[Federal Register Volume 88, Number 244 (Thursday, December 21, 2023)]
[Proposed Rules]
[Pages 88300-88308]
[FR Doc No: 2023-27874]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R09-OAR-2022-0955; FRL-10549-01-R9]

Approval of Implementation Plans for Air Quality Planning
Purposes; State of Nevada; Clark County Second 10-Year Maintenance Plan
for the 1997 8-Hour Ozone Standard

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
approve, as a revision of the Nevada state implementation plan (SIP),
the State's second 10-year plan for maintaining the 1997 8-hour ozone
standard in Clark County (``Clark County Second Maintenance Plan'' or
``Plan''). The Clark County Second Maintenance Plan includes, among
other elements, a base year emissions inventory, a maintenance
demonstration, contingency provisions, and motor vehicle emissions
budgets for use in transportation conformity determinations to ensure
the continued maintenance of the 1997 National Ambient Air Quality
Standards for ozone (``1997 ozone NAAQS'' or ``1997 8-hour ozone
standard''). With this proposed rulemaking, the EPA is initiating the
adequacy process for the 2017, 2023, and 2033 motor vehicle emissions
budgets. The EPA is proposing these actions because the SIP revision
meets the applicable statutory and regulatory requirements for such
plans and motor vehicle emissions budgets.

DATES: Comments must be received on or before January 22, 2024.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
OAR-2022-0955, at https://www.regulations.gov. For comments submitted
at 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, please contact the person identified in
the FOR FURTHER INFORMATION CONTACT section. For 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. If you need assistance in a
language other than English or if you are a person with a disability
who needs a reasonable accommodation at no cost to you, please contact
the person identified in the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Andrew Ledezma, EPA Region IX, 75
Hawthorne St., San Francisco, CA 94105. By phone:<PHONE_NUMBER> or by
email at [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document, ``we,'' ``us,''
and ``our'' refer to the EPA.

Table of Contents

I. Summary of Proposed Action
II. Background
III. Second 10-Year Maintenance Plan Submittal and Procedural
Requirements
IV. Requirements for Second 10-Year Maintenance Plans
V. Evaluation of the Clark County Second Maintenance Plan
    A. Monitoring Network Requirements
    B. Attainment Inventory
    C. Maintenance Demonstration
    D. Verification of Continued Attainment
    E. Contingency Provisions
    F. Motor Vehicle Emissions Budgets for Transportation Conformity
VI. Environmental Justice Considerations
VII. Proposed Action and Request for Public Comment
VIII. Statutory and Executive Order Reviews

I. Summary of Proposed Action

    Under Clean Air Act (CAA or ``the Act'') section 110(k)(3), the EPA
is proposing to approve two submittals from the Nevada Division of
Environmental Protection (NDEP) as a revision to the Nevada SIP: the
Clark County Second Maintenance Plan dated December 21, 2021, and a
supplement to the Clark County Second Maintenance Plan (``Contingency
Measure Revision'') dated August 16, 2023. In this action, we refer to
the Clark County Second Maintenance Plan and the Contingency Measure
Revision collectively as the ``Clark County Second Maintenance Plan
submittal.''
    The EPA is proposing to find that the maintenance demonstration,
showing how the area will continue to attain the 1997 8-hour ozone
NAAQS for 10 additional years beyond the approval the State's first 10-
year plan for maintaining the 1997 8-hour ozone standard in Clark
County (``Clark County First Maintenance Plan'' or ``first maintenance
plan'') (i.e., through 2033), and the contingency provisions,
describing the actions that Clark County will take in the event of a
future monitored violation, meet all applicable requirements for
maintenance plans and related contingency provisions in CAA section
175A. The EPA is also proposing to approve the motor vehicle emissions
budgets (MVEBs or ``budgets'') in the Clark County Second Maintenance
Plan because we find they meet the applicable transportation conformity
requirements under 40 CFR 93.118(e).

II. Background

    Sections 108 and 109 of the CAA govern the establishment, review,
and revision, as appropriate, of the NAAQS to protect public health and
welfare. The CAA requires the EPA to periodically review the air
quality criteria, the science upon which the standards are based, and
the standards themselves. Ground-level ozone is one of the criteria
pollutants regulated under the NAAQS.
    Ground-level ozone is generally not emitted directly by sources.
Rather, directly emitted oxides of nitrogen (NOX) and
volatile organic compounds (VOC) react in the presence of sunlight to
form ground-level ozone, as a secondary pollutant, along with other
secondary compounds. NOX and VOC are ``ozone precursors.''
Reduction of peak ground-level ozone concentrations is typically
achieved through controlling VOC and NOX emissions.
    Scientific evidence indicates that adverse public health effects
occur following exposure to ozone, particularly in children and adults
with lung disease. Breathing air containing ozone can reduce lung
function and inflame airways, which can increase respiratory symptoms
and aggravate asthma or other lung diseases.\1\
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    \1\ ``Fact Sheet--2008 Final Revisions to the National Ambient
Air Quality Standards for Ozone,'' dated March 2008.

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    In 1997, the EPA revised the NAAQS for ozone, setting it at 0.08
parts per million (ppm) averaged over an 8-hour time frame.\2\ The EPA
set the 1997 8- hour ozone standard based on scientific evidence
demonstrating that ozone causes adverse health effects at lower ozone
concentrations and over longer periods of time, than was understood
when the pre-existing 1-hour ozone standard was set. The EPA determined
that the 1997 8-hour ozone NAAQS would be more protective of human
health, especially for children and adults who are active outdoors, and
individuals with a pre-existing respiratory disease, such as asthma.\3\
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    \2\ 62 FR 38856 (July 18, 1997).
    \3\ On March 27, 2008 (73 FR 16436), the EPA promulgated a
revised 8-hour ozone standard of 0.075 ppm (the 2008 8-hour ozone
standard), and on May 21, 2012, the EPA designated the entire state
of Nevada unclassifiable/attainment for the 2008 8-hour ozone
standard (77 FR 30088). This rulemaking relates only to the 1997 8-
hour ozone standard and does not relate to the 2008 8-hour ozone
standard.
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    In 2004, the EPA designated areas of the country with respect to
the 1997 8-hour ozone NAAQS.\4\ Under the EPA's ``Phase 1''
implementation rule for the 1997 8-hour ozone standard \5\ an area was
classified under subpart 2 based on its 8-hour ozone design value
(i.e., the 3-year average annual fourth-highest daily maximum 8-hour
average ozone concentration at the worst-case monitoring site in the
area or in its immediate downwind environs), if it had a 1-hour ozone
design value \6\ at the time of designation at or above 0.121 ppm. All
other areas were covered under subpart 1 based on their 8-hour ozone
design values.\7\ Clark County was designated as a subpart 1 ozone
nonattainment area by the EPA on April 30, 2004, based on air quality
monitoring data from 2001-2003. The designation became effective on
June 15, 2004. On September 17, 2004, the EPA reduced the geographic
extent of the ozone nonattainment area to encompass a portion, but not
all, of Clark County.\8\
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    \4\ 69 FR 23858 (April 30, 2004).
    \5\ 69 FR 23951, (April 30, 2004).
    \6\ The design value for the 1-hour ozone standard is the
fourth-highest daily maximum 1-hour ozone concentration over a
three-year period at the worst-case monitoring site in the area.
    \7\ 69 FR 23951. The design value for the 8-hour standard is the
three-year average of the annual fourth-highest daily maximum 8-hour
ozone concentration at the worst-case monitoring site in the area.
    \8\ 69 FR 55956 (September 17, 2004), 70 FR 71612 (November 29,
2005), and 40 CFR 81.329. The boundaries of the Clark County ozone
nonattainment area are defined in 40 CFR 81.329. Specifically, the
area is defined as: ``That portion of Clark County that lies in
hydrographic areas 164A, 164B, 165, 166, 167, 212, 213, 214, 216,
217, and 218 but excluding the Moapa River Indian Reservation and
the Fort Mojave Indian Reservation.'' The area includes a
significant portion of the unincorporated portions of central and
southern Clark County, as well as the cities of Las Vegas,
Henderson, North Las Vegas, and Boulder City.
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    In South Coast Air Quality Management Dist. v. EPA \9\ the U.S.
Court of Appeals for the District of Columbia Circuit (D.C. Circuit, or
``Court'') vacated the EPA's Phase 1 implementation rule for the 1997
8-hour ozone standard.\10\ In response to several petitions for
rehearing, the D.C. Circuit clarified that the Phase 1 rule was vacated
only for those parts of the rule that had been successfully
challenged.\11\ The decision left intact the Court's rejection of the
EPA's reasons for implementing the 8-hour ozone standard in certain
nonattainment areas under subpart 1 in lieu of subpart 2 of the CAA.
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    \9\ 472 F.3d 882 (D.C. Cir. 2007).
    \10\ 69 FR 23951.
    \11\ 472 F.3d 882 (D.C. Cir. 2007).
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    On May 14, 2012, in response to the Court's vacatur of the
provision of the Phase 1 rule for the 1997 8-hour ozone standard that
placed certain nonattainment areas, including Clark County solely under
subpart 1, the EPA classified Clark County as a marginal ozone
nonattainment area under subpart 2 of the CAA.\12\
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    \12\ 77 FR 28424.
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    On March 29, 2011, the EPA determined that the Clark County 8-hour
ozone nonattainment area had attained the 1997 8-hour ozone NAAQS,
based on complete, quality-assured, and certified ambient air
monitoring data that showed the area monitored attainment of the 1997
8-hour ozone NAAQS for the 2007-2009 monitoring period.\13\
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    \13\ 76 FR 17343.
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    On April 11, 2011, NDEP submitted the Clark County First
Maintenance Plan and requested that the EPA redesignate the Clark
County 8-hour ozone nonattainment area to attainment for the 1997 8-
hour ozone standard. On January 8, 2013, the EPA approved the Clark
County First Maintenance Plan, and redesignated the area from
nonattainment to attainment of the 1997 8-hour ozone NAAQS.\14\
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    \14\ 78 FR 1149.
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    On October 31, 2018, NDEP submitted a Revision to Motor Vehicle
Emissions Budgets in Ozone Redesignation Request and Maintenance Plan
(``2018 Ozone Maintenance Plan Revision''). The 2018 Ozone Maintenance
Plan Revision updated elements of the Clark County First Maintenance
Plan, including the attainment inventory, the maintenance
demonstration, and the budgets. The 2018 Ozone Maintenance Plan
Revision established ozone season budgets of 52.96 and 86.74 tons per
day (tpd) for VOC and NOX, respectively, for 2022 so that
the area would have updated budgets available to use for transportation
conformity determinations with respect to the 2015 National Ambient Air
Quality Standards for ozone (``2015 ozone NAAQS'').\15\ On August 27,
2019, the EPA conditionally approved the 2018 Ozone Maintenance Plan
revisions, based on commitments to submit an additional SIP revision to
reduce the safety margin allocations for the budgets within one year of
the final conditional approval.\16\
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    \15\ 84 FR 33038 (July 11, 2019).
    \16\ 84 FR 44699.
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    On September 30, 2020, NDEP submitted an additional Revision to
Motor Vehicle Emissions Budgets for the 1997 ozone NAAQS, Clark County,
Nevada (``2020 Ozone Maintenance Plan Revision''). The 2020 Ozone
Maintenance Plan Revision was prepared in response to the EPA's
conditional approval of the 2018 Ozone Maintenance Plan Revision. The
2020 Ozone Maintenance Plan Revision revised certain budgets from the
2018 Ozone Maintenance Plan Revision to prevent interference with
Reasonable Further Progress (RFP) or attainment of the 2008 and 2015
ozone NAAQS. The 2020 Ozone Maintenance Plan Revision established
budgets of 23.92 and 32.16 tons per average summer day \17\ for VOC and
NOX, respectively, for 2022. On October 28, 2021, with the
submittal of the 2020 Ozone Maintenance Plan Revision, the EPA approved
the updates to the attainment inventory, the maintenance demonstration,
and the budgets to the Clark County First Maintenance Plan.\18\
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    \17\ According to ``Emissions Inventory Guidance for
Implementation of Ozone and Particulate Matter National Ambient Air
Quality Standards (NAAQS) and Regional Haze Regulations,'' dated May
2017, terminology used has changed from ``summer day'' emissions to
``ozone season'' emissions. However, ``average summer day''
emissions are used in this instance to stay consistent between motor
vehicle emissions budgets of different ozone standards.
    \18\ 86 FR 59643.
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    On January 24, 2022, NDEP submitted the Clark County Second
Maintenance Plan showing how the area will continue to attain the 1997
8-hour ozone national ambient air quality standard (NAAQS) for 10
additional years beyond the approval the State's first 10-year plan.
    Lastly, on August 16, 2023, NDEP submitted the Contingency Measure
Revision, which revised the contingency measure section of the Clark
County Second Maintenance Plan. In this action, we are proposing action
on the

NDEP's Clark County Second Maintenance Plan submittal.

III. Second 10-Year Maintenance Plan Submittal and Procedural
Requirements

    CAA section 110(a)(1) and (2) and section 110(1) require states to
provide reasonable notice and public hearing prior to adoption of SIP
revisions. In this action, we are proposing action on NDEP's January
24, 2022, submittal of the Clark County Ozone Second Maintenance Plan,
and NDEP's August 16, 2023, submittal of the Contingency Measure
Revision as a revision to the Nevada SIP, collectively referred to as
the Clark County Second Maintenance Plan submittal.
    Following a 30-day public comment period, the Clark County Second
Maintenance Plan was adopted by the Clark County Board of
Commissioners, submitted to NDEP, and submitted to the EPA. Appendix B
of the Clark County Second Maintenance Plan documents the public review
process followed by Clark County in adopting the plan prior to
transmittal to NDEP for subsequent submittal to the EPA as a revision
to the Nevada SIP. The documentation in appendix B provides evidence
that reasonable notice of a public hearing was provided to the public
and that a public hearing was conducted prior to adoption.
Specifically, notice of the availability of, and opening of a 30-day
comment period on, the draft Clark County Second Maintenance Plan was
published on October 14, 2021, on the Clark County Department of
Environment and Sustainability (DES) website, the DES official Facebook
page, and the DES official Twitter. No comments were submitted.
    On December 7, 2021, the Clark County Board of Commissioners set a
public hearing for December 21, 2021, to consider and approve the Clark
County Second Maintenance Plan. The announcement of the public hearing
was subsequently published on the County's web page. On December 21,
2021, the Clark County Board of Commissioners adopted the Clark County
Second Maintenance Plan at the close of the public hearing. Following
adoption, Clark County DES forwarded the plan to NDEP, the Governor of
Nevada's designee for SIP matters, and NDEP then submitted the plan as
a revision to the Nevada SIP to the EPA for approval on January 24,
2022.
    Appendix A of the Contingency Measure Revision documents the board
approval process followed by Clark County in adopting the plan prior to
transmittal to NDEP for subsequent submittal to the EPA as a revision
to the Nevada SIP. On July 18, 2023, the Clark County Board of
Commissioners put the Contingency Measure Revision up for public notice
and adopted the Contingency Measure Revision at the close of the public
hearing. Following adoption, Clark County DES forwarded the plan to
NDEP and NDEP then submitted the plan, as a revision to the Nevada SIP,
to the EPA for approval on August 16, 2023.
    Based on the documentation contained in appendix B of the Plan and
appendix A of the Contingency Measure Revision, we find that the Clark
County Second Maintenance Plan submittal satisfies the procedural
requirements of section 110(l) of the Act.

IV. Requirements for Second 10-Year Maintenance Plans

    Section 175A of the CAA provides the general framework for a
maintenance plan. The initial 10-year maintenance plan must provide for
maintenance of the NAAQS for at least 10 years after redesignation,
including any additional control measures necessary to ensure such
maintenance. In addition, maintenance plans are to contain contingency
provisions necessary to ensure the prompt correction of a violation of
the NAAQS that occurs after redesignation. The contingency measures
must include, at a minimum, a requirement that the state will implement
all control measures contained in the nonattainment SIP prior to
redesignation. Beyond these provisions, section 175A of the CAA does
not define the content of a second 10-year maintenance plan.
    The primary guidance on maintenance plans and redesignation
requests is a September 4, 1992, memorandum from John Calcagni, titled
``Procedures for Processing Requests to Redesignate Areas to
Attainment'' (Calcagni Memo).\19\ The Calcagni Memo outlines the key
elements of a maintenance plan, which include verification of continued
attainment, monitoring network requirements, attainment emissions
inventory, maintenance demonstration, and a contingency plan. We
evaluate the Second 10-Year Maintenance Plan based on the satisfactory
fulfillment of these and all relevant procedural requirements of the
CAA.
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    \19\ Memorandum dated September 4, 1992, from John Calcagni,
Director, EPA Air Quality Management Division, to Regional Office
Air Division Directors, Subject: Procedures for Processing Requests
to Redesignate Areas to Attainment.
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    CAA section 175A(b) requires states to submit an additional SIP
revision (Second 10-Year Maintenance Plan) to maintain the NAAQS for an
additional 10 years after the expiration of the 10-year period covered
by the initial maintenance plan approved in connection with the
redesignation of the area from nonattainment to attainment. The
revision is submitted eight years after the original redesignation
request and maintenance plan have been approved. The deadline to submit
Clark County's Second Maintenance Plan was January 8, 2021. On January
24, 2022, NDEP submitted the Clark County Second Maintenance Plan, to
meet the requirement for the subsequent maintenance plan under CAA
section 175A(b). The Clark County Second Maintenance Plan is intended
to provide for continued maintenance of the 1997 ozone NAAQS for the
10-year period following the end of the first 10-year period, i.e.,
from 2024 through 2033.

V. Evaluation of the Clark County Second Maintenance Plan

    Section 175A of the CAA sets forth the elements of a maintenance
plan. We interpret this section of the Act to require, in general, the
following core elements: attainment inventory, maintenance
demonstration, monitoring network, verification of continued
attainment, and contingency plan.\20\ Under CAA section 175A, a
maintenance plan must demonstrate continued attainment of the
applicable NAAQS for at least ten years after the EPA approves a
redesignation to attainment. Eight years after redesignation, the State
must submit a revised maintenance plan that demonstrates continued
attainment for the subsequent ten-year period following the initial
ten-year maintenance period. To address the possibility of future NAAQS
violations, the maintenance plan must contain such contingency
provisions that the EPA deems necessary to promptly correct any
violation of the NAAQS that occurs after redesignation of the area.
Based on our review and evaluation of the plan, as detailed below, we
are proposing to approve the Clark County Second Maintenance Plan
submittal because we believe that it meets the requirements of CAA
section 175A.
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    \20\ Calcagni Memo, 8-13.
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A. Monitoring Network Requirements

    Continued ambient monitoring of an area is generally required over
the maintenance period. Clark County DES currently operates ozone
monitors at thirteen sites within the Clark County 8-hour ozone
maintenance area.

    In the Clark County Second Maintenance Plan,\21\ Clark County DES
indicates its intention to continue operation of an air quality
monitoring network to verify continued attainment of the 1997 8-hour
ozone NAAQS.\22\ The Clark County Second Maintenance Plan also notes
that Clark County DES's State and Local Air Monitoring Stations (SLAMS)
air quality monitoring network (which includes ambient ozone
monitoring) will be reviewed annually pursuant to 40 CFR 58.20(d) to
determine whether the system continues to meet the applicable
monitoring objectives.\23\ We approved Clark County's SLAMS air quality
network in their Annual Monitoring Network Plan for year 2020 on
October 28, 2020, prior to Clark County's submittal of the Clark County
Second Maintenance Plan. We find the County's commitment for continued
ambient ozone monitoring as set forth in the Clark County Second
Maintenance Plan to be acceptable.
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    \21\ Clark County Second Maintenance Plan, 20-23.
    \22\ Although the Clark County Second Maintenance Plan is not
explicit in this regard, we presume that Clark County DES's
intention to continue operation of a monitoring network means that
the agency intends to do so consistent with the EPA's monitoring
requirements in 40 CFR part 58 (``Ambient Air Quality
Surveillance'').
    \23\ The EPA's requirements for annual review of monitoring
networks are no longer codified at 40 CFR 58.20(d) but are now found
at 40 CFR 58.10.
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B. Attainment Inventory

    For maintenance plans, a state should develop a comprehensive and
accurate inventory of actual emissions for an attainment year which
identifies the level of emissions in the area which is sufficient to
maintain the NAAQS. The inventory should be developed consistent with
the EPA's most recent guidance. For ozone, the inventory should be
based on typical ozone season day emissions of NOX and VOC.
    In the Clark County First Maintenance Plan, Clark County DES used
2008 for the attainment year inventory, because 2008 was one of the
years in the 2007-2009 three-year period when the area first attained
the 1997 ozone NAAQS.\24\ Clark County DES continued to monitor
attainment of the 1997 ozone NAAQS in 2017. Therefore, the emissions
inventory from 2017 represents emissions levels consistent with
continued attainment (i.e., maintenance) of the NAAQS. Thus, Clark
County DES selected 2017 as the year for the attainment inventory in
the Clark County Second Maintenance Plan. We consider the selection of
the 2017 base year inventory to be appropriate given that it was the
most recent emissions inventory associated with the reporting schedule
required under the Air Emissions Reporting Requirements rule at the
time of Plan drafting.
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    \24\ 76 FR 17343 (Apr. 29, 2011).
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    Table 1 presents the VOC and NOX emissions estimates
contained in the Clark County Second Maintenance Plan for 2017 and
presents the Plan's projected emissions inventories of ozone precursors
in an interim year (2023) and the maintenance plan's horizon year
(2033).\25\
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    \25\ The emissions inventories reflect county-wide emissions
which include both the nonattainment area portion of the county and
the portion of the county designated as ``unclassifiable/
attainment'' for the 1997 8-hour ozone NAAQS. County-wide emissions
are acceptable to characterize emissions within the Clark County
ozone nonattainment area because over 95% of the population of the
county resides in the nonattainment area.

                           Table 1--Clark County 2017 and Projected 2023 and 2033 VOC and NOX Emissions Total Daily Emissions
                                                       [Tpd, average summer ozone season weekday]
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                                                                       2017                            2023                            2033
                    Emissions source                     -----------------------------------------------------------------------------------------------
                                                                VOC             NOX             VOC             NOX             VOC             NOX
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Point Source............................................            2.95           12.34            2.62           11.41            2.63           11.33
Nonpoint Source.........................................           64.69            4.69           67.83            5.03           71.31            4.78
Mobile--On-road.........................................           26.27           42.20           17.85           22.22           11.50           11.13
Mobile--Nonroad.........................................           28.86           37.45           27.24           23.27           27.82           15.37
Airports................................................            1.96           11.90            2.64           15.53            3.05           19.77
Locomotives.............................................            0.07            1.42            0.05            1.21            0.04            0.96
Emission Reduction Bank.................................            0.00            0.00            0.43           22.23            0.43           22.23
Biogenic................................................          362.61            2.43          362.61            2.43          362.61            2.43
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................          487.41          112.43          481.27          103.33          479.39           88.00
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Source: Clark County Second Maintenance Plan, 17, Tables 2-4 and 2-5.
\a\ Emissions associated with the proposed Department of Air Force (DAF) Training Project is included in Airport emissions projections for the 2023 and
  2033 emissions projections for general conformity purposes. Emissions associated with the proposed Southern Nevada Supplemental Airport and proposed
  Sloan Regional Heliport are included for the 2033 emissions projection for general conformity purposes.

    The data shown in Table 1 in this document is based on the 2017
National Emissions Inventory (NEI).\26\ The inventory addresses point
sources,\27\ nonpoint sources,\28\ on-road mobile, non-road mobile,
airports, locomotives, Emission Reduction Credits (ERCs),\29\ and
biogenic \30\ sources. Appendix A to the Clark County Second
Maintenance Plan contains source-specific descriptions of emissions
calculation procedures and sources of input data.
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    \26\ The NEI is a comprehensive and detailed estimate of air
emissions of criteria pollutants, criteria precursors, and hazardous
air pollutants from air emissions sources. The NEI is released every
three years based primarily upon data provided by State, Local, and
Tribal air agencies for sources in their jurisdictions and
supplemented by data developed by the EPA.
    \27\ The Clark County Second Maintenance Plan uses the term,
``point sources,'' to refer to those stationary source facilities
that are required to report their emissions to Clark County DES or
NDEP.
    \28\ The Clark County Second Maintenance Plan uses the term,
``nonpoint sources,'' to refer to those stationary and area sources
that fall below point source reporting levels and that are too
numerous or small to identify individually.
    \29\ The Clark County Second Maintenance Plan uses the term,
``ERCs'' to refer to allowances earned through voluntary pollutant
emission reductions such as equipment shutdowns or voluntarily
installed controls.
    \30\ For the Clark County Second Maintenance Plan, ``biogenic
sources'' include agricultural crops; lawn grass; forests that
produce isoprene, monoterpene, and other VOC emissions; and soils
that generate trace amounts of NOX.
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    Point sources are stationary sources that have a potential to emit
(PTE) greater than 100 tons per year of NOX or VOC. Clark
County DES adopted a lower threshold by including all title V
stationary sources and minor sources with a PTE greater than 10 tons of
VOC or 25 tons of NOX per year. Clark County DES based the
inventory estimates on source reported actual 2017 emissions data but
adjusted the reported values to reflect a typical ozone

season day at each emissions unit within the source facilities based on
information provided by the facilities.
    Nonpoint sources include emissions from equipment, operations and
activities that are numerous and in total have significant emissions.
Clark County DES included emissions from minor sources, residential
combustion, agricultural burning, industrial solvents and graphic arts,
and degreasing operations. Clark County DES used several methods to
estimate area source activity levels and emissions, including applying
local activity levels, apportioning national or statewide activity
levels to the local level, applying per capita emission factors
considering county-specific populations and using specific method
abstracts detailed within the submittal.
    Non-road emissions sources include equipment that either move under
their own power or can be moved from site to site.
    The on-road emissions sector includes emissions from engines used
primarily to propel equipment on highways and other roads, including
passenger vehicles, motorcycles, and heavy-duty diesel trucks. Clark
County DES used MOVES3, EPA's MOVES3 emissions factors, fleet data from
Department of Motor Vehicles (DMV) registration data, Coordinated
Research council (CRC) vehicle speed data, the Regional Transportation
Commission (RTC) of Southern Nevada's transportation demand modeling
results, vehicle classification data from the June 2018 Clark County
Vehicle Classification Study,\31\ and 2017 Highway Performance
Monitoring System (HPMS) data from the Nevada Department of
Transportation (NDOT).
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    \31\ Clark County DES completed a vehicle classification study
in June 2018. The study used 2014-2016 traffic count data collected
by the Nevada Department of Transportation (NDOT). Clark County DES
incorporated VMT mix profiles and temporal profiles, which DES
incorporated into the 2017 MOVES3 input database.
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    Biogenic emissions are from vegetation and soil, and include crops,
lawn grass, and forests. Clark County DES used the Biogenic Emissions
Inventory System version 3.61 (BEIS3.61) embedded in the SMOKE 4.7
model for the month of July to generate average ozone season day
emissions for Clark County.
    The airport sector includes emissions from aircraft from commercial
and federal aviation sources. Clark County DES relied on airport-
specific emissions inventory information provided by the Clark County
Department of Aviation (CCDOA) for the five commercial airports located
within the nonattainment area.
    Locomotives include emissions from railroad and high-speed
passenger train emissions. Locomotive emissions were estimated by Clark
County DES based on local activity data collected for the Clark County
First Maintenance Plan and predicted emissions from high-speed
passenger train service.
    ERCs refer to allowances earned through voluntary pollutant
emissions reductions such as equipment shutdowns or voluntarily
installed controls. Clark County adopted New Source Review (NSR) rule,
Section 12.7.5--Emission Reduction credits into the SIP,\32\ allowing
Clark County to adopt ERCs. In the Clark County First Maintenance Plan,
Clark County banked NOX and VOC credits from the Clark
County Department of Air Quality and Environmental Management (DAQEM)
ERC Bank,\33\ Reid Gardner ERCs,\34\ and Mohave ERCs.\35\ In the Clark
County Second Maintenance Plan, Clark County noted that ERCs have not
changed from the Clark County First Maintenance Plan.
---------------------------------------------------------------------------

    \32\ 79 FR 62350 (October 17, 2014).
    \33\ See ``DAQEM ERC Bank'' for a list of sources contributing
to the DAQEM ERC Bank in Clark County.
    \34\ NDEP banked Reid Gardner ERCs after the NV Energy--Reid
Gardner Station Power Plant, Unit #4 Steam Boiler was controlled
with a low-NOX burner in January 2010.
    \35\ NDEP banked Mohave ERCs after the permanent shut down and
dismantling of the Southern California Edison Mohave Generating
Station in November 2009.
---------------------------------------------------------------------------

    The EPA has reviewed the emissions inventory submitted by Clark
County and proposes to conclude that the plan's inventory is based on
reasonable assumptions and methodologies, and that the inventory is
comprehensive, current, accurate, and consistent with applicable CAA
provisions and the Calcagni Memo. Therefore, we are proposing that the
inventory is acceptable for use in demonstrating maintenance of the
1997 ozone NAAQS.

C. Maintenance Demonstration

    CAA section 175A(a) requires that the maintenance plan ``provide
for the maintenance of the national primary ambient air quality
standard for such air pollutant in the area concerned for at least 10
years after the redesignation.'' Generally, a state may demonstrate
maintenance of the ozone NAAQS by either showing that future emissions
of a pollutant or its precursors will not exceed the level of the
attainment inventory or by modeling to show that the future mix of
sources and emissions rates will not cause a violation of the
NAAQS.\36\ For areas that are required under the Act to submit modeled
attainment demonstrations, the maintenance demonstration should use the
same level of modeling.\37\ The Clark County 8-hour ozone nonattainment
area was not required to submit a modeled attainment demonstration, and
thus, the Clark County Second Maintenance Plan may demonstrate
maintenance based on a comparison of existing and future emissions of
ozone precursors.\38\
---------------------------------------------------------------------------

    \36\ Calcagni Memo, 9-11.
    \37\ Id.
    \38\ A maintenance demonstration need not be based on ozone
modeling. See Wall v. EPA, 265 F.3d. 426 (6th Cir. 2001); Sierra
Club v. EPA, 375 F.3d 537 (7th Cir. 2004). See also 66 FR 53094
(October 19, 2001), and 68 FR 25418 (May 12, 2003).
---------------------------------------------------------------------------

    Clark County used the 2017 national emissions inventory (NEI) data
as the baseline to develop growth factors for point, nonpoint, and
locomotive sources. Clark County DES used the EPA 2016 v.1 modeling
platform emissions data to develop per-year growth adjustment factors
for point, nonpoint, federal aviation, and locomotives. Clark County
DES used local activity data to develop commercial airport growth
factors and conducted MOVES3 modeling to project on-road and non-road
emissions. The derived growth adjustment factors were used to
extrapolate emissions to account for a 16-year (2017 through 2033)
spread. The 2033 growth factors were multiplied by the 2017 actual
emissions to produce the 2033 projected point source and various other
stationary source emissions; including Residential Wood Combustion,\39\
non-point VOC,\40\ airport,\41\ and locomotive emissions.\42\ An
interim year (2023) projected emissions inventory is also included. On-
road emissions were estimated for the 2017 base year and for projection
years 2023 and 2033 and reflect a 32 percent decrease in VMT from 2017
to 2023 and a 56 percent decrease in VMT from 2017 to 2033 based on
Regional Transit Commission (RTC) projections.\43\
---------------------------------------------------------------------------

    \39\ Clark County Second Maintenance Plan, Appendix A, 23.
    \40\ Clark County Second Maintenance Plan, Appendix A, 24.
    \41\ Clark County Second Maintenance Plan, Appendix A, 29.
    \42\ Clark County Second Maintenance Plan, Appendix A, 31.
    \43\ Clark County Second Maintenance Plan, 27, Table 6-1.
---------------------------------------------------------------------------

    In addition to accounting for areawide growth trends, Clark County
DES added emissions from specific projects that are expected to become
operational during the second maintenance period,

including the proposed Southern Nevada Supplemental Airport, the
proposed Sloan Regional Heliport, and DAF training program in the
future-year emissions inventories, and also added in ERCs from certain
stationary sources in the event that the ERCs are used for the purposes
of issuing permits for new or modified stationary sources in the air
quality planning area. We have reviewed the methods and assumptions, as
described in connection with the attainment inventory, that Clark
County DES used to project emissions to 2023 and 2033 for the various
source categories and find them to be reasonable.
    Table 1 compares the VOC and NOX emissions estimated for
the Clark County 8-hour ozone maintenance area for 2017 with those for
2023 and 2033 by source category. The projected VOC and NOX
emissions show that VOC and NOX emissions would remain well
below the attainment levels throughout the second 10-year maintenance
period and thereby adequately demonstrate maintenance through that
period.
    In addition, historical monitoring data presented in the plan shows
a gradual downward trend in ozone design values during 2008-2020. The
1997 NAAQS level of 80 ppb was achieved in 2009, and the 2020 value of
74 ppb is well below the NAAQS.\44\ This supports the maintenance
demonstration, and the EPA expects this downward trend will continue
given the projected emissions decreases.
---------------------------------------------------------------------------

    \44\ Clark County Second Maintenance Plan, 12, Figure 2-1.
---------------------------------------------------------------------------

D. Verification of Continued Attainment

    NDEP and the Clark County Board of County Commissioners have the
legal authority to implement and enforce the requirements of the Clark
County Second Maintenance Plan. This includes the authority to adopt,
implement and enforce any emissions control contingency measures
determined to be necessary to correct ozone NAAQS violations. To verify
continued attainment, Clark County DES commits in the Clark County
Second Maintenance Plan to the continued operation of an ozone
monitoring network that meets the EPA ambient air quality surveillance
requirements.
    Secondly, the transportation conformity process represents another
means by which to verify continued attainment of the 1997 8-hour ozone
NAAQS in the Clark County 8-hour ozone area given the relative
importance of motor vehicle emissions to the overall emissions
inventories of ozone precursors.\45\
---------------------------------------------------------------------------

    \45\ Clark County Second Maintenance Plan, Page 15.
---------------------------------------------------------------------------

    Lastly, while not cited in the plan, NDEP and Clark County DES must
inventory emissions sources and report to the EPA on a periodic basis
under 40 CFR part 51, subpart A (``Air Emissions Reporting
Requirements''). These emissions inventory updates will provide a third
means with which to track emissions in the area relative to those
projected in the maintenance plan and thereby verify continued
attainment of the NAAQS. These methods are sufficient for the purpose
of verifying continued attainment.

E. Contingency Provisions

    Section 175A(d) of the Act requires that maintenance plans include
contingency provisions, as the EPA deems necessary, to promptly correct
any violations of the NAAQS that occur after redesignation of the area.
Such provisions must include a requirement that the State will
implement all measures with respect to the control of the air pollutant
concerned which were contained in the SIP for the area before
redesignation of the area as an attainment area.
    Under section 175A(d), contingency measures identified in the
contingency plan do not have to be fully adopted at the time of
redesignation. However, the contingency plan is an enforceable part of
the SIP and should ensure that the contingency measures are adopted
expeditiously once they are triggered by a specified event. The
maintenance plan should clearly identify the measures to be adopted, a
schedule and procedure for adoption and implementation, and a specific
timeline for action by the State. As a necessary part of the plan, the
State should also identify specific indicators or triggers, which will
be used to determine when the contingency measures need to be
implemented.
    As required by section 175A of the CAA, Clark County DES has
adopted a contingency plan to address possible future ozone air quality
problems.\46\ Clark County DES identifies the trigger date as 60 days
after a determination of a confirmed violation of the 1997 8-hour ozone
NAAQS. Within 45 days of the trigger date, Clark County will notify the
EPA that it is evaluating potential contingency measures. Within 90
days of the trigger date, Clark County will send a report to the EPA
and then will initiate a public process to consider the recommended
contingency measures, including soliciting stakeholder involvement and
holding public hearings. The necessary emissions control measures will
be adopted and implemented no later than 18 months after the trigger
date.
---------------------------------------------------------------------------

    \46\ Contingency Measure Revision, Section 2, ``Contingency
Measures Plan.''
---------------------------------------------------------------------------

    Potential contingency measures listed in the maintenance plan are
those emissions controls or other measures that Clark County, the
Nevada State Board of Agriculture, and/or the Nevada State
Environmental Commission may choose to adopt and implement in response
to the contingency trigger. The contingency measures plan in the
Contingency Measure Revision lists the following potential contingency
measures that will be considered for adoption and implementation by the
applicable State or County agency, but the Plan indicates that the list
is not to be considered exclusive:
     Reid vapor pressure reduction (i.e., in gasoline sold
during the summer ozone season; would need to be adopted and
implemented by the Nevada State Board of Agriculture);
     Inspection/maintenance program changes and additions
(e.g., lowering the cut points for VOCs and NOX applicable
to pre-1996 vehicles; would need to be adopted and implemented by the
State Environmental Commission and/or the State Department of Motor
Vehicles);
     Consumer and commercial products (Clark County would be
responsible for adoption and implementation);
     Architectural surface coatings (Clark County would be
responsible for adoption and implementation);
     Lawn and garden equipment use (Clark County would be
responsible for adoption and implementation); and
     Establish/enhance trip reduction programs (Clark County
and the RTC would be responsible for adoption and implementation).
    Upon our review of the plan, we find that the contingency
provisions of the Contingency Measure Revision clearly identify
specific contingency measures, contain tracking and triggering
mechanisms to determine when contingency measures are needed, contain a
description of the process of recommending and implementing contingency
measures, and contain specific timelines for action. Thus, we conclude
that the contingency provisions of the Contingency Measure Revision are
adequate to ensure prompt correction of a violation and therefore
comply with section 175A(d) of the Act.

F. Motor Vehicle Emissions Budgets for Transportation Conformity

    Section 176(c) of the CAA requires federal actions in nonattainment
and

maintenance areas to conform to the SIP's goals of eliminating or
reducing the severity and number of violations of the NAAQS and
achieving expeditious attainment of the standards. Conformity to the
SIP's goals means that such actions will not: (1) cause or contribute
to violations of a NAAQS, (2) worsen the severity of an existing
violation, or (3) delay timely attainment of any NAAQS or any interim
milestone.
    Actions involving Federal Highway Administration (FHWA) or Federal
Transit Administration (FTA) funding or approval are subject to the
EPA's transportation conformity rule, codified at 40 CFR part 93,
subpart A. Under this rule, RTCs in nonattainment and maintenance areas
coordinate with state and local air quality and transportation
agencies, the EPA, FHWA, and FTA to demonstrate that an area's regional
transportation plans and transportation improvement programs conform to
the applicable SIP. This demonstration is typically done by showing
that estimated emissions from existing and planned highway and transit
systems are less than or equal to the motor vehicle emissions budgets
(``budgets'') contained in submitted or approved control strategy SIPs
and maintenance plans.\47\
---------------------------------------------------------------------------

    \47\ Control strategy SIPs refer to RFP and attainment
demonstration SIPs. 40 CFR 93.101.
---------------------------------------------------------------------------

    These control strategy SIPs and maintenance plans typically set
budgets for criteria pollutants and/or their precursors to address
pollution from cars and trucks. Budgets are generally established for
specific years and specific pollutants or precursors. Maintenance plan
submittals should identify budgets for transportation-related VOC and
NOX emissions in the last year of the maintenance period.
    For budgets in a maintenance plan to be approvable, they must meet,
at a minimum, the EPA's adequacy criteria.\48\ To meet these
requirements, the budgets must be consistent, when considered with
emissions from all other sources, with maintenance of the NAAQS and
reflect all the motor vehicle control measures relied upon for the
maintenance demonstration. The EPA's process for determining adequacy
of a budget consists of three basic steps: (1) providing public
notification of a SIP submission; (2) providing the public the
opportunity to comment on the MVEB during a public comment period; and
(3) making a finding of adequacy. The process for determining the
adequacy of a submitted budget is codified at 40 CFR 93.118(f). The EPA
can notify the public by either posting an announcement that the EPA
has received SIP budgets on the EPA's adequacy website, or via a
Federal Register notice of proposed rulemaking when the EPA reviews the
adequacy of a maintenance plan budget simultaneously with its review
and action on the SIP submittal itself.\49\
---------------------------------------------------------------------------

    \48\ 40 CFR 93.118(e)(4) and (5). For more information on the
transportation conformity requirement and applicable policies on
MVEBs, please visit our transportation conformity website at: http://www.epa.gov/otaq/stateresources/transconf/index.htm.
    \49\ 40 CFR 93.118(f)(2).
---------------------------------------------------------------------------

    Clark County's Second Maintenance Plan contains VOC and
NOX budgets for 2017, 2023 and 2033. Any and all comments on
the approvability of the budgets should be submitted during the comment
period stated in the DATES section of this document.
    The EPA proposes to approve 2017, 2023, and 2033 budgets in the
Clark County Second Maintenance Plan for transportation conformity
purposes in the final rulemaking on Clark County's ozone redesignation
request. If the EPA approves the budgets in the final rulemaking
action, the new budgets must be used in future transportation
conformity determinations for Clark County for the 2015 ozone standard.
The new budgets, if approved in the final rulemaking, will be effective
on the date of the EPA's final rulemaking in the Federal Register. The
applicable VOC and NOX MVEBs for the Clark County ozone
nonattainment area are defined in table 2.

                   Table 2--Proposed Motor Vehicle Emissions Budgets (MVEBs) for Clark County
----------------------------------------------------------------------------------------------------------------
                                                  VOC (tpd, average summer          NOX (tpd, average summer
                 Budget year                              weekday)                          weekday)
----------------------------------------------------------------------------------------------------------------
2017........................................                             26.27                              42.2
2023........................................                             20.92                             26.77
2033........................................                             15.51                             23.35
----------------------------------------------------------------------------------------------------------------
From Table 6-3 and 6-4 of the Clark County Second Maintenance Plan.

    The MVEBs are the on-road mobile source VOC and NOX
emissions for Clark County for 2017, 2023 and 2033. The budgets are
compatible with the 2017, 2023, and 2033 on-road mobile source VOC and
NOX emissions included in Clark County's 2017, 2023, and
2033 VOC and NOX emission inventories, as summarized in
Table 2. The derivation of the budgets is thoroughly discussed in
Appendix A, Chapter 2 of Clark County's Second Maintenance Plan. While
the Plan includes budgets for 2017, we are not evaluating the 2017
budgets because that year would not be used in any future conformity
determination because the plan contains budgets for 2023 and because
2017 budgets are not required for the submitted second maintenance
plan.
    We evaluated the budgets against our adequacy criteria in 40 CFR
93.118(e)(4) and (5) as part of our review of the budget's
approvability and expect to complete the adequacy review of the budgets
concurrent with our final action on the Clark County's Second
Maintenance Plan. The EPA is not required under its transportation
conformity rule to find budgets adequate prior to proposing approval of
them. In this notice, the EPA is announcing that the adequacy process
for these budgets begins, and the public has 30 days to comment on
their adequacy, per the transportation conformity rule at 40 CFR
93.118(f)(2)(i) and (ii).
    Clark County DES developed the budgets for 2023 and 2033 using on-
road motor vehicle emission estimates made using the EPA's MOVES3
model, fleet data from DMV registration data, CRC vehicle speed data,
NDOT HPMS data, travel demand modeling from the Regional Transportation
Commission and vehicle classification data from the June 2018 Clark
County On-road Vehicle Classification Study.
    As documented in the separate memorandum \50\ included in the
docket for this rulemaking, we preliminarily conclude that the budgets
in the Second Maintenance Plan meet each adequacy criterion. While
adequacy and approval

are two separate actions, reviewing the budgets in terms of the
adequacy criteria informs the EPA's decision to propose to approve the
budgets. We have completed our detailed review and are proposing to
approve the demonstration of maintenance for the 1997 ozone maintenance
area through the year 2033. We have also reviewed the budgets in Clark
County's Second Maintenance Plan and found that they are consistent
with the maintenance demonstration for which we are proposing approval,
are clearly identified and precisely quantified, are based on control
measures that have already been adopted and implemented, and meet all
other applicable statutory and regulatory requirements including the
adequacy criteria in 40 CFR 93.118(e)(4) and (5). The EPA is proposing
to approve the budgets for 2023 and 2033 as part of our approval of
Clark County's Second Maintenance Plan. At the point when we either
finalize the adequacy process or approve the budgets as proposed
(whichever occurs first; note that they could also occur concurrently
per 40 CFR 93.118(f)(2)(iii)), the budgets must be used by the Regional
Transportation Commission (i.e., the Metropolitan Planning Organization
(MPO) for this area) for transportation conformity determinations for
the Clark County 2015 ozone nonattainment area.
---------------------------------------------------------------------------

    \50\ See the EPA Memorandum dated August 22, 2023 titled:
Adequacy Documentation for Motor Vehicle Emissions Budgets in Clark
County Second Maintenance Plan.''
---------------------------------------------------------------------------

VI. Environmental Justice Considerations

    The EPA performed a screening-level analysis using the EPA's
environmental justice (EJ) screening and mapping tool (``EJSCREEN'').
Our screening-level analysis included multiple environmental and
demographic indicators, including the EJSCREEN ``Demographic Index,''
which is the average of an area's percentage of minority and low-income
populations. The Demographic Index of Clark County is at the 68th
percentile, compared to the United States as a whole.\51\ The results
of this analysis are being provided for informational and transparency
purposes.
---------------------------------------------------------------------------

    \51\ Clark County Ozone NAA EJSCREEN Report dated February 10,
2023.
---------------------------------------------------------------------------

    This action addresses a plan for continued maintenance of the 1997
ozone NAAQS for Clark County. Approval of this plan does not impose any
additional regulatory requirements on sources beyond those imposed by
state law. As discussed in this document, Nevada has demonstrated that
the Clark County is attaining the 1997 ozone NAAQS and the Clark County
Second Maintenance Plan provides for the maintenance of the NAAQS for
the reminder of the maintenance period. We expect that this action will
generally be neutral or contribute to reduced environmental and health
impacts on all populations in Clark County, including people of color
and low-income populations. At a minimum, this action would not worsen
any existing air quality and is expected to ensure the area is meeting
requirements to maintain air quality standards. Further, there is no
information in the record indicating that this action is expected to
have disproportionately high or adverse human health or environmental
effects on a particular group of people.

VII. Proposed Action and Request for Public Comment

    Under CAA section 110(k)(3), and for the reasons set forth in this
document, the EPA is proposing to approve the Clark County Second
Maintenance Plan submitted by NDEP on January 24, 2022, as a revision
to the Nevada SIP.\52\ We are proposing to approve the maintenance
demonstration and contingency provisions as meeting all applicable
requirements for maintenance plans and related contingency provisions
in CAA section 175A, and the budgets for 2023 and 2033 (shown in Table
2) for transportation conformity purposes as we find they meet all
applicable criteria for such budgets including the adequacy criteria
under 40 CFR 93.118(e).
---------------------------------------------------------------------------

    \52\ Clark County Second Maintenance Plan (submitted
electronically January 24, 2022).
---------------------------------------------------------------------------

    We are soliciting comments on these proposed actions. We will
accept comments from the public for 30 days following publication of
this proposal in the Federal Register and will consider any relevant
comments before taking final action.

VIII. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a
SIP submission that complies with the provisions of the Act 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 Clean Air Act.
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
proposed 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 a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     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 application of those requirements would be inconsistent
with the Clean Air Act; and
     Will not have disproportionately high and adverse human
health or environmental effects on minority populations, low-income
populations and/or indigenous peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994), as discussed in section VI of
this proposal.
    In addition, there are no areas of Indian country within the
planning area, and the state plan for which the EPA is proposing
approval does not 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 Clark County Second
Maintenance Plan does not apply, and therefore, this proposed action
does not have tribal implications and would not, if approved, 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, Nitrogen dioxide, Particulate matter, Sulfur dioxide,
Reporting and recordkeeping requirements, Volatile organic compounds.

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

    Dated: December 14, 2023.
Martha Guzman Aceves,
Regional Administrator, Region IX.
[FR Doc. 2023-27874 Filed 12-20-23; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 88, Number 120 (Friday, June 23, 2023)]
[Notices]
[Pages 41176-41178]
[FR Doc No: 2023-13345]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-97743; File No. SR-NYSEARCA-2023-43]

Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing
and Immediate Effectiveness of Proposed Rule Change of Amendments to
the Exchange's Rules Regarding Continuing Education Requirements

June 16, 2023.
    Pursuant to Section 19(b)(1) \1\ of the Securities Exchange Act of
1934 (the ``Act'') \2\ and Rule 19b-4 thereunder,\3\ notice is hereby
given that, on June 5, 2023, NYSE Arca, Inc. (``NYSE Arca'' or the
``Exchange'') filed with the Securities and Exchange Commission (the
``Commission'') the proposed rule change as described in Items I and II
below, which Items have been prepared by the self-regulatory
organization. The Commission is publishing this notice to solicit
comments on the proposed rule change from interested persons.
---------------------------------------------------------------------------

    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 15 U.S.C. 78a.
    \3\ 17 CFR 240.19b-4.
---------------------------------------------------------------------------

I. Self-Regulatory Organization's Statement of the Terms of Substance
of the Proposed Rule Change

    The Exchange proposes amendments to the Exchange's rules regarding
continuing education requirements (Rules 2.23 and 2.24) applicable to
Equity Trading Permit (``ETP'') Holders, Options Trading Permit
(``OTP'') Holders and OTP Firms (collectively, ``members'') to provide
eligible individuals another opportunity to elect to participate in the
Maintaining Qualifications Program (``MQP''). The proposed rule change
is available on the Exchange's website at www.nyse.com, at the
principal office of the Exchange, and at the Commission's Public
Reference Room.

II. Self-Regulatory Organization's Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule Change

    In its filing with the Commission, the self-regulatory organization
included statements concerning the purpose of, and basis for, the
proposed rule change and discussed any comments it received on the
proposed rule change. The text of those statements may be examined at
the places specified in Item IV below. The Exchange has prepared
summaries, set forth in sections A, B, and C below, of the most
significant parts of such statements.

A. Self-Regulatory Organization's Statement of the Purpose of, and the
Statutory Basis for, the Proposed Rule Change

1. Purpose
    The continuing education program for registered persons of broker-
dealers (``CE Program'') currently requires registered persons to
complete continuing education consisting of a Regulatory Element and a
Firm Element. The Regulatory Element, which is administered by FINRA on
behalf of the Exchange, focuses on regulatory requirements and industry
standards, while the Firm Element is provided by each firm and focuses
on securities products, services and strategies the firm offers, firm
policies and industry trends.
    The CE Program is codified under the rules of the self-regulatory
organizations. The CE Program for registered persons of NYSE Arca
members is codified under Rules 2.23 and 2.24.\4\ This proposed rule
change is based on a filing recently submitted by the Financial
Industry Regulatory Authority, Inc. (``FINRA''), and is intended to
harmonize the Exchange's continuing education rules with those of FINRA
so as to promote uniform standards across the securities industry.\5\
The proposed rule change is discussed in detail below.
---------------------------------------------------------------------------

    \4\ See also Commentary .06 to Rule 2.1210 (All Registered
Representatives and Principals Must Satisfy the Regulatory Element
of Continuing Education).
    \5\ See Securities Exchange Act Release No. 97184 (March 22,
2023), 88 FR 18359 (March 28, 2023) (SR-FINRA-2023-005) (Notice of
Filing and Immediate Effectiveness of a Proposed Rule Change To
Amend FINRA Rule 1240.01 To Provide Eligible Individuals Another
Opportunity To Elect To Participate in the Maintaining
Qualifications Program) (``FINRA Rule Change'').
---------------------------------------------------------------------------

    On May 25, 2022, the Exchange amended NYSE Arca Rules 2.1210
(Registration Requirements), 2.23 (Registration--OTPs), and 2.24
(Registration--Employees of ETP Holders) to, among other things,
provide eligible individuals who terminate any of their representative
or principal registration categories the option of maintaining their
qualification for any terminated registration categories by completing
annual continuing education through a new program, the MQP.\6\ By that
time, however, the First Enrollment Period, defined below, had expired
leaving many eligible individuals from being able to participate in the
MQP. This proposed rule change will provide those eligible individuals
a second opportunity to elect to participate in the MQP to maintain
their qualification.
---------------------------------------------------------------------------

    \6\ See Securities Exchange Act Release No. 95065 (June 7,
2022), 87 FR 35820 (June 13, 2022) (SR-NYSEARCA-2022-32) (Notice of
Filing and Immediate Effectiveness of Proposed Rule Change of
Amendments to the Exchange's Rules Regarding Continuing Education
Requirements).
---------------------------------------------------------------------------

    Prior to the MQP, individuals whose registrations as
representatives or principals had been terminated for two or more years
could reregister as representatives or principals only if they
requalified by retaking and passing the applicable representative- or
principal-level examination or if they obtained a waiver of such
examination(s) (the ``two-year qualification period''). The MQP
provides these individuals an alternative means of staying current on
their regulatory and securities knowledge following the termination of
a registration.\7\ Specifically, the MQP provides eligible individuals
a maximum of five years following the termination of a representative
or principal registration category to reregister without having to
requalify by examination or having to obtain an examination waiver,
subject to satisfying the conditions and limitations of the MQP,
including the annual completion of all prescribed continuing education.
---------------------------------------------------------------------------

    \7\ The MQP does not eliminate the two-year qualification
period. Thus, eligible individuals who elect not to participate in
the MQP can continue to avail themselves of the two-year
qualification period (i.e., they can reregister within two years of
terminating a registration category without having to requalify by
examination or having to obtain an examination waiver).
---------------------------------------------------------------------------

    Under NYSE Arca Rule 2.23, Commentary .07, and Rule 2.24,
Commentary .07, the MQP has a look-back provision that, subject to
specified conditions, extended the option to participate in the MQP to
individuals who: (1) were registered as a representative or principal
within two years immediately prior to May 25, 2022 (the implementation
date of the MQP); and (2) individuals who were participating in the
Financial Services Affiliate Waiver Program (``FSAWP'') under NYSE Arca
Rule 2.1210, Commentary .08 (Waiver of Examinations for Individuals
Working for a Financial Services Industry Affiliate of an ETP Holder,
OTP Holder or OTP Firm) immediately prior to May

25, 2022 (collectively, ``Look-Back Individuals'').\8\
---------------------------------------------------------------------------

    \8\ The FSAWP is a waiver program for eligible individuals who
have left a member firm to work for a foreign or domestic financial
services affiliate of a member firm. NYSE Arca stopped accepting new
participants for the FSAWP beginning on May 25, 2022; however,
individuals who were already participating in the FSAWP prior to
that date had the option of continuing in the FSAWP.
---------------------------------------------------------------------------

    In the FINRA Rule Change, FINRA noted that in Regulatory Notice 21-
41 (November 17, 2021), it announced that Look-Back Individuals who
wanted to take part in the MQP were required to make their election
between January 31, 2022, and March 15, 2022 (the ``First Enrollment
Period''). In addition to the announcement in Regulatory Notice 21-41,
FINRA notified the Look-Back Individuals about the MQP and the First
Enrollment Period via two separate mailings of postcards to their home
addresses and communications through their FINRA Financial Professional
Gateway (``FinPro'') accounts.\9\
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    \9\ Look-Back Individuals were able to notify FINRA of their
election to participate in the MQP through their FinPro accounts.
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    In the FINRA Rule Change, FINRA further noted that shortly after
the First Enrollment Period had ended, a number of Look-Back
Individuals contacted FINRA and indicated that they had only recently
become aware of the MQP. FINRA noted that it also received anecdotal
information that a number of these individuals may not have learned of
the MQP, or the First Enrollment Period, in a timely manner, or at all,
due to communication and operational issues.\10\ In addition, the
original six-week enrollment period may not have provided Look-Back
Individuals with sufficient time to evaluate whether they should
participate in the MQP. For these reasons, FINRA recently amended its
rules to provide Look-Back Individuals a second opportunity to elect to
participate in the MQP (the ``Second Enrollment Period''). For similar
reasons, NYSE Arca is also proposing to amend its rules to provide
Look-Back Individuals with a Second Enrollment Period.\11\ The Second
Enrollment Period will be between the date of filing of this proposed
rule change, and December 31, 2023. In addition, the proposed rule
change requires that Look-Back Individuals who elect to participate in
the MQP during the Second Enrollment Period complete any prescribed
2022 and 2023 MQP content by March 31, 2024.\12\
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    \10\ According to FINRA, this may have been a result of the
timing of FINRA's announcements relating to the MQP, which coincided
with the holiday season and the transition to the New Year. Further,
given that Look-Back Individuals were out of the industry at the
time of these announcements, it was unlikely that they would have
learned of the MQP, or the First Enrollment Period, through informal
communication channels.
    \11\ The current rule text also provides that if Look-Back
Individuals elect to participate in the MQP, their five-year
participation period will be adjusted by deducting from that period
the amount of time that has lapsed between the date that they
terminated their registrations and May 25, 2022. To reflect the
availability of the Second Enrollment Period, the proposed rule
change clarifies that for all Look-Back Individuals who elect to
participate in the MQP, their participation period would also be for
a period of five years following the termination of their
registration categories, as with other MQP participants.
    \12\ Look-Back Individuals who elect to enroll in the MQP during
the Second Enrollment Period would also need to pay the annual
program fee of $100 for both 2022 and 2023 at the time of their
enrollment.
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    NYSE Arca believes that Look-Back Individuals generally have
greater awareness of the MQP, including due to news coverage, since the
program's launch.\13\ NYSE Arca believes that greater public awareness
of the MQP, coupled with a seven-month enrollment period, should help
ensure that all Look-Back Individuals are aware of the MQP and the
availability of the Second Enrollment Period and should provide them
with ample time to decide whether to participate in the MQP.
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    \13\ See, e.g., Joanne Cleaver, FINRA Sets Big Change in Motion
with New Option for Licensing Grace Period, InvestmentNews (June 23,
2022), https://www.investmentnews.com/finra-sets-big-change-in-motion-with-new-option-for-licensing-grace-period-222942.
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    Look-Back Individuals who elect to enroll during the Second
Enrollment Period would need to notify FINRA of their election to
participate in the MQP through a manner to be determined by FINRA.\14\
NYSE Arca also notes that Look-Back Individuals who elect to
participate in the MQP during the Second Enrollment Period would
continue to be subject to all of the other MQP eligibility and
participation conditions. For example, as clarified in the proposed
rule change, Look-Back Individuals electing to participate during the
Second Enrollment Period would have only a maximum of five years
following the termination of a registration category in which to
reregister without having to requalify by examination or having to
obtain an examination waiver.\15\
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    \14\ In the FINRA Rule Change, FINRA noted that it anticipates
that Look-Back Individuals will make their selection to enroll in
the MQP during the Second Enrollment Period through their FinPro
accounts. See Enrolling in the MQP, https://www.finra.org/registration-exams-ce/finpro/mqp (describing the MQP enrollment
process). FINRA further noted that it will inform Look-Back
Individuals if it determines to provide an alternative enrollment
method.
    \15\ For example, if a Look-Back Individual terminated a
registration category on May 1, 2020, and elects to participate in
the MQP on December 1, 2023, the individual's maximum participation
period would be five years starting on May 1, 2020, and ending no
later than May 1, 2025. If the individual does not reregister with a
member firm by May 1, 2025, the individual would need to requalify
by examination or obtain an examination waiver in order to
reregister after that date.
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2. Statutory Basis
    The proposed rule change is consistent with Section 6(b) of the
Securities Exchange Act of 1934 (the ``Act''),\16\ in general, and
furthers the objectives of Section 6(b)(5),\17\ in particular, because
it is designed to prevent fraudulent and manipulative acts and
practices, to promote just and equitable principles of trade, to foster
cooperation and coordination with persons engaged in facilitating
transactions in securities, to remove impediments to, and perfect the
mechanism of, a free and open market and a national market system and,
in general, to protect investors and the public interest. NYSE Arca
believes that providing Look-Back Individuals a second opportunity to
elect to participate in the MQP is warranted because participation in
the MQP would reduce unnecessary impediments to requalification for
these individuals without diminishing investor protection. In addition,
the proposed rule change is consistent with other goals, such as the
promotion of diversity and inclusion in the securities industry by
attracting and retaining a broader and diverse group of professionals.
The MQP also allows the industry to retain expertise from skilled
individuals, providing investors with the advantage of greater
experience among the individuals working in the industry. NYSE Arca
believes that providing Look-Back Individuals a second opportunity to
elect to participate in the MQP will further these goals and
objectives.
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    \16\ 15 U.S.C. 78f(b).
    \17\ 15 U.S.C. 78f(b)(5).
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B. Self-Regulatory Organization's Statement on Burden on Competition

    The Exchange does not believe that the proposed rule change will
impose any burden on competition that is not necessary or appropriate
in furtherance of the purposes of the Act. The Exchange believes that
the proposed rule change, which harmonizes its rules with the recent
rule change adopted by FINRA, will reduce the regulatory burden placed
on market participants engaged in trading activities across different
markets. The Exchange believes that the harmonization of the CE program
requirements across the various markets will reduce burdens on
competition by removing impediments to participation in the national
market

system and promoting competition among participants across the multiple
national securities exchanges.

C. Self-Regulatory Organization's Statement on Comments on the Proposed
Rule Change Received From Members, Participants, or Others

    No written comments were solicited or received with respect to the
proposed rule change.

III. Date of Effectiveness of the Proposed Rule Change and Timing for
Commission Action

    NYSE Arca has filed the proposed rule change pursuant to Section
19(b)(3)(A)(iii) of the Act \18\ and Rule 19b-4(f)(6) thereunder.\19\
Because the proposed rule change does not: (i) significantly affect the
protection of investors or the public interest; (ii) impose any
significant burden on competition; and (iii) become operative prior to
30 days from the date on which it was filed, or such shorter time as
the Commission may designate, if consistent with the protection of
investors and the public interest, the proposed rule change has become
effective pursuant to Section 19(b)(3)(A) of the Act and Rule 19b-
4(f)(6)(iii) thereunder.
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    \18\ 15 U.S.C. 78s(b)(3)(A)(iii).
    \19\ 17 CFR 240.19b-4(f)(6).
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    A proposed rule change filed under Rule 19b-4(f)(6) \20\ normally
does not become operative prior to 30 days after the date of the
filing. However, pursuant to Rule 19b-4(f)(6)(iii),\21\ the Commission
may designate a shorter time if such action is consistent with the
protection of investors and the public interest. The Exchange has asked
the Commission to waive the 30-day operative delay so that the proposal
may become operative immediately upon filing. NYSE Arca has indicated
that the immediate operation of the proposed rule change is appropriate
because it would allow the Exchange to implement the proposed changes
to its continuing education rules without delay, thereby eliminating
the possibility of a significant regulatory gap between the FINRA and
the Exchange rules, providing more uniform standards across the
securities industry, and helping to avoid confusion for Exchange
members that are also FINRA members. NYSE Arca also noted that FINRA
plans to conduct additional public outreach efforts to promote
awareness of the MQP and the availability of the Second Enrollment
Period among Look-Back Individuals. Therefore, NYSE Arca additionally
indicated that the immediate operation of the proposed rule change is
appropriate because it would ensure that there is sufficient time for
Look-Back Individuals to consider whether they wish to participate in
the program before the December 31, 2023 deadline. For these reasons,
the Commission believes that waiver of the 30-day operative delay for
this proposal is consistent with the protection of investors and the
public interest. Accordingly, the Commission hereby waives the 30-day
operative delay and designates the proposal operative upon filing.\22\
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    \20\ 17 CFR 240.19b-4(f)(6).
    \21\ 17 CFR 240.19b-4(f)(6)(iii).
    \22\ For purposes only of waiving the 30-day operative delay,
the Commission has considered the proposed rule change's impact on
efficiency, competition, and capital formation. See 15 U.S.C.
78c(f).
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    At any time within 60 days of the filing of such proposed rule
change, the Commission summarily may temporarily suspend such rule
change if it appears to the Commission that such action is necessary or
appropriate in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of the Act. If the Commission
takes such action, the Commission shall institute proceedings under
Section 19(b)(2)(B) \23\ of the Act to determine whether the proposed
rule change should be approved or disapproved.
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    \23\ 15 U.S.C. 78s(b)(2)(B).
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IV. Solicitation of Comments

    Interested persons are invited to submit written data, views and
arguments concerning the foregoing, including whether the proposed rule
change is consistent with the Act. Comments may be submitted by any of
the following methods:

Electronic Comments

     Use the Commission's internet comment form (http://www.sec.gov/rules/sro.shtml); or
     Send an email to [email protected]. Please include
File Number SR-NYSEARCA-2023-43 on the subject line.

Paper Comments

     Send paper comments in triplicate to: Secretary,
Securities and Exchange Commission, 100 F Street NE, Washington, DC
20549-1090.

All submissions should refer to File Number SR-NYSEARCA-2023-43. This
file number should be included on the subject line if email is used. To
help the Commission process and review your comments more efficiently,
please use only one method. The Commission will post all comments on
the Commission's internet website (http://www.sec.gov/rules/sro.shtml).
Copies of the submission, all subsequent amendments, all written
statements with respect to the proposed rule change that are filed with
the Commission, and all written communications relating to the proposed
rule change between the Commission and any person, other than those
that may be withheld from the public in accordance with the provisions
of 5 U.S.C. 552, will be available for website viewing and printing in
the Commission's Public Reference Room, 100 F Street NE, Washington, DC
20549, on official business days between the hours of 10 a.m. and 3
p.m. Copies of such filing also will be available for inspection and
copying at the principal office of the Exchange. Do not include
personal identifiable information in submissions; you should submit
only information that you wish to make available publicly. We may
redact in part or withhold entirely from publication submitted material
that is obscene or subject to copyright protection. All submissions
should refer to File Number SR-NYSEARCA-2023-43 and should be submitted
on or before July 14, 2023.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\24\
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    \24\ 17 CFR 200.30-3(a)(12).
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J. Matthew DeLesDernier,
Deputy Secretary.
[FR Doc. 2023-13345 Filed 6-22-23; 8:45 am]
BILLING CODE 8011-01-P