Verification of Continued Attainment
        The level of the PM10 NAAQS is 150 µg/m3, 24-hour average concentration. The NAAQS is attained when the expected number of days per calendar year with a 24-hour average concentration above 150 µg/m3 is equal to or less than one (40 CFR 50.6). As stated in Section III.D of this preamble, ADEC commits to continue to operate a regulatory monitoring network in accordance with 40 CFR part 58. In addition, ADEC commits to verifying continued attainment of the PM10 standard through the maintenance plan period with the operation of an appropriate PM10 monitoring network. In developing the second 10-year maintenance plan, ADEC evaluated the most recent three years of complete, quality-assured data for the Mendenhall Valley NAA (2017 through 2019) to verify continued attainment of the standard.
        E. Contingency Provisions
        The CAA section 175A states that a maintenance plan must include contingency provisions, as necessary, to ensure prompt correction of any violation of the NAAQS, which may occur after redesignation of the area to attainment. As explained in the LMP Option Memo and the Calcagni Memo, these contingency provisions are an enforceable part of the federally approved SIP. The maintenance plan should clearly identify the events that would “trigger” the adoption and implementation of a contingency provision, the contingency provision(s) that would be adopted and implemented, and the schedule indicating the time frame by which the State would adopt and implement the provision(s). The LMP Option Memo and the Calcagni Memo state that the EPA will determine the adequacy of a contingency plan on a case-by-case basis. At a minimum, it must require that the state implement all measures contained in the CAA part D nonattainment plan for the area prior to redesignation.
        In the Mendenhall Valley PM10 LMP, ADEC included maintenance plan contingency provisions to ensure the area continues to meet the PM10 NAAQS. The Mendenhall Valley LMP describes a process and a timeline to identify, evaluate and select appropriate contingency measure(s) from a list of potential measures in the event of a quality assured violation of the PM10 NAAQS. Within 120 days following a violation of the PM10 NAAQS an assessment team will evaluate the events contributing to the violation and identify the appropriate measure(s) that may need to be implemented. Contingency measures that may be implemented to address the source and circumstances causing the violation and reduce emissions are listed in Section III.D.3.9 of the Mendenhall Valley LMP in the docket for this action. The identified contingency measure(s) may be adopted and implemented in coordination with the ADEC Commissioner, City Manager and assembly.

        The contingency provisions submitted in the Mendenhall Valley PM10 LMP are adequate to meet CAA section 175A requirements and the contingency provisions as outlined in the LMP Option Memo.
        IV. Proposed Action
        The EPA is proposing to approve the second 10-year PM10 limited maintenance plan for Juneau, Mendenhall Valley submitted by the State of Alaska.3

           The EPA has reviewed the air quality data for the Mendenhall Valley area and determined that the area continues to show attainment of the PM10 NAAQS and meets all the LMP requirements as described in this action. If finalized, the EPA's approval of this LMP will satisfy the section 175A CAA requirements for the second 10-year period for the Mendenhall Valley PM10 area.

            3 The remainder of the November 10, 2020 State of Alaska SIP submission (the Eagle River Second 10-year PM10 LMP; the 2019 Emission Limit Control Measures; and the 2019 Adoption by Reference Updates and Standard Permit Conditions) will be addressed in separate EPA rulemaking actions.

        V. Statutory and Executive Order Reviews
        Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely proposes to approve State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this action:
        • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

        • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

        • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);
        • 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);
        • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
        • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
        • Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because it does not involve technical standards; and
        • Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
        The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

          List of Subjects in 40 CFR Part 52
          Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

          Authority:
           42 U.S.C. 7401 et seq.

          Dated: August 5, 2021.
          Michelle L. Pirzadeh,
          Acting Regional Administrator, Region 10.

      [FR Doc. 2021-17099 Filed 8-10-21; 8:45 am]
      BILLING CODE 6560-50-P


        ENVIRONMENTAL PROTECTION AGENCY
        40 CFR Parts 85, 86, and 600
        DEPARTMENT OF TRANSPORTATION
        National Highway Traffic Safety Administration
        49 CFR Parts 523, 531, 533, 536, and 537
        [EPA-HQ-OAR-2010-0799; FRL-9618-5; NHTSA-2010-0131]
        RIN 2060-AQ54; RIN 2127-AK79
        2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards; Extension of Comment Period

          AGENCY:
          Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA), DOT.

          ACTION:
          Notice of proposed rulemaking; extension of comment period.

          SUMMARY:

          EPA and NHTSA are announcing a 14-day extension of the comment period for the joint proposed rules “2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards,” published in the Federal Register on December 1, 2011 (76 FR 74854). The comment period was to end on January 30, 2012 (60 days after publication of the proposals in the Federal Register). This document extends the comment period to February 13, 2012. This extension of the comment period is provided to allow the public additional time to comment on the proposed rule.

          The extension of the comment period does not apply to NHTSA's Draft Environmental Impact Statement (Draft EIS), available on NHTSA's Web site at www.nhtsa.gov/fuel-economy. The comment period for NHTSA's Draft EIS closes on January 31, 2012.

          DATES:
          Written comments must be received on or before February 13, 2012 in order to be considered timely.

          ADDRESSES:
          Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2010-0799 and/or NHTSA-2010-0131, by one of the following methods:

        • Online: www.regulations.gov: Follow the on-line instructions for submitting comments.
        • Email: a-and-r-Docket@epa.gov.

        • Fax: EPA: (202) 566-9744; NHTSA: (202) 493-2251.
        • Mail:

        ○ EPA: Environmental Protection Agency, EPA Docket Center (EPA/DC), Air and Radiation Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention Docket ID No. EPA-HQ-OAR-2010-0799.
        ○ NHTSA: Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.
        • Hand Delivery:

        ○ EPA: Docket Center, (EPA/DC) EPA West, Room B102, 1301 Constitution Ave. NW., Washington, DC, Attention Docket ID No. EPA-HQ-OAR-2010-0799. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.
        ○ NHTSA: West Building, Ground Floor, Rm. W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 4 p.m. Eastern Time, Monday through Friday, except Federal Holidays.

          Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-2010-0799 and/or NHTSA-2010-0131. See the SUPPLEMENTARY INFORMATION of the proposed rule section on “Public Participation” for more information about submitting written comments.

          Docket: All documents in the dockets are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available in hard copy in EPA's docket, and electronically in NHTSA's online docket. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the following locations: EPA: EPA Docket Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744. NHTSA: Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590. The Docket Management Facility is open between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except Federal holidays.

          FOR FURTHER INFORMATION CONTACT:

          EPA: Christopher Lieske, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: (734) 214-4584; fax number: (734) 214-4816; email address: lieske.christopher@epa.gov, or contact the Assessment and Standards Division; email address: otaqpublicweb@epa.gov. NHTSA: Rebecca Yoon, Office of the Chief Counsel, National Highway Traffic Safety Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Telephone: (202) 366-2992. You may learn more about the proposal by visiting NHTSA's or EPA's Web pages at http://www.nhtsa.gov/fuel-economy or http://www.epa.gov/otaq/climate/regulations.htm or by searching the public dockets (NHTSA-2010-0131 (for the proposed rule) or NHTSA-2011-0056 (for the Draft EIS); EPA-HQ-OAR-2010-0799) at www.regulations.gov.

        SUPPLEMENTARY INFORMATION:

        In the NHTSA and EPA proposals for “2017 and Later Model Year Light-Duty Vehicle Greenhouse Gas Emissions and Corporate Average Fuel Economy Standards,” the agencies invited comment from interested parties on all aspects of the proposal. EPA and NHTSA received multiple requests for a 30-day extension of the comment period. Those requests can be found in the dockets for the rulemaking listed above under ADDRESSES. The agencies have considered these requests and believe that a 14-day extension beyond the original 60 days would be sufficient. The agencies note that the proposal was prominently posted and available for public review on each agency's Web site on November 16, 2011. Thus, with a 14-day extension, commenters will have had, as a practical matter, a total of 90 days to review the rulemaking documents. Accordingly, the public comment period for the proposed rules is extended until February 13, 2012. Please see the agencies' discussion regarding consideration of comments received in the Notice of Proposed Rulemaking published in the Federal Register on December 1, 2011 (76 FR 75855-74856) and which is available on NHTSA's Web site at http://www.nhtsa.gov/staticfiles/rulemaking/pdf/cafe/2017-25_CAFE_NPRM.pdf and EPA's Web site at http://www.epa.gov/otaq/climate/regulations.htm. NHTSA and EPA will consider all comments received before the close of business on the comment closing date, and will also consider comments received after that date to the extent practicable.

        This extension of the comment period does not apply to NHTSA's Draft Environmental Impact Statement (Draft EIS), available on NHTSA's Web site at www.nhtsa.gov/fuel-economy. The comment period for NHTSA's Draft EIS closes on January 31, 2012.
        The joint proposed rules issued by EPA and NHTSA would reduce greenhouse gas emissions and fuel consumption of light-duty vehicles for model years 2017-2025. On May 21, 2010, President Obama issued a Presidential Memorandum requesting that NHTSA and EPA develop through notice and comment rulemaking a coordinated National Program to reduce greenhouse gas emissions and fuel consumption of light-duty vehicles for model years 2017-2025, building upon the success of the agencies' joint rulemaking to establish fuel economy and greenhouse gas emissions standards for model years 2012-2016. The proposal, consistent with the President's request, responds to the country's critical needs to address global climate change and to reduce oil consumption. NHTSA is proposing Corporate Average Fuel Economy standards under the Energy Policy and Conservation Act, as amended by the Energy Independence and Security Act, and EPA is proposing greenhouse gas emissions standards under the Clean Air Act. These standards would apply to passenger cars, light-duty trucks, and medium-duty passenger vehicles, and, if ultimately adopted, would represent a continuation of the harmonized and consistent National Program. EPA is also proposing minor changes to the light-duty vehicle regulations applicable to model years 2012-2016, with respect to air conditioner performance, regulatory treatment of emergency vehicles, and measurement of nitrous oxides.

        The proposal for which EPA and NHTSA are extending the comment period was published in the Federal Register on December 1, 2011 (76 FR 74854) and is also available at the Web pages listed above under FOR FURTHER INFORMATION CONTACT and in the rulemaking dockets.

          Dated: January 6, 2012.
          Ronald Medford,
          Deputy Administrator, National Highway Traffic Safety Administration.
          Dated: January 6, 2012.
          Margo T. Oge,
          Director, Office of Transportation and Air Quality, Environmental Protection Agency.

      [FR Doc. 2012-617 Filed 1-12-12; 8:45 am]
      BILLING CODE 6560-50-P